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LA 


"CAPE  TIMES"  LAW  RE 

OF  ALL  CASES  DECIDED 

IN    THE  SUPREME  COURT 

u  > 

OP  THB  ^     ^ 

CAPE  OF  GOOD  HOPE, 

DURING  THE  YEAR   1905 
fWITH    INDEX  OF  CASES  AND  DIGEST). 


BIFOXTKD  BT 


S.    M.    ROWSON,  B.A.,  LL.B., 

ADVOCATE  OP  THK  SUPREME  CODBT. 


VOL.   XV. 


CAPE  TOWN  : 
FBIKTBD  AND  FDBUaBEU  BT  THE  CAPE  TIMES  LTD,  KBXBOH  ffTRBBT. 


»  •       «' 


JUDGES    OF    THE    SUPREME    COURT    DURINa   THE 

YEAR    1905. 


DE  VILLIERS,  Right  Hon.  Sir  J.  H,,  P.O.,   K.C.M.G.,   LL.D.  (Chief  Justice). 
AbBent  from  May  5th  to  December  1st. 

BUCHANAN,  Hon.  Sir  E.  J.,  Knt.  (Senior  Puisne  Judge). 

MAASDORP,  Hon.  C.  J.  (Junior  Puisne  Judge), 

HOPLEY,  H«n.  W.  M.  (Puisne  Judge  of  the  High  Court). 


A  TTORNEY-GENERA  L 


SAMPSON,  The  Hon,  Victor,  K.C. 


• 


*'Cape  Times"  Law  Reports. 


CASES  DECIDED  IN  THE  SUPREME  COURT, 


CAPE   COLONY. 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  Hoplvt 
and  a  Special  Jury.] 


BATCHKLOB    V.    S.    A. 
BRKWERIEB. 


1905. 
Jan.  10th. 

nth. 

12th. 
IBth. 
16th. 


♦1 

11 


« 


»» 


Bailding  contract — ^Extension  of 
time  —  Kje<j^ment  of  con- 
tractor— ^Ikf  eauBure  of  damages. 

Thh  «ra$  an  action  to  reooyer  dam- 
ages for  breacE  of  coivtract.  The  de- 
claration  was  as   follows:  — 

1.  Tbe  plaintiff  is  a  builder  and 
contractor  carrying  on'  business  at 
Eaai  Lfondouj.  llhe  defendant  is  a 
Gomftany  duly  renstered  under  the 
Companies*  Aot,  1862  and  carrying  on 
biiBine£&  at  Eaet  London  and  elsewhere 
in   South  Africa. 

2.  On  or  about  the  17th  June, 
1903,  the  parties  entered  into  a  cer- 
t^n  contract  to  which  the  .plaintiff 
craves  leave  to  refer  when  produced 
at  the  trial,  iv^ercunder  the  pflaintiff 
agreed  in  consideration  of  the  sum  of 
£17,820  to  be  paid  him  by  the  defend- 
ant to  erect  in  accordance  with  certain 
plana  and  epecifioations  certain  build- 
ings at  East  London,  one  poition  of 
whic^  buildings  was  to  be  an  hotel  to 
be  known  as  the  "  Grand  Hotel "  and 
tbe    other  poition   a    brewery   depot. 

3.  It  was  provided  by  the  said  oon- 
traok.  that  th9  plaintiff  should  complete 
the  browery  depot  on  or  before  the 
17th  December.  1903,  and  i^  whole  of 
the  buildings  on  or  before  the  17th 
May.  1904,  unless  the  work  should  be 
delayed  by  reason  of  any  inclement 
weather  or  oausee  not  under  the  con- 
tiol  of  the  oontraotor. 


4.  The  plaintiff  commenced  work 
under  the  said  contract  on  or  about 
the  23rd  June»  1903,  and  thereafter 
dulv  proceeded  with  the  said  work 
and  oontiuued  so  to  proceed  until  the 
defendant  Jbroke  and  cancelled  the 
contract  and  took  posseseion  of  the 
sHe  with  all  materials  and  plant  there- 
on and  ejected  the  plaintiff  and  his 
workmen  as  hereinafter  set  fonth  in 
paragraph   9. 

5.  The  progress  of  the  work  was  de- 
laved  by  reason  of  cei«tain  causes  for 
which  the  plaintiff  was  not  respon- 
sible, but  which  arose  through  the 
acts  or  defaults  of  the  defendant  or 
his  arohitoots  whereby  it  became  and 
was  wholly  impossible  to  complete 
the  brewery  depot  building  by  the 
17ih  December,  1903.  The  said  causes 
are  more  particularly  set  forth  in 
paragra-phe  6,  7,  and  8  hereof. 

6.  The  defendant  after  the  execution 
of  the  said  contract  failed  and  neglect- 
ed to  deliver  to  the  plaintiff  forthwith 
poeseseioii  of  the  whole  of  the  site  for 
the  said  buildings,  but  renmined  in  use 
and  occupation  of  a  certain  portion 
firOm  the  daite  of  the  said  contract 
until  early  in  November,  1903,  and  of 
a  certain  other  portion  from  the  date 
of  the  contract  until  on  or  aibout  the 
16th  Decemiber,  1003.  By  reason  of 
the  retention  by  the  defend<ant  of  the 
saad  portions  the  plaintiff  was  delayed 
and  hindered  in  proceeding  with  the 
woA. 

7.  After  tbe  execution  of  tlie  contraot 
the  defendant  oaused  a  survey  to  be 
made  of  the  site,  which  survey  showed 
a  length  of  frontage  on  a  street  known 
as  Oamlbridge  Street  differing  from 
the  length  of  frontage  shown  on  the 
iplans  annexed  to  the  oonfaract.  The 
plaintiff  duly  aipolied  to  the  defend- 
ant's arohikects  for  instructions  as  to 
what  length  of  fronitage  ^  he  was  to 
adopt,  but  the  easd  axichitecte  unduly 
delaved  to  give  him  such  instructions 
until  Scmtenvber,  1903,  wOien  they  sup- 
plied     him     with    an     amended      plan 


2 


(i 


CAPE  TIMES"   LAW  REPORTS. 


fth<ywmK  an  increased  lengitb  of  front- 
age. Dj  reaoon  of  the  said  delay  in 
giving  inatruotiona  and  of  the  said 
aiteraitions  of  the  plana,  the  progreos 
of  the  works  yns  hindered  and  re- 
tarded. 

8.  lit  WB8  provided  by  the  apeoifioa- 
tiona  thai  the  defendant  should  tup- 
viiy  ceit&in  iron  and  ^teel  work  for  the 
buildings.  The  defendant  failed  and 
neglected  duly  to  supply  the  said  iron 
and  ateel  work  and  the  plaintiff  was 
for  a  long  time  kepi  waiting  lor  if 
and  wsfl  delayed  in  nia  progress  with 
the    buildings. 

9.  In  or  about  January,  1904,  the 
defendani  wrongfully  and  unlawfully 
broke  and  cancelled  the  said  contract 
and  took  poeseesion  of  the  site  and 
works  to  wit,  both  the  *'  Grand 
Hotel"  and  the  brewery  depot  and 
of  the  maierial  and  plant  thereon  and 
ordered  the  plaintiff  and  hk  workmen 
to  leave  the  said  site  and  works  and 
refiHsed  to  allow  thm  to  return  thereto. 

10.  There  ia  due  to  the  plaintiff  the 
sum  of  £3,092  15s.  3d.,  being  for  work 
and  laibour  done,  materials  supplied 
and  diabunsements  made  in,  about  and 
for  the  eaid  buildings.  ParticulaoB  of 
the  said  sum  have  'been  supplied  to 
the    defendant. 

11.  Further  by  reason  of  the  afore- 
said breach  and  canoellaiion  of  contract 
the  plaintiff  has  sustained  damages  by 
way  of  loas  of  profit  on  t!he  contract 
in  the  wm  of  £1,755  19b,  9d. 

12.  All  things  have  happened,  ail 
times  have  elapsed  and  all  conditions 
have  been  fumlled  necessary  to  en- 
title plaintiff  to  pawnent  of  the  said 
sums  but  the  defendant  refuses  to 
RMike  such  payment. 

V'v'nerefore    the    plaintiff   claims:  — 

(a)  Judgment   for  £3.092  15b.   3d. 

(b)  £1,758  19s.  9d.  damages, 
(f)  Interest  a  tempore  morae. 
(d)  Costs  of  suit. 

To  this  declaration  defendant's  plea 
and  claim  in  reconvention  were  as 
follows :  — 

1.  Paragi«iph    1   is    admitted. 

2.  Tbe  defendant  cooopany  admits 
thai  on  or  about  the  17th  day  of  June, 
1903,  the  paitiee  executed  a  written 
oontraot  contained  in  a  certain  docu- 
ment of  the  said  date  together  with 
ceiftain  general  oonditiona  and  speoifi- 
caiions  embodied  therein  and  attached 
tlhereto.  The  defendant  company  crave 
leave  to  refer  for  greater  certainty  to 
the  terma  there<rf  when  produced  at 
tOie  trial,  but  save  as  above  admats 
the  allegations  in  paragraph  2. 

3.  Subject  to  the  matters  heremaftex 
set  foiih,  the  defendant  oompanv  ad- 
mits  the  allegTutions   in   paragraph    3. 

4.  By  clause  15  of  the  said  general 
conditions  it  is  provided  that  *  The 
oontraotor  is  to  complete  iflie  whole  of 
the  works  by  the  seventeenth  day  of 
May,     1904,    unless  the     works  be    de- 


layed by  reason  of  any  inclement 
weaihetr,  or  causes  not  under  control 
of  the  contractor,  or  in  case  of  com- 
bination of  workmen,  or  strikes,  or 
loc^-out  affecting  any  of  the  buildinsr 
trades,  for  which  due  allowance  shall 
be  made  by  the  arc^teot,  and  thei) 
the  oontraotor  is  to  complete  the  works 
within  such,  time  as  the  architect  shall 
consider  to  be  reasonable,  and  shall 
from  time  to  time  in  writing  appoint, 
and  in  case  of  defsoilt,  the  contractor 
is  to  pay  or  allow  to  the  employer  as 
and  by  wav  of  liquidated  and  agreed 
damages  the  sum  of  £5  per  dav 
for  every  day  during  which  they  ah  all 
be  in  default,  until  te  whole  of  the 
works  (except  as  aforesaid)  shall  be  so 
completed,  provided  the  architect  shall 
in  writing  certify  thai  the  works  could 
have  been  reasonably  completed  within 
the    tiint3    appointed." 

5.  (By  clause  16  thereof   it   is   fuither 
provided :  — 

**  If      the    contrsotor.    shall      become 
bankrupt,  or  compound    with  or    nnake 
any  assignment  for  the  benefit  of  their 
creddtoif),    or   shall    suspend    or    delay 
the    penormance    of  their    part    of  the 
contract    (except   on    account  of    causes 
mentioned   in    clause  15,  or  on  account 
df  being    reetrained    or  hindered    under 
any       proceedings      taken     by     parties 
interested   in     any     neighbouring     |>ro- 
peity,  or   in  consequence  of  not  having 
proper    instructions  for  which  the    con- 
tractor   shall   have   duly   applied),      the 
employer,   by    the   architect,    may    give 
to    the    contractors    oT   their    assignees 
or  triMteos.   as  the  case  may  be,  notice 
rejquiring    the    works    to    be   proceeded 
with,     and  in    case  of   default   on     tlie 
part  of  the  contractor  or  their  assignees 
or  trustees  for   a  period  of  three  davs, 
it  shall   be  lawful  for  the  employer,  by 
the    architect,  to  enter    upon  and    take 
possession  of    the    works,   and  to     em- 
ploy  any  other   person    or    persons    to 
carry  on  and  complete  the  same,     and 
to  authorise   him    or    them    to    use  the 
plant,    msierisjls,    and   property  of   the 
contractor   upon    the   works,    and      the 
coerts  and  charges  incurred    in  any  way 
in     carrying   on   and     completing      the 
same   are  to  be    paid    to   the  employer 
by    the    oontraotor  or    may  be    set   off 
by  the  employer  against     any   moneys 
due  or   to  become  due  to  the  oontnac- 
tor." 

6.  By  the  said  specifications  it  is 
provided  tJiai  the  work  is  to  be  carried 
out  so  as  to  allow  the  employees 
(meaning  the  defendant  oompanv)  to 
carry  on  the  business  of  the  hotel  as  far 
as  the  temporary  bar  is  concerned 
and  the  present  temporary  bar  is  to  re- 
main untal  pontion  ol  the  new  building: 
is   ready    for  occupation. 

7.  The  plaintiff  did  not  commence 
work  under  the  said  contract  until 
the  29th  day  of  June,  1903,  and  did 
not  prosecute  the  said  work  with     due 


"CAPE  TIMES'*   LAW  REPORTS. 


n 


(hlig«noe,  and  thereafter  from  time 
to  time  wrongfully,  unlannrfully,  and  in 
treacb  of  the  said  contract  suspended 
and  deltyed  the  aaid  work. 

8.  The  defendant  convpany  admits 
that  in  consequence  it  became  impos- 
lible  to  complete  fhe  brewery  dopoi 
hj  the  17th  Decenift>er,  1903,  but  apeci- 
m  (kniec  any  reeponsibiliity,  or  aot  or 
miuk  causing  or  contributmg  thereto. 

9.  The  defendant  company  admite 
thtt  in  terms  of  the  said  conitriskot  it 
remained  in  poaaeanon  and  occupaition 
of  a  small  portion  of  ri;he  site  ol  the 
said  baildinga,  but  gave  up  the  aaid 
posseuion  and  oocupaiion  when  re- 
(luested  to  to  do.     It     deniea     thart  the 

El&intiff  waa    thereby  hindered     or  de- 
tyed  in  proceeding    with    the  work. 

10.  The  defendant  company  aleo 
admite  that  the  length  of  rrontage  on 
Cambridge  Street  as  aaoentained  by 
actual  surrey  differed  slightly  from  the 
fronti^e  shown  upon  the  planB  buit  the 
plaintiff  was  duly  instructed  in  accord- 
aoce  witii  the  terms  of  the  contract 
and  wfts  not  hdndered  or  delayed  there- 

by. 

11.  The  defendant  company  admits 
that  certain  girders  wera  not  available 
upon  the  31st  October,  1903,  when  due, 
and  admits  that  the  pkintiff  was  delayed 
thereby  but  says  specially  that  the 
period  for  the  completion  of  the  brew- 
ery depot  building  was  upon  the  arrival 
of  the  fiaid  girdens  on  or  about  the 
Uth  daxr  of  January  duly  extended  to 
the  27th  day  of  February,  1904,  under 
the  provisionB  of  the  contract  and  the 
plaintiff  acquieeced   therein. 

12.  Thereafter  the  plaintiff  continued 
to  unreasonably  delay  the  performance 
<*i  his  part  of  the  contract,  and  on  or 
about  the  Zlst  day  of  January,  1904, 
the  defendant  company,  by  iiti  architect, 
gare  due  notice  to  the  plaintiff  in  terms 
of  the  said  clause  16,  rec^uiring  the  said 
works  to  be  i>roceeded  with. 

13.  The  plaintiff  did  not  proceed  with 
the  said  works  within  three  days  there- 
after or  at  all,  but  continued  to  delay 
the  same,  and  on  or  about  the  27th  day 
of  January,  1904,  the  defendant  com- 
pany acting  lawfully  and  under  the 
terms  of  the  contract  entered  upon  and 
took  possession  of  the  works,  material, 
And  plant  in  and  about  the  aaid  build- 
ing. 

14.  There  is  due  and  owing  to  the 
plaintiff  in  respect  of  work  done,  and 
materials  supplied,  and  dieburaements 
nuule  after  aeiduction  of  payments  made 
from  time  to  time  the  sum  of  £2,547 
19s.  lid.  and  no  more  againat  which  the 
defendants  are  entitled  and  claim  to  «et 
off  the  sum  of  £1,638  146.  lid.,  being 
the  lawful  and  reasonable  ooste  and 
<^urp;es  incurred  by  the  defendants  in 
9^ng  en  and  completing  the  works  as 
in  the  claim  in  reconvention  set  forth. 
After  deduction  of  the  said  aum  of 
•l.^  149.  lid.  there  remaina  a  balance 


of  £909  5s.  which  the  defendants  tender 
to  pav  tSie  i>Iaintiff  with   coeis  of  suit. 

15.  !rhe  defendant  company  denies  the 
breach  of  contract  alleged  in  paragraph 
4  or  that  the  plaintiff  has  suatained  any 
damage  for   wnich   they   are   liable. 

15.  The  defendant  companv  denies 
the  breach  of  contract  alleged  in  para- 
graph 4  or  that  the  plaintiff  has  sustain- 
ed   any  damage  for  which  they  are  liable. 

16.  Save  ae  above  and  aave  that  they 
admit  that  they  refuse  to  pay  the  sums 
of  £3,092  156.  3d.  and  £1,755  19s.  9d., 
the  defendant  company  denies  each  and 
every  allegation  in  paragraphs  4,  5,  6, 
7.  8,  9,  10,  11,  and  12  as  specifically  as 
if  herein  set  out. 

Wherefore  subject  to  the  above  tender 
the  defendant  company  pray^  that  the 
plaintiff's  claim  may  be  dismissed  with 
coafts. 

And  for  a  claim  in  reconvention  the 
defendant  company  (now  plaintiff)  saye  : 

1.  It  craves  leave  to  repeat  the  aJlega- 
tiona  contained  in  the  several  paragraphs 
of  the  above  plea. 

2.  In  consequence  of  the  matters  set 
forth  in  paragraphs  12  and  13  of  tlio 
plea  the  defendant  oompajiy  was  com- 
pelled to  incur  reasonable  costs  and 
charges  in  and  about  the  carrving  out 
and  completing  of  the  saia  works 
amounting  to  the  .sum  of  £1,638  14s. 
lid.,  which  aaid  sum  the  defendant  com- 
pany ifi  entitled  by  the  terms  of  the  said 
contract  to  set  off  and  has  claimed  to 
set  off  against  its  hereinbefore  admitted 
liability,  but  the  plaintiff  after  lawful 
demand  duly  made  has  refused  to  allow 
the  said  set  off  or  to  pay  the  said  .sum 
or  any  portion   thereof. 

3.  By  reason  of  the  premises  the  de- 
fendant companv,  which  had  to  the 
knowledge  of  the  plaintiff,  let  portion 
of  the  said  buildings  at  a  rental  of  £150, 
has  loet  the  said  rent  for  a  long  while, 
has  been  deprived  of  the  use  and  occu- 
pation of  the  whole  of  the  said  buildings 
and  has  been  put  to  expense  in  rent  of 
stores  and  offices,  has  lost  large  prc^ts 
from  the  supply  of  beer  to  the  said 
hotel  and  has  otherwise  sustained  dam- 
age in  the  sum  of  £2,000  sterling. 

Wherfore  the  defendant  company 
(now  plaintiff)  claims: 

{a)  Judgment    for    the  nan]     .sum     of 
£1.638  14s.  lid.  M  set  off; 
(b)  £2,000  damages; 
(fi)  Al'temative  relief; 
id)  Oast  of  suit. 
Tlic  replication   waa  general. 

John  Batchelor  said  he  was  a  qualified 
building  and  quantity  surveyor.  He 
came  out  to  this  country  in  April,  1903. 
The  contract  in  question  was  entered 
into  between  the  defendants  and  wit- 
ness's brother,  Herbert  Batchelor,  who 
had  been  in  this  country  for  some 
years.  Witness  managed  the  whole 
of  the  work  for  his  brother.  They 
began  work  on  the  23rd  June;  certain 
bncks  had  to  be  removed,  having  been 


"CAPB  TIMES''   LAW  REPORTS. 


gathered  together  when  the  debris  had 
been  remoyed  after  the  fire.  When 
witness  went  to  the  site  he  found  cer- 
tain of  the  premises  still  in  occupation. 
It  was  arran^fed  thai  the  temporary  bar 
should  remain  until  the  new  premises 
were  ready.  There  was  also  an  old 
8tore.  Witnese,  on  the  23rd  June» 
asked  the  architect  to  give  them  posses- 
si  on  of  the  site.  On  the  24th  witness's 
brother  received  a  letter  from  the 
architect  complaining  that  the  work  had 
not  been  begun.  About  the  second 
week  of  November  they  received  pos- 
session of  the  remaining  portion  of  the 
site,  and  the  other  bit  they  only  re- 
ceived on  the  16th  December.  This 
delay  in  handing  possession  to  them  of 
the  entire  site  caused  the  contractor  to 
be  delayed  in  his  work.  He  considered 
that  if  the  site  had  been  delivered  to 
I  hem  properly  thev  would  have  been 
able  to  complete  tne  brewery  portion 
in  two  months  and  the  hotel  portion  in 
four  months.  Certain  excavations  had 
to  be  carried  out ;  these  operations  were 
begun  without  block  plan.  There  were 
no  pegs  at  the  commencement  of  the 
work.       The  architect  should  have  sup- 

Slied  them  with  a  block  plan.  They 
id  not  make  an  application  to  the 
architect  for  a  block  plan;  they  asked 
him  to  peg  the  site.  The  peggmg  was 
carried  out  between  the  9th  and  l^t. 
of  98  feet.  The  pegs  on  the  hotel  site 
showed  a  frontage  to  the  street  of  103 
feet,  while  the  plan  showed  a  frontage 
of  98  feet.  The  pegs  on  Cambridge- 
street  showed  a  frontage  of  67  feet  2 
inches,  while  the  plan  showed  a  front- 
age of  66  feet.  The  amended  plans 
providing  for  increased  rooms  were  re- 
ceived on  the  4th  September.  When 
he  got  the  plans  on  oeptember  4  the 
work  was  proceeded  witn  immediately, 
but  up  to  that  date  the  work  was 
delated.  On  September  14  the 
architect  objected  to  the  class  of  bricks 
that  were  being  used.  Between 
September  15  and  September  29  he 
could  not  got  the  class  of  bricks  the 
architect  wanted.  Until  the  excava- 
tions were  finished  there  was  no  need 
for  any  material.  The  architect  was 
aware  that  witness  had  great  difficulty 
in  getting  bricks.  Some  of  the  broken 
bricks  were  used  on  the  building  by  the 
new  contractors,  and  others  were  used 
on  another  building.  When  witness  re- 
ceived the  letters  ne  told  the  architect 
he  could  not  understand  the  complaints ; 
nothing  had  ever  been  said  to  witness, 
his  brother,  or  the  foreman  on  the 
works.  On  the  3l8t  October  the  work 
in  connection  with^  the  breweries  was 
stopped.  It  was  impossible  to  go  on 
witn  the  work  until  proper  drawings 
were  supplied ;  the  giraers  were  shorter 
than  those  specified  in  the  bills  of 
Quantity.  Tiie  architect  was  anxious 
that  witness  should  use  certain  material 
from  the  Electric  Li^ht  Works,  and 
there  was  no  reason,  if  witness  thought 


it  equal  to  what  he  was  .using  from 
Blaney,  why  he  should  not  have  it. 
During  the  last  week  of  January,  when 
witness  was  cleared  out,  the  wages 
were  practically  double  what  was  paid 
in  December  when  no  complaint  was 
made.  The  work  could  not  possibly 
be  done  in  forty-seven  davs;  tne  new 
contractors  had  been  on  the  job  eight 
months.  Witness's  brother  asked  for 
£600,  although  work  to  the  value  of 
£1,250  was  on  the  ground,  and  received 
£100.  About  February  a  request  was 
received  from  the  architect  suggesting 
arbitration,  but  witness  could  not  see 
that  arbitration  was  necessary.  Witness 
could  not  make  anything  of  the  counter 
claim  put  in  by  toe  defendants.  After 
repeated  requests  for  particulars  the 
defendants'  attorneys  furnished  a  state- 
ment, in  which  there  was  little  or  no 
information.  The  contractors  who 
contracted  for  the  work  on 
the  second  occasion  were  given 
quantities  that  were  muleading. 
According  to  plans  supplied  to  witness, 
no  excavation  was  shown.  As  a  matter 
of  fact,  a  quantity  of  excavation  was 
done.  Tlie  plaintiff  claimed  £3,092, 
^hile  the  defendants  said  he  was  only  en- 
titled to  £2,547.  They  were  agreed  as 
to  quantity  fees.  There  was  a  dispute 
under  the  heading  of  general  conditions. 
Plaintiff  made  an  allowance  for  certain 
thirgs  in  his  bill  of  quantities  for  the 
whole  period  of  the  contract.  He  took 
a  proportion  on  the  basis  of  the  actual 
time  they  were  .engaged  upon  the  con- 
tract. Under  this  head,  plaintiff's 
amount  was  £156  9s. ;  defendants', 
amount  was  £79.  Under  the  head  of 
work  done  at  the  hotel  buildings,  the 
plaintiff  charged  £3,079,  and  the  de- 
fendants allowed  £2,972.  In  regard  to 
the  brewery  depot,  there  was  no  dis- 
agreement, both  parties  making  the 
amount  due  £1,150  5s.  lOd.  For  works 
generally,  the  plaintiff  charged  £317 
13s.,  which  he  now  reduced  to  £234, 
while  the  defendants  allowed  £214.  Upon 
working  materials  on  site,  the  plaintiff 
charged  £195  138.,  against  £152  9s.,  al- 
lowed by  defendants ;  on  »icaffolding  and 
plant  plaintiff  charged  £160.  against 
£110  allowed  by  defendants.  There  was 
also  a  dispute  as  to  the  centres  for  carry- 
ing the  concrete  floor.  The  amount  was 
£2  12s.  6d.  A  dispute  had  arisen  in 
regard  to  a  number  of  6-in.  drain  pipes, 
the  plaintiff  claiming  £35  86.  The  de- 
fendants' architects  said  that  the  pipes 
were  not  in  accordance  with  the  specifi- 
cation. Witness  contended  that  the 
pipes  were  quite  up  to  specification.  Ho 
estimated  that  if  they  re-sold  the  pipes 
they  would  lose  £10.  There  was  a  fur- 
ther item  of  £90  for  bricks.  The  plain- 
tiff also  claimed  £40  for  delay  through 
being  hindered  in  his  work.  Witne5<s 
produced  figures  in  order  to  indicate  the 
profit  ho  would  have  made  on  the  con- 
tract. The  uniount  expended  on  the 
work  up  to  the  time  they  were  turned 


"CAPe  times  *»  LAW  REPOilTS. 


off  the  coniT«ct  was  £4,842  28.  2d.    Oliis 
Ubount  did  not    include    quantity  fees, 
irhicK  Here  £435.     The   sum  they  w«rc 
wtitkd  to  when  they  finished  work  was 
£5.666  Ids.,  leaving    a   balance  of  £824 
16k.  lOd.,  thus    working  out   at  17   per 
cent,  on  the  total    outlay.       He  calru- 
1»t«d  that  their  profits    on    the  uncom- 
pleted portion  of  the  contract  would  have 
tieen  in  atill  greater  proportion,  because 
(>f  the    fall  in  the  prices  of  bricks    and 
timber  that  had  fiince  taken  place.  Wit- 
ness considered  that  his  brother  was  able 
to  do  work  more  cheaply  than  the  second 
contracton,  Rocholle   and  Smith. 

Cnm-examined  by   Mr.  Upington:  He 
was  not  financially  mteresteci  in  the  con- 
tract, but  received  a  salary  of  £7  per 
veek.     This  was  not      entered  in    tlie 
time  sheets,  but   appeared   under  profit 
>nd  Ion  acxx>unt.       Witness   was   look- 
in^'  after  three  or  four  other  jobs  at  the 
same  time.      Witness  would  deny   that 
the  site  was  covered   with  debris  when 
the  siareyor  went  to  the  sjpot  in  Augiv^t. 
The?  asked  to  have  the  site  pegged  out 
m  we  earlv  part  of  July.      Witness  de- 
nied that  the  site  had  not  been  cleared  at 
the  end  of  July.      On    the   2nd  October 
thej  expected  to  be  well  up  to  time  with 
the  contract      Witness  admitted  that  no 
letter  was  written  by  his  brother  or  him- 
«"     to      (he      defendants     or      their 
jrcfcfiiect,  oomplainin^   of  being  delayed. 
He    knew    the     specification     provided 
that  not  alone  was  the  temporary  bar  to 
remain,  but  the  work  was  to  be  carried 
on  ao  as  to  allow  defendants  to  carry  on 
the    hotel     business.     He     had     never 
«ed    the     manager     of     the      brew- 
eriea  to  give   them    possession    of    the 
whole  wte.      He  repeated  that    they  had 
Mked  the  architect    more  than  once  to 
jivc  them  possession    of  the  whole  site. 
"  the  architect  said    that  they  did  not. 
make  buch  an    application  to  tliem,   he 
waa  m  error.        The  portion  that      the 
breweries   continued    in    pos.se:SBion       of 
until  the  middle   of  December  was     at 
the  back  of  the   temporary  bar.       They 
were  aware  on  the  4th  September    how 
thmp  stood    in    connection   with       the 
breweiy  frontage.       He  remembered  the 
letter  of  the  aJth   September  from   the 
architects    complaining    of    the    rate    of 
progress  of  the  work,  and  threatening  to 
pot  them  ofiF   the    works.        They   had 
hecn  delayed  owing  to  the  difference  of 
trontai^e      in    Cambridge-street.  His 

brother,  in  his  reply,  pointed  out  that 
he  had  had  great  difficulty  in  obtaining 
bricks.  l>ut  added  that  he  expected  to  be 
well  up  to  time  in  his  contract. 

Mr.  Upington :  Why  didn't  yonr 
brother  in  that  letter  complain  about  the 
liteiiot  bein^  given  up? 

Witness  said  that  the  facts  were  well 
known  to  both  sides.  The  architect 
loade  deliberate  misstatements  in  his 
letter  in  September,  when  ho  aaid 
that  he  had  repeatedly  had  to  complain 
of  the  rate  of  progress.  On  the  23rd 
October  they  applied  for  a  sum  of  £500. 


on  account  of  work  they  had  done.  In 
reply,  the  architect  wrote  stating  that 
the  rate  of  work  was  unsatisfactory,  and 
that,  unless  an  improvement  took  place, 
it  would  be  necessary  to  take  the  joo  out 
of  their  hands.  On  the  13th  January 
they  received  an  extension  of  time  until 
the  27th  February  to  ocMnplete  the 
brewery  buildings;  on  the  14th  January 
i  they  received  a  letter  stating  that  no 
extension  of  time  for  the  hotel  buildings 
could  be  given.  Witness  admitted  that 
hi.s  brother  did  not  reply  by  letter,  but 
said  that  a  conversation  took  place  be- 
tween his  brother  and  the  architect.  He 
admitted  that  a  letter  was  afterwards 
received  from  Mr.  Walker  stating  that, 
inasmuch  as  he  had  had  no  answer  to 
his  previous  let^ter,  he  took  it  that  plain- 
tiflF  acquiesced  in  the  proposed  extension 
of  time.  In  February  plaintiff  intimated 
that  if  he  were  to  undentand  that  the 
contract  had  been  cancelled,  he  was 
prepared  to  go  to  arbitration.  Sub^- 
quently  he  refused  to  go  to  arbitration 
unlod '  defendants  admitted  that,  as  de- 
fendants had  turned  them  off,  they  had 
acted  illegally  and  broken  the  contract. 
Replying  to  further  questions,  witness 
said  that  the  defendants  had  not  shown 
any  details  as  to  how  they  arrived  at 
their  estimate  of  the  work  done,  in  re- 
sponse to  plaintiff's  claim. 

Mr.  Upington:  Are  you  prepared  to 
have  that  claim  referroci  tc»  some  com- 
petent person  to  go  into  the  details? 

Witness :  I  am  perfectly  prepared  to 
say  that  any  man  will  uphold  it. 

Mr.  Upington :  It  will  ho  necessary  to 
go  into  tne  various  item^  which  make  it 
up. 

Witnees:  All  the  prices  are  according 
to  contract. 

Mr.  Upington :  Personally,^  it  seems 
to  me  to  \ye  a  thing  that  certainly  ought 
to  be  referred  to  ^ome  accountant  to 
deal  with. 

[Hopley,  J.:  But  how  are  you  to  do 
that  in  the  middle  of  a  jury  trial.] 

Mr.  Upington :  That  particular  i.ssue 
of  amount  could,  by  con.sent,  be  with- 
drawn from   the  jury. 

[Hopley,  J. :  The  trial  is  bv  jury, 
and  as  far  as  I  can  see  we  shall  have  to 
go  through   with    the   whole  thing.] 

Sir  H.  Juta  said  that  if  deiendants 
had  only  done  what  plaintiff  a«kod  them 
to  do  the  whole  matter  could  have  been 
whittled  down.  He  did  not  ^ee  by 
what  process  they  could  withdraw  this 
if«sue  from  the  jury,  and  bring  it  back 
again. 

Mr.  Upington  quoted  section  21  of 
the  Arbitration  Act  (No.  29),  1898. 

[Hopley.  J.,  said  he  thought  they  had 
better  proceed  with  the  case.] 

Witness  was  cross-examined  at  some 
length  on  the  various  items  _  of  the 
claim.  He  admitted  that  the  item  of 
£34  4s.  due  to  the  Municipality  for 
water  should  go  out  of  the  claim  if  it 
had  been  paid  by  defendants.  Plaintiff 
charged    £24   5s.    for   hoardings.       The 


<< 


OAPB  tlMES'*  LAW  REPORTS. 


hoardings  consieted  of  barrek  filled  with 
earth  and  planks  on  top. 

Mr.  Uf>ington :  But  surely  £24  Ss.  is 
an  excessive  figure  for  such  a  hoarding? 

Witness :  It  is  the  price  in  the  con- 
tract, and  the  hoarding  satisfied  the 
Municipality.  A  portion  of  the  wall  at 
the  beginning  had,  he  said,  to  ho 
pulled  down  again,  because  the 
archtteot  insisted  only  on  whole 
bricks  being  used.  When  they  loft 
the  job,  they  left  uncondonined 
brickh  on  the  ground.  They  had  charg- 
ed for  thest*  brickie  in  the  claim.  lie 
did  not  see  how  they  could  have  charg- 
ed the  second  contractors  for  these 
bricks,  because  the  Breweries  took  over 
everything  that  was  on  the  ground. 

Mr.  Upin^ton :  As  a  matter  of  fact, 
jfou  took  this  contract  too  low? 

I  nK)0t  decidedly  say  not.  This  return 
shows  there   was  a  good  profit  on   it. 

In  spite  of  all  the  delay,  you  have 
made  a  profit? 

Witness :  We  have  made  a  good  profit 
on  what  has  been  done.  Answering 
further  questions,  witness  said  he  had 
seen  the  bills  of  quantities  of  another 
builder  for  the  second  contract,  but  he 
declined  to  .say  who  he  was,  because  ho 
might  be  accused  of  animua  by  the 
architect.  The  quantities  were  lent  to 
him  by  the  builder,  and  he  copied  them. 
He  declined  to  disclose  the  builder's 
i>anie,  except  on  paper  to  his  lordship. 

Mr.  Upington  pressed  his  right  to 
have   the   question   answered. 

Sir  H.  Juta  said  rather  than  that  any- 
thing said  by  witness  should  recoil  on 
this  unfortunate  builder,  he  would  with- 
draw the  papers  in  question  from  the 
record. 

Mr.  Upington  raid  he  did  not  know 
whether  there  was  any  process  whereby 
that  could  be  done. 

(Hoploy.  J. :  1  rule  that  it  may  be 
withdrawo.] 

Witness,  further  cross-examined,  said 
that  they  had  actually  done  £7,000 
worth  of  work,  and  the  total  amount  of 
their  tender  was   £18,000. 

Mir.  Upington  intimated  that,  al- 
though he  did  not  auestion  the  witness 
at  present  in  regara  to  the  UMasure- 
ments,  it  wa«  not  to  be  assumed  that 
he  did  not  intend  to  impeach  witness's 
figures. 

Re-examined,  witness  said  that  when 
they  were  ejected  from  the  contract 
they  left  about  39,000  bricks  on  the 
.ground.  The  cost  at  that  time  was 
from  70s.  per  1,000  downwards.  They 
left  all  their  plant  and  materials  on  the 
ground  when  the  defendants  took  pos- 
session. 

Herbert  Batchelor  (the  plaintiff)  said 
that  he  had  had  six  or  seven  contracts 
running  at  the  time  of  the  breweries 
contract,  representing  about  £40,000. 
All  the  contracts  had  been  comi>leted 
except  the  one  in  dispute.  Witness  , 
spoke  to  the  architect  several  times 
about   giving  up   full   possession   of   the 


site.  He  also  spoke  to  Mr.  W^alker 
about  pegging  out  the  site.  They  were 
delayed  by  the  failure  to  give  up  the 
site  and  to  peg  it  out.  W^itness  had 
alao  had  to  ask  for  the  stanchions  for  the 
brewery  depot.  Witness  tried  to  meet 
the  architect  in  regard  to  getting  suit- 
able bricks  from  tlie  15th  to  29th 
September.  The  reason  why  he  only 
mentioned  the  bricks  in  his  letter  to 
the  architect  of  October  2  was  because 
Mr.  Walker  said  he  wanted  a  letter  to 
show  to  the  Breweries  Company.  Wit- 
ness detailed  a  conver:$ation  that  he  had 
with  the  architect  on  the  26th  January. 
The  architect  said  he  would  suggest  to 
the  Breweries  C'ompany  that  the  time 
for  the  hotel  contract  should  be  ex- 
tended two  months,  and  that  he  would 
lot  witness  know. 

Cross-examined :  At  the  interview  he 
had  with  the  architect  he  neither  ac- 
cepted nor  refused  the  extra  47  days  for 
the  brewery  depot.  It  was  unreasonable 
to  expect  that  he  would  be  able  to  com- 
plete that  part  of  the  contract  in  47 
days. 

Frederick  Elliott,  builders  foreman, 
formerly  in  the  employ  of  the  plain- 
tiff on  the  breweries'  contract,  said  that 
he  had  spoken  to  Mr.  Letellier,  defen- 
dant's manager,  about  being  being  given 
possession  of  the  whole  site.  Witness 
also  gave  evidence  as  to  the  pegging 
out  of  the  site,  and  the  discrepancies 
between  the  original  plan  and  the  sur- 
vey. W^itness  did  not  receive  au 
amended  plan  until  afterwards.  As  a 
consec{uence  the  work  was  delayed 

Crocis-exainined :  There  was  whdi  hu 
called  a  ''.•store'  on  the  site  when  ihey 
went  there  coni^aining  empty  and  fnil 
barrels,  bottles,  etc.  The  .••tor*'  i«ad 
neither  roof  nor  windows.  W^itness 
spoke  to  Mr.  Walker  about  the  pegging 
out  about  a  week  after  they  had  been 
on  the  site. 

By  Hopley,  J. :  The  liquor  barrels 
would  bo  exposed  to  the  rain  and  sun. 
What  sort  of  liquor  would  'oe  kept  there? 

W^itness  said  he  did  not  know  what 
kind  of  liquor  would  be  kept  there. 

George  Ernest  Kay,  a  foreman  now 
in  plaintiff's  employ,  said  he  had 
examined  from  time  to  time  the  work 
done  by  the  second  contractors,  Rochelle 
and  Smith.  He  corroborated  the  statib- 
tics   put  in    with    three  exceptions. 

Sir   H.    Juta  closed    his  ca^e. 

Leonard  K.  Walker,  of  the  firm  of 
Cordeaux  and  Walker,  architects.  East 
London,  was  called.  He  said  that  his 
firm  prepared  plans  and  specifications, 
and  drew  out  bills  of  quantities  of  the 
Grand  Hotel  and  brewery  depot.  Plain- 
tiff's tender,  which  was  the  lowest,  was 
accepted.  Work  was  begun  on  the 
28th  June,  1903.  When  the  contract 
was  signed  the  lower  portion  of  walls 
of  an  dd  building  still  remained,  a  con- 
siderable quantity  of  brickwork  being 
still  on  the  site.       There   was   no  diffi- 


"  CAPE  TIMES  •»  LAW  REPO&TS. 


culty  in  aacertainine  what  the  site  wm, 
wliich  had  to   be   cleared   of  tlie     waJl. 
At  the  outaei  a  start  -was  made  to  clear 
the  hotel  site,   but  nothing  at  all     was 
done  in    regard    to   the    brewery   depot 
site.      When  the    contract   waa  entered 
into,  Mr.  EUis,  the  licensee,  was  occupy- 
ing  ine   temporary    bar.     The  clearing 
of  the  site  oi  the  old  building  was  per- 
formed  in  a  very  dilatory    manner;     it 
had  not  been   cleared    when   the  survey 
was  completed  on  the  13th  August.       A 
portion  of  the   old  hotel   walls  bad  not 
been  removed.       On  the  13th  July  wit- 
ness was  asked  bv  Mr.  Herbert  Batohelor 
for      the  pins    for   the   brewery   depot. 
Witness  lofd  the  plaintiff  that  there  was 
»  pin  in,  but  on  going  down  they  were 
unable  to  find  it.      Witness  then  wrote 
to  the  surveyor ;  the  survey  did  not  take 
place  until  the  13th  August,  the  reason 
of  the  dclav  being  that  there  was  some 
question  of  the   deeds  of  the  adjoining 
oj»t      Witness    saw    the   site   on    the 
12th  August;  it  was  not  then  sufficiently 
clear    for  the  contract  to  be  gone  on 
with.    No  complaint  had  been  made  by 
plamtiff,  his   brother,    or   foreman   that 
they  were  being    delayed    through    the 
site  Dot  having  been  pegged  out.       Wit- 
Ma*  had  before  the  13th  August  spoken 
to  pliintiff  about    getting    blue   bricks 
and  other  material.      He  gave  to  plain- 
tiff Yerbal  inatructions  after  the  differ- 
ence between  the  original  p4an  and  the 
*[;^«y  had  been   found.       This  was  on 
the  14th  August.      There  was  no  reason 
J^y  the  excavations   should    not      have 

♦5!!°  1^^°®  ^"    ''^**'*       "^^  reason   why 
tlie  plan  of  the  4th  September  was  given 
wa«  because  the  girders  had  been  ordered 
trom  Home,  and   if   they  extended    the 
buildm?  13  inches  it  would  require  piers 
to  carry  the  ends  of  the  girders.       The 
P»n  was  given    to   show   the   distances 
wtween  the      piers       and    their    actual 
POMtion.    Witness  found  it  necessary  to 
orter  eome  red  bricks    to      be      taken 
yj;  wd  blue  hard.s  substituted.      On  the 
iWh  September  witnem  wrote  to  plain- 
tiff complaining  of  the  rate  of  proicrees 
{« the  work,  and  on  the  28th  September 
^ffave  notice  to  the  plaintiff  that  un- 
Jjs»  an  improvement  took   place   within 
three  days  the  contract  would  be  taken 
wit  of  his  hands.      The  plaintiff  had   a 
ronverjation  with  witness  about  the  let- 
t  k  ^*^  dipcufesed  the  rate  of  progress 
2  th©  work,  but  no  mention  wae  made 
by  the  plaintiff  that  he  had  been  dclaye<l 
">  any  way,  excepting  that  he  said  he 
J*?  had  great  difficulty  in  getting  blue 
onckg.    Plaintiff  admitted  that  the  work 
■^  not  going  on  as  it  should  do.   The 
^^ly  excuse  he   made  was    that    it   was 
iniMssible  to  obtain   the  right  class   of 
hncks  in  sufficient  quantities.      Witness 
jsTe  evidence  as  to  further  commuiiica- 
worn  that  he   had   with  plaintiff,      and 
uid  that  the  work  drag^ped  along  some- 
Jj^«»»  while  sometimes  it  went  quickly, 
ine   management   was       unsatisfactory, 
"itnees  had  only  previously  known  two 


persons  in  connecliun   with  the  contia^t 
— the  olaintiff  and  his  foreman  Elliott. 
He  had  not  known  John  Batchelor  as  a 
responsible  person  in   connection      with 
the  contract  until  this  case  had  come  on. 
The    only  complaint   made    by  plaintiff 
as  to  the  site  was  that  he  had  not   ac- 
cess to  an  old  stable.      That  matter  was 
put  right  on  the  following  day.    Under 
tho  contract  certain  iron  and  steel  work 
was  to  be  supplied  by  defendants;   that 
material  was  not  available  until  early  m 
January.     Batchelor  was  delayed  on  the 
brewery  depot  through    the  late  arrival 
of   steel   and  iron   work.       On    the  31st 
October  plaintiff  had   reached  the   level 
at  which  he  wanted  the  giitlers,  but  he 
did  other  work  after  that.      Witnees  ad- 
mitted that  Batchelor  was  delayed  to  a 
certain  extent  through    the   non-arrival 
of   the    stanchions.     The    delay    on    the 
brewery  depot  began   on  the  31st   Octo- 
ber.    On    the   13th      January,      witne»a 
wrote  to  plaintiff  granting  an  extension 
of  time,  for  the  brewery  depot  contract 
for    47  days ;  he  reckoned  from  the  51st 
October  to  the  end  of  the  contract  time, 
and  also  took   the  period   up  to  the  ar- 
rival of  the  girders.     On  the  14th  Juiu- 
ary,  witness  informed   the  plaintiff  thiit 
no  extension   would   be    allowed  on  the 
hotel  contract,  because  the  work  was  nut 
ready  for  the  girders.       Even  after  the 
girders  had    arrived,   nothing    waa  dor.o 
for  about  a  week  either  on  the  hotel  or 
depot-      On  the  26th  January,  the  plain- 
tiff called   on  witness  at  his      veqieat. 
Witness  then    read  over   certain   ol  the 
letters  he  had  sent  to  plaintiff.     Plain- 
tiff waved  his   hand,  and  said   that  was 
'*  ancient   history  " — using      a     politio'il 
term   going  about   East  London   at  the 
time.     Wtinees    asked  plaintiff  what    h') 
had  to  say,  and  for  the  first  time     the 
latter  then  <«aid  he  had  been  delayed  i.y 
the  sur>-ey.      Witness  admitted  that  he 
had    been  delayed  through   the  girders. 
Plaintiff  said  he  Considered  that  47  days 
was  too  short  an  exteision,    and    men- 
tioned  three  months'  extension   on    the 
hotel.    Witnees   told   him      that    no  had 
not  been  delayed  on  l,hat  at  all.     lie  was 
willing  to  give  plaintiff  additional  time 
Hither  ihaii  have  a  rupture,  but  plaintitT 
got  up   and  said   he  could   not  do  any 
thing  more,  and  that   the  contract   had 
been  broken,  and  he  (plaintiff)  could  do 
as  he  liked.      After  the  notice  of  eject- 
n:ent,     the    plaintiff    continued    on    the 
con ti act  until        the        10th      February. 
Witness  also  gave  evidence  in  reference 
to  certain   of  the  materials  left  on  the 
ground  by  plaintiff,  which  defendants  re- 
fused   to    take   over— the   drain      pipes, 
arches,  etc. 

Cross-examined  by  Mr.  Upington: 
Plaintiff  says  that  he  estimated  hia  pro- 
fit on  the  work  done  at  £842  odd. 
What  do  you  aay  as  to  that? 

Witness :  I  hope  he  has ;  but  I  doubt  it 
very  much. 

Can  you  give  some  reasons  ?— The  work 
was  not  carried  on  in  a  payable  way  at 


g 


"CAPE  TIMES"   LAW  REPORTS. 


all ;  it  Y/a»  draggod  aloii^.  From  tho 
time  of  starting  to  the  time  they  left, 
they  were  on  the  job  six  months,  and  the 
actual  amount  of  work  done  by  them 
was  about  £5,000.  During  further  evi- 
dence, witness  said  he  thought  that  17 
per  cent,  profit  on  ground  work,  as  esti- 
n;ated  by  plaintiff,  was  a  very  large 
figure.  He  had  taken  out  bills  of  quan- 
tities for  the  second  contract  by  taking 
from  the  original  contract  the  work  ac- 
tually done  by  the  plaintiff.  Messrs. 
Rochelle  and  Smith's  tender  was  accept- 
fd  for  the  second  contract,  the  amount 
l)cing  £14,167.  He  thought  that  was 
a  reasonable  figure.  The  contract  price 
had  been  paid,  but  tho  extras,  amounting 
to  aibout  £500,    had  still  to    be   paid. 

Witness  gave  evidence  in  regard  to 
a  report  poreeented  by  tho  plaiirtiff 
(>«i  the  work  done  by  the  second  con- 
tractors in  its  relation  to  the  original 
bills  of  quantities.  The  alterations  m 
the  work  thus  made  represented  £546. 
The  extras  for  which  Rochelle  and  Smith 
had  sent  in  an  amount  were  £563  58.  5d. 
Deductions  had  been  made  in  conse- 
quence of  considerable  alterations  under 
clause  7  of  the  general  conditions  of  con- 
tract. Witnesjs  was  then  examined  in 
regard  to  ihe  disputed  iliems  of  the 
plaintiff's  claim.  He  declared  that  the 
plaintiff  never  provided  hoardings  to  his 
satisfaction.  He  considered  that  £12 
lOs.  was  quite  sufficient  for  the  hoardings 
and  lights:  the  plaintiff  had  charged 
.£24  17s.  3d.  Witness  was  further  exam- 
ined in  some  detail  in  regard  to  various 
items. 

Sir  H.  Juta  suggested  that  theoe  de- 
tail*? should  be  submitted  to  an  archi- 
tect, and  that,  after  hearing  Mr.  Bat- 
clielor  and  Mr.  Walker,  he  should  give 
evidence  to  the  Court. 

Mr.   Upington  consented. 

The  suggestion  was  also  approved  by 
Hopley,  J.,  and  the  jury. 

It  was  agreed  that  the  following  ques- 
tions be  submitted  to  a  quantity  sur- 
veyor, to  be  dealt  with  in  the  course  of 
the  afternoon,  and  that  he  should  hear 
Mr.  John  Batchelor  and  Mr.  Walker: 
(1)  General  conditions  of  contract;  (2) 
work  done  on  hotel;  (3)  work  done  on 
brewery  depot;  (4)  work  generally;  p) 
working  material  on  site ;  (6)  scaffolding 
and  plant.  Counsel  intimated  that  they 
would  mutually  decide  upon  a  quantity 
surveyor,  whose  evidence  should  be  re- 
garded as  final. 

Mr.  Leonard  Walker  stated  that  ho 
liroduced  the  certificates  of  Batchelor  s 
conitract  and  also  of  Rochelle  and 
Smith's  oonttax^t.  He  stated  that  the 
first  entry  of  shingle  in  plaintiff's  ma- 
terials book  was  on  the  8th  September; 
shingle  was  to  be  ti  constituent  of  the 
concrete  used  on  the  job.  Oonorete 
would  be  used  for  the  foundations;  that 
would  be  the  first  thing  done  after  the 
trenches  had  been  got  owt. 


Cross-examined  bj  Sir  H.  Juta :  Wit- 
ness usually  put  in  writing  his  com- 
plaints as  to  works  under  his  supervi- 
sion. He  did  not  address  any  letters  of 
complaint  to  the  plaintiff  in  November 
or  December,  1905 ;  he  made  complaints 
verbally  to  the  plaintiff  that  the  work 
was  not  being  pushed  on  sufficiently.  He 
desired  to  give  the  plaintiff  as  much 
latitude  as  possible  during  November 
and  December. 

Sir  H.  Juta:  By  why  this  sudden 
generosity  of  latitude  after  you  had 
been  giving  the  plaintiff  notice?  Had 
it  anything  to  do  with  the  girders  not 
arriving? — Witness:  No. 

In  answer  to  further  questions,  wit- 
ness said  that  he  was  not  being  pu.shed 
so  much  during  November  and  Decem- 
ber by  the  breweries.  That,  he  thought, 
was  one  reason  why  ho  did  not  ad- 
dress letters  of  complaint  to  the  plain- 
tiff. 

Sir  H.  Juta:  Can  you  suggest  any 
reason  why  the  employer  suddenly 
dropped  his  great  urgency  in  No- 
venaber  and  I>eoembef,  and  woke  up 
again  in  January? — I  think  he  came 
i:i  in  Deoember  and  made  com- 
plaints. The  plaintiff  did  very  good 
work  from  October  to  the  20th  Novem- 
ber. 

You  granted  them  an  extension  of 
time  on  the  l^th  January,  and  then  on 
the  14th  January  you  launched  this 
thunderbolt,  threatening  that  if  they 
did  not  go  more  qui^y,  you  would 
take  the  work  out  of  their  hands? — I 
did  not  consider  it  a   thunderbolt. 

Didn't  you  consider  it  a  farce  to  give 
an  exteneion  of  time  till  the  27th  Febru- 
ary, and  tlien  the  day  after  to  send  that 
notice  threatening  to  take  the  work  out 
of  his  hand.^? — I  did  not  send  a  notice; 
I  sent  a  letter  telling  him  that  he  must 
push  on,  or  he  would  not  get  through 
with  it. 

Now  you  knew  perfectly  well  that 
after  the  contract  time  had  expired,  you 
wHild  not  give  an  extension? — No,  I  did 
not  know  that. 

Didn't  you  know,  what  every  other 
Bicbitect  knows,  that  you  cannot  give  an 
ext<»nsion  of  time  when  the  contract  ti^me 
has  expired?— I  did  not  know.  That  is  a 
legal  point,  and  I  am  not  a  lawyer. 

Ill  further  cross-examination,  witness 
said  that  he  declined  to  give  the  plaintiff 
more  monev  in  January,  because  he 
was  not  satisfied  that  he  was  entitled  to 
more  upon  the  work  done.  He  had  not 
measured  tho  work  exactly. 

Sir  H.  Juta:  How  dare  you  withhold 
from  these  men  money  that  is  due  to 
t,li"m? 

Witness :  If  I  had  paid  more  than  the 
wr  rk  justified,  what  would  have  been  my 

fiosition  with  my  client?  Replying  to 
urther  questions,  he  said  that  he  re- 
gaided  it  as  possible  on  the  21st  Janu- 
ary that  he  would  have  to  take  the 
work  out  of  plaintiff's  hands,  but  he 
was  going   to   wait.       He  thought  that 


»' CAPB  TIMES '♦  LAW  BEl>OltTS. 


pluiitiff  ^' anted    to   ^et    rid  of  the  con- 
tnci 

SirH.  Juta :  Yes,  and  you  were  going 
to  help  him? — Witness :  I  did  not  want 
him  to  get  rid  of  the  contract. 

Cross-ezammation  continued:  On  the 
26th  January,  he  made  a  further  offer  to 
ibe  plaintiff.  He  offered  to  give  plaintiff 
an  additional  xnonth'a  extension  on  the 
brewery  de)M>t,  and  two  months'  exten- 
sion on  the  hotel  contract.  He  waa  de- 
sirouB  that  the  contract  should  be  pro- 
ceeded with. 

Sir  H.  Juta:  Notwithstanding  that 
these  contractors  were  such  a  dilatory 
bad  lot,  you  were  prepared  to  give  them 
extensions  rather  than  let  the  contract- 
ors go? — ^^'itneas :  We  offered  the  exten- 
sions. 

Eliminate  the  period,  15th  September 
to  2nd  October,  when  there  was  a  dis- 
pute between  you  as  to  bricks,  and  show 
me  one  single  serious  complaint  of  delay 
in  the  work  on  the  brewery.— There  was 
no  written  complaint. 

No.  Now  what  becomes  of  this  big 
case  of  accumulated  complaint  of  delay- 
ing the  work?— It  is  very  plainly  shown 
by  the  amount  of  work  he  did. 

Is  that  all  you  can  answer  on  that?— 
Tee.  A  number  of  the  condemned  cen- 
tres weie  used  by  Rochelio  and  Smith 
on  the  building,  after  the  centres  had 
been  reboarded.  Witness  bad  allowed 
the  plaintiff  £20  for  them. 

Arthtxr  Thomas   Babbe,    quantity  sur- 
vejor.  Cape  Town,  g;ave  evidence  in  re- 
ference to  the  questions  submitted     to 
nim.  by  consent  of  parties,  for  determin- 
ation.   Under  the  general   conditions  of 
contract,  plaintiff  claimed  £156  98.,  and 
ivitneM  found  for  £91  10s.      As  to  works 
executed  on   the  hotel   portion,  plaintiff 
claimed  £3,079    lOs.    lid.,   and    witness 
found  that  he  was  entitled  to  £3,036  17s. 
IM.   As  to  works  executed  on  the  brew- 
eg  depot,  plaintiff   claimed    £1,150  5s. 
JM,  and  witness  found  that  he  was  en- 
titled to  payment  in  full.      As  to  works 
wnerally.  plaintiff   claimed      £317    12s. 
«J.  and  witness  found  that  he  was  en- 
trtled  to  £214   Is.  2d.       As  to  contrac- 
tor«  working  material  on  site,  plaintiff 
claimed  £196   13s.  2d.,    and    witnen  al- 
'^'.''ed  £173  168.  lOd.      As  to  contractor's 
Pwnt,  plaintiff  claimed   £160    Ms.    4d., 
■on  witness  allowed  £135. 

VX  the  Jury :  He  could  not  express  an 
J'pinion  as  to  whether  the  plaintiff  would 
5*'^J  been  able  to  make  a  profit  of 
*l.'00.  if  he  had  carried  out  the  entire 
«>«itract.  The  prices  in  the  schedule 
***Died  (o  him  to  be  fairly  well  cut.  He 
would  not  can  them  '*  fafc  prices." 

Mr.  Upington  said  that  the  tender 
made  bv  the  defendants  denied  to  be 
Mout  £160  below  the  findings  of  Mr. 
Babbs. 

G€o.  Thomsby  Atheistone,  of  Mur- 
W  «nd  Atheribtone,  surveyors.  East  Lon- 
don gave  eridence  as  to  finding  debris 
on  the  site  when  he  earned  out  the  sur- 
vey in  August,  1903. 


Alfred  Letellier,  formerly  defendants' 
m&nager  at  East  London,  described  the 
condition  of  affairs  on  the  site  in  the 
early  period  of  the  contractor's  operations. 
As  to  the  alleged  •*  store,"  he  declared 
that  only  empty  casks  and  cases  were 
placed  in  the  space  between  the  old 
walls.  He  left  defendants'  service  of  his 
own  free  will.  Witness  had  no  com- 
plaint either  from  the  plaintiff  or  archi- 
tect about  these  cac^ks  being  on  the  pro- 
mises. When  plaintiff  wanted  casks 
renpoved  witness  had  them  removed  in 
half  an  hour.  He  was  absent  fn>m  East 
London  between  August  19  and  Septem- 
ber 26,  and  on  his  return  he  was  as- 
tounded at  the  small  amount  of  work 
which  had  been  done  on  the  contract. 
For  the  temporary  bar,  Ellis,  the 
licensee,  was  paying  £40  a  month.  His 
lease  extended  to  [September,  1907.  Ellis 
was  *'  tied  "  to  the  breweries  for  draught 
beer.  The  defendants  paid  £5  a  month 
for  temporary  offices.  An  extra  store  at 
£3  a  month  had  to  be  hired  for  cases 
and  boxes. 

Cross-examined  by  Sir  H.  Juta:  Wit 
ness  was  at  pre«*ent  out  of  employment, 
but  he  was  expecting  when  this  lawsuit 
was  over  to  go  to  the  C5entraJ  Hotel, 
King  William's  Town.  He  was  not  to 
be  backed  by  the  South  African  Brew- 
eries. He  had  not  yet  settled  up  with 
tho  Breweries.  He  had  sold  his  hotel 
through  the  Breweries,  and  he  was  ex- 
pecting a  balance  of  about  £230.  He 
did  not  know  whether  any  question  had 
arisen  between  the  Brewenes  and  the 
auditor  at  East  London.  He  admitted 
that  he  had  been  asked  to  give  an  ex- 
planation in  regard  to  various  items  on 
vouchers.  He  was  told  about  the  mat- 
ter at  the  end  of  last  month.  He  wrote 
a  letter  to  tho  head  office,  saying 
that  the  plaintiff  had  admitted  hav- 
ing broken  the  contract.  He  did 
not  know  who  informed  him  of  that. 
He  could  not  be  expected  to  remember 
every  incident  ten  months  afterwards. 

Henry  John  Ellis,  East  London,  said 
that  he  was  the  lessee  of  the  Grand 
Hotel,  and  paid  a  rent  of  £150  a  month. 
For  the  temporary  bar  during  the 
building  operations,  he  paid  £$0  a 
month.  His  manager  occupied  a  sleep- 
ing apartment  on  the  site.  His  last 
month's  account  with  the  Breweries  Com. 
pany  was  £142;  during  the  rebuilding, 
nis  account  for  the  temporary  bar  was 
£30  to  £40  a  month. 

[Hopley,  J. :  I  suppose  you  don't 
know  how  much  profit  they  make  out 
of   it?] 

Witness :  I  suppose  about  50  per  cent. 
No  doubt  the  proht  would  be  consider- 
able, or  they  would  iiot  be  able  to  pay 
such  good  dividends. 

Charles  Ma{^e  Polmear,  manager  for 
Rochelle  and  Smith's,  said  his  firm  haJ 
practically  completed  the  oontrac*>. 
There  was  a  balance  owing  of  £563  ov<  r 
and  above  the  contract  price.  Assum- 
ing that  that  was  allowed,  their     proht 


10 


I* 


CAPE  TIMES"  LAW  REPORTS. 


on  the   wurk  would,  he     calculated,  be 
about  £700. 

Cr<o68-examined :  There  vras  some  dif- 
ference of  working  between  contractors. 
His   firm  had  properly-kept   books. 

Sir  H.  Juta:  Then  I  should  be  glad 
if  vou  would  arrange  for  your  books  to  be 
^nt  here  from  EJast  London,  ready  for 
Monday's   hearing. 

Witness  said  he  did  not  see  how  tlieir 
books  would  helo  matters  much. 

Sir  H.  Juta:  Ves,  but  I  do. 

Hoplcy,  J.,  requested  witnea**  to 
telegraph  to  his  firm  for  the  books  deal- 
ing  with  this  contract. 

Witness,  in  answer  to  Sir  II.  Juta, 
said  that  he  believed  their  original  ten- 
der for  the  coi>tract  was  £18,000,  or  a 
little  over. 

John  Rochelle,  of  Rochelle  and  Smith, 
said  that  their  original  tender  was 
£19,000,  or  a  little  over.  The  firm's 
books  would  show  the  amount  of  profit 
made  on  the  second  contract.  He  had 
i>ot  estimated  the  Pj^fit. 

Cross-examined :  Thoy  took  the  second 
contract  at  a  cheaper  rate  thun  thev 
adopted  in  their  original  tender.  He 
could  not,  however,  say  that  of  his  own 
knowledge. 

Mr.  Upington  intimated  that,  as 
dc«irod  by  tne  other  side,  wires  had 
lieen  sent  to  Rochelle  and  Smith,  at 
fiast  London,  asking  them  to  send  their 
iMioks  dealing  with  the  second  contract. 
The  books  had  been  sent  by  Saturday 
ni^ht'e  train,  which  was  due  in  town 
this  (Tuesday)  morning. 

Sir  H.  Juta  asked  for  copies  of  the 
telegrams  fent  to  Rochelle  and  Smith 
to  be  produced.  There  were,  he  un- 
drratood,  three  wires  despatched,  and 
h->  desired  the  Cburt  to  authorise  the 
telefn'aph  ofiice  to  give  to  his  attorney 
copies  of  telegrams  to  Roclralle  and 
Smith,  other  than  that  sent  by  Mr. 
Soutcr. 

The  necwsary  authority  was  given  by 
the  Court. 

Mr.  Upington  then  called  further  evi- 
dence. 

C*harle«  Thomas  Mouat,  account^uit, 
C^ape  Town,  said  that  he  had  examined 
c-ertain  books  in  the  hands  of  the  Regis- 
trar, these  being  a  copy  of  the  wages 
books  of  the  plaintiff,  and  memoranda 
of  nMiterials  and  plant  delivered  to  the 
Giajid  Hotel  Works,  contained  in  three 
books.  The  books  were  very  inaccurate, 
so  far  84  additions  were  concerned. 
There  were  many  errors,  making,  he  cal- 
culated, a  difference  of  about  £170. 

By  the  Court:  The  difference  meant 
that  the  profit  of  the  plaintiff  would  be 
smaller  than  appeared  from  the  ma- 
terials books,  inasmuch  as  the  materials 
had  cost  more  than  the  additions  show- 
e<l.    , 

Witness  detailed  several  cases  of 
shortage  in  the  additions.  He  found 
shortages  amounting  to  £174  lis. 
9d.,  and  exce&scs  amounting  to  £5  15s. 
7d.,   thus  showing   a    shortage   of    £168 


16s.  2d.  The  correct  addition  of  the 
n^aterialft  books  was  £2,420  5s.  4d.,  and 
of  the  wages  books  £1,663  ISs.  He  did 
not  think  it  pos.«ible  to  compile  a  profit 
and  loss  account  from  tJie  books  pro- 
duced. He  should  want  the  man's 
journal,  cash  books,  and  so  forth.  There 
was  no  cost  of  <>upervi8ion  shown  in  the 
books  produced,  which  were  really  in- 
formal memoranda.  A  certain  amount 
should  also  be  allowed  for  depreciation 
of  plant. 

Cross-examined  by  Sir  H.  Juta: 
Plaintiff'b  paynientb  for  the  IkHcI  and 
brewery  contract  wore :  For  wa^es, 
£1,663  186. ;  material  and  part  plant, 
£2,420  5s.  4d. ;  imported  goods,  £711 
16s. ;  carting.  £69  Is. ;  water,  £26  U. 
lOd. ;  use  and  depreciation  of  scaffold- 
ing plant,  £25 ;  and  management  ex- 
penses, £85.  He  did  not  think  that 
£85  would  represent  a  fair  charge  for 
inanagement  on  such  a  large  contract  for 
eight  montJtt.  There  would  be 
clerical  and  office  expenses  to 
add,  and  cliarges  for  stationery. 
The  total  of  the  items  he  had  men- 
tioned was  £5,000  2s.  2d.,  from  which 
£160  was  to  be  deducted  for  bricks  sold 
on  the  ^ite,  leaving  a  sum  of  £4,840  2s. 
2d.  Witness  considered  that  15  per 
ceivt.  should  be  added  for  management 
expenses,  that  was  to  i»ay,    £726. 

Mr.  Upington  said  that  Mr.  Walker 
(the  architect),  who  was  to  be  re-called, 
to  give  evidence  on  a  certain  point,  was 
unable  to  attend  the  Court.  Counsel 
put  in  a  medical  certificate,  showing 
that  Mr.  Walker  was  suffering  from 
dysentery  and  would  not  Ik>  able  to  at- 
tend before  Wednesday.  He  added  that 
he  could  not,  of  course,  en^u^e  the 
health  of  his   witnesses. 

Sir  H.  Juta,  in  answer  to  his  lord- 
ship, said  he  would  rather  go  on  with 
the  case  than  have  another  adjournment, 
the  absence  of  the  books  of  Rochelle  and 
Smith,  and  certain  evidence  he  wanted 
from  Mr.  Walker  notwithstanding.  He 
hoped  that  the  telegrams  sent  to  Rochelle 
and  Smith  would  soon  be  in  court. 
Counsel  then  proceeded  to  address  the 
rury  in  support  of  the  plaintiffs  case. 
The  whole  crux  of  the  case  was,  he 
urged,  whether  the  architect  was  justi- 
fied in  giving  plaintiff  notice,  and  tak- 
ing possession  of  the  works.  That  (|ue8- 
tion  involved  two  points — one  of  law 
and  the  other  of  fact.  As  regarded  the 
legal  aspect,  his  first  point  was  that  the 
contract  time  for  the  brewery  depot 
having  expirt»d  on  the  17th  Deceml)er, 
1903,  the  architect  could  not  in  January 
extend  the  time.  He  quoted  Hudson 
on  Building  Contracts  (Vol.  I.  page 
447),  and  crted  the  cases  of  IFa/itcr  (Law 
Reports  I.,  Common  Pleas  Division,  p. 
518),  Robert*  r.  Bury  Inrprorement 
Commisnoners  (5  Common  Pleas  Divi- 
sion, p.  310),  Welln  r.  Army  ami  Xnry 
Co-operative  Society  (Law  Times  Re- 
ports, vol.  86,  p.  764).  ^  In  point  of 
fact,  Mr.  Walker  was   quite  wrong      in 


CAP£  TIMES''  LAW  tt^EPOItTS. 


11 


exteoding  the  iiiue   ou   the   13tii     Janu- 
ary.    It  was  very  significant  that  Mr. 
\YBlkcr  should  h&ve  been  anxious  to  haye 
an  acknowledginent  from     the    plaintiff 
ihat  they    acquiesced  in  the    extension. 
The  only  power  the  architect  had  under 
the  contract   was  that  if  the  work  were 
ii)i>t  proceeded    with,   he  &*hould   be  able 
to  apply   penalties  of  £5  a  day.       The 
contract  said  nothing  as  to  the   rate  of 
progrew  being    within  the     arlntrament 
of  the  architect.       The   notice  given  to 
the    contractor  had  nothing  to  do  with 
|)att  delays.       He  submitted  that  in  the 
month  of  Jajiuary,  when  the    notice  was 
given,  the  rate  of  progress  was     better 
Iban  it  had  been  before.       Wages    paid 
iu  January  were  100  per  cent,  more  than 
in  ^e  previous    penod.       Counsel  went 
un  to  review    the  principal    features  of 
the   evidence,    and   submitted    that    the 
amount  of   profit  cUimed  by  the  plain- 
tiffs was  not    excessive. 

Mr.  Upington  said  that  this 
was  really  the  first  opporttmity 
he  had  had  of  putting  the  de- 
{eodant's  case  before  the  Court.  The 
pocition  of  the  architect  under  the 
coiHraci,  he  submitted,  was  that  of  a 
judge  between  the  contractor  and  em- 
plover.  That  there  was  cause  of  com- 
plaint against  the  contractor  from  the 
outset,  there  could  be  ik>  doubt.  He 
contended  that  ti^  evidence  of  the  sur- 
veyor as  to  the  debria  oji  the  site  on 
the  12th  August  was  entitled  to  the  ut- 
OMst  consideration.  He  dealt  with 
the  causes  of  delay  alleged  by  the 
P«intiff,  and  submit^d  that  it  had 
heen  shown  to  be  highly  improbable 
that  the  plaintiff  was  ever  delayed  eitL»*r 
**  ^garded  anything  kept  on  the  site 
hy  the  defendants  or  the  course  to  be 
adopted  in  regard  to  the  additional  land 
"•  Cambridge-street  found  u>jn  the 
survey.  These  so-called  causes  of  delay 
J*'^  »n  after- thought  in  the  mind  of 
Mr.  BatcheloT.  As  to  the  non-arrival  of 
the  steel-work,  the  defendants  admitted 
jh|s.  and  for  the  sake  of  argument, 
"«  would  admit  that  they  were  to 
J*^*^  extent  liable,  but  he  con- 
tended that  the  whole  of  the  period 
1  S  *^  plaintiff  might  have  been  de- 
layed had  been  allowed  in  the  exten- 
*^^  of  time  granted  by  the  architect. 
^*  Jo  the  question  of  the  architect's 
"ght  to  extend  time  of  contract,  counsel 
•"°y»'*t€d  that  the  correspondence  showed 
tnst,  in  the  absence  of  an  explicit  rei)ly 
ny  the  plaintiff  or  his  brother,  the  plain- 
*  k^**  taken  to  have  acquiesced  in  the 
*rchitect's  proposal  granting  an  ex- 
tension on  the  brewery  depot,  and  de- 
chninif  to  give  an  extension  on  the  hotel. 
If  that  statement  was  unchallenged.  Mr. 
Bstchelor  could  not  now  be  heard  to 
^y  that  he  did  not  accept  the  extension 
offered  on  the  brewery  depot.  If  the 
plsiotiff  did  accept  that  extension,  ss 
counsel  submitted  he  did,  then  the  ques- 
tion of  Walker's  authority  to  give  the 
ezteoaiou  went  out  of  the  case  altogether. 


Tlieu  the  question  arosje  whether  Batche- 
lor  did  or  did  not  after  thai  continue 
the  work  at  a  reasonable  rate  of  pro- 
gress. Of  that  question,  the  first  judge 
was  tihe  architect.  Plaintiff's  own 
memorandum  book  showed  that  in 
January  the  wages  paid  on  the  con- 
tract did  not  during  sny  week  show  a 
fluctuation  of  a  £lu  note.  On  his  own 
figures,  there  was  nothing  to  show  that 
plaintiff  made  any  improvement  while 
the  six  days'  notice  given  in  January 
was  running.  He  might  be  asked  what 
were  the  reasons  why  plaintiff  had 
got  into  these  difficulties?  He  did  not 
wish  to  go  into  these  mAttera,  but  it 
did  not  seem  improbable  tltat  their  con- 
tract was  not  so  profitable  as  they  wished 
to  make  out,  that,  as  a  matter  of  fact, 
theirs  was  the  lowest  tender,  and  that 
they  cut  things  a  itccie  too  fine.  H 
defendants  had  not  acted  illegally,  couu- 
.sel  contended  that  they  were  entitled  to 
danukges.  and  especially  in  relation  to 
the  difference  of  rental  that  thev  re- 
ceived through  being  kept  out  of  tlie 
Grand  Hotel  until  November.  He  sub- 
mitted that  the  evidence  given  by  plain- 
tiff in  support  of  his  claim  that  they 
would  have  made  10  per  cent,  profit  on 
the  entire  contract  wa.s  unsatisfactory. 
Counsel  quoted  from  HwUan  (»»  Build- 
ing  ConirarU  (Vol.  H..  p.  132). 

Hopley,  J.,  said  they  must  all  foel  that 
this  was  a  case  which  it  would  have  been 
much  better  to  have  referred  to  some 
practical,  common-sense  man  at  Kast 
London,  who  could  have  gone  ou  the 
spot  and  entered  into  every  detail. 
Such  a  man  he  was  sure  would  in  two 
days  have  been  able  to  deal  with  the 
case  in  a  more  satisfactory  way  than  a 
judge  and  jury  sitting  five  days  in  Capo 
Town  could  do.  Touching  on  the  ques- 
tion of  the  architect  s  right  to  extend 
the  contract  time  on  the  brewery  depot, 
his  lordship  said  it  seemed  to  him  that 
the  view  contended  for  by  Sir  H.  Juta 
was  the  correct  one.  It  seemed  to  him 
from  the  ease  quoted  that  if  the  em- 
ployer wanted  to  forfeit  a  contract  it 
must  be  done  during  the  period  of  the 
contract.  His  lordship  dealt  with 
various  other  aspects  of  the  case,  and 
indicated  the  legal  bearing  of  the  issues 
to  be  tried  by  tne  jury.  The  measure 
of  damages,  if  the  jury  found  that  the 
defendants  had  committed  a  breach  of 
contract,  would  be  the  profit  that  plain- 
tiff was  likely  to  have  made  on  the  con- 
tract, and  that  alone.  Then  there  was 
also  a  sum  of  £2,835  that  it  was  ad- 
mitted would  have  to  be  awarded  to  the 
plaintiff  provided  certain  materials  were 
mcluded  that  the  architect  had  rejected. 
After  all  the  architect  was  the  sole 
arbiter  in  the  matter  of  the  materials. 
As  to  the  bricks,  it  seemed  that  if 
there  were  £90  worth  of  bricks  left  on 
the  site  by  plaintiff,  and  if  these  bricks 
were  used  by  the  second  contractors, 
whether  improperly  or  not,  then  the 
plaintiff  should  be  allowed  that      sum. 


12 


t* 


OAPB  TIMES"   LAW  REPORTS. 


His  lordsliip  afterwards  gave  direotiona 
to  the  jury  as  to  the  question  of 
d&mages  to  defendanta  should  it  be 
found  that  plaintiff  had  been  rightfully 
ejeofced  from  the  works. 

The  jury  intimated  that  they  had 
found  for  the  plaintiff  for  £2.783  7b.  4d. 
on  the  account,  and  £750  as  and  for 
damagee. 

Sir  H.  Juta  formally  moved  for  judg- 
ment for  £3,533  78.  4df.,  with  costs.  He 
also  mentioned  the  question  of  the  costs 
of  previous  applications. 

After  heanng  counsel   further, 

Hopley.  J.,  said  that  judgment  would 
be  entered  for  the  plaintiff  for 
£3,533  78.  4d.,  with  costs,  to  include 
costs  of  previous  applications,  and  plain- 
tiff's expenses  as  a  necessary  witness. 
The  question  of  John  Batohelor's  ex- 
penses as  a  wittness  would  be  dealt  with 
by  the  Taxing  Master. 

[P]aintiff*6  Attorneys :  Silberbauer, 
Wahl  &nd  Fuller:  DefendAnt^'  AUor- 
neys:  Vian  Zyl  and  Buissiuni.] 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Chief  Justice  (the  Bight 
Hon.  Sir  J.  H.  DE  Villi ERS,  P.O., 
K.C.M.G.,  LL.D.).] 


ADMISSIONS. 


f        1905. 

(Jan.   ]2ih. 

Mr.  Searle,  K.O.,  moved  for  the  ad- 
mission of  Gerald  Molyneux  Swift,  as 
an  advocate. 

Application  granted,  and  oath  admin- 
istered. 


Law  Society — Attorney — Admis- 
sion. 

Where  the  Txiw  Society  raises 
difficulties  in  respect  of  the 
admission  of  a»  attortiey :  it 
should  dire-^tly  oppose  rntd 
produce  definite  facts  in  snp- 
port  of  tts  opposition. 


Mr.  Close  moved  for  the  admission  of 
Herbert  Stanley  Jones  as  an  attorney-at- 
law.  Mr.  M.  Bisset  appeared  for  the 
Law  Society,  who.  although  they  did 
not  object,  desirea  to  put  in  certain 
correspondence,  from  which  it  would 
appear   that  the  secretary   of  the     Law 


Society,  Loudon,  wrote  to  the  effect  that 
while  there  was  no  record  against  the 
applicant  there  had  been  one  or  two 
complaints  against  him,  but  they  conld 
not  be  made  out.  Hi*^  name  was  still 
on  the  rolls.  From  Natal  there  was  cor- 
respondence to  tlie  effect  that  he  was 
confidential  clerk  to  Robert  Greening, 
an  attorney,  who  was  at  present  under 
suspension,  and  that  when  Greening  ab- 
sconded from  Natal  in  1900,  the  appli- 
cant saw  him  off. 

The  applicant  admitted  having  been 
clerk  to  Greening,  and  in  support  of 
tho  application  correspondence  was  put 
ill  showing  how  ho  had  been  employed 
in  this  country. 

Mr.  Close  pointed  out  that  the  cor- 
respondence should  have  been  put  on 
affidavit.  Mr.  Jones  was  in  court,  and 
was  perfectly  willing  to  answer  any 
questions. 

Mr.  Bisset  said  he  was  not  instructed 
to  oppose  the  amplication.  Ho  would 
leave  the  matter  in  liis  lordship's  hands. 

pe  ViUiem,  C.J.,  in  granting  tho  ap- 
plioation,  said  that  of  course  it  was  com- 
petent for  counsel  to  object  to  the  cor- 
respondence going  in,  but  once  it  was 
put  in  the  Court  was  bound  to  give  full 
effect  to  it.  It  was  a  matter  for  re- 
gret that  the  Law  Society  had  not 
taken  any  definite  stand  in  the  matter. 
If  the  Law  Society  after  ascertaining 
the  previous  career  of  this  petitioner, 
had  come  to  the  conclut«ion  that  the 
society  ought  to  oppose  his  admission, 
then  there  would  have  l>een  something 
for  the  C^ourt  to  consider.  He  thought 
the  Law  Society  ought  to  take  some 
responsibility  on  itself.  Upon  the 
whole,  as  there  was  no  opposition,  and 
there  was  nothing  tangible  against  the 
applicant,  the  only  course  open  to  the 
Court  was  to  grant  the  petition. 

The  oath  was  administered. 

Mr.  Sutton  moved  for  the  admission 
(if  Herbert  Alexander  Payn,  as  an  attor- 
liey-at-law   and  notary  public. 

Application  granted,  subject  to  the 
birth  certificate  being  filed. 

Mr.  Sutton  moved  for  the  admisMion 
of  Frank  Robert  Baker,  as  an  attoniey- 
at-law. 

Application  granted,  and  oath  admin- 
istered. 

Mr.  Close  moved  for  the  a/iniisoion  of 
Alfred  Allaji  Baxter  Pocock,  as  an  at- 
toiney-at-law  and  a  notary  public. 

Application  granted,  the  oath  to  be 
taken   before   the  R.M.   of   Oudtshoom. 

Mr.  J.  E.  K.  de  Villiers  moved  for  the 
admission  of  Francis  Hamp  Adams  as  an 
attorney-at-law. 

Application  granted,  oath  to  be  taken 
before  the  R.M.  of  Komgha. 

Mr.  W.  P.  Buchanan  moved  for  the 
admission  of  Claude  Bernhard  Schulte, 
as  an  attorney  and  notary  public. 

Application  granted,  the  oath  to  be 
taken  before  the  R.M.  of  Colesberg. 


"GAPE  TIMES"   LAW  REPORTS. 


Mr.  W.  P.  Buchanan  moved  for  the 
admiaion  of  Howard  Murray  Layton, 
aa  an  attorney- at-law  and  notary  public. 

Application  granted  and  oath  admin- 
istered. 

Mr.  P.  Jones  moved  for  the  admifleion 
of  Walter  Reid  as  an  attomey-at-law  and 
notary  public. 

Application  granted  and  oath  admin- 
istered. 

Mr.  W  .P.  Buchanan  moved  for  the 
admission  of  William  Knox  Baxter,  as 
a  conveyancer. 

Application  granted  and  oath  admin- 
istered. 


PROVISIONAL  ROLL. 


VAN  DEB  BPUT  V.   KAIBER. 


I 


1906. 
Jan.   12th. 


Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £5,500, 
with  interest  at  6  per  cent,  from  lat 
July,  1904.  Ies8  £161  98.  Id.  paid  on 
account,  and  that  the  property  specially 
hypothecated   be   declared    executable. 

Granted. 


MCKAUOHTON  V.  8MELLEKAMP. 

Mr.  Sutton  moved  for  a  decree  of  civil 
imprisonment  against  the  defendant  on 
an  unsatisfied  judgment  of  the  Supreme 
Court  for  £19  12s.  3d.,  being  the  amount 
of  taxed  costs.   * 

The  defendant  a{^)eared  in  person,  and 
said  that  the  case  was  due  to  the  irre- 
gular and  vexatious  conduct  of  the 
plainti£F,  who  had  obtained  judgment 
fourteen  days  after  full  settlement  had 
been  made,  when  he  was  well  aware 
that  the  matter  of  costs  was  in  dispute. 
He  was  not  prepared  to  pay  this 
amount;  his  intention  was  to  bring  an 
action  for  damages  against  the  plaintiff, 
and  contest  the  claim.  The  sheriff's 
officer  at  Kimberiey  was  informed  that 
there  was  sufficient  movable  property  at 
Durfoanville,  which  he  could  attach.  Be- 
fore  witness  was  barred,  the  plaintiff 
wa^  fully  paid 

De  yniiere,  C.J.  said  that  if  the 
plaintiff  knew  or  had  any  means  of 
knowing,  that  the  defendant  had  a  pro- 
perty which  might  without  any  diffi- 
culty be  atUched,  the  pleintiff  should 
not  proceed  to  such  an  extreme  measure 
for  the,  payment  of  such  a  paltry  sum. 

ApplicaiKm  refused. 


COWLBY  AHD  CO.  V.    VA8SI8. 

Mr.  Close  moved  for  provisional  sen- 
tence for  £96  Is.,  with  interest  and 
costs.  The  claim  was  one  by  edicts]  ci- 
tation, and  there  had  been  con^iderablo 
service. 

Granted. 


LOTZ  V.  BOUL 

Mr.  De  Waal   moved 
sectence  on  a  promissory 
Granted. 


BBADT  V.  ALLIE  AND  9^lil)p8. , . 

Mr.  W.  P.  Buchanan  move^or  the 
final  order  of  sequestration  of  the  joint 
and  separate  estates  of  the  defendants. 

Granted. 


NKWMABK  V.  HUBWITZ. 

Mr.  Russell  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £1,300, 
with  interest  at  6  per  cent,  from  1st 
Julv,  an-l  that  property  specially  hy-. 
pothecated  be  declared  executable. 

Granted. 


BKBN8TKIN  V.  BSTATB  RADEIIBYBR 

Dr.  Rainsford  moved  for  provi^nal 
sentence  on  two  mortgage  bonds  for 
£800  and  £1,200,  with  interest  :t  7  and 
10  per  cent,  respectively,  from  the  l&t 
January,  1903,  and  that  the  property 
specially  hypotheca.ied  be  declared 
executable. 

Granted. 


MICHAU  AND    DB  VILLTEBfl    V.    VAN 
BEBNBN. 

Mr.   De  WsaJ  moved  for     provisional 
sentence  for  £12  17s.  4d,,  taxed  costs. 
Granted. 


COTTON  AND  CO.  V.  BACJMOARTBN. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  two  promissory  notes  ^>r  £25 
and  £29  19s.  5d.,  with  interest  and 
costs. 

Grsnted. 


BBID  AND  CO.  V.  OAHVIB  AND  CO. 

Mr.  Sutton  moved  for  the  final  ad- 
judication of  the  defendants'  estate  es 
msolvent. 

Granted. 


HARRIS  AND  CO.  V.  MABTIN. 

Dr.  Greer  moved  for  provisional  sen- 
tence on  an  unsatisfied  judgment  ot  tiie 
Magistrate's  Court  for  £14  17a.  and 
c^mis,  and  that  property  meiitioiiO'l  in 
the  summons  be  dcKMared  executable. 

Granted. 


MCINTYBE  V.  MABTIN. 

Dr.  Greer  aaid  this  was  a  similar  ap- 
plication to  the  last. 
Gratited. 


14 


CAPE  TIMES"   LAW  REPORTS. 


BTEYTLER  V.  NAUDE. 

Mr.  W.  p.  Buohanan  moved  for  pro- 
visional  sentence  on  a  promiasory  note 
for  £19  14b.  6d.,  with  interest  and  costs. 

Granted. 


ZACKON  V.  GORDON. 

Mr.  W.  p.  Buchanan  moved  for  pro- 
visional sentence  on  a  promissory  note 
for  370  roubles,  with  interest  and  coste. 

Granted. 


NBW  EXPORT  CO,  LTD.  V.  HAUPT. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  bill  of  exchange  and  promis- 
sory note  for  £31  lOs.  Id.  and  £121  13s. 
3d.,  with  interest  and  costs. 

Granted. 


DU  TOIT    V.  NICHOLBOH. 

Dr.  Greer  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £1,175, 
less  £500  paid  on  account,  with  interest 
and  costs,  and  that  the  property  special- 
\y  hypothecated  be  declared  Executable. 

Granted. 


8MTTH  AND  CO.  V.  ALLIB  AND  ANOTHER. 

Mr.  Gutsche  moved  to  have  the  de- 
fendants' estates  compulsorily  seques- 
trated. 

Granted. 


VSTATE  CROSBIE  V.  ZONDAGH. 

Mr.  Close  moved  for  provisional  sen- 
tence for  £00,  with  interest  on  a  mort- 
gage bond,  and  that  the  property 
specially  hypothecated  be  declared 
executable. 

Granted. 


ESTATE  HERTZOO   V.  PITT. 

Dr.  Rainsford  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £700, 
with  interest,  and  that  the  property 
hypothecated  be  declared  executable. 

Granted. 


VAN  0UDT8H00RN  V.  LOBO. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £550, 
with  interest  and  costs,  and  that  the 
property  specially  hypothecated  be 
declared  executable. 

Granted. 


nOFFMANN  AND  CO.  V.  MARTIN. 

Dr.  Greer  moved  for  provisionaJ  sen- 
tence on  an  unsatisfied  judgment  of  the 
Magistrate's  Court  for  £35  136.,  together 


with  taxed  costs,  and  to  have  the 

Serty   mentioned    in       the 
eclared  executable. 
Granted. 


pro- 
summons 


BA88IN  T.  8CHLBCRTEE. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  promissory  note  for 
£98  15s. 

Granted. 


OREATHEAD  V.  FRBDRIKR. 

Mr.  Russell  moved  for  provisional 
sentence  on  an  unsatisfied  judgment 
of  the  Mairistrate'fl  Court  at  Swellendam 
for  £14  68.  2d.,  and  £8  2s.  lOd.,  taxed 
costs,  and  that  the  property  mentioned 
in  the  summons  be  declared  executable. 

Granted. 


8CH0LTZ  V.  VENTER. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  promissory  note  for  £257 
18s.  6d. 

Granted. 


WILSON  V.  BOYCB. 

Mr.  W.  P.  Buchanan  moved  to  have 
a  provisional  order  of  sequestration 
superseded  in  view  of  a  settlement. 

Granted. 


ESTATE  CLEAR  V.  LONSDALE. 

Mr.  Struben  moved  for  a  decree  of 
civil  imprisonment  against  the  respon- 
dent on  an  unsatisfied  judgment  for  £45, 
for  rent  due. 

The  defendant  appeared  in  person, 
and  said  that  he  was  totally  without 
means,  and  was  barely  able  to  keep  his 
wife  on  a  precarious  occupation.  Last 
month  he  earned  £4  lOs. 

The  application   was  refused. 


PHILIPS  BROS.  AND  OTHERS  V.  .TARVIfl. 

Mr.  M.  Bisset  moved  for  a  pro- 
visional order  of  sequestration  to  be 
made  final. 

Granted. 


GRIFFITHS  V    COURT. 

Mr.  M.  Bisset  moved  for  provisional 
sentence  for  £50  on  a  promissory  note, 
with  interest  and  costs. 

Granted. 


LIftRACK  AND  CO.  V.  CARTWRIOHT. 

Dr.  Rainsford  moved  for  a  decree  of 
civil  imprisonment  on  an  unsatisfied 
judgment  of  this  Court  for  £37  7s.  9d., 
with   interest  and   costs, 


"CAJ»E  TIMES"   LAW  REPORTS. 


15 


Tlie  defendant  appeared  in  penon, 
and  said  that  at  preeeni  she  was  unable 
to  pay.  She  had  no  occupation  now, 
and  bad  three  children  to  keep. 

Application   refused. 


KLLI8  V.  KEMP. 

Mr.  \V.  P.  Buchanan  moved  for  the 
final  adjudication  of  the  defendant's 
estate  as  in!K>lvent. 

Granted. 


VAN  BYS  WINE  AND  SPIBIT  CO.  V. 
CLARK. 

Mr.  Lewis  moved  for  provisional  sen- 
tence for  £62  12s.  2d.,  balance  of  interest 
oh  a  mortgage  bond,  with  costs. 

Granted. 


HART\'OI>T  V.  I.  AND  J.  HER  U  ANN. 

Mr.  W.  P.  Buchanan  nnoved  for  the 
compulsory  sequestration  of  the  clefen- 
daots'  estates  aa  insolvent,  and  for  the 
appointment  of  a  provisional  trustee. 

Granted. 


OHLaSON  V.  HARRIS. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  mortgage  bond  for  the 
sum  of  £26,000,  together  with  interest 
at  6  per  cent,  per  annum,  less  £260  paid 
on  aooount,  the  bond  havii)g  become 
due  by  reason  of  the  non-payment  of 
interest.  Counsel  also  applied  fgr  the 
propertv  speoiallv  hypothecated  to  be 
declared  executable. 

Order  granted. 


LENO  V.    HBTBR. 

Mr.  P.  Jones  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Granted. 


RIPLEY  y.  MYBUROH. 

Mr.  J.  E.  R.  de  Viiliers  moved  for 
provisional  sentence  on  a  promissory 
note  for  £866  10s.,  less  £107  14s.  paid  on 
account,  with  interest  and  costs. 

Granted. 


BBATTY  V.   FBBNANDE8. 

Mr.  W.  P.  Buchanan  moved  for  pro- 
visional sentence  on  a  mortgage  bond  for 
iS9,000,  witli  interest  and  costs,  and  that 
the  property  specially  hypothecated  be 
declared  executable. 

Orftnted, 


BAONALL  AND  CO.  V.  8CHAPEBA. 

Mr.  W.  P.  Buchanan  moved  for  pro- 
visional sentence  on  three  promissory 
notes,  for  a  total  amount  of  £78  15fl. 
lid.,  less  £20  paid  on  account. 

Granted. 


POSTEB  V.  DENYB  EN. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £500. 
together  with  interest  and  costs,  and 
that  the  property  specially  hypothecated 
be  declared  executable. 

Granted. 


HA  WORTH  V.  SOU  LB. 

Mr.   p.   Jones  moved   for  provisional 
sentence  on  a  mortgage  bond  for  £450, 
with  interest  and  costs,  and  that  the  pro 
perty  specially  hypothecated  be  declared 
executable. 

Granted. 


MBLLISH   V.  LATBOAN. 

Mr.  W.  P.  Buchanan  moved  for  pro- 
visional sentence  on  a  promissorv  note 
f(*r  £102. 

Granted. 


HAMILTON  V.  ALBERT. 

Mr.  W.  P.  Buchanan  was  for  the  plain- 
tiff, and  Dr.  Greer  was  for  the  aefen- 
dant. 

Mr.  Buchanan  moved  for  a  decree  of 
civil  imprisonment  on  an  unsatisfied 
judgment  of  £68  13s.  2d. 

Dr.  Gxeer  said  that  defendant  was 
prepared  to  pay  £5  next  Monday,  and 
£3   a  month   thereafter. 

Mr.  Buchanan  said,  under  the  circum- 
stances the  plaintiff  would  accept  the 
proposal. 

Decree  granted,  to  be  suspended  upon 
payment  rh  offered. 


BOBINSON  V.  BOULTON. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  promissory  note  for  £302 
179.  6d. 

Granted. 


PATB  V.   BLUMBEBO  AND  SLIES. 

Mr.  Russell  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £1,100. 
with  interest  and  costs,  £10  premium  of 
insurance,  and  that  the  pfroperty  special- 
ly hypothecated  be  declared  executable. 

Granted. 


16 


II 


CAPE  TIMES"   LAW  BBPCATS. 


ILLIQUID  ROLL. 

S0BEKT80N    V.   SWAIN  AND  f        1905. 

KBLLT.  I  Jan.    12th. 

Mr.  W.  p.  Buohanan  moved  for  judg- 
ment under  Rule  SSOd.  for  £300,  money 
lemt  to  the  defendants,  with  interest 
djid  costs.  There  had  been  servioe  only 
on  Kely.  Swain's  wthereabouts 
unknown. 

Order  granted  against  Kelly. 


were 


BBRMAN  V.  CUNUFFRHIBTER. 

.   Mr.   J.   E.   R.   de  Villiers  moved   for 
judgment,  unaer  Rule  319,  the  plaintiff 
havmg   been   barred  from  pleading,    for 
£136  10s.,  with  interest  and  costs. 
Granted. 


ISAACS  y.  ABEND. 

Mr.  Russell  moved,  under  Rule  329d, 
for  the  transfer  of  certain  pi<»ce  of 
land. 

Granted. 


HAYWABD  Y.  BEOWNE. 

Mr.  Lewis  moved  for  judgment,  under 
Rule  329d.,  for  £65  5s.  8d.,  for  board 
and  lodging  of  the  respondent's  minor 
son. 

Granted. 


HOLLIDAT  V.   CHRISTRNREN. 

Mr.  Russell  moved  for  judgment, 
under  Rule  329d,  for  £90  13s.  4d., 
balance  due  on  certain  shares,  £3  3e. 
commission,  and  £16  interest. 

Granted. 


MAKOHBSTBR  ASSURANCE  CO.  V. 
ROBERTSON. 

Dr.  Rainsford  nMved  for  judgment, 
under  Rule329d,  for  £22  9s.  3a.,  balance 
of  money  paid  by  the  plaintiff  on  behalf 
of  the  defendant 

Granted. 


PAYNE  V.  NORTON. 

Mr.  De  Waal  moved  for  judgment, 
under  Rule  329d,  for  £8  2s.,  due  on  cer- 
tain  account  for  medical  service. 

Granted. 


ANKBLL  AND  DOUGLAS  V.  HOFVXANN. 

Mr.    Lewis    moved    for       judgment, 
under    Rule    329d,    for   £362    8s.    lid.,    ' 
due  on  a  bill  of  exchange,  and  £15  98. 
Bd.   exchange  on  the  bill,   with   interest 
and  costs. 

Granted. 


OBAUPNXB  V.  MABTIir, 

Dr.  Rainsford  moved  for  judgment, 
under  Rule  329d,  for  £23  18s.  ,6d.,  goods 
sold  and  delivered,  wna  interest  aod 
costs. 

Granted. 


ANDREWS  y.  VTNBE. 

Mr.  Roux  moved  for  judgment,  under 
Rule  329d,  for  £150,  balance  due  on  a 
disbursement   for  professional   services. 

Granted. 


JAOOBSON  y.  PORTER  AND  BABSDORP. 

Mr.  J.  E.  R.  de  Villiers  moved  for 
judgment,  under  Rule  319,  the  defen- 
dants^ having  bc^n  duly  barred  from 
pleading. 

Granted. 


BELyLIKT  PARE  ESTATE  SYNDICATE 

FOSTER. 


V. 


Mr.  Gutsche  moved  for  judgment, 
under  Rule  329d,  for  £35,  rent  due, 
and  £1  5s.,  stamps  paid  on  a  document. 

Granted. 


PATRRSON.  BOYES  AND  CO.  Y.  HAMILTON. 

Mr.   P.    Jones  moved    for    judgment, 
under  Rule  329d,   for  costs  of  a  suit. 
Granted. 


CAPE  TIMES,  LTD.  V.  COHEN. 

Dr.  Rainsford  moved  for  judgment, 
under  Rule  329d,  for  £125,  rent  due, 
with  interest  and  costs. 

Granted. 


PRINCn  y.  MARX. 

Mr.  W.  p.  Buchanan  moved  for  judg- 
ment, under  Rule  329d,  for  £312  17s. 
Id.,  balance  of  salary,  and  for  £25,  the 
amount  of  the  plaintiff^s  passage  money 
from  England. 

The  defendant  appeared  in  person, 
and  said  that  he  only  owed  the  differ- 
ence betw^n  the  first  and  second-clasH 
fare. 

The  matter  was  ordered  to  stand  over 
for  further  inquiries  as  to  tlio  second 
portion  of  the  claim. 

Mr.  Buchanan,  later  in  the  day,  said 
that  he  had  consulted  his  attorney,  and 
was  prepared  to  take  judgment  on  the 
understanding  that  the  second  part  of 
the  claim  for  £25  was  reduced  to  the 
difference  between  firet  and  second-class 
fare. 

Judgment  wss  given  on  the  first  part 
(if  the  claim  as  prayed,  and  for  £4  17s. 
8d  on  the  second  part  of  the  claim, 
with  coats. 


<« 


OAPE  TIMES"  LAW  REPORTS. 


17 


CAFOBN   V.  PBAKB. 

Mr.  M.  Bisset  moved  for  judgment, 
Qoder  Role  329d,  for  £40,  rent  due, 
vith  intemi  and  ooflU. 

Granted. 


MABAIB  V.  SWABT. 

Mr.  J.  E.  R.  de  Villien  moved,  un- 
der Rule  329d,  to  obtain  transfer  of  a 
thiid  flhare  in  a  certain  farm,  with  ooata. 

Granted. 


CAWWRIOHT  AKT>  CO.  V.  OBIFFITHS. 

Mr.  Gotscbe  moved  for  judgment  im- 
^  Role  329d,  for  £149,  rent  due,  and 
£7  16i.  for  electric  lig^it  supplied. 

Gnnted. 


CAPE  COLD  BTOBAQB  CO.  V,  PLEMTNO. 

^r.  Raaaell  moved  for  judgment,  un- 
d»r  Rule  329d,  for  £152  5s.  9^.,  bal- 
ing /or  go(xis  eold  and  delivered,  with 
interest  and  costs. 

Granted. 


STFBBT,  QODLONTON    AND     LOW    V. 
OAEVIB. 

Mr.  W.  P.  Buchanan  moved  for  judg- 
ment, uDder  Rule  329d,  for  £32  ISa. 
lid.,  less  £20  paid  on  account,  for  Mr- 
noes  rendered,  with  interest  and  coets. 

Granted. 


OOATON  y.  BETNOLDB. 

Mr.  M.  Bisset  moved  for  judgment^ 
Biider  Rule  329d,  for  £100,  the  purchase 
pnce  of  certain  shares. 

Granted. 


OOLOHIAL  GOYBBNHENT  ▼.  IICKBNZIB 
AKD  CO.,  LTD. 

r  ^k]^^^'^  Jones  naoved  for  judgment 
for  £157  148.,  being   under-cbwrgies   of 
certain  oonsiffnmenta  of  gooda  conveyed 
to  ttie  defenclant's  vtoxe  at  Maitland. 
"Kwr  granted. 


C0U)HIAL  OOVBBirURNT  V.  MCKENZIB 
AND  CO.,  LTD. 

I  ^'i  Howel  Jones  moved  for  judgment 
tor  £«  10,.  ^    ij^ng  telephone  rates, 
^^"wf  granted. 


OOWHIAL  OOVEBKMBNT  V.  TALANDA. 

^^'  Howel   Jones    moved    for    judg- 
">«nt  for  £30,  being  telepbooe  rates, 
^^i^  granted. 


COLONIAL  OOVBBNMENT    V.    BACKS  AKD 

CHIAT. 

Mr.  Howel  Jones  moved  for  judgment 
for  £40  lis.  lOd.,  under-chargea  <»  cer- 
tain two  consiffnments  of  potatoes,  con- 
voyed on  behalf  of  the  defendants. 

Order  granted. 


BOCHESTBB  BBICK  CO.  V.   O.    AND  J. 
HABDMAN. 

Mr.  Pittman  moved  for  judgment,  un- 
der Rule  329d,  for  £36  lOs.,  together 
with  interest  a  tempore  marae  and  coats. 

Order  granted. 


HABBIEfi  V.  BBHN  AMD  BOUB. 

Mr.  Roux' moved  for  judgment,  under 
Rule  319,  for  £45.  purchase  price  of 
mules  sold  and  dehvered. 

Order  granted. 


CAPS  TIMES,  LTD.  V.  HOFFMAN. 

Mr.  W.  p.  Buchanan  moved  for  judg. 
ment,  under  Rule  329d,  for  £27  80.  6d., 
work  and  labour  done  and  materiab  sup- 
plied bv  plaintiffs  to  defendant  between 
November.  1903,  and  June,  1904,  to- 
gether with  interest  and  costs. 

Order  granted. 


8HABEN0WITZ  Y.  BASBON. 

Mr.  W.  P.  Buchanan  moved  for  jndg- 
n>ent  for  costs  only,  the  capital  sum 
having  been  paid. 

Order  granted. 


BABNETT  V.  LBTEINSOH. 

Mr.  Du  Toit  moved  for  judgment,  un- 
der Rule  329d,  for  £15  17s.,  gooda  sold 
and  delivered,  less  £4  19s.  6d.,  paid  on 
account,  with  interest  and  costs  of  suit. 

Order  granted. 


GENERAL     MOTIONS. 


DAMONS  y,  DAMONS. 


/        1906. 

(Jan.   12th. 

Dr.  Rainsford  moved  for  a  decree  of 
divorce,  failing  compliance  with  a  rule 
calling  upon  defendant  to  return  to  or 
receive  plaintiff. 

Rule  made  absolute. 


JSsB  parte  ADKINS. 

Mr.  J.  E.  R.  de  Villiers  moved  for 
a  rule  nisi  under  the  Derelict  Land^ 
Act  to  be  made  absolute. 

Rule  made  absolute 


18 


It 


CAPK  TIMES"  LAW  REPORTS. 


WBIMTBOUB  AND  ANOTH£B  V.  BTEEB. 

Interdict — Servitude —  Posseasion 
—  Aquaeductus  —  Sewerage 
and  drainage. 

Tli€  applicants,  as  owners  of 
land,  having  a  right  of  seioer- 
age  and  drainage  over  neigh- 
bouring land,  laid  a  pipe 
therea7i  for  conveying  water  to 
their  property.  A  fter  the  pipes 
had  been  so  laid  for  a  year, 
the  respondeiit  bought  and 
received  transfer  of  the  neigh- 
bouring land,  and  there<ifter 
cut  the  pipe  on  the  laml  sn 
transferred  to  him. 

Held,  that  the  servitude  of 
sewerage  and  drainage  does 
not  embrace  the  right  of  laying 
pipes  for  leading  icater  on  to 
the  a/yplicants'  land. 

Held  further,  that  the  ac- 
quiescence of  the  former  owner 
of  the  respondent's  land  for 
less  than  the  period  of  presump- 
tion  d-oes  not  prejudice  the 
respondent  as  the  bona  fide 
purchaser  of  the  land. 

Held  farther,  th(d  although 
the  fact  of  the  pipe  having  been 
used  for  lecuUng  uxiter  over  the 
respondent's  land  for  a  year 
might  afford  prima  facie  liroof 
of  the  applicants'  right  so  to 
lead  the  icater,  it  does  not 
entitle  them,  in  the  face  of 
the  facts  actually  proved,  to 
the  Praetorian  edict  de  aqua 
quotidiana. 


Mr.  M.  de  Villlen  moved  for  an  order 
directing  tlie  restoration  of  a  certain 
water-pipe  upon  ground  adjoining  Beaoh- 
road,  Three  Anchor  Bay.  Mr.  Struben 
appeared  for  the  respondent,  Frederick 
lecher  Steer. 

From  the  affidavits,  it  appeared  that 
the  laud  of  the  applicantA  was  originally 
bought  at  auction  from  the  respondent, 
and  that  the  water  leading  had  been 
carried  under  the  houses  of  the  respon- 
dent's predecessor-iu-title.  The  resporn- 
dent  had  now  objected,  and  he  had  the 
pipes  taken  out.  He  offered,  it  ap- 
peared from  correspondence  that  wa<( 
read,  to  allow  as  an  act  of  grace  the 
applicants  to  lay  a  water-pipe  to  flush 
their  aewers  along  the  side  of  his  hou«ies. 
but  they  declined  to  avail  themselves 
of  this  tender. 

Mr.  De  Yilliers :  See  regulation  124 
of  the   Town    Oouncii   Regulaiioufl.    In 


the  first  place  a  servitude  of  drainage 
comprises  the  right  of  water  leading. 
(2)  The  respondent  is  bound  by  the  ac- 
quieeoenoe  of  his  predecessors  in  title, 
(d)  The  respondent  should  have  pro- 
ceeded by  action,  and  not  have  taken 
the  law  iirtp  his  own  hands. 

As  to  my  first  point.  Drains  mu0t  be 
flushed  and  that  cannot  be  done  without 
water.  Moreover,  it  would  have  been 
unreasonable  to  expect  the  adjtiiniiig 
proprietoTs  to  take  their  pipe«}  round  by 
the  main  road. 

As  to  tlie  second  point.  Kennedy, 
Steer's  predecessor  in  title,  acquiesced 
in  these  pipes  being  laid.  They  had 
been  in  situ  more  than  a  year,  and  in 
such  a  case  no  private  person  has  any 
right  to  interfere  on  his  own  authority ; 
.see  Voet  (43-20  and  8-3-8).  As  to  the  re- 
gulations ;  when  theae  pdpes  were_  laid 
there  were  no  houses  in  the  vicinity. 
We  do  not  insist  on  anv  right  to  lay 
pipes  under  the  respondent's  house, 
but  we  ask  for  costs  and  for  an  order 
directing  the  respondent  to  reconnect 
the  pipes.  We  are  spoliati  and  therefore 
ante  omnia   restituenai. 

Mr.  Struben  (for  respondent):  A  ser- 
vitude must  be  registered.  We  admit 
the  right  of  sewage,  but  we  deny  the 
right  of  leading  waiter,  and  say  that 
these  servitudes  supe  distinct.  Thi'n 
again  there  is  no  necessity  for  leading 
water  under  our  house.  They  can  get 
water  without  coming  on  our  i>roperty. 
They  must  be  held  bound  by  their  grant, 
and  cannot  vary  it  by  parol  evidence. 
As  to  acquiescence;  we  are  not  bound 
by  our  predecessor  in  title. 

[De  ViUiers,  C.  J.:  Will  you  allow 
them  to  lead  water  along  your  wall?] 

We  have  offered  that  concession  as  an 
act  of  grace,  but  they  would  not  ac- 
cept it  on  our  terms.  We  were  pre- 
pared even  to  grant  a  licence  in  per- 
petuity as  an  act  of  grace.  Even  if 
they  can  establish  their  right  to  a  servi- 
tude to  lead  water  across  our  ground 
it  is  for  us  to  point  out  the  way  by 
which  it  must  be  led.  Van  der  Byl  v. 
Myhurgh.    (2  Juta  77.) 

Mr.  de  Villiem  (in  reply) :  Counsel  has 
avoided  the  question  of  spoliation.  We 
claim   restitution    of  our   connection. 

[Do  Villiers,  C.  J. :  Then  if  a  man 
has  gone  over  my  property  for  a  year, 
I  cannot  interfere   with   him?]" 

Not  forcibly:  and  then  that  would  be 
an  tn^^rtm  servitude ;  ours  is  continuous. 

[De  Villiere,   O.  J. :   There  is  no  evi- 
-  denoe  of  forcible  interference.     You  are 
willing  to  accept  their  offer,    and     tiie 
whole   matter   appears   to  be   merely  a 
question    of  coets.J 

That  is  so;  but  we  had  to  make  this 
application. 

[De  Villiers,  C.  J. :  I  do  not  see  any 
necessity  for  coming  to  the  Court.  Why 
not   have  accepted   their  offer?] 

The  offer  was  only  conditional. 
,  De  Villiers,   C.  J. :    In  this     applica- 
tion,   which   was    heard    on    the    12tb 


II 


QAPB  mMER**  LAW  REPORTS. 


19 


■ 


deoided  in  favour  of  the 
TMpbnd«Qt,    the    question  of  ooste  wm 
TOManred,     beoauae  of  the    pcini   nised 
by  eooneel  for  the  api^oant  that  on  the 
authority  of  Yoet,  the  ai^oant  had  a 
right  to  m  water  pine  over  the  leapond- 
eut*a  land,  beoause  ne  had  enjoyed  such 
a  privilege  uninterruptedly  for  more  than 
a  ^ear.    The  passage  quoted  from  Voet 
might  be  so  oonstrued.  but  he  was  re- 
ferring to  the  Roman  law,  and  he  does 
not  aay  that  the  Butoh  ocactice  follow- 
ed  that   of  the  Roman  law.       On  the 
oontnury    in   another   passage      dealing 
with  intexdiots  in  genersl   (43.1.9)      he 
dearly  intimates  that  the  Dutoh  "  man- 
dament*'  had   taken  the   place  of   the 
Romaii   inteidict,    but  wae  much   more 
limited  in  its  operation.    In  none  of  the 
bcobi  dealing  wkh  the  Dutoh  praotjoe 
do  I  find  anything  to  support  the  con- 
tention that  the  Iraetoorisn  interdict  de 
aq^a  qmotidiana  was  obtainable  in  Hol- 
Und.    The  fact  thaA  water  had  been  led 
over  a  person's  land   for  a  year  might 
afford   prima  fadt    proof  that    a   right 
existed  so  to  lead  it,  but  it  would  not 
prove  the  existence  of  such  a  right  in 
the  face  of  eridenoe  such  as  ihat  given 
on  behalf  of  the  respondent  in  the  pre- 
sent case. 

Hie  senritude  of  aewerage  and  drain- 
sge  whioh  the  applicants  certainly  had 
over  the  respondent's  land  does  not  em- 
brace the  right  of  laying  pipes  over  that 
land  for  leading  water  on  to  the  appli- 
eants'  land,  nor  can  the  period  of  pre- 
scription prejudice  the  applicants  as  tlM 
Itma  fide  purchacera  of  that  land. 

The  application  must  therefore  be  re- 
fused with  costs. 


SUPREME  COURT 


[Before  the  Chief  Jnrtioe  (the  Bight 
Hon.  Sir  J.  H.  DK  ViLLlBBS,  P.C., 
K.0.1LG.,  LL.D.).] 


PROVISIONAL   CASE. 


BBTATV    BBBBUBOB    Y, 
ABRAHAMB. 


.     r      1904. 
(Jan.   18th. 

Mr.  Russell  mentioned  this  matter, 
whioh  was  ordeied  to  stand  over  from 
the  previous  day  for  notice  to  the  defend- 
ant Counsel  now  moved  for  provisional 
lentenoe  for  £36,  amount  of  mterest  on 
a  bond,  and  £2  premium  insurance^  with 


Qimnted. 


GENERAL  MOTIONS. 

Em  parte  BSDELINOHUTB. 

Mr.  Roux  moved  for  an  order  on  the 
Registrar  of  Deeds  to  have  certain  pro- 
perty  purchased  privately,  from  th^ 
estate  of  the  petitioner's  late  father,  re- 
gistered. 

-Do  ViUiers,  C.J.,  said  he  would  grent  a 
rule,  ^ving  the  opportunity  to  anyone 
to  obiect,  calling  on  all  persons  con- 
cemea  to  show  cause  why  transfer  should 
not  be  passed,  the  rule  to  be  published 
once  in  English  and  Dutch  in  the  "Oudts- 
hoom  Couranf 


Ex  parte  walkbb. 


Mr.  M.  Bisset  moved,  on  behalf  of 
the  petitioner,  to  have  a  certain  inter- 
dict set  aside.  The  interdict  was  granted 
at  the  instance  of  Birs.  Martin,  restrain- 
ing her  husband,  against  whom  she  in- 
tended proceeding  for  judicial  separation, 
from  passing  transfer  of  certain  property 
at  Mossel  Bay.  Six  months  had  now 
elapsed,  and  no  such  action  had  been 
instituted. 

[De  YilKers,  C.J. :  A  better  course 
would  be  (to  order  transfer,  and  let  the 
purdbeae  price  be  paid  to  the  Regis- 
trar.] 

Mr.  Bisset:  That  would  be  perfectly 
satisfaotonr  to  Mr.  Walker.  Walker, 
however,  has  arranged  to  pay  some  of 
Martin's  creditors,  and  hana  over  the 
balance  to  Martin. 

De  Viltteie  C.J. :  I  think  the  only 
soliMion  ss  that  an  order  should  be 
garanted  as  peayed,  on  condition  tb«t 
fhe  petitioner  pay  the  purohaee  price 
into  the  hands  ot  the  Regietrar  of  the 
Coim,    pending   a   further    order. 


Em  parte  hbl. 

Mr.  Close  moved  to  have  a  certain 
rule  nui  for  the  cancellation  ci  certain 
old  bonds  made  absolute. 

Rule  made  absolute. 


Em  parte  SMITH. 

Mr.  W.  P.  Buchanan  moved  for  leave 
to  the  petitioner  to  execute  a  certain 
bond  on  the  property  of  her  late  hus- 
band. 

Granted. 


MOLINB  FLOW  CO.    V.    BAOKB  AND 
0THIB8. 

Mr.  Searle,  K.C.,  moved  to  make 
absolute  a  rule  nUi  restraining  the 
respondenta  from  using  the  words 
"Flying  Dutchman"  m  reprard  to 
ploughs,  or  from  exhibiting  agncultural 
or  horuculttiral    iiyitnimaiits    with    the 


20 


"CAPE  TIMES"   LAW   REPORTS. 


words  "Flying  Dutchman. '|  The 
respondents'  attorneys  had  written  to 
the  effect  that  the  "  Flying  Dutchman  " 
was  sent  to  their  clients  direct,  who 
were  entirely  ignorant  of  the  fact  that 
the  title  wss  registered.  As  soon  as 
the  rule  was  served  thev  gave  instruc- 
tions to  ertsae  the  name  from  the  stands, 
catalogues,  etc.  The  agent  of  the 
respondent  firm  now  undertook  to  dis- 
continue the  use  of  the  words,  and 
tendered  costs  to  dat4>.  reserving  the 
right  to  his  principals  to  reclaim  the 
costs  if  there  was  no  previous  infringe- 
ment. 

De  Villiers,  C.J. :  If  the  respond- 
ents had  given  any  indication  of  their 
desire  of  contesting  tlio  right  to  this 
trade-mark  I  should  certainly  have  re- 
served the  right,  because  the  rule  wns 
granted  upon  an  ex  parte  iftatemeni, 
and  there  is  always  a  possibilitv  that 
the  respondents  mav  prove  that  t»ne  ap- 
plicant«  had  not  the  full  right  which 
upon  the  ex  parte  statement  they 
would  appear  to  have.  I  think,  how- 
ever, you  are  enlrilled  to  the  rule  being 
made  absolute,    with   costs. 


Ejt  parte  BRBDBNKAMP. 

Mr.  P.  Jones  moved,  on  behalf  of  the 
petitioner,  who  is  executrix  dative  in 
the  estate  of  her  late  husband  for  an 
order  authorising  her  to  pass  a  first 
mortgage  oond  for  £1.250  on  the 
estate. 

De.  Villiers,  C.J.,  said  he  would  like 
to  have  further  information  as  to  the 
condition  of  the  estates  concerned, 
and  whether  or  not  there  were  any 
minora. 


BRBABLET    V.    FAURB,    VAN  (         1905. 

BYK  AND  MOORE.  {  Jan.    13th. 

TncoJa — Security  for  coBis — Plain- 
tiff proceedizig  by  motion. 

A  person y  not  resident  in  the 
Colony^  who  makes  a  claim  in 
the  Supreme  Court  is  not 
.  entitled  to  he  relieved  from  the 
necessity  of  giritiy  security  for 
costs,  on  the  ground  thai  he  is 
proceeding  by  iray  of  motion 
and  not  by  actionu 


Mr.  Close  was  for  the  applicant  and 
Mr.  Bisset  was  for  the  respondents. 

Mr.  Bieset  said  at  the  outset  he 
would  take  the  objection  that  the  appli- 
cant was  not  entitled  to  take  any  pro- 
ceedings unless  he  gave  security  for 
costs  beforehand,  as  he  was  not  domi- 
ciled in  this  country,  neither  had  he 
any  immovable   property   here. 

His  Lordship:  Is  he  not  entitled  to 
h»ve  his  costs  taxed? 


Mr.  Bisset:  Oh,  yes,  provided  he  paid 
the  necessary   disbursements. 

Counsel  having  been  heard  in  argu- 
ment, 

De  Villiere.  C.J.,  said  it  was 
not  denied  on  behalf  of  the  ap- 
plicant tluut  he  had  left  the  Colony, 
that  he  was  at  present  absent  from  tne 

.  Colony,  and  that  he  stated  before  leav- 
ing the  Colony  that  he  did  not  intend 
to  return  to  the  Colony.  It  was  clear 
therefore  if  the  applicant  instead  of  pro- 
ceeding by  motion  had  proceeded  by 
action,  he  would  have  been  bound  to 
give  security  for  costs.  In  his  opinion 
it  made  no  difference  whether  it  was  by 
action  or  motion,  otherwise  a  person 
might  always  in  these  cases  in  which, 
by  the  practice  of  the  Court,  either 
motions  or  actions  might  be  Drought, 
chose  the  form  of  procedure  by  motion, 
and  evade  his  liability  for  costs.  In 
the  present  case  he  found  on  the  16th 
December  the  respondents  gave  notice 
to  the  applicant  that  if  he  proceeded 
with  his  motion  there  would  be  a  de- 
mand for  security  for  costs  of  the  mo- 
tion and  the  notice  of  motion  was 
given  on  the  7th  January,  three  weeks 
after  the  applicant  knew  that  the 
security  for  costs  would  be  demanded. 
Of  course  in  the  case  of  a  motion  the 
costs  were  not  generally  so  heavy  as  in 
the  case  of  an  action,  and  that  would 
be    reason    for   not   demanding      heavy 

j    securitv,     but   certainly   no    reason    for 

'  dihpenfling  with  the  <»ecurity.  In  the  pre- 
sent  case  he  considered  heavy  security 

I  need  not  be  required,  but  that  some 
security  should  be  given.  The  Court 
therefore  held  that  the  applicant  was  not 
entitled  to  proceed  with  this  motion 
unless  he  gave  security  to  the  satisfac- 
tion of  the  Registrar  of  the  Court  for 
the  sum  of  £25.  As  to  the  uuestion  of 
costs  of  this  motion,  he  thought  it 
};hould  stand  over. 


Ejt  pnrte  ROOS. 

Mr.  \V.  P.  Buchanan  mo%'ed,  on  be- 
half of  the  petitioner,  in  his  capacity 
as  secretary  to  the  Board  of  Executors, 
for  an  order  confirming  the  sale  of  oer- 
taiii  property,  which  haid  been  purchased 
by  the  trustee  in  an  estate  after  it  had 
been  put  up  for  auction. 

De  Villiers,  C.J..  in  granting  the  or- 
der, under  special  circumstances  dis- 
closed, cha-racterised  the  practice  of 
tni^iteee  purchasing  in  their  own 
cfltates  without  disclosing  full  particu- 
lars to  all  concerned  as  pernicious. 


GREEFF  V.  COLONIAL  €K)VERNlfENT. 

This  was  an  application  to  have  a 
cortaiin  award  of  arbitrators  made  a  rule 
of  Oour^ 

Mr.  Searle.  K.C.,  for  the  applicants, 
said  that  the  Government,  he  thought, 


C( 


CAPE  TIMES**   LAW  REPORTS. 


21 


did  uot  oppose,  but  both  parties  wished 
an  ezpreflsion  of  opinion  from  the 
Couit,  wbelther  upon  the  »w«rd  being 
made  a  rule  of  Court,  the  £750  «wara- 
ed  for  certain  ground  .ezproprivted  at 
Oudtshoom  ahocrld  not  be  paid  by  the 
Goyemment  to  the  applioant.  There 
would  be  a  d^lay  of  eome  months  in 
R€^ng  traoafer,  and  as  the  Govem- 
ment  nad  taken  posseeaion  of  the  Harm 
for  aome  tixne,  the  appHoant  oontended 
he  was  enNritled  to  ins  money  before 
transfer   was  passed. 

Mr.  H.  Jones  or  the  Crown)  point- 
ed out  that  if  the  Government  paid  for 
the  land  noiw  there  migbt  be  a  great 
amount  of  trouble  and  expense  to  get 
transfer  in  case  dt  insolvency. 

De  Villiere,  C.J..  said  that  he 
thought  the  Government  would  be 
enftatled  to  say  that  they  would  pay 
the  puTcha«e  price,  but  they  should 
only  do  »o  simultaneously  with  tne  trans- 
f(*r.  He  did  not  wish  to  suggest  that 
the  applicant  might  become  insolvent; 
in  fact,  for  all  he  knew  the  applicant 
nii^ht  be  a  very  wealthy  man,  but  the 
principle  raiist  be  upheld,  and  there 
would  be  an  order  that  the  purchase 
price  should  be  paid  upon  transfer  being 
given  by  the  applicant.  Tlie  Court 
would  make  the  award  a  Rule  of  Court 
on  condition  that  the  transfer  took  place 
simultaneously  with  the  payment  ot  the 
purchase  price,  each  party  to  pay  half 
the  costs  of  this  applicati<Hi. 

Mr.  Searle  mentioned  the  question  of 
interest. 

Mr.  Jones  said  it  was  not  the  fault  of 
the  Government.  They  were  willing  to 
pay.  but  they  cr.uld  not  get  transfer. 

De  Villiere,  C.J.,  saiof  as  it  >wa8  a 
forced  nale  he  thought  the  Government 
should  pay  co9ts  from  the  date  of  the 
award  beang  made  a  Rule  of  Court.  If 
the  Government  asoert^ned  that  there 
was  no  chance  of  insolvency  with 
G*ecff,  he  did  ndt  see  why  they  should 
not  pay  the  money  and  get  out  of  the 
iotcrest. 


Kx  parte  LE  KOUX. 

Mr.  Close  moved  for  an  order  releas- 
ing the  applicant  from  a  certain  execu- 
torship by  reason  of  the  petitioner  enter- 
in?  into  a  second  marnage. 

Granted. 


SUPREME  COURT 


Ksp  parte  WILL  I 

Mr.  W.  P.  Buchanan  moved  for  the 
appointment  of  the  (petitioner  as  provi- 
sional trustee  in  the  in.solvent  estate  of 
James  Wright,  an  hotolkoeper,  of  Coles- 
berg.  The  petitioner,  who  represented 
a  majority  of  the  creditors,  had  been  i 
managing  the  business  for  his  late  father,  | 
who  had  formerly  been  trustee.  | 

Granted. 


FIRST   DIVISION. 


[Before  the  Chief  Jostioe  (the  Right 
Hon.  Sir  J.  H.  de  Villikbb,  P.C^ 
K.C.M.G.,  LL.D.).] 


ADMI88ION. 


{ 


1906. 
Jan.   16th. 


Mr.  W.  P.  Buchanan  moved  for  the 
admission  of  Rufus  George  Robert  Mac- 
leod  as  an  attorney-at-law. 

AppHcaition  granted,  and  oaths  ad- 
ministered. 


ESTATE     DAVIDSON     V, 
AUBET. 


f        1' 

*    <  Jan. 

V      n 


1906. 
16th. 
34th. 


Partnership — Dormant  partners- 
Insolvency — Sharing  of  pro- 
fits— Proof  by  solvent  partner. 

By  agreement  between  A.  and 
D.,  the  former  advanced  £300 
to  the  latter,  to  be  utilized  for 
the  purpose  of  a  tailoring  busi- 
ness, which  was  to  be  matiaged 
by  D.  at  a  fixed  salary  in 
addition  to  a  half  share  of  the 
profits.  D.  nas  to  keep  the 
books  which  A,  was  to  be 
ailowed  to  inspect.  In  con- 
sideration of  mr  adnance,  D. 
teas  to  pay  to  A .  one  half  share 
of  the  amtual  profits  in  lieu 
of  interest,  and  D.  icas  to  have 
the  option  of  repaying  the 
£300  in  two  years,  and  on  such 
repayment  A.^s  share  in  the 
profits  was  to  cease,  hut  until 
such  repayment  A.  toas  to  re- 
ceive his  half  share. 

Held,  that  the  agreement  fur- 
nished prima  facie  pt-oof  of 
the  existence  of  a  2)artnerthip 
between  A.  and  D. 


This  was  an  application  by  the  trustee 
in  the  insolvent  estate  of  Wm.  Davidson 
for  an  order  as  to  the  ranking  of  certain 
claims. 

From  the  affidavit  of  the  applicant  it 
appeared  tilnat  the  petitioner,  Nathan 
Lionel  Goldsmid,  was  sole  trustee  in  the 
insolvent  estate  of  William  Davidson,  of 
(Queen's  Town.  In  February,  1903,  Da- 
vidson purchased  a  certain  business  from 
one  Ryan  for  £450,  obtained  a  loan  from 
Auret  of  £300,  and  an  agreement  was  en- 
tered into  that  at  the  expiration  of  each 


22 


"CA1?E  times**   law  hBtORTS. 


ye*r  tbe  profits  were  to  be  divided.  At 
the  end  of  the  first  year,  Davideon  sub- 
mitted a  stateznent  showing  profits  at 
£283  Us.  6d.  Davidson  could  not  pay 
one-half,  and  judgment  was  taken  out 
against  him.  In  July,  Davidson  filed  a 
petition,  claims  amounting  to  £705  were 
filed,  and  at  the  third  meeting  Auret's 
claim  was  presented,  and  petitioner  ob- 
jected to  the  claim  on  the  ground  that 
Auret  was  an  anonymous  partner  of  Da- 
vidson. The  R.M.  accepted  the  claim 
without  any  reservation.  The  creditor? 
instructed  petitioner  to  take  action  to  ob- 
tain an  order  that  the  lespoudent's 
claim  was  not  entitled  to  rank  concur 
rently  with  the  other  claims.  In  the 
course  of  the  agreement  it  was  stipulat- 
ed that  Davidson  should  receive  a  salary 
of  £20  a  month,  the  amount  to  be  de- 
ducted out  of  the  profits.  Davidson*  in- 
stead of  paying  interest,  was  to  pay  one 
half  of  the  net  profits.  Auret  at  ail 
times  was  to  have  access  to  'ne  books, 
and  Davidson  was  to  have  the  option  of 
paying  the  £300  in  1906. 

The  Answering  affidavit  of  the  respon- 
dent denied  that  he  was  on  anonymous 
partner.  The  £300  was  advanced  as  an 
ordinary  loan.  Davidson  could  no/bgivc 
any  security,  end  the  agreement  was 
drawn    up. 

The  replying  affidavit  of  Davidson  as- 
serted  that  the  respondent  and  himself 
agreed  to  .become  paitnera  in  the  busi- 
ness. The  reason  the  respondent's 
name  was  not  disclosed  was  because  he 
was  in  the  Postal  Telegnaph  Depart- 
ment. 

In  a  further  affidavit,  the  respondent 
denied  that  his  occupation  prevented 
him  giving  his  name. 

Mr.  Giddy,  K.C.,  was  for  tbe  appli- 
cant, and  Mr.  Searle,  K.C.,  was  for  the 
respondent. 

Mr.  Giddy  pomtcd  out  that  to  all  ui- 
tento  and  purposes  Auret's  namo  did  not 
appear  before  tbe  creditors.  Aurot  bad 
free  access  to  the  books,  and  he  had,  so 
to  speak,  a  veto  on  Davidson's  transac 
tions;  and  it  would  be  seen  that  he  p^r- 
ticipated  in  the  losses  as  well  as  the 
profits.^  If  tbe  interest  was  taken  on 
£300,  it  would  be  a  small  sum  in  compari- 
son with  what  half  the  property  amounted 
to.  Counsel  submitted  that  so  long 
as  the  ajy^reemeut  existed  there  was  a 
partnership  between  the  parties. 

Mr.  Searle  said  the  point  had  never 
yet  crisply  come  up  before  the  Court. 
He  submitted  the  Court  had  really  to 
look  at  th«^  agreement  itself  to  gather 
from  the  terms  of  the  agreement  what 
was  intended.  The  creditors  knew  no- 
thing of  Auret,  and  counsel  urged  that 
there  was  strong  evidence  in  the  terms 
of  the  agreement  that  it  was  merely  a 
loan  and  not  a  partnership.  There  were 
the  terms,  "Davidson  as  owner,"  "the 
money  to  bo  utilised  by  him."  Davidson 
was  more  like  the  agent  of  Auret  than 
his  partner,  although  counsel  would  not 
even  admit  that.    According  to  the  de- 


cision in  the  case  of  Watermejfer  and 
KindeWi  Tnutee$  (3  Mens.  424)  the 
Magistrate  *wa8  olearly  right  in  holding 
that  there  was  no   partnership. 

Cur,    Adv.   Vidt, 

Pattea  (January   24). 

De  ViUiers,  C.J. :  This  is  an  applica- 
tion 6y  the  trustee  of  the  insolvent  es- 
tate of  W.  M.  Da^obon  for  an  order  ex- 
punging a  daim  for  £438,  which  Auret, 
t)he  respondent,  has  proved  against  the 
estate  or  ottherwise,  postponing  the  pay- 
ment of  such  claim,  until  all  other  claims 
against  the  same  estate  shall  have  been 
satisfied,  on  the  ground  that  the  respon- 
dent was  a  partner  of  the  insolvent.  No 
contract,  purporting  to  be  a  contract  of 
partnership,  was  entered  into,  but  the 
applicant  relies  upon  a  written  agree- 
ment made  on  the  7th  of  February, 
1903,  as  virtually  establishing  such  a 
partnership.  The  material  ^rtions  of 
the  agreement  are  tbe  following :  "  Tho 
said  Auret  has  advanced  tbe  sum  of  £300 
to  the  said  Davison,  who,  fa  owner  of 
the  tailoring  business  heretofore  carried 
on  in  Queen's  Town  by  John  Ryan,  ac- 
knowledged to  have  received  tbe  amount 
which  is  to  be  utilised  by  him  for  the 
purposes  of  the  said  business.  The  said 
Davison  shall  manage  and  carrv  on  the 
said  business,  and  keep  proper  nooks  of 
account.  In  oonsideration  of  the  said 
sum  so  advanced  by  the  said  Auret,  the 
said  Davison  shall  pay  for,  and,  instead 
of  interest,  one-half  of  the  net  profits 
of  the  said  business,  such  a  division  of 
the  profits  to  be  made  every  year, 
reckoned  as  from  the  1st  February,  1903. 
The  said  Auret,  or  his  lawful  nominee, 
shall  at  all  reasonable  times  have  free 
access  to  the  books  of  the  said  business. 
As  soon  as  the  said  Davison  shall  assume 
l^rsonal  supervision  of  the  said  businees, 
and  for  that  purpose  leave  his  present 
situation,  then  and  from  such  date,  he 
shall  be  entitled  to  £20  a  month,  which 
aum  shall  be  deducted  from  the  ^ross 
profits  of  the  business  before  a  divisioii 
IS  made.  The  said  Davison  shall  have 
the  option  of  repaying  the  said  sum  of 
£300  on  the  31st  January,  1906,  and  on 
such  payment  the  share  in  half  of  the 
profits  of  the  said  Auret  shall  cease,  it 
oeing  conditioned  that  the  said  Auret 
shall  be  entitled  to  such  half-share  of  the 
profits  until  the  amount  be  paid  him." 
Tlie  respondent's  counsel  contends  that 
this  agreement  amounts  to  no  more  than 
a  loan  by  Auret  to  Davison,  but  it  is 
remarkable  that  no  time  is  fixed  for  the 
repayment  of  the  £300  advanced  bv 
Auret.  The  money  was  advanced  with 
the  distinct  object  of  being  utilised  for 
tiie  purposes  of  a  business  to  be  carried 
on  by  Davieon  for  the  joint  profit  of 
himself  and  Auret,  and  the  option  is  left 
to  Davison  of  repaying  the  money 
on  the  31st  of  January,  1906.  Whether 
Davison  paid  the  money  on  thai  date, 
or  postponed  the  payment  until  a  later 
date,  Auret  was  to  be  entitled  to  his  half 
share  of  the  profits  until  the  date  of 


"CAPB  TlMB8»*  LAW  REPORTS. 


23 


tctaal   payment.      The   duties  were  im- 
poeed  on  Davison  of  managing  and  c&r- 
TT^ng  on  tlie  bosinesfl,  and  keeping  pro- 
pet  books   of    account,   in  consideration 
oi  which  he  'was  to  receive  an  allowance 
of  BTX^  a  month,  to  be  dedaoted  from  the 
groes  profits,  and  the  right  was  reeerred 
to  Aniet  or  hie  nominee  to  have  free  ac- 
cess to  the  books  of  the  said  business. 
Tlpon  the  oTidence  before  the  Court,  the 
contract  thus  entered  into  would  i^pear 
to  be  one  of  partnership,  and  not  of  loan. 
If  a  loan  had  been  intended,  there  surely 
would  have  been  some  provision  enabling 
the  lender  to  recover  back  the  amount 
of  his  loan.^   Supposing  that  Auret  be- 
came   dissatisfied    with    the   manner    in 
which  the  business  was  carried  on,  would 
be  be  bound  to  wait  uirtal  Davison  chose 
to  repay  the  loan   before  he  could  lay 
claim  to  the  capital   sum  advanced  by 
himT    Unless  he  were  a  partner  with  ths 
ordinar^r  right  to  claim  a  dissolution  after 
due  notice,  he  would  in  such  a  case  seem 
to  have  no  remedy  under  the  agreement. 
Supposing,   further,   that  without     any 
fsult  on   the  part  of   Davison,      heavy 
losses  had  been  sustained  in  the  business, 
with  the  result  that  the  whole  of  the 
capital  advanced  by  Auret  had  been  lost, 
would  Auret  have  been  entitled  to  claim 
repayment   of  the   capital?    The   agree- 
ment confers  no  such  right  on  him  in 
express  terms,  and  no  such  right  can  be 
fairly   inferred  from   the   terms   of   the 
agreement.     The  decision  of  this  Oourt 
in  the  case  of    Watermeycr  v.    KerdeVa 
Trustees  (3,  Menz.,  424),  has  been  relied 
upon^  by    the    respondent's    counsel    as 
negativing  the  existence  of  a  partnership 
in  the  present  case,  but  no  definite  rule 
was  there  laid  down  by  the  majority  of 
the  Court  which  can  assist  in  the  deter- 
mination of  the  pzesent  case.  The  compli- 
cated terms  of  that  agreement  differed 
very  materially  from  the  simple  terms  of 
the  agreement  now  under  consideration,, 
which  may  be  construed  by  the  aid  of 
the  elemeutary  principles  of  the  law  of 
partnership.     Wnat,   then,   is  meant  by 
a  partnership.    According  to  Voet  (17,  2, 
1).   it  is   contractus  super  re  honesta  d€ 
lucri    et    damni    communume.      Literally 
trani'lated,  this  means  that  it  is  a  *'  con- 
tract concerning  an  honest     transaction 
for  the  sharing  of  profit  and  loss,"  but 
freely  translated,   the  author's  meaning 
seems  to  be  that  it  is  "  an  agn:eement  be- 
tween two  or  more  per^ns  for  the  pur- 
pose of  carrjring  on  a  lawful  undertak- 
ing, and  dividing  its  profits  and  losses 
between   them."      The   definition    given 
by   Pothier   (Partnership),   and   followed 
by  Van  der  Linden  (Institutes,  B  4,  ch.  1, 
11).  is  that  *'  partnership  is  a  contract  by 
which  two  or  more  persons  put  or  en- 
gage to  put  something  in  common  in  or- 
der to  make  therefrom  in   common  an 
honest  profit  with  the  mutual  obligation 
of  accounting  to  each  other."  The  differ- 
ence between  the  two  definitions  is  that 
Voet   says   nothing   about   putting   any- 
thing into  a  common  stock,  or  about  the 


parties  having  to  account  to  each  other, 
and  that  Pothier  says  nothing  about 
sharing  of  losses,  but  when  they  proceed 
to  enlarge  upon  their  respective  defini- 
tions there  is  no  substantial  difference 
between  them.  They  are  agreed  that 
either  labour  or  effects  or  both  may  be 
contributed  by  the  partners,  that  bs  who 
carries  on  the  business  must  render  an 
account  of  his  administration,  and  that 
generally  each  of  the  partners  must  bear 
the  same  proportion  of  the  losses  of  the 
partnership  as  he  ought  to  have  of  its 
profits,  if  it  is  prosperous.  Voet  (17,  2, 
8)  admits  that  tnis  last  rule  may 
be  evaded  by  a  special  stipulation 
to  the  oontrary,  and  that  it  may  be 
legallv  agreed  that  one  of  the  partners 
shall  have  a  share  of  the  profit,  and  not 
bear  anv  part  of  the  loss,  and  he  adds 
that  such  an  ajg^reement  would  not  trans- 
gress his  requirement  of  community  of 
loss,  because  £here  can  be  no  profit  until 
the  loss  has  been  deducted.  Whether 
this  explanation  be  perfectly  satisfactory 
or  not,  it  is  clear  that  he  did  not  in- 
tend, under  his  definition  of  partnership, 
to  exclude  cases  where  community  of 
loss  is  not  expressly  agreed  upon.  The 
main  test  in  every  case  is  whether  th  >ro 
is  an  a^pieement  to  share  profito,  unao- 
'V>raiiunied  bv  circumstances  showing 
that  partnership  was  intended  to  be  e\' 
eluded.  In  the  present  case,  the  word 
loon  is  not  used  at  all  in  the  written 
agreement,  but  even  if  it  had  been  so 
used,  the  Oourt,  as  stated  in  TrecLsurcr- 
General  v.  Lippert  (1  Juta,  302 ;  2  Juta, 
176),  would  look  to  the  real  traniac 
tior  between  the  parties,  and  not  to 
what  they  have  oalled  it.  The  tendency 
ai  the  proirent  day  would  be  to  designaie 
an  advance  for  the  purposes  of  a  partner- 
ship business  as  a  loan,  in  the  same  way 
as  under  the  strict  laws  against  usury, 
the  tendency  formerly  was  to  disgaiee 
a  loan  at  usurious  interest  as  a  partner- 
ship. I  do  not  bay  that  the  disguise 
was  fraudulently  adopted— for  the  stato- 
ment  in  Davison's  affidavit  may  be  cor- 
rect that  the  reason  for  AureVs  namo 
not  being  disclosed  was  because  of  his 
being  in  the  Civil  Service — ^but  I  do  say 
that  the^  agreement  includes  the  essen- 
tial requisites  of  a  partnership,  and  that, 
unless  the  actual  dealings  between  ^  the 
parties  rebut  the  presumption  arising 
out  of  the  terms  of  the  agreement,  the 
Court  will  have  to  hold  that  a  partner- 
ship did  «Aist  at  the  date  of  sequestra- 
tion. An  opportunity  will,  however,  be 
given  to  both  parties  to  produce  furl  her 
evidence  on  this  point  before  the  Resi- 
dent Magistrate.  I  have  made  no  refer- 
once  to  the  English  law,  because  the  ca?© 
mu2ft.  of  course,  1^  decided  under  our 
law;  but  it  is  sal isf act>ory  to  find  that 
there  is  no  substbJitial  difference  in  the 
tests  to  be  applied  in  order  to  ascertain 
whether  a  partnership  exists  or  not.  In 
the  case  of  Mollivo  v.  Court  of  Wards 
(4  L.R.P.C.,  419),  it  was  held  by  the 
Privy  Council  fbat,   although  the  right 


24 


(< 


CAPE  TIMES*'   LAW  REPOtlM. 


to  purtioiparte  in  the  profits  of  a  trade  is 
a  strong  test  of  portuemhip.  and  there 
may  be  oaces  where,  fioci  such  percep- 
tion alone^  it  ma^  as  a  presumption,  not 
iA  law,  but  of  faot,  be  enforced;  yet, 
whether  that  relation  does  or  does  not 
exist,  must  depend  on  the  real  inten- 
tion and  contract  of  the  parties.  In  that 
case,  a  lengthy  agreement  hi  writ'u< 
was  relied  upon  to  establish  the  partner- 
ship^ but  the  Judicial  Committee,  li'Ok- 
mg  at  the  wholi*  soope  of  the  agreemopt, 
came  to  the  oonolusion  that  the  primarr 
object  was  to  give  security  to  the  al- 
leged partner,  an  Indian  Kajah,  as  a 
creditor  of  the  persons,  )\ateoiis  by 
name,  who  carried  on  the  trade,  and  not 
to  make  him  a  partner.  The  agree- 
ment differed  in  several  particulars  from 
the  present  one,  the  most  important  be- 
ing that  all  available  proceeds  had  to  be 
handed  to  the  Rajah  as  received  by  the 
Watsons  for  the  purpose  of  extinguishing 
the  debt  due  to  him.  The  Rajah 
did  not  advance  a  fixed  sum,  as  was 
done  by  Auret,  and  as  is  usual  in  ordin- 
ary partnerships,  but  he  stipulated  that 
foi  such  advances  indefinite  in  amount 
as  he  had  already  made,  and  should  from 
time  to  time  make,  he  should  have  cer- 
tain securities,  the  chief  security  being 
th<&  right  to  recoup  himself  out  of  the 
proceeds,  as  they  were  handed  to  liim. 
The  option  was  certainly  not  left  to  the 
Watsons,  as  it  was  to  Auret,  of  paying 
the  advances  when  it  suited  them  to  put 
an  end  to  the  agreement  for  sharing  the 
profits  of  the  business.  "  The  Watsons," 
said  their  lordships,  "evidently  wished 
the  Rajah  to  continue  his  advances,  and 
for  that  purpose  were  willing  to  <fiv'e 
him  the  largest  security  they  could  offer ; 
but  a  partnership  was  not  contemplated, 
and  the  agreement  is  really  founded  on 
the  assumption  not  of  coniinunity  of 
benefit,  but  of  opposition  of  intere&td." 
In  the  isubsequent  case  of  Pooley  v. 
Driver  (L.R.  5,  Ch.  EKv.  468),  Jeesel, 
M.R.,  bield  that  in  the  abeonoe  of  some- 
thing in  the  contract  to  show  a  contrary 
intention,  the  right  to  share  profits,  as 

{trofits,  constitutes,  according  to  Englisih 
aw,  a  partnership.  The  agreement  in 
that  ca»e  contained  a  number  of  ingei*i- 
ous  provisions  to  enable  the  dormant 
partner  to  get  a  share  of  the  profits, 
without  contributing  to  the  losses,  but 
the  general  tenour  of  the  Master  of  the 
Rolls*  instructive  judgment  satisfies  me 
that  he  would  have  held  that  an  agree- 
ment like  the  one  in  question  creates  a 
partnership,  unless  some  other  relation 
could  be  shown  from  the  surrounding 
circumstances.  Both  these  English 
cases  were  referred  to  in  the  judgments 
of  the  judges  in  the  Transvaal  ca.se  cf 
Anderson  v.  Hcyce  (2,  Off.  Reports.  266), 
where  it  was  held  that  the  mere  fact 
that  the  lender  stipulates  for  a  nhare  m 
the  profits  acquired  with  the  money  lent, 
instead  of  interest,  does  not  make  him 
of  the  borrower.  It  was  there 
have  a  judgment  which  had 


been  obtained  against  the  borrower  and 
his  known  partoer  declared  executable 
as  against  the  lender,  on  the  ground 
that  ne  was  a  partner ;  but  at  the  most 
he  would  have  been  an  anonymous  part- 
ner against  whom  the  creditors  coula  not 
have  proceeded  in  respect  of  debts  in- 
curred in  the  name  of  someone  else.  The 
Court  there  held  that  a  partnership  did 
not  exist,  but  there  was  no  written  agree- 
ment, as  there  is  in  the  present  case, 
containing  provisions  which  support  the 
pre8umi>tK>n  of  partnership  arising  out  of 
a  partioipation  in  profits.  At  the  date  of 
the  sequestration  of  Davison's  estate,  the 
agreement  was  still  running  and  in  force. 
The  claim  of  £439  consists  mainly  of  the 
capital  sum  of  £300  advanced,  and  the 
half  share  of  profits,  whioh«  according  to 
a  statement  submitted  by  Davison  to  the 
respondent  in  March,  i904,  had  up  to 
that  date  been  earned.  In  May,  1904,  the 
respondent  issued  a  summons  against 
Davison  for  the  amount  of  such  capital 
and  profits,  and  judgment  was  accord- 
ingly given  in  default  of  appearance  on 
the  part  of  Davison.  In  July,  1904, 
Davison's  estate  was  sequestrated  on  his 
petition,  which  stated  that  his  liabihtie* 
were  £1,105  and  his  tussets  £822 ; .  but  the 
applicant,  as  trustee,  is  doubtful  whether 
tne  assets  will  realise  one-fourth  of  the 
amount  set  forth  in  the  schedules.  The 
Court  has  no  information  before  it  as  to 
whether  the  account  rendered  by  Davi- 
son in  March,  1904,  which  showed  a 
profit  of  £283,  was  a  correct  statement, 
or  whether,  at  the  date  of  the  seques- 
tration, the  tailoring  business  had  re- 
sulted in  a'profit  or  in  a  loss.  Nor  does  it 
cppear  from  the  affidavits  whether  Davi- 
srm  advanced  any  capital  in  ad- 
dition to  contributing  his  time 
and  labjur  to  the  management 
and  supervision  of  the  business.  If, 
after  allowing  for  liabilties  lawfully  iii- 
currod  by  Davison  on  behalf  of  the  busi- 
ness tliero  had,  at  the  date  of  ee9ue8tra- 
tion.  been  an  actual  loss,  absorbmg  the 
capital  advanced  by  Aurot,  and  the  pro- 
fits alleged  to  have  been  made  up  to 
March,  there  i»  no  express  provision  in 
the  agreement  entitling  Auret  to  claim 
more  than  the  amount  of  business  assets 
left  in  Davison's  hands  after  deduction 
of  the  remaining  business  liabilities.  It 
is  clear  that  Auret  can  have  no  greater 
claim  against  the  insolvent  estate  than 
he  would  have  hsd  against  Davison  if, 
in  the  absence  of  insofvencyj  Aiiret  had 
in  July  sought  to  enforce  his  judgment 
debt.  From  the  amount  of  that  debt 
would  have  been  deducted  anv  lawful 
debt  capable  of  beinr  ploadea  in  com- 
pensation (Voet.  16,  2,  2).  It  will  be 
necessary,  therefore,  before  finally  decid- 
ing the  case,  to  remit  the  same  to  the 
Resident  Magistrate,  for  further  proof  in 
terms  of  the  last  proviso  to  the  27th  sec- 
tion of  the  Insolvent  ordinance.  Before 
stating  the  terms  of  the  reference,  how- 
ever,  I  have  to  make  a  few  general  ob- 
servations upon  some  of  the  arguments 


"CA^E  mfES"  lAW  REPORTS. 


ik 


used  on  behalf  of  th«  reepondent.     His 
oouDsel  contended    that  if  there  was   a 
parfcnecship  it   was  either  a  partnership 
en  commandite,  or  an  anonymous  part- 
uexahip,  and    that,   in  either  cafie,      the 
respondent  should  not   bo  postponed   4x> 
the  crediton  of  the  partnership.      The 
partnership,  if  any,  was  not  en  comman- 
dite, because  there  was  no  ezpreaa  limi- 
tation, as  between  themselves,     of     the 
respondents    liabilitv,    but    it  was       an 
anoiyypu^iiK  pMrttwrahin,    because  it   had 
~been  agieed  UUftlft  business  should  be 
carried  on   by  the  insolvent  in  hie  own 
name  alone.       The    expression     auony- 
mous  partnership  is  used   by  Van     dei 
Lind«i  (lust.,  4,  1,  12),  who  appean  fco 
hare  taken  it   over  from  Pothier,  but  1 
do  not  find  it  used  in  any  earlier  books 
on  Dutoh  law.      Neither  of  these  writers, 
however,  supports  the  contention  that  an 
anonymoiM  partner  is  entitled  to  claim 
payment   of    the   debts  due   to  him  by 
the  partnership  oonounrently   vnth  other 
creditors       of      his     partner.      He     is 
not,  it  is  true,  liable  for  the  debts  <A  the 
partnership  to  the  creditors,  with  whom 
the  principal,  or  known  partner,  has  con- 
tracted, but  he  is  liable  for  them  to  the 
principal  or   known   partner,   who      ha& 
lawfuOy   contracted  them.       This      doo- 
trine,     as  pointed  out  bj  Pothier     (sec. 
102),  is  a  result  of  certam  well  establisli 
ed  principles  of  the  Roman  law,  which 
weze  adopted  by  the  Dutch  as  well  as  the 
French  law.       One  of  those     principles 
was  that  whatever  power  one     partnez 
mi^ht  have  to  bind  the  others  by  a  debt 
which  he  has  contracted,  it  was  necessary 
that  it  should  be  contracted  in  the  name 
o€  the  partnership,  and  this  principle  was 
adopted  to  its  full  extent  by  this  Oourt, 
in  the  case  of  Otiardian  Inturanee  Cam- 
pony    V.    Lovemore's  ExenUorn  (5,    Juta, 
211).     A  necessary  result  of  the  principle 
is  that,    as  stated   by   Voet  (17,  2,    16), 
where  one  of  two  or  more  partners  have 
incurred  a  debt  not   in  the  nan>e  of  the 
partnership,    but   in   his  own   name,  he 
dcves   not  bind   the    remaining       parties 
either  severally  or  jointly  with  himself. 
It    is,  however,    in  the  nature   of      an 
anonymous  partnenhip  that  the  admin< 
istenng  partner    mana(^   the    business, 
and  contracts  debts  in  his  own  name,  and 
not  that  of  the  partnership,  and,  conee 
quently,   the  anonymous  partner  cannot 
be  sued  by  the  creditors  of  the  partner- 
ship       for        the        debts         incurred 
by     ^  the      managing      partner.         Ho 
remains  liable,  however,  to  the  manag- 
ing partner,  who  has  contracted  the  debts 
in  his  own  name  but  for  the  benefit  oi 
the  partnership.     If  the  managing  part- 
ner becomes  insolvent  by  reason  ot  Iosros 
sustained  in  the  business,  the  very  diffi- 
cult question  arises  as  to  the  manner  in 
which  the  insolyency  assets  should      be 
distributed.       The      question   was   con- 
sidered by  Menzies,   J.,    in   the   case  of 
Waiermeyer     v.      KerdeVs     Trustee      (3 
Mens.,   436),   and,      although   the  other 
judges  differed  from  him  as  to  the  exist- 
ence of  a  partnership  in  that  case,     it 


does  not  appear  that  they  differed  from 
him  on  the  point  now  under  consideri^ 
tion.  His  remarks  are  as  follows :  "As 
to  the  limitation  of  the  obligations  of 
anonymous  partners  to  creditors  is  an 
exception  from  the  general  role,  it  is 
not  to  be  extended  further  than  there  is 
express  authority  for  so  doing.  And 
no  authority  has  been  produced  to  show 
that  the  creditors  of  an  anonymous  part- 
nership^ are  not  entitled  to  have  their 
debts  discharged  out  of  the  assets  of  the 
partnership,  no  matter  bv  which  of  the 
partners  tney  may  have  oeen  advanced, 
before  the  anonvmous  partner  is  entitled 
to  claim  out  or  those  assets  repayment 
of  the  capital  advanced  by  him,  or  pay- 
ment of  debts  due  to  him  individually, 
either  by  the  partnership  or  by  his  co- 
partner." The  difficulty  lies  in  the 
practical  application  of  this  principle, 
for,  ex  hypothesis  there  is  only  one  estate 
under  sequestration,  <^<L  ^  ^^  ^^^ 
creditors  gave  credit  to  Davison  indi- 
vidually, it  may  be  impossible  to  draw 
a  distinction  between  the  creditors  of 
the  business  and  the  creditors  of  the 
indiriduaL  They  are  all  creditors  of 
the  insolvent  estate  of  Davison,  and 
may  have  to  rank  concurrently  in  the 
distribution  of  the  assets  of  that  estate, 
which,  I  fxresume,  consists  of  assets  em- 
ployed in  the  business  as  well  as  assets 
not  so  employed.  Upon  these  points  the 
C'Ourt  vriU  be  in  a  better  position  to 
pronounce  a  final  judgment  after  it  has 
obtained  the  fuller  information  which 
will  be  asked  for.  It  is  to  be  hoped  that 
the  Court  may  be  able  to  decide  this 
case  without  the  aid  of  the  thirtv-fourth 
section  of  the  Insolvent  Ordinance,  be- 
cause that  section  seems  to  me  hopelessly 
obscure.  The  first  part  of  the  section  is 
confined  to  cases  in  which  an  ordinary 
partnership  estate  and  the  estate  of  one 
or  more  of  the  partners  have  been  placed 
under  sequestration,  and  neiUier  that 
section  nor  the  ninth  section  appears  to 
contemplate  the  seuestration  of  the 
estate  of  a  partnership  consisting  of  two 
persons,  one  of  whom  is  an  anonymous 
partner.  In  the  case  of  Sellar  Brothers 
V.  Clarke  (10  Juta,  171),  I  am  reported 
have  said  that  the  ordinance  makes  no 
distinction  between  known  and  dormant 
partners,  and  confers  on  the  creditors  of 
an  insolvent  partnership  estate  the  full 
right  of  obtaining  satisfaction  from  any 
partner.  The  dictum  was  not  necessary 
tor  the  decision  of  that  case,  and  if  the 
latter  part  of  it  was  correctly  reported  I 
niust  tako  this  opportunity  of  withdraw- 
ing it,  and  leaving  the  matter  fully  open 
for  future  decision.  Although  the 
ordinance  makes  no  distinction  oetween 
known  and  anonymous  partners,  it  is, 
after  further  consideration,  by  no  means 
clear  to  me  that  the  ordinance  was  in- 
tended to  subject  anonymous  partners  to 
liabilities  from  which  they  would  have 
been  free  if  the  ordinance  had  not  been 
passed.  The  first  proviso  to  the  thirty- 
fourth      section      might      possibly      be 


« 


CAPE  TIMES"  LAW  REPORTS. 


made  ^ypUcable  to  a  case  like 
the  present,  but  that  oould  ,  only 
be  done  by  treating  the  words  "if  in- 
solvent" as  a  misprint  for  "if  solvent" 
The  proviso  would  then  read  thus: 
"  Provided,  however,  that  no  partner, 
if  solvent,  and  no  trustee  of  the  insol- 
vent estate  of  any  partner  shall  under 
any  oiroumstanoeB  rank  for^  the  amount 
of  anj  such  claim  for  contribution  upon 
the  msolveut  estato  of  any  other 
partner  in  competition  or  concurrence 
with  any  of  the  oreditom  of  the  company 
claiming  u^n  any  such  laet-mentioned 
estate,  which  creditors  are  hereby  de- 
clared to  be  entitled  to  be  paid  in  pre- 

.ference  and  priority  to  any  such  partner 
or  trustee."  This  is  probably  what  the 
Legislature  intended  to  enact,  and  I  find 
that  in  the  fair  copy  of  the  Ordinance 
filed  in  the  Registrar's  office  the  first 
syllable  in  the  word  "  insolvent "  has 
l>een  struck  through  in  ink,  but  there 
are  no  initials  or  anything  else  to  show 

'  that  the  amendment^  was  made  by  au- 
thority of  the  legislature.  The  re- 
spondent is  solvent,  and  would  not  be 
affected  by  the  proviso  as  it  appears  in 
the  Statute  Book,  and  the  adoption  of 
the  amendment  suggested  by  me  would 
not  materially  affect  the  decision  of  the 
present  case.  As  to  the  last  proviso  to 
the  34th  section  it  only  adds  to  the  ob- 
scurity of  the  section  and  offers  no  assist- 
ance in  the  elucidation  of  the  law  or  ia 
the  decision  of  the  present  case. 

The  Court  will  remit  the  case  to  the 
Resident  Magistrate  with  directions  to 
obtain :  (1)  Production  of  all  correspond- 
ence that  may  have  jpassed  between 
Auret  and  Davison  relative  to  the  tailor- 
ing business  carried  on  by  the  latter; 
(2)  any  relevant  oral  evidence  that  may 
be  tendered  on  either  side  upon  the 
questions  at  issue  with  liberty  to  the 
opposing  party  to  cross-examine  the  wit- 
nesses; (3)  production  of  the  statement 
submitted   by   Davison  in   March,  1904, 

*  and  showing  an  alleged  profit  of  £283 
lis.    6d. ;    (4)    an   account  prepared    by 

'  some^  competent  person,  and  sworn  to 
by  him  showing  (a)  the  capital,  if  any, 
paid  into  the  business  by  Davison ;  (b) 
tiie  actual  amount  and  dates  of  advances 
made  by  Auret;  (c)  tne  sums,  if  any, 
obtained  from  the  business  by  Auret, 
and  the  sums  drawn      by     Davison   as 

'  salary,  as  his  share  of  the  profits  and  for 
his  private  purposes ;  (d)  the  profits  and 
losses  maue  and  incurred  between  the 
date  of  the  agreement  and  the  date  of 
sequestration ;  (e)  the  value  of  the  assets 
of  the  business  and  tho  value  of  asset.<« 
not  l)elongin^  to  the  businoss  at  the  date 
of  se()uestration ;  (f)  the  amount  of  the 
liabilities  of  the  business,  and  the 
nraount  of  the  other  liabilities 
of       Davison  at       the       date       of 

sequestration ;  and  (g)  generally  the 
balance  of  either  profit  or  loss  of  the 
business  at  the  date  of  sequestration. 
The  information  thus  obtained  will  be 
transmitted      to  the  Registrar  of  this 


Court,  and  the  ooats  of  this  application 
will  stand  over. 

[Applicant's  A<ttomeys :  fiilberbauer, 
Wahi  and  Fuller;  Respondents'  Attor- 
neys :    Walker   and    Jacobsohn.] 


DUTCH  REFOBMED  CHURCH,  GAPE  TOWN 
V.  CAPE  TOWN  COUNCIL. 

Mr.  M.  de  Villiers  was  for  the  appli- 
cants, and  Mr.  CSose  for  the  respon- 
diMits. 

Mr.  M.  de  Villiers  moved  to  hav©  a 
certain  award  in  tho  expropriation  of 
certain  property  st  the  instance  of  tho 
respondents  made  a  rule  of  Court,  with 
costs.     Mr.  Close  appeared  to  consent. 

Award  made  a  Rule  of  Court,  with 
costs. 


AV  jfrtrtt  NEL, 

Mr.  Du  Toit  moved  for  the  appoint- 
ment of  two  commi^ssiouers,  one  at  Rob- 
ertson and  one  at  Cape  Town,  to  take 
the  evideiioe  of  witnesses  in  the  insol- 
vent estate  of  Woolf  Cohen,  of  Rob- 
ertson. Counsel  suggested  the  Resident 
Magistrate  of  RobertM>n  aa  one. 

Application  grautetl,  the  Resident 
Magistrate  to  take  evidence  at  Robert- 
son, and  Mr.  P.  Jones  to  act  at  CaiJO 
Town. 


SOXD(>M    V.  SONDOM. 

Mr.  J.  E.  R.  de  Villiers  moved  for 
leave  to  sue  the  respondent,  petitioner's 
wife,  by  edictal  citation,  for  divorce  in 
forma  jmvpcris.  The  parties  were  mar- 
ried  in    Johannesburg,    in      November, 

1895,  in   community   of      property.      In 

1896.  tho  respondent  deserted  the  peti- 
tioner, took  up  her  abode  with  another 
man,  and  in  1902  gave  birth  to  a  child, 
of  which  the  applicant  was  not  the 
father. 

De  Villiers,  C.J.,  sadd  he  would  first 
grant  a  rule  calling  on  the  respondent 
to  ehow  oause  why  the  plaintiff  should 
not  be  allowed  to  huo  in  forma  pau- 
peris,  Toturnable  February  1,  personal 
service  to  be  effecited. 


Kir  p.'iHr  OOSTHUIJ5BN. 

Mr.  P.  JoiKv?  moved  for  an  order  au- 
thorising the  transfer  of  certain  pro- 
|M3rty.  The  matter  had  been  before  tho 
Ma<?ter,  and  his  report  was  favourable. 
In  the  joint  will  of  petitioner's  parent*, 
a  farm,  2.363  morgen.  at  Aliwal  North, 
yrafi  bequeathed  specially  to  the  respon- 
dent, provided  he  paid  into  the  estate 
£1,000  within  one  year  of  the  death  of 
his   father. 

Granted 


I 


"CAPE  TIMES"  LAW  AePORTB. 


27 


Ex  parte  VAir  wtk  avd  othebs. 

Mr.  W.  r.  Buchanan  applied  for  leave 
oa  behalf  oC  the  petitioner's  to  sell  oer- 
tun  property  veated  in  the  Dutch  Re- 
fonned  Church,  at  Adelaide.  The 
Cbnrch  owned  the  square  on  which  the 
church  was  built.  At  a  Congregational 
meeting  of  the  Church,  held  on  June 
18,  the  con&b>tory  waa  instructed  to  sell 
a  number  of  erven  on  the  Church-square 
md  utilise  the  funds  for  the  church. 
The  Registrar  wanted  an  order  of 
Court,  because  the  ground  in  question 
was  marked  on  the  diagram  as  a  square. 
De  YiUiers,  C.J.,  said  he  would  grant 
a  rule  calling  on  ail  concerned  to  show 
eaose  on  the  h»t  February  why  an  order 
should  not  be  made  as  prayed,  the  rule 
to  ba  published  twice  in  a  Dutch  news- 
paper circulating  in  the  district)  and 
twice  in  an  English  paper  circulating  in 
thd  district. 


Eje  parte  JUPEY  AND  INOTUEB. 

Mr.  P^yemont  moTod  for  an  order 
directing  the  winding  up  of  the  Amoy 
Brick  Syndicate,  a  o(»npany  which  was 
unable  to  pay  its  debts,  and  which  was 
indebted  to  the  estate  of  £mile  van 
Heerden  in  a  mortgage  bond  for  £1,000, 
and  to  petitioner,  who  was  chairman, 
in  his  priTate  capacity,  in  £314.  The 
Dirisional  Council  valuation  of  the  farm 
held  by  the  syndicate  was  £1,800,  and 
the  liabilities  amounted  to  £1,979.  It 
was  impoasible  to  get  a  quorum  of  share- 
h<^derB  together.  It  was  to  the  best 
interests  of  the  company  that  official 
liquidators  should  be  appointed,  and 
the  names  of  Harry  Gibson  and  £.  Sj- 
fret  had  been  suggested,  with  Fair- 
bridge,  Arderne  and  Lawton  as  at- 
torneys. 

Judgment  as  prayed,  the  gentlemen 
mentioned    being  appointed   to  act. 


NEKDHAM  V.  XE'EDHAM. 

Mr.  Sutton  moved  on  behalf  of  tbf> 
petitioner,  Mary  Ann  Needham,  of 
Observatory-road,  for  alimony.  The 
parties  were  married  in  community  of 
property  in  1893,  and  there  were  four 
children  of  the  marriage.  Petitioner's 
attorneys,  acting  on  instructions,  wrote 
to  the  respondent  suggesting  that  a 
private  separatuon  a  mensa  et  ihoro  bo 
arrived  at,  as  it  was  absolutely  iui- 
poiSsible  to  live  with  the  respondent. 

De  Villiers.  C.J.,  grranted  an  order 
for  the  payment  of  £25  to  the  appli- 
cant's ttttorneys.  to  enable  the  applicant 
to  DToceed  with  the  action,  tine  sum 
of  £8  to  be  niaid  to  the  applicant  per 
month  towards  the  maintenance  of  her 
children,  pending*  fui  action,  costs  to 
stand  over. 


Hx  parte  BOBBBTSON  AJXD  AKOTHBB. 

Mr.  Close  moved  for  an  order  sanc- 
tioning a  certain  compromise  with 
certain  creditors  oi  a  company  to  whom 
the  petitioners  were  official  liquidators. 

Granted. 


WILSON  AND  CATHCABT  Y.  YOUMG. 

Mr.  P.  Jones  moved  for  an  order 
calling  on  the  defendant  to  show  cause 
why  an  order  should  not  be  granted  for 
the  attachment  of  the  person  of  re- 
spondent for  oontempt  of  Court.  On 
the  15th  December  the  respondent  was 
ordered  to  deliver  up  certain  house- 
hold ptremisen  at  Observatory,  but  he 
had  failed  to  do  so.  The  respondent 
forcibly  took  poaseasiou  of  the  premi- 
ses, and  the  Court  ordered  him  to  re- 
store possession. 

The  respondent  appeared  in  person, 
and  pointed  out  that  he  had  trouble 
in  getting  rid  of  his  tenant.  The  ap- 
plicant, Wilson  had  refused  to  give  him 
specifications  to  be  examined  by  a  quali- 
fied man.  The  plumibing  work  had  to 
be  redone.  The  job  was  not  finished 
until  it  had  been  passed  by  an  arahitect 
and  the  engineer  at  Mowbray. 

The  respondent  was  ordered  to  give  up 
possession  in  terms  of  the  order  of  Court 
of  the  15th  December,  on  or  before  28th 
February,  and  in  the  meantime  the  ap- 
plicants to  proceed  with  all  despatch 
with  their  action  to  recover  the  amount 
claimed,  costs  of  the  application  to  abide 
the  result  of  the  action. 


DBUMMOND  T    JONES. 

This  was  an  application  for  leave  to 
ap{)eal  to  the  Supreme  Court  against 
a  judgment  of  Justice  Lange,  in  the 
High  Court  of  Griqualand  West.  Judg- 
ment was  reserved,  and  by  the  time  it 
wsfi  deiHvered  appaioant  w«b  away  on 
business,  and  the  time  for  appeal  had 
elapsed.  Applicant  (who  appeared  in 
person)  proceeded  to  relate  seve- 
ral criminal  charges  that  had 
been  brought  against  him,  each  of 
wMch  had  been  witl^awn,  and  the 
action  on  behalf  of  the  police  accounted 
for  the  delay  in  bringing  the  appeal. 
He  based  his  application  on  the  Act  for 
the  Better  Administration  of  Justice. 
Applicant  then  proceeded  to  road  a 
petition  which  he  was  about  to  forward 
to  His  Majesty  the  King,  for  protection 
against  the  unremitting  persecution  of 
the  Cape  PoKce.  In  two  of  the  bt^t 
veara  of  bis  life  he  had  been  worried 
oy  the  police,  and  he  prayed  of  His  Ma- 
jesty for  protection,  so  that  he  could 
go  through  the  Qolony  as  a  loyal  British 
subject  without  fear. 

[De  VilKers,  C.J.  :  Have  you  paid  the 
amount  of   tlio  judgment?] 

AppHoant :  I  have  not  been  asked  for 
it. 


'■CAPS  TnlES"   LAW  REPORTS. 


:  Villien,  C.J.:    Could     you     find 
itvTl 

that 


f  the   appLicaiit 


Db  ViJliers,  C.J..  amid  the  &ppUc 
would  lisvo  leftTB  U>  appeal  to  tbe  __ 
pteine  Court  if  wkhia  three  wockii  from 
ifau  dote  lie  gave  securjtj  to  the  Regis- 
trar foe  the  payment  nl  the  amount  of 
the  judgment  of  the  High  Court,  and 
tbs  cfwte  awarded  liy  that  judgment. 


SUPREME  COURT 


[Betoie  the  Hon.  Hit  John  Buohanak.] 


'""'*""'"■  i   Feb.   Irt. 

Mr.  P.  Joues  moved  (or  the  ttdmissioii 
of  Frederick  UianTilJe  Stapleton  a>  an 
advocate. 

Applicatiou  granted,  and  oath  admin- 
istered. 

Mr.  J.  E.  It.  de  Villii'ia  moved  for  tho 
udmiiKiou  of  Arthur  Edward  Carlisle  as 
an  advocate. 
Application  graiit^'d,  and  uath  admin- 
Mr.  GaTdioer  moved  for  tbe  adniii- 
■ioD  of  Arthur  Hallam  Davidson  a«  an 
attorney  at-law.  Mr,  _  Upiuj 
peared  to  oppose 
Society, 

Mr.  Gsrdiuer  said  tho 
previously  been  before  [be  Court,  wbeu 
It  was  pointed  out  by  the  liaw  Society 
that  the  applicant  had  only  bceTi  ad. 
initted  ill  Scotland  as  a.  law  agent  in 
the  Sheriff's    Court,  and  certain    allegi 


behalf  of  the  La«' 
had 


torney  of  the  Supreme  Court 

before  be  was  admitted.      There  was  now 
a  certificate  from  Scotland  tba.t  he  i 


read  from  the  report 
Hopley's  judgment, 
roiild  appear  that  the 
ipplv  lot  admigsion  to 
rt.   but   ther-    '■" 


rofes 


....  :b  would  lie  a  chaiici' 
f  refuting  the  tharges. 
DCeedod  to  road  an  affi. 
Alexander  J<Min  Moc- 
7  to  the  Law  Society,  to 
TO  society  received    ccr- 

that  the    I 

himself  or 


ending     hi, 
1  at      Lady 


tbe      office,     a     aigo- 


3  the    iDaoription, 


Mr.  Gardiner  said  his  name  bad  never 
been  struck  off  the  rolls,  nor  had  he  ever 
Im«q  suspended  in  Scotland  or  the  Tnms- 
vaaL 

Counsel  having  been  beard  in    argu- 

His  Lordship,  in  granting  tbe  anpli- 
cation,  said  it  hid  been  clearly  laid  down 
that  a  person  in  the  position  of  the  ap- 
plicant waa  entitled  to  be  admitted  as  an 
attorney  of  the  Circuit  Court.  In  Sop- 
(eniber  tho  applicant  filed  an  a{>plic«- 
tion  to  bo  admitted  as  ati  attorney  of 
tbe  Supreme  Court,  and  in  the  satno 
month,  under  an  arrangement  with  Mr. 
Dell,  he  went  to  Lady  Grey  tor  the  pur- 
pose of  taking  an  office.  ITiO  appli- 
cant stated  that  the  si^board  was  put 
up  without  his  knowledge,  oonsent,  or 
instructions,  and  it  was  taken  down 


}  his 


He 


oonsidercd,  on  tho  whole,  that  there 
was  nothing  to  show  that  the  applicant 
had  committed  any  act  which  should 
debar  him  from  being  admitted.      There 

Mr.  Alexander  moved  for  the  admission 
of  Muuriti  Paiiiues  Geo^e  Elliott  as  an 
attoriiey-al.law  and  notary   public. 
ApplioatioB  granted,  bjiJ  oatha  admin- 
Mr,  Pyemont  moved  Eor  the  admistion 
of  ChnrJes  Herinsn  Maaadorp  a»  »  con- 
Application  granted,  and  oaths  admin- 


PROViaiONAL  ROLL. 


Dr.  Rainsford  moved  for  provisional 
'K'ritence  on  a  mortgage  bond  for  £1.500, 
with  interest  and  coyt;,  and  that  tbe 
hypothecated       be       declared 


perty    hj 

»ilal>le. 

ranted. 


Mr.  Lewis  moved  tor  provisional  sen- 
tence on  a  mortgago  bond  for  £1,000 
with  interest  at  6  per  cent,  from  July, 
1904,  and  that  the  property    be  declared 


"CAPE  TI\£ES"   LAW  REPORTS. 


29 


M A&AIB  V.  OELDSNHUTS. 

Mr.  Sutton  moved  for  provisional 
MOtence  on  two  mortgage  TOnds,  and 
that  the  property  be  declared  execut- 
able. 

Granted. 


ORAAPP  T.  ICALWBRI8KY  AND  OTHER& 

Mr.  Van  Zyl  moved  for  provisioiial 
tentence  on  a  mortgage  bond  for  £2,500, 
with  interest  at  6  per  cent,  from  Ist 
Julv,  1904,  and  that  the  property  be 
declared  executable. 

Granted. 


ORAAFF   V.  GOW  AND  OTHKHS. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  for  £3,300,  less  £750,  paid,  due 
on  a  mortgage  bond,  with  6  per  cent, 
interest  from  lat  July,  1904,  and  that 
the  property  be  declared  executable. 

Granted  against  the  defendants  in 
their  capacity  as  tni.«tcH>8. 


WOODHBAD,  PLAMT  Al^D  00.  Y.  VAK 
BEEKEN. 

Mr.  P.  Jones  moved  for  judgment  on 
a  pEomisfi4>ry  note  for  £62  48.  3d.,  with 
interest  and  costs. 

Granted. 


COLONIAL    60VBBNMRKT    V.    VAN 
KENSBUBO. 

Mr.  P.  Jones  moved  for  provisional 
^ntence  for  interest  on  a  bond  for  £135 
is.  4d.  and  £14  8s.,  with  oosts. 

Gramed. 


MEMNB  V.  VAN  OBB  LINUC 

Mr.  Gntsohe  moved  for  provisional 
sentence  on  a  promissory  note  for  £415 
14s.  8d.,  with  mterest  and  oosts. 

His  Lordship  said  a  consent  to  judg- 
ment bad  been  put  in. 

Judgment  was  given  in  terms  of  the 
conw^nt. 


BLACK  V.  HUBWITZ. 

Mr.  Pyemont  moved  for  provisional 
sentence  on  a  promissory  note  for  £30, 
with  interest  and  oosts. 

The  defendant  appeared  in  court,  and 
said  he  never  received  value  for  the 
amount. 

His  Lordship  instructed  him  to  put  his 
d^ence  on  a£Bdavit,  and  the  case  lo 
come  on  to-morrow  morning. 

PotUa  (Febrnaary   16th). 

Defendant  appeared  in  person. 

An  affidavit  had  been  filed  by  the 
defendant  stating  that   he  engaged  the 

elaintiflf   to   prepare    plans      of    certain 
uilding,    and  it    was  agreed    that   the 


i 


plaintiff  should  get  the  plans  passed  and 
approved  by  the  Town  Council.  The 
Uouncil  only  passed  the  plans  provision, 
ally.  He  verily  believed  the  plans  had 
not  been  finally  paired  by  the  Council. 
He  said  that  plamtiff  had  since  agreed 
to  accept  a  lump  sum  of  £80.  He  gave 
plaintiff  £50,  and  a  promissory  note  for 
£30.  Until  the  plana  were  finally  pass- 
ed, he  oould  not  proceed  with  the  build- 
ing, and  he  was  not  prepaied  to  pay 
the  promissory  note. 

An  answering  affidavit  by  the  plaiiitiif, 
Wm.  Black,  said  that  there  was  no  spe- 
cial stipulation  in  their  terms  that  the 
plans  should  be  approved  by  the  City 
uouncil.  The  defendant  knew  that  the 
plans  were  passed  provisionallv,  and 
agreed  to  the  conditions  speoified  by  the 
Council  as  to  the  frontage  in  Sir  Lowry- 
rcfld,  and  Dorset-street.  The  plans  had 
been  returned  to  deponent  duly  ap- 
proved, subject  to  the  defendant  carry- 
ing out  his  undertaking  with  the  Coun- 
cil. Defendant  subsequently  said  that 
hd  had  found  a  difficulty  in  the  financ- 
ing of  the  schenoe,  and  that  he  did  not 
propose  to  go  on  with  the  building.  De- 
ponent believed  that  defendant  wished 
to  escape  hus  liability  for  the  preparation 
of  the  plans.  Further  affidavits  by 
Owen  C.  Ludolph,  employed  by  the 
plaintiff  to  prepare  the  plans,  and  Cecil 
E.  Bradfield,  of  plaintiff's  attorneys, 
were  read  by  counsel. 

An  answermg  affidavit  by  the  defend- 
ant was  read. 

Buchanan,  J. :  In  this  case  the  plain- 
tdff  asks  for  provisional  sentence 
on  a  promisory  note.  The  ^  de- 
fendant says  that  this  promissory 
note  wa«  given  in  part  payment 
for  preparing  certain  plans,  the  plain- 
tiff oeing  an  architect,  and  that  thoeo 
plans  were  to  be  submitted  to  the  Town 
Council,  and  approved  by  them.  There 
is  a  great  deal  of  force  in  the  defend- 
ant's contention  that  an  architect  is  not 
t.->  be  paid  for  plans  which  are  futile  and 
useless,  but  they  must  be  such  plans  as 
wculd  be  adopted,  and  some  benefit 
would  aoonie  to  the  person,  who  has  the 
plans  made.  It  is  common  cause  that 
these  plane  were  prepared  and  submitted 
to  the  Town  Council,  and,  according  to 
Mr.  Black's  and  his  assistant's  affidavits, 
they  were  approved  hj  the  Town  Coun- 
cil, and  the  only  question  in  dispute  was 
thi  Question  of  blocking  the  building  on 
the  land.  The  plaintiff  has  done  his 
work.  He  has  prepared  plans,  they  are 
plans  which  have  oeen  approved,  and 
the  only  remaining  question  is  whether 
the  defendant's  plans  are  in  the  posses- 
sion of  the  defendant  or  the  plaintiff. 
The  document  produced  by  plaintiff 
supports  his  statement  that  he  handed 
the  plans  to  defendant,  and  the  defend- 
ant has  nothing  to  support  his  state- 
ment that  he  handed  back  the  plana  to 
plaintiff.       Provisional  sentence  will   be 

S anted  as  prayed.      Mr.  Hurwitc,  if  he 
:e6,  may  go  mto  the  principal  oase, 


20 


"CAPE  TIMES"   LAW   REPORTS. 


words  "Flying  Dutchman/;  The 
respondents'  attorneys  had  written  to 
the  effect  that  the  '*  Flying  Datohman  ** 
was  sent  to  their  clients  direct,  who 
were  entirely  ignorant  of  the  fact  that 
the  title  was  registered.  As  soon  as 
the  rule  was  serred  thev  gave  instruc- 
tions to  erase  the  name  from  the  stands, 
catalogues,  etc.  The  agent  of  the 
respondent  firm  now  undertook  to  dis- 
continue the  use  of  the  words,  and 
tendered  costs  to  dato,  reserving  the 
right  to  his  principals  to  reclaim  the 
coets  if  there  was  no  provious  infringe- 
ment. 

De  Villiers,  C.  J. :  If  the  respond- 
ente  had  given  any  indication  of  their 
desire  of  contesting  the  right  to  this 
trade-miark  I  should  certainly  have  re- 
served the  right,  because  the  rule  w«is 
granted  upon  an  rx  parte  i^tatement, 
and  there  is  always  a  possibilitv  that 
the  reepondentA  may  prove  that  the  ap- 
plicants had  not  the  full  right  which 
upon  the  fx  parte  statement  they 
would  appear  to  have.  I  think,  how- 
ever, you  Are  entitled  to  the  rule  being 
made  absohrte,    with   costs. 


Ejt  parte  BRBDBNKAMP. 

Mr.  P.  Jones  moved,  on  behalf  of  the 
petitioner,  who  is  executrix  dative  in 
the  estate  of  her  late  husband  for  an 
order  authorising  her  to  pass  a  first 
mortgage  Ajond  for  £1,260  on  the 
estate. 

De.  VdlKers,  C.J.,  said  he  would  like 
to  'have  further  information  as  to  the 
condition  of  the  estates  conoemed, 
and  whether  or  not  there  were  any 
minors. 


BRBABLET    V.    FAURE,    VAN  j         1905. 

BTK  AND  MOOBB.  (  Jan.    13th. 

Tficola — Security  for  costs — Plain- 
tiff proceemng  by  motion. 

A  perRon^  not  resident  in  the 
Colony^  who  makes  a  claim  in 
the  Supreme  Court  is  not 
.  entitled  to  he  relieved  from  the 
necessity  of  giving  security  for 
costs ^  on  the  ground  thai  he  is 
proceeding  by  iray  of  motion 
afid  not  by  action. 


Mr.  Close  was  for  the  applicant  and 
Mr.  Bisset  was  for  the  respondents. 

Mr.  Bisset  said  at  the  outset  he 
would  take  the  objection  that  the  appli- 
cant was  not  entitled  to  take  any  pro- 
ceedings unless  he  gave  security  for 
costs  beforehand,  as  he  was  not  domi- 
ciled in  this  country,  neither  had  he 
anv  immovable   property    here. 

His  Lordship:  Is  he  not  entitled  to 
have  his  costs  taxed? 


Mr.  Bisset:  Oh,  yes,  provided  he  paid 

the  necessary   disbursements. 

Counsel  having  been  heard  in  argu- 
ment, 

De  Villiers.  C.J.,  said  it  was 
not  denied  on  behalf  of  the  ap- 
plicant tluut  he  had  left  the  Colony, 
that  he  was  at  present  absent  from  the 
.  Colony,  and  that  he  stated  before  leav- 
ing the  Colonv  that  he  did  not  intend 
to  return  to  the  Colony.  It  was  clear 
therefore  if  the  applicant  instead  of  pro- 
c<'cding  by  motion  had  proceeded  by 
action,  he  would  have  been  bound  to 
give  security  for  costs.  In  his  opinion 
it  made  no  difference  whether  it  was  by 
action  or  motion,  otherwise  a  person 
might  always  in  these  cases  in  which, 
by  the  practice  of  the  Court,  either 
motions  or  actions  might  be  Drought, 
chose  the  form  of  procedure  by  motion, 
and  evade  his  liability  for  costs.  In 
the  present  case  he  found  on  the  15th 
December  the  respondents  gave  notice 
to  the  applicant  that  if  he  proceeded 
with  his  motion  there  would  be  a  de- 
msnd  for  security  for  costs  of  the  mo- 
tion, and  the  notice  of  motion  was 
given  on  the  7th  January,  three  weeks 
after  ^  the  applicant  knew  that  the 
security  for  costs  would  be  demanded. 
Of  course  in  the  case  of  a  motion  the 
costs  were  not  generally  so  heavy  as  in 
the  case  oi  an  action,  and  that  would 
be  reason  for  not  demanding  heavy 
security,  but  cert^ainly  no  reason  for 
di»*pensing  with  the  <«ecurity.  In  the  pre- 
sent case  he  considered  heavy  security 
need  not  l>e  required,  but  that  some 
security  j^hould  be  given.  The  Court 
therefore  held  that  the  applicant  was  not 
entitled  to  proceed  with  this  motion 
unless  he  gave  security  to  the  satisfac- 
tion of  the  Registrar  of  the  Court  for 
the  sum  of  £25.  As  to  the  tiuestion  of 
costs  of  this  motion,  he  tnought  it 
should  stand  over. 


Ji^x  parte  R008. 

Mr.  W  P.  Buchanan  moved,  on  l>e- 
half  of  the  petitioner,  in  his  capacity 
as  secretary  to  the  Board  of  Executors, 
for  an  order  confirming  the  AaJe  of  cer- 
tain property,  which  had  been  purchased 
by  the  trustee  in  an  estate  after  it  had 
been  put  up  for  auction. 

De  Villiers,  O.J..  in  granting  the  or- 
der, under  special  circumstances  dis- 
closed, characterised  the  practice  of 
trustees  purchasing  in  their  own 
estates  without  disclosing  full  particu- 
lars ito  all  conoemed  as  pernicious. 


OREBPF  V.  COLONIAL  GOVERNMENT. 

This  was  an  application  to  have  a 
certain  a-ward  of  arbitrators  made  a  rule 
of  Court. 

Mr.  Searle,  K.C.,  for  the  applicants, 
said  that  the  Government,  ho  thought, 


"CAPE  TIMES"  LAW  REPORTS. 


21 


A>  parte  LE  ROUX. 

■  ^  r»J'^*^  moved  for  an  order  relesR- 
JDg  the  applicant  from   a  certain  execii- 
if'rehip  by  renson  of  the  petitioner  enter- 
"'J,  'nto  a  second   marriage. 
Granted. 


Ex  parte  WILL 

Mr.  W.  p.  Buchanan  moved  for  th*» 
appointment  of  the  i)etition€r  as  provi- 
wonal  trustee  in  the  insolvent  estate  of 
r"»s  Wright,  an  hotelkceper.  of  Coles- 
^^- .  The  petitioner,  who  represented 
*  majority  of  the  creditore,  had  been 
°»anapn|r  the  business  for  his  late  father. 
*no  had  formerly  been  trustee. 

Granted. 


did  not  oppose,  but    both  parties  wished 
ID   vzpreaaion    of     opioion      from    the 
Goait,  whelther     upon   tlie  award   being 
made  a  rale  of  Court,   the  £750  award- 
ed for  certain    ground  expropriated     at 
Oudtahoom  should    not'  be  paid  by  the 
GoYemment  to   the    appUoant.       There    t 
would  be  a  d^lay    of  eome  months     in 
fffsaas   tranafer,    and    as    the    Govem- 
ment  Dad  taken    poeseasion  of  the  £arm 
for  eome  tinoe,   the  ap|)Hoani  oontended 
b«  ivaa   envied    to   nis   money    before 
traneier  was  passed. 

Mr.  H.  Jones  or  the  Crown)  point- 
ed out  thaft  if  the  Govemmeot  paid  for 
the  land  wjw  there  mdgbt  be  a  great 
amount  of  trouibilo  and  expense  to  get 
iTansfer  in  oaee  of   insolvency. 

De    Villiem,      C.J.,     said     that      he 

tbouffhA     the      Government      woidd  be 

entitled    to    «ay   that    they    would  pay 

the    DUTchafie     price,     but   they  should 

only  00  eo  simultaneously  with  tne  traits- 

{^T.     He  did  not  wish  to  suggest  that 

the  applicant  might  beoome  insolvent; 

tn  fact,   for  all  he  knew  the   applicant 

mijjht  be  a  very  wealthy  man,   but  the 

principle  must  be  upheld,    and      there 

vould  be  ail  order  that   the     purchase 

price  should  be  paid  upon  transfer  being 

given  by   the   applicant.        The   Court 

vcuki  make  the  award  a  Rule  of  Court 

on  condition  that  the  transfer  took  place 

«iBultaneously  with  the  payment  of  the 

RJT^        price,  each  party   to   pay  half 

^hj^ooeta  of  this  apphcation. 

.  Mr.  Searle  mentioned  the  question  of 

interert. 

♦k^p  Jones  said  it  was  not  the  fault  of 
the  Govenmient.  They  were  willing  to 
P*j^  hut  they  c^^uld  not  get  transfer. 
Ue  villiere,  C.J.,  said  as  it  was  a 
?!.  u  ^^  ^  thought  the  Government 
alwuJd  na;r  coerts  from  the  date  of  the 
•ward  heang  made  a  Rule  of  Court.  If 
w»e  Government  asoert^ned  that  there 
*««  no  chance  of  msolvenoy  with 
^<?ff.  he  did  not  see  why  they  should 

P7  P*y  the  money  and  get  out  of  the 

•Dterert. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Chief  Justioe  (the  Right 
Hon.  bir  J.  H.  db  Villibbb,  F.C., 
K.C.M.G..  LL.D.).] 


ADMI88ION. 


{ 


1905. 
Jan.   16th. 


Mr.  W.  P.  Buchanan  moved  for  the 
admission  of  Rufus  George  Robert  Mac- 
leod  as  an  attorney-at-Iaw. 

AppHcaition  granted,  and  oaths  ad- 
ministered. 


ESTATE     DAVIDSON 
AUBET. 


r       f        1' 

^'    -J  Jan. 


1906. 
16th. 
S4th. 


Partnership — Dormant  partner— 
Insolvency — sharing  of  pro- 
fits— Proof  by  solvent  partner. 

By  agreement  hehceefi  A.  and 
Z>.,  the  formtsr  advanced  £300 
to  ike  latter  J  to  be  utilized  for 
the  purpose  of  a  tailoring  busi- 
ness, which  was  to  be  managed 
by  D.  at  a  fixed  salary  in 
addition  to  a  half  share  of  the 
projlts.  Z).  tuis  to  keep  the 
books  which  A,  was  to  be 
allowed  to  inspect.  In  con- 
sideration  of  the  adtfance,  D, 
\ms  to  pay  to  A .  one  half  share 
of  the  animal  profits  in  lieu 
of  interest^  and  2>.  was  to  have 
die  option  of  repaying  the 
£300  in  two  years,  and  on  such 
repayment  A.'s  share  in  the 
profits  v:as  to  cease^  but  xmtil 
stwh  repayment  A.  toas  to  7-c- 
ceive  his  naif  share. 

Held,  that  the  agreement  fur- 
nished prima  facie  proof  of 
the  existence  of  a  partnership 
between  A.  and  D. 


This  was  an  application  by  the  trustee 
in  the  insolvent  estate  of  Wm.  Davidson 
for  an  order  as  to  the  ranking  of  certain 
claims. 

From  the  affidavyt  of  the  applicant  it 
ai)peared  tlwit  the  petitioner,  Nathan 
Lionel  Goldsmid,  was  sole  trustee  in  the 
insolvent  estate  of  William  Davidson,  of 
Queen's  Town.  In  February,  1903,  Da- 
vidson purchased  a  certain  business  from 
one  Ryan  for  £450,  obtained  a  loan  from 
Auret  of  £300,  and  an  agreement  was  en- 
tered into  that  at  the  expiration  of  each 


22 


"CAtE  TIMES**  Law  feEPORTS. 


jeit  the  profits  w«re  to  be  divided.  At 
the  end  of  the  first  yeAr,  Davidson  sub- 
mitted a  statement  showing  profits  at 
£283  lis.  6d.  Davidson  could  not  pay 
one-half,  and  judgment  was  taken  out 
against  him.  In  July,  Davidson  filed  a 
petition,  claims  amounting  to  £705  were 
filed,  and  at  the  third  meeting  Auret's 
claim  was  presented,  and  petitioner  ob- 
jected to  tne  claim  on  the  ground  that 
Auret  was  an  anonymous  partner  of  Da- 
vidson. The  R.M.  accepted  the  claim 
without  any  reservation.  The  creditor^ 
instructed  petitioner  to  take  action  to  ob- 
tain an  order  that  the  lespondent's 
claim  was  not  entitled  to  rank  concur 
rently  with  the  other  claims.  In  the 
course  of  the  agreement  it  was  stipulat- 
ed that  Davidson  should  receive  a  salary 
of  £20  a  month,  the  amount  to  be  de- 
ducted out  of  the  profits.  Davidson,  in- 
stead of  paying  interest,  was  to  pay  one 
half  of  the  net  profits.  Auret  at  ail 
times  was  to  have  access  to  -lie  bonks, 
and  Davidson  was  to  have  the  option  of 
paying  the  £300  in  1906. 

The  answering  aflidavit  of  the  respon- 
dent denied  that  he  wa^  an  anonymous 
partner.  The  £300  was  advanced  as  an 
ordinary  loan.  Davidson  oould  no^gtve 
any  security,  end  the  agreement  was 
drawn    up. 

The  replying  affidavit  of  Davidson  as- 
serted that  the  respondent  and  himself 
agreed  to  •become  paxlinera  in  the  busi- 
ness. The  reason  the  respondent's 
name  was  not  disclosed  was  becaiwe  he 
was  in  the  Postal  Telegiuph  Depart- 
ment. 

In  a  further  affidavit,  the  respondent 
denied  that  his  occupsftion  prevented 
him  giving  his  name. 

Mr.  Giddy,  K.C.,  was  for  the  appli- 
cant, and  Mr.  Searle,  K.C.,  was  for  the 
respondent. 

Mr.  Giddy  pointed  out  that  to  ail  in- 
tents and  purposes  Auret's  nami)  did  not 
appear  before  the  creditors.  Auret  had 
free  access  to  the  books,  and  ho  had,  eo 
to  speak,  a  veto  on  Davidson's  transac 
tions ;  and  it  would  be  seen  that  h*;  par- 
ticipated in  the  ^  losses  as  well  as  the 
profits.^  If  the  interest  was  taken  on 
£300,  it  would  be  a  small  sum  in  compari- 
son with  what  half  the  property  amounted 
to.  Counsel  submitted  that  so  long 
as  the  a^eement  existed  there  was  a 
partnership  between  the  parties. 

Mr.  Searle  said  the  point  had  never 
yet  crisply  come  up  before  the  Court. 
He  submitted  the  Court  had  really  to 
look  at  th<>  agreement  itself  to  gather 
from  the  terms  of  the  a^r^ement  what 
was  intended.  The  creditors  knew  no- 
thing of  Auret,  and  counsel  urged  that 
there  was  strong  evidence  in  the  terms 
of  the  agreement  that  it  was  merely  a 
loan  and  not  a  partnership.  There  were 
the  terms,  "  Davidson  as  owner,'*  "  the 
money  to  bo  utilised  by  him.*'  Davidson 
was  more  like  the  agent  of  Auret  than 
his  partner,  although  counsel  would  not 
even  admit  that.    According  to  the  de- 


cision   in    the   case  of  WatcrmoMn'  and 
KindeWi    Tnuteet    (3   Mens.    424)   the 
(Magrirtrate -was  dearly  right  in  holding 
that  there  was  no  partnership. 
Cur.   Adv.    VtdL 
Postea   (JaauaTy   24). 
De  VilKew.  C.J. :   This  is  an  applica- 
tion by  the  trustee  of  the  insolvent  es- 
tate of  W.  M.  Dawson  for  an  order  ex- 
punging a  daim  for  £439,  whksh  Auret, 
the  respondent,  has  proved  against  the 
oeftale  or  otherwise,  postponing  the  pay- 
ment of  fuch  claim,  until  all  other  clajms 
against  the  same  estate  shall  have  been 
satisfied,  on  the  ground  that  the  respon- 
dent was  a  partner  of  the  insolvent.    No 
contract,  purporting  to  be  a  contract  of 
partnership,  was  entered  into,    but  the 
applicant  relies   upon   a   written  agree- 
ment made  on  the  7th     of     February, 
1903,   as  virtually  establishing     such     a 
partnership.    The  material  ^rtions     of 
the  agreement  are  the  following :    '  The 
said  Auret  has  advanced  the  sum  of  £300 
t«)  the  said  Davison,  who,   as  owner. of 
tho  tailoring  business  heretofore  earned 
on  in  Queen's  Town  by  John  Ryan,  ac- 
knowledged to  have  received  the  amount 
which  is  to  be  utilised  by  him  for  the 
purposes  of  the  said  business.    The  said 
Davison  shall  manage  and  carry  on  the 
said  business,  and  keep  proper  books  of 
account.      In  consideration  of  the  eajd 
sum  so  advanced  by  the  said  Auret,  the 
said  Davison  shall  pay  for,  and,  instead 
of   interest,  one-half   of  the  net  profits 
of  the  said  business,  such  a  divnion  of 
the  profits  to  be  made     every     year, 
reckoned  as  from  the  Ist  February,  1903. 
The  said  Auret,  or  his  lawful  nominee, 
shall  at   all  reasonable  times   have   tree 
access  to  the  books  of  the  said  business. 
As  soon  ss  the  said  Davison  shall  assume 
ijersonal  supervision  of  the  said  business 
and   for  that   purpose  leave  hia  Pj^went 
situation,  then  and  from  such  date,  he 
shall  be  entitled  to  £20  a  naonth,  which 
sum  shall  be   dedwjted  from   the,  ^tob^ 
profits  of  the  business  before  a  a;vwi<»i 
Is  made.      The  said  Davison  shaU  have 
the  option  of  repaying  the  said  sum  of 
£300  on  the  Slst  January,  1906,  wm*  o« 
such  payment  the  share  in  half  of     the 
profitsof  the  said  Auret  shall  .cease,   it 
being  conditioned   that   the   said   Auret 
shall  be  entided  to  such  half-share  of  the 
profits  until  the  amount  be  paid  him. 
The  respondent's  counsel  contends  that 
this  agreement  amounts  to  no  more  than 
a  loan  by  Auret   to   Davison,   but  it    la 
remarkable  that  no  time  is  fix<»d  for  the 
repayment  of  the  £300      advanced      bv 
Auret.      The  money  was  advanced  with 
the  distinct  object  of  being  utilised    for 
the  purposes  of  a  business  to  be  carried 
on    by  Davison  for  the    joint  .profit    of 
himself  and  Auret,  and  the  option  is  left 
to   Davison  of     repaying      the      money 
on  the  3lBt  of  January,  1906.     Whether 
Davison  paid  the  money  on  that  date, 
or  postponed  the  payment  until  a  later 
date,  Auret  waa  to  be  entitled  to  his  half 
share  of  the  profits  until   the   date    of 


"CAPB  TtMES"  LAW  REPORTS. 


2S 


ackul  p&ymeoi.     The   duties  were  im- 
poeed  on  DaTiBon  of  managing  and  oar- 
Tj^g  on  the  bmineu,  and  kee^nng  pro- 
pet  Dooks  of  acxx>ani,   in  consideration 
of  which  he  was  to  reoeive  an  allowance 
of  £20  a  month,  to  be  deducted  from  the 
groB  profits,  and  the  right  was  reeerred 
to  Auret  or  his  nominee  to  have  free  ac- 
cess to  the  books  of  the  said  business, 
tlpon  the  evidenoe  before  the  Court,  the 
contract  thus  entered  into  would  appear 
to  be  one  of  partnership,  and  not  of  loan. 
If  a  loan  had  been  intended,  there  surely 
would  have  been  some  provision  enaUing 
the  lender  to  recover  back  the  amount 
of  his  loan.     Supposing  that  Aurot  be- 
came   dissatisfied    with    the   manner   in 
which  the  business  was  carried  on,  would 
be  be  bound  to  wait  until  Darison  chose 
to  repay  the  loan   before  he  could  lay 
cUim   to  the  capital   siun  advanced  by 
himT    Unless  he  were  a  partner  with  the 
ordinary  right  to  claim  a  dissolution  after 
due  notice,  he  would  in  such  a  case  seem 
to  have  no  remedy  under  the  agreement. 
Supposing,   further,   that  without     any 
fstut  on   the   part  of   Davison,      heavy 
losses  had  been  sustained  in  the  business, 
with  the  result  that  the  whole  of  the 
caphal  advanced  by  Auret  had  been  lost, 
would  Auret  have  been  entitled  to  claim 
repayment  of   the   capital?    The   agree- 
ment confers  no  such  right  on  him  in 
express  terms,  and  no  such  right  can  be 
fairly   inferred   from   the   terms   of   the 
agreement.     The  decision  of  this  Oourt 
in  the  oasti  of    Watcrmcyer  v.    KerdeVa 
Trustees  (3,  Menz.,  424),  has  i)een  relied 
upon^  by    the    respondent's    counsel    as 
negativing  the  existence  of  a  partnership 
in  the  present  case,  but  no  definite  rule 
was  there  laid  down  by  the  majority  of 
the  Court  which  can  assist  in  the  deter- 
miuation  of  the  pi^esent  case.  The  compli- 
cated terms  of  that  agreement  differed 
very  materially  from  the  simple  terms  of 
the^  agreement  now  under  consideration, 
which  may  be  construed  by  the  aid  of 
the  elementary  principles  of  the  law  of 
partnership.     Wnat,   then,   is  meant   bv 
a  partnership.    According  to  Voet  (17,  2, 
1).   it  is   contractus  super  re  honesta  de 
lucri    ft    damni    communiane.      Literally 
trani^lated,  this  means  that  it  is  a  **  con- 
tract concerning  an  honest     transaction 
for  the  sharing  of  profit  and  loss,'*  but 
freely  translated,   the  author's  meaning 
seems  to  be  that  it  is  "  an  agreement  be- 
tween two  or  more  persons  for  the  pur- 
pose of  carrsring  on  a  lawful  undertak- 
ing, and  dividing  its  profits  and  losses 
between   them."      The  definition   given 
by    Pothier   (Partnership),    and   followed 
by  Van  der  Linden  (Institutes,  B  4,  ch.  1, 
11),  is  that  *'  partnership  is  a  contract  by 
which  two  or  more  persons  put  or  en- 
gage to  put  something  in  common  in  or- 
der to  make   therefrom  in  common   an 
honest  profit  with  the  mutual  obligation 
of  accounting  to  each  other."  The  differ- 
ence between  the  two  definitions  is  that 
Yoet   says   nothing   about   putting   any- 
.thing  into  a  common  stock,  or  about  the 


parties  having  to  account  to  each  other, 
and  that  Pothier  says  nothing  about 
sharing  of  losses,  but  when  they  proceed 
to  enlarge  upon  their  respective  defini- 
tions there  is  no  substantial  difference 
between  them.  They  are  agreed  that 
either  labour  or  effects  or  both  may  be 
oontributed  by  the  partners,  that  he  who 
carries  on  the  business  must  render  an 
account  of  his  administration,  and  that 
generally  each  of  the  partners  must  bear 
the  same  proportion  of  the  losses  of  the 
partnership  as  he  ought  to  have  of  its 
rnofits,  if  it  is  prosperous.  Voet  (17,  2, 
o)  admits  that  this  last  rule  may 
be  evaded  by  a  special  stipulation 
to  the  contrary,  and  that  it  may  be 
legallv  agreed  that  one  of  the  partners 
shall  have  a  share  of  the  profit,  and  not 
bear  any  part  of  the  loss,  and  he  adds 
that  such  an  ajg^reement  would  not  trans- 
gress his  requirement  of  community  of 
loss,  beoause  fhere  can  be  no  profit  until 
the  loss  has  been  deducted.  Whether 
this  explanation  be  perfectly  satisfactory 
or  not,  it  is  clear  that  he  did  not  in- 
tend, under  his  definition  of  partnershi]., 
to  exclude  cases  where  community  of 
loss  is  not  expressly  agreed  upon.  The 
main  test  in  every  case  is  whether  th  «ro 
is  an  a^preement  to  share  profits,  uns'j- 
<v>Ri,)unied  bv  circumstances  showing 
that  partnership  was  intended  to  be  e\' 
eluded.  In  the  present  case,  the  word 
loan  is  not  used  at  all  in  the  writtc^n 
agreement,  but  even  if  it  had  been  so 
used,  the  Court,  as  stated  in  Treasurer- 
General  v.  LippeH  (1  Juta,  302 ;  2  Juta, 
176)  f  would  look  to  the  real  traniac 
tior  between  the  parties,  and  not  to 
what  they  have  caUed  it.  The  tendency 
ai  the  pri;i!ent  day  would  be  to  designate 
an  advance  for  the  purposes  of  a  partner- 
ship business  as  a  loan,  in  the  same  way 
as  under  the  strict  laws  against  usury, 
the  tendency  formerly  was  to  disgtiise 
a  loan  at  usurious  interest  as  a  partner- 
ship. I  do  not  feay  that  the  disguise 
was  fraudulently  aaopted— for  the  state- 
ment in  Davison's  affidavit  may  be  cor- 
rect that  the  reason  for  AureVs  namo 
not  being  disclosed  was  because  of  his 
being  in  the  Civil  Service — ^but  I  do  say 
that  the  agreement  includes  the  essen- 
tial requisites  of  a  partnership,  and  that, 
unless  the  actual  aealings  between  the 
parties  rebut  the  presumption  arising 
out  of  the  terms  of  the  agreement,  the 
Court  will  have  to  hold  that  a  partner- 
ship did  eAist  at  the  date  of  sequestra- 
tion. An  opportunity  will,  however,  be 
given  to  both  parties  to  produce  further 
evidence  on  this  point  before  the  Re&i- 
dent  Magi.strate.  I  have  made  no  refer- 
ence to  the  English  law,  because  the  c&re 
must,  of  course,  be  decided  under  our 
law;  but  it  is  sa1isfact<ory  to  find  that 
there  is  no  substantial  difference  in  the 
tests  to  be  applied  in  order  to  ascertain 
whether  a  rwrtn^rship  exists  or  not.  Ir. 
the  case  of  Mollivo  v.  Court  of  Wards 
(4  L.R.P.C,  419),  it  was  held  by  the 
Privy  Council  that,   although  the  right 


24 


"CAPE  TIMES"   LAW  REFORM. 


to  purtioipate  in  the  profits  of  a  trade  is 
a  etronff  test  of  portuenhip,  and  ther<^ 
may  be  oaces  where,  froci  such  percep- 
tion alooe,  it  ma?  as  a  presumption,  not 
of  law,  but  of  faot,  be  enforced;  yet, 
whether  that  relation  does  or  does  not 
exist,  must  depend  on  the  real  int«;n- 
tiou  and  contract  of  the  parties.  In  that 
case,  a  Ieu£;thy  agreentent  in  writ^u< 
was  relied  upon  to  establish  the  partner- 
ship, but  the  Judicial  Committee,  li'Ok- 
ing  at  the  wholi*  scope  of  the  agreeniont, 
came  to  the  conclusion  that  the  primarr 
object  was  to  give  security  to  the  al- 
leged partner,  an  Indian  Rajah,  as  a 
creditor  of  the  persons,  Wateons  by 
name,  who  carried  on  the  trade,  and  not 
to  make  him  a  partner.  The  agree- 
ment differed  in  several  particulars  from 
the  present  one,  the  most  Important  be- 
ing that  all  available  proceeds  bad  to  be 
handed  to  the  Rajah  as  received  by  the 
Watsons  for  the  purpose  of  extinguishing 
the  debt  due  to  him.  The  Rajah 
did  not  advance  a  fixed  sum,  as  was 
done  by  Auret,  and  as  is  usual  in  ordin- 
ary partnerships,  but  he  stipulated  that 
for  such  advance  indefinite  in  amount 
as  he  had  already  made,  and  should  from 
time  to  time  make,  he  should  have  cer- 
tain securities,  the  chief  security  being 
th^  right  to  recoup  himself  out  of  the 
proceeds,  as  they  were  handed  to  him. 
The  option  was  certainly  not  left  to  the 
Watsons,  as  it  was  to  Auret,  of  paying 
the  advances  when  it  suited  them  to  put 
an  end  to  the  agreement  for  sharing  the 
profits  of  the  business.  **  The  Watsons," 
said  their  lordships,  "evidently  wished 
the  Rajah  to  continue  his  advances,  and 
for  that  purpose  were  willing  to  ^ve 
him  the  largest  security  they  could  oner ; 
but  a  partnership  was  not  contemplated, 
and  the  agreement  is  really  founded  oii 
the  assumption  not  of  community  of 
benefit,  but  of  opposition  of  iuteresta." 
In  the  fiubsequent  case  of  Pooley  v. 
Driver  (L.R.  5,  Ch.  Div.  468),  Jeesel, 
M.R.,  held  that  in  the  absence  of  some- 
thing in  the  contract  to  show  a  contrary 
intention,  the  right  to  share  profits,  as 
profits,  constitutes,  according  to  English 
law,  a  partnership.  The  agreement  in 
that  case  contained  a  number  of  ingeni- 
ous provisions  to  enable  the  dormant 
partner  to  get  a  share  of  the  profits, 
without  contributing  to  the  losses,  but 
the  general  tenour  of  the  Master  of  the 
Rolls'  instructive  judgment  satisfies  me 
that  he  would  have  held  that  an  agree- 
ment like  the  one  in  question  creates  a 
partnership,  unless  some  other  relation 
could  be  shown  from  the  surrounding 
eircumstanoee.  Both  these  English 
cases  were  referred  to  in  the  judgments 
of  the  judges  in  the  Transvaal  case  cf 
Anderson  v.  Boyce  (2,  OflF.  Reports,  266), 
where  it  was  held  that  the  mere  fact 
that  the  lender  stipulates  for  a  uhare  in 
the  profits  acquired  with  the  money  lent, 
instead  of  interest,  does  not  make  him 
a  partner  of  the  borrower.  It  was  there 
sought  to  have  a  judgment  which  had 


been  obtained  against  the  borrower  and 
his   known   partner  declared  executable 
as   against   the   lender,    on   the  ground 
that  oe  was  a  partner ;  but  at  the  most 
he  would  have  been  an  anonymous  part- 
ner against  whom  the  creditors  could  not 
have  proceeded  in  respect  of  debts  m- 
curred  in  the  name  of  someone  else.  The 
Court  there  held  that  a  partnership  did 
not  exist,  but  there  was  no  written  agree- 
ment,  as  there   is  in  the  present  case, 
containing  provisions  which  support  the 
presumption  of  partnership  arising  out  of 
a  participation  m  profits.    At  the  date  of 
the  sequestration  of  Davison's  estate,  th« 
agreement  was  still  running  and  in  force. 
The  claim  of  £439  consists  mainly  of  the 
capital  sum  of  £300  advanced,  and  the 
half  share  of  profits,  which»  according  to 
a  statement  submitted  by  Davison  to  the 
respondent  in  March,   i904,   had   up  to 
that  date  been  earned.  In  May,  1904,  the 
respondent    issued    a   summons    against 
Davison  for  the  amount  of  such  capital 
and  profits,   and  judgment  was  accord- 
ingly given  in  default  of  appearance  on 
the  ,part   of    Davison.      In   July,    1904, 
Davison's  estate  was  sequestrated  on  his 
petition,  which  stated  that  his  liabihtie? 
were  £1,106  and  his  assets  £822 ;  but  the 
applicant,  as  trustee,  is  doubtful  whether 
tne  assets  will  realise  one-fourth  of  the 
amount  set  forth  in  the  schedules.    The 
Court  has  no  information  before  it  as  to 
whether  the  account  rendered  by  Davi- 
son   in   March,    1904,    which    showed    a 
profit  of  £283,  was  a  correct  statement, 
or  whether,  at  the  date  of  the  seques- 
tration,   the   tailoring   business   had   re- 
sulted in  a'profit  or  in  a  loss.    Nor  does  it 
cppear  from  the  afiiduvits  whether  Davi- 
son    advanced     any     capital      in      ad- 
dition      to       contributing       his       time 
and       lab.>ur       to      the       management 
and     supervision     of  the  business.       If, 
after  allowing  for   liabilties  laWully   in- 
curred by  Davison  on  behalf  of  the  busi- 
ness thero  bad,  at  the  date  of  eetjuestra- 
tion.  been  an  actual  Ices,   absorbing  the 
capital  advanced  by  Auret,  and  the  pro- 
fit<)    alleged  to  have  been    made    up    to 
Maireh,  there  is  no  express  provision  in 
the  agreement  entitling  Auret  to  claim 
more  than  the  amount  of  business  assets 
left  in  Davison's  hands   after  deduction 
of  the  remaining  business  liabilities.     It 
is  clear  that  Auret  can  have  no  greater 
claim   against  the  insolvent   estate  than 
he  would  have  had  against  Davison  if, 
in  the  absence  of  insolvency,  Aut«t  had 
in  July  sought  to  enforce  his  judgment 
debt.    From  the   amount    of   that    debt 
would  have  been  deducted  anv     lawful 
debt  capable  of  being  pleaded   in  com- 
pensation (Voet,    16,  2,   2).       It  will  be 
necessary,  therefore,  before  finally  decid- 
ing the  case,   to  remit  the  same  to  the 
Resident  Magistrate,  for  further  proof  in 
terms  of  the  Isst  proviso  to  the  ^th  sec- 
tion of  the  Insolvent  ordinance.     Before 
stating  the  terms  of  the  reference,  how- 
ever.  I  have  to  make  a  few  general  ob- 
servations upon  some  of  the  arguments 


•*CAPBI  TIMES'*  LAW  AePORTB. 


27 


£x  parte  TAH  wyk  akd  othebs. 

I£r.  W.  V.  Buch«naik  &ppl^^  ^^^  leave 
oa  behalf  of  the  petitioner's  to  sell  cer- 
tain pioperty  veated  in  the  Dutch  Re- 
fonned  Church,  at  Adelaide.  The 
Cfanrch  owned  the  square  on  which  the 
church  was  built.  At  a  Congregational 
meeting  of  the  Church,  held  on  June 
18,  the  conaifitorj  was  instructed  to  sell 
a  number  of  erven  on  the  Churdi-square 
and  utilise  the  funds  for  the  church. 
The  Registrar  wanted  an  order  of 
Court,  because  the  ground  in  question 
wsa  marked  on  the  diagram  as  a  square. 

De  Villiers,  C.J.,  said  he  would  grant 
a  rule  calling  on  all  ooncernod  to  show 
eauee  on  the  l^t  February  why  an  order 
should  not  be  made  as  prayed,  the  rule 
to  be  published  twice  in  a  Dutch  news- 
paper circulating  in  the  district,  and 
twice  in  an  Snglish  paper  circulating  in 
tho   district. 


Kx  parte  JMP£Y  asd  ANOTHER. 

Mr.  Fremont  moved  for  an  order 
directing  the  winding  up  of  the  Amoy 
Brick  Syndicate,  a  company  which  was 
unable  to  pay  its  debts,  and  which  was 
indebted  to  the  estate  of  £mile  van 
Heerden  in  a  mortgaspe  bond  for  £1,000, 
and  to  petitioner,  who  was  chairman, 
in  his  private  capacity,  in  £314.  The 
IMviaioDal  Council  valuation  of  the  farm 
held  by  the  syndicate  was  £1,800,  and 
the  liabilities  amounted  to  £1,979.  It 
was  impossible  to  get  a  quorum  of  share- 
hcddeiB  together.  It  was  to  the  best 
interests  of  the  company  that  official 
liquidators  riiould  oe  appointed,  and 
the  names  of  Harry  Gibson  and  £.  Sj- 
fret  had  been  suggested,  with  Fair- 
bridge,  Arderne  and  Lawton  as  at- 
torneys. 

Judgment  as  prated,  the  gentlemen 
mentioned   being  appointed   to  act. 


NEKDUAM   V.  NE'EDHAM. 

Mr.    Sutton    moved  on  behalf  of   tho 

Sstitioner,  Mary  Ann  Needham,  uf 
bsen'atory-road,  for  alimony.  The 
parties  were  married  in  community  of 
property  in  1893,  and  there  were  four 
children  ^  the  marriage.  Petitioner's 
attorneys,  acting  on  instructions,  wroto 
to  the  respondent  suggesting  that  a 
inivate  separa4non  a  men*a  et  thoro  bo 
arrived  at,  as  it  was  absolutely  im- 
possible to  live  with  the  respondent. 

De  Villiers.  C.J.,  eranted  an  order 
for  the  payment  of  £25  to  the  appli- 
cant's attorneys,  to  enable  the  applicant 
to  proceed  with  the  action,  tine  sum 
of  £%  to  be  naid  to  the  applicant  per 
month  towards  the  maintenance  of  ner 
children,  pending  an  action,  costs  to 
stand  over. 


Ex  parte  B0BBBT80K  AND  ANOTHEB. 

Mr.  Close  moved  for  an  order  sanc- 
tioning a  certain  compromise  with 
certain  croditois  ol  a  company  to  whom 
the  petitioners  were  official  liquidators. 

Granted. 


WILSOK  AND  CATUCAST  V.  YOUNG. 

Mr.  p.  Jones  moved  for  an  order 
calling  on  the  defendant  to  show  oau»o 
why  an  order  should  not  be  granted  for 
the  attachment  of  the  person  of  re- 
spondent for  contempt  of  Court.  On 
the  15th  December  the  respondent  was 
ordered  to  deliver  up  certain  house- 
hold ptremises  at  Observatory,  but  he 
had  failed  to  do  so.  The  respondent 
forcibly  took  poeseasiou  of  the  premi- 
ses, and  the  Court  ordered  him  to  re- 
store possession. 

The  respondent  appeared  in  person, 
and  pointed  out  that  he  had  trouble 
in  getting  rid  of  his  tenant.  The  ap- 
plicant, Wilson  had  refused  to  give  him 
specifications  to  be  examined  by  a  quali- 
fied man.  The  i)lumbing  work  had  to 
be  redone.  The  job  was  not  finished 
until  it  had  been  passed  by  an  architect; 
and  the  engineer  at  Mowbray. 

The  respondent  was  ordered  to  give  up 
possession  in  terms  of  the  order  of  Court 
of  the  15th  December,  on  or  before  28th 
February,  and  in  the  meantime  the  ap- 
plicants to  proceed  with  all  despatch 
with  their  action  to  recover  iihe  amount 
claimed,  costs  of  the  application  to  abid» 
the  result  of  the  action. 


DBUMMOND  T    JONES. 

This  was  an  application  for  leave  to 
ia.p{)eal  to  the  Supreme  Court  again.st 
a  judgment  of  Justice  Lange,  in  the 
High  Court  of  Griqualand  West.  Judjf- 
ment  was  reserved,  and  by  the  time  it 
wa6  delivered  applicant  wee  away  on 
business,  and  the  time  for  apjieal  had 
elapsed.  Applicant  {w%o  appeared  in 
person)  proceeded  to  relate  seve- 
ral criminal  charges  that  had 
been  brought  against  him,  each  of 
wfadch  had  been  witl^awn,  and  the 
action  on  behaljf  of  the  police  accounted 
for  the  delay  in  bringing  the  appeal. 
He  based  his  application  on  the  Act  for 
the  Better  Admmistration  of  Justice. 
Applicant  then  proceeded  to  read  a 
petition  whic^  he  was  about  to  forward 
to  His  Majesty  the  King,  for  protection 
against  i;he  inircmitting  persecution  of 
the  Cape  Police.  In  two  of  the  best 
years  of  bis  life  he  had  been  worried 
by  the  poKce,  and  he  prayed  of  His  Ma- 
jesty for  protection,  so  that  he  could 
go  through  the  Qolony  as  a  loyal  British 
subject  without  fear. 

[De  VilKers,  C.J, :  Have  you  i>aid  the 
amount   of   the  judgment?] 

AppHoant :  I  have  not  been  asked  for 
it. 


«< 


CAPE  TIMES"  LAW  REPORTS. 


nuule  appiioftble  to  a  case  like 
Uie  present,  but  that  could  only 
be  done  by  treating  the  words  *'  if  in- 
■olrent"  as  a  misprint  for  'Sf  solvent" 
The  proviso  would  then  read  thus: 
*'  Provided,  however,  that  no  partner, 
if  solvent,  and  no  trustee  of  the  insol- 
vent estate  of  any  partner  shall  under 
any  oiroumstanoeB  rank  for  the  amount 
of  any  such  claim  for  contribution  upon 
the  msolvent  estato  of  any  otoer 
partner  in  competition  or  ooncurrence 
with  any  of  the  creditois  of  the  company 
claiming  u^n  any  such  last-mentioned 
estate,  which  creditors  are  hereby  de- 
clared to  be  entitled  to  be  paid  in  pre- 
ference and  priority  to  any  such  partuer 
or  trustee."  This  is  probably  what  the 
Legislature  intended  to  enact,  and  I  find 
that  in  the  fair  copy  of  the  Ordinance 
fiied  in  the  Registrar's  office  the  first 
syllable  in  (he  word  "  insolvent "  has 
l^een  struck  through  in  ink,  but  there 
are  no  initials  or  anything  else  to  show 
that  the  amendment  was  made  by  au- 
thority of  the  legislature.  The  re- 
spondent b  solvent,  and  would  not  be 
affected  by  the  proviso  as  it  appears  m 
the  Statute  Book,  and  the  adoption  of 
the  amendment  suggested  by  me  would 
not  materially  affect  the  decision  of  the 
present  case.  As  to  the  last  proviso  to 
the  34th  section  it  only  adds  to  the  ob- 
scurity of  the  section  and  offers  no  assist- 
ance in  the  elucidation  of  the  law  or  in 
the  decision  of  the  present  case. 

The  Court  will  remit  the  case  to  the 
Resident  Magistrate  with  directions  to 
obtain:  (1)  Production  of  all  correspond- 
ence that  may  have  passed  between 
Auret  and  Davison  relative  to  the  tailor- 
ing business  carried  on  by  the  latter; 
(2)  any  relevant  oral  evidence  that  may 
be  tendered  on  either  side  upon  the 
questions  at  issue  with  liberty  to  the 
opposing  party  to  cross-examine  the  wit- 
nesses; (3)  production  of  the  statement 
submitted  by  Davison  in  March,  1904, 
'  and  showing  an  alleged  profit  of  £283 
lis.  6d. ;  (4)  an  account  prepared  by 
•  some^  competent  person,  and  sworn  to 
by  him  showing  (a)  the  capital,  if  any, 
paid  into  the  business  by  Davison ;  (b) 
the  actual  amount  and  dates  of  advances 
made  by  Auret;  (c)  tne  sums,  if  any, 
obtained  from  the  business  by  Auret, 
and  the  sums  drawn  by  Davison  as 
salary,  as  his  share  of  the  profits  and  for 
his  private  purposes ;  (d)  toe  profits  and 
'  losses  maue  and  incurred  between  the 
date  of  the  agreement  and  the  date  of 
sequeHration;  (e)  the  value  of  the  assets 
-  of  the  business  and  the  value  of  assets 
not  belonging  to  the  business  at  the  date 
of  8<o(]uestration ;  (f)  the  amount  of  the 
liabilities  of  the  business,  and  the 
amount  of  the  other  liabilities 
of  Davison  at  the  date  of 
sequestration;  and  (g)  generally  the 
balance  of  either  profit  or  loss  of  the 
business  at  the  date  of  sequestration. 
The  information  thus  obtained  will  be 
transmitted      to   the  Registrar   of   this 


Court,  and  the  costs  of  this  application 
will  stand  over. 

[AppKoaoit'e  Attorneys :  Bilberbauer, 
Wahi  and  Fuller;  Respondente'  Att4>r- 
neys :    Walker   and    Jacobsohn.] 


DUTCH  REFOBMED  CHURCH,  CAPE  TOWX 
V.  CAPE  TOWN  COUNCIL. 

Mr.  M.  de  Villiers  was  for  tiie  appli- 
cants, and  Mr.  Close  for  the  respon- 
dvnts. 

Mr.  M.  de  Villiers  moved  to  have  a 
(*ertain  award  in  the  expropriation  of 
certain  property  at  the  instance  of  tho 
respondents  made  a  rule  of  Court.  wiUi 
costs.     Mr.  Close  appeared  to  consent. 

Award  made  a  Kule  of  Court,  with 
costs. 


Ejc  parte  NEL. 

Mr.  Du  Toit  moved  for  the  appoint- 
ment of  two  conimissiouers,  one  at  Rob- 
ertson and  one  at  Cape  Town,  to  take 
the  evidence  of  witnesses  in  the  insol- 
vent estate  of  Woolf  Cohen,  of  Rob- 
ertson. Counsel  suggested  the  Resident 
Magistrate  of  Roberttion  ea  one. 

Application  granted,  the  Resident 
Magistrate  to  take  evidence  at  Robert- 
son, and  Mr.  P.  Jones  to  act  at  Caijo 
Town. 


SOX  DOM    V    ROM  DOM. 

Mr.  J.  £.  R.  do  Villiers  moved  for 
leave  to  sue  the  respondent,  petitioner's 
wife,  by  edictal  citation,  for  divorce  in 
forma  pauperis.  The  parties  were  mar- 
ried in  Johannesburg,  in  November, 
1896,  in  community  of  property.  In 
1896,  tho  respondent  d<»ertea  the  peti- 
tioner, took  up  her  abode  with  another 
man,  and  in  1902  gave  birth  to  a  child, 
of  which  the  applicant  was  not  the 
father. 

De  Villiers,  C.J.,  sadd  he  would  firtft 
grant  a  rule  calling  on  tho  reepondent 
to  show  oause  why  the  plaintiff  should 
not  be  allowed  to  sue  in  forttia  jmu- 
pcri»,  Toturnable  February  1,  personal 
service  to  be  effeoted. 


/>  pa  fit'  OOSTHU1S5BN. 

Mr.  P.  JoiR^  moved  for  an  order  au- 
thorising the  transfer  of  certain  |)r<>- 
perty.  The  matter  had  been  before  tho 
MaMer,  and  his  report  was  favourable. 
In  the  joint  will  of  petitioner's  parents, 
a  farm,  2.363  morgen.  at  Aliwal  North, 
waff  bequeathed  specially  to  the  respon- 
dent, provided  he  paid  into  the  estate 
£1,000  within  one  year  of  the  death  of 
his  father. 

Granted 


"CAPE  TIMES"   LAW  REPORTS. 


» 


MA&AIB  V.  6BLDKNHUT8. 

Mr.  Sutton  moved  for  proTisiooal 
wotence  on  two  mortgage  lK>nds,  and 
that  the  property  be  declared  execut- 
able. 

Granted. 


QRAAFP  T.  KALWKRISKY  AND  OTHKR& 

Mr.  Van  Zyl  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £2,500, 
with  interest  at  6  per  cent,  from  Ist 
Julv,  1904.  and  that  the  property  be 
declared   executable. 

Granted. 


GRAAKT  V.  GOW  AND  OTHKUS. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  for  £5,300,  lens  £750,  paid,  due 
on  a  mortgage  bond,  with  6  per  cent, 
interest  from  1st  July,  1904,  and  that 
the  property  be  declared  executable. 

Granted  against  the  defendant^!  in 
their  capacity  as  tnijitee<(. 


WOODHBAD,  PLANT  AND  00.  V.  VAN 
REENEN. 

Mr.  P.  Jones  moved  for  judgment  on 
a  promissory  note  for  £62  48.  3d.,  with 
interest  and  costs. 

Granted. 


COLONIAL    OOVKBNMRNT    V.    VAN 
BENflBCBO. 

Mr.  P.  Jones  moved  for  provisional 
ieoteiice  for  interest  on  a  bond  for  £135 
3s.  4d.  and  £14  8s.,  with  costs. 

Granted. 


MENNK  V.  VAN  DSR  LINDE. 

Mr.  GotMshe  moved  for  provisional 
sentence  on  a  jpromissory  note  for  £415 
14s.  8d.,  with  mterest  and  costs. 

His  Lordship  said  a  consent  to  judg- 
ment had  been  put  in. 

Judgment  was  given  in  terms  of  the 
conwnt. 


BLACK  V.  HUBWITZ. 

Mr.  Pyemont  moved  for  provisional 
sentence  on  a  promissory  note  for  £30, 
with  interest  and  costs.  ! 

The  defendant  appeared  in  court,  and 
said  he  never  received  value  for  the 
amount. 

Hia  Lordship  inatructed  him  to  put  Lis 
defence  on  affidavit,  and  the  case  to 
come  on  to-morrow  morning. 

Postea  (Februao^   16th). 

Defendant  appeared  in  person. 

An  affidavit^  had  been  filed  by  the 
defendant  stating  that  he  engaged  the 
plaintiff  to  prepare  plans  of  certain 
Duilding,    and  it    was  agreed    that  the 


plaintiff  should  get  the  plans  passed  and 
approved  by  the  Town  Council.  The 
Council  only  passed  the  plans  proviaicMi- 
aily.  He  verily  believed  the  plans  had 
not  bc^  finally  parsed  by  the  Council. 
He  said  that  plamtiff  had  since  agreed 
to  accept  a  lump  sum  of  £80.  He  gave 
plaintiff  £50,  and  a  promissory  note  for 
£30.  Until  the  plans  were  finally  pass- 
ed, he  oould  not  proceed  with  the  build- 
ing, and  he  was  not  prepared  to  pay 
the  promieeory  note. 

An  answering  affidavit  by  the  plaintiiT, 
Wm.  Black,  said  that  there  was  no  spe- 
cial stipulation  in  their  terms  that  the 
glans  should  be  approved  by  the  City 
louncil.  The  defendant  knew  that  the 
plans  were  passed  provisionallv,  and 
agreed  to  the  conditions  specified  by  the 
Council  na  to  the  frontage  in  Sir  Lowry- 
rcad,  and  Dorset-street.  The  plans  had 
been  returned  to  deponent  duly  ap- 
proved, subject  to  the  defendant  carry- 
ing out  his  undertaking  with  the  Coun- 
cil. Defendant  subsequently  said  that 
he  had  found  a  diffioulty  in  the  financ- 
ing of  the  scheme,  and  that  he  did  not 
propose  to  go  on  with  the  building.  De- 
ponent believed  that  defendant  wished 
to  escape  hia  liability  for  the  prot>aration 
of  the  plans.  Further  affidavits  by 
Owen  C.  Ludolph,  employed  by  the 
plaintiff  to  prepare  the  plans,  and  Cecil 
E.  Bradfield,  of  plaintiff's  attorneys, 
were  read  by  counsel. 

An  answering  affidavit  by  the  defend- 
ant was  read. 

Buohansn.  J. :  In  this  case  the  plain- 
tiiff  asks  for  provisional  sentence 
on  a  promisory  note.  The  de- 
fendant says  that  this  promissory 
note  w«£  given  in  part  payment 
for  preparing  certain  plans,  the  plain- 
tiil  being  an  architect,  and  that  these 
plans  were  to  be  submitted  to  the  Town 
Council,  and  approved  by  them.  There 
h  a  great  deal  of  force  in  the  defend- 
ant's contention  that  an  architect  is  not 
t.!  be  paid  for  plans  which  are  futile  and 
useless,  but  they  must  be  such  plans  as 
would  be  adopted,  and  some  benefit 
would  accrue  to  the  person,  who  has  the 
plans  made.  It  is  common  cause  that 
these  plans  were  prepared  and  submitted 
to  the  Town  Council,  and,  according  to 
Mr.  Black's  and  his  assistant's  affidavits, 
they  were  approved  by  the  Town  Coun- 
cil, and  the  only  question  in  dispute  was 
th')  question  of  blocking  the  building  on 
the  land.  The  plaintiff  has  done  his 
work.  He  has  prepared  plans,  they  are 
plans  which  have  been  approved,  and 
the  ordj  remaining  question  is  whether 
tho  derondant's  plans  are  in  the  posses- 
sion of  the  defendant  or  the  plaintiff. 
The  document  produced  by  plaintiff 
supports  his  statement  that  he  handed 
the  plans  to  defendant^  and  the  defend- 
ant has  nothing  to  support  his  state- 
ment that  he  handed  back  the  plans  to 
plaintiff.       Provisional  sentence  will   be 

S anted  as  prayed.      Mr.  Hurwits,  if  he 
:es,  may  go  mto  the  principal  ease, 


28 


"CAPE  TmES"   LAW  REt^ORTS. 


[Lq  Villiere,  C.J. :  Could  you  find 
Becurity?] 
I  think  I  could  manage  that 
De  Villiers,  C.J.,  Baid  the  applicant 
would  have  leave  to  appeal  to  the  Su- 
preme Court  if  -within  three  weeks  from 
this  d»te  he  gave  securgy  to  the  Regis- 
trar for  the  payment  of  the  amount  of 
the  judgment  of  the  High  Court,  and 
the  oo9t6  awarded  by  that  judgment. 


SUPREME  COURT 


[Before  the  Hon.  Sir  John  Buchanak.] 


ADHIStlONS. 


(       1900. 
\  Feb.   iBt. 

Mr.  P.  Jones  moved  for  the  admission 
of  Frederick  Gl anvil ie  Stapleton  as  an 
advocate. 

Application  granted,  and  oath  admin- 
istered. 

Mr.  J.  E.  R.  de  Villiers  moved  for  the 
admission  of  Arthur  Edward  Carlisle  as 
an  advocate. 

Application  granted,  and  oath  admin- 
istered. 

Mr.  Gardiner  moved  for  the  admit: - 
sion  of  Arthur  Hallam  Davidson  as  an 
attorney-at-law.        Mr.      Upington      ap- 

g eared  to  oppose  on  behaii  of  the  Law 
ociety. 

Mr.  Gardiner  said  the  matter  had 
previously  been  before  the  Court,  when 
it  was  pointed  out  by  the  Law  Society 
that  the  applicant  had  only  been  ad- 
mitted in  Scotland  as  a  law  agent  in 
the  Sheriff's  Court,  and  certain  allega- 
tions were  made  against  him  bv  the 
Law  Societv  that  he  held  himself  out 
to  be  an  attorney  of  the  Supreme  Court 
Ijefore  he  was  admitted.  There  was  now 
a  certificate  from  Scotland  that  he  waf 
still  on  the  roll  of  law  agents.  Tlie  ap- 
plication would  now  be  for  admission  to 
the  Circuit  Court. 

Mr.  Updngton  read  from  the  report 
of  Mr.  Justice  Hopley's  judgment, 
from  which  it  would  appear  that  the 
applicant  could  apply  for  admission  to 
the  Circuit  Court.,  but  there  were  still 
allegations  of  unprofessional  conduct 
aga.uist  him,  and  there  would  1x5  a  chance^ 
given  him  of  refuting  the  charges. 
Counsel  then  proceeded  to  road  an  affi- 
davit made  by  Alexander  John  Mac 
Galium,  secretary  to  the  Law  Society,  to 
the  effect  that  the  society  received  cer- 
tain information  that  the  applicant  was 
either  practising  himself  or  lending  his 
na.me  to  an  unqualified  man  at  Lady 
Grey.       Outside  the      office,      a     sign- 


board was  put  up  with  the  iDfioription, 
"  A.  H.  Davidson,  attorney  and  notary 
public/'  and  his  name  had  am)eared 
under  a  notice   in  the   **  Gazette.  ' 

Mr.  Gardiner  said  his  name  had  never 
been  struck  off  the  rolls,  nor  had  he  ever 
been  suspended  in  Scotland  or  the  Trans- 
vaal. 

Counsel  Imving  been  heard  in  argu- 
ment, 

His  Lordship,  in  granting  the  u>pli- 
cation,  said  it  had  been  clearly  laid  down 
that  a  person  in  the  position  of  the  ap- 
plicant was  entitled  to  be  admitted  as  an 
attorney  of  the  Circuit  Court.  In  Sep- 
tember the  applicant  filed  an  applica- 
tion to  be  admitted  as  m\  attorney  of 
the  Supreme  Court,  and  in  the  same 
month,  under  an  arrangement  with  Mr. 
Dell,  he  went  to  Lady  Grey  for  the  pur- 
pose of  taking  an  office.  The  appli- 
cant stated  that  the  signboard  was  put 
up  without  his  knowlwgo,  consent,  or 
instructions,  and  it  was  taken  down  at 
once  when  it  came  to  his  notice.  He 
considered,  on  the  whole,  that  there 
was  nothinjf  to  show  that  the  applicant 
had  committed  any  act  which  should 
debar  him  from  being  admitted.  There 
would  be  no  order  as  to  costs. 

Mr.  Alexander  moved  for  the  admission 
of  Mauritz  Pas(iues  George  Elliott  as  an 
attoniey-at-law  and  notarv  public. 

Application  gpranted,  and  oaths  admin- 
istered. 

Mr.  Pyemont  moved  for  the  admission 
of  Charts  Herman  Maasdorp  as  a  oon- 
vevancer. 

Application  granted,  and  oaths  admin- 
istered. 


PROVISIONAL  ROLL. 


SMITH  V.  LEVIN. 


1         1905. 

)  Feb.    Iflt. 


Dr.  Rainsford  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £1,500, 
with  interest  and  costs,  and  that  the 
property  hypothecated  be  declared 
exeoutanle. 

Granted. 


JUNKER  V.  JONES. 

Mr.   Lewis  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for    £1.000 
with  interest  at  6  per  cent,  from     July. 
1904,  and  that  the  property    be  declared 
executable,   with  costs. 

Granted. 


MOOBBEES  V.   HOFFMAN. 

Mr.  Lewis  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  m  in- 
solvent. 

Granted. 


"CAPE  TIMES''   LAW  REPORTS. 


29 


VARAIB  V.  6EI.DKNHnTS. 

Ml.   Sutton    moTed    for       proyisional 
nQience  on  two    mortgage   bonds,   and 
thit  the  property    be    declared   execut- 
ible. 
Granted. 


QIUAVP  T.  KALWERISKY  AND  OTRER& 

Mr.  Van  Zyl  moved  for  provkkmal 
KQteoce  on  a  mortgage  bond  for  £2,500, 
vith  Interest  at  6  per  cent,  from  Iftt 
Julv,  1904,  and  that  the  property  be 
dcclaied  executable. 

Granted. 


ORAAFV  V.  GOW  AND  OTirEKS. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  for  £3,300,  less  £750,  paid,  due 
OD  a  mortgage  bond,  with  6  per  cent, 
interest  from  Ist  July,  1904,  and  that 
the  property  be  declared  executable. 

Granted    against     the     defendants    in 
ibeir  capacity  as  trustees. 


WOODHRAD,  PLANT  AND  CO.  V.  VAN 
REEHEN. 

Mr.  P.  Jonea  moved  for  judgment  on 
a  promis»iry  note  for  £62  48.  3d.,  with 
interest  and  coate. 

Granted. 


COLOKIAL    OOVEHHURNT    V.     VAN 
RENSBUBO. 

Mr.  P.  Jones  moved  for  provisional 
sentence  for  interest  on  a  bond  for  £135 
3s.  4d.  and  £14  8s.,  with  costs. 

Granted. 


MENNB  V.  VAN  DER  LINDE. 

Mr.  Gntache  moved  for  provisional 
sentence  on  a  jpromisaory  note  for  £416 

n-   t'  '"^^  inteieat  and  oofta. 

tils  Lordship  said  a  consent  to  judg- 
ni«»  had  been  put  in. 

^lodgment  was  given  in  terms  of  the 
conient 


BLACK  V.  HUBWITZ. 

Mr.  Pyemont  moved  for  provisional 
■entence  on  a  promissory  note  for  £30, 

T?  ^^terest  and  costs. 

^e  defendant  appeared  in  court,  and 
■w  ne  never  received  value  for  the 
amount. 

Hh  Lordship  instructed  him  to  put  his 
owence  on  affidavit,  and  the  case  lo 
coae  on  to-morrow  morning. 

Po^  (Februaory   15th). 

Y«ondant  appealed  in  person. 

As  affidavit  had  been  filed  by  the 
defendant  stating  that  he  engaged  the 

f'iaintiff  to  prepare    plans      of    certain 
uuding,   and  it    was  agreed    that  the 


plaintiff  should  get  the  plans  passed  and 
ai^royed  by  the  Town  Council.  The 
Uouncil  only  passed  the  plans  provisicm. 
ally.  He  verily  l)elieved  the  plans  had 
not  been  finally  psfised  by  the  Council. 
He  said  that  plainti£f  had  since  agreed 
to  accept  a  lump  sum  of  £80.  He  gave 
plaintiff  £50,  and  a  promissory  note  for 
£30.  Until  the  plans  were  finally  pass* 
ed,  he  could  not  proceed  with  the  build- 
ing, and  he  was  not  prepared  to  pay 
the  promissory  note. 

An  answering  affidavit  by  the  plaiiitiif, 
Wm.  Black,  said  that  there  was  no  spe- 
cial stipulation  in  their  terms  that  the 
glans  should  be  approved  by  the  City 
louncil.  The  defendant  knew  that  the 
plans  were  passed  provisionallv,  and 
agreed  to  the  conditions  speoified  by  the 
Council  as  to  the  frontage  in  Sir  Lowry- 
road,  and  Dorset-street.  The  plans  had 
been  returned  to  deponent  duly  ap- 
proved, subject  to  the  defendant  can*}'- 
ing  out  his  undertaking  with  the  Coun- 
cil. Defendant  subsequently  said  that 
he  had  found  a  diffioulty  in  the  financ- 
ing of  the  scheme,  and  that  he  did  not 
propose  to  go  on  with  the  building.  De- 
ponent believed  that  defendant  wished 
to  escape  hLs  liability  for  the  pro|)aration 
of  the  j)lans.  Further  affidavits  by 
Owen  O.  Ludolph,  employed  by  the 
plaintiff  to  prepare  the  plans,  and  Cecil 
E.  firadfield,  of  plaintiff's  attorneys, 
were  read  by  counsel. 

An  answermg  affidavit  by  the  defend- 
ant was  read. 

Buchanan,  J. :  In  this  case  the  plain- 
tSff  asks  for  provisional  sentence 
on  a  promisory  note.  The  ^  de- 
fendant says  tha/t  this  promissory 
note  wa£  given  iii  part  payment 
for  preparing  certain  plans,  the  plain- 
ti/l  being  an  architect,  and  that  these 
plans  were  to  be  submitted  to  the  Town 
Council,  and  approved  by  them.  There 
is  a  great  deal  of  force  in  the  defend- 
ant's contention  that  an  architect  is  not 
t.-^  be  paid  for  plans  which  are  futile  and 
useless,  but  they  must  be  such  plans  as 
would  be  adopted,  and  some  benefit 
would  accrue  to  the  person,  who  has  the 
plana  made.  It  is  common  cause  that 
these  plane  were  prepared  and  submitted 
to  the  Town  Coimcil,  and,  according  to 
Mr.  Blaok's  and  his  assistant's  affidavits, 
they  were  approved  hy  the  Town  Coun- 
cil, and  the  only  question  in  dispute  was 
tb)  cjuestion  of  blocking  the  building  on 
the  land.  The  plaintiff  has  done  his 
work.  He  has  prepared  plans,  they  are 
plane  which  have  been  approved,  and 
the  only  remaining  question  is  whether 
the  defendant's  plans  are  in  the  posses- 
sion Off  the  defendant  or  the  plaintiff. 
The  document  produced  by  plaintiff 
supports  his  statement  that  he  handed 
the  plans  to  defendant,  and  tlM  defend- 
ant has  nothing  to  support  his  etate- 
ment  that  he  handed  back  the  plans  to 
plaintiff.       Provisional  sentence  will   be 

S anted  as  prayed.      Mr.  Hurwitz,  if  he 
:es,  may  go  ipto  the  principal  oaae, 


32 


"CAPE  TIMES"   LAW  REPORTS. 


been  effected  upon  two  of  the  defen- 
dants. 

Mr.  Jones  said  he  was  instructed  tha4; 
the  tiiird  defendant  was   dead. 

Order  granted. 


BILENBEBG  V.  ABBAHAMS. 

Mr.  Gutsohe  moyed  for  a  decree  of 
civil  imprisonment  ag^ainst  the  defendant 
upon  an  unsatisfied  judgment  for  £135. 

Defendant  said  that  he  owed  the 
money  on  an  acoommodation  bill  for  a 
third  person.  He  could  only  pay  £2  or 
£3  a  month.  He  was  a  cattle  dealer. 
He  made  a  larger  offer  in  December  last, 
but  received  no  reply  from  Eilenberg; 
he  waci  now  unable  to  repeat  the  offer. 
Witneus  lived  in  Lawson- street,  Kim- 
berley.  He  was  not  living  at  the  Cen- 
tral Hotel.  He  had  lost  his  money  on 
the  share  market.  He  had  been  in- 
terested in  the  turf,  but  he  had  not  done 
anything  in  ccmnection  with  it  for  eleven 
months.  He  had  come  down  from  Kim- 
berley  in  coneequence  of  the  summone; 
he  bad  travelled  second  class  at  excur- 
sion rates. 

Decree  granted,  execution  to  be  sus- 
pended ,on  payment  of  £5  a  month,  until 
the  capital  amount  has  been  discharged, 
the  first  payment  to  be  made  on  the  Ist 
March. 


MCLEOD  V.  WEBTH. 

Mr.  Gardiner  moved  for  proviMonal 
sentence  on  a  mortgage  bond  for  £500. 
with  iiiterest,  the  bond  haying  become 
due  by  reason  of  the  non-payment  of 
interest;  counsel  also  asked  for  the  pro- 
perty hypothecated  to  be  declared  exe- 
cutable. 

Order  grranted. 


MUBBAT  AND  CO.  V.  NIBBUBO. 

Mr.  De  Waal  moved  for  provisional  sen- 
t«nce  on  two  promissory  notes. 
Order  granted. 


CBLLIEB8  V.  0UMMIKO8. 

Mr.  Roux  nooved  for  provisional  sen- 
tence on  a  mortgra^  bond  for  £100,  with 
interest,  the  bond  haying  become  due 
by  reason  of  notice  ^ven. 

Order  granted,  subject  to  produotion 
of  copy  of  notice  calling  up  the  bond. 


KBBB  V.  KAI8EB. 

Mr.  Gutsohe  moyed  for  provisional 
sentence  ui>on  a  mortgage  Dond  for 
£360,  vnth  interest,  the  bond  having 
become  due  by  reason  of  the  non-pay- 
ment of  interest ;  counsel  also  asked  for 
the  property  hypothecated  to  be  declared 
executable. 

Order  gnmted. 


DISTBIBUTINa  STITDIOATB   FOB   COLD 
BTOBAQB  V.  B08E. 

Mr  Gutsohe  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
m!W>lvent. 

Order  granted. 


ILLIQUID   ROLL. 

SOUTH  AFBICAN  NEWSPAPER  f       1906. 

CO.  V.  8TEY.V.  i   Feb.  I  St. 

Mr.  Du  Toil  moved  for  judgment, 
under  Rule  319,  for  £10,000,  with  interest 
at  6  per  cent.;  also  that  the  defendant 
be  ordered  to  pay  transfer,  expenses,  and 
costs,  the  amount  having  become  due 
in  terms  of  the  declaration.  Defendant 
had  been  barred  from  pleading. 

Order  granted,  subject  to  proof  of  ser- 
vice of  bar. 


BARNBTT  V.   F0THERIN6HAM. 

Mr.    De   Waal   moved    for  judgment, 
under  Rule  329d,  for  £28  Is.  3d. 
Order  granted. 


If  ABQUARD  AND  CO.  V.   GIBSON. 

Mr.  De  Waal  moved  for  judgment, 
under  Rule  329d,  for  £207  13s.  4d.,  goods 
sold   and  delivei«d. 

Order  granted. 


HOBN  V.  BOULTON. 

Dr.  Rainsford  moved  for  judgment,  in 
defauH  of  plea,  for  £284  5s.  od.,  with 
interest  thereon  from  the  3ilst  October. 
1603,  and  for  coerte  of  suit,  and  asked 
that  the  claim  for  damages  be  allowed 
to  stand  over. 
Order  granted  as  prayed. 


LOCKWOOD  V.  HEROLD  BBOH. 

Mr.  Lewis  moved  for  judgment,  under 
Rule  329d,  for  £26,  rent  due  upon  cer- 
tain shops  in  Lockwood  Buildings,  Ob- 
servatory. 

Order  granted. 


ESTATE  HUDSON  V.  SALTZMAN. 

Mr.  Pyemont  moved  for  judgment, 
under  Rule  329d,  for  £63,  rent  due,  with 
interest  a  tempore  morae  And  costs  of 
suit,  and  for  an  interim  interdict  to  be 
set  aside. 

Order  granted  as  prayed. 


THE  VALUE  SUPPLY  CO.  V.  WILSON. 

Mr.    P.  S.  T.  Jones  moved  for  judg- 
ment,  under   Rule   329d,   for   £8    lis.. 


«« 


CAPB  TIMB8"  LAW  REPORTS. 


vorifc  uid  labour  done  And  maierials  fii{^ 


plied. 
Order  granled. 


BTSSB  V.  WBRNEB, 


Mr.  Ruaaell  moved  for  judnoent, 
urder  Rale  329d,  for  £33  ITs.  7a..  pro- 
fflttiQiial  •errioet  rendered  acid  diaoune- 
Bientt  made. 

Order  granted. 


PKBIERA  V    VICTOB. 

Mr.  Sutton  moved  for  judgment,  under 
Rule  229d,  for  £120.  money  lent  and 
idranoed 

Order  granted 


MALZOV  AKD  CO.  V.  BUBFOOT. 

Dr.  Rainaford  moved  for  judgment, 
under  Rule  389d,  for  £100  IQi.,  goods 
•old  and  daliverod,  and  for  return  of 
ceitaia  trolleys  or  payment  of  their 
Tslne  (£90),  with  intereet  a  tempore 
i^erae  and  ooeta. 
Order  granted. 


SUTCLIPFE  V.  RIB80HPIBLD. 

Dr.  Rainford  moved  for  judgment, 
onder  Rule  329d  for  £33  13s.^  for 
itmtXkry  told  and  delivered,  with  in- 
terest a  tempore  morae  and  coats. 

Older  granted. 


MTBUBGH   V,  PORTBR. 

Mr.  P.  S.  T.  Jones  moved  for  judg< 
meut,  under  Rule  329d,  (1)  for  a  true 
*nd  correct  account  of  all  survey  fees, 
etc.,  in  connection  with  the  sale  of  the 
Heatherley  Estate,  Claremont;  (2)  de- 
b^  of  such  account;  (3)  pavment  o( 
•pch  sums  as  may  be  found  due;  and 
(4)  costs  of  suit. 

Bnchanan,  J.,  aaid  thai  he  would 
mrit  jud^ent  for  an  account,  to  be 
filed  within  one  month.  The  parties 
could  then  dei>ate  such  account,  and 
*o^Oaurt  could  be  moved  further  for 
*uob  sum  as  might  be  found  to  be  due 
upon  debate. 


»li\T  AND  VAN  NIEKBBK  V.  DUCKWOBTH 
AND  BMITH. 

.  Mr.  J.  E.  R.  de  Villiers  moved  for 
jodgment,  under  Rule  329d,  for  £465 
lOi.  7d,  balance  due  for  certain  goods 
•oM,  and  cash  lent  and  advanced,  with 
tnteiest  and  coats. 
Order  granted. 

P 


OLUIOM AN  AND  BBBNSTEIN  V.  KABH. 

Mr.  Roux  moved  for  judgment,  under 
Rule  329d,  for  oosts,  the  capital  sum 
sued  for  having  been  paid. 

Order   granted    accordingly. 


DBMPERS  AND  VAN  BTNIVILD  V.   BULC. 

Mr.  De  Waal  moved  for  judgment, 
under  Rule  3^,  for  £11  17s.  2d.,  leM 
£1  paid  on  account  since  issue  of  sum- 
mons, for  professional  services  rendered. 

Order  granted. 


E8TATB  HITOB  T.    BOTHA  AND  OTHRBS. 

Mr.  Alexander  moved  for  judgment  in 
terms  of  oonaent  paper. 

Mr.  M.  de  Villiers  (for  U^e  defendants) 
assented. 

Order  granted  in  te^ms  of  oonaent 
paper. 


BSBABIUTATI0N8. 


r       1906. 
)  Feb.  lit. 


Mr.  D.  Buchanan  moved  for  the  re- 
habilitation of  Jan  Hendrik  Nicolaas 
Botha.  The  Master  had  given  a  certifi- 
cate. 

Granted. 

Mr.  Close  moved  for  the  rehabilitation 
of  Stephen  Green.  The  order  waa  made 
final  m  January,  1895,  and  tliere  waa 
nothing  unfavourable  in  the  trustee's  re- 
port. 

Granted. 


GENERAL  MOTIONS. 


BOI880N  V.  BOI880N. 

Mr.  Struben  asked  leave  to  mention 
thia  case  as  a  matter  of  urgenoy.  Leave 
waa  granted  to  serve  the  intendit  by 
edictal  citation,  and  the  return  day  was 
fixed  for  the  15th  February.  The  order 
waa  that  personal  service  should  be  ef- 
fected, failing  which,  puUication  in  the 
"Government  Gaiette'*  not  later  than 
15th  January,  and  once  in  the  "Daily 
Telegraph."  Personal  service  could  not 
be  enectedi  and  ten  days  were  waated  in 
endeavouring  to  find  the  defendant  Pub- 
lication was  made  in  the  "  Daily  Tele- 
graph," and  counsel  would  ask  the  Court, 
under  the  circumetances,  whether  it 
would  insist  on  the  publication  in  the 
"  Grovemment  Gaaette  "  a  month  before 
the  return  day. 

Buchanan,  J.,  aaid  that  under  the 
circumdkanoes  he  thought  that  a  publi- 
cation at  once  in  the  ^'Geaette"  would 
be  eufficient, 


M 


"CAPE  TDhfBS''  LAW  REPOATB. 


TABLS    BAT     HABBOUR    BOABD     Y. 
MACKENZIE  AMD  CO.,  LTD. 

Mr.  Sohreiner,  K.C.  (with  him  Mr.  P. 
Jones),  appeared  for  the  plain tiffa,  to 
apply  for  judgment  in  terms  of  the  ar- 
bitrator's report.  The  arbitrator  found 
that  the  defendants  were  indebted  to  the 
plaintiffs  in  the  sum  of  £1,236  7s.  2d., 
with  interest  a  tempore  moroe.  The  de- 
fendants, up  to  the  present,  had  failed 
to  give  any  evidence  m  support  of  their 
claim  in  reconvention. 

Judgment  was  given  in  convention  for 
£1,236  7s.  2d.,  with  interest  and  costs, 
including  the  costs  of  hearing  and  the 
reference,  with  absolution  from  the  in- 
stance with  costs,  in  the  claim  in  recon- 
vention. 


Ex  parte  WHITE,  RYAN  AND  CO. 

Mr.  De  Waal  moved  for  the  appoint- 
ment of  a  provisional  trustee  in  an  in- 
sdyent  estate,  in  which  the  goods  were 
perishable,  and  in  which  the  {letitioners 
were  large  creditors.  The  secretary  of 
the  South  African  Association  had  been 
suggested  as  provisional  trustee. 

Granted. 


LIX)YD  V.  LLOTD. 

Mr.  P.  Jones  moved  to  make  absolute 
a  rule  calling  on  the  defendant  to  return 
to  the  plaintiff,  or  show  cause  why  a 
decree  of  divorce  should  not  be  granted. 

Rule  made  absolute. 


Ex  parte  BT ANTON. 

Mr.  Russell  moved  to  have  a  rule  nisi 
granted  under  the  Derelict  Lands  Act 
madv  absolute. 

Rule  made  absolute. 


Ex  parte  GODDARD. 

Mr.  Sutton  moved  to  make  absolute  a 
rule  niti  granted  under  the  Derelict 
Lands  Aet. 

Rule  made  absolute. 


Ex  parte  THE  riversdale  municipal 

COUNCIL. 

Mr.  Sutton  moved  to  make  absolute  a 
rule  nm  granted  under  the  Derelict 
Lands  Act. 

Rule  made  absolute. 


Ex  parte  EDDIE. 

I 

Mr.  Gutsche  moved  to  make  absolute  I 
a  rule  niti  granted  under  the  Derelict  I 
Lands  Act 

Rule  made  absolute. 


JEb  parte  STAKDBB. 

Mr.  D.  Buchanan  moved  to  make  ab- 
solute a  rule  granted  under  the  Derelict 
Lands  Act 

Rule  made  absolute. 


Ex  parte  CERES  MUNICIPAL  COUNCIL. 

Mr.  P.  Jones  moved  to  make  absolute 
a  rule  granted  under  the  Derelict  Lands 
Act  with  regard  to  certain  portions  of 
property  marked  "  d,"  "e."  and  "  g," 
and  to  make  absolute  with  regard  to 
the  portions  ••  a,"  "  b,"  "  c,"  and  "  f," 
subject  to  certain  costs  being  paid. 

Rule  made  absolute  generally,  execu- 
tion stayed  for  two  months  with  regard 
to  the  latter  portions. 


Ea  parte  VAN  rensburq. 

Mr.  p.  Buchanan  moved  for  leave  to 
the  petitioner  to  dispose  of  certain  pro- 
perty in  the  division  of  Cradock.  Peti- 
tioner was  the  executrix  in  the  estate  of 
her  late  husband,  and  she  applied  for 
leave  to  dispose  of  a  certain  rarm,  and 
place  the  proceeds  o\A  on  finsrt  noort- 
gage  on  immovable  propertv  in  order 
to  properly  maintain  the  ohildren.  She 
did  not  propose  to  sell  it  at  less  than 
£2  a  morgen.  The  Master,  in  hie  re- 
port, thought  if  t'he  property  could  be 
disposed  of  at  not  less  th«.n  £2  &  mor- 
gen it  would  be  to  the  benefit  of  the 
children. 

Order  granted  in  terms  of  the  Master's 
report. 


Ex  parte  bowkbr. 

Mr.  Close  moved  for  an  order  author- 
ising the  petitioner  to  sign  on  behaJf  of 
his  minor  brother,  to  whom  he  acted  as 
guardian,  in  the  oartition  of  certain  pro- 
perty. The  Master's  report  was 
favourable. 

Order  granted  in  terms  of  the  Master's 
report. 


Ex  parte  DU   PLE88IS  AND   OTHERS. 

Mr.  P.  Jones  moved  for  leave  to  sell 
certain  property  by  public  auction  in 
the  interest  of  certam  minors.  The 
Master's   report    was   favourable. 

Order  granted  on  condition  that  the 
minors'  share!*  be  paid  into  the  Guardian 
Fund. 


BYRNE  V.  BYRNE. 

Mr.  Pyemont  moved  for  an  order  call- 
ing on  the  respondent  to  show  cause 
why  a  decree  of  divorce  should  not  be 
granted.  It  was  not  found  possible  to 
effect  personal  service,  and  the  notice 
had  bcNsn  published  once  in  the  "  Gov- 
ernment Gazette,"  and  twice  in  a  Di4b- 


"CAPE  TIMES"  LAW  REPORTS. 


36 


Kb  awiiMper.  The  dflfendant  waa  not 
luvd  01  BiDO»  1900,  when  he  deserted 
kk  wife  in  the  west  of   Ireland. 

A  decree  of  restitution  ffranted,  the 
defiendiDt  to  return  to  or  rooeive^  the 
plaintiff  on  or  before  Ist  May,  failing 
which  a  mle  nwt  to  be  granted,  return- 
able 13th  May,  calling  on  him  to  show 
cauie  why  a  decrae  of  dirorce  should  not 
be  nranted,  and  why  the  plaintiif 
should  not  have  custody  of  the  cnildren. 
The  same  publicatioa  as  before. 


Ex  parte  MOAMBUJJk. 

Mr.  P.  Jones  moved  for  an  order 
aachorising  the  Registrar  at  King 
William's  Town  to  pass  transfer  of  oer- 
tain  property  whion  the  petitioner  as 
sole  executrix  had  purchased  from  the 
estate  of  her  late  husband  at  a  public 
auction. 

Granted. 


Ex  parte  JACOBS. 

Mr.  Struben  moved  for  leaye  to  pass 
transfer  of  certain  propertv  in  the  estate 
of  hii  late  wife,  of  which  lie  was  eze- 
eutor  dative.  Petitioner  had  purchased 
the  property,  which  was  in  the  division 
of  Cradock,  at  public  auction  for  about 
£1.600. 

Buchanan.  J.,  directed  that  fuiiher 
4^ridence  be  produced  as  to  the  value  of 
the  property.  The  matter  would  have 
to  stand  over  for  further  evidence  of 
the  value.  He  thought  the  auctioneer's 
affidavit  w^  very   inacfipquate. 


Ex  jtarte  PALM  BR. 

Mr.  Gardiner  moved  for  an  order 
directing  the  election  aocounts  of  Mr. 
Du  Preet,  agent  of  the  Hon.  W.  P. 
Schreiner,  K.C..  in  connection  with  the 
Caledon  election,  should  be  re-opened  t<> 
euahle  petitioner  to  file  an  account  for 
£7.  charces  for  adyertising  in  the  '*  Sonth 
Africsn  Review."  The  petitioner  stated 
that  he  had  inadvertently  failed  to  file 
the  account  within  the  period  stipulated 
by  the  Act.  A  further  affidavit  was  read 
from  the  election  agent,  assenting  to  the 
application,  and  adbiowledging  indebted- 
nen  to  the  petitioner  as  alleged. 

Mr.  Searle,  K.C.,  on  behalf  of  Mr. 
Schieiner,  said  the  latter  wished  to  say 
tb«t  he  had  been  unaware  of  this  ac- 
count. It  waa  out  of  his  power  now  to 
pay  the  account  without  an  order  of 
Court.  Mr.  Scbreiner  was  quite  willing 
t*>  pay  the  account. 

Order  granted,  authorising^  the  ac- 
counts to  be  re-opened,  and  giving  leave 
for  the  payment  m  question  to  be  made. 


Ex  parte  VAN  8TRAATEN. 

Dr.    Rainsford    moved    for  an    order 
confirming  the  sale  of  certain  property, 


in  the  district  of  Barkly  Eaift.  Peti- 
tioner waa  desirous  of  liquidating  the 
estate  of  his  deceased  parents,  and  had 
purohased  the  property  for  £650  at 
piA*o  auction. 
Order  granted  as  prayed. 


KRATINO  AND  CO.  V.  FILLTS. 

Mr.  Struben  moved  for  the  rule  nwt  to 
be  made  absolute,  requiring  the  respon- 
dent to  show  cauM  whv  permission 
should  not  be  given  to  sue  oy  edictal  cita- 
tion, and  to  attach  oertain  goods  to 
found  jurisdiction.  Counsel  said  that 
service  was  originally  effected  on  respon- 
demte  mother-in-law,  but  subsequent 
to  thsi  date  the  respondent's  wife 
had  oome  to  the  applioants'  attor- 
neys, and  had  written  a  letter  ac- 
knowledging the  debt.  She  had  paid 
£50  and  promised  that  the  bannoe 
would  be  handed  in  as  soon  as  possible. 
Mrs.  Fillis  wm  managing  the  defend- 
ant's business  in  this  country,  and  coun- 
sel asked  ^for  leave  to  wplicants  to 
effect  service  upon  her.  The  respondent 
appeared  to  be  touring  with  a  oertain 
show  in  America,  after  having  been  at 
the  St  Lfouis  Exhibition.  Counsel  un- 
derstood that  it  was  Mrs.  Fillis's  inten- 
tion to  shortly  leave  this  country. 

Buchanan.  J.,  asked  where  the  re- 
spondent's   residence  was? 

Mr.  Struben  said  he  did  not  think  the 
respondent  had  a  domicile.  He  seemed 
to  be  peripatetic. 

Buciianan,  J.,  said  that  the  rule 
would  be  made  absolute,  pending  an 
action  to  be  brou'^hft  by  petitioners. 
U  ]3etitioner  found  any  difficulty  in 
serving  process,  they  could  again  move 
the  Court. 


FLETCHER'8  WH0LB8ALE  V.  VIT1BB8. 

Mr.  Struben  moved  for  the  rule  niH 
to  be  made  absolute,  calling  on  the  re- 
spondent to  show  cause  whv  petitioners 
should  not  be  allowed  to  sell  his  inherit- 
ance under  his  father's  will,  subject  to 
certain   life  interest. 

Rule  made  absolute. 


Ex  parte  BUIOWA. 

Mr.  Rous  moved  for  an  order  author- 
ising i>etitioner  to  mortgage  certain  pro- 
perty in  which  minors  were  interested 
for  the  sum  of  £300. 

Order  granted  in  terms  of  Master's  re- 
port. 


OACULI  V.  DICKE80N. 

Mr.  J.  B.  R.  de  Yilliers  moved  for  the 
dischains®  of  certain  notice^  of  appeal 
given  in  July  last  from  a  judgment  of 
the  Magistrate  of  Tabankuln,  by  reason 


96 


"CAPE  TIMK8"  LAW  REPORTS. 


of  the  rMpondent'f  failure  to  proeeoute 
ib(^  ftppeal  within  a  reaaooahle  time. 

Ordered  to  stand  over  for  production 
of  proof  of  servioe  on  the  respondent. 


SHAW  V.  O'SULLIVAN. 

Mr.  J.  E.  R.  de  Villiera  moved  for  a 
certain  rule  nUi  to    be  made   absolute. 

Mr.  Gardiner  oonaented  to  the  ap- 
plication, but  said  that  he  wished  the 
matter  of  costs  to  stand  over  for  the 
decision  of  Court  upon  the  action  being 
heard. 

Rule  made  absolute,  question  of  costs 
to  stand  pending  action  to  be  brought 
by    the  respondent. 


Uj;  parte  REDELINGHDY8. 

Mr.  Roux  moved  for  a  rule  to  be 
made*  absolute  authorising  the  registrsr 
tion  of  certain  property. 

Order  granted. 


Ux  parte  GL08B. 

Dr.  Rainsford^  moved  for  an  order 
authorising  the  issue  of  certain  copy  of 
deed  of  transfer.  Petitioner  moved  in 
his  capacity  of  trustee  in  the  Estate 
Wood. 

Order   granted. 


TURNBULL  V.  TURMBOLL. 

Dr.  Greer  moved  on  behalf  of  Magda- 
lene, Jaooba  TurnbuU  for  leave  to  sue  by 
edictal  citation.  The  petitioner  desirad 
to  sue  her  hu»band  for  restitution  of 
conjugal  rights,  failing  which,  divorce. 
The  respondent  deserted  petitioner  in 
1884,  and  his  present  whereabouts  were 
unknown. 

Leave  granted,  rule  to  be  returnable 
on  the  12th  March,  personal  service  to 
be  effected,  failing  which,  publication 
once  in  ''  Government  Gazette "  and 
once  in  the  "  Diamond-fields  Advertiser  " 
(Kimberley). 


UAREIS    LEE    AND    CO.    V.    TORQUE 
ELBCTRIO  LIGHTING  CX). 

Dr.  Greer  moved  for  an  order  re- 
straining the  Torque  Electric  Light- 
ing Co.,  the  Trades,  Markets  and  Ex- 
hiibtion  Co.,  or  an^  others,^  from  in 
any  yt9,y  dealing  with  certain  parte  <f 
a£i  accumulator  lying  at  the  Ezhibiton, 
Green  Point,  pending^  an  action  to  'ye 
brought  by  the  petitioners*  principals 
against  the  said  Torque  Electric  Light- 
ing Co.  A  lengthy  affidavit  was  read 
by  counsel,  in  which  is  waa  stated  that 
the  respondents^  the  Torque  Co.,  dad 
undertaKen  to  nx  the  apoumulator  for 
electric     lighting     purposes;   that  they 


only  had  a  portion  of  the  aocamulator 

removed  to  the  Ezhibition.;  that  Lha 
remainder  was  lying  in  oases  at  tho 
King's  Warehouse;  that  the  Torque 
Co.  nvas  in  financial  difficulties;  and 
that  they  could  not  be  traced. 

Buchanan,  J.,  said  that  he  did  not 
see  how  he  could  n^ke  the  order  against 
the  Trades,  Markets,  and  Exhibition 
Co.  An  order  would  be  granted  as 
prayed  against  the  Torque  CS^. 


Ex  parte   ARGNBTBIN. 

Mr.  Gardiner  moved  for  the  appoint- 
ment of  a  ceHain  trustee  in  the  estate  of 
Benno  Maisel,  which  had  been  surrea- 
dered  at  Port  Elizabeth.  The  Ma^ps- 
trate  at  the  meeting  of  Maisel's  credi- 
tors refused  to  allow  the  netitionerU 
representative  to  vote^  as  he  bad  not  a 
legal  power  of  attorney.  The  pro- 
ceedings were  now  at  a  standstill  in  the 
insolvency. 

Order  granted  authorising  the  Master 
to  call  another  meeting  of  creditors  for 
the  appointaient  of  a  trustee.  His 
Lordship  added  that  if  the  insolvent  was 
still  being  detained  in  gaol,  it  was  tiim; 
steps  were  taken  to  obtain  his  releaat\ 
He  understood  that  Maisel  had  already 
nuule  an  application  for  his  release,  but 
he  was  without  means,  and  nobody  ap- 
peared for  him. 

Mr.  Gardiner  said  that  he  would  have 
the  remark  conveved  to  his  client,  upon 
whose  instance  the  insolvent  had  be?^n 
detained. 


SUPREME  COURT 


[Before  the  Hon.  Sir  John  Buchanan.] 


PROVISIONAL  ROLL. 


PRICE    V.    PUTTER    AND 
OTHERS. 


I        1905. 

(  Feb.  2nd. 

Mr.  Roux  moved  for  the  provisional 
order  for  the  sequestration  of  the  de- 
fendants'  estate  to  be  made   final. 

Order  granted. 


PEACOCK  BROS.  V.  CANTOR. 

Mr.  Roux  moved  for  the  provisional 
order  for  the  sequestration  of  the  de- 
fendant's estate  to  be  made  final. 

Order  granted. 


"CAt^B  TbitEB"  Law  itEt»0ttt8. 


87 


PIOCAILD  A27D  FBIBE  V.  MULLEB. 

Mr.  p.  S.  T.  Jones  moved  for  the  pro- 
TiBional  order  of  sequestration  to  be 
made  finaL 

Order  granted. 


JKNNBR  V.  8C0TT. 

Mr.  Pyemont  moved  for  provisional 
rantenoe  on  a  mortgage  bonp  for  £900» 
with  interest,  the  bond  having  become 
due  by  reason  of  the  non-payment  of 
interest ;  counsel  also  asked  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable. 

Order  granted. 


JACOBSOHN  V.  BOTHA. 

Mr.  J.  E.  R.  de  Yilliers  moved  for  the 
provisional  order  for  the  sequestration 
of  the  defendant's  estate  to  be  made 
final. 

Order  granted. 


LIQUID AT0B8  OF  SEDGWICK  AND  CO.  V. 
NOOBDEN. 

Mr.  Struben  applied  for  the  pro- 
visional order  of  sequestration  to  be 
discharged. 

Provisional  order  discharged. 


ILLIQUID  roll; 
>B06£    V.    COCHBANE    AND    i         1905. 

FITT.  i  Feb.  2nd. 

Mr.  McGregor  moved  for  judgment 
uuder  Rule  319,  in  default  of  plea,  for 
£700,  and  for  interest  on  a  sum  ot 
£2,000. 

Ordered  to  stand  over  till  later  in  the 
day. 

Later  in  the  day,  Mr.  McGregor 
taid  he  found  that  the  necessary  notices 
were  in  order,  and  he  repeated  the  ap- 
plication. He  now  moved  for  judg- 
ment in  terms  of  the  declaration  for 
payment  by  the  defendants  jointly  and 
severally  of  £700,  together  with  interest 
on  the  sum  of  £2,000  from  the  10th 
August,  1903,  plaintiff  tendering  trans- 
fer, in  due  and  customary  form,  at  the 
defendants*  expense,  of  the  ground  on 
payment  of  the  said  amount  and  deposit 
of  first  mortgage  bond  for  the  unpaid 
balance. 

Order  granted. 


FEDEBAL  SUPPLY  AND  COLD  STOBAOE 
V.  FLEMING. 

Mr.  Ru^isell  moved  for  judgment, 
under  Rule  329d,  for  £124  Is.,  goods 
told  and  delivered,  with  interest  and 
fwsts. 

Order  granted. 


GENERAL  MOTIONS. 


OUBIST  V.  CUBIST. 


f       1906. 
i  Feb.  2nd. 

Dr.  Greer  moved  for  the  rule  nisi  to 
be  made  absolute,  re(|uiring  the  defen- 
dant to  contribute  alimony,  and  to  de- 
posit a  certain  sum  to  enable  petitioner 
to  institute  action  for  divoroe. 

Mr.  Burton  read  an  affidavit  bv  the 
respondent,  in  which  he  referred  the 
Court  to  the  affidavits  filed  in  a  similar 
application  brought  by  the  petitioner 
in  1901.  He  said  that  the  cause  was 
identical,  viz.,  the  excessive  use  by  the 
applicant  of  intoxicants.  He  then  paid 
the  mone^,  but  the  applicant  did  not 
proceed  with  the  action.  He  denied 
that  he  had  threatened  his  wife  or 
turned  his  daughter  out  of  the  house. 
He  also  repudiated  the  charges  of  un- 
due familiarity  with  another  woman. 
His  house  was  alwavs  open  to  his  wife 
and  daughter.  He  believed  that  no 
action  would  be  brought,  now  even  if  he 
deposited  the  money,  and  said  that  the 
application  was  simply  brought  for  the 
purpose  of  vexation. 

Dr.  Greer  said  the  plaintiff's  state- 
ment was  that  she  agreed  on  the  former 
occasion  to  return  to  the  respondent  at 
his  request,  and^  to  condone  his  cruel 
treatment  of  her  in  the  past.  There  was 
also  corroborative  evidence  of  the  undue 
familiarity  of  respondent  with  another 
woman. 

Buchanan,  J.,  said  that,  looking  at 
the  previous  application,  he  did  not 
think  this  waa  a  case  in  which  alimony 
should  be  ordered  to  be  paid.  There 
would  be  no  order  on  that  part  of  the 
case.  On  the  other  part  of  the  applica- 
tion, the  respondent  would  be  ordered 
to  pay  £10  upon  issue  of  summons,  and 
a  further  sum  of  £15  if  the  case  were 
set  down  for  trial,  costs  to  be  costs  in 
the  caseu 


FOUBIE  V.  FOUBIE. 

Mr.  Burton  moved  for  petitioner  for 
leave  to  sue  by  ediotal  citation  for  a  de- 
cree of  divorce  from  his  wife  on  the 
f round  of  her  adultery  with  one  Jor- 
aan  (late  of  the  Orange  River  Colony), 
who  had  been  sheltered  at  his  farm  dur- 
ing sickness.  The  parties  were  married 
at  Knysna,  and  petitioner  was  now 
farming  in  the  district  of  Uniondale. 
Respondent's  whereabouts  could  not  be 
traced. 

Leave  to  sue  granted,  rule  to  be  re- 
turnable on  the  10th  April,  i>ersonaI  ser- 
vice to  be  effected  if  possible,  failing 
which  publication  once  in  the  **  Govern, 
ment  Gazette,"  the  '*  Graaff-Reinet  Ad- 
vertiser," and  the  ''Friend"  (Bloemfon- 
tein),  copies  of  rule  to  be  served  on  the 
parents  of  the  reepondent. 


38 


"CAPE  TIMES"   LAW  REPOTS. 


DIEPBAEM  V.  CLOETB. 

Bemoval    of    trial — Peregrimts — 
Security  for  costs. 

The  Court  refused  the  applica- 
tion of  a  de/e^tdant^  a  pere- 
grinus,  to  remove  a  trials  as 
he  had  iwt  given  security  for 
costs. 


Mr.  Gardiner  moved,  on  behaJf  of  the 
defendant  in  the  suit  (Diepraem),  for 
leave  to  remove  the  caiuse  now  pending 
in  the  Supreme  Court  to  tlie  next  Cir- 
cuit Court,  at  Aliwal  Nortli.  Th^  ap- 
Slioant,  who  wan  now  at  Ficksburj?, 
range  River  Colony,  said  that  he  could 
not  pobaibly  bring  his  witneflsea  and 
come  to  Cape  Town  by  the  10th  inst.  He 
believed  alt  the  witneeaeA  resided  in  or 
near  Aliwal  North,  where  the  cause  of 
action  aroec.  The  expense  of  coming 
to  Cape  Town  for  the  case  was  really 
too  great  for  him  to  bear. 

Mr.  McGregor  read  an  affidavit  by  the 
respondent,  stating  that  the  re«poiideiit 
had  given  no  securitv  for  the  costa  of  this 
action,  and  that  applicant's  attorney  had 
been  api^rised  of  the  ieuct  that  a  prelim- 
inary ODJection  on  the  ground  that  there 
was  no  security  for  costs  would  be  taken 
by  the  respondent  at  the  hearing  of  the 
application.  He  was  satisfied  tnat  any 
further  delay  in  lK*aring  the  case  would 
imperil  the  p'lainti£f'r;  chances  of  obtain- 
ing his  money  if  the  applicanit  was  a 
mregrinus.  Counsel  reaa  a  considerable 
body  of  correspondence  which  had 
passed  between  tne  parties.  He  sub- 
mitted that  the  applicant  could  not  be 
heard  until  he  haa  given  security  for 
costs,  and  cited  the  case  of  Brcarley  v. 
Faure,  Van  Kyk  and  Co.  (15  t.T.R.,  20). 

Mr.  Gardiner  (replying  to  his  lordship) 
said  that  he  had  had  no  instructions  as 
to  giving  security  for  costs.  He  pointed 
out,  however,  that  the  applicant  was  the 
defendant  in  the  suit. 

Buchanan.  J.,  said  that  he  would 
hear  the  application. 

Mr.  Gardiner  contended  that  the  bal- 
ance of  convenience  would  be  wholly  in 
favour  of  hearing  the  case  on  circuit. 
Without  calling  on  Mr.  McGregor, 
Buchanan,  J. :  Last  month,  for  the 
first  time,  the  defendant's  attorney  sug- 
gested that  the  case  should  be  returne<I 
to  Aliwal  North.  If  defendant  had  still 
been  a  resident  in  that  district,  there 
might  have  been  a  good  deal  to  say  in 
favour  of  the  application,  but  he  has 
removed  <from  the  Colony  altogether, 
and  in  his  absence  from  the  Colony,  and 
the  refusal  to  g[ive  security,  I  cannot, 
on  the  information  before  me,  give  an 
order.  The  application  will  be  refused 
with  costs. 


Ex  parte  ELBBY. 

This  was  an  application  to  have  the 
respondent,  John  Joseph  Eisby,  declared 
of  unsound  mind,  and  to  have  a  curator 
appointed  of  his  person  and  property. 
Mr.  Struben  was  for  the  petitioner ;  Mr. 
Lewis  appeared  on  behalf  of  the  euratwr 
a*1  litem. 

Harriet  Kl.sby,  wife  of  the  rebpondent, 
said  that  her  husband  had  been  removed 
to  the  Asylum  last  year  on  account  of  his 
unsound  mind.  Witness  desired  to  be 
appointed  curator  of  her  husband. 

Mr.  Lewis  tsaid  that  ho  had  vii«ited  the 
respondent,  who  was  quite  unfit  to  man- 
ago  his  own  affairs.  He  did  not  oppose 
the  application. 

Dr.  Cox  also  gave  evidence  as  to  the 
condition  of  the  respondent,  who  was  ad- 
mitted to  the  Old  Somerset  Hospital,  un- 
der the  name  of  Elsburg.  Respondent 
was  certified  as  insane  on  the  29th  De- 
cember; bf^  was  helpless  both  mentally 
and  physically,  aiid  would  have  to  be  de- 
tain4:Hl  in  a  hospital. 

Order  gran  tea,  declaring  the  respon- 
dent to  be  insane  and  incapable  of  man- 
agimr  hi;!  affairs,  and  appointing  Mrs. 
Harriet  Elsby  curator  of  his  property,  and 
Dr  Cox  curator  of  his  person,  costs  to 
come  out  of  the  joint  estate. 


/>  imrte  LIGHTFOOT. 

Mr.  Searle,  K.C.,  moved  for  the  ap- 
pointment of  a  curator  of  the  property 
of  Eleanor  Gertrud  Lightfoot. 

Usual  order  granted,  summons  to  be 
returnable  on  the  9th  inst,  and  Mr.  P. 
S.  T.  Jones  to  be  curator  ad  litem. 


Kt  parte  MAGKINNOK. 

Mr.  Gutsche  moved  for  an  order  au- 
thorising the  amendment  of  certain  deeds 
deposited  in  the  debt  registry.  The  peti- 
tioner's name  was  erroneously  inscrib- 
ed on  the  deeds  as  John  Mackinnon,  and 
ho  desired  to  make  an  alteration,  to  com- 
ply with  the  requirements  of  the  Regis- 
trar. 

Buchanan,  J.,  said  that  the  Court 
must  have  the  consent  of  the  bond- 
holders before  any  alteration  of  the 
deeds  could  be  sanctioned.  No  order 
would  be   granted  at  the  present  stage. 


CHORITZ   V.  KUOOLMAN. 

Mr.  Alexander  moved  for  an  order  as 
to  the  service  of  certain  procctrs.  Defend- 
ant had  been  prosecuted  on  a  criminal 
charge,  and  committed  to  the  Criminal 
Sessions,  but  he  had  disappeared  before 
the  trial,  and  his  bail  had  been  estreated. 
Petitioner  asked  for  an  order  for  substi- 
tuted service  upon  the  defendant. 

Leave  to  sue  by  substituted  service 
granted,  service  to  be  effected  at  the  last 


"CAPE  TIMES"  LAW  REPORTS. 


39 


pUoB  of  abode  and  Imainees  of  the  de- 
fendant; and  rule  to  be  published  once 
in  the  "  GoTemment  Gasette,"  and 
once  in  the  "  Cnie  Times." 


Er   parte    the    consistory    ok    the 

ADEULIDE  DUTCH  RBVORMBD  CHURCH. 

Mr.  Gardiner  movod  for  a  rule  nUi 
to  be  made  absolute,  authorising  the  sale 
of  certain  churoh  {voperty  in  the 
Square,  Adelaide. 

Rule  ni»i  made  absolute. 


Ex  parte  DRURT. 

Mr.  P.  S.  T.  Jones  moved  for  leave 
to  eiecute  a  certain  mortgage  bond,  for 
the  purpose  of  discharging  liabilities  on 
a  business  in  the  estate.  It  was  stated 
that  the  heirs  were  maintained  by  the 
profits  <Mi  the  ^  business,  which  waa  said 
to  be  a  flourishing  one.  Two  of  tiie 
heirs,  now  majors,  confiented.  The 
Master  rejMrted  that  no  account  had 
been  filed  in  the  estate,  and  he  had  no 
information. 

The  matter  was  referred  to  the  Master 
to  report  aa  to  whether  the  bond  would 
be  in  the  interesta  of  the  minors. 


THE  MASTER  V.  PALMER. 

Mr.  Howel  Jones  applied  for  the  at- 
tachment of  the  respon<ient  for  contempt 
of  Court.  The  respondent  was  trustee 
in  the  insolvent  estate  of  Edward  Edwin 
Alexander,  and  had  not  complied  with 
an  order  of  Court  to  file  certain  accounts 
with  the  Master. 

There  waa  no  appearance  for  the  re- 
spondent,  and  the  order  was  granted. 


Ex  parte  WESSBLS. 

Mr.  P.  S.  T.  Jones  moved  for  leave 
to  pass  transfer  of  certain  property.  The 
circumstances  were  that  a  certam  piece  of 
property  in  the  estate  was  mis-described 
m  the  will.  The  executora  wished  to 
transfer  the  property  as  directed  by  the 
will,  but  the  Registrar  of  Deeds  de^ 
clined  to  allow  transfer  without  an  order 
of  Court. 

Buchanan,  J.,  said  he  could  not  un- 
derstand why  the  Registrar  of  Deeds 
should   refuse  to  pass   transfer. 

A  rule  nUi  waa  granted,  calling  on  the 
Registrar  of  Deeds  at  King  William's 
Town,  and  all  other  persons  interested, 
to  show  cause  why  the  prayer  of  the  peti- 
tion should  not  be  granted. 


Ex  parte   THE    DIRECTORS    OF    THE 
GOUDINI  SCHOOL. 

Mr.  Van  Zyl  applied  for  an  order  au- 
thorising: the  trADfiier  of  certain  property 


from  the  directors  of  the  school  to  the 
churchwardens. 

Buchajian,  J.,  remarked  that  the 
transfer  would  mean  to  completely 
change  the  trust.  This  property  was 
given  by  a  gentleman  who  stipulated 
that  it  should  bo  controlled  by  directors 
elected  by  voters.  To  transfer  the  pro- 
perty as  now  asked  would  be  doing 
away  with   the  rights  of  the  voters. 

Mr.  Van  Zyl  suggested  that  if  a  rule 
nUi  were  gran-ted  it  would  enable  the 
people  who  were  entitled  to  vote  to  ex- 
press an  opinion.  This  was  conaidered 
to  be  in  tne  interests  of  the  school. 
'  No  order  was  made. 


Ex  parte  COOTE  AND  ANOTHER. 

Mr.  Upington  moved  for  an  order  au- 
thorising the  regristration  of  a  certain 
contract.  The  petition  set  forth  that 
Mr.  Coote  came  here  some  time  ago, 
and  went  for  a  holiday  to  Scotland  in 
July  la£^t.  There  he  married  the  sec- 
ond-named petitioner,  and  they  were  ad- 
vised that  the  marriage  would  be  accord- 
ing to  the  laws  of  Scotland,  regulating 
the  separate  rights  of  married  persons. 
On  arriving  here,  they  were  unable  to 
register  a  contract  embodying  the  ante- 
nuptial agreement,  and  they  now  im- 
plied for  an  order  of  Court,  authorising 
the  registration  of  a  contract  embodying 
the  agreement  before  marriage,  viz.,  to 
exclude  community  of  property. 

An  order  was  granted,  authorising  the 
registration  of  a  post-nuptial  notarial 
contract,  embodying  the  ante-nuptial 
agreement,  excluding  community  of  pro- 
perty. 


Ew  parte  MOSSOP  AND  ANOTHER. 

Mr.  Gutsche  moved  for  an  order  au- 
thorising the  cancellation  of  a  certain 
sale.  The  Master*s  report  was  favour- 
able. 

Buchanan,  J.,  said  the  Court  would 
grant  an  order,  as  far  as  the  minors 
were  concerned,  authorising  the  appli- 
cants to  cancel  the  sale. 


Ex  paiie    THE  CAPE  DISTRICT    MUTUAL 
BUILDINQ  SOCIETY. 

Mr.  Russell  moved  for  leave  to  sell 
certain  property.  The  High  Sheriff  had 
refufied  to  sanction  the  sale  of  the  pro- 
perty at  the  price  offered. 

The  matter  was  ordered  to  etand  over 
for  report  by  the  High  Sheriff. 


Ex  parte  DU  plrssis. 

Mr.  Roux  moved  for  an  order  author- 
ising the  retention  of  certain  property. 
Tlu^  will,  of  which  petitioner  waa  execu- 
trixj   directed   that  the  property  abould 


40 


ti 


CAPE  TllMES''  LAW  REPORtS. 


be  dispoMd  of  within  twelye  months,  but 
petitioner  represented  thai,  in  the  pre- 
ient  stftte  of  the  pioper^  market,  a  sood 
price  oould  not  be  obtuned.  The  M aa- 
ter's  report  waa  farourable. 

An  order  waa  granted  authorising  peti- 
tioner to  retain  the  property  for  a  period 
of  twelve  months. 


JSx  parte  OLEOHOBN. 

Mr.  Guteohe  moved  for  tlie  amend- 
ment of  a  certain  order  of  Oourt,  fixing 
the  price  at  which  certain  property, 
might  be  sold.  The  price  could  not  be 
obtained. 

Granted. 


BDTTBB  ▼.  UABTIM. 

Mr.  Russell  moved  for  an  order  attacli- 
mg  certain  property,  ad  fundandam 
juriadietionemy  and  for  leave  to  sue  by 
edictal  citation. 

Granted. 


Bx  parte  HBLLAWELL. 

Mr.  Close  moved  for  an  order,  author- 
ising the  petitioner's  release  from  se- 
(|uestratiou.  The  estate  was  surrendered 
in  June,  1904,  but  at  the  first  and  final 
meeting,  no  claims  were  filed,  and  no 
creditors  appeared. 

Order  granted. 


£>  parte  BUTTON. 

Mr.  Close  moved  for  leave  to  petitioner 
in  his  capacity  as  curator  bonis  to  the 
lunatic  Brooke,  to  sell  certain  property. 

The  matter  was  referred  to  the  Master 
for  report. 


ALIWAL  KOBTH    MUUICIPAL  COUNCIL 
V.  WHITUAM. 

Mr.  Russell  moved  for  leave  to  attach 
certain  property  to  found  jurisdiction, 
and  to  sue  by  edictal  citation.  Respond- 
ent was  now  domiciled  in  England. 

Granted,  personal  service  of  the  cita- 
tion to  be  effected. 


AV  parte  BALL. 

Mr.  P.  S.  T.  Jones  moved  on  behalf 
of  petitioner,  as  secretary,  for  an  order 
authorising  the  winding  up  of  the  Lans- 
down  House  Estate  Company.  Peti- 
tioner suggested  that  William  Arthur 
Currie  and  himself  should  be  appointed 
official  liquidators.  The  property  of  the 
company  was  bought  for  £7,000,  about 
3,600  £1  shares  were  taken  up,  and  the 
debts  amounted  to  about  £500.  Owing 
to  the  depression  in  the  property  market. 


the  company  could  not  meet  its  liabili- 
ties. 

Order  granted  for  the  winding  up  of 
the  company,  Messrs.  Ball  and  Carrie 
being  appointed  liquidators,  with  powers 
under  section  149  of  the  Act,  the  liqui- 
dators to  find  security  in  a  total  sum  of 
£2,000. 


Eu'  parte  BO U WEB. 

Mr.  P.  S.  T.  Joues  moved  for  leave 
t )  raise  money  on  mortgage.  Minors 
were  interested  in  the  property.  The 
Master  reported   favourably. 

Order  granted  in  terms  of  Master's  re- 
port. 


BAB80N  V.  BECK. 

Mr.  Gardiner  moved,  on  behalf  of  the 
defendant,  for  leave  to  defend  in  forma 
pauperis. 

Referred  for  report,  Mr.  Gardiner  ac- 
cepting the  reference. 


A«?  parte  WILKINSON. 

Mr.  Close  moved  for  an  order  revok- 
ing the  appointment  of  Thomas  Wilkin- 
son, as  curator  of  petitioner's  estate. 
Counsel  said  he  believed  that  the  re- 
spondent was  petitioner's  husband. 

Order  granted  as  prayed. 


BBOUGHTOK  V.  BBOUGUTON. 

Mr.  Upington  moved  on  behalf  of  the 
petitioner  for  leave  to  sue  her  husband, 
Stanley  Edward  Broughton,  for  divorce, 
on  the  ground  of  desertion.  Petitioner 
did  not  know  the  present  whereabouts  of 
her  husband,  who  had  left  her  in  1904 
with  the  intention  of  proceeding  to  Mafe- 
king. 

I^ave  to  sue  granted,  rule  to  be  return- 
able on  the  31st  March,  personal  service 
to  be  effected,  if  possible;  failing  which, 
one  publication  in  the  '*  Government 
Gazette"   and  the  "  Mafeking  MaiK" 


Ba  parte  BOJB. 

Mr.  Du  Toit  moved  for  an  order  au- 
thorising the  amendment  of  certain  trans- 
fer, ante-nuptial  contract,  and  mortgage 
bond,  and  tor  alteration  of  the  entries 
in  the  debt  registry.  The  petitioner's 
name  was  erroneously  inscribed  on  the 
various  documents  as  Maximilian  Boje, 
and  should  be  Max  Christian  Boje. 

Order  granted  as  prayed. 


EiF  parte  SIMMON. 

Mr.  Gutsche  moved  for  an  order  au- 
thorising the  registration  of  certain  pro- 
perty in  the  names  of  petitioner  and  her 


t( 


fcAPEl  TiMEd "  LAW'  ^EltofeTS. 


41 


After,  bought  bv  them  from  the  estate 
of  their  deceaaecs  parents. 
Order  g^nted  as  prayed. 


HUULDEB  BBOd.  V.  COL(INIAI 
OOVBRKMBNT. 


.  (       1906. 
(Feb.   2i 


2nd. 


Amendment  of  plea—Commis- 
liion — Postponement  of  trial 
— Demurrage. 

Tht-  defendants  having  filed  a 
pita  in  an  action  for  demur- 
ragr^  ami  having  mibisequentlg 
made  certain  discoveries  rele- 
tOHt  to  the  issuej  note  applied 
for  : —  fl )  Leave  to  antefid  their 
plea  by  striking  mU  certain 
admuisioHs ;  (2)  The  appoint- 
mefd  of  a  commission  to  take 
evidence  in  London  ;  (3)  Post- 
ponement of  the  trial. 

The  Court  granted  the  first  and 
the  third  of  these  applications^ 
but  refused  the  second  until  the 
amended  j.lea  slwuld  hace  been 
filed  and  the  plaintiffs  have 
had  an  opport^mitg  of  except- 
ing thereto. 


This  waa  an  application  on  behalf  of 
the  defendants  in  the  above  action  for 
leave  to  amend  their  plea  for  the  ap- 
poinUneut  of  a  Commiwioner  to  take 
evideooa  in  Loudon,  and  for  the  poet- 
ponement  of  the  trial.  The  matter  arose 
out  of  a  olaim  instituted  by  the  plain- 
tiffs for  demurrage  against  the  Govern- 
ment  under  a  certain  cou tract  in  connec- 
tion with  the  Bupi^y  of  coal. 

The  affidavit  of  Mr.  Reid,  of  Messrs. 
Beid  and  Nephew  (applicants*  attor- 
neys), stated  that  the  i^eadingB  were 
closed  on  tlie  14th  May,  1904,  and  that 
since  then  certain  facts  had  come  to  the 
knowledge  of  the  applicants  through 
investigations  which  had  been  made  into 
the  case  by  the  Agent-General  in  Lon- 
don, and  which  had  rendered  it  neces- 
sary for  the  defendants  to  amend  their 
plea.  He  would  suggest  that  a  Com- 
missioner should  be  appointed  to  take 
such  evidence  in  London  a^  either  party 
might  call.  The  trial  has  been  set 
down  for  the  14th.  February,  but  it 
would  be  impossible  for  the  defendants 
to  go  to  trial  on  that  date. 

Tne  answering  affidavit  of  Mr.  W. 
&.  Fairbridge,  of  Messrs.  Fairbridg^e, 
Arderne  and  Lawton  (plaintiffs*  attor- 
neys), stated  that  he  believed  that 
the  reason  why  the  application  was 
made  was  simply  because,  on  further 
consideration,  the  defendant  was  of 
opinion  that  he  might  be  able  to  set  up 
&  different  plea  than  that  set  upon  the 


record,  his  contention  now  being  that  the 
plaintiffs  were  entitled  only  to  claim 
such  demurrage  as  they  paid  to  other 
persons.  Deponent  urged  that  the  ap- 
plication should  not  be  allowed. 

Mr.  Schreiner,  K.C.  (with  him  Mr. 
H.  Jones)  for  apd[ioants.  Sir  Henry 
Juta,  K.C.  (with  him  Mr.  Struben)  for 
respondents. 

Mr.  Sohreiner  aaid  the  applicants 
desired  to  amend  paragraph  7  of  their 
plea  in  certain  respects,  and  to  add  new 
clauses  after  clause  7. 

Sir  H.  Juta  submitted  thai  the 
amendments,  if  allowed,  would  raise  a 
new  defence,  because  the  defendants  now 
desired  to  withdraw  certain  admis- 
sions. 

Mr.  Schieiner  said  that  on  the  plead- 
ings as  they  stood  a  certain  baais  for  the 
calculaition  of  demurrage  was  taken  from 
a  certain  letter,  simply  on  the  basis  of 
that  letter.  It  would  appear  that  a  cer- 
tain amount  per  ton  per  dav  for  a  cer- 
tain period  was  to  be  paid  if  they  failed 
to  ^  discharge  at  a  certain  rate.  The 
plaintiffs'  olaim  was  based  on  that^  and 
the  defence  waa  that  the  plamtiffs 
delayed  brining  in  their  ships.  The 
point  was  this:  the  defendants  had  dis- 
covered the  contracts  under  which  the 
plaintiffs  had  been  sending  out  this  coal, 
and  it  might  be  put  in  this  wav:  Sup- 
posing that  plaintiffs  had  not  had  to  pay 
a  single  penny  of  demurrage,  were  they 
entitled  to  claim  any  demurrage  from 
the  Government?  Counsel  added  that 
he  could  not  supply  the  names  of  the 
witnesses  whom  the  defend  ante  wished 
to  examine  in  England  on  commission. 

Sir  H.  Juta  said  that  the  Court  never 
granted  a  Commission  unless  the  names 
of  the  witnesses  were  given  or  the  appli- 
cation were  a  joint  one. 

His  Lordship:    Oh,  yes,  they  do. 

Sir  H.  Juta  said  that  it  was  not  two 
months  since  that  Court  stated  that  un- 
less the  names  of  the  witnesses  were 
given,  it  would  not  grant  a  Commission 
except  in  the  case  of  a  joint  application. 
His  learned  friend  did  not  know  the 
names  of  the  witnesses  whom  thev  would 
have  examined ;  he  said  that  tney  did 
not  know  the  people.  He  (Sir  H.  Juta) 
took  it  thai  that  meant  that  upon  cer- 
tain points  evidence  would  be  required, 
but  he  submitted  that  they  must  have 
the  names  of  the  people,  and  that  they 
could  not  go  on  interminably.  As  to 
the  case  itself,  the  Government  made  a 
contract  with  the  plaintiffs  under  which 
the  latter  agreed  to  supply  coal,  and  in 
which  the  Government  agreed  to  pay 
certain  demurrage.  Plaintiffs  alleged 
that  it  was  defendants'  duty  to  receive 
that  coal  here  at  a  certain  rate.  The 
defendants  admitted  that,  but  now  they 
wished  to  withdraw  that  admission,  a 
course  of  action  that  he  objected  to 
entirely.  The  defendants  now  wished 
to  set  up  this  case,  that  although  they 
agreed  with  the  plaintiffis  to  pay  them 
demurrage  at  a  certain  rate,  yet,  if  un- 


42 


"CAtE  TiMBS"  LAW  ftEtORtft. 


der  their  (the  plaintifffl')  agzceiiMDia 
with  the  peraons  from  whom  thoy  got 
the  ships  thev  had  to  pay  those  people 
at  a  less  rate  they  could  not  claim  from  the 
Government,  except  what  they  had  to 
pay  those  people.  Now,  that  was,  he 
contended,  a  mere  legal  (question,  and 
he  should,  in  the  replication,  certainly 
try  to  raise  it,  so  that  they  could  get 
the  df«cision  of  the  Court  upon  this  legal 
point  before  they  went  lo  the  great  ex- 
pen:>e  of  hearing  evidence  taken  on  dnn- 
niission  in  England.  He  asked  the 
Court  not  to  grant  the  Commission  un- 
til there  had  been  an  opportunity  of 
raising  this  legal  question  before  the 
Court,  so  as  to  see  whether  it  wen^ 
necessary  to  go  into  the  facts. 

[Buchanan.  J.:  You  would  take  ex- 
cvption  to  the  plea.] 

Sir  H.  Juta :  Yea,  we  would  take  ex- 
ception to  thow  paragraphs  as  raising  no 
defence.  I  object  t*>  this  admission  bc- 
intf  withdrawn,  because  I  submit  that  an 
adniissicm,  once  made  on  the  pleadings. 
iHnuot  he  withdrawn  for  the  purpose  of 
setting  up  something  that  is  incoiM^iatent 
with  it.  Continuing,  counsel  said  that 
there  was  a  third  amendment  proposed 
in  regard  to  paragraph  8.  that  wa.s  very 
important.  The  facts,  as  ollei^ed,  were 
these:  Plaintiffs  «*eut  in  a  claim  for  de- 
murrage up<m  eighteen  ships.  They  al- 
leged that  the  Government  paid  the  de- 
murrage on  ten,  but  would  not  pay  de- 
murrage on  the  remaining  eight,  in 
respect  of  which  this  plea  was  set  up. 
Thev  admitted  that  the  plaintiffs  had 
rendered  to  the  Government  an  account 
declaring  their  claim  for  demurrage  in 
respect  of  certain  eight  sliips,  that  the 
Government  had  voluntarily  paid  to  the 
plaintiffs  certain  sums,  by  way  of  de- 
murrage in  respect  of  the  other  ahips. 
and  hitd  refused  to  pay  a  sum  of  £10,000 
odd,  or  any  part  thereof  claimed  for  de- 
murrage. The  defendants  now  wanted 
to  say  that  they  paid  a  certain  sum  in 
respect  to  demurrage,  not  in  respect  of 
any  particular  ships,  and  that  tliat  ^um 
was  cjuite  large  enough  to  cover  every- 
thing that  the  plaintiffs  were  entitled  to. 

Buchanan.  J.  :  If  parties  find  that 
their  pleadings  are  wrong,  and  wish  to 
have  an  amendment  made,  it  is  a  much 
more  convenient  practice*  to  have  the 
amendments  made  before  the  case  comes 
to  trial.  It  U  true  that  the  plaintiffs  in 
this  case  object  to  tlie  alt<>ration  on  the 
ground  that  the  plea  preiviously  filed 
lielped  their  case  more  than  the  pro- 
T)osed  one.  but  the  Court  has  io  see  that 
the  pleadinffs  meet  the  actual  facts  of 
the  case.  I  do  not  mhi  any  objection 
to  the  amendment  of  the  plea,  simply 
l)ecause  the  respondents  think  that  the 
alterations  are  not  so  advantageous  to 
them  as  the  other  pleadings  were.  In 
this  case,  looking  at  the  nature  ol  the 
claim,  and  the  results  of  investigations 
made  by  the  applicants,  their  pleadings 
certainly  do  not  represent  the  defence 
which   they   intend   to   the  actual    facts 


to  set  up.  I,  therefore,  think  that  the 
defendants  are  entitled  to  amend  their 
(Jea,  but  they  must  pay  all  expenses 
caused  by  sucn  amendment.  But  then 
there  are  two  other  questions  before  the 
Court.  One  is  that  the  defendants  wish 
to  have  a  commission  to  examine  cer- 
tain wit  masses  in  England,  whose 
evidence,  oounsel  states,  is  material  to 
the  ishuos  raised,  and  without  which 
evidence  they  could  not  safely  go  to 
trial.  The  respondents  object  to  the 
commission  because  they  say  that  the 
pleadings,  as  amended,  can  be  excepted 
to,  and,  after  the  legal  questions  which 
may  Iw  raised  by  the  exception,  have 
Iteen  decided,  it  may  be  unneoessary  to 
have  a  commission.  I  think  tliere  is 
gpc>at  force  in  that,  and  that  it  would 
be  advisable  to  have  the  exception  de- 
termined before  a  commission  issues. 
The  respondents  will  be  allowed  four- 
teen days,  within  which,  if  they  are  so 
advised,  to  exc(>i>t  to  the  amended 
pleadings.  The  further  hearing  of  tlie 
application  for  a  commission  will  be 
po^t|x>ned  until  after  tlie.  decision  on  tlie 
exce|itioii  has  Iknmi  given.  Of  course, 
the  trial  will  have  to  l>e  |X)6t|ione<J. 
Other  costs  of  this  application  will  be 
costs  in  tlie  cause. 

[Applicants'  Attorneys  :  Reid  and 
Nephew ;  Respondents'  Attorneys  : 
Fairbridge,    Ardenie  and   Lawton.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Chief  Justice  (the  Riirht 
Hon.  Sir  J.  H.  DE  Villibrs,  P.C, 
K.CM.G..  LL.D ).] 


RLIAHOK  V.  ELIAtiON. 


j         190>. 

(  Feb.  3rd. 

This  was  an  action  for  restitution  of 
conjugal  rights,  brought  by  Louisa  Ja- 
coba  Eliason  against  her  husband, 
Auguste  Emanuel  Eliason,  on  the 
ground   of  his   malicious  desertion. 

Mr.  Roux  was  for  the  plaintiff;  de- 
fendant was  in  default  The  defendant 
had  been  sued  by  odictal  citation. 

The  evidence  of  Wm.  Tliomas  Birch, 
clerk  in  charge  of  the  Marriage  Regis- 
ters, showed  that  the  marriage  took 
place  in  Cape  Town  on  the  19th  June, 
1894. 

The  plaintiff  said  that  after  they  had 
lived  aoout  a  year  and  ten  months  in 
Cape  Town  the  defendant  sent  her  for 


"  CAPE  TIMES "   LAW  REf^ORTS. 


48 


a  holiiUy  to  her  father  at  Simon's 
Towo.  He  aCterwarde  wrote  and  told 
iier  not  to  huny  to  come  back,  aa  he 
was  going  oii  ak>Qg  all  ri^ht.  When  she 
came  back  to  CM>e  Town  in  1896  she 
found  that  tlie  defendant  had  gone.  She 
was  unable  to  trace  his  whereabouts, 
and  nace  hie  departure  faAd  reoeived  no 
contribution  from  him.  There  waa  one 
child  of  the   marriage. 

Decree  of  restitution  granted,  .  with 
costa,  defendant  to  Teturu  to  or  receive 
the  plaintiff  on  or  before  the  30th 
April,  failing  which,  rule  to  issue  calling 
on  the  defendant  to  show  cause  on  the 
14th  May  why  a  decree  of  diToroe  should 
not  be  granted,  with  costs,  the  plaintiff 
to  be  declared  entitled  to  custody  of  the 
ohild,    and  order   to   be    served   in    the 

same  manner   as    directed   in   regard  to 

citation. 
Pottea  (May  15):     The  rule  was  mado 

shsM>lute. 


DB  JOKGH  V.  DK  JONOH. 

This  was  an  action  for  restitutioii  of 
<^iiugal  rights,  brought  by  Elizabeth 
(le  JoDgh  against  tier  husband,  Wni. 
John  de  Jough,  on  the  ground  of  his 
malicious  desertion.  Mr.  Close  wan  for 
the  plaintiff;  the  defendant  wais  in  do- 
fault 

Wm.  Thomas  Birch,  clerk  in  charge 
«  the  Marriage  Register,  gave  evidence 
a*  to  the  entry  of  the  marriage. 

The  plaintiff  said  she  was  married  to 
the  defendant  in  the  Wesleyan  Church, 
v^ape  Toirn,  in  1902,  and  had  previouslv 
9oo«  through  a  form  of  marriage  witr 
iJie  defendant  before  the  Landdrost  of 
unqua  Town  during  the  Boer  occupa- 
tion. Witness  and  her  husband  lived 
for  gotoe  time  at  Observatory-road  dur 
"'g  1902.  In  Noven>ber  of  that  year  he 
•*id  that  be  was  in  aome  trouble,  and 
**■  Roing  to  Canada.  Their  life  to- 
*^her  had  nut  been  happy,  owing  to 
the  defendant's  drinking  and  gambling 
nabiu.  For  six  mouths  prior  to  his  de- 
parture defendant  hacl  not  supported 
j*r-  In  February,  1905,  witness  received 
three  letters  from  the  defendant,  couched 
^affectiouate  terms,  and  promising  to 
•^  her  money.  She  had  received  no 
■Doner  frooi  him.  A  week  later  she  re- 
JJ*^M  another  letter  from  him,  saying 
that  h»  was  sending  £20  by  the  next 
^u,  and  that  unless  she  joined  him  he 
^Id  have  nothing  more  to  do  with 
"^'  WitncM  had  received  no  further 
«>o»nmnication  from  him.  For  the  pur- 
P^'^.of  these  prooeedrngs  she  had  com- 
mnnicaied  with  the  address  given  in  the 
letters,  but  had  not  been  able  to  trace 
^  defendant.  There  was  one  child  of 
^ojmarriage. 

^tee  m  restitution  granted,  with 
f^,  defendant  to  return  to  or  receive 
the  plaintiff  on  or  before  the  90th  April, 
failing  which,  rule  to  issue  calling  on 
w  defeodaxKt  to  show  cause  on  the  14th 


May  why  a  decree  of  divovce  should  not 
be  granted,  with  costs,  with  custody  to 
the  plaintiff  of  the  child,  and  mainten- 
ance at  the  rate  of  £2  per  month  until 
the  child  attains  the  age  of  sixteen 
years,  order  to  be  served  in  the  s«Bane 
manner  as  directed  in  regard  to  citation, 
in  addition  to  which,  copv  to  be  sent  by 
registered  letter  to  the  defendant,  care 
of  McKenzie,  Mann  and  Co.,  Toronto, 
Canada. 

Po9t€a  (May  15) :     The  rule  was  made 
absolute. 


POLDBN  V.  POLDKN. 

This  was  an  action  brought  by  Charles 
Polden,  a  former  sergeajit  in  the  York 
and  Lancaster  Regiment,  against  hia 
wife  for  divorce,  on  the  ground  of  her 
adultery  with  one  Richard  George,  of 
Salt  River. 

Mr.  J.  E.  R.  de  Villiers  was  for  the 
plaintiff;  defendant  was  in  default. 

Charles  Polden  (the  plaintiff)  said  he 
waa  formerly  a  sergeant  in  the  Tork  and 
Lancaster  Regiment.  In  July.  1892,  he 
was  married  to  the  defendant  at  the  Cas- 
tle, Jamestown,  St.  Helena,  ^  before  tho 
Civil  Registrar.  He  loft  his  regiment 
about  a  week  afterwards,  and  went  to 
Maritzbur^,  and  stayed  until  1894.  His 
wifd  remamed  at  St.  Helena  until  1893, 
when  she  came  to  Cape  Town  to  her 
aunt.  In  1894  witness  came  to  (^ape 
Town.  When  he  saw  the  defendant  she 
was  pregnant,  and  she  admitted  **he  wsa 
in  fault.  She  then  disappeared,  and 
witness  could  not  trac«>  her.  In  1896  Im 
went  with  hia  regiment  to  India,  and 
stayed  there  until  1902,  when  he  return- 
ed to  England  and  immediately  placed 
the  matter  in  the  hands  of  his  solicitor. 
After  delay,  hia  solicitor  obtained  from 
St.  Helena  a  photograph  of  his  wife, 
with  two  children  (one  of  his  marriage) 
and  a  man  whom  witness  did  not  know. 
A  few  days  ago  witness  found  his  wife 
livinff  with  a  Mr.  Richard  Ceorge,  in 
Kiplmg-fitreet,  Salt  River.  She  admit- 
ted that  there  were  five  children  in  the 
house,  of  four  of  whom  George  was  the 
father. 

By  the  Court:  He  could  not  take  his 
wife  with  him  from  St.  Helena  to  Natal 
because  she  was  not  on  the  strength  of 
the  reginaent.  The  arrangement  was 
that  as  his  regiment  were  moving  down- 
ward she  should  come  to  Cape  Town  and 
wait  his  arrival.  WitneciS  paid  her  ex- 
lienses  while  she  was  in  C'ape  Town. 

De  Villiers,  C.J,,  said  that  a  decree 
of  divorce  would  be  granted  as  prayed, 
subject  to  the  production  of  oertificato 
of  marriage  to  the  satisfaction  of  the 
Registrar. 


IMGBAM  V.  INGRAM. 

This  wad  an  action  for  restitution  of 
conjugal  rights,  brouarht  by  Hannah  In< 
gram  against  her  husbandi  Johan  Fred- 


44 


"CAPB  TIMES'*  LAW  REPORtS. 


eriok  C.  Ingram,  at  piesent  residing  afc 
JohanneBbuTg,  on  the  ground  c£  hw  ma- 
liciou0  desertion. 

Mr.  Rowson  waa  for  the  plaintiff;  de- 
fendant in  default. 

Hann&h  Ing^m  (the  plaintiff)  said  she 
was  married  to  the  defendant  at  West- 
minster, London,  on  the  5th  May,  1^6. 
They  nrst  resided  at  different  places 
in  London ;  they  came  out  to  ihis  col- 
ony in  1902  with  the  intention  of  settling 
here.  They  did  not  liye  happily  to- 
gether, beeause  her  husband  was  yery 
untruthful  towards  her.  He  did  not 
maintain  her  properly.  There  was  one 
child  of  the  marriage  still  surviving. 
Witness  also  asked  for  maiutenanoe  of 
the  child  at  the  rate  of  £4  a  month. 
Plaintiff  was  now  at  Johannesburg, 
wliere  he  was  employed  as  a  waiter. 
Both  witness  and  her  husband  were  Ger- 
mans. 

Decree  of  restitution  granted  with 
costs,  defendant  to  return  to  or  receive 
the  plaintiff  on  or  before  the  30th 
April,  failing  which,  rule  to  issue  call- 
ing on  d*efendaiit  to  show  cause  on  the 
14th  May  why  a  decree  of  divorce  should 
not  be  granted  with  costs,  with  custody 
of  the  child  to  the  plaintiff,  and  the  de- 
fendant to  pay  to  her  £2  per  month  for 
the  maintenance  of  the  child  until  she 
attains  the  age  of  seventeen  years,  order 
to  be  served  personally  on  the  d^en- 
daut. 

Postea  (May  15):  The  rule  was  made 
absolute. 


t^CUIUKNEliT   V.  SCHKIKNERT. 

This  was  an  action  brought  by  Peter 
Ernest  SchrienerF,  of  Cape  Town, 
against  his  wife  for  divorce  on  the 
ground  of  her  alleged  adultery  with  one 
Alfred  Schmahr,  from  whom  damages 
in  the  sum  of^  £1,000  were  claimed. 

The  declaration  set  out  that  the  first 
defendant  unlawfully  and  maliciously 
deserted  the  plaintiff  on  or  about  the 
17th  October,  1904.  and  at  divers  times 
in  1903  and  1904  had  committed  adul- 
tery with  the  second  defendant 
(Schmahr),  and  that  from  the  17th  Oc- 
tober last  the  defendants  had  been  liv- 
ing tof^ether  in  adultery  at  8,  Dorp- 
street.  Gape  Town.  Plaintiff  claimed, 
as  against  the  first  defendant,  a  divorce, 
forfeiture  of  the  benefits  of  the  marriage 
and  custody  of  the  children,  and,  as 
against  the  second  defendant,  damages, 
alternative  relief,  and  costs  of  suit. 

Tl>e  second  defendant,  in  his  ple&, 
said  he  had  tendered  to  the  plamtiff 
£50,  as  damages,  with  taxed  costs  to 
date.  He  repeated  this  tender.  He  bpe- 
cially  denied  that  the  plaintiff  had  suf- 
fcrca  £1,000  damages,  and  prayed  that, 
subject  to  the  tender,  the  claim  may  be 
dismissed,  with  costs. 

The  plaintiff,  in  his  replication,  ad- 
mitted that  the  tender  was  made,  but 
0aid  that  it  was  ii^sufficient. 


Mr.  doae  was  for  the  plaintiff;  the 
first  defendant  had  been  barred  from 
pleading  ;  Dr.  Rainsford  was  for  the 
second  defendant  (Schmahr). 

Dr.  Rainsford  applied  jfor  leave  to 
amend  the  plea  by^  mserting  the  words, 
"  save  that  ne  denies  the  ailegati<»M  of 
adultery  prior  to  the  17th  Ootober, 
1904.'' 

The  amendment  was  allowed. 

Peter  Ernest  Schrienert  said  he  was 
married  in  community  of  property  to  the 
first  defendant  at  Attona,  Grermany,  in 
1881.  ITiey  lived  together  in  Germany 
for  12  years.  Witness  then  came  out  to 
Bouth  Africa  to  found  a  business  and  a 
home.  About  nine  months  later  he 
sent  for  his  wife  and  children.  They 
lived  happily  together  until  about  three 
or  four  years  ago,  when  he  became  ac- 
quainted with  tlie  second  defendant. 
They  exchanged  visits,  the  second  de- 
fendant then  rceiding  with  another 
woman,  named  Braundt.  About  three 
years  ago  he  had  reason  to  complain  to 
Schmahr  of  his  familiarity  towards  his 
wife,  and  said  that  their  friendship  must 
(H)me  to  an  end.  The  second  defendant 
did  not  come  again.  Witness  also  spoke 
to  his  wife,  and  told  her  not  to  nave 
anything  more  to  do  with  the  second  de- 
fendant. 'Witness  and  his  wife  still  lived 
together,  and  witneiss  thought  his  wife 
was  quite  faithful.  On  the  17th  Octo- 
ber, 1904,  his  wife  came  home^  and  said 
she  had  bought  something  without  ob- 
taining his  consent.  He  had  told  her 
that  he  wanted  her  to  speak  to  him  be- 
fore she  bought  anything  but  necessaries, 
owing  to  the  bad  times.  She  became 
annoyed  and  insulted  him,  and  said  she 
would  leave  him,  and  would  go  to  an- 
other man,  whom  she  had  known  for  a 
long  while,  and  whom  she  loved  better 
tlinn  witness.  His  wife  said,  '*  Why 
can't  you  do  as  other  people  do;  you 
can  take  somebody  else  to  live  with 
you.'*  His  wife  went  out  about  9  p.m., 
but  said  she  was  coming  back.  She  did 
not  return,  and  witness  went  to  look  for 
her  next  morning.  From  a  conversation 
that  he  had  with  Mrs.  Leider,  he  learnt 
the  true  state  of  affairs,  and  he  did  not 
in()uire  further.  Witness  was  a  watch- 
maker. The  second  defendant  was  a 
brickmakcr,  and  had  landed  property. 

Cross-examined :  Witness  was  not  in 
regular  employment,  and  had  not  had  a 
regular  situation  since  a  year  ago  last 
October.  He  denied  that  he  was  addicted 
to  drink ;  he  might  get  drunk  ocoasion- 
ally.  He  had  not  treated  his  wife 
cruelly. 

Dr.  Rainsford :  You  are  out  of  em- 
ployment, and  you  thought  this  would 
be  a  good  chance  of  getting  a  large  sum 
out  of  Schmahr? 

Mr.  Close  objected   to  the  question. 

[De  Villiers,  C.J.  (to  Dr.  Rainsford): 
Surely  you  do  not  expect  witness  to 
say  ''Tes'*  to  that  question  f) 

Witness  did  not  reply. 


"CAPE  TIMES"  LAW  REPORTS. 


15 


VLt.  Cloie  aaked  Uie  witneM  whether 
Iw  had  drank  to  ezoeas,  and  whether  he 
WM  in  the  habit  of  getting  drunk  7 

[De  Yilliers,  C.J.  :  It  depends  what 
you  mean  by  *'  drinking  to  exoeM."  A 
Gennan  atudeDt  will  take  thirty  glaiseA 
of  beer,  I  believe.! 

Witness  admittod  that  he  might  ocoa- 
Monally  haTe  taken  too  much. 

Arthur  Biedeiheim,  of  Dorp-Btrcet, 
Cape  Town,  «>aid  he  knew  the  parties. 
He  had  ^een  the  first  and  second  de- 
fendanta  living  together  at  the  opposite 
house. 

Mrs.  Hannah  Leider  said  that  about 
two  years  ago  Mrs.  Schrienert  expressed 
to  her  a  wish  to  go  avid  live  with  the 
second  defendant. 

Otto  Braun,  «*  night  watchman.  Fran- 
cis Haggermau.  and  Frederick  Perle,  ar- 
ticled dbrk,  also  gave  evidence. 
This  dosed  the  plaintiff's  case. 
Alfred     Schmahr,     the     oo-defendant, 
said  he  fint  became  acquainted  with  tho 
Sdirienerts  about  twelve  years  ago.   He 
bMame  intimately  acquainted  with  them 
about  six  or  seven  years  ago ;  he  was  at 
that  time  !iving   with      Clara  Braundt. 
Mb.  Schrienert  and  Clara  Braundt  were 
on  intimate   terms.       He     invited     the 
plaintiff  to  a  Christmae  Eve  gathering, 
when  the  former  told  him  thai  lie  would 
not  come.  ai*  he  had  noticed  that  his  wife 
pitferred   his    (Schmahr'sl  home  to   her 
own.    In  October  last,  Mrs.   Sohreinert 
saw  him  at  a  restaurant,   and  said  that 
hn  husUnd   had  told  her  that  he  had 
known  for  a  long  time  thai  thero  was 
scmeone  else  she  oared  for  better.     Her 
husbsnd  told  her  that  she  could  go  away 
Witoeas  tried   to  prevail      upon      Mrs. 
Schrienert  to  go  home.    She  would  not 
^vn  witness;   he  tried   to  get   her   to 
(re  home,  but  she   would  not     Witness 
was  a  painter;  he  was  doing  practioally 
no  bttsinesf  at  present.       He  had  pro- 
perty valued  at  £671,  upon  which  there 
was  a  mortgage  for  £500.      He  did  not 
lilcA  to  say  anything     as  to  8ciirienert*s 
drinking  habits. 

CroBsezamined :  He  denied  that  he 
had  tried  to  induce  the  fint  defendant  to 
come  awajr,  and  live  with  him  two  years 
*Ko.  Witness  was  a  Dane.  He  did  not 
know  that  it  was  a  aerious  thing  to  be 
^n  arm  in  arm  with  another  person, 
^itneu  wsB  an  aurtist  in  silver  leaves. 
He  bad  40,000  bricks,  for  which  he  would 
o^..M  to  get  £1  a  thousand  if  he  could 
•ell  ihem. 

^e  fint  defendant.  Mrs.  Schrienert, 
wd  that  her  husband  often  used  to  drink 
^  Mcesa,  and  while  ihey  were  liviig  to- 
fsetber  be  treated  her  badly. 

^nsel  having  been  heard  in  argu- 
""wt  on  the  facts, 

J^  Yilliers,  C.J. :  It  would  appear 
|Ast  the  adultery  has  been  conmiitted 
o^^tweeo  the  first  and  second  defend- 
ants. The  plaintiff  is  entitled  to  divorce 
rist  the  first  defendant,  and 
for  a  declaration  that  she  has  for 
feiN  the  beoefita  under   the  marriage 


in  oommunity,  and  that  the  plain- 
tiff is  entitled  to  the  custody  of  the  ohil- 
dren.  As  to  the  seoona  defendant, 
against  whom  damages  are  claimed,  thu 
does  not  appear  to  me  to  be  a  case  in 
which  heavy  damages  should  be  award- 
ed. The  married  life  of  the  plaintiff  and 
thA  first  defendant  was  not  a  particularly 
happy  one.  nor  does  it  appear  that  the 
second  defendant  has  used  anv  special 
means  to  draw  away  the  wife  from  her 
loyalty  to  her  husband.  I  am  satisfied, 
from  the  evidence,  that  the  married  life 
of  the  plaintiff  and  the  first  defendant 
was  an  unhappy  one,  and  I  am  not 
satisfied  that  the  plaintiff  was  quite  such 
a  eober  man  as  ho  wished  the  Court  to 
believe.  But  occasional  acts  of  insobriet 
ty  would  be  no  reason  for  withholding 
damages  altogether  from  the  plaintiff, 
under  our  present  law.  The  second  de- 
fendant now  takes  the  singular  and  some- 
what unusual  course  of  throwing  the 
whole  of  the  blame  on  the  first  defend- 
ant. Usually  one  finds  in  such  a  case 
that  there  is  an  effort  made  to  shield  the 
woman.  I  consider  that  some  damaf^c* 
should  be  awarded,  and  that,  considering 
the  position  of  the  parties— they  do  not 
appear  to  be  particularly  well  off-  <aiid 
considering  the  previous  nt^Iatioik*  be- 
tween the  plaintiff  and  tlie  first  defend- 
ant, a  sum  of  £100  would  bo  quite  suffi- 
sient  to  satiafv  the  justice  of  the  case. 
Judgment  will,  therefore,  be  for  a  di- 
vorce as  against  the  first  defenduit,  plain- 
tiff to  have  custody  of  the  minor  chil- 
dren of  the  marriage,  and  forfeiture  of 
the  benefits  of  the  marriage,  and  for 
£100  against  the  second  defendant,  with 
costs  of  suit,  to  be  paid  by  the  second 
defendant. 


CAPE  TIMES,  LTD.    V.    MOKENZIE    AND 
CO.,  LTD. 

Mr.  Sutton  moved  for  judgment,  in 
terms  of  a  consent  paper,  for  £70,  with 
costs.  He  said  that  an  application  was 
made  by  way  of  motion  on  the  15th 
December  last,  calling  upon  the  defen- 
dant to  render  particulars  of  certain 
tender  that  he  had  made.  Mr.  Justice 
Hopley  did  not  make  an  order,  but  he 
said  that  the  oo:»t8  of  that  application 
should  abide  the  result  of  the  trial. 

Judgrment  granted  in  terms^  of  the 
consent  paper,  with  costs,  including  costs 
of  previous  nation. 


Ex  parte  BPRioa  and  Co.  t.   krabbr 

AND  SONS. 

Provisional  sequestration — Trus- 
tee— Practice. 

Wh^e  an  estate  has  been  pro- 
vUiotudly  sequestrated,  it  in 
not  the  practice  of  the  Ctmrt 
to  aj^point  a  provisional  truS' 


46 


J' CAPE  TI^fBS"  LAW  REPORTS. 


lee.  In  ccues  of  urgency  appli- 
eation  should  be  mad^  to  the 
Masttf  for  the  appointment  of 
a  curator  bonis. 


Mr.  Upington  moved  m  a  mattor  of 
uriconcy  for  fche  appointment  of  Alfred 
Newton  Foot  (the  former  assignee),  as 
provisional  trustee  in  the  estate  of  F. 
reaoe  and  Co.,  carrien,  Woodstock, 
with  power  to  sell  the  principal  assets, 
consisting  of  18  horses,  one  oow,  and  ono 
wagon,  pending  the  appointment  of  a 
trustee  at  the  second  meeting  of  credi- 
tors. 

Order  granted  as  prayed. 

Subsequently  De  Villiers,  (J.J.,  stated 
that  he  had  been  given  to  understand 
that  the  estate  had  only  been  provi- 
sionally sequestrated,  sik)  the  prac- 
tice had  not  been,  under  such  oircum- 
stances,  for  the  Court  to  appoint  a 
provisional  trustee,  but  for  tlie  parties 
to  apply  to  the  Master  to  appoint  a 
curator  bonis.  W^en  he  made  tho 
order  appointing  a  trustee,  be  under- 
stood tnst  it  was  an  insolvent  estate  in 
every  respect.  He  now  withdrew  the 
order,  leaving  it  to  the  applicant  to 
apply  to  t^e  Master  to  appoint  a 
curator  bonis. 


(      1905. 
A  Feb.  3rd 
(      „    6th. 


MATTHEWS  V.  OOSTHUIZEK, 


Deed  of  repudiation  of  inheritance 
— Deed  of  donation — Regis- 
tration— Consideration. 

0.  and  his  v^ife^  by  their 
mutual  will^  bequeathed  certain 
property  to  their  son  P.,  whicli 
vaa^  to  remain  under  the 
administration  of  0,  The  wife 
died.,  and  0.  adiated  under  the 
luill.  P.  became  a  man  of 
intemjierate.  habits  and  a  spend- 
thrift., and  O.,  to  protect  P. 
against  himself  induced  P.  to 
execute  a  deed^  repwHating  his 
inheritance  and  relieving  0. 
from  the  obligation  of  paying 
the  same  over^  but  by  another 
iuiftrument  executed  two  days 
aftencards  ami  termed  by  the 
jHirties  a  ''^  d^ed  of  donation y*' 
O.  made  another  settl-ement  on 
P.  in  8ubstitutio7t  for  ihe 
inheritance.  The  soealled  deed 
of  deflation  uyi«  9iot  registered. 

Held,  after  the  death  of  0.  and 
of  P.  mat,  as  there  was  full 
consideration  for  the  settlement , 


the  iA§enc€  of  rtgifAraiioti  did 
not  deprive  the  heirs  of  P.  of 
the  right  to  recover  the  benefits 
of  the  settlement  from  ihc  estate 
ofO. 


This  was  an  action  brought  bv  Caroline 
Merle  Matthews  to  obtain  a  declaration 
of  her  rights  in  connection  with  the 
estate  of  her  former  husband,  Pieter 
Marinoowitz  Oosthuizen,  now  deceased. 
The  plaintiff  was  Caroline  Merle 
Matthews  (born  Marinoowitz),  married 
without  community  of  property  to  and 
assisted  as  far  as  neea  be  by  Albert 
Lourcns  Matthews,  of  Oudtshoorn,  in 
the  district  of  Oudtshoom,  and  sues 
individually  and  as  executrix  dative  in 
the  entate  of  her  late  husband,  P.  M. 
Oosthuizen. 

Tlie  defendants  were :  (1)  Charles 
Willoughby  Herold,  in  his  capacity  as 
executor  testamentary  of  the  late 
Jacobus  Daniel  Johannes      Oosthuizen; 

(2)  Frederick  Simon  Oosthuizen,  in  his 
oapacitj  as  the  executor  dative  of  the 
late  Pieter      Marincowitz      Oosthuizen; 

(3)  Charles  Willoughby  Herold,  in  his 
capacitv  as  the  trustee  under  certain 
deed  of  donation  between  the  said  late 
Jacobus  Daniel  Johannes  Oosthuiaen 
and     Pieter     Marincowitz     Oosthuizen; 

(4)  Henry  Burton,  barrister-ai-law,  in 
his  capacity  as  curator  ad  lUetn  of 
Catharkia  Jane  Oosthuizen.  a  minor 
child  of  the  .said  late  Pieter  Marin- 
cowitz Oosthuizen;  and  (5)  Frederick 
Sunon  Oosthuizen,  in  his  individual 
capacity.  . 

The  declaration,  after  setting  out  the 
parties  to  the  suit,  proceeded : 

3.  On  October  4,  1883,  the  said  Jacobus 
D.  J.  Oosthuizen,  hereinafter  called  the 
testator,  and  his  wife  Sophia  Johanna 
Oosthuizen,  who  were  married  in  ocrni- 
munity  of  property,  executed  the  mutual 
will,  copy  whereof  (with  a  translation) 
is  hereunto  annexed  marked  ''A." 

4.  Under  clause  2  of  the  said  will,  the 
testators  bequeathed  to  their  son  Pieter 
Marincowitz  Oo&thuizen  the  farm 
Modderdrift,  t-ogether  with  the  sum  of 
£2.(X)0.  paysble  out  of  their  estate. 

5.  Under  clause  2  of  the  said  will,  the 
testators  bequeathed  ^  certain  farms, 
sheep,  and  goats  to  their  son  the  defen* 
dant  Frederick  S.  Oosthuizen.  on  con- 
dition that  he  paid  to  their  son  Pieter 
M.  Oosthuizen  the  sum  of  £4.000. 

6.  Under  clause  6  of  the  said  will,  the 
testators  bequeathed  to  their  son!)  pre- 
viously mentioned  in  the  said  will,  bmng 
Ockort  A.  Oosthuizen.  the  said  FV«ederick 
S.  Oosthuizen,  John  P.  Oosthuizen,  and 
the  Mtid  Pieter  M.  Oosthuizen,  payable 
after  the  survivor's  death  all  the  moneys 
in  the  estate,  exclusive  of  that  which  was 
specially  disposed  of,  and  all  mortgage 
bonds. 

7.  On  December  3,  1885.  the  testatrix. 
Sophia  Johanna   Oosthuizeti,  died  with- 


"CAPE  TIMES"  LAW  REPORTS. 


47 


out  the  aaid  will  haying  been  revoked, 
the  suryiTor  Jacobus  D.  J.  Oosthuizen 
adiaked  under  the  8aid  will,  took  benefits 
thereunder,  and  confirmed  it,  and  took 
out  letters  of  administration  thereunder 
a9  executor. 

8.  Thereafter  on  April  16,  1886,  the 
said  fturYLYor  pasacd  a  deed  of  Kinder- 
bewya  (a  copy  whereof  marked  **  B  '*  ia 
annexed  hereto)  in  favour  of  his  son 
Pieter  AI.  Oosthuiien,  then  a  minor,  for 
the  sum  of  £2,000,  and  the  said  deed 
i^tiH  remains  uncancelled  in  the  Debt 
Rej^stry:  the  »aid  Pieter  M.  Oo»thulzen 
6ab^4H|uently    attained    his    majority. 

9.  On  April  17,  1886,  the  said  sur- 
vivor  filiMl  the  liquidation  account  in 
the  estate,  a  copy  whereof  marked  "  C  " 
is  annexed  hereto. 

10.  On  March  10,  1891,  before  the 
notary,  E.  T.  Ashley,  the  aaid  Pieter  M. 
Oosthuizen  executed  the  deed  of  re- 
nunciation, copy  whereof  is  hereunto 
annexed  marked  '*  D,"  whereunder  he 
purported  to  renounce  all  his  right, 
title  and  interest  in  and  to  any  inherit- 
ance out  of  the  joint  estate  of  his 
parents,  and  more  especially  his  right 
to  the  farm  Modderdrift,  and  the  sum 
of  £6,000  foequeatned  to  Lim  under  the 
aforementioned  will,  to  and  in  favour  of 
his  said  father,  the  said  Jacobus  D.  J. 
Oosthuizen,  and  giving  his  said  father 
full  and  absolute  power  and  authority 
to  dispose  of  his  inheritance  aa  he  (the 
said   father)  may  think   fit  and  proper. 

11.  On  March  12,  1891,  before  the  said 
notary,  the  said  Jacobus  D.  J.  Oost- 
huizen executed  a  deed  whereunder  he 
purported  to  grant  as  a  donation  to 
GyM>ert  Benedfictua  Reitz  in  trust  to 
his  son,  the  said  Pie<ter  M.  Oosthuizen, 
the  farm  Middel water  and  the  said 
farm  Modderdrift,  then  registered  in 
the  name  of  the  said  Jacobus  D.  J. 
Oosthuizen,  and  the  sum  of  £1,500,  aub- 
ject  to  a  life  interest  in  favour  of  him, 
the  said  Jacobus  D.  J.  Oosthuizen:  a 
copy  of  the  said  deed  is  hereto  annexed, 
marked  **  E,'*  and  the  said  Reitz  accept- 
ed the  said  gift  on  behalf  of  the  said 
Pieter  M.  Oosthuizen. 

12.  The  said  Pieter  M.  Oosthuizen 
received  no  consideration  for  the 
renunciation  of  the  bequest  of  the  said 
farm  Middeldrift.  and  the  £2,000  pay- 
able out  of  the  testators'  estate  and  the 
£4,000  payable  by  the  said  F.  S.  Oost- 
huizen save  and  except  the  donation 
under  the  deed  of  gift  of  March  12, 
1891.  The  defendant,  F.  S.  Oosthuizen, 
has  paid  the  said  sum  of  £4,000  into  the 
hands  of  the  defendant,  C'.  W.  Herold, 
in  his  capacity  as  executor  testamentary 
of  the  estate  of  the  testator,  J.  D.  J. 
Oosthuizen. 

13.  The  said  farm  Middelwater  in 
the  said  donation  mentioned  was  the 
property  of  O.  A.  Oosthuizen,  and  was 
moHgaged  to  the  testator  for  £2,000, 
which  was  cancelled,  and  on  the  4th 
April,  1891,  the  said  O.  A.  Oosthuizen 
transferred  the  said  farm  to  trustees  in 


trust  for  the  said  P.  M.  Oosthuizen, 
in  pursuance  of  an  arrangement  be- 
tween himself  and  the  testator,  and  in 
furtherance  and  for  the  purpose  of 
carrying  out  the  arrangement  between 
the  testator  and  P.  M.  Oosthuizen, 
which  is  embodied  in  the  two  deeds  of 
the  10th  and  12th  March,  to  wit,  the 
deeds  of  renunciation  and  donation 
which  formed  part  and  parcel  of  an 
arrangement  between  the  testator  and 
his  said  son  by  which  the  latter  re- 
nounced his  inheritance  which  would 
have  belonged  absolutely  to  him  in 
order  that  the  said  inheritance  or  its 
equivalent  in  land  and  money  should 
be  again  donated  to  him,  but  m  such  a 
way  that  it  would  not  belong  to  him 
absolutely,  the  said  P.  M.  Oosthuizen 
having  at  the  said  date  and  prior 
thereto  become  greatly  addicted  to  in- 
temperance and  in  consequence  thereof 
become  a  squanderer  of  the  moneys 
given  him  by  said  father  for  the  pur- 
poses of  education  and  otherwise.  The 
deed  of  donation  of  the  12th  March, 
1901,  is  registered  in  the  Deeds  Registry, 
together  with  the  said  deed  of  transfer, 
copy  whereof  is  hereunto  annexed, 
marked  "  F,"  but  the  said  deed  of 
donation    is   not  otherwise    registered. 

14.  Under  clause  7  of  tlie  said  deed  it 
was  provided  that  the  said  Pieter  M. 
Oosthuizen  shall  never  -at  any  time  have 
the  right  of  selling  or  alienating 
either  the  right  to  the  rent  or  receipts 
of  the  said  farms,  or  the  interest  of  the 
said  sum  of  £1,500,  nor  shall  he  be 
allowed  to  sell,  alienate,  or  otherwise 
dispose  of  his  right  to  the  said  farms  or 
the  said  sum  during  his  lifetime  except 
by  will  or  by  ante-nuptial  contract,  it 
being  clearly  understood  that  such  dis- 
position by  will  or  ante-nuptial  oon- 
tract  shall  have  the  effect  only  after 
his  death. 

15.  On  March  7,  1892,  before  the 
notary.  O.  E.  Boulton,  the  said  Pieter 
M.  Oosthuizen  entered  into  the  ante- 
nuptial contract,  copy  whereof  is  here- 
unto annexed  marked  "  O,"  with  the 
plaintiflF,  then  Caroline  Merle  Marin- 
oowitz;  and  the  said  Pieter  M.  Oost- 
huizen and  the  plaintiff  were  married 
on  March  15,  1892,  and  the  said  con- 
tract was  duly  registered  according  to 
law. 

16.  Under  clause  5  of  the  said  con- 
tract, and  subject  to  the  conditions 
therein  mentioned,  the  said  Pieter  M. 
Oosthuizen  settled  upon  the  said 
Frederick  S.  Oosthuizen  for  and  on 
behalf  of  the  plaintiff  the  sum  of  £2,000, 
and  it  was  provided  under  section  (d)'of 
the  said  clause  that  at  the  death  of  the 
plaintiff  the  said  sum  of  £2,000 
should  go  to  and  become 
the  property  of  any  child  or 
children  issue  of  the  said  marriage  be- 
tween Pieter  M.  Oosthuizen  and  the 
plaintiff,  but  should  there  be  no  chil- 
dren of  the  marriage,  then  at  the  death 
of  the  plaintiff  (provided  she  survive  the 


48 


u 


CAPE  TIMES"  LAW  REPORTS. 


said  Pieter  M.  OorthuixeD),  the  Mid 
sum  of  £2.000  should  be  equally  divided 
between  toe  biotheiB  and  sisten  <^  the 
Mad  Pieter  M.  Oo&thuizen;  and  it  was 
further  provided,  under  section  (c)  of 
the  Mid  clause,  tnat  at  the  death  of  the 
Bsid  Pieter  M.  Oosthuizen  the  plaintiff 
should  be  entitled  to  the  interest  ac- 
cruing on  the  Mid  £2,000  m  long  as  sb^ 
shall  live,  but  that  under  circumstances 
(which  did  not  happen),  the  said  gift 
bequest  should  be  null  and  void ;  the 
«aia  P.  M.  Oosthuizen  did  not  hand  over 
the  £2,000  to  the  said  P.  S.  Oosthuizen, 
and  nothing  was  aotuallv  done  with  re- 
gard to  anj  sum  of  £2,000  under  the 
said   antenuptial  contract. 

17.  On  Decemiber  30,  1893,  the  said 
O.  B.  Reitz  died,  and  therealter  the 
defendant  Hea:x>ld  was  appointed  in   his 

Slace  as  trustee  under  the  aforesaid 
eed,  by  notarial  deed,  executed  bv  J. 
D.  J.  Oosthuizen.  dated  30th  July, 
1895. 

18.  On  October  18,  1894,  the  said  Pieter 
M.  Oosthuizen  executed  his  last  will  and 
testament,  a  copy  whereol  is  anncKed 
hen^o  marked  ^'^H." 

19.  On  March  18,  1895,  the  said  Pieter 
M.  Oosthuizen  executed  a  notarial  bond 
for  £3,000  in  favour  of  the  Mid  Frederick 
S.  Oosthuizen  (copy  whereof  is  here- 
unto annexed  marked  '*  I "),  binding 
all  his  right,  title,  and  interest  under  his 
parents'  will  as  collateral  security  for 
the  payment  of  the  said  sum  ol  £3,000 
owing  by  him,  and  in  order  to  render 
the  said  bond  effectual,  ceded,  trans- 
ferred, amd  absolutely  conveyed,  sub- 
ject to  an  equity  of  redemption,  to  the 
ftaid  Frederick  S.  Oosthuizen  all  his 
right,  title,  and  interest  to  the  inherit- 
aiwe  coming  due  and  pa^i^le  to  him  (the 
said  Pieter  M.  Oosthuizen)  under  the 
joint  vrill  of  the  said  Jacobus  D.  J. 
Oosthuizen  and  the  late  Sophia  Johanna 
Oosthuizen,  the  ssdd  bond  bM  been 
duly  registered;  and  the  parties  crave 
leave  to  refer  to  its  terms,  and  also  to 
the  tenns  of  a  document  signed  by 
Jacobus  D.  J.  Ooethuizen.  the  testator, 
on  the  2nd  November,  1904,  copy  where- 
of is  annexed  marked  "K." 

20.  On  January  24,  1896,  the  said 
Pieter  M.  Oosthuizen  died,  leaving  the 
aforesaid  will  ("H")  unrevoked;  and 
leaving  two  minor  children,  named 
Daniel  Johannes  Oosthuizen  and 
Catherina  Jane  Oosthuizen. 

21.  The  plaintiff  and  the  Mid  Frederick 
S.  Oosthuizen  were  thereafter  apporntod 
executors  dative  in  the  estate  of  tne  said 
Pieter  M.  Oosthuizen. 

2£.  The  minor  child,  Daniel  J.  Oost- 
huizen. died  intestate  and  unmarried  on 
September  28,  1896. 

23.  The  Mid  Pieter  M.  Oosthuizen  left 
at  his  death  no  assets,  Mve  such  as  he 
may  be  entitled  to,  either  under  the 
aforesaid  deed  ("E"),  or  under  the 
will  of  his  parents:  save  that  the  farm 
Middelwater  is  registered  in  his  favour 
according  to  fransfer  deed,  but  the  said 


farm  Modderdrift  is  still  registered  in 
the  name  of  the  said  Jacobus  D.  J. 
Oosthuizen. 

24.  The  bond  of  £3,000  hu  not  been  in 
whole  or  in  part  paid  or  discharged, 
and  the  said  sum  of  £3^000  is  owing  by 
the  estate  of  the  said  Pieter  M,  Oost- 
huizen to  the  Mid  Frederick  S.  Oost- 
huizen for  advances  made  from  time  to 
time  by  the  said  F.  S.  Oosthuizen  to  the 
Mid  P.  M.  Oosthuizen. 

25.  On  June  9,  1897,  the  plaintiff  was 
married  to  Albert  Lourens  Matthews, 
without  community  of  propertv. 

26.  On  September  3,  1901,  the  said 
Jacobus  D.  J.  Oosthuizen,  the  testator 
(who  had  remarried)  executed  the  will, 
copy  whereof  is  annexed  hereto  marked 
"  L,"  and  on  June  11,  1903,  he  died, 
leaving  the  said  will  unrevoked.  By 
file  said  will  the  testator  does  not  pur- 
port to  deal  with  the  immovable  pro- 
perty referred  to  in  the  deed  of  dona- 
tion of  the  12th  March,  1891,  nor  in 
terms  with  the  £1,500  therein  men- 
tioned. 

27.  The  said  Herold  hM  taken  out 
letters  of  administration  as  sole  executor 
under  the  said  will,  the  said  Frederick 
S.  Oosthuizen  not  naving  taken  up  his 
appointment. 

Wherefore  the  plaintiff  claims:  (a) 
That  she  is  entitled  to  sum  of  £2,000, 
whi(^  was  originally  settled  upon  her  by 
antenuptial  contract,  in  accordance  with 
the  conditions  set  forth  in  the  Mid  con- 
tract, absolutely  as  her  own  free  and 
separate  property  and  free  from  the 
trusteeship  of  tne  Mid  Frederick  S. 
Oosthuizen  or  anyone  else,  the  same 
having  been  given,  to  her  absolutely 
under  the  will  of  her  late  husband 
(Pieter  Marincowitz  Oosthuizen).  fb) 
That  in  accordance  with  the  terms  of  toe 
said  will,  she  is  further  entitled  to  an 
annual  payment  of  £1(X)  out  of  the 
estate  of  her  late  husband,  she  having 
contracted  a  second  marriage.  (^ 
That  she  be  declared  entitled  to  one- 
fourth  part  or  share  of  the  remainder  of 
the  estate  of  her  said  late  husband,  left 
after  payment  of  special  bequests ;  she 
claimino'  the  said  fourth  as  mother  and 
heir  ab  iiUestato  of  the  deceased  minor 
child  of  her  husband  and  henelf,  name- 
'v.  the  late  Daniel  Johannes  Oosthuizen. 
(d)  A  declaration  that  the  deed  of  gift 
of  the  12th  March,  1891,  is  legal  and 
valid ;  or  in  the  alternative,  in  case  this 
Honourable  Court  should  find  thai  the 
said  gift  is  not  legal  and  valid,  or  is 
not  legal  and  valid  beyond  the  sum  of 
£500.  (e)  A  declaration  that  the  re- 
nunciation of  10th  March,  1891,  was  not 
valid  or  binding  and  that  the  estate  of 
the  late  P.  M.  Oosthuizen  is  entitled 
to  the  farm  Modderdrift  and  the  two 
sums  of  £2,000  and  £4,000  bequeathed 
to  him  in  terms  of  the  said  will  of  his 
parents,  (f)  A  declaration:  That  the 
bond  in  favour  of  F.  S.  Oosthuizen 
creates  no  preferential  rights  over  the 
property  included  in  the  deed  of  doq«- 


'M;APE  TIMES"   LAW   REPORTS. 


40 


lion.      (g)  Altorn&tive    relief.       (h)  Costs 
of  >uit. 

Sir  H.  Juta,  K.(\  (with  him  Mr.  Py«^ 
iLont)  for  tht^  plaiutifF.  Mr.  (loso  for 
the  first  defendant.  Mr.  Rus«cll  for  the 
:«et-oud.  Mr.  MeGreffor  for  the  third. 
XIr.  Burton  for  the  iwirth.  Mr.  M.  de 
Villicrs  (with  him  Mr.  Sutton)  for  the 
fifth. 

Mr.  Russell  submitted  to  the  judg- 
meiit  of  the  Court. 

Sir  H.  Juta  explained  the  principal 
fact*  of  the  case.  In  regard  to  the 
pleas  of  the  defendants,  lie  said  that 
the  main  contention  was  that  the  deed 
of  donation  was  invalid  except  as  to 
£500.  His  learned  friend  (Mr.  Bur- 
ton) contended  that  Mrs.  Matthews  was 
not  entitled  to  the  £2,000  individually, 
Init  must  come  in  according  to  the 
ante-niiptial  contract.  Mr.  Frederick 
Oosthuizen  claimed  that  his  bond  of 
£3,000  was  preferent  upon  the  inherit- 
ance which  Pieter  got  from  his 
parents. 

Edward  Thomas  Ashley,  notary 
public.  said  that  in  1891  he  was  in 
young  Mr.  Reitz's  office  in  Cape  Town, 
and  in  the  absence  of  Mr.  Reatz  he 
took  charge.  He  knew  Pieter  Oost- 
huizen. Pieter  was  intemperate  in  his 
habit»,  and  squandered  his  money. 
Witness  remembered  Pieter  and  his 
faiher  calling  at  his  office  in  March, 
1891,  whon  the  deed  of  renunciation  was 
drawn  up.  Pieter  said  he  knew  what 
the  document  meant.  A  deed  of  gift 
was  being  drawn  up  at  the  same  time. 
One  document  would  not  have  boon 
executed  if  the  other  had  not  been 
executed. 

Cross-examined  by  Mr.  Close :  The 
only  reason  why  both  documents  were 
not  drawn  together,  he  thought,  was 
that  they  were  very  bu:«y  at  the  office. 
Perhaps  one  of  the  documents  was  not 
quite  ready  at  the  time.  Pieter  knew 
that  he  was  to  get  the  donation  at  ^i'<: 
tinio  lie  signed  the  repudiation. 

Mary  Jane  Oosthuizen,  widow  of  tiie 
late  Jacobus  Oosthuizen,  said  that  i\,e 
was  the  second  wife  of  Mr.  Oostlur;(cn 
and  was  married  in  1885.  They  cr.nie 
to  live  in  the  Gardens,  Cape  Town. 
Pieter  was  educated  at  the  Sojth 
African  College;  he  was  to  have  been 
sent  to  study  for  medicine  in  Europe, 
hut  ho  g^ave  way  to  drink.  Ho  was 
\ery  violent  at  times,  and  was  a 
squanderer.  Pieter  was  sent  to  farm  at 
Middelw^ter.  Witness  was  acquainted 
with  the  deed  of  gift  made  by  her 
husband. 

On  a  point  raised  by  Mr.  Close,  it 
was  agreed  thai  t'le  evidi?nce  should 
be  taken  down  sul  joct  to  elimination 
in  case  it  wore  decided  to  be  inadmis- 
sible. 

Witness  (continuing)  said  that  her 
husband  told  lier  that  he  had  conferred 
the  gift  on  his  son  to  save  him  from 
getting  rid  of  all  his  property.  Her 
husband    mentioned      the    deed   of    re- 

15 


nunciation.  He  said  the  son  had  given 
up  the  whole  of  his  inheritance  to  him 
in  order  to  save  him  (tlie  son)  from 
>«luanderiuK  the  money. 

By  Mr.  Cloi?e :  The  son  was  wanting 
monoy,  and  this  was  the  reason  wiiy 
they  took  these  .safeguards. 

This  concluded  the  evidence,  and 
counsel   were  then   heard  in  argument. 

bir  H.  Jul  a  said  that  the  first  point 
was  whether  the  deed  of  donation  should 
stiiiid  ove?-.  He  submitted  that  iho 
fact  was  clear  that  everything  was  done 
in  order  to  save  this  young  man  from 
himself.  The  evidence  was  that  the 
deed  of  donation  was  made  in  consider- 
ation of  the  deed  of  renunciation.  The 
crisp  point  might  be  raised  whether 
want  of  registration  was  any  defence 
where  the  donee  sued  the  donor.  If 
the  deed  of  donation  stood,  the  position 
would  be  that  one  farm  already  stood 
in  plaintiff's  name,  and  the  other  would 
have  to  be  transferred   to  her. 

Mr.  Close  contended  on  behalf  of  the 
first  defendant  that  the  deed  of  renuncia- 
tion was  valid,  and  that  the  deed  of 
donation  was  not  valid,  owing  to  non- 
registration, to  the  extent  of  more  tna:i 
£500.  The  more  acceptance  of  the 
donation  by  the  donee  did  not  make  the 
deed  of  donation  valid ;  it  requirt-d 
registration  before  the  deed  became 
valid. 

[De  Villiors,  C.J. :  Isn't  there  a  con- 
tract— a  contract  binding  on  both 
parties?  W^ould  either  document  have 
been  executed  if  the  other  had  not 
been  ?] 

Mr.  Close  said  that  if  the  object  of 
the  parties  had  been  as  contended,  the 
contemplated  result  could  have  been 
easily  arrived  at  in  a  number  of  other 
wavs. 

[bo  Villiors.  C.J.  :  What  could  it 
possibly  mean  but  a  miitual  'considera- 
tion?] 

Mr.  Close  «»aid  the  two  documents 
were  quite  distinct. 

[Do  VilHers,  C^J.  :  The  two  deeds 
stand  or  fall  together.] 

Mr.  Close  quoted  a  number  of  autho- 
rities in  support  of  hi.4  contention  that 
there  must  W  registration  to  make  such 
a  document  a  valid  transaction. 

Sir  H.  Juta  said  he  might  shorten  iho 
case  by  intimating  that  if  the  Court  up- 
held the  deed  of  donation  his  client 
would  ho  quit-e  prepared  to  withdraw 
the  first  claim  providnig  that  tho  matter 
of  the  two  thousand  pounds  should  bo 
settled  ■'•in  terms  of  the  ante-nuptial  con- 
tract ;  and  they  were  further  prepared 
to  allow  Mr.  Frederick  Or»sthuizen  pre- 
ference for  the  whole  of  his  debt  of 
£3,186. 

Mr.  Close  said  he  would  submit  to  the 
order  of  the  Court  in  regard  to  this. 

Mr.  McGregor  said  that  a  difficulty  in 
his  mind  was  whether  the  trustee  could 
pass  by  the  persons  benefited  by  tho 
donation  in  order  to  make  a  preference 
in  the  case  of  Frederick  Oosthuizen, 


iO 


••(APE  TIMES"   LAW  REPORTS. 


Mr.  Burton  said  that  his  case  was  met 
by  the  offer  of  Sir  H.   Juta. 

Cur.    Adv.    VuU. 

Pottea  (Fobniarv  6th) : 

De  Villiers,  C.J. :  The  only  question 
of  any  importance  which  the  Court  haa 
to  decide  in  the  ppcsont  case  is  whether 
or  not  the  deed  of  donation,  the  so- 
callod  deed  of  donation,  was  a  valid 
instrument.  If  it  were  a  valid  instru- 
ment there  would  bo  no  difficulty  in  the 
decision  of  all  the  further  questions 
that  have  been  raised.  I  understand 
that  the  plaintiff  withdraws  her  claim 
for  £2.000  under  the  ante-nuptial  con- 
tract. Therefore,  it  is  unnecessary  for 
n>e  to  say  anything  about  the  other 
matti>rs,  except  the  simple  questions  ae 
to  the  deed  of  donation. 

Sir  IT.  Juta:  What  the  plaintiff  with- 
draws is  that  she  is  entitled  absolutely 
to  the  claim  of  £2,000. 

De  Villiere,  C.J.  :  So  I  understand. 
The  deed  of  donation  was  excuted  under 
the  following  circumstances:  Jacobus 
Oosthuizen  and  his  wife,  -who  seem  to 
have  been  possessed  of  considerable  pro- 
perty, made  a  mutual  will,  under  which 
Pieter  Marincowitz  (the  son)  acquired 
very  important  rights,  to  take  effect  on 
the  death  of  the  surviving  testator. 
The  testatrix  died,  and  the  son  Pieter 
Marincowita  turned  out  to  be  a  siiend- 
thrift  and  a  drunkard,  and  the  father 
(the  survivor),  to  protect  the  son  Pieter 
against  himself,  entered  into  negotia- 
tion with  him,  with  the  result  that  the 
son  repudiated  the  inheritance,  the 
whole  of  which  was  in  the  father's 
hands,  and  the  father  on  his  side  effect- 
ed a  deed  of  donation  by  which  this 
property  going  to  the  son  would  be 
bound  in  such  a  manner  that  it  would 
Ix"  impossible  for  him  to  squander  it. 
It  is  quite  clear  that  the  negotiations 
for  the  execution  of  tlie  two  documents 
Avere  entered  into  at  the  same  time. 
The  deed  of  repudiation  wa.s  executed 
on  the  10th  March ;  the  deed  of  dona- 
tion was  executed  two  days  afterwards. 
But,  in  my  opinion,  even  if  there  had 
been  no  oral  evidence  in  the  case,  it 
would  have  been  a  clear  case,  in  which 
the  two  documents  should  stand  or 
fall  together.  If  one  of  the  documents 
falls,  tne  other  must  fall  also,  because, 
although  the  second  donation  is  called 
a  "  deied  of  donation,"  it  was  intended 
to  substitute  one  mode  of  settlement 
for  another.  There  was  ample  con- 
sideration given  for  this  deed  ;  the 
father  was  released  by  the  deed  of  re- 
pudiation from  all  the  liability  which  he 
had  incurred  to  his  son  under  the  will 
which  he  and  his  wife  had  executed, 
and  under  which,  after  his  wife's  death, 
he  had  adiated.  It  is  called  a  deed  of 
donation,  but  I  look  upon  it  as  a  settle- 
ment executed  with  full  consideration 
given  to  the  father.  The  Court  has 
repeatedly  said  that  it  will  look  at  the 
real  substance  of  a  transaction,  Rnd  not 


at  what  the  parties  called  it.  Even  if 
it  were  a  deed,  accepted  as  a  deed  of 
donation,  it  would  certainlv  fall  under 
the  class  of  donations  which  are  called 
remunoratory,  in  regard  to  which  it 
has  been  held  by  Voet  and  others  that 
no  registration  is  required.  This  was  a 
document  given  for  valuable  considera- 
tion, and  no  registration  was  requirc>d 
as  agaiiust  the  estate  of  the  father,  who 
is  now  deceased.  For  the  reasons  I 
have  stated,  I  am  of  opinion  that  the 
prayer  of  the  plaintiff  that  this  deed  of 
donation  should  he-  declared  to  be  a 
valid  instrument  should  be  acceded  to. 
That  seems  to  be  the  real  question  be- 
tween the  parties. 

After  hearing  counsel  in  regard  to 
other  points  in  the  case,  and  more  par- 
ticularly in  relation  to  the  claims  in  re- 
convention, 

De  Villiers,  C.J.  :  I  could  not  have 
held  that  the  claim  of  F.  S.  Oosthuizen 
for  a  preference  against  the  estate  of 
Pieter  by  reason  ol  his  bond  could  be 
maintained,  but  that  question  does  not 
now  arise,  as  I  understand  it  has  been 
agreed  between  the  parties  that  a  sum 
of  £3.186  shall  be  paid  in  respect  to  that 
claim.  Judgment  will  be  for  the  plain- 
tiff in  terms  of  prayers  (b),  (c),  and  (d) 
of  the  declaration,  plaintiff  agreeing  to 
the  sum  of  £3,186  being  paid  to  Frede- 
rick Simon  Oosthuizen  in  his  individual 
capacity.  There  will  be  no  order  upon 
the  different  claims  in  reconvention. 
As  to  costs,  one  quarter  will  be  paid 
by  the  executors  of  the  estate  Jacobus 
Daniel  Johannes  Oosthuizen.  and  the 
remaining  three-quarters  by  the  execu- 
tors of  Pieter  Marincowitz    Oosthuizen. 

Sir  H.  Juta  asked  their  lortishipe  -f 
the  order  included  both  coets  of  nction 
rnd  costs  of  special  case. 

De  Villiers,  C.  J. :    All  costs. 

On  the  application  of  Mr.   McGregor, 

De  Villiers.  C.J.,  said  that  the  Court 
would  also  authorise  C.  W.  Herold  as 
the  trustee  under  the  deed  of  donation 
to  hand  over  all  assets  of  Pic^ter  Marin- 
cowitz Oosthuizen  to  the  executors  of 
the  estate. 

[Plaintiff's  Attorneys :  Tredgold. 
Mclntyre  and  Bisset ;  Attorney  for  Ut. 
3rd,  and  5th  defendants :  Herold  and 
Oie;  Attorney  for  2nd  and  4th  defen- 
dant:  Blayney.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  M  A  ABDORr.] 

GENERAL  MOTION. 
RHODES    V.    RHODE.S    AND    f        190.*;. 

BOWEN.  k  Feb.  3rd. 

Mr.  P.  Jones  applied  to  have  this  mat- 
ter «et  down  for  the  21st  inst.,  in  order 


"f'APE  TIMES"   LAW  REPORT& 


r>i 


tint  some  date  in  March  would  bo  fixed 
for  tiitl,  as  the  second  defendant,  who 
wu  being  sued  for  damages^  as  co-de- 
ft'ndant  in  the  action  for  divorce,  was 
comins  from   Australia    to   defend    the 

Application  (granted. 


TKIAL  CAUSE. 


BBWK  V.  A  YEN  ANT, 


< 


r    190). 

I  Feb.  3rd. 

,f  6th. 

„  7th. 

Apr.  2t>th« 

^May  Ist. 

Trespass — Damages — Beacons — 
Prescription. 

The  declaration  set  out  that  the  plain- 
tiff was  a  farmer,  of  Taarboach  Kraal, 
in  the  division  of  Sutherland,  and  the 
defendant  belonged  to  Putterskraal,  in 
tbe  same  division.  From  time  to  time 
in  recent  years,  and  more  especially 
about  February,  1905,  and  thereafter, 
the  defendant  wrongfully  trespassed  by 
n)ean«  of  his  servants  upon  plaintiffs 
farm,  with  his  sheep  and  cattle,  which 
he  grazed  thereon,  and  refused  to  desist 
when  called  up  to  do  so.  The  defend- 
ant asserted  that  the  bounary  line  be- 
tween his  and  the  plaintiff's  farm  was 
the  straight  line  from  the  point  '*  Zwak 
water"  to  point  '(',"  and  claimed  the 
whole  of  the  area  **  Zwakwater,  C,  and 
B"  as  his  own  propertv.  Plaintiff 
riaimed  a  declaration  of  rights  as  to 
the  boundary  line,  that  the  true  line  was 
astraiffht  line  between  the  point  '*  Zwak- 
water  *»  and  "  B,"  of  the  plan,  and 
vUimed  £500  damages. 

The  amended  plea  aet  out  that  the 
tnio  boundary  line  was  a  straight  line 
from  Zwakwater  to  the  point  "  G,"  and 
that  the  beacon  at  **  G  "  was  a  true  and 
porrect  beacon  in  that  direction.  The 
defendant  asserted  there  was  in  exist- 
ence before  1865,  and  still  in  existence 
near  the  line  '*  Zwakwater,  G,"  a  beacon 
Known  as  the  Boech  Beacon,  which  was 
in  1865.  and  thereafter  admittedly  the 
true  and  correct  beacon  for  the  purposes 
of  the  Land  Beacons  Act,  of  1865.  and 
in  1880,  in  the  sub-division  of  Koren- 
Plaats.  the  beacon  "  G  ''  was  erected  and 
jpopted  by  the  surveyor  instead  of  the 
Bosch  beacon.  Thereafter  beacon  "  G  " 
OM  been  continuously  claimed  by  the  de- 
BMidant,  and  his  predecessors,  and  until 
about  three  years  ago  was  recognised  by 
»e  plaintiff  and  his  predecessors  for 
more  than  thirty  years  as  the  correct 
beacon.  In  reconvention,  the  defend- 
ant claimed  a  declaration  of  rights 
and  £300  damages  for  trespass. 

The  replication  was  general. 

Mr.  Searle,  K.C.  (with  him  Mr.  Van 
Zyt),  was  for  the  plaintiff,  and  Mr. 
Bchieiner.  K.C.  (with  him  Mr.  Gardiner), 
was  for  the  defendant. 


Isaac  Merring,  Government  land  sur- 
veyor, atated  that  in  November,  1900, 
he  was  requested  by  the  plaintiff  to  re- 
survey  the  farm  Taaiboscn  Kraal.  Be- 
fore proceeding  there,  he  had  a  paper 
tracing  of  the  Government's  ground,  sur- 
rounding the  farm  on  the  north,  east, 
and  west.  When  he  went  on  the  ground 
the  plaintiff  and  his  brother  pointed  out 
the  beacons  at  Taaibosch  Kraal,  which 
coincided  with  a  Government  survey  in 
1886.  At  the  point  "  B "  on  the  plan 
he  found  an  old  beacon  on  the  point  of  a 
range  of  hills.  He  took  that  as  the 
south-east  corner  of  Taaibosch  Kraal. 
There  were  no  mason  beacons  on  the 
surrounding  farms — they  were  all  packed 
stones.  The  Boerman's  Hoek  Deacon 
was  also  on  the  edge  of  a  hilL  He  could 
not  get  his  survey  to  fit  in  with  the  old 
diagram,  which  ho  now  regarded  as  un- 
reliable. Taaibosch  Kraal  was  surveyed 
for  sub-division  in  1876,  and  the  tuir- 
veyor  tlien  took  the  beacon  marked 
*'  B."  In  August,  1903,  ho  was  in  the 
district  when  a  beacon  marked  '*  G  '*  was 
pointed  out  to  him  on  the  edge  of  the 
river  bed.  and  he  concluded  that  it  was 
newly  piled  up  in  a  heap.  The  angles  of 
the  original  diagram  did  not  correspond 
with  the  beacons. 

Cross-examined  by  Mr.  Schreiner: 
Witness  did  not  go  to  see  if  there  was 
beacon  "  C,"  which  was  claimed  for  the 
plaintiff.  When  ho  did  his  survey  ho 
did  not  know  there  was  a  dispute  on 
between  the  parties.  He  did  not  tra(x> 
the  remains  of  any  old  beacons,  which 
had  been  knocked  down.  The  ground  in 
dispute  was  about  .250  morgen. 

Re-examined  by  Mr.  Searle:  It  was  a 
very  hilly  district,  and  it  waa  possible 
he  could  not  see  a  conspicuous  Deacon. 
Witness  made  an  independent  investiga- 
tion without  reference  to  a  previous  sur- 
vey. 

StephanuB  Brink  (plaintiff),  owner  of 
the  farm  Taaibosch  Kraal,  stated  the 
defendant  was  his  brother-in-law,  and 
owned  an  adjoining  farm.  Witness  was 
bom  on  the  farm  where  he  had  lived 
all  the  time.  His  father  and  his  uncle 
previously  owned  the  farm.  About  five 
years  ago  he  bought  the  farm  from  his 
mother.  After  his  father's  death,  the 
children  looked  after  the  farm  while  the 
mother  was  still  alive.  Ho  had  known 
the  beacon  on  the  river  side  since  he 
had  knowledge.  There  was  no  other 
beacon  he  knew  of  in  that  neighbour- 
hood. The  defendant  had  lived  at 
Putterskraal,  he  believed,  from  1889  or 
1880.  Witness's  father  had  trouble  with 
the  defendant  about  the  boundary,  and 
he  held  a  commission  because  the  defen- 
dant trespassed  on  the  line.  The  tros- 
pass  on  that  occasion  amounted  to  £7 
or  £8,  through  the  defendant's  sheep 
coming  across  the  line.  There  was  no 
further  trouble  with  defendant  during 
his  mother's  time.  The  defendant  pajd 
the  damage  claimed,^  although  he  did 
not  attena  the  ogmmission.       In  Febni- 


62 


"CJAPE  TIMES"    LAW  REPORTS. 


ary,  1903.  the  defeodajit  allowed  his 
cattle  U>  again  cross  the  lino,  and  refu^<?d 
to  pay  tho  dani>ago.  \Vitnoss  kjicw  the 
place  whore  tho  dofonchint  dainiod  that* 
Mr.  (vfeatiiead  put  up  a  I)cacon  by  a 
river  cour?e.  Witness  fin»t  saw  tho 
Ix'acon  ten  years  a^o.  Aven.mt  put  it 
up,  and  took  it  away  on  "witnesa  send- 
ing him  notice.  Last  yejir  it  was  put 
up  again.  Witmees  had  sustained  con- 
siderable damage  by  the  trespafses. 

Cross-examined  by  ^Mr.  Schroiner : 
Witne«$s  pointed  out  the  lx>acon  to  Mr. 
Meiring.  The  defendant  was  dissatis- 
fied with  the  land  according  to  his  dia- 
gram. Alx)ut  a  year  before  his  father's 
death  the  commission  was  hold.  The 
defendant  was  quite  content  with  £7 
or  £8,  although  he  did  not  attend  the 
commission.  There  was  another  com- 
mission during  his  mother's  time,  and 
the  defendant  paid  witnovss  £4  or  £5.  If 
witness  cut  off  this  pieco  of  ground, 
the  dam  constructed  by  the  defendant 
would  be  of  very  little  use.  There  was 
a  little  dam  before  the  commission,  and 
after  defendant  paid  the  money,  he 
constructed  a  larger  dam.  If  there  had 
been  a  beacon  in  the  hills,  he  must  have 
seen  it.  The  defendant  kiHx;ked  the 
river  beacon  down  after  witness  gave 
him  notice  to  remove  it.  The  defendant 
often  asked  permusion  of  witness  to 
allow  him  to  graze    bis  cattle.  The 

.defendant  was  always  teasing  him  to 
have  his  ground  surveyed,  and  at  the 
same  time  paid  out  damages  when  asked. 

Be-exammed  by  Mr.  Searle :  It  was 
possible  for  the  defendant  to  use  the 
dam  and  keep  to  his  own  side  of  the 
line. 

Jacobus  Victor,  owner  of  an  adjoining 
farm,  said  he  had  known  the  farms 
for  about  thirty  or  forty  years.  From 
1876.  he  had  known  Beacon  '' B."  In 
February,  1903,  as  field-cornet,  ho  was 
called  in  by  tho  plaintiff  to  adjudicate 
jn  a  complaint  of  trespass  against  the 
defendant.  It  was  only  in  1903,  after 
Mr.  Greef's  survey,  that  he  noticed 
the  beacon  by  the  river. 

Cnjss-examinod  by  Mr.  Schreiner: 
Witness  was  away  for  fourteen  years, 
and  only  returned  about  three  years 
ago.  He  was  in  the  district,  but  not  on 
the  farm.  He  had  never  been  asked 
to  go  and  look  for  an  old  beacon  in  the 
bushes.  Witness  as>;ossod  damages 
against  tho  defendant  on  the  commis- 
sion. Mr.  Greathead  might  have  put 
up  a  beacon  at  the  spot  without  witness 
80<^ing  it. 

Re-examined  by  Mr.  Searle :  He  only 
recognised  Beacon  **B."  In  February, 
1903,  he  went  to  look  at  the  spot  where 
tlie  trespass  took  place. 

Willem  Francois  du  Toit.  a  farmer, 
of  the  same  district,  said  he  had  been 
living  on  his  farm  since  1883.  He  hired 
the  piece  of  land  in  question  from  the 
trustee  in  the  ineolvent  estate  of  Botma. 
-He  had  known  the  beacon  on  the  moun- 
tain to  have  been  there  in  1872, 


Crotjs-examinod  by  Mr.  Gardiner: 
When  Mr.  Greathead  nkadc  his  survey, 
ho  did  not  put  up  a  l)eacou  by  tlie  bed 
of  tho  river,  but  ho  made  a  mark  by 
pnltins:     two  stones  there. 

Phillipus  Conradie  said  he  had  known 
tho  two  farms  for  thirty-five  years.  In 
tho  late  seventies  ho  had  known  the 
n4a(<)n  •'  B."  About  '78  or  '79  he  was 
called  in  to  settle  a  dispute  between 
Botnia  and  Brinks,  and  he  drew  up  the 
>ottlemont  in  writing.  In  1832  he  was 
called  in  again,  ana  Botma  said  there 
was  no  dispute  about  the  beacons;  it  was 
a  difforoiice  over  the  line,  and  witness 
defined  the  boundary.  There  was  a 
road  close  to  tho  point  "  G,"  and  al- 
though witness  often  rode  along  it,  he 
never  noticed  a  beacon. 

Cro.'ss-examinod  by  Mr.  Schreiner:  Ho 
remembered  the  survey  in  1876;  he  was 
living  about  five  hours'  drive  off.  When 
ho  was  called  in  by  Brinks,  it  was  not  to 
settle  a  complaint*  that  the  line  beacons 
were  knocked  down  by  the  owners  of 
Koronplaats.  The  veld  was  in  dis- 
pute. 

Stephanus  Brink  (recalled)  stated  that 
moat  of  the  papers  of  his  father  had 
been  lost.  He  had  not  been  able  to 
find  the  document  referred  to.  In  con- 
sequence of  what  CJonradie  told  him,  he 
searched  for  the  document. 

Martliinus  Botma  said  he  had  known 
tho  farms  in  question  since  his  child- 
hood. His  father  formerly  owned 
Putterskraal.  the  beacon  on  the 
mountain  was  the  beacon  he  recognised 
as  that  of  Taaibosch  Kraal  and  Koron- 
plaats. He  never  saw  a  beacon  up  in 
the  bush. 

Cross-examintd :  He  had  heard  people 
speaking  of  a  beacon  at  the  bush  before 
Koronplaats  was  sub-divided,  but  not  be- 
for  Donsol  was  surveyed. 

Re-examined  by  Mr,  Searle :  Ho 
could  not  say  to  whom  the  ground  at 
beacon  *'  B  was  granted  to  first  of 
all.  During  the  time  he  lived  at 
Koronplaats  he  did  not  notice  any 
beacon  at  tho  bush.  No  bush  was  ever 
shown  to  him.  He  knew  of  no  beacon 
in   that   neighbourhood   except      beacon 

Cornelius  Jacobus  Brink,  brother  of 
the  plaintiff,  stated  that  his  father  was 
one  of  the  owners  of  Taaibosch  Kraal. 
Witness,  who  was  47  years  of  age.  had 
lived  on  tho  farm  all  his  life,  and  ho 
was  well  acquainted  with  all  the  beacons 
on  the  farm.  On  the  south-east  side, 
the  beacon  dividing  Taaibosch  Kraal 
and  Koronplaats  stood  on  tho  point  of 
Eonigstejplek.  He  had  known  that 
Iwacon  smce  he  was  ten  years  of  age, 
and  never  knew  of  aJiy  other  beacon  in 
that  neighbourhfjod. 

By  Maasdorp,  J. :  The  beacon  wad  in 
the  same  conclition  at  present  as  it  was 
when  he  knew  it  first. 

When  he  took  down  sheep  to  graze, 
the  lino  he  oliservod  was  from  Zwak- 
wator   to   Eonigstoplok.       lie    had   soon 


'CAPE  TIMES"   LAW  RKPOUTS. 


f»;i 


the  beacon  in  the  rivor  bed  which  had 
been  put  up  by  Air.  Greeff.  Formeriy 
tlK»K>  was  lio  beacon  on  tho  river  side. 
The  dam  put  up  by  Avcnant  was  about 
two  thousand  yards  from  tho  line  observ- 
ed by  witness. 

CFOfis-examined  by  Mr.  Schreiner:  He 
was  there  when  Dousel  surveyed. 
IXniH^I  did  not  build  up  the  beacon  at 
Keuig»teplek.  lie  never  heard  that 
there  was  a  claim  for  a  bo  aeon  in  tho 
bu»lL.  Doiisel  aurveyed  for  a  aub- 
di  vial  on  of  Taaibosch  Kraal,  and  put 
line  beacons  between  Zwakwatcr  and 
Kerii^stoplek.  He  was  not  aware  that 
the  owners  of  Korenplaats  broke  down 
the  line  beacons  from  Zwakwater.  The 
two  thousand  yards  between  Avenant's 
dam  and  the  line  at  Taaibosch  Kraal 
belonged  to    Korenplaats. 

Re-examinod  by  Mr.  Searle :  Witness 
was  <»ften  on  the  south-east  side  look- 
ing for  horses  and  cattle. 

I'hilip  Johannes  du  Plessis,  one  of  tho 
defendants  in  the  case,  and  owner  of 
Boe^man's  Hoek,  said  he  was  on  the 
farm  before  Pritchard's  survey.  All 
the  time  ho  had  been  in  occupation  he 
recognised  the  beacons  marked  **  E," 
"J,"  and  •' G  "  on  the  diagram  before 
the  place  was  surveyed.  lie  had  a  row 
with  Brink,  sen.,  over  grazing  ground ; 
.  the  Field-comet  was  called  in,  and 
beacon  "B"  was  decided  upon.  Ho 
was  quite  satisfied   with   that  beacon. 

Cross-examined  by  Mr.  Schreiner:  He 
had  no  knowledge  of  that  beacon  until 
the  Field-comet  pointed  it  out,  and  it 
was  after  the  row  that  he  saw  it.  The 
late  Field-ocmet  of  the  ward  told  him 
of  a  beacon  in  the  bush.  He  never 
went  to  see  if  there  was  a  beacon  at  the 
bu^h. 

Re-examined  by  Mr.  Searle:  Witness 
only  n^cognised  Beacon   "B." 

By  Maa<<dorp.  J.  :  Until  "  B "  was 
pointed  out  he  considered  '*  G  "  as  the 
beacon  regulating  his  boundary. 
Mr.  Searle  closed  his  case. 
Wilson  Greathead.  surveyor,  said  he 
had  been  engaged  dv  Mr.  De  Smit  to 
mrvey  this  land  in  I08O.  Witness  only 
lurveyed  Korenplaats  for  a  sub-division. 
Lately  he  had  been  on  the  ground  to 
refresh  his  memory,  and  paid  attention 
to  beacon  *'  G "  and  tho  bush  beacon. 
In  1880  two  beacons  were  pointed  out 
to  him,  the  bu.<h  beacon  and  beacon 
'*  B."  It  was  Stephanus  Boteman  who 
pointed  out  the  beacons.  "  B "  was 
pointed  out  to  him  as  a  mark 
taken  by  Dousel.  Witness  could 
not  accept  Dousel's  beacons  as 
being  at  all  consistent  with  the 
farni.  He  had  a  clear  recollection  of 
seeing  the  bush  beacon,  and  when  he 
revisited  the  farm  he  saw  a  beacon  in 
the  same  spot.  It  was  clearly  manifest 
that  the  beacon  was  of  long  Ktaiicling. 
Tho  lieacon  '*  B "  could  not  lx>  scon 
from  the  beacon  in  the  bush.  lie  went 
according  to  the  diagram  and  not  ac- 
cording to  the  facts  on  the  ground. 
He  was  certain  be  put  a  beacon  at  "  G," 


and  when  he  visited  tho  spot  recently  be 
found  that  it  had  been  made  much 
larger.  He  did  not  accept  Dousel' s 
beacons,  as  they  seemed  to  swing  the 
farm  round  some  eight  or  nine  hundred 
yards.  Witness  erected  beacons  ac- 
cording to  his  diagram,  and  sub-divided 
accordingly.  Tho  busli  beacon  was  not 
visible  from  ihe  fienigsteplek,  and  a 
person  going  past  very  often  might  not 
uotico  it. 

[Maasdorp,  J. :  Tho  witness  says  he 
saw  a  boaoon  there  at  a  certain  time, 
and  any  number  of  witnesses  may  say 
they  never  saw  it  before  that.] 

Mr.  Schreiner  said  he  had  no  objec- 
tion whatever,  if  hie  lordshj^  ordered  a 
oom^tent  person  to  go  to  tho  spot  to 
see  if  it  was  a  now  piece  of  work. 

Witness  said  lie  had  no  doubt  the 
bush  beacon  was  of  many  yeans  stand- 
ing. 

Cross-examined  by  Mr.  Searle :  Eeacvrn 
•'  B  "  was  in  a  very  conspicuous  point, 
and  witness  had  used  it  as  his  signalling 
station.  After  so  nuiny  yean,  he  would 
have  had  some  difficulty  in  finding  the 
spot  in  tho  kloof  without  assistance, 
although  he  thought  he  would  ulti- 
mately manage  it. 

By  Maasdorp,  J. :  Surveyors  did  not 
always  take  a  conspicuous  spot  {or 
beacons.  The  Boesman's  Hoek  beacon 
and  the  Boacon  **  B  '*  were  more  con- 
sistent with  the  diagram  from  a  Taai- 
bosch Kraal  point  of  view. 

Witness  said  that  now  he  would  not 
survey  a  farm  on  a  diagram  as  he  did 
then.  Dousel  also  surveyed  Kor-.-n- 
plaats.  and  placed  beacons  which  wit- 
ness did  not  accept.       Dousel' s  beacons 

I  would  agree  with  the  beacon  on  a  con- 
spicuous part  of  the  mountain,  but  they 
did  not  agree  with  the  beacon  at  Zwak- 
water. At  the  point  "  G,"  witness  put 
up   an   ordinary      pile    of   stones.        He 

,  hadn't  been  there  until  a  fortnight  ago, 
when  he  heard  that  Greeff  had  made  a 

I     substantial    beacon  of  it. 

Re-examined  by  Mr.  Schreiner:  'lo 
had  not  seen  a  single  mason  in  tie 
district.         Witness      understood       that 

I  Dousel  had  made  a  survey  of  Koren- 
plaats. 

Hert  Groef,  Government  land  sur- 
veyor, stated  he  was  called  in  by  tho 
defendant  to  make  a  plan  when  the 
dispute  arose.  He  surveyed  the 
triangle  in  dispute,  and  found  it  to  be 
of  the  extent  of  250  morgen.  Zwak- 
wfiter  and  Greathead's  beacons  Aver*' 
pointed  out  to  him  bv  the  defendant  and 
Mr.  Walters.  The  latter  was  a  beacon 
two  feet  high,  which  witness  built  muoli 
lifehor  up.  Witness  did  not  go  up  to 
the  l)enoon  in  the  bush,  but  sent  a  person 
up  to  put  a  flag  at  tho  spot.  Avonant 
was  claiming  (ireuthi^irs  Iteacon.  It 
wa.s  (|uit4»  a  tni.stak<^  that  1m«  put  a 
beacon  l>esi(le  tho  stream  for  the  first 
time. 

Cro8s-<'xamined  by  Mr.  Searle:  H«> 
thought  the  bush  beacon  was  too    far    .n 


64 


CAPE  TIMES"   LAW  REPORTS. 


TaaibiMch  iCraal  (ground,  «o  lio  Jid  not 
go  there.  He  did  not  make  a  whole 
survey  of  the  two  farms,  Korenplaats 
and  Taiibosch  Kraal.  Ue  did  not  test 
the  correctness  of  Gre^thead's  survey  of 
Koronplaats. 

Paul  Lodewiok  Avenant  (the  defen- 
daivt)  said  that  he  was  marriea  to  Brink's 
sister.  He  first  hired  his  property 
for  two  years  from  Jack  Fuller;  then 
ho  bought  it  about  12  or  13  vears  ago. 
His  land,  he  was  told,  extenoed  to  the 
bosch  beacon;  this  beacon  did  not 
stand  on  the  mountain,  it  stood  on  a 
little  kloof.  He  denied  that  he  had 
paid  money  to  Stephaiius  Brink  for 
trespass  h^  his  oattle.  He  had  had 
damages  given  against  him  by  the  last 
Commission,  about  two  years  ago.  From 
the  time  he  purohased  his  land  he  had 
always  claimed  up  to  the  beacon  of 
Greathead,  and  had  grazed  up  to  that 
point.  He  had  made  a  large  dam  in 
that  part.  He  found  beacons  about 
the  site  of  the  dam.  He  gave  notice 
to  Mr.  Van  der  Poel,  the  Field-comet, 
that  Mr.  Meiring  was  surveying  on  his 
ground.  A  Commission  was  held  on 
his  ground.  There  was  a  piece  of 
ground  that  Mr.  Greathead  did  not 
include  in  his  survey.  Witness  and 
three       othens   joined    in    using       that 

f ground  for  grazing  in  front  of  their  own 
ots.      He  did  not  claim  the    ground  as 
his  own. 

Cross-examined :  He  did  not  remem- 
ber any  Commissions  held  in  the  dis- 
trict in  regard  to  the  boundary.  Mr. 
W.  Johannes  Viota,  the  Field-cornet, 
came  to  point  out  his  beacons,  as  he 
did  not  know  where  the  beacons  went. 
Witness  asked  the  Field-cornet  to  come. 
He  did  not  remember  a  claim  having 
been  made  upon  him  for  £4  12s.  dam- 
ages for  trespass.  He  admitted  that 
Idr.  Victa  held  a  commission  in  con- 
sequence of  Mr.  Brfnk  saying  that  his 
cattle  had  trespas!K>d  on  his  land,  Mr. 
Victa  told  him  that  he  need  not  pay 
the  money,  as  the  land  was  his  own 
property. 

John  O.  Walter,  agent,  of  Laingsbur^f, 
said  that  he  acted  for  the  defendant  ni 
connection    yrith    this    case.  W'itiier^ 

went  to  the  defendant's  farm  with  Mr. 
Oreeff  the  surveyor;  he  was  present 
when  Groeflf  had  the  beacons  pointed 
out  to  him.  Avenant's  son  went  and 
put  flags  on      the  beacons.  Witness 

was  at  Beacon  **  G  *'  when  he  saw  the 
flag  put  on  the  bosch  beacon.  They 
pointed  to  within  six  inches  of  Great- 
head's  beacon.  Mr.  Greeflf  was  so 
satisfied  with  the  an^le  that  he  said 
that  he  did  not  think  it  necessary  to  go 
to  the  bosch  beacon.  They  had  some 
view  of  coming  to  a  settlement  o\'er 
the  case,  and  there  was  a  meeting  be- 
tween the  parties.  Witnesses  came 
down  to  Oape  Town  in  August,  and 
the  defendant  sent  bv  telegraph  for 
Mr.  Greathead.  They  still  thought 
some   settlement   would  be    arrived    at. 


Tlie  ease  was,  however,  postponed.  In 
January  witness  saw  an  old  beacon  in 
the  centre  of  two  big  thorn  bushes. 
Greeff  was  there  that  day  for  his  survey. 
Mr.  Greathead  had  been  to  the  beacon 
during  the  past  few  weeks.  The  beacon 
was  still  there  a  fortnight  ago. 

Wm.  Angus  Hofmeyr,  attorney,  of  the 
firm  of  Tnedgold,  Mclntyre  and  Bi.<«et 
(the  defendant's  attorneys) ;  Marthinus 
Aokermann  (aged  75),  a  farmer,  of 
Modderfontein,  district  of  Sunderland ; 
John  Botman,  of  Van  Wyk's  Plavey, 
district  of  Sunderland,  also  gave  ovi- 
denoe.  He  stated  in  cros^-examination 
that  in  the  old  days  when  liis  grand- 
father owned  both  farms,  there  was  no 
dispute  as  to  beacons. 

Johannes  Boteman  said  he  was  bro- 
ther of  the  previous  witness  and  fifty 
vears  of  age.  He  was  bom  on  the 
farm  Korenplaats,  and  lived  there  about 
25  years.  He  left  before  the  Great- 
head  survey,  but  he  oame  back  to  thu 
farm  last  December.  He  remembered 
the  time  when  his  grandfather  had  the 
farms  Korenplaats  and  Taaibosch.  The 
beacons  between  the  farms  were  Zwak- 
water  and  Bush  beacons,  and  those 
were  the  same  in  the  days  of  his  father. 
He  knew  Cori>elius  Brink,  the  father 
of  the  plaintiff,  and  he  had  always  told 
them  when  they  were  children  that  they 
must  not  go  over  the  line.  The  line 
was  between  Zwakwater  and  Bus^h 
beacons. 

Cross-examined  by  Mr.  Searle:  He 
had  left  the  properties  25  yean  ago, 
but  had  lived  on  them  from  time  to 
time  for  a  few  months  since.  He  knew 
where  Mr.  Greathead  had  put  up  a 
beacon  by  the  aide  of  the  river,  east  of 
Swakwater.  From  that  place,  one 
could  see  the  Bush  beacon. 

Frederick  Boteman,  brother  of  the  last 
two  witnesses,  living  in  the  Sutherland 
district,  stated  that  he  was  born  at 
Korenplaats,  and  remained  on  the  farm 
until  ho  wRfi  twenty-three  years  of  age. 
Since  then  he  had  been  on  the  farm ;  he 
pas.sed  over  it  during  the  month  of 
May  last.  During  his  father's  time  the 
line  between  Taaibosch  Kraal  and  Kor- 
enplaats was  Zwak water-Bosch  beacon. 
Between  ten  and  eleven  years  ago  he  last 
saw  the  bush  beacon,  and  it  was  the 
same  as  in  his  father's  time.  The 
Brinks  did  not  graze  over  that  line.  Ho 
Baw  the  l)eacon  Dousel  put  up  at  Eeenig- 
eteplek.  Before  Dousel  surveyed  there 
was  a  ibmall  beacon  on  the  spot.  After 
Greathead  surveyed,  witness  still  went 
to  the  bush  beacon. 

Cross-examined  by  Mr.  Searle:  Mar- 
thinus Boteman,  who  lived  on  the  farm 
with  his  father,  had  stated  that  he  ob- 
served the  line  Zwakwater-Eenigsteplek, 
but  witness  knew  nothing  of  that.  The 
bush  beacon  was  near  the  top  of  the 
mountain,  bi;t  not  quite  on  the  peak. 

Bv  His  Lordship:  After  Mr.  Great- 
head  surveved  the  farm,  he  did  not 
graze  any  longer  on  the  top  line. 


*  CAPE  tIMES "   LAW   REPORTS. 


55 


Martkinufe  Botemaii  (re-c&lled),  <»tatoii, 
in  answer  to  his  lordship,  that  he  did 
Dot  gnw  up  to  the  bush  beacon  with 
the  last  witneaa ;  he  did  not  know  where 
it  was. 

Mr.  Schreiner   closed    his  cai^e. 

Mr.  S^rle   Miid    that    during  the   ad- 

Cnment  be  had  discovered  that  Taai- 
h  Kraal  had  actually  been  sub-divid- 
ed on  DouseFs  siirveVf  and  called  a  clerk 
from  the  Deeds  Office  to  prove  that 
transfer  had  been  passed. 

Maasdorp,  J.,  inquired  if  there  was 
any  likelihood  of  any  of  the  witnesses 
being  re-called. 

Mr.  Searle  pointed  out  that  as  the 
plaintiff  had  no  notice  of  the  bush  bea- 
con, he  came  prepared  to  fight  the  case 
on  the  Greathead  beacon.  He  would 
leave  the  case  in  his  lordship's  haiid«, 
as  he  was  not  inbtructed  to  apply  for  a 
po»tpooement. 

Maatidorp.    J.,    said     the    case    would 
ftand  over  tine  die  for  argunoent. 

Counsel  having    been    heard    in    argu- 
ment on  the  fact<<. 
Vur.   Adr.    Vult. 
Pntm  (May  1): 

Maa^dcrp.  J.  :  The  plaintiff  who 
i«  the  owner  of  the  fami  Taaibosch 
Knal.  6ues  the  defendant,  the  owner  of 
Patter'9  Kraal,  in  an  action  of  trespass, 
and  for  a  declaration  of  rights.  He 
9X^if%  that  the  boundary  of  his  farm 
sdjoining  Putter's  Kraal  is  correctly 
Tepr«?9eiited  in  a  plan  annexed  to  the 
declaration,  and  tuoa  from  a  point 
known  as  Zwakwater  to  a  point  on  the 
<'xtrpmity  of  a  ridge  known  as  Anys 
River  Plaat,  which  points  are  indicated 
<m  the  plan  by  the  letters  A  and  B 
ri'spectively.  He  complains  that  tho 
defendant  trespassed  across  this  line 
^itb  bis  stock,  and  that  he  asserts  a 
ri^ht  to  do  «o  inasmuch  as  he  alleges 
that  the  beacon  of  his  farm  Putter's 
Kraal  lies  to  the  north  of  the  line 
claimed  by  the  plaintiflF.  The  defen- 
dant denies  the  correctncfts  of  the  bound- 
ary line  indicated  by  the  plaintiff  in  his 
declaration,  and  states  that  the  true 
wundary  between  Taaibosch  Kraal  and 
|y«  original  farm  Korcnplaats,  of  which 
Putter's  Kraal  forms  a  portion,  runs 
from  Zwakwater  to  a  point  known  as 
the  Buahbeac-on.  which  is  indicated  on 
tbeplan  by  the  letter  C,  but  stat^-s  that 
when  Korenplaat  was  sub-divided  in  the 
y«jr  1880,  the  surveyor,  instead  of  tak- 
j°?  the  beacon  C  standing  upon  the 
boandary  of  the  farm,  took  a  poia: 
*itbin  the  boundary  indicated  by  tho 
KtiCT  G,  and  framed  the  diagram  of 
Putter's  Kraal  conformably  to  such 
»*ac()n.  The  defendant,  who  purchased 
Putter's  Kraal,  according  to  the  diagram 
®''ly  claims  the  land  up  to  the  line 
A  G;  and  if  A  C  be  found  to  be  the 
JoJTOct  boundary  between  Taaibosch 
Kraal  and  Putter's  Kraal,  he  will  be 
entitled  to  the  land  up  to  A  G.  He 
jlleges  that  beacon  G  was  in  existence 
before  the   year   1865,   and   is    the   ad- 


I 


niittjcJiy  tiuj  and  corrcc:  beacon  for  tho 
purposes  of  the  Land  Beacons  Act  of 
1866,  that  for  more  than  50  years  it  has 
been  recognised  by  the  owners  of  both 
farms  as  the  correct  beacon,  and  for 
ipore  than  30  ycirs  the  owners  of  Koren- 
plaats  have  used  the  land  up  to  A  G 
as  of  right.  The  defendant  prays  that 
G  may  be  declared  to  be  the  true  beacon 
of  his  farm,  and  claims  £300  as  damages 
suffered  by  him  by  reason  of  a  trespass 
committed  by  the  plaintiff.  The  plain- 
tiff, in  his  replication,  traverses  tho 
allegations  in  the  defendant's  plea,  and 
claim  in  reconvention,  and  sets  up  a 
claim  to  the  boundary  line  A  B  on  tho 
ground  of  prescriptive  user.  The  Court 
has  now  to  determine  whether  C  or  B 
represeirts  the  true  beacon  between 
Taaibosch  Kraal  and  Korcnplaats.  One 
of  the  points  raised  by  the  defendant 
can  be  disposed  of  at  once  by  saying 
that  there  u  no  proof  of  the  existence 
of  any  of  the  conditions  under  the  Land 
Beacon  Act  which  would  constitute  tho 
beacon  C  an  admittedly  true  and  correct 
beacon.  The  only  issues  left  between 
the  parties  are  whether  thero  is  evidence 
from  which  it  can  be  inferred  that  either 
B  or  C  is  an  original  beacon  between 
the  two  farms,  or  whether  either  of 
them  has  been  established  by  prei»criu- 
tion.  In  my  opinion  it  has  been  estab- 
lished beyond  a  doubt  that  the  beacon 
B  was  in  existence  in  the  year  1872. 
Willem  du  Toit  stated  in  evidence  that 
at  the  time  he  was  in  occupation  of 
portion  of  Putter's  Kraal  as  a  lessee, 
and  occupied  tho  hired  ground  up  Ut 
that  beacon,  which  was  always  a  lurgo 
and  prominent  beacon.  He  knew  of  nu 
other  beacon  ni  the  neighbourhood  as 
a  boundary  beacon  between  Taaiboscii 
Kraal  and  Korcnplaats.  A  number  of 
witnesses  were  called  for  the  plain ti^'. 
who  were  positive  that  for  many  years 
beacon  B  wa<>  regarded  as  the  true 
beacon,  and  that  during  that  time  they 
did  not  know  of  tho  exi^^encc  of  any 
other  beacon  which  was  claimed  as  ths 
comer  beacon  on  that  side.  The 
original  grants  of  the  farms  having 
taken  place  in  1838,  no  witnesacs  were 
called  on  either  side  to  give  evidence 
with  rorpeci  to  original  beacons  pointed 
out  at  the  time  of  the  original  measure- 
ment of  the  farms,  and  the  first  occa- 
sion after  that  upon  which  a  survey 
took  place  was  in  1876.  In  that  year 
Surveyor  Doeasel  was  engaged  to  sub- 
divide Taaibosch  Kraal,  and  in  survey- 
ing with  that  object  he  accepted  B  as 
the  correct  corner  beacon.  This  was 
also  done  by  Pritchard  in  1885,  when 
beacon  F»  was  indicated  by  him  in  his 
survey  Si^  a  dividing  point  of  the  four 
farms  Taaibosch  Kraal,  Korcnplaats, 
Boesman's  Hoek,  and  Anys  River  Plaat. 
It  is  curious  that  though  Pritchard 
«?urveyed  after  Greathead,  who  had  come 
across  beacon  C  in  1880,  that  beacon  did 
not  come  into  Pritchard's  calculations, 
and  was  not  then  brought  up  as  a  mat- 


56 


CAPE  TIMES"   LAW  REPORTS. 


ter  ill  diisputo.     It  in  certain  that  at  both 
Doessel's   and   Pritchard'a  auryoyfl  there 
wero    present    persons    acquainted    with 
the    beacons,    and   yet    there   i6  no  evi- 
dence that  beacon  C  wa»  brought  up  at 
these     Burvey/S      as      the     true     beacon.  . 
Greathoad,  who  surveyed  for  the  owners 
of  Korcnplaats,  says  that  when  ho  Bur- 
voyod  in  1880  two  beacons  were  pointed 
out  ti>  him  86  Inking  the  corner  beacons 
in  the  south-ea«t  direction  of  Taaibonch 
Krjai,      between  that  and   Korejiplaats. 
IVtth    wero    in    existence,    and    he    eaw 
them  both.     Beacon  B  was  pointed  out 
to  him  as  perhaps     being     the     beacon. 
This   is   the   first  occasion  on  which  wo 
obtain    reliable    evidence   of   beacon    C 
having  been  eeen  after  having  been  lofct 
.''ight  of  for  many  years.     Neither  of  the 
beacons     wa«,      however,     adopted     by 
Greathcad,   who,   accepting  the  diagram 
as    his    guide,    erected    beacon    G    now 
claimed  by  the  defendant.     It  has  been 
contended,  on   behalf  of  the  defendant, 
that  although  beacon  B  was  in  existence 
some  years  before   Doesi^el   surveyed,   it 
cannot     be     regarded    as     an     original 
beacon,    because    there    is    evidence    to 
show   how   it    came    into  existence  long 
after    the  original    measurement  of  the 
farms.       Evidence  was   adduced  by  the 
defendant  to  show   that    beacon  B  wa£ 
created  by  Erasmus   Botma,  on  a  place 
where  no    beacon   existed    before,    as   a 
line    beacon    between    ground    occupied 
by   him    at    Anys   River   Plaat  and    the 
farms  now  in  que,stion.     I  am  not  satis- 
fi^'d  upon  the  evidence  that  that  was  the 
first     beacon     erected     on     that     spot. 
Erasmus     erected      line      beacons  from 
Boeismanskop   to    below    beacon    B ;     B 
stands     at     an     angle,    and  not    in  tha 
straight  line  of  beacons  erected  by  him. 
and  1    feel  sure  that   that   an^^le    could 
not   have    been    located    by    him   unless 
there  were  j^ome  beacon  to  guide.     There 
is  no  proof  that  he  was -aided  by  beacon 
C;  on  the  contrary,  it  is  quite  clear  that 
beacon  C  did  not  ifall  into  the  line  taken 
by  him.     Notwithstanding    the  evidence 
adduced    by    the  defendant,    I   come   to 
the  conclusion  that  B   wa*  in   existence 
before  the  time  of  Erasmus  Botma.     The 
evidence  with  respect   to  beacon  C  is  of 
a  most  unsatisfactory  character.     I  quite 
believe  the    witnesses    for  the    plaintiff, 
who  feav  they  never  saw  this  beacon,  or 
knew  t[ll  recently  that  it  was  claimed  as 
a  corner  beacon.     It  is  quite  likely  that 
a  pile  of  stones  did  exist  there  for  a  con- 
siderable   time,    but  it    was  not  treated 
as  a  beacon,  and  its  very  existence  wa* 
unknown  for  a  considerable  time  before 
the    present   dispute    arose.        Witnesses 
were  called  who  said  that  somewhere  on 
the  hill  side  in  that  neighbourhood  there 
WBA  a  beacon  which   was  recognised   as 
a  comer  beacon  many  years  ago  by  the 
owners  of  Taaib  ):!icli,   but  none  of  them 
have  Ikmmi      to     the     spot     for  j'cars  to 
identify    tliat    beacon    with    l>eacon     (> 
v/Iit^re  li  now  stands.     T  come  to  the  con- 
clusion that  the    evidence    justifies    the 


inference  that  B  is  the  original  truo 
corner  beacon  of  the  fanns  Taaibosch 
Kraal  and  KoornplaahK.  I  am  confirmed 
in  that  oj)inion  by  the  character  of  the 
locality  m  which  it  stands.  Surveyor 
Graafi',  who  was  called  as  a  witne.«fi  for 
tlie  defendant,  said :  *'  I  did  not  go  up 
to  the  bosch  beacon  because  it  was  going 
into  Taaibosch  Kraal.  1  saw  the  coii- 
spicuou/s  be.icon  B  in  Anys  Rivers  Plaat. 
The  In^acon  li  is  the  most  prominent 
point  in  the  neighbourhood."  It  is  un- 
necessary to  go  into  the  quoAtiou  of 
prescription  on  behalf  of  the  plaintiff,  in 
the  view  which  I  take  of  lieacon  B ;  and 
as  to  defendant,  I  may  say  he  has  wholly 
failed  to  establish  prescription  on  his 
part.  I  am  of  opinion,  on  the  whole, 
without  tracing  occupation  over  a  period 
of  50  years  for  the  purposes  of  prescrip- 
tion, that  the  proprietor  of  both  farms 
for  many  years  past,  notwithstanding 
occasional  disputes,  regarded  beacon  B 
p,N  the  corner  beacon  between  the  two 
farms.  I  come  to  the  conclusion  that 
the  line  A  B  upon  the  plan  annexed  to 
the  declaration  is  the  true  boundary  b©» 
tweon  Taaibosch  Kraal  and  Korenplaats. 
It  was  proved  that  on  several  occasions 
the  defendant  crossed  this  line  with  his 
*rock.  and  trespassed  upon  the  plaintiff'A 
property,  but  there  is  no  evidence  that 
any  material  damage  was  sustained  by 
tho  plaintiff  in  consequenco.  Judgmeab 
is  given  for  the  plaintiff  in  terms  of 
prayer  (b)  of  his  declaration ;  and  under 
prayer  (c)  for  £5;  on  the  claim  in  re- 
coMventitm  judgment  is  given  for  the 
defendant  in  reconvention,  defendant 
ordered  to  pay  costs  of  suit. 

[Plaintiff's  Attorneys :  Van  Zyl  and 
Buissinn^;  Defendant's  Attorneys ;  Trod- 
gold,  Mclntyre,  and  Bisset.] 


SUPREME   COURT 


FIRST   DIVISION. 


[Before  the  Chief  Jut^tioe  (the  Riu-ht 
Hon.  Sir  J.  H.  l)E  Villiers,  P.O., 
K.C.M.(4.,  LL.I).).  and  the  Hon.  Sir 
John  Bi'chanax.] 


MOTIONS. 


///    re  ESTATE  HOFFMAN.     J   peU^^gVu 

Dr.  R:iiusford   moved,  ns  i   matter  of 

urgency,    for       the        apf ointment        of 

Gysbert  W.  Kotze  as  provisional  fnisteo 

'     in  the  estate  of  Johannes  Jacobus  Hoff- 


*'CAi>E  TIMES''   LAW  REPORTS. 


57 


man,  of    Oudekraal,      Malinesbury   divi- 


sion. 


Order  granted    as    prayed. 


HEX  V.  DALY  AND  II ALLAN.  [  pj^J^g'th 

Keeping  a  brothel — ^Permanently 
residing  thcreiu — Act  36  of 
ltM>2. 

.1  proxtifitte,  frlw  permaufnthj 
nxfdes  in  a  brothel,  t's  liable 
to  prosecution  vuder  the  22ml 
f^rtion  of  Act  36  of  1902,  as 
heiihg  a  k'eejter  of  a  brothel. 

A  ttoman^  who  is  employed  an 
a  Hetruiit  i/i  a  brothel  but  deepn 
in  her  own  home  at  jiights^  dt/es 
not  pernmnently  reside  tltere, 
a»d  cannot  be  convicted  of 
keepitiff  a  brothel. 


This  was  an  appeal  from  a  judgment 
of  the  A.R.M.  of  the  Cape.  The  ap- 
pellants, together  with  two  other 
women,  had  been  charged  with  keeping 
a  brothel  in  Dunkley-street,  and  had 
been  fined  £25,  or  in  the  alternative 
three  months'  imprisonment  with  hard 
labour.  Mr.  Rowson  was  for  the  ap- 
pellant*; Mr.  Howel  Jone^  appeared 
for  the  Crown. 

Mr.  Rowson  said  that  of  the  other 
women  one  was  acquitted,  and  the  other 
was  fined  £25.  or  three  montha'  im- 
prisonment. The  two  appellants  plead- 
w  not  guilty,  but  were  convicted  and 
fined  £S,  or  three  months'  imprison- 
ment with  hard  labour.  The  appeal 
was  brought  on  the  ground  that  the  con- 
viction wag  not  supported  by  the  evi- 
dence, and  that  it  was  contrary  to  law. 
tounsel,  after  reading  the  record  of 
evidence,  submitted  that  not  only  was 
the  conviction  against  the  weight  of 
evidence,  but  there  was  not,  taking  the 
stringent  definition  of  "keeper"  in  the 
Act,  a  particle  of  evidence  to  support 
the  charge.  The  evidence  of  Kalian 
was  that  she  was  employed  at  the  house 
>Q  a  menial  capacity  as  a  domestic  ser- 
vant. There  was  nothing  to  show  that 
we  had  had  anything  to  do  with  the 
raanagement  of  the  house.  As  to 
?  J  L  ^**"^^  submitted  that  no  proof 
had  been  adduced  by  the  prosecution  to 
»how  that  this  woman  ^'resided"  at 
the  house,  or  that  she  was  anything  but 
*ii  occasional  caller,  calling  for  an  im- 
moral |)urpose  it  might  be,  but  still  not 
^  all  involved  in  the  management  of 
*he  house.  Counsel  also  pointed  out 
inat  Cheater,  who  was  the  other  perj*f)n 
convicted,  paid  her  fino,  but  the  other 
two  (the  present  appellant.^)  were  un- 
?Wo  to  pay  their  nne,  and  had  Ixvn 
inmnsoned  .since  the  lltb  January, 
i^r  Jones  said  that  as  regarded  Daly 
the  evidence  was  clear  that  she   "per- 


manently resided  "  at  the  liouse,  and  it 
was  quite  clear  that  she  had  been  guilty 
of  a  contravention  of  the  Act. 

De  Villiers,  C.J.,  said  that  ho  had 
confirmed  several  of  these  cases,  but 
there  was  a  different  clement  in  the 
present  case  from  the  others,  because 
nere  tliey  had  an  admitted  keeper 
(Chester),  who  had  been  convicted. 
Could  the  others  who  were  using  the 
place  for  immoral  purposes  be  said  to  bo 
additional  keepers  f 

Mr.  Jones  submitted  that  they  could. 
Proceeding,  counsel  said  that  he  did 
not  wi.sh  ^o  press  the  case  against 
Hallan,  but  he  pointed  out  that  she 
gave  a  contradictory  statement,  first 
saying  that  she  was  employed  by  Mrs. 
Wood,  and  afterwards  that  she  was  em- 
ployed by  Chester. 

Mr.  Rowson  having  been  heard  in 
reply, 

Do  Villiers.  C.J. :  In  this 
case  a  distinc-tion  must  be  made 
between  the  two  appellants.  As 
to  the  appellant  D^ly,  tm'iv  is  the  evi- 
dence of  the  police  constable  that  she, 
Wood,  and  Chester  resided  at  6,  Dunk- 
ley-street.  He  says  that  he  knew  Ches- 
ter, Wood,  and  Daly,  and  had  seen  them 
at  the  house  for  eix  week.s.  Moreover, 
other  police  officers  had  watched  the 
promises,  and  on  several  successive 
nights  had  seen  the  accused  Daly  on 
the  premises.  There  is,  t'herofore, 
sufficient  prima  facie  evidence  torequin? 
Daly  to  rebut  the  proof  of  a  "  permanent 
residence"  on  the  premises,  but  site 
gave  no  evidence  whatever  herself.  The 
terms  of  the  Act  are:  "That  the  follow- 
ing persons  shall  be  deemed  to  be  keep- 
era  of  a  brothel :  any  person  who  per- 
manently resides  in  or  occupies  or  man- 
ages, or  acts  or  assists  in  that  man- 
agement, or  knowingly  receives  the 
whole  or  any  share  in  the  money  taken 
in  any  brothel."  In  the  present  case  it 
appears  that  the  accused  did  receive  a 
share.  But  I  should  not  lay  much  streu 
on  that  point,  because  the  share  she  re- 
ceived was  direct  from  the  men,  and  her 
own  share  of  the  prostitution,  and  not 
for  any  share  in  the  management  of  the 
premises.  But  tlie  difficulty  in  her  case 
IS  to  get  over  the  words :  *'  Any  perison 
w^ho  permanently  resides  in  a  brothel." 
She  **  permanentljr  resided  "  according  to 
the  evidence,  which  she  does  not  con- 
tradict. Probably,  the  legislature  did 
not  intend  to  declare  that  every  prosti- 
tute who  lives  in  a  brothel  shall  bo 
deemed  to  be  a  keeper  of  a  brothel,  but 
the  words  used  are  clearly  to  that  effect, 
and  the  Court  has  only  to  construe  the 
Act  as  it  stands.  The  extraordinary  re- 
sult would  follow  that  a  woman  who  lives 
on  hor  own  private  promises  and  goes 
to  a  brothel  every  uicrnt  for  the  pur|>osert 
f»f  prostitution  wmild  escjipt*  prosecution 
and  conviction,  but  the  woman  next. 
<loor  who  lives  permanentlv  at  the  bro- 
thel is  to  be  held  to  ho  kee)3er  of  the 
brothel.  But  the  legislature  in  its  wis- 
dom has  so  provided  and  the  Court  has 


58 


•CAPE  TIMES*'   LAW  REPORTS. 


simply  to  follow  the  provieioiw  of  the 
Act,  passed  by  the  Leg^islature.  The 
appeal,  therefore,  in  Daly's  case  will  not 
lie  allowed.  In  reg^ard  to  the  woman, 
liallan,  her  position  i«  entirely  diflfer- 
ent.  There  is  not  a  single  witness  to 
show  that  she  was  a  prostitute.  She 
was  occupied  in  the  menial  work  of 
opening  tn©  door  to  per8oni>  coming  in. 
Her  own  evidence  is  that  she  went  homo 
every  night,  and  she  is  certainly  not 
mentioned  by  the  police  constable' as  one 
of  the  persons  w^hom  he  had  known  fur 
six  weeks  an  residing  on  the  premises. 
There  is  not,  in  my  opinion,  sufficient 
evidence  that  the  accueed  Hallan  *'  per- 
manently resided  "  on  the  premi«yes.  and 
in  her  case,  therefore,  I  am  of  opinion 
that  the  appeal  should  be  allowea  and 
the   conviction  quashed. 

Buchanan.  J. :  I  am  of  thc>  same 
opinion,  and  1  would  only  add  that, 
from  a  number  of  cases  that  have  come 
before  me,  the  operation  of  this  Act 
tends  to  degrade  the  unfortunate  women 
who  carry  on  the  trade  of  pro»titiition 
and  does  no  good  to  the  public  at  large. 

Do  Villiere,  C.J.  :  I  quite  agree  with 
that.  It  is  an  opinion  which  I  have  re- 
peatedly expreeaed. 


REX    V.   HOFFMAN. 


f  IIM).!. 

(   Feb.  Gth. 


Lu|uor  Licetisiug  Acts — Transfer 
of  licence — Dissolution  of 
parbncT'ship. 

A  livenrv  to  sail  liquor  ht/  rrtdil 
troji  (jnaifed  to  (t\,  trho  mtx 
then  in  }>artneviihip  irith  tltp 
apppUant.  The  partnership 
wofi  (liitMofrcd,  and  the  appel- 
lant roidinned  to  ran y  on  the 
ItnuineHH  on  his  (am  hehalj\ 
although  no  tranrfer  of  th' 
licence  Jutd  been  <j ranted  to  htm 
in  terniH  of  the  66th  section  of 
Act28oflSS3. 

Held,  that  thr  appellant  had 
been  pnqterly  Cftnrictrd  of 
selling  liquor  without  a  licence. 


This  was  an  appeal  from  a  judgment 
of  the  A.R.M.  of  the  Cape,  who  had 
roMvicted  the  appellant,  under  the  Liquor 
Laws,  of  selling,  dealing  in,  or  dis- 
posing (»f  certain  quantities  of  intoxicat- 
ing lic|uor,  to  wit,  lager  beer  and  gin, 
on  the  2nd  Novemlier,  without  a 
licence.  The  accused,  who  was  sentenc- 
ed to  a  fine  of  10s.,  appealed  on  the 
ground  that  the  evidence  di«*closed  no 
Ruch  offence  as  was  charged  in  the  sum- 
mons,  and  that  the  conviction   was   not 


accxirding  to  law.  Mr.  Alexander  was 
for  the  appellant ;  Mr.  Howel  Jones  was 
for  the  Crown. 

The  matter  arose  out  of  the  transfer 
of  the  licence  of  Claridgc's  Hotel.  Ap- 
plication was  made  for  the  traiisfer  of 
the  licence  to  accused  on  the  12th  Sep- 
tember, the  licence  was  actually  trans- 
ferred on  the  14th  November,  and  the 
alleged  sale  to  two  policemen  took  place 
on  the  2nd  November.  Hoffman  was 
charged  along  with  one  Saachs,  but  the 
latter  was  acquitted,  and  the  former 
c'.nvicted. 

Mr.  Alexander  submitted  that,  al- 
though the  appellant  had  not  actually 
had  tile  lic<Mice  transferred.  Counsel  cited 
the  case  of  Jiex  v.    Ware  (12,  Juta,   4). 

Mr.  Howel  Jones  rubmitted  that  it  was 
clear  the  appellant  had  been  guilty  of  a 
technical  offence. 

De  Villiere,  C.J. :  The  licence  is  given 
to  the  individual,  and  the  character  and 
position  of  the  individual  are  alwayr 
taken  into  consideration  by  the  Licensing 
Board  before  the  licence  is  granted.  In 
j  the  prestMit  case,  the  licensee  was  Gin»- 
I  lierg,  who  was  at  the  time  in  partner- 
I  ship  with  the  appellant  and  another,  but 
that  partnership  was  dissolved.  After 
the  dissolution  of  the  partnerehip,  Ginr>- 
l»erg,  the  man  to  whom  the  license  had 
been  granted,  ceased  to  have  any  further 
interest  in  the  sale  of  the  liciuor.  Clear- 
ly, therefore,  it  was  the  duty  of  all  par- 
ties to  make  all  the  necessary  arrange- 
nientts  for  the  transfer  of  the  licence  be- 
fore the  actual  dissolution  of  the  part- 
nership. The  matter  was  entirely  in 
th'^  hands  of  the  partners  themselves. 
Thev  ought  to  have  known  that  there 
might  be  some  delay  in  the  proceecUngr. 
and,  therefore,  there  ought  to  have  been 
no  dissolution,  no  actual  di^olution  of 
the  partnership  until  arrangements  had 
been  made  for  the  transfer  of  the  licence 
to  appellant,  so  as  to  enable  him  to  take 
the  place  of  (Jinsl)erg.  to  whom  the 
licence  was  granted.  The  case  of  Hrr 
v.  Ware  had  been  relied  w")on,  but,  in 
my  opinion,  that  does  not  affect  the  de- 
cirion  of  the  present  case.  There,  there 
was  also  a  partnership,  but  the  point  was 
that  the  partnership  was  continued.  As 
was  said  m  the  jimgment,  Anderson  en- 
gaged Ware  while  the  partnership  wm 
existing,  and  sold  the  liquors  befon^  it 
was  at  an  end.  But  the  important  fart 
is  that  Blow  was  still  a  partner  at  the 
time  the  sale  took  place,  and.  therefore, 
tlie  sale  was  taking  place  under  the  au- 
thority of  the  duly-liceneed  person. 
Blow.  But  that  is  not  the  state  of 
things  here.  The  sale  t(X)k  place  un* 
der  the  authority  previously  granted  to 
Oinsl>erg,  but  under  an  authority  which 
had  creased  upon  the  dissolution  of  part- 
nerehip. It  is  no  doubt  a  technical 
breach  of  the  law,  but  i^till  it  was  a 
breach,  and  the  Magistrate  seems  to 
have  had  this  in  his  mind  when  he  in- 
flicted a  fine  of  10s.  The  appeal  will 
b^  dismissed. 


*C' 


AJE^p:  T^^ES'*   LAW   REPORTS. 


59 


Malidous  desertion — Character  of 
party  deserted — Amount  of 
nuuntenance. 

This  was  au  appeal  f  Fom  a  docision  of 
the  Resident    Magistrate    of       Victoria 
East,  under    section  2  of  Act  7  of  1895, 
in  which  the  defendant  wha  ordered  to 
pay  £3  a  month  in   support  of  his  wife 
and  three  children,    by   reason  of       his 
wrongful  and  unlawful  desertion.       The 
appeal  was  brought  on  the  grounds  that 
the  evidence   did  not  support  the  deci- 
s'cn,  and  that    the    deci'^'on  was      con- 
trary to  law. 

Mr.  Close  was  for  thf>  cppellant,  and 
Mr.  Howe!  Jones  appeared  for  the 
Crown. 

Mr.  Close  said  the  i|ucstion  here,  noiv 
that  the  parties  were  living  apart,  was 
whether  the  husband  deserted  his  wife 
sod  whether  that  desertion  was  an 
unlaitful  desertion  in  the  sense  of  the 
Act.  It  was  clear  from  the  e\ndencc 
that  the  woman  was  not  of  much  char- 
acter. She  was  the  mother  of  an  ille- 
gitimate child  shortly  after  the  marriage 
aud,  in  addition  sfie  had  been  fined 
for  what  she  called  a  quarrel,  and  alto- 
gether her  record  was  not  a  good  one. 
In  a  case  of  that  sort,  counsel  submitted 
the  Magistrate  should  have  f<mnd  for 
the  defendant.  His  version  of  the  story 
was  that  his  wife  de^^rtcd  him  on  two 
or  three  occasions,  and  it  was  admitted 
that  she  did  go  awav  once.  The  defen- 
dant had  one  of  the  children  in  his 
custody,  and  he  was  willing  to  keep 
the  other  two  children.  The  summons 
read.  "  in  or  about  or  between  24tli 
October  and  the  25th  November,*'  and 
according  to  that  he  could  not  be  found 
guilty  of  a  continuous  desertion.  Under 
the  circumstances,  the  woman  being  a 
waster,  and  disposing  of  her  husband's 
property,  if  he  left  ner  for  a  time,  it 
«»uld  not  he  said  to  be  a  malicious  de- 
sertion. There  was  no  evidence  of 
the  accused  being  possessed  of  any  pro- 
perty, and  in  any  case,  if  the  appeal 
was  disallowed,  the  amount  of  mam- 
tenancc  was  excessive. 

De  Villiors,  C.J. :    If  tlw  accused  were 
unlling  to   take   the   wife    and    children 
^fk.  I  suppose  this  order  would  cease? 
Mr.  Jones :  I  take  it,  it  is  merely  con- 
ditional. 

I>e  Villiers.  C.J. :  He  is  prepared,  at 
■II  efents.  to  take  the  other  two  chil- 
dren, and  as  the  father,  he  is  entitled 
^)  their  custody. 

Mr.  Jones :  Is  he  entitled  to  take  the 
children  without  the  wife?  Possibly,  if 
*hprc  were  civil  proceeding.s  before  the 
Court,  the  Court  miffht  exercise  its  dis- 
wtion,  and  say  if  tlie  husband  was  eii- 
titled  to  the  children.  Of  course,  if 
the  children  were  given  to  him,  and 
the  wife  raised  no  objection,  then  he 
could  apply  before  the  Magistrate  for  an 


abatement  fif  the  amount  ho  has  to  pay. 
As  regards  the  jiroperty  of  the  defendant, 
there  is  the  evidence  of  the  headman, 
and  he  knew  the  defendant  well. 

De  Villiers,  C.J.,  in  giving  judgment, 
said :  It  is  clear  upon  the  evidence  there 
has  been  a  desertion.  At  the  sanno 
time,  I  think  the  order  should  be 
amended  to  make  it  clear  that  if  the 
defendant  is  prepared  to  give  support 
and  assistance  to  the  wife  and  children, 
although  not  pecuniary  support,  that  the 
payment  of  £3  per  month  is  to  cease. 
The  defendant  may,  for  instance,  be 
willing  to  supply  his  wife  and  children 
with  clothes  and  food,  instead  of  pay- 
ing the  £3  per  m<Tnth.  The  opportunity 
should  be  given  to  him  to  do  that,  and 
the  order  will  be  amended  by  a  pro- 
viso added  to  the  following  effect: 
'•  That  the  monthly  payment  shall 
cease  as  soon  as  the  defendant  is  pre- 
pared to  supply  the  wife  and  children 
with  necessaries  and  support,  although 
such  support  be  not  of  a  pecuniary 
nature.'* 

[Appellant's  Attorney : 


NOBTON  V.  VICTORIA  EABT  LICEN8IKG 

COURT. 

Licensing  Court — Objections  to 
granting  of  licence — Gross 
irregularity. 

On  th^  hearing  of  an  applicft' 
lion  for  a  retail  liqtuyr  licence, 
one  of  Oie  inetnherg  rained  the 
objection  that  there  van  a 
HUjfficient  number  of  licenacd 
houHtn  in  the  ditttrict,  antt  a 
dincHMHion  on  the  point  there- 

I  upon  arose  in  the  prrnence  of 

the  applicant  and  hin  ar/ent^ 
neither  of  whom  requested  an 

I  adjonmmeni  for   the  further 

cfoiHtderation  of  *he  applica- 
tion.     The   application  for  a 

I  licence  was  refuncd. 

Held,  that  the  more  formal 
courHC  wouUl  hare  been  to 
inform  the  applicant  of  the 
definite  objectii.ny  but  that,  in 
the  absence  of  any  evidence  to 
shew     that    an     adjournment 

'  would    have    enabled  him    to 

meet  the  objection,  he  xoas  not 
entitled  to  have  the  proceedimjs 

I  net  anide. 


This  matter  came  up  for  review  on  a 
refusal  of  the  rrapondents  to  grant  a 
retail  wine  and  spirit  licence  to  the 
applicant   at      Pepperakop,    in   the   divi- 


iV) 


'CAPE  TIMES"   LAW  ItEPOttlS. 


siun  of  Victoria  East.  Mr.  Clueo  was 
for  tlio  applicant,  and  Mr.  P.  Joik>s 
was  for  the  four  members  of  tho  Licone- 
ing  Court  who  had  votod  against  the 
liconce. 

Mr.  Close  said  the  applicant  (Charles 
Ebonezer  Nortcwi)  in  {September,  1904, 
made  applioation  for  a  new  iiconcc  for 
a  retail  wine  and  spirit  business.  No 
lawful  objection  was  raised,  in  accord- 
ance with  any  provisions  of  tlie  Act  of 
1883  or  tho"  Liquor  Act.  1891,  or  any  other 
law.  and  iho  licence  was  rofus(»d  hy  tlic 
l^ourt  without  reference  to  the  plaintiff 
or  without  jriviiig  Jiim  an  opportunity  of 
replying  -thereto.  The  signatures  of  re- 
quisite number  of  voters  wero  obtained, 
and  there  wero  memorials  in  favour  of 
and  memorials  against  the  petition.  Th(« 
memorials  against  the  petition  were 
thrown  out  on  a  technical  point,  and 
three  members  voted  for  and  four 
against  the  granting  of  the  licence. 
Counsel  contended  that  when  a  Licens-. 
ing  Court  took  an  objection,  that  they 
were  bound  as  a  Court  to  give  notice 
to  the  applicant,  and  to  state  what  the 
objection  was,  and  in  support  of  his 
contention  cited  section  48  of  Act  28 
of  1883,  which  was  to  the  effect  that 
when  a  Licensing  Court  of  it.s  own  ac- 
cord took  notice  of  any  thing  or  mat- 
ter which,  in  their  opinion,  was  agaiimt 
tho  licence,  in  any  such  caae  the  Court 
should  inform  the  applicant,  and  should, 
on  rec|ue»t,  adjourn  the  application  for 
anv   period   of   not  le.<-s  than  four  days. 

Mr.  Jones  put  in  the  affidavits  of  the 
four  members  of  the  Court,  to  the  effect 
that  when  the  memorials  afrainst  the 
petition  were  presented  certain  members 
took  notice  of  the  statement  that  a  new 
licence  was  unnece«!ary  in  the  neigh- 
bourhood. The  objection  was  raised  in 
the  hearing  of  the  applicant  and  his 
agent,  but  neither  made  any  requef^t  for 
an  adjournment,  under  section  48  of 
the  Act.  In  the  opinion  of  one  of  the 
members  the  premises  were  in  too  close 
proximity  to  Government  and  private 
locations. 

Mr.  Close  pointed  out  that  an  affida.vit 
from  tho  Government  inspector  might 
have  persuaded  one  of  the  members,  and 
the  licence  would  have  been  granted. 
Supposing  one  member  of  a  Licencing 
Court  raised  an  objection,  and  the  Court 
apparently  took  no  notice  of  it,  and 
when  it  came  to  voting,  threw  out  the 
application  on  the  objection  raised  how 
was  the  applicant  expected  to  refute  it? 
Coun.sel's  contention  was  that  the  Court 
must  deliberate  on  such  objection,  and 
they  miLst  give  the  applicant  a  chance  of 
refuting   it. 

Mr.  Jones  cited  the  cases  of  the  S.A. 
Brrtrerifn  v.  The  W  ifuhern  TArtnsinff 
Court.  Barhflt  v.  The  Xamuqunhinil 
JArmainff  Court,  and  HotrhfirttJ  v.  The 
Sutherlaml  JArtfisimf  Court,  to  show  the 
difference  between  the  procedure  under 
the  Act  in  the  ca.se  of  an  application  for 
a  renewal  and  an  application   for  a  new 


licence.       The    objections     raised     wero 
founded  on  the   niemorials  thrown   out, 
and    were  heard    in  the  hearing  of    the 
applicant  and  his  agent,  neither  of  whom 
inaxlo  any   application  for  an      adjourn- 
njent.     He  contended  there  had  been  no 
irregularity,    and  that   the  provisions   of 
tho  Act  had  been  carried  out.     It  might 
haii|x>n  in  a  case  that  a  member  might 
not  care  to  state  his  objections. 
Mr.  Close  having  been  heard  in  reply, 
Do      Villiers,   C.J. :    The    Court      has 
lieen  asked    in  the   present    case    to  set 
aside  the    proceedings  of  tho    Licensing 
Court    on    tlio   ground   of    grates  irregu- 
larity.    Now  I  quite  agree  that  if  there 
had  been  proof  of  anything  in  the  nature 
of    gross   irregularity  or    illegality,    the 
Court   would   have   been  bo.ind    to     «^t 
aside   the  proceedings.       The  utmost    I 
can  find    is    that    there    has   been  some 
degree  of  irregularity,  but  certainly  not 
gross   irregularity.     It  would  have   been 
the      more     correct      course     for      tho 
Licensing   Court   to  have   definitely    in- 
formed     the      applicant      before      thoy 
came   to   the   vote,  that  Fome   members 
raised     the  particular  objection  that  the 
number  of  licensed  prem.ises  was  sufficient 
for  the  requirements  of  the  district,   but 
the  point  now   is  whether  the  fact  that 
this  was  not  definitely^  stated  to  the  ap- 
plicant or  his  agent  by  one  of  the  Licens- 
ing    Board,     would    justify    the    Court 
in  setting  aside  all   the  proceedings,   al- 
though no  injustice  was  done.     The  ap- 
plicant was  present  at  the  meeting  of  the 
Court  and  aliK>  had  an  agent   to  repre- 
sent   him.    He  heard  them  discussing  this 
question,  and  he  knew  that  the  objection 
had  been  raided    as  to  the  sufficiency  of 
the    licensed    houses    in    tho    neighbour- 
hood.    It    is    true  that  after   the    objec- 
tion   was    raised    to  the    irregularity  in 
the  form  of  the  memorials,  the  applicant 
knew  that  some  members  of  the  Licens- 
in.'f   Coiirt  raii?ed   this  question.      There 
was  a  discussion  upon  that  question,  and 
notwithstanding   this    discussion,   neither 
the  agent  nor  tne  applicant  requcts^ted  an 
adjournment  for  the  purj)ose  of  enabling 
him    to  bring  further  evidence.  The 

Licensing  Court,  therefore,  in  the  ab- 
sence of  such  application,  might  fairly 
conclude  that  ime  applicant  had  no 
further  evidence  to  give.  If  he 
had  such  further  evidence  to  give  it 
would  have  been  a  most  natural  thing 
for  him  to  have  said  :  "  Don't  vote  upon 
thiti  question,  because  I  am  prepared  to 
srive  evidence  upon  the  point."  But 
there  was  no  such  application  for  a  post- 
ponement for  the  purpose  of  taking  evi- 
dence. Under  the  circum.stances,  this 
Court  should  not  after  all  the  pro- 
ceedings have  Ix.en  taken,  order  a 
fresh  meeting  of  the  Licensing  Board 
for  tlM"*  purpot^o  of  considering  the  ques- 
tion ;  more  (»sp4'cially  in  view  of  the  fa<-t 
that  a  new  Licensing  (\)urt  will  meet  in 
a  very  short  time,  when  it  will  l>e  in  the 
power  of  the  applicant  to  renew  his  ap- 
plication,   and  then  bring  forward      his 


"C^APE   TIMES »'   LAW   REPORTS. 


61 


ovitlence.  I  think  Li coivsin sir  Courts  should 
hi?  moro  careful    in    con^plyiiiK   with  the 
Mpn^sii  torm^  of    the    Art,    but,    on    tbo 
other  hand,  this  l%mrt  should  not,  whore 
there  is  a  slit^ht  informality    which  can- 
not afleci    tkie    miprit^   of   the    caac,    set 
Sfridethe  proceedinp;^.    It   is   quite   clear, 
at  all  cventa,   tKat  fn^sh  procecdinga  lx»- 
foro  thai  particular       Liiceiieing      Board 
would  havo  ended    in  the   same  way,  in 
other  words,    it    is    perfectly    clear  with 
the  four  days  allowed  the  decision   would 
have  been  the  riame.     Tlie  Ck>urt,  under 
th**  circumstances,    should   not  set  aside 
th*^-  proceed  in;;  5,    tho  position   not  being 
affeeted  by    the   slifirht   irregrularity  that 
took  place.     '  For  these  reasons  I  am  of 
opinion  thai  the    application   for  review 
should  be    refused.     There    will   be     no 
order  as  to  costs. 
Buchanan.    J.,   conc*urre<l. 

[Ain>lieant*s  Attorneys:  Michau  and 
Do  Villier^ ;  R4vpondents  Attorney : 
(1.  TroUip.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Chief  Justice  (the  Rijrht 
Hon.  Sir  J.  H.  i»E  Villi KR9,  P.O., 
K.CM.G.,  LL.D.),  and  a  Special 
JMry.] 


VAX  XIEKERK    V.  WYNBERG  f        19()."). 

MUNICIPALITY.  (  Feh.  7th. 

Monicipality — Negligence  —  Per- 
sonal injury. 

'Phi?  was  an  action  brought  by  Mrs. 
Jasper  Albertus  van  Niekerk*  of  Now- 
|aiid«,  aiifain!»t  the  Wynberg  Municipal- 
ity, to  recover  £5,000  damages  for  per- 
ft^nal  injuries  alleged  to  have  been  caused 
through  the  negligence  of  the  defendants 
or  tlieip  servants. 

The  declaration  was  in  the  following 
teroLs: 

1.  The  plaintifF  is  the  wife  of  Jasper 
AU)ertu3  van  Xiekerk.  jun..  to  whom  she 
u  married  without  community  of  pro- 
perty, and  by  whom  she  is  in  this  suit 
s&iisted,  so  far  as  is  neceitsarj'.  and  she 
resides  at  Newlands,  in  the  Cape  Divi- 
«ion. 

2.  The  defendant  is  the  Wynberg  Mu- 
nicipality, const itute<l  under  tho  Act  No. 
45  of  1882. 

3.  Within,  and  passing  beyond,  the 
limit.i  of  the  s^id  Municipality,  there  is  a 
certain  public  road,  or  that  known  as  the 
Hundred  Foot  Road,  or  Rosmead  Ave- 


nue, which  is  vested  in  the  Council  of 
the  Wyulierg  Municipality,  in  so  far  as 
it  lies  within  the  said  limits.  The  .said 
road  or  street  passi^s  opposite  near  to  the 
Kenilworth  Racecoursfv 

4.  Bc'fore  the  11th  June,  1904,  the  de- 
fendant had  cauhtnl  a  number  of  holes  to 
be  made  at  intervals  in  the  said  road  or 
streer,  where  it  .so  pa.s>eji  the  said  race- 
course, apparently  with  the  object  of 
planting  therein  trees  or  shrubs,  and  had 
again  thereafter,  but  still  before  the  11th 
June,  1904,  caused  certain  of  the  said 
holes  to  be  again  filled  up  by  its  servants 
at  a  part  of  the  said  roaa,  where  convey- 
ances would  probably  draw  up  or  would 
probably  pass  or  turn  on  the  occasion  of 
a  certain  meeting  held  at  the  said  race- 
course on  the  11th  June. 

5.  On  the  11th  June,  the  plaintiff  was 
seated  in  a  cart,  drawn  by  one  horse, 
which  cart  and  horse,  driven  by  her  said 
husband,  was  being  properly  driven  upon 
the  said  road,  at  the  part  aforesaid,  in 
the  neighbourhood  of  one  of  the  said 
holes,  which  had  been  so  made  and  after- 
wards filled  up,  as  aforesaid. 

6.  The  said  hole  was  by  the  defendant 
or  its  servants  carelessly  and  negligently 
filled  with  soft  and  yielding  rubbish,  and 
sand,  and  though  not  appearing  to  be  so, 
was  in  fact  dangerous,  and  owmg  to  the 
careLesB  and  negligent  manner  in  which 
it  had  been  filled  and  left,  the  wheel  of 
the  said  cart  as  it  was  being  turned,  sank 
into  the  said  hole  or  excavation,  which 
was  of  considerable  depth,  and  the  shafts 
of  the  cart  were  in  consequence  broken, 
and  the  plaintiff,  who  was  seated  in  front, 
was  hurled  violently  from  her  seat  to  tlie 
ground,  and  sustained  a  compound  frac- 
ture of  the  fibia,  near  to  and  partially 
into  the  ankle  joint,  on  the  left  side,  in 
addition  to  severe  shock,  and  other  per- 
sonal injuries.  For  all  of  which  the 
defendant  is  responsible.  The  plaintiff 
was  for  a  long  time  confined  to  her  bed 
under  surgical  and  medical  attendance, 
in  consequence  of  the  premises  is 
crippled,  and  has  suffered,  and  still  suf- 
fers great  naiti,  and  is  tmable  to  re- 
sume her  ordinary  life  and  avocations, 
and  she  has  sustained  damages  in  tho 
sum  of  £5,000  sterling. 

Therefore,  the  plaintiff  prays  for  judg- 
ment for  the  sum  of  £5,000,  or  for  other 
relief,  and  costs  of  suit. 

The  defendant's  plea  was : 

1.  Paragraphs  1  and  2  of  the  declara- 
tion are  admitted. 

2.  The  defendant  denies  that  the  so- 
ealled  Hundred  Foot-mad  is  a  public  road 
or  street,  and  that  it  is  vested  in  the  de- 
fendant. The  said  road  consists  of  a 
gravelled  made  roadway  for  the  use  of 
Tehicular  and  other  traffic,  with  waste 
unmade  land  on  both  side?. 

3.  The  defendant  admits  that  before 
June  11,  1904,  ho  had  caused  a  number 
of  holes  to  be  made  in  the  said  waste 
unmade  land  near  the  said  racecourse, 
with  the  view  of  planting  trees  or  shrubs, 
but  says  that  they  were  not  in  or  on  the 


62 


"CAPE   TIMES"    LAW   REPORTS. 


said  gravelled  roadway,  or  in  or  any 
part  of  the  said  Hundred  Foot-road  used 
or  fit  or  intended  for  traffic,  and  he  ad- 
mits that  before  the  said  date  he  had 
caused  certain  of  the  said  holes  to  be 
filled  up. 

4.  The  defendant  denies  that  the  said 
cart  and  horse  were  being  properly 
turned  either  in  respect  to  driving  or  as 
to  locality,  but  he  admits  that  the  plain- 
tiff was  at  the  said  date  in  the  cart 
driven  by  her  husband. 

5.  The  defendant  denies  that  the  said 
holes  were  carelessly  or  negligently  filled, 
or  that  they  were  dangerous,  though  not 
appearing  to  be  so,  and  that  he  is  respon- 
sible for  any  injury  sustained  by  the 
plaintiff,  and  he  says  that  if  the  plaintiff 
sustained  any  injury  it  was  owing  to  the 
negligent,  careless,  and  improper  manner 
in  which  the  cart  and  horse  were  driven 
and  turned  by  the  plaintiff's  husband, 
and  that  the  latter,  had  he  exercised  due 
and  reasonable  care,  and  caution  in  the 
manner  in,  and  the  ground  over  which 
he  drove,  and  turned  the  holes,  and  the 
accidenC  could  have  been  avoided. 

6.  The  defendant  denies  that  the  plain- 
tiff has  sustained  £5,000  damages,  or  any 
damages  for  which  he  is  responsible,  and 
save  as  above,  he  denies  paragraphs  4,  5, 
6,  and  7. 

\yherefore    he    prays    that      plaintiff's 
claim  may  be  dismissed  with  costs. 
The  plaintiff's  replication  was : 

1.  The  plaintiff  admits  that  certain  of 
the  holes  referred  to  in  the  declaration, 
including  the  hole  mentioned  in  para- 
graph 5  thereof,  were  not  situated  in 
that  part  of  the  Hundred  Foot-road 
which  had  been  gravelled. 

2.  Save  as  aforesaid,  and  save  in  so  far 
as  any  of  the  allegations  in  the  declara- 
tion are  admitted  in  the  plea,  the 
plaintiff  denies  all  allegations  of  fact 
and  conclusions  of  law  therein  con- 
tained, joins  issue  therein  with  the  de- 
fendant, and  again,  as  before,  prays  for 
judgment  with  costs. 

Mr.  Schreiner,  K.C.  (with  him  Mr. 
Sutton)  for  the  plaintiff.  Sir  H.  Juta, 
K.C.  (with  him  Mr.  Upington)  for  de- 
fondants. 

Mr.  Schreiner,  in  his  opening  state- 
ment, said  that  a  letter  had  ^en  re- 
ceived from  the  defendant's  attorneys, 
admitting  that  the  ground  was  vested 
in  the  municipality  as  vacant  Crown 
land,  but  not  as  a  road  or  street.  The 
essence  of  the  ease,  he  added,  was  the 
making  of  these  holes  at  the  side  of  the 
road,  then  filling  them  up  iir  such  an 
improper  manner  that  persons  standing 
there  were  placed  in  a  position  of  dan- 
ger through  the  act  of  the  municipality, 
which  they  denied,  and  responsibility  for 
which  they  repudiated. 

Evidence  was  then  called  in  support 
of  the  plaintiff's  case. 

H.  R.  Caisse,  an  officer  in  the  Sur- 
veyor-General's Department,  produced 
a  plan  of  the  part  of  the  Cape  Division, 
embracing  the  raoeoourse        On  the  side 


of  the  Turf  Club's  property,  space,  he 
said,  was  shown  as  lett  for  a  road.  Prior 
to  that  date  there  was  a  hundred-foot 
road  running  to  Clare mont.  There  had 
been  a  servitude  over  Blair's  farm, 
dated  1825.  In  1845  Blair's  successor, 
on  condition  of  the  H3rvitude  being  re- 
leased, gave  two  roads.  In  1882  Parlia- 
ment granted  the  racecourse  to  the  Turf 
Club. 

Cross-examined  by  Sir  H.  Juta :  In 
the  grant  to  the  Jockey  Club,  a  road 
was  defined  by  survey. 

Mr.  Schreiner  said  that  the  Act  of 
Parliament  showed  that  the  grant  was 
made    to  the    Turf  Club. 

Witness  said  that  the  grant  was  made 
in  favour  of  the  chairman  of  the  Jockey 
Club. 

Jasper  Albertus  van  Niekcrk  (husband 
of  the  plaintiff)  said  that  he  was  accus- 
tomed to  managing  and  driving  horses. 
On  the  11th  June  last  he  attended  the 
race  meeting  at  Kenilworth;  he  left 
the  racecourse  about  half -past  five  or  six. 
and  looked  for  his  trap,  which  he  had 
expected  to  take  him  home.  He  saw  a 
large  tuimbcr  of  traps  and  carriages 
i^t&nding  on  the  .«ide  of  the  road.  He 
had  at  the  roadside  a  Ralli  car,  to  which 
was  yoked  a  large  mare,  of  quiet  habits. 
The  *  horse  was  driven  bv  Mr.  Louis 
Vlok ;  there  were  also  in  the  trap  wit- 
ness's wife  and  sister-in-law.  The  trap 
was  not  .>;tanding  on  the  gravel  por- 
tion, but  at  the  side,  off  the  hard  road, 
in  some  slush.  He  asked  Vlok  to 
move  the  trap  forward;  Vlok  did  so. 
Witness  then  got  into  the  cart,  and 
turned  to  go  on  the  gravel  road,  taking 
a  short  turn  carefully,  on  the  pivot  of 
the  right  wheel.  As  tlioy  went  towards 
the  gravel  road,  the  left  wheel  droppe<l 
into  a  hole ;  he  had  then  got  the  cart 
straight.  There  was  no  hole  to  be 
seen  when  he  began  to  move  the  trap. 
He  found  that  a  hole  had  been  filled  in 
with  rubbish  and  refuse.  The  surface 
was  fairly  level  with  the  surrounding 
parted  of  the  ground  when  the  wheel  sank. 
There  was  no  fencing  or  other  protec- 
tion about  the  holes.  The  holes  had 
evidently  been  dug  for  the  planting  of 
trees.  He  afterwards  found  that  the 
first  eight  or  nine  hole*  from  the  prin- 
cipal entrance  had  been  filled  in. 
When  the  wheel  sank,  the  horse  drew 
out  the  trap,  and  the  shafts  broke,  with 
the  result  that  all,  except  witness,  were 
thrown  forward  out  of  the  vehicle.  Wit- 
ness got  down  on  the  step  and  alighted. 
Mrs.  Van  Niekerk,  who  had  lieen  sit- 
ting at  the  front,  was  pitched  on  the 
ground ;  her  ankle  was  broken.  She 
suffered  groat  pain.  They  had  a  child 
about  four  months  old  at  that  time.  His 
wife  was  laid  up  for  about  seven  weeks. 
Mrs.  Van  Niekerk  had  to  use  crutches 
for  a  while;  she  had  since  moved  about 
with  a  stick.  She  was  formerly  very 
active,  but  owing  to  the  injury,  she 
now  moved  about  with  difficulty,  ai^d 
still  suffered  pain. 


*'C'APE   TIMES"   LAW  REPORTS. 


03 


Cross-examined  by  Sir  H.  Juta:  There 
was  a  (p:aTel  road,   with  a  lot  of  rough 
fToaiid  on  each  side.        As  he  went  to- 
wards the  racecourse,   he   had  aeen     the 
hol«s  alongside  the  ground.      There  wa« 
a  portion  partly  gravelled  near  the     en- 
WaiK^;    he   did    not   know   wliether       it 
had   been    gravelled    for    a       eab-staiid. 
The  hole^  were  some  distance  apart ;   he 
wimld  say  about  30  feet.       Ui>  trap  was 
nut   standing    very    near   to   the    hedge. 
The  diittance  of  the  hole  from  where  nis 
trap  stood   was  about  3   yards.        There 
was  a  i«ndy  track  where  the     carriages 
fit^iod.       The    spohr  of  his     trap    Btruek 
the  hole  on  the    racecourse    hedge  ^ide. 

Sir  H.  Juta:  That  shows  you  were 
driviog  down  the  racecourse  side,  in- 
&t««d  of  turning  to  the  n>ad? 

Witneas:  No,  I  went  straight  to  the 
mad. 

Bj  De  Villiers,  C.J. :  His  horse  was 
facing  Wynberg  way.  He  desired  U> 
turn  to  the  right  to  go  to  Xewlands. 
The  wheel  on  his  left,  as  he  sat  in  the 
cart,  dropped  into  the  hole. 

De  Villiers,  C.J.,  said  he  could  not 
understand  how  the  left  wheel  could 
have  gone  into  the  hole  if  the  witness 
was  turning   the  road. 

Further  cross-examined:  After  he 
had  turned,  he  went  on  slx)ut  three 
yard's.  The  hor^e,  he  supposed,  must 
have  ju^t  escaped  the  hole.  Ho  did  not 
see  the  refuse  about  the  hole  before  the 
acx'ident  occurred.  He  had  not  been 
betting  that  afternoon ;  he  was  not 
eicited  at  the  time.  The  cart  dropped 
into  the  hole;  he  did  not  know  how 
far  it  went  down,  but  he  should  say 
about  2^  feet.  He  did  not  measure  the 
depth.  The  horse  pulled  the  cart  out 
of  the  hole  without  any  difficulty ;  one 
f»f  the  shafts  broke  as  the  trap  was  be- 
infT  drawn  along. 

Sir  H.  Juta:  I  put  it  to  you  that  it 
was  in  the  struggle  to  get  out  of  that 
hok*  that  the  shafts  broke,  and  that  if 
you  had  t/>ld  those  peopV  to  get  out 
liefore  you  drove  out  of  the  hole,  no 
accident  would   have  happened? 

Witness:  No.  sir;  as  the  wheel  went 
down,  the  horse  swerved  round. 

By  His  Lordship:  The  shafts  broke 
»•"  tne  trap  was  coming  out  of  the  hole. 

Further  cross-examined :  Witness 
steppod  off  the  cart  as  it  went  down. 

Sir  H.  Juta:  I  put  it  to  you,  that  if 
you  bad  got  these  people  out  before  you 
got  the  cart  out  of  the  hole,  nothing 
whatever  would  have  happened  to  these 
people? 

Witness:  There  was  no  stopping  the 
horse 

Re-examined :  He  turned  his  cart  on 
the  Tight  wheel,  the  left  wheel  striking 
the  hole.  On  the  following  day  he 
tested  the  hole  by  means  of  a  stick, 
which  peiietrated  the  rubbish  quite 
easily.  His  theory  as  to  the  injury  to 
his  wife  was  that  her  ankle  was  struck 
by  the  seat. 

By  De  Villiers,  C.  J. ;  The  horse  was 


walking  at  the  time  of  the  occurrence. 
W[hen  he  felt  the  cart  going  down  he 
tried  to  stop  the  horse,  but  could  not. 

Rykie  Catherina      van      Niekerk   (the 
plaintiff)  said  that  her  husband  took  the 
reins  and  drove  very  slowly,  and  turned 
sharply,    and    then    pulled    towards    the 
gravel  road.       Witne-:*  heard  the  shafts 
crack.       The  horse  was  a  very  powerful 
animal,   and  immediately  it  found  itself 
m   the   hole  it   dragged    the   cart      out. 
Her   husband   did   not  urge   the   animal 
forward.     Witness    felt    the    trap    going 
down  on  one  side,  and  the  next  moment 
she  was  thrown  into  the  road.     Afterwards 
she    had    been    removed    home   she    was 
attended  by  Dr.   Eyre  and   Dr.   Rowan. 
Her  medical  attendant,  Dr.  L.  Beck,  was 
away   at   that   time.       Since  his  return. 
Dr.    Beck   had   attended  her.       Witness 
had  to  remain  in  bed  about  seven  weeks ; 
she  then  had  to  rest  on  a  couch;   after- 
wards  she  had  a  bath   chair ;   then  she 
moved    with    the    aid  of    crutches     and 
now    she   got   about   with  the   aid'  of   a 
stick.     She    was    a    cripple.        She    had 
formerly  been   accustomed   to  plenty  of 
exercise,   tennis,  cycling,   and  so  on. 

Cross-examined  by  Sir  H.  Juta :  There 
was  nothing  to  call  their  attention  to 
the  fact  that  holes  had  been  made  in  the 
side  portion  of  the  road.  The  left  wheel 
of  the  cart  dropped  into  the  hole  on  tho 
inside  edge.  Witness  had  no  idea  how 
she  fell.  The  horse  was  walking  at  the 
tune,  but  there  was  really  no  time  to 
draw  it  up. 

Re-examined :  The  horse  was  excep- 
tionally powerful.  Witness  could  ar- 
range for  the  animal  to  be  outside  the 
court  in  the  afternoon  if  his  lordship  and 
the  jury  desired. 

By    De   Villiers,   C.  J. :      She   did   not 

think    her    husband    tried    to    stop    the 

horse  when  the  wheel  had  sunk.      Both 

shafts  were  broken  when  the  vehicle  had 

*??•  ^'**^'"  o"t  of  the  hole. 

Miss  Maria  Johanna  Vlok,  of  New- 
lands,  sister  of  the  plaintiflF,  said  that 
she   was  m    the     trap     along   with   her 

hr^f-rl^'"'/!"'''^'  ^r,*^^  plaintiff,  and  her 
brother  (Louis.  Vlok)  on  the  day  named. 
VJitness  was  sitting  with  her  brother  at 
the  back  of  the  trap.  Mr.  Van  Niekerk 
turned  slowly  to  his  right  to  go  to  the 
gravel  road ;  witness  felt  the  trap  going 
down  on  the  left,  and  in  a  moment  they 
were  thrown  out,  witness  being  thrown 
ZltL^^  •^'■''P*'  ^''\'     .^ler  sister  suffered 

fZ^'  IV'  'o°i™  *^^  *"J"^y  ^^"^  the  first 
fortnight  She  was  ouito  crippled  still. 
Witness  did  not  think  there  was  any 
carelessness  in  the  plaintiff's  driving; 
he  turned  the  horse  very  slowly. 

Cross-examined :  After  the  accident 
the  cart  was  lying  forward  on  the  broken 
shafts ;  It  was  not  lying  over  on  its  side, 
bhe  had  not  noticed  that  there  were 
holes  on  the  side  of  the  road.  She  saw 
refuse  about,  but  she  did  not  think  that 
ic  covered  a  hole. 

rP^C  ?y^  **'.**  ^^  ^^""^  *h«*  the  plain- 
titt  had  sustained  two  fractures  of  her 
left  leg.       The  fibula  bone  was  brokoq 


64 


"CAPE  TIMES"   LAW  REPORTS. 


alK)ut  2  inches ;  a  small  portion  of  tho 
fibia  bono  was  chipped  oflF.  The  skin 
was  not  broken.  Tho  injury  wa» 
serious ;  ho  could  not  say  whothor  tiio 
results  wore  likely  to  Im)  permanent.  Ho 
had  not  lately  examined  tho  injury 
niodically. 

Evidence  waa  also  given  by  Dr.  II.  J. 
Rowan  and  Dr.  L.  H.  W.  Beck  to  the 
effect  that  the  plaintiff  waa  likely  to 
suffer  permanent  ill  effects  from  tho  in- 
jury. 

Louis  A.  Vlok  (brother  of  the  plain- 
tiff) also  gave  evidence  as  to  the  acci- 
dent. 

John  Edward  Paul  Cloise,  incorporated 
accountant,  said  he  resided  at  Newlands 
next  door  to  Mr.  Van  Niekerk.  Two 
days  after  the  accident  ho  went  with 
the  plaintiff's  hu»band,  Mr.  Attorney 
Holme,  and  Mr.  Surveyor  Smuts,  to 
look  at  the  hole  where  Mr.  Van  Nie- 
kerk said  the  wheel  had  sunk  on  the 
Saturday.  The  cart  seemed  to  have 
struck  the  hole  almost  diagonally. 
Some  of  the  boles  in  the  direction  of 
Newlands  had  not  been  filled  in.  All 
tho  holes  from  tho  entrance  seemed  to 
have  been  filled  in.  Judging  by  the 
track  the  cart  seemed  to  have  been 
turned  fairly  sharp.  They  tried  the 
hole  with  a  stick  and  found  that  it  con- 
tained house  refuse,  vegetable  matter, 
and  so  on,  and  some  sand.  Mr.  Van 
N'iekerk's  horse  was  a  quiet,  powerful 
animal. 

Cross-examined  by  Sir  H.  Juta :  Rain 
had  fallen  between  the  date  of  tho 
accident  and  their  visit.  He  had  not 
had  his  memory  jogged  of  what  occurred 
eight  months  ago ;  his  memory  did  not 
need    to   be    logged. 

By  Do  Villicra,  C.J. :  He  should  say 
that  the  dei)th  to  which  tho  wheel  had 
sunk  was  1  foot  to  1  foot  6  inches;  he 
would  not  bo  at  all  definit-e  on  the 
oint.  There  was  no  track  left  in  the 
lolo   when   they   visited   the   spot. 

Re-oxamined:  The  wheel  track  went 
to  and  off  the  hole,  but  was  not  shown 
at  the  hole  itself,  as  the  ground  had 
consolidated  again. 

Martin  Smuts,  Government  land  sur- 
eyor,  said  that  when  they  inspected  the 
hole  they  found  Municipal  refuse  both 
in  the  hole  and  about  it.  Witness  proved 
the  plans  put  in. 

David  Henry  Holme,  attorney,  also 
gave  evidence  as  to  an  inspection  he 
made  of  tho  hole  two  days  after  tho 
accident. 

Pieter  Johannea  Wilmot,  cab  pro- 
prietor, Claremont,  said  ho  saw  the 
accident  to  Mr.  Van  Niekerk's  trap. 
The  policemen  from  Wynberg  compellecl 
all  traps  to  stand  on  the  ground  on  tho 
side  of  the  road.  Mr.  Van  Niekerk 
pulled  straight  towards  tho  hard  road 
when  the  left  wheel  sank  in  the  hole. 
Speaknig  as  an  experienced  driver,  ho 
(lid  not  notice  any  carelessness  aboul 
Mr.  Van  Niekerk's  driving. 

Cross-examined  by  Sir  H.  Juta:  He 
should  say  that   tlie   wheel   sanl?  about 


i: 


2  ft.  in  the  hole,  probably  to  tho  nave. 
He  would  not  Kwear  whether  the  shafts 
were  broken  lief  ore  tho  trap  had  1k€'.» 
dniirged  out  of  tho  hole. 

Johannes  Graham,  rotired  landtiwncr, 
(Maremrtnt.  said  that  he  considered  Mr. 
Van  Niekerk  an  *'  excellent  coachman." 
Iho  horse  was  a  willing,  useful  animal. 
The  Huirdred  Foot-road  bad  long  been 
lecognised  a^  a  public  road ;  he  had  used 
it  for  22  year^. 

Croi-s-examim-d :  There  had  been  a 
track  that  he  had  used. 

Mounted  Constable  Ashley,  formerly 
stationed  at  Wynberg,  said  he  saw  Mr. 
Van  Niekerk  turn  rund,  and  tho  wheel 
sink  in  the  hole,  when  the  horse  had 
boon  turned  in  the  straight.  The  holo 
had  been  filled  up  with  rubbish,  gar- 
bage, etc.  It  was  customary  for  cabs 
and  carriages  to  stand  on  the  ground  in 
question  when  tho  proper  cab  stand  was 
filled. 

Cross-examined:  The  horse  moved 
away  with  a  brisk  step;  it  was  not  a 
walk,  but  ^'  a  kind  of  jig-jog."  The 
horse  might  have  got  into  the  hole  first. 
Ho  had  said  on  Monday  afternoon  thafc 
the  horse  might  have  slipped,  because  he 
saw  the  horse's  head  swerve  to  the  right. 
Ho  did  not  recollect  properly  what  he 
said  on  Monday  afternoon,  because  he 
was   asked    so   many   questions.  Tho 

wheel  went  about  5  or  6  inches  down 
into  the  hole.  He  said  on  Monday 
aiternoon  that  the  accident  might  have 
been  caused  by  Van  Niekerk  pulling 
round  the  horse's  head.  Both  shafts 
broke  together  when  the  vehicle  had 
been  pulled  out  of  the  hole. 

Re-examined :  W^itness  had  had  a  con- 
sultation with  counsel  for  the  defend- 
ants (Sir  H.  Juta).  He  did  not  «ay  that 
ho  saw  Mr.  Van  Niekerk  jerk  the  horse  ; 
ho  thought  the  horse  must  havo  been 
jerked. 

By  Do  Villiers,  C. J. :  When  the  trap 
went  into  the  holo  the  horse's  head 
swung  to   the  right. 

Henry  F.  Seale,  jeweller,  Cape  Town, 
and  residing  at  Claremont,  said  that  the 
turf  was  fairly  even  on  the  left  hand  side 
near  the  racecourse.  Carriages  stood 
on  the  side  away  from  the  gravel  road. 

Mr.  Schrfcjncr  read  tho  correspondence 
which  had  passed  between  the  parties* 
attorneys  and  closed  his  case. 

John  Geo.  Frcbus,  guard  in  charg*^  of 
a  convict  gang,  employed  by  tho  Muni- 
cipality, said  that  his  gang  wero  en- 
gaged in  making  tho  holes.  About  11 
o'clock  on  the  11th  June,  they  were  or- 
dered to  fill  in  the  holes ;  he'  began  on 
the  Wetton-road  side  of  the  racecoui^so 
entrance.  On  tho  cab  stand  he  put  in 
at  the  bottom  one  load  of  refuse,  and 
then  all  the  material  that  had  come 
out.  The  convicts  starnped  the  material 
down.  Ho  also  dealt  in  a  similar  way 
with  the  other  holes.  A  drizzle  foil  dur- 
ing the  day,  and  rain  fell  later  on.  He 
did  not  think  that  a  cart  could  havfi 
fallen  2  ft.  9  in.  down  one  of  the  holes. 


'*  CAPK   TIMES "  LAW  REPORTS. 


6ft 


Them  -were    indications     thai    e  hoi© 
bd  been  filled  up  -with  TeCuse.  , 

Crott-eumined  by  Mr.  Schveiner :  He 
liad  ten  oonYicts  working  under  him, 
tbeT  fiUed  up  about  32  holes.  He  wm 
iretnicted  to  fill  up  tbo  hole*  between  10 
•od  11  o'cloat ;  the  work  wm  finished 
about  hali-past  12-  On  the  following 
Monday  he  filled  further  hole;,  the 
whole  number  bcins  about  150.  Ibe 
nad  inipecior  told  him  to  fill  the  hplea 
ti  the  side  of  the  raoecouree  that  day, 
because  of  the  raoea. 

Reexamined:  Ho  fflled  up  all  the 
hok«  in  the  same  faahion.  W^toess  was 
paid  by  the  Government.  The  Muni- 
cipality did  not  bring  any  gravel  to  the 
hoJpa.  He  fiUed  up  the  holes  prepaiu- 
tory  to  the  trees  being  planted.  He 
was  a  bit  of  a  gardener,  and,  naturally, 
he  would  not  put  down  a  thick  layer  of 
gravel   in  order   to  plant  troee. 

By  Dc  Villiers,  C  J. :  He  was  quite 
sure  that  all  the  holes  were  troden 
down  by  convicts.  There  were  two  con- 
Ticta  engaged  at  each  hole. 

George  Black,  road  nispector    on  the 
GoundTB    employ,    said  that    a   Bootch 
cart  of  house  refuse  was  tramped  down 
into  the  holes,    and  then   on  top     was 
placed  the  material  which  had  been  dug 
oat,  this  being  also  tramped  down.  Tins 
were  removed  from  the  refuee,  and  plac- 
ed to  one  side.       He   watched  all   the 
hoka   being  filled   up,    and  went     over 
thtm  to  see  that  they  were  safe.     The 
holes   at  the  cabstand  were  deaJlt   with 
io  a  precisely  similar  manner.     No  acci- 
dent happened,  except  to  Mr.   Van  Nie- 
kerk's  trap.      He  saw  the  place     where 
the  accident  occurred  on  the  day  loUow- 
iug;   the  wheel  track  waa  9  or  10  feet 
long.       The   hole   was  tramped   round, 
and  waa  a  little  lower  on  one  side  than 
th«  other.    Marki  could  be  seen  of  peo- 

fJe  having  tramped  down  the  ground. 
1p  tried  tho  hole  with  his  foot  rule,  and 
found  that  the  wheel  track  was  about  3 
inchea  ckep.  On  Monday  he  drove 
over  the  hole  with  the  engineer,  and  the 
track  then  made  was  about  3  inches  deep. 
The  hole  contained  sand  and  refuse. 

Cross-examined  by  Mr.  Schremer: 
Witne«  put  his  foot  on  the  bote,  and 
foand  that  the  earth  waa  firm.  He  con- 
sidered that  it  was  impossible  for  the 
cart  wheel  to  go  deep  down  into  the 
hole.  A  walking  stick  could  be  pushed 
down  two  or  three  feet  anywhere  in  the 
sand  alongside  the  racecourse.  They 
actually  put  pegs  down  to  mark  out  the 
hol€0  vrithout  any  hammering;  Uie^ 
simply  pushed  down  the  pegs  with  their 

hands.  _  . 

Reexamined :  There  were  four  passen. 
gers  in  the  trap,  when  the  engineer  and 
witneaa  went  over  the  hole  on  the  Mon- 

dav  morning.  .     ,     ««.         v  x 

Further  cross-examined:  The  photo- 
graph (produced)  showed  the  Councils 
cart  standing  in  precisely  the  same  poai- 
tion  as  Van  Niekerk's  cart  had  occupied 
on  the  preoeding  Saturday.       A  snap- 


shot was  taken  by  the  Council's  engioeer. 

By  the  Jury :  The  hole  had  been 
trampled  down  between  the  time  of  the 
accident  and  when  he  visited  the  scene 
on  Sunday  morning. 

By  De  Villiers,  C.J. :  There  appeared 
to  be  no  tramping  or  treading  on  the 
track  of  the  wheel.  The  ground  round 
about  just  appeared  to  have  been  walked 

ever.  ....        ^         M. 

Hugh  Master  Ladell.  the  Council  s 
engineer,  gave  corroborative  evidence 
as  to  a  visit  of  inspection  on  the  Monday 
following  the  accident. 

Cross-examined :  He  did  not  know  that 
there  were     four  passengers  in  the  cart. 
He  only  remembered  the  driver  and  him- 
self    having  been  in  the  cart  when     it 
was  driven  over  the  hole.       The  reason 
why  he  took  his  cart  over  the   hole  on 
the  Monday  was  because  he  wanted  to 
see  if  he  oould  break  his     cart    shafts  in 
the  same  way.     Ho  stood  with  both  feet 
on  the  hole  on  the   same  morning,    but 
not  where  the  water  had    collected.    His 
feet  did  not  sink.       He  did  not    take  a 
stick  to  see  how   far  it  would   go   into 
the  hole.      Only  the  holes  on  the  ?«▼«» 
cabstand   were  directed  by  him  to      be 
filled   in  on  that  particular  day.      The 
men  went  and  filled  in  other  holes,  not 
upon  hia  instructions,  but  because    they 
had  time  to  spare. 

James  Barry  Munnik,  Town  CTerk, 
Wynberg.  said  that  the  gravel  cab- 
stand  at  Kenil  worth  Racecourse  had 
been     gazetted.      The  road  was  formerly 

a  sand  track.       .  .      ^,     «  ,     •  rr 

Cross-examined  by  Mr.  Schremer :  He 
had  had  no  communication  from  the 
Turf  Club,  or  anyone  in  fact,  calling 
att>ention  to  the  danger  from  the  holes 
which  had  been  dug.     ^ 

Sir  H.  Juta  closed  his  case,  and  coun- 
sel having  addressod  the  jurv, 

De  Villiers,  C.J.,  summed  up.  The 
most  imporUnt  question,  he  said,  was 
whether  the  plaintiflPs  husband  was 
guilty  of  contributory  negligence.  It 
«>€med  to  him  that  the  shaft©  were 
broken  by  the  horse  dragging  the 
vehicle  out  ol  the  bole.  The  question 
was.  shouW  the  plaintiff  not  have 
allowed  the  ♦rap  to  be  dragged  out; 
should  the  plaintiff's  hueband  have 
stopped  the  cart  and  relieved  it  of  its 
burden  before  tbe  cart  was  pulled  out 
of  this  deep  hole?  ,  ^  /  ■» 

The  foreman  of  the  jury  stated 
that  they  had  found  that  the  accident 
was  caused  by  the  negligence  of  the  de- 
fendants, and  that  there  was  no  con- 
tributory negligence  on  the  part  of  the 
plaintiff^  husband.  They  assessed  the 
damages  at  £1,500.  ^ 

Mr.  Schreiner  moved  for  judgment 
which  was  entered  accordingly. 

rPlaintiff's  Attorneys:  Herold  and 
Gie;  Defendants*  Attorneys:  Findlay 
and  Tait.l 


-,4 


1 


66 


11 


CAPE  TIMES"   LAW  REPOBTB. 


SECOND    DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Ha  asdobp.] 


TRIAL  CAUSES. 


BOWERS    V.    BOWERS  AN 
AREMD8E. 


D    (         1906. 

(  Feb.  7th. 

The  pUintiff  and  first  defendant 
were  married  in  community  of  pro- 
perty at  Simon's  Town  in  February, 
1893,  which  marriage  still  subsihtcd. 
There  were  three  children  of  the  mar- 
riage, all  of  them  minors.  On  the  12th 
Augu.st  and  the  14th  August  tlie  first 
defendant  was  guilty  of  adultery,  and 
since  the  latter  oato  the  defendants  had 
lived  together  as  man  and  wife.  Plain- 
tiff therefore  asked  for  a  decree  of 
divorce,  with  custody  of  the  children, 
o^  against  the  fi<rat  defendant,  and  £50 
damages  as  against  the  second  defend- 
ant,  wrt'h  G09tiB  of  the  case. 

Mr.  Alexander  for  plaintiff.  Defen- 
dants in  default. 

The  -plaintiff,  in  his  evidence,  spoke 
to  seeing  adultery  committed  by  the 
first  ana  second  defendants.  He  had 
left  Simon's  Town,  and  was  living  in 
Cape  Town,  and  until  Arend^e  canne  to 
the  house,  the  plaintiff  and  first  defendant 
lived  together  amicably. 

Maasaorp,  J.,  granted  the  degree  of 
divorce,  plaintiff  to  h'ave  custody  of 
the  children,  and  judgment  for  £50 
damages  against  the  second  defendant 
and  costs. 


BABRITT  V.  BABBITT. 

This  was  an  action  for  judicial  separa- 
tion. 

Mr.  Alexander  for  plaintiff.  Defen- 
dant in  person. 

F.  W.  Barritt  (the  plaintiff)  said  she 
was  married  to  the  defendant  in  com- 
munity of  property  on  October  24,  1897, 
at  Capo  Town.  There  were  no  children 
of  the  marriage.  She  was  a  widow 
when  she  married  defendant,  and  there 
were  two  children  of  the  previous  naar- 
riage.  She  had  been  been  keeping  a 
boarding-house,  and  had  saved  some 
£200,  and  that  sum,  together  with 
money  she  obtained  for  selling  furni- 
ture, she  gave  to  defendant,  who  ob- 
tained the  Roma  Hotel.  For  a  year 
they  lived  happily  together,  when  de- 
fendant became  addicted  to  intemper- 
ance and  neglected  the  house.  Finally, 
in  1902,  he  refused  admittance  to  an  in- 
spector of  police  after  closing  time,  was 
fined  £5,  and  as  a  consequence,  the 
brewery  company  forced  them  to  leave 
the  hotel.  Plamtiff  then  took  a  board- 
ing-house in  Faure-street,  and  plaintiff 
returned  to  her  the  £^0  she  had  lemt 
him,       For  the   first  n^onth  or  two  he 


Kve  her  money,  but  in  190S  and  1904 
had  not  contributed  to  her  support. 
Her  husband  when  drunk  smashed  the 
furniture,  and  had  treated  her   cruelly. 

P.C.  Thorpe  said  he  lived  about  two 
dbora  from  the  Barritt's  in  Faure- 
street.  He  had  had  defendant  under 
his  observation  for  about  two  years,  and 
found  that  he  was  praotioally  drunk  all 
the  time.  One  evening  he  was  oalled 
into  the  house,  and  found  defendant 
strapped  down  with  ropes,  and  in  a 
state  of  mad  drunkenness.  z^,    j 

Evidence  was  also  given  by  Charles 
and  Frances  Hogerman  as  to  defen- 
dant's    violence  and  drunkenness. 

Alex.  Morrison,  a  boarder  at  Mrs.  Bar- 
ritt's house,  said  that  defendant  was 
often  drunk,  when  he  was  obnoxious. 
When   sober,   defendant   was   a       quiet 

man. 

Mr.  Alexander  closed  his  case. 

Defendant  denied  that  he  was  given 
to  drunkenness,  and  said  the  trouble 
arose  through  the  son-in-law  (Hoger- 
man) trying  to  interfere  between  defen- 
dant and  his  wife. 

Plaintiff  (recalled),  in  answer  to  his 
lordship,  said  the  goodwill  of  the  Roma 
Hotel  was  £700,  and  she  advanced  her 
husband  £200  in  cash  before  the  mar- 
riage. She  did  not  know  whether  lier 
huSuind  had  paid  anything  himself  to- 
wards  the  goodwill. 

Maasdorp,  J.,  granted  a  decree  of 
judicial  separation,  furniture  declared 
to  be  the  property  of  the  plaintiff,  and 
no  order  was  made  as  to  costs. 


WEIMAB  V.  glKBVKS 


•  { 


i9a5. 

Feb.  7th. 
8th. 


v« 


Accommodation  note--Payment 
by  accommodation  indoraer — 
Right  of  indorser  to  recover 
from  drawer. 

Mr.  P.  Jones  was  for  the  plaintiff,  and 
Dr.  Greer  was  for  the  defendant. 

Dr.  Greer  said  that  although  he  had 
telegraphed  for  the  defendant,  who  was 
the  only  witness  for  the  defence,  he  was 
not  present.  He  had  been  in  Court  on 
Friday,  and  the  whole  of  yesterday. 
Counsel  was  prepared  to  go  on  with  the 
evidence  for  the  plaintiff  if  hia  lordship 
BO  desired. 

[Maasdorp,  J.:  Very  well,  we  will 
hear  the    evid<*nce  for    the    plaintiff.] 

The  declaration  set  out  that  about 
May,  1902,  the  defendant,  who  was 
about  to  purchase  certain  ground  at 
Parow,  and  in  order  to  complete  the 
price,  pas-sed  a  note  for  £25,  which  was 
endorsed  by  the  plaintiff  through  one 
George  Casper  Dreyer,  who  wrongfully 
negotiated  the  note.  The  holder  of  the 
note,  one  Goldfoot,  successfully  sued  the 
plaintiff  for  privisional  ^  sentence  on 
the  note,  and  obtained  judgment  for 
£30  10«.  4d.       Plaintiff     claimed     the 


"CAPE  TIMES"   LAW  BEPORTS. 


67 


amoiint  of  the  note,  and  the  costs  back 
from  the  clefendant.  The  defendant  in 
bis  plea  denied  that  the  signing  by  the 
plaintiff  and  one  Lytton  of  the  note  was 
an  acccHnmodation.  The  defendant  paid 
the  amount  due  to  Dreyer,  as  he  was  re- 
quested to  do  on  the  day  it  became  due. 
Mr.  Jones  made  an  application  for  an 
amendment  of  the  declaration  to  the 
ef[ec%  that  the  plaintiff  on  the  16th  May, 
1902,  endorsed  the  note  as  an  accommo- 
dation, and  for  the  aesiatance  of  the  de- 
fendant, and  the^  defendant  agreed  to  in- 
demnify the  plaintiff,  and  alflo  that  the 
note  wiA  negotiated  prior  to  the  due  date 
of  its  becominfiT  due. 

Dr.  Greer  pointed  out  that  such  an 
alteration  in  the  declaration  put  the  case 
on  an  entirely  different  foundation: 
After  three  months  the  plaintiff  had  dis- 
covered that  his  facts  were  totally 
wrong.  The  defence  of  the  case  was 
made  out  to  meet  the  original  declara- 
tion. 

[Maasdorp,  J. :  Had  they  gone  on  you 
would  have  met  a  bad  case.  The  ques- 
tion is  why  they  should  not  go  on  now, 
as  you  are  not  prejudiced  with  regard  to 
costs.] 

Dr.  Greer :  I  cannot  offer  any  further 
oppoKition,  but  I  submit  we  are  ofititlcd 
to  costa. 

[Maasdorp,  J. :  The  amendment  will 
he  allowed.  All  costs  occasioned  by  the 
amendment  to  be  paid  by  the  plaintiff.] 
The  plaintiff  stated  that  in  1902  the 
defendant  wanted  to  buy  some  projperty 
of  Dreyer,  and  he  had  not  sumcient 
money,  and  asked  witness  to  help  him. 
Defendant  asked  witness  to  a-ssist  him, 
and  witness  proceeded  to  Dreyer,  with 
whom  he  signed  a  note  at  30  days.  The 
defendant  agreed  to  pay  the  money  back 
again  when  it  became  due.  On  the  16th 
June  defendant  said  he  had  paid  the 
money  to  Dreyer,  and  produced  a  re- 
ceipt. Witness  told  him  to  go  back 
to  Dreyer  and  get  the  bill,  but  he  was 
unable  to  procure  it.  After  that, 
Lytton  and  witness  were  sued  for  the 
amoimt  of  the  note,  and  the  amount  of 
the  judgment  was  paid  through  witness's 
attorney.  Dreyer  was  arrested  on  an 
aflfidaTit  which  was  made  by  witness. 
The  understanding  was  that  the  defen- 
dant would  pay  the  money  back  to  wit- 
neas.  The  defendant  gave  evidence  in 
the  case,  and^  was  anxious  that  the  plain- 
tiff should  win  the  case. 

0ro8s-e;xamined  by  Dr.  Greer  :  He 
was  anxious  to  see  new-comers  in  the 
new  township  of  Parow,  and  in  order  to 
get  a  new  neighbour  he  was  willing  to 
^arantee  him  for  £25.  Witness  was  not 
mterested  in  the  sale  of  the  property. 
He  did  not  tell  the  defendant  to  pay  the 
money  to  Dreyer.  Witness's  action  was 
one  of  pure  philanthropy. 

Re-examined  by  Mr.  Jones:  He 
denied  absolutely  that  he  was  to  get 
any  consideration  out  of  the  sale  of  tiio 
prnjperty. 

lliomas  Hasell,  broker,  accountant  and 
f«t»te  a|;ent,  stated  that  in  1902  he  held 


the  plaintiff's  power  of  attorney.  The 
plaintiff  and  the  defendant  came  fre- 
quently to  his  office  with  reference  to 
this  matter.  When  the  summons  ^ras 
served  witness  advised  the  defence.  Tiio 
present  defendant  assisted  the  plaintiff 
m  every  wav  to  win  the  case.  It  was 
certainly  understood  that  the  defendaut 
was  to  return  the  money  if  the  plaintiff 
lost  the  case.  Witness  had  no  doubt 
if  the  defendant  had  been  in  good  cir- 
cumstances at  that  time  he  would  have 
paid  the  money.  Witness,  holding  the 
defendant's  money  which  he  obtained 
from  the  Government  over  a  railway 
accident,  paid  over  £25  to  the  plaintiff's 
account.  When  the  defendant  heard  of 
this  he  objected,  and  the  money  was  re- 
funded. 

Cross-examined  bv  Dr.  Greer  :  The 
defendant  lost  consioerably  over  the  mat- 
ter. The  transfer  had  not  gone  through 
in  conseciuence  of  the  negotiations  with 
Dreyer.  The  defendant  understood  that 
he  was  liable  to  the  plaintiff.  The 
plaintiff  was  certainly  very  anxious  to 
push  Parow  ahead. 

Charles  Edward  Price  Hughes,  plain- 
tiff's attorney,  said  he  handed  over  the 
documents^  in  the  civil  proceedings 
to  the  police,  which  includea  an  agree- 
ment between  Dreyer  and  the  defendant, 
and  a  receipt  for  £20.  He  had  made 
every  endeavour  to  recover  the  docu- 
ments, but  was  unable  to  get  them. 

Cross-examined  by  Dr.  Groor:  It  was 
certainly  unfortunate  that  the  agree- 
ment was  lost.  The  declaration  was 
drawn  up  during  witness's  absence  from 
the  Colony. 

Mr.  Jones  closed  his  case. 

Peter  Siercks,  defendant,  stated  that 
in  June,  1902,  he  had  negotiations  with 
one  Dreyer  with  regard  to  the  purchase 
of  certain  property  at  Elsie's  River  Halt. 
He  dealt  with  Dreyer  direct,  and  thought 
that  Dreyer  could  sell  him  the  pro- 
perty for  which  the  plaintiff  had  called 
on  nim  several  times  with  a  view  of 
purchasing.  Finally,  it  was  agrreed  that 
the  property  would  be  sold  for  £210. 
Witness  paid  £30  in  cash,  £25  on  a  pro- 
missory note,  and  the  rest  was  on  bond. 
The  note  was  made  payable  to  Wiemar, 
and  it  was  to  be  redeemed  at  Dreyer's 
office.  Witness  thought  that  the  plain- 
tiff and  Dreyer  were  acting  together  in 
the  sale  of  the  property.  Witness  had 
not  an  intimate  acquaintance  with  the 
plaintiff,  who  was  very  anxious  that 
witness  should  buy  the  property.  Ho 
lost  over  £30  on  the  transaction.  He 
regarded  Dreyer  as  a  party  entitled  to 
receive  payment  for  Wiemar.  Several 
times  witness  called  on  Droyer,  but 
could  not  get  the  note.  Witness  never 
told  Hazel  that  he  would  indemnify  the 

Slaintiff  for  the  note.  What  he  gave 
[axel  to  understand  was  that  although 
he  was  not  liable  he  was  willing  to  come 
to  some  arrangement.  He  told  Hazel, 
when  the  latter  paid  £25  to  Wiemar's 
account,  that  he  would  not  pay  the 
mone^. 


68 


CAPE  TIMES"   LAW  REPORTS. 


Crosfl-^xamined  by  Mr.  Jones:  In  re* 
gard  to  his  transactions  with  Dreyer,  th>9 
only  document  he  held  was  the  receipt 
lor  the  money.  Dreyer  was  acting  for 
Bridget  to  sell  the  property.  The  £25 
was  a  commission  to  the  plaintiff.  H.^ 
could  not  explain,  if  Hazel  was  wrong 
in  saying  that  witness  told  him  to  pay 
the  money  to  Wiemar,  that  Hazel 
bhould  have  done  so.  He  objected  to 
pay  the  money  because  he  was  told  that 
the  plaintiff  had  got  the  money  from 
Dreyer.  He  got  the  note  from  the 
Magistrate*8  Court,  becauae  it  was  essen 
tial  for  the  transfer  of  the  property. 

Dr.  Greer  having  been  heard  in  argu- 
ment on  the  facts,  without  calling  on 
Mr.  Jones, 

Maasdorp,     J.  :     The     plaintiff    sues 
the  defendant  in  this  case  for  the   re* 
covery   of   £25.        He    alleges   that  the 
£26     is     due    to     him     in     respect     of 
a     promissory     note     upon     which     he 
became     an     accommodation     endorser 
for       the      accommodation       of         the 
defendant.       He  savs  th<at  he  was      re- 
quested    by  the  defendant  to  lend     his 
name   to  assist      him   in  part  payment 
of    the  purchase   price  of   the   property 
whioh    the  defendant  had    bought  from 
Bridget.        He  further  stated  that      ho 
subsequently  paid  the  note  to  the  legal 
holder  for  value,  and     is     consequently 
entitled  now   to   recover   it   from       the 
defendant.        If    these    allegations      are 
true,  then  it  is     quite  clear  that,  as  an 
acconrniodation   party  to  this  note,  he  is 
now     entitled    to     recover  this     mone^ 
from  the   person    to   whom   he  lent  his 
rame.      It  appears  that  a  sale  did  take 
place,  in  which  the  defendant  was     the 
purchasitr  and   a  Mr.  Bridget   was     the 
seller,  and  this  sale  took    place  through   ^ 
the     instrumentality   of      Mr.      Dreyer. 
The  defendant  admits  that  tho   purcliase 
price   was  to  be  the  sum  of   £210.  and 
that    it     wai»    agreed     that     £55  of  this 
amount  should  be  paid  in      cash.       He 
states  in  so  nuny  words  that  he  got  the 
£25  to  enable  him  to  make  up    the  suni 
of  £55,   because  he  had  onlv    £35      in 
cash  at  the  time ;  and  he  said  more  than 
once  that  tho  £25  was  reallv    portion  of 
the  cash  payment  which  ho  haa  to  make. 
He  does  say  thdt  something  was      said 
which       induced    him    to  believe      that 
Wiemar  was  to  have  the   benefit  of  the 
£25,  but  what  was  said  is  so  vague  that 
it  cannot  be  accepted  as     proof  of  any- 
thing.      We  have  it,  therefore,  that  the 
sale    did    take   place    to   the   defendant, 
who  was  in  want  of  this  assistance,  and 
conse<iuontIy  it  is   not    very  difficult  to 
accept  the  clear  and  positive     statement 
of  the   witnesses   for  the      plaintiff     to 
the  effect  that  the  assistance     was    ren- 
dered by  the  plaintiff  to   the  defendant 
in   the    &hape    of  this  promissory  note. 
Upon    reference    to   the  note    itself,    it 
seems  it    is  in  payment  of  the  balance 
of   the   purchase    price    of    the    ground 
at  Elsie^s  Halt.       That  clearly  supports  j 
th^  case   of   the   plaintiff    that   certain  j 


money  was  to  be  paid  for  the    property 
that  was  bought,  and  it  was  to  be  paid 
by  defendant,  and  it  was  not  to    be  paid 
to  the  plaintiff,  but  to  the  owner  of  the 
ground.       Upon  these  facts,  therefore,  I 
come  to  the  conclusion  that  the  plaintiff 
haA   clearly  proved    tha.t  the  note   upon 
which  he  was   an   accommodation  party 
was  the  note  upon  which  he  was    subse- 
quently sued  by   a  person  by  the  name 
of   Goldfoot,  who  satisfied    the     Magis- 
trate that  he  was  the   legal   holder     for 
value,  and  he  obtained  judgment  against 
the  plaintiff      for  the   amount.         The 
plaintiff  would,  upon  these  facts,  be  en- 
titled to  recover.      The  defenda-nt  seems 
to   be  under  some    impression  whioh   is 
not  justified  by  the  evidence  that     Wie- 
mar  had    some   interest   in   the   money. 
Now,  take  it  that     Wiemar.  had  an   in- 
terest in  the  money,  and  that  he  ought 
to  have  been  the   holder  of  the     note, 
and  to  h&ve  recovered  the  value     from 
the  defendant.       Then  the   defence      is 
set  up  that  he,  as  the  holder  of  that  note, 
instructed  the  defendant  to  pay  Dreyer 
this  sum  of  money  as  the  agent  of  the 
plaintiff.      Now,  even  if  there  was  some 
ease  made  of  it  that  there  was  a  direct 
liabilitv    from       the    defendant    to    the 
plaintiflF,  and  that  it  was  not  an  accom- 
modaiion  note,  then   the  defendant   had 
utterly  failed  to  prove  that  he  paid  this 
note  to     Wiemar  through   Dreyer      be- 
oause  there  is  not  a  tittle     of    evidence 
that  Dreyer  was  ever  the  agent  of  the 
plaintiff    to  receive  his    money.      Upon 
the  face  of  the  note,  it  is  provided  that 
the  dote  was  to  be  paid  at  No.  2,  Good 
Hope  Buildings.       That  does  not  make 
the  occupier  or   the  owner  of  that   pro- 
perty the  agent  of  tlie  holder  of  the  note, 
and   as   a  rule,    when  arrangements  are 
made  of  this  kind,  upon  the  payment  of 
the    note,   the   note   must  be  recovered 
from  the  person  to  whom  the  payment 
is   made,  and  if  the   person  fails  to  re- 
cover this     note,   and  if     parties  after- 
wards    suffer  through  his     negligence, 
ho  must  suffer  for   his  own   conduct   m 
the  matter.      But  I  found  my  judgment 
upon  the  fact  that  this  was  a  bill  upon 
which  the     plaintiff  was     an     accommo- 
dative party,  and  having  had  to  pay  the 
bill,  he  is  entitled  to   recover  frcwi   the 
defcndan*.         There   will   be    judgnaeiU 
for    t»he    pkintiff    for    £25    with    oosfc*. 
There  was  a    claim  for  the  costs  of  the 
previous  trial,  but  it  is,    °<*^^"5f®«^ 
now  to  go  into  the  question  whether  the 
plaintiff  would  have  been  entitled  to  re- 
cover thes»e  costs,  as  that  claim  haa  been 
abandoned. 

[Plaintiff's  Attorney:  P.  Hughes;  De- 
fendant's Attorney:  W.  G.  Coulton.J 


"CAt>E  TntES"   LAW  RElPORTS. 


6$ 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  iho  Chief  Justice  (the  Rii^ht 
Hon.  Sir  J.  H.  DE  Yillikbs,  P.O., 
KCJCQ.,  LL.D.).] 


TRIAL  CAUSES. 


CLOETC  V.  DIPBAEM 


f       1905. 
\  Feb.  8th. 

Mr.  Gardiner,  on  <behalf  of  the 
dofendaut,  moved  for  tiie  trial  cause  set 
down  for  hearing  on  Friday  (February 
lOtb),  to  bo  postponed.  Counsel  read 
an  affidavit  by  Mr.  8.  Hufcton,  attorney 
to  the  applicant  (defendant  in  the 
action),  cmbod]^in^  a  telegram  from 
Dioraesn  {who  is  m  the  Orange  River 
Colony),  stating  that  he  could  not  be 
present  in  Caipe  Town  by  Friday,  that 
there  had  been  continuous  rains  that 
the  roads  wore  heavy,  and  that  tie  was 
residing  over  100  miles  from  the  rail- 
way. Applicant  was  unwell,  and  hi^ 
most  ntaterial  wrtnees  could  not  attend. 

Mr.  McGregor  (for  the  plaintiff),  said 
that  plaintiff^s  witnesses  were  already  in 
town.  He  opposed  the  application,  un- 
less satisfactory  security  for  costs  were 
given. 

[I>e  Villiens.  C.J.  :  It  is  clear  that  this 
postponement  can  only  be  allowed  on 
one  condition.  That  condition  is,  that 
the  defendant  shall  before  Friday  morn- 
ing at  ten  o'clock  pay  the  costs  of  the 
day  and^  of  plaintiflTs  witnesses  who 
have  arrived  in  Cape  Town,  and  costs 
of  the  motion  of  the  2nd  February.] 

At  a  later  stage. 

De  Villiers,  C.J.,  informed  counsel  that 
an  alternative  condition  would  be  in- 
cluded in  the  order,  viz.,  "  or  give  secur- 
ity for  costs,  to  the  satisfaction  of  the 
Registrar." 


KUIT    y.    UNION-CA6TLS 
STEAlfSHIP  CO. 


f       1935. 
)  Feb.  8th. 


Dog  —-  Injury  —  Knowledge  of 
vicioiu  propensity  —  Master 
of  passenger  ship. 

The  pltUntiffj  afm'eigner^  being 
a  third-class  passenger  on 
hoard  a  mall  steamer^  teas 
bitten  by  a  dog  which  had  been 
tied  up  at  a  spot  from  which 
it  could  reaeh  the  part  of  the 
ship  ordinarily  occupied  by 
third-class  passengers.  The 
master  of  the  ship  was  aware 
of  the  victims  propensity    of 


tlie  dog^  and  had  put  up  a 
notice  in  Eftglish  thai  it  uxu 
dangerous. 

Held,  that  the  owners  of  the 
ship  were  liable  in  damages 
for  the  injury. 


This  was  an  action  brought  by  Jan 
Kuit,  a  carpenter,  of  Stellenboech, 
against  the  Union-Oastle  Steamship  Co., 
to  recover  damages  in  the  sum  of  £250 
for  injuries  sustained  by  a  dog  bite  on 
the  defendant  company's  steamer  Ger- 
man. 

The  declaration  set  out  that  on  the 
11th  May.  1904,  plaintiff,  who  had  duly 
paid  to  the  defendants  passage  money 
(third-class  from  London  to  Cape  Town), 
sailed  from  London  in  the  vteamship 
German,  and  arrived  in  Cape  Town  on 
or  about  the  Uth  June.  On  the  30th 
May  he  was  bitten  by  a  dog  of  the 
kind  known  as  a  boarnound,  under  the 
care,  custody,  and  control  of  the  defen- 
dants or  their  servan-ts,  which  was  be- 
ing carried  by  the  defendants  on  the 
steamer.  The  said  dog  was  of  vicious 
habits.  Through  the  carelessness  and 
negligence  of  the  defendants'  servants, 
the  dog  was  allowed  to  be  in  such  a 
position  that  it  could  reach  and  bite 
passengers  who  might  be  going  about 
where  they  had  a  right  to  go.  The 
defendants'  servants  failed  to  keep  the 
animal  in  proper  custody  and  control. 
Plaintiff  had  sustained  bodily  injuries, 
and  had  suffered  and  still  suffered  great 
pain,  his  health  had  been  injured,  and 
He  had  been  put  to  expenses  in  medical 
treatment  and  medicines,  and  had 
otherwise  sustained  damages  in  the  sum 
of  £250.  Defendant  refused  to  pa^jr  the 
said  sum  or  any  part  thereof.  Plaintiff 
prayed  for  judgment  for  £250  damages 
and  costs  of  suit. 

The  defendants,  in  their  plea,  ad- 
mitted the  allegations  in  paragraphs  1, 
2,  and  3,  save  that  they  did  not  admit 
that  the  plaintiff  when  bitten  by  the 
said  dog  was  on  a  portion  of  the  said 
steamship  where  he  was  entitled  to  be. 
They  admitted  that  the  dor  was  in  their 
rustodv  and  control.  'They  admitted 
that  the  dog  was  of  a  vicious  disposi- 
tion, but  said  that  due  precautions  were 
adopted  to  prevent  the  said  dog  from 
biting  the  plaintiff  or  any  other  passen- 
ger, and  that  warning  was  given  to 
the  plaintiff  and  other  passenger?,  by  a 
written  notice  over  the  kennel,  that  the 
dog  was  dangerous.  The  defendants 
further  said  that  the  plaintiff  was  bitten 
through  his  own  negligence  in  wil- 
fully approaching  too  closely  to  the 
kennel.  They  denied  liability,  and 
pnayod  th^«t  the  okiin  might  be  d«is- 
misKed,   with   costs. 

Mr.  Gardiner  appeared  for  the  plain- 
tiff ;  ^  Mr.  Upington  (with  him  Mr. 
Lewis)  appeared  tor  the  defendants. 


70 


CAPE  TBiES"   LAW  REPOJITS. 


Dr.  Frank  Muir  Morris  said  that  the 
plaintiff  called  eJb  hia  cansulting-roome 
about  the  15th  June.  1904,  and  showed 
him  an  injury  to  his  face.  There  was 
a  jagged  wound  extending  from  his 
nose  transversely  towards  the  car, 
about  1^  inches  long,  and  there  was  an- 
other jagged  wound,  which  extended 
down-wards,  about  one  inoh  deep.  The 
plaintiff,  he  thought,  must  have  suffered 
great  pain.  He  saw  the  plaintiff  again 
about  ten  days  ago ;  although  the  wounds 
were  healed,  a  distinct  scar  had  been 
left.  The  charges  of  witness  and  his 
partner  were  five  guineas.  When  wit- 
ness first  saw  plaintiff,  the  latter 
seemed  to  be  extremely  nervous. 

Ctoss-examined  by  Mr.  Upington  :  He 
should  not  call  the  wound  a  "  simple 
lacerated  wound,*'  as  described  by  the 
ship's  surgeon.  There  was  a  difference 
between  a'  "  simple  "  and  a  '*  lacerated  " 
wound.  A  dog  oito  invariably  caused  a 
septic  wound.  The  plaintiff's  lower 
e^lid  was  involved  in  the  soar.  He 
did  not  notice  any  indications  that 
plaintiff  had  scratched  his  face. 

Jan  Kuit  (the  plaintiff)  said  th^ 
ho  was  a  Hollander;  he  left  England 
in  the  German  on  the  18th  May  last.  On 
the  30th  May  he  was  bitten  by  the  dog. 
He  thought  it  would  be  about  five  days 
previously  when  he  first  saw  the  dog; 
it  was  then  in  the  place  where  the  con- 
certs for  third-class  passengers  were 
held.  Witness  had  a  right  to  be  in  this 
part  of  the  boat;  he  had  never  been 
warned  not   to  go  there. 

Mr.  Gardiner  said  that  ho  understood 
the  animal  was  a  Russian    wolfhound. 

Witness  (continuing)  said  that  the  dog 
was  fastened  by  a  chain  about  5  foet 
long,  and  the  kennel  stood  against  the 
bulwarks  of  the  boat.  The  opening  of 
the  kennel  faced  the  bulwark.  Witness 
was  looking  at  the  dog  at  a  distance  of 
about  3  feet;  he  was  stooping  down, 
but  he  neither  teased  nor  patted  it. 
The  dog  suddenly  sprang  up  and  bit 
him  on  the  face.  He  was  not  aware 
bef(yre  the  accident  that  the  dog  was 
vicious;  he  would  never  have  expected 
to  find  a  vicious  dog  on  the  deck. 

fDe  VilHers.  C.J. :  But  did  you  not 
know  that  there  was  a  notice  up  warn- 
ing  passenffors  a.bout   the   dog.  | 

Witness  said  that  he  was  aftprwards 
told  so,  but,  being  unable  to  read  Kng 
lish,  he  did  not  know  of  tlie  waniing, 
and  none  of  the  passengers  had  called 
his  attention  to  it.  Before  the  acci- 
dent two  other  persons  were  bitten  and 
one  was   afterwards  bitten. 

Witness  saw  a  paper  at  the  kennel 
but  he  was  under  tlie  impression  that 
it  waR  the  name  of  the  dog.  Witness 
went  to  the  surgeon  and  his  wound  was 
attended  to.  He  still  suffered  from  the 
effects  of  the  injury.  When  he  bent 
forward     at  his  work    he     experienced 

ekin;   his  eye  was   nearly  always  moist, 
is  sight   was  not   so   clear   as   it   had 
been    formerly.    Witness   was    suing   in 


forma  ^uperit.  He  had  been  unable 
to  obtain  the  evidence  of  the  two 
other  passengers  who  witnessed  the 
accident. 

Cross-examined  by  Mr.  Upington: 
He  had  not  approached  the  dog  prior 
to  the  accident  except  once  when  the 
dog  was  without  water,  and  it  was 
given  water  by  another  passenger.  Ho 
had  not  patted  the  animal,  nor  had  he 
rubbed  his  hands  over  its  beitd  and  ears. 
He  went  up  to  the  dog  because  he  was 
attracted  by  its  enormous  size  and  be- 
cause it  was  so  miiserably  thin.  lie 
wa^  not  a  judge  of  dogs,  though  ho 
was  very  fond  of  them.  He  could  only 
read  a  few  words  of  English.  He  did 
not  speak  to  anybody  about  the  notice. 
After  he  had  been  bitten  he  heard  that 
a  passenger  and  a  sailor  had  been  bit- 
ten. 

Dr.  Julius  Petersen  said  that  he  saw 
thi)  plaintiff    on    the   same    day   bh   his 

t)artner.    Dr.       Morris.       He    found    a 
Bcerated   wound    about    2^   inches    long 
under  the  man's   left  eye. 
Mr.  Gardiner  closed  tiiu  ca«e. 

Mr.    Upington  called 

Michael  O'Mahoney,  sanitary  in- 
spector, employed  by  the  Table  Bay 
Harbour  Board,  who  said  he  was  en- 
gaged on  the  destruction  of  rats.  He 
was  a  passenger  by  the  German,  when 
the  defendant  was  injured.  The  dog 
had  been  brought  down  under  the  awn- 
ing on  the  fore-deck  owing  to  the  hot 
weather.  After  they  had  been  at  sea 
for  some  low  days  he  saiw  the  plaintiff 
repeatedly  go  to  the  dog  and  ne  con- 
siaerod  that  he  must  be  the  owner. 
The  plaintiff,  the  butcher,  and  the 
boatswain  were  the  only  persons  who 
approached  the  animal.  The  plaintiff 
handled  the  dog  as  if  it  belonged  to  him. 
Witn«?s  saw  a  notice  on  the  kennel  to 
the  effect,  "'Beware  of  the  dog ;  it  h 
dangerous.'*  Witness  saw  the  accident. 
The  plaintiff  went  straight  up  to  the 
dog,  began  to  handle  it,  and  then 
stooped  with  his  hands  on  his  knees 
and  faced  it.  The  dog  made  a  rush 
and  bit  him. 

Mr.  Upington :  Have  you  any  in- 
terf.^t  in  this  case,  Mr.   O'Mahoney? 

Witness:  Not  as  much  as  a  single 
match,  I  paid  the  Casrtle  Company  tne 
last  penny  of  the  passage. 

Cross-examined  :  After  the  accident 
the  dog  was  again  taken  to  the  upper 
deck,  although  they  were  still  in  the 
tropics.  He  thought  the  plaintiff  must 
H«ve  been  making  grimaoM  at  the  dog 
when  he  was  bitten.  The  plaintiff  was 
bending  forward  with  his  hands  on  his 
knees  and  was  staring  the  dog  "in  the 
countenance." 

Another  passenger  by  the  steamer,  a 
German,  who  said  he  was  a  fruit-dealer, 
also  gave  evidence.  He  declared  that 
he  saw  the  plaintiff  playing  with  the 
dog  twice  or  three  times.  The  plain- 
tiff snapped  his  fingers  to  call  the  dopr 
to  him;  witness  saw  him  stroke  the  am- 


"CAPE  ttMES"   LAW  REPORTS. 


71 


mal.  When  the  accident  happooed  the 
plaiDtaff  had  been  strokinsf  the  dog. 
Tbeie  waa  a  notice  over  the  dog's  ken- 
nel. 

ETideoce  taken  on  oommiasion  was 
then  read. 

CWpiain  Silirester  said  that  the  dog 
was  so  placed  that  it  was  not  possible  for 
him,  by  tugging  at  his  chain,  to  get 
bejond  hia  kennel.  A  notice  was  fixed 
OTer  the  kennel  to  the  effect  that  the 
dog  was  dangeruus.  He  had  frequent 
ly  brought  out  dogs  to  this  country, 
«Dd  he  adopted  in  the  present  instance 
the  ordinary  and  usual  precautions. 

The  Surgeon  of  the  steamer  said  that 
be  had  great  difficulty  in  preventing 
the  plaintiff  from  irritating  the  wound 
l^  touching  it.  The  plsuntiff  was  not 
of  cleanly  halMts.  He  discontinued  the 
treatment  of  the  plaintiff  on  the  9tb 
June. 

Other  evidence  by  the  officers  of  the 
ship  was  to  the  effect  that  due  precau- 
tions were  taken  to  protect  the  passeu- 
gens  from  the  dog. 

Mr.  Gardiner :  The  dog  was  admit- 
tedly vicious,  &nd  hence  it  was  the  duty 
of  the  Company  to  take  such  precau- 
tioDs  as  would  make  it  impossible  for 
him  io  inflict  injury  Le  Jtaux  v.  Fick 
(Buch.  18r79,  p.  29),  j.  arker  v.  Jieed  (14 
(\T.R.,  720).  The  plaintiff  was  not 
aware  of  the  viciouA  propensitice  of  the 
dog ;  spe  Doig  v.  Forbes  (7  Juta,  119). 
More  than  a  mere  notice  in  English  is 
required  to  bring  to  the  knowledge  of 
^ien  third  class  passengers  the  fact  that 
a  dog  is  vicious.  It  m  not  as  though 
the  plaintiff  bad  been  1>h rowing  stones 
at  the  dog  or  otherwise  irritating  it 
when  he  was  bitten ;  he  was  merely  look- 
ing at  it.  The  dog  had  been  kept  with- 
out water  in  the  tropics,  and  was  prob- 
ably angry.  It  is  said  that  the  plain- 
tiff and  others  had  patted  the  dog,  but 
even  if  that  waa  so  (and  the  evidence  on 
thiai  point  is  very  contradictory),  it 
vroula  not  amount  to  contributory 
negligence.  The  medical  evidence  as  to 
pk&intiff's  injuries  is  very  clear.  As  to 
damages,  he  has  had  to  pay  £5  for 
medical  attendance,  and  the  pain  and 
eufferinjg  he  has  undergone  mu9t  also  be 
taken    into  account. 

Mr.  Upington :  There  is  no  doubt 
that  the  plaintiff  wae  bitten,  and  O'sMa- 
honey*s  evidence  clearly  shows  that  he 
pattcNd  tlie  dog.  As  a  ntaHer  of  law, 
plaintiff  had  no  right  to  touch  the  do^. 
A  quiet  dog  will  often  bite  a  stranger 
if  touched.  Everr  precaution  was  taken 
to  prevent  the  dog   from   inflicting   in- 

FDe  Villiers.  C. J. :  The  dog  might 
have  been  put  into  cage.] 

Even  so,  a  man  might  have  opened  the 
door  of  the  cage.  Of  course  that  would 
ha've  been  contributory  negligence,  but 
the  plaintiff  was  guilty  of  contributory 
negligence.  In  tne  case  of  Doiff  v. 
Forbes  the  dog  was  not  tied  up,  the 
decision,   no   doubt,    would    have    been 


otherwise  had  he  been.  Here 
the  plaintiff  went  up  to  the  dog  for  the 
purpose  of  handling  it,  and  he  had  only 
himself  to  blame. 

[De  Villiers,  C.J. :  Was  the  dog  tied 
up  at  a  i^ace  to  which  third  class  pa«i- 
scngens  had  access?] 

No  doubt  they  could  go  there,  but 
the  Company  can  always  restrict  pas- 
sengers from  using  a  portion  of  the 
deck,  e.ff.t  they  may  put  a  horse  box 
there.  Here  a  line  was  chalked  on  the 
deck  to  denote  the  length  of  the  chain, 
and  a  notice  was  put  up. 

[De  Villiers,  C.J. :  How  was  anybody 
to  know  that  that  chalk  line  denoted 
the  length  of  the  cliain  ?] 

The  plaintiff  could  have  seen  that 
from    his    own  observation. 

[De  Villiers,  C.J. :  Was  the  notice  up 
when   he  was   bitten?] 

Yes.  He  has  been  guilty  of  more 
than  contributory  negligence.  The  lact 
that  he  cannot  read  English  will  not 
help  him.  If  O'Mahoney  s  evidence  h 
to  be  believed,  all  the  other  passengers 
knew  thai  the  dog  was  dangerous,  and 
I  submit  that  the  Company  took  cvorv 
reasonable  precaution.  Among  Ediglish 
cases  aeo  Block  v.  Copeland  (1  Esp.  203). 

[De  Villiers.  C.J. :  That  is  quite  a 
different  case.  There  the  plaintiff  had 
no  right  in  the  yard ;  here  the  plaintiff 
had  a  right  to  be  where  he  ^m-I 

But  the  general  principle  of  English 
Law  is  that  whore  an  injury  results 
from  a  man's  own  negligence  and  im- 
Lrovidence  he  cannot  hold  anybody  else 
liable.  The  proximate  cause  of  the  in- 
jury was  his  going  up  to  handle  the  dog. 
In  illustration  of  what  I  have  aaid,  I 
refer  to  Voet.  (9.  1,  6^.  I  have  not 
found  a  single  case  in  which  the  owrner 
of  a  dog  which  wai9  securely  chained 
up  has  been  held  liable. 

Mr.  Gardiner  was  not  called  upon  in 
reply. 

De  Villiers,  C.J. :  The  first  question 
to  be  decided  in  the  case  is  whether 
there  was  negligence  on  the  part  of 
the  company.  The  next  question  is 
whether  there  was  contributory  negli- 
gence on  the  part  of  the  plaintiff.  If 
both  of  these  questions  are  decided  in 
favour  of  the  plaintiff,  the  last  oues- 
tion  will  bo  what  amount  of  aam- 
ages  should  be  awarded.  As  to  the 
first  question,  whether  there  was  negli- 
gence. I  am  clearly  of  opinion  that  it 
was  an  act  of  very  great  negligence  on 
the  part  of  those  who  were  in  cliargo  of 
the  ship  to  place  the  dog  at  the  place 
where  ^  they  did  place  it.  It  wa^ 
first  tied  up  in  another  part  of 
the  ship,  but  it  is  said  that  it 
was  removed  to  this  part,  beoaaso  ol 
the  heat.  We  know  tnat  the  steerage 
passengers  in  a  ship^  have  verjr  little 
room  as  a  rule,  and  in  my  opinion  the 
little  room  which  is  allotted  to  them 
should  not  be  partly  occupied  by 
a  dog  known  to  bo  vicious.  There 
is    a    great    lack    in    the    evidence    as 


^2 


"CAJ»E  tlMES"   lAW  REipORTS. 


to  how  the  captain  acquired  a  know- 
ledge of  the  dogs  vicious  propen- 
sity. That  he  knew  the  dog  to  be 
vicious  is  perfectly  clear,  because  lie 
says  he  put  up  a  notice.  It  is 
Buggceted  that  others  had  been  bitten 
lief  ore,  and  there  is  some  slight  evi- 
dence to  that  effect,  but  certainly  the 
fact  that  the  captain  knew  of  the  dan 
gerous  propensities  of  the  dog  would 
rather  snow  that  something  of  the  kind 
had  happened  before.  However,  the 
captain  says  that  he  himself  u£cd  to  pat 
the  dog.  The  dog  must  have  known 
him  ;  and  the  fact  that  he  patted  it 
does  not  alter  the  fact  that  the  captain 
knew  that  it  was  a  vicious  dog.  In 
my  opinion,  it  was  not  a  proper  place 
to  tie  the  dog  where  the  steerage  pas- 
sengers congregated,  and  where  tnev 
would  have  access  to  the  dog.  We  all 
know  how,  with  the  life  on  board,  lit- 
tle things  interest  oven  fint-claea  pas- 
sengers. It  was  to  be  expected  that 
the  steerage  passengers  would  go 
up  to  the  dog.  Well.  then 
the  dog  did  undoubtedly  bite  tne  plam- 
tiff  severely  in  the  face.  The  next 
question  is  whether  the  plaintiff 
contributed  to  the  injury  by  his 
own  negligence.  The  evidence  as 
to  what  really  took  place  is  con- 
flicting. TTI^  plaintiff  says  he  was 
looking  at  the  dog  at  the  time.  One 
of  the  witnesses  for  the  defendants 
says  that  at  the  time  he  was  bitten  he 
was  not  actually  touching  it,  but  he 
had  his  hands  on  his  knees  and  was 
looking  at  it.  Another  witness  says 
that  he  was  touching  it.  It  lies  on  the 
defendant  to  prove  contributory  negli- 
gence, and  where  there  is  any  conflict 
upon  the  evidence  I  should  certainly 
give  the  benefit  of  the  doubt  to  the 
plaintiff  who  has  sustained  the  in- 
jury. The  plaintiff  says  he  was 
not  touching  the  dog  at  all.  The 
captain,  or  whoever  was  responsible, 
would  have  surely  known  that  pas- 
sengers, with  so  little  to  amuse  them, 
when  a  dog  was  placed  there,  would 
have  a  natural  inclination  to  go  and 
look  at  it.  The  dog  took  a  snap  at 
the  plaintiff  and  bit  him.  In  my 
opinion  there  is  not  sufficient  proof  of 
contributery  negligence.  It  is  said  that 
there  was  a  notice  up.  The  plaintiff 
says  he  did  not  see  the  notice.  He  says 
he  is  a  foreigner,  and  he  does  not  un- 
derstand English.  But  even  if  ho  did, 
I  am  not  satisfied  that  the  mere 
looking  at  a  dog  would  have  been  such 
negligence  on  his  part  as  to  bar 
his  remedy.  It  is  said  that  he  had 
previously  patted  the  dog.  There  are 
witnesses  to  that  effect.  But  if  he  had 
previously  patted  the  dog  then  he  might 
well  look  at  it  without  fear  of  the  con- 
sequences which  ensued.  In  my  opinion 
there  was  not  contributory  negligence  on 
the  part  of  the  plaintiflf.  With  regard 
to  the  amount  of  damages,  I  do  not 
think   this   is  a  case     for     very  heavy 


damages.  The  plaintiff  has  appeared 
in  Court,  He^  might,  it  is  said,  suffer 
some  inconvenience  from  his  eyesight 
in  future.  There  is  no  clear  evidence 
on  that  point.  Some  substantial 
damages  should  be  awarded;  and  I  think 
the  sum  of  £100  would  do  justice  to  the 
case.  There  will  be  judgment  for  the 
plaintiff  for  £100,  with  costs. 

Mr.  Gardiner  asked  that  the  costs 
should  include  the  costs  of  the  appli- 
cation for  leave  to  take  the  evidence 
of  the  purser,  which  were  ordered  to 
stand  over,  and  plaintiff's  expenses  as 
a  necessary  witness. 

De  Villiers,  C. J.,  said  that  these  costs 
would  bo  included  in  the  order. 

[Plaintiff's  Attorney  :  P.  Cloote  ; 
0;?fendant's  Attorneys :  Fairbridge, 
Ardorne  and  Lawton.J 


SECOND    DIVISION. 


[  Before  the  Hon.  M  r.  Justice  Ma asdorp.] 


TRIAL  CAUSES. 


MCCABTHY  V.  VI8BEB. 


Building  contract  —  Defects  — 
Time  limit —Architect's  cer- 
tificate. 

This  was  an  action  brought  bv  Mrs. 
McCarthy,  who  was  joined  by  her  hus- 
band as  co-plaintiff,  to  recover  from  the 
defendant  £125  damages,  by  reason  of 
his  negligence  in  the  erection  of  two 
villas  at  Observatory-road. 

The  declaration  sot  out  that  the  de- 
fendant contracted  for  the  sum  of  £1,760 
to  erect  two  villas  for  the  plaintiff,  but 
th:^  work  was  not  up  to  the  specifications 
and  plaintiff  suffered  damages  to  the  ex- 
tent of  £125.  Mr.  Alexander,  at  this 
stage,  asked  for  leave  to  amend  the 
declaration,  by  putting  the  damages    at 

Mr.  Upington  (with  him  Mr.  Alexan- 
der) was  for  the  plaintiff;  and  Mr.  Bur- 
ton (with  him  Mt  Struben)  was  for  the 
defendant. 

Mr.  Burton  opposed  the  motion,  point- 
ing out  that  the  defence  was  brought 
into  Court  to  meet  a  certain  schedule  of 
defects. 

Mr.  Alexander  said  the  defendant  de- 
nied the  liability  altogether,  and  sub- 
mitted th«t,  under  Rule  334,  the  plaintiff 
was  entitled  to  amend  his  declaration. 

Maasdorp,  J.,  said,  if  the  plaintiff 
paid  the  costs  of  the  day,  a  postpone- 
ment  would   be   granted,'  but  the 


"CAf>fi  TIMES'*   LAW  REPORTS. 


78 


could     not    possibly     go     on    with    the 
amendment. 

Mr.  Alexander  said  if  that  wa£  the 
case,  bo  preferred  to  go  on.  Counsel 
ccHitinued  to  read  the  declaration,  which 
further  set  ou4  that  the  defendant  failed 
to  covDplele  the  buildings  according  to 
the  contract.  On  the  51st  March,  1904, 
the  defendant  promised  to  rectify  the 
building  in  acc<jrdance  with  the  con- 
tract,  but  he   failed  to  do  so. 

In  his  plea,  the  defendant  stated  that 
he  cotnpleted  the  work  to  the  satisfac- 
tion of  the  architect.  If  any  defects 
did  exi^t,  which  he  denied,  he  was  not 
responsible  for  them. 

John  McCarthy  (co-plaintiff  in  the  ease) 
stated  that  the  agreement  was  entered 
into  between  himself  and  the  defendant. 
\Vitne^•«  was  acting  on  behalf  of  his  wife, 
to  whom  he  was  married  out  of  com- 
munity of  property.  Neither  of  the 
hou9<^  were  completed  when  possession 
wa$  taken.  In  the  house  witness  lived 
in,  he  noticed  the  building  was  not  ac- 
cording to  specifications,  and  pointed 
out  defects  in  the  cement  work,  paint- 
ing, and  doors  to  the  defendant.  Ac- 
cording to  the  money  charged  by  the 
defiTidant,  it  was  a  poor  job.  The 
<»ther  house  was  damp,  through  bad 
pla5teriiig;  the  painting  was  also  bad. 
The  defendant  was  advanced  money  free- 
ly; he  was  always  hard  up.  He  had 
never  seen  anything  of  a  £nal  certi- 
ficate; the  building  was  not  completed. 
In  consei|uence  of  a  letter  he  received 
from  the  a>rchiteet,  the  defendant  agreed 
to  stand  by  the  work  for  another  three 
months  from  the  31st  March.  Three 
weeks  later  the  defects  were  shown  to 
the  defendant  in  presence  of  the 
architect,  and  he  promised  an- 
other three  months  from  date. 
The  defendant  put  the  blame  on  his 
wcrkmen.  The  doors  were  quite  loose 
and  the  chimney-pieces  had  to  be 
fasten^  together.  Several  letters  were 
sent  to  the  defendant  who  promised 
to  look  after  the  defects,  but  he  never 
came  to  the  house.  The  Municipality 
threatened    him  with   summonses. 

Cross-examined  by  Mr.  Burton :  The 
Municipality  complained  of  the  water- 
courses. He  approached  the  defendant 
on  the  appearance  of  the  outside  of  cer- 
tain villas  be  had  built.  He  thought 
£1,760  sufficient  for  the  job  accordmg 
to  the  specifications.  The  conversar 
tiou  about  the  indifferent  plastering 
took  place  before  April  when  witne.ss 
pointed  out  that  the  weather  wall  was 
not  done  in  pure  cement.  The  foot- 
path defendant  oonetructed  was  not  to 
make  up  for  the  cement  work.  Witness 
would  not  have  paid  on  a  final  certi- 
ficate from  hi)  architect,  but  he  paid 
on  a  letter  from  the  architect  saying 
that  the  defendant  was  short  of  money 
and  if  the  witness  paid  the  defendant 
would  remedy  the  defects.  Defendant 
neTer  asked  witness  to  have  the 
weather   wall  made    14  inches.    Up    to 


June  27  witness  did  not  write  to  defen- 
dant about  the  defects,  because  the  de- 
fendant knew  all  about  it.  Witness 
told  Mr.  Poole,  the  architect,  in  July, 
about  the  defects  not  being  rectified, 
and  Mr.  Poole  got  a  clerk  of  the  works 
and  a  master  builder  to  come  and  ex- 
amine the  buildings,  and  they  drew  up 
a   schedule  of   defects. 

Re-examined  by  Mr.  Alexander:  The 
defects  he  referred  to  were  defects  that 
were  there  when  the  building  was  hand- 
ed over  by  the  defendant.  TTie 
painters  were  still  working  in  Febru- 
ary. The  promissory  note  was  made 
payable  at  a  date  when  the  defects 
should  have  been  made  right. 

Louisa  McCarthy  stated  her  husband 
signed  the  contract  for  her,  and  the 
defendant  wa6  aware  of  that.  In  April 
Mr.  Poole,  the  defendant,  and  wit- 
nees*s  husband  examined  the  building. 
Her  husband  complained  of  the  floors, 
the  plastering  and  the  painting.  The 
back  part  of  the  houee  was  damp  at 
the  present  moment. 

Cross-examined  by  Mr.  Burton:  The 
defendant  did  not  say  that  he  wanted  to 
settle  the  case.  A  week  before  Christ- 
mas the  defendant  advised  her  to  with- 
draw the  case  as  it  had  no  foundation. 
The  leakage  took  place  long  before 
June.  She  selected  the  window  fas- 
teners herself.  She  nev^r  told  thg 
workcifn  that  she  was  satiified  with 
he  work. 

Vivian  Poole,  architect's  assistant, 
employed  by  Messrs.  Baker  and  Mast»y, 
stated  that  he  drew  the  plans  and  su- 
pervised the  work  for  the  villas.  At 
the  beginning  of  the  contract  in  Sep- 
tember the  defendant  borrowied  £60 
from  the  plaintiff.  Witness  nevx^r 
granted  a  final  certificate  for  the  work. 
As  a  matter  of  fact  at  the  t)eginning  of 
the  year  he  had  to  draw  the  defendant's 
attention  to  the  omisBion  of  a  parapet. 
In  March  the  defendant  came  to  him 
for  money,  stating  that  he  was  hard 
up,  and  witness  gave  him  a  note  to 
the  plaintiff  asking  him  to  pay  the 
balance,  and  that  the  defendant  would 
put  the  defocta  right.  The  main  de- 
fects were  the  plastering,  the  painting, 
and  the  flashing.  In  April  witness  took 
the  defendant  to  the  house  to  point  out 
the  defects  to  him.  The  houses  were 
verj'  damp.  There  was  only  about  10 
per  cent,  cement  in  the  plastering.  The 
defendant  guaranteed  in  three  months 
to  put  right  the  defects.  The  hou-se 
had  not  in  point  of  fact  been  completed 
according  to  the  contract. 

Cross-examined  by  Mr.  Burton :  The 
floors  were  got  in  so  quicklv  that  he 
could  not  sa;sr  whether  the  sleeper 
walls  were  put  m  or  not.  The  floors 
shook  considerably.  The  defendant  was 
prepared  to  swear  that  he  had  put  in 
sleeper  walls  and  was  willing  to  take 
up  the  flooring  on  witness's  suggestion, 
but  the  plaintiff  did  not  wish  to  go  to 
the  inconvenience.  The  whole  of  the 
external  painting   was  bad,   and  it  was 


^4 


"CAPE  TIMES ♦»   LAW  REPORTS. 


rti-rosented  to  the  defendant  that  he 
should  do  the  work  over  again.  The 
defendant  agreed,  but  failed  to  do  ^o. 
Witness  called  on  the  defendant  with- 
in a  week  after  he  had  been  paid,  to 
urge  him  to  proceed  with  the  work. 
There  were  about  a  dozen  holes  in  the 
roof,  and  the  defendant's  attention  was 
drawn  to  this,  but  he  failed  to  rectify 
it.  The  omission  of  the  skirting  was 
also  pointed  out.  The  guttering  could 
not,  as  the  buildings  were  constructed, 
be  put  up.  The  defendant  someEow  got 
his  zoof  too  high.  It  was  pointed  out 
to  the  defendant  that  .as  the  guttering 
would  :iot  ^o  along,  lead  flashing  must 
bo  put,  and  the  defendant  promised  to 
have  it  done,  but  he  failed  to  keep  his 
promise.  The  guttering  was  on  the 
house  in  November  before  the  contract 
time  expired.  He  inspected  the  build- 
ing once  a  week.  He  knew  of  no  ar- 
rangement by  which  the  chimney  pots 
Sut  up  were  to  be  substituted  for  the 
ashing  left  out.  The  only  way  to  put 
the  floors  right  was  to  take  them  up,  and 
put  sleeper  walls  in.  The  painter  said 
113  had  done  the  painting  according  to 
specification,  but  witness  told  liinri  that 
he  niufit  do  all  the  external  painting. 
The  holes  in  the  iron  roof  were  about 
throe- sixteenths  of  an  inch  in  diameter. 
He  did  not  believe  the  cement  used  was 
better  than  what  was  specified. 

Re-examined  by  Mr.  Upin^ton :  Wit- 
ness never  gave  a  final  certificate,  nor 
did  he  ever  give  a  certificate  that  the 
work  had  been  done  in  a  proper  and 
workmanlike  manner.  Witness  never 
hoard  anything  of  the  chimney  pots  tak- 
ing the  place  of  the  lead  flashings,  the 
kad  flashings  were  indispensable. 

David  Francis  Ellis,  clerk  of  works  to 
Messrs.  Baker  and  Masey,  architects, 
who  examined  the  promises  at  the  rc- 
ciuest  of  Mr.  Poole,  in  July  26,  stated 
that  he  drew  up  the  schedule  of  defects. 
The  yilldfi  were  indifferently  finished,  the 
principal  defects  being  the  omission  of 
the  flashings  on  the  roof,  owing  to  this 
omission  trie  houses  were  damp.  The 
outside  painting  was  very  bad,  and  the 
plastering,  he  concluded,  was  10  of  sand 
to  1  of  lime.  Witness,  Mr.  Orr,  and  Mr. 
Ketteringham  estimated  that  it  would 
take  £169  18s.  6d.  to  put  the  houses  in 
proper  order. 

Cross-examined  by  Mr.  Strubcn :  Wit- 
ness was  employed  by  the  same  hrui  as 
Mr.  Poole.  The  account  put  in  showi'd 
the  value  put  in  the  defects  in  the 
schedule.  Witness  considered  all  the 
prices  fair,  but  had  not  itomi^ied  them ; 
Mr.  Orr  would  speak  as  to  the  prices. 
The  cisterns  were  not  erected  according 
to  the  plan,  and  the  back  doors  were  not 
according  to  specifications.  Witi.ess 
could  ywear  that  ho  could  see  daylight 
through  the  ceiling.  The  painting  was 
bad  througJiout,  and  not  according  to 
speoificationfr. 

Mr.  Struben  cross-examined  the  wit- 
ness at  considerable  length  as  to    an  ex* 


cessive  estimate,  and  reverting  back  to 
item  six  asked  him  why  it  appeared  on 
the  list  when  it  was  not  on  the  specifica- 
tions. 

[Maasdorp,  J. :  You  have  asked  him 
that  before.] 

Witness:  Yes,  my  lord,  and  wo  have 
wasted  some  time  over  it.  I  have 
already  explained  that  Mr.  Orr  will  bo 
able  to    give    the    detailed    statement. 

Re-examined  by  Mr.  Upington:  Mr. 
Orr  made  an  examination  of  the  premises 
quite  independently  of  witness,  who 
checked  the  items.  From  his  general 
exiwrience,  the  cost  to  remedy  the  defects 
was  very  reasonable. 

Robert  Chas.  Orr,  architect  and  quan- 
tity surveyor,  stated  that  in  Januarv,  at 
the  request  of  the  plaintiff,  he  examined 
the  two  villas,  and  made  a  careful  ex- 
amination. He  took  up  floors,  and 
discovered  a  number  of  defects  that  were 
not  in  the  schedule.  He  had  compared 
his  report  with  the  schedule  attached  to 
the  declaration.  He  considered  it  would 
cost  £169  to  remetly  the  defects. 

Cross-examined    by    Mr.    Struben :    It 
was  twelve  months  after  the  villas  were 
completed    that    he    made    the   examina- 
tion,   but    twelve    months      would      not 
change      cement    into   lime.       He  could 
judge   the    painting   just    as   well    as   ho 
could  a  couple  of  days  after  it  had  been 
put  on.     The  painting  was  in  a  wretched 
state    throughout.        There    might    have 
been  a  good   many  arrangements   made 
between  the  defendant  and  the  plaintiff 
that  he  knew  nothing  about.     The  pape? 
was  discoloured,   clearly  showing   damp- 
ness.    Paper  could  be  discoloured  without 
dampness,  but  there  was  no  doubt  that 
the     cause  of  the  discolouration   in  this 
case  was  dampness.     The  fact  that  it  was 
a  very  severe  winter  last  season  he  did 
not  consider  as  the  cause,  as  he  thought 
it  unnecessarv  in  the  case  of  these  villaa 
Five  or  six  sheets  on  the  iron  roof  were 
apparently  old  sheets.     The  class  of  work 
done   in   South  Africa  would   make      an 
architect's  hair  stand  at  Home,  and  there 
vas  a  fair  specimen  of  bad   work   here. 
Kvery   matter   in   the   schedule    was    im 
portanl  to  the  plaintiff,  as  some  time  or 
other   he   would   have    to    remedy       the 
defects. 

In  further  cross-examination,  witness 
explained  that  the  doors  were  badly  con- 
structed, and  could  easily  be  pulled  away 
from  the  hangings. 

Mr.  Struben:  They  could  be  pulled 
away  by  a  weak  man? 

Witness:  Oh,  yes;  you  could  pull  them 
away  easily. 

Walter  Ketterngham,  builder  and  con- 
tractor, who  niade  a  joint  examination 
of  the  premises  with  the  last  witness, 
also  gave  evidence.  He  considered  that 
the  schedule  was  a  reasonable  one.  He 
agreed  generally  with  the  report  of  Mr. 
Orr. 

In  cross-examination,  witness  said  that 
he  would  have  liked,  as  a  builder,  to  take 


"CAPE  TIMES"   LAW  REPOlRTS. 


>lt 


the  coutract  at  the  price  the  defendant 
charged.  He  thought  he  should  hare 
nmde  £150  to  £200  out  of  the  cwntract. 
He  could  have  built  such  a  pair  of 
houses  for  £1,500. 

Charles  John  Howard,  commercial 
traveller,  tenant  of  one  of  the  houses, 
also  j^ave  evidence. 

Frederick   Visser,   the  defendant,  fetat- 
ed    that   in    March    he  went  over     the 
hcuses  with  Mr.   Poole,  the  evening  be- 
fore he  wont  to  the  plaintiff's  house.  Ho 
cculd  not   see  the  plaintiff  on  the  even- 
ing^ of  the  17th,  and  next  morning  the 
plaintiff    told    him   that   he  must  brmg 
the  final  certificate.      The  architect  com- 
l^ained  of  the  capping,  but  he  had  seen 
it  in  the    course   of      construction  three 
pTconths  before,  and  said  nothing  about 
it.    Leading    into  the  backyard,      there 
▼ere  a  few  cracke  above  the  door  and 
witncfis    had  that   remedied  next   morn- 
ing.   The  architect  a  week  later  said  he 
had  «ent    a   final   certificate,    and     gave 
witness  a  note  for  final  payment.       The 
foHowing*  Sunday  witness  and  Mr.  Poole 
went  to  flee  a  few  defects  in  the  house. 
The  plaintiff  said  that  when  he  walked 
in  the   dining-room  the  glasses   jingled, 
bat  they  did  not  jingle  when  witness  was 
there.     VTitness  offered  to  open  the  floor, 
and    while  Mr.   Poole  was  in  favour  of 
this  Mrs.  McCarthy  objected  to  the  re- 
moval   of  her  linoleum.       Witness     had 
put  sleeper  piers  instead  of  walls.     The 
plaintiff'    then    said     to   let  that  matter 
stand,  and  they  proceeded  into  the  bath- 
room, trhero  the  painting  wanted  a  final 
coat.      Two  days  afterwards  his  men  put 
the  matter   right.       Witness      admitted 
that  his  men  had  made  a  mistake  about 
the  external   plastering,    and  offered  to 
have    it  done  again.       Mr.      McCarthy 
agreed    to  the  suggestion.     Witness  put 
in  more  shutters  than  were      specified. 
The  extra  shutters  were  worth  £5.    Wit- 
ne»  was  asked  to  paint  the  place  all  over 
again,  but  said   that,  on  principle,      ho 
could  not  do  it.    Witness  did  not  chose 
tin*  colours.      Mre.  McCarthy    chose  the 
colours.     Mr.   and   Mrs.  McCarthy  were 
there   every  day,  and   never      obiected. 
Mr.   Poole  did   not  insist  upon  tne   re- 
painting  before   he    gave   a    certificate. 
Witness  told   Mr.  McCarthy     that      he 
would  stand  by  the  work  for  a  further 
three  months   beyond  the  two   months. 
Mr.  McCarthy  had  told  him  to  come  for 
hi«  money  before  that.    Witness  had  all 
the  defects   pointed   out  rcKrtified.      The 
painter  did  his  work  well.    He  was     a 
man  of  reputation,    and  was   at  present 
employed  on  Fletcher's  Retail  buildings. 
Mr.  Poole  and  witness  wont  to  see  Mr. 
Lanadoun,  the  painter,  to  ascertain  the 
nnmber  of  coats   of   paint.       Mr.  Lans- 
doun  detailed  what  he   had  done.    Mr. 
Poole  asked  Mr.   Lansdoun  to   give  an- 
other ooat,  as,   if  not,  he  wa£  afraid  he 
would  not  get  all  his  money.     Witness 
■aid.  '*11ien  sue   Mr.  McCarthy."     Mr. 
Poole  did  not  complain  further  to  Mr. 


Lansdoun.  N<«xt  evening  witness  went 
to  get  his  payment  from  Mr.  McCarthy 
on  the  final  certificate  of  the  architect. 
This  was  on  March  31.  Witness  gave 
Mr.  McCarthy  the  final  certificate  as  in 
previous  cases.  The  paper  stated, 
**  Final  certificate.  The  work  is  now 
completed,  and  Mr.  Visser  is  now  entitl- 
ed to  final  payment."  Witness  saw 
McCarthy,  and  Mr.  McCarthy  asked 
him  to  take  £90  cash,  and  a  promissory 
note  for  the  balance,  and  that  he  would 
allow  the  bank  interest,  so  that 
witness  would  not  lose  anything. 
The  pavment  included  the  extras.  Mr. 
McCarthy  said  nothing  about  repainting 
or  cementing  the  wall.  ITie  verbal 
promise  made  by  witness  was  for  threi^ 
mojuths.  Witness  made  the  promise 
because  he  thought  Mr.  McCarthy  con- 
sidered he  had  wilfully  omitted  to 
cement  the  wall,  and  he  therefore  made 
the  promise  to  show  he  did  not  want  to 
evade  responsibility.  On  June  14  Mr. 
McCarthy  showed  him  the  paper  com- 
ing loose  in  the  tittiuff-room.  Witness 
said,  "I  will  come  and  fix  it  up."  Wit- 
ness did  so  the  next  day.  Mr.  Mc- 
Carthy was  mistaken  in  wiying  he  did 
not  see  witness  after  April.  On  June 
21  Mr.  McCarthjr  said  there  was  damp 
coming  in  the  kitchen.  Witness  ex- 
amined it,  and  found  a  few  small  spots. 
It  was  driven  in  oy  the  rain.  The 
walls    were  nine-inch  walls. 

[Maasdorp,  J.  :  What's  the  use  of 
building  a  wall  if  it  must  lot  the  rain 
through  y I 

Witnovss:  I  pointed  out  to  Mr.  and 
Mrs.  McCarthy  that  these  walls  should 
be  14-inch  walls. 

[ Maasdorp,  J. :  Cannot  you  build  a 
9-inch  wall   to  keep  the  da'mp  outVj 

Witijcss :  Sometimes  you  can,  and 
sometimes  you  cannot,  my  lord. 

Examination  continued :  Witness  sug- 
gested the  alteration,  as  ho  thought  it 
dangerous  as  regards  damp.  Witness 
offered  to  do  it  without  cost.  Plain- 
tiffs, however,  did  not  agree  to  the  sug- 
gestion. There  wore  very  heavy  rains 
about  that  time,  and  many  houses  were 
damp.  lie  could  not  say  if  any  houses 
foil  down  in  consequence  of  the  rains. 
A  week  later,  on  Juno  28.  witness  re- 
ceived a  letter  from  Mr.  McCarthy  say- 
ing he  would  bo  pleased  to  mcQt  him 
early  as  possible  with  reference  to  the 
houses  built  at  Observatory.  Witness 
replied  saying  that  he  did  not  know 
what  was  wanted,  and  was  sorry  he  did 
not    give    particulars.  Witness       had 

he:ir(I  of  leakages,  and  wished  to  know 
why  he  had  not  l^ien  informed  lx»ft>re, 
Fo  that  it  could  have  been  attended  t^>; 
he  had  .suggested  the  painting  to  Mrs. 
McCarthy.  Mr.  McCarthy  said  nothing 
about  defects  between  March  and  June 
28.  On  July  5  witness  received  a 
registered  letter  from  Mr.  McCarthy, 
saying  he  wa.s  sorry  witness  did  not 
come  to  see  the  condition  of  the  houses. 
owing  to  bad  workmanship,  and  saying 


76 


**CAPE  TIMES"   LAW  REPORTS. 


he  would  stop  jxiyiuent  of  the  promissory 
note  and  that  unless  the  dofecta  were 
repaired,  he  would  take  action.  Wit- 
ness replied  that  his  liability  had  coased, 
but  WAA  willing^  to  do  what  he  could  to 
rectify  any  detects  that  were  hia  fault. 
Mr.  Poole  then  called,  and  said  Mr. 
McCarthy  bad  complained  about  the 
north  wall  not  being  cemented,  and  a 
lot  of  other  things.  Mr.  Poole  advised 
him  to  see  Mr.  McCarthy,  as  Mr.  Mc- 
Carthy was  going  to  take  him  into  the 
Supreme  Court.  Witness  told  him  he 
did  not  see  why  he  was  called  upon  to 
do  things  that  he  had  no  need  to  do, 
and  pointed  out  he  had  received  his 
Bnal  certificate,  and  had  been  paid. 
Mr.  Poole  admitted  that  an  arrangement 
had  been  made  about  the  cement  wall, 
but  said  Mr.  McCarthy  denied  it.  Wit^- 
ness  was  taken  at  ^e«it  length  through 
the  various  items  m  the  schedule  of 
damages,  and  maintained  that  many 
items  were  only  a  matter  of  a  few  shil- 
lings or  so,  and  in  other  cases 
where  things  were  said  to  be 
broken  or  inferior,  they  were  not  ^o. 
The  ridging  at  the  junction  was  water 
tight.  The  architect  never  told  him  it 
was  badly  fixed.  The  ridge  could  be 
taken  down  very  carefully  without  any 
risk.  A  carijenter  did  not  re(|uire  a  mate 
to  put  up  ridging.  The  whole  of  the 
ridging  could  be  refixed  for  £5.  There 
was  no  disadvantage  in  placing  the  tanks 
where  they  were  at  present.  When  wit- 
ness inspected  the  house,  Mrs.  McCar- 
thy showed  him  a  window  fastener  loose. 
The  covers  of  the  cisterns  must  have 
been  twisted.  The  iron  sheets  were  per- 
fectly new  when  he  put  them  on  the 
roof.  The  best  of  paint  might  accident- 
ally get  a  trifle  gritty.  Plenty  of  paint- 
ers would  be  gittd  to  re-do  the  external 
painting  for  £20.  It  was  entirely  wrong 
to  suggest  that  he  was  hard  up  during 
March;  he  had  between  £100  to  £300 
in  the  bank. 

Cross-examined  by  Mr.  Alexander:  Ho 
kept  no  book  in  connection  with  the 
building ;  he  only  kept  rough  memo- 
randa. He  vvas  not  hard  pressed  for 
mone^  at  the  time.  The  bank  had  ample 
security  for  the  overdrafts  which  aj)- 
ixiared  against  him  in  1903.  The  archi- 
tect never  gave  him  a  certificate  to  the 
effect  that  the  work  was  completed  in  a 
workmanlike  manner.  He  brought  no 
vouchers  to  show  what  he  spent  on  the 
building.  The  architect  was  not  telling 
the  truth  when  he  said  that  from  time 
to  time  he  handed  witness  slips  of  de- 
fects. The  plastering  was  already  done, 
not  according  to  contract,  before  the 
suggestion  was  made  about  substituting 
the  garden  path.  The  mason  failed  to 
get  the  specincation  before  the  plastering 
was  done.  He  saved  nothing  by  putting 
in  the  sleeper  piers  instead  of  the  sU^ep- 
er  walls.  The  plaintiffs  accepted  the  cis- 
terns without  covers,  and  therefore  he 
was  not  liable.  He  did  not  tell  his 
foreman  that  the  mixing  of  the  plaster- 


ing was  not  according  to  the  specifica- 
tions. He  had  repaired  some  cracks,  but 
others  appeared.  It  never  struck  him 
to  ask  for  a  written  authority  for  the 
deviations  he  had  made  in  the  contract. 
It  was  in  the  specifications  that  ho  was 
not  to  deviate  without  the  authority  of 
the  architect. 

The  guttering  was  not  ccmtinued  on 
account  of  the  roof  having  been 
raised.  He  did  not  agree  with  the 
other  witnesses  that  fiashing  was 
omitted  because  of  this  deviation, 
or  with  Mr.  Poole  that  it  was  the 
most  serious  omission  in  the  whole  com- 
plaint. He  did  not  fulfil  his  promise 
to  go  and  look  at  certain  leakages  in 
June  on  account  of  a  letter  he  subse- 
quently received  from  the  plaintiff. 
There  was  an  interval  of  a  week  from 
the  time  he  gave  the  promise  up  to  the 
daj  he  received  the  letter,  but  it  did  not 
rain  materially  during  that  period  or  he 
had  not  sufficient  time.  All  the  papers 
and  the  books  in  connection  with  the 
building  had  been  destroyed.  Up  to 
Februarv  7  he  had  never  stated  that  he 
regarded  Mr.  Poole's  letter  to  the  plain - 
tin  as  a  final  certificate.  The  papers 
had  been  destroyed  by  a  quantity  of 
paint  having  been  spilt,  and  rough  notes 
in  the  book  produced  were  made  before 
the  catastrophe.  It  was  merelv  as  a 
matter  of  courtesy  that  he  offered  to  do 
any  repairs,  but  after  he  consulted  his 
attorney  he  decided  not  to  do  so  as  he 
might  prejudice  his  case. 

Re-examined  by  Mr.  Stniben :  Ho 
offered  to  do  repairs  that  were  necessary 
during  the  time  he  was  at  the  building. 
The  terms  of  Mr.  Poole's  letter  were 
that  he  was  entitled  to  final  payment  as 
the  work  was  completed.  Mrs.  Mc- 
Carthy told  witness  that  it  was  her 
house,  and  that  she  would  order  any 
alterations  she  wished.  When  witness 
received  the  final  payment  from  Mr. 
McCarthy  he  did  not  complain  of  any- 
thing. 

By  Maai«dorp,  J. :  The  architect  must 
have  noticed  a  deviation  in  the  doors. 

Proceeding,  under  re-examination, 
witness  said  that  on  Mrs.  McCarthy's 
instructions  and  with  Mr.  Poole's  know- 
ledge, he  omitted  the  parapets. 

By  Maasdorp,  J. :  It  was  only  after 
the  house  was  completed  that  he  noticed 
the  failure  to  cement  the  north  wall,  and 
then  he  suggested  making  the  path  in- 
stead without  any  charge.  Previously 
he  had  arranged  with  Mra.  McCarthy 
to  construct  the  path  for  which  he  was 
to  be  paid,  and  it  was  when  the  plastering 
was  pointed  out  to  him  that  he  offered 
to  make  the  path  free. 

Frederick  Gibson,  in  the  employ  of 
Smith  and  Cochrane,  stated  that  ne  sup- 
plied paint  to  Mr.  Lansdowne  in  Octo- 
ber, 1903.  The  paint  was  the  "  genuine 
quality." 

Cross-examined  by  Mr.  Upin^ton :  A 
great  deal  depended  on  the  mixing  of 
the  paint.  Too  much  turpentine  would 
destroy  it  altogether. 


"CAPE   TIMES"  LAW  REPORTS. 


77 


William    Lansdowue,      painter,     who 

worked  on  the  cott&gee,   stated  that  one 

Tilla  WIS  completed    inside      about     the 

Siuib  December,   and   the      other     inside 

about  a  week  later.        He  never  aaw  an 

architect  on  the  work.       The  defendant 

did  not  complain    of    anything.        The 

firet  time  he  saw   the  architect  was  the 

28th  March,  when   he  called  to  see  wit- 

aesB  with   the    defendant.        Mr.   Poole 

poipted  out  a  few  little  things,  and  told 

witneas  to  go  and   see  Mrs.    A^cCarth^, 

who  would  point  them  out     in     detail. 

WitnesB  refueed   to       give     the      paint 

anotbed  coat  as  he  had  put  the  specified 

number  of  five  on.       He  used  the  best 

of  material.       His   work   also   included 

the  paper  hanging,    which   was   all   dry 

when  be  left  it.      After  he  had  seen  Mr. 

Po(^e  and  the  defendant   witness  went 

to  see  Mrs.  McCarthy ;  and  in  two  hours 

he  remedied  the  little  defecta  complained 

of. 

Cross-examined  by  Mr.  XJpington  :  For 
the  painting  by  itoelf  £65  was  his  price, 
and  oe  arriTed  at  that  price  by  looking 
at  the  job  as  a  whole.  He  drew  the 
d<>fettdant'fi  attention  to  the  omission  of 
the  paper  hanging  and  the  glacing,  and 
witness  did  it,  and  charged  £5  tor  it. 
When  his  attention  was  drawn  to  the 
patty  being  a  bit  full,  he  discovered  that 
ID  one  case  the  glass  was  too  small.  The 
last  day  he  was  at  the  job  was  January 
9.  The  tenant  came  in  later  than  thai, 
but  he  did  not  recollect  being  asked  by 
the  lady  to  leave  off  work.  He  wou!il 
swi^ar  that  the  doors  produced  received 
five  coats  of  paint.  At  the  same  time 
he  had  another  job  at  Camp's  Bay, 
which  he  had  to  give  some  attention 
to.  Approximately  he  could  not  give 
what  the  job  at  Camp's  Bay  was  worth. 
It  was  {wssible  there  might  have  been 
little  omissions.  When  Tie  wa«  at  the 
house  he  noticed  the  external  painting 
wanted  a  coat  of  varnish,  which  was  the 
duty  of  ihe  defendants  men.  The 
defendant  never  complained  of  witness's 
painting;  not  even  as  a  joke.  He  did 
rpinember  the  defendant  saying  that  the 
painting  was  bad  along  with  the  other 
work,  and  he  (witness)  would  have  to  be 
subpoenaed.  That  was  no  joke  to  wit- 
ness. Two  days  before  he  was  sub- 
pacaed  he  went  on  hie  *' dignity"  to 
Ke  Mrs.  McCarthy  to  explain  that  no 
negligence  could  be  attributed  te  him. 
He  was  proud  of  the  painting  of  these 
villas,  and  considered  it  was  a  credit  to 
him. 

Reexamined  by  Mr.  Struben:  The 
nuteriak  came  from  a  good  firm,  the 
vork  was  well  done,  and  he  had  not 
made  an  exorbitant  profit  on  the  job. 
He  could  aoe  no  difference  in  the  work 
done  by  himself,  and  that  done  by  the 
otbeia.  When  he  had  the  interview 
with  Mrs.  McCarthy  two  d&y&  before 
the  trial,  she  did  not  complain  of  the 
painting.  The  defendant  himself,  did 
not  com[^ain  of  witness's  work ;  he  was 
i&erely  transmitting  the  complaint  from 


the   McCarthy.    He    would    make    the 
external  painting  all  right  for  £10. 

B^  Maasdorp,  J. :  All  the  teak  work 
required  varniehing.  Had  that  been 
done  in  the  finst  instance  the  work 
would  have  kept  better.  He  repudi- 
ated the  suggestion  that  he  had  done 
th'j  job  cheap  by  making  the  paint  thin. 

Alexander  Denny,  a  painter,  who  was 
working  with  the  last  witness  at  the 
job,  stated  that  Mr.  Lansdowne  never 
complained  to  him  of  his  portion  of  the 
work. 

Cross-examined    by       Mr.    Upington : 
Witness  mixed  some  of  the  paints.       A 
little   could  be  saved   by   making      the 
painting  thin. 

By  Maasdorp.  J. :  It  would  be  no  ad- 
vantage to  him  to  put  on  less  coats  than 
he  was  instructed  to  do. 

Thomas  Poison,  mason,  stated  that  he 
heard  the  plaintiff  suggest  several  al- 
terations in  the  plan  to  the  defendant. 
To  comply  with  the  Municipal  Regula- 
tions they  had  to  increase  the  width  for 
the  foundations.  That  made  the  work 
more  expensive,  but  he  could  not  say 
if  anything  was  allowed  for  that.  The 
specification  called  for  three  of  sand  Co 
one  of  lime,  and  10  per  cent,  of  cement 
for  the  other  waJIs,  but  it  was  actually 
mixed  two  of  sand  to  one  of  limes  and 
10  per  cent,  of  cement. 

Cross-examined  bv  Mr.  Upington: 
The  heading  of  the  certificate  was 
*'  Final  certificate.'*  It  was  signed  by 
the  architect.  Mr.  Poole  only  once 
complained  to  witness  about  the  work. 
Witness  was  not  asked  about  the  certifi 
cato  until    the  case   was  mentioned. 

David  Jacobs,  carpenter,  who  was  en- 
gaged on  the  villas,  stated  that  ho 
worked  partly  on  the  specifioations  and 
partly  te  the  instructions  of  the  defend- 
ant. There  were  no  cmnplaints  made 
to  him  about  the  work,  witn  the  excep- 
tion of  the  sleeper  walls.  The  floor  was 
firm. 

Cross-examined  by  Mr.  Upington: 
The  defendant  told  him  that  the  sleeper 
walls  were  to  be  left  out.  Ho  reckon- 
ed it  better  to  have  a  bettor  joist.  He 
had  no  dear  recollection  of  how  many 
sleepers  there  were  in  the  rooms.  The 
doors  that  had  been  inspected  by  his 
lordship  were  good  doors.  The  thnn^ 
doors  he  haxl  put  in  were  not  according 
to  specifications ;  he  put  the ni  in  ou  the 
instruotionri  of  the  defendant. 

John  MitcheJmore,  builder  and  con- 
tractor, who  examined  the  buildings  on 
tlie  2nd  February  this  year,  con8id<>rod 
the  job  a  very  fair  work  of  lime  planter. 
Lime  plaster  was  not  supposed  to  keep 
out  damp.  Villas  of  that  description 
cculd  not  by  any  means  be  termed  a 
first-class  job.  It  would  have  been  a 
wiser  policy  te  have  14-inch  walls  on 
the  weather  side.  He  would  re-cement 
the  wall  for  about  £6.  Heat  in  the 
lime  would  eat  away  the  pa.ste,  and  the 
paper  would  drop  off.  Olinervatory 
was  such  a  windy  place  that  the     dust 


78 


•CAPE  TIMES"   LAW  REPORTS. 


might  have  got  in  just  after  the  paint- 
ing was  done. 

Cro96-examined  by  Mr.  Upington : 
He  did  not  conaidcr  £1,760  a  flaflh  price 
foi  the  buildings.  Assuming  that  ih'.* 
defects  in  the  plastering  ^vere  remedied, 
as  Mr.  Orr  suggested  the  claim  wa«  ik  i 
exorbitant.  If  the  painting  had  to  Lo 
done  again,  £10  would  bo  sufficient  to 
go  round  each  house  outside.  The 
omission  of  flashing  even  on  a  third- 
rate  job,  would  be  an  important  thing. 
Witness  did  not  go  on  a  tour  of  inspec- 
tion himself;  the  defendant  told  him  he 
had  got  his  final  certificate,  and  that  was 
sufficient. 

Re-examined  by  Mr.  Struben :  Pain- 
ters were  at  a  great  disadvantage  in  the 
summer  in  a  district  such  as  Observa- 
tory. 

By  Maasdorp,  J. :  When  they  had 
parapet  walls,  the  flashing  must  be  on 
the  weather  side.  He  would  say  that 
about  four  coats  were  put  on  the  doors 
brought  into  court. 

Francis  John  Freeman,  architect, 
stated  that  he  would  not  grant  a  final 
certificate  before  he  was  satisfied  the 
work  was  completed.  It  was  the  ordin- 
ary course  to  rectify  defects  that'  ap- 
peared before  the  certificate  was  given. 
Looking  at  the  houses  generally  after  a 
year,  the  painting  would  show  the  sigrns 
of  the  effects  of  the  summer  and  winter. 
As  far  as  he  could  judge,  the  internal 
and  external  painting  were  the  same. 
By  the  general  appearance  of  the  wood- 
work, he  would  say  that  it  was  accord- 
ing to  the  specifications.  With  the 
deviations,  the  buildings  were  substan- 
tially the  same  as  if  carried  out  strictly 
to  specifications.  A  deviation  could  not 
appear  as  a  defect  within  the  two 
months  allowed  after  ^e  completion  of 
the  contract;  it  must  have  been  noticed 
at  the  time.  The  cistern  covers  were 
worth  half-a-crown  each.  If  the  cisterns 
had  been  fixed  according  to  specifiosr 
tions,  the  room  below  would  have  been 
flooded.  As  they  were  erected  at  pre- 
sent, it  wss  the  custom  in  houses  of  that 
description. 

Gross-examined  b^  Mr.  Upington:  He 
had  12  years*  oxpenence  as  an  architect 
He  reckoned  that  after  five  years'  ap- 
prenticeship. For  that  class  of  build- 
mg,  the  specijfications  were  for  a  good 
class  job.  The  doors  he  had  seen  in 
the  court  were  certainly  not  according 
to  specifications.  AVhen  he  went  over 
the  building,  ho  noticed  a  considerable 
amount  of  flashing  had  been  <Mn'itted. 
Ho  had  allowed  for  the  crack  in  the 
wall,  which  had  to  be  mode  good  before 
the  bad  weather.  The  absence  of  the 
load  flashing  wa.s  a  *'  deviation,"  not  a 
defect.  Before  witness  examined  the 
building,  the  defendant  told  him  that 
he  got  his  final  certificate,  and  it  wss 
all  right,  but  he  did  not  necessarily  go 
on  a  futile  examination.  The  '*wily*' 
Visser  did  not  draw  his  attention  to  the 
defects  in  the  iron  roofing.      It  was  the 


usual  custom  to  use  the  iron  on  the 
temporary  abed  for  the  roof  of  the 
building.  He  attributed  the  dampness 
to  a  9-inch  wall  made  of  clay,  but 
ordiiMiry  plaster  would  not  keep  out  the 
damp.  As  an  architect,  he  ^would  have 
passed  the  grate,  although  it  had  a 
little  bit  of  **givc."  He  would  allow 
2a.  each  for  the  '*  easing"  of  the  doors. 
He  would  not  say  thait.  bhey  reqmred 
*'  ejuiin^,*'  because  there  was  difficulty 
in  getting  tliem  opened  and  closed.  He 
would  not  say  thet  <the  plastering  of 
the  Bowden-stroet  wall  wa^  according 
to  specifications. 

Re-examined    by   Mr.    Struben:       He 
I     took  his  prices  from  quantities  of  work 
I     carried  out  in  1903.       He    could  hardly 
agree  with  Mr.  Orr  that  the  doors  could 
be  lifted    off  the  hinges. 

This  closed  the  evidence. 

Counsel    having  been   hesrd   in    argu- 
ment, 

Cur.  Adr.   VuH. 

Pottra  ^February  23rd). 

Maasdorp,  J. :  The  plaintiff  sues  the 
defendant,  who  is  a  builder  by  trade, 
for  the  recovery  of  £120,  in  respect  of 
defects  and  omissions  in  a  certain  build- 
ing, which  it  is  alleged  the  defendant 
failed  to  complete  in  accordance  with 
contract  and  specifications,  and  the 
plaintiff  further  states  that  the  defendant 
on  the  31st  of  March,  1904,  in  considera- 
tion of  the  payment  of  the  whole  of  the 
contract  price  promised  to  rectify  and 
complete  the  buildings  before  the  30th 
of  June,  but  failed  to  do  so.  The  de- 
fendant pleads  that  he  duly  performed 
his  part  of  the  contract  to  the  satis- 
faction of  the  employer's  architect,  ad- 
mitting that  there  was  deviation  from 
the  specifications,  but  saying  that  these 
took  i^ace  at  the  request  of  the  plain- 
tiff and  her  architect  The  defendant 
also  says  that  when  a  settlement  was 
effected  on  the  30th  of  March  he  pro- 
mised to  make  good  any  defects  whidi 
might  appear  before  the  15th  of  March. 
I  but  he  received  no  notice  of  such  de- 
fects until  the  30th  June,  1904.  A  con- 
tract was  entered  into  between  the  par- 
ties on  the  7th  of  September,  1903,  by 
which  the  defendant  agreed,  in  con- 
sideration of  the  contract  price  of 
£1,760,  to  build  for  the  plaintiff  two 
villas,  and  to  complete  them  before  the 
7th  day  of  Januarv,  1904,  in  accordance 
with  drawings  and  specifications  under 
the  superintendence  and  to  the  satisfac- 
tion of  Mr.  Poole,  the  employer's  archi- 
tect. The  plaintiff  agrees  that,  subject 
to  and  on  the  performance  bv  the  defen- 
dant of  this  contract,  that  he  will  pay 
the  contractors  the  said  sum  of  £1,760^ 
in  such  sums  and  at  such  time  or  tiraea 
as  the  architect  grants  his  certificate  for 
work  actually  done  and  completed,  al- 
ways retaining  20  per  cent,  of  such 
amount  in  bond,  which  is  to  be  kept  in 
hand  for  two  months  after  oompletioii 
to  make  good  any  defects  which  may 
occur  in  the  contractor's  work.    I  may 


"CAPE  TIMES"  LAW  REPORTS. 


79 


It  oDoe  reler  to  two   of  the  conditions 
contained  in   the    specificationB,    which 
bew  oinn  the  issues  in  thia  case,  which 
ue  to  the  following;   effect:      The  con- 
tractor U  not  to  deviate  from  the  draw- 
ings or  gpedfication,    or   excavate  extra 
vork  unless  upon   the   authority  of  the 
architect.      No    order    from    anv   other 
lienon  will  be  reooflrnised  as  a  claim  for 
extra  ittTment      The    contractor   to   be 
responsible  for   and    to   make   good   all 
dcfcGta,  shrinkage,  or  other  fault  which 
may     appear      in      the  work   within  a 
period  of  two  months  after  completion. 
The  defendant  set  about  constructing  the 
buildings,   which    form    the    subject    of 
the  rantract,  and  on  the  4th  of  Decem- 
ber he  got  a  certificate  from  the  archi- 
tect certifying   that   a   sum    of   £600    is 
due  to  him  on  account  of  work  done,  and 
upon  the  face  of  this  document   it  ap- 
peals    that      two   certificates  had   been 
granted  previously   for  the   payment  of 
the  respective  sums  of  £360  and   £300. 
On  the  3l8t  day  of  I>ecember  a  further 
oMtificate    was     granted  certifying  that 
*Z50  was  due  to  the  defendant     on  ac- 
count of  work  done.     I  may  say  at  once 
that  although  there  may  be  oases  where 
interim  certificates,  granted  in  pursuance 
01  the  express  terms  of  the  contract,  and 
expressing  approval   of  and   satisfaction 
with  the  work  done  up  to  date,  may  be 
binding     on      the   employer  and  (h>bar 
nim  from  thereafter     questioning     the 
qoaJitv  of  such  work,   I  am  of  opinion 
that  the  present  case  does  not  fall  under 
that  category.       The  certificates  above- 
mentioned  are  merely  the  ordinary  pro- 
pre«     certificates,      intimating  to      the 
employer  that   there   is   suflScient  value 
upon  the  preniises  to  entitfe  the  builder 
to  an  advance  on  account  and  leaving 
the  question  of  defects  open  for  adjust- 
ment upon  the  granting  of  the  final  cer- 
tmcate,      and      subject     to     the    main- 
tenance     clause.         These      certificates 
will,     however,      have      an      important 
hearing    upon    points    where    the    wit- 
JJ«se8     disagree      in      their     evidence. 
The  decision    of    the   case    will    depend 
aUnoat  entirely   upon  what   occured   on 
the  30th  of   March.       The   defendant's 
ease  is  that  upon     that     day     he     de- 
livered to  the   plaintiff's   husband,   who 
acted  for  the  plaintiff  in  the  execution 
of  the   contract,    a  final    certificate— by 
the  architect — that   the    work  was   com- 
pleted, and  received  in   final  settlement 
Of   the   contract   price   some   cash   pay- 
ment and  a  promissory   note     for     the 
balance,    amounting  to    £115    ITs.    6d., 
which  note  was  aubsec^uently  paid  upon 
its  due  date.      The  plaintiff  adduces  evi- 
dence to  the  effect  that   the  settlement 
was  effected,    not   upon    a    final  certifi- 
cate, but  upon  a  letter  from  the  archi- 
tect stating  that  the  defendant  had  pro- 
mified  to  put  right  a  number  of  defects 
brought  to  his  notice,   and  in  considera- 
tion of  such   promise   McCarthy  might 
pay  him  the  balance  due.       The  Court 
has  to  decide  whether  the  document  in 


question  was  a  final  certificate  or  not. 
H  the  builder  were  the  jplaintiff  in  this 
case,  the  burden  of  proving  that  he  had 
received  a  final  certificate  would  have 
rested  upon  him,  but  circumstances 
have  altered  the  position  of  the  parties. 
Upon  the  document  in  question  a  final 
payment  was  made  by  tl^  plaintiff,  and 
m  the  ordinary  course  of  business  this 
document  should  be  in  the  custody  of 
the  plaintiff.  However,  it  eould  not 
be  ft  raced  by  either  party,  and  i^ocondary 
evidence  of  its  contents  was  admittedf. 
It  is  clear  that  at  the  time  the  docu- 
ment was  written  some  defects  did  exist 
which  had  been  pointed  out  to  the 
builder,  and  which  ne  agreed  to  rectify, 
but  the  defendant  says  he  proceedea 
at  once  to  remedy  them,  and  it  was  not 
until  he  had  done  so  that  he  was  paid 
by  the  plaintiff.  This  circumstance 
would  not  in  my  opinion  deprive  the 
instrument  of  the  character  of  a  final 
certificate.  The  circumstances  of  the 
case,  Lord  Bnteman  v.  ThompMUt  are 
are  in  many  respects  similar  to  those 
in  this  case.  There  the  architect  wrote 
to  the  employer  passing  the  work,  and 
he  also  wrote  a  letter  to  the  builder 
saying :  "  I  have  written  to  Lord  Bate- 
man  passing  the  Court  and  Uphampton, 
excepting  the  square  of  glass  to  the 
former  and  the  slates  to  the  latter." 
These  defects  were  afterwards  made 
satisfactory.  In  that  case,  notwith- 
standing the  qualification  contained  in 
the  letter,  it-  was  regarded  as  a  certifi- 
cate of  satisfaction  upon  the  specified 
omissions  being  rectified.  It  is  quite 
clear  that  payment  was  not  made  in 
the  present  case  upon  the  mere  produc- 
tion of  the  document,  but  a  few  days 
afterwards,  when  the  defendant  says 
he  has  made  good  the  defects  pointed 
out  to  him.  It  is  quite  clear  that  tlie 
defeats  discussed  at  that  time  are  not 
the  alleged  defects  contained  in  the 
schedule  to  the  declaration.  The 
architect  saya  in  his  evidence — '*  I  made 
out  a  list  of  defects  at  the  time,  and 
handed  it  to  the  defendant.  The 
schedule  in  the  declaration  is  not  based 
upon  mj;  list  of  defects,  but  upon  an 
examination  undertaken  at  my  request 
by  Mr.  Ellis,  our  derk  of  the  works." 
I  mention  this  to  meet  the  contention 
that  it  is  very  unlikely  that  the  archi- 
tect would  grant  a  final  certificate  with 
defects  valued  in  the  declaration  at 
£120,  and  stated  during  the  trial  to  be 
upwards  of  £200.  The  defects  there 
valued  were  not  in  the  contemplation 
of  the  architect  or  employer  at  all  at 
the  time  of  the  settlement.  They  were 
then  dealing  with  matters  very  trivial 
in  comparison.  They  were  desiing 
with  a  full  knowledf^e  of  the  omissions, 
alterations  and  deviations  which  they 
had  consented  to,  whereas  Ellis  and 
Orr,  without  regard  to  this,  made  an 
examination  of  the  building,  and  put 
down  as  defects  whatever  did  not  agree 
with  the  specifications.  I  feel  quite 
satisfied     that     if     McCarthy     bad     re- 


80 


tt 


CAPE  TIMES"   LAW  IlEPORTS. 


garded  aa  defects  what  are  put 
put  down  in  the  schedule  as  such 
be  would  never  have  made  a  settle- 
ment. I  oome  to  the  conclusion  that 
on  the  30th  of  March  the  defendant 
delivered  to  McCarthy  a  document 
certifying  that  the  works  were  completed 
to  the  satisfaction  of  the  architect.  It 
wa«  contended  for  the  defendant  that  the 
buildings  were  completed  in  the  15th 
of  January,  and  consequently  his  lia- 
bility to  make  good  defects  lapsed  on  the 
15th  of  March.  But,  in  my  opinion,  the 
work  cannot  be  regarded  as  completed 
until  the  architect  has  expressed  hia 
satisfaction  seeing  that  the  work  had 
to  be  completed  to  his  satisfaction.  That 
view  <wai9  taken  in  the  case  of  CwUiffr 
V.  Hampton  Wick  Local  Board,  reported 
in  the  2nd  volume  of  Hudson,  page  265. 
That  being  so,  the  maintenance  clause 
lan  for  two  months  from  the  24th  March, 
1904,  when  the  certificate  was  handed  by 
the  architect  to  the  builder,  until  the 
24th  of  May,  1904.  The  defendant  was 
in  terms  of  the  clause  responsible  to 
make  good  defects  appearing  before  the 
24th  of  May.  The  next  ^  question  to 
decide  is  whether  the  items  in  the 
schedule  are  defects  in  terms  of  this 
clause,  and  did  they  appear  before  the 
24ih  of  May.  I  shall  confine  my  atten- 
tion to  the  items  appearing  in  the 
schedule  to  the  declaration.  It  was 
pro|)08ed  at  the  trial  to  extend  the  list, 
but  when  it  was  shown  that  that  could 
only  be  done  on  condition  that  the  trial 
v'as  postponed,  and  on  plaintiff  paying 
the  costs  of  the  day,  he  preferred  to  go 
on  with  his  case  as  it  stood.  That  ex- 
cludfv)  from  consideration  the  structure 
oi  the  floor  which  appeared  to  be  an 
important  item,  but  I  desire  to  say  that 
if  it  formed  part  of  the  plaintiff's  claim, 
I  should  liave  come  to  the  conclusion 
that  the  matter  was  discussed  and  dis- 
posed of  when  the  certificate  was  granted 
and  payment  made.  The  same  may  be 
said  with  respect  to  all  the  larger  items 
on  the  list.  As  an  example,  I  shall 
take  the  items  of  plastering.  The  de- 
fendant says  that  when  the  mistake  of 
omitting  cement  on  the  north  wall  was 
discovered  he  offered  to  rectify  it  or  to 
continue  cement  path  in  lieu  thereof, 
and  the  plaintiff  accepted  the  latter  alter- 
native. The  architect  stated  that  when 
he  wont  over  the  house  with  the  de- 
fendant and  MfbCarthy  something  was 
said  about  the  |vla.stering,  but  he  under- 
stood from  the  defendant  that  the  gar- 
den paths  had  been  put  in  to  make  up 
for  it.  Some  controversy  arose  as  to  the 
time  when  this  alleged  agreement  came 
to  tlie  knowledge  of  the  architect.  How- 
ever that  may  be,  the  effect  of  his  evi- 
dence was  that  the  cement  was  no  longer 
insiisU^^d  upon  either  by  him  or 
McCarthy.  Tlie  garden  paths  were  in 
value  the  equivalent  of  the  cement,  and 
I  am  satisfied  the  matter  wias  settled  to 
tht''  satisfaction  of  the  architect.    A  claim 


is  made  for  the  remoral  of  the  water 
cisterns  to  a  place  under  the  roof.  The 
defendant  says  they  are  in  their  present 
situation  with  consent  of  the  plaintiff 
and  knowledge  of  the  architect  when  he 
gave  his  final  certificate,  and  he  is  sup- 
ported by  the  fact  that  the  claim  in  this 
respect  was,  in  the  first  instance,  only 
for  cistern  covers,  without  any  com- 
plaint as  to  situation.  Defendant  says 
part  of  the  para^  was  given  up  by  the 
plaintiff  for  ridging,  and  in  lieu  of  por- 
tion of  the  flushing  he  put  up  chimney 
pots  as  an  equivalent.  Now,  all  these 
alterations  are  obvious  ^  to  the  most 
casual  observer,  and  existed  when  the 
architect  gave  his  progress  certificates, 
and  although  the  progress  certificates 
arc  not  conclusive,  still  they  could  not 
have  been  granted  without  aji  examina- 
tion of  the  worlcA  by  the  architect,  under 
whose  superintendence  in  terms  of  the 
contract  the  work  was  carried  on.  I 
tlierefore  come  to  the  conclusion  that 
the  architect  had  full  knowledge  of  these 
obvious  alterations  when  he  granted  his 
final  certificate,  and  that  he  sanctioned 
them,  and  they  cannot  be  regarded  as 
defects  appearing  during  the  period  of 
maintenance.  These  remarks  apply, 
amongst  other  items,  to  the  back  doors. 
It  cannot  be  said  that  when  the  archi- 
tect passed  these  doors  as  satisfactory 
that  he  was  not  aware  that  they  were 
a  deviation,  and  if  he  passed  them  as  a 
d<'viation  he  miLst  have  been  satisficnl 
with  the  reaM)ns  for  the  deviation.  It  is 
true  that  deviations  could  not  be  made 
without  the  authority  of  the  architect, 
but  subsequent  approval  serves  the  same 
purpose.  This  case  has  ,been  largely 
contested  upon  expert  opinion,  which 
waA  of  little  service.  Tlie  deviations 
from  the  specification^  are  glaring,  and 
r€<iuirod  very  little  expert  evidence  to 
er.tablish,  and  if  they  wvre  not  sanc- 
tioned the  defendant's  liability  would 
have  been  unquestionable.  ^  Unfortun- 
ately, the  plaintiff  comes  into  Court 
upon  the  strength  of  expert  opinion 
wnen  his  experts  were  not  in  possession 
of  the  true  facts  of  the  case.  I  have  said 
that  in  my  opinion  the  period  covered 
bv  the  maintenance  clause  expired  on 
the  24th  of  May,  1904.  The  question  of 
defects  was  raised  alter  the  completion 
of  the  work  in  June;  that  upon  the 
authority  of  Lord  Bateman  v.  Thompson 
was  too  late.  The  question  was  raised 
upon  the  27th  of  June,  when  over  the 
three  montlis  contended  for  by  the  plain- 
tiff had  expired.  But  I  may  say  that 
in  my  opinion  the  promise  respecting 
the  Uiree  months  was  a  gratuitous  pro- 
mise, without  consideration,  and  not 
legally  binding  on  the  defendant.  My 
finding  that  the  larger  items  in  the 
schedule  were  deviations  sanctioned  by 
tho  architect's  certificate,  and  the 
smaller  items  of  defects  did  not  appear 
and  were  not  complained  of  within  the 
period  of  the  maintenance  clause,  would 
generally  dispose   of  the   schedule;   but 


(:APB  TIMES"    LAW   REPORTS. 


81 


I  desire  to  say  Bpeoifically  that  I  am  not 
aalisficd  that  the  damp  walk  are  due 
to  any  fault  on  the  part  of  the  buildera^ 
or  that  the  eratcs  have  not  been  properly 
fixed,  or  trie  outside^  painting  badly 
done.  Tile  expert  opinion  ia  very  evenly 
balanced,  and  |>Iaintiff,  -who  must  prove 
hi»  case,  haa  failed  to  do  bo.  These  re- 
marks will  cover  a  number  of  smaller 
itoma.  On  the^  whole,  the  plaintiff  has 
failed  to  establish  his  claim,  and  judg- 
ment must  bo  for  the  defendant,  with 
etats. 

[Plainiiff^a      Attorney:      J.     Buiraki; 
Defendant's   Attorney:    J.    T.    Wege.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Uon.  Sir  John  Bdcuaman.] 


PROVISIONAL  ROLL. 

FKDERAI.  SUPPLY  AND  COLD  f       1905. 
CTORAGE  V.  COTTCHIV.        J   Feb.  9th. 

Mr.  Gardiner  moved  for  the  final  ad- 
judication of  the  defendant's  estate- 
Order  granted. 


BRITISH  OBNSRAL  BLBCTSIC  CO.  AND 
OTHBBS  V.  TOBQUK  ELECTBIC  EN- 
QINBBEIN6  CO. 

Mr  Gardiner  moved  for  the  final 
adjudication  of  the  estates  of  the  de- 
fendants, John  E.  Neale,  W.  S.  Forbes, 
8.  B.  Griffiths,  F.  Biliotti,  and  G.  F. 
Herron. 

Mr.  Alexander,  on  behalf  of  the  de- 
fendant Ilerron,  opposed,  and  read  an 
affidavit  by  Ilerron  denying  that  he  was 
in  any  way  responsible  for  the  debts  of 
the  company  or  its  members,  and  say- 
ing that  he  should  not  bo  joined  as  de- 
fendant. 

Mr.  Gardiner  read  a  replying  affidavit 
by  Walter  Bernard  Phelp,  the  manaicer 
of  the  South  African  branch  of  the  plain- 
tiff firm,  statinnf  that  the  conduct  of  the 
defendant  Herron  suggested  that  he  was 
a  partner  in  the  defendant  firm.  The 
defendant  firm  was  intimately  associated 
with  the  firm  of  Neil,  Herron.  For 
practical  and  business  imrposes,  the 
firms  of  the  Toraue  Engineerin^ir  Com- 
pany and  Neil,  Ilerron,  were  identical. 
Neil  wa^  now  believed  to  be  in  the 
Transvaal. 


Mr.  Alexander  said  that  he  had  an 
answering  affidavit  dealing  with  certain 
new  matters  raised  by  the  plaintiffs. 

Mr.  Gardiner  objected  to  any  further 
affidavit  being  put  in  by  the  defendant, 
seeing  that  the  affidavits  had  been 
closed. 

Mr.  Alexander  submitted  that  the 
plaintiff*s  manager  had  raised  new  mat- 
ters that  did  not  appear  on  the  summons, 
and  that  his  client  was  entitled  to  answer 
these  allegations. 

[iBucHanan,  J. :  It  is  not  admissible, 
Mr.  Alexander.] 

Mr.  Alexander  argued  that  there  was 
no  proof  that  his  client  was  a  partner, 
and  that  the  provisional  order  should  be 
discharged,  with  costs,  so  far  as  he  was 
concerned. 

Buchanan,  J.,  said  that  the  estate  of 
the  company  woirid  be  finally  adjudi- 
cated as  inaolvent,  with  leave  reserved 
to  Herron  who  said  t*hat  he  waa  not 
one  of  the  partners  in  the  firm,  to  take 
action  to  Mve  it  declared  that  ho  waa 
not  a  partner  in  the  insolvent  estate. 


KADIB  V.  ABA8S. 

Mr.  Alexander  moved  for  the  final  ad- 
judication of  defendant's  estate  as  in- 
solvent. 

Order  granted. 


6ELLAB  BBOS.  AND  OTHBRB  V.  SAND 

BROS. 

Mr.  Sutton  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  aa  in- 
solvent. 

Order  granted. 


8PRIQO  AND  CO.  AND  OTHERS  V.   PEASE 

AND  CO. 

Mr.  P.  T.  S.  Jones  moved  for  the  final 
order  of  adjudication  of  the  defendant's 
estate  as  insolvent.  He  also  applied  for 
the  appointment  of  Alfred  Newton  Foot 
as  provisional  trustee,  with  power  to  sell 
certain  cattlo  in  tho  partnership  estate. 

Final  order  granted.  Tho  second  part 
of  the  application  was  ordered  to  sUnd 
over  until  tho  papers  had  been  filed 
with  tho  Registrar. 

Later  on,  Mr.  Jones  said  that  the 
Qpers  had  bcon  filed,  and  he  renewed 
lis   application. 

Order  granted  as  prayed. 


h 


VAN  BENEN  AND  OTHERS  V.  ATTAWAT. 

Mr.  Alexander  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Order  ^ranted^ 


82 


"CAPE  TIMKS"   LAW  REPORTS. 


SCHULTZE  AND  GO.  V.  LABAHAH. 

Mr.  RuBsell  moved  for  a  decree  of  civil 
imprisonment  upon  an  unsatisfied  judg- 
ment for  £55  Ids.  9d.,  and  £11  Is.  costs. 

Defendant  denied  that  he  owed  any- 
thing to  the  plaintiffs,  and  said  that  he 
had  a  claim  against  Kramer  and  Co. 

Mr.  Russell  said  that  the  defendant  had 
not  previously  set  up  a  counter-claim. 

The  matter  was  ordered  to  stand  over 
till  the  26th  February,  to  enable  the 
defendant  to  file  his  counter-claim. 


SCHULTZE  AND    GO.    V.    LKGGE    AND 
INGRAM. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  for  £750,  due  on  a  mortgage 
bond,  the  bond  having  become  due  by 
reason  of  the  non-payment  of  interest. 
Counsel  also  asked  for  property  specially 
hypothecated  to  be  declared  executable. 

Order  granted. 


TBADE»,     MARKKTB,     AND      EXHIBITION 
GOMPANY  V.    HILDBBRANDT. 

Provisional  sentence — Illegal  con- 
tract. 

The  defendant  had  agreed  to 
pay  the  plaintiffs  a  certain 
rental  in  consideration  of  being 
allowed  to  place  certain  auto- 
matic machines  within  the 
Exhi hition  grounds.  Th  e  police 
having  objected  to  these  ma- 
chines, the  defendant  was 
ordered  by  the  ExJfibitiofi 
aMthorities  to  remove  them. 
Defendant  having  been  sued 
for  provisional  sentence  an  a 
promissory  note  given  by  him 
for  balance  of  rent. 

Held,  that  as  this  note  was  a 
liquid  docume?it^  provisional 
sentence  must  be  granted^ 
though  possibly  defendant 
might  have  an  action  for 
damages  against  j^l^^iutiffs. 


Dr.  Rainsford  moved  for  provisional 
sentence  on  a  promissory  note  for  £150, 
with  interest  and  casts. 

Mr.  Gardiner  read  an  affidavit  by  the 
defendant,  who  stated  that  on  the  12th 
October  he  applied  to  plaintiffs  for  right 
to  place  and  operate  certain  15  disc  auto* 
matio  machines  in  the  grounds  of  the 
Exhibition  at  Green  Point,  on  payment 
of  £225  as  and  for  rent  Tne  application 
was  granted  on  the  28th  October.  He 
paid  £75,  being  one-third  of  the  total 
rent.  Difficulties  occurred  in  December, 
and  bo  was  ordered  to  discontinue  run- 


ning the  machines  by  Mr.  Dale,  who  said 
that  the  police  looked  upon  the  machines 
as  a  game  of  chance. 

Dr.  Rainsford  read  a  replying  affidavit 
by  Mr.  Dale,  who  said  that  the  police 
having  declared  the  machines  to  be  a 
game  of  chance,  he  had  no  power  but  to 
stop  the  machines. 

Mr.  Gardiner  submitted  that  if  the 
police  were  correct  in  their  attitude 
towards  the  machines,  the  money  was 
not  due  because  the  contract  was  ille- 
gal. It  was  clear  that  Mr.  Dale  took 
the  machines  with  knowledge  of  any 
illegality  that  may  have  attached  to 
them.  Mr.  Dale  could  not  now  shelter 
himself  behiiid  the  plea  that  he  diid  not 
think  the  police  would  interfere.  Mr. 
Dale  did  not  for  a  moment  raise  tl^ 
point  as  to  whether  the  machines  were 
to  be  run  for  a  profit.  Coun^  con- 
tended thai,  although  the  manager  had 
a  right  to  order  the  removal  of^  goods 
from  the  Exhibition,  he  had  no  right  to 
claim  rent  for  the  whole  currency  of  the 
Exhibition.  The  plaintiff  could  not  set 
up  the  contention  tbat  the  space  should 
be  utiEsed  by  the  defendant  for  sonoe 
other  purpose. 

Buchanan,  J.  :  According  to  the 
written  contract  put  in,  the  defendant 
agreed  with  the  Cape  Town  Indus- 
trial Exhibition  to  hire  certain 
places,  upon  which  to  exhibit  certain 
machines.  These  machines  aro  de- 
scribed in  the  contrsct.  The  rent 
was  fixed  at  £225,  £75  of  which  was 
paid  down,  and  a  promissory  note  given 
to  Mr.  Dale  for  the  balance  of  £150. 
This  note  has  now  become^  due,  and  has 
not  been  paid,  and  provisional  sentence 
is  asked  for.  Prima  faeie  this  is  a 
liquid  dociunent.  The  defendant  says 
that  the  maohines  have  been  condemned 
by  the  police  as  illegal  machines,  and 
therefore  he  is  not  able  to  make  the 
profit  he  otherwise  would  have  made  by 
their  use  by  the  public,  in  other  words, 
he  may  have  a  claim  for  damages. 
This  seems  to  me,  on  the  application 
for  provisional  sentence,  to  be  no  de- 
fence. I  will  not  go  further  at  the  pre- 
sent stage.  Judgment  will  be  given  for 
the  plaintiff  as  prayed,  with  costs. 

[Plaintiff's  Attorneys:  Van  Zyl  and 
Buissinn^  ;  Defendant's  Attorneys  : 
Herold  and  Gie.] 


BETIEF,  DB  VILLB  AND  00.  Y.  LATEGAK. 

Mr.  Sutton  moved  for  provisional 
sentence  on  a  promissory  note  for  £45 
5s.,  less  £25  paid  on  account,  with  in- 
terest and  costs. 

Order  granted. 


RETIEP,  DB  VILLE  AND  CO.  V.  COOKE. 

Mr.  W.   P.   Buchanan  moved  for  pro- 
visional sentence  on  a  promissory    xioie 


f< 


CAPE  TIMES"  LAW  REPORTS. 


8S 


for  £115  13s.  6d.   leas   £55  paid  on  ac- 

COODi 

Order  (pnated. 


BBINK  V.  BLIONAULT. 

Mr.  Vm  Zyl  moved  for  proyiaional 
lenjence  on  a  mort|ri^«  bond  for  £30, 
with  interest,  the  bond  having  become 
due  by  reason  of  the  non-payment  of 
wtenst.  Counael  also  applied  for  the 
proportT  specially  hypothecated  to  be 
owMred  eiecutable. 

Older  granted. 


VAN  WTK  V.  KAMIB8. 

Mr.  Roux  moved  for  provisional  sen- 
tojcj  on  a  mortgage  bond  for  £108,  the 
DOM  haTinjf  become  doe  by  reason  of 
notice;  counsel  aleo  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared execuUble. 

Order  granted. 


KTATE  BEYKRK  V.  HEM8W0BTR. 

t^  ?"*?  moved  for  provisional  sen- 
fnpwS'  balance  of  promissory  note 
JJ[«w odd.  together  with  interest  and 

Onfcr  granted,   subject   to  production 
JJ^wnifictte  that  plaintiflp  was  an  execu- 


ILUQUID  ROLL. 


'^OODAKD  00.  V.  PATBB80N.  [  fJ^h 

n.j  sS)^*^*  moved  for  judgment,  under 
R«Je  m,  for  £200,  less  llOO  ^id  on 
£?1H  with  interest  and  coats,  and  for 
•nj  I L  °^'*  balance  of  account  for  work 
•»a  labour  done. 
^™er  granted. 


VACUUM  OIL  CO.  V.  CBOTDON  BRICK  CO. 

pSf'»5)^i'*  moved  for  judgmeni,  under 

ttt^'  H^  ^^'^  ^  2d.,   goods  sold 
«?  Wiyered,   with    interest  a  tempore 
■^  Wd  costs. 
"«»r  granted. 


I^HBAllD,   VAN  AABDT  AND    CO.    V. 
L0UB8CHBB. 

n  1    £1*®'  moved  for  judgment,  under 
Rwe  32M,  for  £198  8s.  6d.,  goods  sold 
Md  delivered. 
Order  granted. 


THBSXN  AND  00.  V.  VAN  8CH0OB. 

Mr.  Russell  moved  for  judgment,  under 
Rule  329d,  for  £68  14s.  6d.,  goods  sold 
and  delivered,  with  interest  a  tempore 
morae  and  costs. 

Order  granted. 


VAN  DEB  BTL  AND  GO.  V.  AOKBRVAN. 

Mr.  M.  Bisset  moved  for  judgment, 
under  Rule  329d,  for  £42,  less  £10  paid 
on  account,  for  rent,  with  interest  a 
tempore  morae  and  oosta. 

Order  granted. 


WIENER  AND  CO.  V.  GOBDON. 

Mr.  M.  Bisset  moved  for  judgment, 
under  Rule  329d,  for  £180  3s.,  goods 
sold  and  delivered. 

Order  granted. 


BOBEBTflON  AND  CO.  V.   COCHRANE  AND 

FITT. 

Mr.  M.    Bisset  moved  for  judgment 
under  Rule  329d.  for  £46  lis.  8d.,  goods 
sold  and  delivered,  with  interest  a  tern- 
pore  morae  and  costs. 

Order  granted. 


CAPE  TIMES,  LTD.  V.  FITZGERALD. 

Mr.  W.  Porter  Buchanan  moved  for 
ludgment,  under  Rule  329d,  for  £39  As. 
6d.,  owing  bv  defendant  for  goods  sold 
and  delivered,  and  for  work  and  labour 
done,  and  materials  supplied,  and  adver- 
tising executed  from  September,  1896. 
to  May,  1904,  with  interest  a  tempore 
morae  and  costs. 

Order  granted. 


HATWOOD  AND  CO.  V.  TBU8TEE8,  AFRICAN 
HBTUODIgT  EPISCOPAL  CHUBCH. 

Mr.  Sutton  moved  for  judgment,  under 
Rule  329d  for  £502,  work  and  labour 
done,  and  materials  supplied,  with  in- 
terest  a  tempore  morae  and  costs. 

Order  granted. 


REHABILITATIONS. 

Mr.   Roux  moved   for  the  rehabilita- 
tion of  George  Weamew 
.Application  granted. 

Mr.  Lewis  moved   for  the   rehabilita- 
tion of  Jacob  Krachmel. 
Application  grant^  ^      , 


84 


"CAV1&  TIMES"   LAW  REPORTS. 


GENERAL     MOTIONS. 


SOKDOM  V.  SON  DOM. 


f        1905. 
)  Feb.  9th. 

Mr.  M.  Biflset  moved  for  the  rule  nisi 
to  be  made  absolute,  authorising  the  peti- 
tioner to  sue  in  forma  pauperis  for 
divorce. 

Rule  made  abaolute,  the  matter  being 
referred  to  Mr.  J.  E.  R.  do  Villiers  as 
eounsel,  and  Meaan.  Van  der  Byl  and  Do 
VillieTB  as  attonkm. 


NORDEN  V.  KET8. 

Mr.  Gardiner  moved  to  have  a  rule 
nisi  made  absolute  calling  on  the  respon- 
dent to  show  oauee  why  he  or  his  agent 
Bhould  not  bo  retrained  from  advertis- 
ing the  sale  of  applicant's  goods  and 
chattels  in  the  "  Government  Gazette," 
or  prooeedang  therein  until  the  appeal 
now  pending  between  Messrs.  Bosman, 
Powis  and  Co.  and  Jos.  B.  Norden, 
jvhall  have  been  disposed  of.  Counsel 
said  that  the  appeal  was  set  down  for 
the  20th  innt.,  and  he  sugg«>sted  tlvat 
the  motion    should   stand   over. 

Mr.  Searle,  K.C.,  for  the  respondent 
said  that  they  wished  to  have  a  settle* 
ment  made  as  early  as  possible.  He 
thought  it  would  be  clear  from  the  affi- 
davits that  the  whole  difficulty  was  due 
to  Mr.  Norden *s  own  fault. 

The  matter  was  ordered  to  stand  over 
until  the  last  day  of  term. 


LIGHTPOOT  V.  LIOHTI'OOT. 

Mr.  Searle,  K.C.,  moved  for  an  order 
declaring  the  respondent,  Helena  Ger- 
trude Li^htfoot,  incapable  uf  managing 
her  affairs  and  appomting  a  curator. 
Mr.  P.  S.  T.  Jones  appeared  for  the 
curator  ad  litem. 

Robert  Mark  Lightfoot,  the  respond- 
eitt's  step-son,  said  that  «»he  was  confined 
to  the  Eaton  Convalescent  Home.  Wit- 
ness asked  to  be  appointed  curator  of 
her  person  and  property. 

Mr.  Jones  said  that  he  did  not  oppose 
the  application. 

Dr.  Landsberg  also  ^ave  evidence. 

Order  granted  declaring  the  respondent 
incapable  o^  managing  her  affairs,  and 
appointing  her  stepson,  R.  M.  Light- 
foot,  curator  of  her  property,  costs  to 
come  out  of  the  estate. 


Ex  parte  fritz  and  another. 

Mr.   W.   P.   Buchanan   moved   for  an 
order  authorising  transfer  of  certain  pro- 

S^rty  at  Beaufort  West    in  the  estate  ef 
avid   Reunnerts,   to  L.   J.   Fritz,   pur- 
chased by  him  at>  public  auction. 
Order  granted  as  prayed. 


Ex  parte  le  bovx. 

Mr.  Close  moved  for  the  release  of  the 
petitioner  as  executor  in  a  certain 
estate. 

Order  granted  as  prated  subject  to  the 
petitioner  duly  accountmg  to  an  executor 
dative. 


Ex  parte  VAN  niekerk. 

Mr.  Van  Zyl  moved  for  leave  to  raise 
money  on  a  mortgage  on  certain  pro- 
perty. 

Order  granted  as  prayed. 


Ex  parte  QRIPPER  AND  ANOTHER. 

Mr.  Close  moved  on  behalf  of  the  peti- 
tioners, man  and  wife,  residing  at 
Queen's  Town,  for  the  registration  of 
certain  contract  to  operate  as  an  ante- 
nuptial contract. 

Order  granted,  authorising  the  Regis- 
trar of  Deeds  to  register  the  post-nuptial 
contract  entered  into  at  Queen's  Town 
on  the  20th  October,  1904,  before  Notary 
Herbert  Bolus,  as  embodying  the  ante- 
nuptial contract  entered  into  by  the  peti- 
tioners previous  to  their  marriage. 


ESTATE  DE  JAGBR  V.  THT8SE. 

Mr.  M.  Bisset  moved  for  a  writ  of  at- 
tachment against  the  respondent  for  con- 
tempt of  Court  in  disobeying  an  order 
restraining  him  from  trespassing  upon 
certain  land  at  Buffel'e  Drift,  in  the  di- 
vision of  Oudtshoorn.  The  defendant 
and  his  family,  it  was  stated,  had  taken 
possession  of  certain  of  the  land,  and 
were  cultivating  it.  and  although  given 
an  opportuiwtv  to  bring  an  action  for  a 
declaration  of  rdglThf^,  nad  failed  to  in- 
stitute piToceediugs. 

Order  granted,  requiring  the  respond- 
ent to  give  up  posseesiou,  and  quit  por- 
tion of  the  farm,  Buffers  Drift,  district 
of  Oudtshoorn,  occupied  by  him,  and,  on 
his  failure  to  do  so,  authorising  the  De 
puty-Sheriff  to  remove  the  res]K>ndent 
from  the  property,  order  to  carry  costs. 


Ex  parte  MiCHELft. 

Mr.  Sutton  moved  for  leave  to  the  pe- 
titioner, a  labourer  of  Willowmore,  to  sue 
in  forma  paui^cris  for  divorce,  by  reason 
of  his  wife's  adultei^. 

Buchanan,  J.,  said  that  the  petition 
would  be  referred  to  the  next  sitting  of 
the  Circuit  Court  at  Uniondale.  "The 
Court  had  no  desire  to  encourage  actions 
of  this  kind,  and  it  was  important  that 
the  petitioner  should  appear  personally 
before  the  Court. 


CAi>E  TtMES"  LA.W  RE'PORTfe, 


y."! 


RUWBUTUAM    V.   DONUVAJS. 

Mr.  Searle,  K.C.,  idov<k1  for  the  re- 
moval of  the  hearing^  of  this  caac  to  the 
next  Circuit  Court  at  Port  Elizabeth. 

Application  granted  in  terms  of  conaent 
paper. 


I 


Ex  parte  estate  beinuardt. 

Mr.  Rouz  moved  for  transfer  to  be 
passed  of  certain  property  in  Cape 
Town,  which  had  realised  at  auction 
sboat  £620. 

Order  granted  as  prayed. 


BETUIKKTCH  Y.  INSOLVENT  ESTATE 
MACKIB,  TOUNO  AND  CO.  AND 
STAKDABD  BANK. 

On  the  application  of  Mr.  Schreiner, 
K.C.  (for  the  second  respondents),  this 
matter  was  ordered  to  stand  over  till 
Tnureday  next. 


^«  parte  EXECUTOR    DATIVE,    ESTATE 
8NYMAN. 

M?  u  ^ '  ^^^^^  Buchanan  moved  on 
^u»li  of  Johannes  Lodewicus  van  der 
J^wt,  executor  dative  in  the  estate  of 
JJ  Rranddaughter,  for  leave  to  have 
J»n»fer  passed  of  certain  property  in  the 
JJVI810D  of  Middelburg  bought  by  peti- 
tioner at  public  auction. 

wdered  to  sUnd   over  till   Thursday 
week  for  further   information. 


VAH  DER  HEBVEB  V.  UARAI8. 

»K«  *  ^^'  Po'**^r  Buchanan   moved   for 
»fte  removal  of  the  hearing  of  trial  to  the 
«3  No  T  **^  '^  C:ircuit  Court  at  Ali- 
Application  granted. 


^ANKERET  V.  ESTATE  SHARPB. 

^^r  of  Supreme  Court— Proof 
of  debt. 

inis  was  an  application  on  notice  of 
S  iS°V  ?°*^®'  section  27  of  Ordinance  6 
j^o«,  brought  by  Arthur  Henry  Jean- 
«wet,  calling  upon  the  trustee  in  the 
[J»'»ent  estate  of  Hugh  Ross  Sharpe 
ifcn?^  <^&u8e  why  an  order  should  not 
J*  authorising  the  Master  to  admit 
™'  of  debt  for  £600  against  the  in- 
kn*  l'  ««tate,  being  amount  of  monev 
!«Qt  by  applicaxtt  to  the  insolvent,  with 
jotereit  reckoned  at   one-fourth  of  the 

•\  profits  of  the  tailoring  business 
y^  on  by  the  said  H.  R.  S^httrpe  in 
.i^  "Town,  and  for  taxed  costs  m  an 
*<^ion  instituted  against  the  said  Sharpe  ; 
^'.  in  the  alternative,  for  leave  to  pro- 


coed  Hgaii).<>t  the  iiiaiulveul  ctsiate  tor 
reoorery  of  the  said  sum.  ann}' for  oosts 
of  the  applioatioo.  Mr.  F.  8.  T.  Jcmes 
was  for  the  applicant;.  Mr.  Searle, 
K.C.,   was  for  the  respondent. 

Mr.  Jones  lead  an  affidavit  by  tho 
applicant,  who  stated  that  on  the  Ist 
September,  1903,  he  advanced  to  Hugh 
Robs  Sharpe  £600,  for  the  purpose  of 
extending  his  business  in  Burmebter's 
Buildings,  and  that  ho  was  to  receive 
one-quarter  of  the  not  profits  of  the 
business  as  interest  on  the  loan.  Oa 
the  15th  February,  1904,  deponent  ob* 
tained  a  provi'jional  re^oipt  pending 
fuller  agreement  to  be  drawn  up  and 
signed.  On  the  29th  February  a  further 
agreement  was  drawn  up  and  signed. 
Sulxequently,  on  the  8th  April,  1j04, 
deponent  wrote  to  Sharpe  requcstiiig 
him  to  furnish  him  with  a  statement  ol 
the  profits  of  the  business,  showing  tho 
amount  due  to  him.  He  did  not  re- 
ceive such  statement.  Deponent  caused 
sunmiona  to  be  issued  against  Sharpe  on 
the  23rd  Novonvber,  1904.  and  thereupon 
the  latter  surrendered  his  estate.  At 
the  second  meeting  of  creditors,  depon- 
ent presented  his  claim,  but  it  was  not 
allowed  by  the  Master,  on  tho  ground 
that  there  was  a  partnership  between 
Sharpe  and  deponent.  Applicant  de- 
nied that  he  advanced  the  money  ex- 
cept by  way  of  loan,  and  said  that  at  no 
time  had  he  had  control  over  the  man- 
agement of  the  busincs<t.  Subsequent 
to  the  first  loan,  in  December,  Sharp** 
applied  to  him  for  a  further  loan  of 
£153,   but  this  he  refused. 

Mr.  Searle  read  an  affidavit  b^  Mr.  T. 
H.  Hazell,  the  trustee  in  the  insolvent 
esitate,  who  stated  that  among  the  papers 
found  in  the  estate  was  a  receipt  signed 
by  the  applicant  and  insolvent  for  £500, 
paid  over  to  the  insolvent  by  the  appli- 
cant. This  receipt  •  set  out  that  the 
money  was  in  consideration  of  appli- 
cant being  admitted  to  partnership.  An 
affidavit  by  the  insolvent  stated  that 
not  only  w«s  a  partnership  contemplated, 
but  was  absolutely  entered  into.  Tho 
amount  of  £600  was  put  in  by  the  appli- 
cant for  his  share  m  the  partnership. 
The  receipt  put  in  by  the  trustee  was 
signed  by  the  applicant,  and  showed 
that  ho  had  become  a  partner.  Depon- 
ent emphatically  denica  that  the  money 
was  put  into  the  business  at  his  request, 
and  said  that  it  was  the  applicant's  own 
urgent  desire  that  he  should  bo  ad- 
mitted as  a  partner.  The  applicant  was 
to  receive  one-quarter  of  the  profits  as 
ilia  share  of  the  business,  but  not  by  way 
of   interest. 

Mr.  Jones  read  an  answering  affidavit 
by  the  applicant,  who  stated  that,  with 
r€»ference  to  the  receipt  produced  by 
respondents,  he  was  unaware  that  he 
ever  signed  such  a  document.  It  would 
appear  to  him  that  tho  latter  part  of 
the  wording  had  been  added  in  after 
the  receipt  was  signed.       Deponent  de- 


86 


"CAPE  TIMES"   LAW  HEPORtS. 


Di«d   that  he   had  requested  to  be   ad- 
mitted to    the  busineBS. 

Buchanan,  J.,  said  that  the  original 
receipt  ehould  be  produced.  I^  was  not 
annexed  to  the  amdavita. 

Mr.  Searle  said  that  he  IT'S  not  in 
possession  of  the  receipt,  auu  Je  sup- 
posed it  was  in  the  hands  ot  tne  respon- 
dent's attorneys,  Messrs.  Friedlander  and 
Du  Toit. 

Mr.  Jones  submitted  that  the  docu- 
ments clearlv  showed  that  there  was  no 
partnership  oetween  j€an«neret  and 
Sharpe.  and  that  the  applicant  was 
entitled  to  prove  against  tne  insolvent 
estate. 

Mr.  Searle  submitted  that  the  mat- 
ters were  such  as  should  not  be  decided 
upon  motion,  and  that  the  applicant 
siiould  proceed  by  way  of  action.  Coun- 
sel relied  on  the  recent  coBe  of  Davidson 
V  Aurft  (15  C.T.R.,  21).  The  docu- 
ments were,  to  say  the  least,  very  pecu- 
liar, and  the  Court  would  require  evi- 
dence in  order  to  construe  them. 

Mr.  Jones  having  been  heard  in  reply, 

Buchanan,  J.,  said  that  the  document 
referred  to,  and  which  was  questioned, 
must  be  produced  to  the  Court  at  once. 
The  case  would  stand  over  until  the  do- 
cument was  produced,  and  he  would  give 
judgment  to-morrow  (Friday)  morning. 

Postea  (February  10.) 

Buchanan,  J. :  This  is  an  application 
to  authorise  the  registration  of  a  proof 
of  debt,  which  was  rejected  by  the  Mas- 
ter. The  papers  were  not  fully  put 
before  the  Court  yesterday,  but  now 
they  have  been  produced.  The  Master 
rejected  the  proof  of  this  debt  upon  a 
receipt,  which  has  now  been  put  in. 
The  genuineness  of  this  document  has 
been  impugned,  and  certainly  it  is  con- 
tradicted by  other  documents  made 
about  the  same  time,  and  which  docu- 
ments were  not  before  the  Master. 
After  seeing  the  alleged  receipt,  and 
comparing  it  with  the  other  documents, 
a»  the  matter  at  present  stands,  there  is 
not  sufficient  grounds  for  rejecting  the 
claim  of  the  applicant.  An  order  will, 
therefore,  be  granted  for  the  admission 
of  the  applicant's  proof  of  debt,  with 
costs.  It  tho  trustee,  or  any  of  the 
creditors  of  the  insolvent  estate  wish  to 
have  this  claim  expunged,  leave  is  re- 
served to  them  to  bring  an  action  to 
set  aside  the  proof  if  so  advised.  For 
the  present,  I  will  not  make  any  fur- 
ther comments  on  the  documents  pro- 
duced. 

[Applicant's  Attorney:  P.  Wrensch ; 
Respondent's  Attorneys:  Friedlander 
and  Du  Toit.] 


After  hearing  the  report  of  the  Sheriff, 

Buchanan,  J.,  said  that  the  Sheriff 
would  be  authorised  to  receive  the  offer 
of  £700  for  the  property,  which  was  £25 
below  the  reserve  price  fixed  by  him. 


£x  parte    THE  CAPB  DISTRICT  MUTUAL 
BUILDING  SOCIETY. 

Mr.  Russell  moved  for  leave  to  sell 
certain  nro[)ert7  for  a  sum!  less  than  the 
reservea  price  fixed  by  the  Sheriff. 


6ARDINEB  AND  SA8T0N  V.  NEW  ZEALAND 
STEAMSHIP  CO. 

This  was  an  application  for  an  order 
authorising  the  refund  of  a  sum  of  £170 
lodged  by  the  applicants  in  terms  of  an 
order  of  Court. 

The  affidavit  of  Mr.  C  Gardiner 
stated  that  his  firm,  were  ordered,  an 
the  29th  September,  to  lodge  the  sum  of 
£170.  pending  4in  action  to  be  brought 
by  the  respondents.  The  matter  arose 
out  of  a  shipment  of  cattle  to  the  ap- 
plioanrts  by  the  steamship  Nordkyn. 
The  respondent;^  did  not  cause  a  sum- 
mons to  be  issued  until  the  20th  Octo- 
ber. A  question  was  then  raised  as  to 
the  respondents  providing  security  for 
costs.  The  declaration  of  the  respoitd- 
ents  had  not  been  filed*. 

The  answering  affidavit  of  Mr.  Trad- 
fieid,  of  the  nrm  of  Messrs.  Van  Zyl 
and  Buissinne,  stated  that  the  summons 
was  delayed  at  the  request' of,  the  ap- 
plicants. The  declaration  was  being 
drawn  at  the  time  the  notice  of 
motion  was  being  served.  Delay  had 
also  taken  place,  because  the  respondents 
had  been  called  upon  to  provide  security 
for  costs.  It  would  also  be  necessary  tu 
take  certain  evidence  on  commission. 

The  replying  affidavit  of  Mr.  A.  C. 
Fuller,  attorney,  having  been  read,  Mr. 
Close  (for  the  applicants)  submitted  that 
the  a^'^licants  were  entitled  to  repay- 
ment of  the  money,  which  was  lodged 
in  court  on  a  distinct  condition,  vis., 
that  the  respondents  should  commence 
an  action  forthwith. 

Sir  H.  Juta  (for  the  respondents)  said 
that  the  fftato  of  affairs  which  the  affi- 
davits disclosed  was  the  state  of  affairs 
ir>  December,  when  the  motion^  was  in 
the  list  for  hearing.  The  pleadings  had 
now  been  closed. 

Buchanan,  J. :  This  matter  cannot  be 
allowed  to  drag  on  indefinitely.  The 
parties  now  appear  to  be  ready  to  go 
to  trial.  The  plaintiff  must  go  to  trial 
within  a  month  from  this  date,  failing 
which  the  money  will  be  repaid  to  the 
defendants.  The  order  will  be  for  the 
repayment  of  this  money,  unless  tlie 
plaintiffs  go  to  trial  within  a  month  of 
to-day.  or  t^ome  further  order  of  Court 
is  made.  As  to  the  costs  of  this  appli- 
cation, if  the  plaintiffis  do  not  go  to 
trial  within  one  month,  they  will  have 
to  pay  the  costs  of  this  application.^  If 
the  case  be  heard  in  the  meantime, 
then  the  question  of  costs  will  be  de- 
cided at  the  trial. 


*'CAPE  TIMES"  LAW  REl>ORTS. 


87 


TALENSKl    A»D     LIPSCHITz/  ri^i^Sfh 
V.  LATEG^li  AKD  WIFE,     "^  J^;  l^?; 

Insolvent  Ordinance — ^Behabilita- 
tion— Release  from  seques- 
inUon. 

This  was  an  application  upon  notice  of 
motion  for  an  amendment  of  a  oertain- 
order  of  Court  granted  under  the  Insol- 
Tency  Ordinance.  Mr.  Close  was  for  the 
appUctots;  Mr.  Searle,  K.C.,  waa  for  the 
respondent. 

Mr.  Clope  stated  that  some  time  ago 
the  respondents,  who  were  insolvent,  ap- 
plied to  this  Court  for  an  order  of  dis- 
chirge.     No  meetings  of  creditors  had 
been  held,  no  trustee  was  elected,  and 
therefore  the  procedure  under  the  Insol- 
vency Ordinance  could  not  be  followed, 
^'hen  the  order  of  discharge  was  granted 
the  respondents,  as  a  matter  of  fact,  re- 
ceived from  the   Registrar,   what      was 
called  an  order  of  rehabilitation.     Upon 
this  order  of  rehabilitation,  the  respond- 
ents, when  they  were  sued  in  the  Magis- 
trate's Court  at  Oudtahoorn  by  the  ap- 
pucants  for  £200,  balance  of  a  promis- 
«>fy  note,  were  discharged  from  all  lia- 
hilittes  for  debts.     The   applicants  said 
that  the  order    of    rehabilitation       was 
granted  in  error,    and   that   that   error 
sWd  be  rectiaed. 

Amdavits  filed  on  both  sides  were  read 
"om  which  it  appeared  that  the  appli- 
carta  said  that  the  order  of  court 
^y  had  been  intended  to  operate  as  a 
wiease  of  the  respondents  from  ee- 
Wtration,  while  the  respondents  said 
^n*t  the  order  of  Court  was  not  inac- 
curate. 

fottfa  M*aroh  let). 

«f-  Searle,  in  the  course  of  argument, 
quoted  the  case  of  Simon  and  Jackton, 
<^«Hfed  in  the  Transvaal  Courts.  He 
Jjfjw  that  the  Court  had  power  to,  and 
Jd  in  this  instance  grant  an  order  of 
J'«jwge.  Either  the  order  of  the  Court 
^^  no  effect  at  all,  or  it  means  the  dis- 
ciiai^  of  the  insolvent.  It  was  not 
°<^^f  he  submitted,  open  to  the  appli- 
|*°*- *fter  lying  by  for  months,  to  move 

0  fvIS  ^°'°*  ^  amend  the  order.  Such 
pfooedare  was  wholly  irregular,  and  was 
p^  in  accordance  with  any  rule  of 
J-oart.  The  Court  could  only  act  upon 
motion  for  review  or  appeal,  and  this 
/J  neither.  It  was  neither  of  theee  pro- 
cures, and  there  was  no  other  pro- 
oednre  by  which  the  matter  could  be 
bought  before  the  Court. 

[Buchanan,  J. :  It  is  not  a  matter  of 
'Pview  or  appeal;  it  is  a  matter  of 
jra^nding  the  Court's  own  order,  which 
"*  frequently  been   done.] 

Mr.  Searle,  said  he  did  not  remember 
^ny  case  in  which  it  had  been  done  after 
<ach  a  lapse  of  time,  except  in  the  case 
w  clear  error.  Here  other  rights— the 
ligiita  of  creditors — might  enter  into  the 


Mr.  Close,  in  reply,  submitted  that  the 
only  coune  open  to  the  applicant  was  to 
move  to  have  the  order  amended.  Clear- 
ly all  the  Court  intended  was  to  relieve 
the  man  from  the  particuilar  position, 
and  to  re-inveet  him  ,with  his  estate  sub- 
ject to  all  his  liabilities. 

i5ucha<nan,  J.,  in  giving  judgment 
aaid :  Under  the  Insolvenc;^  Ordnance 
there  -were  several  descriptions  of  die- 
charges  provided  for,  and  though  the 
term  '*  rehabilitation "  was  not  iwed  in 
the  text  of  any  of  our  statutes,  the  term 
had  come  to  be  applied  generally  to  all 
the  different  kind  of  discharges  granted 
by  the  Court.  The  certificate  jprovided 
for  under  the  117th  sect*on  of  Ordnance 
No.  6,  1843,  when  allowed  by  the  Court, 
had  by  the  120t7h  section,  the  effect  of 
discharging  the  insolvent  from  liability 
upon  claims  proved  or  provoable  upon 
hts  estate.  The  discharge  which  the 
Court  granted  under  the  106th  section, 
•when  tne  creditors  agreed  to  a  compo- 
sition, reserved  to  such  creditors  a 
claim  against  the  insolvent  for  the 
amount  of  composition  agreed  upon, 
and  also  reservea  the  rights  of  prefor- 
ent  creditors,  and  made  provision  for 
the  claims  of  unproved  creditors  and 
absentees  to  the  extent  of  the  amount 
of  the  composition  agreed  upon.  The 
release  under  the  107th  section  granted 
upon  the  payment  in  full  of  debts  or 
upon  the  consent  of  creditons,  does  not 
operate  as  a  dwohaive  from  liability  of 
the  inisolveut  or  affect  the  rights  of 
creditors  who  have  not  proved.  Then 
again  when  a  discbarge  has  been  gran- 
ted undor  the  I17th  section,  the  insol- 
vent's estate  remains  vested  in  the 
Master  or  the  Trustee  for  the  benefit 
of  creditors.  When  the  discharge  is 
granted  under  the  106th  section  or  the 
release  is  priven  under  the  107th  section, 
the  effect  is  to  put  an  end  to  the  sequen- 
tration  and  to  re-invest  the  estate  in 
the  insolvent.  There  was  no  statutory 
provision  for  the  discharge  granted  in 
this  case,  but  the  practice  has  grown 
up  for  the  Court,  where  no  crMitors 
have  appeared  and  no  detxts  have  been 
found  to  grant  a  xlischargo,  which  has 
the  effect  of  terminating  the  sequestra- 
tion, and  re-vesting  the  estate  in  the 
insolvent.  This  was  what  occurred  in 
this  case,  but  the  order  of  Court  was 
entered  short  by  the  Registrar  simply 
as  "  rehabilitation  granted."  It  was 
contended  on  the  aut?hority  of  a  Trans- 
vaal decision,  tha<t  the  Court  had  an  in- 
herent ipower  at  its  discretion  to  de- 
prive creditors  of  their  rights.  I  am  not 
prepared  to  uphdld  <nioh  a  contention  as 
a  broad  proposition  of .  law.  But  I 
would  point  out  that  the  Transvaal 
statute  used  the  word  **  rehabilitation," 
and  that  it  was  upon  the  construction  of 
that  statute  the  decision  of  the  Trans- 
vaal Court  was  based.  The  Transvaal 
Court  made  it  clear  that  in  the  future 
at  all  events^  the  course  to  be  adopted 
in  cases  simdar   to  the  one  under  con- 


88 


CAPE  TIMES"   LAW  REPORTS. 


-c— » 


sideraiiuii  would  be  to  order  Uie  acques- 
t  ration  to  be  set  aside  aiid  to  plaoo  llio 
insolvent  in  his  original  position.  Here 
the  insolvent  had  been  re- vested  willi 
his  estate,  and  when  sued  in  the  Magis- 
trate's Court  first  set  up  his  discharge  as 
a  complete  bar,  and  then  pleaded  that 
before  the  release  of  his  estate  he  had 
compromised  with  his  creditors  for  5s. 
3d.  tn  the  pound,  and  that  the  plaintiff 
w'ho  diad  comsearteil  to  suoli  conipromi«o 
nmst  reduce  his  claim  accordingly.  If 
there  was  such  a  compromise  agreed 
njion,  it  would  be  grossly  inequitable 
and  unjust  to  allow  an  insolvent  who 
had  thereby  induced  his  creditors  to  ab- 
stain from  proving  their  claims  or  oppos- 
ing his  discharge,  to  ^et  back  his  estate 
and  then  to  snap  his  fingers  at  his 
creditors  and  refuse  to  carry  out  his 
agreement,  and  to  shelter  himself  be- 
hind the  interpretation  lie  wishes  to  put 
on  the  order.  The  Magistrate  sustained 
the  plea  in  bar,  apparently  u-x>n  the 
opinion  given  by  a  clerk  in  the  Master's 
Office  of  its  effect.  If  the  particulars 
upon  which  the  order  had  been  grajited 
had  been  before  the  Ma^istrayte,  it 
would  have  been  clear  to  him  that  the 
rclkabilitiation  ^as  not  equivalent  to  the 
discharge  obtainable  under  the  117th  sec- 
tion ol  the  Ordnance.  I  do  not  profxwe 
to  aJter  the  recorded  order  of  Court,  but 
to  make  clear  its  effect,  I  think  the  words 
should  be  added,  "i.e.,  order  of  seques- 
tration discharged,  and  the  insolvent 
re-vested  with  his  estate."  This  would 
make  the  position  clear  should  the 
plaintiff  sue  again  in  the  M^ri^trate's 
Court  for  his  debt  The  Alagistrato 
could  then  deal  with  the  claim  on  the 
merits.  As  to  oosts  of  this  application 
they  may  be  left  to  depend  on  the  ulti- 
mate result  at  the  proceedings  in  the 
Magistrate's  Cdurt. 

[Applicants  Attorneys:  Michau  and 
De  Villiers;  Respondents  Attorneys: 
Trcdgold,  Molntyre  and  Bisset.] 


SUPREME  COURl' 


FIRST    DIVISION. 


[Before  the  Chief  Justice  rthe  Ri^rht 
Hon.  Sir  J.  H.  i)K  ViLLiEUS.  P.O.. 
K.C.M.G.,  LL.I).).] 


TRIAL  CAUSES. 

WESTERN  WINK  AND  BKANDY  f       UI05. 

CO.  V.  WAIN8TBIN.  *  Feb.  lOth. 

This   was   an   action   brought   by  the 
Western  Win©  and  Brandy  Company,  of 


Woroeeter,  against  Sc^omon  Wainstein, 
hotelkeepcr,  of  Dordrecht,  to  recover  a 
sum  of  £702  9s.,  for  certain  dop  and 
F.C.  brand V,  supplied  to  and  at  the  re- 
quest of  tno  defendant. 

The  declaration  set  out  that  on  the 
27th  May,  1904,  plaintiffs  supplied  to  the 
defendant,  at  his  order,  25  hogsheads  of 
straw-coloured  dop  brandy  and  25  hogs- 
heads of  F.C.  (dark  mellow)  brandy, 
which  wai$  to  be  similar  to  the  stuff  sup- 
plied on  the  19th  May.  The  brandy  was 
to  be  forwarded,  as  instructed  by  the  de- 
fendant, to  him  at  Dordrecht.  The  d(;- 
fendant  was  to  sign  a  draft  at  120  days 
from  the  arrival  of  the  brandy  at  Dord- 
recht, less  5  per  cent,  discount,  the 
defendant  to  have  the  option  of  return- 
inij^  the  wood  m  which  the  ,dop  and 
brandy  were  sent.  The  plaintiffs  were 
to  deliver  the  brandy  to  the  Railway 
Department,  at  Worcester  Station, 
whereupon,  so  far  as  the  plaintiffs  were 
concerned,  the  agreement  was  complet- 
ed. A  portion  of  the  order  wais  sent  on 
the  6th,  7th,  and  8th  June,  and  the  re- 
mainder on  the  8th.  10th,  and  11th  Juno, 
and  delivered  to  the  railway  station  in 
certain  special  casks.  The  price  of  the 
brandy  with  the  wood  was  £702  9s.  The 
plaintiffs  had  performed  their  part  of 
the  contract,  but  the  defendant,  in 
breach  of  his  part,  refused  to  sign  the 
draft  forwardea,  and  had  definitely  stat- 
ed that  he  refused  to  pay  for  the  said 
dop  and  F.C.  brandy,  and  absolutely  re- 
fu»ed  to  perform  his  part  of  the  con- 
tract. Tha  plaintiffs  claimed  judgment 
for  £702  9e,,  or,  in  the  alternative,  for 
do  mages. 

The  defendant,  in  his  plea,  admitted 
tho  contract,  but  denied  that  the  plain- 
tiff? had  performed  their  part  of  the  con- 
tract. Ho  found  that  certain  of  the 
six  caskd  of  F.C.  brandy  that  he  opened 
did  not  contain  dark  mellow  brandy, 
such  as  the  plaintiffs  had  supplied  on 
the  19th  May,  and  which  he  had  ordered. 
He  said  that  the  brandy  was  inferior  in 
quality,  strength,  and  flavour.  There- 
upon, he  gave  notice  to  the  plaintiffs 
that  he  would  not  accept  the  brandy, 
and  the  other  casks  were  allowed  to  re- 
main at  the  railway  station.  With  ro- 
gard  to  the  dop  brandy,  defendant  said 
nii  discovered  on  the  7th  Julv  that  the 
casks  were  not  full,  aiid  that  there  was  a 
shortage  which  he  estimated  at  three  gal- 
lons per  cask,  and  he  claimed  a  reduc- 
tion tor  it.  He  had  been  ready  and  will- 
in?  to  pay  the  sum  of  £177,  or  sign  a 
promiasorj'  note  in  respect  of  the  dop 
brandy,  which  was  for  54  casks  less  esti- 
mated shortage,  and  5  per  cent,  discount, 
and  that  amount  he  tendered.  He  re- 
fused to  accept  the  F.C.  brand v,  but 
said  he  had  been  ready  and  willing  to 
perform  his  part  of  the  contract  with  re- 
gard to  the  wood.  In  reconvention  ho 
claimed  the  carriage,  which  he  said  he 
paid  to  the  Railway  Department  on  the 
F.C.  brandy,  which  he  was  unwilling  to 


"CAPE  TIMES"  LAW  REPORTS. 


S9 


taka.      Uo  also  claimed  £50  for  stonng 
the  casks  a&  td.  per  cask  per  day. 

Sir    H.    Juta,     K.C.     (with    him    Mr. 
Gacdiuer),     for     plaintiffs;    Mr.    Burton 
(with  hiia  Mr.   Van   Zyl),  for  defendant. 
Hcndrik  Petrus  du  Toit,   secretary  of 
tW  plaintiff  companyp  gave  evidence  as 
to  the  receipt  of    the   orders   and      the 
dc- patch   of   the    liquor.        Witness   said 
he  bad  been  in  the  brandy  trade  for  nine 
years;     they    had    a   large   number      of 
ctLotonftera,  and  oepecially    in  the    Dord- 
recht  and  neighbouring  districts.       He 
considered    that      25  iKigshcads  uf     dop 
and  25  hogsheads  of  F.C.     brandy  was 
an  exceptionally  large  order  for  a  retail 
dealer  to   give.        The    Excise  Act  was 
promulgated  on  the  31^t  May.      On  the 
3rd    June    he    received   a  request    from 
the  defendant  to  forward  sharp  as  much 
of  the  order  as  possible  in  quarter  casks. 
They  had  to  make  arrangements  to  get 
quarter  ca<ks  from  the  South      African 
Produce    and    Wine    Company.  The 

hrandy  was  delivered  to  the  Railway 
Department  at  Worcester,  in  accordance 
with  the  contract.  All  the  casks  were 
in  good  order,  the  majoritv  being  now 
ones.  On  the  8th  June  he  received  a 
wire  from  the  defendant  saying  that  the 
dop  must  be  gixxl  and  of  straw  colour, 
and  asking  to  be  supplied  with  as  much 
iTtformation  as  pobsiDle  as  to  the  opera- 
tic'U  of  the  new  duty  on  brandy,  and 
whether  the  duty  would  bo  paid  by  the 
retailer.  On  the  11th  June  the  com- 
pany TcpHed^  and  pointed  out  that  the 
duty  was  only  leviable  and  in  force 
fmni  and  after  the  1st  July,  1904,  on 
which  date  a  return  would  have  to  be 
made  to  the  Excise  bv  the  dealer  of  his 
st^<k.  and  he  would  nave  to  show  his 
salc9  at  the  end  of  each  month.  On 
the  13th  June  they  received  a  wire 
from  the  defendant,  **  Don't  forward  any 
brandy  until  I  advise/'  to  which  the 
company  replied  on  the  same  day,  "  All 
brandy  forwarded  in  accordance  with 
order."  Further  correspondence  fol- 
lowed, in  which  the  defendant  objected 
to  F.C.  brandy,  on  the  ground  that  it 
was  not  equal  to  what  he  had  had  be- 
fore, and  that  it  was  not  in  accordance 
with  sample  of  10th  May,  and  also  that 
pertain  of  the  casks  were  not  full.  The 
brandy,  said  witness,  wa.H  of  the  same 
quality  on  both  occasions.  F.C. 
brandies  varied  in  colour;  in  order  to 
mellow  the  F.C  sweetened  matter  was 
put  in,  and  colouring  matter  was  also 
put  in  to  give  colour.  That,  however, 
did  not  affect  the  quality  of  the  brandy. 
After  the  pleadings  had  been  closed, 
witiie<^  went  to  Dordrecht  and  took 
samples  of  the  brandy  sent  to  the  de- 
fendant, and  still  lying  at  the  station. 
lie  tested  the  samples  by  Sykes'  hydro- 
meter; the  hydronrieter  was  not  strict- 
ly accurate,  and  showed  the  brandy  U^ 
be  weaker  than  it  was.  The  test  showed 
the  brandy  to  be  24.3  deg,  under-proof. 
He  eonsicfpped  that  it  was  a  good  mellow 
brandy.       Bottles  wore  taken  from  the 


ta^ks  and  sent  to  the  Civil  Ci»mmia- 
sioner  at  Worcester.  Witness  after- 
wards  asked  the  defendant  to  allow  him 
to  take  sjBtmples  of  the  brandy  in  his 
^tore,  which  had  been  sent  to  him  by 
the  firm.  Defendant  refused  permis- 
sion to  allow  him  to  take  samples  of 
the  later  consignment  or  that  of  the 
19th  May.  He  saw  the  brandy  kept  in 
a  side  store,  but  again  was  refused  per. 
mission  to  take  samples.  Witness  we.'it 
to  the  place  where  the  defendant  kept 
his  F.C.  brandy.  Defendant  shook 
the  casks,  and  said  that  they  were  not 
full;  witness  told  him  that  that  was  not 
the  way  to  ascertain  whether  casks  were 
full,  and  said  that  the  brandv  should  be 
weighed.  On  his  return  Irom  Dv  r 
drecht.  witness  went  to  the  Civil  Com- 
missioner's office  at  Worcester  and 
saw  two  sealed  bottles  of  brandy  wh'vn 
h&d  been  sent  from  Dordrecht.  Wic 
ness  was  accompanied  by  Mr.  My- 
burgh  and  others,  who  ta.^ted  the 
brandy,  and  then  went  to  the  company Vt 
offices  and  tasted  the  sample  of  the  19tii 
May.  As  to  the  casks,  they  charge.! 
17s.  6d.  per  cask  to  their  customers; 
the  arrangement  with  the  defenda'.c 
was  that  he  could  return  the  casks  wita- 
in  a  reasonable  time. 

Cross-examined  by  Mr.  Burton :  Thj 
strength  of  the  spirit  of  wine  was  J.ho 
most  valuable  elj?mcnt  in  an  F.C. 
brandy.  He  considered  that  a  brandy 
showing  24.3  under-proof  waa  a  g(K>d 
brandy    b3  good  as  any  other. 

By  De  Villiers,  C.J.  :  The  sample  of  the 
19tli  May  was  20  deg.  under-proof.  F  C 
brandy  was  never  sold  by  his  firm  ai- 
cordini?  to  strength;  it  was  all  a  mat- 
te*   of  (lualitv. 

Cniw-exantination  continued:  TlitJ 
extent  to  which  a  brandy  was  under- 
proof would  not  affect  its  value,  so  far 
as  the  retailer  was  concerned.  Quali\v 
being  equal,  he  would  take  the  stronger 
brandy.  Quality  was  not  entirely  a 
matter  of  strength;  witness  was  awtire 
that  25  deg.  under-proof  was  the  'imit 
allowed  under  the  Food  and  Drugs  Act. 
Tiie  whole  of  the  consignment,  lK)th  in 
May  and  June,  was  sent  from  two 
hogsheads.  They  kept  an  ave/nio 
sr^mple  from  the  two  nogsheads.  It 
waft  not  the  plaintiff.s*  experienc  that 
the  demand  for  brandy  from  retailers 
was  very  great  just  before  the  Excise 
Act  came  into  operatio.i.  In  a  period 
of  six  months,  they  would  allow  li  to  2 
gallons  for  evapcTiatioii  and  absorption 
upon  a  cask  of  oO  gallons 

Henry  Day  Gibson,  Chief  Constable 
of  Worcester,  gave  evidence  as  to  re- 
ceiving the  sealed  Iwtttles  from  Dor- 
drecht, and  the  opening  of  the  bottles 
in  the  presence  of  Mr.  Du  Toit,  Mr. 
Hoffman.  Mr.  Van  der  Spuy,  and  others. 

Oert  Johannes  Hoffman.  manager 
and  manipulator  of  th*'  plaintiff  com- 
pany, said  that,  in  c<mipounding  F.C. 
brandy,  he  alwa^'S  used  the  same   recipe. 


^ 


*'CAPE  TIMES"   LAW  REPORTS. 


In  order  to  make  a  brandy  mellow,  thev 
put  in  sweetening  matter,  which  af- 
fected the  strength.  The  brandy  for 
the  orders  of  the  19th  May  and  the 
27th  May  waa  the  same,  except  that  he 
added  eome  sweetening  matter  to  the 
brandy  for  the  later  order,  so  as  to  make 
it  mellow  to  suit  the  custooMr.  Wit- 
ness was  present  at  the  gauging  when 
the  casks  were  filled ;  gaugings  were 
kept  (produced) ;  these  were  checked 
by  the  witness.  The  samples  sent  from 
Dordrecht  to  Worcester  were  good 
brandy;  he  tested  the  sample  at  the 
Civil  CommiKsiuner's  office,  and  the 
sample  they  had  at  the  office  of  the  19th 
May  order,  and  found  that  they  were 
alike,  except  that  the  later  consignment 
was  more  mellow. 

Cross-examined  by  Mr.  Burton:  They 
only  kept  one  quafity  of  F.C.  brandy ; 
the  strength  varied,  but  they  did  not 
sell  brandy  by  strength.  The  strengtn 
varied  from  18  to  20  deg.  under  proof. 
The  strength  of  the  second  brandy  was 
brought  down  because  it  was  made  more 
mellow,  sufficient  to  account  for  a  differ- 
ence of  4  points  in  the  strength.  He  did 
not  think  there  could  be  a  shortage  of 
109  gallons  upon  34  casks  within  six 
months.  He  did  not  think  that,  barring 
tampering,  such  a  thing  could  happen. 

Professor  Hahn,  of  the  South  African 
College,  said  that  if  sweetened  matter 
had  been  added  to  brandy  the  result 
would  be  to  reduce  the  strength  as 
shown  by  Sykes's  hydrometer.  When 
sweetened  matter  had  been  added  lo 
brandy  he  did  not  think  that  a  Sykes's 
hydrometer  should  be  used  to  test  the 
brandy. 

S.  J.  Mostert,  clerk  in  the  office  of 
Messrs.  Silberbauer,  Wahl  and  Fuller, 
spoke  to  receiving  a  sample  of  brandy 
sent  by  Mr.  Du  Toit,  and  handing  it  to 
Mr.  Bosman,  of  Messrs.  Bosman,  Powis 
and  C/O. 

Ferdinand  Bosman.  employed  by 
Messrs.  Bosman,  Powis  and  Co.,  said 
that  he  analysed  his  firm's  brandies, 
etc.  He  tasted  and  analysed  the  sample 
received  from  the  last  witness.  He  con- 
sidered that  it  was  a  very  good  F.C. 
brandy.  Ho  found  the  strength  to  bo 
21.2  under  proof.  Ho  distilled  the 
brandy. 

Witness  tasted  in  court  the  sample 
produced  of  the  brandy  sent  by  the 
plaintiffs  to  the  defendant,  and  express- 
ed the  opinion  that  it  was  a  good 
brandy,  but  slightly  inferior  to  the 
sample  he  had  previously  tasted.  The 
other,  he  tnought,  was  a  sweeter 
brandy. 

Mr.  Burton :  The  sample  tested  la«t 
is  that  as  good  as  your  l!.C. ? 

Witness    did    not    repl^r. 

Mr.  Burton :  You  tniuk  it  is  rather 
a   delicate  question? 

Witness :  Yes,  I  do.  Witness  added 
that  the  sample  was  a  good  brandy ;  ho 
should  say  there  was  a  slight  difference 
in  favour  of  the  sample.    He  considered 


the  sample,  to  his  personal  ta«te,   lo  lk> 
superior  to  his  firm^s  brandy. 

Witness  next  tasted  a  sample  from  a 
bottle  produced  by  the  defendants,  and 
said  that  he  considered  this  to  be  a 
very  good  brandy  indeed,  and  to  be 
better  than  the  two  samples  that  he  had 
previously  tasted. 

Mr  Burton :  Yes,  I  thought  so. 

Mr.  Labatte,  assistant  manager  to  the 
plaintiff  company,  spoke  as  to  the 
gauging  of  the  brandy  sent  to  the  de- 
fendant on  the  order  of  the  27th  May. 

Further  evidence  was  given  by  Roland 
Myburgh,  manager  and  manipulator  of 
the  Van  Ryn  Wme  Co.,  Worcester,  and 
Archibald  Chambers,  manipulator  of  the 
South  African  Produce  and  Wine  C  > 
to  the  effect  that  the  sample  submitted 
to  them  by  the  plaintiffs  were  good  sale- 
able brandies ;  and  Moses  Cohen, 
m.inager  of  the  Railway  Hotel,  Middel- 
burg,  who  said  that  tne  F.C.  brandy 
which  he  received  from  the  plaintiffs  in 
May  and  June  was  fairly  good  brandy. 

Sir  H.  Juta  closed  his  case. 

Solomon  Wainstein  (the  defendant) 
.said  tnat  he  received  frum  the  plaintiffs 
on  the  19th  Mav,  1904,  brand;^  with 
which  he  was  pleased,  and  which  sold 
weJl.  He  sent  another  order  on  the 
27th  May  for  32  casks  of  F.C,  and 
opened  one  of  the  casks.  He  supplie  1 
people  at  the  bar,  but  thev  complained 
of  the  quality  of  the  brandy.  Witneoi 
noticed  a  difference  in  the  taste, 
strength,  and  colour  compared  with  the 
stuff  .sent  upon  the  19th  May  order. 
Several  customers  who  had  bought 
bottles  of  the  second  lot  of  brandy 
brought  it  back,  and  camplained  about 
it.  \yitness  thereupon  sent  a  note  to 
the  Railwav  Department  to  stop  further 
delivery  of  the  casks.  He  had  the 
brandy  tested,  with  the  result  that  it  was 
found  that  the  samples  of  the  later 
brandy  were  24.3  below  proof,  whereas 
the  old  brandy  was  16. Y  below  proof. 
There  were  still  32  casks  which  were 
unopened.  In  the  casks  which  witness 
had  opened  be  estimated  that  there  w&s 
an  average  shortage  of  about  three 
gallons. 

Cro.ss  examined  by  Sir  H.  Juta:  He 
sold  from  10  to  12  hogsheads  of  brandy 
in  ^ix  mouth.  He  usually  bought  o 
to  6  hogsheads  of  brandy  at  a  time; 
sometimes   he  bought  10   hogsheads. 

Sir  H.  Juta:  What  induced  you,  all 
of  a  sudden,  to  order  50  hogsheads  of 
brandy  ? 

Witness :  I  thought  perhaps  I  would 
not  have  to  pay  duty. 

So  it  was  on  account  of  the  Excise. 
You  thought  if  you  could  get  50  hogs- 
heads in  before  tne  Act  became  law  you 
would  not  have  to  pay  on  stocks? — 
Yes. 

Further  cross-examined :  He  did  not 
order  the  plaintiffs  to  stop  delivery  be- 
cause he  found  that  the  retailer  would 
have  to  pay  duty  after  his  sales.  He 
would  take  the  brandy  now  if  the  plam- 


"CAPfi  TIMES"  LAW  REt>ORTS. 


91 


tiffs  would  supply  him  with  brandy  of 
the  (malitT  that  he  ordered.  Ho 
thoogat  that  h«  would  have  escaped 
duty. 

By  the  Court :  The  direction  to  slop 
iWivecy  had  acme  connection  with  the 
daty. 

Croes-examination        continued :       He 

denied      that    he    had    refused    to  s^ito 

nmpWi  of  the  brandy  to  Mr  Du  Toit. 

Walter      John   Hare,    manager  of   bbe 

Conunercial   Hotel,  East      London,    aad 

formerly   manager   of   the      defendants 

hotel  at  Dordrecht,  said  that   the   19th 

May  hrandy  sold  very  well,  and  peop  3 

liked  both  the   flavour  and   the  colour. 

As     to  the   27th    May    brandy,    it  was 

found  to  be  not  so  good  in  flavour,  amd 

people   refused    it.       He    was   speaking 

irom  his  experience  with  the  customer? 

at  the  hotel.  _  The  casks  appeared  to  03 

of   short    weight    because   of    the   noi:«e 

made  by  the   brandy   when   they  siiook 

the  casks. 

Henry  J.  Hoi  worth,  storekeeper,  of 
Dordrecht,  said  that  he  used  to  get  Colo- 
nial brandy  by  the  bottle  and  at  the 
hsr  from  the  defendant.  He  got  brandy 
from  him  in  the  latter  part  of  May  and 
early  in  June.  He  also  got  brandv  about 
the  end  of  June,  and  early  in  July ;  but 
he  afterwards  returned  it  because  he 
found  it  was  not  equal  to  the  other.  Ho 
had  seen  people  refuse  brandy  in  the 
hotel ;  be  himself  had  refused  it.  Wit- 
ne«  did  not  care  for  Colonial  brandy 
as  a  rule,  but  the  old  brandy  was  of  ex- 
ceptionally fine  quality,  and  he  took 
rather  a  hkinf?  to  it. 

Dirk  C.  Marais,  general  merchant, 
Dordrecht,  and  George  Chan  tier,  chief 
nonstable,  Dordrecht,  also  gave  evidence. 
The  chief  constable  was  asked  by  Sir  H. 
JuU  to  taste  one  of  the  samples.  After 
doing  so.  witness  observed :  **  I  think 
Tery  little  of  it." 

Daniel  Francis  Martin,  Excise  officer, 
wss  next  called.  At  the  outlet  he  said 
he  wished  to  explain  to  the  Court  that 
it  was  greatly  against  the  wish  of  the 
Government  that  he  had  been  subpoenaed 
to  give  cTidenoo  in  this  case.  The  Gov- 
ernment protested  against 

[De  Villiers,  C.J.  (interposing):  Oh, 
well,  let  the  Government  protest;  you 
are  here,  and  you  must  give  the  evi- 
dence.] 

,  Witness  gave  evidence  as  to  the  gaug- 
>Pp  of  34  casks  which  he  had  taken  in 
December  at  Dordrecht  Railway  Station, 
J«nt  to  tlie  order  of  the  defendant.  Ho 
found  that  the  total  contents  as  indicated 
^  the  figures  on  the  casks  should  have 
been  1,009  gallons:  the  gaugings  showed 
the  total  to  be  899A  gallons.  The  short- 
Ages  varied  a  good  deal  in  the  different 
^iks.  The  last  cask  he  gauged  should 
have  contained  30  gallons,  whereas  it 
<Hily  contained  one  gallon.  The  staves  of 
the  cask  had  sprung,  and  the  liquor  ap- 
plied to  have  leaked.  In  Januarv  he 
tested  the  brandy  both  at  the  defend- 
tot's  hotel  and  at  the   railway  station. 


and  found  that  it  was  24.7  under  proof. 

Franz  Kaufner,  manager  of  the  Castle 
Wine  and  Brandy  Co.,  spoke  as  to  throo 
sealed  bottles  of  brandv  sent  to  him 
from  Mr.  Kramer,  one  of  the  partners  of 
the  firm,  on  behalf  of  defendant,  and  an 
examination  that  he  made  of  the  sam- 
ples. The  strength  was  about  16  under 
proof  in  No.  1  sample,  and  24  under 
proof  in  No.  2  and  3  samples.  Ho  could 
not  now  speak  as  to  the  quality  of  the 
brandies. 

Leopold  Kramer,  a  partner  in  the 
Castle  Wine  and  Brandy  Co.,  also  gave 
evidence. 

Mr.  Burton  closed  his  case. 

His  Lordship  said  he  unden^tood  that 
the  plaintiff  consented  to  a  deduction  of 
£13  from  his  claim  on  account  of  short- 
ages. 

Sir  H.  Juta  said  that  that  wa<!  so. 

Having  heard  Mr.  Burton  in  argu- 
ment on  the  facts, 

De  Villiers,  C. J. :  On  the  27th 
May  last  year  the  defendant 
sent  an  order  to  the  plaintiff 
company  for  *'  25  hogsheads  of  F.('. 
brandy,  5s.,  No.  1,  dk.  mellow,  same  as 
sent  on  the  19th  May,  1904."  The  brandy 
was  duly  sent,  and  there  is  no  question 
now  as  to  the  quality  and  the  identity 
of  the  brandy  which  was  sent  upon  this 
order.  A  sealed  bottle  has  been  put  in, 
which  has  been  clearly  identified  as  the 
bottlo  taken  from  the  casks  which  had 
been  rejected  by  the  defendant,  so  that 
there  can  bo  no  doubt  as  to  the  identity 
ot  that  one  single  bottle.  The  difficulty 
in  the  present  case  is  to  ascertain  what 
was  the  real  quality  of  the  brandy  which 
was  to  serve  as  the  sample  for  the  brandy 
to  be  sent,  and  upon  this  point  the  evi- 
dence of  the  defendant  appears  to  l>o 
wholly  unsatisfactory.  He  has  produo<Ml 
the  large  bottle  on  the  table  to  prove 
that  the  uuality  was  excellent,  but  the 
evidence  does  not  satisfy  mc  that  that 
bottle  was  taken  from  the  cask  which 
contained    19th    May    brandy.  I    am 

bound  to  say  that  the  evidence  given  on 
behalf  of  the  plaintiff  company  itself  is 
very  unsatisfactory  in  regard  to  the 
sample  which  the  company  kept.  It 
would  have  been  much  more  satisfactory 
if  the  plaintiff  company  had  produced  in 
court  the  original  marked  bottlo  which, 
according  to  Mr.  Du  Toit' a  evidence,  was 
kept  on  one  side  at  the  time  the  order 
was  supplied ;  but,  upon  the  whole,  I 
have  come  to  the  conclusion  that  the 
other  small  bottlo  does  represent  the 
true  quality  of  the  brandy  which  had 
been  supplied  on  the  19th  May.  The  wit- 
ness to  whose  evidence  I  attach  the 
greatest  weight  in  the  present  case  i.s  the 
witness  Cohen.  He  appears  to  me  to 
have  no  connection  with  any  of  the  par- 
ties, he  comes  from  a  distant  part,  all 
the  other  witnesses  were  in  some  way 
connected  with  the  plaintiff  or  the  de- 
fendant, but  the  witness  Cohen  is 
subpoenaed  from  Middelburg,  and  a  very 


92 


•CAPE  TniES"   LAW  IlEPOfeTS. 


iinpurluiit  quu:itiun  was  put  to  him  by 
mo.  Apparently  counsel  on  either  side 
must  have  been  afraid  to  put  the  ques- 
tion. I  put  the  question  to  him,  in  re- 
gard to  the  sealed  bottle,  as  to  whether 
ho  consiidered  that  a  good  quality  of 
brandy,  and  ho  said,  **  Certainly."  I 
gathered  from  his  evidenoe  that  if  simi- 
lar brandy  had  been  sent  to  him  in  exe- 
cution of  an  order  to  supply  brandy,  simi- 
lar to  that  which  hacl  been  previously 
supplied  to  him,  he  would  have  accojpted 
it.  Now  this  evidence  of  Cohen.  I  think, 
is  of  great  importance,  because  I  connect 
it  also  with  the  evidence  of  Du  Toit, 
who  says  that  the  brandy  he  sent  to  the 
Railway  Hotel  at  Middelburg,  of  which 
Cohen  was  the  manager,  was  the  same 
brandy,  and  of  the  same  quality  as  had 
l)een  sent  to  Wainstein.  The  date  of  the 
first  order  sent  was  the  11th  May.  It  was, 
therefore,  before  the  order  of  the  19th 
had  been  executed,  and  the  witnesses 
for  the  plaintiff  are  perfectly  satisfied 
that  this  was  the  very  same  brandy,  and, 
considering  the  nearness  of  the  dates,  it 
does  seem  to  me  extremely  likely  and 
probable  that  Du  Toit  is  right  in  saying 
that  it  was  the  same  quality.  Well,  if 
that  is  so,  there  can  be  no  doubt  that 
the  brandy  which  was  sent  in  pursuance 
of  this  order  was  in  accordance  with  the 
sample  which  had  been  agreed  upon.  I 
quite  agree  with  Mr.  Burton  that  there 
must  be  a  substantial  compliance  with 
the  order  that  the  brandy  sent  must 
substantially  be  of  the  same  quality  as 
the  sample.  Now,  in  my  opinion,  it 
was.  It  appears  to  me  that  the  only 
reason  why  the  two  articles  are  some- 
what different  was  because  the  plaintiff 
company  had  been  more  intent  upon 
mellowing  the  last  order  than  they  had 
been  in  regard  to  the  first.  They  seem 
to  have  thought  that  because  the  words 
"  dark  mellow "  were  expressed  again, 
spi'cial  attention  ought  to  be  paid  to  it. 
It  ap)x>ars  to  me  that  this  brandy,  in 
consec|uenc6  of  the  order  of  the  27th 
May,  had  been  made  more  mellow  than 
the' previous  order,  and  it  was  in  conse- 
quence of  the  greater  presence  of  the 
sugary  ingredients  that  the  difference  in 
the  proof  between  the  two  articles  oc- 
curred. There  was  only  a  difference  of 
two  degrees.  The  quality  of  a  brandy 
is  not  to  be  gauged  entirely  by  the  proof 
spirit.  No  doubt,  the  proof  spirit  should 
enter  into  the  matter,  and,  if  the  dis- 
crepancy had  been  very  great,  that  dis- 
crepancy would  have  been  proof  posi- 
tive that  the  sample  which  was  brought 
into  court  by  the  plaintiff  company  was 
a  different  sample  from  that  which  had 
been  agreed  upon.  But  the  discrepancy 
is  not  so  great  as  to  justify  me  in  com- 
ing to  the  conclusion  that  the  plaintiffs 
are  wholly  wrong  in  saying  that  the 
sample  which  they  now  produce  is  ex- 
actly the  same  as  that  which  had  been 
supplied  to  the  defendant  on  the  19th 
May.     Under  these  circumstances.  I  am 


of  opinion  thai  the  defendant  hud  nu 
right  to  reject  the  brandy  when  there 
waa  a  substantial  compliaiico  with  the 
contract  between  the  turtles,  that  there 
had  been  no  breach,  and  that  the  plain- 
tiff is  entitled  to  recover  the  purchase 
price.  In  regard  to  the  shortage  of 
brandy,  the  impression  on  my  mind  was 
that  there  was  a  greater  shortage  than 
would  be  justified  by  the  ordinary  eva- 
poration and  absorption.  There  is  an 
amount  of  £13  whicn  will  have  to  be  de- 
ducted on  that  account  from  the  amount 
of  £702  9s..  leaving  £639  99.  The  judg- 
ment of  the  Court  will  be  for  the  plain- 
tiffs for  £689  9s.,  with  interest  from  the 
10th  October,  19C4,  the  plaintiff  company 
undertaJcing  upon  the  return  of  the  casks 
within  six  months  from  this  date  to  re- 
pay to  the  defendant  the  sum  of  £94 
lOs..  being  the  value  thereof,  defendant  to 
pay  the  costs  of  the  action. 


CLOETB  V.  DIPSAEM. 

This  was  an  action  brought  by  Gideon 
Stephanus  Cloete,  an  attorney-at-law,  re- 
siding and  practising  at  Lady  Grey,  divi- 
sion of  Aliwal  North,  against  John 
Hamilton  Dipraem,  formerly  of  Lady 
Grey,  and  now  of  the  Orange  River 
Colony,  to  recover  a  sum  of  £648,  with 
interest,  alleged  to  be  due  for  money 
lent  and  advanced  and  paid  on  behalf  of 
the  defendant. 

The  declaration  stated  that  the  defen- 
dant had  formerly  been  in  the  plaintiff's 
employ  as  his  chief  clerk  and  bookkeeper, 
at  Lady  Grey.  Plaintiff  lent  the  defen- 
dant various  sums  of  money,  to  be  re- 
paid by  him,  and  paid  for  and  on  his  be- 
half various  sums.  The  defendfnt 
wrongfuUv  and  unlawfully,  while  acting 
in  the  aforesaid  capacity,  appropriated 
to  his  own  use  various  sums  of  money 
belonging  to  the  plaintiff.  Plaintiff 
prayed  for  judgment  for  £648,  with  in- 
terest a  tempore  moraCy  and  costs. 

The  defendant,  in  his  plea,  denied 
that  he  was  indebted  in  any  sum  to  the 
plaintiff,  and  set  up  a  counter-claim  of 
£172. 

Mr.  McGregor  was  for  the  plaintiff; 
the  defendant  was  in  default. 

Evidence  was  given  by  the  plaintiff, 
who  put  in  an  account  of  the  transactions 
between  defendant  and  himself.  The 
amount  now  due  to  witness  was  £621 
IBs.  Id.,  for  which  sum  he  asked  for 
judgment.  Witness  also  asked  for  in- 
tercut on  the  sum  of  £599  9s.  4d. 

(I)e  Villiers,  C.J. :  How  was  it  you 
allowed  your  clerk  to  run  into  your 
debt   to  the  extent  of  £600-1 

Witness :  He  was  my  bookkeeper,  and 
I  trusted  him,  my  lord.  I  have  only 
lately  discovered  how  things  are,  on  bal- 
ancing up  the  books. 

Philip  Jacobus  Fouche.  articled  clerk, 
at  present  in  the  plaintiff's  employ,  gave 
corroborative  evidence  in  regard  to  the 
account  put  in  by  the  plaintiff. 


•'C'APB   TIMES"   LAW   REPORTS. 


1)3 


Ernett  L.  Morenai,  formerly  of  Lady 
Grey,  was  alio  called  in  support  of  the 
plainiUra  caae. 

De  Villiera,  C.J.,  said  that  judgment 
would  be  giren  for  the  plaintiff  for  the 
payment  oc  £621  18s.  Id.,  with  interest 
on  £599  a  iem'pore  marae,  and  absolu- 
twn  from  the  instance  on  the  claim  in 
reconvention,  defendant  to  pay  the  costs, 
including  the  plaintiff's  expenses  as  a 
neoesBary  witness,  and  costs  of  an  appli- 
cation made  by  the  defendant  for  a  post- 
pooement. 


SECOND    DIVISION. 


[Before the  Hon.Mr.  Justice  Ma asdorp.] 


GENERAL  MOTION. 


PCOTT  V.  WOOD. 


S         19a5. 

)Feb    10th. 


Mr.  P.  Jones  moved,  as  a  matter  of 
urgency,  for  an  interdict  against  the  de- 
fer.dant  restraining  him  from  remuving 
certain  furniture  from  a  house  in  Rose- 
benk.  which  was  let  to  the  defendant, 
who  had  failed  to  pay  the  rent  for  De- 
cember, January,  and  February,  and 
who  had  re-let  the  premises  to  one  Hed- 
ley.  Hedley  was  about  to  remove  the  fur- 
nitore  on  a  debt  owing*  to  him  by  Wood. 

An  interdict  was  granted  against 
Wood  and  Hedley,  restraining  them 
from  remoTing  the  furniture,  pending 
*n  action  with  leave  to  both  respond- 
ents to  «et  it  aside,  the  order  to  bo  serv- 
ed on  Hedley. 


SUPREME    COURT 


FIRST  DIVISION. 


[Before  the  Chief  Justice  (the  Right 
Hon.  Sir  J.  H.  i>E  Villi ekh,  P.O., 
K.C.M.G.,  LL.I>.).  and  the  Hon.  Sir 
John  Buchakan.] 


GENERAL  MOTIONS. 

WALKKB  V.  RECK1V£BS  GBANI)  /       lOOJ. 
JOSCTION  BA 1 L W A  Y.S.  k  Feb.  1 3th. 

Partnership — Salaried  partner — 
Sequestration  —  Remunera- 
tion. 

On    the    iequestratiofi     of    a 
partnership  entaie  a   salaried 


partner  coitnot  cUnm  payment 
of  his  salary  out  of  the  assets 
in  competition  with  other 
creditors,  hut  if  after  tft^ 
provisional  order  of  tseqiiestra- 
tion  he  has  continued  to  per- 
form valuable  services  in  the 
administration  which  he  \ras 
not  legally  hound  to  perform^ 
the  tJtistee  may^  with  the 
sanction  of  the  Courts  atcard 
to  him  a  fair  remwteration 
for  his  services  as  part  of  t}ie 
costs  of  sequestration. 


This  was  an  application  on  behalf  of 
Thomas  Mouat  Canaeron  Walker  for  an 
order  for  the  admission  of  a  certain 
claim  for  salary. 

The  Receivers  of  the  Grand 
Junction  Railways  were  called  upoa 
to  show  cause  why  an  order 
shciild  not  be  granted,  declaring  that 
the  applicant  should  rank  as  a  creditor 
for  tlie  sum  of  £1,427  ds.  2d.j  against 
the  assets  of  the  Grand  Junction  Rail- 
ways, and  for  costs  against  the  respon- 
dents in  their  saia  capacity.  Tlie 
applicant's  affidavit  stated  that  on 
the  23rd  May,  1902,  a  pro- 
visional order  of  sequestration  was 
granted  against  the  Grand  Junction 
Railways.  On  the  14th  May,  1903.  the 
said  provisional  order  was  buperseded, 
and  respondents  were  appointed  receiv- 
ers in  terms  of  consent  paper.  Prior  to 
tho  provisional  order  deponent  was  gen- 
eral manager  of  the  Grand  Junction 
Railways,  having  previously  fulfilled  the 
position  of  chief  inspector  of  the  under- 
taking at  a  salary  of  £700  per  anniun. 
Deponent  appended  a  letter  dated  Ist 
August,  1900,  appointing  him  as  general 
manager  at  a  salary  of  £1,000.  He 
went  on  to  say  that,  after  the  receivers 
were  appointed,  ^  he  remained  in  their 
employ.  His  claim  was  for  salary  dur- 
ing the  whole  of  the  time  during  which 
the  Grand  Junction  Railways  were  un- 
der sequestration.  During  that  time  it 
was  absolutely  necessary  that  the  affairs 
and  interest  of  tho  Grand  Junction 
should  be  carefully  protected,  and  this 
from  his  past  knowledge  of  matters  ho 
was  able  to  do,  and,  he  considered,  with 
satisfactory  results,  to  the  general  body 
of  shareholders.  The  receivers  doclinod 
to  receive  his  claim,  on  the  ground  that 
they  treated  him  as  a  partner.  Tho 
receivers,  after  they  had  been  appointed, 
retained  his  services.  Deponent  de- 
nied that  he  had^  ever  been  a  partner  in 
the  Grand  Junction  Railways.  He  was 
only  an  official  of  the  said  railways,  jwjt 
in  the  same  way  as  B.  T.  Tonkin,  whose 
claim  had   been  ranked. 

The  answering  affidavit  of  Me.<wrs. 
Syfret  and  Close,  tho  reoeivers,  stated 
that  the  allegation  made  by  the  applicant 


91 


"CAPE  TIMES"   LAW  REPORTS. 


that  the  period  covered  by  his  claim 
was  from  the  Slst  May,  1902,  to  14th 
November,  1903,  was  not  wholly  correct. 
The  sum  of  £466  138.  4d.  was  alleged  to 
be  for  salary  due  prior  to  tho  pro- 
visional order  of  sequestration,  which 
was  not  covered  by  the  period  referred 
to  in  paragraph  3  of  the  affidavit.  With 
regard  to  paragraph  4,  defendants  said 
that  £466  138.  4d.  would  approximately 
bo  included  in  the  referee's  report  as 
portion  of  the  "  actual  cost "  payable  by 
the  Colonial  Government  Deponents 
admitted  that  during  the  said  period 
tho  applicant  rendered  services  which 
were  valuable  to  the  general  body  of 
creditors,  and  they  felt  that,  while  the 
applicant  might  be  entitled  to  some  pay- 
ment for  the  florvioes  he  had  rendered, 
they  had  before  them  a  difficulty  caused 
by  the  fact  that  the  applicant  seemed 
to  have  been  a  partner  in  the  firm  of 
John  Walker  ana  Sons.  Applicant  had 
held  himr^lf  ouias  a  partner.  Mr.  Arnold 
F.  Hills  had  also  rendered  valuable  ser- 
vices in  the  prosecution  of  the  action 
against  the  Colonial  Government,  but 
ho  had  received  no  remuneration. 

The  replyinir  affidavit  of  the  applicant 
stated  that  with  reference  to  the  item  of 
£466  138.  4d.,  this  portion  of  the  in- 
debtedness was  expunged  by  the  opera- 
tion of  the  set-off.  On  the  question  of 
partnership,  he  admitted  having  held 
hini«e]f  out  as  a  partner  to  certain 
plaintiffn,  but  said  wiat  he  subsequently 
reoeivod  a  c«.hle  from  his  principals  to 
the  effect  that  he  was  not  a  partner, 
and,  in  conse<iuence,  he  advised  the 
plaintiffs  referred  to  of  tJie  inaccuracy 
of  his  former  .«rtatements.  He  reiter- 
ated that  he  had  never  been  a  partner 
in  the  eaid  firm  of  John  Walker  and 
Sons. 

Buchanan,  J.,  asked  how  the  claim 
was  really  made  up? 

Mr.  Gardiner  (for  the  applicant):  The 
applicant  claims  for  salary  due  on  the 
2l8t  May,  1902,  a  sum  of  £466  13s.  4d., 
i.e.,  prior  to  the  provisional  order  of 
sequestration,  and  for  salary  from  the 
1st  June,  1902,  to  the  14th  November, 
1903,  the  sum  of  £1,458  6s.  8d.  There 
are  certain  credits  that  the  applicant 
allows,  thus  reducing  his  claim  to 
£1,427  98.  2d. 

We  say  that  the  applicant  was  not  a 

Ctncr,  but  that  even  granting  he  had 
n  a  partner,  he  would  still  be  entitled 
to  salary  for  services  rendered  which  he 
was  not  legally  bound  to  render.  First, 
he  was  not  a  partner  since  he  was 
not  entitled  to  remuneration  on  the  basis 
of  profits  made:  and  there  is  no  evidenoe 
that  anvbody  relied  on  his  partnership. 

[De  Villiers,  C.J. :  Was  he  not  held  out 
as  a  partner?  The  only  point  is  whether 
ho  should  not  be  admitted  as  a  creditor 
for  salary,  and  come  in  after  tho  ot^r 
creditors  are  satisfied.] 

The  creditors  are  not  prejudiced. 
They  well  knew  that  Jolin  Walker  was 
fi  partner  in  receipt  of  salary. 


[De  Villien,  C.  J. :  I  see  that  the  pro- 
visional order  directed  the  Master  to  ap- 
point a  curator.    Whom  did  he  appoint?] 

Mr.  Walker  looked  after  the  business 
in  Cape  Town.  Mr.  Hills  was  in  Eng- 
land. There  can  be  no  question  of 
partnership  after  tho  sequestration.  That 
m  itself  put  an  end  to  any  partnership 
which  nossibly  may  have  previously  ex- 
isted. 

[Buchanan,  J. :  A  partner  is  respon- 
sible for  debts  of  uu  firm  even  after 
sequestration.] 

Oi  course  that  is  so,  but  if  a  partner 
does  anyt4ii'ng  to  assist  the  trustee, 
beyond  giving  information  as  to  part- 
nership transactions,  he  is  entitled  to 
remuneration  like  anybody  else.  He  is 
entitled  to  payment  for  his  services  even 
though  he  may  bo  sneable  for  contribu- 
tion by  reason  of  hi«i  holding  himself  out 
as  a  partner ;  but  should  any  action  be 
brought  against  him  as  a  partner,  of 
course  the  holding  out  would  have  to  bo 
proved.  As  the  very  least,  by  his  ser- 
vices subsequent  to  the  liquiaation,  be 
became  a  tifgotiorum  gestw,  and  as  such 
was  entitled  to   remuneration. 

[De  Villiera,  C.J. :  We  will  assume, 
Mr.  Schreiner,  that  he  was  a  partner,  but 
is  ho  not  entitled  to  some  remuneration 
for  doing  after  the  sequestration  what  ho 
was  not  bound  to  do?] 

Mr.  Schreiner:  There  was  no  property 
in  the  hands  of  Walker  after  the  seques- 
tration. After  that  he  was  not  paid  by 
the  partnershii)  but  by  Hills,  and  from  p. 
21  of  tlie  liquidator's  report  it  appears 
that  Hills  is  now  claiming  £2,300  in  ti^ 
spect  of  these  payments  as  out  of  pocket 
expenses.  As  receivers  we  cannot  go 
behind  the  rules  of  distribution  in  m- 
solvency;  but  we  do  feel  that  Mr. 
Walker  may  well  be  entitled  to  some  re- 
muneration for  having  rendered  valuable 
services.  His  case  is,  however,  one  of 
the  weakest,  as  he  may  still  claim 
against  Hills. 

Mr.  Gardiner  was  not  heard  in  reply. 

De  Villiers,  C.J. :  The  evidence 
in  this  case  satisfies  me  that  the 
applicant  was  a  partner  in  the  firm, 
and  that  even  if  he  were  not  as 
between  the  other  members  of  tho 
firm  and  himself  a  partner,  he  held 
himself  out  as  a  partner,  and  that  now 
he  should  not  be  allowed  to  compete 
with  the  creditors  of  the  partnersnip. 
It  appears,  however,  that  after  the  date 
of  the  provisional  order  of  sequestra- 
tion, the  applicant  has  discharged  valu- 
able services  towards  the  estate  of  the 
partnership.  ^  There  was  no  legal  obliga- 
tion upon  him  io  render  those  services, 
and  after  the  appointment  of  the  i«- 
ceivers,  they  continued  to  employ  him 
at  a  salary  at  the  rate  of  £1,000.  Under 
these  circumstances,  the  Cburt  is  of 
opinion  that  for  the  period  between  the 
provisional  order  and  the  appaintme*it 
of  receivers,  some  amount  should  he 
paid  to  the  applicantj  and,  upon  ibe 
whole,  we  are  of  opinion  that  a  sun)  of 


ti 


CAPE  TIMES"   LAW  REPORTS. 


m 


£500  would  be  a  fair  reward  to 
bim  tar  his  serricea.  The  Court  will, 
tiierefove,  znake  no  order  uxKm  the  ap- 
plication afl  it  fitands,  beyond  directing 
that  the  aum  of  £500  be  paid  to  the 
applicant  as  part  of  the  coats  of  seques- 
tration of  the  estate.  As  to  the  costs, 
they  may  fairly  come  out  of  the  estate. 
Of  course,  the  £cka/  ia  only  the  balance, 
after  allowing  for  the  £507  which  appli- 
cant  has  already  received.  The  receivers 
are  to  pay  £500,  independently  of  all 
other  costs. 
After  hearing  oouneel  on  the  question 

De  Yilliers,  C. J. :  In  fixing  the 
amount  at  £500,  the  Court  made  a 
very  liberal  allowance.  The  order, 
therefore,  will  be  that  there  is  no  order 
upon  the  application,  except  that  a 
■um  of  £500  be  paid  to  the  applicant  as 
the  balance  due  to  him  for  his  services 
between  the  date  of  provisional  order 
and  appointment  <rf  receivers,  such  sum 
to  be  treated  as  part  of  the  coets  of  the 
sequeatration ;  no  order  as  to.costa  of 
this  application. 

[Applicant's  Attorney:  G.  Trollip; 
Respoodent'a  Attorneys:  Moore  and 
Son.] 


WALKVR  V.  GLTNN,  MTLIiS,  CURRIP.  AND 
CO.:  WALKER  V.  LIQUIDATOR,  GRAND 
JrNCTION  RAILWAYS.  AND  LONDON 
AND  WESTMINSTER  BANK,  LTD.  ; 
WALKER  V.  SMART  :  WALKER  V. 
DOWSOH,  AINPLIE  AND  MARTIN EAU  ; 
WALKER  V.  JAMBS  AND  EDWARDS  : 
WALKER  V.  LIQUIDATORS.  GRAND 
JUNCTION  RAILWAYS,  AND  P.  C. 
BILLS  AND  CO. 

Mr.  Ruaaell  appeared  for  the  applicant 
(John  Walker).  The  respondents  were 
represented  aa  follows:  Smart,  Dowson, 
Ainalie  and  Martineau,  Glynn,  Mills, 
Currie  and  Co.,  F.  C.  Hille  and  Co., 
and  Liquidators,  Grand  Junction  Rail- 
wars,  by  Mr.  Searle,  K.C. ;  London 
and  Westminster  Bank  by  Mr.  Mc- 
Gregor; James  and  Edwards,  by  Mr. 
Close. 

Mr.  Russell  moved  for  a  i>ostpanement 
ontil  Thursday  next,  in  terms  of  oon- 
aent  paper,  in  so  far  as  the  parties  who 
had  higned  the  consent  were    concerned. 

Mr.  Searle  explained  the  circumstances 
under  which  his  clients  had  consented 
to  a  postponement,  and  stated  that  they 
had  intintated  to  the  applicant  that,  as 
soon  as  the  motion  came  on,  they  would 
take  the  preliminary  objection  that  no 
•ecurity  tor  costs  had  been  given,  al- 
though it  had  been  asked  for.  That 
preliminary  objection  he  was  now  pre- 
pared to  take. 

Mr.  McGregor  and  Mr.  Close  said 
that  their  clients  had  not  consented  to 
a  poiitponement,  and  they  also  took  the 
preliminary  objection  as  to  security  for 
oosta. 


De  Viliers.  C.J.,  remarked  that  it 
was  strange  that  the  consent  to  a  post- 
ponement until  Thursday  was  not 
brought  under  the  attention  of  the  learn- 
ed judge  who  fixed  the  hearing  of  the 
motions  for  that  day  (Monday). 

Mr.  Searle  said  he  was  informed  that 
the  fact  was  mentioned,  but  it  appeared 
to  have  escaped  the  notice  of  the  learned 
judge. 

Mr.  Russell  said  he  had  to  apply  for 
a  postponement  in  the  matter  of  the 
London  and  Westminster  Bank. 

De  Villiers,  C.J.,  asked  if  the  appli- 
caift  were  prepared  to  give  security  for 
costs? 

Mr.  Russell  said  he  was  instructed 
that  they  had  communicated  with  their 
client,  and  that  he  was  not  prepared  to 
give  security  for  costs.  Counsel  went 
on  to  say  tliat  the  applicant  was  sub- 
ject to  the  jurisdiction  of  this  Court, 
and  that  he  had  property  in  this  colony, 
which  he  understood  had  been  attached. 

De  Villiers,  C.J. :  Th«se .  ca-ses  will  he 
postponed  until  Thursday,  but  they  will 
not  be  heard  on  that  day,  unless  in  the 
meanwhile  security  for  costs  is  given  by 
the  applicant.  The  applicant  is  a 
peregrinus,  and  the  Court,  under  the 
ordinary  rule,  whether  it  is  an  action 
or  whether  it  is  a  motion,  holds  that  he 
must  give  security  for  costs.  It  is 
suggested  that  he  has  some  property  on 
which  an  order  for  costs  may  be  en- 
forced, but  there  is  no  evidence  what- 
ever before  the  Court  on  that  point. 
The  order  of  the  Court  is  that  the  cases 
be  postponed  until  Thursday,  but  they 
will  not  be  heard  on  Thursday  or  at  any 
futuTe  time  unless  security  in  the  mean- 
while be  given  for  costs  by  the  appli- 
cant. 


MAFEKE  V.  MPAMBANE 


s'E.     I 


i9or>. 

Feb.    18th. 


Review — Gross  irregularity — Ad- 
journment of  Reeident  Magis- 
trate's Court. 

Li  an  action  to  recover  certain 
Rheep  or  their  value  in  a  Trann- 
ktian  Magintrate^a  Courts  it 
appeared  that  the  plaintiff  icas 
too  old  and  infirm  to  attend, 
and,  on  the  application  of  the 
plaintiff's  agent,  the  Magistrate 
adjourfied  the  hearing  to  the 
plaintiff's  residence,  which  was 
in  the  same  district,  Jor  the 
sole  purpose  of  taking  his 
evidence.  Due  notice  of  the 
time  and  place  teas  given  to 
Vie  defendant,  hut  he  refused 
to  appear  either  at  the  jilain- 
tiff^s  residence  or  at  the  subse- 


% 


"CAPE  TIMES"   LAW  REPORTS. 


qtient  hearittg  in  the  Courtroom^ 
of  which  he  aho  had  notice. 
There  xca»  cruleuce  irifhout 
that  of  the  ptaititiff  to  juxfi/y 
the  defendant  being  called 
upon  to  produce  his  evidence , 
hut  he  tendered  none.  The 
Magistrate  ha  ring  given  judg- 
went  for  the  plaintiffs  the 
defendant  applied  to  hare  the 
proceedings  »et  aside  on  the 
ground  of  gross  irregxilarity. 

Held,  that  the  irregularity — 
//  itxich  it  iroA — was  not  of 
such  a  nature  as  to  j'uMify  a 
review. 


This  waA  an  application  upon  notice 
calling  upon  the  respondent  (plaintiff  in 
the  action)  to  show  cause  why  the  pro- 
ceedings before  the  Assistant  Resident 
Magistrate  of  Mount  A^liff  should 
not  be  reviewed  and  set  aside,  on  the 
ground  of  gross  irregularity  and  ille- 
gality. Mr.  Gardiner  was  for  the  ap- 
plicant; Mr.  Close  was  for  the  respon- 
dent. 

From  the  record  it  appeared 
that  an  action  was  brought  in  the 
Court  below  by  the  present  re- 
BpoiMiont  to  recover  certain  five  sheep 
or  their  value  (£5),  an  account  of  their 
increase  while  in  the  possession  of  the 
defendant,  damages  in  the  sum  of  £5, 
and  costs  of  suit.  The  Magistrate  heard 
a  ix>rtion  of  the  case,  and  then  ad- 
journed the  Court  to  the  residence  of 
the  plaintiff  at  Rode,  about  19  miles 
distant  from  Mount  Ayliff.  for  the  pur- 
pose of  taking  the  plaintiff's  evidence, 
Mpambane  being  old,  infirm,  and  ill. 
The  defendant  did  not  attend  ihe  hear- 
ing at  the  residence  of  the  plaintiff, 
and  he  contended  that  he  had  been  pre- 
judiced by  such  adjournment.  On  the 
Court  resuming  at  Mount  Ayliff,  defen- 
dant did  not  tender  any  evidence,  as  he 
haH  taken  an  objection  to  the  adjourn- 
ment to  Rode,  on  the  ground  that  it 
was  irregular. 

Mr.  Close  said  that,  before  the  case 
was  gone  into,  he  wished  to  take  an 
objection  that  the  matter  should  not 
have  hoov\  brought  before  this  Court. 
The  case  was  one  as  between  two 
natives,  and  counsel  desired  to  raise  the 
IK>int  as  to  whether  this  Court  could 
hoar  such  a  matter  coming  from  the 
Mfigistrate's  Court,  or  whether  it  should 
not  have  gone  to  the  Chief  Magistrate's 
Court. 

[Do  Villiers,  C.J. :  A  question  of  ir- 
regularity does  not  affect  native  law.] 

Mr.  Clo.se  said  that  the  point  would 
be  the  interpretabion  of  the  statutes  deal- 
ing with  native  law.  Counsel  quoted 
the  3rd  section.  Act  26  of  1894,  referring 
appeals  in   matters   where  natives   were 


concerned  to  the  Court  of  the  Chief 
Magistrate  of  the  territories.  He  added 
that  he  could  not  find  any  reference 
whatever  to  **  reviews." 

De  Villiers,  C.J.,  said  that  that  was 
no  reason  why  there  should  be  no  review 
on  the  ground  of  irregularity  by  che 
Supreme  Court.  The  Court  would  hear 
the  case;  of  course  if  it  were  an  appeal 
under  colour  of  a  review  then  the  ques> 
ti(»n   could  be  raised  later. 

Mr.  Gardiner  called  the  Court's  atten- 
tion to  section  9,  Act  35  of  1904  (Better 
Administration  of  Justice  Act). 

Tlie  affidavit  of  the  appellant,  Shad- 
raok  Mafeke,  stated  that  the  adjourn- 
ment to  the  area  Rode  would  have  in- 
volved him  in  heavy  additional  oosta 
had  he  gone  to  defend  the  case  thereu 
Further  affidavits  were  also  produced  to 
the  effect  that  the  town  of  Ayliff  was 
the  regular  place  for  the  holding  of  tbo 
("ourt. 

Tlie  answering  affidavit  of  the  respon- 
dent's attorney,  stated  that  it  wa** 
impossible  to  have  the  respondent  re- 
moved to  the  Court.  The  evidence  was 
taJcen  at  tlie  home  of  the  respondent, 
who  was  about  80  years  of  a«re,  and  was 
very  infirm.  Affidavits  by  the  interpre- 
ter of  the  Court  and  a  policeman  were 
also  read. 

De  Villiers,  C.J.,  asked  why  interro- 
gatives  were  not   sent? 

Mr.  Gardiner:  I  don't  know,  my  lord. 
Counsel  argued  that  the  Magistrate  had 
no  authority  to  remove  the  Court  from 
Mount  Ayliff.  The  Acts  only  provided 
for  the  holding  of  the  Court  of  Resident 
Magistrate  in  each  district.  Counsel 
said  that  the  applicant  also  applied  for 
review  on  the  ground  that  the  Magis- 
trate gave  judgment  for  an  account  of 
the  increase,  as  well  as  for  damages. 
The  damages,  he  submitted,  were  an 
alternative  prater.  It  was  clear  that 
the  plaintiff  himself  did  not  claim 
damages  as  well  as  an  account  of  the  in- 
crease that  damages  were  an  alternative 
item. 

[De  Villiers,  C.J. :  That  is  a  ground 
of  appeal  and  not  review.] 

Having  heard  Mr.  Close  on  the  ques- 
tion of  the  admissions  made  by  the  de- 
fendant upon  which  evidence  was  called 
in  the  Court  below. 

Do  Villiers,  C.J. :  The  position 
in  which  the  Magistrate  found 
himself  at  the  trial  of  this  rase 
was  this:  Some  of  the  plaintiff^s 
witnesses  had  given  their  evidenro, 
and  it  was  found  that  the  plaintiff  him- 
self, who  lived  some  34  miles  off,  was 
old,  infirm,  and  too  ill  to  travel,  with 
every  probability  that  he  had  not  many 
more  days  to  live.  The  question  was, 
what  the  Magistrate  had  to  do?  In 
strictness,  the  better  course  would  have 
been  for  the  parties  to  have  applied  for 
interrogatories.  The  defendant's 

attorney  then  would  have  filed  cross- 
interrogatories,  and  these  interrogatories 
might  hav<;  been  sent  to  the  place  wherf 


"  CAPE  TIMES "  LAW  REPORTS. 


97 


the  skk  m&n  -w&s,    and    afterwards  used 
foi  ibe  trial.      It  doe&  not  seem  to  have 
occurred  to   any     ono    present    to  have 
inlcTTOgitOTies,    and   the    finst      proposal 
wu  to  ba^e  a  Commission  to  tike  evi- 
dence.    The       Magistrate,       however, 
found  that  that  would  not  be  le^al,  and 
accordingly,   when     an    application    was 
Bub«e(fo«Qtl7   made    to    him    to   adjourn 
his  Court  to  the  residence  of  the  plaintiff, 
not  for  the  purpose  of   the   trial  of  the 
cSie,  but  for  the  purpose  of  taking  the 
pTJdence  of  this    man    who   would    pro- 
b  -ably  die  within  a  very  short  time  the 
vWefendant     objected.       The   Magistrate, 
W^wever,     allowed    it  to   be   done,    and 
wf^iXke  was  given   to  the  defendant  and 
his  attorm^ys  of  the  day  on    which  the 
evidence  would   be   taken.       The  defen- 
dant's attorneys  protested  that   it     was 
utterly  illegal,   and   when   the  examina- 
tion of  the  plaintiff    took  place,    defen- 
dant refused  to   take    any   further   part 
in  the    proceedings,   and  he  refused  to 
anpear  at  the  subsequent  stage  when  the 
ca«>  was  re-adjourned  to   the   Court  at 
Mount  Ayliff.       Now,      the      point     is 
whether,  assuming   it  to   have   been  an 
irregularity,  was  it  such  a  gross  irregu- 
larity as  would  justify  the  (^urt  now  in 
setting  aside  the  proceedings  altogether? 
I  am  by  no  means  satisfied  that  it  is  a 
po»  irregularity,  but  the  law  certainly 
M  obscure.      It   would  appear  that  the 
law  in  regard  to  the   Transkeian   terri- 
Jories  does  not  specifically  require  that  a 
place  shall  be  fixed  where  the  Court  is 
to  be  held  in  the  same  way  as  the  Acts 
relating  to  the   Magistrate's    Courts  of 
the  Colony,  but  I  think   it   is   unncces- 
Mry  to  decide  tlie  point  whether  a  Magis- 
trate in  the  Transkeian  territories  has  the 
power  exercised  in  ui©  present  case,  for 
the  simple    reason    that   the   defendant, 
in  my  opinion,  has  altogether  mistaken 
the  course  which     he      ought   to   have 
adopted.      If  he   refused   to   appear   at 
the  taking  of  the  evidence  of  the  plain- 
tiff, he  ought  at  all  events  to  have  ap- 
peared at  the  re-adjournment,  and  if  he 
Oinsidered  that  the  evidence  was  illegal 
he  ought  to  have     objected  to  the  ad- 
missibility of  the   evidence,      and   have 
(jiven  his  own  evidence.        If  then    the 
Court,  upon  the  whole  of  the  evidence, 
had  given  judgment  for   the      plaintiff, 
and  the  defendant   could   have      shown 
that  the  evidence   of    the    (rfaintiff    had 
bc>en  illegally  taken,    and   that    without 
nich  evidence  there  was  no  case  against 
the  defendant,  there  might  have  t^eu  a 
Rood  ground  of  appeal.     But  instead  of 
taking  that  obvious  course  the  defend- 
ant refused  to  appear  at   all,  and   now 
moves  the  Court  to  set  aside  the  wli^e 
of  the  proceediuj^s  on  the  ground  of  gross 
irregularity.    Without  the  plaintiff's  evi- 
dence there   was  sufficient  evidence     to 
justify   the  Court  in    calling   upon    the 
defendant    to    support     his    defence    by 
evidence.    It  is  impossible,  therefore,  to 
hold   that    the   irregularity— if    such    it 
was— was    so  gross  as  to  invalidate    the 

H 


whole  of  the  proceeding.     The  applioa- 
tion  must  be  refused  with  costs. 
Buchanan,  J.,  concurred. 

[Applicant's  Attorneys:  Zictsman  and 
Bosnian  ;  Respondent's  Attorneys :  Find- 
lay  and  Tait.] 


PHILIPS  V.  NHOQOZA.         {  Fcb.^Kith. 

ProraLssory    note       Signature  — 
Mark — Witnesses. 

//  Is  no  valid  defence,  to  an 
action  on  a  proniisHon/  note 
ifif/ned  with  his  mark  by  the 
maker  (Jutt  the  mark  is  attested 
by  only  one  witness. 


This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Willow- 
vale  in  an  action  brought  by  the  ap- 
pellant, R.  G.  Philips.  against  the 
respondent  to  recover  £54  10s.,  with  in- 
terest from  the  6th  October,  the  amount 
of  a  promissory  note  made  and  signed 
by  the  defendant  in  favour  of  the  plain- 
tiff. Mr.  Grardiner  was  for  the  ap- 
pellant (Philips) ;  there  was  no  appear- 
ance for  the  respondent. 

Mr.  Gardiner  said  that  in  the  Court 
below  exception  was  taken  to  the  sum- 
mons by  the  respondent,  on  the  ground 
that  there  was  only  one  witness  to  the 
mark  of  the  maker,  and  not  two,  as  by 
law  ret|uired.  The  exception  was  up- 
held, the  Magistrate  stating  tliat  his 
reason  for  judgment  was  that  the  mark 
should  be  attested  by  two  witnc.>«M>s. 
Counsel  submitted  that  there  was  no  law 
requiring  two  witnesses  to  a  mark  on  a 
promissory  note,  and  that  tho  Magistrate 
was  clearly  wrong. 

De  Villiers,  C.J. :  Tho  Magistrate,  in 
my  opinion,  clearly  erred  in  his  judg- 
ment. The  exception  taken  wa.s 
that  there  is  only  one  witness  to  the 
mark  of  the  maker,  and  not  two,  as  by 
law  required.  Then,  the  answer  to  that 
was  that  there  is  no  law  which  requires 
two  witnesses  to  a  mark.  The  result 
would  be,  if  the  defence  were  allowed, 
that  a  man  might  for  valuable  considera- 
tion give  a  promissory  note  signed  by 
himself  with  his  undoubted  mark,  and 
yet  escape  liability,  because  it  is  not  duly 
attested.  Clear  I  v  such  is  not  the  law. 
The  duty  of  the  Magistrate  was  to  have 
given  tne  plaintiff  an  opportunity  of 
proving  that  the  mark  was  the  mark  of 
the  defendant.  If  i't  is  his  mark  then  it 
is  his  signature  by  which  he  binds  him- 
self to  pay  the  amount  of  the  note. 
The  appeal  must,  therefore,  be  allowed, 
with  costs  of  appeal,  and  the  ca.<«e  will 
be  remitted  to  the  Magistrate  to  bo  de- 
cided on  its  merits,  and  also  for  deci- 
sion as  to  the  costs  in  the  Court  below. 

[Appellants    Attorneys*.     Walker    and 
Jacobsohn.l 


1)8 


"CAPE  TIMES"   LAW  REPORTS. 


STERBEMBEBQ  V.  NORTH. 

Magistrate's  inferences  from  facts. 

This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Gor- 
donia,  in&n  action  brought  by  the  ap- 
pellant  (Tneo.  W.  Sterrenbcrg),  a  con- 
tractor, of  Upington,  against  the  respon- 
dent, Victor  Herbert  North,  hotel- 
keeper,  for  £20  damages  for  breach  of 
contract. 

From  the  record  it  appeared 
that  this  matter  arose  o«t  of  certain 
work  given  ^  to  the  plaintiff  in  the 
way  of  building  certain  rooms  and 
improving  another.  Plaintiff  said  that 
a  contr^act  was  entered  into;  defendant 
said  that  the  plaintiff  was  engaged  on 
piecework,  to  be  done  as  his  (defend-ant's) 
funds  permitted.  At  the  first  hearing 
the  defendant's  attorney  applied  for 
absolution  from  the  instance,  on  the 
ground  that  no  damages  luid  been 
proved.  The  Magistrate  gave  absolu 
tion  from  the  instance  with  costs.  At 
a  second  hearing,  furtner  evidence  was 
led,  and  the  Magistrate  gave  judgment 
for  the  defendant,  with  costs. 

The  Magistrate,  in  his  reasons  for 
judgment,  said  that  the  defendant  had  a 
right  to  terminate  the  agreement  with 
the  plaintiff  at  any  time  on  his  tender- 
ing to  pay  for  the  work  already  done, 
which  he  desired  and  tendered  to   do. 

pr.  Greer  (for  the  appellant), 
said  that  this  matter  came  before 
the  Court  on  a  question  of  fact, 
hut  he  submitted  that  the  Magistrate 
did  not  in  this  case  give  due  weight  to 
the  probabilities  of  the  case,  which 
ground  his  lordship  (the  Chief  Justice) 
had  already  laid  down  was  a  sufficient 
ground  on  which  to  move  the  Court. 
PTe  contended  that  the  plaintiff  had  a 
good  case,  supported  by  independent 
evidence,  and  that  he  had  suffered  dam- 
ages. 

Mr.  Gardiner  (for  the  respondent), 
said  that  the  question  was  one 
entirely  as  to  what  the  contract 
was,  that  there  was  a  divergence 
of  testimony  on  the  facts,  and  that  the 
Magib-trate  was  best  qualified  to  j"dge 
of  the  credibilities.  If  the  plaintin  had 
suffered,  he  had  suffered  through  his 
own  fault.  He  had  not  shown  due 
diligence  in  his  work. 

De  Villiers,  C.J. :  The  decision  of  this 
case  does  not  depend  so  much  upon  the 
credibility  of  the  witnesses,  as  upon  the 
inferences  to  be  drawn  from  the  clearly 
proved  facts  in  the  case.  Th&  written 
d<^>cumcnts  in  the  present  case  afford  a 
very  good  clue  as  to  what  took  place 
between  the  parties.  On  the  29th 
October,  1904,  the  agent  for  the  plaintiff 
wrote  what  I  coiisidi>r  to  be  a  civil  not», 
asking  defendant  to  allow  the  plaintiff 
to  proceed  with  the  riding  on  of 
nmterialfl.  Then  on  the  same  day 
comes  this  letter  from  tlie  defendant: 
"As  Mr.  Stellenberg  has  thought   fit    to 


put  the  matter  into  the  hands  of  his 
agent  without  expkdning  the  matter  to 
me  first,  I  am  willing  to  pay  him  for 
work  done  and  for  bricks,  etc.,  ridden 
on  at  a  fair  valuation.  I  refuse  to  do 
further  business  with  the  gentleman  in 
(luestion,  after  the  action  ho  has  taken, 
which  I  consider  ia  quite  uncalled  for.*' 
This  is  clearly  a  btter  written  by  a 
perwn  who  seeks  to  get  out  of  a  bar- 
gain. It  would  appear  that  ho  had 
already,  behind  the  oack  of  the  plain- 
tiff, made  arrangements  with  somebody 
else.  When  asked  about  this  letter,  he 
said  he  wantcHl  to  give  the  plaintiff  an 
opportunity  to  go  on  with  his  work. 
Tnat  is  ridiculous.  I  do  not  think 
the  Magistrate  paid  sufficient  atten- 
tion to  the  true  relations  between  the 
parties.  He  seems  to  have  kiK>wn  them 
individually.  That  advantage  this  Court 
has  not  had,  but,  at  all  events,  the  Court 
has  the  documents  before  it,  which  en- 
able the  Court  to  form  an  estimaite  as 
to  what  the  true  relations  between  the 
parties  were.  The  appeal  is.  I  think, 
on  the  second  case.  It  appears  to  me 
that  the  plaintiff  has  sufficiently  proved 
that  the  damages  sustained  by  him 
amount  to  £20.  The  appeal  will  be 
allowed,  and  judgment  entered  for  the 
plaintiff  for  £20  damages,  with  costs  in 
this  Court  and  the  Court  below. 


SECOND    DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Ma abdobp.] 


GENERAL  MOTION. 


JKr  parte  CREDITORS  OP  attaway. 

Dr.  Rainsford  moved  as  a  matter  of 
urgency,  on  the  petition  of  creditors,  to 
the  extent  of  £2.100,  in  the  insolvent 
estate  of  Mr.  A.  H.  Attaway,  Kalabas 
Kraal,  for  the  appointment  of  Mr.  E.  R. 
Syfret  as  provisional  trustee,  with  gen- 
eral power  to  carry  on  the  farm. 

Order  granted. 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  Maardorp.] 


RAUBENHEIMSB  V.  BAUBEN-  (        1905. 

(Feb.  Hth. 


HEIMBR. 


This  was  an  action  brought  by  the 
plaintiff,  Antony  M.  Raubenneimer, 
against  his  wife  for  restitution  of     con- 


"CAPE  TIMES"  LAW  REPORTS. 


99 


jugil  righti,   failings   which,  diyorce,  by 
reftiion  of  her  malicious  d^ertion. 

The  declaration  set  out  that  the  parties 
were  married  at  Mossel  Bay  on  the  29th 
April,  1873,  out  of  coimiiunity  of  pro- 
perty. Vht^Te  were  six  childreD  of  the 
mirricge  surviving  two  of  whom  were 
minors.  The  defendant  malicioualy 
dPMrrted  the  plaintiff  in  March.  1904. 

Mr.  P.  S.  T.  Jones  wa«  for  the  plain- 
tiff, the  defendant  had  been  barred  from 
pWtding. 

Wm.  Thomas  Birch,  clerk  in  charge 
^fth©  luarriago  regri9tors"at  the  Colonial 
Office,  gsTc  evidence  as  to  the  regist ra- 
tion of  the  marriage. 

Mr.  Jones  applied  for  the  postpone- 
ment of  the  case,  in  view  of  tne  non- 
arrival  of  an  affidavit  sworn  by  the 
plaintiff  in  support  of  his  case. 

The  defendant  appeared  in  person,  and 
«id  she  wished  to  explain  that    she  left 
ner  hugband  becaui^e  ne  did  not  support 
her.  and  had  not  supported  her  for  five 
ywn.     She  had  a  letter  from  the  plain- 
tiff, in  which  he  said  ho  would  not  take 
h^T  back  again.       Witness  resided      in 
town. 

^I»Mdorp.  J.,  advised  the  defendant  Ic 
'PIK'ar  when  the  case  waa  again  called. 
The  caae  was  postponed  9ine  die. 


RKYDEKRYCH  V.  VRAHB. 

Security  given  by  wife — SeuaUta 
coHsultum  VelUjani. 

•  ."^'*'  *n  ajction  brought  by  Ben- 
jamin G.  Heydenrych,  financier,  of  Ob- 
»r?atory.ioad,  against  Mrs.  Frame, 
J^»fe  of  Alexander  K.  Frame,  of  Wyn- 
"^r?.  to  whom  defendant  was  married 
y,V^*-W)mmunitv,  to  recover  a  sum  of 
Jf^*  K  with    'interest   from  the     6th 

T?'*7'  ^®^'  "P<*"  *  promissory  note. 
ac/l  dwlaration  set  out  that  on  the 
f^\  April.  1904,  plaintiff  sued  the  de- 
|^P<i*nt  in  this  Court  upon  two  pro- 
^.'fj^^y  T)otes  for  £146  &.  and  £19  lOs., 
'"" 'njcrest.      The  latter     claim     was 

"led  by  defendant,  after  issue  of  sum- 
"^ns  and  before  the  hearing ;  but  upon 

I  .  former  claim,  the  Court  ordered 
P'!"»!>ff  and  defendant  to  go  into  the 
pnnapal  case,  costs  to  be  costs  in  the 
Tf'  ^  t^«  5th  February,  1896,  de- 
'*^«{i»nt  was.  and  still  is,  indebted  to 
P"tiff  in  the  sum  of  £146  9s.,  a.s  and 
•or  money  lent  and  advanced  to  her, 
r^  on  the  i«me  date  he  received  from 
yr'i '°*  promissory  note  now  sued  upon, 
'^■•'ndant  failed  and  refused  to  pay  the 
;f'd  sum.  Alternatively,  plaintiff  said 
"^t(.n  the  5th  February,  1896,  defendant 
;■«  indebted  to  him  in  the  sum  of  £146 
^•>  *nd  on  that  date  she  undertook  to 
'^yy  the  aaid  sum,  with  iirterest.  She 
Tpfused  and  neglected  to  pay  the  said 
'UM.  wherefore  plaintiff  claimed  pay- 
ment of  the  note,  with  interest  from  the 
StbFebniary,  1896,  and  costs. 


Defendant,  in  her  plea,  admitted  the 
formal  allegrations,  except  that  she  craved 
leave  to  refer  to  the  annexure  for  the 
true  construction  of  the  acknowledgment 
of  debt.  Prior  to  the  5th  February, 
1896,  the  plaintiff  bad  from  time  to  time 
advanced  to  the  defendant's  husband 
Alexander  Kay  Frame  various  sums  of 
money,  against  which  indebtedness  pay- 
ments were  made  from  time  to  time  by 
the  said  Alex.  K.  Frame.  Amongst 
the  moneys  so  advanced  is  the  annmnt  of 
£200.  advanced  on  the  2nd  December, 
1895.  for  which  the  plaintiff  received 
from  the  said  A.  K.  Frame  an  acknow- 
ledgment for  £230,  bein^i:  for  capital  and 
interest.  Defendant  signed  tne  same 
as  surety  for  and  on  behalf  of  her  said 
hui^band,  and  not  otherwise.  Defen- 
dant's husband,  by  payments  made  from 
time  to  time,  reduced  the  amount  to 
£146  9s.,  for  which  balance  an  acknow- 
ledgment of  debt  was  given  and  signed 
by  defendant  as  surety  for  her  husband, 
and  not  otherwise.  Defervdant  at  no 
time  received  any  consideration  from 
and  out  of  the  said  acknowledgment,  and 
was  not  a  public  trader,  and  when  she 
signed  the  said  acknowledgment  as  sure- 
ty for  her  huH>and  as  aforesaid,  the 
meaning  and  effect  of  the  benefits  and 
exceptions  which  she  purported  therein 
and  therebv  to  renounce  were  not  ex- 
plained to  her  by  a  notary  or  at  all,  nor 
did  she  understand  the  same,  and  the 
said  exception  of  the  scnatuA  ronsuHum 
rellfjani  was  hereby  ooposed  to  plain- 
tiff's claim  as  against  her.  On  the  5th 
March,  1896,  £300.  and  on  the  2Sth 
March,  £56  14b..  were  paid  by  her  hus- 
band to  plairvtiff  iu  full  and  complete 
settlement  between  her  husband  and 
plaintiff,  and  no  part  of  the  said  sum  of 
£146  9s.  was  due  to  the  plaintiff. 

Plaintiff,  in  his  replication,  said  he 
denied  that  the  sum  of  £200  was  ad- 
vanced to  defendant's  husband,  or  that 
?he  signed  an  acknowledgment  in  r^ 
spect  t(»  the  said  sum  as  surety  for  her 
husband  and  without  receiving  any  con- 
sideration therefor.  He  said  that  the 
defendant  herself  applied  to  him, 
through  her  attorney,  for  a  sum  of  £200, 
and  the  said  sum  was  advanced  to  her 
and  not  to  her  husband.  Ho  did  not 
admit  that  the  meaning  and  effect  of  the 
exceptions  were  not  explained  t<>  defen- 
dant. As  regarded  the  alleged  settle- 
ment, plaintiff  admitted  that  there  was 
a  settlement  between  himself  and  A.  K. 
Frame  in  1896,  but  he  denied  tliat  the 
sum  now  in  dispute  was  included  there- 
in. 

Mr.  Burton  (with  him  Mr.  Gardiner), 
for  plaintiff;  Mr.  McGregor  (with  him 
Mr.   Upington).  for  d<>fendant. 

Mr.  Burton  submitted  that  the  onus 
lay  upon  the  defendant  to  prove  her 
case. 

Mr.  McGregor  said  he  was  quite  pre- 
pared to  take  the  issue,  and  he  at  onc« 
called 


I 


100 


CAPE  TIMES"   LAW  REPORTS. 


Johanna  M.  Frame  (the  defendant), 
who  eaid  she  knew  notning  about  the 
loan  transaotions  between  the  plaintiff 
and  her  husband.  She  admitted  having 
signed  an  acknowledgment  of  debt  for 
£146  9s.  A  cheque  of  the  2nd  Decem- 
ber. 1893,  for  £200  bore  her  endorse- 
ment. Of  that  amount  she  received 
nothing  whatever;  she  signed  the  note 
at  Mr.  Frame's  request. 

Mr.  McGregor,  in  answer  to  the 
Court,  said  it  was  common  cause  be- 
tween the  parties  that  the  acknowledg- 
ment of  debt  for  £146  represented  the 
unpaid  balance  of  an  original  acknow- 
ledgment of  £230,  signed  by  Mrs. 
Frame  in  December,  1893. 

Witnees  (continuing)  said  that  there 
had  been  talk  beforenand  between  her 
husband  and  herself  in  regard  to  this 
oheque.  She  denied  having  approached 
the  plaintiff  for  a  loan  through  her 
attorney.  In  regard  to  the  acknowledg- 
ment of  debt,  she  simply  signed  at  Mr. 
Frame's  request;  she  denied  that  it  was 
explained  to  her  what  was  meant  by 
renouncing  the  benefits  of  the  saiatus 
conavltum  Velleiani.  She  did  not  under- 
stand what  such  a  term  meant.  Witness 
paid  no  amount  to  Mr.  Heydenrvch 
upon  the  sum  of  £230.  In  March,  1896, 
some  moncv  came  from  the  trustees  of 
her  husband's  father  in  Scotland  to  clear 
off  all  the  debts  that  she  and  her 
husband  had.  On  the  last  occasion, 
when  she  signed  the  acknowledgment  of 
debt,  nothing  was  said  to  her  about  the 
legal  exceptions. 

Cross-examined  by  Mr.  Burton :  She 
received  certain  money  after  her  father's 
death.  She  did  not  know  how  much 
it  was  or  when  she  received  it.  She 
thought  the  amount  would  be  about 
£200.  She  had  not  lent  money  to  her 
hui^band.  He  went  into  insolvency  in 
July,  1897,  and  witness  claimed  against 
the  estate  for  £990,  which  was  money 
Ijclonging  to  her  sou,  and  which  had 
come  to  him  from  his  late  father,  Com- 
nii.ssioner  Chalmers,  who  died  about  16 
or  17  years  ago. 

Mr.  Burton:  You  see  we  have  the  in- 
solvency proceedings,  and  nothing  is 
said  about  the  money  being  lent  by 
your  son.  The  acknowledgments  are 
made  out  by  your  husband  to  you. 

Witness:  It  was  always  understood 
that  the  money  was  my  son's. 

Mr.  Burton :  You  see  here  is  a  sworn 
claim  in  your  own  name  against  youi 
husband's  estate  for  £992? 

Witness:    Then  it  must  be  so. 

Mr.  Burton  :  From  the  documents  in 
the  Master's  OflBce  we  find  that  your 
first  husband's  estate  was  surrendered 
a.s  insolvent  bv  you,   as  executrix? 

Witness :  I  cfon  t  know  anything  about 
that. 

Mr.  Burton :  What  about  the  money, 
then?       Where  did  that  come  from? 

Witness :  The  money  that  came  to  me 
was  from  a  life  policy. 

Further  cross-examined :  She  had 
never  borrowed  money  from   the  jilaiq- 


tiff.  She  knew  nothing  of  an  applioa- 
tion  to  Mr.  Heydenrych  for  a  loan  on 
her  account.  In  spite  of  the  cheque 
she  was  confident  that  the  debt  was  a 
balance  of  an  old  account  between  her 
husband   and    the   plaintiff. 

Re-examined  by  Mr.  McGregor:  She 
did  not  take  proceedings  to  have  her 
husband's  estate  .sequestrated. 

Alexander  Frame,  husband  of  the  de- 
fendant, stated  that  in  November,  1893, 
he  approached  the  plaintiff  for  a  loan 
of  money,  and  on  the  advice  of  Mr.  Du 
Preez  the  plaintiff  advanced  him  £200. 
The  cheque  was  made  payable  to  Mrs. 
Frame,  who  did  not  get  a  sixpence  of 
the  proceeds.  The  loan  carried  interest 
at  2J  per  cent,  per  month.  The  acknow- 
ledgment for  £230  was  signed  by 
Mrs.  Frame.  Witness  signed  as 
surety  and  co-princinal  debtor.  The 
money  was  advancea  to  witness,  and 
the  plaintiff  knew  that  jierfectlv  well. 
It  was  understood  that  only  in  tne  case 
of  his  death  was  Mrs.  Frame  to  l>ecome 
liable.  There  was  a  reduction  of  the 
debt  in  1896  to  £146,  although  no  actual 
payments  were  made.  He  did  not 
object  to  pay  the  plaintiff's  rate  of  in- 
terest, but  he  oDJected  to  pay  the 
capital  twice  over.  Messrs.  Reid  and 
Nephew,  who  held  the  money  sent  to 
witness  from  Scotland,  would  not  enter- 
tain 30  per  cent,  interest,  and  the  plain- 
tiff got  witness  to  sign  certain  noU'A 
ante-dated  at  the  rate  of  6  per  cent. 
The  monev  was  sent  to  Messrs.  Reid 
and  Nepnew  especially  to  free  Mrs. 
Frame  from  debt.  He  implicitly  trusted 
the  plaintiff  as  a  friend,  and  when  he 
came  into  witness's  office  and  destroyed 
a  number  of  papers  he  understood  that 
the  bundle  included  the  acknowledg- 
ment for  £146. 

Cross-examined  by  Mr.  Burton :  The 
last  time  Mrs.  Frame  advanced  him 
money  was  in  1899.  Du  Preez  wae  the 
plaintiff's  attorney.  The  oheque  was 
made  out  to  Mrs.  Frame,  and  she  sign- 
ed the  acknowledgment  of  debt.  Witness 
had  to  worry  the  plaintiff  to  draw  up  a 
statement  for  Messrs.  Reid  and 
Nephew.  Witness  understood  that  the 
statement  of  account  made  out  to  the 
solicitors  included  his  wife's  liability.  All 
the  documents  were  dated  wrong  to 
suit  the  plaintiff's  purposes.  There  was 
no  mention  of  that  in  his  affidavits;  it 
was  only  recently  ho  commenced  to  re- 
member anything  about  it.  The  docu- 
ment dated  the  5th  February  might 
have  been  signed  on  any  date.  The 
plaintiff  purported  to  destroy  all  docu- 
ments, including  the  one  on  which  ho 
now  sued,  but  witness  believed  that  he 
retained  the  latter.  When  the  money 
was  sciit  from  Scotland  he  did  not  know 
whether  Messrs.  Reid  and  Nephew  wip- 
ed out  aJl  the  liabilities ;  he  supplied 
them  with  everything  he  was  aware  of. 
Ho  had  never  handled  more  than  £200 
from  the  plaintiff,  and  he  had  paid  him 
back  £600.    All  his    liabilities  were   ia- 


'*CAPE  TIMES"   LAW   REPORTS. 


lul 


eluded  m  the  throe  promisj^ry  not€6  for 

£300. 

R«-cxamiiicd  by  Mr.  McGregor:  On 
the  same  day  as  he  received  the  cheque 
from  the  plaintiff  for  £200,  he  wrote 
out  a  cheque  to  the  plaintiff  for  £52  for 
pi«Tiou8  loans.  Out  of  the  £200  he 
had  to  his  credit  something  like  £140 
alter  giving  cheques  to  the  plaintiff  and 
ha  attorney. 

Wm.  Youn^  Wilson,  of  Cape  Town, 
^fid  he  wag  m  1895  and  1896  a  clerk  in 
the  employ  of  Reid  and  Nephew.  He 
remembered  that  certain  communica- 
tions passed  between  Messrs.  Reid  and 
Mwsrs.  McGregor,  Donald  and  Co., 
m  a  sum  was  sent  by  the  latter  firm 
MJouuting  to  £993.  Witness  advertised 
m/J"°*®'  ho  saw  Heydenrych.  and 
row  him  that  the  money  wai>  sent  in 
order  to  dear  off  the  claims  a4yfainst 
Mr.  and  Mrs.  Frame.  The  claims  were 
•s  a  matter  of  fact  in  excess  of  the 
Wiount  remitted  from  Scotland ;  in  case 
l^  liabihtiee  were  not  cleared  off  by 
hBsum  it  was  to  be  sent  back.  Ho 
"otified  the  plaintiff,  who  sent  in  a 
t^J'Sf.J^'  Plaintiff  agreed  to 
*«*pt  £355.  Witness  understood  that 
aa-ouiit  wa6  in  full  settlement  of  the 
Pljjntira  daira. 

tross-examined  by  Mr.  Burton:  Ho 
J«5  sure  that  he  told  Heydenrvch  that 

Uu'^ff  *°  ^"^  »"  1"«  claims"  against 
join  Mr.  a„d  Mrs.  Frame.  He  notified 
Mpydenrych  both  verbally  and  by  letter ; 
h(j  bought  there  would  bo  copy  of  the 
2«^'f5  m  Messrs.  Reid's  letter  book. 
«-  admitted  that  all  the  vouchers  ^oiit 
•jacyrom  Scotland  were  the  liability  of 

bin..:.  •?"??'  except  one  endorsed  in 
^•"e  pencil  "and  Mrs.  Frame." 

nUi!l[  ^r"."^"  =   '^^^  *«**«"  refer  to  the 
c  aims  of  "A.  K.  Frame  and  Co.,  or  Mr. 
'\.^- frame." 
^f- McGregor  closed  hie  case. 

hi.;  I'^™'"    Godlieb    Heydenrych     (the 

^^m  aaid  that  he  had'^lent  both   the 

timl  ?*"^.  *"^  ^^^  husband  money  from 

■me  to  time.      In  Deceml^er,  1893,  Mr. 

uLl^^  ^"^^^    ^^"^   »i»^'<^   d»<?<l)    called 
,Jr  '^*™'  «n<J  applied  for  a  loan.   Wit- 
p?  gave    a   cheque    for   £200    to    Du 
Du  p'"  f*^<>"''    o'    Mrs.    Frame    upon 
DiJ,..-    ^^'^  handing    to    him    the   signed 
ei^n  "°*«-       The  note  was  renew- 
no* .  ^5^   *"^    1895.       The  document 
arv  iSz  ^^^  ^'^^  drawn  ud  in  Febru 
ttkir.    u-    ^"™®  ^^^  called  upon  him 
q/  "?  mm   to   draw  up  the   statement 
tL,.T  'f?^«l>t<Miness ;    Frame    told    him 
trui       L   ™^*^  ^'*"*  **  *^  appear  to  the 
ro»p?*  ^"^  terms  on  which  he  had  bor- 
somo  *  ?"!  **®  "^***  witness  to  take  off 
an/i    1 .  *"®    indebtedness  of   his   wife.     ' 
IIJJ' add  it  to  his  (Frame's)   debt,   thus    I 
nft»!!^^,  HP  with    certain    interest   three     ' 
75^^  *100  each.       The  indebtedness     I 
£ii?'^  Frame  was  thus  reduced  to  the     i 
bM    w.    In    February   he   drew    up   a     ' 
J^^nt  showing      Frame's     indebted-     I 
.v?i. 'J'*  ^^^  not  include  Mrs.  Frame's 
"«W>t«dnea8  of  £146  odd. 


Cross-examined  by  Mr.  McGregor: 
He  admitted  that  he  had  waited  within 
five  days  of  the  period  of  prescription 
before  he  sued  upon  the  promissory 
note.  Frame  had  large  schemes  all 
the  time;  witness  did  not  want  to  tako 
action  against  Mrs.  Frame. 

Mr.  McGregor :  Yes,  we  can  quite  ap- 
preciate the  rea4Son  in  such  a  case  as 
this. 

Mrs.  Frame  had  never  seen  him 
personally    about    any    loan. 

Mr.  McGregor:  How  a  person  of  your 
vigilance   and    keenness  of    intellect 

Witness  (interposing) :  I  am  not  so 
very  vigilant  and  keen,  or  I  would  not 
littve  trusted  these  people. 

He  did  not  consider  tlio  rate  of  in- 
terest that  he  charged  Mrs.  Frame  (2^ 
per  cent,  per  month)  to  be  high.  Mr. 
Frame  'bad  offered  5  per  cent,  per  montli 
for  Bffnall  loans.  The  Bcknowledgemont 
for  146  include  both  principal  and  in- 
terest. 

Mr.  Burton  closed  his  case. 

Counsel  having  been  hoard  in  argu- 
ment on  the  faots, 

Maosdorp,       J.:       The      Court      Ji^^ 
to     decide  upon     tlio     evidence     which 
lias     been     laid    whether     the     defend- 
ant     is      the     priiici;ijal      debtor,      and 
Hfible  upon  the  promissorv  note,  or  whe- 
iiher,    notwithstia'nding  wiiat   appears    in 
that  promi^«ory  n<yte,  she  is  not  merely 
a  surety.  I  find  Mrs.  Fr^ime    in  order  to 
assist  her  husband,  consented  to  sign  the 
document  as  surety  for  his  indebtedness, 
and  the  document  must  bo  taken  as  an 
agreement  of  suretyship.     In  that  docu- 
ment    I     find    that     Mrs.     Frame     hari 
renounced   the  exception   of  the  scnutus 
ronsultttm  Vellejuui.  If  a  wife  becomes  se- 
curity for  her  husband,  or  a  woman  for 
a  man,  and  renounces  tiiat  excej^tioii  ef- 
fectuallv,  then  the  indebtedness  upon  the 
acknowledgment   would    be    eeta Wished. 
rsow  how  can  such  an  exception   be  re- 
nounced   effectually?     It    has  been    laid 
down    in   the   auft'horities— and    we  have 
decisions  in  the  Supreme  Court  upon  that 
point— that  for  it  to  be  done  effectually, 
the    person    renouncing    must    be       well 
aware  of  the  effect  of  the  renunciation, 
and  w>ha:t   she  will  Jose  by   renouncing. 
(Mrs.    Frame   has    told    the   Court    that 
she   did     not     understand     a    word     of 
this,     end     she    doeu  not     now     under- 
stand ;    and    I    am    quite    satisfied     tihat 
fihe  did  not.  and  that,  from  the  nature 
of  her   evidence,   she   is   a   woman   who 
would    not   understand.     If    that    lx»    so, 
then  tlie  exception  has  not  been  effeolu- 
ally  renounced,   and  defendant  can  take 
thf^  benefit  of  it.     She  h^s  taken  ad  vau- 
lt age  of  it,  and  she  now  set  it  before*  the 
Court   as   an  exception   to   the   claim   of 
the  plaintiff.     Thajt  lieing  so.  irt  is  a  full 
and  sufficient  answer  on   the  part  of  the 
defendant,  as  surety,    to  say  that   when 
siho  became  surety,  she  did  not  renounce 
the  exceptions  in  respect  of  which  she  was 
enititled  to  the  benefits.     But  I  would  ^o 
further,  and  say  that,  if  that  point  had 


102 


CAPE  TIMES"   LAW  REPORtS. 


not  disposed  of  the  caws  then  if  it  had 
beon  establi.shed  that  there  waa  an  in- 
debtedness whereby  which  these  parties 
jointly,  whetlier  as  principal  or  surety, 
becaiMo  indebted  to  Mr,  Heydenrych, 
that  matter  was  lonp  ago  settled.  Look- 
ing at  tlio  acknowledgement  of  debt,  we 
find  tlhat  it  war*  a  few  days  IWore  it 
would  have  l)een  ijrescril)ed  when  this 
action  was  brought.  The  matter  was  de- 
layed to  that  date,  and  the  impression 
on  my  min4l  is  that  tlio  delay  took  place 
lM?cause  the  plaintiff  had  no  confidence 
in  the  ju-^ticxi  of  his  cause.  I  believe 
1'Iiait  die  inde'btiedness  under  this  acknow- 
hnlgeinent  waii  extinguished  after  the 
monerv  had  been  sent  out  by  the  truaitees 
in  Scotland  to  Frame,  because  money 
was  paid  'to  the  plaintifT  on  the  under- 
K'tanding  'tiha-fc  it  should  be  a  full  pay- 
ment. Judgment  will  be  given  for  the 
defendant,  with  costs,  including  costp 
of  the  previous  applicaition. 

[IMaintiffV  Attorneyfl :  Van  der  By.l 
and  De  Vil'liei-s;  Defendant's  Atto*r- 
neys ;    Van    Zyl  and    Buieeinne.] 


DARTER  V.  DARTKR. 

This  was  an  action  brought  by  Geor- 
gina  Darter  against  her  husband,  Adri- 
enne  All)ert  Dart<?r,  to  recover  certain 
moneys  advanced.  Mr.  Close  was  for  the 
plahitiff;  the  defendant  did  not  appear. 
The  suit  was  by  edictal  citation. 

The  declaration  set  out  that  the  plain- 
tiff claimed  a  sum  of  £300,  with  cost?*, 
upon  a  bail  bond  given  in  favour  of  de- 
fendant, which  had  been  estreated. 

No  evidence  was  called. 

Judgment  was  entered  as  i^rayed,  and 
property  already  attached,  (td  fundundmn 
jurisdiclionimj  to  be  declared  executable. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Hon.  Sir  John  Buchanan.] 


GENERAL  MOTIONS. 


MENDELSSOHN  V.  LAVIGN 


'^iFeb.    l.oth. 

Mr.  \V.  P,  Buchanan  moved  as  a  mat- 
ter of  urgency  for  an  interdict  restrain- 
ing Messrs.  Van  Zyl  and  Buissinne  from 
parting  with  certain  money,  the  property 
of  the  respondent,  who  had  been  arrest- 
ed on  the  application  of  the  applicant, 
to  whom   he  owed   £64  for  goods   sold 


and  d*'livered.  On  the  10th  January  the 
respondent  gave  the  applicant  a  cession 
of  certain  rents  of  property  which  he 
had  subsequently  sold.  The  balance  of 
the  purchase  price,  £30,  had  been  hand- 
ed to  Messrs.  van  Zyl  and  Buissinne. 

A  rule  wm,  operating  as  an  interim 
int/crdirt,  was  granted,  the  rule  to  be 
returnable  when  the  suit  between  the 
parties  is  heard,  the  rule  to  be  served 
on  the  respondent  and  Messrs.  Van  Zyl 
and    Buissnine. 


J?.r  jmrfc   EBKUT  AND  CO. 

Mr.  W.  P.  Buchanan  moved  for  an 
order  against  respondent,  Joshua  Ileil- 
buth,  calling  on  him  to  give  satisfac- 
tory vsecurity  for  a  judgment 
of  £41  18s.  9a.  obtained  against  him 
in  the  Transvaal,  failing  which  an  order 
for  his  arrest.  The  respondent  was 
about  to  leave  for  England  by  the  mail 
boat. 

Buohanan.  J.,  said  he  was  afraid  the 
Court  had  no  jurisdiction  to  grant  such 
an  order.  The  defendant  was  simply 
passing  through  this  country,  and  no 
order  could  be  made.  The  de^bt  was 
contracted  in  the  Transvaal  betw€»en  a 
branch  of  the  plaintiff's  firm  and  the 
defendant,  who  nad  no  property  in  this 
country. 


TRIAL  CAUSES. 


KROHN  V.  KROHN. 

This  was  an  action  for  divorce  by 
reason  of  the  defendant's  adultry  with 
some  person  or  persons  unknown.  The 
parties  were  married  in  October,  1893. 
They  lived  happily  together  for  a  num- 
ber of  vears.  until  a  child  was  born  of 
the  defendant,  of  which  the  plaintiff 
was  not  father.  In  1902  anotner  illi- 
gotimate  child  was  born,  and  a  third 
followed  in   1903. 

Mr.  Upington  was  for  the  plaintiff, 
and  ihe  defendant  was  in  default. 

Johann  Krohn,  plaintiff,  stated  that 
the  first  child  was  born  in  October,  1897, 
and  the  defendant  told  him  who  was  the 
father  of  the  child.  After  that  witne^ 
and  his  wife  were  constantly  quarrelling. 
Two  more  children  were  born,  of  which 
he  was  not  the  father;  he  was  with  the 
Boer  forces  when  the  third^  child  was 
born.  The  defendant  in  a  letter 
acknowledged  her  guilt.  Plaintiff 
claimed  a  decree  of  divorce,  and  if  the 
Court  so  ordered  it  he  was  willing  to 
take  charj^e  of  the  eldest  girl,  whom  ho 
had   practically  adopted. 

Buchanan,  J. .said  that  the  only  eliild 
that  was  actually  proved  to  have  been 
bom  in  adultery  was  the  third  chdd, 
and  the  other  two  being  born  in  wed- 
lock would  be  presumed  to  be  the 
children  of  the  plaintiff.  A  decree  of 
divorce  would  be  granted,  the  plaintiff 
to  have  custody  of  the  eldest  child. 


'"Ca!>e  tImes"  law  HEPORTS. 


m 


HANDS   V.  BUAPIRO. 

This  was  an  action  brought  bv  Harry 
Hands,  in  his  capacity  as  churcliwa>:c]<?n 
of  St.  Saviour*8  Church,  Claremont,  to 
reooT«r  from  the  defendant  £15  58.  2d., 
being  the  balance  of  rent  due  for  cer- 
tain prczti-isct>  in  Pnmroso-street. 

The  claim  was  for  £64,  less  taxed  costs 
amounting  to  £16  4s.  lOd.,  and  against 
that  claim  there  was  a  set  off  of  £30 
for  rent  due  by  one  Friedman  to  the  de- 
fendant and  £2  paid  in  cash,  and  further 
untaxed  cost^  iucurred  concerning  a  rule 
ni4i  interdicting  the  defendant  from  part- 
ing with  the  property  amounting  to  £16 

Mr.  (P.  Jonc«  was  for  the  plaintiff 
and  Dr.   Oreer  was  for  the  defendant. 

Herr^  Shapiro  stated  that  he  hired 
from  Friedman  certain  premises  in 
Prim  rose-street,  for  which  he  always 
paid  in  advance.  An  order  was  granted 
agaiu<^t  him,  and  then  he  refused  to 
pay.  On  the  same  day  as  proceedings 
were  taken  against  him'by  St.  Saviours 
Church,  Friedman  also  took  proceedings 
over  the  same  matter,  and  it  was  neces- 
sary for  him  to  come  to  the  Court  a 
HKond  time  to  expkin  his  position. 
Supposing  he  had  not  received  Fried- 
man*s  interdict  he  would  not  have  in- 
tuned  any  costs  over  the  St.  Saviour's 
Church  application. 

Edwarci  Collins,  articled  clerk  to  Mr. 
Stanley  Jones,  stated  that  if  proceedings 
had  not  been  instituted  by  Friedman  he 
would  not  have  advised  any  opposition 
to  tlie  St.  Saviour's  Church  appplica- 
tion.  The  duplication  of  the  proceed- 
ings caused  confusion  and  expense.  The 
present  defendant  had  nothing  to  gain 
by  hi«  previous  action,  as  the  rent  had  to 
be  paid  in  any  case. 

Counsel  having  been  heard  in  argu- 
ment   on    the  facitA. 

Buchanan,  J. :  This  action  ii»  broiu^'h't 
by  Friedman  again^  Shapiro,  tlie  defen- 
dant, for  ftlie  recoveiy  of  rent.  The  premi- 
ses leased  by  plaintiff  to  defendant  were 
boiided  to  th*  churohward{?ns  of  St.  Sa- 
viour's Church,  Claremont.  During 
the  currency  of  the  bond,  Friedman 
granted  the  churchwardens  an  irrevo- 
cable power,  entitling  them  to  receive 
the  rent  from  the  tenant  and  to  apply 
it  in  reduction  of  their  claim.  After 
Ibey  had  obtained  this  irrevocable  power 
in  consequence.  I  presume,  of  the  con- 
duct of  Friedman,  the  churchwardens 
obtained  a  rule  m«t,  having  the  effect 
of  an  interim  interdict  restraining 
Shapiro  from  paying  his  rent  to  Fried- 
man. The  day  before  this  rule  was  ob- 
taaned.  Friedman  had  adso  obtained  a 
nrie  nuti  against  Shapiro,  by  which  he 
also  claimed  (the  rent,  and  '  'attached 
certain  of  Shapiro  s  'property  as  security. 
Now  itiho  rent  claimed  at  that  time 
amounted  <to  £64.  Shapiro  was  willing 
to  pay  tfhe  rent,  but  being  harasKod  in 
this  way  he  did  not  know  to  whom  to 
pay.  As  orders  of  Court  Ivad  been 
obtained   he  w^m   jus'tified    in   retaining 


the  uioney  until  Ihe  Court  decided  in 
favour  of  one  party  or  flie  other.  The 
matter  was  furt^her  complicated  by  the 
fact  that  Shapiro  had  a  sot  off  against 
Friedman  for  one  month's  ren;t — £32 — 
whidh  ho  had  already  paid,  and  of 
w-hich  paymeivt  the  dhurch wardens  were 
Ignorant.  The  churcrwardens,  though 
bringing  this  action  in  Friedman's  name, 
are  really  the  plaintiffs  in  the  matter. 
Wlhen  tthe  action  for  the  payment  of  t^iio 
£64  came  on  for  hearing  they  discovered 
the  payment  by  the  defendant  to  Fried- 
man, and  tfhey  consequently  withdrew 
so  much  of  their  claim.  They  also 
found  *hat  Ifhe  coftts  incurred  by  tho 
defendant  in  consequence  of  Friedman's 
act  ion  liad  to  the  allowed .  The  prese  n  t  s  u  i  t 
depended  on  the  amount  of  these  cohts. 
Il  'm  said  by  defendant's  counsel  that 
had  it  not  been  for  Friedman's  action 
tho  defendant  would  have  made  no  on- 
poi'ition  to  the  application  of  the  church- 
wardens, as  it  was  immaterial  to  him  to 
whom  he  paid.  In  my  opinion,  he  is 
certainly  entitled  to  the  costs  which 
Friedman  has  put  him  to,  and  the 
churctti wardens  are  now  willing  to  allow 
these  amounts.  The  defendant  s  legtal  ad- 
viser was  called  upon  to  furnish  a  hill  of 
■Uhese  costs,  and  after  a  considerable 
amouiitt  of  oorre^pondence  a  bill  of  costs 
was  made  against  Friedman  for  the  sum 
of  £32  17s.  2d.  This  was  taxed  by  the 
Master,  and  adding  16s.  for  the  taxing 
fee,  he  allowed  £16  14s.  lOd.  He  dis- 
aJlowed  the  sum  of  £16  18s.  4d.  of  this 
bill  and  costs  as  not  being  taxable  as 
against  Friedman.  This  action  being 
brought  in  Friedman's  name,  tiio 
defendant  has  set  off  this  amount  of 
taxed  bill  of  costs,  £16  18s.  4d.  The 
pi  ad  n  tiffs  agree  to  this  sot  off  in  addi- 
tion to  the  otiher  set  off  of  £32.  But 
the  defendant  wi^es  now  tto  set  up  a 
funther  bill  of  coets  made  up,  so 
far  art  we  can  gofther  of  ^he 
itenk>  which  were  disallowed  in  the 
bill  of  costs  taxed  between  Friedman 
and  Shapiro.  This  is  not  an  applica- 
tion to  review  the  Master's  taxation. 
Thei^  has  been  no  amount  of  casts  taxed 
against  Friedman  except  the  £16  148. 
l(>d.,  wlrich  itho  plaintiffs  are  willing  to 
allow.  Under  tnie  oircumsltances,!  can- 
not allow  an  indefinite  claim  on  an 
untaxed  bill  of  costs  as  a  still  fur'thersot 
off.  If  Sfhapiro  was  dissatisfied  with 
the  'Maiitor's  taxation,  and  thought  that 
the  Mailer  hart  not  allowed  him  suffi- 
cient, he  might  have  brought  the  taxa- 
tion lin  review.  Ai*  the  case  ait  present 
stands  t/he  £16  14s.  lOd.  is  all  that  can 
b\}  allowed  for  costs.  Allowing  tho.-io 
two  items  tihere  is  a  balance  due  bv  the 
defendant  of  £15  ISs.  2d.,  for  whicn  the 
plaintiffs  are  entitled  to  judgment.  As 
to  costs.  1  was  in  favour  of  allowing 
onlv  Magistrate 'fi  Court  cosIm,  art  I  a^ivo 
witli  Dr.  (Jroor  that  Iho  claim  origin- 
ally liad  only  'been  made  for  £15  5s.  2d., 
it  mdg'ht  never  have  hoiHi  contests**!. 
But  there  has  'been  a  contest,  and  this 


n 


104 


CAPE  TIMES"   LAW  REPORTS. 


£15  5s.  2(1,  has  not  b(»cn  tendered,  and 
it  is  pointed  out  tiiia»t  t\\c  partiea  arc  in 
il'iflFerent  distriots,  which  ^^ives  the  plain- 
tiff 'tihe  right  to  come  to  this  Court, 
tlu^eforc  I  am  bound  to  give  judfirinent, 
wit'h  coats.  'iTiero  it>  an  application  for 
coats  of  t'he  provisional  oar*e.  but  I 
think  the  proceedings  in  the  provisional 
were  altogetlher  unnecesssary.  and  no 
such  costs  will  be  allowed. 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maahdorp.] 


COM  MISSION  BBS,  ADENDOUP 

MUNICIPALITY    V.    KING--^       " 
WELL. 


( 


)  Mar. 
VApr. 


1905. 
Feb.  Ifith. 

Kith. 

17th. 

28th. 
Apr.  17th. 

Municipal  regulations  —  Grazing 
rights — Illegal  enclosure  of 
commonage. 

This  was  an  action  brought  by  the 
Chairman  and  Commissioners  of  the 
Adendorp  Municipality  against  Alfred 
Kingwclf,  of  Graaff-ltcinet,  to  recover 
damages  for  alleged  violation  of  the 
plaintiffs'  rights  in  regard  to  certain 
grazing  and  other  rights  in  the  villages 
of  Adendorp,  Rouvierville,  and  Retreat. 

The  declaration  stated  that  the  plahi- 
tiffs  were  the  Chairman  and  Commis- 
sioners of  the  Adendorp  Municipality, 
and  as  such  representing  the  erf-holders 
of  the  said  Municipality.  Prior  to  and 
in  the  year  1855  Michiel  Joseph  Aden- 
dorp held  certain  ground  known  as  De 
Erf,  and  this,  together  with  certain  ad- 
joining ground,  became  the  sites  of  the 
villages  of  Adendorp,  Rouvierville.  and 
Rotreat.  The  ground  was  sold  subject 
to  certain  >ervitudes  as  to  grazing  and 
wood  cutting.  By  successive  transfers, 
the  defendant  in  1901  became  the  owner 
of  a  portion  of  the  land.  In  the  con- 
ditions of  sale,  it  wsis  liai<l  down  that  all 
the  erf-holders  in  the  said  villages  nntl 
their  successors  were  to  be  entitled  to 
graze  a  certain  number  of  oattlc  on  cer- 
tain grazing  land  on  Do  Erf.  and  they 
were  also  to  have  certain  rights  in  re- 
gard to  the  cutting  of  wood  for  fuel 
purposes. 

The  acts  complained  of  by  the  plain- 
tiffs were  set  out  in  paragraphs  XI., 
XII.,  and  XIH.  of  the  declaration  as 
follows  :  XI. — In  or  about  March,  1901, 
the  defendant,  who  had  already  pur- 
chased and  was  in  possession  of  the  said 
portion  of     De  Erf   and  the     adjoining 

f)iece  of  ground,  which  was    subse(]uent- 
y  transferred  to  him.  proceeded  wrong 
fully,  unlawfully,  and   wilfully     to     cut 
down  and  remove  all  the  veld    bushes, 


thorn  trees,  and  other  trees  and  shrubs 
of  every  sort  growing  thereon,  in  viola- 
tion of  the  plaintiffs'  rights  thereover, 
as  representing  the  erf-holders  of  tho 
said  Municipality,  and  thereby  and 
otherwise  furtner  destroyed  the  grazing 
ground  thereon,  to  the  use  of  w'hich  the 
plaintiffs  were  entitled,  and  which  th? 
said  erf-hofders  have  used  as  aforesaid. 
XII. — The  defendant,  in  spite  of  re- 
peated protests  by  the  plaintiffs,  persisted 
in  the  illegal  acts  referred  to  in  ihe 
last  preceding  paragraph  hereof,  and 
continued  so  to  damage  and  destroy 
the  «aid  grazing  ground  until  iu  or 
about  July,  1902.  and  he  has,  by  reason 
of  his  said  violation  of  the  plaintiffs* 
rights,  caused  them  damage  to  the  ex- 
tent ol  £2,500.  XIII.— In  or  about 
August.  1902,  the  defendant  wrongfully 
and  unlawfully  enclosed  a  certain  por- 
tion of  the  said  ground,  in  extent  about 
5  morgen,  537  square  roods,  l)eing  pirt 
of  the  grazing  ground  hereinbefore  men- 
tioned, and  not  cultivated  land,  wi:h  a 
wire  fence,  thereby  preventing  tho 
plaintiffs  from  enjoying  all  their  gr.iz 
in^  and  other  rights  in  and  over  tiie 
said  ground,  and  causing  them  damage 
to  the  extent  of  £150.  The  pii  nttffs 
prayed  for  judgment  for:  (a)  The 
sum  of  £2,500  as  damages  aforesaid  m 
respect  of  tho  matters  complainel  of 
in  paragraphs  XI.  and  XII. ;  (b)  the 
sum  of  £150,  as  damages  in  resp'K^t  of 
the  mattt^rs  complained  of  in  pvra 
graph  XIII. ;  (c)  that  the  defendant 
mav  bo  ordered  forthwith  to  remove  the 
<9aicl  wire  fence;  (d)  alternative  relief; 
(o)  costs  of  suit. 

Defendant,  in  hi&  plea,  said  that,  sub- 
ject to  the  .*said  ctHiditions  of  sale  and 
rights  and  privileges  pertaining  to  the 
said  erf-lK)lders  thereunder,  the  vendor 
retaiiKHl  his  ordinary  proprietary  rights 
in  respect  of  the  said  property  De  Erf, 
not  only  under  the  common  law,  but  also 
by  virtue  of  the  last  clause  in  the  re- 
spective conditions  of  sale,  together  with 
(ithor  clauses  therein.  He  said  that  the 
vendor  retained  his  legal  and  ordinary 
rights  to  the  ressonable  use  and  enjoy- 
ment of  the  said  grazing  lands,  sub- 
ject to  the  rights  of  grazing  granted  to 
erf-hoklers  by  the  saia  condition> 
of  sale.  Defendant  said  that  (a)  he 
admitted  that  in  or  about  March,  1901, 
he  had  purchased  and  was  in  posse.'-sion 
of.  and  thereafter  got  transfer  of.  tho 
said  portion  of  Do  Erf  and  of  the 
ground  adjoining  De  Erf.  and  that 
then  and  thereafter  he  cut  down  and 
removed  certain  firewood  on  the  west 
or  right  •'ide  of  the  said  river,  on  the 
portion  of  ground  in  respect  of  which 
the  erf-holders  in  the  villages  of  Rouvier- 
ville and  Betre.Ht  had  certain  rights  of 
cutting  wood,  in  terms  of  the  said  con- 
ditions; but  he  did  Tiot  interfere  with 
any  lawful  rights  of  grazing  cattle  on 
the  aforesaid  grazing  ground  as  possess- 
ed by  the  erf -holders  in  the  three  said 


*'GAPE  TIMES"   LAW  REPORTS. 


l05 


villages,  or  in  any  way  damage   the  said 
prizing  ground,  the   latter,  on  the  con- 
inry,  having  been      improved   by  what 
he  did;  (b)     he    further  said  that     in 
August,  1902,  he   sold  his   said  pn>pertv, 
being  the  servient  tenement     here      iii 
question,  to  the    present  plaintiffs      in 
their  said  capacity,    who    bought       the 
same  at  a  public  sale   by  auction,   and 
were  now  the  registered   owners  and  in 
pofisetoion  thereof;    (c)     defendant  here- 
by, in  reference  to     paragraph  11,   ten- 
dercid  the  sum  of  £25,  with  taxed  co^ts 
to  date  of  teiic^r,   in  full  satisfaction  of 
any  damage  which   plaintiffs  may    have 
iustaiued  in  respect   of   the   defendant's 
acta.     Paragraph  12    was   denied,  save 
u  to  the  aamieaious  of   tender.    As   to 
paragraph   13,    defendant  admitted  that 
be  endofied  with  a  wire  fence  a  certain 
portion  of  his   said    ground,    in  extent 
about  five  morgen,  but  the  «»aid    portion 
vas  situated  on  the  east  or  left  side  of 
the  river,  and  was  not  subject  to  grazing 
nifhts.     He  »aid  that  the  plaintiff  had 
sustained  no   dan»agcs,   there   being,    in 
faft.  no  firewood  or  other  wood  on  the 
iaid  portion,  and  for  a  technical  infringe, 
ment  of  the  plaintiffs*'  rights  therein,  ho 
tfiidend  the  sum  of  £5,    with   costs   to 
da^o  of  tender      Subject  to  the  foregoing 
te-uden  of  £25  and  £5,    together   with 
tMxcd  costs  to  date  of  tenders,  he  prayed 
^W  tlie  plaintiffs'  claim  should  bo   dis- 
missed, with  costs. 

Plaintiffs,  in  their  replication,  put  the 
defendant  to  proof  of  his  aasertions. 

Mr.  Burton  (with  him  Mr.  De  Waal) 
[or  plaintiffs.  Mr.  Schreiuer,  K.C.  (with 
am  Mr.  McGregor)  for  defendant. 

Mr.  Sohreiner    applied    for  leave      to 

anj^nd  the  plea  in  so  far  as  the  alleged 

endosuro  by  a  wire  fence  was  concern- 

<  by  withdrawing  the    admission  that 

tiiere  was  a  right  of  grazing  or  cutting 

'^'H^l  in  the  plaintiffs.    He  withdrew  the 

tender  of  £5,  and  said  that  it  could  bo 

aridod  to  the  £25  tendered  in  the  other 

part  of  the  claim. 

Maasdorp.  J.,  allowed  the  amendment. 

Jan  Chnstiaan   Weitz,    Town  Clerk  of 

Adendorp,  ^ave  evidence  as  to  the  for^ 

•n^r  condition  of  things   on    the  ground 

a«(i  the  value    which   the  trees   on    the 

'«nks  of  the  river,  cut  down  bv  defend- 

iXi  *^i?  '°    thofto    who   held    grazing 

'?ni«.    He   also    gave  evidence   in    re- 

Jj^ra  to  the  extent  of  the  grazing  rights 

«'  the  erf.holders.     The  cutting   of   the 

wood  by  the  defendant   commenced,  ho 

»a>d.in  March.    1901,  when  martial   law 

'■*".'  force.      He  saw  cutting  going  on 

tt   L  ^®  R<'uvierville ;      and  he  saw  the 

V  M    ®*n"^*   through  a  portion    of  the 

^y-     He  saw  cutting   going   on  in    u 

^.i  i»f  trees  over  a   length  of  alK)ut   a 

Jl'e  along  the  bank    of      the      Sundav 

Jiver.      After  the  trees    had   been    cut 

"o^Ti  there  was   no  protection    k»ft    for 

*^7  Rrasa  which  might  grow  during  th(^ 

W  fiea.^n.       He  did   not    notice   any 

"?n  of  frpg},   growth    where    the    trees 

'wa  been  cut  down.      At  that  time  de- 


I    feudant  was  residing    on    erf  No.   5  at 
Rouvierville. 

Cross-examined    bv      Mr.    Schreiner: 
There  were  over  1,000    head    of     stock 
that   grazed   on    the  ground   before    the 
trees  were  cut  down;  he  had   no  record 
for  Municipal  purposes.       Stock   in   ex- 
cess of  the  quantity  allowed  on   the  er- 
ven were   taken  to  the  pound.      He  ad- 
mitted that  lx>th  mules  and  donkeys  had 
grazed  on  the  ground,  as   well   as  cows 
and  horses.       He  could  not  say  whether 
there  were  more  mules  and  donkeys  on 
the  ground  than  cows;  he  did  not  know 
whether  the    erf-holders  generally    held 
more  mules  and  donkeys  than  cows  and 
horses.     Goats  would  eat  from  the  trees. 
Mr.  Schreiner:    A  sheep   will  not  eat 
from   the  trees? 
Witness :   Ycei ;   a  Cape  sheep. 
He    had   seen    donkeys    belonging    to 
Mr.      Janson,      formerly      a      commis- 
sioner,     on      the      commonage.         Ho 
did     not     know     that     of     the     trees 
cut  down  by  the   defendant   the   stunn)s 
had  been    crt    great  use    to  people    who 
cculd   not  take  green  wood.       He  could 
not  say   whether   the    claim  for    £2.500 
damages  for  cutting  the  trees  was  a  fair 
one ;    he  had    no    knowledge.       He    was 
actaiainted    with   the   gardeii.s,    but    not 
with    the  grazing   ground.     Of    dry   ainl 
wet   erven,   there    were    127   in    all;    all 
tho  erf-holders  had  a  right  to  graze,  but 
they  had  not  all  rights  to  cut  wood  on 
the  Adendorp  side  of  the  river.      Sinw 
tho   Municipality    had    taken    possession 
of   most  of  the    ground    nobouy     couhl 
take   wood    in    the    Adendorp       portion 
without  a  permit  from  the  Municipality. 
At  Rouvierville  and  Retreat  the  peop'lo 
went   under  the  old  condition  that  tliev 
Cf  uld    take    wood    on    the    bank    of    the 
river.       Wood   was   retiuisitioned  by  the 
military  during  the  war;   the  wooa  was 
such  as  was  marketable. 

Re-examined :  Mr.  KingwellV  wagoiih 
took  the  wood  to  Graaff-Reinet.  The 
first  protest  was  sent  in  on  the  25rd 
August.  1903,  signed  by  ten  ratepayers, 
and  the  second  one  also  signed  by  rat<*- 
payers  was  sent  in  on  the  followiiig  De- 
cember, when  the  Council  held  a  meet- 
ing, and  refused  it.  And  tho  protest 
was  sent  in  in  1904,  and  in  November  a 
public  meeting  was  called  to  dii^cuss  the 
case  against  the  defendant.  Twenty- 
four  ratepayers  were  present,  Mr.  King- 
well  tendered  £25,  £6  and  costs,  and  it 
was  carried  by  twenty-two  to  two  not 
t->  accept  the  tender,  and  authorising 
the  commissioners  to  proceed  as  they 
thought  fit.  In  all  there  were  fiftv-six 
ratepayers  in  the  Municipality.  They 
were  all  ratepayers  at  tho  meeting, 
although  he  could  not  give  the  names. 
He  would  not  say  that  Mr.  Swanepoel 
pressed  the  meeting  not  to  accept  the 
defendant's  tender. 

Stephanus  Swanepoel,  chairman  of  the 
Adendorp  Municipality,  said  he  had 
lived  in  Adendorp  for  ten  years.  Be- 
fore 1901  the  commonage  was  in  good 
condition,  and  overgrown  with  trees  and 


106 


<( 


GAPE  TBIES"   LAW  REPOfetS. 


bushes,  which  wore  Kood  foud  for  stock. 
Trees,  shrubs,  and  biiahofe  wcro  cut 
down  by  the  defendant.  Anything  that 
yxd^i  fit  for  firewood  was  cut,  aiid  as  a 
coi.sei|uencc  the  veld  had  deteriorated, 
and  Kone  back,  because  the  greater  wirt 
of  Iho  big  tr<H>s  was  cut  away.  Ilis 
neighbour,  Bishof,  had  since  1901  been 
iu:ying  wood  from  Boysen,  a  farmer. 
IIo  did  not  know  where  Bishof  had  pre- 
viouMy  got  his  wood  from.  He  con- 
sidered that  the  commonage  had  not 
bt'C-n  improved  by  the  defendant's 
actions;  cattle  had  now  to  be  taken 
away  which  could  formerly  he  grazed 
on  the  commonage. 

Cruss-examined  by  Mr.  Schreiner : 
Thev  had  ra.in  at  Adendorp  a  few 
months  ago,  but  before  then  years  had 
elapsed  since  they  had  had  a  snowstorm 
or  a  heavy  fall  of  rain.  lie  had  only 
b<  ught  three  loads  of  wood,  during  the 
pa.^t  six  years;  he  had  got  dry  wood 
from  the  bank  of  the  river  opposite  the 
erf  to  his  bou.se,  and  had  also  used 
green  wood  from  fruit  tree©  in  his  gar- 
den. 

Mr.  Schreiner:  If  the  Municipality 
are  so  particular  alwut  protecting  trees, 
why  did  they  cut  down  the  trees  along 
th'»' water  furrow? 

Witness:  Because  the  trees  ol>structed 
tho  water.  The  water,  witness  added, 
had  been  polluted  by  coloured  [people 
living  in  the  neighbourhood.  It  was 
necessary  to  cut  down  the  trees  to  t^top 
this  nuisance.  Witness  was  friendly 
with  Mr.  Kingwell ;  he  did  not  enter  a 
protest  OS  an  erf-holder  when  Mr.  King- 
well  commenced  to  cut  down  the  trees. 
Witness  had  not  known  until  reoentlv 
that  there  was  a  difference  in  the  condi- 
tions as  between  Adendorp  and  the  vil- 
lages of  Rouvierville  and  Retreat,  He 
did  not  remember  whether  Mr.  King- 
well  had  told  iiim  that  he  had  not 
known  of  any  difference  betwe<»n  the 
condition*?  of  sale  of  erven  in  Adendorp 
and  the  other  villages.  Donkeys,  goats, 
and  mules  were  grazed  largely  on  the 
commonage. 

Re-examined:  Prior  to  the  cutting 
down  of  the  ti'ees  during  a  drought  they 
could  keep  on  the  erven  1,000  small 
stock,  and  about  120  head  of  large  stock  ; 
now  they  could  only  graze  500  or  600 
small  stock  and  alx)ut  25  head  of  cattle. 
Swanepoel  (recalled)  stated,  in  reply  to 
;Mr.  Burton,  that  the  erven  along  the 
iianks  of  the  river  at  Rouvierville  and 
Retreat  extended  between  2,500  and 
3,000  yards.  Stoltz  had  ten  or  eleven 
erven  of  a  morgen  each  at  Rouvierville. 
Stoltz  was  present  at  the  meeting,  and 
voted  on  the  24th  November. 

Cross-examined  by  Mr.  Schreiner:  He 
could  not  give  a  list  of  the  people  pre- 
sent at  the  meeting,  but  he  was  positive 
that  Stoltz  put  up  his  hand.  Stoltz  had 
two  homesteads  on  the  erven,  and  it 
was  witness's  opinion  that  the  tenant 
in  the  fieoond  house  could  also  take 
wood. 


By  Muasdorp,  J.:  All  the  trees  with 
the  exception  of  the  thorn  tree  were  not 
considered  as  firewood. 

Hepdrick   Jacobus  Marais,    a    member 
of   the   Adendorp   Municipality,      stated 
that  as  long  as  he     could  remeral>er   he 
lived  in  the  Municipality.       Prior  to  this 
case  he  never  knew  of  any   destruction 
on  the  commonage  where  he  had  looked 
after    his    father^s    stock    for   years.     In 
any  of  the  previous  droughts  they  wore 
always  able  to  maintain  the  stock  with- 
out removing   them.        From    a   grazing 
IKjint  of  view  the  bush  veldt  was   four 
times  as  valuable  as  the  Karoo      bush. 
When   Kingwell  started  cutting      down, 
witness,    in    his       pre«encej       protested 
against   it.       It  was  the  opmion  of  wit- 
ness   that  if    the    defendant    could    cut 
down  thorn  trees  he  oould  alao  cut   the 
plum  trees     and     bushes,     and     witness 
would   suffer  in      conseouence.       Subse- 
quently, he  asked  the  defendant  to   sell 
back  t"he  land  to  the  Municipality,    but 
Kingwell    was   not  inclined  to   do  so   at 
that   moment,      stating      that      he    was 
cutting   down   the  wood,    as   he  wanted 
work    for    his    donkeys.        The    smaller 
trees      and  bushes  were   cut   down,  and 
tracks    were  made   across   the   veldt    for 
the  wagons  to  remove  the   wood.        All 
the  wood  capable  of  being  used  as  fire- 
wood  was  cut  down  in   the  bush   veldt. 
The  shorter  bush  was  good     food  for  email 
as  well  9M  large  stock.     When  rain  came 
down   grass  grew   under   the  trees,    but 
now  it  did  not  seem  to  thrive.      He  had 
to   feed   part   of   his  stock,    and  ho    had 
other    people,   a    thing    he    had       never 
known   before. 

Cross-examined  by     Mr.     McGregor: 
He  heard  many  years  ago  trees  were  cut 
down.       Where  the  tracks  were     made 
bushes  had  been  cut  down. 

Mr.  Naude.  a  dairyman,  stated  that 
before  the  cutting  down  of  trees  in  the 
present  case  he  was  allowed  to  take  fire- 
wood, but  now  he  had  to  go  to  a  piece 
of  ground  which  he  hired  from  the 
Municipality  of  Graaff-Reinet.  In  his 
opinion  the  defendant  cut  things  that 
were   useful   and   some    that    were    use- 

Cross-examined  by  Mr.  Schreiner :  The 
useless  stuff  was  cut  to  clear  the  ground. 
Generally  what  the  defendant  cut  was 
the  useful  wood. 

Cornelius  Swanepoel,  agriculturist, 
living  at  Adendorp,  stated  tnat  he  was 
employed  by  the  defendant  to  cut  wood, 
lie  was  employed  in  March,  1901,  and 
he  continued  until  July,  1901,  during 
which  time  he  cut  down  114  loads. 

Cross-examined    by    Mr.       Schreiner : 
The  defendant  did  not  specially  say    to 
cut  the  large  trees ;   he  told  him  to  cut 
everything    right    and    left    as    he    went 
along. 

Ferdinand  Myburgh,  carpenter  at 
Adendorp,  stated  that  he  was  employed 
by  the  defendant  for  a  year  cutting 
wood.  He  was  fairly  constant  at  the 
work,  and  in  all  he  cleared  about  a 
hundred  and  four  loads.    The  defendant 


"CAPE  TIMES"   LAW  REPORTS. 


97 


the  sick  man  was,  and  afterwards  used 
for  the  trial.  It  does  not  seem  to  have 
occurred  to  any  one  present  to  have 
iDterrogatoriea,  and  the  first  proposal 
was  to  have  a  Commission  to  take  evi- 
deooe.  The  Magistrate,  however, 
found  that  that  would  not  be  legal,  and 
accordingly,  when  an  application  was 
subiiequently  made  to  him  to  adjourn 
his  Court  to  the  residence  of  the  plaintiff, 
not  for  the  purpose  of  the  trial  of  the 
case,  but  for  the  purpose  of  taking  the 
evidence  of  this  man  who  would  pro- 
bably die  within  a  very  short  time  the 
defendant  objected.  The  Magistrate, 
hiiwever,  allowed  it  to  be  done,  and 
notice  was  given  to  the  defendant  and 
his  attorneys  of  the  day  on  which  the 
evidence  would  be  ta^ken.  The  defen- 
dant's attorneys  protested  that  it  was 
utterly  illegial,  and  when  the  examina- 
tion of  the  plaintiff  took  place,  defen- 
dant refused  to  take  any  further  part 
in  the  proceedings,  and  he  refused  to 
anpear  at  the  subseciuent  stage  when  the 
case  was  re-adjourned  to  the  Court  at 
Mount  Ayliff.  Now,  the  point  is 
whether,  assuming  it  to  have  been  an 
irregularity,  was  it  such  a  gross  irregu- 
larity as  would  justify  the  Court  now  in 
fietting  aside  the  proceedings  altogether? 
I  am  by  no  nieans  satisfied  that  it  is  a 
^roas  irregularity,  but  the  law  certainly 
IS  obscure.  It  would  appear  that  the 
law  in  regard  to  the  Transkeian  terri- 
tories does  not  specifically  require  that  a 
place  shall  be  fixed  where  the  Court  is 
U)  be  held  in  the  same  way  as  the  Acts 
relating  to  the  Magistrate's  Courts  of 
the  Colony,  but  I  tliink  it  is  unneces- 
sary to  decide  tlie  point  whether  a  Magis- 
trate in  the  Transkeian  territories  has  tho 
power  exercised  in  mo  prese^nt  case,  for 
the  simpie  reason  that  the  defendant, 
ill  my  opinion,  has  altogether  mistaken 
the  course  which  he  ought  to  have 
adopted.  If  he  refused  to  appear  at 
the  taking  of  the  evidence  of  the  plain- 
tiff, he  ought  at  all  events  to  have  ap- 
peared at  the  re-adjournment,  and  if  ne 
coniiidered  that  the  evidence  was  illegal 
he  ou^iit  to  have  objected  to  the  ad- 
missibility of  the  evidence,  and  have 
given  his  own  evidence.  If  then  the 
Court,  upon  the  whole  of  the  evidence, 
had  given  judgment  for  the  plaintiff, 
and  the  defendant  could  have  shown 
that  the  evidence  of  the  plaintiff  had 
been  illegally  taken,  and  that  without 
such  evidence  there  was  no  case  against 
the  defendant,  there  might  have  been  a 
good  ground  of  appeal.  But  instead  of 
taking  that  obvious  course  the  defend- 
ant refused  to  appear  at  all,  and  now 
moves  the  C*ourt  to  set  aside  the  whoJe 
of  the  proceedings  on  tho  ground  of  gross 
irregularity.  Without  the  plaintiff's  evi- 
c^nce  there  was  sufficient  evidence  to 
justify  the  Court  in  calling  upon  the 
defendant  to  support  his  defence  by 
evidence.  It  is  impossible,  therefore,  to 
hold  that  the  irregularity— if  such  it 
was — was    so  gross  as  to  invalidate    the 


whole  of  the  proceedings.     The  applica- 
tion must  be  refused  with  costs. 
Buchanan,  J.,  concurred. 

[Applicant's  Attorneys:  Zietsman  and 
Bosnian  ;  Respondent's  Attorneys :  Find- 
lay  and  Tait.] 


PHILIPfl  V.  NUOQOZA.         }  Fcb.^mh. 

Promissory    note       Signature  — 
Mark — Witnesses. 

It  1 8  no  valid  defence  to  an 
action  on  a  promissory  note 
aif/ned  irith  his  mark  by  the 
maker  (Ivat  the  mark  is  attested 
by  only  one  icifness. 


This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  willow- 
vale  in  an  action  brought  by  the  ap- 
pellant, R.  G.  Philips,  against  the 
respondent  to  recover  £54  10s.,  with  in- 
terest from  the  6th  October,  the  amount 
of  a  promissory  note  made  and  signed 
by  the  defendant  in  favour  of  the  plain- 
tiff. Mr.  Gardiner  was  for  the  ap- 
pellant (Philips) ;  there  was  no  appear- 
ance for  the  respondent. 

Mr.  Gardiner  said  that  in  the  Court 
below  exception  was  taken  to  the  sum- 
mons by  the  respondent,  on  the  ground 
that  there  was  only  one  witness  to  the 
mark  of  the  maker,  and  not  two,  as  by 
law  required.  The  exception  was  up- 
held, the  Magistrate  stating  that  his 
reason  for  judgment  was  that  the  mark 
should  be  attested  by  two  witnesses. 
Counsel  submitted  that  there  was  no  law 
re(|uiring  two  witnesses  to  a  mark  on  a 
promissory  Tiote,  and  that  the  Magistrate 
was  clearly  wrong. 

De  Villiers,  C.J. :  The  Magistrate,  in 
my  opinion,  clearly  erred  in  his  judg- 
ment. The  exception  taken  wavS 
that  there  is  only  one  witness  to  the 
mark  of  the  maker,  and  not  two,  as  by 
law  required.  Then,  the  answer  to  that 
was  tliat  there  is  no  law  which  requires 
two  witnesses  to  a  mark.  The  result 
would  be,  if  the  defence  were  allowed, 
that  a  man  might  for  valuable  considera- 
tion give  a  promissory  note  signed  by 
himself  with  his  undoubted  mark,  and 
3'et  escape  liability,  because  it  is  not  duly 
attested.  Cleorlv  such  is  not  the  law. 
The  duty  of  tho  Magistrate  was  to  have 
given  tho  plaintiff  an  opportunity  of 
proving  that  the  mark  was  the  mark  of 
the  defendant.  If  k  is  his  mark  then  it 
is  his  signature  by  which  he  binds  him- 
self to  pay  the  amount  of  the  note. 
The  appeal  must,  therefore,  be  allowed, 
with  cosfts  of  appeal,  and  the  case  will 
be  remitted  to  the  Magistrate  to  be  de- 
cided on  its  merits,  and  also  for  deci- 
sion as  to  the  costs  in  the  Court  below. 

[Appellants    Attorneys:     Walker    and 
Jacobsohn.] 


108 


CAPE  TiMES"   LiVW  llEl>OftTS. 


Charleit  August  Nober  stated  he  sold 
the  ground  in  1902  to  the  Municipality. 
The  pasturage  was  fairly  good,  but  not 
the  best.  L^st  week  he  saw  the  ground, 
and  noticed  that  where  the  mimosa  trees 
had  been  on  the  river  bank  the  voung 
growth  was  very  ^ood.  With  ail  due 
rovS]>ect  to  the  witnesses,  he  did  not 
think  the  ground  could  bear  one 
sheep  per  morgen. 

Cross-examined  by  Mr.  Burton :  The 
trees  cut  down  in  1901  showed  some  signs 
of  growing  again.  The  military  des- 
troyed several  trees  along  the  bank  of 
the  river. 

Mr.  Boisson  (recalled),  in  answer  to 
Maasdorp,  J.,  said  that  ho  did  not  think 
it  was  putting  too  high  an  average  when 
hu  said  that  three  sheep  could  be  main- 
tained on  a  morgen.  He  did  not  do  it 
on  his  own  farm. 

Ernest  Johannes  Ste^ihanus  Janssen, 
B  member  of  the  Municipal  Council  for 
twenty  years  up  till  fourteen  months  ago, 
stated  that  in  his  father's  time  all  the 
wood  along  the  bank  of  the  river  was 
cut  down.  The  wood  was  cut  down  for 
sale.  The  trees  grew  up  after  that, 
and  there  was  another  big  cutting  about 
1878,  and  the  trees  had  grown  again. 
It  would  have  been  more  beneficial  if 
the  trees  had  been  cut  down  before 
Kingwell  did  go.  A  neighbouring  far- 
naer  cut  down  the  wood  every  eight  or 
nine  years,  and  the  trees  always  grew 
again.  He  could  not  detect  any  ill 
effects  to  the  grazing  since  the  defendant 
cut  down  the  trees.  The  last  couple 
of  years  had  produced  the  most  severe 
drought  he  had  ever  remembered.  The 
donkeys  were  more  numerous  now  than 
before  the  defendant  L)ought.  Witnessrs 
passed  through  the  veld  very  often, 
and  he  noticed  no  useless  wood  cut  down 
for  firewood.  Witness  saw  no  new 
roads  formed.  As  regards  the  use  of  the 
firevyood,  although  ho  had  been  a  Com- 
mi-ssioiior  for  twenty  years,  he  never 
knew  there  were  any  different  rights  of 
grazing,  or  that  the  Rouvierville  people 
had  greater  rights  than  those  of  Aden- 
dorp.  If  cattle  were  sent  away  it  was 
on  account  of  the  prickly  pear  over- 
running the  place. 

Cross-examined  by  Mr.  Burton :  The 
defendant  had  treated  Adendorp  like  a 
good  Christian ;  he  assisted  everyone  in 
the  village.  Had  it  been  his  property 
he  would  have  cut  down  the  wood  long 
ago,  as  it  would  have  benefited  the  graz- 
ing. Witness  pointed  out  to  the  Coun- 
cil that  they  had  no  right  to  the  wood, 
and  urged  them  to  get  counsel's  opinion. 
When  witneirr*  proposed  that  the  defen- 
dant should  be  proceeded  against,  he 
did  not  mean  the  Council  to  do  so  with- 
out counsel's  opinion. 

Re-examined  by  Mr.  Schreiner:  The 
Council  had  given  up  the  idea  of  trying 
to  get  rid  of  the  prickly  pear.  He 
could  not  say  whether  he  had  been  over 
the  veldt  when  he  made  the  proposi- 
tion to  proceed  against  the  defendant; 


he  took  his  information  from  the  report 
which  showed  that  the  veldt  was  in- 
jured. 

Cornelius  Erasmus  stated  there  was 
not  much  pasturage  before  the  rain. 
The  cutting  had  given  more  space,  and 
after  rain  there  was  more  grass,  and 
the  mimosas  came  up  in  great  numbers. 
There  had  been  a  terrible  drought  dur- 
ing the  past  couple  of  years. 

Cross-examined  by  Mr.  Burton :  Ho 
only  came  to  Adendorp  shortly  before 
the  war.  He  did  not  sell  his  eattlo 
because  there  was  insufficient  food  for 
them  to  eat. 

William  Jacobus  Voster  stated  that 
before  the  defendant's  tinie  he  cut  along 
the  river,  and  also  up  in  the  veldt. 
During  the  defendant's  time  he  did  the 
principal  part  of  the  cutting.  He  only 
cut  wood  that  was  useful  for  the  mar- 
ket. He  was  paid  by  the  load,  and  it 
would  take  a  long  time  to  pack  a  load 
of  the  smaller  bush. 
Mr.   Schreiner  closed   his  cafi6 

Mr.  Burton  submitted  that  the  (|ues- 
tions  which  were  now  le»ft  for  decb>ion 
would  be  very  largely  questions  first 
as  to  the  measure  of  damages,  and, 
secondly,  what  was  the  actuad  amount; 
of  damage  which  has  been  suffered  by 
the  municipality  and  erf-holders  of 
Adendorp  by  reason  of  the  operations 
of  the  defendant  in  the  cutting  of  the 
wood  on  the  grazing  land.  The  plain- 
tiffs withdrew  claims  (b)  and  (c)  m  t4ie 
dec-laration.  feeling  tliat.  in  view  of  the 
evidence,  they  could  not  press  this 
part  of  the  declaration.  The  two  sub- 
:>tantial  matters  now  before  the  Court 
wcie.  first  of  all,  the  claim  in  regard 
to  the  injury  done  to  the  rights  of  the 
erf-holders  of  Rouvierville  and  Retrea4; 
by  the  cutting  of  firewood,  and,  sec- 
ondly, the  question  of  the  damage  done 
to  tiie  rights  of  the  erf -holders  of  the 
municipality  in  the  way  of  their  graz- 
ing riglits.  On  the  former  part  of  the 
claim— i.e.,  a.">  to  the  cutting  of  wood — 
the  defendant  made  a  tender  of  £30  as 
damages.  This  tender,  counsel  sub- 
mitted, was  hopelessly  inadequate.  On 
the  other  question,  viz.,  of  grazing 
right>,  the  defendanrt  made  no  tender. 
Cbunscl  proceeded  at  some  length  to 
review  the  evidence  led  in  the  course 
of  the  hearing,  and  submitted  that  Ft 
was  clear  that  the  plaiutiffb  had  suf- 
fered substantial  damages.  He  ad- 
mitted that  it  was  extremely  diflicuU 
TO  say  how  much  that  damage  was. 
The  defendant  had  made  a  profit  of 
£1.000  out  of  the  wood  ihwt  he  had  cut. 
down  on  the  land.  He  had  oversteppiHl 
his  rights  to  a  serious  extent,  and  the 
erf-holders  were  entitled  to  substantial 
compen.f<ition. 

Mr.  Schreiner  entered  at  some  length 
into  an  analysis  of  the  rights  of  the 
erf-holders  in  so  far  as  De  Erf  was 
conocrend  as  disclosed  by  the  sets 
of  conditions  drawn  up  in  1855 
and   1856.      He  was  sure   that   the    way 


I< 


CAPE  TIMES"   LAW  REPORTS. 


99 


jugal  ngfata,    failing  which,  divorce,  by 
reason    ol   her   xnfthcious  desertion. 

The  declaraticm  set  out  that  the  parties 
were  married  at  Moasel  Bay  on  the  29th 
April.  1873,  out  of  community  of  pro- 
perty;. There  were  six  children  of  the 
marriage  surviving  two  of  wliom  were 
minors.  The  defendant  maliciously 
deserted  the  plaintiff  in  March.  1904. 

Mr.  P.  S.  T.  Jones  wan  for  the  plain- 
tiff, the  defendant  had  been  barred  from 
pleading. 

Wm.  Thomas  Birch,  clerk  in  charge 
of  the  marriage  registers"at  the  Colonial 
Office,  gave  evidence  as  to  the  registra- 
tion of  the   marriage. 

Mr.  Jones  appli^  for  the  postpone- 
ment of  the  case,  in  view  of  the  non- 
srrival  of  an  affidavit  sworn  by  the 
plaintiff  in  support  of  his  case. 

The  defendant  appeared  in  person,  and 
said  she  wished  to  explain  that  she  left 
her  hueband  becaii.''e  he  did  not  support 
her.  and  had  not  supported  her  for  five 
ye«ra.  She  had  a  letter  from  thp  plain- 
tiff, in  which  he  said  he  would  not  t^ike 
her  back  again.  Witness  resided  in 
town. 

Maasdorp.  J.,  advised  the  defendant  tc 
appear  when  the  case  was  again  called. 
The  case  was  postponed  nw  die. 


HKYDKNBYCH  V.  K&AMB. 

Security  ^ven  by  wife — Hejia!m 
consul  turn  Vellrjam, 

This  was  an  action  brought  by  Ben- 
jamin G.  Hoyden rych,  financier,    of  Ob- 
servatory-road,  against      Mrs.       Frame, 
wife  of  Alexander  K.  Frame,  of     Wvn- 
borg,  to  whom    defendant  was  marned 
out  of  community,  to  recover  a  sum  of 
£146  9s.,   with     interest   from  the     5th 
l'<>braarv,  1896,  upon  a  promissory  note. 
Tho  declaration  set    out  that  on    the 
Z5th  April.  1904,     plaintiff  sued  tho  de- 
fendant in   this  Court  upon     two     pro- 
mi*sory  notes  for  £146    9s.  and  £19  10s.. 
with  interest.       The  latter     claim     waw 
settled  by  defendant,  after  issue  of  sum- 
mons and  before  tho  hearing;  but  upon 
the     former    claim,   tho   Court  ordered 
plaintiff  and  defendant  to  go  into     the 
principal  case,    costs  to  bo  oosts  in  the 
canse.      On  the  5th  February,  1896,     de- 
fendant was,   and   still  is,  indebted      to 
plaintiff  in  the  sum  of  £146    93.,  as  and 
for  money  lent  and   advanced  to      her, 
and  on  the  same  date  he  received  from 
her  the  promissory  note  now  sued  upon. 
Defendant  failed  and  refused  to  pay  the 
said  sum.      Alternatively,  plaintiff    said 
that  on  the  5th  February,  1896,  defendant 
wan  indebted  to  him  in  the  sum  of  £146 
98.,  and  on  that  date  she  undertook     to 
repay  the  said  sum,  with  iinterest.       She 
refused  and    neglected  to  pay    the  said 
sum,   wherefore  plaintiff    claimed     pay- 
ment of  the  note,  with    interest  from  the 
5th  February,  1896,  and  costs. 


• 
Defendant,  in  her  plea,  admitted  the 
formal  allegations,  except  that  she  craved 
leave  to  refer   to   the  annexure  for  the 
true  construction  of  the  acknowledgment 
of  debt.       Prior  to  the  5th     February, 
1896,  the  plaintiff  had  from  time  to  time 
advanced   to  the   defendant's      husband 
Alexander     Kay  Frame  various  sums  of 
money,  against  which  indebtedness  pay- 
ments were    made  from  time  to  time  by 
the    said   Alex.   K.    Frame.         Amongst 
the  moneys  so  advanced  is  the  amount  of 
£200,    advanced  on  the  2nd    December, 
1893,     for    which    the   plaintiff    received 
from  the  said  A.  K.  Frame  an  acknow- 
ledgment for  £230,  beinp  for  capital  and 
interest.        Defendant  signed   tne    same 
as  surety  for  and  on  behalf  of  her  said 
husband,  and     not     otherwise.       Defen- 
dant's husband,  by  payments  made  from 
time  to   time,   reduced  the  amount     to 
£146  9s.,  for    which  balance    an  acknow- 
ledgment of  debt  was  given  and  signed 
by  defendant  as  surety  for   her  husl^md, 
and   not  otherwise.       Defendant  at     no 
time  received  any     consideration     from 
and  out  of  the  said  acknowledgment,  and 
was  not  a  public  trader,  and  when  she 
signed  the  said  acknowledgment  as  sure- 
ty  for  her      hu.«band    as  aforesaid,    the 
meaning  and  effect  of  the  benefits     and 
exceptions  which  she    purported  therein 
and  therobv  to     renounce  were  not  ex- 
plained to  her  by  a  notary  or  at  all,  nor 
did  she  understand     the  same,  and   the 
said  exception  of  the    scnaius    conmltum 
vellejani  was  hereby  ooposed  to     plain- 
tiff's  claim  as  against  her.       On  the  5th 
March,   1896,      £300,    and  on   tho     26th 
March,  £55  14s..  were  paid  by  her  hus- 
band to    plaintiff    in  full  and     complete 
settlement    between    her  hiierband       and 
plaintiff,  and  no  part  of  the  said  sum  of 
£146  9s.  was  due  to  tho  plaintiff. 

Plaintiff,  in  his  replication,  said  he 
denied  that  tho  sum  of  £200  was  ad- 
vanced to  defendant's  husband,  or  th«t 
she  signed  an  acknowledgment  in  re- 
spect to  the  said  sum  as  surety  for  her 
husband  and  without  receiving  any  con- 
sideration therefor.  He  said  that  tho 
defendant  herself  applied  to  him, 
through  her  attorney,  for  a  sum  of  £200, 
and  tne  said  sum  was  advanced  to  her 
and  not  to  her  husband.  He  did  not 
admit  that  the  meaning  and  effect  of  tho 
exceptions  were  not  explained  to  defen- 
dant. As  regarded  tho  alleged  settle- 
ment,  plaintiff  admitted  that  there  was 
a  settlement  between  himself  and  A.  K. 
Frame  in  1896,  but  he  denied  that  tho 
sum  now  in  dispute  was  included  there- 
in. 

Mr.  Burton  (wit!i  him  Mr.  Gardiner), 
for  plaintiff;  Mr.  McGregor  (wit^  him 
Mr.   Upington),  for  defendant. 

Mr.  Burton  submitted  that  the  onus 
lay  upon  the  defendant  to  prove  her 
case. 

Mr.  McGregor  said  he  was  quite  pre- 
pared to  take  the  issue,  and  he  at  onc« 
called 


no 


(( 


OAPE  TIMES"   LAW  REPORTS. 


NETHERLANDS  BANK  V.  H0BBI8. 

Mr.  Van  Zyl  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Order  {^ranted. 


MARSH    AND    BONB    AND    OTHERS    V. 
BDBLSTEIN. 

Mr.  Pyemont  moved  for  the. final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Order  jifranted. 


CAPE  TIMES,  LTD.  V.  HEBMANN  AND 
ANOTHER. 

Mr.  P.  S.  T.  Jones  moved  for  the 
final  adjudication  of  tho  private  estates 
of  the  two  defendants  as  insolvent. 

Order  granted. 


HERMAN  V.  ZIMBI. 

Mr.  M.  de  Villicrs  moved  for  a  decree 
of  civil  imprisonment  upon  an  un- 
satisfied judgment  for  £154,  with  costs. 
Defendant  had  made  an  offer,  which  had 
been  accepted,  but  no  payment  had  l>een 
made. 

Decree  granted,  execution  to  be  sus- 
pended on  payment  by  defendant  of 
£5  a  month  for  three  months,  after- 
wards £10  a  month,  first  payment  on  the 
28th  February. 


DBMPBRS    AND    VAN    RYNEVBLD     V. 
M  ELM  AN  AND  SEOALL. 

Mr.  Van  Zyl  moved  for  provisional 
.««entenco  for  £200,  with  interest,  due  on 
a  mortagag<e  '  bond,  the  bond  having 
f)ecome  due  by  reason  of  tlie  non-pay- 
ment of  interest.  Counsel  aJso  asked  for 
property  special Iv  hypothecated  to  be 
declared  executaole. 

Order  granted. 


WAL.SH  AND  WALSH    V.  SADLER. 

Mr.  Gardiner  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £7,000, 
with  interest,  the  bond  having  become 
due  by  reason  of  the  non-payment  of 
interest,  and  for  £24  for  quit  rent,  and 
£32  money  advanced ;  counsel  also  asked 
for  the  property  specially  hypothecated 
to  l)o  declared  executable.  Service  was 
by  edicital  citation.  There  were  two 
parties  to  the  bond,  judgment  having 
already  been  obtained  against  the  other 
party,  Erskine. 

Order  granted. 


B0S80UW  V.  VIKTOB. 

Mr.  Gardiner  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £200 
with  interest,  the  lx)nd  having  become 
due  by  reason  of  the  non-payment  of 
interest  and  of  notice  given.  Counsel 
also  applied  for  the  property  specially  hy- 
pothecated to  be  declared  executable. 

Order  granted. 


DU  TOIT  V.  STEYN. 

Dr.  Greer  moved  for  provisional  sen> 
tenoe  on  a  mortgage  bond  for  £1.200, 
le««  £250  paid  on  account,  with  interest, 
the  lx)nd  having  become  due  by  reason 
of  the  non-payment  of  interest.  Coun- 
S«>1  also  applied  for  the  property  specially 
hynothecated  to  bo  declared  executable. 

Order  granted. 


PABOW  V.  COOHBANE. 

Mr.  Lewis  moved  for  provisional  sen- 
tonco  for  £5.000,  with  interest,  due  on 
a  mortgage  bond,  the  bond  having  l^e- 
come  duo  by  reason  of  the  non-payment 
of  interest.  Counsel  ako  asked  for  pro- 
perty specially  hypothecated  to  b©  de- 
clared executable. 

Order  granted. 


RETNHOUD  V.  ZWAIOENHAFT. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  ujion  a  mortgage  bond  for 
£700,  with  interest,  the  bond  having  be- 
come duo  by  reason  of  the  non-payment 
of  interest;  counsel  also  asked  for  the 
property  specially  hypothecated  to  be 
deelared  executable. 

Defendant  applied  for  a  postponement 
to  enable  her  to  realise  the  property,  or 
to  pay  the  arrear  interest. 

Provisional  sentence  granted,  with 
costs,  no  further  execution  to  follow  if 
interest  due  bo  paid  within  one  week. 


FBNNBLL  V.  GILCHRIST. 

Mr,  Swift  moved  for  provisional  sen- 
tence upon  a  mortgage  bond  for  £150, 
with  interest,  the  rxmd  having  become 
duo  by  reason  of  the  non-payment  of 
interest;  coun.sel  also  asked  for  the  pro- 
perty specially  hypothecated  to  lie  de- 
clared executab1«w 

Order  granted. 


PERROTT  AND  CO.  V.  BBUCKMANN. 

Mr.  Close  moved  for  provisional  fien- 
tence  on  a  promissory  note  for  £250, 
with  interest  and  costs. 

Order  granted. 


"CAPE  TIMES"   LAW  REPORTS. 


Ill 


CELLinS  V.  MIXKAAB  AND  ANOTHER. 

Dr.  Rainsford  moved  for  provisional 
sentence'  aRainst  the  maker  of  a  promis- 
sory note  for  £338  5s.,  with  interest  and 
po-ta. 

Order  granted. 


DUITUB  AND  CO.  V.  TOBIAS. 

ProTuional  nentence — Promissory 
note — ^Excussion  of  principal 
debtor. 

Mr.  Gardiner  moved  for  provisional 
sentence  on  an  acknowledgment  of  debt 
Uk-  £58,  balance  upon  the  sale  f)f  cer- 
tain bor^Mvt,  with  interest. 

Mr.  Close  (for  tKo  defendartt)  read  an 
aiMwering  affidavit,  by  his  client,  who 
ni>i  that  not  only  did  he  owe  the  plain- 
tiffs nothing,  but  they  owed  him  £16 
for  a  mule.  Counsel  read  supporting 
affidaTits  by  Berman  and  Carn,  to  the 
pffeft  that  the  cl&im  had  been  settled. 

Mr.  Gardiner  read  a  replying  affi- 
davit hj  D'Arcy  Weaver,  manager  r>f 
the  plaintiff's  horse  bazaar,  who  denied 
that  the  promiaaory  note  given  by  one 
Do  VillierB  had  been  accepted  in  full 
rettlement  of  the  purcha-se  price  of  the 
horb«;— £93    10s.     De    Villiers    gave       a 

ftromissory  note,  but  it  appeared  unlike- 
y  that  taey  would  be  able  to  secure  any- 
thinjr  on  it.  Berman.  whose  estate  had 
since  been  seciuestrated,  was  the  pur- 
chaser of  tho  horses.  The  defendant 
had  already  been  given  credit  for  the 
price  of  the  mule.  The  claim  had  aico 
been  reduced  £20  by  reason  of  a  pay- 
ment. 

Mr.  Close,  having  been  heard  in  argu- 
ment on  the  facta, 

Buchanan,  J.  :  Two  defences  have 
been  set  up  to  the  claim  for  provisional 
sentence.  The  first  defence,  which  has 
been  set  up  by  the  defendant  himself,  is 
one  of  fact,  namely,  that  he  has  paid 
the  debt.  The  second  defence  is  one 
^  law  raised  by  his  counsel,  and  is  that 
the  defendant  is  only  a  surety,  and  that 
the  prim^pal  debtor  has  not  been  ex- 
nwed.  As  to  the  defence  on  the  facts, 
it  is  alleged  that  the  plaintiff  accepted 
»  pTomissorv  note  aigried  by  one  De 
Villiers  in  full  settlement  of  the  debt. 
From  the  documents  before  me,  how- 
<'Ter.  I  think  that  the  plea  of  payment 
has  failed.  De  Villiers*  promissorv  note 
did  not  fully  cover  tho  debt,  the  plaintiff 
»js  he  riTeived  it  only  aa  a  collateral 
aecuritv  and  that  it  has  not  been  paid : 
•nd  the  correspondence  showed  tha* 
l^intiff  had  asked  defendant's  instruc- 
tions as  to  taking  legal  proceedings 
against  De  Villiers.  Under  these  cir- 
cumstances, I  cannot  accept  defendant's 
version  as  against  tho  plaintifTs,  suppor- 
ted, as  the  plaintiff  is,  by  the  documents. 
The  legal  exception  is  taken  by  counsel 
that  there  has  been  no  cxciw^ion  of  the 
principal   debtor,   Berman.       There    are 


facts  which  might  be  gone  into  to  show 
that  excussion  is  not  necessary  under  the 
special  circumstances  oif  this  case,  but  at 
present  it  is  a  sufficient  answer  in  law 
that  the  principal  debtor  has  become 
insolvent,  and  has  surrendered  liis 
estate.  The  defence  on  the  facts  and 
on  the  law  having  failed,  provisional 
sentence  will  be  granted  as  prayed,  with 
costs.  Of  course,  it  is  open  to  the  par- 
ties to  go  into  the  principal  case,  if  they 
chose  to  do  so. 


FIELD  V.  IMPRY. 

This  was  an  application  for  provisional 
sentence  on  a  cheque  for  £50,  signed  by 
the  defendant,  Mrs.  Impey. 

The  affidavit  of  Dr.  Samuel  P. 
Impcy  stated  that  he  saw  one  Rade- 
meyer  in  regard  to  a  mare  at  Clare- 
mcnt.  He  did  not  purchar^  the  animal, 
which  proved  to  be  Field's.  Subse- 
(inentiy.  the  mare  again  came  under  his 
notice"  at  Kaimemeyer'a  mart,  and  ho 
eventually  effected  a  purchase  on  the  re- 
presentations  of  Kannemoyer  and  Rade- 
nicyer  that  the  animal  waa  sound.  He 
foi-nd,  however,  that  the  mare  lacked 
staying  power,  and  appeared  to  tire  very 
easily,  and,  in  consequence  of  a  report 
by  a  veterinary  surgeon,  he  repudiated 
th.3  sale.  The  cheuue  was  made  out  by 
Mrs.  Impey.  Affidavits  by  veterinary 
surgeons  were  read  to  the  effect  that  the 
mare  was  suffering  from  disease  of  the 
heart  and  deformed  hocks,  one  of  the 
deponents  stating  that  he  had  previously 
examined  tlie  animal  while  she  was  in 
the  possession  of  Rademeyer  for  a  client, 
ai.d  that  he  refused  to  pass  her  as  sound. 

An  answering  aifidawt  by  an  em- 
ploye of  the  plaintiff  stated  effect  that 
tho  mare  had  l)een  omployed  on  trying 
work,  .ind  had  worked  well.  An  aflB- 
duvit  by  Mr.  Kannemeyer  denied  that 
he  had  guaranteed  to  the  defendant 
that  the  horse  was  sound.  The  plain- 
tiff, in  an  affidavit,  denied  that  he  had 
gi\en  a  guarantee  or  authorised  anyone 
else  to  givo  a  guarantee.  He  drove  the 
horse  regularly  for  five  months,  and  the 
only  fault  he  had  to  find  with  her  wa.^ 
that  she  shied  at  trams.  An  affidavit 
by  Rademeyer,  a  horse  dealer,  stated 
that  he  was  not  the  agent  of  the  plain- 
tiff in  the  matter  of  tho  sale.  lie 
bought  the  horse  from  the  plaintiff,  and 
received  no  guarantee  for  it. 

Mr.  Searle.  K.C-.  (with  him  Mr.  Rus- 
sel)  for  plaintiff.  Sir  11.  Juta,  K.C.,  for 
defendant. 

Sir  H.  Juta  submitted  that  it  was  be- 
side the  mark  for  tho  plaintiff  to  say 
that  Kanr>emoyer  was  not.  his  agent.  The 
only  consideration  that  Mrs.  Impev  gf»t 
for  this  note  was  the  sale  to  her  husband. 
He  submitted  that  upon  affidavits  the 
(*ourt  could  not  decide  where  the  truth 
lay 

Without  calling  upon  Mr.  Searle, 


112 


"CAPK  TIMES"   LAW  REPORTS. 


Buchanan,  J. :  If,  as  counsel  argues, 
the  sale  was  effected  solely  by  Kanne- 
meyer,  it  follows  that  he  is  the  only 
person  that  could  have  given  a  guarantee 
of  soundness.  Kannemeyer  positively 
denied  that  he  ever  gave  such  a  guaran- 
tee, or  that  he  was  authorised  to  give 
such  a  guarantee.  The  horse  was  sold 
and  delivered  some  days  before  tlie  post- 
dated cheque  was  sent  by  defendant  to 
plaintiff,  and  it  was  only  the  day  before 
the  cheque  was  to  be  presented  that  the 
defendant  repudiated  tlie  sale.  Under 
these  circumstances,  and  in  the  absence 
of  a  guarantee,  pri visional  sentence  must 
be  given,  with  costs.  The  parties,  if 
they  chose,  may  go  inito  the  principal 
case. 


DUN  LOP  TYRK  CO.  V.  8TBYN. 

Mr.  P.  S.  T.  Jones  moved  for  provi- 
sional sentence,  for  £536  12s.  4d.,  less 
two  sums  of  £493,  and  £50  pjaid  on  ac- 
count, on  a  certain  undertaking,  with 
interest,  and  for  judgment,  under  Rule 
329d.  for  £5  lOs.,  costs  of  wmimons. 

Order  granted. 


FRIEDMAN  V.  PIETBR8. 

Dr.  Greer  moved  for  provisional  sen- 
tence on  an  unsatisfi<>d  Judgment  of  the 
Resident  Magistrates  Court,  for  £12 
15s.  9d..  with  taxed  costs,  and  for  certain 
pro|>erty,  to  be  declared  executable. 

Order  granted. 


MUNICK  V.  PIETERS. 

Dr.  Greer  moved  for  provisional  sen- 
tence on  an  unsatisfied  judgment  of  the 
R.M.'s  Court,  for  £12  4a.  lOd.,  with 
taxed  cofit.s,  and  for  property  to  be  de- 
clai-ed  executable. 

Order  granted. 


SWART  V.  PIETERS. 

Dr.  Greer  moved  for  provisional  sen- 
tence on  an  un.satiHfied  judgment  of  the 
R.M.'s  Court  for  £21  6s.  4d.,  with  taxed 
costs,  and  for  property  to  be  declared 
executable. 

Order  granted. 


ILLIQUID   ROLL. 


8E ARIGHT   V.  DIBB  AND  CO 


f        190"). 

I  Feb.   ICih. 

Mr.  P.  S.  T,  Jones  moved  for  judg- 
ment, under  Rule  329d.  for  £55  6s.  lid., 
balance  of  account. 

Order  granted. 


BARROW  DOWUNG  V.  LOVEGROVE. 

Mr.  Sutton  moved  for  judgment,  un- 
der Rule  329d,  for  £50,  less  £5  paid  on 
account,   being  rent  due. 

Order  granted.    . 


CARROLL  AND  CO.  V.  ARMSTRONG. 

Dr.  Rainsford  moved  for  judgment, 
under  Rule  329d,  for  £56  198.  5d., 
balance  of  account,  with  interest  a 
tempore  moraf.  and  costs. 

Order   granted. 


HEROLD  AND  00.  V.  LANBDOWNE  UOUBB 
ESTATE  GO. 

Mr.  Sutton  moved  for  judgment,  un- 
der Rule  329d.  for  £156  8.^.  3d.,  with  in. 
terest  a  tempore  morae  and  costs. 

Buchanan,  J.,  said  he  believed  that 
the  estate  had  been  placed  under  liquida- 
tion, and  no  judgment  could  be  granted 
in  that  event 

The  matter  was  ordered  to  stand  over 
for  iTiquiries. 


DEMPERS  AND  VAN  RYNKVELD  V.  ZACKS. 

Dr.  Greer  moved  for  judgment,  under 
Rule  329d,  for  £28  6s.  lOd.,  with  interest 
and  costs. 

Order  granted. 


KALK  BAY  MUNICIPALITY  V.  EXECUTORS 
ESTATE  BEHR  AND  OTHERS. 

Mr.  P.  S.  T.  Jones  moved  for  judg- 
ment, under  Rule  329d,  for  £165  8s.  lOd.. 
less  £124  Is.  9d.,  being  owners'  rates  due 
on  property  at  Muizenberg. 

Order  granted. 


ESTATE  ALEXANDER  V.  JUBB. 

Mr.  Alexander  moved  for  judgment, 
under  Rule  329d,  for  £60,  ivnt  due,  and 
for  a  certain  rul»  nisi  to  be  made  abso- 
lute. 

Order  granted. 


JACOBS  AND  CO.  V.  MILLVB  AND  CHIAT. 

Mr.  Upington  moved  for  judgment  in 
default  of  plea,  under  Rule  319,  for 
£775  15s.  9a.,  in  terms  of  conditions  of 
sale,  with  interest  a  tempore  morae  and 
costs. 

Judgment  granted,  with  costs,  includ- 
ing costs  of  application  to  attach  landed 
property  sold  to  defendants, 


"CAPE  TIMES"  LAW  REPORTS. 


113 


GENERAL  MOTIONS. 


HILLIEB  Y.  HILLICR. 


/        1905. 
(Feb.   16th. 


Mr.  Van  Zyl  said  thai  i>]aintiff  had 
claimed  for  restitution  of  conjug-al  rights, 
and  obtained  a  rule  calling  on  the  de- 
fendant to  return  on  or  before  Ist 
January,  or  to  show  cause  by  the  1st 
February  why  a  decree  of  divorce  should 
not  be  granted.  Personal  seryice  had 
been  effected,  and  there  was  no  appear- 
ance. - 

Rule  made  absolute. 


the  preferent  claim  over  certain  eight 
donkeys.  The  claim  for  preference  over 
the  donkeys  failed,  and  the  proof  of  debt 
must  be  declared  as  only  concurrent  in 
regard  to  the  claim  upon  the  promiasory 
note,  and  for  which  the  donkeys  were 
security.  There  would  be  no  order  at 
to  costs. 


IBTATE  WEIDEM AMK  V.  DE  VILLIEB8. 

This  was  an  application   by  a  trustee 
for  an   order    amending    certain    proof 
of  debts.     Tiic    respondent    put    m    a 
pn^ierent    claim,    and    it    was    accepted 
by  the  Resident    Magistrate    of   Rich- 
mond  at  a  second    meeting    of    credi- 
tois  by  virtue  of  a  deed  of  hypotheca- 
tion for  £150      on    a  promissory   note 
P««ed  by  the  insolvent  and  his  brother, 
and  £46  15s.   6d.    in  respect  of  certain 
«ight     donkeys    alleged   to  be  held    as 
•eourity,    and    to    remain    his   property 
until  paid  for.      The  application  was  to 
mske  the  rnponent  rank  as  a  concurrent 
creditor.      The  affidavit  of  Carl   Paul, 
the  sole      trustee,       set    out    that    the 
rvspondent  claimed    £75  in  respect  of  a 
«rtain  promissory   note   for   £150    and 
f  u      •  ^      ^'  appeared  from  the  deed 
^'hypothecation  that  the  debts  secured 
•lU  covered  were  the  joint  debts  of  the 
^Ivent   and    A.   C.    Wiedemann,    but 
wpoaent  denied  that  they  were  covered 
tbflreby. 

The  affidavit  of  the  respondent  set  out 
u»t  the  claim  for  £76  was  half  the  in- 
solvent'  liability  in  the  joint  note  signed 
07  his  brother  and  himself.  They 
"ped  the  note  jointly  and  severally. 
Ine  respondent's  brother  bought  four- 
teen donkeys  for  deponent's  account, 
and  he  paid  for  them.  He  then  sold  the 
donkevs  to  the  insolvent  and  his  brother, 
and  they  passed  the  promissory  note, 
jointly  and  severally,  bmding  themselves 
™  the  donkeys  would  remain  depon 
^ws  property  until  paid  for.  The 
donkevs  were  specially  mentioned  in  the 
hypothecation,  because  he  thought  the 
«««or3  might  pay  for  the  donkeys  in 
wjiich  case  they  would  have  to  be  ac- 
«>unted  for. 

vf^'o  ^OM  was  for  the  applicant,  and 
Mr.  Searle,  K.C,   was  for  the     respon- 

Hounsei  having   been   heard    in    argu- 
■ent, 

Buthanan,  J.,  said  it  was  clear 
that  the  creditor  was  entitled  to 
tne  benefit  of  the  deed  of  hypotheca- 
tion. He  thought  that  the  application 
Ij^ttrike  out  the  preferent  claim  of  his 
deed  of  hypothecation  altogether  failed. 
The  trustee  also  clajme^  to  strike  out 

I 


Kg  parte  COLLINS. 

Mr.  Upington  moved  for  leave  to  with- 
draw the  surrender  value  of  a  certain 
policy  upon  the  life  of  her  husband.  The 
surrender  value  of  the  policy  was  £93 
odd,  after  providing  for  the  loans  ob- 
tained bv  her  husband.  The  application 
was  for  leave  to  withdraw  the  surrender 
value  from  the  Colonial  Mutual  Society, 
without  the  consent  of  the  trustees  under 
the  ante-nuptial  contract,  who  had  dis- 
appeared. The  Master  recommended 
that  fresh  trustees  should  be  appointed. 

Buchanan,  J.,  said  that  it  would  bo 
necessary  to  appoint  a   fresh    trustee  to 

five  the  petitioner  authority  to  with- 
raw  the  surrender  value  of  the  ptflicv. 
Order  granted,  appointing  Mr.  W.  t 
Buissinne  as  trustee  under  the  ante-nup- 
tial contract,  with  authority  to  realise 
the  policy  for  the  beneficiaries  under  the 
ante-nuptial  contract. 


INHAMBINB  OIL    SYNDICATE    V.    MBARS 
AND  FORD. 

Mr.  Schreiner,  K.C.  (with  him  Sir 
H.  Juta.  K.C),  moved  for  leave  to  at- 
tach certain  1,000  shares  in  the  plaintiff 
company,  ad  fundandam  jurisdiriionfm, 
and  for  leave  to  sue  by  edictal  citation 
in  an  action  in  which  the  plaintiffii 
claimed  £50,000  damages,  and  forfeiture 
of  all  and  any  rights  which  tlie  defend- 
ants might  have  in  the  said  shares. 
Defendants  were  resident  at  Johannes- 
burg. 

Leave  to  sue  by  edictal  citation  crrant- 
ed.  citation  to  be  served  personally,  and 
to  be  returnable  on  the  first  day  of  next 
term. 


/>  partf    ALLENGENSKY. 

Mr.  P.  S.  T.  Jones  moved  for  a  cer- 
tain rule  nisi  under  the  Derelict  Lands 
Act  to  l)e  made  absolute. 

Order  granted. 


JSx  parte  hbbadibn. 

Mr.  P.  S.  T.  Jones  rnoved  for  leave  to 
have  amended  a  certain  transfer  deed 
relating  to  property  at  Somerset  East. 

Order  granted  as  prayed. 


DAVIDS  V.  BXECUTOR  BSTATE  DAVIDS. 

Mr.  P.  8.  T.  Jones  moved  for  an  order 
rec^uiring  the  respondent  to  si^n  the  r«- 


114 


"CAPE  TIMES"   LAW  REPORTS. 


quisiie  papera  and  documents,  to  enable 
the  applicant  to  realise  and  pass  transfer 
of  certain  immovable  property,  situate 
in  Jordaan-street,  Cape  Town,  belon^- 
ing  to  the  e«tate  of  the  petitioner  and  his 
deceased  wife.  A  certain  transfer  deed 
had  been  lost. 

Order  granted,  with  costs,  requiring 
the  respondent  to  sign  the  necessary  de- 
claration, to  enable  petitioner  to  ootain 
a  certified  copy  of  the  lost  transfer  deed. 


GLOETB  V.  DIEPBAEH. 

Mr.  Upington  moved  for  a  certain  rule 
nisi,  restraining^  the  defendant  from  dis- 
posing of  certain  landed  property,  pend- 
ing an  action  to  be  made  absolute,  with 
costs. 

Rule  made  absolute. 


BASSON  V.  BECK. 

Mr.  Gardiner  reported  on  the  applica- 
tion •  for  leave  to  defend  in  forma 
wiujurisy  and  moved  for  a  rule  nisi  to 
bo  issued,  calling  upon  respondent  to 
show  cause  why  applicant  should  not 
have  leave  to  defend  in  forma  pawperis. 

Rule  nisi  granted,  to  be  returnable  on 
Thursday  next  (23rd  instant.) 


BONDOM  V.  SONDOM. 

Mr.  J.  E.  R.  de  Villiers  moved  for 
leave  for  applicant  to  sue  by  edictal  cita- 
tion for  divorce  in  forma  pauperi»,  cita- 
tion to  be  returnable  on  the  1st  April, 
notice  of  trial  at  the  Circuit  Court  at 
Aliwal  North  to  be  served  at  the  same 
time  as  citation. 

Order  granted. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Chief  Justice  (the  Rieht 
Hon.  Sir  J.  H.  DB  Villiers,  P.O., 
K.C.M.G.,  LL.D.).] 


TRIAL  CAUSES. 


MCGREGOR  Y.  MCGREGOR 


(        1905. 

•   (Feb.    17th. 


Divorce — Forfeiture  of  benefits — 
Division  of  joint  estate. 

In  aciimiH  for  divorce^  ivherp 
the  parlies  have  heeyi  married 


in  community,  but  the  plain- 
tiff  has  not  contributed  anything 
to  the  common  property ^  divi- 
sion of  the  joint  estate  and  not 
forfeiture  of  benefits  should  he 
claimed. 


This  was  an  action  brought  by  Beatrice 
Pctronella  McGregor,  of  Ospe  Town, 
against  Alexander  McGregor,  butcher. 
<>tpe  Town,  for  divorce,  oy  reaaon  o! 
the  defendant's  adulterjr.  for  alimony, 
custody  of  the  minor  cliildren,  and  for- 
feiture of  the  benefits  of  the  marriage. 
Dr.  Greer  waa  for  the  pladntiff.  Defen- 
dant  had  been  barred  from  pleading, 
but  Mr.  Gutsche  appeared  for  him  on 
the  question  of  alimonv. 

Beatrice   Petronella   McGregor       (the 

Slaintiff)  said  she  was  married  to  the 
efendant  in  community  of  property  on 
the  Ist  November,  1892.  There  wer'3 
three  children  of  the  marriage.  De- 
fendant was  very  intemperate  from  \h& 
beginning  of  their  married  life.  In 
consequence  of  certain  information  iThi';li 
came  to  her  knowledge  laat  year,  she 
had  inquiries  instituted,  as  a  result  of 
which  sue  ceased  to  cohabit  with  the 
defendant  in  October  last.  Mr.  Finn, 
a  jeweller,  of  Adderley-street,  called  at 
the  house  in  respect  of  certain  jewellery 
that  Mr.  McGregor  had  bought.  Wit- 
ness knew  nothing  about  the  jev:<4lery. 
Her  husband  had  been  assistaut  man- 
ager of  De  Boers  Cold  Storage,  at  a 
suary  of  £50  a  month.  He  owned 
landed  property,  and  about  a  year  ago 
he  told  witness  that  he  was  worth  be- 
tween £9,000  and  £10,000.  Witness 
desired  to  have  custody  of  the  children 
and  maintenance  from  the  defendant. 
She  also  desired  forfeiture  of  the  bene- 
fits of  the  marriage  in  community. 

[De  VilUers,  C.J. :  Did  you  bring  any 
property  to  tihe  marriage?] 

Witness:  No. 

[De  Villiers,  C.J. :  What  is  there  to 
forfeit  then?] 

Dr.  G-reer:  We  claim  half  the  pro- 
perty 

[De*  ViHiera,  C.J. :  You  donH  at  all ; 
It^ere  is  no  p^rayer  to  <t!hat  effect.  Tou 
claim  a  forfeiture,  and  you  brought  no 
property  into  the  marriage.  If  you  had 
a^ked  for  a  division  of  the  joint  pro- 
peiTty  I  could  ha/ve  understood.] 

Dr.  Greer  aeked  for  leave  to  substi- 
tute for  the  prayer  for  forfeiture,  a 
prayer  for  the  division  of  the  joint 
estate. 

De  Villiers,  C.J.,  assented  to  tiie 
amendment  of  the  prayer  aooordinglv. 

Mr.  Gutsohe  made  an  offer  on  behalf 
of  the  defendant. 

Witness  said  she  would  prefer  to  have 
a  division  of  property,  defendant  to  pay 
the  costs  of  the  suit. 

Mr.  Gutsche  said  he  was  instructed 
that  the  defendant's  salary  at  the  Cold 
Storage  had  never  beeq  above  £30     i^ 


"CAPE  TIMES"  LAW  REPORTS. 


115 


month,  with  a  oommission.  on  the  live- 
Etock  lApded.  Defendant  was  at  pro- 
sent  out  of  employment. 

A  joung  womaTi  named  Frances 
Htrna,  of  Palace  Chambers,  gave  evi- 
dence as  to  the  adultery. 

Percy  E.  J.  Crockett,  manager  of 
Jamiegon  Chambere,  said  that  defen- 
dant  and  the  last  witness  came  to  the 
Chambers  and  <x?cupied  a  double-bedded 
To<iin  for  a  few  weeks. 

This  concluded  the  case  for  the  plain- 
tiir. 

Defendant  said  that  ho  valued  his 
property  at  about  £3,000.  Ho  was  will- 
injf  to  pay  plaintiflF  £5  a  month  at  pre- 
sent for  the  support  of  his  children; 
when  he  was  hi  employment,  he  would 
par  more. 

Decree  of  divorce  granted,  with  costs. 
Mr.  G.  \V.  Steytler  being  appointed 
rpceiver  to  divide  the  property  held  in 
community  equally  between  the  plain 
tiff  and  defendant.  The  Court  further 
ordered  that  the  plaintiff  should  havo 
the  custody  of  the  children  of  the  mar- 
riage, defendant  to  have  access  to  them 
at  all  reasonable  times  and  places; 
defendant  to  pay  the  sum  of  £3  a  month 
for  the  maintenance  of  eaoh  child  until 
soch  child  reaches  the  age  of  sixteen 
yean. 


TROTT  V.  THOTT. 

Partnership  —  Account  —  Partici- 
pation in  profits. 

This  was  an  action  brought  by  Charles 
Trott.  of  Cape  Town,  against  his  brother, 
Robert  Trott,  of  Johannesburg,  for  a 
dedaration  of  rights  under  an  alleged 
paitoershdp. 

From  tShe  pleadings  it  appeared   that 
ibe   plaintiff  mied    Inh    brother    for     a 
declaration  that    they  were  partners   in 
business,    for  an    account,    for      debate , 
and  for  the  appointment   of   a   receiver 
and  division  of  the    property.       It  was 
Ijleged  that  in  1899  the  plaintiff  was  in 
England,  and  that  his  brother  wrote  to 
lum  from    this  country,   and    said    that 
Jji^re  was    business    to    bo    done    here. 
Plaintiff  came  out  here,  and  thereupon 
they  started  business  together    as  Trott 
Brothere,   and    carried    on   the   business 
for  some  time.      No  deed  of  partnership 
was  entered  into;   they   carried  on    the 
partnership  and      went      into      various 
transaotions.        The      banking     account 
in   the    meantime     was     in  the    name 
of  the  defendant,  who  had  been   carry- 
ing on  business  before  the  plaintiff    ar- 
nved  in  this  country,  and  so   for  the  pur- 
pOMs  cf  finance,  that     bankinpf  account 
ocmtinued  as  it  was.      The  plamtiff  held 
a  power  of  attorney  from  the  defendant. 
Eventually  the  defendant  went  to  Natal 
<nd  enteted  into  business,  and  also  went 
to  Johannesburg  and  entered    into  busi- 
ness there.  There  were  a  couple  of  cases  in 
vhich  the  parties  sued  and  wore  sued, 
m  which  the  defendant,  in  his  evidence, 


admitted    that    he  was  a  partner  of  the 
plaintiff  las  late  as  August,  1904.     Some 
time  during  last  year  it   appeared   that 
the   defendant,  at  Johannesburg,  began 
to  speculate  rather   heavily     in      scrip, 
which  brought  about  unpleasantness  be- 
tween the  two  brothers,  the    defendant 
eventually   taking    up  the  position  that 
the      plaintiff      was      not      a      partner. 
The  dofendant,   in  his  plea,  denied  the 
allegations  of  the  plaintiff.        He     said 
that  there  was  one  transaction — the  pur- 
chase of  certain  prc^erty — in  which  thoy 
were  partners,  and  tnat  for  the  rest  thoy 
wore    not   partners   at  all.  and  that  the 
plaintiff  was    a  salaried    servant  in   his 
«-mploy.      He,  on  his  part,  claimed  from 
the  plaintiff  sums    of   money   which   ho 
had  drawn,    and  which    the     defendant 
Raid  tliat  ho  (plaintiff)    had  no  right  to 
draw 

Sir'  H.  Juita,  K.C.  (with  lirm  Dr. 
Raansford),  for  plaintiff;  dofondan't  in 
penson. 

Defendant  objected  to  the  plaintiff  put- 
ting in  any  documents.  He  stated  that 
he  (defendant),  was  served  with  a  dis- 
covery order,  and  he  disclosed  all  the 
documents  that  he  had.  He  served  a 
similar  order  on  the  plaintff's  attorneys, 
but  he  received  no  answer. 

Sir  H.  Juta  produced  the  record  in 
the  case  of  Saachs,  Chiat  and  Co.  v. 
Trott  Bros.  (11  C.T.R.,  721),  and  also 
fhe  summons  in  the  case  of  tho  Table 
Bay  Harbour  Board  v.  Troit  Bros. 
Defendant  asked  if  the  documents  had 
been   admitted. 

Do  Villiers,  CJ.,  said  thaft  the  records 
in  the  previous  casos  had  boon  admitted. 
Defendant  explained    that    tlie      cases 
wer.^  commenced  by  plaintiff  in  his  ab- 
sence from  Cape  Town. 

Charles  Albert  Trott,  the  plaintiff,  said 
he  came  out  to  this  country  in  Novem- 
ber, 1899,  at  the  invitation  of  the  defend- 
ant, to  join  him  in  the  business  of  pro- 
duce merchants.  They  were  proposii\g 
to  supply  the  transports.  In  May,  1901, 
they  opened  a  store  in  Waterkant-street. 
An  action  was  brought  against  them  by 
Saachs,  Chiat  and  Co.,  in  respect  of 
certain  eggs,  etc.,  supplied  by  the  plain- 
tiffs. The  banking  account  was  in  the 
name  of  R.  Trott.  His  brother  explained 
that  this  difficulty  could  always  be  ar- 
ranged by  a  power  of  attorney.  They 
also  bought  a  property  in  April,  1903,  in 
Chiappini-street.  It  was  transferred  to 
the  name  of  the  defendant.  His  brother 
thought  that  if  trouble  arose  afterwards, 
he  would  be  able  to  assign  or  cede  the 
property  to  some  one  else  by  a  deed  of 
gift. 

[Do   Villiers,    C.J. :     You    agreed    to 
that  arrangement ?] 

Witness:  I  had  not  much  stake  in  the 
matter. 
Did  you  agree  to  this  armngement? 
Witness:  Yes,  he  Ihad  not  received 
any  salary  from  the  defendant. 
In  January  or  February,  1903,  de- 
fendant went  to  Natal,  and  entered  into 


116 


"CAPE  TIMES'*   LAW  REPORTS. 


partnership  with  one  Kolter.  Moneys 
wero  remitted  to  that  business  from  Cape 
Town  to  the  extent  of  about  £4,000.  The 
partnership  of  Kolter  and  Trott  was  dis- 
BoWed,  but  witness  had  had  no  account. 
Li  Durban,  the  business  was  to  purchase 
military  stores,  and  money  was  frequent- 
ly remitted  from  Cape  Town.  In  Jo- 
honnesburg  they  disposed  of  the  military 
stores  from  Durban.  In  May  last  year 
tito  defendant  asked  for  money  from 
Cape  Town  several  times,  and  kept  them 
short  of  money  here.  Witness  was  at 
that  time  in  Port  Elizabeth.  Defendant 
came  down  to  Cape  Town,  and  began 
to  sell  off  the  stock.  He  had  also  with- 
drawn the  power  of  attorney.  In  the 
course  of  last  year,  witness,  on  behalf  of 
Trott  Bros.,  sued  one  Maisel  in  respect 
to  a  largo  transaction  in  suits.  (14 
570,  705).  Witness's  brother  grave  evi- 
dence in  that  case.  Witness  gave  eyi- 
denoo  in  regard  to  other  transactions,  in 
which  he  said  that  they  were  carrying 
on  a  partnership. 

During  the  hearing  of  the  case,  some 
question  was  raised  as  to  whether  a  set- 
tlement could  not  be  arrived  at. 

Defendant  said  that  he  had  offered 
£1,000  to  the  plaintiff,  to  be  paid  when 
he  was  in  a  position  to  realise  his  int-erest 
in  valuable  properties  in  Johannesburg. 
At  present,  he  was  not  in  a  position  to 
pay  the  plaintiff  anything,  because  as  an 
asset  the  properties  were  not  at  present 
worth  twopence  to  him. 

Sir  H.  Juta  said  that  the  defendant 
might  cede  half  his  interest  to  the  plain- 
tiff. 

Defendant  said  he  had  no  right  to  enter 
into  any  agreement  of  cession  of  his 
interest  in  the  Johannesburg  properties 
at  present,  but  he  believed  that  in  four 
or  five  years  the  properties  would  be 
worth  a  good  deal  of  monejr. 

Witness  was  cross-examined  at  sonie 
length  by  the  defendant.  Witness  said 
ho  bought  three  racehorses  for  over  £300 
upon  a  bill,  payable  at  90  days.  He  ran 
the  horses  and  backed  them.  The  horses 
were  afterwards  taken  by  defendant  to 
Johannesburg. 

While  the  cross-examination  was  pro- 
ceeding, 

His  Lordship  interposed,  and  asked 
Sir  H.  Juta  whom  he  would  suggest  as 
a  receiver,  because  it  seemed  to  him 
that  the  work  would  be  a  very  onerous 
one. 

Sir  H.  Juta  mentioned  the  names  of 
Mr.  Nash,  Mr.  Gibson,  or  Mr.  Close.  He 
added  that  he  did  not  think  there  would 
be  any  difficulty  in  ascertaining  what 
were  the  partnership  matters. 

Witness  was  questioned  in  regard  to  a 
telegram  that  defendant  said  he  sent 
frona  Johannesburg,  asking  that  an  ad- 
vertisement should  be  put  in  the  "Cape 
Times "  as  to  his  having  discontinued 
business  under  the  style  of  Trott  Bros. 
Defendant  put  it  to  witness  that  he  went 
to  his  (defendant's)  wife,  and  snatched 
tjie  telegram  from  her  hand. 


Witness :  No,  I  did  not. 

By  the  Court:  Witness  did  not  think 
that  Hiere  would  be  above  £22  worth 
of  property  when  he  joined  the  business. 
When  witness  came  here,  the  defendant 
was  a  fish  dealer.  He  had  been  unable  to 
find  the  letter  sent  to  him 
by  defendant,  asking  him  to 
come  out  to  this  country.  Witness  had 
been  a  reader  on  the  press  in  London, 
and  had  made  from  three  to  five  guienas 
a  week. 

Defendant  informed  the  Court  that  he 
used  to  be  a  member  of  the  East  End 
Shoe  Black  Society  when  the  plaintiff 
was  born,  and  that  he  used  to  have  a 
box  outside  Yauxhall.  He  afterwards 
went  to  the  United  States,  and  was  there 
for  a  good  number  of  years.  He  returned 
to  England  and  got  married.  The  plain- 
tiff, not  satisfied  with  being  his  brother, 
married  his  (defendant's)  wife's  sister, 
and  thus  became  his  brother-in-law  as 
woll  as  har>  brother. 

Sir  H.   Juta  closed  his  case. 

\Vm.  Elliott,  of  the  Bank  of 
Africa;  Mr.  Verster,  local  manager  of 
the  Federal  Company,  and  Mr.  Water- 
meyer,  attorney,  having  given  evidence. 

Defendant  said  he  had  always  traded 
as  Trott  Bros.  He  put  in  fetters  to 
show  that  he  never  received  an  order 
from  or  took  counsel  with  his  brother, 
but  always  told  his  brother  what  he 
should  do,  and  gave  him  orders.  He 
also  put  in  letters  to  show  that  defend- 
ant had  carried  on  business  for  himself. 
He  submitted  that  there  had  never  been 
a  partnership.  He  declared  that  during 
his  absence  the  plaintiff,  while  in  charge 
of  the  Cape  Town  business,  lost  heavily 
and  '*  went  behind "  to  the  tune  of 
£7,000.  Witness,  while  at  Durban, 
made  £16,000  or  £17,000.  Plaintiff 
never  said  he  was  a  partner  until  the 
27th  August  last,  when  he  had  got  into 
difiiculties  with  tlie  business  he  had  been 
carrying  on  at  Plumstead.  Wh?n 
plaintiff  arrived  in  the  Colony,  witness 
had  a  balance  of  £175.  Plaintiff  has 
been  paid  £18  a  month  aa  wages,  with 
£15  a  month  to  meet  out-of-pocket  ex- 
penses. 

De  Villiera,  C.  J. :  The  real 
question  to  be  decided  is  wlietlier 
fhere  hae  been  a  partnership  be- 
tween plaintiff  and^  defendant  in  the 
conduct  of  the  business  of  Trott  Bros. 
In  my  opinion,  it  is  clearljr  established 
that  there  was  a  partnership  between 
th'3  parties,  and,  if  any  doubt  cxist^^d 
upon  the  point,  that  doubt  would  be 
dispelled  by  the  evidence  which  the  de- 
ifendant  hamefelC  gave  on  oafch.  I 
cannot  assume  that  the  defendant  would 
have  sworn  a  falsehood  as  to  the  exist- 
once  of  a  partnership  if  none  had  exited. 
The  defendant  now  eays  tliat  the  plain- 
tiff was  merely  a  salaried  clerk.  If  that 
wore  so,  I  snould  have  expected  some 
entry  in  the  books,  which  fiave  been  pro- 
dticed  showi^ng  payments  of  salary  to  the 
plain-tiff,  but,  instead  of  tdmt,  t'hepUinti^ 


''CAH  TMeS"  law  REt>0ttT8. 


lit 


limply  appears  to  have  drawn  mouey  aa 
kthoagnt  fit.      All  the  facta  in  the  pru- 
lent  ca&e  seem  to   mo  to  support  the  ex- 
istence of  a  partnership.       If  that  be  so, 
then  the   plaintiff    i^  entitled   to   an    ac- 
count, and   he  is  entitled  to  the  appoint- 
ment   of    a    receiver    and    liquidator  for 
tbo  purpose    of   lie]  ui  da  ting    the   partner- 
ship estate.        At    this   stage,  it  is      not 
necpSRary    for  the    Court    to  decide  mtHo- 
ther  the  Natal    business   belongs  to  that 
pirtnership     or     not.        That   will  be    a 
matter  for   the  receiver  to  inquire  into. 
Judf^ment  will  be  given  as  prayed,  with 
nwts.  and  the   Court  will  appoint  a   re- 
ceiver and    liquidator    to  divide    the  afi- 
eeis  of    the    partnership    of  Trott  Bros 
equally  between  plaintiff  and  defendant 
1*.  win    then  be    for    the  receiver  to  as- 
certain  what  assets   belong  to  that  par- 
ticular partnership.     As   to  the  appoint- 
ment oi    a   receiver,  I    should  wish  the 
parties  to  ceme  to  some  agreement. 

pefendan^  said  he  did  not  wish  to  ap- 
point a  receiver.  Ho  preferred  that  the 
niatter  should  be  dealt  with  by  hi<»  lord- 
ship. He  was  without  means  at  present. 
His  Lordship :  But  are  there  no  assets 
in  the  partnership  estate? 

Defendant :  Absolutely  none ;  I 
shntild  not  be  here  to  conduct  my  own 
ckse  if  there  had  been.  I  have  nothing, 
ami  I  know  my  brother  has  a  bit  lea*,  as 
far  as  that  is  concerned.  I  believe  my 
furniture  would  make  about  £24  more 
than  his. 

Sir  H.  Juta :  There  is  a  syndicate 
share  that  is  going  to  be  worth  £15,000 
i'l  a  year  or  two,  according  to  the  do- 
ffndant.  Counsel  mentioned  the  names 
of  certain  accountants  to  whom  the  nMtt- 
tT  roiild  be  referred. 

His   Lordship   said       that   the    Toiirt 
»nild  appoint   Mr.  Gibson    as    receiver    * 
f?iHn«r  him,  Mr.   Na^h,  and      the   costs 
must  be  paid  by  the  defendant. 


riKLD  AKD  CO.  V.  AN  NEK  BERG. 

Mr.  Gardiner,  with  the  leave  of  the 
Ccurt,  applied  for  the  final  adjudication 
of  the  defendant's  estate  as  insolvent 

Order  granted. 


ifClVOB  V.  REYNOLDS. 


{ 


190.5. 
Feb.   17th. 
18th. 


»f 


This  was  an  action  brought  by  J.  Mc- 
Ii'or,  forwarding  and  commission  agent, 
D<*  Aar.  against  Sidney  Herbert  Key 
no'ds,  general  dealer,  of  Prieska,  to  re- 
citer a  debt  of  £79  Is.  4d.,  forwarding 
charges,  commission,  etc. 

The  plaintiff,  in  his  declaration,  said 
that  the  defendant  was  indebted  to  him 
in  the  sum  of  £96  7s.  3d,  goods  sold  and 
work  and  labour  done,  money  paid,  and 
services  in  and  about  the  forwarding  of 
goods  and  commission.  He  admitted 
thfim  be  had  received  on  acoount  £17    odd, 


leaving  a  balance  due  to  him  of  £79  Is. 
4d.,  for  which  sum  he  claimed  judg- 
ment, with  interest  a  tempore  morae  and 
costs. 

Defendant,  in  his  plea,  said  that,  tak- 
ing into  account  short  deliveries,  double 
agency  fees  which  had  been  charged  by 
plaintiff,  and  an  agreement  made  between 
tho  plaintiff  and  defendant  that  the  fees 
should  bo,  reduced  from  6d.  to  3d.  He 
wai  not  indebted  to  the  plaintiff.  De- 
fendant set  up  a  claim  in  reconvention 
for  £204  4s.  Id.,  less  £74  2.s.  id.,  in 
which  latter  sum  he  admitted  that  he 
was  indebted  to  the  plaintiff. 

Mr.  Gardiner  (with  him  Mr.  DoukIsa 
Buchanan)  wa^  for  the  plaintiff;  Mr. 
Close  (with  him  Mr.  {Sutton)  was  for 
tli:^  deifendaut. 

Mr.  Gardiner,  having  provk>ionalIy 
agreed  to  give  up  the  di.sputed  jHirt  of 
thr»  claim  in  convention,  viz.,  £4  IQs.  3d.. 

De  Villiers,  C.J.,  said  he  would  lay  it 
upon  the  defendant  to  prove  his  case. 

Mr.  Clotio  proceeded  to  call  evidence 

George  Reynolds,  ftcnior  partner  in  the 
finns  of  Howes  and  Reynolds  and  Rey- 
nolds and  Soiv.  carrying  on  business  at 
Prieska  and  Britstown,  gave  evidence. 

During  the  hearing  of  the  crho,  a 
quc6tion  was  raised  as  to  the  reference 
of  a  number  of  small  items  in  dispute  to 
an  accountant,  but  his  lordship  remark- 
ed that  it  seemed  a  pity,  where  there 
was  such  a  comparatively  small  amount 
in  dispute,  to  go  to  the  expense  of  a 
reference,  and  bringing  the  matter  in 
court  again. 

G.  H.  Reynolds,  cross-examined  by 
Mr.  Gardiner,  stated  that  the  marks 
were  not  unreliable  on  these  particular 
goods.  He  would  not  accuse  tlie  plain- 
tiff of  taking  any  sugar  out  of  the 
pockets.  He  did  not  make  inquiry 
about  the  fifty  cases  of  sugar  that  were 
not  deliveredf  in  July.  Ho  contended 
that  the  plaintiff  failed  in  his  duty  when 
he  did  not  compare  the  advice  notes 
with  the  railway  charges. 

Re-examined  by  Mr.  Close :  It  had 
taken  him  months  to  make  up  his  ac- 
count through  the  delay  on  tno  plain- 
tiff's part. 

Sidney  Reynolds,  defendant  in  the 
action,  corroborated  his  father's  evidence 
with  regard  to  the  dealings  with  Mclvor. 

The  statements  of  accounts  rendered 
by  the  plaintiff  conveyed  the  impression 
that  ho  nad  received  the  goods.  \Vitness 
told  the  plaintiff  there  were  bhortagos. 
PTc  did  not  think  that  the  plaintiff  had 
the  number  of  way-bills  he  stated. 

(Voss-examined  By  Mr.  Gardiner:  If 
his  father  diverted  goods  it  would  be 
&hown   in  the  account. 

Mr.    Closie  closed    his   case. 

For  the  plaintiff,  Mr.  Gardiner  called 

William  Todd,  partner  with  the 
plaintiff,  who  stated  that  he  received 
265  baps  of  meal  in  1902,  and  delivered 
them.  On  August  16  he  signed  for  a 
short  delivery  of  one  bag  of  mealies. 
He   did    not    admit   the    receipt   of   368 


118 


K 


CAPE  TIMES*'   LA\V  REPOKTS. 


pockets  of  sug^ar.  The  tanks  were 
originally  kept  back  because  carriers 
refused  to  load  them,  but  ultimately 
they  were  retained  as  security.  The 
railway  regulations  provided  for  pay- 
ment first  with  the  option  of  claiming 
a  refund.  He  did  not  always  get  advice 
notes,  and  had  to  be  guided  by  the 
railway. 

Cross-examined  by  Mr.  Close :  The 
plaintiff  would  be  advised  if  anything 
was  short.  Some  of  the  account«  were 
charged  at  sixpence,  but  some  of  them 
were  adjusted.  There  was  not  consider- 
able trouble  in  getting  the  accounts  out 
of  him,  and  it  was  incorrect  to  sajr  that 
he  made  mistakes.  It  was  not  i.npos- 
sible  for  his  firm  to  lose  ^oods. 

Arthur  Welch,  checker  in  the  C.G.K. 
at  De  Aar,  stated  it  was  his  duty  to  get 
the  receipts  of  goods.  He  could  not 
find  any  receipt  from  Mclvor  for  the 
fifty  pockets  of  sugar. 

Iftir.    Gardiner  closed   his  case. 

Counsel  having  been  heard  in  argu- 
ment on  the  question  of  the  appoint- 
ment of  a  referee, 

Dc-  Villiers,  C.J.,  granted  an  order  as 
follows:  That  Mr.  Nash,  or  failing  him, 
Mr.  Close,  be  appointed  as  referee  to 
check  the  correctness  of  the  accounts 
put  in  by  the  plaintiff  of  meal,  mealies, 
sugar,  and  coffee  received  and  forwarded 
by  hnn,  to  check  the  items  in  the 
schedules  **A;'  (as  amended)  and  "B" 
in  the  claim  in  reconvention,  to  ascer- 
tain to  what  extent  these  items  are  ac- 
counted for  by  the  documents  put  in, 
and  to  check  the  summaries,  the  costs 
to  stand  over. 


SECOND    DIVISION, 


[Before  the  Hon.  Mr.  Justice  Ma  asdorp.  ] 


GENERAL  MOTION. 

In   tr   THE  HSTATB  OF    THE  f         190.5. 
LATE  WILLBM   KBMPBN.      (  Feb.     17lh. 

Dr.  Greer  moved,  as  a  matter  of  ur- 
gency, for  an  order  removing  an  order 
of  sequestration  against  the  estate  a*  the 
executor  dative  was  anxious  to  pass 
iraifsfer.  The  estate  had  been  seques- 
trated in  error  jointly  with  that  of  the 
surviving  spouse.  The  affidavit  of  Mr. 
Van  <ler  By  I  set  out  that  ho  had  made 
a  .Hoarch  in  regard  to  the  e.state,  and  he 
could  iKjt  find  any  sequestration  during 
t!io  di'ceased's  lifptime. 

Maa.*$dor|),  J.,  said  he  would  grant  a 
rulo  fii>t  calling  on  all  persons  interested 
ro  show  cause  why  the  order  of  seques- 
^rrtion  should  not  be  set  a^ide,  the  order 
to  be  returnable  on  the  12th  March,  and 
to  be  published  once  in  the  "  Govern- 
ment Gazette,'*  and  in  a  paper  circulat- 
ing in  the  Carnarvon  district. 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplet  ] 


ALBERTYN  V.  BAS30K.        i  FeK     18tb. 

Sale  and  purchaae  —  SuspenBive 
condition. 

Goodn  sold  under  a  suKpensive 
comlition  remain  Oic  property 
of  the  seller f  evefi  if  delivered 
to  the  jiurchaser^  until  the 
condition  is  fuljiUed. 


This  was  an  action  brought  by 
Casparua  Petrus  Albertvn,  of  Simon's 
Town,  against  Willem  Johannes  Tobias 
Bassuu,  of  Porterville,  to  recover  certain 
two  mules  or  their  value,  £50. 

The  declaration  set  out  that  on  or 
about  the  17th  February,  1905,  plaintitf 
sold  to  one  J.  Kulman  six  mules  for  the 
sum  of  £106,  it  being  agreed  between 
them  that  the  mules  were  to  remain  the 
property  of  the  plaintiff  until  they  were 
paid  for.  Kulman  paid  £40  in  cash, 
and  gave  plaintiff  a  promissory  note  for 
the  balance,  £66,  made  payable  on  the 
30th  April,  1903,  the  condition  that  the 
said  mules  were  to  remain  the  property 
of  the  plaintiff  until  paid  for  being 
repeated  on  the  promissory  note.  The 
mules  were  delivered  to  the  said  Kul- 
man, but  the  latter  had  not  paid  the 
balance  of  the  purchase  price,  and  ho 
had  now  disposed  of  the  said  niulcs, 
and  was  too  poor  to  meet  his  liabilities. 
Two  of  the  said  mules  had  been  traced 
by  the  plaintiff  to  the  possession  of  the 
defendant,  but  he  refused  and  neglected 
to  give  up  the  bame.  Plaintifif  claimed 
return  of  the  said  two  mules  or  their 
value,  £50,  interest  a  tempore  morae, 
alternative  relief,  and  costs  of  suit. 

Defendant,  in  his  plea,  admitted  the 
sale  from  plaintiff  to  Kulman,  but 
denied  that  it  was  agreed  between  them 
that  the  mules  should  remain  the  pro- 
perty of  the  plaintiff  until  they  nad 
been  paid  for.  He  had  no  knowledge 
of  the  alleged  promissory  note,  and  piit 
the  plaintiff  to  proof  of  his  allegations. 
He  said  further  that  he  jpurchascd  cer- 
tain two  mules  from  Christian  Basson, 
and  that  he  was  unaware  that  the  plain- 
tiff had  any  right  in  the  mules.  lie 
praved  that  the  claim  be  dismussod 
with  costs. 

Mr.  Van,  Zyl  for  plaintiff ;  Mr.  J.  E. 
R.  de  Villiers  for  defendant. 

Casparus  Petrus  Albertyn  (the  plain- 
tiff) said  ho  went  to  the  defendant  at 
Porterville,  and  explained  to  him  how 
Kulman  had  got  hold  of  the  mules.  He 
asked  the  defendant  for  two  mules  that 


"CAPE  TIMES'*  Law  ftEi>0tlT8. 


lid 


he  iji«,  luid  idcDtipcd    them   slu  having 

bcm  in  his  possession.     Defendant  said 

tliAt  be  had  Doa^ht  the  mules  from  his 

ffeph«w,    who    had  bought  the  animals 

from  Kolman.      Witness  stated  that  the 

mules  belonged  to  him,   but  Basson  re- 

tuscd  to  ffive  them   U(j.        Witness  told 

Bsuaon    that  he  must  not  give   up  the 

animals     to  any  one  else,   and  that  he 

(H-itoeas)  would  hold  him  responsible  for 

them. 

Cross-examined:  He  sold  the  mules  to 
Kulmau,  while  the  latter  was  at  Simon's 
Town,  having  carried  on  business  there 
as  a  general  dealer.  He  read  over  the 
promissory  note  to  Kulman  at  the  time 
It  was  signed. 

[Hopiey,  J. :  Wh^t  language  does 
Kuinian  speak?] 

Witness:  Tou  can  hardly  tell  what  he 
speaks,  sometimes  he  speaks  English 
and  sometimes  Dutch.      He  is  a  Jew. 

[Hoplev,  J. :   I  suppose  he  will  speak 
both  badly  ?] 
Witness:  Yes. 

Further  cross-examined :  Witness 
found  that  the  promissory  note  was  not 
paid.  He  received  a  letter  from  Kul- 
man's  trustee  offering  hini  6s,  in  the  £. 
H*  went  down  to  Porterville  in  April, 
1903.  just  after  the  note  was  due,  but  he 
vadt  unable  to  find  Kulman.  His  inten- 
tion was  to  fetch  his  mules.  The  first 
intfmation  that  he  had  of  Kulman's  in- 
solvency was  when  he  received  the  offer 
of  Ss.  in  the  £  in  May,  1904.  He  went 
down  to  Porterville  during  the  same 
Donth  in  order  to  recover  his  mules. 
Ho  had  threatened  in  a  letter  to  Kul- 
man to  sue  him,  but  he  had  qot  actually 
taken  proceedinj^s.  Basson  told  him 
that  he  had  paid  £60  for  the  pair  of 
mules  in   question. 

Re-examined :  Witntt^s  refused  to  ac- 
cept the  offer  in  Kulman's  insolvent  es- 
tate. 

Nicolaas  Albertyn  (son  of  tlie  pla-intiff) 
■aid  he  wrote  out  the  promissory  note 
(produced),  and  read  it  over  to  Kulman. 
Kulman  paid  £40  in  cash,  and  signed 
tb<)  note.  He  was  satisfied  that  Kul- 
Jtan  understood  the  document  and  that 
he  knew  the  conditions  perfectly  well 
when  he  took  the  half  dozen  mules  away. 

[Hopley,    J.    (Ito   Mr.    De    Villiers): 
Tbers  seems  to  be  no  dispute  as  to  the 
identfiy  of  the  mules?] 

Witness:  We  don't  know  anything 
aboat  that;  we  know  nothing  as  to  the 
identity  of  the  mules. 

Robert  Christoffel  Laurie,  of  Portor- 
Jille,  said  that  to  his  knowledge  Mr.  Al- 
hertyn  canie  to  Porterville  to  inquire 
sbcut  certain  mules. On  one  occasion  while 
Witness  was  in  Mr.  Alhertyn's  company, 
Mr.  Albertyn  saw  some  mules  in  the 
^Kct,  and  pointed  out  two  that  he  said 
helonjfed  to  him.  On  the  following 
nionung,  they  went  to  Mr.  Basson's 
wrm,  mid  Mr.  Albertvn  picked  out  two 
moles.     Banoo  said  that  he  had  got  the 


mules  from  another  Busaoii  (Chrietian), 
who  obtained  them  from  Kulman. 

Philip  T.  R.  Hodges,  law  agent, 
Simon's  Town,  spoke  to  instructions  that 
he  received  from  the  plaintiff  as  to  re- 
covering the  money  on  the  promissory 
note.  As  to  the  offer  he  received  from 
Mr.  Masterton,  as  trustee  in  the  estate 
of  Kulman,  witness  replied  on  behalf 
of  the  plaintiff  that  he  could  accept  no 
compromise,  and  must  require  imme- 
diate compliance  with  the  note. 

Mr.  Van  Zyl  closed  his  case. 

Joseph  Kulman,  general  dealer,  of 
Porterville.  said  that  he  sold  or  ex- 
changed the  mules  after  the  purchase 
from  plaintiff.  He  did  not  understand 
the  condition  in  the  note  that  the  mules 
were  not  to  be  sold.  He  had  other 
mules  at  his  place. 

[Hopiey,  J. :  You  thought  as  long 
as  you  kept  six  mules  at  your  place  it 
would  be  all  right?] 

Witness:  Yes.  Continuing,  witness 
said  that  sliortly  after  he  had  returned 
to  Porterville  he  exchanged  two  of  the 
mules  with  Christian  Basson  for  a  horse 
and  mule  and  some  money.  He  wont 
away  to  Namaqualand  with  mule<^,  and 
returned  to  Porterville  in  June,  going 
again  to  Namaqualand  a  little  later.  In 
May,  1904,  witness  became  insolvent. 

Christian  Basson,  stock  trader,  said 
ho  was  not  related  to  defendant.  Ho 
spoke  to  the  transaction  with  Kulman, 
in  which  he  gave  a  horse,  mule,  and 
£27  for  two  very  good  mules  that  Kul- 
man had.    This  was  in  March,   1903. 

[Hopley,  J. :  It  did  not  take  Kulman 
long  to  make  £27  out  of  those  mules, 
seeing  that  he  only  got  them  in  Febru- 

Witness  (continuing)  said  he  sold  the 
mules  to  Willem  Basson  for  £60. 

Willem  Johannes  Tobias  Ba^ssou  (the 
defendant),  a  transport  rider,  of  Porter- 
ville, ^aid  that  ho  paid  £60  cash  for  the 
mules.  About  the  end  of  May,  or  the 
commencement  of  June,  he  was  called 
upon  by  Mr.  Albertyn  and  Mr.  Laurie, 
and  the  former  demanded  tlie  two  mules, 
which  witness  had  bought  from  Chris- 
tian Basson.  Witness  told  plaintiff 
that  if  the  mules  were  his,  ana  Chris- 
tian Basson  would  return  the  purchase 
money,  he  would  give  up  the  animals. 
Christian  BasKon  refused  to  refund  the 
money.     Ho  still  had  the  mules. 

[Hopley,  J. :  1  suppose  if  you  lose 
this  case  you  will  come  back  on  Chris- 
tian I3>ahson?] 

Witness:    I  .shall    be  obliged    to. 

[Hopley,  J. :  And  he  will  come  back 
on  Kulman.] 

Mr.  De  Villiers  closed  his  case. 

Mr.  De  Villiers,  having  been  heard  in 
argument  on  the  question  of  the  suspen- 
sive condition  of  the  promissory  note, 
and  as  to  whether  there  had  been  a 
waiver  of  such  condition  on  the  part  of 
the  plaintiff.  Without  calling  on  Mr. 
Van  Zyl. 


120 


"CAPE  TIMES"   LA\V  REtOlltS. 


llopley,  J. :  The  question  raised  in 
fhis  C4i6e  is  not  a  new  one.  It  has  been 
decided  in  several  ca&cA.  a>nd  it  mun^  be 
held  to  be  established  law  that  these 
conditions  are  valid,  and  that  when 
goods  aro  handed  over  by  a  seller  to  a 
purchaser  under  a  suspensive  condition, 
th^  g:o(Kls  remain  in  the  ownership  of 
th3  seller  until  the  condition  is  fulfilled. 
The  cases  quoted  by  Mr.  Do  Viliiers,  of 
Quirk^n  Trusters  v.  lAddells  Assitjrucs 
(5  Jula  322),  and  Faatbooi  v.  ShatCy 
to  which  may  bo  added  the 
ease  to  whidh  I  have  referred, 
Wolfe  V.  liof/rr»,  in  the  Hij*h  CJourt,  all 
establish  that  position  most  clearly. 
What  I  would  say  is  that,  as  a  suspen- 
sive coiulition  attached  to  a  property 
which  has  been  handed  over  to  a  pur- 
chaser opens  the  door  to  a  considerable 
amount  of  fraud,  assuming  that  the  pur- 
chaser is  a  dishonest  man,  and  as  honest 
people  are  likely  to  be  deceived  into  the 
idea  that  the  goods  are  already  the  pro- 
perty of  the  purohaser — as  these  conveni- 
ences arise  from  sueh  conditions 
tTney  would  have  to  be  very  claarly 
proved  in  every  ca«e,  and  estabhshed 
beyond  any  doubt  whatever.  But  once 
they  are  established  they  seem  to  be  per- 
fectly valid  and  good,  and  the  unfor- 
tunate person  who  deals  with  a  dishon- 
est purchaser  has  himself  to  suffer  for 
die  faot  thait  he  has  dealt  with  a 
dif/honesit  man,  much  the  same  as 
a  man  who  buys  property  from 
a  thief.  In  this  case  I  hold  that  the 
evidence  is  really  all  one  wav.  The 
promissory  note  shows  it,  and  tne  parole 
evidence  is  to  the  same  effect,  that 
there  was  a  suspensive  condition  when 
Albertyii  sold  these  mulc«  to  Kulnian. 
The  property  never  passed  from  the 
olaintiff.  and  ne  is  entitled  to  reclaim  it; 
Under  these  ciroumsft^inces,  as  far  as  I 
can  see  Ibhe  Count  hai$  no  option  bu^  to 
give  judgment  for  the  plaintiff.  Judg- 
ment will  bo  given  as  prayed  for  the 
plaintiff  for  the  delivery  of  the  two 
mules  or  their  value,  £60,  defendant  to 
pay  cofcts  of  suit,  including  plaintiff's  ex- 
penses as  a  necessary  witness. 


JCiD  pa  tie  WALLIS,  JUN. 

Dr.  Rainsford  moved,  as  a  matter  of 
nrfjencv,  for  the  appointment  of  a  pro- 
visional trustee  in  tlio  insolvent  estate  of 
Ilirsch  Braun  Annenberg.  general  dealer, 
of  Oudtshoorn.  who  wa«  indebted  to 
petitioner  in  a  sum  of  £6.685. 

Petitioner  was  appointed  provisional 
trustee,  with  power  to  continue  the  busi- 
ness, pending  the  election  of  a  perman- 
ent trustee. 

Hopley.  J.,  remarked  that  he  was 
averse  to  granting  orders  of  this  kind 
whore  the  stock  was  not  perishable,  but 
the  father  in  this  case  represented  the 
great  bulk  of  the  claims. 


Ex  part  f  uiLBEkT  and  sue  ret. 

Mr.  Alexander  moved,  as  a  matter  of 
urj;ency,  for  an  order  compelling  George 
Victor  to  give  up  possession  of  certain 
premises,  known  a^  the  Bachelors'  Club, 
\V3nberg.  Petitioners  said  that  the  turn 
of  £520  was  due  as  and  for  rent  for 
eight  months.  The  present  lessee  in- 
ter ded  to  surrender  his  estate. 

Rule  n»*»  granted,  calling  u]^**  ^^^^ 
respondent  to  show  cause  on  Thursday 
next,  the  23rd  February,  why  he  should 
not  be  ordered  to  give  up  possession  of 
th-t  promises,  and  pay  costs  of  this  ap- 
plication. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Chief  Justice  (the  Big'ht 
Hon.  Sir  J.  H.  DE  Villi ERS,  P.C, 
K.C.M.G..  LL.D.).  and  the  Hoo.  Mr. 
Justice  Hopley.] 


APPEALS. 


KEL  V.  KLBIN'HANS. 


f     Mm. 

(Feb.   aoth. 

Water  Act,    181)9- Functions  of 
Water  Court — Prescription. 

In  an  application  to  a  Watrr 
Court  for  the  distrilnitiou  of  a 
stream  und^'r  the  11th  sectwn 
of  Art  40  of  1899,  it  tcrw 
pleaded  that  the  ntream  mi^  a 
perennial  one  as  far  as  it 
floiced  over  the  respondent' h 
land,  but  that  they,  being  npi^er 
irroprietors,  Imd  for  ujnati'ds 
of  thirty  years  continuouHly 
diverted  all  the  water  so  as 
not  to  allow  any  to  Jlow  to  the 
applicant's  land.  Evidence 
teas  taken  in  support  of  fhe 
plea,  and  the  application  fwi« 
dismissed. 

Held  on  appeal,  that  the  Water 
Court  irnis  right  in  taking  tlie. 
evidence,  and  as  the  weight  of 
the  evidence  supported  the  plea, 
the  appeal  was  dismissed. 


This  was  an  appeal  from  a  judgment 
of  the  Water  Court,  of  Ladismith,  relat- 


"CA1>E  TtttES"  Law  REl»OtlTS. 


I2i 


iof?  to  certain  water  rights  in  a  strpam 
cmikd  the.  Hoek  River  for  irrigation, 
and   other  purposes. 

The  notice  of  appeal  called  upon  the 
respondents  to  show  cause  why  a  judg- 
ment of  the  Water  Court,  given  in  an 
application  made  bv  appellants,  as  own- 
ers of  the  farm  \Velt«vreden,  should  not 
hv  set  aside  or  varied,  became  it  did  not 
state  whether  tho  application  was  dis- 
missed on  exceptions,  pleas  in  abate- 
ment, pleas  on  the  mcnts,  or  pleas  in 
Krescription,  the  reason  of  the  appeal 
eini^  that  appellants,  desired  the  order 
of  tfa^  Water  Court  to  be  in  mcfa  a  form 
that  they  may  know  what  the  judg- 
ment of  the  Court  was. 

Sir  H.  Juta,  K.C.,  was  for  the  appel- 
lants (applicants   in  the  Court  below). 

Mr.  Schreiner.  K.C.  (with  him  Mr,  M. 
Bisei  and  Mr.  J.  E.  R.  de  Yilliers), 
was  for  the  respondents. 

Sir  H.  Juta  said  that  the  application 
to  the  Water  Court  was  made  under 
sections  11-14,  of  Act  40  of  1899,  for  a 
reasonable  apportionment  of  the  water 
of  the  perennial  stream  called  the  Iloeks 
River  for  irrigation,  and  other  purposes. 
At  the  hearing,  the  respondents  took 
the  point,  an  important  one,  that  the 
applicants  could  not  proceed  under  sec- 
tions 11-14,  stating  that  the  u«c,  diver- 
sion, and  appropriation  of  the  water 
of  the  stream  referred  to  in  the  appli- 
cation were  in  dispute  between  appli- 
cants and  respondents,  and  that  such 
dispute  could  only  be  completely  dealt 
with  bv  the  Water  Court,  under  section 
16  of  tne  Act.  Section  16  provided  that 
in  the  event  of  a  dispute  pending  as  to 
the  use,  diverision,  and  appropriation  of 
water,  the  ca.se  could  onfjr  come  before 
the  Court  if  both  the  parties  had  agreed 
t'>  the  jurisdiction.  Counsel  went  on  to 
say  that  in  this  case  the  parties  had  not 
agreed.  The  first  point  that  arose  was 
whether  the  Court  oould  deal  with  the 
application,  under  this  section,  or  at  all 
inasmuch  as  there  had  been  no  con- 
sent to  the  submission  to  the  Water 
Court. 

[De  Villiere,  G.J. :  Your  clients  were 
the  applicants;  is  it  in  your  mouth  now 
to  say  that  the  Court  had  no  jurisdic- 
tion Tj 

Sir  H.  Juta:  The  judgment  is,  ''Appli- 
cation dismissed  witn  costs.'*  We  want 
to  know  on  what  around  it  was  dismiss- 
ed, becavM»  that  decision  may  become 
rft  judirata,  if  not  appealed  against.  Is 
it  that  the  \Vat«r  Court  has  not  jurisdic- 
tion to  try  the  case?  I  am  inclined  to 
think  that  the  Court  would  be  perfectly 
right  if  it  said  it  had  not  jurisdiction. 
Counsel  (replying  to  the  Chief  Justice) 
said  that  they  had  only  just  been  sup- 
plied to  the  reasons  for  the  iudgment, 
Dat  thoAO  reasons,  to  his  mind,  did  not 
mako  one  any  the  wiser.  He  went  on 
to  read  the  reasons  for  the  judgment. 

[De  Viliiers,  C.J. :  There  seems  to  be 
n.7  doabt  as  to  the  reason  for  the  judg- 
ment.   It  appean    that    there  was    no 


I 


water  to  distribute,  seeing  that  the  up- 
per proprietor  is  entitled  to  the  whole 
of  tine  water.] 

Sir  H.  Juta  argued  that  this  waa  an 
exception  to  the  jurisdiction  of  the 
Water  Court,  because  the  application 
could  not  be  heard  without  a  consent  in 
writing  from  both  parties. 

Mr.  Schreiner  (answering  the  Chief 
Justice)  said  his  contention  was  that  tlie 
Water  Board  had  iurisdiction  under  the 
Act  to  deal  with  this  application. 

[De  ViUien,  C.J. :  Then  your  client 
was  wrong  in  his  contention  in  the 
Water  Court  that  they  had  no  jurisdic* 
don?} 

Quite  wrong,  by  lord.  (*oun6el  went 
on  to  submit  that  the  Court  had  jurisdic- 
tion, and  that  they  were  obliged  to  do 
as  they  did  on  the  merit» — dismiss  the 
application — because  there  was  no  water 
that  l^hey  could  distribute.  His  learned 
friend  asked  Uliat  ibbe  order  should  be 
varied,  (but  he  had  not  told  them  in 
wlhsjt  way  it  ^K>uJld  be  varied. 

Sir  H.  Juta  in  reply,  said  tliat  lie 
had  already  asked  that  the  (*ourt  idiould 
remit  the  matter  to  the  Water  C'Ourt, 
and  let  them  say  on  what  grounds  speci- 
ficallv,  they  dismissed  the  application. 
The  Water  Court  had  dealt  in  tneir  judg- 
ment with  the  distribution  in  the  very 
dry  season  of  1903.  and  not  witli  tlio 
normal  flow. 

De  Villiore,  C.J. :  Thus  hi  the 
first  c«se  of  an  a^ppeal  from 
a  decision  of  a  Water  Court 
proceedings,  and  I  am  bound  to 
say,  after  a  careful  perusal  of  tlio 
proceedinp,  that  this  Water  ("ourt  have 
conducted  the  proceedings  in  a  calm, 
judicial,  and,  in  every  sense,  satisfactory 
way.  Some  doubt  was  expressed  at  the 
time  of  ibhe  paaaing  of  the  Aot 
as  to  whet|ier  the  Water  Courts 
would  be  a  success  or  not,  and  I  must 
say  that  if  all  the  Water  Courts  here- 
after should  conduct  their  proceedings 
upon  the  model  of  this  A\ater  Court 
there  would  be  every  reason  to  be  satis- 
fied. M^  own  view  was  that  it 
was  a  pity  that  the  old  Land- 
drost  and  Hecmraden  were  abolished, 
because  they  worked  very  satisfactorily. 
The  members  were  conversant  with  the 
local  circumstances,  and  were  in  a  far 
better  position  to  do  justice  btween  the 
parties  than  a  Judge  trying  the  case  hur- 
riedly on  circuit,  or  even  the  Supreme 
Court,  hearing  the  case  here  at  greater 
leisure.  First  of  all,  the  case  raised 
by  the  applicants  themselves  was  that 
this  stream  is  a  perennial  stream,  and 
that  the  respondents  are  not  entitled  to 
divert  water  out  of  such  stream  by  rea- 
son of  their  ownership  of  the  farm. 
Then  the  first  objection  taken  by  the 
respondents  was  that  the  use,  diversion, 
ana  appropriation  of  the  water  of  the 
ctreani  are  in  dispute  between  applicant 
and  respondents,  and  such  dispute  can 
only  be  competently  dealt  witn  by  the 
Water  Court  under  section  16  of  the  Act. 


l22 


"cAtE  TiNtES'*  Law  llEtohTS. 


But  thie  point  oould  uot  be  decided  uiitii 
evidence  was  taken,  and  the  nature  of 
the  evidence  which  would  be  ^iven  by 
the  respondentfl  themselves  was  indicated 
by  the  third  plea,  in  which  the  respon- 
dents say  **  for  a  period  of  thirty  years 
and  upwards  they  have  continually, 
advenselv,  and  of  right  diverted  the 
water  of  the  strea  mref erred  to  in  the 
application,  so  as  to  use  all  the  normal 
flow — that  is,  the  whole  flow  of  the 
stream,  except  abnormal  inoreaaes  from 
time  to  time  caused  bv  floods,  and  that 
by  such  diversion  and  uae  they  have 
acquired  a  right  to  continue  to  use  in- 
dependently of  any  general  riparian 
Tights.*'  The  applicants  joined  issue 
upon  this  plea.  They  did  not  then  with- 
draw their  application  and  say,  "  As  this 
question  is  raised,  we  shall  now  pro- 
ceed under  another  section/*  but  they 
proceeded  and  insisted  upon  their  righl 
to  a  distribution  of  the  water,  which  they 
claimed  to  be  a  perennial  stream.  Clear- 
ly, then,  it  was  the  duty  of  the  Water 
Court  to  inquire  whether  there  was  any 
water  to  distribute.  If  it  were  a  peren- 
nial stream,  there  would  prima  facie  be 
water  to  distribute;  but  if  the  respon- 
dents had,  as  thev  pleaded,  acquired  a 
right  to  the  use  of  all  the  water  by  pre- 
soriptioii,  then  there  would  be  no  water 
to  distribute.  But  how  was  the  Water 
Court  to  decide  this  point  without  evi- 
dence? lit  w-as  bound  to  hear  evi- 
dence; without  evidence,  it  would  be 
wholly  impossible  to  decide  the  cnf-e. 
I  take  it  that  the  aplication  was  dis- 
mi Sired  because,  in  tlie  opimou  of  the 
Water  Court  there  was  no  water 
to  distribute.  The  evidence  is 
voluminous ;  there  was  evidence  ^iveii 
on  both  sides,  but.  although  there  is  no 
appeal  on  the  merits,  I  am  bound  to  say 
that  there  was  very  strong  evidence  on 
behalf  of  the  respondents^  as  to  the  actual 
diversion  of  the  water  for  many  vears. 
Old  residents  were  called,  who  said  that 
thev  had  never  known  the  water  to  be 
taken  otherwise  than  by  the  respondents. 
After  that  evidence,  the  Water  Court,  in 
my  opinion,  was  quite  justified  in  coming 
to  the  conclusion  that  the  applicant  had 
not  proved  tha.t  tliere  was  anyr  water  to 
distribute.  That,  in  my  opinion,  is  the 
result  of  that  evidence.  Whether  that 
judgment  can  be  registered  or  not  is 
iK)t  a  question  that  falls  within  the  pur- 
view of  the  present  case.  This  is  an 
appeal  against  the  judgment,  aiid  all  we 
can  decade  is  whether  the  judgment  is 
correct  or  not.  As  at  present  advised, 
I  should  be  inclined  to  think  tlia-t  af> 
evidence  was  taken  upon  the  matter,  the 
decision  would  be  a  decision  hereafter 
as  against  the  apolioants,  to  the  effect 
that  the  right  haa  been  acquired.  But 
it  does  not  come  within  the  purview  of 
the  present  ease  to  decide  that  point. 
In    my   opinion,    the  Water  Court  was 

3uite  right  in  holding  t/hat  the  respon- 
enta   had    acquired  the    right  to   take 


away   ail  the  water,   thai  there    wu»  no 
water    to    distribute,    and    consequently 
tlhe  appeal  %vil'l  be  dasmissed,  with  costa. 
Hopley.    J.,  concurred. 

[Appellants*  Attorneys:  Saucr  and 
Standeu ;  Reiipondeuts  Attorneys :  Trod- 
gold,  Mclntyre,  and  Bisset.] 


KM  V.   VAN  NIEKERK.       |  F^J^^h. 

Summons  in  criminal  case — De- 
scription of  offence. 

A  summons  charged  ihf  defen- 
dant iciifi  cutting  wattles  cn^l 
naplings  in  riohition  of  regula- 
tions made  by  the  Gorernme^U 
in  that  belmlf^  b\U  did  not 
allege  that  the  defendant  had 
done  HO  without  a  licence  or 
permit  from  the  (rovernment. 
The  /jarticiUar  regulation  jras 
not  mentioned  in  the  summons^ 
nor  tons  it  produced  at  the 
trial,  but  it  nxxs  produced  at 
the  hearing  of  the  appeal^ 
from  trhich  it  appeared  that 
a  person  cutting  such  nxitiles 
ami  saplings  without  the  licence 
or  permit  provided  for  in 
section  1  of  these  regtdations^ 
shall  be  liable  to  the  penalties 
of  section  16  of  Act  28  oflSSS, 

Hold,  that  as  the  specific  regu- 
lation xtXM  not  mentioned  in 
the  summons,  it  wajt  necessary 
that  the  summons  should  con- 
tain a  full  description  of  the 
offence  charged. 


Tliis  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Namaqua- 
land.  who  had  convicted  the  appellants 
of  contravening  section  16  (sub-section 
b).  Act  28  of  1888,  in  that  they  cut,  in- 
jured, destroyed,  or  removed,  in  viola- 
tion of  the  regulations  made  by  the 
Governor,  certain  wattles,  saplings,  or 
other  forest  produce.  Mr.  Gardiner 
was  for  the  appellants ;  Mr.  Howel  Jones 
was  for  the  Crown. 

Mr.  Gardiner  (for  the  appellant)  said 
that  he  wished  to  point  out  that  no  re- 
gulations had  been  made  by  the  Gov- 
ernor as  provided  by  the  section. 

Mr.  Howel  Jones  (for  the  Crown)  said 
that  regulations  were  published  in  the 
"Gazette**  of  the  7th  August,  1900,  and 
produced  a  copy  of  the  "  Gazette.'* 

Mr.  Gardiner  said  that  he  had  not  pre- 
viously been  aware  that  such  regula- 
tions had  been  published,  but  he  would 
take  the  o/bjection  that  the    regulations 


«'cAt>E  tiMES^'  Law  kEtokTO. 


)23 


were  not  produced    at    the   hearing  in 
the  Court  below.      Oounael  read  the  re- 
cord of  oTidence  taken  in  the  Court  be- 
lov.     The  a{>pellant  Van    Niekerk   held 
the  land  from  which  the  eapiings  were 
said  to  ba-ve  been  cut  under  the     lea^e. 
Coansel  submitted      that    the  Bummoiis 
did  Dot  disckee   evidence   upon     which 
the  accused  could  be  convicted,  and  wsia 
otberwiae  vague  and   uncertain.       Both 
the  prosecution  and  accused  came     into 
court  without  knowing    that    regulations 
had  been  made   relating    to  the      sub- 
MctioD   (b).        Evidently,  the  Grown  in 
the  Court  below  relied  on  the    oonditions 
in  the  Government     notices,  and  in  the 
leases  under  which  the  lands  were  held. 
As  regarded  Van  Niekerk    particularly, 
counsel  contended  that  there  bad   been 
DO  eyidence  that  he  had  committed  an 
offence.      Van  Niekerk  said  he  did  not 
give  Coetzee  permission  to  cut      wood 
for  sale,  nor  did  he  (Van  Niekerk)    cut 
wood  for  sale.       Van  Niekerk  certainly 
had  risked  the  cancellation  of  hi^  lease, 
but  he  had  not  committed   a     criminal 
offence.      The  only  evidence  was     that 
Van  Niekerk  authorised  Ck>etzee  to  cut 
wood  for  his  own  use  merely. 

Mr.  Howel  Jones  submitted   that,    en 
the  judgment  i^iveh  in  the  cai>e  of  Rex 
V.  Idaau  (10  C.T.R.,  756),  publication  of 
the  regulations  in  the  *'  Government  Ga- 
ttttc"  was  BuflBcient  for  the  purposes  of 
the  prosecution.      No  prejudice,    ho  con - 
t<'Dded,  had  accrued  to  the  appellants. 
He  submitted    that    no    flaw  could  have 
been  found  on  the   summons,  and  that 
the  case  for  the  prosecution  was     fairly 
>nd  clearly  put  before  the   accused  when 
the  Bummous  was  served   upon     them. 
With  regard  to  Van  Niekerk.  he     sub- 
mitted that  Van    Niekerk    himself  knew 
that  under  the  conditions   of  his  lease 
be  was  prohibited    from    taking   wood. 
On  the  question   of  the  validity  of  the 
summ(H)B,  counsel  quoted    tho   case      of 
^'jkeham   v.    Beacongfield    Municipality 
l^  High  Oourt.  296).     He  contended  that 
»t  wag  not  necessary  to  give    proof  of 
the  bye-laws  or    regulations  which     had 
been  made  in  every  prosecution  that  was 
taken. 

Mr.  Gardiner,  in  reply,  submitted  that 
the  caaes  quoted  by  nis  learned  friend 
did  not  anply  to  the  preeent  case.  I:i 
the  ca«e  ot  Rome  (11  Juta),  it  was  laid 
down  that,  apart  from  any  regulation© 
Jherc  was  no  offence.  The  notice  pub- 
"•bed  in  the  **  Gazette  "  set  out  that 
the  regulations  were  in  lieu  of  those 
published  in  Proclamation  575  of 
JjSS-  The  Court  did  not  know  whether 
hose  regulations  of  1895  were  purely 
lu  ^gain,  the  offence  was  not  in 
toe  same  terms  as  the  Act.  The 
y^Utions  said  "cutting  forest  pro- 
^^^  without  a  permit.'*^  The  eum- 
JJ^^ns  did  not  mention  a  permit,  and 
t«re  was  nothing  to  show  that  the 
•^S^ed  had  no  permit. 
.^  Villiero,  C.J.  :  The  ground  on 
*uch  this  appeal  was,  in   tho  first  in- 


stance,  urged   is  not,   in   my  opiiiion,   a 
good    one.      The    objection    raised    was 
that  the  specific  reflation  under  which 
this  charge  was  laid   was  not  set  forth 
in  the  summons,  but  that  was  not  really 
the  objection  taken  at  the  trial.       But. 
assuming      that      the      summons      had 
correctly    mentioned  the  specific  regula- 
tion,   it    would    stiU    have    been    neces- 
sary     in   the   summons   to   set  out   in 
distinct    words    the  offence  with    which 
the    accused    was    charged.        Now    the 
offence    is    thus    stated      in       the   sum- 
mons:   "That   the   said   Van      Niekerk 
and  Coetze  did,   in  violation  of  regula- 
tions made  by  the  Government  in  that 
behalf,    cut,    injure,       take,  destroy^    or 
remove  a  quantity  of  wattles,  saplings, 
or   other    forest    produce,    the  property 
of   the  Crown,    which   they   did   not   re- 
quire   for    their    own     use."     That,    by 
itself,    is    not       enough,       because    the 
offence    described    by  the    regulations  is 
as   follows :    "  (13^   Any  person  who   in- 
jures or  destroys,  or  who  cuts,  takes  or 
removes,    from        undemarcated    forest, 
wattles,    sapling,    or    forest       produce, 
without    the    licence    or    permit       pro- 
vided for  in  section  I.  of  these  regula- 
tions,   shall   be    liable    to  the    penalties 
of  section  16      of     Act     28  of      IBbb.;' 
Clearly,    therefore,   the  exact  offence   is 
not  stated.     The    ).Tiss.on  of  ilio  wcids 
*'  without   a  licence  or  permit  provided 
for  in  that  section  "  is,   in   my  opinion, 
fatal,  because  under   the  regulation  tho 
cutting  of  the   wood  is  not   an   offence, 
but  the  cutting  without  a  permit  is.     It 
mav  well    be  that  if   tho  words  omitted 
had  been   inserted  the  burthen  of  prov- 
ing that   he   had   a  permit  would   have 
been  on  the  defendant.     That  is  a  ques- 
tion   depending  upon    the   rules  of  evi- 
dence, which  cannot  affect  the   general 
principal,  that  a  person  charged  with  an 
offence   is  entitled  to  know    the  precise 
charge   made   against  him.     In  the  pre- 
sent case  tlie  prosecutor  not  only  omit- 
ted   to    mention    tho    regulation     under 
which     the    charge    wae    made,    but    he 
omitted  from  his  charge  important  words 
which   enter  into    the   definition    of    the 
offence  given  by  the  regulation  produtx'd 
in  this   Court  on  afipeal.        The  apixjal 
must  be  allowed. 
Hopley,  J.,  concurred. 

[Appellant's  Attorneys:      Van  Zyl  und 
Buissinn^.] 


PINKUS  V.  I'KNSTKB. 


I        1905. 
IFeb.   20tb. 


Sale    and   delivery — Duminium — 
Rent — Sale  in  execution. 

The  claimant,  a  collector  of 
rents^  irho  ivas  personally  re- 
spontfible  to  the  lessor  of  ce^iain 
premises  for  the  payment  of 
tlie  remits  thereof,  purported  to 
buy  from    the  lessee   certain 


i 


24 


"CAtE  Wmes»*  Law  tiEtohts. 


^.  _. 


furniture  in  itatin/action  of  the 
rent  due^  hut  the  furniture  was 
not  delivered  to  the  claimant. 

Held,  that  upon  the  attach- 
ment of  the  furniture  in  exrca- 
tion  of  a  judgment  obtained 
by  a  creditor  against  Oie  lenHce, 
Uie  claimant  was  not  enttllrd 
to  claim  the  furniture  as  being 
his  own  property. 


This  was  appeal  from  a  judgment  of 
the  Resident  Magistrate  of  tiio  Cape 
upon  an  inter-pleader  summons  taken 
uut  by  the  present  respondent,  Julius 
Fonster,  ufwn  a  writ  of  execution  is- 
sued in  ft  judgment  against  one  Carn. 

On  the  5th  July  last,  Pinkus  obtained 
a  judgment  against  Carn,  and  cer- 
tain g€X)ds  were  taken  in  execution  of 
that  judgment.  Then  Fenster  brought 
an  interpleader  summons  against  Pinkus, 
and  allefi'vid  that  the  goods  seized,  or 
portion  of  them,  were  his  property. 
It  was  against  the  decision  of  i!ic 
Magistrate  upon  that  interpleadei  sum- 
mons that  the  appeal  was     brought 

From  the  record  it  ap;?eared  that 
Fenster's  case  was  that  the  furniture 
taken  in  execution,  was  sold  to  him  for 
£12  in  satisfaction  of  rent  due,  w!)ich 
he  (Fenster)  collected  on  behalf  oi  the 
landlord  (Mr.  Rayner).  The  jiH„' 
mcnt  of  the  Court  below  was  liiat  the 
articles  set  out  in  the  list  were  not 
liable  to  execution,  but  that  the  other 
articles  be  declared  executable,  with 
coats    to  applicant. 

Dr.  Greer  (for  the  appellant)  contended 
that  i\\Q  circumstances  were  altogether 
Buspicious,  and  that,  a^  a  matter  of 
fact,  there  never  was  any  delivery  from 
Carn  to  Fenster.  If  these  extraordinary 
transactions  were  allowed  there  would 
bo  no  security  whatever  to  creditors. 

Do  Villiors.  C.J.,  said  that  the  great 
case  on  the  point  was  Harris  v.  BuU- 
sinnf.     (2  Menz..  105.) 

Dr.  Greer  said  that  he  had  been  un- 
able to  find  that  particular  case. 

Do  Villiers,  C.J. :  If  in  this  case  the 
claimant  had  himself  been  the  landlord 
something  might  have  been  said  in 
favour  o?  the  judgment  of  the  Magis- 
trate. It  might  then  have  been  argued 
that  the  landlord  by  virtue  of  the  tacit 
hypothec  for  his  rent  had  a  quasi  pos- 
session of  the  articles  alleged  to  have 
been  sold,  and  by  virtue  of  his  tacit 
hypothec  he  had  a  prior  claim  to  that 
ot  the  execution  creditor  so  long,  at  all 
e^'ents,  as  the  furniture  remained  in  the 
leased  premises.  But  it  is  not 
the  landlord  who  is  in  question, 
but  a  man  called  Fenster.  who  is  a 
collector  of  rents,  and  receives  a  salary 
and  is  liable  to  deductions  for  losses 
that  might  be  sustained  if  tenants  fail 
to  pay  their  rents.       Well,  this  collec- 


tor of  rents  arranged  with  the  debtor 
that  for  two  months  rent  that  was  due  the 
furniture  should  be  sold  to  him,  not 
to  tho  landlord,  but  there  was  no  de- 
livery accord iiij^  to  the  evidence,  the 
property  remained  with  the  debtor, 
and  apparently  was  to  remain 
there  as  security  to  Fenster.  Any- 
how, there  never  was  a  de- 
livery, such  a  delivery  to  Fen- 
ster as  to  pass  the  dominium 
to  him.  Accordingly,  when  thei'e  wa.s 
an  attachment      of      the       property, 

the  goods  which  still  belonged  to  the 
debtor  were  properly  attached,  and 
the  circumstances  of  the  case  do  not 
satisfy  me  that  it  was  in  any  sense  of 
tlie  word  a  bona  fide  sale,  and  delivery 
to  Fenster.  Under  these  circumstances, 
I  am  of  opinion  that  the  Magistrate  was 
wrong  in  holding  that  Fenster  had  a 
good  claim.  The  Court  must,  therefore, 
allow  the  appeal  with  costs,  and  declare 
that  all  the  property  was  executable. 
Hopley,  J.,  concurred. 

[Appellant's  Attorney:    O'Brien,] 


FELTMAN  V.  BUIltSKI. 


f        19X1. 


4  Feb.   2(»th. 

Magistrate's  Court — Exception  to 
summons — Vague  and  em- 
barassing. 

//  is  a  good  exception  to  a  civil 
summons  in  a  Magi  ai  rate's 
Court  which  is  unintelligible 
and  does  tu}t  giv*'.  a  sxifficicnl 
indication  of  the  case  the 
defendant  has  to  meet,  that  it 
is  vague  ami  embarrassing. 


This  was  an  appeal  from  a  judgmeitt 
given  by  the  Resident  Magistrate  of  tho 
Cap|c,  in  an  action  brought  by  appollant.«) 
against  B.  and  I.  Buirski  to  recover  £12 
Is.   6d. 

At  the  hearing  in  the  Court  below, 
the  defendants  excepted  to  the  summons 
on  the  ground  that  it  was  vague  an  I 
emba-iTfissing  and  bad  in  law,  in  00  Hr 
as  it  disclosed  no  cause  of  action. 

The  Ma^gistrate,  in  his  reasons  for 
judgment,  said  he  dismissed  the  sum- 
mons as  vague  and  embarrast^ing,  b«jt- 
causc  it  seemed  that  the  plaintiff  did  not 
know  ap^ainst  which  of  the  two  defendants 
his  action  lay. 

]\fr.  Alexander  (for  appellant)  said 
that  the  matter  arose  out  of  a 
debt  owing  by  one  Sousa,  trading 
a.-*  the  Raymoss  Co.,  in  Wale- 
stroet,  for  cake  and  bread  supplied. 
Sousa  had  left  the  Colony,  and  Isaac 
Buirski  had  been  in  lawful  occupati(>n 
of  the  promij^s,  and  B.  Buirski  had 
acted  as  the  responsible  person  in  con- 
nection with  the  property.  It  wag 
agreed  between    the  plaintiffs    and   the 


c< 


CAPE  TIMES"  LAW  REPORTS. 


125 


nid  6.  BuiiBki    that  the  Jatter    should 
take  over   the    aforesaid    debt,    and,   in 
coDsideimtion,  they  -were  to  hold  the  fur- 
niture which  had  been    left  in   the  pre- 
fflbes  by  Sousa.         Isaac     Buirski     was 
r^ly  the  undisclosed      principal  in  the 
matter.       Covmsel  submitted     that    the 
Magistrate  was   not   justified  in  holdings 
that  the  sanunons  -was     vague    and  «-m- 
barraasin}^.      He  admitted  that  the  sum- 
moos  was  somewhat    inartistioally  drawn, 
but  he  ui^ed  that  It  clearly  set  out  the 
cause  of  action.      If  anytbinaf,  the  plain- 
tiffs^ had  been  somewhat  redundant     in 
^tting  out  the    facts  in  the     summons, 
but  no  possible     prejudice      could  have 
occurred  to  the  defendants  on  the  score 
that  they  did  not  know  what  they  were 
brought  into  court  upon. 
Respondent  in  default. 

De  Viiiiers,   C.J. :      A  summons  in  a 
civil  case  before   a   Mag^istratc    may  be 
good,    although    not    artistically    drawn, 
but  it  should  be  intelligible,  and  should 
iiulicate  to  the  defendant  the  nature  of 
the  case  which  ho  is  expected  to  meet. 
The  summons  now  in  question  is  wholly 
unintelligible    without     the    explanation 
given  by  counsel,    and    even   after  that 
explanation  it  is  by  no   means  c\ear  on 
what  ground  one,  at  all  events,   of  the 
defendants  was  brought  into  Ctmrt.    The 
Magistrate  sustained    the   objection  that 
the  summons  is  vague  and  embarrassing, 
«nd  I  am  not  prepared  to  find  fault  with 
the  decision.     The  appeal   must   be  dis- 
missed. 

Hopiey,  J.,  concurred. 

[Appellant's  Attorney :  J.  Ayliff.] 


MOTION. 


Ejt  parte  KEATING. 

Mr.  Stniben  moved,  as  a  matter  of 
urgency,  for  a  temporary  interdict  re- 
stijning  the  Mother  Superior  and  Bisters 
f^^'«Mreth  House,  or  their  duly  author- 
'*«d  agents  or  attorneys,  from  parting 
J^Jfl^rwise  dealing  with  a  cheque  for 
*''w,  pending  a  settlement  of  certain 
accounts  between  the  plaintiff  and  the 
'^ndent  Orestc  Nannucci.  The 
cheque  was  in  connection  with  the  oon- 
['•rt  price  of  certain  laundry,  coach- 
boil**,  etc..  built  on  behalf  of  the  Motiier 
»upenor  and  Sisters  of  Nasareth  House. 

Rule  nm  granted,  calling  upon  the 
Mother  Superior  and  Sisters  to  show 
cause  why  an  interdict  should  not  he 
Rfanted  as  prayed,  rule  to  be  returnable 
"n  Thursday  next,  and  to  act  as  a  tem« 
P«ftry  interdict. 


SECOND    DIVISION. 


[Before  the  Hon.  Sir  John  Buchanan 
and  the  Hon.  Mr,  Jnstlce  Maasdorp.] 


CIVIL  APPEALS. 


BOTMA  v.  NORTON. 


(       1905. 
(Feb.   20th. 


InteiTogatories — Magistrate's  dis- 
cretion. 

Phunliff  had  stied  respoudnit 
in  the  R.M,  Court  of  Paarl 
before  the  A  ding  A  ,R.  M.  Th  e 
defendant  ofmlied  for  interro- 
gatories  on  which  to  examine  hh 
witiiesse/i.  As  the  A.R,Af.  was 
about  to  have  the  Paarl  and 
did  not  consider  that  the 
interests  of  justice  would  he 
furthered  by  granting  the 
application^  he  refused  it. 

Held  on  appeal,  that  the 
A  R.M,  had  right  by  exercised 
his  judicial  discretion. 


I 


This  was  an  appeal  from  a  decision  of 
the  A.R.M.  of  Paarl,  in  which  he  refused 
the  application  of  the  plaintiff's  attor- 
neys for  interrogatories,  and  di<^missed 
a  case  in  which  tno  plaintiff  sued  the  do- 
fondant  for  £2  18s.,  for  goods  sold  and 
delivered.  The  matter  came  before 
the  A.R.M.  of  Paarl  on  a  summons  for 
£2  18s.  for  good«  sold  and  ^  delivered. 
The  plaintiff's  attorneys  applied  for  m- 
ter  rogatories,  and  the  defendant  objected 
to  the  case  being  postponed  for  interro- 
gatories on  the  ground  that  he  was  only 
acting  temporarily  as  A.R.M.,  at  the 
Paarl,  and  was  about  to  leave  to  take  up 
a  permanent  appointment  at  Fort  Beau- 
fort, and  that  the  plaintiff  had  been  well 
aware  of  this  for  some  time.  The  plain- 
tiff's application  wa«  refused,  and  as  he 
had  no  evidence,  the  case  was  dismis.sed, 
with  costs.  The  Magistrate,  in  his  rea- 
sons, saJd  that  the  defendant,  who  hnd 
been  acting  as  A.R.M.,  at  Paarl,  tem- 
porarily, at  the  time  the  summons  wa« 
issued,  was  about  to  leave  for  Fort 
Beaufort,  and  the  plaintiff's  attorney 
was  well  aware  of  this.  The  defendant 
denied  the  debt,  and  suggested  that  the 
ease  should  be  heard  in  Fort  Beaufort. 
The  Magistrate  held  that  the  plaintiff 
had  plenty  of  time  to  bring  his  action, 
and  the  defendant  would  be  very  much 
inconvenienced,  and  the  interest  of  jus- 
tice would  not  be  ijenred  by  granting 
plaintiff's  application. 

Mr.  Close  (for  appellant)  contended 
that  by  ^  the  Magistrate's  decision 
th«>  plaintiff  would  bo  bound  to  issue 
another  summons  iu  another  district. 
If  he  was  about  to  leave,  the     decision 


120 


(I 


CAPE  TIMES"   LAW  REPORTS. 


would  amount  to  waiting  until  a  man 
left,  and  then  prove  his  case,  no  matter 
what  inconvenience  the  plaintiff  was  put 
to.  There  waa  aJ^olutely  no  evidence 
given  as  to  why  the  case  had  been  held 
over,  and  counsel  submitted  that  the  real 
test  in  the  caae  waa,  even  if  a  person 
delayed  somewhat  in  bringing  his  case, 
whether  lie  had  brought  it  in  the  right 
place. 

Respondent  in  default. 

Ducnaii&n,  J. :  The  plaintiff,  who  re- 
sides at  Tulbagh,  sued  the  defendant 
in  the  Court  of  the  R.M.  of  Paarl,  for 
£2  18s.,  for  goods  sold  and  delivered. 
The  defendant  denied  the  debt,  where- 
upon the  plaintiff,  instead  of  proceeding 
to  prove  bis  claim,  applied  for  interro- 
gatories to  examine  hie  witnesses.  It  is 
not  stated  what  witnesses  were  to  be 
examined,  or  where  tihey  reside,  but  I 
presume  the  witnesses  reside  at  Tulbagh, 
where  the  debt  was  alleged  to  have  been 
incurred.  The  Resident  Magistrate 
heard  the  defendant,  in  reply  to  the 
npplicMition  for  interrogatories,  and  in 
liie  circumstances  of  the  case,  he  exer- 
cised his  discretion  in  refusing  to  grant 
(he  application.  This  appeal  is  based 
on  the  ground  that  the  Magistrate  did 
not  exercise  a  judicial  discretion.  From 
the  facts  on  the  record,  and  the  Magis- 
trate's reasons,  I  do  not  find  anything  to 
convince  me  that  this  discretion  had 
been  improperly  exercised  by  the  Magis- 
trate. The  plaintiff  does  not  reside  at 
the  Paarl.  The  defendant  had  been  at 
the  Paarl  for  three  months  on  special 
duty,  and  the  alleged  debt  bad  been  in- 
curred long  before  the  defendant  went 
to  the  Paarl.  The  defendant  objected 
to  the  postponement  of  the  trial  as  he 
was  about  to  be  removed  to  another 
station.  The  defendant  was  prepared 
to  meet  the  claim,  and  tlie  plaintiff 
20uld  not  go  on  with  his  action.  It  is 
sugge:sted  on  the  record  that  the.se  pro- 
ceedings were  taken  purposely  to  harass 
and  annoy  the  defendant.  In  this  mat- 
ter the  Magistrate  had  all  the  facts  of 
the  case  before  him,  and  he  knew  all 
the  circumstances.  There  is  nothing  to 
show  on  the  record  that  he  has  not  ex- 
ercised his  discretion  in  a  {Mroper  man- 
ner, and  the  appeal  must  be  dismissed. 
To  make  the  matter  clear  the  judgment 
recorded  in  the  C*ourt  below  should  be 
absolution  from  the  instance,  with  costs. 

Maasdorp,  J.,  concurred. 

[Appellant's  Attorneys:  Moore  and 
Son.] 


DIVISIONAL  COUNCIL  OP  CLANWILLIAM 
V.  PETBRS. 

Divisional  Council — Negligence — 
Damages — ^Notice — Di  visional 
Councils*  Act. 

ReapondenCtt   icnq'on  had    met 
xoUh  an  accident  traceable  to 


tlie  negligence  of  a  JJirinional 
Council,     The  Council  pleaded 

(1)  Respondent  had  not  given 
notice  ttpeci/i/ing  the  time  at 
which  the  ttccii/ent  had  occurred. 

(2)  That  all  the  funds  in 
their  hands  available  for  road 
rejHiirs  had  been  exhauated. 

Held  on  appeal,  that  as  re- 
sj)ondent  had  given  notice 
trithin  14  daySj  and  as  they 
subsequentlff  repaired  the  rmtd 
and  cmdd  have  obtained  nutre 
money  by  raining  the  rates ^ 
both  defences  must  fail. 


This  was  an  appeal  from  a  decision  of 
the  Court  of  the  Resident  Magistrate  of 
Clanwilliani,  in  which  the  present  re- 
spondent succesr^fully  sued  the  Council 
f '.)r  £5  18s.  6d.  for  damages  sustained  by 
resson  of  the  defendants'  negligence  in 
not  maintaining  the  main  road  in  pro- 
per repair. 

From  the  record  it  appeared  that  the 
plaintiff,  while  passing  carefully  with 
his  wagon,  drove  into  an  excavation  on 
the  road,  and  the  vehicle  was  over- 
turned. Plaintiff  sustained  certain  in- 
juries, and  the  wagon  was  much  dam- 
aged. The  defendant  Council  pleaded 
contributory  negligrcnce  on  the  pajrt  of 
the  plaintiff,  and  that  they  had  dis- 
charged their  duty  in  keeping  the  roa<d 
in  repair  to  the  utmost  of  their  ability. 
An  exception  was  taken  to  the  sum^ 
mons  on  the  ground  that  notice  haa  not 
been  given  to  the  defendants  within 
fourteen  days,  as  required  by  the  Act. 
The  exception  was  overruled,  the 
Magistrate  holding  that  there  was  no 
prejudice  to  the  defendants.  Mr.  P. 
Jones  (for  appellant)  pointed  out  that 
the  date  ot  the  accident  was  not 
given  in  tlie  notice  sent  to  the  Council, 
and  conse<|uently  they  were  prejudiced 
in  not  being  in  a  position  to  make  pro- 
per inquiries  as  to  the  state  of  the  road 
on  that  particular  date.  The  Magis- 
trate found  that  there  was  no  contribu- 
tory negligence,  and  that  the  damage 
was  solely  attributable  to  the  state  of 
the  road,'  and  that  the  council  had  not 
done  all  in  its  power  to  properly  main- 
tain the  road.  Counsel  contended,  ac- 
cording to  the  Act.  that  the  Council, 
having  expended  ail  the  funds  at  iti% 
dispo^,  tney  were  relieved  from  their 
liability. 

Without  calling  on  Mr.  Gardiner  (for 
respondent), 

Buchanan,  J. :  The  wagon  of  the 
plaintiff  in  the  Court  below,  whilo  tra- 
velling over  the  Main  road  on  the  6th 
September  la»t,  fell  into  a  dangerous 
hole  in  the  middle  of  the  read,  of 
which      hole  plaintiff    had   no   previous 


"CAPB  TIMES"  LAW  REPORTS. 


127 


knowledge.  It  wa^  night  time,  and  he 
did  not  see  the  hcAe.  The  wheel  of  the 
vagon  was  amaahed.  He  thereupon 
g«Te  notice  to  the  Diyisional  Coud- 
Cottiicil  on  the  5th  October  of  this  acci- 
drat.  Thereupon  the  Council,  having 
a  road  party  on  the  road  the  next  day, 
had  the  hole  repaired.  On  suing  in  the 
Magistrate's  Court,  the  defendants 
first  obi<>cted  that  they  did  not  receive 
the  notice,  which  was  required  by  the 
second  section  of  the  Act,  specifying  the 
lime  the  accident  occurred."  The 
Magistrate  overruled  that  objection, 
and  sensibly  held  that  as  within  four- 
teen days  notice  had  been  given,  and 
M  prejudice  had  resulted  to  the  Coun> 
cal  from  the  fact  that  the  actual  time 
of  the  accident  was  not  stated  in  the 
liotioe,  there  had  been  a  subetantial 
compliance  with  the  Act.  It  was  next 
ooijtended  that  the  Divisional  Coun- 
cil wta  not  liable  for  the  damage  done, 
because  they  expended  more  money  on 
this  road  than  they  received  from  the 
rates  for  road  purposes.  Tliere  are 
several  answers  to  that,  one  is  that  they 
were  actually  mending  this  road,  and 
thai  they  had  money  at  their  disposal 
for  that  purpose,  and  that  after  they 
received  notice  of  the  accident  they 
D*nded  the  hole.  It  was  not  Bhown 
what  rate  had  been  levied  by  the 
Council,  and  had  they  raised  the  rate 
ihey  cotild  have  had Jjrfenty  of  money 
to  repair  the  road.  The  foundation  of 
«ll  these  actions  is  negligence  on  the 
part  of  the  Council,  as  some  timo  be- 
fore the  accident  they  had  receit'ed  an 
intimation  of  the  existence  of  this  dan- 
R«r.  There  was  a  ro«id  party  on  tlie 
road,  and  the  superintendent  was  in- 
formed of  the  hole,  aid  instead  of  re- 
Itt*nng  it  he  left  it  in  a  dangerous 
condition  until  the  accident  occurred, 
when  he  imnnediately    repaired    it.       I 

***  u     *^'*     **     **  strong  evidence   of 

n^lect  as  you  can  wis^h  Tor   in   a  case 

0*     this    kind.    ITie      £5  odd  claimed 

««cms    to  be  a   reasonable  amount  for 

jlamagwi.      It   »   true  that  30s.    is    for 

Jo«    of    time,      and  perhaps  exception 

JJ'jht.    have  been    taken   to  thii*  item, 

11"^    it  is  a  trifling  sum,  and   has   not 

been  objected  to.       I   think    there   was 

•^"geuce  on  the  part  of  the  Council, 

i^n  the  Magistrate  properly  gave  judg- 

"Jf?*    against      them  for  the  damages 

TkI       **sulted    from   such   negligence. 

iH?    *Ppeal      must    be  dismissed   with 

^^•isdorp,  J.,   concurred. 


LAVAYBTTB  V.  BAUMU  AND  f        1905. 

0THEB8.  .    (Feb.   20th. 

Magistrate's  Court — Amendment 
of  sum  mons— Service. 

The  respoiulentft  can'wi  on 
hunhies8  a.f  BanieSy  Van 
Stfutten  find  Deans,  The 
appellant  sued  the  Arm  under 
that  name  in  an  H.M.  Couri^ 
and  the  summons  iras  person- 
ally served  on  wie  of  the 
dffaulants.  Plaintiff'^H  attor- 
ney had  applied  to  defendants 
to  disclose  the  full  names  of 
all  members  of  their  firm^  hut 
this  request  2eas  not  complied 
with.  When  the  case  came 
into  Court y  a  power  of  attorney 
in  the  name  of  all  and  singidar 
the  defendants  teas  Jiled, 
Plaintiff^  s  attorney  craved 
leave  to  ametul  his  summons 
accordingly^  but  this  leave  teas 
refused  and  the  exceptions 
(1)  That  no  prosier  iummmts 
had  been  issued;  (2)  That 
due  service  had  not  been  effected 
were  upheld. 

Held  on  appeal,  that  the  service 
was  good  aiul  that  the  Magis- 
trate ottght  to  have  allowed  the 
summons  to  be  amended. 


This  was  an  appeal  from  a  decision  of 
thfi  Resident  Magistrate  of  AUwal 
North,  in  which  he  allowed  certain 
exceptions  to  the  plaintiff's  sum- 
mons, and  dismis.scd  tho  case.  The 
Claintiff  sued  for  £20  damages  for 
reach  of  contract,  and  being  unable 
to  obtain  the  proper  names  of  the 
defendants,  the  partnership  was 
summoned,  under  the  style  of  Barnes, 
Van  Staad^i,  and  Deane,  a  firm  of 
builders  and  contractors.  Exception 
was  taken  to  the  summons  on  tv;o 
grounds:  (a)  that  the  partners  of  tlie 
firm  should  have  been  joined  In  Hic 
firm  with  the  names  of  all  the  partners, 
as  well  as  the  style  of  the  firm,  and  that 
the  name  of  the  (rm  was  insufficient 
and  bad  fn  law;  and  (b)  that  the  for- 
vice  was  bad  and  insufficient  in  law, 
because  a  copy  of  the  summons  was 
served  on  one  of  the  partners  outside 
the  place  of  business.  An  application 
by  the  plaintiff's  attorney  to  amend  the 
summons  by  inserting  idl  the  full  XMunes 
was  refused.  The  plaintiff's  attorney 
previously  wrote  for  the  names,  and 
stated  that  if  they  were  iwt  disclosed  he 
would  make  formal  applicaticm  for  the 
amendment.      The  defendants;'  attorney; 


128 


•^CAPE  TIMES"   LAW  REPORTS. 


in  reply  to  that,  oontendod  that  the 
defendants  were  not  bound  to  assist  the 
plaintiff  in  bringing  the  oase  before  tiic 
Court  in  the  proper  form.  The  excep- 
tions were  sustained  and  the  summons 
dismissed..  The  Messengier  of  the  Court 
served  a  copy  of  the  sumnoons  on  V,-\n 
Staaden  only  at  the  former's  od'.re. 
The  Magistrate  baaed  his  judgment  on 
the  fact  that  no  proper  service  had^lM>€n 
made  on  the  defenidant  firm,  and  the 
evidence  of  the  Messenger  showed  tiiat 
the  originsJ  and  a  copy  only  of  the 
sunmions  were  handed  to   him. 

Mr.  Upington  was  for  the  appellant, 
and  Mr.  Molteno  for  the  respondents. 
Mr.  Upington  &aid  the  appeal  was 
brought  on  the  ground  that  the  Court 
had  never  slavishly  followed  forms  and 
technicalities  whe<re  no  injustice  had 
been  done.  There  was  no  question  that 
the  defendants  knew  who  the  summons 
was  intended  for,  beoause  they  filed  a 
power  to  defend  the  case  to  the  final 
end.  and  not  merely  a  power  to  take 
exception  to  the  summons.  The  objec- 
tion under  tho«e  circumstances  that  the 
name  of  the  firm  was  given,  and  not  the 
names  of  the  individuals  was  a  sheer 
technicality  which  the  Supreme  Court 
had  never  favoured,  and,  in  addition, 
the  plaintiff  made  reasonable  efforts  to 
obtain  the  names  of  the  parties,  and  the 
defendants  refused  to  accord  that  in- 
formation. Counsel  quoted  the  11th 
rule  of  the  Magistrate's  Court,  which 
he  conteivded  met  the  case  for  the  plain- 
tiff, and  submitted,  further,  that  to 
allow  mere  technicalities  such  as  these 
exceptions  would  be  a  gross  injustice. 

Mr.  Molteno  contended  that  the  plain, 
tiff  was  entirely  to  blame  for  the  form 
of  the  sunmions.  On  the  15th  November 
he  gave  the  defendants  twenty- four 
hours'  notice  to  supply  the  names,  and 
without  waiting  utvtil  the  twenty-four 
hours  were  up,  they  issued  the  sum- 
mons. A  firm,  unlike  a  Corporation, 
could  only  be  sued  through  the  parties 
to  the  firm.  Tlie  partnership  was  sued, 
and  there  was  not  an  individual  men- 
tioned in  the  summons.  The  Court 
would  not  go  so  far  as  to  h(^d  it  a 
good  summons  where  there  were  no 
namcffi  mentioned,  as  in  this  case,  and 
whero  Ihere  might  have  been  any  num- 
IjcT  of  partners.  The  summons  simply 
said  :  **  Messrs.  Barnes.  Van  Staaden 
and  Defines.  a  firm  oif  builders  and 
contractors,"  and  therefore  the  firm 
was  summoned,  and  not  the  individual. 
If  the  appellant  had  waited  the  twenty- 
four  hours,  in  all  probability  he  would 
have  got  the  full  names. 

Buchanan.  J. :  The  plaintiff,  Lfafa- 
yette,  a  painter,  entered  into  a  contract 
with  a  firm  of  builders  carrying  on 
business  in  Aliwal  North.  He  alleges 
that  there  had  been  a  breach  of  this 
contract,  and  thereupon  he  wished  to 
sue  the  firm  for  damages  for  tins 
breach.  His  attorney,  not  knowing  the 
namea     of   the   partners   of    the     firm. 


wrote  to  the  firm   asking  tltem  to  sup- 
ply the   names  of   the    individual   part- 
ners.    He    gave    twenty-four    hours    for 
the  reply,   but  withoui   waiting   for  the 
expiration  of  the  twenty-four  nours,   on 
the   same  day  he  issued  a   summons  in 
this   form :     "  Summon    Messrs.   Barnes, 
Van    Staaden    and    Deane,     a    firm    of 
builders  and  contractors,   the  full  names 
of   the  partners    being  unknown  to   the 
plaintiff,"    and   the    names   the    defend- 
ants'   attorney    has   disinclined    to    dis- 
pose.    When    the  matter  came  into  the 
Court   the  defendants   filed    a  power  of 
attorney   giving    their    full    names,    and 
describing    themselves    ne   carrying    on 
business     together    as    a    firm.        They 
gave    authority    to   their    agent   to    de- 
fend  the   case   to  the  final  end.     When 
the  case  came  on  the  plaintiff's  attorney 
applied    for  leave    to   amend    the    sum- 
mons     by  inserting  the  full    names   of 
the    partners    in    the    summons    which 
had    been    personally    ser\'ed.        It    is 
true   there   wa«   ground   for  a  technical 
objection    to    the   summons,    but    when 
the   names  had   l3een  disclosed,  and   the 
plaintiff    applied    to   amend    this    sum- 
mons,  the  Magistrate  was  clearly  wrong 
in  refusing    to   insert    the  names  which 
for  the  first  time  had  been  given.    The 
defendant's  agent  said  he   did   not   feel 
bound  to  aid    the   plaintiff    in  bringing 
his    case,    but    when    once    the    names 
were   ^iven    there  could   be   no  posr-ible 
prejudice   to  the    defendants   in   amend- 
ing  the   summons.    Tlie  other   question 
upon    which    the   exception    was    taken 
was  whether  there  was  sufficient  service. 
The  summons  had   been  served   on  otic 
of  the  partners  personally,  but  not  upon 
tlie  others.    The  11th  rule  of  the  M^s- 
trate's    Court    distinctly    lays    down     if 
two  or  more  persons  jointly  sued  (they 
are  jointly  sued   here)  are   partners    in 
trade  (they  are   partners  in   trade  here) 
service   upon    either   of   them   shall    bo 
sufficient.     It   is    said    that    the   service 
was  not  made   at   the  place  of  business 
of  the  firm.  KPrue.  it  was  not  made  at 
the  place  of  business ;   but  it  was   per- 
sonally served   on  one   of  the  partners. 
There   is  no  prejudice  here,   because  all 
the  partners  have  given  power  to  their 
attorney    to     defend    the    case    to     the 
final    end.     The    defendants    would    not 
supply  their  full  immes  to  the  plaintiff, 
and  I  do  not  think  the   plaintiff  ought 
to    be    prevented    vindicating    his  claim 
in    Court.    The   Magistrate    was  clearly 
wrong    in    refusing   this    application    to 
amend.    Tlie    Magistrate    was    right    in 
saying  that  the  summons  wa^  bad  until 
amended,      but  the    information      upon 
which   the  amendment  was  to  be  made 
was    wholly    in    the    knowledge    of    the 
defendant,      and   not  in  the  knowledge 
of   the    plaintiff.    The   appeal    will      be 
allowed,    the  application    to   amend    the 
summons  by  inserting  the  full  names  of 
the    defendants    allowed,    and    the    case 
to  be  remitted    to    the   Magistrate      for 
hearing  on    its  merits.    The    costs     in 


"CAPE  TIMKS"   LAW  REPORTS. 


129 


die  Mftgistrale*8    Court    will    be    within 
tlw    Magistrate's      discretion,     but     the 
cost!  of  appeal   will    hare    to    be   paid 
br  the  reapondents. 
Bfaaadorp,  J.,    concurred. 

[Applicants*  Attorneys :  Reid  and 
Nephew;  Reiipondcnts'  Attorneys:  Not 
shown  on  record.] 


BKTUOUR  V.  TUKISI   AND  AKOTHEB. 

SammoDs — Principal — Managing 
agent. 

Though  the  priveijxil  of  a  shop 
it  the  proper  persan  to  tnie  ami 
he  «!«/,  the  Court  will  not 
hitfrfere  mi  appeal  irh^re  the 
managing  agi^it  of  a  bninch 
»Ao/>,  who  had  prerimmly  taken 
legal  pwcee4iitiys  in  his  priitci- 
pJ^»  interttetj  ha»  been  aued, 
prifvided  no  imbHtantiul  injustice 
i»  done. 


This  was  an  appeal  from  a  decision 
of  the  R.M.  of  Mount  Fletcher,  in  which 
he  overruled  an  exception  taken  by  the 
liefendanfc  (present  appellant)  that  the 
{irineipal  of  the  firm  anould  have  been 
sued.  In  the  original  «ction  in  which 
one  Hlubi  wajs  defendant,  Daines 
and  SejDiour  obtained  a  writ  of 
execution  for  49  groots,  and  tihen 
the  goats  were  claimed  by  the  respon- 
dents in  an  interpleader  action.  The 
appellant  was  summoned,  and  except- 
ed on  the  ji^round  that  he  was  the 
manager  of  the  firm.  The  Court  con- 
sidered the  exception  a  quibble,  as  the 
defendant  had  received  instructions  to 
defend  the  action,  and  overruled  the 
exception. 

Mr.  Siition  was  for  the  appellant,  and 
there  was  no  appearance  for  the  rospon- 
diMits. 

Mr.  Sutton  having  been  beard  in  argu- 
ment, 

Buchanan,  J. :  I  quite  agree  with  Mr. 
button  that  as  a  general  principle  the 
a!?ent  ought  not  to  have  been  sued, 
hut  the  principal.  But  in  this  case 
•her©  arc  special  circumstances.  The 
firm  of  Daioes  and  Seymour  have  a 
number  of  branch  agencies  in  the 
Traiukei,  and  ono  Seymf>ur  a«  man- 
a.t(er  of  this  agency  took  out  a  summons 
<«  their  behalf,  and  got  judgment 
against  Klubi.  In  execution  of  the 
judgment  against  Klubi  the  messenger 
«i»d  curtain  stock.  This  stock  is 
cwijood  bv  Tukisi .  and  ihe  other  plain- 
tiff, and  the  Magistrate  under  the  rules 
of  Court  directed  a  summons  to  be 
irsned  to  Seymour,  the  manager  of  this 
I^rticular  branch,  to  show  cause  why 
the  stock  should  not  be  released.  The 
man  appeared  as  t^e  ag^ent  of  the  firm, 


and  this  was  tlie  man  who  obtained  the 
original  summons.  On  the  merits  it 
is  clear  that  the  stock  seized  was  not' 
the  property  of  Klubi,  but  the  pro- 
perty of  the  present  respondents. 
I  think,  under  the  circum- 
stances, the  technical  mistake  of  the 
Magistrate  in  directing  the  summonrt  to 
the  agent  in  this  case  ought  not  to 
upset  the  decision  in  the  interpleader 
claim.  The  parties  interestea  were 
before  the  Court  to  decide  whether  the 
property  belonged  to  the  claimants  or 
to  tho  defendant  in  the  case.  The  evi- 
dence shows  clearly  that  the  property 
belonged  to  the  respondents,  and  as  it 
has  been  released,  I  don't  think  we 
ought  now  to  interfere. 
Maasdorp,  J.,  concurred. 


MADOLO  V.  MLIJIMI. 

Magistrates^s  finding  on  evidence. 

The  Court  refused^  on  appeal^ 
to  reverse  a  Magistrate's  fiiuU 
ing  OH  the  evidence^  tJwugh  it 
did  not  consider  his  leasoiis 
fiYT  judgment  satisfactory. 


This  waa  an  appeal  from  a  decision  of 
the  RM  of  Victoria  E^t,  in  an  action 
brought  by  the  plaintiff  to  recover  a 
cow  and  calf,  or  their  value,  £16,  and 
damages,  £5. 

Tho  Magistrate,  in  his  reason^  for  giv- 
ing judgment  for  the  defendant,  with 
costs,  stated  that  there  was  absolutelv  no 
evidence  to  prove  that  the  cow  and  the 
calf  were  the  plaintiff's  property.  In  the 
al:«ence  of  i^uch  proof,  the  plaintiff  could 
not  succeed,  as  everything  went  to  show 
that  the  lawful  owner  was  one  Nje,  and 
ho  had  no  alternative  but  to  give  judg- 
ment for  the  defendant. 

Mr.  Close  was  for  the  Appellant,  and 
Mr     P.  Jones   was  for  the   respondent. 

Mr.  CUose  contended  that  the  whole  of 
thi^  Magistrate's  reasons  on  the  evidence 
were  incorrect.  The  most  important 
fact  was  that  Nje  swore  himself  tliat  the 
cattle  were  the  plaintiff's  property. 
Nje  had  every  reason  to  support  the  de- 
fendant, and  not  the  plaintiff. 

Mr.  «roDei,  having  been  heard  in  re- 

iiuchanan,  J. :  The  action  was  brought 
in  the  Court  below  by  Madolo  against 
Mlijimi  for  the  recovery  of  a  cow  and 
calf,  or  £15,  their  value,  and  damages. 
The  evidence  before  tho  Magistrate  is 
every  voluminous,  and  as  far  as  one  can 
ascertain  from  the  record,  the  action 
arose  out  of  loans  made  by  the  defen- 
dant, Mlijimi,  to  one  Nje.  Nje  him- 
seir  admits  that  these  loans  wore  made, 
and  that  disputes  arose  between  him 
and  the  plaintiff  in  consequence.  The 
first  loan  was  fpr  £3  10s.,  for  which  ceT- 


1 


m) 


"CAPE  TIMES '»  LAW  REPORTS. 


tain  goats  were  alleged  to  have  been 
pledged.  Nje  says  he  did  not  pledge 
goats,  but  pledged  grain.  He,  however, 
seems  to  have  paid  that  loan.  Another 
loan  of  £10  was  given,  for  which 
the  defendant  says  Nie  pledged  his 
cow  and  calf.  The  defendant  went 
to  Nie,  and  demanded  payment  of 
the  loan,  and,  on  Nje  failing  to 
pay,  defendant  took  the  cow  and  calf. 
There  is  a  direct  conflict  of  testimony  as 
to  whether  the  cow  and  calf  belonged 
to  Nje  or  to  plaintiff.  The  Magistrate, 
in  his  reasons,  says  there  is  absolutely 
no  evidence  to  prove  that  the  cow  and 
the  calf  were  the  property  of  the  plain- 
tiff, but  there  is  considerable  evidence 
to  show  that  they  belonged  to  Nie. 
Now  there  is  some  evidence  on  the 
record  in  favour  of  plaintiff's  claim,  but 
I  take  the  Magistrate  to  mean  that,  in 
his  opinion,  it  was  established  that  the 
cattle  belonged  to  Nje.  The  only  Ques- 
tion is,  whether  on  the  evidence  there 
should  not  have  been  absolution  from 
the  instance,  but  the  Magistrate  has 
gone  through  the  whole  of  the  case,  and 
in  the  conflict  of  testimony  he  has  de- 
cided for  the  defendant.  It  is  useless, 
therefore,  to  send  the  case  back,  and, 
although  the  reasons  given  are  not 
satisfactory,  the  Court  is  not  prepared 
to  interfere  with  the  Magristrate's  find- 
ing, seeing  there  is  evidence  to  support 
his  judgment.  The  record  shows  further 
a  curious  conflict  of  testimony  as  to 
what  took  place  before  the  case  came 
More  the  Magistrate.  Plaintiff  has  laid 
his  complaint  before  the  headman,  who 
held  a.  council  upon  the  claim.  The 
headman    says    he    found    against     the 

Klaintiff,  but  two  of  the  councillors  say 
o  found  for  the  plaintiff.  As  the  de- 
fendant is  in  possession  of  the  property, 
it  lay  upon  the  plaintiff  to  prove  that 
the  cattle  were  hie  property,  and  the 
Magistrate  has  held  that  he  has  failed  to 
do  so.  It  is  a  question  purely  of  fact. 
The  appeal  must,  therefore,  bo  dismissed, 
with  costs. 

Maasdorp,  J.,  concurred. 


DE  WET  V.  JAPHTHA. 

Claim  in  reconvention. 

WJiatever  may  he  a  Mag'm- 
tratf'R  opinion  as  to  the  meriU 
of  a  defence,  he  cannot  ghe^ 
judgment  in  reconvention  tin- 
leM  the  clahn  itt  specifically 
pleaded. 


The  respondent  in  the  Court  below  de* 
nied  the  debt,  and  the  plaintiff  sent  in  in- 
terrogatories to  prove  hia  claim.  The  de- 
fendant failed  to  pay  a  debt  of  £34  16s., 
and  he  signed  a  new  promissory  note  for 
£30  148.,  and  agreed  to  deliver  up  an 
ox  for  the  remainder  of  the  debt,  but 
fniled  to  do  so.  The  Magistrate,  in  his 
reasons,  stated  that  the  summons  was 
ambiguous,  and  it  was  not  clear  that 
the  defendant  had  not  a  claim  in  recon- 
vention against  the  plaintiff.  ^  There 
was  no  explanation  of  the  plaintiff's  fail- 
ure to  attend,  but  the  reason  was  ob- 
vious. The  defendant  gave  his  evidence 
in  a  clear  manner,  and  he  was  supported 
by  documents  and  receipts.  It  was 
clear  from  the  evidence,  the  receipts  and 
promissory  noiee  that  the  defendant 
paid  the  plaintiff  £79  16s.  6d.  for  four 
oven,  which  the  latter  had  taken  away. 
The  summons  would  be  dismissed,  and 
there  would  be  judgment  for  the  defend- 
ant in  reconvention   for  £79  16.s.  6d. 

Mr.  P.  Jones  appeared  for  the  appel- 
lant, and  there  was  no  appearance  for 
the  reapondent. 

Mr.  Jones,  after  arguing  on  the  first 
claim,  pointed  out  that  the  plaintiff  had 
no  notice  of  the  claim  in  reconvention, 
and  contended  that  that  judgment  oould 
not  be  allowed  to  atand.  Th»  story 
told  by  the  defendant  was  a  most  im- 
probable one. 

Buchanan,  J. :  The  plaintiff,  De  Wet, 
sued  Japtha  for  £7  10s.  The  evidence 
given  as  regards  this  daim  is  in  direct 
conflict.  The  Magistrate,  believing  the 
defendant  and  his  witnesses^  eviclenoe, 
which  he  aaid  had  been  given  in  a 
clear  and  candid  way,  had  no  hesitation 
in  believing  it,  and  gave  judgment  ac- 
cordingly for  defendant.  Xbe  Magis- 
trate must  be  held  to  be  right  in  giving 
judg^nent,  with  costs,  for  the  defendant 
m  convention.  But  the  Magistrate 
wishing  to  give  the  defendant  what  his 
evidence  disclosed  he  was  entitled  to, 
gave  judgment  for  the  plaintiff  in  re- 
convention for  the  sum  of  £79  168.  6d. 
Now  the  Magistrate  was  not  justified 
in  giving  judgment  on  a  claim  which 
had  never  been  pleaded,  and  of  which 
the  plaintiff  was  unaware.  The  judg- 
ment will  be  altered  to  judgment  in  the 
Court  below  for  the  defendant,  with 
costs  on  the  claim  in  convention,  and 
the  record  amended  by  omitting  from 
the  judgment  all  reference  to  a  claim 
in  reconvention,  with  cosrta  of  appeal. 

Maasdorp,    J.,   concurred. 


This  was  an  appeal  from  a  decision 
of  the  Resident  Magistrate,  of  Engoolso, 
in  which  the  plaintiff  was  unsuccess- 
ful in  his  action  to  recover  an  ox,  or  its 
Y«lue,   £7   10s 


» 


"CAPE  TIMES"  LAW  REPORTS. 


131 


SUPREME  COURT 


rasx  DIVISION. 


[Before  the  Chief  Jiutice  (the  Ri^ht 
Hon.  Sir  J.  H.  DE  ViLLiiRS,  P.O., 
K.C.M.O.,  LL.D.).] 


TRIAL  CAUSES. 


ISTATE8  8W ABT  AND  B ASSON  f       1 905. 
V.  GRBEPr  AND  WALTKR.       i  Feb.  2lst. 

Negligence    of.  administrators — 
Abnse  of  trust. 

The  plaintiff's  declaration  set  out  that 
be  resided  in  Prince  Albert.  He  sued 
in  bis  capacity  as  executor  dative  in  the 
ettatca  of  his  late  parents.  The  defen- 
dants carried  on  business  as  law  agents 
at  Laingsburg.  In  March.  1900,  the 
plaintiff  employed  the  defendants  to 
undertake  the  administration  of  the 
ctfcate  and  to  collect  certain  outstanding 
inoneys  in  Laingsburg.  Plaintiff  de- 
livered all  the  assets  of  the  estate,  to- 
V^ther  with  the  documents  and  papen, 
And  the  defendants  thereupon  proceed- 
ed to  collect  the  debts.  In  Apnl,  1900, 
the  plaintiff  paid  £400  at  the  defendants* 
i^iiest.  and  although  be  had  repeatedly 
c-alled  on  the  defendants  to  complete 
{he  administration  of  the  estate,  they 
had  failed  to  do  eo.  Plaintiff  claimed 
that  he  was  entitled  to  withdraw  the 
*gencT  and  to  recover  £477  in  all,  paid 
into  the  estate,  and  £80  damages,  with 
costs. 

Mr.  J.  E.  R.  de  Villiers  was  for  the 
plaintiff,  and  the  defendants  were  in  de- 
noit.  having   been    barred    from   plead- 

Njcholts  Swart,    executor     dative     of 

OH  late  parents,  stated  that  after  he  was 

*Pp6inft«i]  to  his   office,   he   emploved  a 

certain  Macleod  to  sell   the  movables  in 

the  estate,  which    realised  £36  Ofe.    6d., 

uid  Macleod    collected  outstanding  debts 

[otbe  amount  of  £360.     In  March,  1900, 

he  transfened  the   estate  to  the  defen- 

Quits,  because  Macleod  had  left  Laings- 

hunr,  and  he    caused  to  be  handed  over 

to  the  defendants   what  Macleod      had 

««ec(ed.      The  defendants  got  all  the 

other  issets  in  the  estate.      They     filed 

an  account,  which  the  Master    rejected. 

n?^   August   last    year   he   oamcelled 

the  agency  of  the  defendants,   and     he 

had  found  out  that  the  outstanding  debts 

lo  the  amount  of  £1,031    had  been  prac- 

^[ly  collected.     Being  one  of  the  heirs, 

he  had  to  pay  one-third  of  the  £1,152, 

jhe  value  of  the  inunovable  propertjr.    In 

I>ecember,  1900.  the  defendants    aaid  he 

>tili  owed      £400  to  settle  the      whole 

mitter.     Since  that  time  they  had  failed 

to    file  any  accounts.        He  had  since 

found  as  executor  that  there  were  cer- 

Np  bwri  whp  had  not  yet  bee»     |>aid 


out.  The  defendants  debited  the  wit- 
ness with  £83  5s.  6d.,  which  had  not 
been  paid  out  to  him.  Since  he  as- 
sumedf  the  administration,  he  had  filed 
an  account,  which  was  the  same  as  the 
defendants'  account,  with  the  ex- 
ception that  only  £25  was  allowed  for 
commission.  He  had  suffered  £80 
damage  through  the  defendants*  delay 
in  paying  out  the  heirs,  bein^r  sued 
twice  by  the  Master.  Certain  heirs 
were  about  to  sue  him,  and  he  had  a 
deal  of  correspondence  and  attorney's 
expenses  over  the  matter. 

By  De  Villiers,  C.J. :  Witness  saw 
Walters  in  town  this  morning.  Walters 
was  still  carrying  on  business,  and  he 
did  not  believe  the  firm  was  insolvent. 
A  cheque  had  been  sent  for  £200  by 
the  defendants  to  pay  out  the  remaining 
heirs,   which   had    been    disallowed. 

De  Villiers,  O.J. :  The  defendants 
have  not  appeared  in  this  case, 
and  I  take  it  they  practically  admit 
the  justice  of  the  plaintiff's  de- 
mand. I  am  bound  to  say  that  the 
conduct  of  the  defendants  appeari  to 
me  to  be  extremely  disreputable.  They 
are  law  agents,  practising  at  Laings- 
burg. They  undertook  to  administer 
this  estate  on  behalf  of  this  poor  farmer, 
who  implicitly  trusted  in  thorn.  He 
trueted  to  their  doing  the  work  pro- 
perly, and  he  himself  apparentljr  was 
too  ignorant  to  carry  on  the  administra- 
tion. It  clearly  was  their  duty  to  assist 
the  plaintiff  in  every  way,  and  to  carry 
on  this  liauidation,  not  only  expeditious- 
Iv  but  honestly,  to  account  lor  every 
penny  they  received,  and  not  to  debit  the 
estate  for  a  single  penny  until  that  pay- 
ment was  actually  made.  Large  sums 
we  find  debited  to  the  estate  which  have 
never  been  paid,  and  when  called  upon 
to  account  to  the  plaintiff,  the  defendants 
simply  lie  by,  and  do  not  even  take  the 
trouble  to  appear  before  the  Court  in 
order  to  explain  the  position.  I  am 
not  sure  that  the  defendants  by  their 
conduct  have  not  rendered  themselves 
liable  to  a  criminal  prosecution.  The 
judgmejit  of  the  Court  is  for  the  plain- 
tiff as  prayed  on  all  counts,  except  the 
last  amount,  for  which  there  will  be 
damages  for  £40,  instead  of  £80.  The 
defendants  to  pay  the  costs,  including 
the  plaintiff's  expenses.  ^  Judgment 
against  the  defendants  jointly  and 
severally. 


GOUB  AND  KOESBR  V.  BITTER. 

Sale    and    purchase — ^Weigbt    of 
evidence. 

This  was  an  action  brought  by  the 
plaintiffs,  farmers  at  Malmesbury,  to 
recover  £562  10s..  the  price  of  twenty- 
five  mules,  and  £50  damages,  for  pastur- 
ing the  mules. 

The  declaration  set  out  that  the  actiop 
arose  out  of  the  sale  of  certain  mu^es, 


133 


f( 


CAPE  TIMES"  LAW  REPORTS. 


which  the  plaintiff  Alleged  the  defen- 
dant entered  into,  and  which  the  defen- 
dant denied.  On  the  2nd  January  the 
plaintiffs  jointly  9old  twenty-five  mules, 
to  be  selected  by  the  defendant,  for  £22 
lOs.  each.  The  mules  were  to  be  ac- 
cepted within  eight  days  from  the  date 
of  sale,  but  the  defendant  failed  to  do 
so,  although  the  plaintiffs  -tendered  to 
him  the  selection  of  the  mules.  Plain- 
tiffs claimed  £562  lOs.,  the  price  of  the 
mules,  and  £50  for  pasturing.  The  de- 
fondant,  in  his  plea,  set  out  that  he  went 
with  one  Cloete  to  inspect  the  ^  mules 
for  his  principal,  who  was  buying  on 
behalf  of  the  German  Groverranent.  He 
merely  inspected  the  mules,  and  agreed 
to  inform  Cloete  whether  the  purchase 
would  be  completed  or  not.  Sumequent. 
ly  he  wired  to  Cloete  from  Caledon  that 
tne  mules  would  not  be  re<|uired. 

Mr.  W.  P.  Buchanan  (with  him  Mr. 
D.  Buchanan)  appeared  for  the  plain- 
tiffs; and  Mr.  Searle,  K.C.  (with  hdm 
Mr.  Russell)  appeared  for  the  defendaxrt. 

Jasper  Gous,  one  of  the  plaintiffs  in 
the  case,  stated  that  he  was  a  specula- 
tor in  stock.  He  was  approached  by 
a  Mr.  Cloete  about  the  end  of  Decem- 
ber or  the  beginning  of  Januarv.  At 
that  time  he  nad  about  40  mules  run- 
ning on  the  farm.  On  the  2nd  Janu- 
ary, Cloete  and  Ritter  came  to  Mal- 
mesbury.  Ritter  agreed  to  pay  £22 
10s.  each  for  the  mules  delivered  at 
the  Docks,  and  completed  the  contract 
by  accepting  25  mules  at  the  nrice  if  the 
plaintiff  would  keep  them  tor  a  few 
days.  Ritter  had  not  his  branding 
iron  with  him,  and  witness  objected  to 
(Moeto's  suggestion  to  cut  them  on  the 
head.  It  was  arranged  that  Ritter 
should  call  on  the  following  Friday  and 
pay  for  the  mules.  The  mules  cost 
witness  on  an  average  £22  each.  At 
that  time  there  were  several  buyers  after 
the  mules.  Witness  understood  that 
the  .defendant,  whom  he  met  for  the 
firs^t  time,  was  going  in  largely  for 
stock-buying.  In  the  presence  of  his 
partner  witness  explained  the  position, 
and  Koeser  was  satisfied,  but  said  that 
another  party  who  had  made  an  offer 
must  be  acquainted  with  the  sale. 
After  that  he  had  an  offer  for  the 
mules  from  Mr.  Gird.  Later  on,  Cloete 
wired  from  Caledon  that  Ritter  did  not 
require  mules.  In  reply,  witness  in- 
sisted on  the  »ale.  It  took  him  some 
time  to  find  out  the  address  of  the  de- 
fendant, and  when  he  did  he  caused  a 
letter  to  be  written  to  him  from  an 
attorney.  The  defendant,  in  reply, 
denied  the  sale,  stating  that  he  went 
to  Malmesbury  with  Cloete  to  buy  some 
mules  he  had  for  sole,  and  pointed  out 
that  many  of  them  were  very  poor. 
He  had  suffered  d&mages  to  the  extent 
of  £50  in  keeping  the  mules  from  the 
8th  January.^ 

Cross-examined  by  Mr.  Searle :  He 
made  arrangements  with  Cloete  to 
bring  Ritter  out.  and  Cloete  was  to  get 
his  commission  for  putting  through  the 


sale.  The  defendant  did  not  $9,y  thai 
he  was  buying  the  animals  for  someone 
else.  The  defendant  had  hardly  time 
to  select  the  twenty-five  mules  and  put 
them  aside.  The  defendant  pointed  out 
that  some  of  the  mules  were  young  and 
thin,  but  he  did  not  saT  that  he  might 
be  able  to  pick  oufe  a  few;  nor  did  be 
say  that  ne  would  wire  to  Cloete 
whether  or  not  he  wanted  the  mules. 
Without  selecting  any  particular  mules 
he  said  he  would  take  twenty -five.  He 
was  to  come  back  from  Caledon  to 
select  the  mules.  He  did  no6  know 
Ritter' 8  address,  otherwise  he  would 
have  communic«ted  with  him  when  he 
received  the  wire  from  Cloete  that  the 
mules    were    not    wanted. 

Re-examjned  by  Mr.  Buchanan :  He 
gave  the  commission  to  Cloete  on  oc- 
count  of  the  introduction. 

Albert  Cloete.  of  Bellville,  who  intro- 
duced the  plaintiff  to  the  defendant, 
stated  that  the  defendant  was  told  by 
witness  that  there  were  twenty-five 
mules  at  Malmesbury  for  sale,  and  it 
was  arranged  they  should  leave  on  Mon- 
day mornmg.  The  defendant,  in  wit- 
ness's presence,  agreed  to  take  twenty- 
five  mules  at  £22  10s.  each.  Ritter,  not 
having  his  branding  iron  with,  him,  said 
that  he  would  come  on  Friday  and  pay 
for  and  mark  the  mules.  Gous  agreed 
to  the  mules  staying  a  couple  of  days 
at  the  farm,  and  asked  for  a  couple  of 
days'   notice  to  secure  trucks. 

Cross-examined  by  Mr;  Searle: 
Ritter  did  not  mention  anything  about 
selecting  a  few  mules.  The  defendant 
miifht  have  told  witness  that  he  was 
sorry  he  could  not  find  his  principal. 

Nicholaas  Koeser,  joint  plaintiff, 
stated  that  he  went  into  speculation 
with  Gous.  Witness  lent  his  cart  to 
take  them  out  to  the  farm.  Gous  on 
his  return  said  that  Ritter  had  bought 
twenty-five  mules  for  £22  10s.  each, 
and  witness  agreed  to  let  them  run  on 
the  farm  for  a  couple  of  days. 

Cross-examined  by  Mr.  Searle :  Gous 
told  witness  that  Ritter  had  no  know- 
ledge about  mules,  and  that  the  defen- 
dant would  bring  a  man  to  pick  and 
brand   them  on   Friday. 

The  plaintiff  Koeser's  driver  testified 
to  having  driven  out  the  defendant, 
Cloete^  and  Gous,  and  hearing  a  con- 
versation to  the  effect  that  Ritter  had 
purchased  twenty-five  mules  at  £22  10s. 
each.  Ho  heard  Koeser  saying  that  he 
would  refuse  the  offer  from  the  other 
man. 

Cross-examined  by  Mr.  Searle:  Wit- 
ness only  heard  wnat  they  said  when 
they  returned  to  thib  cart.  There  were 
many  more  than  twenty-five  mules  on 
the  farm,  and  the  defendant  pointed  to 
a  few. 

Mr.    Buchanan   closed   his   case. 

Chos.  Wm.  Ritter,  defendant,  stated 
that  he  was  a  commission  agent  and 
fancy  dealer  in  Cape  Town.  In  Decem- 
ber last  a  friend  of  his  came  down  from 
tlie  /German  territory,  and  had  a  coqji* 


C( 


CAPE  TlBiES"   LAW  REPokxS. 


i:« 


minion  to  buy  stock  on  beh«if  of  the 
German  Government.  Witness  was  to 
get  a  commission  for  giving  him 
assistance,  and  mentioned  the  matter 
to,  among  others,  a  Mr.  Drever,  who 
brought  him  in  cont4icfc  with  Cloete. 
(loete.  in  the  presence  of  Dreyer.  said 
that  he  had  mules  for  sale  at  Malmes- 
bttry.  and  witness  understood  that  he 
was*  acting  on  commission.  Witness 
had  already  bought  twentj-five  mules 
and  told  Cloete  that  he  did  not  think 
ii  worth  while  to  go  out.  Cloete 
pressed  witness  to  go  out  and  witness 
agreed  to  do  so,  but  made  it  clear  to 
Cloete  that  he  would  merely  inspect 
the  animals,  aa  his  principal  could  not 
go  out  with  him.  When  witness  got  down 
to  Malmesbury,  Cloete  and  Gous  press- 
ed him  to  purchase  the  mules,  and  wit- 
ness then  asked  Cloete  if  he  had  ex- 
plained the  circumstances  to  Mr.  Gous 
that  he  was  not  in  a  position  to  buy. 
Witness  asked  Gous  if  the  buver  was 
satisfied  would  he  keep  the  muK»  for  a 
few  davs  until  the  vessel  left,  and  the 
plaintitf  t>aid  he  would.  Witness  most 
emphatically  denied  that  there  was  a 
purchase  of  twenty-five  mules  at  £22 
10s.   each. 

[Do  Villiers,  C.  J. :  Was  there  any 
mention  of  mules  when  you  came  back?] 

Witness:    No,  my  lord. 

[Do  Villiers.  C. J. :  Do  you  8Ug^.st 
that  these  pcopk  arc  conspiring  against 

you  ?1 

Witness :   Yes.  my  lord. 

Continuing,  witness  said  that  he 
bought  no  mules  at  CftJedon,  but  he 
found  the  mules  there  better  than 
tho^e  at  MaJme*4>ury.  Witness  bouj^ht 
mules  provisionally  on  the  parade,  which 
hi»  principal  refused  to  pay  for.  Wit- 
ney* thought  that  six  or  seven  of  the 
Malmesbury  mules  would  be  suitable. 
and  told  Gous  so.  Witness  arranged 
that  ho  would  wire  to  Cloete  what  the 
decision    was. 

Cross-examined  by  Mr.  Buchanan :  He 
gave  Cloete  the  name  of  his  principal, 
and  explained  definitely  to  him  that  he 
could  do  nothing  without  his  principars 
sanction.  ITe  did  not  give  the  full  cir- 
cumstances of  the  case  when  he  wrote  to 
the  plaintiffs*  attorney,  because  he 
thought  It  was  a  game  of  bluflP.  His 
principal  did  not  arrange  with  the  Ger- 
man Consul  that  he  and  witness  should 
work  in  partnership.  There  was  a  good 
deal  of  buying  on  speculation  for  the 
German  Government.  Witness  recog- 
nised Cloete  as  the  party  he  had  to  deal 
with.  He  could  not  explain  why  Cloete 
suggested  that  the  mules  should  be 
clii^»ed.  The  mules  at  Caledon  were 
very  much  better  than  those  at  Malmes- 

"fiy  De  Villiers,  C.J. :  He  would  not 
have  given  more  than  £15  for  the 
mules,  and  he  could  not  come  to  an;fr 
arrangement  until  he  had  seen  hvi 
principal.  He  believed  the  plaintiffs 
were    conspiring    against   him.    If     the 


mules  were  only  worth  £15  he  could 
not  explain  why  he  did  not  say  that  it 
was  useless  to  talk  about  business. 

Marthinus  Dreyer  stated  that  ho  com- 
municated with  Cloete  on  what  he  heard 
from  the  defendant.  Cloete  told  the 
defendant  that  the  cart  was  hired  at 
Malmesbury,  and  witm^s  heard  the  de- 
fondant  say  that  he  was  going  to  inspect 
the  mules  for  hirs  principal. 

Cross-examined  by  Mr.  Buchanan : 
Witness  knew  that  Cloete  had  no  inulc^, 
and  tlie  defendant  understood  that.  Wit- 
ness told  Cloete  that  the  defendant  had 
an  order  for  twenty-five  mules  or  more, 
and  horses  and  oxen. 

Mr.  Searle  closed  his  case,  and  coun- 
sel having  been  heard  in  argument  on 
the  facts, 

De  Villiers,  C.J. :  If  the  evidence  for 
the  plaintiffs  is  correct,  there  can  be 
no  doubt  there  has  been  a  concluded 
contract  of  sale  between  the  parties. 
Plaintiffs  themselves  have  both  given 
their  version  of  what  occurred  on 
the  2nd  January.  It  was  the  plaiii- 
tiCF  Gous,  who,  with  Cloete,  accom- 
panied the  defendant  on  the  way  from 
Malmesbury  to  the  place  where  the 
mules  were,  and  both  he  and  Chn'te 
state  that  after  the  mules  had  bec>n  in- 
spected a  dcBnite  contract  was  made 
between  the  parties,  that  the  defendant 
piircha-sod  twenty-five  mules,  which  hu 
vfHt  to  be  allowed  to  sehct  from  tha 
trcop  which  was  in  the  enclosure,  that 
he  was  to  pav  £22  10s.  .p^r  head  Urr 
these  mules,  that  they  were  to  be  select- 
ed, and  branded  on  a  subsequent  date, 
paid  for  in  cash,  and  delivery  to  Ix*  made 
within  eight  days  at  the  docks.  That  ia 
the  definite  statement  not  of  oi>e  wit- 
iiCf^s.  but  of  all  the  witnct!«e^,  who  were 
picitent.  TKg  driver  was  not  prcM*iit 
throughout  the  whole  of  the  negotiations, 
bet  he  ?ays  he  was  present  after  the 
iiH'pection  had  taken  place,  and  he 
hoard  a  conversati<)n  which  took  place 
between  those  parties,  the  details  ol  the 
conversation  agree  with  the  two  other 
V'ilnf«.ses,  and  their  evidence  is  corro- 
borated by  Mr.  Ooeso,  who  did  not  ac- 
company the  parties  to  the  farm,  but  re- 
nifiined  at  Malmesbury.  It  is  further 
stated  on  the  return  of  the  parfies  from 
the  farm  there  was  a  conversation  about 
Croese's  horse,  and  that  ho  was  definite- 
ly informed  bv  his  partner  that  the 
twenty-five  mules  had  been  sold  at  £22 
10?.  a  piece,  to  be  delivered  at  the 
Docks — I  convei-sation.  ac<K)rding  to 
these  witness*^8,  which  was  loud  enough 
for  the  defendant  to  have  heard.  When 
thit  conversation  took  place  the  clefend- 
ar.t  must  have  heard  it.  and  if  he  then 
did  not  raise  any  objection,  and  did  not 
in  any  way  demur,  then  his  silence  may 
fairly  have  been  taken  as  a  cori^nt  to 
tlif*  transaction.  Against  the  evidence 
of  these  four  witnesrH\s.  r>n  the  other 
hand,  there  is  the  evidence  of  the  de- 
fendant himself.  Now.  the  Court  has 
never  been    in    the  habit  of      coimting 


i34 


"CAPE  mlES"  Law  llEtoftTS. 


heads   in   weighing   evidence.     The  evi- 
dence of  one  witness   may  be   as    valu- 
able aa  the  evidence  of  fif tv  other  wit- 
nesses, and  if  the  evidence  of  one  witness 
is   clearly  consistent  with  all   the   other 
facts,     the     Court     would     not     neces- 
sarily   hold    with    numerical    preponder- 
ance.    In     the      present       case,       how- 
ever, it  appears  to  me  there  is  not  only 
the      greater      number      on      the      one 
side,      but     the     probabilities     seem     to 
bo  on   the  eide   of  the   plaintiflfs.       The 
deiendant  on   the  Monday    was    clearly 
anxious  to  make  a  bargain,  and  when  he 
heard  there  were  other  people  after  the 
mules,  he  naturally  would  like  to  clinch 
the    bargain.       If  he   delayed    someone 
else  would  go  in  and  snap  up  the  mules. 
He  had   seen   Gloete,    and    taken       the 
trouble   to  go   all  the    way  to   Malmes- 
bury  on  the  Monday.    He  said  it  wa«  a 
holiday,    but   I   have    no  doubt,    beyond 
that  fact  there  was  a  desire  to  make  this 
bargam.     He  thought  he  might  make  a 
gocHi     thiniJT     of     it     by     disposing      of 
the  mulee  to  the  German     Governmont. 
When  he  met  Schmerenbeck,  cold  water 
seems  to  have  been  thrown  on  the  whole 
matter,   Schmerenbeck  thinking  that     a 
better  class  of  mule  could  be  bought  for 
£23.       Naturally,   there  would     be     an 
anxiety  on  the  part  of  the  defendant  to 
get  out  of  the  bargain.      I  do  not  mean 
to   say   that    Mr.    Ritter      intentionally 
came  here  to  swear  to  a  falsehood,  but 
1   do   think  he   was    very  eager  on  the 
Monday,    ai>d  no  longer  eager  on      the 
Wednesday,  and  he   led  Jiimself  to     be- 
lieve there  was  no    bargain.       I  am  con- 
firmed   in    this   view  by  the  disingenuous- 
ness  of  his  subsequent  conduct,  when  he 
tried  to  show  there  was  no  one  else  in 
the  inatter  except  Cloete,  and  that  Cloete 
was  the  man  with  whom  he  had  to  deal. 
The  defendant     must  have  known  after 
his  journey  to  the  farm  that  he  was  no 
longer  dealing   with  Cloete,     and     that 
Ciocte      was      merely      a      go-between. 
Then,   again,  I  was  struck  by  a  remark 
made    by  the  defendant  during  his  evi- 
dence, when  he  said  the  mules  were    not 
worth  more  than  £15.       It  is  impossible 
to   conjecture   why   he  did   not  at   once 
break   off  the  negotiations,  as  he  could 
not  have  hoped  to  bring  the     plaintiffs 
down  from  £22  lOs.  to  £15.      The    de- 
fendant seems  to  mo  to  have  been  some- 
what   hasty  at  the  time,  and  if   by  his 
words  aiicf  his  conduct  he  led  the  plain- 
tiffs  to    believe    that   the    bargain    was 
oc)ncluded.  his  own  feelings  and      inten- 
tion.s  in  the  matter  cannot  be  taken  into 
consideration.        I    am  of    opinion    that 
there  was  a  sale,  and  the  judgment  will 
be    for  the  plaintiffs  for  £562     lOs.,     as 
the  purchase  price  of  twenty-five   mules, 
on  the    plaintiffs'    teixler  to    allow      the 
defendant   to  select   twenty-five      mules 
out  of  the  forty  still  in  their  possession. 
In  regard  to  the  charge  for  the  grazing 
of  the  mules      under  the  cantract.   the 
plaintiffs   would    have   been   bound      to 
keep  them  until  the  10th,   and  the  date 


of  the  summons  is  the  25th,  so  that 
there  would  be  fifteen  days  at  Is.  per 
mule,  which  would  make  £18  158..  and 
there  will  be  judgment  for  the  plaintiffs 
for  the  further  sum  of  £18  ISs.,  interest 
a  tempore  morae,  the  defendant  to  pay 
the  costs,  including  the  plaintiffs*  ex- 
penses. 

[Plaintiff's  Attorneys:  Berrange  and 
Son;  Defendant's  Attorneys:  Walker 
and  Jaoobsohn.j 


[Beiore  the  Hon.  Sir  John  Buchanan.} 


WAITS    V.    HANSEN     A»D 

8CHBADEB.  , 

BRACHT    V.    HANSEN  AND     ] 
6GHRADER. 


1905. 

Feb.  2l8t. 

„    22nd. 

,.  2Hrd. 
I  ,.  24th. 
L     „    27th. 

Managing  agent  of  mercantile 
firm-^Salary  -  Share  of  pro- 
fits— Agreement  with  princi- 
pals— Goodwill. 

Where  Hie  managing  agenta  of 
a  cerUdnJirm  had  cotuidertiblg 
extemled  their  bintinexH,  and 
hid  inveatetl  conMerable  suma 
of  money  therein  on  the  termina- 
tion of  their  agreement :  the 
Court  held  tliat  the  plaintiffn 
Kere  entitled  to  a  at'itement  of 
account  and  to  the  percentage 
sjfecijied  in  the  contract. 

This  was  an  action  for  a  statement 
and  debate  of  an  account  and  for  a 
declaration  of  rights. 

The  plaintiff's  declaration  was  as  fol- 
lowfc : 

1  The  plaintiff  resides  in  Port  Klisa- 
beth. 

2.  The  defendants  carry  on  business  in 
partnership  under  the  style  or  firm  of 
Hansen  and  Schrader.  at  Port  Eliza- 
beth, in  this  Colony,  and  they  have  also 
offices  and  carry  on  busincas  in  London, 
Johannesburg,  Delagoa  Bay,  and  else- 
where. 

3.  In  and  since  the  year  1886  and  till 
tlie  end  of  1903,  the  plaintiff  was  one 
of  the  managers  of  the  defendants* 
business  at  Port  Elizabeth,  tlie  other 
manager  being  Odcar  Bracht.  and  his 
engagement  was  terminated  in  Decem- 
ber, 1903,  by  the  Act  of  the  defendants. 

4.  The  agreements  under  which  the 
plaintiff  was  engaged  and  duly  served 
the   defendants,   as  aforesaid,   were : 

(a)  An  agreement  for  the  period  end- 
ing the  31st  December,  1891,  dated  the 
16th  December,  1886,  signed  by  the  par- 
ties to  this  suit,  of  which  the  following 
IS  a  true  copy,  to  wit : 

Mr.  A.  H.  Waite,  as  one  of  the  man- 
agers of  Messrs.  Hansen  and  Schrader's 


"CAt»E  TIDIES"  LaW  reports. 


bV 


V^ 


Port  Elizabeth    business,    agrees  strictly  : 

^  adhere  to  all  their   instructioos,  more 

etogeuUy  without   their  sanction  not  to 

wee   up    any    constituent   or  supporting 

aocoaut,    not    to     buy    shares   or   landed 

properly   and    not    to   stand  security  for 

ancr  one. 

The  yearly  balance-sheet  shall  on  ail 
occasions  be  prepared  in  strict  accord- 
ance with  Messrs.  Hansen  an  Schrader's 
inj^ructioua. 

Rent  on   Messrs.    Hansen  and    Schra- 

de'r^s  store   propertv   shall  be    £500  per 

annum,  exclusive  of  all  rates,  sul>letting 

of  parts  of  the  building  shall  be  to  the 

benefii  of  the  business. 

Rent  on  dynamite  store  shall  be  £75 
per  annum,  leases  on  Faric's  and  Clark's 
stores  shall  he   at  existing  rentals. 

Mr.     \Vaite*s     guaranteed      allowance 
shall  be  £400  per   annum,  and  he  shall 
be  at  liberty   to  draw    monthly   accord- 
ingly.    Mr.  Waite  engages  himself  for  a 
period  of  five  years  to  the  3Ist  Decem- 
ber,  1881.        However,    Messrs.   Hansen 
and  Schrader  shall  be  at  liberty  to  ter- 
minate  this    agreement   by    giving    two 
mouths   notice,    in    which    case   Messrs. 
Hansen    and     Schrader    will    indemnify 
Mr.  Waite  by  £100  over  and  above  the 
amount  that  he  will  then  be  entitled  to 
according  to  this  agreement. 

At  the  termination  of  this  agreement 
the  result  of  all  business  operations 
from  l^t  January,  1887,  sliall  bo  ascer- 
tained, and  after  the  allowance  and  the 
share  in  any  profits  due  to  other  em- 
ployees, and  after  Mr.  Waiters  own 
allowance  of  £400  per  annum  have  been 
deducted,  Mr.  Waite  shall  share  in  any 
neti  profits   made    to   the  extent  of   10 

Ecr  cent,  (ten  per  cent.)  .  Mr.  Waite. 
owever,  sliall  not  be  intercKted  and 
ouiicerned  in  profits  made  on  share  ac- 
count or  on  landed  property. 

ih)   An  agreement  which  is  embodied 
in  a  letter  from  the  defendants,   dated 
tho  22nd  November,    1889,   whereof  the . 
followiug  is  a  true  extract  of  the  mate- 
rial portion,  to  wit: 

We  increase  youi  guaranteed  allowance 
allowance  from  £400  to  £600  per  an- 
num, to  be  reckoned  from  1st  January, 
1888;  we  alM>  increase  your  share  in  the 
oett  profits  from  10  per  cent,  to  12^^ 
per  cent.,  to  be  reckoned  from  the  1st 
January,  1880. 

(e)  An  agreement  between  the  parties 
for  the  period  ending  the  31st  Decem- 
ber, 1894,  dated  the  12th  September, 
1890,  whereof  the  following  is  a  true 
cccnr,  to  wit : 

Mr.  A.  H.  Waite  extends  the  agree- 
ment made  with  the  firm  of  Hansen 
and  Schrader,  and  dated  December 
l^h.  1886,  for  a  further  period  of 
three  years,  i.e.,  until  31st  December, 
1884,  upon  the  following  conditions:  — 

£600   (six  hundred     pounds     sterling) 
per  annum  from  the  Ist  January,   1890, 
such   aHowanoe  to   be  a   charge  to  the 
basinera  as  hitherto. 
.  15  per  cent  {fifteen  per  cent.)   of  the 


net  earnings  calculated  as  stipulated  in 
the  agreement  of  16th  December,   1886. 

£100  per  annum  for  attending  to 
Messrs.  Hansen  and  Schrader's  interests 
in  shares  and  properties. 

It  is  further  agreed  that  Mr.  Waito 
has  the  permission  of  Messrs.  Hansen 
and  Schrader  to  draw  the  ajnprnzimate 
amount  due  to  him  per  31  st  December. 

1889,  as  shown  in  the  Statement  of 
Private  Accounts,  dated  April  7th.  1890. 

(d)  An  agreement  for  the  period 
ending  31st  December,  1899,  dated  the 
20th  April.  1895,  signed  by  the  parties, 
whereof  the  following  is  a  true  copy,  to 
wit :  — 

It  is  hereby  agreed  that  Mr.  A.  H. 
Waite  renews  his  agreement  of  De- 
cember 16th.  1886,  and  September  12th, 

1890.  with  Messrs.  Hansen  and  Schra- 
der for  a  period  of  five  years,  i.r..  from 
the  1st  January,  18905,  to  31st  Decem- 
ber. 1899,  upon  the  following  coiidi- 
tioiM :  — 

1.  Mr.  Waite  has  the  right  to  draw 
the  amount  duo  to  him  per  3l8t  De- 
sember.  1894— £3.517  128.  lOd.  ;  as  per 
Statement  of  Private  Accouirt  rendered, 
such  amount  to  be  drawn  to  not  greater 
extent  than  three  equal  amounts  per 
annuni  spread  over  the  first  throe  years 
of  his  agreement.  It  is,  however, 
specially  agreed  that,  should  tho  New 
Brighton  property,  in  which  Mr.  Waite 
has  1-5  (one-fifth)  interest,  not  bo  sold 
during  the  first  two  years  of  this  agree- 
ment. Mr.  Waite  has  to  provide  tho 
1-5  share  of  the  cost  of  the  said  pro- 
perty. 

2.  During  the  first  two  years  of  thi^ 
agreement  Mr.  Waite's  share  in  the  pro- 
fi(H  of  the  business  and  allowances  snail 
\ye  as  provided  for  in  the  afi^reenient  of 
September  12th,  1890. 

3.  During  the  la^t  three  years  of  this 
agreement  Mr.  Waite  shall  receive  an 
increased  interest  in  the  profits  of  the 
business,  such  increase  to  be  arranged 
at  the  end  of  1896,  but  is  not  to  exceed 
an  increase  of  5  per  cent,  (five  per 
cent.). 

4.  Mr.  Waito  shall  share  in  the  pro- 
fits on  Stand  properties  and  Douglas 
Colliery,    as  follows:  — 

Stands  in  and  near  Johaimesburg,  15 
per  cent,    (fifteen  per  cent.) 

Douglai?  Colliery,  Johannesburg,  10 
per  cent,  (ten  per  oent^). 

It  is,  however,  specially  a)i:reed  that 
Messrs.  Hansen  and  Schrader  reserve 
t<»  themselves  the  right  to  dispose  of 
tlie  above  mentioned  property  and 
Douglas  Oolhery  whenever  they  con- 
sider such  advisable,  .should  the  said 
property  and  colliery  not  be  realised 
when  the  connection  between  Messrs. 
Hansen  and  Schrader  and  Mr.  Waite 
terminates,  then  in  order  to  determine 
the  value  thereof  it  shall  be  at  the 
option  of  Messrs.  Hansen  and  Schrader 
either  to  sell  the  property  and  colliery 
by  public  auction  or  appoint  an  im- 
partial valuator    or    valuators     to     be 


i36 


"CAPE  TIMES"   LAW  REtofeXS. 


muLiuilly  agreed  upou,  whose  valuation  . 
shall    bio   acceptod   by    both    partios    to 
thU  agreement. 

(5)  The  first  clause  in  the  agreement 
of  Deopmber  16th,  1886,  shall  now  read 
as    follows :  — 

Mr.  A.  II.  Waitc,  as  one  of  the  Man- 
agers of  Messrs.  Hansen  and  Schrader's 
business,  agrees  strictly  to  adhere  to 
all  their  instructions  and  exercise  du« 
caution  in  taking  up  any  consttituent 
or  supporting  accounts,  not  to  buy 
sharos  or  landed  property,  and  not  to 
stand  ^security  for  any  one. 

(c)  An  agreement  for  the  period  end- 
ing th<^  3l8t  December,  1905,  dated  the 
24th  July,  1^0,  signed  by  the  parties, 
whereof  the  folowmg  is  a  true  copy, 
to  wit :  — 

It  is  hereby  agreed  that  Mr.  A.  H. 
Waite  renews  his  agreement  of  April 
20th,  1895,  with  Messrs.  Hansen  and 
Schrader  for  a  period  of  foivjr  y««rH,  i.e., 
from  1st  January,  1900,  to  Slst  Decem- 
ber, 1903,  upon  the  following  condi- 
tions :  — 

1.  Mr.  Waite  has  the  right  to  draw 
the  amount  due  to  him  per  5l8t  De- 
cember. 1898,  t.(.,  £13,535  14s.  9d.  as 
per  statement  of  private  accounts 
rendered,  such  amount  to  be  drawn  to 
not  greater  extent  than  four  equal 
amounts  per  annum  spread  over  the 
four  years  of  the  agreement.  It  is, 
however,  specially  agreed  that  should 
the  New  Brighton  property,  in  which 
Mr.  Waite  ha4  1-5  (one-fifth)  interest, 
not  be  sold  during  the  first  three  years 
of  this  agreement,  Mr.  Waite  has  to 
provide  the  one-fifth  share  of  the  cost 
of  said  property.  This  clause  is  to  bo 
taken  in  conjunction  with  clause  1  of 
the  agreement  of  April  20th,  1895,  the 
amount  of  £3,517  12s.  lOd.  mentioned 
therein  being  included  in  the  above- 
mentioned  amount  of  £13.535  14e.  9d. 

2.  During  tlie  term  of  this  agreement 
Mr.  Waite  s  share  in  the  profito  of  the 
several  businesses  of  Messrs.  Hansen  and 
Schrader  shall  be  20  per  cent  (twenty 
per  cent.). 

3.  Mr.  Waiters  share  in  the  profits  on 
properties  and  Douglas  (*olliery  to  remain 
as  provided  for  in  agreement  of  April 
20th,  1895.  Such  properties  at  present 
consist  of  the  following :  15  per  cent. 
Marshall's  Stands,  153.  155.  156.  154, 
157.  158;  15  per  cent.  Heig^ht's  Stands, 
55/6.  110/111:  15  per  cent.  City  and 
Suburban  Stands,  503,  504,  505.  506, 
507;  15  per  cent.  City  and  Suburban 
Stands.  510,  511.  512,  513 ;  15  per  cent. 
Delagoa  Bay  property,  occupied  by  the 
H  S.  Company ;  20  per  cent.  New 
Brighton  Farm ;  10  per  cent.  Douglas 
Colliery.  Limited ;  15  per  cent.  Royal 
Oak  Tavern,   Graham's  Town. 

It  is,  however,  specially  agreed  that 
Messrs.  Hansen  and  Schrader  reserve  to 
themselves  the  right  to  dispose  of  the 
above-mentioned  properties  and  Douglas 
Colliery  shares  whenever  they  consider 
such  advisable,  should  the  saia  property 


and  colliery  shares  not  be  realised 
when  the  connection  between  Messn. 
Hansen  and  Schrader  and  Mr.  Waite  ter- 
minates, then  in  order  to  determine  tho 
value  thereof,  it  shall  be  at  the  option 
of  Messrs.  Hansen  and  Schrader  either 
to  sell  the  property  and  Douglas  Colliery 
shares  by  public  auction  or  appoint  an 
impartial  valuator  or  valuators  to  be 
mutually  agreed  upon  whose  valuations 
shall  be  accepted  by  both  parties  to  this 
agreement. 

4.  Mr.  Waite  is  at  liberty  to  be  absent 
from  the  business  of  Messrs.  Hansen 
and  Schrader  for  a  period  of  nine 
months  during  the  year  1900  at  his  con- 
venience. 

5.  A  certain  clause  in  tho  original 
agreement  of  December  16th.  1886,  vis. : 
However.  H.  and  S.  shall  be  at  liberty 
to  terminate  this  agreement  b^  giving 
two  months'  notice,  in  which  case 
Messrs.  H.  and  S.  shall  indemnify  Mr. 
Waite  bv  £100  over  and  above  the 
amount  he  will  be  then  entitled  to  ac- 
cording to  this  agreement — is  hereby 
cancelled. 

6.  Tlie  rent  for  "Anderson's  Bond" 
property  to  be  £250  (two  hundred  and 
fifty  pounds  sterling)  from  Ist  January, 
1899. 

Dated  at  Johannesburg,  24th  July, 
1899. 

HANSEN  k  SCHRADER. 

A.  H.  WAITE. 
Witness : 

B.  K.  Lightfoot. 
F.  II.  S.  Cordor. 

5.  The  defendants.  Ijefore  December, 
1903,  disposed  of  the  Delagoa  Bay 
landed  property  aforesaid  whicn  includ- 
ed with  otlK'r  properties  valuable  con- 
cessions to  the  foreshore,  also  of  the 
general  business  and  the  goodwill 
thereof,  including  certain  valuable 
agencies  carried  on  at  Delagoa  Ba^  as 
a  branch  of  the  Port  Elisabeth  business 
of  Hansen  and  Schrader.  and  the  plain- 
tiff became  and  is  entitled  to  a  full  dis- 
closure, and  account  not  only  of  a  cer- 
tain cash  payment  of  £20,()00  received 
by  fhe  defendants  in  respect  of  the  dis- 
posal of  the  said  landed  property  (which 
payment  has  been  disclosed),  but  also  of 
all  profits  and  share*  in  any  company 
or  syndicate  and  other  valuable  con- 
sideration whatever  received  or  to  be  re- 
ceived by  the  defendants  in  respect  of 
the  disposal  of  the  said  landed  proper- 
ties, of  the  said  concession  to  the  fore- 
shore, and  of  the  general  business  and 

foodwili  thereof,  carried  on  at  Delagoa 
lay  as  aforesaid,  but  the  defendants 
notwithstanding  lawful  demand  have 
failed  and  neglected  to  make  such  dis- 
closure^  or  render  such  account,  or  to 
disclose  to  the  plaintiff  the  agreements 
entered  into  by  them  relative  to  such 
di6po<(al. 

6.  In  the  year  1892  a  certain  property 
now  of  great  value  known  as  New 
Brighton  at  or  near  Port  Elisabeth  was 


*'CAI>E  TIMES"  LAW   llEPOkTS. 


137 


purchased  by  tlie  plaintiff  from  one 
Sirah  Berry  for  £2,500,  aod  tbe  said 
purchasft  w«s  effecrted  as  a  joint  epecu- 
latioD  on  behalf  of  the  plaintiff,  the  de- 
fendants, and  the  said  Bracht  in  equal 
shares  of  one-fifth  each,  the  remsimng 
ihars  of  one-fifth  bean^  intended  for  one 
W.  BnghBh  who  aubaequen^ly  disposed 
«f  his  interest    to    the    aefcndants. 

7.  The  said    property    wa.*t  transferred 

to  and  slande  re^stered  in  the  names  of 

th«    defendants     nvho     are   entitled      to 

three-fifths   thereof   in    their   own    right, 

but  as  to  one-fifth  they  hold   the  same 

in  a  fiduciary  capacity  as  the  plaintiff's 

representative,     and     the    sai^  property 

is  the  New    Brighton   property  or  New 

Brighton  Farm  referred  to  in  the  aboTe 

agreenient   (e)  set  forth  in  paragrraph  4 

of  this  declaration. 

8.  The      defendants     -have     in     their 
hands  moneys  belonging  and  due  to  the 
plaintiff    far    exocedinff    one-fifth    share 
of  the  coet  of  the  said  property  and  all 
proper  expenses  and  charges  connected 
therewith,      and    all    things    have     hap- 
pened, all  tames   have  eUupsed,    and  ail 
conditions     have  been  fuinlled  entitlinf^ 
the  plaintiff  to  demand  that  either  one- 
fifth  share  of  the  said  property  shall  he 
traosferred  to  him,  against  payment  of 
one-fifth  of  the  cost  and  all  such  proper 
charges  and  expenses,   or  that   the  de- 
fendants  shall  agree   with   the  plaii>tiff 
upon  an  impartial  valuator  or  valuattors 
<^  the  said  property  in  order  to  deter- 
mine the   value  of   the  f^aid    property, 
but  the  defendants  though   they     have 
elected   not    to    sell    the  said    property 
by  public  auction  have  wrongfuUy  and 
unlawfully  failed  to  take  steps  to  come 
to  an  agreement  with    the   plaintiflf   as 
t.^  such  valuator  or   valuatoiv  with     a 
view  to  ascertaining    the    value  of  the 
property  as  aforesaid. 

9.  The  plaintiff  is  further  entitled  to 
demand  from  the  defendants  in  respect 
<rf  the  New  Brighton  property  a  true 
and  correct  disclosure  and  account  of 
all  the  dealings  of  the  defendants  there- 
with, and  of  all  income  received  there- 
from,  and  that  in  such  account  shall  be 
included  a  reaeonable  allowance  of  £500 
per  year  to  be  paid  to  the  plaintiff  out 
of  the  joint  venture  for  his  services  in 
BMoaging  the  New  Brighton  property 
during  the  years  1899  to  1903  inclusive, 
and  he  is  also  entitled  to  obtain  an 
order  restraining  the  defendants  from 
in  any  way  alienating,  disposing  of  or 
dealing  with  the  said  property  or  any 
part  thereof,  without  the  plaintiff's  con- 
asnt,  until  his  rights  shall  have  been 
satisfied  in  respect  of  the  said  property ; 
but  the_  defendants  refvise  to  recognise 
the  plaintiff's  rights  in  respect  of  the 
iaid  property,  and  claim  to  be  entitled 
to  aUenate,  dispose  of  and  deal  with  the 
^id  property  without  the  plaintiff's 
consent  or  concurrence. 

10.  The  plaintiff  is  further  entitled 
upon  the  termination  of  his  engagement 
••  afoffpsaid  to  receive  from  the  defend- 


I 


ants  a  true  and  correct  account  ishow- 
ing  the  amount  to  which  he  is  entitled 
under  the  agreements  referred  to  in 
paragraph  4  of  this  declaration,  in- 
cluding his  share  of  the  profits  of  the 
several  businesses  of  Hansen  and  Schra 
der,  and  of  the  profits  on  the  properties 
and  Douglas  C\>lliery,  and  of  the  pro- 
ceeds or  values,  ascertained  under  the 
aforesaid  agreement,  of  the  said  pro- 
perties, and  shares  held  by  the  defend- 
ants in  the  said  Colliery,  and  to  be 
credited  in  such  amount  with  interest 
at  6  per  cent,  for  the  year  1905  on  the 
balance  due  at  tlie  end  of  the  year 
1902;  and  he  is  entitled  to  debate  such 
account  and  lo  be  paid  the  balance  due 
to  bim,  all  drawings  by  him  being  de- 
ducted and  also  such  amount  as  may 
be  determined  to  be  his  one-fifth  share 
of  the  cost,  expenses  and  charges  re- 
ferred to  in  paragraph  8  hereof. 

11.  The  plaintiff  m  entitled  to  clcini 
that  from  such  account  as  is  referred 
to  in  the  last  paragri^h  there  shall  tm 
excluded  certain  items,  wherec^  the  de- 
fendants have,  before  action  was 
brought,  had  full  and  detailed  notice 
with  particulars  of  the  plaintiff's  ob- 
jections to  the  said  items,  to  wit:  — 

I.  "Hie  cost  of,  and  any  loss  or  charge 
ia  connection  with,  certain  700  shares 
in  the  South  African  Super-Aeration 
Company,  limited,  purchased  or  ac- 
c|uired  by  defendants  in  London,  the 
cost  of  which  (£700)  has  been  wrong- 
fully charged  to  the  Port  Elizabeth 
business  of  Hansen  and  Schrader. 

II.  The  cost  of  and  any  loss  or  charge 
in  connection  with  certain  shipments  of 
currants  to  Port  Elizabeth  in  1900, 
which  formed  a  separate  and  private 
specuUvtion  of  the  acfendants  in  Lon- 
don, and  were  not  ordered  by  or  re- 
quired Tor  the  business  at  Port  Klizu- 
l)eth  oF  Hansen  and  Schrader,  but 
should  have  been  consigned  thither  by 
the  defendants  for  disporisl  on  their 
own  sccount  and  profit  and  loss  as  the 
case  may  be. 

III.  A  certain  amount  of  £5.462  124. 
6d.  representing  the  total  of  improp<'r 
overcharges  of  interest  and  exchange 
made  by  the  defendants  against  the 
business* at  Port  Elizabeth  due  to  51st 
December,  1902. 

IV.  Certain  sums  amounting  to 
£4,500  representing  charges  improperly 
niade  by  the  defendants  against  the 
business  at  Port  Elizabeth  in  respect 
of  their  own  services  iu  London  during 
the  years  1900,  1901,  and  1902,  which 
charges  are  contrary  to  the  theretofore 
established  and  agreed  course  of  dealing 
in  the  said  business  and  be  ween  the 
parties. 

V.  Certain  sums  amounting  to  £2,651 
19s.  lOd.,  being  further  charges  impro- 
perly made  by  the  defendants  against 
the  business  at  Port  Elizabeth  in  respect 
of  expenditure  on  their  own  account  in 
connection  with  their  London  business 
during  the  yean  1898   to   1902»   which 


i33 


"CAtE  TIMES'*  Law  feEtofttS. 


charg<3s  are  contrary  to  the  theretofore 
establislied  and  agreed  course  of  dealing 
in  the  Port  Elizabeth  busineea  and  be- 
tween the  oartiee. 

12.  And  tne  (>laintiff  is  further  entitled 
to  claim  that  in  such  true  and  correct 
account  am  aforesaid  there  shall  be  in- 
oluded  as  an  asset  of  the  busineiis  a  sum 
of  £7,736  12b.,  due  and  owing  to  the 
business  at  Port  Elizabeth  by  one  W. 
G.  Stevens,  but  from  which  the  defen- 
dants wron^ully  and  improperly,  with- 
out the  plaintiff's  consent,  released  tlic 
said  Stevens. 

13.  A  part  of  the  general  business  of 
the  firm  of  Hansen  and  Schrader  at 
Port  Elizabeth,  secured  for  the  said 
firm  in  1891  by  the  efforts  of  the  said 
plaintiff,  was  the  agency  for  the  Govern- 
ment of  the  late  South  African  Republic, 
and  the  said  firm  acted  as  such  agents 
before,  in,  and  after  the  year  1893,  and 
the  commissions  or  profits  resulting  from 
such  agency,  wherever  executed,  formed 
properly  a  part  of  the  general  business 
at  Port  Elizabeth. 

14.  In  and  after  the  year  1893,  the 
defendants,  on  behalf  of  tlM;  said  Gov- 
ernment, specially  undertook  and  were 
engaged  upon  a  matter  arising  out  of 
or  in  consequence  of  the  said  agency, 
which  matter  was  desoribed  by  them,  iii 
writing,  to  the  firm  at>  Port  Elizab»eth 
as  a  very  important  matter,  which,  if 
put  through,  would  considerably  benefit 
the,  business  at  Port  Elizabeth,  but 
which  required  entire  secrecy  and  the 
absence  of  the  defendants  for  some  time 
at  Lisbon. 

15.  The  defendants  received  sums  of 
money  or  other  valuable  consideration 
in  respect  of  the  services  rendered  by 
tliem,  as  aforesaid,  to  the  said  Govern- 
ment in  connection  with  the  said  mat- 
ter, but  have  refused  to  disclose  the 
amounts  or  valuable  consideration  so  re- 
ceived by  them,  which  the  plaintiff  con- 
tends must  be  brought  to  account  as 
part  of  the  commissions  or  profits  resuft- 
mg  from  t^he  agency  obtained  and  in- 
troduced by  him  to  the  defendants,  and 
carried  on  as  aforesaid,  as  part  of  the 
general  business  of  the  firm  at  Port 
Elizabeth,  upon  which  ho  is  eirtitled  to 
his  percentage  at  thai  date  15  per  cent, 
or  in  the  alternative  he  claims  to  be 
entitled  to  such  reasonable  percentage  as 
shall  represent  a  quantum  meruit  for  his 
obtaining  and  mtroducing  the  said 
agency  as  aforesaid. 

Wherefore  the  plaintiff  prays  for: 

1.  An  order  compelling  the  defendants 
to  disclose  and  brnig  into  account  with 
the  plaintiff,  and  declaring  the  plaintiff 
to  be  entitled  to  15  per  cent,  in  respect 
of  all  profits,  shares  in  any  company  or 
syndicate,  and  any  otlier  valuable  con- 
sideration whatsoever  received  or  to  be 
received  by  the  defendants  or  either  of 
them  or  any  other  person,  firm  or  com- 
pany on  their  behalf  in  respect  of  the 
disposal   of  the   landed   properties,    the 


conoessiou  of  the  foreshore,  and  (or)  t4ie 
general  business  and  (or)  goodwill  there- 
of carried  on  at  Delagoa  Bay  and  re- 
ferred to  in  paragraph  5,  and  an  order 
compelling  the  detenaants  to  disclose  all 
agreements  entered  into  by  them  rela- 
tive to  such  disposal. 

2.  An  order  declaring  the  plaintiff  to 
bj  entitled  to  a  one-fifth  part,  share  and 
interest  in  the  said  New  Brighton  pro- 
perty, a  further  order  compelling  the 
defendants  either  to  transfer  to  him  in 
due  and  customary  form  of  law  an  wi- 
divided  one-fifth  share  of  the  said  pro- 
perty upon  paymenb  bv  him  of  one-fifth 
of  tlie  cost  of  the  saia  property  and  of 
ali  proper  expenses  or  charges  in  con- 
nection therewith,  or  to  agree  with  the 
plaintiff  upon  an  inipartial  valuator  or 
valuators  of  the  said  propertv  in  order 
to  determine  its  value;  ana  in  either 
alternative  a  further  order  restraining 
the  defendants  from  in  an^  way  alien- 
ating, disposing  of  or  dealing  with  the 
said  property  or  any  part  thereof  with- 
out the  plaintiff's  consent,  until  his  right 
iu  respect  of  the  said  property  shall 
have  been  satisfied,  and  compelling  the 
defendants  to  disclose  to  the  plaintiff 
and  render  to  him  a  true  and  correct 
accouni?  of  all  their  dealing  with  and 
income  derived  from  the  said  property, 
to  debate  such  account  and  to  pay  to 
the  plaintiff  his  one-fifth  share  of  such 
income :  such  account  to  include  an 
allowance  of  £500  per  year  in  favour  of 
the  plaintiff  for  his  sorviocs  during  the 
years  1689  to  1903,  inclusive,  as  set  forth 
m  paragraph  9  hereof,  or  such  other  al- 
lowance as  this  Honourable  Court  may 
determine  to  be  reasonable. 

3.  An  order  compelling  the  defendants 
to  render  to  the  plaintiff  a  true  and 
correct  account,  as  claimed  in  paragraph 
10  hereof,  excluding  items  I.,  H.,  IH., 
IV.,  and  v..  scth  forth  in  paragraph  11 
hereof,  and  including  as  an  asscb  the 
sum  of  £7,736  12s.,  sot  forth  in  para- 
graph 12  hereof,  to  debate  such  account 
when  rendered,  and  t-o  pay  over  to  the 
pluintiff  the  amount  found  due  to  him 
at  foot  of  such   account  when  debated : 

4.  An  order  compelling  the  defoiid- 
ant.?  to  di'scloso  and  bring  up  in  the 
said  account  all  sums  of  money  or 
other  valuable  considerations  received 
by  them  in  respect  of  the  services  ren- 
dered to  the  Government  of  the  Late 
South  African  Republic,  and  referred 
to  in  paragraphs  13,  14,  and  15  hereof, 
and  declaring  the  plaintiff  entitled  to 
15  per  cent,  thereof,  or  t-o  such  reason- 
able percentage  as  this  Honourable 
court  shall  award: 

5.  A  declaration  of  the  plaintiff's 
rights  and  such  orders  in  the  premises 
as  against  the  defendants  in  so  far  as 
this  Honou-nable  Court  may  deem  that 
the  claims  herembefore  set  forth  should 
bo  in  any  respect  varied  or  modified: 

And  generally  such  further  or  other 
relief  as  to  this  Honourable  Court  may 
seem  meet  together  with  costs  of  suit. 


** 


cA^£  HjIes"  Law  ttEt>0)lT8. 


l3& 


Tt>     the   declaration    tbe      defendants 
pleaded:— 

1.  They  admit  para^aph    1. 

2.  A»  to  parasraph  2  tney  admit  that 
thev  carry  on  dumdcss  at  Port  EHza- 
betfeu  and  that  tbey  have  an  office  and 
carry  od  buaineMi  in  Johannesburg. 
Tbey  aay  that  business  of  and  for  and 
on  aceount  of  the  firm  has  been  carried 
en  in  liOttdon  in  premises  used  for  that 
purpose  and  thai  tbey  have  ceased  to 
carry  on  business  at  Delagoa  Bay  since 
October,  1901  Save  as  above  they 
admit  paragTa|>h  2. 

3.  Tbey  admit  paragraph  3  save  that 
thej  oay  that  the  plain tiflTs  engage- 
mem  was  terminated  not  bv  their  act 
but  by  effluxion  of  time  and  upon  pre- 
riDciB  notice  to  that  effect  given  by  the 
plaintiif. 

4.  They  admit  paragraph  4  save  that 
the  fii^pes  £3,561  13s.  lOd.  in  section 
tdl  of  tbe  declaration  does  not  appear 
ia  defendant's  copy  of  the  said  agree- 
ment of  December  31st.  1899.  and  the 
defendants  do  not  admit  the  said 
figures. 

5.  An  to  paragraph  5  thev  admit  that 
in  or  about  October  1901,  they  disposed 
of  the  I>ela{;oa  Bay  hmded  property 
and  certain  agencies  carried  on  at 
Delagoa  Bay  for  tbe  sum  of  £20,000, 
but  they  deny  that  the  said  Delagoa 
Bay  property  included  any  other  pro- 
perties or  any  coucessioiMj  to  the  ore- 
ihore  or  any  other  concession.^!.  They 
admit  that  the  plaintiff  is  entitled  to  a 
full  disclosure  of  any  agreements 
entered  into  relative  to  tlio  said  dis- 
posal and  of  the  money  received  in 
romtideration  thereof  and  to  a  full 
account  of  the  said  money,  and  say 
that  be  ha»  had  such  discluoure  and 
account  and  has  dul^  been  credited 
with  and  received  his  share  of  the 
same.  Save  as  above  they  deny  the 
allegations    in   paragraph    5. 

6.  Aa     to     paragrapiM   6  and  7,    they 
admit  that    on  the  31st  l>e<x;mber,  1892, 
the  plaintiff  obtaiiH?d  an  option   to  pur- 
chase tbe  said  New   Brightoik  property, 
but  say  that  he  did  so   for  and  on   be- 
half   of   tbe     defendants,      who     subse- 
quently   purchased   the    property,      and 
deny    that   the  eaid    property  was   pur- 
chased as  a  joint  speculation  on  behalf 
of  the  plaintiff,  the  defendants  and  the 
said  Bracht.    They  admit  that  the  said 
English   disposed  of   his  interest  to  the 
defendants,  and   that  the  said   property 
was  transferred  to  and  stands  registered 
in  their  name.*}.       As   to  the   respective 
interests  in   and  rig'hts  to  the  saad  pro- 
perty   of    the   plaintiff    and    defendants 
they   crave  leave  to  refer  to  the  terms 
of    tbe  agreement    set    forth    in    para- 
graph 4  of  the  declaration.  They  admit 
that    the    said     property     is  the     New 
Brighton  property   or   farm  referred  to 
in  section  E,  set  forth  in  paragraph  4  of 
the     declaration.        Save   as    aforesaid, 
they  deny  paragraphs  6  and  7. 


7.  They  deny  that  they  have  in  their 
hands  moneys  belonging  and  due  to 
the  plaintiff  exceeding  one-fifth  share 
of  the  cost  of  the  «aid  property,  and  all 
proper  expenses  and  charges  connected 
tlierewith.  They  admit  that  the  plain- 
tiff is  entitled  to  demand  that  the  de- 
fendants shall  at  their  option  either 
have  the  said  propertv  sold  by  public 
auction  or  have  it  valued  in  terms  of 
the  said  agreements.  They  say  that  be- 
fore the  declaration  was  filed  they 
tendered  to  have  the  said  property  so 
valued,  which  tender  the  plaintiff  re- 
fused, and  the  defendants  now  claim 
either  to  sell  or  to  value  at  their  option 
upon  the  claim  of  the  plaintiff  being 
decided  by  this  Honourable  C'ourt. 
Save  a«*  above  they  deny  the  allegations 
in  paragraph  8. 

8.  As  to  paragraph  9  tbey  admit  that 
the  plaintiff  is  entitled  to  demand  a 
true  and  correct  disclosure  and  account 
of  their  dealings  with  the  said  propertv. 
and  of  all  income  which  may  reasonably 
and  legitimately  be  reckoned  as  derived 
therefrom,  and  say  that  they  have 
always  been  ready  and  willing,  and 
hereby  tender  to  render  within  a  reason- 
able time  such  account  in  accordance 
with  the  usual  course  of  business  when 
plaintiff  was  a  manager.  Tliey  say  that 
the  plaintiff,  while  in  the  service  of  the 
defendantii,  has  had  a  true  and  correct 
disclosure,  and  is  fully  acquainted  with 
the  dealing  and  income  derived  from 
the  said  property,  and  they  denv  that 
the  plaintiff  is  cirtitled  to  any  further 
or  other  remuneration  than  a&  con- 
tained in  his  said  agreement's.  Save  as 
above  and  save  that  they  admit  that 
they  claim  that  they  are  entitled  to 
alienate,  dispose  of  or  deal  with  the  said 
property  they  deny  the  allegations  in 
paragraph  9, 

9.  While  they  deny  that  the  plaintiff 
is  legally  entitled  to  be  credited  with 
interest  for  the  year  1903  on  the  bal- 
ance, if  any,  due  at  the  end  of  the  year 
1902.  they  say  that  fliey  are  readv  and 
willing  to  so  credit  him  upon  such  bal- 
ance, if  any.  They  say  further  that 
they  have  always  hoen  ready  and  will- 
ing and  have  tendered  and  do  hereby 
again  tender  to  render  the  account 
claimed  in  tlie  said  paragraph  within  a 
reasonable  time  after  the  31st  Decem- 
ber 1903,  and  in  accordance  with  the 
usual  course  of  business  when  plaintiff 
was  manager.  The  plaintiff  and  the 
defendants  have  agreed  up<)n  a  valua- 
tion of  the  properties  mentioned  in  the 
said  agreements,  save  and  except  the 
New  Brighton  property,  the  Douglas 
Collieries  and  the  Royal  Oak  Tavern. 
The  defendants  have  tendered  and  do 
hereby  again  tender  to  have  the  Douff- 
las  Collieries  valued  in  terme  of  the  said 
agreements,  or,  in  case  the  parties  are 
unable  to  agree  upon  a  valuator  or 
valuators  by  suob  valuator  as  this 
Honourable  Court  may  appoint.       The 


140 


"CAPE  TIMES"   LAW   ReI'ORTS. 


Royal  Oak  Tavern  has  been  sold,  and 
tli<3  defendants  are  ready  and  willing  to 
britiff  up  the  purchase  price  thereof  in 
the  said  account.  They  say  that  the  al- 
legations in  paragraph  10  of  the  declara- 
tion arc,  so  far  as  the  New  Brighton 
property  is  concerned,  subject  to  the 
allegations  in  the  previous  paragraphs 
of  the  plea  contained,  and  in  so  far  as 
they  are  inconsistent  therewith  they 
are  denied. 

10.  As  to  paragraph  11,  they  deny 
that  the  plaintiff  is  entitled  to  claim 
that  items  I,  II,  III.  and  V  should  be 
excluded  from  the  said  account.  They 
aay  that  the  transactions  set  forth  in 
ileme  I  and  II  were  pert  of  and  were 
entered  into  for  and  on  behalf  <A  the 
defendants'  business  including  the  Port 
Elizabeth  businosti,  and  that  the  plain- 
tiff had  knowledge  of  and  consented  to 
the  said  transactions,  and  has  had  the 
benefit  thereof.  They  deny  that  the 
charges  of  interest  and  exchange  in- 
cluded in  item  III  improperly  charged 
to  the  said  business.  They  eay  further 
that  the  sum  of  £5,462  IZs.  6d.  does  not 
represent  all  that  is  properly  chargeable 
to  the  said  buHineas.  Thev  deny  that 
the  sum  of  £2.651  198.  lOd.'  set  forth  in 
item  V  includes  any  expenditure  on 
their  own  account.  They  say  that  the 
said  sum  is  expenditure  for  and  on 
account  of  and  for  the  benefit  of  and  in 
connection  with  the  defendants'  busi- 
ness and  of  ivhich  the  plaintiff  has  had 
the  benefit  and  is  properly  chargeable 
to  the  Port  Elizabctn  business.  While 
not  admitting  that  the  plaintiff  is  Ic^g- 
ally  entitled  to  claim  to  have  the  sum  of 
£4,500  excluded  the  defendants  say 
that  they  have  charged  the  same  to 
capital  account  and  that  therefore  the 
plaintiff's  interests  under  his  agreements 
are  not  affected  thereby.  Save  as 
alxjve  they  deny  paragrapn  11. 

11.  As  to  paragraph  12  they  say  that 
at  the  end  of  the  year  1902  llie  said 
Stevens  stood  in  the  firm's  books  as  a 
d<»btor  to  the  said  business  for  the  sum 
of  £7,736  12r«.  and  say  that  there  were 
(|uestions  between  the  defendants  and 
the  said  Stevens  a.s  to  the  sum  of  about 
£6.500  which  was  due  to  him  at  the  end 
of  1900,  and  as  to  whether  he  was  liable 
for  losses  for  the  years  1901  and  1902, 
and  as  to  the  over  charges  and  as  the 
said  Stevens  was  al«o  entitled  to  main- 
tenance for  his  wife  and  children  during 
those  two  years  over  «jid  above  £600 
in  regard  to  which  he  had  actually 
drawn  moneys  for  bving  purpo.«»es  and 
«,s  the  said  Stevens  was  not  in  a  flourish- 
ing financial  position,  the  defendants 
with  the  consent  of  the  plaintiff  re- 
leased Stevens  from  his  liahility  if  any. 
Save  a^^  above  they  deny  paragraph  12. 

12.  Save  that  they  deny  that  the  said 
agency  was  secured  solely  by  the  efforts 
of  the  plaintiff  they  admit  paragraph 
13.  They  say  that  in  The  accounts 
drawn   up  from   time   to   time  between 


the  partiea  the  plaintiff  has  been  credi- 
ted with  his  share  in  the  prifits  result- 
ing  from  the   said  agency. 

13.  They  deny  each  and  all  tlie  allega- 
tions in  paragraphs  14  and  15.  The  de- 
fendants did  in  or  about  1893  proceed 
to  LasboQ  with  a  view  of  obtaining 
certain  business  which  business  was  en- 
tirely unconnected  with  the  eaid  agency, 
but  they  foiled  to  obtain  the  said  busi- 
ness. 

Wherefore  subject  to  tbo  above  ten- 
ders they  pray  that  the  plaintiff's  claim 
may  bo  dismissed  with   costs. 

For  the  purposes  of  the  hearing,  these 
actions  were  consolidated.  The  plaintiffs 
were  respectively  Arthur  Herbert  Waite 
and  Oicar  Bracht,  residing  at  Port  Eliza- 
beth, and  the  defendants  were  Hansen 
and  Schrador,  carrying  on  business  in 
Port  Elizabeth,  Johanneaburg.  I»ndon 
(England),  and  elsewhere.  Plaintiffs 
had  been  employed  as  joint  maiwigcrs 
of  the  Port  Eliwilx3th  business,  aiid  they 
bnnight  the  actions  for  a  declaration  «>f 
rights  under  certain  contracts  upon 
which  they  were  employed  by  defen- 
dants.- Mr.  Schreiner.  K.C.  (with  him 
Mr  L'pington)  was  for  the  i)laintiff8; 
Sir  H.  Juta  (with  him  Mr.  Gardner)  was 
for  the  defendants. 

Mr.  Schreiner  stated  the  principal 
points  in  both  cases.  Plaintiffs,  be 
said,  had  been  employed  by  defendants 
as  u)int  managers  of  the  business 
at  Port  Elizabeth  during  a  period 
extending  from  tiie  1st  January,  1887. 
to  the  3l8t  December,  1903.  A  number 
of  contracts  were  entered  into  between 
plaintiffs  and  defendants  from  time  to 
♦ime.  There  were  certain  differences 
between  the  cases  of  the  two  plaintiffs, 
but  in  the  main  the  points  in  dis]>uie 
v/ere  identical.  One  of  the  main  points 
was  as  to  the  construction  of  Bracht*s 
agreement,  dating  from  the  1st  Janu- 
ary, 1900,  to  the  31st  Pocember,  1903. 
There  was  no  definite  formal  agreement 
entered  into,  but  certain  correspondence 
took  place.  Mr.  Bracht  had  been  dis- 
satisfied with  the  terms  of  his  engage- 
ment, because  ho  found  that  he  was 
placed  in  an  inferior  position,  so  far  as 
remuneration  was  concerned,  to  Mr, 
Waite.  Mr.  White  and  others,  working 
at  Johannesburg  and  elsewhere,  were 
getting  better  terms,  and  Bracht  was 
aiming  at  getting  an  agreement  which 
would  ecjualise  his  interests  all  round  as 
Waite's  interests  were.  Bracht  had  had 
a  salary  of  not  less  than  £6(X)  a  year  and 
a  40  per  cent,  share  of  the  profits  on 
viool.  Then  the  defendants  wrote  a  let- 
ter of  the  31st  July,  1899,  of  which  it 
wculd  be  for  the  Court  to  determine  the 
ccnstructiou.  Bracht  said  that  he  was 
entitled  to  receive  10  per  cent,  in  rela- 
tion not  only  to  the  merchandise  busi- 
ness, in  which  he  was  getting  a  certain 
percentage  formerly,  but  he  claimed 
that  he  was  entitled  to  read  that  letter 
in  connection  with  his  immediately  cii^ 


««  r -• 


TIMES"  LAW  REPORTS. 


141 


T^nt  ooQlTBCt^    and    that    it    extended   to 

ibo  Dous^aa  Colliery  and  tHe  defendanto' 

Wi^cd  properties    lu    Johaiinefiburg  and 

l^elagoa    ¥^y.      The       dc^fendants      said, 

Wove^er,   thai   he    iwas    only    entitled   to 

Itei  10  per  ceat.  on  the  merchandise  and 

»o  iorih.  that  he   would    still   get  bis  40 

pev  cent,    on    ikooI.    hut    said    that   they 

^\4\t  up  the  10    per    cent,      which     they 

&«rT«ed  upoiu    and    that    he    would   only 

?E*\  S  per  cent,   on  the  Douglas  Colliery 

aiMi  t^i^  Johanne&hurK  and  Delagoa  Bay 

properties.       The   question    between  the 

parlies     on     this    part   of    the  case  was 

«L<ether  Bracht    was   entitled   to  10  per 

rtriA.  or  only  5  per   cent,   in  relation  to 

the  Doufflas'  Colliery  and  the  Johannes- 

barg  and  Delagoa  Bay  properties.    This 

aai  really  a  great  case,  and  he  (counsel) 

liad  onW'  reached   one   branch. 

[Buchanan.  J. :  There  are  sufficient 
( <jiupjications  already.] 

SMr  H.  Juta:  I  would  like  to  know, 
frnm  my  learned  friend,  whether  he  in- 
u-nds  to  go  into  the  accounts. 

Mr.    Schreiner:    I    won't   go   into   the 
arcounts     at   this   moment,   but   I   shall 
reach   them  in  due  course.     Continuing, 
rounsel  called   attention  to  paragraph  5 
of  the  declaration,  which  stated  that  be- 
fore 21st  December,  1903,  defendants  dis- 
ficfted    of  the   Delagoa      Bay      property, 
whicfa  indttded  a  concession  of  the  fore- 
shore, also  the  general  business  and  the 
^odwill    thereot,       including      valuable 
a$;en<nes.     The  plaintiffs  said  they  were 
c>ntitled   to  a   full   disclosure  of  account 
not  only  of  a  certain  payment  of  £20,000 
n  ceiled  by  the  defendants  in  respect  of 
the    disposal   of  the  landed    property  at 
Di-lagoa    Bay — ^a   company   having   been 
ik*ated  with  a  capital  of  £20,000— but  of 
the   important  agencies  carried  on  there 
under  the  control  of  the  Port  Elizabeth 
busin<>ss,    and   there  was  also    the  fore- 
she  re   concession.    Defendants   s&id   that 
t  here    w  ts    nothing    about    £20,000,    and 
that  they  could  disclose  nothing.     Plain- 
tiffs  wanted   to  know   more   particularly 
«|-at  became  of  the  foreshore  concession, 
ind  they  also  said  that  the  landed  pro- 
perty at*  Delagoa  Bay  had  been  disposed 
of  for   £20.000.     Paragraphs  6,  7,  and  8 
of     the     declaration  raised   an  issue  of 
prime    importance  for  the  Court   to  de- 
ttrmine   in   any  event,   viz..    what    were 
the   rights  of  Bracht  and  also  of  Waite 
in    relation   to   certain     New     Brighton 
Itrcperty?        In    1892   the   property    was 
purchased  from  Mrs.  Berry  under  an  op- 
tion   that    she   gave    to    Mr.    Waite    for 
£2.S00.    This  property,  if  worth  a  penny 
to-day,  was  worth  £150,000  to  £200,000. 
The  person  who  first  of  all  got  the  op 
tion   was  on')  English,  who  was  also  m 
the   employ  of  Hansen     and     Schrader. 
Waite    had    made   several    investments, 
notwithstanding   the   fact  that   his   con- 
tract  with   the      defendants      said      he 
should     not    jnake  investments,  and  he 
exercised   this  option  in  writing.     Han- 
sen sod.  Schrader  held  throe  fifths  (hav- 
came  in  at  the  purchase  i^ith  a  share 


each,  so  that  the  position  was  that  Han« 
sen  and  Schader  held  three-fifths  (hav- 
ing secured  Uie  fifth  that  English  had 
failed  to  pay  for),  Waite  one-fifth,  and 
Bracht  one-nfth.  Waite  entered  into  a 
ccntract  with  defendants,  which  placed 
him,  so  far  as  this  property  was  con- 
cerned, in  a  different  position  from 
Bracht.  Bracht  claimed  as  a  legal  right 
that  which  ought  to  have  been  done 
long  ago,  viz.,  that  this  property  should 
be  transferred  out  of  the  names  of  Han- 
sen and  Schrader.  in  whciae  names  it  had 
stood  from  the  original  transaction,  and 
put  in  the  names  of  the  persons  who 
^cre  really  interested  in  it,  according 
to  the  law  of  the  land.  Mr.  Waite 
agreed  to  certain  things  in  consideration 
of  his  being  allowed  to  withdraw  a  cer- 
tain sum  of  £13fi534  14s.  within  a  cer- 
tain period,  but  it  was  specially  agreed 
that,  should  the  New  Brighton  property, 
in  which  Mr.  Waite  has  one-fifth  in- 
terest, not  be  sold  during  the  first  three 
yoars  of  the  agreement  he  was  to  pro- 
vide one-fifth  share  of  tost  of  saia  pro- 
perty. The  agreement  was  important, 
because  it  enabled  the  defendants  to  dis- 
pose of  Waite's  share  in  the  New 
Brighton  farm,  as  it  was  called,  at  their 
option,  either  by  public  auction  or  un- 
der a  valuator.  Bracht,  however,  had 
never  prejudiced  himself  by  entering 
into  such  an  agreement.  In  the  case  of 
Bracht,  the  claim  was  for  an  order  de- 
claring him  entitled  to  one-fifth  part  or 
share  in  the  property,  requiring  defen- 
dants to  paAs  transfer  of  such  share,  and 
rc'&training  them  from  disposing  of, 
alienating,  or  dealing  with  such  property, 
al.*K)  for  a  true  and  proper  account,  de- 
bate, and  pavment  of  such  moneys  as 
way  be  found  to  be  due.  Waite  asked 
for  a  declaration  that  he  was  entitled 
to  one-fifth  share  of  tlie  property,  or 
that  defendants  should  agree  with  plain- 
tiffs upon  an  impartial  valuator  in  order 
te  deterinine  the  value  of  his  share  and 
to  restrain  the  defendants  from  alien- 
ating, disposing  of,  or  dealing  in  any 
way  with  the  said  property  until  his 
rights  had  been  satisfied.  The  defcn* 
dants  admitted  that  the  option  was  ob- 
tained by  Waite,  but  said  he  did  so  for 
and  on  behalf  of  the  defendants,  and 
that  the  property  was  purchased  as  a 
joint  speculation  on  behalf  of  Waite  and 
defendants.  They  said  they  had  always 
hetrii  ready  and  willing,  aiid  hereby  ten* 
deied  to  render  witliin  a  reason, 
able  time  an  account  as  to 
the  property.  They  also  said  that 
plaintiffs,  while  in  their  employ,  had  hatl 
a  true  and  cori^ct  account.  In  Waite's 
cases,  defendants  and  plaintiffs  were  on- 
titled  to  demand  that  defendants  i>houid 
at  their  option  either  have  the  property 
sold  bv  auction,  or  have  it  valued,  but 
said  thai,  before  the  dedaraiion  was 
filed,  they  tendered  io  have  the  said 
property  <m>  valued,  and  they  now  elaiin- 
ed  either  to  M'11  or  to  value  at. their  op- 
tion n|)on  the  claim*  of  the  plaintiffs  b^- 


142 


"CAPE  TIMES"   LAW  REPORTS. 


in(?  decided  by  this  Court.  Plaintiffs 
said  defendants  could  not  poaaibly  now 
go  to  sale  by  public  auction  without  tbft 
rights  of  the  piaintiffs  being  declared, 
but  if  his  lordship  appointed — aa  he 
(counsel)  should  be  glad  if  he  would,  so 
far  aa  Waite  wa«  concerned — a  proper 
person  to  value  and  determine  his  rignt, 
then  they  could  ascertain  what  he  was 
entitled  to  in  cash.  Coming  to  what  he 
described  as  the  next  branch  of  the  oaae, 
counsel  aaid  plaintiffs  were  entitled  upon 
the  termination  of  their  engagementa  to 
have  from  the  defendants  «  true  and 
correct  account,  showing  the  amounts 
to  which  plaintiffs  were  entitled.  They 
said  they  were  entitled  to  debate  of  sucn 
account  and  payment  of  such  moneys  as 
may  be  found  due  to  them.  On  the  20th 
August,  1904,  long  alter  the  action  waa 
brought,  accounts  were  rendered  by  de- 
fendante  to  Bracht  and  Waite,  and  these 
accounts  had  been  subjected  to  a  very 
careful  and  diligent  scrutiny  at  Port 
Elizabeth  by  Mr.  Gibson,  who  had  been 
engaged  as  plaifitiffs'  accountant  adviser. 
Tliese  accounts  were  wholly  aw«y  from 
the  basis  of  accounts  taken  between  the 
parties  during  the  long  period  from 
1887  to  1903.  For  instance,  an  extra- 
ordina.ry  amount  had  been  shown  aa 
against  the  plaintiffs'  accounts  in  the 
way  of  bad  debts.  Counsel  (proceeding) 
caid  that  the  plaintiffs  were  praotioairy 
advertised  out  of  the  defendants'  em- 
ploy on  the  18th  December,  1903,  al- 
though their  agrcenoenta  would  n<^  have 
come  to  a  close  until  the  31st  December. 
1903.  The  plaintiffs  were  advertised  as 
having  no  longer  the  firm's  power,  al- 
though thcv  had  been  with  Hansen  and 
Schrador  for  nearly  20  years.  ITie 
plaintiffs  als<»  claimed  that  a  certain  sum 
of  £700  debited  to  the  Port  Elizabeth 
business,  certain  Superteration  Company 
shares,  was  wrongly  charged  to  the 
business.  It  appeared  that  in  1900 
Hansen  and  Schrader,  in  London, 
thC'Uffht  that  currants  were  a  fine  thing 
for  tne  future,  and  they  went  in  for  a 
speculation  in  currants  on  their  own  ac- 
count, but  tliey  did  not  pay,  they  did 
not  answor,  the  defendants  sent  over  a 
«hip  lood  to  Port  Elizabeth,  and  a  loss 
occurred.  The  plaintiffs,  as  managers  of 
th-3  Port  KKaabeth  business^  said  that 
that  los^  should  not  be  debited  against 
the  busineSG.  Now  came  a  very  impor- 
tant point  as  to  a  charge  for  interest  and 
exchanges  made  from  London  over 
against  the  Port  Elizabeth  busineee. 
Motiejrs  were  advanced  from  time  to 
time  in  London  by  the  partner  over 
against  the  Port  Elizabeth  business,  but 
from  the  very  outset  they  did  not  render 
proper  accounts  of  the  interest,  and  they 
put  in  a  lump  sum  for  irrterest,  but  this 
was  protested  against,  and  eventually 
the  partners  told  the  Port  Elizabeth 
people  to  write  up  the  accounts  on  the 
proper  basi?.  Thris  was  done,  and  it 
appeared  that  there  had  been  an  over- 
cfiarge  against  the  Port  Elizabeth  busi- 


ness of  £5,462  on  the  item  of  interest 
and  exchanges.  Plaintiffs  said  that  must 
be  struck  out.  Then  in  the  fourth  para- 
graph p&aintiffs  said  that  certain  suma 
amounting  to  £4,500,  representing 
charges  improperly  made  by  the  defend- 
ants, had  been  made  against  the  Port 
Ellizabeth  business  for  their  own  aervioe* 
ill  London  at  the  rate  of  £1,500  a  year. 
That,  however,  had  now  been  abandon- 
ed, and  Mr.  Waite  had,  in  consequence, 
abandoned  a  claim  for  £500  a  year  that 
ho  had  made  in  respect  of  the  manage- 
ment of  the  New  Brighton  property.  The 
next  item  was  certain  sums  amounting 
to  £2,631  198.  lOd.,  chaz]ses  improperiy 
made  by  defendants  against  the  Port 
Elizabeth  business  in  reepeot  to  expendi- 
ture on  their  own  account  in  connection 
with  the  London  business  from  1898  to 
1902.  This  was  mainly  composed  of  a 
room  in  Mr.  Hansen's  office,  and  the 
salary  of  Mr.  Hansen's  private  secretary, 
Mr.  To(]ue.  The  plaintiffs  akK>  said 
tl*ere  was  included  a  sum  of  £7,736  12s., 
a  withdrawal,  in  favour  of  W.  G.  Ste- 
vens, for  which  the  defendants  wrong- 
fully released  the  said  Stevens.  De- 
fendants said  that  the  plaintiffs  consent- 
ed, but  plaintiffs  denied  this.  They  did 
not,  however,  propose  to  go  particularly 
into  that  item.  It  referred  to  an  em- 
ploye of  defendants  at  Johannesburg, 
the'  release  probably  having  been  given 
by  defendants  in  a  spirit  of  generosity 
towards  a  man  who  had  long  served  the 
firm  up  there.  They  now  reached  a  part 
of  the  case  which  was  of  a  different 
character.  Part  of  the  general  business 
of  Hansen  and  Schrader,  secured 
through  the  services  of  Waite,  was  an 
agency  for  the  Government  of  the  late 
South  African  Republic,  and  -in  and 
after  1893  defendants.-  on-  behalf  of  the 
said  Government,  undertook  and  engag- 
ed in  a  matter  arising  out  of  the  agency, 
which  noattor  was  described  by  tbem^  in 
writing  as  very  important  and  requiring 
entire  secrecv.  Defendants  received  cer- 
tain sums  of  money,  and  other  valuable 
consideration  in  respect  of  servicea  ren- 
dered to  the  South  African  Republic, 
but  they  had  refused  to  disclose  the 
amount.  This  special  service  was 
brought  into  the  Port  Elizabeth  busi- 
ness, whatever  the  service  was,  and  in- 
volved the  defendants,  one  or  more  of 
them,  going  to  Lisbon,  and  working: 
there  in  the  interests  of  the  South  Afri- 
can Republic.  Plaintiffs  did  net  know 
what  defendants  had  received,  and  tbey 
said  it  was  part  of  the  Port  Elizabeth 
bu.sineas  of  Haneen  and  Schrader,  which 
ought  to  be  brought  into  tne  account. 
Defendants  denied  that  they  Specially 
undertook  or  were  engaged  u^x^n  the 
matter,  or  that  it  was  in  consequence 
of  the  agency.  They  said  that  they  pro- 
ceeded to  Lisbon  to  obtain  certain  busi- 
ness, but  denied  that  it  was  in  connec- 
tion with  the  Port  Elizabeth  business. 
There  was  a  document  that  the  defend- 
ants had  referred  to,  and  which  plaintiffs 


"CAPE  TIMES"  UIW  ItBPORTS. 


!♦» 


hid  noi  seen.     Tliey    said   they  did  not 
vnh  the  plaintiffs   to  see  the  document, 
but  they  were    w^illiner    that  his  lordship 
thnaldsee  it.      Tf  his  lordahip,  after  see- 
ing the  docuntent,    thought  it  completely 
di«poaed    of    their    ca^e,     then    plaintiffs 
vere  willine  that  it  should  be  left  in  his 
lordship's    nand&.         Furthermore,       the 
ficferKknts  said   that   the   plainiilTs'   en- 
frifn^menta  were  terminated,  not  by  tlteir 
Mt,  but  by  efilu'xion   of  time. 

Evidence    was    then    called   in  support 
of  the  pWin tiffs*  case. 

Oscar  Bracht  (one  of  the  plaintiffr^) 
RSTe  evidence  bearing  out  counsel's 
opening  statement.  In  regard  to  the 
DelsKoa  Bay  property,  he  said  he 
foona  that  the  transfer  of  the  land  re- 
preaented  £6,000,  and  the  balance  of 
£14,000  was  represented  by  the  good- 
will and  agencies. 

Cross-examined  by  Sir  H.  Juta:  Han- 
sen and  Schrader  were  in  Johannes- 
barg  in  1903. 

Sir  H.  Juta:  B^  what  authority  did 
you  and  Waite,  without  consulting  the 
partners,  draw  several  thousand  of 
pounds  in  the  middle  of  Decemher, 
1903! 

Witness:  I  drew  £2,000  on  the 
strength  of    the    last    distribution. 

What  did  Waite  draw? — I  don't  know 
exactly. 

You  were  a  manager? — He  drew 
£6.000. 

And  you  drew  these  amounts  with* 
oat  any  consultation  with  Hansen  and 
without  letting  him  know  a  word  about 
It?— Yes,  that    is  so. 

Answenng   further   questions.^   witnes.i 
»aid  he  simply  drew  money  which  stood 
to  his  credit,  and  to  which  he  was  full/ 
entitled.       There    was    nothing    in    his 
ai^Tpements    to    prevent    him    doing   so. 
He  supposed  that  it  was  becausie  of  this 
iDciddkt    that    the    firm    withdrew    the 
general    powers    of    attorney    held       by 
hioiself  and   Waite  in    the   middle      of 
December.       In    regard    to   the   shares 
in      the         Super«ration         Company, 
he  admitted  having  signed  a  letter  agree- 
ing to  take  700  snares  in  consideration 
of   the  firm   having  the   South  African 
agency   for   the  Supeneration.       In    re- 
gard to  the  shipnaent   of  currants   sent 
by  Hansen  and  Schrader  from  London, 
he   admitted    he  was    not  a  partner   in 
the  firm,  and   that  it  was  not  for  him 
to  say  what  the  partners  should  try  on 
the  market. 

Sir  H.  Juta:  If  the  partners  chose  to 
Aend  out  a  thousand  cases  of  currants, 
what  have  you  got  to  do  with  it. 

Witness :  Well,  we  might  have  thought 
thev  were  mad. 

Bat  you  could  not  dictate  to  them 
bow  ioe^  were  to  carry  on  their  busi- 
ness?— No.   I    could   not  dictate. 

If  they  chose  to  send  out  currants  to 
sell  at  Port  Elizabeth  you  could  not 
olMfict? — No  answer. 

The  fact  is,  joa  and  Waiie  were 
getting  a  little  bit  too  big  lor  your  boots. 


and  were  wanting  to  dielate  to  the 
partners  how  they  should  carry  on  their 
business? — No  answer. 

These  currants  were  sent  out  to  the 
firm  and  dealt  with  by  the  firm? — 
Yes. 

Then  what  on  earth  is  your  case  in 
regard  to  the  currants?— No  answer. 

In  further  croas-examii»tion,  Sir  H. 
Juta  put  it  to  witness  that  when  he 
applied  to  Hansen  and  Schrader  for 
better  terms,  and  asked  for  an  interest 
of  20  per  cent,  all  round,  he  did  not 
mean  the  properties. 

Mr.  Schreiner  objected  that  the  ques^ 
tion  was  not  admissible,  and  said  that 
the  correspondence  furnished  the  best 
answer  to  the  question. 

Buchanan,  J.,  ruled  that  the  question 
was  admissible. 

Witness  replied  that  he  did  not  mean 
the  properties. 

Wit>ne.«s  had  the  management  of 
tlie  I>ougla!i  CoUierv.  Ho  went  to 
the  colliery  in  18%,  but  he  did 
not  go  again  between  1896  and 
1903.  As  to  the  Delagoa  Bay  in- 
terests of  the  firm,  wincss  fixed  tlio 
profits  on  the  Lourenoo  Marques  Boat- 
ing C/ompany  at  £750  a  year.  Haiioeu 
and  Schrader  also  held  certain  insur- 
ance agencies,  and  the  Milner  Safe 
Agency;  he  thought  the  profits  from 
these  sources  would  be  £4Ci0  or  £500  a 
year.  As  to  the  so-called  forenhoro 
concession,  he  admitted  that  defendants 
were  only  granted  a  sub-lease  of  the 
foreshore.  He  was  not  aware  that  the 
conditions  of  the  lease  prohibited  sub- 
letting and  erection  of  buildings.  He 
still  thought  there  was  a  value  in  the 
lease.  The  company,  to  whom  the  fore- 
shore had  now  been  transferred,  were 
carrying  on  a  business,  and  it  was  evi- 
dently of  some  value  to  them.  There 
was  also  the  forwarding  agency  through 
Delagoa  Bay  to  Johannesburg.  As  to 
the  overcharge  of  £5.462  for  interest 
and  exchanges,  witness  considered  that 
that  amount  had  been  improperly 
charged  igainst  the  Port  Elizabeth  busi- 
ness by  Hansen  and  Schrader  in  Lon- 
don. Witness's  last  agreement  was 
made  in  1899.  The  interest  and  over- 
charges extended  over  12  years.  There 
was  a  good  deal  of  business  done  by  the 
partners  in  London ;  that  used  to  be 
done  without  clerical  assistance.  He 
objected  to  the  charge  made  by  the 
partners  because  it  was  too  high.  As 
to  the  New  Brighton  property,  witness 
claimed  that  he  was  a  joint-purcnaser 
in  1892.  He  was  not  present  at  the 
purchase,  but  it  was  arranged  in  the 
office  that  he  should  have  a  fifth  share. 
At  the  be^nning  of  1892  it  was  agreed 
that  a  jomt  purchase  should  be  made ; 
he  did  not  know  who  was  present  at 
the  time.  He  agreed  with  Waite  and 
English  that  he  should  have  a  fifth 
share.  He  saw  the  letter  sent  by 
Waite  to  Mrs.  Berry  taking  up  the 
optioR,    and    asking    that    the  propertv 


144 


t< 


CAPE  TIMES"   LAW  REPORTS. 


be  registered  in  the  names  of  Hansen 
and  Schrader,  "for  whose  account" 
(Waite  added)  "I  have  bought/'  He 
admitted  having  heard  of  a  letter  sent 
by  Mr.  Schrader  to  Hansen  and 
Schrader  at  Dresden.  This  was  after 
the  leiter  had  ^one.  He  afterwards 
went  to  see  Waite. 

Sir  H.  Juta  aaid  that  the  letter  stated 
that  an  exception  would  be  made  in 
regard  to  this  property,  and  that  Waite 
would  be  admitted  to  an  intereAt  to 
the  extent  of  15  per  cent,  English  15 
cent.,   and   Bracht  4  per  cent. 

[Buchanan,  J. :  Tou  see.  they  were 
not  bound  to  admit  you  to  this  trans- 
action at  all.  Waite  could  not  purchase 
landed  property  at  all  under  his  agree- 
ment with  the  firm.] 

Witness,  further  cross-exam ined^  said 
he  founded  his  claim  to  a  share  m  the 
New  Brighton  propertv  on  the  agree- 
ment he  made  witn  >\aite.  Schrader 
subsequently  told  him  that  his  interest 
in  the  property  was  to  bo  20  per  cent, 
instead  of  4  per  cent.  *  He  agreed  to 
that.  He  based  his  claim  to  co- 
ownership  upon  a  subsequent  agree- 
ment that  be  should  leave  sufficient 
funds  in  the  firm  to  cover  one-fifth 
share  of  the  property.  This  was  in 
March,  1896. 

Sir  H.  Juta:  When  do  you  say  ^ou 
made  your  purchase? 

Witne5%s :  I  suppose  the  correct  date 
would  be  when  the  money  was  paid, 
that  was  on  the  3rd  January,  1892. 

CroBft-cxami nation  continued,  nearly 
£10,000  had  been  put  into  tiko  New 
Brifchton  property  tor  development  pur- 
poses.. This  was  paid  out  of  the  revenue 
from  the  property.  He  did  not  think 
there  had  l)een  a  debit  in  Ilani^en  and 
Schrader* s  hooks  of  £12,000  against  the 
property.  He  made  a  request  in  1902 
for  his  f<hare  to  be  transferreii  in  his 
name.  He  did  not  see  the  draft  scheme 
wh(*n  it  was  proposed  to  float  the  business 
of  Hansen  and  Schrader  as  a  limited 
company.  He  believed  a  proposal  was 
discuitsod  to  float  the  New  Brighton  pro- 
perty. He  did  not  remember  the  draft 
scheme  (produced),  which  was  in  Mr. 
C'habaud  8  writing.  Part  of  the  pro- 
perty had  been  M>ld ;  the  transfers  were 
all  from  Hansen  and  Schrader,  who  had 
imdertaken  certain  obligations,  for  in- 
stance, with  regard  to  the  maintenance 
of  the  railway  to  the  dynamite  stores. 
All  the  agreements  referred  to  Hansen 
and  Schrader  as  representing  the  owners 
of  the  propertv.  He  admitted  it  would 
be  very  difficult  to  take  away  a  fifth  of 
tho  property;  that  was  why  he  asked 
for  a  fifth  undivided  share.  He  believ- 
e)  that  last  year  Mr.  Hansen  suggested 
that  the  property  could  be  cut  up  into 
fifths.  Witness  did  not  know  how  it 
could  be  done ;  be  did  not  say  that  it  was 
impossible. 

Mr.  Bchreiner  (interposing) :  We  are 
not  asking  for  a  partition  of  the  estate. 


[Buchanan,  J..  The  Court  may  on 
this  evidence  have  to  appoint  a  receiver 
to  sell  this  property.] 

Cruss -examination  continued  :  Witneoi 
remembered  the  law  suit  between  Han- 
teri  and  Scl-rad«*r,  and  the  Gov>*rarai*nt  in 
regard  to  certain  portion  of  thi4  land.  He 
was  not  aware  that  at  the  trial  English 
said  he  supposed  bis  share  had  lapsed 
to  the  other  partners.  He  abided  by 
the  value  put  by  the  experts  on  the 
Douglas  Colliery  shares,  viz.,  15s.  per 
share.  He  knew  there  was  a  liability 
against  the  shares. 

By  Buchanan,  J. :  The  shares  were 
mostly  fully  paid  up.  Hansen  and 
Schrader  held  78,000  shares. 

Witness  (further  cross-examined)  s&id 
that  the  colliery  had  not  made  sixpence 
directly  during  the  fourteen  years  that 
it  had  been  working.  It  had,  however, 
brought  other  business.  It  stood  indebt- 
ed to  the  firm  in  the  books  at  £12.000. 
There  were  7,000  uncalled  shares.  There 
was  an  overdraft  of  £10,000,  and  aL^  a 
liability  to  the  Netherlands  Railway  of 
£6,700.  He  was  not  aware  that  the 
Netherlands  Railway  had  commenced  an 
action  against  Hansen  and  Schrader. 
The  shares  had  not  been  put  on  the  mar- 
ket He  believed  17,000  were  bought 
by  the  Oceana  Company  at  par. 

Sir  H.  Juta :  Would  you  be  surprised 
to  hear  that  the  Oceana  bought  at  4s. 
per  share. 

Witness :   Yes. 

Bv  Buchanan,  J. :  In  1902  the  firm's 
books  showed  a  credit  in  his  favour  of 
£5,000  odd,  and  in  1903  he  drew  abf>ut 
£3,000.  He  had  seen  the  accounts  for 
the  31st  December.  1903,  showing  a  bal- 
ance in  his  favour  of  £1,272. 

Mr.  Schreiner:  But  Hansen  and 
Schrader,  in  their  account,  .*how  a  losii 
of  £41,000  for  1903,  which  thev  say  will 
have  to  be  set  off  against  the  balance. 

Buchanan.  J.,  suggested  to  counsel 
that  they  should  discuss  between  them- 
selves tlie  question  of  whom  they  should 
appoint  to  go  into  the  accounts. 

Ke-examined  by  Mr.  Schreiner:  Wit- 
ness said  that  although  tbev  did  not 
consult  the  partners,  when  they  drew 
money  from  the  firm  in  December,  1903. 
they  consulted  tlie  attorney,  Mr.  Chi- 
bau'd.  Their  arrangements  were  coming 
t^  an  end  at  that  time,  and  they  thought 
they  were  doing  what  they  had  a  right 
to  do.  As  to  the  currants,  the  accounts 
showed  a  loss  of  £185  on  that  transac- 
tion. He  had  never  seen  the  document 
of  lease  between  Hansen  and  Schrader, 
and  the  Delagoa  Bay  Agency  Company. 

Mr.  Schreiner  demanded  from  the 
plaintiffs  production  of  the  document  in 
quei>tion. 

Sir  H.  Juta  handed  a  document  to  his 
learned  friend. 

Mr.  Schreiner  said  he  was  supi^ied 
with  a  copy  of  a  resolution  passed  bv  the 
Agency  Company  in  December*  1003. 


"CAPE  TIMES"   LAW  REPORTS. 


146 


Sir  H.   Jiiia:    That    is    all    we   have. 
There  is  no  other  document. 

Witness  i further  re-examined)  said  he 
fthiHild  hare  said  that  the  New  Brighton 
I-roperty  was  bought  to  joint  account  in 
January.  1893,  not  January,  1892.  He 
fhouJd  asay  tlkat  there  was  over  600  acres 
uf  laxtd  at  New  Brighton  still  unsold ; 
there  was  only  a  bagatelle,  relatively. 
that  iMti  b>on  sold.  About  36  acres  had 
teen  sold  up  to  the  present.  As  to  the 
I>t*uf;las  Colliery,  witness  considered 
that  he  should  be  paid  his  share  of  the 
value.  Both  eides  had  appointed  valu- 
■tor*  already,  but  Hansen  and  Schrader 
wrxild  noC  agree  to  the  appointment  of 
a  referee  to  fix  a  price.  In  1898  Han- 
sen and  Schrader  said  that  the  Oceana 
C'ompanv  bought  the  .shares  in  the  Col- 
liery at  par.  The  Colliery  now  had  a 
contract  Inr  the  supply  of  24,000  tons  of 
coa:  to  the  C.S.A.R. 

By  the  Court :  The  accounts  between 
witnew  and  HansQn  and  Schrader  were 
a^7«ed  up</n  up  to  the  end  of  1901.  The 
Ix>ndon  office  acted  as  agent  for  the  Port 
Elizabeth  busine^  and  charged  nothing 
for  agency. 

Buchanan,  J.,  remarked  that  he  was 
»iirpri^>d  witne?^,  as  a  manager,  should 
CTKitend  that  the  partners  were  not  en- 
titled to  send  out  what  they  liked  to 
the  Port  Elizabeth  business. 

Arthur  Herbert  Waite  said  he  had 
ipade  out  a  profit  and  lch«  account  of  the 
biMinesA  between  1887  and  1901.  This 
»li<iwed  interest  paid  on  capital  £96,000. 
and  net  profits.  roi,«;hly  s|ieaking,  if 
£1?7.000.  averaging  about  £9,000  a  year. 
As  to  the  New  Brighton  Estate,  it  wa-? 
entirely  through  En^li^h  that  the  pur- 
chase was  made.  He  did  not  under- 
stand that  his  agreement  debarred  him 
from  making  purchases  of  landed  prcj- 
perty.  In  1891  he  had  actually  let  a 
rough  goods  store  to  Hansen  and'  Schra- 
der. Witness.  Bracht.  and  English  con- 
ferred as  to  the  New  Brighton  property, 
and  they  afterwards  decided  to  ask 
Schrader  to  stand  in  with  two  fifth 
t^hares  for  his  firm.  At  the  end  of  1903 
there  wa«  a  credit  in  the  books  to  the 
New  Brighton  property  of  £1,200.  He 
claimed  that,  so  far  as  his  interest  was 
cencerri'iid.  he  should  have  an  impartial 
valuation  of  the  property.  Witness  was 
also  examined  as  to  other  aspects  of  the 
case.  Ill  regard  to  tlie  accounts  for  1903, 
furnished  by  defendants,  witness  said  he 
was  dissatisfied  with  what  wb.s  shown 
there  The  firm  showed  a  loss  of 
£41,000  odd,  Mr.  Gibson,  who  had  been 
through  the  various  items  with  witness 
showed  a  profit  of  £7.000  to  witness. 
As  to  the  Port  Elizabeth  business  alone, 
defendants  showed  a  loss  of  £9,932, 
while  Mr  Gibson  found  a  profit  of 
£16,900.  On  the  Johannesburg  business 
defendants  showed  a  loss  which  was 
£22,000  odd  more  than  Mr.  Gibson 
found.  Witness  observed  that  defend- 
ants had  in  making  the  accounts  written 
down  the  stock  below  cost,   and  carried 


to  suspense  account  outstandings,  a  con- 
siderable portion  of  which  was  good,  and 
for  which  they  had  security. 

Sir  H.  Juta  objected  to  these  sta'e- 
n^ents  going  before  the  public,  seeing 
that  an  arbitrator  was  to  i)c  appoiiited. 
He  thought  there  could  only  l)c  one  ob- 
jcv t  in  putting  out  tlu'tfe  statements. 

Mr.  Schreincr  thought  the  objection 
was  uncalled  for. 

[Buchanan.  J. :  I  think  this  evidence 
is  altogether  unnecessary,  &a  I  shall  not 
go  into  the  accounts.] 

He  spoke  as  to  the  New  Brighton 
propertv  and  the  Delagoa  intereiits  of 
the       (lefendants.  He       said       that 

roughly  speaking  the  clear  profits 
from  the  Delagoa  Bay  agencies 
were  abcjut  £1,500  a  year.  Defen- 
dants were  carrying  on  business  at 
Delagoa  Bay  as  the  Hansen,  Schader 
Co.  The  Company  went  into  li(|ui- 
dation.  He  considered  that  £20,000 
would  be  a  fair  value  for  the  land, 
with  the  store  formerly  held  by  defen- 
dants at  Lourenco  Marques,  although 
the  transfer  price  was  £6,000.  As  to 
the  foreshore  concession,  ho  knew  noth- 
ing in  regard  to  this  except  what  ap- 
peared in  the  correspondence.  He  had 
asked  for.  but  had  not  been  supplied 
with  particulars  as  to  how  the  fore- 
shore concession  was  dealt  with  by  the 
Hansen,  Schrader  Co.  in  disposing  of  it 
to  the  Delagoa  Bay  Agency  Company. 
In  the  course  of  further  evidence  wit- 
ness said  that  he  did  not  want  to  take 
shares  for  his  interest  in  the  Douglas 
Colliery;  he  wanted  to  bo  paid  his 
value. 

[Buchanan,  J. :  That  shows  how  little 
the  shares  are  worfcli.J 

Witness  (further  examined)  said  that 
the  Douglas  Company  was  principally 
dominated  by  Hansen  and  Schrader,  and 
the  Oceana  (^-ompany.  and  he,  as  the 
holder  of  a  small  parcel  of  shares,  would 
be  placed  in  an  unfavourable  position. 

Buchanan,  J.,  remarked  that  the 
Court  would  adopt  an  effective  means 
of  ascertaining  the  value  of  the  shares. 

Witness  (continuing  his  evidence)  said 
that  in  the  account  furnished  in  August 
last  year  defendants  set  do^n  a  large 
item  of  outstandings  under  "  susx)ense 
account." 

Buchanan,  J.,  said  that  any  objections 
that  witness  had  to  the  account  could  be 
urged  before  the  arbitrator,  to  whom 
the  account  would  be  referred.  The 
great  fight  seemed  to  him  to  be  over 
the  account. 

Mr.  Schreiner:  Yes,  and  the  New 
Brighton  property. 

Cross-examined :  Witness  and  Bracht 
drew  out  certain  moneys  in  the  middle 
of  December,  1903,  without  consulting 
the  partners  because  he  thought  they 
were  entitled  to  the  money  under  the 
distribution. 

[Buchanan,  J. :  I  may  say  at  once 
that  their  is   nothing  at  all  surprising 


14G 


"CAPE  TIMES''   LAW  REPORTS. 


that  their  powers  of  attorney  were  sum- 
marily cancelled.] 

Mr.  Schreiner  said  that  that  remark 
was  verv  serious  from  the  plaintiffs* 
point  of  view.  His  Lordship  had  not 
yet  heard  the  evidence  of  Mr.  Chabaud, 
the  a.ttoriiey. 

[l^uchanan,  J.  :  It  is  outside  the  case 
altogether,  and  I  am  eurprised  that  it 
has  boon  brought   in.] 

Mr.  Schreiner  said  that  he^  had  pur- 
posely refrained  from  examining  the 
plaintiffs  on  this  point,  because  he 
thought  it  was  outside  the  case.  It 
had,  however,  now  been  brought  in, 
and  it  was  only  right  that  he  should  ask 
Mr.  Watte  why  this  money  was  drawn. 

I  Buchanan,  J.  :  There  was  every  rea- 
son to  cancel  the  powers  of  attorney, 
because  they  never  communicati>d  with 
their  principals.  I  am  surprised  at 
your  bringing  it  in  the  rase  at  all.] 

Mr.  Schreiner :  Defendants  brought 
It  m. 

[Buchanan.  J.:  lb  is  in  your  declara- 
tion. As  far  as  the  ca&e  stands  at  pre- 
sent, I  did  not  seo  that  it  is  nocoseary 
for  the  Court  to  express  any  opinion.] 

Further  cross-examined,  witness  said 
that,  with  regard  to  the  Douglas  Col- 
liery, he  knew  there  was  an  obligation 
upon  defendants.  There  was  £7,000 
for  unpaid  calls.  He  knew  that  defen- 
dants were  liable  for  the  overdraft, 
whatever  it  was,  to  the  extent  of 
£10,000.  They  also  had  a  liability  to 
the  Netherlands  Railway  of  £6,000.   No 

f)rofits  had  been  returned  from  the  col- 
iery  because  the  large  profits  made 
were  withdrawn  and  spent  upon  develop- 
ments. He  did  not  lielieve  that  the 
transaction  with  the  Oceana  Company 
in  Douglas  Colliery  shares  at  4s.  per 
share  was  a  sale  at  all.  Witness  was 
being  cross-examined  in  reference  to 
the  lease  of  Mr.  Stevens,  who  had  been 
employed  at  Johannesburg  by  defen 
dants.  from  certain  debts  amounting  to 
£7,736.  when 

Mr.  Schreiner  interposed,  and  said 
that  plaintiffs  did  not  press  this  part  of 
their  claim. 

Sir  H.  Jufca  proceeded  to  cross-ex- 
amine the  witness  in  reference  to  a 
claim  that  he  had  originally  put  in  for 
salary  for  management  of  the  New 
Brighton  property. 

Mr.  Schreiner  again  interposed,  and 
said  that  he  had  taken  special  care  to 
shorten  his  ease  as  much  as  possible, 
while  his  learned  friend  now  introduced 
matters  which  had,  as  a  matter  of  fact, 
been  abandoned. 

Buchanan,  J.,  said  he  did  not  want 
evidence  upon  any  claim  that  he  was 
not  to  adjudicate  upon. 

Sir  H.  Juta  next  called  witness's  at- 
tention to  what  was  described  as  the 
'*  Lisbon  matter,"  and  a.sked  him  if  he 
knew  that  nothing  whatever  was  made 
out  of  it. 

Witness  said  he  did  not. 


Cross-examination  continued :  Witness 
understood  that  there  was  a  document 
showing  what  was  the  transaction  be- 
tween the  late  Transvaal  Government 
and  Hansen  and  Schrader.  He  was 
responsible  for  the  agency  obtained  for 
the  firm  from  the  Republican  (lovern- 
ment,  and  he  ronsidercvl  that  if  anything 
was  made  from  the  transaction  the  Port 
Elizabeth  bu-ine.sa  should  be  credited 
with  it. 

John  Anthony  Chabaud,  attorney. 
Port  Elizabeth,  was  alM)  called,  and 
examined  in  reference  to  a  certain  draft 
document. 

Mr.  Schreiner  closed  his  ca^e. 

Vigfio  Hansen,  a  membc^r  of  the  defen- 
dant firm,  detailed  the  negoHatinn.n 
which  icjok  place  Ix'twc^en  plaintiffs 
ancl  him»i»lf  with  regard  to  pre- 
paring an  account.  In  1904  ho 
arrived  in  Port  Elizabeth  from 
Johannesburg.  On  looking  into 
the  businetss  ho  found  the  books  very 
much  behindhand,  and  he  found  furlhor 
that  the  bookkeeper,  who  had  been  e-i 
trustecl  to  carry  on  the  books,  bad  not 
propc^rly  closed  the  books  for  years.  A 
gentleman,  whom  he  had  enpnged  as 
joint-manager,  suddenly  broke  his  en- 
gagement, and  left  the  firm.  The  book- 
keeper al50  broke  his  engagement,  and 
left  the  firm.  Witness  was  therefore 
placed  in  a  very  embarrai«sed  position. 
He  appealed  to  Waite  and  Bracht  ft»r 
certain  information.  lUacht  could  not 
give  any  information,  not  only  generally, 
but  also  as  to  bu.siness  matters  which 
were  under  his  direct  6upervi»ion. 
Waite  flatly  and  rudely,  in  a  letter, 
declined  to  have  any  intercourM?  with 
him  what4i(K»ver.  Witness  engag<»d  an 
experienced  accountant  to  go  into  the 
l)ooks.  He  could  not  clo.'je  the  accounts 
any  sooner  than  he  did,  and  owing  to  the 
backward  condition  of  the  books,  he 
could  not  render  his  accounts  imtil 
August  of  la.st  year.  It  was  not  until 
the  day  before  the  trial  commenced  that 
he  received  nc>tice  of  objection  from  the 
plaintiff*}.  In  the  agreements  with 
his  employes  he  always^  constituted  him- 
self arbiter  as  to  how  his  balance-sheets 
should  be  made  up.  Ho  maintained 
that  they  had  always  treated  their  em- 
ploych  lil)erally  and  equitably  upon  their 
agreements.  Dealing  with  the  Delagoa 
Bay  interests,  witness  tsaid  that  he  re- 
ceived no  consideration  in  money  from 
the  Delagoa  Bay  Agency  Co.  for  the 
foreshore  (jonceasion.  It  all  went  in  as 
part  of  the  £20,000.  His  firm  was  as  a 
matter  of  fact  a  sub-tenant  of  the 
Agency  Company.  As  to  the  Lisbon 
matter,  his  partner  went  to  I^sbon  to 
try  and  get  something.  He  was  willing 
that  his  lordship  should  see  the  docu- 
ment on  which  the  Court  could  declare 
whether  plaintiff  was  justified  in  his 
assertions.  He  swore  they  got  nothing 
out  of  the  matter;  tliey  had  expecte«i  to 
get  something,  but  did  not. 


"CAPE   TIMES"  LAW  REPORTa 


U7 


BocfaanaD,  J.,  said  he  could  not  look 
at  tlie  documeot  unleu  Mr.  Scbreiner 
f««  it. 

WitiMMs      Tolunteered   to   allow  ^   Mr. 
Schr-oin^T  to  6oe  the   document  private- 
Mr.   Sehreiner  said  ho  did  not  like  to 
gee  any   documeut   that  his  client  could 
DTi  inspect. 

Witness  (in  further  evidence)  .said  that 
toe  ducumeDt  was  not  relevant  to  the 
cMMi.  He  had  thought  it  was  not  in 
existent,  but  it  had  been  found  in 
luiTope- 

Mr.  Sehreiner  said  he  was  willing  that 
hjs  lordship  should  look  at  the  document, 
and  decide  as  to  its  relevancy. 

Buchanan.  J.,  perused  the  document, 
and  observed :  This  document  affords  me 
more  amosement  than  anything  el<<e; 
hat  for  the  names  mentioned,  it  is  ab- 
Tolaielv  outside  the  case.  It  does  not 
b<>ar  OD  the  case  at  all.  I  might  defi- 
frihe  it  in  a  few  words,  but  I  think  it 
best  not  to  do.  It  might  enlighten  you 
as  to  how  far  ambitions  can  soar. 

Witness  (in  further  evidence)  said  that 
ia  the  Douglas  Colliery  Co.     there  were 
66.750  fully  paid-up  shares,  and  there  was 
a  liability   of    12s.   a   share   upon   11,250 
shares.       His  firm  were  liable  for  an  over- 
draft  up    to    £10,000;    the    Netherlands 
Railway    were   claiming   between   £6,000 
and  £7*000  against  the  Douglass  Colliery, 
Hamten    and    Schrader   and  the  Oceana 
Company-      The  co?t  of  the  colliery  was 
debited   in  the  firm's  books  at  £12,600. 
There    was       also    a    liability    for    calls 
amountinsr  to  about  £7,000.      The  shares 
in   the    Douglas    Company   sold    to    the 
Oceana  Company  were  transferred  at  48. 
per  share.       Witness  considered  that  4s. 
per  share  would  be  a  fair  value.      That 
was  the  book  value  of  the  shares.       He 
diJ  not  object  to  the  shares  being  sold 
by    auction.        Witness    also    gave    evi- 
dence in  reference  to  the  New  Brighton 
property,  and  the  advances  made  by  his 
frm    towards      its      development.       He 
thougrht  it  was  utterly  impracticable  to 
partition   the   property. 

Vi^go  Hansen,  a  member  of  the  de- 
fendant firm,  said  he  had  not  written 
to  Waite  objecting  to  his  making  pri- 
vate purchases  of  property.  He  consid- 
ered thatW'aite's  agreement  in  1892  de- 
barred him  from  private  purchases  of 
property.  He  did  not  say  that  he  raised 
specific  objections  to  any  purchaser  made 
by  Waite.  but  he  did  not  like  it. 

[Buchanan,   J. :       You  did    not   want 
your  managers  to  go  speculating  in  pro- 
perty?] 
l^itness:   That  is  so,  my  lord. 

[Buchanan,  J. :  ^  Quite  righk  That 
you  are  legally  entitled  to  do.] 

Mr,  Sehreiner  was  continuing  his 
rmss-examination  upon  certain  negotia- 
tions that  took  place  between  witness 
and  plaintiffs,  after  the  latter  had  left 
the  firm,  when 

Buchanan,   J.,   interposed,   and    asked 


counsel   what  these   things    had    to  do 
with  the  issues  the  Court  had  to  try. 

Mr.  Sehreiner  said  the  points  were 
raised  by  witness  in  his  examination-in- 
chief. 

Proceeding  with  his  cross-examination, 
Mr.  Sehreiner  asked  witnetjs  whether  he 
thought  that  to  advertise  out  in  tlH» 
newspapers  of  Port  Elizabeth  two  men 
who  had  been  with  the  firm,  one  20 
years  and  the  other  17  years,  until  he 
heard  their  explanation,  was  the  right 
thing  to  do? 

Witness :  Sir,  I  had  for  two  years  been 
subject  to  provocation,  hostility,  and  of- 
fensive correspondence,  which  no  chief 
in  thi««  world  would  have  put  up  with 
for  a  moment  from  these  people.  Tlien 
they  wrongfully  and  illegally  withdrew 
money  from  tho  business  which  they 
knew  they  were  not  entitled  to.  That 
filled  up  my  cup.  They  screened  tlM»m- 
selves  behind  the  solicitor.  1  said  those 
people  don't  deserve  the  generous  treat- 
ment I  have  given  them  all  these  years 
they  have  been  in  the  business. 

Mr.  Sehreiner:  That  ia  pretty  can- 
did, but  it  is  not  quite  consistent  with 
your  attitude  towards  Waite  in  a  letter 
you  sent  him. 

[Buchanan.  J.  (to  Mr.  Sehreiner) :  Do 
you  wish  me  to  give  any  decision  on  that 
point?] 

Mr.  Sehreiner:  I  ask  you  for  nothing 
that  is  not  in  the  pleadings,  my  lord. 

[Buchanan,  J. :  Then  why  cross-ex- 
amine on  something  that  is  not  in  the 
pleadings  ?] 

Mr.  Sehreiner:  Because  the  witness 
has  taken  a  line  that  is  not  in  the  plead- 
ings. Why  did  my  learned  friend  ex- 
amine on  it? 

[Buchanan.  J. :  I  stopped  him  from 
going  into  it.] 

Mr.  Sehreiner :  Not  on  this  point.  It 
was  a  small  speech  made  b^  Mr.  Han- 
sen   at  the  outset  of  the  evidence. 

[Buchanan,  J. :  You  say  distinctly  this 
is  not  a  matter  that  is  in  the  pleadings, 
and  yet  you  bring  it  out  here.] 

Mr.  Sehreiner:  I  am  very  sorry  that 
it  was  led  up  to  by  my  learned  friend 
in  the  examination  of  witness. 

[Buchanan,  J. :  My  impression  is  that 
it  was  introduced  by  yo>urself  in  stating 
the  declaration,  and  I  tried  to  stop  you.] 

In  further  cross-examination,  Mr. 
Sehreiner  took  the  witness  to  what  has 
come  to  be  known  as  the  ''Lisbon  mat- 
ter," in  which  it  is  alleged  the  late 
South  African  Republic  had  an  interest. 

[Buchanan,  J.  (to  Mr.  Sehreiner) :  I 
am  sorry  you  did  not  see  the  agreement 
submitted  to  me  by  witnera  yesterday, 
or  you  would  not  ask  any  questions.  I 
may  say  that  it  would  have  done  credit 
to  the  most  brilliant  Elizabethan  mer- 
cantile adventurer.  Had  there  been  a 
result  it  would  have  been  a  thing  that 
the  wide  world  would  have  known.] 

Mr.  Sehreiner  informed  witness  that 
he  did  not  want  him  tP  reveal  any  confi- 
dences. 


148 


"CAPE  TIMES"   LAW  REPORTS. 


[Buchanan,  J. :  The  principal  objec- 
tion is  the  name«  that  are  mentioned 
in  the  document.] 

Mr.  Schreiner  (to  witness) :  Do  you 
object  to  letting  us  on  this  side  krow 
who  drew  up  that  document? 

Witness :  I  will  lot  ^ou  know  person- 
ally I  object  to  disclosing  anything 
that  is  in  this  document,  except  to  you 
privatt»ly.  It  has  nothing  whatever  to 
do  with  the  oase. 

Mr.  Schreiner:  It  was  a  mat*«r  in 
which  you  were  going  to  Lisbon  on  be- 
half of  the  late  Trani»vaal  Govemm«int? 

Witness:    No,   you   are   totally  wrong. 

[Buchanan,  J.  (to  Mr.  Schreiner) :  It 
has  nothing  to  do  with  the  Trans /aal 
Government.  If  it  had  referred  to  iho 
Republican  Government  it  might  hnve 
been  relevant  to  the  case,  but  it  has 
nothing  to  do  with  the  firm's  agt  noy 
of  the  Transvaal  Government.] 

Mr.  Schreiner  asked  witness  whotJier 
hd  was  paid  hia  expenses  oi  goi:i>^  and 
staving  in  Lisbon. 

vvitness:  I  am  not  going  to  make  any 
disclosure  on  that  point.  I  decline  to 
answer  the  question. 

Mr.  Schreiner  pressed  his  quest  lor, 
out  his  lordship  ruled  that  it  was  not 
obhe^atorv  on  witness  to  answer. 

Mr.  Schreiner  formally  applied  for  the 
question  to    be  noted. 

Buchanan,  J.,  said  he  would  make  a 
note. 

Witness  (replying  to  further  ques- 
tions) said  there  was  certain  corrospon- 
donee  in  regard  to  the  Lisbon  matter  in 
December,  1893.  The  matter,  he  admit- 
ted had  sdfnething  to  do  with  Delagoa 
Bay.  He  received  no  profit  whatever 
from  it;   there  was  no  result  whatever. 

Buchanan,  J.,  expressed  his  surprise 
at  the  line  taken  by  counsel,  seeing  that 
the  document  was  submitted  to  him  by 
consent,  and  he  had  ruled  that  it  was 
not  relevant  to  the  case.  "  In  future," 
ho  added,  **  I  shall  exercise  my  own  dis- 
cretion as  to  how  far  I  shall  take  the 
consents  of  counsel." 

Mr.  Schreiner  said  that  he  had  not 
been  cross-examining  so  much  in  regard 
to  the  document  as  with  reference  to 
the  matter  itself. 

Witness  was  next  cross-examined  in 
referenoe  to  the  Douglas  Colliery  in  Pre- 
toria district.  He  stated  that  he  would 
be  willing  to  accept  7s.  6d.  per  share 
for  their  holding  in  the  company.  He 
considered  that  plaintiffs*  valuation  of 
15s.  was  excessive,  and,  in  fact,  he 
thought  that  the  difference  between  that 
estimate  and  their  own  of  48.,  viz., 
99  6d.  per  share,  would  be  too  high  a 
value.  Asked  in  regard  to  the  charges 
he  had  made  against  the  Port  Elizabeth 
business  for  expenses  incurred  in  Lon- 
don, witness  maintained  that  he  had 
debited  the  business  with  very  reason- 
able charges. 

Sir  H.  Juta  closed  his  case. 

Mr.    Upington   read   certain   evidence 


taken  on  commission  in  Johannesburg. 
Gustave  A.  Troye,  mining  engineer, 
stated  that  he  valued  the  shares  in  the 
Douglas  Colliery  at  18s.  per  share.    The 

f>Iant,  ho  found,  was  out  of  date,  and 
10  considered  that  the  mine  should  be 
ro-e<iuipped  to  a  great  extent.  Ho 
thought  that  in  the  past  tho  company 
had  lHH»n  spoil! njr  a  good  a.s^ot.  lie 
eoiKsidered  that  £20,000  would  he  suffi- 
cient to  ro-eqiiip  the  miiK?.  William 
Frederick  Morris,  colliery  manager  in 
the  Middelburg  district,  Transvaal,  gave 
evidence^  as  to  the  market  for  Colonial 
t'oal.  Wm.  English,  now  of  Johannes- 
burg, formerly  employed  by  defendants 
as  joint  manager,  had  also  been  ex- 
amined for  plaintiffs. 

Mr.  Gardiner  next  read  the  evidence 
of  Thf»mas  Dougla.s,  chartered  account- 
ant. Johannesburg,  who  valued  the 
shares  in  the  Douglas  Colliery  at  4s.  ; 
Charles  R.  Arburrow,  civil  engineer, 
Johannesburg;   and  Mr.    Eggars. 

Mr.  Upington  then  read  the  evidence 
of  Henry  Adams  Rogers,  of  the  Wit- 
bank  Collieries,  and  Mr.  Gaj»roigne, 
mining  engineer,  formerly  sunerintcn- 
dent  of  the  Douglas  Colliery,  the  latter 
of  whom  said  that  if  the  colliery  were 
in  his  hands  ho  could  make  £400,000  to 
£500,000  before  it  was  worked   out. 

Mr.  Gardiner  read  the  evidence  of 
Ailhur  Crosby,  the  present  manager  of 
the  Doii|jlas  Colliery,  and  Mr.  McCai- 
lum,  chairman  of  the  Douglas  C-ompany. 
who  said  he  would  not  give  £50.000  for 
the  property. 

Mr.  Schreiner,  in  argument,  dealt  with 
tlie  question  of  whether  Bracht  should 
be  paid  10  or  5  per  cent,  in  relation  to 
landed  property.  During  further  argu- 
ment, he  took  up  the  matter  of  the 
New  Brighton  property,  and  submitted 
that  it  was  not  impracticable  to  parti- 
tion the  estate,  developments,  such  as 
the  railway  servitudes,  and  so  forth, 
notwithstanding.  Bracht  should.  he 
contended,  got  his  one-fifth  undivided 
share  in  the  property.  Waite  was  en- 
titled to  a  uoclaration  of  rights,  and 
he  should  be  paid  out  on  a  valuation  of 
the  estate.  The  defendants  were  not 
entitled  to  alienate  this  valuable  pro- 
perty until  they  had  satisfied  Waite's 
rights.  The  whole  correspondence, 
he  submitted,  showed  that  defendants 
had  not  got  a  separate  right  to  deal  as 
thejr  pleased  with  New  Brighton.  Re- 
ferring to  the  proposed  reference  of 
account  to  an  arbitrator,  counsel  sug- 
gested that,  as  the  points  in  dispute 
were  large  and  important,  each  side 
should  nomiiuite  a  suitable  person,  say 
an  accountant,  and  the  Court  should 
appoint  a  counsel  of  standing  to  decide 
the  quasi  legal  questions.  As  to  the 
Douglas  Colliery  shares,  he  should 
suggest  that  if  the  Court  had  anv  diffi- 
culty on  the  evidence  on  commission  in 
deciding  their  value,  a  separate  valua- 
tor should  be  appointed. 


"CAPE   TIMES »»  LAW  REPORTS. 


149 


Buchanan,  J.,  said  he  would  first  have 
to  hear  coansel  for  defendants    on  that 

point. 

Mr.  Schreiner  went  on  to  refer  to  the 
Talues  of  th©  Dclagoa  Bay  property, 
which  had  been  held  by  Hansen  and 
^hrader.  He  ur^ed'that  the  fore- 
«hnrp  oonce^ioii  should  be  treated  as  a 
flofinit*^  asset  of  the  Hansen,  Schrader 
f""*.  Counsel  also  contended  that  de- 
fendanta  had  no  xieht  to  debit  against 
thp  Port  Elizabeth  ousinose,  upon  which 
plaintiffs  claimed  a  percentage  of  profit, 
tlM»  Supercration  shares.  A«  to  the 
currants,  he  did  not  pre.«s  that  point 
vpry  much,  though  he  thought  defen- 
dantii  should  bear  the  loss  if  thev  sent 
an  ov<>r-flhipn)ent  of  currants.  lie  ad- 
mitted that  plaintiffs  would  bo  liable 
to  a  certain  proportion  of  Mr.  Hansen's 
private  secretary's  salary  to  be  debited 
Vainst  their  claims. 

Sir  H.  JuU     argued     that    the    Col- 
hpry  and    Johannesburg  and     Delagoa     | 
Bay  properties    were   not   included      in 
Jhp  apreenaent  to  allow  10     jjer  cent,  to 
Bricht,  where  ''general     business"  was 
n>ereiy  spoken  of,   and  that  Bracht  was     ; 
to  hare  only  5  per  cent,  on  the    colliery     j 
Man*  or  landed  properties,   though     he 
had  10  per  cent,   on   the    general  busi- 
W8S.     It  was  clear  from  the  oorrcspond- 
^nop-  that  it  was    intended  that  the  terra     i 
*  ppneral     business,"       as    used   in    the 
ajrrpenient,  meant     wool,  produce,     and     , 
ffathere,  and  did  not  embrace  the   col-     ' 
Iktv  shares  and  landed  properties.      As 
t'^  the  New  Brighton  property,   he  sub- 
niittod  that  Bracht  had  not  proved  his 
j'aim  that  he    was    a   joint     purchaser. 
1|  was  clear  that    that    property      was 
h'lQnrht      on       behalf  of    Hansf»n      and 
?Hhrader  by  Waite,  and  that     the   con- 
tract wa^  as   between  the  seller      (Mrs. 
wrv)  and  Hansen  and  Schrader.       He    , 
Pfnild  not  understand    how      defendants 
fould  he  said  to  be    acting  in  a     fldu- 
'I'lrjr  capacity  for  plaint  ifF5i.     Defendants 
^^ii  either  have  bpon  buying  for  them- 
'o\\p»  or  as  agents.      There  wa5  nothing 
whatever  to  show  agency  on  the      part 
f*i  Hansen  and  Schrader.        Afterwards 
tho  partners  distributed     percentages  of 
interest     to      plaintiffs.        who      never 
*<^re   co-owners.       That    Waite    bought 
"n  bt'half    of     the  firm    was    supported     i 
h>    the  agreement   between    Wait<>    and 
defpndants,  under  which  the  former,   as 
Rrneral  manager,   wa«   debarred       from 
purchasing  property  on  his  own  account, 
with  regard   to  the  Delagoa  Bay  busi- 
n/'ss.  coanM>l  contended    that   the'  plain- 
I'ffs  had  no  right  to  any  interest  in  the 
Jorwhow*  concession,    as  it  went  to   de- 
icndants  when  plaintiffs  had  no  right  to    ' 
■ny  Delagoa    Bay    interests    of   defend- 
ants.     As  to  the  Colliery    shores,      his 
nients  were  prepared  to  offer  5s.  9d.  to 
plaintiffs  for  their  shares,   otherwise  the 
*hares  would  be  sold  by  public  auction, 
J'T  which  case  they   would  see    whether 
P»Mntiff*s  valuation  of  15p.  per  share  was 
Itttified.    In  regard  to  the  account,  he 

i 


suggested  that  Mr.   Syfret  be  appointed 
for  the  r^erenoe. 
Postea  (February  27thJ. 
Buchanan,  J.,  after  giving  judgment, 
ordered:     That   the    defendant   diacloae 
and  bring  into  account  with  the  plaintiff, 
and  the  plaintiff  is  declared  to  be  entitlea 
t.),    Waite  15  per  cent.,   and   Bracht  10 
per  cent.,  in  respect  of  all  profits,  shares 
11   any  company  or  syndicate,    and  any 
other  valuable  consideration  received,  or 
t')  be  received  by  the  defendants,  or  on 
their  behalf  in  respect  of  the  disposal  of 
th'>   landed    property,    and    tho    general 
business    and  goodwill  formerly   carried 
on  at  Delagoa  Bay;  the  plaintiff  (in  both 
cases)  is   declared  entitled    to      one-fifth 
shares,  and   interest  in  the  New  Brigh- 
ton property,  and  the  defendants  ordered 
t.i  render   true  and   correct    account   of 
all  tlieir  dealings  with  and   income   de- 
rived from  the  said  property,  and  to  de- 
bate such  account  and  pay  the  plaintiff 
his  share   thereof,   and  also  pay  to  the 
plaintiff   his  fifth  share  of  the  value  of 
the  said  property  on  the  Slst  Decemlier, 
1903 ;  that  the  riefendants  render  a  truo 
and    correct    account    of    their   dealings 
with  the  Douglas   Colliery,    and   pay   to 
the  plaintiff  10  per  cent,  of  the  profits, 
if  any,  of  the  venture,  and  of  tho  value 
of  the  said  property  or  of  the  shares  held 
therein ;   that  the  cost  of  or  any  loss  or 
charge  for  certain  shares    in  tlie  South 
African    Supcr»ration    Company,    Ltd., 
and  in  the  shipment  of  certain  currants 
referred  to  in  clause  11  (sections  1  and  2) 
of    plaintiffs'    declaration    is    chargeable 
to  the  business  carried  on  at  Port  Elixa- 
l>oth,  and  that  the  sums  of  money  men- 
tioned  in   sections  3  and  5  of   the  said 
clause  11  of  tho  declaration  be  referred 
f')r  the  settfement  of  the  special  referee 
hereinafter    mentioned ;    that   the   value 
of  the  sub-lease,   if  any,  held  by  the  de- 
fendants' Johannesburg    business    before 
the  31st  December,  1903.  from  the  Dela- 
goa Bay  Agency  Company,  Limited,  Iw 
brought  into  account;   that  the  value  of 
the   New   Brighton  property  and   of   the 
Douglas  Colliery  be  a.«certained  in  each 
case  by  an  arbitrator  to  be  agreed  upon 
by  the  parties ;   that  the  said  several  ac- 
counts, when  rendered,  shall  Iw  referred 
to  a  s|5ecial    referee,  who  shall  try   and 
d<*termine    all    questions  arising  thereon 
under  section  21,  Act  29,  1896 :  that  fail- 
ing   an   agreement  by  the   parties  upon 
the  said  arbitrators  and  tho  said  special 
referee  within    one  month,    any    of  the 
parties  to  those  suits  shall  be   at  liberty 
to  move  the  Court  for  the  appointment 
of    such    arbitrators     and     such     special 
referee,   or  either  of  them,  or  for  such 
other  order  to   ascertain    the  values    of 
any  of  the  said  properties,   as  the  Court 
shall     determine:      that     the      accounts 
rendered     by     defendants     be    accepted 
as     the     accounts       to      be       debated ; 
by  con.^ent  of  parties,     Mr.  E.  R.  Syfret 
b-"^    appointed    special  referee;    costs    of 
action  to  be  paid  by  defendants;    as  to 
costs   of  commission,   no  order,    wasted 


150 


"CAPE  TIMES"  LAW  REPORTS. 


costfl;  all  ooBts  of  reference  to  be  dealt 
with  by  special  referee;  Mr.  Bracht  to 
be  allowed  witnefis's  expenses. 

[Plaintiffs*  Attorneys:  Van  Zyl  and 
Buissinn^ ;  Defendants'  Attorneys : 
Reid  and   Nephew.] 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 


GENERAL  MOTIONS. 


Ex  parte  JACOBS. 


f       1905. 
(Feb.  22nd. 


Mr.  Struben  said  that  this  matter  had 
previously  been  before  the  Hon.  Sir 
John  Buchanan,  and  it  was  ordered 
to  stand  over  for  a  further  affidavit  as 
to  the  disposal  of  certain  land  in  the 
estate  of  the  petitioner's  wife.  An 
affidavit  was  read  from  the  auctioneer, 
which  set  out  that  the  sale  was  well 
advertised,  and  the  price,  £1  38.  6d.  per 
morgen,  ne  thought,  wsa  a  very  fair 
one.  Petitioner  purchased  the  pro- 
perty aa  executor  dative  in  the  joint 
estate  of  his  late  wife  and  himself,  and 
he  asked  for  an  order  authorising  trans- 
fer of  the  landed  property  to  himself  in 
his   individual  capacity. 

Order  as  prayed. 


Ex    parte     THE    GRAND     JUNCTION 
RAILWAY,    LTD. 

Mr.  Scarlc,  K.C.,  moved  for  the  con- 
firmation of  the  liquidator's  report, 
and  for  the  fixing  of  a  period  within 
which  all  claims  should  bo  iilcd. 

Report  confirmed,  and  all  other  claims 
to  bo  filed  within  two  months  from  the 
present  date. 


CELLIERB  V.  HEINTJES. 

Mr.  J.  E.  R.  do  Villicrs  moved  to 
make  absolute  a  rule  n^t  ceiling  on  the 
respondent  to  show  cause  why  he  should 
not  be  interdict.ed  from  wjmoving  cer- 
tain goods  until  the  applicant  was  paid 
for  rent  in  arrear. 

Rule  made  absolute. 


KINO  V.  JOOSTE. 

Mr.  P.  Jones  moved  for  an  order  at- 
taching certain  ground,  to  found  juris- 
diction, pending  an  action  for  the  re- 
covery of  £33  12s.  lOd.,  for  goods  aold 
and  delivered.  The  defendant  was  the 
owner  of  two  blocks  at  East  London, 
and  he  had  left  for  Potchefstroom  with- 
out paying  his  debts.  The  lots  were 
valued  at  £2,000. 


[Hopley,  J. :  I  suppose  one  block 
would  be  sufficient  for  £33  12s.  lOd.?] 

Yes,  my  lord,  we  will  take  block  20. 

[Hopley,  J. :  Isn't  it  usual  to  sue  by 
edict  in  a  case  of  this  sort?] 

Yes,  my  lord.  I  was  going  to  aak  for 
that. 

Hopley,  J.,  said  there  were  sufficient 
facts  set  forth  on  which  the  Court 
would  grant  leave  to  sue  by  edict,  and 
granted  an  order  that  lot  20  be  at- 
tached. Leave  granted  to  sue  the  re- 
spondent by  edictal  citation,  and  notice 
to  be  served  personally,  returnable  15th 
April. 


Ex  parte  M006. 

Mr.  W.  P.  Buchanan  moved  for  an 
order  authorising  the  Registrar  of  Deeds 
to  amend  a  certain  plan  and  pass  trans- 
fer of  a  road  as  land  to  one  Arans,  who 
had  purchased  the  ground  from  the  peti- 
tioner. A  orivate  road  was  shown  on 
the  sub-divided  plan,  and  to  meet  the 
requirements  ol  the  Registrar,  Arans 
and  the  petitioner  had  agreed  to  waive 
their  right  to  that  road. 

A  rule  was  granted  calling  on  any 
person  concerned  to  show  cause  by 
the  13th  March  why  the  Registrar  of 
Deeds  should  not  be  authorised  to  pass 
transfer  of  the  land  shown  in  the  gen- 
eral plan  as  a  road  to  the  said  Arans,  as 
land  free  of  any  burden  or  servitude  as 
a  road,  one  publication  in  the  "  Capo 
Times "  and  the  "  South  African 
News." 


Ex  parte  THE  exegutob  of  the 

ESTATE  BANKS. 

Mr.  P.  Jones  moved  for  an  order  can- 
celling a  certain  bond  for  £1,100  on 
the  estate?  of  the  late  James  Banka  and 
Clara  Banks.  The  petitioner  sued  in 
his  capacity  aa  executor  dative  in  the 
estate  of  tlie  late  James  Banks.  The 
late  James  Banks  and  his  predeceased 
spouse  made  a  joint  will,  by  which  the 
estate  was  loft  to  the  two  male  heirs. 
During  his  lifetime  James  Baaika  passed 
a  mortgage  bond  on  the  estate  for 
£1,100,  and  afterwards  ho  surrendered 
his  estate,  but  there  was  no  mention 
of  the  bond  at  the  meeting  of  creditors. 
The  bond  was  to  be  repaid  in  1869, 
aiMl  it  was  after  that  Banks  went  in- 
solvent, and  the  bond  appeared  to  have 
been  paid  at  some  time  or  other. 

[Hopley,  J. :  There  seems  to  have 
been  nothing  heard  of  this  bond  since 
1869.  birt  don't  you  think  there  should 
be  publication?] 

Mr.  Jones:  I  think  so,  my  lord. 

Hopley,  J.,  granted  a  rule  calling 
on  ail  persons  by  the  15th  April  to 
show  cause  why  the  Registrar  ox  Deedf 
should  not  be  authorised  to  cancel  the 
said  bond,  one  publication  in  the 
"  Graham's  Town  Journal "  and  one  in 
the    "  Penny  Mail." 


CAPE  TIMES"   LAW  REPORTS. 


161 


Kx    partf    TUB    TRUSTEE    IN    THE 
ESTATE  MCCABE. 

IXr.  dose  movod  for  an  order  €*x- 
pun^ing  a  certain  claim  in  the  insol- 
vent ^  estate  of  James  McCabe,  of 
Queen's  Town,  in  which  the  petitioner 
was  sole  trustee.  The  insolvent  put  in 
a  claim  by  hia  son  for  £98  10s.  4d., 
and  on  examination  of  the  books,  it  was 
found  that  the  claim  had  been  entered 
U;)  at  a  Bubecquent  date.  The  insol- 
vent was  called  on  to  give  an  expl ana- 
lly »n,  but  failed  to  do  so.  There  was  a 
dividend  out  of  the  claim  for  £65,  and 
petitioner  prayed  that  the  amount 
should  be  devoted  to :  (a)  payment  of 
r<.»-t5  of  this  petition;  (b)  payment  of 
.ill  other  costs  incurred  in  connection 
with  the  matter;  and  (c)  a  division 
anKMi""  the  creditors  pro  rata.  Tlie 
trustee  had  repeatedly  made  efforts  to 
find   the   insolvent,  but  failed   to  do  so. 

A  rule  niH  was  granted  calling  on 
James  William  McCabe  to  show  cause 
by  the  15th  April  why  a  certain  proof 
of  debt  filed  by  him  in  the  estate  of  the 
iieolvent  should  not  be  expunged,  and 
<m  due  proof  that  it  is  impossible  to 
KTvc  personally,  one  publication  in  a 
Queen  s  Town  paper. 


/>  parte    THE   EXECUTOR    IN    THE 
ESTATE  HOBTEBT. 

Mr.  J.  E.  R.  de  Villiers  moved  for  a 
rule  niH  for  the  cancellation  of  a  cer- 
tain bond  on  the  estate  of  the  late 
Hercules  Mostert.  in  which  the  peti- 
tioner was  executor  dative.  The  de- 
classed purchased  certain  land  in  the 
(^apo  Division  in  1862,  and  passed  a 
lH)nd  for  £300  on  the  property.  The 
f'eceased  and  the  bond  holder  died 
shortly  afterwards,  and  there  was  no 
trace  of  any  interest  having  been  paid, 
and  the  deed  of  trarisfer  o<^)uId  not  be 
found.  By  the  will  of  the  deceased  his 
sister  was  appointed  as  solo  heir,  and 
frhe  had  signified  her  intention  of  sell- 
ing the  lots,  but  the  bond  would  have 
to  be  cancelled  before  the  sale  could  go 
through. 

A  rule  Tiwf  granted,  calling  on  any 
j>r»rsr»ns  concernetl  to  show  cause  bv  the 
15th  April  why  the  bond  should  not  be 
eancolled,  one  {publication  in  **  0ns 
I^nd,*'  **  South  African  News,"  and  the 
"  Capo  Times." 


Kr  parte  MACCALLL'M. 

Mr.  P.  Jones  moved  on  Ix'half  of  the 
p<»titioner.  Wm.  Alexander  Macculluni, 
f>en..  who  was  the  father  and  natural 
guardian  of  Wm.  Alexander  Maccalluin, 
iun..  a  minor  son  of  ten  years  of  age. 
for  leave  to  dispose  of  certain  property 
in  Alice,  which  he  had  donated  to  his 
son.  The  property  consisted  of  five 
erven   of   ground      at   Alice,   with     all 


buildiugs   and  erections  thereon,  and  it 
was  bequeathed  subject  to   the     condi- 
tion that  the  petitioner    should     have  a 
usufruct    curing    his    lifetime.       On  the 
property    there    were    certain     licensed 
premises,   known   as  the  Royal      Hotal, 
and   the  petitioner,       holding      adverse 
views  to  the  liquor   trade,    had      f.reat 
objections  to     derive  any  profits     trom 
the  sale  of  liquor.       The  premises  were 
at  present  let  at  the  monthly  rent      of 
£25.        The    petitioner    had  made      re- 
located   efforts  to  obtain  a    higher  rent 
without    success.        A    sworn    apprai^ier 
hacf  valued  the  hotel  property  at  £2,270. 
Petitioner  prayed  for  an  order  authori* 
ing  him  to  dispose  of  the  property  and 
reinvest  the  money  in  good  and    sound 
security       or  on  nrst  mortgage.        The 
father  of  the  petitioner  made     an      affi- 
davit giving  his  approval,  but  the  Regis- 
trar of    Deeds  would  not  allow    transfer, 
as  the  interests  of  a  minor  were     eon- 
eerned.       The  Master  reported  that,   as 
the  donor  had  signified  nis  consent     to 
the  sale,   he   saw  no  objection   to      the 
application   being  granted. 

[Hopley,  J. :  T^iere  is  £300  a  year 
coming  from  this  property.  How  are 
vou  going  to  get  £300  a  year  out  of 
£2,270?] 

Mr.  Jones :  I  don't  know,  my  lord. 
It  may  be  that  they  are  not  prepared 
to  accept  that  price. 

[Hopley,  J. :  Hero  we  have  a  minor 
interested  in  property  bringing  in 
£300  a  year,  and  which  will  always 
bring  in  that  income.  You  want  to 
sell  that  for  something  else,  because  the 
father  seems  adverse  to  that  class  of 
property  ?] 

Mr.  Jones:  If  the  £2.270  were  put 
out  on  bond,  there  would  not  be  rates 
and  taxes  to  pay. 

[Hopley,  J. :  They  don't  say  they 
are  payinpf  rates  and  taxes  now.  Not- 
withstanding their  conscientious 
scruples.  I  think  the  hotel  property  the 
more  valuable.  I 

Mr.  Jones :  If  there  is  to  be  any  re- 
duction in  the  income  from  any  other 
pnjperty,  the  petitioner  would  bo  the 
sufferer  during  his  lifetime. 

[Hopley,  J. :  He  would  have  the 
consolation  of  a  good  conscience.  When 
the  son  comes -of  age,  he  may  probably 
have  very  different  views  of  the  liquor 
tnade.] 

Mr.  Jones :  But  the  father  now  has 
the  opportunity  of  shaping  his  mind. 

[Hopley.  u.  :  I  think  you  might 
ascertain  what  they  could  get  for  this 
property.  They  say  vaguely  there  is  a 
gfK>d  purchaser.  I  do  not  say  that  the 
applicant  is  a  fanatic,  but  he  holds  very 
strong  views.  I  think,  in  the  interests 
of  the  minor,  the  Court  should  see  that 
he  gets  a  fair  price.  You  can  get  a 
supplementary  affidavit,  and  set  forth 
what  vou  can  get  for  it.  Why  should 
the  minor  part  with  this  good  property? 
The  old  grandfather  apparently  had  no 
scruples.] 


l52 


"CAPE  TIMES"  LAW  REPORTS. 


Mr.  Jones:  Your  lordship  would  i.ot 
leare  that  matter  to  the  Master? 

Hoploy,  J. :  You  m^y  mention  thae 
matter  again.  Let  them  put  forth  the 
supplementary  affidavit  to  say  what  tha 
ready  purchaser  will  give  for  the  prr- 
perty,  as  I  shall  be^lad  to  know  that 
before  I  give  a  decision  in  a  matter  of 
this  sort. 


VAN  DRIEL  y.  YENTEB  AND  NIEBER6. 

Mr.  D.  Buchanan  was  for  the  appli- 
cant, and  Mr.  Close  for  the  respondent. 
Mr.  Buchanan  said  that  the  matter  was 
standing  over  from  November  2  last 
year,  when  a  rule  nisi  was  granted,  call. 
ing  on  the  respondents  to  show  cause  by 
the  14th  November  why  the  plaintiff 
should  not  be  allowed  to  sue  in  forma 
patrperit  for  certain  sums  of  money  for 
extra  work  done  and  material  supplied 
and  damages.  On  the  14th  November, 
tlie  return  day,  counsel  was  present  in 
Court  to  oppose  this  application,  which 
had  been  standing  over  ever  since.  Now 
counsel  moved  that  the  rule  be  made 
absolute. 

Mr.  Close  put  in  an  affidavit  by  the 
respondents  setting  forth  that  the  appli- 
cant was  engaged  to  construct  a  briage 
at  Hope  Town.  The  claim  put  forward 
was  frivolous  and  vexatious,  as  they  were 
in  possession  of  a  document  of  acquit- 
tance. 

Hqpley,  J.  said  he  did  not  tiiink 
that  the  applioant  could  be  allowed  to 
sue  in  forma  pauperis  on  such  scanty 
information. 

Mr.  Buchanan:  Would  your  lordship 
allow  the  matter  to  stand  over  for  further 
information? 

Hoploy,  J. :  Tlic  matter  may  be 
mentioned  again  on  satisfactory  infor- 
mation l)ein^  forthcoming  by  tiie  11th 
May,  affidavits  of  such  information  to  be 
supplied  to  the  other  side  by  May  9. 


Ex  parte  KING  BROS. 

This  was  an  application  to  have  a  rule 
made  absolute  declaring  the  petitioners 
entitled  to  certain  lots  of  ground  at  Dur- 
banvillc,  which  tliey  and  their  predooes- 
som  in  title  had  held  in  uninterrupted 
possession  for  upwards  of  thirty   years. 

This  was  the  return  day  of 
a  rule  niai  calling  on  all  persons 
concerned  to  show  cause  why  these  lots 
should  not  l>e  transferred  to  the  appli- 
cants. The  petitioners  were  the  re- 
gistered owners  of  the  farm  Johanne«^ 
fciitein,  of  162  morgeii,  which  they  ac- 
(luired  from  a  Mrs.  Lawrenocdon,  who, 
in  turn,  acquired  it  from  the  insolvent 
estate  of  one  Rowan.  For  upwards  of 
thirty  years  no  claim  had  been  put  in, 
and  the  petitioners  and  their  predeces- 
sors in  title  had  used  it  without  hin- 
drance from  anyone,  and  paid  the  rates. 
The  petition  was  supported  by  the  evi- 


dence of  witnesses,  who  had  lived  at 
Durbanville  for  a  considerable  number  of 
years.  The  municipaJ  valuation  of  the 
farm  Johannesfontein  included  the  plots 
in  ouestion. 

Tne  affidavit  of  Rowan,  one  of  the 
previous  owners  of  the  farm,  set  out  that 
he  was  awflj«  at  the  time  that  the  lots, 
although  he  used  them,  did  not  belong 
to  him.  He  aeeentained  this  when  he 
aittempted  to  have  an  amended  title 
of  the  rfiarm. 

The  affidavvt  of  ths  oxecurtor  dative 
in  the  Estate  Mj<burg,  set  out  that  he 
believed  the  lots  marked  blue  belonged 
to  M\'^urg,  who  tweaty-five  years  ago 
left  tni*  colony,  and  wenit  inf>ane.  A 
curator  was  not  ajppointed  to  look  after 
his  affadns. 

Mr.  Soaric,  K.C,  was  for  the  appH- 
cants,  Mr.  M.  de  Villiors  was  for  the 
Ea^^te  Waasefall,  and  Mr.  J.  E.  R.  do 
Villieris  waisi  for  the  estate  of  Meld  van 
der   Spuy   Mybur^h. 

Hopley.  J.  said,  as  regards  the  Es- 
tate Mynurg,  the  rule  must  be  discharg- 
ed with  coiits.  With  regard  to  the  other 
land,  the  rule  will  be  made  absolute,  but 
as  regards  the  claims  by  the  Estate  Was- 
sefall,  the  rub  will  be  discharged,  the 
costs  to  abide  the  action  to  be  brought 
by  the  applicants.  If  they  do  not  bnuj? 
their  action  before  next  term,  then  they 
will  have  to  pay  the  costs  of  this  appli- 
cation. 


REX   V.  JAN  THOMAS. 

Mr.  Nightingale,  moved,  as  a  matter 
of  urgency,  and  convenience,  to  have 
ihxe,  niatter  tried  at  the  Beaufort  West 
Circuit  (Tourt. 

Granted. 


SUPREME  COURT 


SECOND    DIVISION. 


[  Before  the  Hon.  Mr.  Justice  M aa&dorp.] 


ADMIBMONB. 


(        1905. 
if  Feb.  23rd, 

Mr.  Upington  moved  for  the  admis- 
sion of  Ernest  Frederick  Watermeyer 
as  an   advocate. 

Application  granted  and  oath  ad- 
ministered. 

Mr.  W.  P.  Buchanan  moved  for  the 
admission  of  Roderick  N.  R.  Buchanan 
as  an  attorney  and  notary. 

Application  granted  and  oaths  ad- 
ministered. 


"CAPE  TIMES"   LAW  REPORTS. 


m 


PROVISIONAL  ROLL. 

ALLEK,  SHAW  AKD  OTHERS  V.   COCHRANE 
AND   FITT. 

Mr.  Sutton  moved    for   the   final   ad- 
judication of  the   defendants'    estate  as 

iniolvent 
Granted. 


8CH0LTZ  V.  VEN'TER. 

Mr.  Swift  moved  for  the  final  adjudi- 

fation  of  the  defendant's  e^tate  as  insoJ- 
vent 

Granted. 


B  UWRFXCK  AND  CO.,  LTD.,   V.  GIBSON. 

.  Mr.  Russell  moved    for   the   final   ad- 
judication of  the  defendant's   estate  as 

msolTent, 
Granted. 


STAFFORD  AKD  CO.   V.    DAVI.S. 

Mr.  Gut«che  moved  for  the  final  adiu- 
awation  of  the  defendant's  estate  as  in- 

wivent. 

Granted. 


PKIEDLANDER  AND  DO  TOIT  V.  GLASGOW. 

w.  Greer  moved  for  provisional  sen- 
»^r  J^^  *  mortgage  bond  for  £100, 
wuh  6  per  cent,  interest  from  July, 
J**'  »nd  that  the  property  specially  hy- 
Pwhecated  he  declared   executable. 

granted. 


GOVEY  AND  CO.  V.  LEVENSON. 

Mr-  M.  Bisset  moved  for  provisional 
^nlcr^  for  £142  Is.  3d.,  with  interest 
Chan  ?    '''^^^ary,  1906,  on  a  bill  of  ex- 

Granted. 


GBREFF  AND  WALTEB  V.   DU   PLESSI8. 

tiff/  ^'  I^iichanan,  for  the  plain- 
^  moved  for  provisional  sentence  for 

oprta':        ^^'^^  P**<^   ^^  account,   on  a 
yp  promissory  note. 

d<.U  .  '°*?  put  in  the  affidavit  of  the 
«i^"daj,t  ,n  which  he  denied  that  he 
'urn  K  '^"^  to  the  plaintiffs  in  that 
iiA  L  •  °"  *  temporary  renewal  note 
^,,**' indebted  to  the  plaintiflfs  to  the 
inJ..«  *^  lOs.  as  a  surety  to  a  pro- 
^gory  note. 

L./n'\'^P'  *^«  *^<i  the  documents  put 
JJJ^'e  the  Court  by  the  plaintiff  were 
»ion  i^^^^^^r  satisfactory,  and  provi- 
^p  flentencc  would    be 'refused    with 


DUNN  AND  CO.  V.  TAYLOR  AND  STERNER. 

Mr.  Russell  moved  for  the  final  adju- 
dication of  the  partnenhip  and  private 
estates    of    the   defendants. 

Granted. 


HAYWARD  V.  BROWNE. 

Mr.  Close  moved  for  a  decree  of  civil 
imprisonment  against  the  defendant  on 
an  unsatisfied  judgment  for  £65  9s.  8d., 
with  costs. 

The  defendant  anpeared  and  said  he 
was.  unable  to  pay.  He  had  no  means 
until  his  estate  was  wound  up.  and  then 
he  would  meet  the  account.  The  estate, 
he  thought,  would  realise  at  least 
£2.000,  but  he  was  unable  to  raise  any 
money  at  present. 

Order  granted,  execution  suspended 
until  this  day  fortnight. 


DK  WET  V.  KALTWA88ER. 

Dr.  Greer  moved  for  provisional  sen- 
tence for  £300  on  three  mortgage  bonds, 
with  interest  and  costs,  and  that  the 
property  specially  hypothecated  be  de- 
clared executable. 

Granted. 


ESTATE  FOSTER  V.  SOLOMON. 

Mr.  Sutton  moved  for  provisional  son- 
tonoe  for  £800  on  a  mortgage  bond,  with 
interest,  loss  £12  10s.  and  £12  4.s.  paid 
on  account,  and  that  the  property  spe- 
cially hypothecated  bo  declared  execu- 
able. 

Granted. 


MACLEOD  V.  WERTH. 

Mr.  W.  P.  Buchanan  moved  for  judg- 
ment for  £50  on  a  mortgage  bond,  with 
interest,  and  that  the  property  specially 
hypothecated    bo   declared  executable. 

Granted. 


TUENBULL  AND  BIGQOTT  V.  MULLER. 

Mr.  Sutton  moved  for  a  provisional 
order  of  sequestration  granted  in  this 
matter  to  be  discharged. 

Granted. 


PIIILPOT  V.  HOLZRICHTER. 

Mr.  \V.  P.  Buchanan  moved  for  a  de- 
cree of  civil  imprisonment  af^ainst  the 
defendant  on  an  unsatisfied  ludgme^nt. 
The  defendant  was  previously  before  the 
Court,  and  counsel  now  put  in  an  affi- 
davit of  the  applicant  that  the  defend- 
ant was  employe<l  at  tlie  Thatched 
Tavern  at  a  salary  of  £1  15s.  a  week 
and  his  food.  Since  then  the  defend- 
ant had  gone  through  the  form  of  mar- 


L 


154 


(( 


CAPE  TIMES"   LAW  REPORTS. 


riage  with  the  applicant's  wife,  wlio  was 
divorced  on  account  of  the  def<;ndant, 
who  was  co-defendant,  and  against 
whom   £200  dama4je.s   was  grantcKl. 

The  defendant  went  into  the  lx)x,  and 
swore  that  he  liad  no  means  excepting 
£1  15s.  a  we<»k,  which  ho  received  from 
"  Y«  Olde  Thatclied  Tavern  "    as  a   bil- 


liard marker.  He 
there,  and  paid  15.s. 
iisgs. 

Examined  by  Mr. 
had  been   sick  for 


received    hiis    food 
a  week  for  his  lodg- 


Huchanan :  His  wife 
the  pa«t  six  we<>ki). 
The  16s.  included  rent  for  his  wife,  lie- 
fore  the  ca.so  came  on  he  had  a  g(X)d 
deal  of  money,  which  he  8[)ent  freely. 
He  thought  his  wife  would  l>e  ill  again, 
although  she  was  at  work  that  day.  Hi^ 
employer  was  good  enough  to  advance 
him  money  when  his  wife  was  sick.  If 
he  could  possibly  do  it,  ho  would  make 
l>oth  ends  meet,  and  keep  his  wife  on 
25s.    a   week. 

Order  granted,  and  execution  sus- 
pended so  long  as  the  defendant  pays  £1 
a  month,  fircst  payment  on  the  1st  March. 


ILLIQUID  ROLL. 


rUlZE  V.  ARKND. 


r        UMV, 
>Feb.    23rd. 

Mr.  P.  Jones  moved  for  judgment 
under  Rule  329d.  for  an  order  oi  transfer 
which  had  now  l)een  parsed,  and  coun- 
sel asked  for  costs.  . 

Granted. 


WIENER  AND  CO.,   LTD.   V.   FRIEDMAN. 

Mr.  Sutton  moved  for  judgment  under 
Rule  329d,  for  goods  sold  and  delivered, 
with  costs. 

Granted. 


E&TATE  MARTI  EN SSKN  V.  WlilTMOUE, 

Mr.  Sutton  moved  for  judgment, 
under  Rule  319,  the  defendant  Tiaving 
l)een  l)arrcd  from  pleading,  for  £40  for 
rent,  with   intei*est  and  co&ts. 

Granted. 


PRICE     V.    FARMERS     CO-OPERATIVE 
COMPANY. 

Mr.  Van  Zyl  moved,  under  Rule  329d. 
for  judgment  for  £150,  balance  of  ac- 
count for  goods  .sold  and  delivered,  with 
interest  and  costs. 

(J  ranted. 


PRICE   V.   DOWELL. 

Mr.  Burton  moved  for  judgment  on  a 
proniis:<ory  note  for  £62  17s.  5d.  for 
board  and  lodging  fur  the  defendant  and 
hi.>  friends. 

Mr.  Close,  for  the  defendant,  put  in 
an  affidavit  in  which  the  defendant  ad* 
niitted  his  signature,  but  denied  that 
tliif*  amount  was  owing  to  the  plaintiff. 
The  promissory  note  was  for  board  and 
lodging  for  himself  and  friends.  There 
after  the  plaintiff  unlawfully  compelled 
them  to  leave  the  hotel,  and  detained 
deponent's   personal  g(K>ds. 

Air.  Burton  put  in  a  further  affidavit 
bv  the  plaintiff,  in  which  .''he  denied  that 
.sh.»  ordered  the  defendant  to  leave  the 
hotel.  Ho  and  his  friends  left  volun- 
tarily on  the  16th  January.  ^he  was 
detaining  the  goods  on  an 
with  the  defendant. 

Muasdorp,  J.,  granted 
.sMitcnce  for  the  amount  claimed,  less 
£9  in  consideration  of  board  and 
lodging  the  defendant  did  not  obtain, 
^\ith  costs. 


agreement 
provisional 


COLONIAL  GOVERNMENT   V.   ROWLING. 

Mr.  P.  Jonc«  moved  for  judgment, 
under  Rule  329d,  for  £15,  rent  due  on 
certain  refreshment  rooms,  with  costs 
of  suit. 

Granted. 


RIPLEY  V.  GIBBONS. 

Mr.  P.  Jones  moved  f<»r  judgment, 
under  Rule  329d,  for  £240,  l)eing  the 
purchase  price  of  15  mules  bought  by 
the  defendant. 

Granted. 


STARK   AND  CKIBBIN   V.   BLACK. 

Mr.  Swift  moved  for  judgment,  rmdcr 
Rule  329d,  for  £76  lOs.  2d.  and  £92  16s. 
for  work  done,  and  £15  23.  6d  for 
extras,  with  interest  and  costs. 

Granted. 


GENERAL  MOTIONS. 


ESTATE 6NYMANV.  BECKETT,  (t,,   i^'**!?.;  a 

<  reb.   2.^rd. 

Mr.  Close,  for  the  defendant,  moved, 
in  terms  of  a  con>ent  paper,  for  re- 
moval of  the  trial  to  the  Oiidtshoorn  Cir- 
cuit Court. 

Granted. 


WILSON  AND  CATHCART   V.   YOUNG. 

Mr.  P.  Jone.s  asked  leave  t4>  mention 
thi'  matter,  which  was  down  for  March 
2,  and  moved  to  have  it  removed  from 
th?  roll  to  the  reference  of  an  architect 
on  a  consHMit  paper.  The  parties  could 
not  a^ree  on  an  architect,  and  counsel 
ftugg<>*ted  Mr.  John  Parker. 

Order  grantid  in  terms  of  consent, 
Mr.  Parker  appointed  architect,  the 
question  of  costs  to  stand  over. 


"CAPE  TIMES**  LAW  REPORTS. 


155 


A>  parte  3IILLRK. 

Mr.  P.  Jones  moved  to  have  a  rulo 
»M  granted  under  tlie  Derelict  Lands 
Act.  made  abBolute. 

Rule  made  absolute. 


Kx  parte  DOYLB. 

Mr.  Swift  moved  to  have  a  rule 
niM  granted  under  the  Derelict  Laiid^i 
Act.  made  absolute. 

Rule  made  absolute. 


Ex  parte  SNODGRAKS. 

Mr.  P.  Jones  moved  to  make  absolute 
a  role  nin  granted  under  the  Derelict 
Lands  Act. 

Rule  made  absolute. 


PICKAKD  V.  THK  .s.  A.  TBADE  C       IUO.k 
PROTRCTION  SOCIETY  AN D^  Feb.    2Hrd. 
AXOTHER.  (      „       -ioth. 

Libel— Privilege — Legal  malice — 
Damages. 

Tlif  defemlunts  had^  iriUumt 
riprensi  ^ntiJire^  faiitely  atattd 
'« (t  impcr  p ri  ra  ft ///  ci rcii hi t intj 
mmttj  Home  3^000  subvert bera^ 
thai  (I  judyment  had  bfen 
fibtained  agiunat  the  plaintiff 
in  a  certa  in  R.  M.  Cnu  rt.  Th  eij 
pletided  the  abnence  of  undict 
and  prifilege. 

Held,  that  at*  they  had  been 
gniUff  of  legal  malict  and  an 
tht  vtat^niettt  in  their  paper 
'ran  not  privilctjetl  ;  the  plain- 
tiff v  us  entitled  to  recorer  sub- 
ttantiid  damages^  even  though 
hf  had  not  pntved  npecial 
il^mage. 


Tliis  was  an  action  brought  to  recover    i 
£1.000  damages  for  defamation  of  char-    < 
acter  bv  reason  of  a  statement  made  by 
the  defendants   in   the    **  South   African 
Mercaiitilo  Gazette." 

The    declaration     set     out     that  the    j 
plaintiff     was      a  contractor  and  hotel-    | 
KPeper    of  Oudtshoorn,   tho  first-named    i 
defendant  a  duly  incorporated  company,    | 
wtl  the  second  defendants  printers,  car- 
r.vui(r  on  businesH  in  Cape  Town.     On  the    ' 
»th  March.   1904,    the   *' South  African 
Mercantile  Gazette "  wrongfully,  falsely, 
and    maliciously     caused  to  be  written, 
■nd  the  second    defendants    wrongfully    i 
pnnted.  that  a  provisional  judgment  had     ' 
wen  obtained   against    the    plaintiff    by 
one   F.  W.  Nuns  for  £41  17s.,  whereas 
ue  matter  was  referred  to  arbitration.       1 


Tho  plea  set  out  that  the  paper  was 
not  sold  or  available  to  the  public.  It 
was  only  given  to  business  men  on  oon- 
dition  that  the  information  would  be 
regarded  as  private  and  confident iaL 

The  words  were  printed  by  error  and 
published  without  malice.  An  apology 
was  published  in  the  next  issue.  If  the 
plaintiff  was  pressed  for  his  accounts  it 
\ias  not  through  the  paragraph  in  ques> 
tion. 

Mr.  McGregor  (with  him  Mr.  Bisset) 
was  for  the  plaintiff,  and  Mr.  Searler 
K.C.  (with  him  Mr.  W.  P.  Buchanan) 
was  for  tho  defendants. 

Wm.  Henry  Pickard,  proprietor  of  the 
Imperial  Hotel  at  Oudtshoorn,  stated 
that  in  March.  1904.  he  had  a  contract 
for  the  building  of  the  Standard  Bank, 
and  since  then  he  had  taken  contracts. 
In  a  paper  it  appeared  that  in  March, 
1904,  no  was  sued  for  certain  money, 
but  that  was  not  so,  as  the  case  was  re- 
ferreii  to  arbitration.  The  other  side 
had  to  pay  cohIa,  witness  onlv  paying 
£^  out  of  a  claim  for  £41.  Inhere  was 
no  tender,  as  witness  did  not  get  a  spe- 
cified account.  The  plaintiff  was  asked 
for  a  specified  account,  but  he  did  not 
supply  it.  He  heard  first  of  all  from 
the  Standard  Bank  that  there  was  a 
provisional  judgment  against  him.  The 
uuinuger  of  the  bank  had  a  letter  which 
came  from  the  general  manager's  office. 
At  that  time  witness  had  an  overdraft  at 
tho  bank  Witness  then  got  a  copy  of 
the  paiier,  and  ho  was  positive  that  the 
statement  did  him  an  immense  amount 
of  harm,  as  several  people  wanted  to  got 
paid  at  once.  Witness  instanced  a 
couple  of  firms  that  changed  their  stylo 
of  businesH.  Instead  of  thirty  or  sixty 
days  one  firm  drew  at  sight,  which  was 
not  in  accordance  with  the  usual  cus- 
tom of  dealing.  A  firm  at  Mossel  Buy 
absolutely  refused  to  assist  him  without 
the  cash. 

Cross-examined  by  Mr.  Searlc:  He 
might  have  had  financial  assistance  from 
his  son-in-law  in  May.  In  one  case  a 
firm  drew  on  him  because  his  account 
was  outstanding  for  some  months.  He 
had  no  particular  reason  of  noi  men- 
tioning in  his  affidavit  that  Parker, 
Wood  and  Co.  were  pressing  him.  At 
that  time  money  was  Tery  tij^ht,  the 
bank  being  anxious  to  get  in  their 
money.  Only  on  two  occasions,  once 
before  and  once  since  this  action,  had 
he  paid  on  a  legal  demand.  It  was  be- 
cause a  young  attorney  wished  to  make 
a  mark  for  himself  that  he  got  these  let- 
ters over  small  amounts.  During  the 
election  he  asked  Mr.  Vincent  to  give 
him  an  extension.  He  could  overdraw 
with  the  bank  to  the  extent  of  £13,000. 
He  took  the  manager  of  the  bank  to  the 
attorney  and  explained  the  matter. 

By  the  Court:  If  they  had  offered 
him  £200  and  a|X)Iogi.sed  in  the  other 
papers  he  would  have  been  satisfied. 

Douglas  Alexander  Smith,  of  the 
Standard  Bank,  stated  that  his  attentioA 


i 


150 


<i 


CAPE  TIMES"   LAW  REPORTS. 


was  drawn  to  the  paragraph  in  question, 
bnd  in  conse<|UGnc^  of  that  the  bank 
viote  to  the  Oudt>hoorn  branch. 

Mr.  Searle:  I  suppose  you  saw  the 
apology  also? — Yes. 

Mr.  ISlcGrogor  closed  his  case. 

Thos.  J.  Kannenieyer  stated  that  his 
firm  at  Oudtshooni  was  the  agent  for 
the  defendants.  The  first  he  heard 
about  the  matter  was  when  the  defen- 
(lant  iiociety  asked  him  if  the  report  was 
•  correct,  and  witness  then  found  out  the 
rristake,  and  explained  to  the  plaintiff 
iow  it  occurred.  He  thought  the  mat- 
tei  had  dropped  until  he  had  heen  the 
case  set  down.  People  were  iH^ing  sued 
n^ht  and  left  at  tiiat  time,  and  the  banks 
were  refusing  to  discount  even  to  wealthy 
n:en.  ^  The  plaintiff  was*  somewhat  dila 
tory  in  paying  his  accounts. 

UroEs-exumined  by  Mr.  McGregor: 
He  was  not  the  local  attorney  in  the  case. 

Alfred  Pocock,  articled  as  a  clerk 
fo  the  last  witneif^,  stated  that  lie  was 
in  the  habit  of  copying  judgments  for 
this  paper.  On  that  particular  day, 
?4r.  Archibald  copied  the  judgment,  and 
witness  sent  it  off  to  the  society \s 
cffice. 

Wm.  Archibald  stated  that  his  prin- 
cipal was  the  agent  Utr  a  gazette 
aimilar  to  that  of  the  defendants.  He 
was  doing  both  on  the  week  in  que«tion, 
pnd  witnei^s  made  a  mistake  in  the  case 
of  the  plaintiff.  Unfortunately  follow- 
i/.g  down  the  list  of  provisional  ease«i 
he  put  "ditto"  to  the  case  of  Pickard. 

Re-examined  by  Mr.  McCJregor:  The 
name  day  that  he  copied  the  judgment 
he  found  out  that  he  made  a  mistake, 
I  ut  ho  did  not  mention  it  to  Pocock. 

Alexander  Gill,  one  of  the  managers 
of  Prince,  Vintcen<t  and  Co.,  and  a  sub- 
s(rilx?r  to  the  **  Gawtte,"  stated  that 
the  plaintiff  was  a  rather  difficult  man  to 
get  money  out  of;  he  paid  only  at  the 
li.st  moment.  As  a  rule  the  plaintiff 
paid  after  due  date. 

Re-examined  by  Mr  McGregor:  He 
would  Ik?  quite  satisfied  if  all  business 
men  paid  on  a  little  persuasion. 

Leopold  K rammer,  a  partner  in  the 
firm  of  the  Castle  Wine  and  Brandy  Co., 
stated  that  at  the  beginning  of  last  year 
the  plaintiff  owned  certain  moneys,  and 
t'ley  received  £40  in  May. 

James  Bolan,  manager  of  the  defen- 
dant sr>ciety,  stated  that  in  all  the 
copies  of  the  publication  there  were  the 
w^ords  •'  private  and  confidential,"  and  it 
circulated  among  subscribers  only.  The 
*'  Gazette "  was  not  sold  at  any  pub- 
lic place. 

Cross-examined  by  Mr.  McGregor:  All 
the  .«^ubscribers  signed  was  an  ordin- 
ary form  of  order. 

Mr.  Searle  closed  his  ca*e. 

Mr.  McGregor  ffor  the  plaintiff) 
argued  that  although  a  full  ancf  correct 
report  of  judicial  proceedings  is  privi- 
leged, no  privilege  can  be  claimed  for 
a  report  which  is  admittedly  false.     The 


rules  of  law  as  to  privilege  are  not  to 
be  extended— />aiM  v.  Skrpstane  (55 
L.J.,  P.C.,  51).  In  this  case  it  could  not 
be  contended  that  information  (even  if 
it  had  been  true)  given  to  3,(XX)  sub- 
scribers to  a  paper  very  few  o'  whom 
had  ever  heard  of  the  plaintiff,  >\a8 
neces.sary  in  the  public  interest.  His 
financial  position  only  concerned  his 
actual  creditors.  It  is  a  serious  matter 
to  impute  an  unsound  financial  position 
to  a  business  man.  Such  an  imputation 
must  affect  his  credit  and  thus  injure 
him  in  his  business.  Odgers.  p.  29  and 
87,  Sheyhciird  v.  WhiWikrr  (10  C.P.,  502). 
Whether  the  defendants  believed  the 
truth  of  what  they  stated  and  acted 
without  express  malice  or  not  are  con- 
siderations which  have  no  bearing  on 
the  issue  Capital  nvtl  Counties  Bank  v. 
Hrnty  (7  An.,  787).  The  fact  that  the 
Bank  calleci  upon  plaintiff  for  an  ex- 
planation shows  that  the  false  state- 
ment made  by  the  defendants  was  cal- 
culated to  injure  him.  Ho  offered  to 
accept  a  reasonable  apology,  but  that 
tendered  by  the  defendants  was  wholly 
it:adec(uate.  I  submit  he  is  entitled  to 
substantial  damages. 

Mr.  Searle,  for  the  defendants,  cited 
a  case  against  **  Stubbs's  Gazette"  in 
the  English  Courts,  where  the  "Gazette" 
had  taken  a  minute  from  the  judgment 
which  was  incorrect,  and  it  was  held 
that  the  communication  was  privileged. 
These  societies,  counsel  contended,  exist- 
erl  to  prevent  fraud,  by  protecting  mer- 
chants, and  to  show  how  far  the  Court 
would  go  in  8Ui)porting  privilege,  there 
was  the  case  of  Thompson  v.  Dashwoody 
in  which  a  defamatory  communication 
was  put  in  a  wrong  envelojie,  and  yet  it 
was  held  to  be  privileged,  although  that 
judgment  was  afterwards  disapproved 
of.  Another  case  was  that  of  Waller  v. 
Loch  (51  Q.B.,  274).  \vhere  the  plaintiff 
sued  a  charity  organisation  society  for 
having  told  another  person  that  she  was 
a  person  unworthy  of  receiving  charity. 
The  plaintiff  was  getting  up  subscrip- 
tions, and  someone  who  knew  her  gave 
the  unfavourable  report,  and  it  was 
held  to  bo  absolut<»ly  privileged  as  long 
as  malice  was  disproved,  quite  inde- 
pendently of  whether  the  statement  was 
true  or  not.  Counsel  proceeded  to  quote 
several  instances  of  the  meaning  of  pri- 
vileged communications,  and  contended 
that  express  malice  must  be  proved. 
The  facts  were  that  this  society  existed 
for  the  purpose  of  protecting  merchants 
and  others 

[Maasdorp,  J. :  The  question  is 
whether  they  exist  for  that  purpose  or 
some  other — to  draw  the  five  guineas 
from  any  number  of  subscribers  they 
can  get.] 

Mr.  Searle :  It  is  always  taken  that 
these  societies  are  for  the  protection  of 
the  mercantile  community. 

[Maasdorp,  J. :  The  object  of  the  com- 
pany is  to  make  money,  I  suppose?     I 


"CAPB  TIMES"  LAW  REPORTS. 


157 


n't  lay  there  is   any   harm  in  that,  if 
they  do  their  duty  .3 

Mr.  Searie  contondecL    that  in  all  the 
cases  he  referred    to,    it    was   recogrnised 
tht  these  black   lists   ^vere  of  great  as- 
sistance to  the    mercantile    community, 
who  could  hardly    get   on   without  such 
societies.    It  might    have   the  object  of 
making  money,  but   it   had  a  public  in- 
Wreit  as  well   to    perform.      A  copy  of 
the  paper  containing  this  incorrect  state- 
ment, which  was  made  by  the  error  of  a 
clerk  in  the  office,   who  copied  the   list 
wrongly,  was  shown  to  the  plaintiff,  and 
when  he  complained,  the  matter  was  set 
right  at  once.       The  bank  did  not  alter 
its  course  of  business   with  this  man  in 
any  way,  and  on  the  point  of  damages, 
counsel  ^trongly  urged  it  was  not  a  case 
for  any  damages  whatever.    The  plaintiff 
did  not   call    either    of    the    gentlemen 
whom  he  alleged  had  altered  their  course 
of  d«aling  with  him  on  account  of  any- 
thing appearing  in  this  periodical.     The 
mere  fact  that  these   two  persons  were 
subscribers  proved  nothing,  lus  there  was 
a  witness  for  the  defendants,  who  said  he 
was  a  BubBcriber,  and  never  saw  the  state- 
ment at  all.     It  was  almost  idle  to  dis- 
cuss special  damages   in   a  case  of  this 
sort    The  plaintiff  got  an  apology,  and 
a  promise  that  this  matter  would  be  set 
nght  as  soon  as  possible.  It  was  a  pure 
technicality  on    which    the      defencknts 
were   brought    into   court,    and    as    the 
error  was  rectified  before  any  harm  was 
done,  counsel   could    not    help    thinking 
that  it  was  a  trumpery  and  unsubstantial 
case. 

Mr.  McGregor  having  been  heard  on 
the  question  of  special  damages, 

Maasdorp,  J. :  The  plaintiff  seeks  to 
roct)ver  damages  from  the  defendants  by 
reason  of  a  false  and  injurious 
statement  contained  in  their  paper, 
injuriously  reflecting  upon  the  credit 
of  the  plaintiff  as  a  trader.  The 
defence  set  up  in  the  case  is  that 
the  communication  is  privileged.  Now, 
>t  seenw  to  me  that  the  statement  con- 
tained in  the  paper  was  false,  and  in- 
jurious to  the  credit  of  the  plaintiff,  and 
consequently  the  action  for  defamation 
can  be  based  upon  such  a  false  and  in- 
jurious statement.  It  was  also  proved 
•atisfactorily  that  the  defendants,  in 
making  the  publication,  were  not  actu- 
ated by  any  express  malice  or  ill  will. 
If  the  defendants  succeed  in  showing 
that  the  communication  was  privileged, 
thev  would  be  entitled  to  judgment,  not- 
withstanding the  fact  that  it  was  incor- 
fert.  On  the  other  hand,  if  the  defend- 
•nte  fail  to  prove  this  privilege,  then 
upon  the  findmg  that  the  statement  was 
false  and  injurious,  legal  malice  will  be 
raferred.  Toe  main  question  to  be  de- 
eded in  this  case  is  whether  this  was  a 
privileged  communication.  It  seems 
that  the  defendants  published  this  paper, 
the  "South  African  Mercantile  Ga- 
felte,'*  for  which  they  collect  a     good 


deal  of  information  in  respect  of  the 
financial  position  and  standmg  of  trad- 
ers in  this  colony.  They  issue  this  paper 
to  their  subscribers,  and  the  object  in 
collecting  and  publishing  this  information 
is  to  keep  the  subscribers,  who  may 
be  taken  also  generally  as  traders,  in- 
formed of  the  position  of  traders  and 
other  dealers  throughout  the  country,  to 
enable  them  to  protect  themselves 
against  dealing  with  persons  of  doubtful 
credit.  It  seems  that  in  this  case  there 
are  3,000  subscribers,  and  each  subscriber 
pavs  £5  5e.  per  annum.  Tlie  defendants 
published  in  their  journal  a  statement 
which  in  fact  amounts  to  an  allegation 
that,  on  the  day  mentioned,  a  provisional 
judgment  was  given  at  Oudtshoorn  in 
the  Magistrate's  Court.  The  most  the 
defendants'  statement  would  convey  is 
the  meaning  suggested  in  the  innuendo, 
that  a  trial  took  place  upon  an  action  for 
debt  in  the  Magistrate's  Court,  where 
the  defendant  was  in  default,  and  judg- 
ment went  against  him  by  default.  As 
a  matter  of  fact,  it  appears  that  the 
plaintiff  had  been  sued  in  the  Magis- 
trate's Court,  but  upon  exception  taken 
by  him  that  the  matter  was  beyond  the 
jurisdiction  of  the  Magistrate,  the  cane 
was  dismissed.  That  is  a  very  different 
state  of  affairs  from  an  allegation  that 
he  had  judgment  against  him.  Upon 
this  publication  being  brought  to  the 
notice  of  the  plaintiff,  in  April,  1904, 
by  the  manager  of  the  Stancfard  Bank 
at  Oudtshoorn,  he  communicated  with 
the  defendants,  and  complained  of  the 
injury  done  him.  Upon  this  communi- 
cation in  the  newspaper  being  brought 
to  the  notice  of  the  plaintiff  by  the  bank, 
he  communicated  with  the  defendants, 
demanding  reparation  for  damages.  An 
answer  was  written  on  the  28th  April, 
stating  that  the  defendants  admitted 
their  mistake,  and  in  the  next  is.sue  of 
their  paper,  which  would  not  be  issued 
until  7th  May,  they  intended  inserting 
an  apology.  In  the  issue  of  the  7th 
May,  in  a  foot  note  appearing  under  the 
column  where  judgments  are  entered, 
an  explanation  is  given,  and  it  amounts 
to  this:  **  \Ce  regret  through  an  error  in 
our  issue  of  26th  March,  under  the  head- 
ing :  Civil  judgments,  Oudtshoorn,  in 
the  matter  of  F.  W.  Xunns  v.  J'ickard, 
for  £41  7s.,  on  account  of  work 
done,  it  appeared  that  judgment  provi- 
sionally had  boon  given  for  the  plaintiff, 
with  costs.  This  should  have  been  an 
exception  taken  to  the  summons,  on  the 
ground  that  the  amount  involved  was 
beyond  the  jurisdiction  of  the  Magistrate. 
The  exception  was  sustained,  with  costs. 
We  make  this  insertion,  and  tender  our 
apologies  for  having  occasioned  Mr. 
Pickard  any  inconvenience  and  annoy- 
ance." The  plaintiff  was  not  satisfied 
with  the  explanation  and  apology,  and 
continued  to  press  the  defendants  for 
further  amends;  and  In  a  letter  of  the 
4th   July,    from   the   defendants   to   the 


\ 


158 


"CAPE  TIMES"   LAW  REPORTS. 


plaintiff,  they  conclude  as  follows:  "We 
are  of  opinion  that  the  attached  slip  does 
away  with  your  claim,  as  being  wilful 
and  malicious."  Thereupon  proceedings 
were  taken  by  the  plaintiff.  Now  the 
question  to  h!e  decided  is  whether  the 
communication  made  by  the  defendants 
to  the  subscribers  of  this  paper  is  privi- 
leged, and  whether  that  privilege  conse- 
quently grants  them  immunity  from 
damages,  even  thou|j:h  it  should  appear 
that  the  communication  was  false. 
The  general  principles  upon  which  these 
cases  are  generally  decided  will  be  found 
in  Odgers,  on  page  248 :  "  Impartial  and 
accurate  report  in  any  proceedings  in  a 
law  court  is  privileged,  unless  the  Court 
itself  has  prohibited  the  publication,  or 
the  subject  matter  of  the  trial  be  unfit 
for  publication."  Further  on,  he  says 
that  "a  report  must  beanfmpartial  and 
accurate  one,  of  what  really  occurred  at 
the  trial."  Then  the  further  principle 
is  of  most  importance  in  this  case,  and 
upon  it  this  case  hinges.  It  is  stated  in 
the  following  words:  "Where  the  de- 
fendant has  an  interest  in  the  subject 
matter  of  communication,  and  the  person 
to  whom  the  communication  is  made  has 
a  corresponding  interest  in  such  case, 
then  communication  honestly  made  is 
privileged  by  reason  of  the  occasion." 
Now  the  first  privilege  spoken  of,  that 
of  communicatmg  the  pnxvodings  in  a 
court  of  law,  is  such  a.s  the  defendant 
cannot  now  avail  himself,  because  he  did 
not  give  an  accurate  account  of  the  trial, 
lie  gave  an  incorrect  and  false  ac- 
count. Therefore  the  privilege  of  com- 
municating to  the  public  proceedings 
of  the  court  of  law  will  not  be  available 
to  him.  Then  the  question  arises,  in 
how  far  the  case  comes  under  the  other 
principles  laid  down,  where  there  is  a 
company  interested,  one  party  may  com- 
municate information  to  another,  and  be 
exempt  from  liability,  so  long  as  the 
communication  is  honestly  made.  A 
number  of  cases  have  l)een  cited  bearing 
more  or  less  directly  or  indirectly  on 
this  case,  but  it  was  necehsary.  in  order 
to  find  a  case  almost  exactly  in  point, 
to  go  to  the  Supreme  CouVt  of  New 
Jersey;  and  Mr.  Searle  has  criticised  the 
judgment  given  in  that  case,  in  which 
there  wa.«5  a  difference  of  opinion.  Even 
in  appealing  to  that  case,  he  does  not 
appeal  to  the  judgment  of  the  Court, 
but  rather  to  the  opinion  expressed  by 
the  minority  of  the  dissenting  judges. 
In  this  ca."^»  also,  a  false  communication 
had  found  its  way  into  the  paper  of  a 
society  similar  to  that  of  the  defendants, 
and  The  judgment  of  the  Court  was  to 
the  following  effect :  **  The  publication 
by  a  mercantile  agency  of  a  notification 
on  a  sheet  which  is  sent  to  its  subscrib- 
ers.^ irrespective  of  their  intere.st  in  the 
plaintiff's  standing,  is  not  a  privileged 
communication,  and  the  proprietors  are 
UMo  for  a  false  report  of  the  plaintifTs 
"♦jial   condition   in    such   publication. 


I  The  dissenting  minority  of  judges  held 
there  was  a  sufficient  interest  in  the  sub- 
scribers to  this  paper  to  know  the  posi- 
tion of  every  trader  throughout  the 
whole  of  the  United  States  of  America, 
and  consequently  such  coinmunication 
would  be  a  privileged  communication.  But 
that  view  was  not  adopted  in  the  judg- 
ment of  the  Court.  Even  a  judgment  of 
one  of  the  dissenting  judges  is  in  an  im- 
|)ortant  respect  qualified  ut  the  conclu- 
sion of  the  judgment,  in  which  nppears 
these  words:  "In  my  opinion,  the  defen- 
dants, in  furnishing  infoimarioi  to  the 
subscribers  under  the  conditions  im- 
po.sed,       are      not      subject      to      the 

1»resumption  that  they  were  moved 
ly  malice,  and  I  therefore  vot« 
to  reverse  the  judgment  below."  The 
ccnditions  imposed  were  these:  the 
paper  was  issued  to  subscribers  only  on 
entering  into  an  agreement  that  they 
would  not  divulge  the  contents  of  it. 
The  dissenting  judges,  in  holding  there 
was  a  common  interest,  thought  it  neces- 
sary to  guard  their  opinion  by  saying  it 
was  eateguarded  "by  a  prom&e  not  to  di- 
vulge. The  judgment  of  that  case,  if  it 
was^  adopte'd  by  this  Court,  would  be 
available  to  the  plaintiff.  In  this  case 
also  a  communication  was  made  to 
3.000  subscribers,  and  it  is  quite  clear 
that  the  vast  majority  of  these  subscrib- 
ers had  no  special  interest  in  the  finan- 
cial standing  of  the  plaintiff.  There- 
fore, the  dissenting  judges  held  that 
every  trader  is  interested  in  the 
position  of  every  other  trader  in 
the  whole  of  the  United  States 
of  America,  but  if  that  wide  and  liberal 
construction  is  allowed  in  a  matter  of 
privilege,  I  don't  see  why  it  should  not 
be  extended  by  holding  that  every  mem- 
ber of  the  community  may  at  some  time 
or  other  come  into  contact  with  some 
trader,  and  be  entitled  to  be  informed  of 
hid  position,  and  every  newspaper  would 
Ki  entitled  to  inform  every  member  of 
the  community  how  every  trader  in  the 
community  stood.  That  contention  can- 
not be  upheld  by  the  cases  which 
have  been  cited  by  Mr.  Searle.  which  go 
no  way  near  extending  the  privilege,  so 
far  as  it  would  have  to  be  extended  in 
order  to  protect  the  defendants  in  this 
case.  I  hold,  therefore,  that  this  is  not 
a  privileged  communication,  and  in  the 
absence  of  privilege  it  appears  that  a 
false  and  injurious  statement  was  made 
by  the  defendants  of  the  plaintiff,  and 
,  consequently  the  Court  must  infer  what 
is  ternied  legal  malice  in  this  case.  For 
this  injury,  the  plaintiff  would  be  entitled 
to  some  conipensation.  Now  it  seems  to 
!  me  that  this  is  b^  no  means  a  yery 
serious  ca«e,  and  it  is  a  pity  it  should 
have  gone  as  far  as  it  has  done:  but  I 
can  only  attribute  that  to  the  position 
■  taken  up  by  the  defendants.  They  had 
1  done  the  plaintiff  an  injury,  and  the 
I  plaintiff  demanded  reparation,  as  is  ge- 
I    nerally    done,  in  a  heavy  sum  of  damages. 


"CAPE  TIMES*'  LAW  REPORTS. 


159 


Thtt  is  very  often  met  by  the  defendant 
takhig  all  means  possible  in   his  power, 
to     <t>rre»ct      the        wrong      impression 
wnveyed    by    a     faJse     publicaition,    by 
pring  a  correction  as  much  publicity  as 
pottibie.     However,    they  in   an  obscure 
footnote  put  an  explanation  in  their  own 
pAper   that    cannot    be   considered   suffi- 
«pnt  by  the  plaintiff.     When  the  plain- 
tiff insiitted  upon  further  amends,  he  re- 
eeiyed   a    letter    from    the    printers,    in 
which  they  stated :    **  We  are  of  opinion 
that  the  attached   slip  does   away   with 
jour  client's   claim,  as  being  wilful  and 
malicious."        They  simply  take  up  the 
Hral  po&itioo,  aa  they  did  not  act  mali- 
eioualy,  the  plaintiff  could  have  no  case 
trt  proceed    upon.      The   position      they 
ou?ht    to    have    taken    up  was  to  mako 
amends  for  the  injury  as  far  as  possible, 
jnd  they   made  ^  no   attempt   to   do  so. 
Then,  again,  their  plea  is  one  which  cer- 
tainly cannot  commend  itself  as  being  a 
position    taken    up    by   the  party    injur- 
|np  another    towards   an    injured    party. 
They  admit  in    their  plea  the  incorrect- 
ness of  the  statement  in  their  paper,  but 
tMv  proceed  in  so  many  words  to  say  we 
were,  after  all,    not  so  very  far  out  in 
whit  wo  said,    because,   as  a  matter  of 
fact,  the  debt  was  due,  and  in  arbitration 
u  award  was  made  against  the  plaintiff. 
Here  again  I  think  they  went  much  too 
far.     They    did    not    state    the    circum- 
'^taoces  under  which  this  took  place,  and 
consecjuently    the   plaintiff   was      bound, 
jonsidering  the  attitude  taken  by  the  de- 
fendant,  to    come   into   court   and    seek 
to  establis..    his      position    by    a    public 
imioiry  and  also  recover  damages  if  he 
was  entitled  to  such.     These  proceedings 
tfiuid  have    been   prevented   by  the   de- 
fendants taking   up  a  more  considerate 
position.     Notwithstanding  that,  I  don't 
think  any    great   iniury   has   been   done 
to  the  plaintiff  in  this  case.     It  is  quite 
elear  that   his  credit  as  a  trader  was  in- 
juriously   affected    to    some    extent    and 
the   mere    fact    that    the    bank    sent    to 
him  to  make  an  explanation  of  his  posi- 
tion was  sufficient  to  show  that  a  finan- 
«al  institution  would  have  altered  their 
course  o4  dealings   unless   a  satisfactory 
'Explanation      was      made.       I     am      of 
opinion,      upon    the    authoritifH    which 
Have  been   cited,   that    when    a  trader's 
nedit  is  affected  by  a  false  statement  of 
the  nature  in  question  that  he  is  entitled 
for  the  injury  to  general  damages,  and 
<*ven  if  there  is   no  proof  of  anyspeoial 
damages     the  {plaintiff    is    ent/i^led      to 
fome  damages..    He  has  proved  he  was 
JBJunod,    but  ai^  to  the  exact  amoumt  tJiere 
ii  no  evidence  before  the  Court.     Under 
all  the  circumstances,  if  the  Court  awards 
him  a  sum  of  £20  damages  in  this  case 
»t  will    meet    the    justice    of    the    ease. 
Judgment  will  be   given   for  the  plain- 
tiff  for  £20  with  costs,  with  the  plaintiff 
allowed  costs  as  a  necessary  witness. 

rFlaintiff*s  A»*omeys:  Tredgold. 
IMntyre.  and  Bisset;  Defendants' 
\Uovioy:  W.  K.   Baxter.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Chief  Justice  (the  Rii?ht 
Jlon.  Sir  J.  H.  1>K  ViLLlKRS,  P.C., 
K.C.M.G..  LL.l)).] 


GENERAL  MOTIONS. 

/>    jut  it  t'    THE    KSTATB      f         liMl.5. 

HOUGAARD.  (Feb.   24th. 

Mr.  Van  Zyl  moved  on  behalf  of  the 
petitioners,  two  of  the  largest  oreilitora 
n\  the  insolvent  estate,  for  the  appoint- 
ment <tf  a  pso visional  truittee  in  order 
to  protect  the  goodwill  of  the  business, 
which  consisted  of  a  butcher's  shop  at 
Aliwal  North. 

Order  granted,  Mr.  Nicholas  Smuts, 
of  Aliwal  North,  appointed  as  provi- 
sional tru.stoe. 


£x  pnrff  HEPWoRTH,  1,TD. 

Mr.  Van  Zyl  moved,  on  behalf  of  the 
petitioning  creditors,  for  the  appoint- 
ment of  a  provisidnal  trustee,  in  order 
to  carry  on  the  business  at  the  Adder- 
ley-street  tea-rooms.  Counsel  sug- 
gested the  appointment  of  Mr.  A.  T. 
ilennessy. 

Order  granted,  Mr.  A.  T.  Ilennessy 
appointed  as  provisional  trustee. 


TRIAL  CAUSE. 


OIBBS  V.  THE  B.S.A.   ASPHALT  COMPANY. 

Sale  and  purchase. 

This  was  an  action  to  recover  £130, 
being  the  purchase  price  of  a  stone- 
breaking  machine,  £18  tho  price  of  a 
screen,  and  tho  price  of  two  plates  sold 
to    the    defendaiits. 

The  declaration  set  out  that  the  plain- 
tiff was  a  mechanical  engineer  ana  pro- 
prietor of  tho  Brittania  Works  at  Ob- 
servatory. On  the  14th  July  tho 
plaintiff  .supplied  to  the  defendants  one 
12  by  7  Simplex  Stone  Breaking 
machine  for  £130.  the  terms  being  £65 
paid  at  the  end  of  July,  and  the  balance 
at  the  end  of  August.  About  the  2l8t 
and  28th  July  plaintiff  sold  to  the  de- 
fendants two  plates,  and  it  was  agreed 
that  the  plamtiff  should  order  a  re- 
volving screen  from  England,  and  sup- 
ply it  to  the  defendants  for  £18.  In 
the  month  of  September  plaintiff  ten- 
dered the  screen,  out  tho  defendants  re- 
fused to  accept  it.  Plaintiff  claimed 
£130  for  the  machine,  £18  for  the 
screen  and  tho  price  of  tho  plates. 


160 


it 


CAPE  TIMES*'   LAW  REPORTS. 


The  plea  admitted  the  formal  alle- 
gations, but  set  out  that  the  machine 
was  incapable  of  crushing  four  tons  of 
stones  i>er  hour  as  contracted  for,  and 
the  plaintiff  had  failed  to  remedy  the 
defective  part«.  The  defendant  com- 
pany tendered  the  machine  and,  by 
reason  of  hindrance  to  them  in  con- 
tracts, they  claimed  in  reconvention 
damages  for  £150. 

Mr.  McGregor  (with  him  Mr.  P. 
Jones),  was  for  the  plaintiff,  and  Mr. 
Ujiin-gion  (with  him  Mr.  Van  Zyl),  was 
f<jr  the  dofendante. 

John  Henry  Gibbs,  plaintiff,  stated 
that  he  was  a  mechanical  enginet-r  of 
twenty-eight  years'  standing,  and  pro- 
prietor of  the  Brittania  Works  at  Ob 
^ervatory.  The  defendajits  saw  the 
machine  on  the  13th  July.  It  was  a 
Standard  machine,  and  described  in  the 
catalogue  book  as  made  by  Mason  and 
Go.,  of  Leicester.  The  defc  imams 
agreed  to  take  the  machine,  and  asked 
plaintiff  to  put  his  terms  in  writing. 
The  machine  was  not  in  a  defective 
condition  on  the  day  it  was  delivered. 
Several  times  afterwards  he  saw 
the  machine,  and  it  worked  all 
right.  The  defendants  were  in- 
structed to  erect  the  machine 
on  a  good  level  foundation,  and  the 
bearings  must  be  kept  tight.  On  the 
16th  July  he  saw  the  defendants'  en- 
gine driver  actually  loosening  the 
bearings,  and  witness  warned  him  that 
ho  would  ruin  the  machine.  Subse- 
tiueutly  he  found  the  machine  out  of 
tlie  level,  and  a  small  crack  in  the 
boss  of  the  flywheel,  which  had  been 
caused  by  one  of  the  keva  being  screw- 
ed too  tight.  On  the  4th  August  Mr. 
Allen,  who  bought  the  machine  on  be- 
half of  the  firm,  expressed  surprise  that 
witness  had  not  been  paid.  There  was 
no  complaint  made  to  him  about  the 
machine  up  to  the  time  he  received  the 
letter  of  demand.  The  machine  was 
not  equipped  for  granulating ;  witness 
could  not  say  whether  the  defendants 
granulated  or  not.  When  the  defen- 
dants instructed  him  to  cable  for  a 
screen  on  the  21st  July,  there  was  no 
complaint  whatever  about  the  machine. 
He  nad  disposed  of  similar  machines  to 
other  partio".  and  there  were  no  com- 
plaints. The  defects  would  be  caused 
ny  improper  handling. 

Ci OSS-examined  by  Mr.  Van  Zyl : 
Mr.  Allen  did  not  specify  any  capacity 
that  would  be  required  for  the  macnine ; 
he  saw  it  stated  m  the  catalogue  that  it 
would   crush   four   tons   an   hour. 

Mr.  Allen  said  the  machine  was  rather 
small,  but  the  witness  did  not  guaran- 
tee that  it  would  crush  four  tons  aii 
houi.  Witne«*8  saw  the  machine  started, 
but  ho  took  no  part  in  working  it.  A 
new  plate  wae*  sent  for  on  the  2l6t  July, 
but  any  machine  was  liable  to  brc><ak  a 
plate.  The  shaft  was  bent  through  the 
defendants  working  the  machine  with 
the  broken  plate.     If  the  machine  were 


put  in  proper  condition  it  would  do  the 
work   it   was   catalogued    fi/r. 

\\  m.  Hansen,  builder  and  contractor, 
said  he  had  a  smaller  size  of  the  same 
machine  supplied  by  the  plaintiff,  and 
it  always   worked   satiisfactorily. 

James  Gar\'ey,  mechanical  engineer, 
Woodstock,  saw  the  machine  working 
after  it  had  been  at  work  for  about  a 
week.  The  shaft  was  bent,  and  the 
crusher  consequently  could  not  turn  out 
S3  much  work  as  it  otherwise  would. 
The  bearings  were  moving,  whereas  they 
should  have  been  tight.  The  engine  wa« 
a  second-hand  one,  and  had  no  gover- 
nor. 

Alexander  Drassy,  contractor,  de- 
scribed the  working  of  the  machine  by 
thj  engine.  Tlie  engine  used  to  race, 
and  shook  the  machine  all  to  pieoea. 

Alex.  Grassick,  who  selected  the 
machine,  thought  it  was  in  perfect 
working  order  when  delivered.  There 
'Was  special  fitting  for  granulating  work. 
The  supply  of  coal  was  not  by  any  meana 
satisfactory  for  the  engine.  Now  and 
then  they^ot  a  bag  of  coal,  and  for  a 
fortnight    they    might   receive    none. 

Cross-examined  by  Mr.  Van  Zyl :  He 
was  formerly  sub-oontractor  to  the 
B.S.A.  Co.  He  was  not  dismissed  from 
the  defendant  company.  He  did  piece- 
work for  them  under  contract.  The 
City  Engineer  refused  to  pass  his  work, 
and  in  coiveciuence  of  that  witness  gave 
up  the  contract.  The  machine  wat 
liouorht  on  the  understanding  that  it 
would  do  something  like  what  was 
credited  to  it  in  the  catalogue.  The 
failure  of  the  machine  was  principaJly 
due  to  the  engine  and  the  unsatisfactory 
natvire  of  the  foundation.  Witness  did 
not  interfere  with  the  construction  tȣ 
the  foundation.  On  the  8th  August  he 
wrote  complaining  of  the  machine,  but 
he  mentioned  nothins:  about  the  engine 
or  the  foundation.  If  he  adjusted  the 
machine  to  crush  to  a  quarter  of  an 
inch  he  would  get  four  tons  an  hour  out 
of  it. 

Re-examined  by  Mr.  McGregor: 
W  hat  he  meant  by  saying  that  the 
CI  usher  wac>  inadcHiuate  was  that  it  was 
really  too  small  for  the  way  in  which 
he  was  instructed  to  carry  out  the  con- 
tittct. 

Mr.    McGregor   closed    his    case, 

Andrew  Allen,  managing  director  o\ 
th.)  B.S.A.  Co.,  stated  that  the  purchase 
was  made  on  the  12th  July,  and  the 
terms  fixed  up  afterwards.  The  plain- 
tiff guaranteed  that  the  machine  would 
crush  four  tons  an  hour,  and  to  convince 
the  defendant  he  produced  the  cata- 
1(  gue  and  letters  from  people  who  had 
experienee  of  the  same  class  of  maohine. 
Witness  had  no  special  knowledge  of 
the  machine.  The  plaintiff  waa  asked  to 
l>e  present  at  a  trial  test,  but  he  did 
not  seem  anxious  to  come.  The  same 
day  that  the  plate  broke  a  complaint 
was  made  to  the  plaintiff,  who  sent  a 
new   one   to  replace  the    damaged    one, 


'•CA."PE   TIMES"  LAW  REPORTS. 


161 


Tb?  plaintiff  pTomiaed.    to  put  the  shaft 
nsht.    Shortly    after    t\\€»  ptate    broke   a 
•oniplaii\t  was   made    to    liim  about  the 
fty  whe*»\.       It    wou\d    be    hard    to    say 
W^hetber    the    crack    waa    old   or  not,   as 
it  b^d  been  paint<?d  over.     When  the  fly 
vheci  was  out    of    order    it    was  a   dan- 
ft<»rniB  thing  to  work    the  machine,  and 
pWiutiff,  on  witnes!^'«   roqiiest,    promised 
to  fcnftply  a  now  wheel.      Witness  was  de- 
knniTve^    to     give    the     machine    cvei^ 
rhance,    Witne*»    was    still    prepared,    if 
tho   plaintiff    could    prove  that  the   ma- 
chine could    turn    cmt    anything    like  he 
•aid.  to  accept    it.     The  machine  was  no 
fof«d  to  thein     whatever.     As   a    matter 
<■{  fact,  they  had  to  hire  another  crusher 
to  rarrv  out    the    contract. 

Crosa^aoiined  by  Mr.  McGregor: 
II«»  did  not  think  tliat  it  was  a  singular 
fc incidence  that  his  first  complaint  in 
f.r.tin«  was  »ent  after  he  received  the 
A'ltvT  of  demand.  He  did  not  think  it 
TKHtrssarv  to  make  his  complaint<$  in 
writing/ as  be  trusted  Mr.  Gibbs.  Ho 
didn't  know  that  the  granulating  pro- 
res*  ctiuld  only  be  done  bv  special  equip- 
ment- The  plaintiff  told  him  that  he 
<ould  use  the  machine  for  granulating 
in  the  meantime  while  they  ordered  the 
granulating  jaws  from  England.  It  wa? 
Mr.  Gibbs  who  should  have  tested  the 
foundation.  When  witne«»  purchased 
the  machine  tlie  plaintiff  agreed  to  see 
the  machine  in  proper  working  order. 
Th«»  ftupply  of  coal,  as  far  as  he  was 
aware,  was  not  defective.  Tlie  crack  in 
The  flV  wheel  he  thought  was  due  to  a 
flaw  i"n  the  casting.  His  attention  was 
not  drawn  to  the  bearings  of  the  ma- 
chine being  too  loose.  „  „  ^        ^ 

The  Secretary  of  the  B.S.A  Co., 
Mr.  Daries,  ^stated  had  they  been  able 
to  have  a  suflicient  supply  of  stone  the 
f<»ntract  would  have  been  finished  be- 
fore the  wet  weather  set    in. 

Crossexamined  by  Mr.  McGregor: 
Witnes<5  never  told  Mr.  Giblis  that  he 
was  distinctly  having  the  plate  as  a 
gift,  but  he  understood  from  the  plain- 
tiff that  he  would  replace  the  plate. 
Witnesa  refused  to  pay  for  the  machine 
on  account  of  tlie  defects.  The  plaintiff 
merely  said  that  he  would  go  to  his  at- 
torney. 

Irvine  Thorpe,  in  the  employ  of  the 
defendant  company,  stated  that  he  had 
worked  with  stone  crushers  for  a  little 
time,  bnt  he  had  a  great  deal  of  ex- 
perience of  engine  work.  He  worked 
the  stone  crusher  with  an  engine  that 
was  in  practicaJly  good  condition.  The 
enarine  was  without  govemors,  but  that 
omission  would  not  create  any  great 
damage.  The  plaintiff  gave  full  instruc- 
tions as  to  the  erection  of  the  engine. 
Two  men  and  two  men  more  could  not 
move  the  machine,  and  the  bearings 
were  so  stiff  that  the  belt  was  thrown 
off  Witness  noticed  a  flaw  in  the  plate, 
which  was  not  exactly  broken  off,  but 
pTOtty  near.  The  plaintiff  said  he  would 
aend  a  new  shaft.    The  machine  could 

M 


not  give  a  good  ten  minutes*  run.  What 
sh^  turned  out  was  nothing  near  the 
four  tons  an  hour.  The  foundation  was 
quite  satisfactory;  the  plaintiff  never 
made  any  remark  about  it. 

Cross-examined  by  Mr.  McGregor; 
He  was  there  when  Garvey  inspected 
the  machine,  and  when  he  was  thort* 
the  bearings  were  slack.  The  plaintiff 
did  not  say  that  the  foundation  was 
to  be  kept  level  and  the  bearings  tight. 
Before  the  plaintiff  complained  witnerri 
had  to  work  on  an  unlevel  foundation 
and  slack  bearings.  A  couple  of  days 
after  the  plate  was  cracked  he  noticxul 
that  the  shaft  was   bent. 

Harry  \Vm.  Miller,  engineer,  who  in- 
spected the  machine,  gave  it  as  his  opin- 
ion that  the  machine  as  it  stood  could 
not  crush  four  tons  of  stone  in  an  hour. 
Governors  on  an  engine  were  an  ad- 
junct, but  not  c-^rentittl  where  there  was 
a  .<ikilled  driver.  The  machine  was  al- 
together too  small  to  crush  to  a  quarter 
of  an  inch. 

Cross-examined  by  Mr.  McGregor: 
If  the  machine  could  do  what  it  was 
catalogued  to  do  he  would  bo  surprised. 

By  the  Court :  It  was  not  supposed  to 
be  a  machine  that  chould  be  mathe- 
matically levelled  up.  He  did  not  think 
it  a  serious  thing  to  allow  the  engine  to 
run  without    governors. 

The  Superintendent  of  Works  at  the 
Newlands  Reservoir  said  he  had  about 
three  continuous  years'  experience  of 
stone  crushing,  and  that  the  machine  in 
(question  could  be  used  for  granulating. 
That  would  not  injure  the  machine. 
The  machine  he  did  not  consider  capa- 
ble of  putting  out  four  tons  an  hour. 

Cross-examined  by  Mr.  McGregor: 
He  had  no  experience  of  Ma.^on's  ma- 
chines. An  ordinary  intelligent  work- 
man should  be  able  to  work  the  machine. 
It  was  very  advisable  to  have  governors 
on  an  engine.  He  would  not  call  ifc 
(areloss  to   run  without   a    governor. 

Wm.  Arthur  Palli^on,  civil  engineer, 
stated  that  he  had  many  years'  experi- 
ence of  working  stone  crushers.  On 
.several  occasions  he  had  used  an  engine 
without  governors,  but  ho  preferred  to 
have  them  where  he  had  not  got  a  thor- 
oughly trustworthy  man.  The  machine 
in  question  had  been  superseded  by  sev- 
eral other  machines. 

By  the  Court:  The  work  of  the  ma- 
chine was  erratic,  but  he  could  not  sav 
when  he  saw  it  work  whether  the  shaft 
was  erratic  or  not. 

IMr.  Van  Zyl  closed  his  case,  and 
was  heard  in  argument  on  the  facts. 
Without  calling  on  Mr.  McGregor. 

De  Viilliers.  C.J.,  in  giving  judgment 
for  the  plaintiff,  with  costs,  said  ho  was 
satisfied  there  was  no  contract  on  the 
part  of  the  plaintiff  to  see  to  the  fixing 
of  the  machine  before  it  was  started, 
and  therefore  he  could  not  be  held  re- 
sponsible for  anv  defect  .  The  defen- 
dant  did  not,  after  a  reasonable  tirne, 
give  notice  of  the  defects  to  the  plain- 


162 


*'CAPE  TIMES*'   LAW  REPORTS. 


tiff,  and  the  defects  oould  be  fully  ex- 
plained by  the  manner  in  which  the 
macnine  was  handled  after  it  got  into 
the  posfieesion  of  the  defendant. 

[Plaintiff's  Attornoys:  C.  K.  P. 
Hughes;  Defendant's  Attornoys:  Van 
Zyi  and  J3uissinne.J 


SUPREME  COURT 


FIRST    DIVISION. 


[  Before  the  Hon.  Mr.  JuHtice  Ma  ahdorp.] 


GENERAL  MOTION. 


A>  parte    THE    TRUSTEE    IN  f       ,0.,- 
THK     INSOLVENT     ESTATE-?  „  ,1    9-Vk 
OF    DAVID  I8BAELS0N.  (i^CD.  ZoCH. 

Mr.  Searle,  K.C.,  moved  in  terms  of 
consent  for  leave  to  havo  the  case 
aj|[ain6t  Harris  and  Black  set  down  for 
trial  as  soon  as  possible  during  this 
torin,  as  large  expenses  were  accruing 
day  by  day. 

(!'a6e  set  down  provisionally  for  March 
6th ;    costs  to  bo  costs  in  the  cause. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hop  ley.] 


robertson  v 
hoi 


j^ holt  and  f  Feb'^^th. 
^^^-  (Mar.    2nd. 

Traveller — Contract  of  service— 
Travelling  expenses — Medi- 
cal attendance. 

This  was  an  action  brought  by  John 
Robertson,  oommeroial  traveller  ancl 
commission  a^nt,  of  Bloemfontein,  and 
late  of  Port  rAvtoh^h,  against  his  late 
employers,  Holt  and  Holt,  of  Port  Eliza- 
beth, to  recover  the  sum  of  £124  17s. 
7d.,  balance  of  travelling  expenses,  etc. 

Plaintiff,  in  his  declaration,  stated 
that  he  bad  been  employed  by  the  de- 
fendants as  a  traveller  under  an  agree- 
ment which  expired  in  April,  1904.  Ho 
prayed  for  judgment  (1)  lor  the  follow- 
ing^ sums  whrcn  he  oaid  were  due  and 
owing  to  him  by  the  defendants :  £52 
15s.  8d.,  bolanoe  of  unpaid  travelling 
oxpeoftes,  including-  a  sum  of  12s.  6d.  a 
day  incurred  by  tno  plaintiff  in  the  de- 


fendants' business  at  Bloemfontein;  £13 
4s.  hotel  expenses,  incurred  at  Heilbron ; 
£64  68.  8d.  commission  on  goods  sold ; 
£14  lis.  3d.,  salary  from  the  1st  to  the 
21st  April,  1904 ;  (2)  interest  a  tempore 
morac\  (3)  alterative  relief;  (4)  costs  of 
.suit. 

Defendants,  in  their  plea,  said  that 
from  the  sums  claimed  by  plaintiff  tliere 
should  be  deducted  sums  of  £96  12s.  6d. 
hotel  expenses  wrongfully  charged,  and 
£13  4s.  hotel  expenses  claimed  that 
would  not  be  paid,  and  other  sums 
which  extinguished  the  amount  claimed 
by  the  plaintiff.  They  prayed  that  the 
claim  nii^ht  be  dismissed  with  costs. 
For  a  claim  in  reconvention  the  de- 
fendants said  that  on  a  true  and  correct 
account  between  the  parties,  as  furnish- 
ed to  the  ulaintiff,  there  remained  a 
balance  in  tneir  favour  of  £52  138.  8d., 
for  which  sum  defendants  prayed 
judgment,   with  costs. 

Mr.  W.  Pooiter  Buchanan  was  for  the 
plaintiff ;  Mr.  Close  (with  him  Mr.  Pye- 
mont)  was  for  the  defendants. 

The  plaintiff  said  that  he  came  out 
about  four  years  a^o  upon  a  three  years' 
agreement  entered  into  with  the  defen- 
dants in  England.  His  salary  as 
stipulated  by  the  agrreement  was  £250 
a  year,  and  by  arrangement  on  his  ar- 
rival, he  was  also  paid  a  commission  of 
1  per  cent,  on  cigarettes,  and  2i  per 
cent,  on  soft  goock.  He  was  allowed 
travelling  expenses  except  when  in  Port 
Elizabeth.  The  defendants'  principal 
business  was  at  Port  Elizabeth,  they 
also  had  branches  at  Kimberley,  Johan- 
nesburg, Durban,  and  Cape  Town.  Ho 
was  six  months  in  the  office  and  he  then 
went  on  the  road.  While  in  Port  Eliza- 
beth he  had  £20  168.  8d.  a  month,  and 
he  was  allowed  £2  5s.  a  week  expenses, 
and  a  pony  and  trap.  He  was  in  Port 
Elizabeth  on  the  road  for  about  15 
months.  He  went  to  Bloemfontein  in 
Septem'bor,  1902.  No  que^rt^ion  was 
raised  as  to  a  variation  of  the  agree> 
ment  on  the  substitution  of  Bloemfon- 
tein for  Port  Elizabeth.  The  defen- 
dants only  once  furnished  him  with  & 
half-yearly  account  as  set  out  in  the 
agreement.  Before  he  left  for  Bloem- 
fontein his  wife  and  family  had  come 
out    to    this    country.        In    December, 

1902,  witness  came  down  to  Port  Eliza- 
beth and  asked  Mr.  Albert  Holt  if  he 
thought  it  advisal>le  that  he  should  take 
his  wife  and  family  to  Bloemfontein. 
Mr.  Holt  told  him  that  he  thoug-ht  it 
was  not  advisable  because  they  might 
wish  to  send  him  to  Duitian.     in  April, 

1903,  witness  saw  Mr.  David  Holt,  and 
asked  him  a  similar  question.  Mr. 
Holt  told  him  he  could  please  himself, 
and  that  he  (Mr.  Holt)  did  not  want  to 
be  troubled  with  such  matters.  He 
did  not  agree  to  forego  travelling  ex- 
penses while  he  was  at  Bloemfontein. 
Witness  treated  himself  as  a  traveller 
while  at  Bloemfontein,  and  charged  ex- 
penses as  such.      He  did  not  make  any 


•  « 


CA¥»"B    TIMES"  LAW  REPORTS. 


163 


I 


} 


«aii  agreement  witli  tlio  defendants 
i^h?^^  and  ia^\y  Tf«  Jd 
iia  a  month  rent  in  Bloenrfontem,  and 
f«\d  that  the  cost  of  4\YiTig  was  much 
iafbet  than  at  Port  JB^***^'  Z^^^^f. 
S^^wnber,  1902,  to  ^^-y*  J?7™m  the 
^rew  his  hotel  «JiP^^I^^|l^-?e8  at 
fcr^.     He  had  a  mwnber  of  «*P?3"®*  " 

1^.«„.fontem    g-^^^^-.^^S^  to'^^^'w   hk 
^^  fn^^d^d^tk^to   a  lump  s^m 
u»i  kUawed    it    to    run    <'°^,^"»^V''^fd 
^i2^  ^Sl   Sre    of"  b'^^i'c^t.'on 

ahter  date  he  wroto  to  the  defendants 

\^mi  Kroonatad,    saving   that  ^«     ^.*^ 

i^.,rt  ol  ca.*,  and  t-^t jinlees  he  receiv^ 

i=d  money  from  them   he  »h«"\^2*^*^  ^l 

d^w  on  his  hotel   account  of  128.  W.  a 

dty.     Witness  wa*    engaged   >«   tooking 

^^T  ihe  interests  of  his  firm,  «««  ^^^^J 

eml.toT»  in   the    estate     of     Abrahams 

awi  H^r,  which  was   eequestrated   m 

Ko^mfontein.  ,,         _. ,    -„i    ^r 

The   amount    eventually    P«"d    ^"^f/ 

the  esUte  was  l»s.  6d.   m  the  £.    Wit- 

^'!^  alTowed   £60  by  the  Mas^r  of 

ih^  High    Court..  Bl^^^-^o^^'^V  "  It 
muneraVion  for  hi«  ^ervices  in  the  mat- 
ter  during    a    period    of     two     month^ 
Defendants   not    only   .received    18s^  W. 
in  the  £   on  their  claims    but  «»«>  tlie 
£60  witness  had  been  allowed.       After 
he  had  levered  his  connection  with  the 
firm  he  received   from  them    a  demand 
for  £292,  to  be  reduced,  subject  to  their 
n4,uiiements    in    certain    respecfca  .being 
saTufied,  to  £19  odd.      An  item  m  dis- 
pute was  medical  charges  .m  connection 
with  an   accident  he  sustained  while  on 
the  firm's  business.      He  was  drivmg  "i 
the    firm's    cart    towards    Bloemfontein, 
and  in  crossing  the  Caledon  R»ver  the 
trao  swerved,   his  samples  were  thrown 
c^  ind^fwas  pitched  into  the  river. 
and  his  head  was  hurt. 

In  cross-examination,   witness  sa»d  ne 
did   not  acknowledge  any   responsibility 
for  the  bad  debU  and  he  claimed  to  be 
paid  commission  on   those  amounts  be- 
Suse  for  every  order  that  he  obtained 
he   had   to  make  inquines   ^  to   reter- 
ences    and  the  firm  exercised  their  own 
discretion  as  to  whether  they  execu^ 
the  orders.    He  was  not  allowed  to  d^ 
cide  which  orders  should     be     fulfil^ 
and   which    rejected.       In   several  cases 

the  firm   did    not  execute  ^o'^^®"*^^!; 
cause  they  did  not  think  the  customers 

"^'ex^iSSin^T^he  matter  of  reverse 
rommissions  that  the  defendants  now 
charged  against  him  wore  never  men- 
Jbnll  to^im  until  after  hfjiad  left 
their  service.  They  gave  him  a  very 
laTSactory  testimonial  when  he  ceased 
to  be  in  their  dmi^oy. 
Mr.  Duohanan  closed   his   ^««-  , 

David  Holt,  a  managing  director  ot 
hS?  and  Holt,  said  thathe  »aw  the 
ti^Sntiff  in  Port  Ehzabeth  in  April. 
lis?  when  the  latter  came  down  from 


Bloemfontein,  The  matter  of  Pl^ntiri 
family  living  in  Bloemfontein  was.men- 
tionea  to    him  by        ,pl»"»*f; 

Robertson       said       he       »ho.«ld       like 
to       be       permanetnly      stationed       m 
the   Orange   River   Colony     and  tha/t  it 
would    be    very    beneficial    to    him.    tie 
added  that  it  would  also  be  very  bene- 
ficial  to  the  firm,  because  it  would  save 
them  a  large  amount  of  «Pen"«"      *" 
regard    to    hotel   accommodation.    Atter 
further  conversation,  witness  agreed  that 
plaintiff's  family  should  reside  m  Bloem- 
Fontein,  and  during  the  time  they  were 
there  the  defendants     were  not  to  pay 
any  costs  in   regard   to   hotel   expenses 
Witness   had    pointed    out   to   hini   that 
it  was  very  much  better  for  the  firm  that 
their  travellers  should  live  at  the  base. 
He  did  not  think  he  should  have  con- 
sented to  the  proposal  had  it  not  been 
for  the   saving  that  would   have      been 
effected  to  the  firm.  , 

By  the  Court:  He  did  not  think  that 
he  had  misunderstood  plaintiff,  and 
That  he  consented  to  the  arrangement 
because  it  would  save  Robertson  s  ex- 
penses  in  the  hotel  in  the  evening.  New 
travellers,  it  was  recognised,  *»»««? 
spend  something  in  hotels,  even  in  Port 
Elizabeth,  because  of  the  business  that 
the  firm  did  with  hotol  keepers.  We 
^d  not  consider  that  there  was  a  great 
difference  in  the  cost  of  l^^n^  .^^^^^^'^ 
Pert  Elisabeth  and  Bloemfontein. 

Cro«-examined:        Mr        Roberteon  s 
wife  and  family  returned  to  Port  Eliza- 
beth   in    January,    1904,    and    the    firm 
t'hin   iuo^ed   hii;  hotel    expenses   from 
that  date  to  the  termination  of  the  agree 
ment.    Witness  was   not  in  P^rt  *.liza 
beth  at  the  time  plaintiff's  family     re 
turned     or  he  thought  he  should   have 
raLed'some   objection   to    the   payment 
of  these  expenses.    Witness  had  left  tor 
Johannesburg  m  the  interval  ,      , 

Svdney  James  Davidson  sta;ted  *"»*  ne 
J7  paLer  in  and  «*eoreUry  to  the 
defendant      company.       Mr.    R^^'tson 

came  out  here  in  ISOl.  ";«  In  Aw" 
fixed  here  at  Port  Elizabeth.  in  Apru, 
1903,  Mr.  Robertson  asked  to  be  fii^d 
permanently  at  B  oemf ontem  and  st^ 
is  an  inducement,  that  if  he  were  faxefl 
at  that  place,  he  would  set  up  his  pnvate 
etaWishment.  there,  and  thus  save  hotel 
a^Tv»naes  Witness  said  that  he,  nimseii, 
coSfd  Tot  decide     the  matter,  and  Mr 

David  Holt  being  at  the  o^f«.  tJ»^^f  *^' 
was  referred   to   him.    Witness  did  not 
Tttend  the  interview,  but  was  •mbeequent. 
Iv  told  bv  Mr.  Robertson  that  tiie  matter 
ifad  been  arranged.    Witness  had  never 
heard  of  any  arrangement  by  which  Lds. 
6d    per  diem  was  to  be  allowed  to  Mr. 
Itob^tson  as  expenses  f'  B^^^f^,"***": 
and  left  to  accumulate  at  6  P^'.^ent      It 
was  on  March  5  tl^t  witness  first  he^^^^^ 
of  the  £96.  suPTX)sed  to  be  165  days   ex- 
Lnses.    The  letter  of  February  22  con- 
tained  no  reference  to  the  .amount    Witj 
ness  had  thought    that  .this    letter    had 
been  lost,  but,  on  a  wire  being  sent  to 


164 


"CAPE  TIMES"   LAW  REPORTS. 


Port  Elizabeth,  it  had  been  discovered. 
It  contained  merely  a  request  that  plain* 
tiff's  commission  account  for  November, 
December,  and  January  should  be  for- 
warded to  his  wife.  As  this  was  not 
done,  witness  communicated  with  Robert- 
son to  the  effect  that  the  firm  had  re- 
fused to  settle  the  commission  until 
thoir  claim  for  a  portion  of  bad  debt«  in- 
curred had  been  allowed.  When  Robert- 
son went  outside  to  obtain  orders,  he 
was  informed  that  he  was  out  on  the 
same  basis  as  any  other  traveller,  and 
that  it  was  his  duty  to  ascertain  particu- 
lars as  to  each  customer's  financial  posi- 
tion. In  the  event  of  bad  debts  being 
incurred,  he  would  be  responsible  for  a 
portion  of  the  same. 

Hopley,  J.,  said  that  during  a  bad 
time  a  traveller  might  not  make  any- 
tl  ing  per  annum. 

Mr.  Close  said  this  was  not  so.  There 
had  been  an  agreed  salary  of  £250  per 
annum,  and  an  arrangement  by  which 
the  total  amount  of  salary  and  commis- 
sion should  never  go  below  £350. 

Witness  (continuing)  said  it  was  usual 
t )  make  a  fine  for  bad  debt.s. 

Hopley,  J.,  asked  where  this  fine  or 
pc-nalty  appeared  in  the  agreement. 

Mr.  Close  said  it  was  not  contained 
in  the  agreement,  but  it  was  the  custom 
of  the  firm. 

Continuing,  the  witness  stated  that  the 
commission  was  one  per  cent,  on  business 
in  town,  and  2^  per  cent,  for  country 
business.  All  the  items  were  shown  in 
a  detailed  statement,  which  was  rendered 
in  April,  1904.  The  commission  was  paid 
upon  the  balance,  after  deducting  the 
amount  of  bad  debts  and  penalties  from 
the  amount  of  business  which  had  been 
done.  Witness  had  never  heard  about 
an  accident  befalling  Mr.  Robertson 
until  the  present  case  came  on.  How- 
ever, witness's  firm  admitted  no  liability 
with  regard  to  accidents.  The  firm  had 
never  paid  medical  expenses  in  connec- 
*»9"  ^^^^  *»y  accidents  its  travellers 
might  have  had.  No  agreement  was  en- 
tered into  by  the  firm  to  pay  Robertson 
0  per  cent,  on  any  balance  of  commis- 
sion due 

Cross-examined  by  Mr.  Buchanan: 
Witness  had  told  his  attorneys,  both  at 
Port  Elizabeth  and  here,  as  to  the  com- 
mission in  different  cases.  Witness 
specifically  told  Robertaon  that  he  would 
have  to  pay  a  penalty  the  same  as  other 
travellers.  The  amount  of  the  penalty 
on  bad  debts  in  town  accounts  was  6i 
per  cent.  Witness  gave  plaintiff  particu- 
lars of  all  these  bad  debts.  It  was  diffi- 
cult to  give  amounts  of  bad  debts  every 
montli ;  that  was  why  nothing  had  been 
said  about  the  penalty  until  the  present 
time. 

[Hopley,  J.  :  How  many  times  do  you 
charge  Mr.  Thomas,  another  of  your 
travellerB,    with  these  penalties?] 

Chioe  a  year,  my  lord.  I  sent  it  to 
both  of  them  at  the  same  time. 

Mr.  Buchanan :  You  said  just  now  that 


the  commission  on  bad  debts  was  2  per 
cent. 

No ;  d^  tper  cent,  on  town  bad  debts 
and  2  per  cent,  on  bad  debts  in  the 
coun/try. 

Witness  (continuing)  said  that  he  did 
n<t  endorse  the  sj^ecification  as  to  the 
commission  on  the  agreement,  bn-aiiNC  it 
was  (|uite  an  underrstuod  thing.  Wit- 
no83  had  paid  Roberlson's  hold  expenses 
at  Bloenifonteiii  on  one  particular  occa- 
sion, as  a  matt(jr  of  grace,  lx»cause  the 
firm  knew  that  Robertson's  wife  had  left 
Biocmfontein  for  Port  Elizabeth,  and 
that  he  (Robertson)  could  not,  therefore, 
have  hml  a  private  house  tiiere. 

Ernest  Gillespie  stated  that  he  was 
cacshier  to  the  defendant  company.  Ho 
had  been  with  the  firm  for  about  two 
years  at  Port  Elizabeth.  lie  knew  of 
no  arrangement  under  which  Mr.  Rob- 
ertson was  to  receive  six  per  cent,  on 
any  balance  of  commission  held  by  the 
firm.  Witness  knew  that  it  was  the 
custom  of  Hoit  and  Holt  to  charge  their 
truvellers  penalties  for  bad  debts,  but 
could  not  t^ay  if  Mr.  Robertson  had  been 
charged  penalties. 

MiT.   close  closed   his   ca.se. 

Counsel  having  been  heard  in  argu- 
ment on  the  facta, 

Hopley,  J. :  In  this  case  the 
plain  iiff  sues  the  defendant  for 
the  sum  of  £124  17s.  7d.  on 
.various  i*ems  of  •  account,  exttending 
over  a  considerable  period,  for  services 
entered  upon  for  the  defendant  firm. 
This  amount  must  be  reduced  by  £5  7s. 
7d.  for  an  item  brought  to  the  notice  of 
the  plaintiff  in  the  defendants'  plea  and 
their  letters.  That  leaves  the  amount 
of  his  claim  at  £119  12s.  The  largest 
item  is  £S6  17s.  6d.,  for  alleged  allow- 
ance for  hotel  expen.^es,  or  house  allow- 
onoe.  for  155  days  at  Biocmfontein. 
which  h?d  not  previously  been  charged 
by  the  plaintiff.  The  circumstances  are 
that  the  plaintiff  engaged  with  the  de- 
fend-ants  to  come  to  this  country 
at  a  minimum  salary  of  £350 
per  annum,  and  such  commission 
as  he  could  earn  as  a  commercial 
traveller  for  their  firm.  Port  Eliza- 
beth was  to  be  his  base,  and  he  had  a 
right,  when  away  from  the  base,  to  have 
his  hotel  and  travelling  expenses  paid. 
In  Port  Elizabeth  he  had  his  wife  and 
family,  and  while  there,  he  was  allowed 
45s.  per  week  for  what  were  called  inci- 
dental expenses,  which  included  the 
amount  of  his  train  fare  to  Uitenhage, 
which  place  he  seems  to  have 
visited  on  business  once  a  week. 
After  a  little  while  he  was  moved 
to  Bloemfontean,  and,  being  then 
away  from  bis  proper  base,  be  was 
allowed  all  his  hotel  expenses,  as  well  as 
incidental  expenses.  His  actual  hotel 
expenses  were  12s.  6d.  per  diem,  we  are 
told,  and  this  appeans  to  be  a  reasonable 
figure.  He  appears  to  have  done  fairly 
well  while  there,  and  it  seemed  to  bo 
underatood  that  he  was  treated  as  prao- 


K 


CAPE  TIMES"  LAW  REPORTS. 


155 


A>  parte  millkk. 

Mr.  P.  Jones  moved  to  have  a  rule 
fiMf  gr&ntod  under  the  Derelict  Lands 
Act,  made  abeotiite. 

Rule  made  absolute. 


Kjt  parte  DOYLB. 

Mr.  Swift  moved  to  have  a  rule 
iii.«t  granted  under  the  Derelict  Lauds 
Act.  made  absolute. 

Rule  made  absolute. 


Kj-  parte  SNODORAHB. 

Mr.   P.  Jones  moved  to  make  absolutt^ 
a   rule  nUi  granted  under  the  Derelict 

absolute. 


Lands  Act 
Rule   made 


PICKARD  V.  THK  S.  A.  TRADE  C       ISK).'). 
rKOTKCTIOX  ROCIFTY  AND<  Feb.    2Srd. 
ANOTHER.  (      „       25th. 

Lil>el — Privilege — Legal  malice — 
Damages. 

Thf  defendanlit  had^  iritfiottt 
fjrprens  iiudtre^  falsely  stated 
hi  ajMiper  prirattly  chrnUtthHj 
amo/tfj  some  S/)00  snhserihers^ 
that  a  judyment  had  been 
obtained  aganint  the  plaintiff 
in  a  certain  li.M.  Coart.  They 
pleaded  the  absence  of  malice 
and  privilege. 

Held,  that  as  they  had  been 
f/nilty  of  legal  malice  and  as 
the  stat-emmt  in  thfir  pnprr 
tras  not  pnrileyed  ;  the  plain- 
tiff' V  iijf  entitled  to  reeoeer  sab- 
stantial  damages^  even  thmyh 
he  had  not  pntved  sprdal 
iUtmage. 


Tliiis  was  an  action  brought  to  recover 
£1.000  damages  for  defamation  of  char- 
acter by  reason  of  a  statement  made  by 
the  defendants  in  the  "  South  African 
Mercantile  Gazette." 

The  declaration  set  out  that  the 
plaintiff  was  a  contractor  and  hotel- 
k(>eper  of  Oudtslioorn,  the  first-named 
defendant  a  duly  incorporated  company, 
and  the  8<*cond  defendants  printers,  car- 
rying on  business  in  Cape  Town.  On  the 
26th  March.  1904,  the  "South  African 
Mercantile  (iazette "  wrongfully,  falsely, 
and  maliciously  caused  to  be  written, 
and    the    second    defendants    wrongfully 

C'  it«d.  that  a  provi.*ional  judgment  ha<l 
n  obtained  against  the  plaintiff  by 
one  F.  W.  Nuns  for  £41  17s.,  whereas 
Uio  matter  was  referred  to  arbitration. 


The  plea  set  out  that  the  paper  was 
not  sold  or  available  to  the  public.  It 
was  only  given  to  business  men  on  con- 
dition that  the  information  would  be 
regarded  as  private  and  confidential. 

The  words  were  printed  by  error  and 
published  without  malice.  An  apology 
was  published  in  the  next  issue.  If  the 
plaintiff  was  pressed  for  his  accounts  it 
was  not  through  the  paragraph  in  ques- 
tion. 

Mr.  McGregor  (with  him  Mr.  Bisset) 
was  for  the  plaintiff,  and  Mr.  Searle,* 
K.C.  (with  him  Mr.  W.  P.  Buchanan) 
was  for  the  defendants. 

Wm.  Henry  Pickard,  proprietor  of  the 
Imperial  Hotel  at  Oudtshoorn,  stated 
that  in  March.  1904,  he  had  a  contract 
for  the  building  of  the  Standard  Bank, 
and  since  then  he  had  taken  contracts. 
In  a  paper  it  appeared  that  in  March, 
1904,  no  wa.s  sued  for  certain  money, 
but  that  was  not  so,  as  the  case  was  re- 
ferred to  arbitration.  The  other  side 
had  to  pay  coHt.«<,  witness  onl^v  paying 
£32  out  of  a  claim  for  £41.  1  here  was 
no  tender,  as  witness  did  not  get  a  spe- 
cified account.  The  plaintiff  was  asked 
for  a  specified  account,  but  he  did  not 
supply  it.  Ho  heard  first  of  all  from 
the  'standard  Bank  that  there  was  a 
provisional  judgment  against  him.  The 
manager  of  the  bank  had  a  letter  which 
came  from  the  general  manager's  office. 
At  that  time  witness  had  an  overdraft  at 
the  bank  Witness  then  got  a  copy  of 
the  iMiper,  and  he  was  positive  that  the 
statement  did  him  an  immense  amount 
of  harm,  as  several  people  wanted  to  get 
paid  at  once.  Witness  instanced  a 
couple  of  firms  that  changed  their  stylo 
of  business.  Instead  of  thirty  or  sixty 
days  one  firm  drew  at  sight,  which  was 
not  in  accordance  with  the  usual  cus- 
tom of  dealing.  A  firm  at  Mossel  Bay 
absolutely  refused  to  assist  him  without 
the  cash. 

Cross-examined  by  Mr.  Searle:  He 
might  have  had  financial  assistance  from 
his  son-in-law  in  May.  In  one  case  a 
firm  drew  on  him  because  his  account 
was  outstanding  for  some  months.  He 
had  no  particular  reason  of  not  men- 
tioning in  his  affidavit  that  Parker, 
Wood  and  Co.  were  pressing  him.  At 
that  time  money  was  yery  ti{^ht,  the 
bank  being  anxious  to  get  in  their 
nuMiey.  Only  <»n  two  occasions,  once 
before  and  once  since  this  action,  had 
he  paid  on  a  legal  demand.  It  was  be- 
cause a  young  attorney  wished  to  make 
a  mark  for  himself  that  he  got  those  let- 
ters over  small  amounts.  During  the 
election  he  asked  Mr.  Vincent  to  givo 
him  an  extension.  He  could  overdraw 
with  the  bank  to  the  extent  of  £13,000. 
Ho  took  the  manager  of  the  bank  to  the 
attorney  and  explained  the  matter. 

By  the  Court:  If  they  had  offered 
him  £200  and  a|)ologised  in  the  other 
I)apers  he  would  have  been  satisfied. 

Douglas  Alexander  Smith,  of  the 
Standard  Bank,  stated  that  his  attcntioi\ 


im 


"CAPE  TIMES »•   LAW  REPORTS. 


which,  thoy  say,  thev  have  a  right  to 
charge  against  the  plaintiff.  Now,  un- 
fortunately, the  parties  chose  to  vary 
the  original  agTeeniein<t,  instead  of  ad- 
hering ito  it.  At  tlie  ena  ol  ever]^  month 
the  defendants  paid  the  plaintiff  coin- 
mission,  or  allowed  it  to  him,  and,  it 
seems  to  me,  they  cannot  come  here 
after  they  have  got  into  a  law  suit,  and 
say :  "  We  can  revise  these  claims  and 
ivodjust  them,"  and  that,  exoeipt  in  the 
case  of  fraudulent  concealment, 
they  cannot  re-open  these  matters, 
land  revorse  the  commiasioin.  The^ 
say  that  the  tplaintiff  was  told  it 
was  tho  practice  of  the  firm, 
when  th?re  were  bad  debts,  to  penaJist^ 
th'j  travel I»?r  concerned,  and  to  chargo 
him  a  penalty  of  .'ne  or  iwo-and-a-half 
per  cent.  The  question  of  whether  tho 
piHintiff  was  so  informed  refits  on  the 
evidence  of  one  witness ;  and  the  whole 
thing  is  absolutely  denied  by  tho  plain- 
tiff. I  am  not  satisfied  that  tins  was 
told  to  tho  plaintiff,  or  even  chat  it  was 
the  practice  of  the  firm  at  all ;  but  what 
we  do  know  is,  that  there  never  was  a 
penaltv  charged  to  the  plaintiff,  and  we 
only  near  of  the  penalties  practically 
after  this  cntK3  had  been  started.  So,  I 
cannot  find  that  the  plaintiff  ever  agreed 
to  pay  such  penalties  Therefore,  as 
regards  the  penalties  and  commissions, 
the  defendants  must  fail.  As  regards 
the  .suggestion  that  certain  it«ms  should 
l>e  referred  to  the  investigation  of  an  ac- 
countant, I  do  not  think  it  advisable  to 
allow  this  case  to  remain  open  any 
longer.  It  is  regrettable  that  the  par- 
ties did  not  adopt  that  course,  before 
coming  into  court,  or  even  settle  th** 
matter  entirely  out  of  court.  The  re- 
sult of  it  all  is  that  there  is  the  sum  of 
£3    10s.  6d.  due   to  the  plaintiff.       The 

f>]{'intiff  has  failed  in  a  largo  portion  of 
lis  claim;  and  the  defendants  have  fail- 
ed in  their  claim,  althoucrh  they  have 
Biirceeded  in  reducing  the  plaintiff's 
claim   to  a  large  extent.  As   regards 

costs,  it  seems  to  me,  in  the  circum- 
stances—tliough  I  do  not  expect  it  will 
please  either  party— that  the  only  thinir 
to  say  is  that  there  shall  be  judgment  for 
the  plaintiff  for  the  sum  of  £3  10s.  6d., 
and  no  order  as  to  costs. 

[Plaintiffs  Attorneys:  Van  Zyl  and 
Buissinne ;  Defendants  Attorneys : 
Syfret,  Godlonton  and  Low.] 


SUPREME   COURT 


FIRST   DIVISION. 


[Before  the  Chief  Justice  (the  Rig-ht 
Hon.  Sir  J.  H.  D£  ViLLlKBS.  P.C., 
K.C.M.G..  Lh.D.\  the  Hon.  Mr. 
Justice  MAAbDOKP  and  the  Hon.  Mr. 
Justice  HOPLEY.] 


BE£D  V.  PORT  ELIZABE 
TOWN  COUNCIL. 


TH  r 


190.5. 
Feb.    27th. 
Mar.     Gth. 


Municipal  Regulations  —  Powers 
of  Council  —  Demolition  of 
buildings  —  Measure  of  da- 
mages. 

Certain  Municipal  Rcgidationa 
provided  that  *'  where  a  build- 
nig  is  considered  by  the  Council 
to  be  ruinouH  or  so  far  dilapi- 
dated as  thereby  to  hare  become 
and  to  be  nnjit  for  use.  or 
occupation^"  the  Council  may. 
Ml  failure  hg  the  owner  to  obfy 
an  order  for  its  demolition, 
proceed  tc  demolish  the  build- 
ing and  claim  the  cost  from 
the  ow^ier. 

Held,  in  an  action  by  the 
Council  for  the  cost  of  the 
demolition  of  certain  cottages 
of  the  defendant,  that  the 
Council  luid  no  power  under 
such  regulations  to  demolish 
buildings  xrhich  \ccre  stntctu- 
ralbj  fit  for  use  and  iK'fmjHition^ 
altlwugh  from  a  sanitary  p  .int 
ofviev\  they  mere  not  so  Jit. 
In  ordering  the  demolition,  the 
Council  a<:ted  bona  fide  ami 
in  the  intn'est  of  the  inhabitants 
of  the  town  at  a  time  when  the 
plague  w<is  raging  thei'e^  and 
the  defend atd  loas  pror^d  to 
have  been  generally  neglectful 
of  his  duties  as  landlord. 

Held,  in  the  defendant's  claim 
in  reconvention  for  damages, 
that,  in  the  absence  of  any 
circumstances  of  aggraratimi^ 
the  meamire  of  damages  which 
should  be  applied  was  the 
diminution  in  the  selling  price 
of  the  land  by  reason  of  the 
unlmiful  act  of  the  Council. 


This    matter   originally    came    before 
the    Eastern     Districts    Court    m     the 


"CAEE  TIMES"   LAW  REPORTS. 


167 


tnrm  o{  an  action   V>roug^ht  by  the  Town 
Couicii   against     Reed     for    two    sums 
ol    money,    £75       and      jB37     lOs.     5d. 
The    claim     for       £75      was     amicably 
settksd.     The    claim    for    £57   10s.    5d. 
vas  alleged  to    be    due    for   work    and 
labour  done  ^nd    expenses    incurred    by 
tbe  Ciiuncil  on   the    defendant's   behalf 
in  pulling   down     certain     buildings    in 
Port  Elizabeth  belonging  to  Reed,  after 
a  Dotice  had  been  sent  to  the  respondent 
that  the  buildings  were  dilapidated  and 
unfit  for  use  and  habitation.     There  were 
two  seta  of   buildings,   the  upper    and 
lower  red  barracks.     The  defendant  ad- 
mitted that  the  lower   buildings  should 
be  pulled  down,    and    the    upper   alone 
remained   in    di^^pute.        The    defendant 
took  up  a  poeiition  that  the  upper  build- 
ings should  not  be  pulled  down  by  the 
Council  according        to        law,    and    he 
claimed  £3,000,  the  value  of  the  build- 
m?>,  and  £1,065   reirt  at  £35  a  month 
frum  Februarr.   1902. 

Mr.  Searle.' K.C.  (with  him  Mr.  P. 
Jones),  was  for  the  appellants,  and  Mr. 
Burton  (with  him  Mr.  J.  E.  R.  de 
\iiliers)  was  for  the  respondent  Reed, 
who  bad  lodged  a  cross-appeal. 

:Dc  Villiors^,  C.J. :  On  the  other  side 
the  appeal  will  be  on  the  quc.-stion  of 
dattiages  and    the    consequent  order    as 

to  CQStfi.] 

Mr.  Burton:   Ye^,   my  lord. 

Mr.  Si>arlo  read  Reg.  57,  under  which 
thi'  Town  Council  purported  to  act,  and 
wi  the  latter  part  of  which,  he  said, 
the  main  argument  hinjyod.  It  would 
w  no  answer  for  the  defendants  to  hay 
that  the  buildings  were  not  dangerous 
find  aIv!oiutely  ruinous.  Dilapidated 
a>id  ruinous  did  not  exactly  moan  tlie 
►&me  thing,  and  counsel  submitted  tlie 
«'Mdcnco  showed  the  buildings  were 
dilapidated. 

.  fOo  Villiors,  C.J. :  Were  the  build- 
jnffs  so  far  dilapidated  as  to  have 
hecome  unfit  for  use?] 

Mr.  Searle:  I  subriiit  they  were  so 
dilapidated.  Proceeding,  counsel  drew 
attetrtion  to  the  evidence  of  one  of  the 
witiK»««03  for  Ree<l.  who  calculated  that 
it  would  be  twenty  per  cent,  cheaper 
to  repair  the  buildings  than  to  have 
them  pulled  down.  The  buildings  were 
hke  the  Irishman's  gun— without  lock, 
•»t'>rk,  and  barrel.  One  of  the  wit- 
ne^es  said  he  valued  the  buildings 
merely  from  the  purchase  of  the  old 
ftuff.  but  if  the  buildings  were  worth 
■nrthing.  surely  Reed  would  have  had 
«uUtantial  damages  in  his  claim  in  re- 
winvention.  Tliere  was  evidence  that 
R«*^.  drawing  largo  rentals  for  eight 
y^in.  had  not  l>een  near  the  i>lace, 
which  was  inhabited  by  a  low  class 
JJ  people,  and  as  a  member  of  the 
Council  he  submitted  Recti's  conduct 
waa  disgraceful.  Although  the  pre- 
tnises  were  clo5ed  on  account  of  the 
plague,  the  re^ix>ndent  did  not  make 
Wy  efforts  to  get  the  keys  from  the 
Plague  Board      in      order   to   put   the 


buildings  in  repair.  Ho  submitted  that 
these  buildings  were  90  far  dilapidated 
as  to  become  unfit  for  use,  and  that  the 
only  defence  that  Reed  oould  raise  was 
that  he  was  willing  to  make  the  repairs 
and  unable  to  do  so. 

l)c  Villiers,  C.J.,  said  that  the  Court 
dt  present  wished  to  hear  counsel  for 
the  reepondent  and  cross-appellant  on 
the  question  of  damages. 

Mr.  Burton  said  tnat  with  due  sub- 
mission to  the  Court  below  an  inao- 
c urate  basis  had  been  taken  on  the 
ground  of  damages,  £15  damages 
was  allowed  because  of  the  evidence  of 
Winter,  about  whose  valuation  it  waa 
difficult  to  see  which  property  he  re- 
ferred to.  He  said  that  he  thought  the 
ground  without  the  buildings  wiH  carry 
a  better  price  than  with  the  buildings. 
Because  Winter  said  that  the  Court 
had  come  to  the  conclusion  that  no  ap- 
preciable damage  had  occurred  to  the 
defendant.  It  was  clear  that  Winter's 
basis  was  given  on  the  assumption  that 
the  place  would  be  used  for  store  pur- 
poses. George  Reed  himseK  said  that 
prior  to  the  closing  of  the  buildings  he 
was  get?ting  an  average  rental  of  £20 
a  month. 

fDe  Villiers,  C.  J. :  T  don't  think  that 
is  a  fair  test.  The  buildingis  were  in  a 
very  unsanitary  condition.  A  better 
test  would  be  what  would  the  property 
fetch.] 

Mr.  Burton  submitted  that  a  person 
who  committed  a  wrongful  act  could  not 
say  that  by  some  chance  he  had  im- 
proved  the  property. 

[De  Villiern,  C.  J. :  Is  it  not  a  case  in 
which  there  is  no  vindictive  damages, 
but  rather  a  case  in  which  we  have  to 
deal  with  the  hard  facts.  The  hard 
facts  are  those:  The  ground  with  the 
Iniildingg  would  not  l)e  worth  nioro  than 
tho  ground  without  the  buildings.  The 
difference  in  value  therefore  is  nil,  and 
therefore  no  damages  are  sustained.] 

Mr.  Burton  said  he  had  no  doubt  the 
Town  Council  acted  with  botm  fides  in 
the  matter,  but  still  the  (/ourt,  he 
thought,  would  take  into  consideration 
thr»  question  of  the  rent.  Counsel  sub- 
mitted if  the  highest  sum  quoted,  £600, 
was  used,  the  promisee  could  be  made 
fir  for  the  habitation  of  white  people 
Counsel  quoted  a  case  from 
"Sedgwick  on  Damages"  to  show 
that  a  person  could  not  say  be- 
cause he  pulled  down  premises  and  im- 
proved them,  that  damages  could  not  be 
claimed.  It  would  Ix)  a  very  danger- 
oii«  principle  to  apply  the  niarketable 
value  against  the  rent,  and  counsel  sub- 
mitted it  should  he  applied  with  great 
strictness  and  great  care.  In  this  case 
he  contended  that  the  basis  was  not  a 
pioper  one,  and  that  the  defendant  was 
entitled  to  greater  damages. 

ISIr.  fW'arle  said  that  the  Judge-Presi- 
dent said  he  had  found  that  £15  was  the 
invasion  of  the  plaintiff's  right,  and  Ju6- 
tico  Sheil  said  the  plaintiff  was  only  ©n- 


168 


"CAPE  TIMES*'  LAW  REPORTS. 


titled  to  nominal  damages.  Apparently 
very  little  attention  -was  paid  to  the  evi- 
dence of  the  other  builders,  who  no 
doubt  owned  rookeries  of  the  same  kind. 
The  evidence  of  the  Prinoipal  Medical 
Ofljccr  of  Health  said  that  in  his  opinion 
tho  premises  could  not  be  again  used  for 
the  same  purpose,  and  counsel  thought 
tho  plaintiff  was  extremely  fortunate  to 
get  £15  damages. 

Mr.  Burton  said  if  their  lordships 
found  that  the  damages  should  not  be 
increased  it  was  very  questionable  whe- 
ther the  defendant  should  not  have  been 
allowed  his  costs.  With  regard  to  the 
costs  of  appeal  he  would  say  thfi.^  his 
client's  appeal  was  in  consequence  of 
tho  action  of  the  other  side. 

Do  Villicrs,  C.J.,  said  that  if  it  should 
be  necessary  to  hear  Mr.  Burton  on  the 
original  appieai,  notice  would  be  given  to 
th'i  parties  before  giving  judgment.  The 
Court  would  wait  for  tho  answer  from 
the  Registrar  as  to  the  correctness  of  a 
paragraph  on  tho  copy  of  the  record. 

Mr.  Searle  said  the  defendant  had 
prosecuted  the  appeal,  and  was  as  much 
an  appellant  as  his  clients. 

Cur.    Adr.    Vuit. 

Postrii    (March   6th). 

De  Villiers,  C.J. :  In  this  case  there 
is  an  appeal,  '  as  well  as  a  cross- 
appeal,  against  a  judgment  of  the 
Eastern  Districts  Court.  The  question 
which  arises  on  the  appeal  is  whether 
the  plaintiffs,  the  Town  Council  of  Port 
Elizabeth,  were  justified  in  demolish- 
ing certam  buildings  belonging  to  the 
defendant,  and  known  as  the  Lpper  Rod 
Barracks.  The  question  which  arisen  on 
the  cross-appeal  is  whether,  assuming 
that  the  plaintiffs  -were  not  justified  in 
puliiug  down  the  buildings,  the  Court 
below  applied  the  proper  measure  of 
damages  for  the  injury  in  awarding  to 
the  defendant  only  the  &um  of  £15  as 
dama^i^es.  The  decision  of  the  first 
question  must,  to  a  great  extent,  de- 
pend upon  the  construction  of  tho  37th 
to  39th  Municipal  Regulations  of  Port 
Elizabeth.  The  regulations  are  as  fol- 
low:  **37.  Where  a  building  or  struc- 
ture is  considered  by  tho  Town  Council 
to  be  ruinous,  or  so  far  dilapidated  a? 
thereby  to  have  become,  and  to  be, 
unfit  for  use  or  occupation,  or  is  from 
neglect  or  otherwise,  in  a  structural 
condition  prejudicial  to  tho  property  in, 
or  to  the  inhabitants  of  the  neighbour- 
hood, the  Town  Council  may  issue  an 
order  requiring  the  owner,  agent,  or 
occupier  of  such  building  or  structure 
referred  to  as  a  neglected  building,  to 
take  down,  or  repair,  or  rebuild  tho 
neglected  structure,  or  any  part  thereof, 
or  to  fence  in  the  ground  on  which  it 
stands,  or  any  part  tnoreof,  or  otherwise 
to  put  the  said  building  or  {structure, 
or  any  part  there<)f,  in  a  state  of  re- 
pair or  good  condition,  to  the  satisfac- 
tion of  the  Town  Council,  within  a 
reasonable  time,  to  be  fixed  by  the 
Town  Council.  If  the  order  is  not 
obeyed,  the  Superintendent  of  Works  or 


other  duly -authorised  officer  may.  with 
all  convenieat  speed,  enter  upon  the 
neglected  structure  or  such  ground  M 
aforesaid,  and  execute  the  order.  38. 
Where  the  order  directs  the  taking  down 
of  a  neglected  building  or  itructure. 
or  an^r  part  thereof,  the  Town  Council 
may,  in  the  execution  of  the  order* 
direct  the  removal  of  the  materials  to  a 
(onvenieiit  place.  39.  The  Town 
Council  may  recover  from  the  owner  of 
such  neglected  building  or  structure  all 
costs  aiKl  expenses  in  connection  there* 
with  ill  like  manner  as  if  the  same  were 
a  penalty  imposed  by  these  regulations." 
It  was  under  these  regulations  that  the 
Council  ordered  the  buildings  to  be 
demolished,  and  claimed  from  the  de- 
fendant the  cost  incurred  in  so  doin|^. 
Due  notice  was  given  to  the  defendant 
of  every  step  intended  to  bo  taken  by 
the  Council,  and  although  he  protested 
against  such  steps  being  taken,  ne  never 
applied  to  the  Courts  for  an  interdict 
rostraining  the  Council  from  taking  ac- 
tion. It  is  unnecessary  for  the  pur- 
pose of  the  apnea!  to  recite  the  different 
proceedings  taicen  by  the  Council  in  the 
matter.  It  appears  that  for  the  greater 
part  of  the  time  during  which  the  dis- 
putes were  occurring,  there  waa  a  kind 
of  dual  control  in  Port  Elizabeth  in  re- 
spect of  tho  buildings  of  the  town.  The 
plsgiie  having  broken  out,  a  Plague 
Board  was  established,  and  on  the  16th 
of  September,  1901,  the  chairman  of 
that  Board  gave  notice  to  the  defendant's 
affcnt  prohibiting  the  use  or  habitation 
of  the  dwelling-houses  in  question.  On 
the  occupiers  vacating  the  premises, 
the  secretary  of  the  Board  obtained  and 
kept  poijfiession  of  the  kevs  thereof.  On 
the  5th  of  February,  1902,  the  Town 
Council  passed  a  resolution  giving  the 
defendant  two  months  to  put  his  pre- 
mises in  a  fit  state  to  be  inhabited,  eub- 
J'ect  to  the  approval  of  the  Municipal 
lealth  Officer  and  Town  Engineer.  In 
pursuance  of  this  resolution,  the  defen- 
dant obtained  specifications  from  com- 
petent contractors  for  carrying  out  the 
required  work.  On  the  17th  of  Febru- 
ary, 1902.  the  contractors  wrote  to  the 
secretary  of  the  Plague  Board  asking  for 
the  keys  of  the  buildings,  so  as  to  en- 
able the  defendant  to  comply  with  the 
decision  of  the  Municipal  Council,  but 
the  answer  was  that  it  would  bo  necessar;^ 
for  the  defendant  himself  to  communi- 
cate with  the  Board.  This  was  a  most 
extraordinary  answer  to  give,  but  tho 
Town  Council  was  not  respcmsible  for  it. 
The  defendant  also  demanded  the  keys 
from  the  Council,  but,  as  the  keys  were 
not  in  the  possession  of  the  C  ouncil, 
the  demand  was  not  complied  with.  It 
is  clear  from  the  evidence  of  the  secre- 
tary of  the  Plague  Board  that  the  Board 
was  determined  that  the  repairs  should 
not  be  effected  to  the  premises.  It  is 
oquall.v  clear  that  the  premises  were  not 
past  repair,  and  that  with  the  proposed 
expenditure  they  mi^ht  have  been 
placed   in   a   fairly   haioitable   condition. 


CAPE  TIMES*'  LA\^  REPORTS. 


iGd 


The  repairs  were  not,  however,  effected, 
and  oil  the  31st  uf  March,  1903,  a  notice 
was  served  by  the  Town  Clerk  on  the 
defendant  calling  upon  him  to  demolish 
the  structures,  and  giving  him  notice 
that  unless  they  were  removed  before 
the  8th  of  April  the  Council  would 
cause  their  demolition,  and  hold  him 
responsible  for  the  costs.  He  pro- 
tended against  such  action,  but  the  work 
of  demolition  was  proceeded  with,  and 
the  present  suit  was  instituted  to  re- 
cover the  cost  there<jf.  The  Court 
below  held  that  the  buildings  could  not 
fairly  and  reasonably  be  said  to  have 
been  ruinous  or  so  far  dilapidated  as  to 
bnng  them  within  the  meaning  of  sec- 
tion 37  of  the  Municipal  regulations. 
in  this  view  1  entirely  concur.  The 
regulation  constitutes  a  most  serious  in- 
fringoment  of  the  rights  of  property, 
and  should  not  be  extended  by  one  joi 
or  tittle  beyond  its  legitimate  scope. 
The  buildings  were  certainly  not  ruin- 
ous, nor  were  they  in  a  structural  con- 
dition prejudicial  to  the  property  in  or 
the  inhabitants  of  the  neighbourhood. 
They  were  somewhat  dilapidated,  but 
the  dilapidation  was  of  such  a  nature 
that  with  the  expenditure  of  about  £300 
— an  amount  which  the  defendant  was 
ready  and  willing  to  expend  if  the 
Plague  Board  would  give  him  the  keys 
— tne  buildings  would  have  been  render- 
ed perfectly  fit  for  use  and  occupation 
from  a  sanitary  point  of  view.  From 
the  purely  structural  point  of  view  the 
buildings  were  not  in  any  way  danger- 
ous either  to  those  inhabiting  them  or 
to  ueighlK>urs  or  passers-by.  They  were 
conjequently  not,  in  the  words  of  thi* 
liection,  '*  ruinous  or  so  far  dilapidated 
as  thereby  to  have  become,  and  to  be, 
unfit  for  u.^e  or  occupation.  The  Town 
Council  therefore  was  not  entitled  to  re- 
cover the  costs  incurred  in  the  demoli- 
tion. The  next  question  is  whether 
tho  sum  of  £15  awarded  to  the  defen- 
dant is  a  sufficient  compensation  for  the 
injury  sustained  by  him.  This  is  clear- 
ly not  a  case  in  which  anything  like 
exemplary  or  vindictive  damages  would 
have  been  appropriate.  The  plague 
had  broken  out  m  the  town,  and  the 
Council  owed  a  duty  to  the  public  to 
loave  no  stone  unturned  to  check  tho 
ravages  of  the  disease.  Its  duties  un- 
der the  .section  were  quasi-judicial,  and 
full  notice  was  given  to  the  defend  an: 
of  everv  step  proposed  to  be  taken  in 
the  performance  of  those  duties.  The 
defendant,  on  the  other  hand,  was  an 
exceedingly  neglectful  landlord,  and  ad- 
mittedly allowed  other  premises  of  his 
to  fall  into  such  a  dilapidated  condi- 
tion a^  to  be  past  repair,  and  for  the 
cost  of  the  demolition  of  these  premises 
the  Council  obtained  judgment  in  tho 
Court  below  for  the  sum  of  £10.  The 
premises  now  in  question  were  certain- 
ly in  a  very  unsanitary  condition,  and 
if  the  C'ouncil  erred  in  considering  that 
this  was  a  sufficient  ground  for  order- 
ing their  demolition  it  acted  in  perfect 


good  faith,  and  with  a  sole  view  to  tho 
interests  of  the  public  of  Port  Eliza- 
beth. If  there  had  been  bad  faith  on 
the  part  of  the  Council  or  indignity  to 
the  person  of  the  defendant  or  any  in- 
vasion of  the  personal  rights,  the  Court 
would  have  been  justified,  according  to 
the  decision  in  Ih  ViUura  v.  Van  Zyl 
(Foord's  Rep.  77),  to  take  such  circum- 
stances into  consideration  for  the  pur- 
pose of  asse.ssing  the  compensation  pay- 
able to  the  defendant.  In  the  absence, 
however,  of  any  circumstances  of  aggra- 
vation, the  criterion  should,  in  my 
opinion,  be  the  diminution  in  the  value 
of  the  land  in  consequence  of  the  injury 
complained  of.  In  the  case  first  cited  I  am 
reported  to  have  said  :  '*  In  an  action  of 
trespass  without  any  rircunistanees  of 
aggravation,  tho  plaintiff  is  no  doubt  en- 
tit'ed  only  to  recover  for  hi^  actual  in- 
jury in  respect  of  the  trespass  itself.  It 
is  clear  also  from  Voet's  remarks  in  the 
title  in  the  Aquilian  law  (9,  2,  6}  that 
in  asse*>iing  the  damnum  injuria  datum 
it  is  the  actual  depreciation  in  the  value 
of  the  thing  injured,  and  not  the  senti- 
mental value  attached  to  it  by  the  owner, 
v/hich  should  be  primarily  considered. 
The  English  cases  which  I  have  con- 
sulted are  not  quite  reconciliable  with 
each  other,  but  according  to  Mayne  on 
Damages  (p.  430).  "  where  the  defendant 
haJi  knocked  down  the  plaintiff's  house, 
built  upon  his  land  which  is  on  lease, 
th3  proper  measure  is  the  amount  by 
which  tne  selling  price  of  tlie  premises 
would  he>  reduced  by  the  wrongful  act." 
He  cites  the  case  of  Hoskyn*  v.  PhU- 
lipi  (3  Excheq.  182),  where  Parke,  J., 
delivering  the  judgment  of  the  Court  of 
Exche<nier.  said :  '"  The  proper  measure 
is  by  how  much  less  the  premises  would 
sell  in  consequence  of  the  wrongful  act 
of  the  defendant,"  In  the  present  case 
tho  defendant  claims  damages  under  two 
heads,  namely,  loss  of  past  rent  and  the 
value  of  the  buildings  destroyed.  In  re- 
gard to  the  loss  of  rent  the  evidence 
shows  that  even  if  the  buildings  had  not 
been  demolished,  the  defendant  could 
not  have  had  any  rent  from  them,  as  tho 
Plague  Board  kept  the  keys,  and  refus- 
ed him  permis<«ion  to  enter  or  repair  tho 
premises.  As  to  the  diminution  in  tho 
value  of  tho  land  by  reason  of  tho  de- 
molition of  the  buildings  thereon,  it  was 
stat-ed  by  the  defendant's  witness,  Win- 
ter, in  his  evidence,  that  the  ground 
without  the  buildings  would,  in  his  opin- 
ion, carry  a  letter  price  than  with  the 
buildings.  The  Court  below  attached 
great  weight  to  the  evidence  of  this  wit- 
ness, who  was  a  builder  and  contractor, 
with  twenty-two  years*  experionoe.  If 
once  it  is  established  as  a  fact  that  tho 
dt^molition  of  the  buildings  has  not  dim- 
inished the  selling  value  of  the  land,  it 
becomes  impossible  to  hold  that,  inde- 
pendently of  every  other  consideration, 
tho  defendant  is  entitled  to  substantial 
dnrngcA  for  such  demolition.  The  Court 
below,  in  the  exercise  of  the  functions  of 
a  jury,  has  found  the  fact  to  be  estab- 


170 


"CAPE  Wmes"  Law  reports. 


lishcd.  and  I  am  not  prepared  to  say  that 
tho  finding  is  contrary  to  th«  weight  of 
tJio  evidence.  The  result  is  that  the 
appeal,  as  well  as  the  cross  appeal,  must 
\yn  dismissed,  and  as  it  would  be  impois- 
sible  to  separate  the  costs  of  appeal  from 
tb.GSO  of  the  cro>s- appeal,  each  party  will 
be  ordered  to  bear  its  own  costs. 

Mr.  Justice  Maaedorp  and  Mr.  Justice 
Ilopley   concurred. 

[Appellant's  Attorneys  :     Walker  and 
JacoDsohn.J 


[Before  the  Hon.  Mr.  Justice  Maasdohp 
and  the  Hon  Mr.  Justice  Hopley.] 


AFRICA  V.    KHENISH  MIB-     (         liM>5. 
SIONARY  SOCIETY.  (Feb.    27th. 

Mission  station  —  Rules  —  Eject- 
ment. 

This  was  an  appeal  from  a  de- 
cision of  the  Resident  ^lagistrato  of 
I'ulbagh,  in  an  action  in  which  the 
Rhenish  Missioriary  Society  sued  for  the 
recovery  of  rtMit  from  the  defendant  and 
an  order  of  ejectment.  The  Magistrate 
decided  in  favour  of  the  plaintiff,  and 
gave  judgment  for  the  rent  claimed  with 
a  decree  of  ejectment  on  the  ground  that 
the  defendant  had  infringed  certain  rules 
for  tho  better  admini.stration  of  the 
society  by  starting  a  butcher's  .shop  at 
tho  station  at  Saron.  The  defendant  de- 
nied that  lie  over  signed  the  «-o-called 
church  laws,  or  that  he  knew  the  witness 
to  his  signature.  It  was  contended  that 
these  church  laws  were  ultra  viri9,  and 
that  no  proper  notice  was  given 
in  accordance  with  the  agreement 
drawn  up  between  the  parties.  Dr. 
Greer  (for  the  appellant)  contended 
that  the  head  of  the  Missionary  Society, 
tiie  trustee,  should  have  given  notice  ac- 
cording  to  the  law,  and  he  had  no  power 
of  substitution  Proceeding,  counsel 
said  the  administration  of  the  law.s  a^ 
at  present  were  distinctly  cruel,  and 
tl:er©  were  instances  of  cruelty  against 
Mr.  Kling.  The  Rhenish  Missionary 
Society  really  to  some  extent  held  in 
trust  for  tho  natives,  and  the 
land  was  bought  by  the  money 
people  who  subscribed  for  the  good 
of  tho  natives  and  by  the  natives 
themselves,  of  whom  the  appellant 
was  one.  There  was  evidence  that 
the  appellant  was  able  to  write  his  name, 
and  that  was  a  strong  presumption  that 
he  never  put  a  mark  on  the  p^aper  to  his 
nume.  Tlie  two  prineipaJ  witnesses  for 
th*^  plaintiff  were  not  produced  in  court, 
and  counsel  submitted  on  the  evidence 
that  that  contract  wa.s  not  such  as  would 
bind  the  defendant.  All  that  the  defend- 
ant sought  for  was  a  proper  administra- 
tion of  the  law.  and  if  there  was  to  \yo  an 
ejectment  that  it  should  be  according  to 
in&  law.  A  tender  had  IxK'n  made  for 
the  premises  from  which   the  defendant 


wa.s  ejected  to  pay  anj'thing  up  to  £25 
on  arbitration  by  two  mdepeudent  men, 
but  as  the  defendant  had  paid  £50  for 
tho  raw  material  the  offer  waa  not  ac- 
cepted. 

Air.  Burton  (for  the  respondents), 
on  an  intimation  from  the  Court, 
directed  his  argument  towards  a  re- 
futation of  cruelty  attributed  to  Mr. 
Kling.  When  the  case  oame  before 
the  Court,  not  a  single  instance  wa.s 
forthcoming  of  tyranny.  The  admin- 
istration had  become  more  difficult  of 
recent  years,  owing  to  the  refractory 
tvjnduct"  of  the  natives  einoo  the  war. 
The  50s.  which  had  been  obtained  as 
damages  in  the  Court  below  he  would 
not  press  for,  and  on  tho  tender,  his 
clients  were  willing  to  go  as  far  as  £25 
for   the  premises. 

Maa.sdorp,  J. :  There  is  the  clearest 
evidence  that  the  notice  to  quit  was 
given  by  Mr.  Kling,  who  was  regarded 
by  the  natives  as  acting  on  behalf  of 
the  tru.stees  of  this  property,  and  if  the 
{|uestion  of  his  agency  had  been  raised, 
the  conduct  of  the  parties  would  have 
been  such  as  to  show  that  they  had 
trcAated  him  throughout  as  the  agent, 
and  at  no  time  nad  questioned  his 
authority.  The  jilaintiff  could  have 
summarily  ejected  the  defendant  after 
giving  a  month's  notice,  but  he  proved 
by  his  conduct  that  he  had  no  wish  to 
ect  arbitrarily,  and  only  took  action 
after  having  been  persistently  defied  by 
the  defendant.  Some  reflections  had 
been  made  on  Mr.  Kling's  treatment, 
but  he  thought  a  great  deal  of  con- 
sideration had  been  shown  to  the.  de- 
fendant. There  was  not  a  title  of  evi- 
dence of  any  injustice  towards  the  de- 
fendant. The  appeal  will  be  dismissed, 
Avith  costs,  the  claim  as  to  the  damages 
for  508.  will  be  expunged,  and  the 
respondents  be  ordered  to  jjay  £25,  tho 
value  of  the  property,  upon  pos.se.s.sion 
being  given,  with  costs  of  the  appeal. 

Hopley,  J.,  concurred. 

[Appellant's  Attorney:  W.  G.  Coul- 
ton ;  Respondents'  Attorneys ;  Walker 
and  Jacobsohn.] 


DAVIDSON   V.  WERDMULLER. 

Mr.  Alexander  was  for  the  appellant, 
and  there  was  no  appcarajico  for  the 
respondent.  The  appoal  was  from  a 
dec  i  si  cm  of  the  Resident  Magistrate  of 
Colesl^erg.  in  which  he  upheld  an  ex- 
ception to  tho  siunmons  that  a  claim 
for  £7  for  Ixxard  and  lodging,  without 
any  .specified  account,  was  vague  and 
embarrassing  in  law,  after  he  went  into 
the  merits  of  the  case.  Tho  respon- 
dent admitted  his  debt,  and  had  since 
paid  the  £7,  and  counsel  now  ap- 
pealed on  the  ground  of  costs. 

Maasdorp,  J.,  said  the  appeal  would 
be  allowed,  wth  costs  in  both  Courts. 

Mr.  Justice  Hopley,  J.,  concurred. 


•'CAPE  TIMES"  LAW  REPORTSl 


171 


GENERAL  MOTION. 


Yjcparte  wassenbgrg. 

Mr.  Rowaon  moved  as  a  matter  of 
urgency  for  an  order  of  Court  for  tho 
payment  of  alimony  to  the  applicant. 
Id  order  that  she  miKht  prosecute  an 
action  ag&inst  her  hui^baiid,  to  wliom 
»he  WM  married  in  community  of  pro- 
perty, (or  judicial  separation,  on  the 
trround  of  his  violent  temper  and  in- 
temperance. 

Mr.  W.  P.  BuchaikBn  put  in  the  affi- 
davit of  the  respondent,  which  sot  out 
that  the  plaintiff  had  left  him  in  Jaiiu- 
■ry  la*t,  taking  with  her  jewellery  to 
the  value  of  £100.  household  good.s, 
valued  at  £10.  and  £10  in  money.  Tho 
plaintiff  had  received  a  letter  of  de- 
mand to  hand  over  one  of  his  boardinp- 
houw  in  Bree-.street,  and  the  matter 
wuld  be  settled  by  consent.  Affidavits 
*^rp  put  in  by  both  sides ;  on  the  one 
hand,  there  were  accusations  of  cruelty, 
the  defendant,  it  beinpr  alleged,  goin^c 
y  far  dA  to  threaten  the  plaintiff,  if  she 
did  not  jfct  out  of  the  house,  he  would 
pve  her  one  of  the  best  *'  doings  "  she 
ever  gf/t  in  her  life,  and  on  tlw  other 
hand,  the  allegations  were  strenuously 
der»ied. 

•Maasdorp.  J.,  said  under  the  circum- 
Manrej  of  this  case  tho  C^ourt  ought  to 
maBcp  the  usual  order.  The  respondent 
voujd  be  ordered  to  i>ay  to  tho  ajjpli- 
cant's  attorneys  £30  forthwith  towards 
the  suit,  and  £6  a  month  as  alimony, 
the  first  payment  to  be  made  on  tho  7th 
oC  next  month. 


SUPREME   COURT 


[Before  the  Chief  Justice  (the  Rijrht 
Hon.  Sir  J.  H.  DK  ViLLiBRs,  P.C, 
K.C.M.a.,  LL.D.).] 


^*  re   GRAKD    JUNCTION     f         190"). 

BAILWAYB.  (Feb.    28th. 

^Partnership  —  Receiver  —  Distri- 
bution of  assets. 

m 

'J  prnmsioixal  ordfr  of  seqiwu- 
^fiiVion  having  been  matie 
^gatmt  a  jKirfnership,  the 
^^ffditors  and  jwriuers  stigned 
fi  nnnejit  jHiper  that  the  sequel- 
^''ation  should  be  discharged 
<*«d  that  receivers  should  be 


appoinled  to  reuii^p  the  estate 
and  distrilniie  the  proceeds  hi 
accordance  with  the  legal  ord^r 
of  preference  hi  insolvency. 
Tlie  Court  having  apf Minted 
the  applicant)*  an  receirem  in 
terms  of  the  consent  papn%  the 
receivers  pvocttded  to  realise 
the  assets.  The  respondents, 
tcho,  as  creditors,  had  ftignal 
the  C4msent  paper,  proved  their 
claim,  but  refused  to  pin  re 
a  value  on  certain  securities 
which  the  If  held  for  their  debt 
in  terms  of  th*'  SOth  section  of 
the  Insolvent  Ordinance. 

Held,  that  the  applicants  were 
entitled  to  insist  upon  a  value 
being  placed  on  the  set  urity. 


Mr.  Schrc^in^r.  K.O.,  on  behalf  of  the 
ReoeiverB  of  the  Grand  Junction  Rail- 
ways. preAonted  tho  ii'Tftt  report  for  cxjn- 
firma^ion.  Mr.  W.  P.  Buchanan  ap- 
peartxl  to  ot>pose  cn^rtajn  recommenda- 
tions on  behalf  of  the  London  and 
Wostminslor  Bunk,  and  Dr.  Kainsford 
opposed  other  inatt<^rs  on  be>half  of 
creditors  in  Messrs.  Reunort,  Vou 
Laer  and  <.'o. 

Mr.  Schreinor.  in  presenting  tho  re- 
port, montione<l  in  tho  first  instance  tho 
recornmondation  that  Mr.  Hills,  who  waft 
appciinted  receiver  of  tho  partnership 
estate  in  Kngland,  and  who  bore  tho 
bnmt  of  the  work  in  carrying  through 
the  actions  against  tho  (J(»vornment, 
should  be  paid  for  his  trouble  and  out- 
of-pooket  expenses  £3,200.  The  report 
had  lain  for  inspection  for  the  usual 
period,  and  the  only  opposition  camo 
from  his  learned  friend  a  clients.  Mo.st 
of  the  debenture**  were  hold  by  tho  two 
banks— tho  A. B.C.  and  the  Loudon  and 
Westminster  Bank — the  latter  of  which 
wua  represented.  Both  banks  lodged  ai>- 
peals  against  the  judgment  of  the  Su- 
premo Court  that  the  debentures  in  the 
limited  company  were  not  preferent  in 
the  estate.  The  recoivcw  had  now 
drawn  up  a  recommendation  to  pay  the 
concurrent  creditors  5s.  in  tlie  £. 

[De  ViUiers,  C.  J. :  What  will  tho 
Uikimate  re.*uJt  ibe?  Will  tho  company 
be  solvent?] 

There  is  no  chance  of  our  pay- 
ing out  20s.  in  the  £.  Proceed- 
ing, counsel  said  that  since  the  order 
several  creditors  had  come  in  and  ac- 
cepted tho  position.  Up  to  the  present 
claims  amountinsf  to  £475,793  7s.  2d.  had 
been  filed.  It  nad  in  many  instances 
been  extremely  difficult  to  reconcile  the 
accounts  rendered  with  the  partnership 
books,  and  of  tho  total  claims  the  re- 
ceivers were  only  able  to  admit  £93,440 
148.    There  was  a  sum  of  £162,551  Ida. 


170 


"GAPE  TIMES"  Law  reports. 


linhod.  aud  I  am  not  prepared  to  say  that 
tho  finding  is  contrary  to  th«  weight  of 
t'w  evidence.  The  result  is  that  the 
appeal,  as  well  as  the  cross  appeal,  must 
bo  dismissed,  and  as  it  would  be  impo»<- 
sible  to  separate  the  costs  of  appeal  from 
these  of  the  c^o^3-appeaJ,  each  party  will 
bo  ordered  to  bear  its  own  costs. 

Mr.  Justice  Maasdorp  and  Mr.  Justice 
Ilopley   concurred. 

[Appellant's  Attorneys  :     Walker  and 
JacoDsohn.] 


[Before  the  Hon.  Mr.  Justice  M aasdokp 
and  the  Hon  Mr.  Justice  Hopley.] 


AFRICA  V.    KHENISH  MIB-     (         11M)5. 
SIGN ARY  SOCIETY.  (Feb.    27th. 

Mission  station  —  Rules  —  Eject- 
ment. 

This  was  an  appeal  from  a  de- 
cision of  the  Resident  Magistrate  of 
Tulbagh,  in  an  action  in  which  the 
Rhenish  Mi.ssioi^ary  Society  sued  for  the 
recovery  of  nnit  from  the  defendant  and 
an  order  of  ejectment.  The  Magistrate 
decided  in  favour  of  the  plaintiff,  and 
gave  judgment  for  the  rent  claimed  with 
a  decree  of  ejectment  on  the  ground  that 
the  defendant  had  infringed  certain  rules 
for  the  better  administration  of  the 
fit)ciety  by  starting  a  butcher's  shop  at 
th-3  station  at  Saron.  The  defendant  de- 
nied that  lie  ever  aigned  the  fro-called 
churt^h  laws,  or  that  he  knew  the  witness 
to  his  signature.  It  was  contended  that 
the.so  church  laws  were  tt/fm  vires,  and 
that  no  proper  notice  was  given 
in  accordance  with  the  agreement 
drawn  up  between  the  parties.  Dr. 
Greer  (for  the  appellant)  contended 
that  the  head  of  the  Missionary  Society, 
thi»  trustee,  should  have  given  notice  ac- 
cording  to  the  law,  and  he  had  no  power 
of  i*ubsbitution  Proceeding,  counsel 
said  the  administration  of  the  laws  as 
at  present  were  distinctly  cruel,  and 
there  were  instances  of  cruelty  a-gainst 
Mr.  Kling.  The  Rhenish  Missionary 
Society  really  to  some  extent  held  in 
trust  for  the  natives,  and  the 
land  was  bought  by  the  money 
people  who  subscribed  for  the  good 
of  tho  natives  and  by  the  natives 
themselves,  of  whom  the  appellant 
was  one.  There  was  evidence  that 
the  appellant  was  able  to  write  his  name, 
and  tliat  was  a  strong  presumption  that 
hci  never  put  a  mark  on  the  p«per  to  his 
name.  llie  two  principal  witnesses  for 
th«  plaintiff  were  not  produced  in  court, 
and  counsel  submitted  on  the  evidence 
that  that  contract  wa.s  not  such  as  would 
bind  the  defendant.  All  that  the  defend- 
ant sought  for  was  a  proper  administra- 
tion of  the  law^,  and  if  there  was  to  \yo  an 
ejectment  that  it  should  bo  according  to 
inQ  l<aw.  A  tender  had  been  made  for 
the  premises  from  which   the  defendant 


was  ejected  to  pay  anything  up  to  £25 
on  arbitration  by  two  mdepeudent  men, 
but  as  the  defendant  had  paid  £50  for 
the  raw  material  the  offer  was  not  ac- 
ceeted. 

Mr.  Burton  (for  the  respondents), 
071  an  intimation  from  the  Court, 
directed  his  argument  towards  a  re- 
futation of  cruelty  attributed  to  Mr. 
Kling.  When  the  case  came  before 
the  Court,  not  a  single  instance  was 
forthcoming  of  tyranny.  The  admin- 
istration had  lieeomo  more  difficult  of 
recent  years,  owing  to  the  refractory 
conduct  of  the  natives  since  the  war. 
The  50^.  which  had  been  obtained  as 
damages  in  the  Court  below  he  would 
n<»t  press  for,  and  on  the  tender,  his 
clients  were  willing  to  go  as  far  as  £25 
for   tho  premises. 

^laasdori),  J. :  There  is  tho  clearest 
evidence  tnat  the  notice  to  quit  was 
given  by  Mr.  Kling,  who  was  regarded 
by  tho  natives  as  acting  on  behalf  of 
the  trustees  of  this  property,  and  if  the 
question  of  his  agency  had  been  raised, 
the  conduct  of  the  parties  would  have 
been  such  as  to  show  that  they  had 
treated  him  throughout  as  the  agent, 
and  at  no  time  nad  guestioned  his 
authority.  Tho  jilaintiff  could  have 
summarily  ejected  the  defendant  after 
giving  a  month's  notice,  but  he  proved 
by  his  conduct  that  he  had  no  wish  to 
act  arbitrarily,  and  only  took  action 
after  having  boon  persistently  defied  by 
the  defendant.  Some  reflections  had 
been  made  on  Mr.  Kling's  treatment, 
but  he  thought  a  great  deal  of  con- 
sideration had  been  shown  to  the-  de- 
fendant. There  was  not  a  title  of  evi- 
dence of  any  injustice  towards  the  de- 
fendant. The  appeal  will  be  dismissed, 
with  costs,  the  claim  as  to  the  damages 
for  50s.  will  be  expunged,  and  the 
respondents  be  ordered  to  pay  £25,  the 
value  of  the  property,  upon  posses.sion 
being  given,  with  costs  of  the  appeal. 

Hopley,  J.,  concurred. 

[Api^ellant's  Attorney:  W.  G.  C\hi1- 
ton ;  Respondents'  Attorneys :  Walker 
and  Jacobsohn.] 


DAVIDSON   V.  WERDMULLKR. 

Mr.  Alexander  waa  for  the  appellant, 
and  there  was  no  appearance  for  tlie 
r<^pondent.  The  appeal  was  from  a 
decision  of  the  Resident  Magietrate  of 
Coloflherg.  in  which  he  upheld  an  ex- 
ception to  tho  simimons  that  a  claim 
for  £7  for  board  and  lodging,  without 
any  specified  account,  wag  vague  and 
embarrassing  in  law,  after  he  went  into 
the  merits  of  the  case.  Tho  respon- 
dent admitted  his  debt,  and  had  since 
paid  the  £7,  and  counsel  now  ap- 
pealed on  the  ground  of  ooets. 

Maasdorp,  J.,  said  the  appeal  would 
be  allowed,  wth  costs  in  both  Courts. 

Mr.  Justice  Hopley,  J.,  concurred. 


"CAPE  TUMES"  LAW  REPORTS 


171 


GENERAL  MOTION. 


Re  parte  wassenberg. 

Mr.  Rowson  moved  as  a  matter  of 
urgency  for  an  order  of  Court  for  tho 
payment  of  alimony  to  the  applicant, 
in  order  that  she  might  proeeeute  an 
action  afrainst  her  husband,  to  whom 
she  was  married  in  community  of  pro- 
perty, for  judicial  separation,  on  the 
ground  of  his  violent  temper  and  in- 
temperance. 

Mr.  W.  P.  Buchanan  put  in  the  affi- 
davit of  the  respondent,  which  sot  out 
that  the  plaintiff  had  left  him  in  Janu- 
ary last,  taking  with  her  jewellery  to 
the  value  of  £100,  household  goods, 
Taiued  at  £10,  and  £10  in  money.  Tho 
plaintiff  had  received  a  letter  of  de- 
mand to  hand  over  one  of  his  boarding- 
hoiijes  in  Bree-street,  and  tho  matter 
could  be  ^ttled  by  consent.  Affidavits 
were  put  in  by  both  sides;  on  the  one 
hand,  there  wore  accusations  of  cruelty, 
thp  defendant,  it  being  alleged,  ^oing 
»  far  aa  to  threaten  the  plaintiff,  if  she 
did  not  gfct  out  of  the  house,  he  would 
Pive  her  one  of  the  best  "doings"  she 
^'^^r  got  in  her  life,  and  on  the  other 
hand,  the  allegations  were  stronuouslv 
denied. 

Maasdorp.  J.,  said  under  the  circum- 
stances of  this  ca.se  the  Court  ought  to 
''J*Y  the  u.sual  order.  The  respondent 
would  be  ordered  to  pav  to  tho  appli- 
Jjnt^  attorneys  £30  forthwith  towards 
:!j-  ^uit,  and  £6  a  month  a.9  alimon.v, 
^f  first  pavmcnt  to  be  made  on  the  7th 
oUext  month. 


SUPREME  COURT 


[Before  the  Chief  Justice  (the  Right 
gon.  Sir  J.  H.  db  Villibbs,  P.O., 
K.C.M.a.,  LL.D.).] 


■h 


^f   GRAND    JUN'CTION    f        1905. 


RAILWAYS.  (Feb.   28th. 

Partnership  —  Receiver  —  Distri- 
bution of  assets. 

« 

A  proclgional  ordrr  of  seques- 
tration having  been  marie 
agaitist  a  imrtnership^  the 
erfxlitora  and  ]mrtnfrn  sifftied 
a  eoment  jmper  that  the  seques- 
tration ahouhl  he  discharged 
and  that  receivers  should  he 


(fppointed  to  realise  the  estate 
and  distribute  the  proceeds  in 
accordance  with  the  legal  order 
of  preference  in  insolvency. 
The  Court  having  appointed 
the  applicants  as  receivers  in 
terms  of  the  consent  paprr^  the 
receivers  proceeded  to  realise 
the  assets.  The  respondents^ 
who^  as  creditors^  had  signed 
the  consent  ^mper^  proved  their 
claim^  bnf  refused  to  plaee. 
a  value  on  certain  securitits 
which  the  If  held  for  their  debt 
in  terms  of  thf  SOth  nection  of 
the  Insolvent  Ordinance. 

Held,  that  the  applicants  ivere 
pntitled  to  innut  upon  a  value 
being  placed  on  the  security. 


Mr.  Schre<in.er.  K.C,  on  In^half  of  the 
ReceivofB  of  the  (.J rand  Junction  Rail- 
ways. prewHMited  the  ftft^t  rejXJrt  for  con- 
firm action.  Mr.  W.  P.  Buchianan  ap- 
peared to  on>poj*e  c<»rtajn  recommenda- 
tions on  lx>half  of  tiie  London  and 
Westminster  Bank,  and  Dr.  Uainsford 
opposed  other  matters  on  bethalf  of 
creditors  in  Messrs.  Reunert,  Von 
Laer  and  <^. 

Mr.  Schreiner.  in  presenting  tho  re- 
port, mentioned  in  tho  first  instance  tho 
recommendation  that  Mr.  Hills,  who  wa« 
appointed  receiver  of  the  partiiership 
estate  in  England,  and  who  bore  tho 
bnmt  of  the  work  in  carrying  through 
the  actions  against  tho  (Government, 
should  be  paid  for  his  trouble  and  out- 
of-pooket  expenses  £3,200.  Tho  rei>ort 
had  lain  for  inspection  for  tho  usual 
period,  and  the  only  opposition  camo 
from  his  learned  friend  s  clients.  Most 
of  the  debentures  were  held  by  tho  two 
banks— tho  A.  B.C.  and  tho  London  and 
Westminster  Bank — the  latter  of  which 
war,  represented.  Both  banks  lodged  ap- 
peals against  the  iudgment  of  the  Su- 
preme Court  that  the  debentures  in  the 
limited  company  wore  not  preferont  in 
the  estate.  The  reeeivera  had  now 
drawn  up  a  recommendation  to  pay  the 
concurrent  creditors  5s.  in  the  £. 

[De  Villiers,  C.J. :  WliaA  will  tho 
ultimate  result  ibe?  W^ill  the  company 
bo  solvent?] 

Thoro  is  no  chance  of  our  pay- 
ing out  2(Xj.  in  the  £.  Ppoceed- 
ing,  counsel  said  that  since  the  order 
several  creditors  had  come  in  and  ac- 
cepted the  position.  Up  to  tho  present 
claims  amounting  to  £475,793  79.  2d.  had 
been  filed.  It  nad  in  many  instances 
been  extremely  difficult  to  reconcile  the 
accounts  rendered  with  the  partnership 
books,  and  of  the  total  claims  tho  re- 
ceivers were  only  able  to  admit  £93,440 
14s.    There  was  a  sum  of  £162,551  Ids. 


172 


CAPE  TiAiES"   LAW  REPORTS. 


lOd.  available  for  distribution.  It  was 
propose<l  to  pay  5s.  in  the  £  to  undis- 
puted claimants,  and  that  would  absorb 
£24,763  13s.  4d.  and  leave  £137,788  68. 
6d.  in  hand,  which  would  be  more  than 
Bufficient  to  pay  a  like  dividend  upon  all 
claims  at  present  in  dispute,  including 
the  whole  of  the  limit<^d  company's  de- 
benture issue,  plus  interest  to  llic  d:ite 
of  the  receivers'  appointment.  If  the 
London  and  Westminster  Bank  and  the 
trustees  for  the  debenture-holders  proved 
Bu<.ce:»sful  in  their  appeal  agrainst  the  re- 
cent judgment  of  the  Supreme  Court, 
and  the  debenture-holders  or  the  greater 
part  of  them  be  given  a  right  to  rank  at> 
preferent  creditors  on  the  partnership 
estate,  the  receivers  would  not  have 
sufficient  funds  available  to  meet  the.<^c 
preferent  claims.  Tlie'  appellants  had 
not  gone  on  with  the  appeal,  and  coun- 
8<.»1  thought  they  should  not  be  allowed 
to  hang  up  the  administration  in  a  |>er- 
manent  way. 

[De  Vi.ners,  C.J. :  Wotild  there  be 
sufficient  to  pay  out  a  dividend  on  the 
dei)cn'tures  ?] 

Mr.  Schreiner :  Ye«.  pursuant 
to  your  lordship's  order.  It  was 
felt  that  _the  appellants  should  b> 
puit  on  terms  as  to  *he  prosecution  of 
tho  appeal.  They  had  not  yet  taken 
the  papers  away,  while  the  unhappy 
creditors  were  kept  out  of  their  divi- 
dends. Coun.sel  then  proceeded  to 
discuss  the  possibiljty  of  getting  security 
from  the  creditors  in  case  the  appeal  wys 
allowed,  and  in  reply  to  his  lord.ship. 
said  there  was  no  chance  of  what  they 
had  in  hand  meeting  the  claims  of 
all  of  the  debenture-holders.  The  re- 
ceivers did  not  think  themselves  justified 
in  putting  a-sido  an  amount  to 
meet  the  claims  of  the  London  and 
Westminster  Bank. 

[Ue  Villiers,  C.J.  :  The  position  i^ 
most  unfortunate.  It  may  take  two 
years    'befoix»    the  appeal    is   heard.] 

Mr.  Schroiner  then  went  on  to  men- 
tion the  different  items  on  which  the 
receivers  asked  the  instructions  of  the 
Supreme  Court.  They  were  as  follows : 
Witnesrei?'  expenses  in  the  ease  of  HiU.^ 
V.  The  Colomal  Oorenwiettt,  £201  15s. 
9d.,  as  preferent;  Mr.  Hills's  expenses. 
£3,200;  Mr.  Tonkin's  salary,  £587  10s. 
With  regard  to  the  disputed  claims,  coun- 
sel asked  the  Court  to  fix  a  time  to 
bring  the  matters  to  some  finality,  and 
three  months  was  suggested.  On  the 
cjuestion  of  interest,  it  was  suggested  that 
the  same  procedure  should  be  adopted  as 
in  insolvency,  and  as  regards  Messrs. 
John  Walker  and  Son's  claims  and  their 
objections,  it  was  also  asked  that  a 
I)eriod  should  be  fixed  by  the  Court  for 
presentation.  Then  came  the  matter 
upon  which  'hie  learned  fcrimid,  Dr. 
Rain.sford,  appeared,  that  of  the  deben- 
tures held  as  security;  and  it  was  pro- 
posed by  the  receivers  to  follow  the 
usual  course  in  insolvency,  and  call  upon 
these  people  who  held  debentures  of  the 


limited  company  as  security  for  their 
claims  to  place  a  value  on  their  securi- 
ties. The  receivers'  fees  was  another 
matter  upon  which  the  Court  was  asked 
for  instruction. 

Dr.  Ramsford  put  in  the  affidavit  of  a 
partner  in  the  firm  of  Messrs.  Reunert, 
V<in  Laer  and  Co.,  which  set  out  that 
the  firm  were  creditors  to  the  extent  of 
£2,654  8s.  4d.  and  interest,  for  which 
they  held  thirty  debenture's  of  £100  each 
as  security.  Counsel  submitted  that  the 
receivers  were  not  entitled  as  such  to  call 
upon  debenture  holders  to  place  a  value 
upon  their  security,  and  he  respectfully 
objected  to  such  power  being  given  to 
them. 

Mr.  Schreiner  put  in  an  answering  affi- 
davit by  Mr.  E.  R.  Syfret,  one  of  the 
official  receivers,  which  set  out  that 
Messrs.  Fairbridge,  Arderne  and  Lawton, 
on  Iwhalf  of  the  creditors  they  represent- 
ed, including  Messrs.  Reunert,  Von 
Luer  and  Co.,  signed  a  consent  paper. 

Dr.  Rainsford  Jiaving  been  heard  in 
argMmc'it, 

Mr.    Schreiner    having    been    heard   in 

Dc  Villiers,  C.J. :  I  consider  it  a  great 
pi<:y  that  the  Court  was  ever  induced 
to  act  upon  the  consent  paper.  Most 
persons  interested  in  this  estate  were  no 
doubt  parties  to  that  consent  paper,  but 
the  result  of  these  proceedings  has  been 
to  show  that  it  was  a  most  anolamou.s 
proceeding  to  appoint  receivers  to  an 
estate  which  is  practically  insolvent.  I 
am  quite  sure  that  a  great  deal  of 
trouble  and  inconvenience  would  have 
been  avoided  if  the  original  sequestra- 
tion had  gone  through,  and  the  estate 
administered  as  an  insolvent  estate. 
The  Court,  of  course,  could  not  know 
all  the  facts  of  the  case  when  everyone 
apparently  interested  in  the  matter 
came  forward  with  a  consent.  The 
Court  was  induced  to  act  upon 
the  consent,  but  I  am  quite  satisfied, 
had  everything  been  known  then  which 
has  since  appeared,  the  order  would 
not  have  y)een  made.  But  the  order 
stands,  and  the  best  must  now  be  made 
of  it.  The  Court  must  endeavour  now 
as  nearly  as  posf^ible  to  administer  this 
estate  as  if  the  .-sequestration  had  actu- 
ally been  carried  out.  and  in  that  view 
th>  preferent  claim  of  £1,871  16s.  6d., 
which  is  the  first  item  to  be  decided, 
should  l>e  allowed.  It  is  clear  that  no- 
body could  in  the  result  l>e  prejudiced 
bv  the  admission  of  that  claim  which  is 
clearly  of  a  preferent  nature  for  rent  and 
expeufses  of  attachment,  etc.  The  sec- 
ond question  to  be  decided  is  whether 
tlK>  rec*>ivers  are  to  be  allowed  to  pay 
out  a  dividend  of  5s.  in  the  £1  to  the 
creditors.  That  is  a  matter  entirely  for 
the  receivers  to  decide  upon.  If  they 
have  the  money  they  will  have  to 
pay  it  out,  but  the  question  is,  have  tliey 
money  in  hand  to  the  extent  of  available 
assets  for  the  payment  of  the  dividend. 
It  appears  to  me   that  bo   long  as   th^ 


"CAPE  TIMES"   LAW  REPORTS. 


173 


appeal  case  oE  the  London  and  Weefcinin- 
fitet  Bank,  is  undecided,  it  is  impossible 
to  say  that  mone^  available  is  in  the 
hinds  o!  the  receivers  to  pay  *  out  the 
CTcditoTs.  It  is  admitted,  if  the  London 
and  Westminster  fiajik  should  succeed 
ii  tW  appeal^  that  the  amount  of  the 
preferont  dainit>  would  practically  ex- 
haust the  amount  now  proposed  to 
be  paid  to  the  creditors.  1  am  not 
prepared  to  take  upon  myself  the 
responsibility  of  authorising  the  re- 
ceivers to  pay  out  this  money  until 
»h*  apix'al  has  been  decided.  I  am 
yuite  prepared  to  express  a  strong  opin- 
ion that  it  is  the  duty  of  the  bank  to 
proceed  with  all  convenient  «peed.  It 
goes  without  saving  that  they  should 
do  M).  1  do  not  know  that  any  order  to 
that  effect  would  have  any  practical 
«ffoct  in  the  present  case,  anci,  there- 
"»w,  I  content  myself  at  present  with 
th?  expnssion  of  opinion  to  that  effect 
that  it  is  the  duty  of  the  bank  to  lose 
^i  time  in  prosecuting  their 
■PI*al  for  the  i)urpo8e  of 
meeting  this  very  great  inoonvonienco 
to  which  the  creditors  of  this  companv 
>je  subjected.  The  receivers  could, 
€-1  course,  pav  out  the  money  upon  their 
own  responsibility,  but  they  would  have 
to  find  security,  as  required  by  the  15th 
^»on  of  the  Charter  of  Justice,  and 
then  it  would  be  competent  for  them  to 
pay  out  the  Ss.  in  the  £  to  the  credi- 
tors. If  ^ig  appeal  should  be  allowed, 
of  course,  the  persons  giving  security 
^•J  then  in  some  way  or  other  have  to 
aatisfy  the  London  and  Westminster 
D»nk  for  the  aroourrt  of  their  security. 
More  than  that  I  cannot  say  upon  this 
point.  The  next  question  upon  which 
•"y  opinion  is  asked  is  the  question  of 
*he  witness's  expenses.  The  informa- 
|>on  upon  that  point  is  not  sufficient  to 
JMiify  me  in  ordering  that  these  wit- 
"**e8'  ezoeiises  shall  form  part  of  the 
f<«ta  of  aaministration.  It  may  well  bv» 
^  a  further  stage  that  it  may  be  shown 
J™t  the  money  has  been  legally  and 
^*'f»y  expended  by  Mr.  Hills,  and  it 
*ui  then  be  dealt  with  in  the  same  way 
**  I  propose  to  deal  with  the  next 
"cni;  but  at  prasent  it  is  not  perfectly 
J|*^r.<o  me  thai  the  Court  would 
"®  justified  dn  ordering  the  ex- 
!*"*<  of  these  whnes.ses  to  be 
treated  ««  part  of  the  coets  of 
JJ«V"«tration.  With  regmd  to  Mr. 
«iJl*  expense's,  that  appears  to  be  a 
W'rfectly  legitimate  claim.  The  Court 
Hn^if^  of  the  time  and  trouble  Mr. 
P|U  haa  expended  in  safeguarding  thi^ 
h  *  j*'^  of  this  companv,  and  what  he 
5j'  "One  has  been  entirely  for  the  bene- 
°*^  of  the  administration  after  the 
IS  ^*^  been  put  into  the  hands  of 
jj^j^ivers,  and  for  the  trouble  which 
^  has  taken  in  the  matiter,  it  appears  to 
^  "«  is  entitled  to  payment  of  moneys 
«»Peaded  by  him  on  behalf  of  the 
*****«.  The  Court  ^(ill  therefore  moke 
*9  order  as  prayed  for  £3,200,     subject 


1 


to  the  production  of  Toucheva.  As  to 
Mr.  lx>nMn's  i»alary  ihait  etandfe  on 
a  similar  footing.  It  was  earned  by 
him  for  the  benefit  of  the  administra- 
tion, and  the  Court  will  allow  the  £587 
as  part  of  the  costs  of  administration. 
The  next  question  is  as  to  the  period 
to  be  fixed.  Well,  in  my  opinion,  some 
perif)d  should  be  fixed,  but  tlie  time 
proposed  is  certainly  too  short.  I  think 
a  full  twelve  months  ought  to  be  al* 
lowed,  and  I  have  less  hesitation  in 
allowing  that  period,  seeing  that  it 
seems  extremefy  improbable  that  any 
portion  of  tne  money  will  be 
paid  out  within  that  period. 
The  Court  will  therefore  fix  the  period 
proposed  in  section  24  of  the  report,  to 
make  the  period  twelve  instead  of  three 
months  from  the  1st  January,  1905.  The 
Court  will  fix  a  similar  period,  namely, 
twelve  months,  until  31st  December, 
1906,  in  respect  of  the  matters  in  section 
26  and  27  of  the  report.  In  regard  to 
Mr.  Walker's  claim,  and  the  objections, 
of  course  a  decree  of  silence  could  have 
been  applied  for;  but  I  am  not  sure 
if  the  full  period  of  twelve  months  would 
not  elapse  before  the  decree  would  be 
made.  Walker  would  have  to  be  served 
by  citation,  and  a  very  long  period 
would  elapse  before  the  decree  of  per- 
petual silence  would  be  made.  I  con- 
sider, under  all  the  circumstances,  a 
longer  period  should  be  allowed,  so  as  to 
enable  everyone  interested  to  bring  his 
claim.  Then  as  to  the  interest,  the 
Court  will  fix  the  rate  of  interest  in  terms 
of  section  25  at  6  per  cent,  to  the  14th 
November,  1903,  and  after  that  period 
no  interest  will  be  allowed.  Section  28 
deals  with  tlie  debentures  held  as  securi- 
ties, and  that  deals  with  Dr.  Rainsford's 
objection  on  behalf  of  Messrs.  Reunert, 
Von  Laer  and  Co.  In  my  opinion,  that 
objection  cannot  be  sustained.  It  was 
clear  from  the  evidence  they  were  parties 
to  the  consent  paper,  on  which  the  order 
of  Court  was  made,  and  part  of  their 
consent  was  to  this  effect :  '*  The  receiv- 
ers to  have  the  power  to  sell  and  realise 
any  further  assets,  including  movable 
and  immovable  property,  and  the  rail- 
way material  attached,  etc.  The  said 
receivers  to  frame  a  distribution  account 
of  all  money,  and  to  di.^'tribute  the  said 
money  in  accordance  with  the  legal  order 
of  preference  in  insolvency."  In  order 
to  do  thait,  it  is  necessary  that  every 
person  having  a  security  who  claims 
f^hould  ipu<t  A  value  on  that  security. 
I  do  not  see  that  it  is  any 
hardship  on  these  creditors  that  they 
shoxild  place  a  value  on  these  securities, 
and  that  part  of  the  receiver's  report 
which  relates  to  the  securities  should,  in 
mj  opinion,  be  acceded  to.  The  Court 
will  therefore  make  an  order  in  terms  of 
section  28.  The  Court  will  also  allow  the 
receivers'  fees  at  the  rate  of  2^  per  cent. 
As  to  the  costs  of  the  application,  they 
will  be  paid  by  the  Receivers,  except  the 


174 


••CAPE  TIMES"   LAW  REPORTS. 


costs  of  Messrs.  Reunert,  Von  Laer  and 
Co.,  which  will  be  paid  by  the  latter. 

[Attorneys. — For  the  Receivers: 
Moore  and  Son ;  for  the  London  and 
We.stniinster  Bank :  Findlay  and  Tait ; 
for  Reunert,  Van  Ijaer  and  Co. :  Fair- 
bri(lj?e,   Arderne   and  Lawton.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  IIopley.] 


ADMISSION. 


5       1905. 
<Peb.    2Stb. 


Mr.  J.  E.  R.  do  Villicrs  moved  for  the 
admission  of  George  Arthur  Osier,  as  an 
attorney  and  notarv. 

Ordered  to  fitand  over,  ponding  pro- 
duction  of  certain  affidavits,  as  to  ser- 
vice. 

The  affidavits  were  afterwarda  stated 
to  bo  in  order. 

The  apnlication  was  thereupon  grant- 
ed, and  tne  oaths  administered. 


PROVLSIONAL    ROLL. 


O  OK  DON     MITCHKLL    AND    CO.     AND 
ANOTHER  Y.  SEQAL. 

Mr.  Struljen  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Order  granted. 


NURICK  V.  LEVENSON. 

Mr.  Du  Toit  moved  for  the  final  ad- 
judication of  defendant's  estate  a«  insol- 
vent. 

Order  granted. 


QOURLAT  AND  CO.  V.  VASSEY. 

Mr.  M.  Bisset  moved  for  the  final  ad- 
judication of  defendant's*  estate  as  insol- 
vent. 

Order  granted. 


PATE  V.  BLUMBERG  AND  SHER. 

Mr.  Sutton  moved  for  the  final  ad- 
judication of  both  private  and  partner- 
ship estates  as  insolvent. 

Order  granted. 


MCCBEADIR  V.  GOWIE. 

Mr.    W.  Porter  Buchanan  moved    for 
provisional  sentence  for  £20,  on  an  un- 


satisfied judgment  of  the  Resident  Mag- 
istrate's Court,  £3  7s.  6d.  taxed  costs, 
2i  6d.  messenger's  fees,  and  for  certain 
ground  at  WynVjerg  and  Hout  Bay,  to 
be  declared  executable. 

Defendant,  in  a  written  statement,  ad- 
mitted a  debt  of  £16  ITs.  He  a.sked  for 
stay  of  judgment  pending  result  of  a 
meeting  of  his  creditors,  which  had  been 
called  for  that  day  (Tuesday).  He  offer- 
ed £1  a  month. 

Provisional  sentence  granted  as  pray- 
ed. 


GREENBBRG  AND  CO.  V.  ABDOL  AND 
KABSOL. 

Mr.  Lewis  moved  for  provisional  sen- 
tence on  a  promissory  note  for  £20,  with 
interest  a  tempore  morae  and  costs. 

Order  granted. 


ABBA  HAMS  V.  ABEND. 

Mr.  Swift  moved  for  provnional  sen- 
tence for  £850,  upon  certain  conditions 
of  sale,  with  interest  and  costs. 

Order  granted. 


6CHULTZ  AND  CO,  V.  LABAHN. 

Mr.  Russell  moved  for  a  decree  of 
civil  imprisonment  upon  an  unsatisfied 
judgment  for  £65,  and  costs.  At  the 
last  hearing,  defendant  set  up  a  counter- 
claim, but  he  had  taken  no  steps  to 
sulistantiate    it  during    the  interval. 

Defendant  did  not  now  appear. 

Order  granted. 


IMPEBIAL  COLD  .STOBAGE  V.  BBOIDE. 

Mr.  Douglas  Buchanan  moved  for 
judgment  upon  an  unsatisfied  judgment 
of  the  R.M.'s  Court  for  £55  Is.  Id.,  and 
£2  7s.  4d.  taxed  coste,  and  for  certain 
property  at  Wynberg  to  be  declared  exe- 
cutable. 

Order  granted. 


VAN  ZYL  AND  BUI88INNE  V.  SIEO. 

Mr.  W.  Porter  Buchanan  moved  for 
provisional  sentence  'on  a  mortgage  bond 
for  £500,  and  for  the  property  specially 
hypothecated  to  be  deolarod  executable. 

Order  granted. 


W.  AND  G.  SOOTT,  LTD.  V.  KOHNE. 

Mr.  Roux  moved  for  tho  final  adjudi- 
cation of  defendant's  estate  as  insolvent. 
Order  granted. 


n 


CAPE  TIMES"  LAW  REPORTS. 


176 


I 


THE8EH  AND  CO.   V.  DB  VILLIEB8. 

Dr.  Rainsford  moved  for  provisional 
lentenw  for  £57  Ss.  3d.,  upon  a  promis- 
wry  note,  with   interest  and   costs. 

Order  granted. 


KESXEB  AND  CO.  V.    60LDBBR0. 

Mr.  Guteche  moved  for  provisional  sen- 
tenc«  for  £95  on  a  promiaaory  note  pay- 
able in  Oudtshoom,  and  costs. 

Order  granted. 


CHURCHILL  V.  CLAIN. 

Mr.  Pycmont  moved  for  provisional 
sentenco  for  £2,200.  leas  £91  9s.  3d., 
paid  on  account,  on  &  mortgage  bond, 
due  by  reoMn  of  non-payment  of  in- 
jerest,  also  for  the  property  specially 
hypothecated  to  be  declared  executable, 

A-j*^  interest  and  eoets. 

Order  granted. 


VAN  DER  SPUY  V.  KalSER. 

Mr.  Sutton  moved  for  certain  pro- 
Pertv  hypothecated  under  a  covering 
w»nd  to  be  declared  executable.  Pro- 
visional sentence  had  been  obtained 
under  another  bond  for  £5,600  in  Janu- 
*{?•  *od  the  property  declared  execut- 
ive. H©  also  applied  for  provisional 
sentence  on  the  present  bond,  but  he 
I'n  not  ask  for  the  property  to  be  de- 
clared executable  under  that  bond,  hence 
fw  pre^nt  application. 

tiopley,  J.,  at  first  said  that  the  pre- 
*nt  application  was  unnecessary,  but  at 
n,.  i  ;t*«e  an  order  was  granted  as 
Pf»yed,  but  costs  to  be  restricted  to  one 
Emmons. 


WHITAKEK  V.  HOLMES. 

Mr.  Alexander  moved  for  provisional 
^ntenre  on  a  judgnoent  of  the  Resident 
>^«frtttrate  of  Stutterheim  for  £18  79. 
u:'i  ,  ^^^  ^o*'s,  and  ako  for  certain 
jnded  property  set  out  in  the  summons 

fiS  ^'^^^w^d  executable. 

""l«r  granted. 


HCLEOD  T.  IIULLER. 

»pm  '  ^*J"^n   moved    for      provisional 
r^lT®  for  £60,  balance  of    mteroat  on 
*  mortgage  bond,  and   costs. 
'JTder  granted. 


ILUQUID  ROLL. 


^«BEBT80N  AND  CO.    V. 
PLETCHEB. 

nn«Jl  ^-.Sisset  moved   for  judgment 
««*r  Rule  319,   for   £164      U.      lOd., 


(       J906. 
J  Feb.   i'8th. 


with  mterest  a  tempore  tnorae  and  costs, 
defendant  having  been  barred  from 
pleading. 

Dr.  Greer  drew  his  lordship's  atten- 
tion to  the  fact  that  an  application  ap- 
peared in  the  motion  list  by  the  defen- 
dant, in  which  he  sought  to  have  the 
bar  removed. 

Ilopley,  J.,  said  that  he  would  first 
hear  the  motion  for  removal  of  bar. 

Dr.  Greer  read  an  affidavit  by  defen- 
dant's attorney  (Mr.  A.  R.  O'Brien), 
who  stated  that  the  plea  was  actually 
filed  within  the  period  of  24  hours  al- 
lowed by  plaintiffs.  He  believed  that 
defendant  had  a  good  defence  to  the 
claim. 

Mr.  Bis.«et  road  an  answering  affidavit 
by  a  clerk  in  the  employ  of  plaintiffs' 
attorneys  (Measrs.  Reid  and  Nephew), 
who  said  that  the  plea  was  not  filed 
within  the  period  allowed.  A  further 
aflSdavit  by  Mr.  McDonald,  accountant 
of  the  plaintiff  firm,  said  that  he  be- 
lieved  the  defendant  had  not  a  good 
defence  to  the  claim,  and  that  ho  waa 
simply  trying  to  gain  time. 

Dr.  Greor  submitted  that  the  notice 
of  bar  was  improperly  act  down  by 
plaintiffs'  attorneys.  Defendant  be- 
lieved that  ho  had  a  solid  ground  of 
defence.  lie  admitted  the  debt,  but 
said  there  was  an  agreement  that  ho 
should  not  be  called  upon  to  pay  until 
the  biiildinpr  had  been  completed,  and  a 
mortgage  for  £1,000  had  been  ar- 
ranged. 

Hopley,  J.,  said  that  judgment  would 
be  granted  as  prayed  under  Rule  319, 
and  the  application  for  removal  of  bar 
would  bo  refused,  with  costs. 


BEELIOER  V.  HOFFMAN  AND  BAACKB. 

Mr.  Alexander  moved  for  judgment 
for  £135  178.,  under  Rule  319,  on  a 
declamtion.  for  balance  of  account  due 
for  professional  services  rendered  as 
architect,  defendants  having  been 
barred. 

Order  granted. 


PICK  FORDS,  LTD.  V.  HERMANN. 

Dr.  Greer  moved  for  judgment,  under 
Rule  329d,  for  £44  4s.  8d.,  servicea 
rendered  and  money  paid,  plaintiff 
tendering  delivery  of  certain  casoe  of 
furniture. 

Order  granted. 


OHLSBON'B  CAPE  BREWERIES  V.  BMDIN 

AND  00. 

Mr.  Struben  moved  for  judgment, 
under  Rule  329d,  for  ^  interest  and  costs, 
the  capita]  sum  having  been  paid  since 
issue   of  summons. 

Order   granted. 


170 


CAPE  TIMES"   LAW  REPORTS. 


BENNETT  V.  FRAME* 

Mr.  P.  S.  T.  J0DO8  moved  for  judg 
mentj  under  Rule  329d,  for  delivery  of 
certain  two  shares  in  the  Capo  Peninsula 
Lands  and  Water  Syndicate,  or,  in  de- 
fault, refund  of  £50,  and  also  provisional 
si^ntonce  for  £25.  Counsel  said  that 
the  matter  had  boon  standing  over  to 
enable  the  plaintiff  to  explain  why,  see- 
ing that  the  summons  was  issued  in 
August  lafiit,  the  case  had  only  just 
been  proceeded  with.  He  read  an  affi- 
davit by  Mr.  A.  W.  Steer,  plaintiff's 
attorney,  who  stated  that  the  delay  had 
been  caused  through  negotiations  for  a 
settlement.  He  asked  for  judgment  in 
terms  of  prayer  (b)  for  £50,  and  also  for 
£25,  and  interest,  in  terms  of  note,  and 
costs  of  suit. 

IHopley,  J. :  You  do  not  ask  for  the 
shares  ?] 

Mr.  Jones :  I  do  not  think  there  are 
any  such  shares  in  existence. 

Judgment  in  terms  of  prayer  (b),  ana 
also  for  socond  portion,  as  prayed,  wImi 
costs. 


REHABILITATION. 


Mr.  Van  Zyl  applied  for  the  re- 
habilitation of 'Frederick  Johan  Sangc?r- 
haus. 

Granted. 


GENERAL   MOTIONS. 


KROON  V.   KROON. 


i 


1005. 

Feb.    28th. 


Mr.  M.  Bisset  moved  for  a  decr»3o  of 
divorce,  the  defendant  havin?  failed  to 
return   to  or  roceivo  the  plaintiff. 

Order  granted  for  divorce,  custody  of 
the  child,  and   costs  of  suit. 


Ex  parte  clokte. 

Mr,  McGregor  moved,  as  a  matter  of 
urgency,  for  the  attachment  of  certain 
debts  owing  by  persons  residing  in  the 
district  of  Barkly  East,  in  part  satisfac-  , 
tion  of  a  judgment  for  £621  obtained  by 
petitioner  against  John  Hamilton  Die- 
praem,  who  resided  in  the  Orange  River 
Colony,  and  therefore  beyond  the  juris- 
diction of  the  Court. 

Rule  7iisi  granted,  calling  upon  the 
respondent  and  his  alleged  debtors  to  1 
show  cause,  on  the  16th  April,  why  the 
said  monies  should  not  be  attached,  and 
applied  in  Mitisfaction  of  the  judgment 
obtained  by  applicant  against  the  re- 
spondent, and  further  why  they  should 
not,  as  the  various  amounts  fall  due,  bo 
handed  to  the  High  Sheriff  or  his  lawful 
deputy,  why  the  rule  should  not  operate    ' 


a^  an  interdict,  and  why  respondent 
should  not  be  ordered  to  pay  costs  of 
this  application. 


RSTATB  WILLIAMSON  V.   BERGL. 

Mr.  Upiogton  moved  <m  behalf 
of  the  trustees  in  the  insolvent  estate 
Williamson  to  have  expunged  a  certain 
proof  of  debt  for  £5,077  Ss.  lid.,  in  the 
record  of  proceedings,  at  a  meeting  of 
creditors,  before  the  R.M.  of  East  Lon- 
don. Mr.  Gardiner  was  for  the  respond- 
ent.  Alexander  BergL 

The  affidavit  of  Andrew  Williamson, 
.*ta/ted  't/hat  the  account  filed  by 
Heriry  George  Drake,  or  Bcrg-rs 
attorney,  a&  -proof  of  debt  for 
£5,077  8s.  lid.,  was  incorrect,  and  that 
the  amounts  referred  to  in  annezuro  (b) 
were  incorrectly  debited  to  him  (Wil- 
liamson). This  annexure  set  forth  a  lia- 
bility upon  certain  promissory  notes,  and 
further  stated  that  the  respondent  had 
security  as  follows:  1,000  snares  Buffalo 
Supply  and  Cold  Storage  Company,  at 
£1 ;  2,200  Orange  Diamond  shares  at 
15s. ;  a  racehorse  called  Graspan,  valued 
at  £500;  and  two  horses,  valued  at  £50. 
He  said  that  the  Buffalo  Company  should 
Ik)  debited  with  £700  of  this  amount,  and 
denied  that  his  estate  was  liable  for  these 
amounts.  Deponent  also  said  that  Gra8« 
pan  was  sold  by  him  to  BergI  for  £2,000, 
but  that  he  agreed  to  refund  £500  to 
Bergl  if  the  horse  did  not  realise  more 
than  £1,500.  He  submitted  that  for  the 
horse  he  should  be  credited  with  £1,500, 
and  not  £500.  He  added  that  the  annex- 
ure marked  '*  C "  was  the  correct  ac- 
count. TTiat  account,  after  deducting 
from  the  proof  of  debt  £700  Os.  5d.,  that 
he  said  was  owing  by  the  Buffalo  Com- 
pany, and  bringing  up  the  securities  at 
their  true  value,  showed  a  balance  in 
favour  of  insolvent's  estate.  Mr.  Uping- 
tori  read  a  further  affidavit  by  Mr.  Shaun 
of  Graham's  Town  (one  of  the  trustees), 
who  said  that  on  April  18,  1904,  the 
Orange  Diamond  shares  were  selling  at 
22s.  each,  and  he  notified  to  Bergl  his 
election  to  take  assignment  of  the  shares, 
seeing  that  Bergl  bought  them  up  at 
15s.  He  asked  for  delivery  to  SLmkins 
and  Adams,  brokers,  but  the  said  shares 
had  not  been  delivered.  Counsel  added 
that  all  the  indebtedness  was  in  respect 
of  promissory  notes  to  Bergl,  except  one 
in  favour  of  one  Tickey,  which  was  now 
held  by  Bergl,  he  alleged.  The  total 
amount  of  debts  brought  up  was  £14.716 
9s.  7d..  against  which  £9,639  Os.  8d.  was 
credited,  leaving  a  balance  of  £5.077  88. 
lid.,  which  Bergl  alleged  was  partly  se- 
cured by  the  shares  and  racehorse.  Mr. 
Upington  added  that  he  thought  it  would 
be  very  difficult  for  the  Court  to  decide 
this  matter  on  motion,  as  affidavits  had 
been  filed  by  the  other  side,  contradict- 
ing several  of  the  statements  in  appli- 
cant's flffidavita. 


"CAPE  TBIES*'  LAW  REPORTS. 


177 


Mr.  Gardiner  said  that  respondent  was 
very  much  in  the  hands  of  the  Court. 
He  would  be  glad  if  be  could  get  a  de- 
cision on  motion  on  account  of  the  ex- 
pt^nse  of  a  trial. 

Hopley  J.,  said  he  would  hear  the 
affidavit  of  Mr.  Bergl. 

Mr.  Gardiner   then   read  Mr.   Bergl'a 
affidafit     Deponent  said  he  filed  proof 
0.  debt  against  the   insolvent  c.^tate   in 
October,  1903,   when   the  Orange  shares 
were  selling  at  or  about  15s.     Up  to  the 
18th  April,  1904,   he  received  no  notice 
from  the  trustees,  asking  for  the  assign- 
ment of  the  shares.     On  the  18th  April 
the  shares  were  selling  at  198.  6d.      In  a 
letter  he  sent  to  the  trustees  on  the  19th 
April  he  refused  to  agree  to  the  course 
the  trustees  wished   him  to   adopt,   and 
itated  that  he  required  a  true  valuation 
to  be  made,  and   refused  to  hand  over 
any  part  of  his  security.     The  proof  of 
debt  as  anneiced  was,    he  declared,  cor- 
reci  the  Buffalo  Company  was  not  liable, 
wt  the  estate  Williamson  was  liable  for 
the  same.     He  agreed  to  lend  to  Wil- 
hamson  £3,000,  on  condition  of  security 
being  given  in  shares  in  the  Buffalo  Com- 
Pjny.    Without  his  knowledge,  the  sum 
w  £3,950  was  advanced  by  his  manager. 
He  denied  that  he  bought  the  racehonse 
Gracpan,  and  said  it  was  taken  by  his 
manager  as  security,   and   kept  at"^Wil- 
lianiion's  expense.    It    was    raced       on 
tarious  occasions,  but  only  once  with  suc- 
««s,   winning    about    £20.      The    horse 
wte  subsequently  sold  in  Cape  Town  for 
£125.    As  to  the   Buffalo  shares,   these 
^re  not  sold  to  Williamson,  but  were 
deposited  by  him  with  the  manager  as 
security   for   moneys    advanced    bv    de- 
ponent. 

Hopley,  J.,  said  that  with  such  com- 
tradictory  statements  on  the  affidavits  it 
wsi  impossible  to  decide  the  matter  on 
motion.  The  parties  must  proceed  by 
wtion,  oosts  to  abide  the  result. 


Bt  parte  SMITH. 

Mr.  P.  S.  T.  Jones  moved,  on  behalf 
ot  the  petitioner,  widow  of  Johan  Carol 
J^Diith.  for  leave  to  temporarily  break 
»;aso  of  occupation  of  Milton  House,  Sea 
*^oint,  and  for  the  executors  to  continue 
Pa.^ment  of  £22  a  month  as  provided  by 
\|  */J^  during:  a  period  of  six  months*. 
Ji«.  Smith  proposed,  on  account  of  ill- 

1M    'o*^  pay  a  visit  to  England. 

Mr.  Struben,  on  behalf  of  the  execu- 
^°^'  «>nK>nted   to  the   application. 

"wr  granted  an  prayed. 


8E0.\L  V.  BSTATE  PINKKLSTEIN  BROS. 
▲MO  ANOTHER. 

Mr.  Searle,   K.C.   (for   defendants     in 
J«*  action),  moved    for  the    removal  of 

if  ***T^***^  "**^*  Circuit  Court  at  George. 
«r.  J.  E.  R.   de  Villiers,   for  respon- 


dent  (plaintiff  in  the  action),  road  an 
affidavit  by  his  attorney,  which  stated 
that  it  would  be  more  advantageous  if 
tho  case  were  removed  to  the  Oudts- 
hcorn  Circuit  Court. 

Iloploy,  J.,  ordered  the  cause  to  bo 
removed  ft.r  trial  at  the  noxt  Circuit 
Court,  at  George,  costr*  to  Iw  c(«l.s  in 
th.^  cause. 


£x  JMrfe  TROLLIP. 

Mr.  Upington  moved  for  potitimier, 
an  attorney  of  this  Court,  for  leave  to 
codo  certain  articles  of  clerk.«*hip  to  Mr. 
James  B.  Cleghorn,  an  attorney  of  thi.-i 
Court,  during  the  absence  from' the  Col- 
ony  of  i;<nitionor  for  a  period  of  six 
months,  such  erticlos  to  bo  re-ceded  to 
petitioner  on  his  return. 

Mr.  Douglas  Buchanan,  on  behalf  of 
tho  Incorporated  Law  Society,  consent- 
ed to  tho  application. 

Order  granted  aa  prayed. 


TRILL  AND  OTHERS    V.    CLAREMONT 
MUNICIPALITY. 

This  was  an  application  upon  notice 
of  motion  for  an  interdict  to  restrain  de- 
fei-dants  from  discharging  dirty  water 
other  than  storm  water,  into  the  Kour- 
boom  River,  so  as  to  cause  a  nuisance. 
Air.  Schreiner,  K.C,  was  for  tho  ap, 
phcant.s;  Mr.  Searle,  K.(\,  was  for  the 
refl/K>ndent   Council. 

Mr.  Schreiner,  in  answer  to  His  Lord- 
ship,  said  that  the  ca.se  originally  came 
bciore  Mr.  Ju.stice  Buchanan  in  June 
last. 

Hopley,  J.,  said  ho  thought  it  would 
b.5  better  if  the  present  application  came 
before  Mr.  Justice  Buchanan. 

The  matter  was,  by  consent,  ordered 
to  stand  over. 


£x  parte  the  directors  cape  town 

BUFFALO    CLUB. 

Mr.  Pyemont  moved  for  an  order  for 
tli3  wmding-up  of  the  Buffalo  Club, 
Cape  Town,  and  the  appointment  of 
liquidators.  Petitioners  said  that  they 
held  a  majority  of  the  shares.  Tho  club 
had  proved  an  unworkable  institution, 
and  during  the  past  two  voars  had  re- 
sulted in  a  loss  of  £712  Ss.'  5d. 

\^  indmg-up  order  granted,  Mr.  T.  H. 
Hazell  to  be  liquidator,  with  the  usual 
powers. 


JSj*  jmrte  CAMERON. 

Mr.  Douglas  Buchanan  moved  for  an 
order  authorising  the  Registrar  of  Deeds 
to  iMue  certified  copy  of  certain  mort- 
gage bond,  granted  by  the  churchwar- 
dens of  St.  Jamcs'-s,  Umtata,  for  £480 
in  favour  of  the  petitioner.  All  trace  of 
the  bond  had  boon  lost. 

Order  granted   as   prayed. 


i 


17« 


"CAPE  TIMES"   LAW  REPORTS. 


Ex  parte  EXECUTRIX  dative  estate 

CAMPBELL. 

Mr.  Alexander  moved  for  an  order 
authorising  tho  Master  to  pay  out  cer- 
tain money  accurring  to  her  from  the 
estate  of  applicant's  lato  minor  child. 
The  Master's  report  was  favourable. 

Order  granted  in  t<irms  of  Master's 
report. 


MARTIN    V.  MARTIN. 

Mr.  P.  S.  T.  Jones  moved  for  the  re- 
n  oval  of  trial  to  the  next  Circuit  Court 
at  Mo6.sel  Bay.  Respondents'  attorneys, 
it  was  stated,  consonted. 

Order  grajitod  a.s  prayed. 


Ex  parte  COOK. 

Mr.  Sutton  moved  on  behalf  of  peti- 
tioner, as  tnistc©  under  ante-nuptial 
contract,  for  leave  to  raise  a  loan  of 
£300  on  security  of  surrender  value,  of 
certAin  policy  of  life  insurance.  The 
applicant  (one  Paradise)  was  the  trustee 
of  Mrs.  Cook  under  a  certain  ante-nup- 
tial contract. 

riopley,  J.,  said  that  this  seemed  to 
Ix)  the  only  thing  that  could  he  done 
for  the  unfortunate  people,  and  an  order 
would  bo  granted  as  prayed. 


Ex  2)arte  ESTATE  HAETBL. 

Mr.  Van  Zyl  moved,  on  behalf  of  peti- 
tii»ner,  the  executrix  testamentary,  for 
leave  to  raise  a  mortgage  bond  for  £700, 
upon  certain  ground  at  Port  Elizabeth. 
Tlie  property  had  borne  a  bond  for 
£650,  but  this  had  now  lieen  called  up. 

Order  granted    as   prayed. 


ESTATE  GARY  V.  CART. 

Mr.  J.  E.  R.  do  Villiers  moved  for 
leave  to  purge  default  of  plea. 

Mr.  W.  Porter  Buchanan  said  that  the 
plaintiffs  applied  for  judgment  under 
Rule  329d,  tor  several  f^uma  of  money. 
Tliey  were,  however,  prepared  to  con- 
eent  to  reS|X)ndent  being  purged  from 
default  on  condition  that  ho  paid  the 
costs  up  to  the  present.  Cary  left  the 
district  of  Oradoek,  and  they  did  not 
know  what  his  movements  were  to  be, 
but  he  afterwards  returned. 

Mr.  J.  E.  R.  de  Villiers  said  the  ap- 
plicant thought  that  costs  should  be 
paid  by  the  plaintiffs. 

After  hearing  the  affidavits  and  coun- 
sel in  arguments  on  the  facts. 

Ilopley,  J.,  said  he  thought  the 
plaintiffs  had  been  too  precipitate  in 
barring  the  defendant,  and  that  they 
were  as  much  responsible  as  defendant 
for  any  wasted  costs.  Leave  would  be 
granted  to  purge  default,  costs  to  abide 
th^  result  of  the  trial. 


CLOETE  y.  DIEPRAEM. 

Mr.  Burton  moved  on  behalf  of 
Gideon  Stephanus  Oloete,  an  attorney, 
of  Lady  Grey,  in  the  district  of  Aliwal 
North,  for  an  order  re<^uiring  Mrs. 
Diepraem,  of  the  Orange  River  Colony, 
to  deliver  up  to  applicant  certain  pro- 
missory notes,  or  to  make  an  affidavit  if 
such  notes  were  lost,  and  to  grant  ap- 
plicant an  dndemaity.  Respondent  did 
not  appear. 

Hoplev,  J.,  ordered  that  respondent 
return  tlie  four  promissory  notes  to  the 
applicant  upon  payment  to  her  of  the 
balance  of  £45  12s.,  still  owing,  with  in- 
terest, or  in  oa£e  they  have  been  lost 
that  she  shall  give  to  the  applicant  an 
indemnity  in  the  form  contained  in  an- 
nexure  attached  to  applicant's  affidavit 
of  the  17th  November.  1904;  that  the 
said  sum  of  £45  12s.,  with  interestf  may 
bo  retained  by  applicant,  and  aet  off 
against  the  costs  of  this  application,  and 
that  only  the  balance  thereof,  if  any, 
need  be  tendered  to  respondent. 

■He  added  <th»t  he  thought  there  was 
a  dtsgracelul  mau  of  papens  6led  in 
this  ease,  and  he  hoped  the  Taxingr 
Master  would  keep  this  in  mind  when 
the  question  ci  costs  came  before  bim. 
There  seemed  to  !be  an  altogether  un- 
necessary accumulation  of  papers. 


Ejc  parte  WILSON. 

Mr.  Gutsche  moved  on  behalf  of  peti- 
tioner, as  executrix  tf^tamentary,  in  the 
estate  of  her  husband,  for  leave  to  raise 
£1.000  upon  certain  landed  property.  . 

Order  granted,  subject  to  an  account 
being  filed  with  the  Master  on  mat-urity 
of  the  promissory  note  in  the  estate  for 
£1,300,  the  mortgage  Ix^nd  to  be  paid  off 
as  soon  as  possible  after  the  amount  of 
the  promissory  note   has  been  paid  off. 


SUPREME  COURT 


FIRST  DIVISION. 


[Before  the  Chief  Justice  (the  Right 
Hon.  Sir  J.  H,  DE  Villiers,  P.C, 
K.C.M.G.,  LL.D.).] 


ARGUMENT  ON  EXCEPTIONS. 


HEYDENRYCH   V.  FRAME 


•    I  M 


i90r>. 

ar.  lat. 


Plea — Vague  and  embarassing — 
Exception. 

It  is  a  good  exception  to  the 
form  of  a  plea,   that  it  does 


"CAPE  TIMES"  LAW  REPORTS. 


ITS 


not  eatress  or  avoid  material 
factt  alleged  in  the  declaration, 
mid  U  othefncise  vague  attd 
embaroiNslng. 


This  was  an  argument,  upon  excep- 
tions taken  by  the  plaintiff,  Benjamin 
I)  Heydenrych,  financier,  Obsorvatory- 
road,  to  the  plea  of  the  dctfcndant, 
Alexander  Kay  Frame,   of  Wynberg. 

The  declaration  set  out  that,  on  the 
ICth  February.  1896,  the  parties  entered 
into  a  deed  of  lease,  whereby  the  plain- 
tiff rented  to  the  defendant  certain  fur- 
niture for  three  months,  at  a  rental  of 
£3  3a.  a  month.  Under  the  said  leaae, 
thp  defendant  was  alao  to  have  an  op- 
twn,  at  the  expiration  of  the  loaae,  of 
niircha>ing  the  said  furniture  for  £65  5s. 
TIk»  defendant  had  [XJSsession  of  the 
furniture,  and  iia^i  paid  to  the  plaintiff 
£6  6e.  as  and  for  two  months*  rental 
thereof.  At  the  expiration  of  the  leaae 
the  defendant  did  not  exercise  his  op- 
tion of  purchase,  but  requested  the  plain- 
tiff to  allow  him  to  retain  the  uae  of  the 
said  furniture,  upon  the  terms  sot  out 
in  the  lease.  This  the  plaintiff  agreed 
to.  The  defendant  had  retained  poe- 
j«3sion,  ariid  had  since  had  use  of  the 
furniture.  Plaintiff  claimed  £3  3e.. 
Wng  one  month's  rent  of  the  furniture 
ur:dpr  the  lease,  and  £295.  being  rent 
that  !«uhs(*<{uently  accrued. 

The  defendant  filed  a  plea,  which  was 
exrepte<l  to  by   the  plaintiff. 

Mr.  Burton  was  for  the  plaintiff  and 
excipient;  Mr.  McGregor  was  for  the 
H«»fondant   and    respondent. 

Mr.  Burton :  The  plea  is  vague  and 
Ambiguous.  It  affords  no  indication  as 
to  what  the  line  of  defence  will  be. 

[De  Villiers,  C.J. :  It  seems  to  me 
that  the  defence  is,  that  this  money  was 
a  loan,  and  that  you  can  only  claim  the 
interest  on   the  rent.[ 

fMr.  McGregor:  Our  other  defence  is. 
that  there  was  a  settlement,  save  a«  to 
Mmie  £50.] 

There  was  no  tender  of  the  £50. 
Then  as  to  paragraph  6,  defendant  ad- 
mits that  he  has  made  monthly  pay- 
mpiiis.  but  puis  us  to  the  proof  that  he 
^  not  paid  more  than  £6.  Ho  also 
afki»  us  to  prove  that  he  has  not  exer- 
cised the  option  of  purchase.  If  he  did 
'•x'»rrise  this  option,  his  subsec|uent  de- 
fonr<»  that  the  goods  wore  only  lent  to 
him  is  wholly  inconsistant. 

Mr.  McGregor:  There  is  a  very  im- 
portant allegation  in  paragraph  2  of  the 
ploa.  That  gives  a  new  complexion  to 
the  rase.  Respondent's  contention  is 
that  this  money  was  a  loan  and  that 
the  furniture  was  pledged  without  de- 
livery. But  in  all  such  transactions  the 
Hdnrt  will  look  rather  to  the  essen<y>  of 
the  transaction  than  to  the  actual 
l«ngnage  employed  by  the  partJee  Lip- 
pprt  v.  JriVf  (1  Juta,'l87).  Wo  contend 
that  the  transaction  was  a  loan.     More- 


over sections  7  and  8  of  the  plea  clearly 
set  up  a  good  defence.  In  section  8  wo 
plead  that  in  March,  1896,  there  was  a 
full  settlement. 

[De  Villiers,  C.  J. :  But  you  do  not 
tender  anything.  What  do  you  say  to 
section  6?J 

Section  6  alleges  that  only  £6  was 
paid. 

(De  Villiers,  C.J.:  You  ask  the  ex- 
oeptor  to  prove   a  negative?] 

^onie  latitude  must  be  allowed  where 
a  planitiff  lies  by  till  a  few  days  before 
the  period  of  prescription.  We  might 
also  have  pleaded  insolvency.  Section  9 
more  particularly  denies  any  agreement 
as  to  lease,  and  avers  that  there  was 
simply  a  loan.  The  plaintiff  claims  on 
a  lease.  We  deny  the  lease,  but  w©  ad- 
mit a  loan.  But  on  this  loan  only  £50 
could  l>o  claimed;  sinco  the  interest 
may  not  exceed  the  princir)al.  As  to 
our  not  having  made  a  tender— that  ran 
affect  onl^  the  question  of  cowts.  Hero 
the  question  is  not:  "Are  the  plead- 
ings artistically  drawn,  but  do  they  dis- 
plnso      the    real   points  at   isjiuer"     The 


defence  is  necessarily  of  an  unusual 
character,  Ix^causo  the  whole  pro<ee<ling 
IS  unusual.  The  exceptor  does  not  say 
which  i>aragraphs  of  the  -^lea  should  bo 
struck  out. 

Mr.  Burton  was  not  called  upon  in 
reply. 

Do  Villiers,  C.J. :  This  is  nn  action 
for  certain  furniture  alleged  to*  hnvo 
been  let  by  the  plaintiff  tc>  the 
defendant.  The      declaration     makes 

two  important     affirmations,      viz..    that 
the     defendant     duly     received      potsses- 
•*"^"     of     the     said      furniture,    in  terms 
of  the  said  lea.se,    and  ha<l    paid  to  the 
plaintiff  £6  6s.  as  and  for  two  months' 
rent.        At  the  expiration  of    the      said 
lease,   the    defendant   did    nofc      exercise 
his  option  of  purchasing  the  said     furni- 
ture, but  requested  the  plaintiff  to  allow 
him  to  retain  the  use  of^  the  said  .  furni- 
ture upon  the  said    terms,  as  in  tli©  said 
lease  contained,    to  which    the  plaintiff 
agreed,  and  the  defendant  has    retained 
possession,  and  has  had  the  use  thereof, 
and  is  in  possession  thereof  at     present. 
It  is  an  important  rule  of  pleading  which 
IS  laid  down  in  the  Rules  of  Court  (350c) 
that  the  defendant  in   his  plea  shall  ad- 
mit, deny,  or  confess,  and    avoid  all  the 
material  facts   aJleged  in  the  declaration 
of  the  plaintiff,  and  shall     clearly     and 
concis<'Iy  state  the  material   facts'    upon 
which  the  defendant  relies.      Instead  of 
doing   that,  the  defendant,  by   his  plea, 
first  of  all.   says  he   admits  that  he  has 
made  monthly  payments,  bnt  he  puts  the 
plaintiff  to  proof    of  the  allegations  that 
f.ince   then  no  more  was  paid,   and  alv» 
that   he  has    never  exercised   any      such 
option  of  purchase  as  is  alleged. '   I  havs 
never  heard  of  such  a  plea.       The  plain- 
tiff makes    certain  allegations  that   pay- 
ments have  not  l>een  made,  and  that  nn 
option    has    not  been  exercisetl.     If  tlie 
payments  have   been  made  and  the  op- 


180 


K 


CAPE  TIMES"  LAW  REPORTS. 


tion  exercised  these  would  be  facts  pecu- 
liarly within  the  defendant's  knowledge 
which  he  would  have  to  prove,  and  yet 
he  puts  the  r»laintLff  to  the  proof  of  the 
negative.  I  could  have  understood 
such  a  plea  of  putting  to  the 
proof  where  the  defendant  has  no  per- 
ficnal  knowledge  of  the  matter,  and  ia 
not  prepared  to  admit  or  deny,  but  where 
the  defendant  is  in  a  position  to  ''  admit 
or  deny  or  confess  and  avoid,"  under  the 
Rules  of  Court  he  is  bound  to  do  so. 
It  is  said  that  the  Court  has  never  re- 
quired any  great  nicety  of  pleading. 
That  is,  no  doubt,  true.  Still,  the  Court 
has  required  intelligible  pleas,  pleaa 
which  comply  with  the  Rules  of  Court 
and  pleas  from  which  the  parties  may 
know  what  the  defence  is.  It  is  impos- 
siblo  to  say  that  this  plea  does  that. 
The  defences  are  all  mixed  up  in  such 
a  manner  that  it  is  difficult  to  know 
which  defence  the  defendant  really  relies 
upon.  If  there  are  separate  defenoei 
each  of  which  goes  to  the  root  of 
the  action,  then  they  should  be 
pleaded  ae  ^eparaie  plea«.  One  de- 
fence is  that  the  defendant  has 
surrendered  his  estate,  and  that  the 
furniture  has  been  returned  to  the  de- 
fendant's wife.  If  that  is  the  plea  relied 
upon,  it  should  be  relied  upon  as  a 
separate  plea,  and  not  mixed  up  with  the 
other  defences  in  the  way  in  which  it  has 
been.  Then  there  is  the  defence  of  a 
settlement  come  to  in  March,  1896,  but 
then,  immediately  afterwards,  notwith- 
standing that  settlement,  it  is  alleged 
that  it  was  really  no  rent  at  all,  that 
there  was  a  sale  of  furniture,  and  that 
that  sale  was  not  really  a  bona  fide  sale, 
but  intended  as  a  pledge ;  that  it  was  not 
really  rent  that  was  payable,  but  interest, 
and  the  plaintiff  was  not  entitled  to  more 
than  mere  interest.  That  ia  a  substan- 
tial defence,  and,  il  it  were  proved,  I  am 
inclined  to  believe  that  it  would  be  a 
very  good  defence.  The  parties  may 
call  the  transaction  a  lease,  but  if  the 
Court,  after  going  into  the  whole  mat- 
ter, finds  that  it  was  never  intended  as  a 
lease,  but  it  was  really  intended  as  a 
pledge,  the  Court  would  treat  it  as  a 
pledge.  But  the  misfortune  is  that  this 
part  of  the  defence  is  npt  in  any  way 
made  perfectly  fixed  and  certain  by  rea- 
son of  any  tender.  If  it  be  true  that  it 
was  a  mere  loan,  that  it  should  be  re- 
garded as  interest,  and  that  that  is  part 
of  the  defence,  there  should  be  tender 
of  the  money.  The  plea  is  hopelesslv 
obscure,  and  I  do  not  know  that  it 
could  be  amended  just  now,  or  I 
>^ould  have  suggested  to  the  parties  to 
make  amendments  at  once,  so  as  to  make 
it  a  good  plea.^  But  I  am  bound  to 
allow  the  exception,  with  costs,  with  leave 
to  the  defendant  to  amend  his  plea,  so 
as  not  to  have  the  «xpense  of  filing  a 
fresh  plea. 

[Plaintiff's  Attorney:  Van  der  Byl : 
Defendant's  Attorneys:  Van  Zyl  and 
Puissine.] 


ESTATE  LEWIB  V.  E.^TATB 
JACKBOK. 


f       190i.. 
I  Mar.  iBt. 


Will — Construction — Children — 
Child  ift  venti^.  matris. 

The  testator  bequeathed  pro- 
2)€rty  to  some  of  his  children 
and  to  his  *'  grandchildrenj 
isstie  of  his  daughter  by  Z., 
her  hmb(tnd.'^ 

Held,  that  the  plaintiffs  who 
loas  a  child  of  the  tcstalm''s 
(kntghter  by  L.,  but  tras  horn 
five  months  and  three  days  after 
the  testator's  death ,  ivas  entitled 
to  share  in  the  bequest. 


This  iwas  a  special  case  stii>mitted 
for  'the  decision  of  the  Court  by  the 
ipartdes  (thereto.  The  p»rtiQs  were : 
Anthur  Fincham  Chaplain,  in  his  capa- 
city as  ctkraitor  ad  litem  of  Kathleen 
Wmilred  Lewis,  a  minor ;  and  Richard 
Court  pent.  •Alexander  I>avid  Jackson, 
and  William  'Francis  Marshall,  in  their 
capacity  as  exeouitons  testamen*tary  of 
the  estate  of  4/he  late  William  Chri^ie 
Jackson. 

The  case  was  stated  in  the  following 
terms: 

1.  The  plaintiff  was  on  the  24th 
January,  1906,  appointed  by  this  Hon- 
ourable Court  as  curator  a<2  litem  of 
Kathleen  Winifred  Lewis,  minor 
daughter  of  Frederick  William  Lewis 
(who  died  on  or  about  17th  February, 
1904)  and  of  Elisabeth  Margaret  Lewis 
(born  Jackson),  who  survives,  and  is  the 
daughter  of  the  late  William  Christie 
Jackson,  hereinafter  called  the  testator, 
who  in  his  lifetime  resided  at  East 
London,  Cape  Colony. 

2.  The  defendants  are  sued  as  tlie 
duly  appointed  executors  testamentary 
of  the  estate  of  the  testator,  who  die<1 
on  the  18th  April,  1900,  leaving  of  full 
force  and  effect  a  will  dated  16th  Jan- 
uary, 1900.  with  a  codicil  thereto  dated 
12th  March.  1900.  A  copy  of  the  said 
will  and  codicil  is  hereto  annexed, 
marked  A,  and  the  parties  crave  leave 
to  have  it  regarded  as  inserted  herein. 
They  wish  to  refer  laarticularly  to  that 
part  of  the  will  relating  to  the  bequest 
of  the  landed  property. 

3.  At  the  time  oif  thie  execution  c^  the 
will  and  of  the  codicil,  and  at  the  dcMith 
of  testator,  there  were  surviving  five 
out  of  eight  children  issue  of  the  mar- 
riage of  Elizabeth  Margaret  Jackson 
with  her  said  husband  Frederick 
William  Lewis,  to  wit: — William  John 
Lewis,  born  6th  June.  1883:  Alfred 
Jackson  Lewis,  bom  21flt  December, 
1884 ;  Alexander  Robert  Lewis,  born 
14th  January.  1890;  Doris  Alice  Lewis, 
bom  28th  March,  1894.  who  diet!  on 
24th    July,    1902;    Myrtle    May    Lewis, 


r 


••CAl»E  TIMES'*   LAW  HEPORTS. 


181 


born  4th  Ma^.  1897.  While  Kathleen 
Winifred  Lewis  was  bom  to  them  on 
tbe  21st  September,  1900,  or  five 
moutiis  and  three  days  after  the  dtath 
of  testator,  and  ia  their  youngest  child. 

4.  The  defendanta  have  aireadjjr  duly 
filed  three  liquidation  and  distribution 
actnunts  in  te«tator*a  estate  with  the 
Master  of  this  Honourable  Court, 
wherein  the^  have  included  the  said 
Kathleen  Winifred  Lewis  as  partici- 
pitinr  equallv  with  tbe  five  abovemen- 
tioned  grandchildren  of  testator  in  the 
bequest  of  a  fifth  share  of  the  landed 
property  under  the  aforesaid  will,  and, 
the  said  accounts  having  been  duly  con- 
finned,  have  paid  her  share  under  such 
distribution,  amounting  to  £139  14s.  9d. 
into  the  Guardian's  Fund  on  her  behalf. 

Tbe  defendants  are  now  ready  to  file 
another  liquidation  and  distribution 
aeoount  and  to  make  a  further  distri- 
bution, but  doubts  having  arisen  as  to 
whether  the  said  Kathleen  Winifred 
L^wis  is  by  law  entitled  to  receive  a 
•hare  under  the  bequest  relating  to  the 
Unded  property  contained  in  the  afore- 
aid  will.  It  IS  desirable  that  such 
doubts  may  b<»   resolved. 

5.  The  plaintiff  contends:  (a)  That 
Ksthleen  Winifred  Lewis  is  under  the 
will  of  testator  entitled  to  receive  an 
«^ual  share  with  the  other  five  grand- 
children of  testator  above-mentioned,  in 
toe  bequest,  contained  in  the  will  afore- 
said, relating  to  the  fifth  share  of  the 
Isiided  property;  (ft)  that  the  liquidation 
and  distribution  accounts  already  filed 
and  confirmed  and  the  distribution  and 
pavments  made  thereunder  to  the  said 
minor  shall  be  ordered  to  be  finally 
cj»nfinned  or  alternatively  that  no  order 
wall  be  given  to  amend  or  disturb  same. 

6.  The  defendants  contend:  (r)  That 
Kathleen  Winifred  Lewis  is  nf>t  en- 
titled under  the  will  of  the  testator  to 
■hare  in  the  beciuest  made  to  the  grand- 
children the  issue  of  the  marriage  of 
Elizabeth  Margaret  Jackson  with 
Frederick  William  Lewis;  (r/)  that  they 
ape  eiititled  to  a  declaration  that  the 
jjjjuidation  and  distribution  accounts 
■led  be  amended  by  the  exclusion 
•herefrom  of  all  references  to  Kathleen 
ninifred  Lewis,  and  that  the  Master  of 
ihis  Honourable  Court  be  ordered  to 
Jppay  to  them  the  aforesaid  sum  of 
*139  148.  9d,  with  interest  accrued,  now 
atanding  wrongly  to  the  credit  of  the 
aforesaid  minor  in  the  Guardian's  Fund. 

Wherefore  the  parties  hereto  several - 
•J  pray  for  judgment  in  termv  of  their 
pjsppctiw  contentions,  and  that  the  cost 
of  this  suit  may  be  paid  out  of  the 
•state  of  testator. 

Tois  is  the  last  will  and  testament  ol 
me  the  undersigned  William  Christie 
Jackson,  of  East  London.  Master 
Mariner,  who  being  in  ill-health  of  body, 
but  sound  of  mind,  memory  and  under- 
•tanding. 


I  hereby  revoke  all  former  wills,  codi- 
cils or  other  dociuneiits  of  a  testamen- 
tary nature  heretofore  made  or  exe- 
cuted by  me.  hereby  specially  author- 
ise my  hereinafter  appointed  executors 
to  pay  unto  my  daughter  Elisabeth 
Margaret  (now  married  to  Frederick 
W^illiam  Lewis)  during  her  lifetime  in- 
terest at  the  rate  of  4  per  cent.  pc»r 
annum  on  the  sum  of  three  hundred 
and  sixty  pounds  sterling  left  by  her 
grandfather  John  Crapper  and  specially 
referred  to  in  his  will  and  which  said 
sum  shall  on  her  decease  be  paid  out  of 
my  estate,  and  divided  and  apportioned 
as  in  the  said  John  Crapper's  will  men- 
tioned. 

And  I  further  specially  empower  my 
said  executors  to  pay  out  of  my  estate 
and  unto  my  said  daughter  Elizabeth 
Margaret  Lewis  a  total  amount  not  ex- 
ceeding one  hundred  pounds  sterling, 
but  in  such  sums  however,  and  from 
time  to  time  as  in  the  sole  discretion  of 
my  said  executors  may  appear  advisable. 
Unto  my  sister  Jane  Jackson  I  bo- 
queatli  the  sum  of  three  hundred  ix)unds 
sterling. 

And  unto  my  solicitor  William  Fran- 
cis Marshall  (one  of  my  hereinafter  ap- 
pointed executors)  I  bequeath  the  sum 
of  twenty-tive  pounds  sterling,  over  and 
above  any  fees  to  be  drawn  by  him  as 
co-executor,  and  I  specially  desire  that 
all  le?al  work  in  connection  with  my 
estate  shall  pass  through  his  office  and 
the  usual  and  customary  fees  shall  bo 
paid  therefor. 

And  unto  my  children  Agnes  married 
to  Richard  Court  Dent,  Kobort  Boon 
Jackson,  Alexander  David  Jackson,  and 
Alice  married  to  Clifford  George  Miller 
and  my  grandchildren  tlie  issue  of  my 
said  daughter  Elizabeth  Margaret  Jack- 
son with  the  said  Frederick  William 
Lewis,  I  beoueath  my  landed  properties, 
share  and  share  alike,  that  is  my  said 
children  the  said  Agnes  married  to 
Richard  Court  Dent,  Robert  Boon  Jack- 
son, Alexander  David  Jackson,  and 
Alice  married  to  Clifford  Ot'orgc  Miller 
each  receiving  one-fifth  portion  or  share 
and  my  grandchildren  the  issue  of  the 
marriage  of  my  said  daughter  Eliza- 
beth Alargaret  Jackson  with  the  said 
Frederick  William  Lewis  receiving  the 
remaining  one-fiith  portion  or  share  be- 
tween them  equally. 

It  is  however  my  special  and  distinct 
desire  that  my  hereinafter  appointed 
executors  shall  have  a  free  hand  to  deal 
with  tlie  same  as  they  or  the  majority 
of  them  from  time  to  time  may  deem 
fit,  and  to  sell  all  such  lande<l  properties 
or  to  retain  the  same  or  portions  there- 
of as  to  them  or  the  majority  of  thoni 
may  appear  most  advisable  and  to  act 
generally  concerning  shoh  landed  pro- 
perties as  in  their  opinion  or  the  ma- 
jority of  them  may  appear  necess^ary 
and  expedient. 


1S2 


'CAPE  TIMES"   LAW  REPORTS. 


And  as  to  th<*  rest,  rosiduo  and  re- 
mainder of  my  estate  and  efTocts 
whether  in  ixx»sohs.ion,  roversioii  ex- 
pectancy or  continKcncj'  I  give  and  be- 
queath the  same  ni  equal  portions 
snare  and  share  alike  unto  my  children 
Agnes  married  to  Richard  Court  Dent, 
Rol)ert  Boon  Jackson,  Alexander  David 
Jackson  and  Alice  married  to  Clifford 
Ci»orgc   Miller. 

And  as  I  desirt»  that  no  misunder- 
standing shall  arise  hereafter  I  hereby 
di.stinctly  state  that  all  furniture,  crock- 
ery, cutlery,  i.xrsonal  effects,  jewellery, 
horsH'S,  traf>s  and  other  effects  in  my 
residenoe  over  and  above  the  various 
articles  given  unto  my  wife  at  the  time 
of  our  marriage  and  in  the  antennup- 
tial  contract  sjiecially  described  are  and 
shall  bo  c(»nsidered  an  part  and  parc^^l 
of  the  rest,  residue  and  remainder  of 
my  estate  and  be  inherited. 

(Sgd.)  W.  C.  Jackson. 
As  Witnesses: 

(Sgd.)  (;.  W.    Bird. 
((Sgd.)  L.    T.    Ini]X'y. 

as  in   the  »>receding   clause  mentioned. 

And  I  specially  desire  that  in  tlie 
event  of  the  death  of  any  of  my  said 
children  or  grandchildren  then  the 
shares  coming  to  them  or  any  of  them 
uhall  revert  to  their  children  rcjsiKX!- 
tively  per  iftirncft. 

And  I  will  that  all  money  legacies 
.Hlmll  be  iNiid  within  six  months  of  my 
death  and  free  from  all  succession 
duties. 

I  appoint  the  suiil  Richard  Court 
Dent,  Alexander  David  Jackson  and 
William  Francis  Marshall  to  1h^  the  exe- 
tors  of  this  my  will  an<l  the  administra- 
tors of  my  fistate  hereby  giving  unto 
ihem  all  such  ix)wers  a.**  are  required  by 
law  espiH'ially  those  of  assumption  and 
substitution. 

I  reserve  to  myself  the  |H»wer  at  any 
time  to  alter  or  amend  this  will  as  I 
shall    think  fit. 

I  declare  thix  to  be  my  h'tst  will  and 
testament  desiring  that  it  may  have 
efTect  as  suc!i  or  a.s  a  codicil  or  other- 
XTise  according    to  law. 

Thus  done  and  signed  at  East  London 
this  16th  day  of  January,  1900,  in  the 
presence  of  the  sul>scribing  persons  as 
witnesHcs  all  being  present  at  the  same 
time. 

(Sgd.)  W.  C.  JACKSON. 

As  Witnesses : 

(Sgd.)  n.   W.  Bird. 
(Sgd.)  L.  T.    ImiK'v. 

By  viriue  of  the  codiciliary  clause  in 
my  last  will  rontaine<l  and  bearing  date 
16th  January  last  I  hereby  give  and  be- 

Sueath      unto  my  son   Alexander  David 
aekson  all  plant  at  present  belonging  to 
me   and   all    my    interest    in    coniuHtion 
with      the      firm  of  Jackson   and    Neal<v 
and  on  the  following  conditions,  viz. : 
I.  Ht    to  haT#   fame  as  his    fre*  and 


a))soluto  proiK>rty  on  termination  of 
existing  iiartncrship  of  Jackson  and 
NeaJe. 

2.  That  my  said  son  Alexander  David 
Jack.«on  shall  support  my  sister  Jane 
Jackson  to  the  best  of  his  ability,  eitlier 
by  having  her  to  live  with  him  or  pay- 
ing unto  her  so  much  as  reasonable 
could  bo  expected  from  him  eitlwr 
monthly,  quarterly,  half-yearly  or  year- 
ly. My  said  sister  hnving  the  right  to 
elect  to  live  with  my  said  son  or  to 
draw  the  allowance  as  the  cas<»  may  be. 

3.  That  all  accimnts  of  the  said  firm 
of  Jackson  and  Neale  shall  Ix*  matle 
upon  the  termination  of  tlio  said  part- 
nership and  the  balance  other  than  the 
said  plant  arrived  at  shall  appertain  to 
my  general  estate. 

And  I  confirm  my  said  will  in  all 
other  respects. 

Dated  at  East  London,  this  12th  day 
of  March,    1900. 

(Sgd.)  W.  C,  JACKSON. 

As  Witnesses: 

(Sgd.)  Matthew  W.  Troy. 
(Sgd.)  L.  S.  Imix»y. 

^^r.    (iardiner  for   plaintiff. 

Mr.   W.   P.   Buchanan   for  defendant. 

Counsel  having  been  heard  in  argu- 
ment :  — 

De  Villier.s,  C.J. :  Aceording  to  the 
catiO  stated  for  the  opinion  ol'  the 
C<)urt.  the  plaintiff.  Kathleen  Lewio. 
was  Iwrn  five  moivtlis  and  three  <lay.s 
after  the  death  o^  the  te-'*t*tor.  In  the 
ordinary  course  of  Nature,  she  must, 
therefore,  have  i)een  in  rrnfrr  matri» 
at  the  time  of  the  testator's  death.  By 
Ills  will  he  had  l>e<|ueafher  hir*  landed 
proiM?rtief.  to  eertain  of  his  children, 
and  his  "grandchildren  the  issue  of  hi?> 
daughter  Elizatlieth  with  Frederick 
Ltv\%i«<."  The  plaintiff  in  the  youngest 
daugh-ter  of  Elizabeth  by  Frederick 
liewis.  Without  entering  into  the  que?<- 
tion  whether  she  w-ould  have  been  en- 
titled to  share  in  the  l>e(|uest  in  case  sIh« 
had  lx»en  born  more  than  ten  months 
after  the  date  of  the  ter**tator'fi  death.  I 
a<m  clearly  of  <>;iinion  that,  under  the 
circumstances  disclosed  in  the  special 
case,  the  testator  may  fairly  be  pre- 
suimed  to  have  intended  to  include  her 
among  the  if-»ue  of  h'w  daughter  Eliza- 
il;eth,  whom  he  wish<Kl  to  share  in  the 
*lKM|uest.  If  the  decision  ip  Brenlrr  v. 
Kotzf'a  KxccHtortt  (2  Menz.  444)  is  to 
be  followt^l,  it  should  not  be  extended 
to  case4j  like  the  prerent,  where  circum- 
stances exist  which  support  the  pre- 
sunifjrt-ion  mentioned  by  Voet  (23,  5,  12) 
in  favour  of  including  children  born 
after  the  testator's  death  among  the 
objects  of  his  bounty.  The  judgment 
of  the  Crwirt  must  l)e  in  ternif*  of  the 
plaintiff'-^  eon4ention. 

[Plaintiff's  Attorney:  Paul  de  Vil- 
Tiers;  Defendant's  Attorneys:  Walker 
and  Jacobsohn.] 


'*CAPE  TtMES*'  LAW  REPORTS. 


183 


iUCTIK  V.  MORRALIi    AND    f        1005. 

0TUBR8.  (  Mar.   let. 

Illegal  contract  —  Prize  fight  — 
Boxing    prize     payable     to 

winner. 

.1  prize  ^fighi  in  illegal,  and 
0)imti\{£uthf  the  winner  tronld 
nfdhcrntUled  to  claim  the  prize 
from  Oie  person  trho  offered  it. 

A  frkmlhj  contest  in  boxiny^ 
Ht4calathd€d  to  produce  injury 
h  either  j^f'ff/j  wotdd  not  be 
ilif^d.  A  prize  havifif/  been 
'^fferfd  by  the  defendants  in 
tin  rsinmr  in  such  a  friendly 
coul(M,  the  two  coinpetitors 
ffffftl  hffore  the  contest  to 
ibtnk  the  prize  bet  tree  n  thenij 
frhichtnr  side  should  tcin, 
l^^t  agreement  was  commnni- 
'^M  to  the  defendants^  and 
'^.'/  (d-qiuesced.  After  the 
f'mtextthe  defeated  comj^eiitor 
ini^UtUed  an  action  ayainst 
^  de/emlanU  for  half  the 
»^^ituf  the  prize. 

Held,  thd  us  tlie  defendants' 
^pf  was  to  iHjy  the  winner^ 
^'ifdaii  their  act/ niescence  in  the 
f'^rtement  between  tfte  conipeti- 
'w*"*  did  7ioi  ainonnt  to  a 
pr'tnune  to  /nty  tJte  loser  any- 
'*'"!/,  Oic  plaintiff  teas  not 
^MtHkd  to  succeed.' 


Xflis  W9S  an  action  to  rcoovcr  certain 
•ntweysiftidtoljedue  to  the  plaintiff  as 
'HDonemtion  for  enteringr  into  a  certain 

.  ^w  plaiutiflTs  declaratibii    was  an  fol- 

jj  The  pUiiitiff  resides  at  Capo  Town, 
Wa  was  until  defeated,  as  hereinafter 
jet  forth,  the  recognised  professional 
Kithcrweight  champion  of  South  Africa 
in  the  l^itimate  sport  or  pastime  of 
glove  boxing. 

2.  Tlie  first  defendant  is  the  pro- 
prietor or  lessee  and  the  second  de- 
fendant is  th©  manager  of  certain 
Ik'pnfled  premises  or  house  of  ontertain- 
inent  known  as  the  Grand  PavilitMi  at 
Csrap's  Bay,  Cape  Division,  where  they 
reside,  and  cater  for  the  entertainment 
of  the  public  in  various  ways,  including 
that  of  promoting  and  organising  com- 
petitions for  the  exercise  of  skill  in 
gloT«  boxing  or  glove  conte«ts. 

3.  The  third  defendant  is  a  comi>any 
WKwtered  under  the  C^ompnny's  Art, 
18^,  having  its  head  office  for  the 
Colony  iu  Cape  Town.       It   is  the  pro- 


prietor of  a  certain  daily  newspajier 
called  the  "  Cape  Argus,"  printed  and 
published  in  Cape  Town.  In  connection 
with  the  said  newspaper,  and  for  the 
furtherance  of  its  objects,  the  third  de- 
fendant carries  on  a  sports  departnkcnt. 
which  is  under  the  management  of  the 
fourth  defendant  as  sports  e<Iitor. 

4.  In  or  about  the  month  of  July, 
1904,  the  first  two  defendants  were  de- 
sirous of  promoting  and  organising  a 
glove  contest  or  competition  in  boxing 
iietween  the  plaintiff  and  one  Thomas 
Palmer,  otherwise  known  as  Pedlar 
Palmer,  at  the  aforesaid  Grand  Pavilion 
and  negotiations  took  place  between  the 
i^aid  persons  for  that  pur{x«e. 

5.  Thereafter,  on  or  about  the  18th 
of  July,  1904,  an  agreement  was  c<>n- 
cluded  between  the  aforesaid  parties, 
whereby  the  plaintiff  and  Palmer  un- 
dertook to  contest  for  the  featherweight 
l>oxing  champi(Miship  of  South  Africa 
for  a  purse  or  prize  of  £500  given  by 
the  said  first  two  defendants,  which  the 
latter  agreed  to  deposit  with  the  sports' 
editor,  "Cape  Argus,"  Capo  Town.  A 
copy  of  the  contract  is  hereto  annexed, 
marked  "A,"  and  plaintiff  craves  leave 
to  have  it  regarded   as  iiisertetl  herein. 

6.  The  aforesaid  contract  was  exc»- 
cuted  and  signed  in  the  office  of  the 
fourth  defendant,  viz.,  the  six>rts  editor's 
office,  '*C*a|w  Argus,"  with  tlte  know- 
ledge and  consent  of  the  t))ird  and 
fourth  defendants. 

7.  Tlie  fourth  defendant  in  the  woptj 
(if  his  duty,  and  with  the  authorisation 
and  consent  of  the  third  defendant,  as- 
sented to  the  terms  of  the  aforcHuid 
cx)i)tract  as  far  as  it 
and  consented  to  hold 
£500  as  stakeholder  in 
and  to  pay  the 
tiff  and  Palmer 


conct^rned  them, 
the  said  sum  of 
his  said  capacity 
same  over  to  the  plain- 
at  the  conclusion  of  the 


contest.  The  plaintiff  signed  ancj  exe- 
cuted the  contract  relying  on  this  un- 
dertaking. 

8.  On  the  said  18th  July,  1904,  the 
plaintiff  and  Palnwr  also  entered  into 
the  agreement,  a  copy  of  which  is  here- 
unto annexed  marked  '*  B,"  and  which 
plaintiff  craves  leave  to  have  regarded 
as  inserted  herein.  They  gave  notice 
of  this  to  the  first,  second,  and  fourtii 
defendants  personally,  and  to  the  third 
defendant  through  and  by  means  of  tin? 
fourth  defendant,  all  of  wnom  acquiesced 
in  the  said  arrangement  and  raised  no 
objection  thereto. 

9.  Ihe  plaintiff  thereupon  relying 
upon  the  due  fulfilment  of  the  above  con- 
tracts and  undertaking,  went  into  train- 
ing for  the  <'ontest  and  has  incurred 
exjiense  and  trouble  in  connection  there- 
with. 

10.  Thereafter  by  mutual  consent  the 
date  specified  for  the  competiti(»n  was 
anttnlated  to  the  8th  August,  and  prior 
thereto  the  said  sum  of  £500  was  paid 
into  tlK»  hands  of  the  fourth  defendant 
in  his  capacity  as  sports  editor  aforesaid 


184 


<( 


CAPE  TIMES '»   LAW  REl>ORTS. 


with  tlio  knowlwlffo  and  coiiBcnt  of  the 
third  defoiidajit  in  torms  of  agreement 
"A." 

*'A." 

CONTHxVCT. 

Whoroby  Pedlar  PaJnior  and  Watty 
Aui-4in  aj^ree  to  con-test  "tlio  Foatlier 
Woijfht  Ik)xing  (^hianrpionship  of  South 
Africa  for  a  purse  of  £500  (five  hun- 
drod  pounds)  piron  by  Mr.  L.  Morrall 
an(i  Mr.  F.   llaisnian. 

We,  Pedlar  Palmer  and  Watiy  Ausiin, 
■hereby  a-^ree  to  Ik)x  for  the  above 
ehajnpionslnp  (tawenty  rounds  of  two 
minutes  duration  each)  at  the  Grand 
Pavilion,  Camp's  Bay,  on  Tuesday,  the 
9t.h  day  of  Auguist,  1904.  Further  we 
a'greo  to  place  oureelvtM  under  the 
management  of  Mr.  F.  Haisman,  who 
is  to  act,  as  he  may  deem  fit,  in  the 
ib<»st  interests  of  both  parties,  and  ad- 
here striotly  to  the  follo^'^ing  arrange- 
ment : 

(1)  To  enter  into  strict  training  from 
this   date ; 

(2)  Commit  no  act,  either  directly  or 
indirectly,  that  will  imperil  the  bc<*t 
int4>iests  of  the  donors  of  the  purse; 
and 

(3)  That  we  will,  when  called  upon, 
submit  to  medical  examination,  Mr.  F. 
Ilairiman,  reserving  to  himself  the 
right,  to  act  in  what  way  he  may  deem 
fit. 

(Signed^    PFJ)LAR    PALMER. 
W.  J.  AU4>TL\. 

Wi'tnesscte : 

(Signed)    Frederick  Haic^man. 
.,  Mat  how   Palmer. 

CONTRACT. 

Whereby  we,  Leonard  Morrall  and 
Frederick  Haisman,  of  the  Gmnd  Pavi- 
lion, Caimp'a  Bay,  agree  to  put  up  the 
alx)ve  pxiYuG  £50D  (five  hundred  i>ounds) 
st<^».rling  providing  the  afore-mentioned 
undertaking  is  faithfullv  carried  out, 
and  agree  to  deposit  casli  or  che<|ue  to 
cover  the  said  amount  on  the  day  of 
contest  in  the  hands  of  the  Sports 
Editor,    **  Cape    Argus,"    Cape  Town. 

(Signed)    1^^^ED.  HAISMAN. 

LEONARD  MORRALL. 

Wi-tnesecb : 

(Signed)     W.   W.   Sea-brook. 
M.   A.    Smith. 

11.  The  contest  or  competition  took 
.}>lace  oji  the  liaid  day,  all  arnangemente 
in  rogard  tlwyreto,  and  specially  in  re- 
gard to  the  appoiti'bjuent  of  referee, 
tiniekeofers.  etc.,  lx»ing  made  by  or 
with  the  sanction  of  defendants,  and  >t 
resulted  in  a  decision  in  favour  of  Pal- 
mer upon  points. 

12.  Thereaft<>r.  the  plaintiff  and  Pal- 
mer  havinig  duly  carried  out  and  ful- 
filled the  terms  and  conditions  of  their 
contract,  it  became  and  was  the  duty 
of   the  third   and   fourt.h   defendants,  or 


one  or  otlior  of  them  to  pay,  and  of 
the  first  and  second  dofemlante  to  pay 
or  cause  the  other  defendants,  or  ono 
or  other  of  tboin  to  pay  to  plaintiff 
the  sum  of  jb^50,  being  niA  hsM  share 
of  the  above-mentioned  purse  or  prize, 
but  neglecting  their  duty  as  aforesaid, 
the  defendants  have  wrongfully  refused 
to  pay,  or  cause  to  bo  paid,  as  l)eforo 
stated,  the  ©aid  sum  or  any  jxirt  there- 
of, and  the  first  and  second  defondants 
have  wrongfully  iiMterdioted  the  other 
dofendanta  froin  so  paving,  not-with- 
standing thait  plaintiff  has  made  de- 
mand therefore  as  he  is  legally  entitled 
to  do. 

Wiherefore    the   plaintiff  claims : 

1.  As  againsit  the  third  and  fourth 
<K^en<ian<t.s,  or  one  or  oth^r  of  them, 
the  one  paying  the  other  to  be  absolv- 
ed :  (a)  An  order  directing  them,  or 
one  or  other  of  them,  to  pay  to  plain- 
tiff t.he  isu>m  of  £250  due  as  aforesaid  \ 
ib)    intereis-t   thereon    a    tcmjwre  moror. 

2.  Ae  against  the  first  and  se^cond  de- 
fendants: (r)  An  order  compelling  them 
to  cause  or  direct  the  above  de^fen- 
dante.  or  one  or  other  of  tliem  to  pay, 
the  foaid  sum  t^)  plaintiff;  (d)  or  alter- 
natively, and  failing  payment  by  the 
third  and  fourth  defendants,  or  one  or 
otiher  of  them,  that  thov  be  ordered  to 
pay  to  plaintiff  the  sai^  sum,  together 
with    interesrt  thereon    a    tem'pore   morat. 

3.  A%  against  all  defenaants :  (r\ 
Alternative  relief;    [f)  costs  of  euit. 


B. 


'> 


July  18th.   1904. 

The  said  Wialty  Austin  and  Pedlar 
Palmer  have  agreed  to  lx)x  for  the 
puree  of  £5(X)  (five  hundred  pounds) 
given  by  Mr.  Morrall  ajid  Mr,  Hais- 
man, of  the  Pavilion,  Camp's  Bay,  to 
be  conte^-tcd  for  on  the  nigiit  of  August 
9Mi,  1904,  we  also  agree  to  divide  the 
pur<sc  of  £500  (five  hundred  pounds), 
the  wanner  to  receive  £250  and  the 
loM?r  to  receive   £250. 

(Signed)    W.  J.  AUSTIN. 

THOMAS  PALMER. 

Witnesses : 

A.   McNaughton. 
Harry   Bunton. 

To  this  declaration  the  first  two  de- 
fendants excepted  and  pleaded  over  a% 
follows : 

EXCEPTION. 

The  defendants,  Leonard  Mjrrall  iind 
Frederick  Haisman,  except  to  the  de- 
claration as  disclosing  no  viri  e  of 
action  inasmuch  as  the  contracts  ^Ul•U 
u[>on  are  ipso  jure  illegal  contracts  and 
are  contrary  to  public  morals  and 
policy,  and  therefore  void. 

PLEA  OVER. 

And  for  a  plea  over  in  case  the  said 
excei)tions  should  be  overruled,  but  not 


"CA&E  TIME^"   LAW  REPORTS. 


185 


otherwise,    the     said  defendants  say  as 
follows : 

1.  The;  admit  that  the  niaintiff  re- 
sides at  Cape  ToM.n,  but  they  do  not 
adniit  the  other  allegations  in  para- 
graph 1. 

2.  I'hcy  admit  that  the  first  defen- 
dant n  the  lessee  and  the  second  de- 
fendant is  the  manager  of  the  said 
Grand  Pavilion,  and  that  thev  cater 
for  the  entertainment  of  the  public,  but 
thej  deny  the  other  allegations  in 
l>aragraph  2. 

3.  As  to  paragraph  3,  the  defendants 
admit  the  allegations  therein  contained. 

4.  The  contracts  annexed  to  the  de- 
claration and  marked  "  A "  were  exe- 
cuted and  signed  at  Camp's  Bay  and 
not  in  the  office  of  the  fourth  defendant 
sa  alleged  in  paragraph  6,  and  the  de- 
fendants crave  leave  to  refer  to  the 
terms  thereof  for  the  true  meaning  and 
intent  of  the  parties  thereto. 

5.  B?  the  terms  of  the  said  contracts 
the  plaintiff  and  the  said  Palmer 
agreed,  inter  alia,  to  adhere  to  the  fol- 
low ing  arrangement:  (1)  To  enter  into 
strict  training  from  the  date  of  the  said 
contracts.  (2)  To  commit  no  act  either 
directij  or  indirectly,  that  would  im- 
of  the  said  contracts,  and  thereupon  it 
the  pur>e  (to  wit,  the  first  and  6i>ccijd 
defendant*}). 

6.  The  said  arrangement  was  a  con- 
dition precedent,  and  the  do f enchants 
(>nl?  undertook  to  put  up  the  said 
purse  of  £500  if  the  said  irrangcmpi  t 
*cre  faithfully  carried  » at  by  the 
plaintiff  and  the  said  Palmar. 

7.  The  plaintiff  and  the  sad  Panncr 
did  not  faithfully  carry  out  the  said 
arrangement,  but  forthwith,  to  wit,  on 
thi»  said  18th  day  of  July,  fraudulently 
and  collupivoly  and  without  the  know- 
ledge or  consent  of  the  first  and  second 
defendants,  executed  tho  written  agree- 
ment annexed  to  the  declaration  and 
marked  "  B,"  and  thus  committed  an 
act  which  imperilled,  as  hereinafter  set 
forth  in  paragraphs  9  and  10.  the  best 
interests  of  the  donors  of  the  said 
purse. 

8.  The  plaintiff  further  in  breach  of 
the  said  arrangement  did  not  enter  into 
strict  training  from  the  date  of  the  said 
contracts  marked  "A." 

.9.  The  first  and  second  defendants 
wped  and  executed  their  said  contract 
''[J."  the  intention  and  for  tho  purpose 
*nich  were  on  the  said  date  well  known 
Jo  the  plaintiff  and  tho  said  Palmer  of 
***''&inK  persons  for  admission  to  view 
^he  said  contest,  and  thus  making 
j'rofits  for  them.selve8,  and  ]>opularising 
the  said  house  of  entertainment. 

10,  The  first  and  second  defendants 
Jfere  put  to  great  expense  in  and  about 

k  ^.'P*"'****®"  ^^^  management  of 
^[j^  **id  contest,  and  in  consequence  of 
toe  terms  of  the  said  fraudulent  and 
collusive  agreement  becoming  known  to 
^rtam  persons,  large  numbers  of 
people  who  would  otherwise  have  paid 


for  admission  were  induced  not  to  do 
so.  and  the  said  defendants  in  conse- 
quence have  suffered  loss,  and  have  sus- 
tained damage  in  their  character  of 
public  entertainers  and  in  their  said 
business. 

11.  The  defendants  admit  that  the 
plaintiff  and  the  said  Palmer  at  the 
time  and  place  appointed  boxed  twenty 
rounds  ot  two  mmutea*  duration  each, 
and  that  the  said  Palmer  was  declared 
the  winner  on  points,  but  they  denv 
that  any  contest  took  place  in  accord- 
ance with  the  terms  of  the  said  con- 
tracts marked    *'  A." 

12.  Tho  defendants  say  further  that 
under  tho  provisions  ot  the  contracts 
annexed  to  the  declaration  and  marked 
"A,*'  the  fourth  defendant  in  his  capa- 
city as  sports  editor,  *'  Cape  Arg^s," 
Capo  Town,  was  constituted  stake- 
holder of  the  said  purse  of  £500,  wliMih 
was  duly  deposited  with  him  in  teruis 
of  the  said  contracts,  and  thereupon  is 
was  his  duty  an  such  stakeholder  only 
to  {>ay  over  the  amount  of  the  said 
purse  to  the  winner  of  the  said  contest 
upon  proof  to  his  satisfaction  that  tho 
terms  and  conditions  of  tho  said  con- 
tracts had  been  faithfully  carried  out 
by  the  said  Palmer  and  the  plaintiff, 
and  not  otherwise.  Neither  the  plain- 
tiff, nor  tho  said  Palmer,  nor  any  other 
person  produced  any  such  proof,  and 
the  fourth  defendant  acting  lawfully 
and  ftorui  fiihy  and  under  the  i)rovisions 
of  the  said  contracts,  refused  to  pay 
over  the  amount  of  the  said  purse  or 
any  portion  thereof  to  the  plaintiff  or 
the  said  Palmer. 

13.  Save  as  above,  and  save  that  they 
admit  that  they  refuse  to  pay  to  plain- 
tiff the  said  sum  of  £250,  or  any  portion 
thereof,  the  defendants  deny  tho  alle- 
gations in  paragraphs  4,  5,  6,  7,  8,  9, 
10.  11,  and  12. 

Wherefore  the  defendants  pray  that 
the  plaintiff's  claim  may  be  dismissed 
with  costs. 

The  fourth  defendant's  oxcvption  and 
plea  was   as   follows : 

The  fourth  dofondant  exceiptn  to  tJic 
p^iainitiff's  declaration,  in  that  it  dis- 
oloecB  no  cause  of  action  againivt  tlio 
said  defendant,  and  prays  that  the  oaJd 
dcolaratdoii  may  be  set  aside  with  eoets. 

And  for  a  plf^a  to  the  aaid  declara- 
tion, in  case  the  above  exception 
.should  lx>  overruled,  the  fourth  dcfen- 
dant   says : 

1.  Ho  a<hnii8  that  the  plaintiff  and 
tho  firht  an<l  second  defendants  reside 
in  Cape  Tci'wn.  but  has  no  knowledge 
of  the  other  allegatione  in  paragraphs 
1   and  2. 

2.  He  admit«  paragraph  3,  save  ihaX 
he  says  thait  in  tlie  m<ni<th«  of  July  and 
August,  1904.  he  was  actiiig  tempor- 
arily as  Siports  Editor,  during  the  alb- 
senoe  of  the  Sports  Editor  froni  this 
Colony,  and  tiuLt  he  is  no  longer  in  the 
employ  of  the  third  defendant. 


186 


<( 


CAPE  TBiES*'  LAW  REPORTS. 


3.  He  admits  ]»aragraph8  4  and  5, 
save  that  he  eays  that  the  dat«  whi!ii 
tiie  said  ag^rceiiKnit  was  concluded  wa6 
the  16t:h   Ju-ly,    1904. 

4.  As  to  -panagtraph  6,  ho  admits  tliat 
lio  knew  of  the  exooirtdon  of  the  said 
contract,  and  consented  thereto,  so  far 
as  he  wae  eon<?erned,  but  otherwise  he 
denies  the    a.) legations    in  paragraph    6. 

5.  An  to  paragraph  7.  he  admits  that 
he  agreed  to  lioJd  the  sum  of  £500, 
if  paid  to  him  by  the  first  and  second 
d(*<fend«in'ts,  ae  stakeholder,  ajid  to  pay 
the  .^ame,  in  the  event  of  the  plaintitlF 
and  Palmer  duly  carrying  ou-t  their 
agreement  with  the  first  and  second 
dofcndeirts.  to  the  winner  of  the  said 
coiute^t.  He  denies  that  in  no  agroo- 
iii>g  he  acted  within  the  scope  of  hi<s 
duty  or  with  the  knowledge  or  con- 
^ent  of  the  third  defendant,  thouph  he 
admits  that  he  purported  to  act  in  his 
capaorty  aa  sports  Bjditor.  Save  as 
alx>ve.  ho  denies  the  allegations  in 
para^iraph   7. 

6.  As  to  paragraph  8,  he  admits  tiiat 
tlie  plaintitt  and  Palmer  outercd  iivto 
the  agreement,  copy  whereof  is  marked 
A.  but  he  says  tliat  he  received  no 
notice  of  su<\li  agreenHMit  iin<til  aiter 
the  contest  had  t«ken  place.  Ho  denies 
tlMit  he  actjuiesced  in  the  said  arrange- 
ment. 

7.  He  sayj*.  further,  that  tho  «aid 
agreement  B  vtoa  entered  in»to  in  vioba- 
•tion  o(  the  rules  and  cuMoms  affecting 
the  s^Tort  ktK^wn  ae  boxing,  and  In 
4>reach  of  the  Sigreement  between  tiie 
plaintiff  and  Palmer  and  the  fir»t  and 
Bt^'ond  defendants,  and  more  particu- 
larly of  clanst  (2)  thereof. 

8.  Ho  has  no  knowleitgo  of  the  alle- 
gations  in   paragraph   9. 

9.  Art  to  panargraph  10,  ho  admits 
that  tne  date  of  the  contest  was  al<ter- 
o<l  to  August  8.  He  admits  that  prior 
to  the  cx>i>lt.'Ht,  ihe  first  and  second 
defendants  handed  him  a  chotiuo  for 
£500,  but  says  that  he  has  not  castod 
the  said  cheque  or  demanded  payment 
thereof.  Ho  denies  that  tho  thiixl  de- 
fendant know  or  consented  to  his  re- 
ceiving  the  said  cheque. 

10.  As  to  paragnaph  11,  ho  admits 
that  the  contest  took  place  on  the  said 
day.  and  thsvt  the  decision  was  in 
favour  of  PaJmer  on  points,  butt  denies 
that  the  arrangements  were  made  by 
or  with  the  saiKitdon  of  the  third  and 
fourth  defendants. 

11.  As  to  panagraph  12.  he  ad  mitts 
that  ho  has  refused  to  pay  the  p'ain- 
tiff  the  sum  of  £250,  or  any  part  there- 
of, and  says  by  reason  of  matters  here- 
inafter set  forth,  he  was  and  is  justi- 
fied in  so  refusing.  He  admits  that  the 
first  and  second  defendants  have  inter- 
dicted him  from  so  paying,  and  says 
further,  that  they  have  stopped  payment 
of  the  said  che<|ue  at  the  bank.  Save 
as  above,  he  denies  the  allegations  in 
paragraph  12,  90  far  as  they  refer  to 
him. 


12.  Ho  says  further,  that  it  was  his 
duty  as  stakeholder  to  hand  over  the 
Htakcs  only  to  the  winner  of  the  said 
contest,  if  such  winner  had  duly  ob- 
served the  rules  and  customs  of  boxing, 
and  fulfilled  his  agreement  with  the 
first  and  second  defendants,  and  in  the 
event  of  any  dis{)ute  arising  bot\ve»*ii 
tho  parties  to  the  agreement  "  A,'*  to 
retain  tho  stakes  in  his  i^ossession,  and 
to  refuse  to  hand  them  over  until  such 
dispute  had  been  duly  decided. 

13.  The  plaintiff  was  not  the  winner 
of  the  saia  contest,  and  had  not  duly 
observed  tho  rules  and  customs  of  box- 
ing or  fulfilled  his  agreement  with  the 
first  afid  second  defendants,  as  herein- 
before set  forth  in  paragraph  7,  and 
I  trior  to  the  plaintiff  demanding  from 
the  fourth  defendant  tho  sum  of  £250, 
the  first  and  second  defendants  had 
ordered  the  fourth  defendant  not  to  pay 
over  tho  said  sum  or  any  part  thereof, 
and  had  given  him  notice  of  a  dispute 
between  themselves  and  tho  plaintiff  a.s 
to  tho  due  fulfilment  by  the  plaintiff 
of  his  contract   with  them. 

14.  The  fourth  defendant  still  retains 
l>os8ession  of  tho  said  cheque  and  is 
ready  and  willing  to  deliver  the  same 
to  whomsoever  this  Honourable  Court 
may  direct. 

Wherefore  the  fourth  defendant  prays 
that  the  plaintifTs  claim  against  him 
may  be  dismissed  with  costs. 

[Do  Villiers,  C.J. :  It  is  admitted  that 
the  plaintiff  lost  the  contest;  how  then 
could   he  claim  tho  money?! 

Mr.  Burton :  They  agreed  that  the 
prize  should  be  divided. 

[Do  Villiers,  C.  J. :  That  agreement 
was  between  Austin  and  Palmer  only.] 

Notice  of  it  \vaa  given  to  the  stake- 
holder. Tho  division  of  tho  prize  re- 
moves every  element  of  gambling,  and 
is  .so  far  a  benefit  to  the  community. 
These  men  wero  i>aid  simply  for  an  ex- 
hibition of  their  skill. 

fOo  Villiers,  C.J. :  But  the  contract 
says  that  the  prize  was  to  be  given  to 
th.?  winner.] 

The  people  who  ^avc  the  prize  ac- 
quiesced in  the  division  of  the  priz<', 
and  by  their  acquiescence  varied  tho 
original  contract. 

[Do  Villiers,  C.J. :  This  arrangement 
as  to  the  division  of  the  i)rizc  was  only 
between  Austin  and  Palmer.  How  can 
a  prize  be  given  to  an  unsuccessful 
contestant?] 

Thoy  were  both  paid  for  assisting  in 
a  public  performance. 

[Do  Villiers,  C.J. :  What  is  the  ex- 
ception?! 

Mr.  Gardiner:  We  say  that  this  was 
an  illegal  contract.  English  authorities 
go  to  show  that  all  prize-fights  are 
illegal. 

[Do  Villiers,  C.J. :  On  what  ground*;.?] 
(1)  They  are  a  breach  of  the  peact. 
(2)  They     expose  the  combatants  to  un- 
necessary    danger.    (3)  They  are  demo- 


"CAPE  TIMES"  LAW  REPORTS. 


18^ 


BASBOX    V.   BECK. 

Mr.  P.  Joneg  moved  to  make  absolute 
a  rule  ntn,  allowing  Mrs.  Beck  to  sue  in 
forma  pauperis  for  a  certain  sum  of 
money  on  an  insurance  policy. 

Rule  made  absolute,  Mr.  Gardiner  to 
Kt  u  couMel,  and  Messrs.  Silberbauer, 
wahl  and  Fuller  as  attorneys. 


Ex  parte  TBIBGABDT. 

Mr.  ?.  Jones  moved  for  leave  to  pass 
a  mortgage  bond  in  lieu  of  another 
bond  which  had  been  prematurely  paid 
on  the  anticipation  of  a  sale  of  the  pro- 
perty, which,  however,  did  not  go 
through,  aa  the  farm  could  not  be  sold 
until  the  death  of  the  survivor.  £1,000 
wia  borrowed  to  pay  off  the  first  mort- 
Jjp  bond,  and  it  was  sought  now  to 
Kwem  this  by  the  passing  of  another 
bond. 

Order  granted    as    prayed. 


Ex  parte  LLOYD. 

Mr.  Pyemont  moved,  on  behalf  of  the 

StitwDer,  a  minor  son  of  the  late 
ortimer  Lloyd,  of  Kynsna,  for  an 
oraer  authorising  the  Master  to  pay  out 
£216  nd  £44  m  the  estate  of  his  late 
iMher.  Counsel  stated  that  the  appli- 
«nt  would  not  be  of  age  until  June, 
^,  and  he  was  anxious  to  earn  his 
o»n  liTin^  as  a  transport  rider  in  the 
%wa  district. 
™Pjoy.  J.,  said,  in     this     particular 

.^S!'  '^'^f  *®  ^^  benefit  of  the  minor, 
»"w>ngh  be  was  not  in  favour  of  such 
»  practice. 


JBp  parte  martin. 

Mr.    Stniben    moved  for    an      order 
Mtfiorifiinff  the  Registrar  of     Deeds  to 
jj«»  trangfer  of    certain    property  which 
^  petitioner  had  settled  on  his     wife 
Of  ante-nuptial     contract,  with     certain 
^Jfjdrtions,  inter  alia,  if  there  were  any 
cn/dren,  that  it  was  to  divert  to  them, 
lately,  there  had  been  an  exoeptionally 
Rood  offer  for  the  property,  ancf  counsel 
aaid  tluit  it  would   be  to  the  benefit  of 
*  aJi^     *nd  children  to  allow  transfer. 
Order  granted,  on  condition    the  pur- 
chase    price  apply  to  the  reduction    of 
we  payment  of  a  certain  bond,  and  the 
balance  to  be  handed  over  to  the  Master 
of  this  Court,  or  some  trustee  to  be  ap- 
proved of  and  appointed  by  him,  to  be 
invested  by  him  on  first  mortgage     for 
the  benefit  of  the  petitioner,     Winifred 
Martin  duringr  ber  lifetime,  and  of  the 
a«oe  of  marnage  after  her  death. 


CAIKNCROSS  V.  LIZA  MORE. 

Dr.  Rainsford  moved  for  leave  to  at- 
Uch  ceruin  property  at  Oudtshoom, 
»»  order  to  foi|nd     jurisdiction,  and  for 


leave  to  sue  by  edictal  citation  for  pay- 
ment of  a  certain  bond.  The  defendant 
now  could  not  be  found  and  was  last 
heard  of  in  Krugersdorp. 

Order  of  attachment  granted,  with 
leave  to  sue  edictally.  citation  and  all 
notices  be  served  together,  personal  ser- 
vice, if  possible,  failing  which,  one  pub- 
lication in  the  '*  Oudtshoorn  Courant  '* 
and  one  in  a  Krugersdorp  paper,  return 
day,  15th  April. 


JSet  parte  bstate  badrmhorst. 

'  Mr.  P.  Jones  moved,  on  behalf  of  the 
petitioners,  who  are  execuCora  dative 
in  the  estate  'of  their  late  father,  and 
executors  testamentarv  in  the  estate  of 
their  late  mother,  for  leave  to  pa«s 
transfer  of  certain  property  at  Hope 
Town,  which  one  ot  them  bought  out 
of  the  estate. 

The  matter  waa  ordered  to  stand  over 
for  the  production  of  affidavits  aa  to  the 
price  the  property  had  realised,  and 
what  publicity  was  given  to  the  sale. 


He  parte  E8TATB  RNYMAN. 

Mr.  W.  P.  Buchanan  applied  for  leave 
to  pass  transfer  of  certain  property. 
Petitioner  was  executor  dative  in  his 
granddau^hter*s  estate,  and  ho  had  put 
up  a  piece  of  land  in  the  estate  for 
public  auction.  The  sale  was  well  at- 
tended, and  the  petitioner's  bid  of  £175 
was  the  highest. 

Granted. 


Ear  parte  ESTATE  ERASMUS. 

Mr.  Struben  applied  for  leave  to  sell 
certain  property  at  Somerset  East.  The 
property  was  in  a  dilapidated  condi- 
tion, and  unprofitable. 

Granted,  the  shares  of  the  minors  to 
be  paid  to  the  Master. 


Ear  parte  SOUTH  AFRICAN  BRICK  AND 
LIMB  CO.,  LTD. 

Mr.  P.  Jones  moved  for  leave  to  pass 
transfer  of  certain  landed  property  at 
Observatory-road.  The  applicant  was 
the  only  surviving  trustee  of  the  com- 
pany. 

An  order  was  granted  that  the  liqui- 
dators be  authorised  to  transfer  the  land 
in   question. 


Ex  parte  ESTATE  PFACOCK. 

Mr.  P.  Jones  moved,  on  behalf  of  the 
executor  testamentarv  of  the  estate  of 
the  late  John  Peacock,  for  leave  to  pur- 
chase certain  property  at  Queen's  Town. 
He  had  obtained  consent  of  all  the 
heirs  to  take  it  over  on  the  valuation  of 
a  sworn  appraiser. 

Granted. 


190 


i< 


CAPE  TIMES"   LAW  REPORTS. 


Ejp  parffi  BSTATB  DALY. 

Mr.  P.  Jones  moved,  or.  behalf  of  one 
of  the  executors  dative  in  the  estate,  for 
leave  to  i)ass  transfer  of  certain  pro- 
l>orty  which  was  purchased  at  public 
auction. 

C  ran  ted. 


SUPREME  COURT 


FIRST    DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Ma  ASDORP.J 


TRIAL  CAUSE. 


DOMINGO    V.    COLONIAL 
ftOVERNMKNT. 


C      19.).-). 
<  Mar.    2nd. 
{     .,      :ird. 


Datinmm      hijuHae   —    Artificial 
change  of  course  of  river. 

This  was  an  action  brought  by  Gabiel 
Domingo,  of  the  Paarl,  against  the 
(V>louial  Government  to  rocover  a  sum 
of  £50  for  damage  to  his  jjroporty 
caused  by  the  alleged  negligent  construc- 
tion  of   a   bridge  over  tne  Berg   River. 

The  declaration  set  out  that  the  plain- 
tiff was  the  owner  of  certain  land 
fiituatod  in  the  town.^hip  of  the  Paarl, 
and  bounded  on  the  east  side  by  the 
Berg  River.  The  defendant  was  the 
Hon.  T.  W.  Smartt,  Commissioner  of 
Works.  In  or  about  the  year  1900  the 
(iovernment  constructed  a  certain 
bridge  across  the  said  river  near  to  and 
above  the  plaintiffs  land.  Thereafter 
in  or  about  January,  1901,  the  river 
l)ocame  flooded,  and  owing  to  the 
obstruction  caused  by  the  bridge,  which 
wa«  made  negligently  and  without  pro- 
tection  against  flood's,  the  waters  over- 
flowed the  bank  of  the  said  river,  in 
conse<juen«>  whereof  the  CJovernment 
constructed  certain  protective  works  in 
order  to  prevent  a  like  occurrence  in  the 
future.  In  September.  1904,  the  said 
river  again  became  flooded,  and  in  con- 
se<|uence  of  the  protective  works  being 
negligently  constructed,  the  flood  waters, 
contrary  to  their  natural  course,  flowed 
round  and  into  the  said  protective  works 
and  upon  the  plaintiff's  land,  washing 
away  portion  of  his  ^Joil  and  garden 
and  a  number  of  the  poplar  trees.  Ho 
claimed  (1)  £50  as  and  for  damages; 
(2)  alternative  relief;  and  (3)  costs  of 
suit. 

Defendants,  in  their  plea,  said  tliat 
the  bridge  was  constructed  under  lawful 
authority,  ami  was  properly  ocjnstructed, 
ftnd   all   reasonable      precautions      were 


taken  against  ordinary  and  usual  Joods 
in  the  nver.  In  January,  1301,  an 
extraordinary  and  violent  flood  oc- 
curred, which  swept  away  the  said 
bridge.  Thev  admitted  that  the  banks 
were  eroded.  Thereafter,  protective 
works  were  built.  Th©  defendants 
denied  negligence,  and  prayed  that,  the 
claim  might   be  dismissed    Wiith   costs. 

The   replication    was   general. 

Mr.  J.  E.  U.  de  Villiere  was  for  *he 
plaintiff ;  Mr.  Howell  Jones  (with  him 
Mr.  Nightingale)  was  for  the  defen- 
dants. 

Mr.  De  Villiers  applied  for  leave  to 
amend  the  replication  by  inserting  th© 
following  words :  As  to  paragraph  3  of 
the  defendant.-*'  p>Iea  the  plaintiff  ad- 
mits that  the  said  bridge  was  washed 
away  in  January,  1901,  but  he  says  that 
the  materials  ajid  debris  therein  remain- 
ed lying,  and  are  still  lying  in  the  said 
river,  above  the  plaintiff's  land,  ob- 
.structing  the  natural  flow  of  the  said 
river,  and  diverting  the  said  river  on  to 
the  plaintiff's  land. 

Air.  Jones  said  that  the  defendants 
denied  the  allegations  eml>odied  in  the 
proposed  amendment,  and  he  was  placed 
in  rather  an  awkward  position  if  his 
learned  friend  were  allowed  to  put  fresh 
matter  on  the  pleadings  which  the  Gov- 
ernment had  no  opportunity  of  deny- 
ing. Furthermore,  he  would  point  out 
that  the  declaration  did  not  allege  any 
damage  as  having  been  caused  to  the 
plaintiff  through  the  alleged  negligent 
con.struction  ot  this  bridge. 

Mr.  De  Villiers  said  that  the  Govern- 
ment had  had  notice  of  the  pro]>osed 
amendment. 

Maasdorp.  J.,  said  he  thought  they 
should  have  the  whole  of  the  case  bef(»re 
the  Court.  He  consented  to  the  pro- 
posal of  the  plaintiff  to  embody  the  pro- 
posed amend ment  as  a  paragraph  of 
his  declaration,  and  gave  leave  to  the 
defendants  to  amend  their  plea  so  far 
as  this  addition  was  concerned. 

Gabiel  Domingo  (the  plaintiff),  a 
Malay,  said  he  was  the  owner  of  cer- 
tain property  on  the  banks  of  the  Berg 
River.  He  was  born  at  the  Paarl. 
The  stream  adjacent  to  his  property 
was  broad  prior  to  the  temporary  bridge 
erected  by  the  Government.  Mr. 
lioubser's  property  was  situate  between 
the  bridge  and   witness's  propertv. 

M^iasdorp,  J.,  a.s-ked  whether  tfiit?  was 
the  old   Lady  Grey  Bridge? 

Mr.  Jones*  sraid  that  '\n  1900  the  old 
Lady  Grey  Bridge  got  into  a  defective 
state,  and  the  Government  then  erected 
the    temporary    bridge,    while    they    re- 

Eairf»d,  or  really  recoiistructed,  the  old 
ridge.  The  old  Lady  Grev  Bridge 
was  situate  below  the  plaintiff's  pro- 
iwrty,  while  the  temporary  bridge  was 
alwye  his  propeit3r. 

Witness  (continuing  his  evidence)  said 
that  in  January,  1901,  the  temporary 
bridge,  which  had  been  made  of  stone's 
from  tlie  bed,  railway  sleepere  and  iron, 
was  washed  away  after  the  flood.      Th^ 


"CAPE  TIMES"   LAW  REPORTS. 


191 


and  flked  up,  and  the  usual  flow  of  the 
river  htd  been  changed.  In  summer 
the  water  onlv  went  through  a  little 
channel  imtead  of  over  the  whole  bed. 
After  the  disturbanoe  the  GovernmeDt 
collected  the  materials,  and  heaned 
one  portion  of  the  debris  on  the  ^ide 
of  Mr.  Loubeer's  property  and  put  the 
other  on  the  aand  bank  on  the 
eastern  side.  The  sand  bank  had  en- 
larged in  the  meantime.  Mr.  Loubser^s 
land,  which  had  been  partially  washed 
away,  was  filled  up  a^ain  by  the  Gov- 
emmeDi,  and  protective  battens  were 
put  up.  Witness's  property  was  not 
protected;  at  that  time,  as  a  matter  of 
fact,  it  was  not  necessary.  During  a 
flood,  m  1902,  part  of  the  soil  deposited 
on  Mr.  LouWr's  ground  was  again 
washed  away :  the  same  thing  took  place 
in  1903.  In  Septemiber,  1904,  the  water 
again  burst  over  Loubser's  property,  and 
took  away  some  of  his  ground.  A  por- 
tion of  witness's  ground  was  also  car- 
ried away.  The  increase  in  the  size 
of  the  sand  bank  had  caused  the  watci 
to  rush  with  greater  force  toward.s  the 
Mdo  of  Loubser's  property.  From 
witness's  property  the  bank  slojped 
down  ahout  10  or  12  feet  to  the  river 
bed  The  embankment  was  now  about 
12  yards  nearer  to  bis  house  than  it 
was  before  the  last  flood,  and  was  only 
about  5  yards  distant.  Some  20  or 
30  poplar  trees  had  been  washed  away. 
Instead  of  having  good  soil,  he  had 
DOW  woh  sand.  It  would  take  about  a 
thousand  cartlods  of  soil  to  fill  the  gap 
which  bad  been  caused,  and  it  would 
also  be  necessary  to  make  up  the  street 
tgain.  He  thought  there  was  danger 
to  bis  house.  He  would  be  content  if 
the  Ck>vemment  filled  up  the  hole,  and 
planted  trees,  and  protected  him  against 
a  further  flood.  He  should  also  want 
to  be  paid  for  the  trees  he  had  lost. 
He  thought  the  wastfiawia^  lied  seriouH- 
ly  affected  the  value  of  his  property  on 
ucount  of  the  danger  of  another  similar 
<«currence. 

Cross-examined  by  Mr.  Jones:  When 
he  bought  his  property  the  first  flood 
had  occurred,  and  steps  had  been  taken 
to  protect  Loubser's  propertv.  He 
then  knew  that  the  bridge  hacl  divert- 
ed the  flow.  He  did  not  think  at  that 
time  thiit  the  diversion  of  the  stream 
woald  damage  his  property.  Ho 
attributed  the  damage  done  to  his  pro- 
perty to  the  sand  bank,  and  part  of  the 
temporary  bridge  that  was  still  lying 
in  the  river.  He  did  not  consider  that 
the  battens  put  up  against  the  property 
of  Loubser  were  sufficient  to  hold  against 
floods.  He  estimated  that  the  trees 
were  worth  £5  each. 

John  W.  Price  Logan,  Government 
land  purveyor,  who  had  prepared  tho 
plan  put  in,  said  that  the  debris  of  the 
tmporary  bridge  was  about  25  ft. 
•*mn  »nd  5  or  6  ft.  high. 

Pietcr  Johanne.4  Loubser,  of  the  Paarl, 
stid  that  his  land  adjoined  the  plaintiff's 
prcperty.   Before  the  Government  erect- 


ed the  temporary  bridge,  the  bed  of  the 
river  was  level,  and  the  water  flowed 
uniformly  along  the  course.  He  was 
away  at  the  time  the  bridge  was  erected, 
but  on  his  return  he  found  that  the  cur- 
rent of  the  stream  had  been  diverted  to 
his  side  of  the  river,  and  had  done  mis- 
chief to  pari  of  his  property.  The  (jov- 
ernment  filled  in  tne  gap  on  his  land 
caused  by  the  flood.  In  1903  the  river 
was  again  in  flood,  and  the  water  wont 
over,  and  into  the  protective  works.  He 
claimed  damages  from  the  Government. 
In  reply,  he  was  referred  by  the  Railway 
Department  to  the  Municipality.  Ho 
afterwards  sued  the  Government  for 
damages  in  the  sum  of  £100.  The 
Government  did  not  file  a  plea  to  hu^  de. 
cla ration,  but  made  him  an  offer  of  £25, 
with  taxed  attorney  and  client  co»t«i, 
such  costs  not  to  exceed  £15.  Witness 
accepted  £25.  He  believed  his  attor- 
neys agreed  to  a  condition  in  the  terms 
of  settlement  that  the  (lovernment 
.«%}:Ould  not  be  held  liable  for  any  fur- 
ther damage  due  to  the  same  eause.  His 
property  still  suffered  from  the  flow  ol 
tho  river.  He  faw  the  damage  done  to 
th«»  plaintiff's  property.  Ho  shonld 
think  a  portion  of  about  10  or  15  yards 
in  breadth  was  carried  away.  He  con- 
sidered that  the  plaintiff's  house  stood 
in  ^reat  danger.  He  considered  that  the 
eating  away  of  the  land  on  his  own  and 
plaintiff's  property  was  duo  to  the  bridge 
having  been  erected  by  the  Government. 
Even  people  who  lived  in  some  of  wit- 
ness's houstes  had  given  him  notice,  lie- 
cause  they  wore  afraid  of  the  winter 
rains. 

Cross-examined :  He  did  not  tell  the 
Government  that  ho  was  satisfied  with 
the  protective  works  that  they  put  up. 
He  admitted  his  attorney  wrote  inform- 
ing the  Government  that  he  was  satis- 
fied. 

Re-examined :  He  considered  that  the 
plaint  iff '«i  property  was  worth  £160  less 
since  the  river  had  begun  to  overflow 
on  to  it. 

I/aak  Jacob  de  Villiers,  of  Lady  Grey 
Bridge,  said  that  after  the  flood  of 
January.  1901,  in  which  the  temporary 
hnidgc  was  oatpeixed,  the  river  course 
was  altered,  and  the  water  had  since 
flowed  in  quite  a  different  channel  from 
formerly. 

Johannes  Everardus  Louw,  of  the 
Paarl,  said  he  calculated  that  about 
1.000  yards  of  earth  had  been  washed 
away  from  plaintiff's  ground  by  the 
river.      He  valued  tlie  .soil  at  Is.  a  load. 

Samuel  Japtha,  of  the  Paarl,  ab^o 
spoke  to  the  diversion  of  the  river 
course  after  the  flood  of  January,   1901. 

Mr.   De  Vdlliers  closed  hiir^  ease. 

John  S.  Basson,  photographer,  the 
Paarl,  ^poke  as  to  several  photographs 
which  he  had  taken  of  the  locality, 
where  the  damage  was  alleged  to  have 
been  done. 

W.  Westhoven,  member  of  the  Insti- 
tute of  Civil  Engineers,  and  an  official 
of  the  Public  Works  Department,    said 


192 


"CAPE  TIMES*'   LAW  REPORTS. 


that  the  Department,  when  the  repairs 
were  going:  at  the  Old  Lady  Grey 
Bridge,  wanted  a  drift  for  temporary 
purposes,  but  the  Municipality  insisted 
upon  a  temporary  bridge.  The  tem- 
porary bridge  erected  was,  he  thought, 
sufBcient  to  stand  al]  ordinary  summer 
floods.  They  were  exi>ecting  to  got 
the  permanent  bridge  finished  oef ore  any 
largo  floods  came  down  the  river  in 
winter.  A  flood  of  4  feet  had  come 
down  the  river.  The  bridge  ended  on  a 
sand  bank.  On  the  15th  January,  1901, 
a  very  high  flood  occurred.  According 
t«.  the  department's  record,  it  was  nn 
exceptionally  high  flood,  higher  than 
the  ordinary  winter  floods.  The  Mayor 
of  the  Paarl  wrote  savin er  that  there 
had  not  been  a  higher  flood  for  thirty 
years.  The  bridge  was  constructed  of 
•'sleeper  cradles."  The  "cradles" 
were  founded  upon  sand,  and  were  under- 
washed.  The  whole  bridge  was  against 
the  current.  After  the  collapse,  the 
bridge  was  taken  to  pieces,  part  of  the 
material  was  pJaced  on  the  east  bank 
and  part  on  the  west  bank,  because  they 
expected  to  have  to  rebuild  the  bridge. 
They,  however,  received  no  instructions 
from  the  Railway  Department.  The 
materials  would  in  no  way  cause  a  diver- 
sion of  the  stream ;  it  was  absurd  to  say 
that  they  could.  As  to  the  protective 
works,  he  considered  that  these  were 
sufficient  for  the  purpose  of  replacing 
Loubser's  land  in  its  former  condition. 
It  was  not  uncommon  for  not  only  the 
Berg  River  but  every  river  in  South 
Africa  to  change  its  course.  There  had 
been  no  complaints  about  debris  having 
been  loft  on  the  banks  of  the  river. 

In  cross-examination,  witness  said  that 
the  damages  paid  by  the  Government  to 
Loubser,  whose  land  had  been  eroded, 
referred  to  the  trees  which  had  been 
washed  away.  He  did  not  consider 
that  Domingo  was  entitled  to  any  dam- 
ages ;  he  did  not  attach  any  value  to  the 
trees.  Ho  did  not  think  that  fifty 
cart-loads  of  earth  had  been  washed  away 
from  plaintiff's  property.  The  protec- 
tive works  were  never  considered  to  be  a 
permanent  feature;  they  were  simjily 
put  there  to  replace  the  bank  opposite 
Loubser's  property  in  its  former  cc:. 
dition. 

James  Chadwick  said  that  in  1900  and 
1901  he  was  a  clerk  of  works  in  the  Pub- 
lic Works  Department,  and  that  he 
supervised  the  erection  of  the  temporary 
bridge.  He  considered  that  it  was  well 
constructed.  The  bridge  was  tested  by 
a  4  feet  flood.  A  furious  flood  of  about 
10  or  12  feet  of  water,  travelling  at  8  to 
10  miles  an  hour,  swept  away  the  bridge 
in  January,  1901. 

Thomas  Weston  Perry,  civil  engineer, 
of  the  Public  Works  Department,  also 
gave  evidence. 

Mr.   Jones   closed  his   oase. 

Counsel  having  been  heard  in  argu- 
ment on   the  facts, 

Maa<»dorf>,  J.,  in  giving  judgment, 
said  that,   in  his  opinion,  the  washaway 


of  the  bank  on  plaintiff's  property  could 
be  attributed  to  nothing  else  than  the 
manner  in  which  the  sheeting  was  put 
up  on  Loubser's  land.  It  was  put  up 
by  the  Government.  It  did  not  seem 
to  him  that  the  niaterial  placed  in  the 
river  bed  materially  affected  the  flow 
of  the  river.  He  found  that  plaintiff 
had  lost  some  poplar  trees  and  a  little 
soil,  and  that  he  was  entitled  to  small 
damages.  The  sum  claimed,  it  seemed 
to  him.  would  more  or  lees  cover  all 
the  damage  to  plaintiff's  property.  Ho 
thought  tne  parties  might  intimate  to 
him  if  the.y  were  prepared  to  consent 
to  pros[K?ctive  damages  to  close  the  mat- 
tor  entirely.  If  he  gave  small  dam- 
ages, plaintiff  might  be  able  to  recover 
continuing  damages. 

Mr.  De  Villiera  said  his  cliont  pre- 
ferred actual  damages. 

Judgment  was  thereupon  given  for  the 
plaintiff  for  £10,  with  costs,  including 
plaintiff's  expenses  as  a  witness  and 
actual  cost  of  making  the  plan. 

[Plaintiff's  Attorneys :  Michau  and 
De  Villiors;  Dofondant's  Attornoy«^: 
Reid    and    Nephew.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Chief  Justice  (the  Right 
Hon-  Sir  J  H.  de  Villiers.  P.O., 
K.C.M.G.,  LL.D.).  the  Hon  Sir  John 
Buchanan,  and  the  Hon.  Mr.  Justice 
Maasdorp.] 


BOSMAN.  POWIS  AND  CO.   V.  f        19C)5. 

NORDEN.  }  Mar.  3rd. 

Lease  of  licensed  premises  — 
Licence — Removal  of  busi- 
ness— Transfer  of  licence. 

The  plaintiff,  ihfi  kohhr  of 
Uceuct'f<  for  tiro  hotfh,  ami 
owner  of  the  land  with  the 
hoteh  theteon^  sold  the  lease^ 
licences,  goodicill^  furniture, 
and  all  contents  thereof,  and 
executed  a  lease  of  the  hotels 
for  five  years,  icith  a  right  of 
rentwal  for  another  five  years 
in  favour  of  the  defeiulants, 
who  obtained  from  the  Licen- 
sing Court  a  transfer  of  the 
,    licence  to  themselves. 


"CAPE  TIMES »'   LAW  REPORTS. 


193 


Held,  affirming  the  judgment 
of  a  Divisional  Court,  that 
th'^  (kfenihi/ttM  had  no  right, 
(Inriiiij  the  rnrrencfj  nf  the 
lens*-,  Ui  \einii\u\  thf  basintss 
and  the  licence  cattttecteil  thrre- 
inth  to  other  prtntisvs. 


This  was  an  appeal  from  a  judgment 
of  Mr.  Justice  Ilopley,  sitting  as  a  divi- 
woii  of  the  Supremu  Court,  in  an  action 
brought  against  the  pre.sont  appellants, 
Bosnian,  Puwis  and  Co.,  wine  merrhants, 
by  the  resjxindent  Norden,  for  a  declara- 
lion  of  rights  under  a  certain  agreement. 

Fmm  til.*  roocjrd  it  ap^xNarod  that  a 
tortaiu  agreement  was  Lontained 
ill  a  broker's  note,  an<l  a  lfa^> 
nijtio  «jij'.>*e«iuently  to  the  hrokorV 
noie.  llie  plaintiff  alleged  that  this 
agreement  thus  contained,  so  far  as  it 
hail  reference  to  certain  licences  of 
Loieh  that  were  leased,  had  only  the 
effect  of  transferring  the  licences  to  the 
(lefendams  pending  the  i)eriod  during 
which  the  lease  ran.  The  plaintiff  said, 
further,  that  when  the  documents  wore 
drawn  up.  he  raised  the  question  specific- 
ally *ith  regard  to  the  protection  and 
return  of  the  licences  to  him  upon  the 
termination  of  tlie  lease,  and  that  there- 
Uj'i'tt  Mr.  liosm^n,  who  was  a  memlx'r 
of  the  defendant  firm  to  nego- 
tiato  the  matter  with  him,  said 
that  they  could  enter  into  the 
leas<\  and  that  the  question  of  the  pro- 
tection of  the  licences  and  their  return 
to  plaintiff  could  be  arranged  subse<}uent- 
ly  The  plaintiff  also  laid  some  stress  on 
pertain  representations  made  by  Mr. 
J'*M-'ph,  the  broker  whom  ho  employed, 
and  who  was  present  at  the  negotiations. 

Mr.  Burton  (with  him  Mr.  Roux)  was 
for  the  apnjUants ;  Sir  If.  Juta.  K.C. 
(with  him  Mr.  Gardiner),  was  for  the  re- 
spondent. 

He  ViUiere,  C'.J.,  said  he  .supiicAod 
«hat  the  decision  of  the  appeal  would 
have  to  depend  entirely  upon  the  broker's 
note. 

Mr.  Bunon  said  he  took  it  that  that 
^as  so.  He  had  mentioned  the  matter 
of  the  representations,  which  were  plead- 
wl  very  fully  and  very  strongly  in  the 
declaration.  becaiLse  it  would  appear  to 
the  Court,  he  thought,  that  the  case  waa 
very  largely  baseil  upon  these  alleged 
representations.  Now,  these  representa- 
tions had  been  found  by  the  learned 
judge  iti  the  Court  below  not  proved,  and 
the  plaintiff  must  take  his  stand,  his 
lordship  admitted,  upon  the  legal  effect 
of  the  document.  The  (|UP.stion  then  was 
what,  in  view  of  the  circumstances  of 
[bis  contract,  must  be  taken  to  be  the 
Hal  effect  of  the  document.  The 
broker's  note  was  in  the  following  terms : 

Bought  from  Joseph  B.  Norden  and 
^m  to  Rosman.  Powis  and  Co.,  the 
Iwie,  licences,  goodwills,  furniture,  atid 

0 


all  contents,  and  the  whole  a«  a  goinff 
concern,   of  and   in   the  Old      Standard 
Hotel  and  the  Nil  Desperandum  Hotel, 
Kuil's  River,  with  the  exception  of  the 
fetock  of  liquors,  etc.,    for    the    sum    of 
£1,000,  u|X)M  me  following  terms— that  a 
IciLse  is   to  be  granted  by  the  seller  to 
the  purchaser    of  the  aforesaid  premises 
for  five  years,  at  a  monthly  rental  of  £36, 
purchaser  to  have  the  option  at  the  end  of 
the  period  of  five  years  of  taking  the  lease 
on  for  another  five  years,  at  a  rental  of 
£50."     ('lause  5  said  that  the  premises  to 
be  included  in  the  broker's  note  were  the 
Old  Standard  Hotel,  together  with    out- 
buildings,  and   half-portion   of  the      Nil 
Desperandum  Hotel.     Counsel  submitted 
that  uiwn  the  face  of  the  documents  the 
plfiintitf'fl  rights  must  stand  or  fall.     The 
effect  of  the  documents  was  to  transfer 
to  the  purchasers  the  licences  in  question, 
a.H  well  as  the  other  matters  contained. 
The  note  was  a  **  bought  and  sold  "  note. 
It  was  dear  that  the  lease  wna  bought. 
Ihe      apiiellants      maintaine<l    that    the 
£1.000  was  paid  for  the  right  to  obtain 
the  lease.     There  was  no  doubt  the  lease 
was   bought,   the  furniture   was  bought, 
and   the   other   things      stipulated    were 
bought.     The  appellants  did   not  for     a 
moment  suggest  that  they  bought     the 
property,    but   they   claimed    that      they 
had  bought  the  lease.     Looking  at     the 
intention  of  the   parties,      he  submitted 
that   it  was  a   fair  argument   that      the 
things  on  the  broker's  note    were  bought. 
He  contended  that  the  question  of  good- 
will could  not  be  confined  to  the  licences. 
As  to  the  licences,  the  question  was.  were 
the  appellants  holders  of  the  licences    as 
owners  of  the  licences  or  as  holders  of 
the   licences  during  the  continuance     of 
the  lease?      The     learned  judge  in  the 
Court    below   seemed    to   have      thought 
tluj«e  licences  were  old  licences     of  very 
great  value.      He  (counsel)  did  not  con- 
sider that  they  were  of  very  great  value, 
and   he   pointed   out  that   the      Colonial 
Orphan   Chamber,    as   a  matter  of   fact, 
had  been  very  reluctant  to  advance  any 
more  money  to  Norden.    Again,  Norden 
was  hard  pressed  for  money,  and  it  was 
quite  conceivable  that  he  agreed  to  accept 
£1  000  for  the  licences. 

Dp  VilLiers.  O.J.,  pn(fc  it  to  Mr.  Bur- 
ton whether  it  was  correc^t  to  speak  of 
'*»«>Min.g"    licences? 

Mr.  Burton  said  that  he  thought  it  waj 
clearly  correct.  Licences  were  regularly 
sold.  A  licence  was  a  personal  right  in 
respeot  of  certain   promises. 

I>e  VilJicre,  CJ.,  said  that  if  pro- 
mit^eis  were  «K>ld,  then  it  would  be  for 
the  now  owner  to  apply  for  a  trans»fer. 

Mr,  Burton  contended  that  under  this 
document  Bosman,  Powis  bought  w^hat- 
ever  right  Norden  had. 

Do  Villiers,  O. J.,  asked  whether  the 
licence  and  goodwill  were  not  matters 
applicable  to  certain   premises? 

Mr.  Burton  admitted  that  goodwill 
wa.i  jpcculiar  and  applicable  to  certain 
piemises.     He  contended,  however,    that 


L 


194 


"CAPE  TIMES"   LAW  REPORTS. 


tho  licence  wss  on  a  different  footing. 
Counsel  went  on  to  comment  upon  the 
lisk  of  the  renewal  being  refused,  and 
submitted  that  the  argument  of  inipro- 
bability  that  Norden  would  enter  into  a 
contract  of  this  sort  was  not  very  strung. 
He  contended  that  Nordon,  under  these 
documents,  divested  himself  of  all  rights 
tiiat  h«'  had.  Coiinsel  quoted  the  cases  of 
Ohhson'a  Cnpe  Bretcerie*  v.  Power  (10 
C.T.R.,  747),  and  OKUtotCa  v.  Kuhr'a 
Trustee  (11  C.T.R.,  165),  and  OhUson'a 
V.  rar»on  (11  C.T.R.,  165),  and  of  .S'.  ^. 
A/oM.  On  these  cases,  ho  urged  that  the 
licence  wae  a  personal  riirht  of  which 
tlie  holder  could  divesft  himself.  He 
also  quoted  the  English  case  of  Mawer 
V.  Himlmarsh  (Laiw  Times  Reports,  voi. 
28,  p.  644),  in  regard  to  the  question 
of  forfeiture   of   licences. 

Sir  H.  Ju'ta  drew  their  lordships* 
Bitteii-tion  to  heofcion  8,  Aot  44,  18o5, 
•which,  he  said,  was  for  the  protec- 
tion of  owners  and  lessons  where  the 
licence  was  in  danger  either  of  going 
awajr.  or  being  forfeited.  Under  tha»t 
section,  the  landlord,  in  the  case 
in  England  which  had  been  quoted, 
could  have  got  his  transfer.  It  seemed 
to  him  (Sir  Henry)  that  the  trouble 
arose  because  of  tne  confusion  that  a(>- 
pearcd,  according  to  Mr.  Bosman's  evi- 
dence, to  exist  in  the  licensed  victuallers* 
trode  in  Cape  Town.  They  seemed  to 
think  that  they  could  eell  a  licence.  They 
need  only  refer  to  one  section  to  see 
that  they  could  not  sell  a  licence.  Sec- 
tion 51  said  that  any  person  who,  dur- 
in.'^  the  currency  of  his  licence,  sold  or 
dispoi^ed  of  his  business  may  make  ap- 
plication to  the  R.M.  It  was  only  in 
respect  of  these  licensed  premi<«os  that 
there  could  be  a  temporary  transfer. 
Counsel  went  on  to  submit  that  it  was 
never  for  one  moment  supposed  that 
they  could  separate  the  licence  from  tho 
premises.  lie  rested  his  case  on  the 
contention  that  a  licence  was  not  a 
merchantable  article,  which  could  be 
handed  about  from  one  person  to  an- 
other, as  was  perfectly  clear  from  section 
56  of  the  Act. 

Mr.   Burton  having  been  heard  in  re- 


^'!je 


Vdlliere,  C.J. :  I  quite  agree  with 
Mr.  Burton  that  the  decision  of  this 
question  depends  upon  the  construction 
of  the  agreement  of  lease  ex- 
ecuted between  the  parties  and 
that  the  oonsrtruction  of  that 
agreement  depends  upon  the  terms  of 
the  broker's  note,  which  has  been  in- 
corporated with  the  agreement.  The 
broker's  note,  no  doubt.  u«es  the  words. 
**  bought  from  Joseph  Norden  and  sold 
to  Bosman,  Powis  and  Co.,  the  lease, 
licences,  goodwill,  furniture,  and  all  con- 
tents, and  so  forth,"  for  a  certain  price, 
but  it  is  clear  that  it  is  not  the  premises 
that  were  sold,  but  the  right  to  have  a 
lease  of  the  premises  executed  in  terms 
of  the  subsequent  part  of  the  broker's 
note.  If  this  haa  been  an  out-and-out 
sale,  th«re  would  have  been  no  difficulty 


whatever,  because  there  can  be  no  doubt 
that  tho  goodwill  would  have  gone  with 
the  sale,  that  the  sale  would   have  car- 
ried the  goodwill.        The    Question   was 
considered  by  the    Court    ot   Appeal    in 
Eiifrland  in  the  oaiNC  of  ex  parte  Punnett. 
In  that  cai>e  the      Master  of  the  RolU 
said:    ''It  is  miite  plain  that   the  good- 
will   of    a   public-house   pas.s(»s   with    the 
public-house.      In  such  a  case  tho  good- 
will is  the   mere  habit  of  tho   customers 
resorting  to  the  house.       It  is  not  what 
is  called  a  personal  goodwill."       In  the 
present   case,    however,  there  is    no  sale 
(jf  the   premises,    but   there  was  a   lea^ie 
ot   the  promises   for      five  years,    with  a 
right  or  renewal  for  another  five  years. 
Now  what  was  leased?   Not  merely  the 
premises,  but  *'  the  whole  as  a  going  con- 
corn,  of  and  in  the  Old  Standard  Hotel 
and  the  Nil  Dcv|K»randuni  Ilctol,  Kuil's 
River."     Two   hotels    were    included    in 
the  lease.       What  was  let  was  two  cer- 
tain  hotels,  qua   hotels.       The     question 
arises  whether  the  lessee  during  the  cur- 
rency of  this  lease  was  entitled  to  take 
active   steps,    by   means  of   which    thet-e 
premises  will  cease  to  be  hotels,  and  will 
cease  to  enjoy  the  benefit  of  tho  lease. 
In  my  opinion,  it  is  clear  from  the  con- 
tract that   he  should   not  be  allowed   to 
do  so.       It  would  be   quite   inconsist<»nt 
with   the  terms  of  this  contract  that  he 
should  be  allowed  to  do  that  during  tho 
currency    of    the   lease.       It   is   another 
question  whether  he  should  be  allowed 
to  be  perfectly  passive,  and  do  nothing 
and  thus  risk  the  loss  of  the  licence  on 
tlwit    account.     That   question    does    not 
arise  for  adjudication.     But,  I  am  clear- 
ly of  opinion  that  active  steps  he  should 
not  be  allowed  to  take,  because  it  would 
bo  quite  contrary  to  the  implied  terms 
of  this  contract.       Great  stress  has  Ixjen 
laid  on  the  fact  that  the  words  *'  bought 
and  .sold"  are  used,  but  it  is  clear  that 
the    licence    which   is  there    said    to   be 
sold  could   not  be  sold  qua  licence,    and 
that    the    goodwill    which   was  sold   was 
the  goodwill  of  the  leased  premises.     In 
th<^  same  way   as    the      goodwill  of  the 
public- ho u<!e,    according   to    the    Master 
of  the  Rolls  in  the  case  quoted,   .so  the 
goodwill  would  go  with    the    lease.       it 
would  not  extend  bejrond  the  term  of  the 
lease,  and  in  my  opinion   it  will  be  in- 
consistent with  the  contract  for  the  les- 
sees to  deal  with  the  goodwill,   and   the 
licence  in  such  a  manner  as  to  deprive 
the   owner  of  the  premises,    at    tho   ex- 
piration of  tFie  lease,  of  his  rights.     If, 
at  the  exjjiration  of  the  lea««e,  tliere  is  a 
licence  still   in  existence,    tlie  lessor,    in 
my  opinion,    will   be   entitled   to       that 
licence,   and   the  lessee  could  not  bo  al- 
lowed during  the  currency  of  that  lease 
to    do    anything    actively    bjr   means    of 
which  the  licence   or   goodwill    is  trans- 
ferred to  any  other  place.      The  Court  is 
aware  of  the  great  difficulty  which   the 
Legislature   has   thrown    in    the    way  of 
acquiring  fresh  lic<»nces.       There     are     a 

ffreat   many    re(iuirementfl    Ik? fore    fresh 
iccnces  can  be  ipsued,   there  may  be   a 


"CAPE  TIMES"   LAW  REPORTS. 


19.) 


majoriky  of  the   ratepayers    that     must 
consent,  and  the  Court   may      certainly 
tike  judicial  cogntaanoe  of  the  fact  that 
tbere  does  exist  the  s^reateat  difficulty  in 
obtaining  fresh  licences.       If,  therefore, 
the  defendants  iivere  no^ir  to  be  allowed 
to  traasfer  what  is  described  as  the  Old 
Standard  Hotel,  and   the   Nil   Desperan- 
dum  Hotel  to  two  other  premiiies,  and 
th»  deprive   those    jparticular    premises 
of  the  real  value  which  they  possess,   I 
think  it  would  be  clearly  contrary  to  the 
contract  entered   into.        For  these  sim- 
ple reaaons,   I    am  of  opinion    that  the 
jiidginent  was  right,  and  that  the  appeal 
must  be  dismissed,  with  costs. 

Buc^iaoan,  J.,  and  Maaadonp,  J., 
ooDcurred, 

[Appellants*  Attorneys :  Ziotsman 
and  Bosnian ;  Respondent's  Attorneys  : 
Sill-erbauer,  Wahl  and   FiiHor.] 


GENERAL  MOTION. 

Re  parte  HUBBEB8LRT  AND  WIPE. 

Mr.  M.  Bisset  again  mentioned  this 
matter,  which  was  a  petition  for  leare 
to  register  a  certain  ante-nuptial  con- 
tract. The  matter  had  been  standing 
over  for  production  of  the  contract, 
vhich  counsel  now  put  in. 

I^ve  was  granted  to  register  the  ante- 
nuptial contract,  saving  the  rights  of 
crediton  who  have  become  sucri  before 
registration. 


SECOND  DIVISION. 


[Before  the  Hon,  Mr.  Justice  HOPLKY.] 


TRIAL  CAUSES. 

H-IILLIP  V.  MCKILLIP.       {  y^l^%^^ 

Mr.  J.  E.  R.  de  Yilliers  moved,  on 
behalf  of  the  wife,  for  a  decree  of 
jadieial  separation^  from  her  husband 
on  the  ground  of  his  incurable  drunken- 
D^B.  The  parties  were  married  in 
community  of  property  at  Cape  Town 
m  1883.  There  was  one  male  child  of 
nine  years  of  age  of  the  marriage.  The 
Applicant  brought  certain  landed  pro- 
|»rty  at  Green  Point  and  Port  Alfred 
into  the  estate.  Respondent  never  oon- 
buted  anything,  but  had  mortgaged 
the  property  and  squandered  the  money. 
The  amount  of  the  estate  was  now  very 
snulL 

The  respondent,  J.  McKillip,  ajspear- 
ed,  and  handed  in  a  paper  giving  a 
atatement  of  his  {property,  ana  denied 
the  allegations  of  intemperance,  stating 
||ut  he  was  willine  to  take  bis  wife 
M<3k  and  forget  ana  forgive. 


[Hopley.  J. :  What  are  you  going  to 
forget  and  forgive?  Or  is  it  your  wife 
who  is  to  forget  and  forgive?] 

The  respondent  said  he  desired  to 
forgive  his  wife  for  leaving  him  without 
any  notice  by  which  action  of  hers  his 
health  had  suffered. 

Mr.  De  Villiers  said  that  three  doctors 
had  certified  that  the  respondent  was 
absolutely  incurable,  and  tnat  his  min.i 
was  affected. 

Hop  lev,  J.,  said  that  the  respondent 
appeared  to  him  to  have  given  up  his 
past  bad  habits.  If  the  wife  was  a 
good  wife  she  would  be  willing  to  give 
her  husband  another  chance.  After 
cautioning  the  respondent  against  a 
relapse.  His  Lordahip  said  he  wo'iid 
make  no  order  at  present.  The  matter 
would  be  postponed  stne  eftV,  but  there 
would  be  leave  to  the  applicant  to  apply 
should  her  husband  again  relapse  or  be 
cruel  to  her. 


BE8SAT  T.  HOLLAND. 

Mr.  Upington  moved  for  the  release 
of  Holland,  who  waa  at  present  suffer- 
ing civil  imprisonment,  and  counsel  put 
in   certain   affidavHs. 

Mr.  Van  Zyl,  for  the  plaintiff,  asked 
that  the  case  might  stand  over  as  they 
had  only  just  received  the  afRdavit«, 
and  had  not  had  time  to  file  replies. 
Having  got  an  order  restraining  the 
respondents  from  parting  with  certain 
property,  thev  felt  now  that  they  could 
not  refuse  the  application  for  release, 
but  wanted  the  costs. 

Order  of  release  granted,  the  ques- 
tion of  coAts  to  stand  over. 


SBALB  V.  DOOVEY. 

This  was  an  action  to  recover  balance 
of  money  due  for  work  and  labour 
done. 

The  plaintiff  was  a  builder  and  con- 
tractor, residing  at  Rondebosch,  and  the 
defendant  resided  at  Salt  River.  On 
December  31,  1903,  plaintiff  contracted 
to  build  two  houses  for  the  defendant 
at  Salt  River.  Plaintiff  agreed  to  erect 
the  two  houses  for  £1,650.  The  houses 
were  erected,  and  plaintiff  had  paid 
£1,500,  but  refused  to  pay  the  balance 
of  £150,  or  £638  for  certain  extra  work. 

The  defendant,  in  his  plea,  said  that 
the  plaintiff  undertook  to  execute  the 
work  in  a  good  and  workmanlike  man- 
ner, and  according  to  the  building 
regulations  of  the  Municipality  of 
Woodstock.  He  denied  that  the  plaintiff 
erected  the  houses  in  a  Aatisfactory 
manner.  Defendant  alleged  that  he 
had  paid  £1,619.  Plaintiff  had  failed 
to  execute  certain  work  amounting  in 
all  to  £78  Os.  6d.  There  was  also  cer- 
tain work  not  done  to  the  satisfaction 
of  the  Municipal  Engineer,  and  another 
contractor   had    to    do    the   work   at  % 


[ 


194 


II 


CAPE  TIMES"   LAW  REPORTS. 


tho  Uc«noe  w««  on  a  different  footing. 
Counsel  went  on  to  comment  upon  the 
risk  of  the  renewal  being  refused,  and 
Ctubmitted  that  tlie  argument  of  impro- 
bability that  Norden  would  enter  into  a 
contract  of  this  sort  was  not  very  strong. 
Ho  contended  that  Norden.  unuor  these 
documents,  divestt'd  himselt  of  all  rights 
that  h«  had.  Coaitsel  quoted  tho  cases  of 
OhlMotCa  Cape  Breiceriea  ▼.  Power  (10 
C.T.R.,  747).  and  OMsaon'a  v.  Kuhr'a 
Truatee  (11  C.T.R.,  165).  and  Ohlaaon'a 
V.  raraon  (11  C.T.R.,  165).  and  of  A'.  ^. 
Moaa.  On  these  cases,  ho  urged  that  the 
Ueonce  wae  a  personal  risrht  of  which 
the  holder  could  divest  himself.  He 
also  quoted  the  English  case  oif  Matter 
V.  Hindmarah  {h&w  Times  Reports,  vol. 
28,  p.  644),  in  regard  to  the  question 
oif  forfeiture   of   licences. 

Sir  H.  Ju*a  drew  their  lordship©* 
aittention  to  bootion  8,  Act  44,  1885, 
■whioh.  he  said,  was  for  the  protec- 
t'ion  of  owners  and  lessors  where  the 
licence  was  in  danger  either  oif  going 
away,  or  being  forfeited.  Under  tha.t 
seot.ion,  the  landlord,  in  the  case 
in  England  which  had  been  quoted, 
could  have  got  his  transfer.  It  seemed 
to  him  (Sir  Henry)  that  the  trouble 
aroAC  because  of  the  confusion  that  ap- 
peared, according  to  Mr.  Bosman's  evi- 
dence, to  exist  in  the  licensed  victuallers' 
trade  in  Cape  Town.  They  seemed  to 
think  tliat  thev  could  sell  a  licence.  They 
need  only  refer  to  one  section  to  see 
that  they  could  not  sell  a  licence.  Sec- 
tion 51  said  that  any  person  who,  dur- 
in.'^  the  currency  of  his  licence,  sold  or 
dispoi>ed  of  his  business  may  make  ap- 
plication to  the  R.M.  It  was  only  m 
respect  of  these  licensed  premisses  that 
there  could  be  a  temporary  transfer. 
Counsel  went  on  to  submit  that  it  was 
never  for  one  moment  supposed  that 
they  could  separate  the  licence  from  the 
premises.  He  rested  his  case  on  the 
contention  that  a  licence  was  not  a 
merchantable  article,  which  could  be 
handed  about  from  one  person  to  an- 
other, as  was  perfectly  clear  from  section 
56  of  the  Act. 

Mr.   Burton   having  been  heard  in  re- 

De  Vdlliere.  C.J. :  I  quite  agree  wifh 
Mr.  Burton  that  the  decision  of  this 
question  depends  upon  tlie  oonetructdon 
of  the  agreement  of  Icsase  ex- 
ecuted between  the  parties  and 
that  the  oon^ruotion  of  that 
agreement  depends  upon  the  terms  of 
the  broker's  note,  which  has  been  in- 
corporated with  the  agreement.  The 
broker's  note,  no  doubt,  uees  the  words. 
"  bouglit  from  Joseph  Norden  and  sold 
to  Bosman,  Powis  and  Co.,  the  lease, 
licences,  goodwill,  furniture,  and  all  con- 
tents, and  so  forth,"  for  a  certain  price, 
but  it  is  clear  that  it  is  not  the  premises 
that  were  sold,  but  the  right  to  have  a 
lease  of  the  premises  executed  in  terms 
of  the  subsequent  part  of  the  broker's 
note.  If  this  haa  been  an  out-and-out 
sale,  there  would  have  been  no  difficulty 


whatever,  because  there  can  be  no  doubt 
that  the  goodwill  would  have  gone  with 
the  sale,  that  the  sale  would  have  car- 
ried the  goodwill.  The  question  was 
considerea  by  the  Court  of  Appeal  in 
England  in  the  oa^c  of  er  parte  Punnet t. 
In  that  case  tlie  Master  of  the  RolU 
said :  *'  It  is  nuite  plain  that  the  good- 
will of  a  public-house  pas.ses  with  tlie 
public-hous4\  In  such  a  case  the  good- 
will is  tho  mere  habit  of  tho  customer?* 
resorting  to  the  house.  It  is  n(»t  what 
iii  called  a  personal  goodwill."  In  the 
present  case,  however,  there  is  no  sale 
of  the  premises,  but  there  was  a  lea.se 
of  the  premises  for  five  years,  with  a 
right  ot  renewal  for  another  five  years. 
Now  what  was  leased?  Not  merely  the 
promises,  but ''  tho  whole  as  a  going"  con- 
cern, of  and  in  the  Old  Standard  Hotel 
and  the  Nil  De<«porandum  Hotel,  Kuil's 
River."  Two  hotels  were  included  in 
the  lease.  What  was  let  was  two  cer- 
tain hotels,  qua  hotels.  The  (|Uostion 
ari>es  whether  the  leaf^ee  during  the  cur- 
rency of  this  lease  was  entitled  to  take 
active  steps,  by  means  of  which  thcve 
premises  will  cease  to  be  hotels,  and  will 
cease  to  enjoy  the  benefit  of  the  lease. 
In  my  opinion,  it  is  clear  from  the  con- 
tract that  he  should  not  be  allowed  to 
do  so.  It  would  be  quite  incon.sistent 
with  the  terms  of  this  contract  that  he 
should  be  allowed  to  do  that  during  the 
currency  of  the  lease.  It  is  anoth<?r 
question  whether  he  should  be  allowed 
to  be  perfectly  passive,  and  do  nothing 
and  thus  risk  the  loss  of  the  licence  on 
that  account.  That  question  does  not 
arise  for  adjudication.  But,  I  am  clear- 
ly of  opinion  that  active  steps  he  should 
not  be  allowed  to  take,  V^ecause  it  would 
be  quite  contrary  to  the  implied  terms 
of  this  contract.  Great  stress  has  lieen 
laid  on  the  fact  that  the  words  **  lK>ught 
and  sold  "  are  used,  but  it  is  clear  that 
tlw  licence  which  is  there  said  to  be 
sold  could  not  be  sold  qua  licence,  and 
that  the  .Gfoodwill  which  was  sold  was 
the  goodwill  of  the  leased  premises.  In 
the  same  way  as  the  goodwill  of  the 
public-houM>,  according  to  the  Master 
of  the  Rolls  in  the  case  quoted,  so  the 
goodwill  would  go  with  the  lease,  it 
would  not  extend  bejrond  the  term  of  the 
lease,  and  in  my  opinion  it  will  be  in- 
consistent with  the  contract  for  the  les- 
sees to  deal  with  the  goodwill,  and  the 
licence  in  such  a  manner  as  to  deprive 
the  owner  of  the  premises,  at  the  ex- 
piration of  the  lease,  of  his  rights.  If, 
at  the  exf^iration  of  the  lea<^,  tliere  is  a 
licence  still  in  existence,  the  lessor,  in 
rny  opinion,  will  be  entitled  to  that 
licence,  and  the  lessee  could  not  Ih>  al- 
lowed during  the  currency  of  that  ieaso 
to  do  anything  actively  bjr  means  of 
which  the  licence  or  goodwill  is  trans- 
ferred to  any  other  place.  The  Court  is 
aware  of  the  great  difficulty  which  the 
Legislature  has  thrown  in  the  way  of 
acquiring  fresh  licences.  There  aro  a 
great  many  re<|^uirementfl  l)efore  fresh 
lircnce«  can  be  issued,   tfeere  may  be  a 


"CAPE  TIMES"   LAW  REPORTS. 


195 


Bijorifcy  of  the   ratepayers   that     must 
consent,  and  the  Court   may      certaiDly 
take  judicial  cognisance  of  the  fact  that 
tbere  does  exist  the  grreatest  difficulty  in 
obtaining  fresh  licences.       If,  therefore, 
the  defeudants  'were  now  to  be  allowed 
to  transfer  what  is  described  as  the  Old 
Standard  Hotel,   and  the   Nil  De«peran- 
dum  Hotel  to  two  other  premises,  and 
thiks  deprive    these    particular    premises 
f if  the  real  value  which  they  possess,   I 
think  it  would  be  clearly  contrary  to  the 
contract  entered    into.        For  these  sim- 
ple reasons,   I    am  of  opinion    that  the 
jadgmeDt  was  ri^ht,  and  that  the  appeal 
must  be  dismissed,  with  costs. 

Bucbanan,  J.,  and  Maaadonp,  J., 
ooDcurred. 

[Appellants*  At-tornoys :  ZioLsmsn 
and  Bosman ;  Respondent's  Attorneys  : 
SiiherbaiM-r,   VVahl  and   Fuller.] 


GENERAL  MOTION. 


Est  parte  HUBBBBSLRT  AND  WIPE. 

Mr.  M.  Bisset  ag^ain  mentioned  this 
matter,  which  was  a  petition  for  leare 
to  register  a  certain  ante-nuptial  con- 
tract The  matter  had  been  standing 
over  for  production  of  the  contract, 
vhich  counsel  now  put  in. 

LesTs  was  granted  to  register  the  ante- 
nuptial contract,  saving  the  rights  of 
cre<dit4)rB  who  have  become  sucn  before 
registration. 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  HOPLKT.] 


TRIAL  CAUSES. 


V^KILLIP  V.  MCKILLIP. 


f       1906. 
}  Mar.  3rd. 

Mr.  J.  E.  R.  de  Yilliers  moved,  on 
behalf  of  the  wife,  for  a  decree  of 
judicial  separation  from  her  husband 
on  the  ground  of  his  incurable  drunken- 
Msa.  The  parties  were  married  in 
community  of  property  at  Cape  Town 
in  1883.  There  was  one  male  child  of 
nine  years  of  age  of  the  marriage.  The 
tpplicant  brought  certain  landed  pro- 
jM^rty  at  Green  Point  and  Port  Alfred 
into  the  estate.  Respondent  never  con- 
buted  anything,  but  had  mortgaged 
ihe  property  and  squandered  the  money. 
The  amount  of  the  estate  was  now  very 
anulL 

The  respondent,  J.  McKillip,  ajspear- 
«d.  and  handed  in  a  paper  giving  a 
statement  of  his  jaroperty,  and  denied 
the  allegations  of  intemperance,  stating 
that  be  was  willing  to  take  his  wife 
back  and  forget  aqd  forgive. 


[Hopley.  J. :  What  are  you  going  to 
forget  and  forgive?  Or  is  it  your  wife 
who  is  to  forget  and  forgive?] 

The  respondent  said  he  desired  to 
forgive  his  wife  for  leaving  him  without 
any  notice  by  which  action  of  hers  his 
health  had  sufFored. 

Mr.  De  Yilliers  said  that  three  doctors 
had  certified  that  the  respondent  was 
absolutely  incurable,  and  that  his  mind 
was  affected. 

Hopley,  J.,  said  that  the  respondent 
appeared  to  him  to  have  given  up  his 
past    bad  habits.       If    the    wife   was    a 

Kood  wife  she  would  be  willing  to  give 
er  husband  another  chance.  After 
cautioning  the  respondent  against  a 
relapse,  His  Lordship  said  he  wo'iid 
make  no  order  at  present.  The  matter 
would  be  postponed  Mine  dift  but  there 
would  be  leave  to  the  applicant  to  apply 
should  her  husband  again  relapse  or  be 
cruel  to  her. 


BE8SAY  T.  HOLLAND. 

Mr.  Upington  moved  for  the  release 
of  Holland,  who  was  at  present  suffer- 
ing civil  imprisonment,  and  counsel  put 
in  certain   affidavits. 

Mr.  Van  Zyl,  for  the  plaintiff,  asked 
that  the  case  might  stand  over  as  they 
had  only  just  received  the  affidavits, 
and  had  not  had  time  to  file  replies. 
Having  got  an  order  restraining  the 
respondents  from  parting  with  certain 
property,  they  felt  now  that  they  could 
not  refuse  the  application  for  release, 
but  wanted  the  costs. 

Order  of  release  granted,  the  (jues- 
tion  of  costs  to  stand  over. 


SBALB  V.  DOOVEY. 

This  was  an  action  to  recover  balance 
of  money  due  for  work  and  labour 
done. 

The  plaintiff  was  a  builder  and  con- 
tractor, residing  at  Rondebosch,  and  the 
defendant  resided  at  Salt  River.  On 
December  31,  1903,  plaintiff  contracted 
to  build  two  houses  for  the  defendant 
at  Salt  River.  Plaintiff  agreed  to  erect 
the  two  houses  for  £1,650.  The  houses 
were  erected,  and  plaintiff  had  paid 
£1,500,  but  refused  to  pay  the  balance 
of  £150,  or  £638  for  certain  extra  work. 

The  defendant,  in  his  plea,  said  that 
the  plaintiff  undertook  to  execute  the 
work  in  a  good  and  workmanlike  man- 
ner, and  according  to  the  building 
regulations  of  the  Municipality  of 
Woodstock.  He  denied  that  the  plaintiff 
erected  the  houses  in  a  satisfactory 
manner.  Defendant  alleged  that  he 
had  paid  £1,619.  Plaintiff  had  failed 
to  execute  certain  work  amounting  in 
all  to  £78  Os.  6d.  There  was  also  cer- 
tain work  not  done  to  the  satisfaction 
of  the  Municipal  Engineer,  and  another 
contractor    had    to    do    the    yroT\i    at  (| 


1 


196 


"CAPE  TIMES"   LAW  REPORTS. 


ooet  of   £44,    which   defendant   claimed 
he  had  a  right  to  recover. 

Mr.  Upingrton  was  for  the  plain iiff 
and  Mr.  W.  P.  Buchanan  (with  hiri 
Mr.  Roux)  appeared  for  the  defendant. 

Thoma«  Seale,  plaintiff,  staled  that 
on  December  51,  1903,  he  contracted 
with  defendant  to  build  two  houses  for 
hina  at  Salt  River.  The  work  was  to 
be  done  to  tlie  satisfaction  of  the 
Municipal  officials  at  Woodstock.  Ho 
did  not  include  in  his  tender  for  the 
price  of  a  balcony.  He  was  to 
put  in  18-inch  foundations.  When  he 
commenced  to  excavate  it  was  found  that 
the  whole  of  the  site  was  refuse  stuff, 
and  it  was  impossible  to  build  houses  on 
the  stuff,  as  they  would  not  staiid.  Con- 
sequently, he-  had  to  make  considerable 
excavations,  in  some  places  to  the  extent 
of  17  feet.  This  entailed  a  lot  of  extra 
work,  for  which  he  claimed  £638.  De- 
fendant agreed  to  the  extra  wcM-k.  ()w- 
in.i?  to  an  objection  by  the  ^lunicipal 
authorities,  he  could  not  put  in  a  fire- 
proof partition,  and  plaintiff  put  in  gla^ 
doors  instead  of  wooden  ones.  He  had 
received  his  final  certificate  after  the 
building  had  passed  the  Municipal  Re- 
gulations. 

Cross  examined  by  Mr.  Buchanan  :  He 
fixed  his  price  on  the  18-inch  founda- 
tion, but  lie  did  not  see  the  18-inch 
struck  out  on  the  plan.  Hi^  attention 
was  not  specially  drawn  to  the  founda- 
tion.  The  defendant  and  witness  had  a 
lot  of  conversation  about  the  carrying 
out  of  the  contracts.  In  this  case  he  did 
not  examine  the  site  very  well.  He  did 
not  see  in  the  specification  when  ho  look- 
ed through  it  that  the  depth  of  the 
foundations  had  lieen  altered  from  eigh- 
teen inches,  and  had  to  \h)  in  cement 
concrete,  and  bt»  brought  from  a  depth 
to  be  satisfactory  to  the  Town  Engineer. 
The  carting  away  of  the  stuff  from  the 
excavation  cotit  £15.  The  amount  of  the 
claim  was  only  for  excavating  and  fill- 
ing, and  the  cartage  to  the  Woodstock 
di^mping  ground.  After  the  completion 
of  the  contract  there  was  an  account 
due  to  Ahlboom  GuUaiider  and  Co.,  and 
witness  asked  Doovey  to  sign  a  docu 
ment  to  the  effect  that  he  acknowledged 
receipt  of  £182  5s.  8d.,  against  an 
amount  of  £638  15s.  8d.  outstanding  at 
that  time.  Witness  never  got  £50  m 
hard  cash  from  Doovey.  He  was 
doubtful  of  the  genuineness  of  6ome  of 
the  receipts  now  produced  to  him. 

Re-examined  by  Mr.  Upington :  Wit- 
ness filled  in  the  excavation  from  time 
to  time,  and  it  was  passed  by  the  Muni- 
cipality. The  contract  was  to  bo  carried 
out  according  to  plans  and  specifications, 
and  to  the  satisfaction  of  the  Municipai- 
il.y. 

William  Harrison  Grey,  engineer  and 
architect,  stated  that  he  had  particulars 
of  the  depth  of  the  excavation,  but  he 
had  seen  the  excavating  when  it  was  on. 
The  excavations  then  were  about  14  feet 
deep.  The  place  was  an  old  brickfield 
that  had  been  filled  up.   Witness  worked 


out  the  quantities  carefully  from  a  plan 
of  the  various  depths  supplied  by  Seale. 

Cross-examined  by  Mr.  Buchanan : 
Without  anything  being  specified  to  the 
contrary  stock  doors  and  windows  were 
put  in.  He  remembered  seeing  a  liole 
about  fifteen  feet  deep  at  thu  back  ol 
the  premises.  From  the  plan  he  could 
give  a  good  guess  of  the  charge  tr»  erect 
a  balcony. 

Thomas  Cairncross,  civil  engineer, 
stated  he  had  been  to  the  site  in  ques- 
tion, and  made  an  independent  calcu- 
lation, lie  valued  the  extra  work  (»f 
excavating,  etc.,  at  £427  15s.,  and  he 
made  the  price  of  the  verandah  £47. 

Mr.   I'pington  closed  his  case. 

Thomai^  Tonkin,  who  had  the  plans 
and  specifications  drawn  up,  stated  that 
ho  saw  Seale,  who  was  anxious  to  get  the 
contract.  Seale  seemed  to  know  all 
about  the  site.  The  Municipal  Engineer 
.suid  that  the  foundation  would  have  to 
go  down  13  feet.  Scale's  attention  was 
called  to  the  fact  that  ho  would  find 
the  foundation  the  most  important  item, 
a-*  he  would  have  to  go  down  13  feet, 
or  perhaps  more,  to  get  at  the  ."solid. 

At  this  «tage  counsel  were  heard  on 
tho  question  of  whether  the  contract  was 
entered  into  under  the  specification,  or 
the  schedule,  and  his  lordship  held  that 
the  parties  must  be  bound  by  the  agree- 
ment, as  it  stood,  and  on  the  adjourn- 
ment suggest4^d  that  the  i>arties  should 
consider  their  jxir^ition  «.nd  endeavour 
to  arrive  at  a  compromise  without  incur- 
ring furtlior  expens<»s. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Chief  Justice  (the  Rijrht 
Hon.  Sir  J.  H.  i)E  Villi K«s,  P.O., 
K.C.M.r^.,  LL.D.),  and  the  Hon. 
Mr.  Justice  Maasdorp.] 


TRIAL  CAUSE. 


INSOLVENT  K8TATB  ISRAEL-  f        liKT*. 
BON  V.  HARRIS  AND  BLACK <  Mar.     Oth. 
AND  OTHERS.  (.      „       11th. 

Builder's  hypothec — Actual   pos- 
session. 

This  was  an  action  brought  by  the 
trustees  in  the  iuvsolvent  estate  of  David 
Israelson  against  seven  defendantr^  main- 
Iv  in  the  building  trade,  for  a  declaration 
that  they  have  no  lien  or  legal  posses- 
sion or  occupation  of  a  certain  building 
belonging  to   the  estate  or  any  portioii 


r 


*'CAPE   TIMES"   LAW  tlEPOttTS. 


199 


\\Un^,  in  further  evidence,  said  that 
Kiones    6topped       'workin^f    as   soon   as 
witness  told  aim       he      had   no  money. 
Lewis  worked   for    about   a   week   after 
the  meetiDg  of  crciditors   at  Mr.  Close's 
office.     Bloom    left    shortly    after    the 
meeting.     Each   workman    supplied   his 
own  took      When   the  lift  was  brought 
by  M«f$rs.  Govey    and    Co.,   Mr.   Shaw, 
their  representative,    called,      and     saw 
him,  and  he  referred  him  to  Mr.  Close. 
Mr.  Shaw  came  back,  and  the  lift     was 
placed  by  Mr.    Shaw    in    the    passage. 
Mr.  Shaw  got  into  the  premises  bv  tak- 
ing out  the  hoarding.       Witness  had  a 
map  Darned  Monty   on      the     building 
acting  as  caretaker.       Monty  had   now 
left  the  Colony,    and      witness  did   not 
know  his  address. 

Cross-examined  by  Mr.  Schreincr : 
Ho  had  no  clerk  of  works  of  his  own  on 
the  promises.  He  had  four  or  five 
wen  sleeping  there,  who©e  duty  it  was 
to  liiok  after  the  premises.  He  believed 
BJnooi  also  Iiad  a  man  there.  He  did 
not  call  for  tenders  for  the  work.  He 
took  the  men  to  the  place  -and  showed 
them  what  there  was  to  be  done. 

Pe  Villiers,  C.J..  intimated  that  ho 
wished  the  parties  would  confine  them- 
seivei  to  the  simple  issue  whether  de- 
fendants had  possession  of  the  building 
«t  any  time,  and  if  so,  whether  they 
subsequently   lost    it. 

Witness,  re-examined,  said  that 
-Monty  continued  on  the  premise:^  up 
^  the  date  of  witness's  insolvency. 
Bloom  had  a  man  there. 

By  the  Court:  Bloom  book  on  as  a 
contractor  for  £4.500  all  the  carpenters' 
work,  and  undertook  to  look  after  all 
the  works.  Witness  supplied  all  the 
timber.  He  actually  paid  to  Bloom 
£3.850  or  £3,865.  Bloom  had  to  look 
Mter  the  work  generally.  Bloom  was 
not  "over"  Black's,  but  if  there  was 
anything  that  was  wrong,  Bloom  had  to 
report  to  witness.  He  did  not  know 
whether  be  should  call  Bloom  a  clerk 
of  works.  Bloom  was  the  head  man  of 
all  the  works,  to  protect  witness's  in- 
terests. 

(*harles  Frederick  Shaw,  of  Messrs. 
tiovey  and  Co.,  gave  evidence  with  re- 
gard to  a  visit  he  paid  to  the  premises 
on  the  14th  or  15th  October  to  deposit 
*  lift.  He  found  no  one  in  charge  of 
the  premises.  There  was  no  work 
g^iug  on.  He  only  found  builders'  re- 
ta*e  about  the  place. 

•Mr.  8chreinor  closed    his   ca.so. 

James  Black,  of  Harris  and  Black, 
**id  he  had  never  known  that  Bloom 
was  supei-vising  their  work.  He  was 
not  aware  that  Bloom  had  anything  to 
^  with  their  work.  On  the  2nd 
September,  Israelson  owed  his  firm 
£1.066.  Witness  had  a  Kafir  on  the 
PW^mises  until  the  22nd  September. 
Scaffolding  was  taken  away  tnat  had 
been  done  with,  but  they  left  sufficient 
to  complete  the  job.  Witness  went  in 
and  out  of  the  premises  after  the  2nd 
oeptember  as  he  pleased.    He  had  left 


cement  and  lime  there.  Witness  also 
spoke  of  the  measures  taken  to  close 
the  premises.  As  to  the  man  Monty, 
he  knew  that  Monty  had  been  a 
labourer  on  the  buuamff,  and  that  he 
was  afterwards  employea   in  the  bar. 

Abraham  Bloom,  another  of  the  de- 
fendants, said  that  he  was  the  oon- 
tractor  for  carpentry.  He  had  nothing 
in  writing  relating  to  the  contract.  He 
was  to  superintend  all  the  work  up  to 
the  first  floor.  Monty  was  not  the 
caretaker  of  the  building.  Monty  was 
there  just  at  the  beginnmg,  and  asked 
witness  of  he  could  finish  a  room  so  that 
he  could  live  there.  Witness  had  told 
Mr.  Close  that  he  would  wait  until  the 
work  had  been  finished,  but  that  was 
subject  to  other  monev  being  raised  that 
had  been  mentioned  By  Israelson.  Wit- 
ness liad  a  man  staymg  on  the  pro- 
misee until  they  were  locked  up. 

Cross-examined :  It  was  part  of  his 
duty  to  see  that  all  the  work  went  on 
right.  That  was  a  friendly  arrange- 
ment, and  not  something  for  which  he 
was  specially  paid.  Witness  kept  no 
books  at  all.  He  had  not  claim<*J 
against  the  estate,  beoause  he  thought 
there  would  be  nothing  for  the  con- 
current creditors.  He  had  eight  rooms 
locked  up,  of  which  ho  held  the  koy.s. 
Black  ana  Lewis  had  locked  up  other 
rooms. 

Further  evidence  was  given  by 

Geo.  Kin  nest,  the  plumbing  and 
drainage  contractor,  who  olaimed  £196 
against  the  insolvent  estate;  Thomas 
Smith,  book-keeper  of  the  last  witness ; 
Joel  Lewis,  painter,  who  had  a  claim 
for  £50;  Morris  Tamse,  who  supplied 
labour  for  the  brickwork,  and  who 
claimed  £275;  Henry  Frank  W^m. 
Rohr,  manager  for  Jenkins  and  Co., 
asphalters,   who  claimed  £80. 

Mr.   Searlo  closed   his  case. 

Postea   (Mai-ch   11th). 

The  Court  intimated  that  they  would 
first   hoar  counsel   for  the  defendants. 

Mr.  Schreiner  admitted  that  the  title 
to  the  property  which  was  in  the  de- 
fendants' pos.session  was  in  the  trustee, 
but  he  submitted  that  no  provision  of  the 
Insolvent  Ordinance  in  any  way  allowed 
the  trustee  to  have  a  better  right  than 
the  owner  of  the  property  could  have 
had.  The  trustee  in  this  matter  was 
but  the  successor  of  the  owner  of  the 
property,  who  was  Israelson.  The  ac- 
tion was  one  for  ejectment,  based  upim 
the  seventh  paragraph  of  the  declara- 
tion, which  get  out  that  certain  acts 
had  been  _  done  by  the  defen- 
dants in  locking  and  boarding  up  the 
property.  The  essence  of  the  case  for 
plaintiffs  was  that  these  acts  consti- 
tuted wrongful  and  unlawful  trespass  on 
the  part  of  the  defendants.  One  im- 
I>ortant  point  was  that  the  insolvent 
(in  reply  to  a  question  put  by  the 
Court)  said  that  he  teld  the  defendants, 
when  they  said  they  would  lock  up  the 
place,  that  they  could  do  as  thev  liked. 
Possession  was,  on  the  insolvents     own 


L 


200 


"CAPE  TIMES"   LAW  REPORTS. 


admission,  taken  by  hid  consent  by 
Black  and  Blum  on  behalf  of  all  the  de- 
fendants. Coun>el  went  on  t-o  contend 
that  the  defendants,  in  doin^  the  work 
that  they  did,  were  not  looking  merely 
to  the  credit  of  Israelson ;  they  were 
looking  to  tlieir  lien  on  the  buildings. 
They  did,  he  submitted,  all  that  a 
group  of  persons  could  have  done  to 
secure  real  possession  of  the  building. 
They  locked  up  the  premises,  nailed  up 
certain  parts,  took  certain  rooms,  and 
had  people  sleeping  there.  Counsel 
did  not  claim  that  there  was  exclusive 
possession  of  the  building  by  the  de- 
fendants! ho  contended,  lu^wever,  that 
even  a  smgle  contractor  could  not  have 
exclusive  possession.  As  far  as 
Jenkins's  claim  was  concerned,  it  was 
hard  on  him,  but  he  had  given  up  his 
claim.  With  the  other  defendants, 
however,  it  was  not  so.  Counsel  ad- 
duced a  number  of  authorities  in  sup- 
port of  his  contentions.  He  quoted 
Wt  (20-2-28)  Maasdorp,  Nathan,  and 
Van  Lecuwen,  and  cited  lirownn  As- 
signces  v.  Pote  (4  K.D.C.,  50)  and  Shrmr 
v.  Morom  (13  C.T.R  802).  He  pro- 
ceeded to  state  tnc  position  of  the 
different  defendants.  Harris  and  Black 
had  a  large  contract,  but  there  was  still 
an  amount  owing  to  them  of  £1.066. 
Their  materials  were  there,  as  well  as 
certain  of  thoir  tools,  their  signboard 
was  in  one  of  tho  windows,  and  they 
had  locked  one  of  the  rooms.  Turn- 
bull  and  Bigott  had  withdrawn  from  the 
action.  As  to  Jenkins  and  Co.,  they 
h.^d  l)een  paid  half  of  their  charges,  and 
had  been  promi.«!ed  tho  other  half  in 
three  months.  Jenkins  had  thereupon 
gone  away  from  the  prenii>c9.  (Coun- 
sel admitted  that  hp  could  not  press 
Jenkins's  claim  to  have  had  pos^ossion 
<'f  the  building.  Kinness  was  still  on 
tlie  premises,  and  had  l><^en  ready  to 
continue  the  work.  Kinne.*s  had  neen 
associattvi  with  ILirris  and  Black  in 
what  was  done  after  the  in.«olvenc\'  of 
Tsraelson.  He  ha»l  a  claim  of  £196. 
(^)unsel  also  contended  that  Tainscy, 
I^ewis  and  Blum  clearly  had  posses- 
sion, along  with  the  other  defendants, 
of  the  building.  He  submitted  that  it 
had  not  been  shown  thi't  the  man 
**  Monte,"  whom  Israelson  described  as 
his  caretaker,  had  any  possession  of  the 
Flat  Iron  on   Whalf  of  the   insolvent. 

Without  calling  on  Mr.   Searle. 

De  Villiers.  C.  J. :  The  Lvgislaturc 
di<l  not  intend  by  tho  proviso  to  ex- 
tend the  rights  of  retention  beyond 
the  Itw  til  at  existed  at  the  t:inie 
the  l-aw  was  pa^-sod.  The  (iiie.stion 
Avas  wlnit  was  the  la-w  at  the  t.irno 
the  Act  wa8  pii,-p-4'd?  I  think  thi^ 
proviso  itself  in  a  few  words  says  that 
the  law  authorised  the  right  of  reten- 
tion where  there  is  actual  possession. 
In  the  present  case,  therefore,  I  am 
clearly  of  opinion  that  the  plaintiff  had 
no  such  actual  possession  of  the  build- 
ings as  to  entitle  them  to  tho  right  of 
retention.    In  the  first  place,   all  those 


who  have  Ijeen  concerned,  and  were 
concerned,  in  the  building  of  this  pro- 
perty, are  not  before  the  Court.  The 
foundations  were  laid  by  Israelson. 
Several  workmen  were  engaged  upon 
diffeient  parts  of  the  work.  But  all 
tho  plaintiffs  before  the  Court  do  not 
constitute  all  the  parties  who  would 
have  been  entitled  jointly  to  cl.iim  the 
possession  of  the  whole  of  the  pro'.erty. 
I  am  therefore  clearly  of  opinion  that 
the  actual  possession  required  by 
law  is  actual  possession  of  tho 
whole  property  sought  to  be  re- 
tained. None  of  these  people  had 
povSi^ession  of  the  whole  of  this  property, 
nor  had  they  jointly  po.sscssion  of  the 
whole  of  the  property.  It  is  true  that 
some  of  them  had  rooms  in  which  they 
kept  their  tools,  but  that  \va.s  the  sole 
pnrpo.se  for  which  they  took  possession. 
As  to  Bloom,  he  had  posr^ession  of  more 
than  one  room,  and  he  had  keys  of  se- 
veral rooms,  but  the  relations  between 
Bloom  and  Israelson  were  such  that  it  was 
to  be  expected  he  would  have  some  de- 
grtM"  of  control  and  authority  over  the 
buildings.  Ho  was  not  in  the  position 
of  clerk  of  the  works,  but  still  he  was  in 
this  position  that  if  anything  went  wrong 
lv>  would  report  to  Israelson,  and  that 
such  a  man  occupied  certain  rooms  is 
just  what  one  would  expect.  I  am 
sHtisfied  that  Bloom  never  occupied  or 
kept  the  keys  of  these  rooms  for  the  pur- 
pose of  assert  ma:  a  right  of  possession 
on  behalf  of  all  the  persons  who  had 
been  engaged  upon  the  building  of  this 
house.  When  they  baw  that  the  man 
was  unable  to  pay,  they  did  not  think  it 
worth  their  while  remaining  on  the  buihl- 
iiigs.  It  is  true  some  (5fld  tools  were  left 
alJout.  but  that  does  not  make  a  porM»n 
h'\  occupier  of  the  premises.  Then,  sub- 
bec|uently,  when  these  leoj.le  began  to 
luar  that  they  would  lose  their  money, 
tl.'^re  was  a  conversation  with  If-raelsou. 
who  said  they  could  go  on  the  premises 
if  they  liked";  Then  I  think  they  not 
only  had  the  keys  of  the  nunns,  but  tln;y 
put  on  a  lock  on  one  of  tin  doors,  and  in 
thit  way  obtained  adnii-sion  to  the  whole 
of  tli(»  premises.  But  during  the  same 
period  Israelson  had  possj'Srion,  and  Is- 
raelson had  a  per.son  sleeping  on  the  pre- 
mi>e^.  Although  he  was  a  man  in  an 
iiifi^rior  jjosition,  yet,  still  ho  was  there 
assorting  t'.ie  right  of  the  owner  to  some 
extent  lo  "the  occupation  to  the  whole  of 
the  premise^.  What  was  done  afterwards 
does  not  amount  to  such  a  possessi«»nc)f 
th'i  whole  of  the  building,  as  to  justify 
the  Court  in  saying  that  the  terms  of 
tliis  proviso  had  Imvii  complied  with. 
There  was  no  such  actual  possi'Si^ion  of 
the  whole  of  the  property,  in  respe<'t 
of  which  tins  retention  is  claimed, 
as  to  justify  the  Court  in  giving 
judsrmont  for  the  defendants.  The 
rooms  were  simply  locked  for  the 
purpo-e  of  keepnig  their  tools,  and 
the  occupation  is  not  of  such  a  nature 
as    t«)  give   them    a  right   of   retention. 


"CAi?E    TIMES"  LAW   feEPOUTS. 


199 


Witness,  in  further  evidence,  said  tb&t 

Kiimes     stopped       ip^orkiii^     as    soon   as 

witness  tdd  nim       he       liad     no  money. 

Lewis  worked   for    about    a    week   after 

t'le  Dieeting  of  creditors    at    Mr.  Close's 

••ffite.       Bfoom    left     ahortly    after    the 

aie^tiug.      Each    workman     supplied   his 

own  toijls.      When    the    lift   -was  brought 

by  Mefesrs.  Govey    and    Co- ,    Mr.   SImlw, 

ih..*.r  representative,     called,       and  ^  saw 

him.  and  he  referred    him    to  Mr.  Close. 

^r.  Shaw  came  back,    and    the  lift     was 

^*tt?d  bv   Mr.     SharW      in      the    passage. 

Mr.  Sbaw  got  into    tbo  premises  bv  tak- 

ffl^  out  the  hoarding-  Witness  had   a 

>a»/>  named  Monty     on        the      building 

^iiDfr  as   caretaker.  AdLonty   had   now 

^'t  the   Colony,    and         witness  did   not 

know  his  address.  _         o.  i      ■ 

(n«.^-eiainined  by  ISIr.  bchrciner: 
II-  had  no  clerk  of  works  of  iu»  owii  on 
the  premises.  He  Had  four  or  five 
luf-n  slwpinjr  there-,  who«o  duty  it  was 
Tu  l..ok  after  the  premi^-or*.  He  behevj^d 
B!wm  also  had  a  man  there.  Ho  did 
not  call  for  teiidt-ra  for  the  work.  Ho 
t.«k  th<*  men  t«^  the  place  and  showed 
tiifia  what  there  was   to   bo  dont". 

De  ViUiors,  C.J.,  intimated  that  ho 
wtohfd  the  parties  would  c?onfine  them- 
seUos  to  the  simple  issue  whether  de- 
fenaanls  had  possession  of  the  building 
at  any  time,  and  li  ^o,  whether  they 
5ub»«Hiuently    lost     it-  ^ 

Witness.  re-examined,  said  that 
Moutv  wntinued  on  the  premi-ses  up 
to  the  date  of  witness  s  insolvency. 
Bkx>m  had  a  man  there. 

By    the    Court  :     Bloom    fc<X)k  on  as    a 
contractor  for  £4.500  all  the  carpenters 
work,    and    undertook    to   look   after  all 
tho  works.         Witness    supplied    all    the 
timljor.         He     actually    paid    to    Bloom 
£3-850  or    £3.865-        B  oom  had  to  look 
after  the   work   generally.       Bloom     was 
iioi    "  over "    Black's,    but    if    there    wa^ 
anvthint?  that   was   wrong,  Bloom  had  to 
n^port    to    witness.         He   did   not    know 
whether    he    should    call    Bloom  a   clerk 
of  works.        Bloom  was  the  head  man  of 
all    the    works,     to    protect  witness's    in- 
terests. .    ,      oi  e       Ik, 

Charles    Frederick    onaw.    of      Messrs. 
Govev  and   Co.,    gave  evidence   with   re- 
gard'to   a  visit    he  paid  to  the  premi-ses 
on  the  14th    or  15th  October  to  deposit 
a  lilt.        He  found   no  one  in  charge  of 
the    premise*.         There    was    no       work 
Roiiig  on.       Ho  only  found  builders'  re- 
in-^ about  the  place. 
Mr.    Schreiiior   closed   his  ca.so. 
James    Black,    of   Harris    and    Black, 
said     ho     had  never   known  that  Bloom 
wa»  supervising    their  work.        He    was 
not  aware   that  Bloom  had  anything  to 
do   with      their      work.       On    the    2nd 
September.    Israelson      owed      his    firm 
£1,066.       Witness   had   a  Kafir  on    the 
premises    until   the      22nd       September. 
Scaffolding    was    taken   away    that    had 
been  done  with,    but  they  left  sufficient 
to  complete  the  job.      Witness  went  in 
and  out  of  the   premises  after  the  2nd 
September  as   be  pleased.    He  had  left 


cement  and  lime  there.  Witness  also 
spoke  of  the  measures  taken  to  close 
the  premises.  As  to  the  man  Monty, 
he  knew  that  Monty  had  been  a 
labourer  on  the  buiiainff,  and  that  he 
was   afterwards  employea   in   the  bar. 

Abraham  Bloom,  another  of  the  de- 
fendants, said  that  he  was  the  con- 
tractor for  carpentry.  He  had  nothing 
in  writing  relating  to  the  contract.  He 
was  to  superintend  all  the  work  up  to 
the  first  floor.  Monty  was  not  the 
caretaker  of  the  building.  Monty  was 
there  just  at  the  beginning,  and  asked 
witness  of  he  could  finish  a  room  so  that 
he  could  live  there.  Witness  had  told 
Mr.  Close  that  he  would  wait  until  the 
work  had  been  finished,  but  that  was 
subject  to  other  money  being  raised  that 
had  been  mentioned  by  Israelson.  Wit- 
ness liad  a  man  staying  on  the  pre- 
mises until  they  were  locked  up. 

Cn>ss-examined :  It  was  part  of  his 
duty  to  see  that  all  the  work  went  on 
right.  That  was  a  friendly  arrange- 
ment, and  not  something  for  which  he 
was  specially  paid.  Witness  kept  no 
books  at  all.  He  had  not  claini'ni 
against  the  estate,  beoause  he  thought 
there  would  be  nothing  for  the  con- 
current creditors.  He  had  eight  rooms 
locked  up,  of  which  ho  held  tho  keys. 
Black  and  Lewis  had  locked  up  other 
rooms. 

Further  evidence  was  given  by 

Geo.  Kinne.^,  the  plumbing  and 
drainage  contractor,  who  claimed  £196 
against  the  insolvent  estate;  Thomas 
Smith,  book-keeper  of  the  last  witness ; 
Joel  Lewis,  painter,  who  had  a  claim 
for  £50;  Morris  Tamse,  who  supplied 
labour  for  the  brickwork,  and  who 
claimed  £275 ;  Henry  Frank  Wm. 
Rohr,  manager  for  Jenkins  and  Co., 
asphaiters,    who  claimed   £80. 

Mr.  Searlo  closed    his  case. 

Posted   (Mai-ch   11th). 

The  Court  intimated  that  thoy  would 
first    hear  counsel   for  the  defendants. 

Mr.  Schreiner  admitted  that  the  title 
to  the  property  which  was  in  the  de- 
fendants posaes«i(m  was  in  the  trustee, 
but  he  submitted  that  no  provision  of  the 
Insolvent  Ordinance  in  any  way  allowed 
the  trustee  to  have  a  better  right  than 
the  owner  of  the  property  could  havo 
had.  The  trustee  in  this  matter  was 
but  the  successor  of  the  owner  of  the 
property,  who  was  Israelson.  Tho  ac- 
tion was  one  for  ejectment,  based  upon 
the  seventh  paragraph  of  the  declara- 
tion, which  get  out  that  certain  acts 
had  been  done  by  the  defcMi- 
dants  in  locking  and  boarding  up  the 
property.  The  essence  of  the  ca<e  for 
plaintiffs  was  that  these  acts  consti- 
tuted wrongful  and  unlawful  trespass  on 
the  part  of  the  defendants.  One  im- 
portant point  was  that  the  insolvent 
(in  reply  to  a  question  put  by  the 
Court)  said  that  he  told  the  defendants, 
when  they  said  they  would  lock  up  the 
place,  that  they  could  do  as  thev  liked. 
Possession  was,  on  the  insolvent  s     own 


202 


"rAt>E  TtNiKS''  Law  REi>obTF^. 


when  the  original  debt  was  incurred, 
any  complication  that  might  ari^e  in 
the  case  wonld  be  owing  to  the  assign- 
ment proocedinga  aa  to  whether  there 
was  any  purchase  made  tiien  or  after- 
wards. lx'twe<»u  the  plaintiff  and  Ven- 
ter, and  if  it  affected  Venter  individu- 
ally or  not. 

Daniel  Kruger,  the  plaintift.  stated 
that  the  defendant  Venter  was  also  liv- 
ing on  the  farm.  Venter  and  Naucie 
were  in  partnership  a.t  that  time.  The 
farm  was  used  for  the  stock  belonging 
ti»  the  partnership.  The  defendant  Ven- 
ter himself  made  out  an  account  dated 
February  3.  1904,  but  it  was  not  actually 
written  until  a  later  date.  At  the 
meeting  of  creditors  in  the  estate  of 
Venter  and  Naude,  and  before  that  meei- 
ing  Venter  wrote  him  an  account,  and 
later  on  he  wrote  out  the  account  er- 
ronooikjly  dated  February  3.  In  March. 
1903,  ho  supplied  this  partnership  with 
certain  sheep  and  goats.  The  sheep, 
which  were  actually  sold  to  Venter,  were 
sent  to  Johannesburg  to  be  sold.  The 
goats  remained,  and  were  disposed  of  by 
the  assignee.  Witness  looked  upon 
Venter  as  the  owner  of  the  farm.  Wit- 
ne<>s'8  hfyses  were  sent  to  Willowbank, 
which  belonged  to  the  partner.ship.  and 
where  Naude  lived.  It  was  intended 
tha»t  The  horses  were  to  be  siMit  to 
Bechuanaland.  but  they  were  never  des- 
jMitched.  He  never  was  paid  any  money 
over  these  transactions.  After  the  as- 
signment he  got  a  horse,  cow,  and  ca'f 
from  Venter,  which  he  set  off  against 
th?'  account.  He  went  a.^  a  creditor  to 
til  >  meeting  on  the  occasion  of  the  as- 
Hirnment,  and  voted,  but  he  wa.s  never 
asked  to  sign  the  deed  of  as.^ignment. 
When  he  a.^ked  for  hi.s  dividend,  he  was 
informed  that  his  name  was  not  on  the 
list  of  creditors.  Afterwards  Venter  and 
h.^  made  an  arrangement  by  which  if 
witness  lent  him  £100  he  was  to  get 
7s.  6d.  in  the  £.  and  in  addition  the 
defendant's  household  furniture.  The 
assignee  wrote  saying  that  his  name  wa.s 
not  on  the  li.st  of  creditors,  as  Venter 
had  paid  him.  When  he  found  he  could 
not  get  his  dividend  he  cancelled  the  ar- 
rangement he  had  made  with  him.  Wit- 
ness lM)ught  the  horse  from  Venter,  and 
credited  the  partnership  for  the  amount. 
Naude  had  never  made  any  claim  for  the 
hors<\ 

(-ross-examincd  by  Mr.  Jones:  lie 
had  no  other  transactions  with  the  part- 
nership, which  wa-s  really  u  partnership 
in  the  speculation  of  cattle.  He  work- 
ed a<^  a  labourer  for  Vent^'r  and  Naude. 
While  witno.-^-s  was  on  commando  the 
military  did  not  take  the  sheep.  Wit- 
ness went  on  commando  in  December, 
1902. 

[Hopley,  J.  :  There  wasn't  »o  mueh 
danger  then?  You  arc  talking  about 
aiter  jx»-ace.] 

The  witness  explained  that  he  joined 
tha  forces  about  six  months  after  the 
outbreak   of  war.       Continuing,      under 


cross-examination,  ho  said  the  cheep  re- 
mained with  his  fatlier  during  th«  war. 
He  paid  his  father  with  the  £60  receiv- 
ed from  Venter.  He  had  a  pock<?t-book 
containing  a  record  of  the  proceedings, 
but  it  was  not  with  him.  He  never  had 
any  dealings  with  Naude.  The  first 
time  he  spoke  to  Naude  about  the  debt 
wa.4  when  he  put  the  matter  in  his  at- 
torney's hands.  Naude  came  to  witness, 
and  wanted  to  give  him  four  erven  of 
land.  At  the  examination  he  voted  for 
7...  6d.  in  the  £,  but  he  was  not  pre- 
pared to  accept  it  now.  A  messenger 
of  the  Court  came  to  the  farm  to  attach 
Venter's  furniture,  but  did  not  do  so 
when  witness  assured  him  that  it  did 
not  belong  to  Venter.  Witness  thought 
Naude  was  present  when  the  agreement 
was  signed. 

Re-examined  by  Mr.  Burton  :  Naude 
wanted  to  settle  with  him  by  giving  him 
some  erven ;  that  offer  was  made  l>eforc 
Venter. 

Johan  Adriaan  Venter,  owm»r  of  the 
farm  Braakfontein,    stated   that  he   .*4old 

Fart  of  the  farm  to  Venter  and  Naude. 
Ic"  never  got  paid.  The  asr^ignce  offer- 
ed him  the  farm  back  for  the  purchase 
price,  plus  £300  for  improvements.  Tho 
defendants  held  everything  in  partner- 
ship.    The  plaiiitiff  had  stock  of  his  own. 

Cross-examined  by  Mr.  Jones :  Ho 
bc'Ught  woc>l  twice  from  the  plaintiff, 
who  had  a  couple  of  hundred  shei'p, 
which  he  heard  he  bought  from  his 
father.  Witness  paid  the  plaintiff  about 
£50  for  doing  wire  fencing  work.  It 
wa.s  only  after  the  assignment  that  they 
began   to  have   private  ei^tates. 

Johannes  Louw.  farmer,  stated  that  he 
wa3  up  at  Philip's  Town  in  1903,  and 
saw  the  plaintiff,  who  worked  under 
witness  for  a  time.  Venter  told  wit- 
ness that  he  would  pay  the  plaintiff  him- 
self. The  plaintiff  at  that  time  had 
siiecp  which  ran  .sc^parately. 

Vnr[  Nicholaas  Kruger,  farmer,  t»f 
Faurt>smith,  O.R.C'..  stated  that  Naude 
and  Venter  were  in  partnership  on  a 
sfeculation  in  stock.  Shortly  before  the 
winter  of  1903,  the  plaintiff  had  ^hc»ep  to 
witness's  knowledge.  While  he  wa.s  on 
the  farm  he  saw  the  sale  betwc»en  Ven- 
ter and  the  plaintiff.  Witness  asM^ted 
in  sending  the  sheep  to  Johannesburg. 

Cross-examined  by  Mr.  Jones :  When 
h«>  heard  the  f«ale  take  place,  although 
Ik»  wap  anxious  to  pay  sixpence  more  for 
the   shcH'p,  he  did    not   make   any  offer. 

Petrus  Jacobus  Venter,  one  of  the 
defendants  in  the  ease,  st^tted  that  he 
made  out  the  account  headed  **  Philip's 
Town,  3rd  February."  The  account  was 
really  made  out  in  March.  He  made 
out  the  second  account  to  replace  an 
insufiicient  one  that  had  been  nitado  out 
before  the  assignment.  The  difference 
was  an  item  for  £55  for  a  cow  calf 
and  two  horses.  The  plaintiff  cancelled 
the  agreement  as  to  the  furniiure.  He 
bought  the  198  sheep  for  the  firm  of 
.  (Miier   and  Naude.        llie   partnership 


"CAi^E   TIMES"  LAW  ilEPORTS. 


21)3 


g(it  the  beneEt  of  the  sheep  (raj inac- 
tion, and  his  bankbook  'would  show  it. 
Kroger  bought  the  hoTBcw,  and  sold  them 
to  the  finn.  Venter  sent  them  to  Kim- 
bcrley.  With  regard  to  the  £15.  the 
puiDonhii^  got  the  benefit,  because  wit- 
iie^s  u£ed  it  on  the  bushiess  of  the  firm 
in  pioing  to  Johanncaiburg. 

Cross-examined  bv  Mr.  Jones :  When 
the  estate  was  assigned.  Mr.  Cootzee 
nude  out  a  schedule  of  the  debts.  Wit- 
neft»  and  Naude  "were  there,  and  swore 
to  the  schedule.  On  February  5,  1904, 
Mr.  CoPtiee  made  a  liat  of  witness's 
debts,  and  witiH?M  i^igned  it.  Witness 
did  Dot  roctttion  Kn>ger's  debt  as  it  did 
not  occur  to  him.  He  did  not  know 
what  was  in  the  list. 

[Hof^y,  J. :  Is  ft  your  'habit  to  swear 
to  the  accuracy  of  things  you  know 
m«hing  about?] 

I  trusted  to  Mr.    Cootzeo. 

Cross-examination  continued :  Kruger 
mentioned  the  debt  to  Naude  before 
witness.  The  list  was  drawn  out  so  that 
Kruger  could  get  the  money,  and  then 
witncM  could  get  his  children  from 
Holland.  Witness^  often  told  Naude 
of  the  debt,  and  Naude  said  it  was  a 
hwful  debt.  Witness  was  at  present  a 
convict,  sentenced  to  two  yeara^  and  a 
half  for  having  stolen  cattle  in  his 
posaeseion. 

Mr.  Jones:  Who  were  some  of  the 
owners? 

[HopleT.  J. :  \\Thai  is  llie  object  of 
tbe  (luesUoQ ;  <be  is  not  being  tnod  for 
that.] 

No.  mj  lord;  (but  iwe  want  to  find 
out  the  ins  and  outs  of  it. 

[iIopk»y.  J. :  I  don't  j*oo  the  relev- 
ancy of  the  question.  Arc  >xm  i^uggest- 
jng  that  the  nartijorr^hip  aooouiit  should 
i>ene6t  by  tnis  transaction  in  stolen 
cattle?] 

}Vitnes8  further  stated  that  if  overv- 
thing  had  gone  on  all  right,  ho  would 
hare  paid  for  the  fencing  and  the  rc- 
pwjs  to  the  house  himself. 

Mr.   Burton  closed    his  case. 

l*aac  Xaude  stated  he  was  in  partner- 
joip  with  Venter  as  a  live-stock  buyer 
from  1899  to  February,  1904,  when  *ho 
jj^und  at  the  meetinfi^  of  creditors  that 
he  could  not  meet  his  claim.s.  W'itness 
we  the  money  .and  Venter  lost  it. 
Kruger  was  present  at  the  meeting, 
*nd  witness  knew  cHf  no  claim  on  1  is 
behalf.  After  Venter  was  arres-ted, 
wilneas  heard  for  the  first  time  of  the 
plaintilTs  claim.  Venter  had  bought  a 
N  of  other  stuff  for  the  firm  without 
Witness's  knowledge.  On  his  claim  in 
J^w^nvention,  witness  could  not  per- 
5<»n»lly  claim  £25  for  the  horse,  but  the 
■saigned  estate  should  be  credited  with 
that  amount 

The  defendant  Naude  (under  cross- 
^ttmination)  stated  that  before  the  war 
BraakfoRtein  was  not  used  largely  for 
jrazing  the  partnership  sheep.  The 
xJ300  for  improvements  went  to  the  bene, 
fit  of  the  assignment.  Witness  carried 
OD  opeFstioDB    at      Willowbank,     three 


i 


miles  away.  After  tlic  war,  witness 
concluded  that  the  business  was  no 
sood.  but  he  did  not  take  the  trouble  to 
dissolve  the  partnership.  In  ten  month> 
Venter  lost  £17.000,  and  during  that 
time  he  overwhelmed  witness  with 
lies.  After  having  ceased  operations 
with  Venter,  sevoral  accounts  came  iiito 
witness  on  behalf  of  the  partnership. 
The  plaintiff  did  not  pre^^nt  a  claim  at 
the  assignment ;  all  the  others  did.  The 
plaintiff  was  clearly  a  creditor  on  the 
promissory  note,  but  the  note  was  not 
presented.  After  the  met»ting,  tlio 
plaintiff  told  witness  that  Venter  owed 
nim  money,  lie  was  not  aware  of  any 
offer  to  settle  plaintiff's  account  by 
giving  him  some  ostriches.  WitnchS 
might  have  offered  tlie  plaintiff  the 
erven  at  Petrusville.  All  he  had  Jeft 
was  a  few  erven  and  furniture.  Lately 
he  had  been  sued  bv  Mr.  Steytler,  and 
there  was  a  return  of  nuHa  bono,  becauso 
his  family  was  away. 

Re-examined  by  Mr.  Jones:  Tli^ 
horse  that  was  claimed  in  recHinvcMi- 
tion  was  sold  at  the  sale  of  the  n'^sets 
to  J.  A.  Venter  for  £25.  but  the  h(>r«» 
was  not  delivered ;  Kruger  had  now 
po.ssession  of  it. 

Further  cross-examined :  Witnras 
knew  that  the  plaintiff  had  the  horse, 
although  the  assignee  claimed  it  from 
several  <4her  people. 

L.  J.  Koetze,  attorney-at-law,  Philip's 
Town.       stated       that       in  January 

last        year  witness        took        stena 

to  call  a  meeting  of  credi- 
tors. There  were  a  few  credi- 
tor? who  would  not  nrc<»pt  7s.  6<l.  in  the 
£.  and  the  defendant.  Nando,  M-ttled 
with  them.  The  plaintiff  was  presenl  iit 
thf»  meetin«.T.  and  never  said  a  word.  H»' 
did  not  produce  any  papers,  nor  did  lie 
put  in  the  promissory  note.  In  June 
the  plaintiff  (ailed  on  witness  and  asked 
for  7s.  6d.  in  the  £,  but  witness  re- 
fu«>d  to  give  him  thi>.  Naude  sjiid 
it  was  !i  iKjyns  elnim,  and  Venti-r  said  the 
plaintiff  was  *'  kek."  Nau<le  whs  not 
mentioned  in  the  sale  of  Braakfontein 
from  J.  A.  Venter  to  P.  J.  Venter.  At 
the  sale  of  the  assets  witiu'fis  sold  a 
cream-coloured  horse  for  £26.  P.  J. 
Venter  was  to  deliver  the  horse  to  J.  A. 
Venter,  but  he  failed  to  do  so,  and  wit- 
ne>^  sul)sei|nently  saw  the  horse  in  pos- 
8e<sion  of  the  plaintiff. 

Cross-examined  by  Mr.  Burtoii :  He 
was  perfectly  certain  that  J.  A.  Venter 
was  nt  the  sale.  Xaudo  wus  wroncr  when 
ho  said  the  rart  was  sold  to  the  same 
man.  In  his  own  aic:>unt  he  only  men 
ticiicd  the  sale  of  one  iiorse  t<«  a  P.  J. 
Venter,  but  there  was  no  mention  of 
another  horr*e.  It  was  not  a  fact  lli.it  ho 
pold  the  horse  to  P.  J.  Venter,  the  de- 
fondant,  and  could  not  get  the  money 
out  of  him.  It  must  have  been  a  clerical 
error.  Witness  was  convinced  aVjsol;it<«iy 
that  the  plaintiff's  was  a  Imgus  claim. 

Mr.  Jones  closed  his  case. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 


202 


"C'A^E  TIMES*'    Law   REt'ObTI^. 


whun  th<?  original  debt  was  incurred, 
any  complication  that  might  arihe  in 
the  case  would  be  owing  to  the  assign- 
ment proceedings  aa  to  whether  theix.* 
was  any  purchase  made  then  or  after- 
wards, Ix'tween  the  plaintiff  and  Ven- 
ter, and  if  it  affected  Venter  individu- 
ally or  not. 

Daniel  Krugor,  the  plaintift,  stated 
that  the  defendant  Venter  was  also  liv- 
ing on  the  farm.  Venter  and  Naude 
were  in  partnership  at  that  time.  The 
farm  wa.^  used  for  the  stock  belonging 
t:»  the  partnersinp.  The  defendant  Ven- 
ter himself  made  out  an  account  dated 
February  3,  1904,  but  it  was  not  actually 
written   until    a   later    dat<».  At      the 

meeting  of  creditors  in  the  estate  of 
Venter  and  Naude,  and  before  that  meet- 
ing Venter  wrote  him  an  account,  and 
later  on  he  wrote  out  the  account  er- 
roneously dated  February  3.  In  March, 
1903.  he  supplied  this  partnership  with 
ct^rtain  sheep  and  goats.  The  sheep, 
which  were  actually  sold  to  Venter,  were 
sent  to  Johannesburg  to  be  sold.  The 
goats  remained,  end  were  disposed  of  by 
the  assignee.  Witness  looked  upon 
Venter  as  the  owner  of  the  farm.  Wit- 
UiY^s's  hfyses  w^ere  sent  to  Willowbank, 
which  Vielonged  to  the  partnership,  and 
where  Naude  lived.  It  was  intended 
thait  the  horses  were  to  bo  sent  to 
Bechuanaland.  but  they  were  never  des- 
jxitched.  lie  never  was  paid  any  money 
over  these  transactions.  After  the  as- 
signment he  got  a  hoi-sc,  cow,  and  ca'f 
from  Venter,  which  ho  set  off  against 
thf*  account.  He  went  as  a  creditor  r-o 
th.'»  meeting  on  the  occasion  of  the  as- 
riurnment,  and  voted,  but  h©  was  never 
nsked  to  sign  the  dwd  of  assignment. 
When  he  a.^ked  for  his  dividend,  ho  was 
informed  that  his  name  was  not  on  the 
list  of  creditors.  Afterwards  Venter  and 
hc>  made  an  arrangement  by  which  if 
witness  lent  him  £100  he  was  to  get 
7s.  6d.  in  the  £.  and  in  addition  the 
defendant's  household  furniture.  The 
a(-signec  wrote  saying  that  his  name  was 
not  on  the  list  of  creditors,  a.s  Ventt^r 
had  paid  him.  When  ho  found  ho  could 
not  get  his  dividend  he  cancelled  the  ar- 
rnngement  he  had  made  with  him.  Wit- 
ness bought  the  horse  from  Venter,  and 
credited  the  partnership  for  the  amount. 
Naude  had  never  made  any  claim  for  the 
horse. 

C^ross-examined  by  Mr.  Jones :  He 
had  no  other  transactions  with  the  part- 
nership, which  was  really  a  partnership 
in  the  speculation  of  cattle.  He  work- 
ed a^  a  labourer  for  Venter  and  Naude. 
While  witness  was  on  commando  the 
military  did  not  take  the  sheep.  Wit- 
ness went  on  commando  in  December, 
1902. 

(Hople.v,  J.  :  There  wasn't  so  much 
danger  then?  You  are  talking  about 
after  peaoe.] 

The  witness  explained  that  he  joined 
tha  forces  about  six  months  after  the 
outbreak   of  war.       Continuing,      under 


cros,s-examiiiation,  ho  said  the  eheep  re- 
mained with  his  fattier  during  tht»  war. 
He  paid  his  father  with  the  £60  receiv- 
ed from  Venter.  He  had  a  pocket-book 
containing  a  record  of  the  proceedings, 
but  it  wae  not  with  him.  He  never  had 
any  dealings  with  Naude.  The  first 
time  he  spoke  to  Naude  alwut  the  debfe 
wa.4  when  be  put  the  matter  in  his  at- 
torney's hands.  Naude  came  to  witness, 
and  wanted  to  give  him  four  erven  of 
land.  At  the  examination  he  voted  for 
7.'..  6d.  in  the  £,  but  he  was  not  pro- 
pared  to  accept  it  now.  A  mocssenger 
of  the  Court  came  to  the  farm  to  attacli 
Venter's  furniture,  but  did  not  do  so 
when  witness  assured  him  that  it  did 
not  belong  to  Venter.  Witness  thought 
Naude  was  present  when  the  agreement 
w^as  signed. 

Re-examined  by  Mr.  Burton  :  Naudo 
wanted  to  settle  with  him  by  giving  him 
some  erven  ;  that  offer  was  made  before 
Venter. 

Johan  Adriaan  Venter,  owner  of  the 
farm   Braakfontein,    .<9tated   that  he    sold 

Fart  of  the  farm  to  Venter  and  Naude. 
U)  never  got  i>aid.  The  asr^igncc  otfer- 
et!  him  the  farm  back  for  the  purchase 
price,  plus  £300  for  improvements.  Tho 
defendants  held  everything  in  partner- 
ship.    The  plaintiff  had  stock  of  his  own. 

Cross-examined  by  Mr.  Jones :  Ilo 
bought  wool  twice  from  the  plaintiff, 
who  had  a  couple  of  hundred  sheep, 
which  he  he-ard  he  bought  from  hi-s 
father.  Witness  paid  the  plaintiff  about 
£50  for  doing  wire  fencing  work.  It 
was  only  after  the  assignment  that  they 
began   to  have   private  estates. 

Johannes  Louw,  farmer,  stated  that  ho 
was  up  at  Philip's  Town  in  1903,  and 
saw  the  plaintiff,  who  worked  uniler 
witness  for  a  time.  Venter  told  wit- 
ness that  ho  would  pay  the  plaintiff  him- 
self. The  plaintiff  at  that  time  bad 
shocp  which  ran  separately. 

Carl  Nicholaas  Kruger,  farmer,  of 
Fauresmith,  O.R.C'.,  stated  that  Naude 
and  Venter  were  in  partnership  on  a 
speculation  in  stock.  Shortly  bef<ire  tlie 
winter  of  1903.  the  plaintiff  had  ^heep  to 
witnes.s's  knowledge.  While  he  was  on 
the  farm  he  saw  the  sale  l)etwe<^n  Ven- 
ter ancl  the  plaintiff.  Witness  assi>ted 
in  sending  the  sheep  to  Johannesburg. 

Cross-examined  by  Mr.  Jones :  When 
hi'  heard  the  *ale  take  place,  although 
h,i  wa^  anxious  to  pay  sixpence  more  for 
the   sheep,   he  did    not    make   any  offer. 

Petrus  Jacobus  Venter,  one  of  the 
defendants  in  the  case,  stated  that  ho 
made  out  the  account  headed  "  Philip's 
Town,  3rd  February."  The  account  was 
really  made  out  in  March.  He  made 
out  the  second  account  to  replace  an 
insufiicient  one  that  had  IxH^n  made  out 
before  the  assignment.  The  difference 
was  an  item  for  £55  for  a  cow  calf 
and  two  horses.  The  plaintiff  cancelled 
the  agreement  as  to  the  furni.ture.  He 
bought  the  198  sheep  for  the  firm  of 
.  (Miier   and   Naude.        The   partnership 


"CAt>E  TIMES"  LAW  nKPORTS. 


2i)3 


ti  the  bpDefit  of  the  s»heop  traii>ac- 
><w  and  hii  bankbook  would  show  it. 
£nigfr  bought  tbe  horee«,  and  sold  them 
T'  tbefinn.  Vpnter  sent  them  to  Kim- 
{*ff.T  With  rp^rd  to  the  £15.  the 
faniH'remp  got  the  benefit,  because  wit- 
y^  i»xi  it  on  the  bustnesj  of  the  firm 
i  zo.T,z  lo  Juhaniie:4)ur;7. 

Cn  ss-eiamined  by  Mr.  Jodcjc  When 
fiw  f^fuie  wa«  assigrned.  Mr.  Co<»tree 
»«ie  tmt  a  schedule  of  the  debts.  Wit- 
:r-  and  Naude  -were  there,  and  swore 
ro  i\»  schedule.  On  February  5,  1904. 
M-  Coptiee  made  a  list  of  witness's 
fit-,  and  witncKs  rignod  it.  Witness 
e.i  WK  mentioQ  Kruger'e  d<»bt  as  it  did 
!'<  occur  to  him.  He  did  not  know 
»iui  was  in  the  li»-t. 

[Holder.  J. :    la  it  your  habit  to  swear 

*rt  the  a<T-uracy   of  'things    you    know 

Mfliri^  about?] 

f  Tjsted   «o    Mt.    Coetzpo. 

^'f<»*-examinati<>ii    continued :    Kruger 

as^^ri'Hied      the  debt    to    Naude    before 

»i^»?«.     The  list  was  drawn  out  bo  that 

KruffpT  ct^uld  pet  the  nKiney,    and   then 

»rn?«i   could    pet    his    children       from 

Holland.       WtriM^jw     often     told  Naude 

<'f  thf  debt,  and   >>aude  said    it  was   a 

'•fill  debt.      Witness  was  at    present  a 

c^oTict.  ^ntenced    to   two  years^  and    a 

^f  f<>r  having   stolen       cattle   in      his 

p'^i^^sion. 

Mr.  Jones:     Who   were   some  of   the 

fWoplev,   J. :     WT>at   is    the  ol>jeet   of 
uestkm ;  he   is  not  being  tned  for 


•1' 


Tils 

No,  mT  lord ;  *b«t  -we  want  to  find 
out  the  me  and  outa  of  it. 

[llopley.  J. :  I  clon't  see  the  relev- 
f^y  of  the  <|ue9tion.  Are  you  l^ug|?est- 
jD?  that  the  partnon^hip  account  should 
WrH?fit  by  tnis  tran€a<.>tio]i  in  stolen 
cattk?] 

Witness  further   Jitated    that  if   everr- 
|hinjr  had    gone   on  all  right,  he  would 
h*ye  paid  for   the  fencing  and  the      re- 
pairs to  the  house  himself. 
Mr.    Burton   closed    hi«  case. 
I-aac_Xaude  stated  he  was  in    partner- 
ship with    Venter  as  a  live-stock     buver 
|rom  1899  to    February,   1904.  when   'he 
f^und  at  the  meet inj^    of  creditors    that 
h**  could  not  meet  his  claim.s.       Witness 
nwde  the    money  ,and  Venter  lost      it. 
Kniger  was   present    at    the      meeting, 
uv]  witness  knew  ol  no     claim  on     1  is 
l^haJf.         After  Venter   was      arrested, 
witflew    heard  for  the  first  time  of  the 
plaintiff's  claim.      Venter  had  bought  a 
K>t  of  other  stuff   for  the  firm  without 
witnesses  knowledge.       On    his  claim  in 
J^Hxm  vent  ion,    witness    could    not       per- 
Hinally  claim  £25    for  tho   horse,  but  the 
aligned   estate  should   be  credited  with 
that  amount. 

The  defendant  Naude  (under  cross- 
examination)  stated  that  before  the  war 
Braakfontein  -was  not  used  largely  for 
irrazing  the  partnership  sheep.  The 
£300  for  improvements  went  to  the  bene- 
fit of  the  assignment.  Witness  carried 
on  operations   at      Willowbank,     three 


milrs  away.  After  tli<*  war,  witne.'..-* 
concluded  that  the  husine^^e  wa.s  no 
good,  but  he  did  not  take  the  trouble  to 
dissolve  the  partnership.  In  ten  month*. 
Venter  lost  £17.000,  and  during  that 
time  he  overwhelmed  witness  with 
lies.  After  having  ceased  <»pi»ratH'ns 
with  Venter,  several  accounts  came  into 
witness  on  behalf  of  the  partnop^hip. 
The  plaintiff  did  iH>t  pne^ent  a  claini  at 
the  as-^ignment ;  all  the  others  did.  The 
plaintiff  was  clearly  a  creditor  on  the 
pronii>»ory  note,  but  the  not<»  was  not 
presented.  Aft<>r  the  nuH-ling,  thn 
plaintiff  told  witn^vs  that  Venter  ow4>d 
nim  money.  lie  was  not  aware  of  any 
offer  to  settle  plaintiff's  account  by 
giving    him    some   ostriches.  VVitne?.d 

might  have  offered  the  plaintiff  tho 
erven  at  Pet^u^viIIe.  All  he  had  left 
was  a  few  erv««n  and  furniture.  Lat<'ly 
ho  had  been  sued  bv  Mr.  Ht^ytler.  and 
there  was  a  return  <>t  nu'la  bona,  bt^auso 
his  family  was  away. 

Re-examinerl  by  Mr.  Joii<»s :  TIi'» 
horso  that  was  claimed  in  recnnviMi- 
ti(in  was  sold  at  the  saio  of  tho  a>srt:4 
to  J.  A.  Venter  for  £25.  but  tho  h'lrw 
ww-i  not  delivered ;  Kruger  had  now 
posfK^ssion  of   it. 

Further  cros^-examinod :  AVitnoss 
knew  that  the  plaintiff  had  the  hor^c, 
although  the  a.-sitjnee  clainKHl  it  fn»nj 
<ieveral   other  people. 

L.  J.  Koetz<\  attorney-at-law,  Philips 
Town.       stated       that       in  January 

last        year  witnes«<        t<«»k        ^t<'i)M 

to  call  a  mooting  *»f  credi- 
tors. There  wore  a  fow  credi- 
tor? who  w<'uld  not  nr<-<»pt  7>^,  6d.  in  tho 
£.  and  the  dofondant.  Nniide.  M-ltlod 
with  them.  The  plaintiff  was  pn'sonl  i\* 
tho  niootiiiL'.  and  never  said  a  word.  Hi' 
did  not  produc-e  any  papors.  nor  did  ho 
put  in  tho  j)rf»niissory  note.  In  J  him* 
the  plaintiff  ca!le<I  im  witn<'>s  and  a.skod 
ffii*  7s.  6rl,  in  the  £,  but  wilnosK  ro- 
fuM>d  to  jfixe  hini  thi>.  Nando  s;njl 
it  was  a  Ikj-.'iis  claim,  and  Venti-r  said  tli<» 
plaintiff  wn<  *' kek."  Nnu<le  was  nut 
mentioned  in  the  sale  of  I^raakfonfi'in 
from  J.  A.  Venter  to  P.  J.  Venter.  At 
tho  !«ale  of  tho  a.'isots  witnewn  M)ld  a 
croam-coloured  horse  fr>r  £25.  P.  d. 
Vent<>r  was  to  deliver  tho  hor.se  to  .1.  A. 
Venter,  hut  ho  failed  tf>  do  so,  and  wit- 
news  su'.)se(|uentiy  saw  the  horso  in  pos- 
se<'»ion  of  the  plaintiff. 

Cross-examined  bv  Mr.  Burton  :  He 
w^as  perfectly  certain  that  J.  A.  Venter 
was  .Tt  the  sale.  Nando  w:is  wron;;  wlioii 
he  said  tho  oart  was  sold  to  tho  same 
n.pn.  In  his  own  a(c;»urit  he  only  iimt. 
tioiied  the  sale  of  one  iKirse  to  a  P.  J. 
Venter,  lint  tlnM'e  was  no  nient.ioii  of 
another  liorK*.  It  was  not  a  fact  that  ho 
pold  the  horse  to  P,  J.  Venter,  the  de- 
fendant, and  could  not  get  tho  money 
out  of  him.  It  must  have  been  a  ch-rical 
error.  Witness  was  convinced  aljsolijt4-iy 
that  the  plaintiff's  was  a  bo^j^us  claim. 

Mr.  Jones  closed  his  case. 

Counsel  having  been  hoard  in  argu- 
ment on  tho  facts, 


^ 


"CAt>E  TIMES"   LAW  REPOtlTS. 


Hoplcy,  J. :  Tho  defendant  Naudc 
said  he  was  anxious  to  get  out  of 
the  partner?$hip,  but  he  did  not  take  any 
Rotive  stops  to  bring  about  a  dissolution. 
The  only  point  in  the  case  is  to  wht*- 
th<?r  the  plaintiff  had  a  genuine  ciaim 
ngaitiiit  this  partnership.  In  the  pecu- 
liar and  somewhat  suspicious  circum- 
stances, the  explanation  given  by  thr 
{)laintiff  is  tho  only  one  possible  he  could 
lave  given,  and  it  is  difficult  to  believe 
that  the  independent  witnesses  for  the 
plaintiff  would  come  to  the  Court  to 
commit  dcliV>erate  perjury.  Disallow- 
ing some  of  the  smaller  items  there  will 
bo  judgment  for  the  plaintiff  for  £116 
15*.,  the  defendants  jointly  and  sever- 
ally to  pay  the  costs,  the  plaintiff  declar- 
ed a  necessary  witness. 

[Plaintiff's  Attorneys :  M<)st<.»rt  and 
Son ;  I>efeudAnt'»  Attornev :  G.  Trol- 
lip.J 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Chief  Justice  (the  Rijrht 
Hon.  Sir  J.  II.  IjE  ViLLlEiw.  P.C, 
K.C  M.G.,  LL.D.).] 


TRIAL  CAUSED. 


CLAREMONT     MUNICIPALITY  f        19U5. 
V.  COLONIAL  GOVEKNMBNT.    \  Mar.    7th. 

Rating  of  Crown  property — Rail- 
way buildings  —  Occupation 
by  individuals. 

The  JRd'ihray  Dejtartment 
lutein fr  to  enlarge  the  Ritilwutf 
sldtion  at  C,  bought  a  cottar/e 
aboiU  400  yards  from  the 
Htation^  not  on  RailnHty  pro- 
perty^ for  the  alii  tionm  aster  J 
who  jn'orceded  to  tK'cnpy  it  as 
his  private  residence. 

Held,  that  the  cottaae  and 
grounds  so  occupied  were  liable 
te  be  rated  under  Acts  36  of 
1891  and  19  of  1S92. 

At  the  time  when  the  Goreni- 
metU  took  orer  the  Railway 
tliere  was  a  cottage  at  a 
crossing  in  N.  on  Railway 
property   immediately  adjoin- 


ing the  land,  ichich  teas  then 
occupied  and  continued  after- 
war  dit  to  be  occupied  by  a  gate- 
keeper^ whose  duty  it  was  to 
oj>eH  and  close  the  gates  for 
persons  wishing  by  night  or  by 
day  to  cross  the  Railway  line. 

Held,  that  the  gatekeepers 
cottage  was  not  liable  to  be 
rated  under  the  above  Acts. 


This  was  an  action  brought  by  the 
("lareniont  Municipal  Council  against 
the  Colonial  Government  to  recover  tho 
sum  of  £18  49.  7d.,  alleged  to  be  due 
upon  rates  for  1904  from  defendants  as 
owners  of  certain  property  occupied  by 
officials  or  employes  of  the  Railway  De- 
partment. 

The  declaration  set  out  that  certain 
immovable  property,  belonging  to  the 
Colonial  Government,  was  within  the 
Claremont  Municipality^  and  under  tho 
control  and  administration  of  the  Com- 
missioner of  Works.  It  consisted  of 
(1)  laud  and  dwelling-house  in  Bath- 
road,  occupied  as  a  private  residence 
by  the  station  master,  and  valued  for 
rating  purposes  at  £700;  (2)  land  and 
dwelhn^-house  in  Mill-street,  occupied 
a:)  a  private  house  by  a  platelayer,  and 
valued  for  rating  at  £450;  (3)  lauci  and 
two  dwelling-houses  situated  off  Camp 
Ground-road,  occupied  and  valued  at 
£200  and  £400  respectively.  Save  tho 
stationmaster,  all  the  occupiers  paid 
rent,  and  it  had  been  deemed  necessary 
by  the  department  that  they  should 
occupy  those  houses  to  expedite  their 
attenaance  on  their  duties  as  railway 
officials.  The  Municnpality  had  levied 
owners'  rates  on  the  said  properties  for 
1904,  and  there  was  now  overdue  a  sum 
of  £18  4s.  7d.  In  accordance  with  the 
provisions  of  Act  56,  1891,  and  Act 
19,  1902,  the  properties  were  beueti- 
cially  occupied  by  individuals  in  their 
private  capacity,  and  were  not  railway 
buildings.  The  Government  refused  to 
pay  the  sum  of  £18  4s.  7d.,  or  any  part 
thereof.  This      amount      was       now 

claimed. 

Defendants,  in  their  plea,  admitted 
the  formal  paragraphs  1,  2,  3,  and  4. 
They  also  adinittea  paragraph  5,  and 
said,  further,  that  it  was  necessary  bhat 
for  the  proper  performance  of  their 
duties  the  said  officials  should  <.>ccupy 
the  said  houses.  Defendants  also  stated 
that  the  said  houses  were  railway  build- 
ings in  terms  of  tho  statutes  referred  to, 
and  that  the  Colonial  Government  was 
entitled  to  exemption  from  paying 
owners'    rates  thereon. 

Mr.  Schreiner,  K.C.  (with  him  Mr. 
Bisset)  for  plaintiffs.  Mr.  H.  Jones 
(with  him  Mr.  Nightingale)  for  defen- 
dant. 

Mr.  Schreiner  stated  that  the  plain- 
tiffs had  received  a  letter  from  the  Gov- 


I 


"CAPE  TIMES »'  LAW  REPORTS. 


205 


enunenfc  &ttx>TAeys,  dated  the  15th 
February,  stating  thai  they  found  that 
the  premises  mentioned  in  paragraph 
4  d  lection  (c)  of  the  declaration  were 
occQpied  by  a  gatekeeper  and  checker, 
and  not  by  two  gatekeepers  as  stated 
therein.  They  admitted  liability  in  re- 
irard  to  the  house  occupied  by  the 
checker.  They  (the  attorneys)  found 
that  they  were  in  error  in  stating  that 
the  ftationmaster  was  the  only  official 
wfao  did  not  pay  rent,  and  that  th(y 
found  that  the  gatekeeper  did  not  pay 
nau  Mr.  Schreiner  went  on  to  say 
that  there  were  now  therefore  three 
properties  in  relation  to  which  the  claim 
of  the  Municipality  was  made.  The 
correspondence  that  would  be  put  in 
vonld  show  that  there  had  been  ten 
properties  rated  on  which  the  Govern- 
ment  at  first  refused  to  pay,  except  one 
in  Palm  Boom -road,  which  was  ad- 
mitted. Afterwards  the  Government 
admitted  five  others,  and  then  four  re- 
nuiined  upon  which  the  declaration  was 
filed,  and  which  had  now  bcK^n  reduced 
to  three. 

Mr.  Howel  Jones  put  in  a  draft  of  an 
anicndrocnt  of  the  plea,  in  nccordance 
with  the  letter  of  the  defendants'  attor- 
wrs. 

Mr.  Schreiner  said  that  he  should  not 
olject  to  the  amendment  of  the  plea. 
He  thought  perhaps  his  learned  friend 
on  behalf  of  the  Government  wouhl  nd- 
mft  that  the  rate  had  been  duly  levied, 
and  a«sse<¥ed.  leaving  open  only  the  qups- 
tion  as  to  whether  tlie  property  named 
wa-*  exempt. 

Mr.  Jones  acquiesced. 

Mr.  Schreiner  said  that  the  issue 
would  now  be  narrowed  down  to  the  con- 
rtniction  of  the  Acta  36  of  1891  and  19 
of  188B.  Section  4  of  the  former  Act 
provided  that  no  rates  should  be  levied 
by  or  be  payable  to  a  municipality  upon 
any  line  of  railways  and  buildings  eitu- 
fted  in  any  part  of  the  Colony  belong- 
ing to  the  Uolonial  Government.  In 
|ne  following  sef^sion  of  Parliament  a 
further  Act  was  passed  which  expunged 
•ottion  4  of  the  Act  of  1891,  the  object, 
said  Mr.  Schreiner,  being  to  make  the 
law  general  in  relation  to  this  matter. 
A  proviso,  however,  appeared  in  the  Act 
of  1892,  as  follows:  "Provided  that  the 
Ijnn  "railway  buildings*  ahall  not  ap- 
ply to  such  buildings  as  are  beneficially 
occupied  by  individuals  in  their  private 
capacity." 

John  Samuel  Merrington,  valuator  of 
tjw  Claremont  Municipality,  said  that 
the  stationmaster's  residence  was  not 
wtuate  within  the  expropriated  property 
of  the  Railway  Department,  and  it  was 
mimediately  adjoined  by  four  cottages, 
®^^hich  the  Government  paid  rates,  the 
whole  being  comprised  in  one  estate 
purchased  bv  the  Government.  There 
**•  *  dwelling-house  in  Miil-streec  be- 
yond  the  expropriated  property  of  the 
tiovernment.  This  was  occupied  by  a 
platelayer.  Then  there  wiv»  a  dwelling, 
flouse  sittMit©  close  to   tho  line  occupied 


by  a  checker.      There  was  another  pro- 

Cc-rty  near  Newlands  Station  occupied 
y  the  gatekeeper  at  the  crossing  to 
Camp  Ground-road.  Witness  did  not 
ki.ow  how  that  property  came  into  tho 
hands  of  the  Government,  whether  it 
was  in  the  original  expropriation,  or  it 
had  been  a  piece  of  Crown  land. 

Cross-examined  by  Mr.  Jones :  Ho  had 
formerly  been  secretary  of  the  Council 
up  to  1898,  and  during  'his  term  of  office 
rates  were  not  levied  on  platelavers'  and 
gntekeeperis'  houses,  because  they  were 
Government  property.  Ho  then  thought 
that  they  w<!ro  barred  by  the  Act  of  1882. 

Mr.  Schreiner  closed  his  case. 

Alfred  James  Parsons,  district  en- 
gineer, proved  a  plan  of  tho  station- 
master's  residence,  and  adjoining  pro- 
perty. Tho  ganger's  house  at  New- 
lands  was,  he  said,  practically  within 
tho  station  yard,  and  about  100  foot 
from  the  line.  The  stationmaster's  ro«i- 
denco  was  about  1,200  foot  from  the 
station.    He  believed  that  tho  triangular 

Eioco     of     ground,     on  which  the  gato- 
eoper's  cottage  stood,  belonged  to  tho 
criginal  expropriation. 

Gowan  Cresswell  Clarke,  chief  traffic 
mariager  of  the  C.G.R.,  said  that  tho 
land  on  which  tho  stationmaAter's  hou.se 
stood  was  bought  to  free  the  railway 
building  at  Claremont.  and  give  greater 
ficcommodation  for  the  travelling  public. 
Up  to  that  time  tlie  scationmaster  had 
occupied  part  of  the  station  building.  It 
was  desirable  that  tho  stationmasor 
should  live  as  near  the  station  as  poa- 
siblo,  because  he  was  supposed  to  be  al- 
ways available,  night  or  day,  in  cas«.  of 
fc'gs,  accidents,  or  other  emergencief«. 
Tho  principal  purpose  of  the  purchase 
was  to  get  a  site  for  the  stationmaster's 
W'sidence.  Only  one  of  tho  four  ho.ises 
adjoining  was  occupied,  viz.,  by  a  porter 
of  the  Claremont  Station.  ITie  porter 
was  not  bound  to  occupy  that  house. 
The  particular  platelayer  occupying  one 
of  the  houses  named  was  a  foreman,  and 
should  reside  close  at  hand.  As  to  the 
gr.tekeepers,  it  was  most  necessarv  that 
they  should  live  as  near  a«  possible  to 
tho  line.  Witness  had  been  in  the  Gov- 
ernment service  since  1878.  The  gate- 
keeper's cottage  near  Newlands  Station 
seemed  to  him  to  he  one  of  the  old 
properties  taken  over  when  the  line  wa« 
expropriated. 

Cross-examined :  The  Newlands  sta- 
tionmaster  lived  on  the  Hardwick  Es- 
tate, a  full  ten  minutes'  walk  from  the 
station,  but  that  was  only  a  temporary 
expedient.  They  had  plans  made  and 
ground  laid  out  for  a  stationmaster's 
house  quite  close  to  the  Newlands  Sta- 
tion. The  Claremont  stationma^ter  did 
not  pay  rent ;  he  had  a  salary  and  house 
allowed. 

Harry  Elliott,  resident  engineer  of  the 
Western  System,  C.G.R.,  said  it  was 
necessary  that  the  platelayer  near  New- 
lands  Station  shoula  live  in  close  proxim- 
ity to  the  line.    If  he  refused  to  live  in 


20i; 


CAPE  TIMES"   LAW  REPORTS. 


that  house  they  would  have  to  get  an- 
other man  who  would.  The  gatekeep- 
ers should  live  cloee  to  the  line,  l)ocau8o 
they  wore  really  on  duty  the  wijolc  of 
the     24  Hours. 

Cross-examined :  He  should  not  say 
that  the  stationmastfr  at  Claromont  l-ad 
not  '"  l)oneficial  c)ccux>ation  "  ;  he  should 
call  it  '■  eiifurcod   oc-cupation." 

[Do  Villiorn,  C.J,:  It  may  bo  both 
'*  iM'nefioial ''  and  "  enforced. "J 

Alfred  \Vm.  Bowers,  stationmaster  at 
Claremont,  and  Francis  Kemp,  gaU?- 
kcs»i)er.  Newlands,   also  gave  ovidence. 

Mr.  Jones  closed  his  caso,  and  coun- 
sel were  heard  in  argument. 

Do  Villiers,  (-.J. :  A  preat  deal  of 
evidence  has  been  given  in  this 
case,  hut  the  decision  of  the  Court 
will  depend  mainly  upon  the  con- 
struction of  the  Acts  of  Parliament 
relating  to  the  rating  of  Coverimient 
I'l'operty.  By  the  Act  45  of  1882  it  was 
enacted  that  all  land  within  any  munici- 
pality shall  be  ratable  property  within 
the  meaning  of  this  Act,  except  as  here- 
inafter stated."  The  exceptions,  amongst 
others,  were  the  property  of  Iler  Majesty 
or  of  the  Colonial  (iuvernment,  which  is 
unocQupied  or  ufled  for  public  purposes 
bind  in  the  occupation  of  the  Goveni- 
ment,  or  of  any  iierson  or  public  body, 
and  used  for  public  purposes.  Then,  by 
the  Act  of  1891,  there  was  a  complete 
change  of  the  policy  of  the  Lfegi(<lature 
in  regard  to  the  exemption  of  (^rown 
proi>erty.  The  second  section  of  Act  36 
of  1891  enacted.  *'  that  from  and  after 
the  taking  effect  of  this  Act  any  immov- 
able property  which  is  situated  within 
the  limits  of  any  municipality  or  corpor- 
ate town,  and  which  is  voted  in  Her 
Majesty  the  Queen,  in  her  Colonial  Gov- 
ernment, or  occupied  by  the  Colonial 
(fovernraent  for  puV>lic  purposes,  shall, 
subject  to  the  provisions  hereinafter  con- 
tained, be  liable  to  lx>  rated  for  Munici- 
pal purposes  by  the  Council  of  such 
MiMiicipality  or  town,  to  the  frame  ex- 
tent and  in  the  same  manner  as  if  the 
paid  pr(>]x*riy  had  been  ow.ied  or  occu- 
pied, as  the  case  may  be,  oy  a  private 
person."  There  were  certain  exceptions 
iiitrodiicod  by  the  4th  section,  in  which 
it  was  provided  that  rates  should  be 
levied  by  and  payable  to  the  Munici- 
pality "except  any  line  of  railway  and 
railway  buildings  situate  in  any  part  of 
the  Colony."  Now,  the  first  question 
is  independently  of  the  Act  of  1892,  to 
which  I  shall  presently  refer,  would  any 
of  the  buildings  in  question  fairly  come 
within  the  designation  of  a  line  of  rail- 
way or  railway  Duildings?  Clearly,  they 
do  not  form  part  of  the  railway. 
J)o  they  form  part  of  the  rail- 
way buildings?  As  to  the  station- 
master's  residence,  it  clearly  was  not  a 
railway  building.  It  wa<^  not  included 
within  the  original  expropriation;  it  did 
not  form  part  of  the  station ;  it  wae  pur- 
chased by  the  Railway  Department  be- 
cause the  etationmastor's  quarters,  form- 


ing part  of  the  statioii,  weie  required 
for  the  purpose  of  enlanrinir  the  station, 
and  it  was  some  1,200  feet,  I  un- 
derstand, distant  from  the  station. 
But,  in  no  sense  of  the  word,  did 
that  building  over  constitute  a  rail- 
way building.  Then,  in  regard  to 
the  ganger's  cottage,  that  also  is 
wholly  separated.  It  is  also  called  a 
platelayer's  cottage.  That  is  wholly 
separate  property,  acquired  by  the  de- 
partment after  tne  original  construction 
of  the  railway,  and  that  also,  in  my 
opinion,  cannot  in  anj  aenae  be  con< 
sidered  a  railway  budding.  But  the 
cottage  occupied  oy  the  gatekeeper  ap- 
pears to  me  to  fairly  come  within  the 
designation  of  a  railway  building.  It  is 
essential  to  have  a  cottage  at  that  par- 
ticular place,  so  that  there  should  be  a 
person  m  the  immediate  vicinity  at  the 
Deck  and  call  of  those  who  wish  to  cross 
the  rails,  and  it  is  admitted  also  that 
this    cottage    formed    part   of    the    land 

I  taken  over  by  the  Government.  I 
take  it  that  it  was  really  expropriated 
for   the   purpose   of  placmg  this      gate- 

I  keeper's  cottage  upon  it,  and  that  iiU 
cottage  was  so  easenial  a  ,part  of  the 
working  of  the  railway,  so  indispensable 
to  the  working  of  the  railway,  that  it 
may  fairly  be  considered  as  one  of  th? 
railway  buildings  taken  over  by  the  Cape 
Government.  Now,  the  next  question 
is  whether  the  Act  of  1892  in  any  way 
affects  the  decision  of  the  present  case. 
The  3rd  section  of  Act  19  of  1892  con- 
tains this  proviso:  *'That  the  term 
'  railway  buildings '  shall  not  apply  to 
such  buildings  as  are  beneficially  occu- 
pied by  individuals  in  their  private* 
capacity.'*  I  am  clearly  of  opinion  that 
the  intention  of  this  proviso  was  not 
in  any  way  to  add  to  the  exemptions, 
but  to  define  them.  In  the  Act  of  1891 
there  was  a  general  proviso,  which 
I  have  already  read,  that  the  pro- 
perty of  the  Crown  and  the  pro- 
perty of  the  OoloniaJ  Government  snail 
Be  liable  to  be  rated  for  municipal  pur- 
poses, in  the  same  manner  as  if  the 
property  was  owned  or  occupied,  as  the 
case  may  be,  by  a  private  person.  Then 
there  was  the  exception,  and,  in  my 
opinion,  the  proviso  to  the  third  section 
of  Act  19  of  1892  was  intended  to  make 
it  clear  that  the  exception  of  *'  railway 
buildings"  shall  not  be  construed  so 
widely  as  to  include  "such  buildings  as 
are  occupied  by  individuals  in  their  pri- 
vate capacity."  Now,  take  the  station- 
master's  residence.  In  my  opinion,  it 
is  "  beneficially  occupied  "  by  an  indi- 
vidual, yiz.,  the  stationmaster,  and  it  is 
occupied  by  him  in  his  private  capacity. 
There  is  nothing  official  in  connection 
with  the  occupation  of  that  building. 
It  is  not  a  "  railway  building,"  and  docs 
••■»t  require  any  special  care  on  his  part. 
He  occupies  it  as  a  private  individua], 
and  although  it  is  a  matter  of  con- 
venience for  him  as  stationma.ster  that 
he   ^ihould   be  near  the  station,   yet  ho 


"  GAPE  TIMES "   LAW  REPORTS. 


207 


iHll  occupies  that    property   in  his  pri- 
vate capacity.  In  my  opinion,  therefore, 
the  statiomnaster'a    house,    which  is  en- 
tirely oataide  the    station    buildings,    is 
liable  to  be  rated.        The  same  remark 
applied    to    the     platelayer*s     cottage. 
Then,  in  regard  to  the  gatokoopcr's  cot- 
tage,   it    is  just  a  doubtful  point  with 
riM»    whether     this   proviso  was  not  in- 
tenrled  to  render  such  a  building  liable 
to  be  rated,  but,  upon  tho  whole.  I  have 
come  to  the  conclusion  that,  8eein|]:  that 
it  came  fairly  within  the    designation   of 
"  railway  buildings "   before   the  Act  of 
1882  was  paa»ed,   and  seeing  also     that 
the  gatekeeper  ia  there  at  the  call  night 
and   day   of  persons   wishing  to     cross 
over    the    railway,     it     may     be     held 
that  his  occupation  is  not  in  his  private 
rapacity,  but  in  a  public  capacity.        I 
wmsider,       therefore,      that    the    action 
^hnuld  fail  in  regard  to  the  claim  for  a 
rate  upon  tho  gatekeeper's  cottage.  The 
"^ult.  therefore,  of  the    case   will      bo 
^hat  judgment  will    be    entered  for  the 
M»"|tiffa  for  £14  Is.  3d.,  with  costs. 

IPlamtirs  Attornovs :  Tredgold,  Mc- 
Intyre  and  Bi.«wet;  Defendant's  Attor- 
n<^ws:  Reid  and  Nephew.] 


with  the  Irnvs  and  regulatimis 
in  force  in  the  territory  at  the 
time  when  the  judgment  of  the 
Communion  was  given. 


nL.\SDER   COXCESSIONS    V.  f        hm. 
COLONIAL  GOVERNMENT.     \   Mar.  7th. 

Concejwion— Judgment    of    Con- 
cepidon  Court — Declaration  of 

rigbU. 

^V  chief  of  a  native  temtory 
m(h  a  coficeamon  to  O,  of  the 
right  lopro.ytfct,   dig  for  and 
ronvfifl   to    his    oicn    vfte    all 
precimtg  stonen   and   minerah 
fmd  within  the  limita  of  thr 
coiiresmu.    C.  ceded  h  i>  righ  ts 
f*\tiie  plaintiffs.     The  Br'itiuh 
^^orntiraeni  annexed  the  t^rri- 
ff*ry  and  appointed  a  Court, 
^ndfr  a  Proclamation^  S^^i^'g 
Kurh  ( 'ouj.f  fidl  judicial  jxurern 
^^*  decide  upmi  the  raliditt/  of 
^it  cfmcfm'ons  with  an  aj)pea'. 
to  the  Privy    Council,      The 
Court  allowed  the,  claim  to  the 
fotteexxinn    in      qtieMion,     bid 
^jfuhjectto  all  lairs  and  regida- 
itons  of  British  BechuanaUmd 
rdatitig  to  mines  ami  ntiitfrah^ 
and  other  wise  in  forcp  in  the 
said   territory.''       There   iras 
»o  appeal  against  this  judg- 
ment. 

Held,  in  an  action  for  a 
declaration  of  rights^  that  the 
plaintiffs  tcere  not  entitled  to 
any    declaratiim     inccmsintent 


This  was  a  Rj>ecial  case  stated  by 
lh.>  Vilandcr  ('onco.8sions  Syndicate  aiid 
Ibo  Colonial  (Jovornnicnt  for  tlu»  opinioti 
of  tho  Court 

The  special  ca.*o  was  stated  in  the  fol- 
low iiig  terms : 

1.  The  plaintiffs  in  this  suit  are  Harry 
Mosenthal,      George       Joseph      Samm^l 
Mo^onthal,  and  William  Mosenthal,  car- 
rving   on   business  at    Port    Elizabeth  in 
ihi««   colony    under  the  style  or    firm    of 
Adolph  Mosenthal  and    Company ;    Wil- 
helm  Heinrich    Liebermaim,      Cnarlotte 
Paulina  Bollstcdt,  in  her     rapacity      as 
tx'^cutrix  testamentary  in    tho  estate  of 
the  late  Johann  ('hristoph  Ii<'llst<»dt  and 
Pirk  Elise  Vreede,  carrying  on  btisincss 
at    Port    Elizabeth   aforesjiid    as  Lielx'r- 
ncann,    BelUtedt     and   (-ompany;    Oscar 
Arnold  Arndt  and  ('arl  Johannes  Cohn, 
carrying  on  busuiess  at  Hamburg  in  (Jer- 
many    under  the    style    of      Arndt   and 
Cohn ;  and  the  Consolidated  Rand  Rho- 
desia  Trust   and    General       Exploration 
Company,    Limited,  a  company  duly  re- 
gistered in  London  with  limited  liability, 
the  successors  in  title,  in  respect  of  the 
matters  herein  in  suit  of  one  Emil   Cas- 
tens ;    the   said  parties  being   associated 
together    in  respect    of  the   concessions, 
rights,   claims,    nitorest,    property,      and 
title    hereinafter  referred   to  and    herein 
in  suit,  under  the  style  or     firm  of  the 
Vilander  Conce«sions'  Syndicate,    herein- 
after termed  the  '*  Syndicate,"  and  being 
as  such  syndicate  the  successors  in  title 
ill  respect  of  the  matters  herein  in  suit  of 
one  Adolph  Heinrich  Oarstensen  herein- 
after referred  to. 

2.  The  defendant  is  the  Honourable 
Arthur  John  Fuller,  in  his  capacity  as 
the  Secretary  for  Agriculture,  and  as 
such  representing  the  Government  of 
thi^  colony. 

3.  Before,  during,  and  after  the  period 
commencing  with  the  month  of  Novem- 
ber, 1889,  and  terminating  in  April, 
1890,  one  David  Vilander  (hereinafter 
termed  the  *'  Chief ")  was  the  Chief  of 
thf*  Meir  and  Kalahari  (hereinafter 
termed  the  "  tribe  "),  a  native  tribe  oc- 
cupying and  lawfully  and  peaceably  pos- 
sesping  a  certain  extent  of  territory  "(here- 
inafter termed  the  "  territory ")  in  the 
country  or  land  known  as  BechuanaJand 
and  the  Kalahari. 

*.  Over  the  said  country  a  protectorate 
had  >)een  established  by  Her  late  Ma- 
esty  Queen  Victoria  in  her  Imperial  Gov- 
ernment ;  and  therein,  and  subject  to 
such  protectorate,  the  territory  was  an 
independent  protected  State,  and  the 
said  Vilander  was  the  true  and  right- 
ful chief  thereof,  duly  possessed  of  and 
exercising  rights  of  sovereignty  in 
respect  of  the  territory  of  tho  tribe,  ai>d, 


208 


"CAPE  TIMES"   LAW  REPORTS. 


clothed  86  such  chief,  exercising  such 
sovereign  rights  with  the  concurrence  of 
his  Raad  with  all  right,  authority,  and 
power  to  grant  land  and  to  make  con- 
c-ession*!  in  regard  to  mineral  rights,  and 
in  respect  of  the  country  or  territory  oc- 
cupied by  him  and  the  people  or  tribe 
under  him. 

5.  On  or  about  the  22nd  November, 
1889,  an  agreement  in  writing  was  duly 
entered  into  between  one  Adolph  Hein- 
rich  Cnrstensen,  then  of  Vryburg.  m 
British  Bochuanaland,  and  the  chief, 
whereby,  on  the  conditions  and  for  the 
consideration  set  forth  in  the  said  agree- 
ment, certain  mineral  concession  and 
prospecting  rights  were  granted  to-  the 
said  Carstensen.  A  copy  of  the  said 
aarreement  is  hereunto  annexed  marked 
*•  A."  The  said  agreement  is  hereinafter 
termed  '"  the  concession." 

6.  Thereafter,  on  or  about  the  10th 
April,  1390,  the  conc<»j<«ion  Ix'ing  then 
still  of  full  force  and  effect,  a  further 
•grcH'ment  in  writing  was  duly  entered 
into  between  the  same  parties  fr)r  the 
like  purposes  and  under  the  like  condi- 
tions and  provisions  as  those  obtaining 
in  the  concession,  but  for  an  increa.sed 
consideration  and  in  respect  of  and 
throughout  a  more  extended  area.  A 
copy  of  the  said  further  agreement  is 
hereto  annexed  marked  **  B,"  the  said 
further  agreement  being  hereinafter 
termed        "  the       further       concession." 

7.  On  the  21st  January,  1890,  the  said 
C*arsten^en^  for  value  absolutely  sold, 
ceded,  assigned,  transferred,  conveyed, 
and  set  over  to  a  certain  syndicate, 
termed  the  Vilander  Concession  Syndi- 
cate, or  its  trustees  for  the  time  being, 
all  his  right,  title,  estate,  interest,  pro- 
fit, property,  claim  or  demand  whatso- 
ever in  an(l  to  the  concession,  and  in 
and  to  all  rights  and  privileges  con- 
ferred upon  him  thereunder,  together 
with  any  documents  of  title  or  other- 
wise in  anywise  relating  or  having  re- 
ference thereto.  ine  .«iaid  syndicate  is 
that  mentioned  in  the  first  paragraph 
hereof,  and  the  plaintiffs  constitute  the 
•aid  syndicate. 

8.  Tnereafter  in  or  about  the  month 
of  August,  1890,  the  said  Carstensen, 
for  value  ceded,  ass^igned,  transferred, 
and  set  over  to  the  said  syndicate  all  his 
right,  title,  estate,  interest,  profit,  pro- 
perty, claim  or  demand  whatsoever  in 
and  t^  the  further  concession  in  and  to 
all  rights  and  privileges  granted  to  him 
thereunder,  and  thereafter  on  the  ^th 
April,  1893,  formally  ratified  such  ces- 
sion and  assignment,  and  thereby  again 
ceded,  assigned,  transferred  and  aet 
over  to  the  syndicate  or  its  trustees  for 
the  time  being  all  big  right,  title,  in- 
terest, estate,  profit,  propertv,  claim  or 
demand  in  and  to  the  lurtner  conces- 
sion, and  in  and  to  all  rights  and 
privileges   granted   to  him   thereunder. 

Copies  of  the  above  cessions  are  here- 
to annexed  "C"  and  "D"  respec- 
tively. 


9.  By  virtue  of  the  above  concessions 
and  cessions  the  syndicate  became  and 
was  and  is  now  entitled  to  claim,  have, 
exercise  and  enjoy  all  the  right,  title, 
estate,  interest,  profit,  property,  privil- 
eges, claim,  or  demand  of  what  kind 
soever  which,  or  the  right  to  claim, 
was  vested  in  or  pairsed  by  the  said 
Carstensen. 

10.  The  sum  of  £500  agreed  to  be 
paid  annually  by  the  concessionaire  as 
the  consideration  for  the  concessions 
was  paid  to  the  Chief  Vilander  up  to 
the  5th  May,  1891,  being  the  date  of 
the  annexation  of  his  country  to  Brit- 
ish Be^chuanaland,  and  was  thereafter 
from  time  to  time  paid  to  the  said 
Vilander  up  to  the  time  of  his  death, 
and  thereafter  to  his  executors,  but  the 
Government  does  not  recognise  the 
validity  of  any  payment  made  after  the 
5th  May,  1891,  aforesaid.  No  amounts 
under  the  concessions  and  no  fees  or 
licence  moneys  have  been  paid  either 
to  the  Government  of  the  former  Crown 
Colony  of  British  Bechuanaland  since 
Bth  Majr,  1891,  or  to  the  Cape  Govern- 
ment since  the  annexation  of  the  said 
territory   to   this  colony  in    1895. 

11.  Bv  Proclamation  No.  106,  B.B.. 
1891.  fler  Majestv's  Sovereignty  was 
proclaimed  oyer  the  territory  to  the 
west  of  British  Bechuanaland,  know7i 
as  Bechuanaland  and  the  Kalahari,  in 
which  the  territory  referred  to  in  thi* 
case  was  included,  and  by  Proclamation 
No.  120.  B.B..  1891,  provision  was  made 
for  the  law  to  be  administered  therein. 

12.  In  terms  of  Proclamation  No.  159, 
B.B..  1893,  a  Court  styled  "The  British 
Bechuanaland  Conoesftion  Court "  wras 
constituted  and  established  in  order  io 
iiujuire  into  and  decide  upon  the  valid- 
ity of  and  scope  of  claims  founded  upon 
grants  of  land  or  mineral  or  other  con 
cessions  in  the  territory  referred  to  in 
paragraph  11. 

13.  Thereafter,  on  the  1st  Septem- 
ber, 1893,  and  subseipient  days,  the  said 
Court  duly  sat  to  inquire  into  and  de 
c'ide  on  the  claims  advanced  before  it 
by  the  trustees  for  the  syndicate  in 
respect  of  the  concession  and  further 
concession,  and  to  hear  evidence  ad- 
duced in  support  thereof  or  otherfwise. 
the  Crown  Prosecutor  appearing  on  l>e- 
ialf  of  the  Government  of  British 
Bechuanaland. 

14.  Thereafter,  on  the  7th  December. 
1893,  the  .said  claim  was  duly  granted 
and  allowed,  aa  will  appear  from  a  copy 
of  the  judgment  hereto  annexed  and 
marked   "  E." 

15.  Under  the  provisions  of  the 
"  British  Bechuanaland  Annexation 
Act,  1895,"  British  Bechuanaland  be- 
came annexed  to  this  colony,  and  sec- 
tion 30  of  the  Act  maintained  the  pro- 
visions of  Proclamation  No.  169,  B.B.. 
1893,  and  preserved  the  jurisdiction  of 
the  British  Bechuanaland  (.Concession 
Court. 


"CAPB  TIMES"   LAW  REPORTS. 


209 


16.  By  section  21  of  the  said  Act  it 
WM  proTided  that  aJl  liabilitieK)  of  the 
Govoruor  of  the  annexed  territory  ar, 
the  time  of  the  aaid  aniiexatiou  shouid 
be  deemed  to  l)e  liabilities  of  the 
Governor  of  this   colony. 

17.  On  divere  occasions,  both  before 
and  after  the  said  annexation,  grants 
wem  issued  in  respect  of  land  in  the 
territory  prior  to  the  annexation  by  the 
GoTemor  of  British  Bechuanaland  and 
tjereafter  by  the  Governor  of  this 
r-jltiny,  and  therein  the  right  to  minerals 
or  precious  atones  was  reserved  to  the 
Government,  as  will  appear  on  r^erence 
hi  the  terms  of  the  "conditions"  in- 
icrted  in  the  said  grants  and  hereto 
annexed*  marked  respectively  *'  F  "  and 
*  G." 

18.  Tbe  syndicate  has  duly  sought  to 
obtain  from  the  Government  recogni- 
tion of  rts  rights,  and  has  maintained 
that  ftuch  reservations  are  unlawful,  but 
the  GoverzHnent  has  refused  to  recognise 
the  rights  of  the  syndicate  in  respect 
of  the  concession  or  further  concession 
and  maintains  that  it  is  entitled  to  make 
sorh  reservati<Mis  for  rts  own  benefit. 

19.  The  plaintiffs  contend  that  tht* 
conccMsion  and  further  concession  are 
snd  have  been  of  full  force  and  effect 
and  binding  upon  the  Government,  and 
that  t-hey  are  entitled  to  have  their 
rights  in,  arising  out  of,  and  under  the 
said  conceraion  and  further  concession, 
declared  accordingly  by  this  Honour- 
able Court,  and  to  obtain  an  order  Jo- 
claring  that  as  to  all  grants  already 
issued  with  such  reservations  the 
Colonial  Government  is  bound  to  re- 
cognise the  said  reservations  as  niniie 
for  and  on  behalf  of  the  plaintiffs,  and 
directing  the  Government  as  to  hny 
further  grants  of  land  in  the  said 
territory  to  include  a  condition  sub- 
jecting such  grants  to  the  rights  of  the 
plaintiffs  and  their  successors  or 
usignees  under  the  aforesaid  conces- 
■ions. 

20.  The  defendant  contends  that  tbe 
plaaniiffs  are  not  entitled  in  the  pre- 
mises to  the  relief  claimed.  The  parties 
prav  for  judgment  in  accordance  with 
their  respective  contentions  with  costs. 

Mr.  Schrciner,  K.O.  (with  him  Mr. 
McfJregor)  for  plaintiffs ;  Sir  H.  Juta, 
K.C.  (with  him  Mr.  Nightingale)  for 
the  defendant. 

Mr.  Schreiner  said  that  Garstensen 
conceded  all  his  rights  to  the  syndicate 
whom  the  plaintiffs  represented.  He 
cf>ncedcd  his  rights  unc(er  the  first  con- 
cession of  the  Sst  January,  1890,  and 
subtequcntly,  in  August,  1^,  he  made  a 
second  concession  to  the  syndicate.  He 
Cfinfirmed  that  second  concession  by  a 
document  dated  the  2nd  April,  1803.  By 
Proclamation  No.  106  of  1891  the  ter- 
ritory of  David  Vilander  was  annexed 
to  and  formed,  after  that  time,  part  of 
Her  Majesty*s  dominions.  ^  Proclama- 
tions 1^  and  123  made  provision  for  the 
law  to  bo  in  force  in  and  for  the  civil 
administration    of   the   territory.       The 


oonoeBsionB  thua  granted  and  ceded  were 
dealt  with  afterwards  by  a  Court»  which 
was  established  under  Proclamation  No. 
169.  referred  to  in  paragraph  12  of  the 
{special  case,  called  the  British  Bechu- 
analand Concessions  Court.  That  Court 
sat  in  September,  1893,  and  decided  on 
the  clsinis  advanced  before  it  by  the 
trustees  of  the  syndicate,  in  zespect  of 
those  oonoeasions  of  Garatenaen,  and  it 
heard  evidence.  Tbe  Crown  Prosecutor 
appeared  on  behalf  of  the  Government 
of  British  Bechuanaland. 

The  judgment  of  tbe  Oonoessions 
Court,  dated  December  1,  1893,  was  in 
tbe  followilig  terms :  "  Claim  No.  6. — ^A. 
H.  Carstensea.  mineral  rights  over  the 
whole  of  Vi lander's  country.  The  en- 
tire claim  as  proved  granted,  subieot  to 
all  laws  and  regiilations  of  British 
Bechuanaland  relating  to  mines  and  the 
minerals  and  otherwise  in  force  in  the 
said  territory." 

EXe  Villiers.  C.J.,  asked  Mr.  Schreiner 
if  he  accepted  the  judgment  given  by« 
the   Bechuanaland   Uonoessioikd  Court. 

Mr.  Schreiner  said  that  he  did. 

[De  Villiers.  C.J. :  '*  Subject  to  the 
regulations,  etc.,"  as  stated  in  the 
judgment?] 

Mr.  Schreiner  said  that,  of  course,  they 
could  not  be  given  iudgment  witn  one 
hand  and  have  it  taken  away  with  the 
other.  They  were  before  the  Court 
that  day  beosuse  the  Government  re- 
fused to  recognise  their  rights,  and  be- 
cause the  Government  said  they  reserved 
the  minerals  for  their  own  benefit.  ^  He 
submitted  that  it  was  for  his  lordship  to 
say  that  the  Gfovemment  was  entirely 
wrong  in  its  attitude  towards  the  plain- 
tiff syndicate.  Here  the  Government, 
without  going  to  Parliament,  without  a 
now  Act,  proceeded  to  use  certain  forms 
of  language,  dealing  with  the  land  as 
though  it  were  Crown  land,  open  to  be 
dealt  with  as  they  pleased.  It  never 
could  be  denied  that  the  title  to  that 
land  was,  after  annexation,  in  the 
Crown,  but  it  was  not  waste  Crown 
land.  Crown  land  of  the  ordinary 
character ;  it  was  Crown  land,  subject  to 
certain  rights,  and  to  rights  confirmed 
by  a   competent  court  in   1893. 

Sir  H.  Juta  said  that  the  sovereign 
rights  of  the  chief  and  his  heirs  and  suc- 
cessors were  retained  under  the  cession. 
The  cession  to  Garstensen  was  an  im- 
perium  in  imperio  of  the  widest  char- 
acter, and  hence  it  was  of  the  greatei^t 
public  importance  that  there  should  bo 
a  decision  as  to  the  validity  of  this  con- 
cession. The  agreements  provided  that, 
in  addition  to  the  sum  cHf  £5(X)  paid 
annually,  there  should  be  paid  a  sum  of 
Ss.  per  month.  The  agreement  specially 
was  that  if  the  payments  were  not  paid 
for  a  period  of  three  months,  this  de- 
vise came  to  an  end.  The  contention 
of  the  defendants  was  that  by  the  an- 
nexation His  Majesty,  in  the  CJolonial 
(Sovemment,  had  stepped  into  the  shoes 
of  Vilander.       The   payments  had     not 


198 


"CAPE  TIMES*'  LAW  ftEPORTS. 


put.  into  potseMioD,  the  defendants  have 
retained  pofisenion  of  the  eite  and 
building,  and  still  retain,  and  they  have 
never  at  any  time  given  up,  nor  has  any- 
one of  them  ever  given  up  poaaeasion. 

5.  They  deny  that  they  or  any  of  them 
at  any  time  trespassed  upon  the  said 
premises,  but  they  admit  that  on  or 
about  the  5th  November  the  first  and 
aeveiKth  defendants,  acting  for  them- 
selves and  for  the  remaining  defendants. 
clo;ied  the  front  door  opening  on  to 
Riebeek-atreet.  and  nailed  up  the  access 
to  other  unfinished  portions  of  the 
building,  and  continued  to  retain  pos- 
session of  the  building,  and  they  say 
that,  by  reason  of  the  matters  herein- 
after referred  to,  they  were  in  law 
justified  in  their  said  actions.  Save  as 
above,  they  deny  the  allegations  in  para- 
graph 7. 

6.  They  admit  paragraphs  8,  9,  10.  and 
11,  save  that  aa  to  paragraph  9,  they 
deny  that  the^  or  any  of  them  dealt 
with  the  premises  wrongfully  or  unlaw- 
fully. 

7.  As  to  paragraph  12,  thev  deny  that 
the  plaintiffs  have  sustained  any  dam- 
ages for  which  the  defendants  are 
liable. 

Wherefore  they  pray  that  the  plain- 
tiffs' claim  may  be  dismissed,  with 
costs. 

The  plaintiffs'  replication  waa  gen- 
eral. 

Mr.  Schreiner,  K>C.  (with  him  Mr. 
Gardiner)  for  the  plaintiffs.  Mr.  Searle, 
K.C.  (with  him  Mr.  Upington)  for  the 
defendants. 

Mr.  Searle  said  that  he  found  there 
were  certain  little  inaccuracies  in  the 
declaration.  One  of  the  defendanta, 
Jenkins,  had  not,  as  a  matter  of  fact, 
proved  preferently  against  the  estate. 
The  seventh  defendant  had  not  proved 
at  all,  and  the  third  had  now  filed  a 
concurrent  claim.  Turnbull  and  Bygolt 
now  said  that  they  wished  to  withdraw 
from  the  action,  and  that  they    had  been 

i'oined  aa  defendants  under  a  misappre- 
lension  aa  to  their  position. 
John  Edwin  Paul  C'lose  gave  parti- 
culars as  to  the  surrender  of  the  estate, 
and  the  meetings  of  creditors  and  elec- 
tion of  trustees.  Ho  said  that  he  found 
there  were  bonds  against  the  pro- 
perty to'  the  amount  of  £38,(XX) 
odd.  There  was  other  immovable 
property  in  the  estate,  but  it  was 
all  bonded,  and  he  aid  not  think 
that  there  would  be  anything  to  bo 
distributed  to  ooDCurrent  creditors  out 
of  this.  There  were  no  ntovables  to 
speak  of  in  the  estate.  Witness  spokn 
of  the  meeting  of  Israelaon's  creditors 
held  early  in  September  at  his  (wit- 
ness's) office,  when  leraelson  had  got 
into  arrear  with  his  payments.  At  that 
time  Israelson  hoped  to  be  able  to 
raise  money  from  Mr.  Gourlay,  but 
Mr.  Gourlay  did  not  advance  amy  more 
money.  Before  witness  waa  called  in, 
Mr.  Gourlay  had  advanced  £3,0(X). 
There  were  other  people   beeidee      the 


defendants  working  on  the  premises  at 
the  time  the  building  operations  came 
to  an  end.  Outside  the  claims  made 
by  the  defendants,  there  were  claims 
amounting  to  £5,(XX).  lar^ly  for 
materials  supplied  for  the  buildmg.  The 
architect,  for  instance,  had  a  claim  for 
£1.300.  The  plaintiffs  claimed  dam- 
ages, because  they  had  been  prevented 
from  selling  the  buildings  at  an  early 
date.  The  interest  on  the  bonds  had 
been  rumiiug,  and  the  sale  had  had  to 
stand  over,  to  the  detriment  of  aome 
of  the  other  creditors.  He  computed 
that  they  had  loat  at  least  a  month  in 
selling  tne  property,  in  consequence  of 
the  Fp^ition  assumed  by  the  defendants. 
Tlie  interest  on  the  bonds  amounted  to 
£2,463  a  year.  There  waa  also  insur- 
ance running,  at  the  rate  of  £30  a 
month. 

fDe  Villicrs,  C.J. :  How  is  it  that  you 
did  not  apply  to  the  Court  for  an  in- 
terdict against  the  defendants?! 

I  had  no  locus  standi  at  the  time. 

[De  Villiers,  C.J. :  When  were  you 
appointed  trustee?) 

On  the  25th   November. 

[De  Villiers,  C. J. :  Well  after  that? 
You  claim  damages  by  reason  of  the 
acts  of  the  defendants.  Why  did  vou 
not  take  steps  to  interdict  the  defen- 
dants?) 

Mr.  Searle :  I  am  instructed  that  there 
was  a  suggestion  made  to  the  defen- 
dants tha''-  we  should  bring  the  matter 
ou  motion,  but  they  did  not  agree  to 
that. 

Witness:  They  understood  all  along, 
my  lord,  that  we  were  fighting  the 
ca*e. 

f pe  Villiers,  C.J. :  Do  vou  press  the 
claim  for  damages,  Mr.  i^arlc?| 

Mr.  Searle  said  he  understood  that  the 
plaintiffs  thought  the  estate  should  bo 
awarded  damages. 

Witness :  I  am  not  anxious  to  press 
the  claim  for  damages.  We  feel  sym- 
pa.thetic  towards  these  creditors,  but  wo 
don't  see  why  they  should  be  creditors, 
to  the  exclusion  o^  the  others. 

David  Israelson.  the  insolvent,  gave 
evidence  as  to  the  erection  of  the  Flat 
Iron,  and  his  difficulties  in  financing 
the  work. 

By  the  Court:  He  understood  that 
Mr.  Black's  men  stopped  work  because 
he  could  not  pay  tliem.  During  a 
period  of  six  weeks  they  did  no  work 
whatever.  They  left  tlieir  material  on 
the  premises. 

Witness  (continuing  his  evidence)  said 
that  a  day  or  two  after  he  had  given 
notice  of  his  intention  to  surrender. 
Black  and  Bloom  came  to  the  premises 
and  said  that  they  were  closmg  up 
the  premises.  They  proceeded  to  close 
the  premises  Jenkins  and  Co.  finish- 
ed all  their  work  about  three  montha, 
perhaps  more,  before  he  gave  notice 
to  surrender. 

Mr.  Schreiner  said  he  admitted  that 
Jenkins  and  Co.  were  out  of  pos- 
session. 


"CAPE  TIMES"   LAW  tlEPORTS. 


199 


Witnesfi,  in  further  evidence,  said  that 
Kiones  stopped  working  as  soon  as 
witness  told  nim  he  had  no  money. 
Lewis  worked  for  about  a  week  after 
the  meeting  of  creditors  at  Mr.  Close's 
(office.  Bloom  left  shortly  after  the 
meeting.  Each  workman  supplied  his 
own  took.  When  the  lift  was  brought 
by  Meissrs.  Govey  and  Co.,  Mr.  Sha<w, 
their  representative,  called,  and  saw 
him,  and  he  referred  him  to  Mr.  Close. 
Mr.  Shaw  came  back,  and  the  lift  was 
placed  by  Mr.  Shaw  in  the  passage. 
Mr.  Shaw  got  into  the  premises  hv  tak- 
ing out  the  hoarding.  W'itness  nad  a 
mail  named  Monty  on  the  building 
acting  as»  caretaker.  Monty  had  now 
left  the  Colony,  and  witness  did  not 
know  his  address. 

C*r<>*s-exaniined  by  Mr.  Schreiiier: 
He  had  no  clerk  of  works  of  Jiis  own  on 
the  prcmi.ses.  He  had  four  or  five 
mm  silc^oping  there,  whoec  duty  it  was 
lit  l<x>k  after  the  premii^cs.  He  believed 
Bl(K>m  also  had  a  man  there.  Ho  did 
Dot  call  for  tenders  for  the  work.  Ho 
took  the  men  t^>  the  place  and  showed 
them  what  there  was  to  bo  done. 

De  Villicrs,  C.J.,  intimated  that  he 
wished  the  parties  would  confine  them- 
selves to  the  simple  issue  whether  de- 
fendants had  possession  of  the  building 
at  any  time,  and  if  so,  whether  they 
subseiju^ntly   lost   it. 

Witness,  re-examined,  said  that 
Monty  continued  on  the  premises  up 
to  the  date  of  witness's  insolvency. 
Bloom  had  a  man  there. 

By  the  Court :  Bloom  iook  on  as  a 
contractor  for  £4,500  all  the  carpenters' 
work,  and  undertook  to  look  after  all 
the  works.  Witness  supplied  all  the 
timlier.  He  actually  paid  to  Bloom 
£3,850  or  £3,865.  Bloom  had  to  look 
after  the  work  generally.  Bloom  was 
not  "over "  Black's,  but  if  there  was 
anything  that  was  wrong.  Bloom  had  to 
report  to  witness.  He  did  not  know 
whether  he  should  call  Bloom  a  clerk 
of  works.  Bloom  was  the  head  man  of 
all  the  works,  to  protect  witness's  in- 
terests. 

Charles  Frederick  Shaw,  of  Messrs. 
Govey  and  Co.,  gave  evidence  with  re- 
gard to  a  visit  he  paid  to  the  premises 
on  the  14th  or  15th  October  to  deposit 
a  lift.  He  found  no  one  in  charge  of 
the  premise*.  There  was  no  work 
going  on.  He  only  found  builders'  re- 
fu^  about  the  place. 

Mr.   Schroiiior  closed   his   cb.so. 

James  Black,  of  Harris  and  Black, 
said  ho  had  never  known  that  Blmini 
was  super\'ising  their  work.  He  was 
not  aware  that  Bloom  had  anything  to 
do  with  their  work.  On  the  2nd 
September,  Israelson  owed  his  firm 
£1.066.  Witness  had  a  Kafir  on  the 
premises  until  the  22nd  September. 
Scaffolding  was  taken  away  that  had 
been  done  with,  but  they  left  sufficient 
to  complete  the  job.  Witness  went  in 
and  out  of  the  premises  after  the  2nd 
September  as  he  pleased.    He  had  left 


cement  and  lime  there.  Witness  also 
spoke  of  the  measures  taken  to  close 
the  premises.  As  to  the  man  Monty, 
he  knew  that  Monty  had  been  a 
labourer  on  the  bunmng,  and  that  he 
was  afterwards  employed  in  the  bar. 

Abraham  Bloom,  another  of  the  de- 
fendants, said  that  he  was  the  con- 
tractor for  carpentry.  He  had  nothing 
in  writing  relating  to  the  contract.  He 
was  to  superintend  all  the  work  up  to 
the  first  floor.  Monty  was  not  the 
caretaker  of  the  build m^.  Monty  was 
there  just  at  the  beginning,  and  asked 
witness  of  he  could  finish  a  room  so  that 
he  could  live  there.  Witness  had  told 
Mr.  Close  that  he  would  wait  until  the 
work  had  been  finished,  but  that  was 
subject  to  other  monev  being  raised  that 
had  been  mentioned  By  Israelson.  Wit- 
ness had  a  man  staying  on  the  pre- 
mises until  they  were  locked  up. 

Cross-examined :  It  was  part  of  his 
duty  to  see  that  all  the  work  went  on 
right.  That  was  a  friendly  arrange- 
ment, and  not  something  for  which  he 
was  specially  paid.  Witness  kept  no 
books  at  all.  He  had  not  claim'.Hi 
against  the  estate,  beoau.se  he  thought 
there  would  be  nothing  for  the  con- 
current creditors.  He  had  eight  rooms 
locked  up,  of  which  he  held  the  keys. 
Black  and  Lewis  had  locked  up  otlicr 
rooms. 

Further  evidence  was  given  by 

Geo.  Kinnes,  the  plumbing  and 
drainage  contractor,  who  olaimed  £196 
against  the  insolvent  estate ;  Thomas 
Smith,  book-keeper  of  the  last  witness ; 
Joel  Lewis,  painter,  who  had  a  claim 
for  £50;  Morris  Tamse,  who  supplied 
labour  for  the  brickwork,  and  who 
claimed  £275;  Henry  Frank  Wni. 
Kohr,  manager  for  Jenkins  and  Co., 
asphalters,    who  claimed  £80. 

Mr.   Searle  closed    his  case. 

Pogtea   (March   11th). 

The  Court  intimated  that  thoy  would 
first   hoar  counsel    for   the  defendants. 

Mr.  Schreiner  admitted  that  the  title 
to  the  property  which  was  in  the  de- 
fendants possession  was  in  the  trustoe, 
but  he  submitted  that  no  provision  of  the 
Insolvent  Ordinance  in  any  way  allowed 
the  trustee  to  have  a  better  right  than 
the  owner  of  the  property  could  have 
had.  The  trustee  in  this  matter  was 
but  the  successor  of  the  owner  of  the 
property,  who  was  Israelson.  The  ac- 
tion was  one  for  ejectment,  based  upon 
the  seventh  paragraph  of  the  declara- 
tion, which  set  out  that  certain  acts 
had  been  done  by  the  defen- 
dants in  locking  and  boarding  up  the 
property.  The  essence  of  the  ca^jo  for 
plaintiffs  was  that  these  acts  consti- 
tuted wrongful  and  unlawful  trespass  on 
the  part  ot  the  defendants.  One  im- 
portant point  was  that  the  insolvent 
(in  reply  to  a  question  put  by  the 
Court)  said  that  he  told  the  defendants, 
when  they  said  they  would  lock  up  the 
place,  that  they  could  do  as  thev  liked. 
Possession  was,  on  the  insolvent  s     own 


200 


"CAPE  TIMES"   LAW  REPORTS. 


udniission,   taken  by      his     cun&eut     by 
Black  and  Blum  on  behalf  of  all  the  de- 
fendants.      Counsel  went  on  to  contend 
that  t)io  defendants,   in  doing  the  work 
that  they  did,  were  not  looking  merely 
to    the    credit    of    Israelson ;    they  were 
looking  to  their   lien    on   the   buildings. 
Thoy    did,    he       submitted,    all    that    a 
group   of    persons    could    have    done    to 
secure    real    possession    of   the  building. 
They  locked  up  the  premises,  nailed  up 
certain    parts,    took    certain   rooms,   and 
had    people    sleeping    there.        Counsel 
did  not  claim   that   there   was  exclusive 
possession  of   the    building    by    the    de- 
fendants |    he   contended.   lir>wever,    that 
even  a  single  contractor  could  not  have 
exclusive       possession.        As       far       as 
Jenkins's   claim    was   concerned,    it    was 
hard   on  him,  but  he  had  given  un   his 
claim.       With    the      other      defenrlants. 
however,    it   was   not   ^o.       (*ounsel   ad- 
duced  a  number  of   authoriti4*s   in   sup- 
port   of    his    conti^ntions.        He    quoted 
Voct     (20-2-28)     Maasdorp,  Nathan,  and 
Van     Leeuwen,     and  cited  hroirns  Ax- 
9tit/Uf€»  v.  Pote  (4  K.D.C..  50)  and  Sternrr 
Y,   Aforom  (13  C.T.R       802).       He     pro- 
ceeded    to     state     the     position  of  the 
different  defendants.      Harris  and  Black 
had  a  large  contract,  but  there  was  still 
an    amount   owing    to    them    of    £1.066. 
Their   materials   were   there,    as    well  as 
wrtain  of    their    tools,    their   signboard 
was   in   one   of    the  windows,    and    they 
had    locked    one    of    the    rooms.     Turn- 
bull  and  Bigott  had  withdrawn  from  the 
action.       As   to  Jenkins   and    Co.,    they 
had  l>een  paid  half  of  their  charges,  and 
had    l>een    promised    the    other    half    in 
three  months.       Jenkins  had   thereupon 
gone   away  fr(»m  the   premises.       Coun- 
sel   admitted  _  that    he    could    not    press 
Jenkins's  claim  to   have   had    posoos.^ion 
of  the  building.       Kinness   was  hiill   on 
the    premises,    and    had    been    ready    to 
continue   tlie  work.       Kinne-s  had   been 
as.sociafed     with    Harris    and     Black     in 
what   was   done   after   the  insolvency   of 
Israelson.        He    had    a   claim    of   £196. 
(\)unsel    also    contended    tiiat      TaniseV; 
L<'wis    and     Blum     clearly     had    po'^sos- 
5ion.    along   with   the   other   defendants, 
of  the  building.       He  submitted   that  it 
ha<l    not    l>een   shown    thot    the        man 
"  Monte,"   whom  IsraeUon    de>(ribed    as 
his  caretaker,  had  any  possession  of  the 
Flat   Iron  on   liehalf  of  the   insolvent. 
Without  calling  on  Mr.   Searle. 
De    Villierji.    C.    J.:     The    Li«i,Mslatui>c 
did    n«>t    int<«nd   by    the    prov:->o    to    ex- 
tend    tlie     ri;rhts    of     re^tcntion     lK\vond 
the     liw     -thaL     existed     iM     tlie     time 
the     liw      was     pii>.s<Ml.        The     <|n«'sti(»n 
wa>    wliat     \m«     the    law     nt     the    time 
Ihe     Act     wat^    p-is-hmI?       I     lliink     th'> 
proviso  itself   in  a  few   words  says  that 
tho  law   authorised   the   right  of   reten- 
tion  where    there    is    actual    pn<i^ession. 
In    the   present    case,     therefore.    I    am 
clearly  ot  opinion  that  the  plaintiff  had 
no  such   actual  possession  of   the  build- 
ings as  to  entitle  them   to  the  right  of 
retention.    In  the  first  place,   all  those 


I 


I 


who   have     been      concerned,   and   were 
concerned,   in  the  building  of   this   pro- 
perty   are  not  before  the  Court.       Ihe 
foundations    were    laid      by      IsraeUoii. 
Several    workmen    were    engaged    upon 
different   parts   of   the    work.        But    all 
the   plaintiffs  before    the    C«>urt   do    not 
constitute    all    the    parties     who    would 
have   been  entitled  jointly  to  cLum   the 
poshe>*ion  of  the  whole  of  the  property. 
1    am  therefore   clearly   of   opinion   that 
the      actual      po^se.^^lon       required     by 
law    is       actual       pns^^sKui       of       ttio 
whole      property      sought    to      be       re- 
tained.      None  of     the.-vt^     people     had 
pt>t^es.sioii  of  the  whole  of  this  property, 
nor    iiad    they  jointly    p()s>>e>sion   of  tho 
v/lu.le  of  the  property.       it  is  true  that 
some  of  them   had  rooms  in  which  thoy 
hej)t   their   tools,   but    thrit    was  the    sole 
purpose  f(.r  which  they   took  posjw^ssion. 
As  to  Bloom,  he  had  pos^esMon  of  more 
than   one  room,   and   he  had   keys  of  s'*- 
veral   room.s,   but  the   relations    U-t ween 
Bloom  and  Israelson  were  such  that  it  was 
to  be  expected  he  would  have  some   de- 
grw  of  control    and  authority  over    the 
buildings.     He  was  not    in    the    position 
of  clerk  of  the  works,  but  still  he  was  iii 
thi^  position  that  if  anything  went  wroiifi 
h-    would   report  to  Israelson.   and  that 
such  a   man   occupied    certain    rooms  is 
ju>t   what   one   would     expect.       I      am 
satisfied  that  Bloom   never   occupied    or 
kept  the  kev-i  of  these  rooms  for  the  pur- 
pose of  asserting   a    right    of    possession 
on    behalf    of   all    the   pen-ons   who    had 
been  engaged   upon  the  building  of  this 
house.     When    thoy    saw    that    the   man 
wa.s  una.ble  to  pay,  thoy  did  not  think  it 
wirth  their  while  remaining  on  the  build- 
ings.    It  is  true  some  idd  tools  were  left 
about,  but  that  does  not   make  a  perM.u 
a!i  occupier  of  the  premises.     Then,  .>-ub- 
hoquentlv.    when    these    i-<'Oi.le   V)egan    to 
li<ar  that  they  would   lose    their  money, 
thore  was  a  conversation  with  Ij-raelson, 
who  said  tliev  could  go  on  the  premis<'> 
if    tlu-v  liked*.        Then   I   think  they   not 
onlv  had  the  keys  of  the  n-oms,  but  tln'V 
)Hit  on  a  lo(k  on  one  of  tho  do<»rs,  and  i;i 
th-it  wav  obtained  a(lnli-^ion  to  the  whole 
of  tho  promises.       But  during   the  same 
pt  riod  lsraols<»n  had   po^sos^ion,    and   Is- 
raf^lson  had  a  person  Kkvping  on  the  pre- 
mises.    Althfuigh    he   was    a  man    in   an 
inforior  j-osition.  yet.   still   lie  was  there 
assorting  t'.ie  right  of  tho  owner  to  Rome 
extent  1o 'the  O(rui«ition  io  the  whob'of 
tho  preniiso.^.     What  was  done  afterwards 
<loob  not  amount  to  such  a  p<»sse.ssi()n  ()f 
tho   whole  of   the  buildinu',   ms  to  justify 
tho  Con  it   in    saying   that    the    terms    <»f 
this    proviso    had     Im-ou     complied    with. 
'I  bore    was  no   such  actual   pos.s(^s^ion  of 
the   whole    of    the    property,    in    respect 
of     which     this     retenti(ni     is     claimed, 
a.-i     to      justify     the     Court     in     giving 
judgnunt     for     the     defeiulants.       Tho 
moms     were     simply      locked     for     tho 
purpo-e     of     keeping     thoir     tools,    and 
the  occupaticni   is   not   of  such   a  nature 
as    t«)  give   them    a  right   of   retention. 


"CAtE  Tti^iES''  Law  reports. 


201 


Their  claim  of  reteuiiou  extends  over  the 
vh<>Ie  of  the  unoccupied  portion  of 
tb«i^  buildings,  and  thmt  claim,  in  my 
opinion,  fails  altogether,  and  for  these 
reasons  judgment  of  the  Court  will  be 
in  terms  of  the  prayers  **  A  "  and  **  C  " 
of  the  declaration.  As  to  the  claim  for 
dama^iM,  Mr.  Close  has  6tated  that  ho 
does  not  press  it,  nor  do  1  think  even  if 
pres«5ed,  the  Court  would  be  likely  to 
award  damages  in  the  present  case,  see- 
int;  that  no  steps  were  taken  by  the  trus- 
t€  ■*  to  a.^»ert  the  right  of  the  estate 
against  these  people.  The  defendants 
are  in  an  untenable  f)osition,  and  I  think 
ther  mu.<t  pay  the  costs. 
Maasdorp,    J.,   conourrod. 

[Plaintiffs'  Attorneys:  Herold  and 
Gie;  Defendants*  Attorneys:  Findlay 
and  Tail.] 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplby.] 


GENERAL  MOTION. 


Ejt    jmrff     ESTATE     DE 
VILLIER8. 


{ 


1905. 
Mar.  (}th. 


Mr.  Alexander  moved,  as  a  matter  of 
urgency,  for  the  appointment  of  a  trus- 
tee in  the  iiLsolvent  etstate  of  De  Villier;: 
and  Co.,  of  StoUcnbosch.  The  trustee 
appointed  at  the  first  meeting  had  since 
died,  and  now  the  three  creditors  who 
proved  at  the  second  meeting  were  de- 
sirou.s  that  J.  Smuts,  who  was  a  partner 
with  the  lato  trust<?e,  should  l^  ap- 
pointed. 

[Hoplev.  J. :  Is  this  a  competent 
way?  Has  it  been  done  t)ofore?  I 
think  the  proper  way  would  be  to  hold  a 
nlee^tng  and   a>ppoinit-    a    trustee.] 

Mr.  Alexander  said  it  was  done  in  this 
way  to  save  expense. 

Hopley,  J.,  said  if  all  the  creditors 
had  not  consented  he  would  not 
have  fok  entitled  *o  make  an  order; 
but,  as  A  mafetPT  of  fact.,  everybody 
that  could  be  «ffec<t<ed  by  thris  order  oon- 
(•urred  an  tihi«  appIic<at'ion.  Ho  could 
see  ix  wtnild  save  expense.  The  person 
wished  for  by  the  creditors  to  replace 
the  late  trustee  was  practically  the  same 
person,  as  he  was  in  business'  with  him, 
and  would  be  really  the  Inwt  man  to  reai- 
ije  the  estate.  He  did  not  say  this 
would  be  binding  upon  the  Court  in  any 
future  action  in  the  Court.  In  this 
particular  matter  he  felt  it  would  » 
doing  the  best  for  all  the  parties  to  ac- 
cede to  the  application.  Order  accord- 
ingly.   Costs  to  come  out  of  the  estate. 

At  a  later  stage  his  Lordship  said  he 
had  his  doubts  about  granting  such  an 
order,  and  in  granting  it  he  took  it  that 
Mr.  Alexander  had  looked  into  the  law 
to  see  that  there  was  nothing  against  it. 


His  attention  had  been  called  to  the 
62nd  section  of  the  Ordinance,  and  by 
that  it  was  only  competent  for  the  Court 
to  make  an  order  for  the  preservation  of 
the  estate  until  a  new  trustee  was  ap- 
pointed. The  matter  came  suddenlv  Imp- 
lore him,  and  Mr.  Alexander  ougnt  to 
have  called  his  attention  to  the  section, 
but  in  all  probability  it  escaped  his  at- 
tention. He  was  doubtful  whether  he 
could  make  such  an  order,  and  he  would 
therefore  now  vary  it  by  ordering  that 
Mr.  Smuts  be  appointed  as  trustee,  with 
full  powers,  in  the  place  of  Mr.  Bosnian. 
(deoea.sed),  and  proceedings  to  be  forth- 
with taken  to  have  a  new  trustee  elected. 
This  might  land  the  parties  in  more 
costs  than  the  proceedings  this  morning, 
but  it  is  the  law.  Tdie  cosrts  would 
come  out  of  tihe   estate. 


TRIAL  CAUSE. 


KRUGER  V.  VENTER  AND 
NAUDE. 


{ 


191)5. 
Mar.  6th, 
7th. 


»♦ 


Partnership — Joint    and    several 
liability  of  partners. 

This  was  an  action  to  recover 
£182  6.S.,  baJanco  of  acc^uuni,  for 
sheep  and  goats  sold  and  delivered, 
money  lent,  and  sivork  done;  also  £24 
on  a  promissory  note.  Provisional  sen- 
tence and  judgment  had  been  obtained, 
and  tlie  promissiory  note  paid. 

Tlie  de^olai^atiou  M»t  out  tlwit  the 
plaiiiitdff  waij  a  farmer,  residing 
\\\  PhiLip»tawn,  and  the  dofenda.nt,N 
were  »peculatoi>j,  trading  under 
the  srtryle  of  Venter  and  N«/ude.  In 
1903  and  1904  witness  sold  'tHe  part- 
nership sheep,  goats,  and  horses.  A 
detailed  account  was  submitted,  showing 
a  balance  of  £182  5e.  The  total  amount 
of  tho  account  was  £297  5s.  Against 
that,  amounts  of  £60  and  £55  were  cre- 
dited. 

The  plea  on  the  part  of  Naude  set  out 
that  the  transaction  had  nothing  to  do 
with  the  partnership.  In  February, 
1904,  the  partnership  estate  was  assigned. 
The  plaintiff  was  fully  aware  of  the 
proceedings,  and  put  forward  no  claim. 
Naude  claimed  in  reconve!ition  £25  for 
a   horse  sold   to  plaintiff. 

The  replication  set  out  that  the  plain- 
tiff attended  a  meeting  of  creditors,  but 
never  signed  any  aH.signment  deed.  As 
to  the  horse,  plamtiff  said  he  bought  the 
horse  from  Venter,  not  Naude.  It  was 
not  the  property  of  Naude,  and  he  had 
nothing  to  do  with  the  sale. 

Mr.  Burton  (with  him  Mr.  Van  Zyl) 
was  for  the  plaintiff,  and  Mr.  P.  Jones 
for  the  defendant  Naude.  The  defendant 
Venter  was  not  represented. 

Mr.  Burton  explained  that  while 
there  was    abundant   evidence    to   show 


^4 


"CAt»E  TIMES**   LAW  REJPOfeTa. 


Hoploy,  J. :  The  defendant  Naudc 
said  he  was  anxious  to  get  out  of 
the.  partnership,  but  he  did  not  take  any 
flf'tive  steps  to  bring  about  a  dissolution. 
The  only  point  in  the  case  is  to  whe- 
th'^r  the  plaintiff  had  a  genuine  claim 
against  this  partnership.  In  the  pecu- 
liar and  somewhat  suspicious  circum- 
stances, the  explanation  given  by  the 
plaintiff  is  the  only  one  possible  he  could 
have  given,  and  it  is  difficult  to  believe 
that  the  independent  witnesses  for  the 
plaintiff  would  come  to  the  Court  to 
commit  deliberate  perjury.  Disallow- 
ing some  of  the  smaller  items  there  will 
bo  judgment  for  the  plaintiff  for  £116 
15s.,  the  defendants  jointly  and  &over- 
ally  to  pay  the  costs,  the  plaintiff  declar- 
ed a  necessary  witness. 

[Plaintiff's  Attorneys:  Mo>U?rt  and 
8on ;  Dofcndairt's  Attorney :  G.  Trol- 
lip.] 


SUPREME  COURl 


FIRST    DIVISION. 


[Before  the  Chief  Ju'^tice  (the  Ili>.'ht 
Hon.  Sir  J.  H.  T>E  VlLMEKS.  P.C., 
K.C.M.U.,  LL.D.).] 


TRIAL  CAUSES. 


CLAKEMONT     MUNICIPALITY  f        19lC). 
V.  COLONIAL  GOVCBNMBNTv    (  Mar.    7tb. 

Rating  of  Crown  property — Rail- 
way buildings  —  Occupation 
by  individuals. 

The  RtiiUray  DejHirtment 
luichif^  to  enlarge  the  Railway 
Citation  at  C,  bought  a  cottat/e 
ahotU  400  yards  from  the 
Hiation^  ftot  on  Raihnay  pro- 
perty^ for  the  fttatio/tmaster^ 
who  proceeded  to  occupy  it  a« 
his  private  residence. 

Hold,  that  the  cottaye  and 
yroundu  so  occupied  ice  re  liable 
te  he  rated  under  Acts  36  of 
1S91  and  19  of  1S92, 

At  the  time  when  the  Goreni- 
me  Hi  took  orer  the  Railway 
tfiere  was  a  cottaye  at  a 
crossing  in  N,  on  Railway 
j)roperty  immediately  adjoin- 


ing  the  land^  which  was  then 
occupied  and  continued  after- 
ward* to  he  occupied  by  a  gate- 
keeper, whose  duty  it  teas  to 
open  and  close  the  gates  for 
persons  wishing  by  night  or  by 
day  to  cross  the  Railway  line. 

Held,  that  the  gatekeeper's 
cottage  teas  not  liable  to  he 
rated  tuuler  the  above  Acts. 


;  This  was  an  action  brought  by  the 
Clareniont  Municipal  Council  against 
the  Colonial  Government  to  recover  tlio 
.sum  of  £18  4s.  Id.,  alleged  to  be  due 
upon  rates  for  1904  from  defendants  as 
owners  of  certain  property  occupied  by 
officials  or  employes  of  the  Railway  De- 
partment. 

The  declaration  set  out  that  certain 
immovable  property,  belongin^^  to  the 
Colonial  Government,  was  within  the 
Claremont  Municipality^  and  under  the 
control  and  administration  of  the  Com- 
missioner of  Works.  It  consisted  of 
(1)  laud  aiid  dwelling-house  in  Bath- 
road,  occupied  as  a  private  residence 
by  tlie  stationmaster,  and  valued  for 
rating  purposes  at  £700;  (2)  laud  and 
dwellinjj^-house  in  Mill-street,  occupied 
a.s  a  private  house  by  a  platelayer,  and 
valued  for  rating  at  £450;  (3)  land  and 
two  dwelling-houses  situated  off  Camp 
Ground -road,  occupied  and  valued  at 
£200  and  £400  respectively.  Save  the 
station  master,  all  the  occupiers  paid 
rent,  and  it  had  been  deemed  necessary 
by  the  department  that  the^  should 
occupv  tliose  houses  to  expedite  their 
attendance  on  their  duties  as  railway 
officials.  The  Municipality  had  levied 
owners*  rates  on  the  said  properties  for 
1904,  and  there  was  now  overaue  a  suna 
of  £18  4s.  7d.  In  accordance  with  the 
provisions  of  Act  36,  1891,  and  Aci 
19,  1902,  the  properties  were  benefi- 
cially occupied  by  individuals  in  their 
Crivate  capacity,  and  were  not  railway 
uildings.  The  Government  refused  to 
pay  the  sum  of  £18  4s.  7d.,  or  any  part 
thereof.  This      amount      was      now 

claimed. 

Defendants,  in  their  plea,  admitted 
the  formal  paragraphs  1,  2,  3,  and  4. 
They  also  admitted  paragraph  5,  and 
said,  further,  that  it  was  necessary  Hiat 
for  the  proper  performance  of  their 
duties  the  said  officials  should  occupy 
the  said  houses.  Defendants  also  stated 
thai  the  said  houses  were  railway  build- 
ings in  terms  of  the  statutes  referred  to, 
and  that  the  Colonial  Government  wa.<f 
entitled  to  exemption  from  paying 
owners'    rates   thereon. 

Mr.  Schreiner,  K.C.  (with  him  Mr. 
Bi.sset)  for  plaintiffs.  Mr.  H.  Jones 
(with  him  Mr.  Nightingale)  for  defen- 
dant. 

Mr.  Scbreinor  stated  that  the  plain- 
tiffs had  received  a  letter  from  the  Goy^ 


"CAPE  TIMES'*  LAW  REPORTS. 


205 


eromeiit      attorfleys,        dated    the   15th 
February,  stating^   that  they  found  that 
tt»  preatisea     mentioned   in    paragraph 
4  of  aection  (c)   of    the  declaration  were 
occupied   by    a   gr&tekecmer  and  checker, 
and    not   by    two    gratekeepers  as   stated 
therein.       They  admitted  liability  in  re- 
gard   io    the       house      occupied   by   the 
checker.         They    (the    attorneys)    found 
thai  they   were    in    error  in  stating  that 
the  stationm aster     was   the  only  official 
vbo   did    not   pay    rent,   and    that    thiy 
found  that   the   f^atekeeper  did   not  pay 
rent.        Mr.     Schreiner    went  on    to  say 
that    there    w^ere     now    therefore    three 
properties  in  relation  to  which  the  claim 
of   the    Mumeipality    was    made.       The 
correspondence     that    would    be   put    in 
would   ahow     that     there    had    been    ten 
properties    rwted    on    which   the  Govern- 
ment at  first   refused  to  pay,  except  one 
in  Palm    Boom -road,      which      was   ad- 
mitted.        Afterw^arda    the    Government 
admitted    five   others,  and  then  four  re- 
mained upon    which  the  declaration  was 
filed,  and   which    had  now  been   reduced 
to  three- 
Mr.  Howel  Jones  put  in  a  draft  of  an 
amendment  of    the  plea,  in      accordance 
with  the  letter  of  the  defendants'  attor- 

Mr.  Bchreiner  said  that  he  should  not 
ol'ject    to   the    amendment  of    the  pica. 
He  thoufi:ht   perhaps  his  learned    friend 
on  bohalf  of  the  Government  would  ad- 
mit that  the  rate  had  been  duly  levied, 
and  assesihed,  leaving  open  only  the  ques- 
tion as  to  whether  tlie  property  named 
WA-^  exempt. 
Mr.  Jones  acquiesced. 
Mr.  Schreiner  said     that     the     issue 
would  now  be  narrowed  down  to  the  con- 
struction of  the  Acts  36    of  1891    and  19 
of  1892.       Section  4   of  the  former  Act 
provided  that  no  rates  should  be  levied 
by  or  be  payable  to  a  municipality  upon 
any  line  of  railways  and  buildin((s  situ- 
ated in  any  part  of  the  CJolony  belong- 
ing to   the  Colonial   Government.        In 
the  following^  session    of    Parliament    a 
further  Act  was  passed  which  expunged 
etction  4  of  the  Act  of  1891,  the  object, 
ssid  Mr.   Schreiner,  being  to  make   the 
l»w  general  in   relation  to  this  matter. 
A  proviso,  however,  appeared  in  the  Act 
of  1892.  as  follows :    "  Provided  that  the 
term    '  railway  buildings '    shall  not  ap- 
ply to  such  buildings  as  are  beneficially 
occupied  by  individuals  in  their  private 
capacity." 

John  Samuel  Merrington,  valuator  of 
th>->  Claremont  Municipality,  said      that 
the  stationroaster's  residence    was      not 
sitaate  within  the  expropriated  property 
of  the  Railway  Department,  and  it  was 
immediately  adjoined   by  four  cottages, 
on  which  the  Government  paid  rates,  the 
whole   being    comprised  in    one      estate 
purchased  bv  the   Government.       There 
wa«  a   dwelling-house  in  Mill-street  be- 
yond  the  expropriated   property   of  the 
Government.    This  was  occupied  by      a 
platelayer.    Then  tliere  w»s  a  dwelling* 
bouse  situate  close  to   tho  line  occupied 


by  a  checker.  There  was  another  pro- 
perty near  Newlands  Station  occupied 
by  the  gatekeeper  at  the  crossing  to 
Camp  Ground-road.  Witness  did  not 
kriow  how  that  property  came  into  the 
hands  of  the  Government,  whether  it 
was  in  the  original  expropriation,  or  it 
had  been  a  piece  of  Crown  land. 

Cross-examined  by  Mr.  Jones :  lie  had 
formerly  been  secretary  of  the  C!ouncil 
up  to  1898,  and  during  his  term  of  offire 
rates  were  not  levied  on  platelayers'  and 
gatekeepers*  houses,  because  they  were 
CJovemment  property.  He  then  thought 
that  they  were  barred  by  the  Act  of  1882. 

Mr.  Schreiner  closed  his  case. 

Alfred  James  Parsons,  district  en- 
gineer, proved  a  plan  of  the  station- 
master's  residence,  and  adjoining  nro- 
f)erty.  Tho  ganger's  house  at  New- 
anda  was,  he  said,  practically  within 
tho  station  yard,  and  about  100  feet 
from  tho  line.  Tho  stationmaster's  resi- 
dence was  about  1,200  feet  from  the 
station.  Ho  believed  that  the  triangular 
piece  of  ground,  on  which  the  gate- 
keeper's cottage  stood,  belonged  to  the 
original  expropriation. 

Gowan  Cresswell  Clarke,  chief  traffic 
manager  of  the  C.G.R.,  said  that  tho 
land  on  which  the  stationmaster's  houjw 
stoi)d  was  bought  t^  free  the  railway 
building  at  Claremont,  and  give  greater 
Bccommodation  for  the  travelling  public. 
Up  to  that  time  the  stationmaster  had 
occupied  part  of  the  station  building.  It 
was  desirable  that  the  stationmaser 
should  live  as  near  the  station  as  pos- 
sible, because  he  was  supposed  to  be  al- 
ways available,  night  or  day,  in  case  of 
fogs,  accidents,  or  other  emergencies*. 
The  principal  purpose  of  the  purchase 
was  to  get  a  site  for  the  stationmaster's 
residence.  Only  one  of  the  four  houses 
adjoining  was  occupied,  viz.,  by  a  porter 
of  the  Claremont  Station.  The  porter 
was  not  bcjund  to  occupy  that  house. 
The  particular  platelayer  occupying  one 
of  the  houses  named  was  a  foreman,  and 
should  reside  close  at  hand.  As  to  the 
gr.tekeepers.  it  was  most  necessary  that 
they  should  live  as  near  as  possible  to 
tho  line.  Witness  had  been  in  the  Gov- 
ernment service  since  1878.  The  gate- 
keeper's cottage  near  Newlands  Station 
seemed  to  him  to  be  one  of  the  old 
properties  taken  over  when  the  line  wa« 
expropriated. 

Cross-examined :  The  Newlands  sta- 
tionmaster lived  on  the  Hardwick  Es- 
tate, a  full  ten  minutes'  walk  from  the 
station,  but  that  was  only  a  temporary 
expedient.    They    had  plans    made    and 

S round  laid  out  for  a  stationmaster's 
ou.se  quite  close  to  the  Newlands  Sta- 
tion. The  Claremont  stationma<)ter  did 
not  pay  rent ;  ho  had  a  salary  and  house 
allowed. 

Harry  Elliott,  resident  engineer  of  the 
Western  System.  C.G.R.,  said  it  was 
necessary  that  the  platelayer  near  New- 
lands  Station  shoula  live  in  close  proxim- 
ity to  the  line.    If  he  refused  to  live  in 


208 


"CAPE  TIMES*'   LAW  REPORTS. 


clothed  as  such  chief,  exercising  such 
sovereign  rights  with  the  concurrence  of 
his  Raad  with  ail  right,  authority,  and 
power  to  grant  land  and  to  make  con- 
t-ossions  in  regard  to  mineral  rights,  and 
in  respect  of  the  country  or  territory  oc- 
cupied by  him  and  the  people  or  tril>o 
under  him. 

5.  On  or  about  the  22nd  Novemlior, 
1889,  an  agreonient  in  writing  was  duly 
enterc»d  into  between  one  Adolph  Ilein- 
rich  Carstenaen,  then  of  Vryburg,  m 
liriti.sh  Bechuanaland,  and  the  chief, 
whereby,  on  the  conditions  and  for  the 
consideration  .-»et  forth  in  the  said  agree- 
ment, certain  mineral  concession  and 
prospecting  rights  were  granted  to-  the 
said  Oarstensen.  A  copy  of  the  said 
aarreement  is  hereunto  annexed  marked 
*■  A."  The  said  agreement  is  hereinafter 
termed  *"  the  concession." 

6.  Thereafter,  on  or  about  the  10th 
April,  1890,  the  concession  Ix^ing  then 
still  of  full  force  and  effect,  a  further 
agreement  in  writing  was  duly  entered 
into  between  the  same  parties  for  the 
like  purposes  and  under  the  like  condi- 
tions and  provisions  as  thone  obtaining 
in  the  concession,  but  for  an  increased 
consideration  and  in  respect  of  and 
throughout  a  more  extended  area.  A 
copy  of  the  said  further  agreenH^nfe  is 
hereto  annexed  marked  "  B,"  the  said 
further  agreement  being  hereinafter 
termed        "'  the       further       concession." 

7.  On  the  21st  January,  1890,  the  said 
Carstensen,  for  value  absolutely  sold, 
cederl,  assigned,  transferred,  conveyed, 
and  set  over  to  a  certain  syndicate, 
termed  the  Vilander  Concession  Syndi- 
cate, or  its  trustees  for  the  time  being, 
all  his  right,  title,  estate,  interest,  pro- 
fit, property,  claim  or  demand  whatso- 
ever in  and  to  the  concession,  and  in 
and  to  all  rights  and  privileges  con- 
ferred upon  him  thereunder,  together 
with  any  documents  of  title  or  other- 
wise in  anywise  relating  or  having  re- 
ference thereto.  me  said  syndicate  is 
that  mentioned  in  the  first  paragraph 
hereof,  and  the  plaintiffs  constitute  tne 
taid  syndicate. 

8.  Thereafter  in  or  about  the  month 
of  August,  1890,  the  said  Carstensen, 
lor  value  ceded,  assigned,  transferred, 
and  set  over  to  the  said  syndicate  all  his 
right,  title,  estate,  interest,  profit,  pro- 
perty, claim  or  demand  whatsoever  in 
and  to  the  further  concession  in  and  to 
all  rights  and  privileges  granted  to  him 
thereunder,  and  thereafter  on  the  4th 
April,  1893,  formally  ratified  such  ces- 
aion  and  assignment,  and  thereby  again 
ceded,  assigned,  transferred  and  set 
over  to  the  syndicate  or  its  trustees  for 
the  time  being  all  his  right,  title,  in- 
terest, estate,  profit,  propertv,  claim  or 
demsnd  in  and  to  the  furtner  conces- 
tion,  and  in  and  to  all  rights  and 
privileges   granted   to  him   thereunder. 

Copies  of  the  above  cessions  are  here- 
to annexed  "C"  and  "D"  respec- 
tively. 


9.  By  virtue  of  the  above  concessions 
and  cessions  the  syndicate  became  and 
was  and  is  now  entitled  to  claim,  have, 
exercise  and  enjoy  all  the  right,  title, 
estate,  interest,  profit,  property,  privil- 
eges, claim,  or  demand  of  what  kind 
toever  which,  or  the  right  to  claim, 
was  vested  in  or  passea  by  the  said 
Carstensen. 

10.  The  sum  of  £500  agreed  to  ho 
paid  annually  by  the  concessionaire  as 
the  considers foion  for  the  concessions 
was  paid  to  the  Chief  Vilander  up  to 
the  5th  May,  1891,  being  the  date  of 
the  annexation  of  bis  country  to  Brit- 
ish Bechuanaland,  and  was  thereafter 
from  time  to  time  paid  to  the  said 
Vilander  up  to  the  time  of  his  death, 
and  thereafter  to  his  executors,  but  the 
Government  does  not  recognise  the 
validity  of  any  payment  made  after  the 
5th  May,  1891,  aforesaid.  No  amounts 
under  the  concessions  and  no  fees  or 
licence  moneys  have  been  paid  either 
to  the  Government  of  the  former  Crown 
Colony  of  British  Bechuanaland  since 
6th  }t,i&y,  1891,  or  to  the  Cape  Govern- 
ment since  the  annexation  of  the  said 
territory   to   this  colony  in    1895. 

11.  By  Proclamation  No.  106,  B.B., 
1891,  Her  Majestv's  Sovereignty  was 
proclaimed  oyer  tne  territory  to  the 
west  of  British  Bechuanaland,  known 
as  Bechuanaland  and  the  Kalahari,  in 
which  the  territory  referred  to  in  this 
case  was  included,  and  by  Proclamation 
No.  120,  B.B.,  1891,  provision  w^as  made 
for  the  law  to  be  administered  therein. 

12.  In  terms  of  Proclamation  No.  159, 
B.B.,  1893,  a  Court  styled  **  Tlie  British 
Bechuanaland  Concession  Court  '*  was 
constituted  and  established  in  order  to 
inciuire  into  and  decide  upon  the  valid- 
ity of  and  scope  of  claims  founded  upon 
grants  of  land  or  mineral  or  other  cou 
ce:»sions  in  the  territory  referred  to  in 
paragraph  11. 

13.  Thereafter,  on  the  1st  Sept<?m- 
ber,  1893,  and  subsequent  days,  the  saad 
Court  duly  sat  to  inquire  into  and  de 
cide  on  the  claims  advanced  before  it 
by  the  trustees  for  the  syndicate  in 
respect  of  the  concession  and  further 
concession,  and  to  hear  evidence  ad- 
duced in  support  thereof  or  otherfwise, 
the  Crown  Prosecutor  appearing  on  be- 
h&](  of  the  Government  of  British 
Bechuanaland. 

14.  Thereafter,  on  the  7th  December 
1893,  the  said  claim  was  duly  granted 
and  allowed,  as  will  appear  from  a  copy 
of  the  judgment  hereto  annexed  and 
marked   "  E." 

15.  Under  the  provisions  of  the 
*'  British  Bechuanaland  Annexation 
Act,  1895,"  British  Bechuanaland  bo- 
came  annexed  to  this  colony,  and  sec- 
tion 30  of  the  Act  inaintained  the  pro- 
visions of  Proclamation  No.  169,  B.B.. 
1893,  and  preserved  the  jurisdiction  of 
the  British  Bechuanaland  Conces.sion 
Court. 


« 


CAPE  TIMES"   LAW  REPORTS. 


209 


16.  By  section  21  ol  the  said  Act  it 
vu  provided  that  all  liabilttieis  of  the 
Governor  of  the  annexed  territory  a*; 
the  time  of  the  said  aiiiiexatioii  should 
be  deemed  to  be  lia»biiitie6  of  the 
Governor  of  this   colony. 

17.  On   divers    occasions,    both    before 

and  after  the    aaad    annexation,    grants 

?rerFk  Lasued,  in  respect  of   land   in    the 

territory  prior  to  the  annexation  bv  the 

Governor  of  British   Bechuanaland  and 

t'.)erp&fter    by     the     Governor    of     thia 

rnlony,  and  therein  the  right  to  nunerals 

or  precious  atones  was   reserved   to  the 

Government,  as  will  appear  on  r^ererice 

U>  the  tenn«   of    the    '  conditions "    in- 

fierted   in    the    said    grants    and    hereto 

annexed,  marked  respectively  *'  F  "   and 

•*  G." 

18.  The  syndicate  has  duly  sought  to 
obtsin  from  the  Government  recogni- 
tion of  its  rights,  and  has  maintained 
that  »uch  reservations  are  unlawful,  but 
the  Govermnent  has  refused  to  recognise 
the  rights  of  the  syndicate  in  resect 
of  the  concession  or  further  concession 
■nd  maintains  that  it  is  entitled  to  make 
siK:h  reservations  for   its  own  benefit. 

19.  The  plaintiffs  contend  that  the 
concession  and  further  concession  are 
tn^  have  been  of  full  force  and  effect 
and  binding  upon  the  Government,  and 
that  they  are  eirtitled  to  have  their 
i%lits  in,  arising  out  of,  and  under  the 
said  concession  and  further  concession, 
declared  accordingly  by  this  Honour- 
able Court,  and  to  obtain  an  order  Je- 
claring  that  as  to  all  grants  already 
^ed  with  such  reservations  the 
Colonial  Government  is  bound  to  ro- 
c(»gnise  the  said  reservations  as  nimie 
for  and  on  behalf  of  the  plaintiffs,  and 
directing  the  Government  as  to  hny 
further  grants  of  land  in  the  said 
territory  to  include  a  condition  sub- 
F<'tin^  such  grants  to  the  rights  of  the 
plaintiffs  and  their  successors  or 
•Mignees  under  the  aforesaid  concea- 
aions. 

20.  The  defendant  contends  that  the 
plaintiffs  are  not  entitled  in  the  pre- 
mises to  the  relief  cladmed.  The  parties 
P'ay  for  judgment  in  accordance  with 
liieir  respective  contentions  with  costs. 

Mr.  Schreiner,  K.C.  (with  him  Mr. 
McGregor)  for  plaintiffs;  Sir  H.  Juta, 
K.C.  (with  him  Mr.  Nightingale)  for 
the  defendant. 

Mr.  Schreiner  said  that  Oarstensen 
conceded  all  his  rights  to  the  syndicate 
whom  the  plaintiffs  represented.  He 
conceded  his  rights  under  the  first  con- 
cession of  the  21at  January,  1890,  and 
anbieqaently.  in  August,  1^,  he  made  a 
second  concession  to  the  syndicate.  He 
confirmed  that  second  concession  by  a 
document  dated  the  2nd  April,  1883.  By 
Prockimation  No.  106  of  1891  the  ter- 
ritory of  David  Vilander  was  annexed 
to  and  formed,  after  that  time,  part  of 
Her  Majesty's  dominions.  Proclama- 
tions 120  and  123  made  provisrion  for  the 
law  to  be  in  force  in  and  for  the  civil 
administration   of  the   territory.       The 


cofnoessions  thus  granted  and  ceded  were 
dealt  with  afterwards  by  a  Court,  which 
was  established  under  Proclamation  No. 
169.  referred  to  in  paragraph  12  of  the 
special  case,  called  the  British  Bechu- 
aualaiKl  Concessions  Court.  That  Court 
sat  in  September,  1893,  and  decided  on 
tlio  claims  advanced  before  it  by  the 
trustees  of  the  syndicate,  in  respect  of 
those  oonoeasions  of  Caistensen,  and  it 
heard  evidence.  The  Cronv^n  Prosecutor 
appeared  on  behalf  of  the  Government 
of  British  Bechuanaland. 

The  judgment  of  the  Oonoessiona 
Court,  dated  December  1,  1893,  was  in 
the  followiTig  terms :  '*  Claim  No.  6. — ^A. 
H.  Carstensen.  mineral  rights  over  the 
whole  of  Vilander's  country.  The  en- 
tire claim  as  proved  granted,  subject  to 
all  laws  and  regpulations  of  British 
Bechuanaland  relating  to  mines  and  the 
minerals  and  otherwise  in  force  in  the 
said  territory.** 

De  Villiers.  C.J.,  asked  Mr.  Schreiner 
if  he  accepted  the  judgment  given  by< 
the  Bechuanaland   Uonoossioini  Court. 

Mr.  Schreiner  said  that  he  did. 

[De  Villiers,  C.J. :  '*  Subject  to  the 
regulations,  etc.,"  as  stated  in  the 
judgment?] 

Mr.  Schreiner  said  that,  of  course,  they 
could  not  be  given  judgment  with  one 
hand  and  have  it  taken  away  with  the 
other.  They  were  before  the  Court 
that  day  because  the  Goveriunent  re- 
fused to  recognise  their  rights,  and  be- 
cause the  Government  said  they  reserved 
the  minerals  for  their  own  benefit.  ^  He 
submitted  that  it  was  for  his  lordship  to 
say  that  the  Grovemment  was  entirely 
wrong  in  its  attitude  towards  the  plain- 
tiff syndicate.  Here  the  Government, 
without  going  to  Parliament,  without  a 
now  Act,  proceeded  to  use  certain  forms 
of  language,  dealing  with  the  land  as 
though  it  were  Crown  land,  opein  to  be 
dealt  with  as  they  pleased.  It  never 
could  be  denied  that  the  title  to  that 
land  was,  after  annexation,  in  the 
Crown,  but  it  was  not  waste  Crown 
land,  Crown  land  of  the  ordinary 
character ;  it  was  Crown  land,  subject  to 
certain  rights,  and  to  rights  confirmed 
by  a  competerrt  court  in  1893. 

Sir  H.  Juta  said  that  the  sovereign 
rights  of  the  chief  and  his  heirs  and  suc- 
cessors were  retained  under  the  cession. 
The  cession  to  Carstensen  was  an  tm- 
perium  in  imperio  of  the  widest  char- 
acter, and  hence  it  was  of  the  greatest 
public  importance  that  there  should  be 
a  decision  as  to  the  validity  of  this  con- 
cession. The  agreements  provided  that, 
in  addition  to  the  sum  of  £500  paid 
annually,  Uiere  should  be  paid  a  sum  of 
5s.  per  month.  The  agreement  speciallv 
was  that  if  the  jMiyments  were  not  paid 
for  a  period  of  three  months,  this  de- 
vise came  to  an  end.  The  contention 
of  the  defendants  was^  that  by  the  an- 
nexation His  Majesty,  in  the  Colonial 
Government,  had  stepped  into  the  shoes 
of  Vilander.       The   payments  had     not 


210 


(f 


CAPE  TIMES"  LAW  REPORTS. 


been  made,  and  the  poaition  taken  up 
was  that  these  agreementa  had  become 
absolutely  void.  Aa  to  the  judgment  of 
the  GoDoessiona  Oourt,  he  submitted  that 
that  Oourt  did  not  go  into  the  question 
of  whether  the  concession  was  valid, 
regardless  of  whether  payments  had  or 
hM  not  been  made.  No  payments  had 
been  made  to  the  Ookmial  Government. 
Counsel  proceeded  to  diaoues  the  Pro- 
clamation No.  163,  and  said  that,  under 
that  Proclamation,  monopolies  wore 
prohibited.  He  contended  that  it  was 
absolutely  clear  that  this  oonoession,  if 
permitted,  would  create  a  monoooly; 
nence  sole  and  exclusive  rights  did  not 
attach  to  the  oonoession.  It  was  true 
that  the  plaintiffs  had  under  the  conces- 
sion a  right  to  win  minerals,  a  right  to 
take  gold  and  precious  stones;  but  it  did 
not  prevent  otner  people  from  doing  the 
same,  it  did  not  give  a  sole  and  ex- 
clusive right  to  the  plaintiffs.  The 
judgment  of  the  Concessions  Court,  he 
submitted,  gave  the  plaintiffs  no  rights 
beyond  the  rights  of  a  prospector  or 
claim  holder.  It  was  subject  to  the  laws 
in  force  in  Beohuanaland  at  the  time, 
and  at  the  time  there  were  only  two 
laws  in  operation  dealing  with  gold, 
precious  stones,  silver,  or  platinum.  The 
Government  holding  sovereign  rights 
were  entitled  to  the  reservation  as  to 
the  mines  and  minerals;  the  plaintiffs 
might  prove  the  right  to  go  and  win 
minerals.  He  contended  that  they  had 
no  right  to  go  and  have  what  was  really  a 
personal  servitude  regifttered. 

Mr.  Sohreiner^  in  his  reply,  argued 
that  the  rights  ^iven  by  Vilanders  were 
sole  and  exclusive,  and  that  that  wa;< 
the  fair  interpretation  of  the  judgment 
pronounced  by  the  Concessions  Court. 

De  VilKers,  C.J. :  This  is  an  action 
arising  out  of  a  certain  concession  of 
mining  rights  granted  by  the  Chief 
Vilander  to  one  Carstensen  in  Novem- 
ber, 1899,  and  afterwards  extended  in 
April,  1690.  Since  the  date  of  the  con- 
cession the  territory  of  the  Chief  has 
been  annexed  to  thie  Colony,  and 
Canstensen  has  ceded  his  rights  to  tho 
plaintiffs  who,  by  this  action,  ask  for  a 
declaration  of  their  rights  as  against 
the  Colonial  Government.  There  are 
no  facts  in  dispute,  for  the  parties  have 
agreed  upon  a  special  ease  in  which  the 
facts  are  fully  set  forth,  and  the  re- 
Bpective  contentions  of  the  parties 
clearly  stated. 

After  Her  Majesty^s  sovereignty  had 
been  proclaimed  over  the  territory  in 
question,  a  Concession  Oourt  with  the 
very  widest  powers  was  established  by 
the  proper  authority  to  inquire  into 
and  decide  upon  the  validity  and 
scope  of  claime  founded  upon  grants  of 
land  or  mineral  or  other  concessions  in 
th<%  territory.  l%e  claim  submitted  by 
Cu.i«ten8en  was  duly  adjudicated  upon 
by  the  Concession  Court  on  the  7th  of 
December.  1893.  in  the  following 
terms:    "The   entire    claim    as    proved 


granted,  subject  to  all  laws  and  regula- 
tions of  British  Bechuanaland  relating 
to  mines  and  minerals  and  otherwise  in 
force  in  the  said  territory.'*  That 
jud^ent  has  never  been  appealed 
against,  and  it  remains  binding  on  the 
plaintiffs  as  cessionaries  from  Carsten- 
sen as  well  as  upon  the  Government. 
In  1895,  British  Bechuanaland,  in- 
cluding the  territory  in  question,  was 
annexed  to  this  Colony,  and  by  tho 
30th  section  of  the  Annexatioci  Act  the 

f)rovi8ions  of  the  Proclamation  ostab- 
ishing  tlie  Concession  Court  wore 
maintained  in  force.  It  appears  that 
the  sum  of  £500  agreed  to  be  paid 
annually  by  Carstensen  for  his  right  to 
the  minerals  within  the  area  of  his 
oonoession  was  paid  to  the  Chief  up  to 
the  time  of  his  death,  and  thereafter  to 
his  executors,  aihd  that  no  payment  or 
tender  of  payment  has  ever  been  mado 
either  to  tne  Government  of  the  former 
Crown  Colony  of  British  Bechuanaland 
or  to  the  Cape  Government  since  tlio 
annexation  of  1895.  On  ueveral  occa- 
sions before  and  after  annexation  grants 
have  been  issued  by  the  Government 
containing  the  following  conditicMiH : 
*'  That  the  rights  of  tho  proprietor 
shall  not  extend  to  any  deposits  of 
minerals  or  precious  stones  which  may 
at  anv  time  be  or  be  discoivered  on  the 
land  hereby  granted,  and  the  right  of 
mining  for  minerals  or  precious  stones 
is  reserved  by  the  Government  under 
such  regulations  as  were  established  by 
law  at  the  date  of  annexation  of 
British  Bechuanaland,  and  subject  to 
the  conditions  mentioned  in  the  judg- 
ment of  tlie  Concession  Court,  dated 
7th  December,  1893."  The  contention 
of  the  plaintiffs  now  is  that  the  con- 
cession IS  binding  upon  the  Government 
and  that  they  are  entitled  to  obtain  an 
order  declanng  that  as  to  all  grants 
already  issued  with  reservations  the 
Colonial  Government  is  bound  to  recog- 
nise the  said  reservations  as  made  on 
behalf  of  the  plaintiffis  and  directing 
the  Government  as  to  any  further 
prrants  of  land  in  the  said  t>erritory  to 
mclude  a  condition  subjecting  such 
grants  to  tho  rights  of  the  plaintiffs 
and  their  successors  or  assignees.  The 
defendant's  contention  is  that  the  plain- 
tiffs are  not  entitled  in  the  premises 
to  the  relief  claimed.  The  simple 
question,  therefore,  to  bo  deciobd  is 
whether  the  plaintiffs  are  entitled  to 
a  declaration  and  direction  in  manner 
and  form  claimed  by  them. 

A  preliminary  objection  was  raised 
by  the  defendant's  counsel  that  what- 
ever right  the  plaintiffs  might  have 
under  the  concession  they  have  for- 
feited by  reason  of  their  not  having 
paid  the  annual  rents  to  the  Govern- 
ment either  of  the  former  Crown 
Colony  or  of  this  Colony.  This  point, 
however,  has  not  been  clearly  raised 
in  the  case  stated  for  the  opinion  of 
the  C^urt,  and  it  is  quite  possible  that, 


"CAPE  TIMES"  LAW  REPORTS. 


211 


if  the  point  had  been  raised,  the  plain- 
tiffs might  have  had  an  effectual  reply 
to  the  defence.  I  ain  boiiiid  to  add 
that  I  cannot  agree  with  the  plaintiff:} 
counsel  thai  payments  to  \ilander's 
executors  were  valki  paymcntf«  under 
the  concession.  It  is  true  that  under 
the  7th  clause  of  the  first  agreement 
the  rents  were  made  pMiyable  to  the 
Chiel.  *'  his  heirs,  successors,  or  assig- 
nee," but  it  is  clear  from  other  parts 
of  the  agreement  that  the  executors 
adnuniatenng  the  private  estate  of 
Vilander  cannot  be  regarded  as  "  heirs, 
succe^asors  or  assignees  *'  referred  to  in 
the  agreement.  The  4th  clause,  for  in- 
stance, providet»  that  "  the  grantee 
shall  be  bound  to  obey  and  faithfully 
carry  out  all  laws,  rules  and  regula- 
tions which  are  now  or  hereafter  shall 
he  enacted  or  n>ade  by  the  Chief,  "his 
heirs,  successors  or  assignees.**  It  Is 
obvious  that  the  CThief  did  not  intend 
his  executors  to  bo  included  among  h'w 
heirs,  successors  or  assignees  who  wero 
to  enact  the  laws  of  his  land.  As 
events  turned  out  the  legal  successor  of 
the  Chief  is  the  Cape  Governnw»nt. 

The  Government,  however,  does  not 
rely  for  itt»  defence  upon  this  clause  of 
the  agreement,  but  upon  the.  judgment 
of  the  Concession  Court  read  by  the 
light  of  those  laws  and  regulations  of 
British  Bechuanaland  relating  to  mines 
and  minerals  which  were  in  force  in 
the  said  territory  before  the  establish- 
ment of  that  Court.  It  would  serve  no 
useful  purpose  to  refer  in  detail  to  the 
several  Proclamations  which  embody 
tho!<e  laws  and  regulations,  and  it  iei 
tufiicient  to  say  that  thev  are  wholly 
inconsistent  with  the  declaration  and 
direction  which  this  Court-  is  now  asked 
to  make.  There  can  be  no  possibility 
of  a  doubt  as  to  whether  the  Uonoession 
Court  intended  by  its  judgment  to  sub- 
ject Carstensen'd  rights  under  the 
c^mcession  to  all  laws  and  regulations 
relating  to  minee  and  minerals  enacted 
by  the  competent  Legislature  for  British 
Bechuanaland.  If  those  laws  and  re- 
gulatione  are  somewhat  inconsistent  with 
a  recognition  of  the  concession  I  can 
only  say  that  thi«  Court  has  no  power 
O:'  jurisdiction  to  oorect  any  mistake 
that  may  have  been  made  by  the  Con- 
cession Court.  It  is  by  no  means  clear, 
however,  that  a  mistake  was  made. 
The  Concession  Court  possessed  very 
wide  power  to  impoae  conditions  upon 
the  exerci^se  of.  any  grant  or  conceaeion, 
and  the  rights  conferred  on  Caretensen 
by  the  agreement  were  exceedingly 
vag^e,  and  were  not  exclusive  of  the 
exercise  of  similar  rights  by  others. 
The  Chief  was  induced  to  make  the  con- 
cession, and  the  concessionaire  hoped 
to  make  a  good  thing  out  of  it,  but  the 
precise  rights  of  the  latter  were  not 
very  clearly  defined.  Then,  wlien  the 
Concession  Court  came  to  consider  hi^ 
claim,  the  grant   was  confirmed  subject 


to  a  condition  which  may  possibly  de- 
prive the  grant  of  all  its  real  value, 
but  the  judgment  stands  unreversed 
and  not  even  appealed  against.  It  is 
iK>t,  therefore,  competent  for  this 
Court  to  make  anv  declaration  or  give 
any  direction  which  is  inconsistent  with 
that  judgment. 

In  this  view  of  the  case  it  becomes 
unnecessary  to  consider  the  further 
objection  raised  on  behalf  of  the  de- 
fendant  that,  as  the  obligation  to  pay 
the  rents  wa«  of  a  purely  personal 
nature  and  might  not  alwava  hereafter 
be  fulfilled  by  the  plaintiffs,  their  al- 
leged right  to  the  minerals  cannot  be 
registered  as  a  real  and  perpetual  servi- 
tude against  the  land.  For  the  reasons 
alreadv  stated  I  am  clearly  of  opinion 
that  the  defendant's  contention  is  cor- 
rect "  that  the  plaintiffs*  are  not  en- 
titled in  the  premises  to  the  relief 
claimed. 

I  wish,  however,  to  make  it  perfectly 
clear  that,  in  my  opinion,  the  decision 
in  support  of  the  defendant's  conten- 
tion snould  not  have  the  effect  of  a  final 
judgment  in  his  favour,  but>  should  be 
in  tne  nature  of  an  absolution  from  the 
instance.  It  is  quite  possible  that  the 
plaintiffs  may  be  able  hereafter  to  ad- 
duce further  evidence  in  support  of 
their  claim,  or  to  devise  some  other 
form  of  claim  which  it>  is  in  the  power 
of  the  Court  to  grant.  If  a  fresh  action 
should  be  brougirt,  the  defendant  will  be 
able  to  raise  the  defence  of  forfeiture 
of  the  plaintiffs'  rights  by  reason  of 
non-payment  of  rent  to  the  Govern- 
ment, but  as  t>he  case  standa,  the  ab- 
sence of  any  pavment,  or  even  tender 
of  payment  to  the  Government,  affords 
a  reason  for  Absolving  the  defendant 
from  the  instance  and  not  for  giving 
judgment  in  his  favour. 

The  opinion  of  the  Court  is,  that  the 
defendant's  contention  is  correct,  bub 
this  finding  is  to  have  the  effect  of  ab- 
solution from  the  in^'tance,  and  the 
plaintiff  will  have  to  pay  the  costs  of 
thia  action. 

[Plaintiffs'  Attomevs:  Syfret,  God- 
lonton  and  Low;  Defendant's  Attor- 
neys:  Reid  and  Nephew.] 


SECOND   DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Maasdohp.] 


GENERAL     MOTIONS. 


DICKERSOK  V.  OACULI 


f        1908. 

•     \  Mar.  7th. 

Mr.  J.  E.  R.  de  Villiers.  for  the  re- 
spondent, moved  for  diecharge  of  a 
notice  of  appeal  on  the  ground  that  the 
appellant  had   not  prosecuted   it  within 


212 


<( 


CAPE  TIMES*'   LAW  REPORTS. 


a  reasonable  time.    Notice  of  appeal  was 

fiveD  on  the  13th  July  laet,  and  nothing 
ad  been  beard  of  it  since. 
Appeal  discharged  with  costs. 


Ex  parte  KRUOER. 

Mr.  J.  E.  R.  de  VilUeTB  saad  the 
pefartioner  waa  mairried  to  his  wile, 
who  died  in  February,  1903,  in  com- 
munity  of  property.  Ther^  were 
four  minor  chilcfron.  The  movables 
were  worth  £360,  and  the  farm  £800. 
In  order  to  liquidate  the  estate  the  peti- 
tioner had  to  raise  two  loans  for  £1500. 
During  martial  law  he  was  ordered  to 
keep  SX)  sheep  to  supply  the  block  line. 
After  the  war  a  great  drought  caused 
nearly  all  the  sheep  to  die,  and  petition- 
er was  now  in  posse^ssion  of  only  a  cart 
and  two  horses.  He  was  unable  to  pay 
the  interest  on  the  bonds.  Counsel  ask- 
ed for  an  order  authorising  the  petition- 
er to  sell  the  farm  to  pay  off  the  bonds, 
pay  the  minor  shares  mto  the  Guardian 
Fund,  and  use  the  balance  for  farming 
purposes. 

Order  as  prayed. 


MARSHALL    AMD    OTHERS     V.    WARD 
AKD  CO. 

This  was  an  application  for  an  order 
calling  on  the  reepondent  ix)  |)erform 
a  certain  ooniraot  bv  inansferriug  cer- 
tain fthares,  or,  in  itne  aVteniatave,  fan 
order  liquidating  the  estate. 

Mr.  Searle,  IL.C,  was  for  the  appli- 
cants, and  Mr.  Burton  (with  him  Mr. 
Jones)  was  for  the   respondents. 

Mr.  Burton  aa.^  he  consented  on  be- 
half of  the  respondents  to  the  alterna- 
tive order. 

Mr.  Searle  said  the  only  question  re- 
mained was  for  the  appomtment  of  a 
liquidator,  and  Mr.  Burton  pointed  out 
that  the  applioants  wanted  practically 
to  appoint  themselves,  and  he  was  in 
favour  of  appointing  two  independent 
men  in  Mr.  Close  and  Mr.  Hazel. 

Maasdor^  J.,  said  it  was  essential 
that  some  outside  person  should  be  ap- 
pointed, and  tihe  name  of  the  liquddAtor 
could  ibe  agrreed  upon  and  mentioned 
a^ain. 

The  order  of  liquidation  ^  granted,  the 
costs  to  be  paid  in  the  liquidation  of  the 
company. 

Subsequently,  counsel  announced  that 
it  WHS  agreed  that  Mr.^  Close  should  act 
as  liquidator,  and  give  seourity  for 
£1,000  to  the  satisfaction  of  the  Regis- 
trar. 

Order  accordingly. 


from  Montrose  ViUa.  The  affidavit  of 
Hadiey  set  out  he  hired  Montrose  ViUa 
from  one  Wood  for  three  months,  and 
had  paid  the  rent.  He  purchased  the 
furniture,  and  paid  £50  for  it.  A 
piano  and  certain  other  furniture  were 
nired,  and  he  contended  that  those 
articles  could  not  be  sold,  alienated,  or 
liable  to  attachment,  owmg  to  the  debts 
of  one  Wood. 

Mr.  Burton  was  for  the  applicant  and 
Mr.  P.  Jones  for  the  responaent. 

Mr.  P.  Jones  put  in  a  replying  affi- 
davit. 

The  order  was  discharged,  with  costs. 


URMANN  V.  URMAITN. 

Interdict    Property  in  Bank. 

At  the  malance  of  a  wife  who 
contemplated  9uemg  her  hus- 
band jor  divorce  and  division 
of  the  common  property,  the 
Court  interdicted  a  Bank  from 
jxtrting  with  any  of  such 
2)roperty  in  its  custody. 


HADLBT  V.  BCOTT. 


This  was  an  applioation  for  the  dis- 
ohaiige  of  an  order  restraining  l)he  ap- 
plicant from  renK>ving  certain  furniture 


This  was  an  application  for  an 
initerdict.  The  iparties  were  mar- 
ried lin  community  of  property  on 
January  20,  19C{3.  Resix>ndent  was  <a 
manufacturing  jeweller,  in  the  employ 
of  Myers'  Bros.  There  was  one  child 
of  the  marriage,  fourteen  months  old. 
For  some  time  past  serious  differences 
had  occurred  between  them,  and  re- 
spondent left  his  wife  on  Sunday,  Janu- 
ary 29,  and  said  he  was  not  returning-, 
but  came  back  on  the  following  Mondav 
week,  and  said  he  would  not  live  with 
her,  but  would  allow  her  £17  a  month. 
Respondent  had  boasted  on  several  oooa- 
sions  that  if  once  he  left,  he  would  never 
return.  She  knew  that  he  had  scrip 
and  a  considerable  amount  of  money  in 
the  ^  Standard  Bank,  Adderley-street. 
Applicant  was  .goln^  to  bring  an  action 
for  divorce  or  judicial  separation  and 
division  of  the  estate,  but  feared,  in 
pursuance  of  his^  threats,  the  respondent 
would  remove  his  securities  and  cash  ae 
soon  as  she  took  action,  and  leave  the 
country.  Applicant  asked  for  an  order 
interdicting  tne  bank  from  parting  with 
the  securities  and  money,  and  also  for 
an  order  as  to  alimony. 

Answering  affidavits  were  put-  in  by 
Joseph  Urman,  doying  generally  the 
allegations,  and  offering  to  live  with  his 
wife.  He  had  no  in'^ntion  <A  leaving 
the  country. 

Mr.  Burton  was  for  the  petitioner,  and 
Mr.  W.  P.  Buchanan  was  for  the  re- 
spondent. 

Maasdorp,  J.,  said  that  Bomething 
serious  must  liave  taken  place  was 
dear  from  the  laot  €hat  4«he  re- 
spondent ^  a^ctuallv  left  tJlie  house 
and  remained  away  for  a     considerable 


"CAPE  TDlES"  LAW  REPORTI^. 


213 


tune,  and  on  hU  return  he  did  not  aaso- 
ciate    with  the  applioant  ae  a  husband 
ihoald.     He  wae  also  heard  to  say    he 
did  not  intend    to    live  with    his   wife, 
•nd  WIS  quite  prepared  to  make  her  an 
•Uowanoe  of  £17   a  month.        As     the 
parties  were  married  in  oommunity     of 
prOTorty,  the  wife  must  be     protected, 
md  an  order  will  be  granted  attaolnng 
the  property  in  the  South  African  Asso- 
ciation, pending  an  action  to  be  brought 
forthwith  by  the  applicant;   the  respon- 
dent ordered  to  make  an   allowance  of 
£10  a  month,  and  to  pay  the  applicant's 
attonieyi  £30  towards  the  costs  of  the 
nit.       Costs  of  this    application  to   be 
costs  in  the  cause. 


were 

Mr. 

th<> 
hks 


INCORPOaATEO    LAW    80CIKTY     V, 
DONNEB  AND  CO. 

Agent— Holding  out  as  attorney 
—Contempt  of  Court. 

This  was  an  application  for  an 
order  committing  the  respondents  for 
CT^Qtempt  of  Court,  by  reason  of  their 
hsTing  issued  an  order  of  demand  pur- 
portini;  to  be  signed  and  sealed  by  an 
■ttomey-at-law.  The  document,  which 
bore  the  Imperial  Aims,  was  signed  "  J. 
H.  Macnamara.     solicitor,''  and  it  was 

eirchsfied  from  a  representative  of 
.  «Bra.  Richards,  the  fate  Goyemment 
Srinters,  by  an  assistant  in  the  respon- 
eiit  firm.  The  assistant  informed  the 
■ecretary  of  the  Law  Society  that  the 
letters  were  sent  out  in  order  to 
frighten  people  whose  accounts 
overdue. 

The     answering     affidavit     by 
Tboma«.   of    tuo    iK}Ie    partner   m 

jespondont     firm,     set     out     thaA,     

head  clerk,  who'  had  at  present  loft 
the  country,  and  whose  intended  de- 
parture was  notiBed  to  the  Law 
Society,  induced  him  to  purchase  the 
forms  from  Messrs.  Richards,  whose  re- 
presentative gave  the  assurance  that 
to  use  the  forms  was  quite  in  order, 
and  that  many  of  them  had  been  dis- 
powd  of  to  firms  in  Cape  Town. 

Counsel   having  been  heard    in   argu- 
™«it  on  the  fact«, 

^^Assdorp,  J.,  aasd  the  respondent 
••«  guiky  of  very  improper  oon- 
jwct,  as.  on  hie  own  admission, 
he  mtcnded  to  mislead  people  that 
there  was  more  authority  in  the  docu- 
>n«nt  than  it  really  possessed.  He  ad- 
mitted that  the  document  was  used  be- 
csnse  of  its  official  look,^  and  was  sent 
o«t  in  order  to  induce  hw  customers  to 
pay  their  debts.  The  document,  in 
fppoarance^  is  certainly  misleading.  It 
I*  very  official  and  legal  in  form,  and 
tfaerp  is  no  doubt  the  person  reading 
thi?  document  would  be  under  the  im- 
pression it  was  issued  out  of  some  court 
«'  justice,  and  that  was  exactly  the  in- 
tention of  the  respondent.  The  Court, 
M  a  rule,  is  very   adverse  to    exercise  its 


jurisdiction  for  contempt  of  Court,  and 
under  all  the  circumstances,  though  the 
conduct  of  Mr.  Thomas  has  been 
extremely  improper  and  ou^ht  to  be 
checked,  I  think  that  the  aim  of  the 
applicants  will  be  reached  by  ordering 
the  respondent  to  pay  the  costs  of  this 
application. 

[Apj^lioante*  Arttornoys:  Van  Zyl  and 
Buassinn^  ;  Respondents'  Attorneys  : 
Walker  and   Jac(>bsobn.] 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  ( hief  Justice  (the  Right 
Hon.  ISir  J.  H.  de  Villiers,  P.C., 
K.C.M.G.,  LL.D.)] 


TRIAL  CAUSE. 


RECEIVBBB,  GRAND  JUNCTION 


100.5. 


RAILWAYS  V.  WALKER.         )  MoT.   8th. 

This  was  an  action  brought  by  the  Re- 
jeiven  of  the  Grand  Junction  Railways 
against  John  Walker  and  Son  and  John 
Walker  personally  for  an  order  for 
transfer  of  certain  properties  in  connec- 
tion with  the  undcrtakmg  and  contracts 
for  the  coimtniction  of  certain  railways. 
Mr.  Schroiner,  K.C.  (with  him  Mr.  Up- 
ingiton^  was  for  the  plaintiffs;  Mr. 
Russell  was  for  the  defendants. 

Mr.  Russell  said  that  before  the  trial 
was  proceeded  with  he  should  like  to 
make  an  application  for  a  commission 
to  take  the  evidence  in  London  of  John 
Walker,  the  defendant,  and  other  per- 
sons residing  in  the  United  Kingdom, 
whose  evidence  may  be  material  to  the 
case,  and  also  for  costs  to  be  costs  in  the 
cause.  Counsel  read  the  petition  of  the 
defendant,  who  craved  leave  to  refer  tho 
Court  to  his  affidavit  of  the  18th  Novem- 
ber last.  The  petitioner  appended  a 
certificate  from  a  medical  man  in  Lon- 
don, who  said  that  tho  defendant  was  in 
his  70th  year,  and  was  quite  unfit  to 
take  a  journey  through  tno  tropics  to 
Cape  Town,  or  any  sub-tropical  climate, 
mudh  lesB  to  undergo  the  worry  at- 
tendant upon  iiitvgation  in  a  suib-tropical 
oliimate.  Counsel  said  that  a  similar 
aipplioation  was  before  the  Court  some 
time  ago. 

Mr.  Schreinor  nM  that  he  did  not  see 
how  the  defendant's  evidence  was  ma- 
terial to  the  claim  in  convention.  As  to 
the  claim  in  reconvention,  in  that , mat- 
ter defendant  was    really    the    plaintiff, 


214 


n 


CAPE  TIMES ''  LAW  REPORTS. 


and  be  clainifd  a  sum  of  over  £387,000 
oil  debentures.  The  application,  if 
{^ranted,  would  not  only  entail  dela.y  in 
th'j  litigation,  but  it  would  also  entail 
great  expense  in  instructing  some  one 
to  deal  with  the  evidence  given  by  Mr. 
Walker.  The  defendant  ought  to  pay 
tiio  costs  of  that  day.  He  did  not  sec 
why  tho  defendant  could  i.ot  come  out 
to  this  country,  say,  in  May  next,  when 
tho  weather  was  cooler. 

Mr.  Russell  (replying  to  hi«  lordship) 
said  that  hi^  client  would  ho  prepared  to 
pay  the  costs  of  the  day. 

De  Villiere,  C.J.,  said  thcit  he  would 
make  an  order  in  the  foUowing  temie : 
That  the  case  be  postponed  until  the 
last  d«y  of  next  term,  if  the  co©t  of 
♦he  day  »be  forthwdth  paid,  and  that  the 
decision  be  poart'^.twieci  upon  the  asppli- 
oaiion  for  exjanrvination  of  Mr.  J. 
Walker  on  contmiasion  un'til  the  plain- 
tiff i»ha.ll  have  bad  an  opportunity  of 
obtaining  an  affidavit  ao  to  the  state  of 
hia  (Mr.  Walker's)  health.  If  the  de- 
fendant ehould  n<Tt  pay  the  co»ts  of  to- 
day within  *  week  Crom  this  date,  then 
the  Court  will  set  down  the  o.^pe  for 
trial  on  Saturday,    the    18th   March. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplky.] 


ADMISh^ION. 


Mar.  8th. 


Mr.  Sutton  moved  for  the  admission 
of  Mr.  Harry  Haundern  as  an  attorney- 
at-law  and  notary  public. 

Application  granted,  and  oaths  ad- 
min isrte  red. 


BHODBS   V.  RMODBS  AND  BOW  EN. 

This  wafl  an  action  for  a  decree  of 
divorce  against  the  fir;^- named  de- 
fendant, and  dama«fes  ag^ainst  the  sec- 
ond tiofendant.  Loave  waa  granted 
to  sue  by  edictai  oitation  in  Septem- 
ber laat,  and  the  order  was  personally 
served.  The  second  defendant  pleaded 
and  subsequently  made  a  tender,  which 
was  now  put  in  by  consent.  The  de- 
claration set  out  that  the  plaintiff  was  au 
attorney  at  Kimberley,  and  the  first 
defendant  his  wife,  and  the  second  de- 
fendant an  attorney  of  Kimberley  until 
June,  1904.  The  plaintiff  was  married 
in  January,  1895,  at  Graham's  Town, 
without  community  of  property.  In 
terms  of  an  ante-nuptial  contract,  the 
plaintiff  settled  on  his  wife  an  assuranct^ 
policy,  and  £2,000,  which  he  invested  for 
ner.  About  June  last  the  first  defen- 
dant deserted  him,  and  plaintiff  alleged 
that  she  committed  adultery  with  the 
second  defendant  during  the  months  of 
April.  May,   and  June,  and  was  at  pre- 


sent living  in  open  adultery  with  Bo  wen. 
He  claimed  a  decree  of  divorce  against 
the  first- named  defendant,  and  forfeiture 
of  the  benefits  under  tne  ante-nuptial 
contract,  and  £2,000  damages  against  the 
second  defendant,  with  costs.  The  plea 
put  in  by  Bowen  set  out  that  at  pre- 
sent he  resided  in  Australia.  He  nad 
no  knowledge  with  regard  to  the  settle- 
ment. He  admitted  axiultery  on  the 
voyage  between  Gape  Town  and  Tas- 
mania, but  denied  adultery  at  Kimber- 
ley, and  he  denied  that  the  plaintiff  suf- 
fered any  damages.  Counsel  then  read 
certain  evidence  taken  on  commission, 
from  which  it  would  appear  that  the  first 
defendant,  who  travelled  as  Mrs.  Boweii 
to  Tasmania  with  the  co-defendant,  wa^ 
attended  bv  a  doctor,  who  stated  that 
she  was  pregnant.  The  stewardess  re- 
cognised the  photos  as  those  of  Mr.  aiM] 
Mrs.  Bowen.  The  second  defendant 
tendered   £500  and   costs. 

Mr.  Schrciner,  K.C.  (with  him  Mr.  P. 
Jcries)  for  plaintiff.  Defendants  in  de- 
fault. 

James  Joseph  George  Rhode.^,  the 
phintiff,  an  attorney  at  Kimberley,  stated 
he  was  married  on  3rd  January,  1895,  at 
Graham's  Town.  At  the  time  of  his 
marriage  he  entered  into  an  ante-nuptial 
contract,  settling  on  his  wife  his  as- 
surance policy  and  £2,000,  which  he 
invested.  In  1899  he  got  to  know 
Bowen  fir»t.  who  became  very  friendly 
with  his  wife.  At  the  end  of  1903  he 
went  to  Hermanns.  In  June.  1904,  his 
wife  asked  to  come  down  to  Cape  Town, 
and  witness  saw  her  off  at  the  Kimberley 
Station.  He  never  saw  her  since.  He 
accepted  the  tender  of  £500.  with  costs, 
from    the    se<<ond-named   defendant. 

A  decree  of  divorce  was  granted  against 
the  first  defendant,  with  forfeiture  of 
the  settlements  under  the  ante-nuptini 
contract,  and  costs,  and  judgment  again-;! 
the  .second  defendant  on  the  consent 
paper  for  £500,  with  costs,  the  plai  !tiff 
to  have  his  witness's  expenses. 


VENTBB  V.  VENT  KB  AND 
OTHERB. 


r       1905. 
<  Mar,  8th. 
f      M     »th. 


Sale  to  minor  children — Revoca- 
tion. 

r.,  wishing  to  prftride  for 
certain  minor  children^  sold 
rertaiu  land  to  them  jointly 
for  £600,  Hin  wife  hating 
suhaequently  admitted  that  tico 
of  these  minors  ir^ere  illegiti- 
mate,  V,  mcule  auotlter  dis- 
jwsition  ofhisprojyerty^  exehul- 
ing  these  tiro  children  from 
all  sliare  in  his  property. 

Held,  that  as  the  Court  had 
Infused    to     find    thai     these 


*'CAPBS  TIMES*'  LAW  REPORTS. 


21& 


ckUdreH  were  iliegitimaiey  they 
coald  not  he  deprived  of  their 
i'ighU  under  the  side^  but  as 
iheir  curator  had  stated  that 
^y  were  willi-ng  to  accept 
ilOQ  each  in  satitrfactian  of 
iieir  clainut^  the  Court  ordered 
tram/er  to  he  passed  to  the 
remaining  beticficiarieSy  on  con- 
diiioit  of  their  paying  out  this 
mm. 


This  was  an  action  for  a  declaration 
of  rijrbts,  brouf^ht  by  the  executom  of 
tbe  cdtatc  of  tho  late  Ilurmanus  Ven- 
ter, in  which  they  asked  for  the  trans- 
fer of  property  to  certain  three  minor 
sons,  who  were  half-brothers  of  the 
{•UintifTs.  The  matter  had  pre- 
viouiiy  been  before  the  Court,  and  it 
was  ordered  that  all  |>arties  should  be 
joined  in  a  declaratorv  action,  particu- 
larlv  those  children  who  were  aaid  to 
be  disinherited  by  the  will  (14  C.T.R., 
TTT).  The  deceased  had  been  married 
three  times,  and  in  1902  be  discovered 
that  his  wife  was  unfaithful  to  him. 
He  got  a  divorce,  and  alleged  that  ihe 
two  last  children,  who  were  represented 
b^  Mr.  Roux,  were  not  his  children. 
Mr.  Hermanns  was  married  three 
times,  and  by  tho  first  wife  he 
bad  fourteen  children,  eight  or  nine 
b>  tbe  second,  and  eight  by  the 
third.  In  1899  the  father  sold  to 
the  children,  as  from  himself,  a  cer- 
tain amount  of  ground,  to  the  value  of 
£600,  and  the  seller  and  buyer  papers 
were  duly  executed.  Subeequently  he 
became  auspicious  of  the  faithfulness  of 
his  wife,  and  in  divorce  proceedings  the 
vife  admitted  that  tbe  two  children 
v«Fe  not  those  of  Hermanns  Venter. 
Thereupon,  in  1902,  the  deceased  had 
iresh  papers  of  seller  and  buyer  execut- 
ed, in  which  theee  two  children  were  ex- 
cluded from  the  purchase  (which  pur- 
chtte  was  of  the  nature  of  a  gift  from 
the  father  to  his  children).  The  two 
minor  children  were  now  disputing  tho 
PBvocati<Hi. 

Mr.  Burton  appeared  for  the  plain- 
tiffs, Mr.  Gutacne  appeared  to  cou- 
H>nt  on  behaff  of  the  first  defendant,  and 
Mr.  Roux  appeared  for  the  second  de- 
fendants as  curator  ad  litem, 

L  Jacobua  Coetzee,  attorney,  prac- 
tising at  Philip's  Town,  said  that  the 
documents  proouoed  were  drawn  up  by 
him  and  signed  in  his  presence.  The 
first  document,  signed  in  November  26, 
IfiOO.  was  the  declaration  of  seller  to 
the  eight  children.  Tliere  wore  two 
more  of  the  same  date,  being  deolara- 
tioni  of  seller  and  buyer.  They  were 
uf^ned  before  him  in  February,  1902. 
These  were  in  regard  to  the  three  sons. 
Mr.  Venter  said  that  a  mistake  had  been 
DMde,  and  only  the  last   three  children 


were  to  get  transfer.       The  Civil    Com- 
missioner accepted  the  amended  papers. 

[Hopley,  J. :  It  is  an  attempt  to  set 
aside  a  sale  by  papers  subeequently 
drawn.] 

Mr.  Burton :  That  is  what  it  will  come 
to. 

Croes^xamined :  The  paper  selling  to 
the  eight  minors  was  drawn  in  tbe  office 
of  witness.  Mr.  Venter  knew  quite 
well  what  he  was  doing. 

[Hopley,  J. :  Your  point  is  that  tho 
Civil  Commissioner   acted  ultra  rirf#?J 

Mr.  Roux:  Yes,  my  lord,  he  acted 
ultra  vires,  and  therefore  could  not  bind 
tbe  eight  buyers. 

Johan  Carl  Martin  us  Venter,  one  of 
the  plaintiflFs,  and  also  one  of  the  tutors 
of  the  six  children,  stated  that  be  knew 
of  the  trouble  his  father  had  with  his 
wife.  The  three  eldest  children  had 
more  or  less  £1(X)  when  their  father  died, 
but  no  landed  property.  Tbe  other 
five  had  very  little.  Under  a  bond, 
witness  had  to  give  each  of  the  children 
£100  as  they  came  of  age.  Witness 
was  one  of  the  executors  of  the  will, 
and  came  to  ask  the  Court  what  was  to 
be  done. 

Cross-examined  by  Mr.  Roux:  If  the 
Court  found  that  tne  two  minors,  now 
excluded,  were  to  set  their  eighth  share, 
he  did  not  think  tne  estate  could  do  it. 

Counsel  having  been  heard  in  argu- 
ment. 

Cur,   Adv.    Vult. 
Postea  (March  9th). 

Hopley,  J. :  This  is  a  case  in  which 
the  late  Mr.  Hermanns  Carl  Venter, 
who  was  an  old  man  with  no  lees  than 
throe  families  by  three  diflPerent  wives, 
in  his  old  age  wished  to  provide  for 
tho  youngest  -family,  wno  were  all 
minors  at  the  timo.  There  were  eight 
of  them,  and,  as  far  ss  he  knew,  in  the 
rear  1900,  at  all  events  when  he  pro- 
posed to  provide  for  them,  these  eight 
were  all  nis  own  legitimate  cnildren. 
and  in  or  about  November,  1900,  he 
I  provided  for  these.  He  set  apart  soii*^ 
of  his  landed  property,  and  entered  into 
a  sale,  a  transaction  which  bcre  U{Kin 
its  face  the  look  of  a  sale  from  himHoii 
to  his  minor  children.  He  made  a 
deolaration  on  the  26th  November, 
1900,  that  he  had  sold  for  £600  certain 
landed  property,  which  is  the  property 
in  question  in  this  case,  to  the  eight 
minor  children.  He  does  not  spem  to 
haVe  made  at  the  same  time  a  cor- 
responding declaration  as  the  guardian 
or  agent  for  these  children  as  pur- 
chaser, but  apparently,  about  a  year 
afterwards,  in  November,  1901.  that  de- 
claration was  made  by  himself  as  agent 
for  these  same  eight  children,  dealing 
with  the  same  landed  property,  thus 
making  a  completed  sale  to  these  eight 
children.  It  has  been  said  that  as  these 
children  had  no  assets  to  speak  of,  this 
must  be  looked  upon  as  a  donation  by 
the  father  to  the  children,  and  must  be 
treated  upon  that  basis.      I  am  not  satis- 


i 


216 


cc 


CAPE  TIMES''  LAW  toPOItTd. 


fied  ou  the  evidouce   that    it  T^as       in- 
tended to  be   an  out-and-out   donation. 
In  my  opinion,  it  must  be  treated  as  a 
»alo  to  the  eignt,  and  accepted    by  him 
as  their  ffuardian.      If  it  was  a  Bale,  the 
rights  ol  these  eight  children      became 
vested  in  the  property.      Shortly     after- 
wards, or  somewhere  about  1901,  the  old 
man    discovered   the      infidelity  of    his 
wife,  and  he  subeequeutly  took  proceed- 
ings   to  have     her  divorced,  and     then 
it  seems  to  have  occured  to  him  to  make 
another  settlement,  and   endeavour      to 
disinherit  the    two    youngest      children, 
who  in  the  divorce  proceedings  his  wife 
admitted  were  illegitimate.      In  Novem- 
ber,   1901,    the   agent   went    before    the 
Civil      Commissioner  at    Hanover,    and 
paid  transfer  duty  on  this  sale  of     £24, 
and  £1  128.  as  a  fine  for   the  delay,  so 
that  everything  was  in  order  ae  a  sale. 
On  the  back  of  the  receipt  which     the 
Civil  Commissioner  gave,  the     names  of 
these  eight  minors   were  placed,    as  be- 
ing the  people  to  whom  the  transfer  was 
to  be  made.       That  receipt  was   given 
in  December,   1901.      Two  months  after 
that  it  appears  the  old  gentleman  came 
to  the  conclusion  that  he     had  made  a 
mistake,   but  I    don't  think    it  was      a 
mistake,  because  ever^  child's    name  is 
fully   set  out.   and  it  is    not  likely   thpt 
the  attorney   would   have     known     the 
Christian  names    of    each  one   of       ho 
eisrht.      I  don't  think  that  was  the  mis 
take  that  was  made,  but  when  he  came 
to  the  attorney  in  1902,  he  said  he  had 
made  a  mistake  in  the  way  he  had  pro- 
vided for  hifl  family,  and  ne  thought  ho 
had  better  make  a  new    disposition.    He 
went  to  the  attorney,  and  declared     he 
had  sold  this  property  for  £6Q0    to  only 
three    of    these   sons.         The   difficulty, 
however,      was  to  put  in  the  names  of 
these    three    people    without    cancelling 
the  previous  sale.      The  documents  were 
in  the  hands  of  the  Civil  Commissioner, 
and  so.  to  endeavour  to  put  right  what 
was  called  a  mistake,  a  declaration  was 
made   in  February,   1902.     A  Justice     f 
the  Peace  and  an    attorney  of  this  Court 
wrote  to  hifi    correspondent    at  J'hilip's 
Town  telling  him   to  ante-date  tKis  doeu- 
ment.       Now   that,  of  course,  was     im- 

S roper,  and  he  ought  not  to  have  en- 
eavoured  by  filling  in  a  false  date  to 
have  made  it  appear  that  the  declara- 
tions were  made  before  him  in  Novem- 
ber, 1900,  when,  as  a  matter  of  fact,  they 
were  not  made  until  February,  1902. 
Either  as  a  Justice  of  the  Peace  or  as 
a-n  attorney  of  this  Court,  he  acted  im- 
properly. But  I  have  to  view  the  mat- 
ter to  see  if  these  subsequent  declara- 
tions made  any  difference  in  the  m&t 
ter.  In  my  ooinion  they  could  not  be 
taken  to  make  any  difference.  The  salo 
had  been  concludod,  transfer  duty  paid, 
and  the  rights  of  the  children  vested 
in  the  land.  That  being  the  ease,  it 
now  lemains  to  adjust  the  rights  of  the 
parties.  No  transfer  was  actually 
given  of  this  property^  but  in  his  will 
the  seller  again  dealt  with  this  property. 


and  left  this  very  eame  property  to  the 
same  three  ohildEen  to  make    provision 
for  the  voungest     three  children.      This 
provided  for  six  children  of  the     mar- 
riage, and  cut  out  altogether  the     two 
youngest,  which  he     considered   illegiti- 
mate.      He  seems  to  have  asked   that 
certain  benefits  for  these  two  youngest 
children  should    be   forfeited,    but     the 
Court      has  previously  refused  to  look 
upon  them  as  illegitimate,  having  been 
born  in  wedlock.       In  leaving  this  pro- 
perty, he  left  it  to  the  three  to  whom 
the  second  lot  of  declarations  purported 
to  eell  «t,  on  oondvtion  they  should  pay 
to   their    sisters  a   certain  amount,    the 
sum   of  £225,  and  he  also  left     to  the 
brother  an  erf  in  Philip's  Town,   on  con- 
dition he  paid  to  two  sisters  £25.     Thus 
he  provided  for  six  of  theee     children, 
by  leaving  the  three  eldest  this     farm, 
he  left  tM  two  daughters  £250  between 
them,  and  he  left  the  son  the  erf.      But 
these  two  youngest  were  left  out  of  the 
will  altogether.      Now  the  matter  comes 
before  the  Court  for  a  declaration   of  all 
their  rights.      It  seems  to  me  thai  theae 
two    youngest  children  ought  to     have 
their   rights   fixed  by  the  Court   by      a 
declaration  that  they  are  entitled  to  set 
up       this         purchase       as       a      sale. 
Toey      probably      would      not        have 
the  £600  to  tender  for  the  price,  and  it 
has  been  stated  in  Court  on  their  behalf 
if  they  could  get  £100  paid  to  each  of 
them,   they  would  be  satisfied   to  with- 
draw all  their  clainos.     It  seems  to  me 
that  would  be  the  wisest  course  to  adopt. 
The  other  three  have  been  settled  with, 
and  they  do  not  set  up  any  claim.    They 
only  wish  to  remain  as  provided  for  by 
their  father's   will.     I   think   it   is   clear 
there   should    be    transfer   to   the    three 
eldest  sons  mentioned  in  the  will,  on  con- 
dition   that    they   pay   out   to   the   two 
youngest  children  the  sum  of  £100  each. 
Then  there  is  the  matter  of  costs,  which 
ought  really,  in  a  case  like  this,  to  come 
out  of  the  estate,   because  the  testator 
has  really  caused   this   application ;   but 
as  I  understand,  all  the  assets  have  been 
distributed,  and  the  estate  liquidated,  ex- 
cept  this   matter,    that  there  would    be 
some   difficulty    in    making    up   this    ar- 
rangement.    I  think  it  would  be  somewhat 
unfair  to  the  children  of  the  first  two 
marriages   to  order  them   to   contribute 
to  a  matter  with  which  thev  are  not  con- 
cerned.    I  think  the  people  that  ought 
to  contribute  are  these  who  now  come 
before  the  Court  with  regard  to  this  par- 
ticular property.    It  seems  that  the  three 
t<    whom  transfer  will  be  ordered,   and 
Mr.  Roux's  two  clients,  ought  to  pay  the 
costs  of  those  proceedings.     The  execu- 
tors will  have  the  right  to  mortgage  the 
property  for  the  purpose  of  meeting  the 
liabilities  which  now  fall  upon  the  pro- 
perty in  consequence  of  this  judgment. 

[Attorneys  for  plaintiff:  Mostert  an'* 
Son.  For  first  defendant:  Bilberbaucr, 
Wahl  and  Fuller.  For  second  defen- 
dant;   Zietsman  and  Bosman.] 


"CAPE  TIMES*'  LAW  REP0KT8. 


217 


SUPREMK    COURT 


FIRST    DIVISION. 


[Before  the  Hon.  Mr.  Justice  M  A  asdorp.  ] 


TRIAL  CAUSE. 

MITCHgLL    V.    f-AM    WEIL     f         llK)o. 

8YND1CATB,  ^   Mar.  yth. 

Mining  company  —  Agent  —  Re- 
maneration  —  Damages  for 
non-delivery  of  shares. 

The  defendants  engaged  to 
remuuet-ate  M.  for  his  services 
with  a  certain  money  imyment 
find  certain  mining  shares. 
These  shares  were  not  delivered^ 
and  M.  now  sued  for  delivery 
and  also  for  damages  for  non- 
deliverg. 

Held,  that  he  could  not  succeed 
on  both  clcLtms, 

Held  further,  t}iat  he  was  not 
entitled  to  damages  for  delay 
*n  die  delivery  of  the  shares^ 
Plough  they  had  greatly  fallen 
in  value, 

Philip  V.  Metropolitan  Rail- 
ways (10  Juta,  52)  followed. 


This  was  an  action  brought  by  John 
^yton  Mitchell,  a  mining  engineer  of 
BuUwayo.  against  Samuel  W^il,  Julius 
t?^  Georare  David  Smith,  trading 
■•  the  Sam  Weil  Syndicate,  to  recover  a 
terUm  sum  and  ahares  alleged  to  be  due 
to  him  by  way  of  commission,  and  dam- 
»g«  m  the  sum  of  £1,353. 
ftJi  ''*'  »*»ted  that  Mr.  Smith  had  not 
nied  a  plea,  and  that  he  was  not  re- 
P»5»nted  before  the  Court. 

The  plaintiff's  declaration  was  ae  fol- 
lows: 

ij^  plaintiff  is  a  mining  engineer, 
residing  at  Bulawayo,   Rhodesia. 

ine     defendants   are    Samuel       Woil. 

Julius  Weil,  and  George  David   Smith, 

rt^iding  in  Cape   Town,  and  trading  in 

«>-psrtner8hip  as  the  Sam  Weil  Syndi- 
cate. 

,2.  Durinff  the  years  1895,  1896,  and 
^w/  the  plaintiff  was  employed  by  the 
apjpndants  to  acquire  on  their  behalf 
JroW-mining  claims  in  Rhodesia. 

5.  In  or  about  the  month  of  Deoem- 
her,  1895,  the  plaintiff,  acting  as  the 
«"ly«utborised  agent  of  the  defendants, 
fntered  into  an  agreement  with  one  Ben- 
Jimin  William  Leach,  in  the  Ingewenia 
™tnct    of  MaUbelehind,  in  terma     of 


which  the  plaintiff,  with  the  authority 
and  consent  of  the  defendants,  and  on 
their  behalf,  agreed  to  acquire  for  the 
said  syndioate  certain  gold-mining  olaimSp 
the  property  of  the  said  Leach. 

4.  The  ckume  so  purchased  from  the 
said  Leaoh  were  described  as  follows: 
Veracity,  Naomi  1,  2  3,  Monica,  Nar- 
ran,  Cusco,  Laura,  Outalpa,  and  Mea, 
afterwards  repegged   as  the   Bud. 

5.  In  consideration  of  the  services 
rendered  to  the  defendants  by  the  plain- 
tiff in  the  purchase  of  the  said  claunB, 
the  defendants  undertook  to  pay  to  the 
plaintiff  a  commission  of  10  per  cent,  on 
any  properties  secured  to  the  defendants 
by  the  plaintiff,  the  said  oommission  be- 
ing payable  on  the  sale  or  flotation  of 
the  said  prooerties. 

6.  Thereafter  the  said  claims  were 
duly  sold  and  transferred  on  or  about 
the  1st  March.  1899,  from  the  defendants 
to  a  company  known  as  the  Enterprise 
Gpld-mining  and  Estates  Company, 
Limited. 

7.  The  consideration  for  which  the 
said  claims  were  transferred  to  the  said 
Enterprise  Gold-mining  Company,  Ltd., 
was  £10,000  in  cash  and  shares  equal  to 
£217  7s.  lOd.  in  cash,  per  block  of  ten 
claims,  and  £782  12b.  2d.  in  shares  per 
block  of  ten  claims. 

8.  The  plaintiff  says  that  in  terms  of 
the  agreement  referred  to  in  paragraph 
4  of  this  declaration,  he  was  entitled  to 

.demand  from  the  defendants,  on  the  sale 
hy  them  of  the  said  claims  to  the 
Enterprise  Gold -mining  Company,  Ltd., 
the  payment  of  the  sum  of  £217  7s.  lOd. 
and  782  shares  in  the  said  Enterprise 
Gold-mining  Company,  Ltd.,  as  will 
more  clearly  appear  from  the  account 
annexed  to  this  declaration,  which  the 
plaintiff  prays  may  be  considered  as  in- 
serted herein. 

9.  The  defendants  have  refused  and 
neglected  to  pay  to  the  plaintiff  the 
said  amounts  of  £217  7s.  lOd.,  and  have 
refused  to  deliver  to  the  plaintiff  the 
said  782  shares  in  the  said  Enterprise 
Gold-mining  Company,  Ltd. 

10.  With  respect  to  the  said  shares,  the 
plaintiff  is  entitled  to  dennand  from  the 
defendants  the  payment  <A  the  sum  of 
£1,153,  as  and  for  damages  sustained  by 
the  plaintiff,  owing  to  the  wrongful  re- 
fusal of  the  defendants  to  deliver  the 
said  shares  in  accordance  with  the  terms 
of  the  said  contract,  the  said  shares 
having  greatly  fallen  in  value  since  the 
date  of  the  flotation  of  the  said  Enter- 
prise  Gold-mining  Company,    Ltd. 

11.  The  defendants  are  further  in- 
debted to  the  nlaintiff  in  the  sum  of 
£25,  being  the  purchase  price  of  cer- 
tain two  claim  licences  purchased  by  the 
•  .laintiff  for  and  on  behalf  of  the  defen- 
dants during  the  month  of  December 
31    1895. 

12.  All  things  have  happened,  all  times 
elapsed,  and  all  conditions  fulfilled 
necessary  to  entitle  the  plaintiff  to  de- 
mand from  the  defendaivts  the    amounta 


318 


(t 


OAt>£  TIMES"  LAW  tlEt^OfiTd. 


set  forth  iii  the  account  aunexed  to  this 
declaration,  together  with  the  Bum  of 
£1,1^,  t^B  iwa  for  dun«gefl  aforesaid, 
aiid  the  sum  of  £25,  but  the  defendants 
wrongfully  refuse  to  |>ay  the  said  claims 
or  any  portion  thereof. 

Wherefore  the  plaintiff  prays :  (a)  That 
the  defendants  may  be  ordered  to  pay 
to  him  the  said  sum  of  £217  Is.  lOd.. 
with  interest  a  tempore  morae,  and  to 
deliver  to  him  782  shares  in  the  said 
Enterprise  Grold-mining  Company,  or 
the  value  of  the  said  shares;  (b)  judg- 
ment in  the  sum  of  £1,153,  as  and  for 
damages  as  aforesaid;  (c)  judgment  in 
the  sum  of  £25;  (d)  alternative  re- 
lief. 

The  plea  of  the  defendants  Samuel 
Weil  and  Julius  Weil  was : 

1.  As  to  paragraoh  1  of  the  plaintiff's 
declaration  the  saia  defendants  say  that 
they  are  not  permanent  residents  at 
Capo  Town,  but  have  visited  it  at  vari- 
ous times,  and  that  the  Sam  Weil  Svu- 
dieate  is  no  longer  in  existence,  out 
otherwise  they  admit  the  said  para- 
graph. 

2.  They  deny  paragraph  2  of  the  plain- 
tifTs  declaration.  During  the  years 
mentioned  therein  the  plaintiff  was  in 
the  employ  of  the  syndicate  at  a  month- 
ly salary,  and  was  engaged  in  looking 
after  work  on  the  mining  property  of 
the  syndicate,  such  as  erectmg  beacons 
and  keeping  them  in  order,  and  was 
under  a  duty  to  submit  particulars  of 
any  claims  which  were  available  for 
purchase  and  which  were  brought  to  his 
notice. 

3.  In  the  course  of  his  said  em  pi  ij 
ment  and  in  the  discharge  of  his  duty, 
the  plaintiff  in  or  about  December,  lr*do, 
brought  to  the  notice  of  the  defendant 
Smith  certain  gold  mining  claims, 
which  are  the  claims  mentioned  in 
paragraph  3  of  the  plaintifTs  declara- 
tion, and  with  the  authority  of  the 
said  Smith  entered  into  an  agreement 
with  the  said  Leach  upon  certain  terms 
not  necessary  to  specify  for  the  acquisi- 
tion of  the  said  claims  by  the  syndicate, 
and  the  said  claims  were  t>hen  described 
as  is  set  forth  in  paragraph  4  of  the 
plaintifTs  declaration. 

4.  They  deny  paragraph  5  of  the 
plaintiff's  declaration.  They  say  that 
a  certain  agreement  under  which  the 
plaintiff  was  entitled  against  the  syndi- 
cate to  a  commission  of  10  per  cent,  on 
the  sale  or  flotation  of  claim  properties 
pegged  by  him  on  behalf  of  the  syndi- 
cate,  or  purchased  by  the  syndicate  on 
his  mtroduction  had  no  relation  to  and 
did  not  include  the  claims  referred  to 
in  the  declaration  with  the  acquisition 
of  which  the  plaintiff  was  only  con- 
nected in  manner  set  forth  in  paragraph 
3  hereof. 

5.  They  deny  paragraph  6  of  the 
plaintiff's  declaration.  They  say  that 
the  registration  of  the  claim's  aforesaid 
was  not  recognised  as  valid  by  the 
Mining  Commissioner,  and  the  said 
claims      were    tfliereafter   forfeited    and 


wLoIiy  lost  to  the  syndicate.  The  areas 
comprising  the  said  claims  were  re* 
pegged  by  others  known  as  the  Bell 
Syndicate  in  1897.  but  that  syndicate 
th';reafter  also  forfeited  the  said  claims. 
In  1898,  at  the  time  when  the  plain- 
tiff had  no  connection  with  the  syndi 
cate,  the  same  areas  were  lawfully 
pegged  for  and  on  behalf  of  the  syndi- 
cate bv  their  agent,  and  subsequently 
the  title  thereto  was  perfected. 

6.  The  olaims  so  acquired  by  the  said 
agent  in  1898  were  duly  sold  and  trans- 
ferred in  March,  1899,  to  the  Enterprise 
Gold  Mining  and  Estate  Company, 
Limited. 

7.  They  admit  paragraph  7  of  t4ie 
plaintiff's  declaration  save  that  the 
claims  therein  mentioned  are  those  re- 
ferred to  in  paragraph  6  hereof,  and 
save  that  they  say  that  in  connection 
with  the  flotation  of  the  said  company 
the  syndicate  paid  20  per  cent,  on 
£50,000  to  provide  working  capital, 
£1,000  for  advertising,  and  £1,500  and 
upwards  for  brokerage,  a  pro  rata  por- 
tion of  which  expenses  must  be  deductea 
from  bhe  consideration  set  forth  in 
paragraph  7  of  the  declaration. 

8.  As  to  paragraphs  8,  9,  10,  and  12  of 
the  plaintiff's  declaration  they  admit 
that  they  refuse  to  pay  the  plaintiff  the 
amounts  or  deliver  to  him  the  shares 
therein  mentioned,  but  otherwise  they 
deny  the  aJlegations  in  the  said  para- 
graphs. 

9.  As  a  special  further  plea,  if  neces- 
sary, tthey  say  that  the  {>laintiff  is  not 
entitled  to  have  and  maintain  this  ac- 
tion by  reason  that  before  action 
brought  he  for  valuable  consideration 
ceded  and  assigned  all  his,  the  plaintiff's 
claim  aforesaid,  and  notified  the  defen- 
dant Samuel  Weil  aooordingly. 

10.  As  to  paragraph  11  of  tjie  plain- 
tiff's declaration,  they  say  that  u  the 
plaintiff,  as  is  now  alleged,  expended 
on  behaJf  of  the  syndicate  the  sum  of 
£25  therein  mentioned  he  should  have 
charged  the  same  in  his  account  with 
the  .syndicate,  but  they  are  ready  and 
willing  upon  proof  by  him  that  £e  did 
properly  expend  the  same  on  behalf  of 
the  syndicate,  and  has  not  received  tt, 
to  pay  the  amount,  but  they  have  had 
no  .«uch  proof,  and  do  not  admit  the 
allegations  contained  in  that  paragraph. 

Wherefore,  subject  to  the  production 
of  such  proof  as  is  referred  to  in  para- 
graph 9,  they  pray  that  the  plaintiff's 
claim  may  be  dismissed  with  costs. 

The  plaintiff,  in  his  replication,  speci- 
ally denied  the  alleged  cession  of  his 
claim,  and  as  to  tho  rest  he  joined 
issue. 

Mr.  Bunton  (with  him  Mr.  Siwift)  for 
plaintiff;  Mr.  Schretner,  K.C.  (with 
hini  Mr.  P.  Jones)  for  the  firwt  two  de- 
fendants. The  third  defendant  in  de- 
fault. 

Mr.  Burton  said  it  was  important 
that  the  Court  should  be  acquainted 
with  correspondence  which  recently  took 
place  between  the  parties.      On  the  14ih 


«< 


CAPE  TIMES"  LAW  REPOHTO. 


M 


tebniary    the       defendaoto*       attorneys 
wrote  to  the  plaintiff's  attorneys  tender- 
ing ID  lull  satisfaction  of  claims  (a)  and 
[o)pl  the  declaration  the  sum  of  £1.000, 
which  Mr.  Mitchell  could   have  entirely 
in  cash  or  shares^  or  partly  in  caah  and 
partly  in  shares  in  the  Enterprise  Com- 
pany al  their  face  value  of  £1  sterling. 
As  to  th^  licences  on   which   £25     was 
claimed,  they  (the  writers)  were  informed 
**ij^^®  charge    was    high,  but      they 
would   be    prepared    to   pay    this    sum. 
The  tender  was  for   £1,025,   with  taxed 
c««U  to  date  in  full  satisfaction  of  the 
plaintiff's  demand.       On  the  20th  Febru- 
ary  the  plaintiff's    attorneys    said    that 
iney  were  instructed    to   decline   defen- 
illij    ^^^^^^'        The  plaintiff,    it    was 
L    ii    ^^^    surprised    that    defendants 
sbould  only   have      tendered      him    the 
actual  amount  of  the   commission   due, 
without   regard    to    the    damage    which 
he  had  sustained.     On   the  28th  Febru- 
ary defendauts   made   for  plaintiff's   ac- 
ceptance a  further  proposal,   and  offer 
to  pay  him  according  to  prayer  (a)   of 
the  declaration,  also  on  prayer  (b)  £200 
[!»mages,  and  on  prayer  (c)  £25  for  the 
ucences,  with  taxed  costs.      The  defen- 
dants said    that    thev   made    this    offer 
because  they   desired    to    avoid    further 
litwan'on.    On  the  2nd  March  the  plain- 
ua  replied   declining  this   offer.       Mr- 
Burton  went  on  to   say  that  so  far  as 
noe  plaintiff    was   concerned,    the   offer 
w  the  defendants  being,   as  he  was  in- 
formed,   still    open,    substantially,    the 
<jav«tion  before  the  Court  was  whether 
die  sum    of       £200       was    a    sufficient 
measure  of  damages. 

[Maasdorp.  J.  :  But  how  has  the 
PwJntiff  suffered  these  cikmages  if  the 
•™wB8  are  now  delivered   to  him?] 

Mr.  Burton :  We  say  we  suffered  dam- 
ages because  w-?  did  not  get  the  shares 
J^rlier,  ina^imuch  as  if  the  shares  had 
been  delivered  to  us  when  they  should 
naTe  been,  according  to  the  contract, 
we  fhould  have  made  a  handsome  profit 
on  them.  Those  shares  have  now  fallen 
Jo  a  veiy  low  price.  We  get  the  shares, 
put  we  have  lost  all  opportunity  of  mak- 
ing the  profit  we  should  have  made  out 
of  them. 

Mr.  Swift  then  proceeded  to  read  the 
evidence,  taken  on  commission  in  Bula- 
»ayo.  on  the  23rd  and  24th  November 
ja^,  of  John  Layton  Mitchell  (the  j)lain- 
"«).  Charles  Davis  Fleming,  mining 
commissioner ;  Wm.  Dalgetty,  broker's 
g?rk,  Bulawayo;  and  Arthur  G.  S. 
Kichardson,    Duncan    S.   Campbell. 

Mr.  Jones  read  the  evidence  taken  on 
commiasion  of  the  defendants,  Sara  Weil 
■nd  G.  D.  Smith. 

Mr,  Burton  then  called, 

Alfred  Bolus,  of  Bolus  Bros.,  stock- 
brokers Cape  Town,  who  said  that  his 
brm  had  a  transaction  in  Enterprise 
shares  in  September,  1900,  at  20s.  The 
shares  had  not.  to  his  knowledge,  been 
largely  dealt  in  in  Cape  Town.  The 
pnce  on  the  London  market  when     the 


laat  mail  left  England  wa^i  given  in  unc 
paper  at  lU.  3d.,  buyers,  and  13s.  9d., 
sellers,  and  in  another  paper  8s.  9d-, 
buyers,  and  lis.  3d.,  sellers.  From  a 
mining  list  he  found  that  the  prices 
during  the  past  few  years  had  been  as 
follows:  1904,  highest  208.,  lowest  6s. 
3d.;  1903,  highest  33s.  9d.,  lowest  8s. 
9d. ;  1902,  highest  37s.  6d.,  lowest  158. ; 
1901,  highest  15s.,  lowest  7s,  6d. 

Cross-examined:  He  thought  12ti.  6d. 
would  be  a  fair  price  for  the  shares  at 
the  present  time. 

Mr.   Burton  closed    his  cose. 

Juliua  Weil  (one  of  the      defendants) 
said   that  the  Weil   Syndicate  had   lieen 
dissolved,   and   all  tho  parties   had  been 
satisfied.    Mr.    Smith    had   held   a   half 
interest.    The  cost  of   development  had, 
as   far  as  he    knew,   been      the      usual 
amount.       The  firm  of  Julius  Weil  and 
Co.  had  the  largest  holding  of  shares  in 
the  company.       The   compaiiy  wae  con- 
fliderably   interested   in   the  Giant  Com- 
pany.   The  claims  in  the  Gwelo  district 
were  not  sufficiently   encouraging  to  go 
on  with.     In  exploiting  the  Giant  Com- 
pany, tho  Enterprise  Company  expended 
for  develonment  purposes   £40,000  cash. 
The  Consolidated  Goldfields  and  witness 
advanced  the  Giant  Company  £10,000  to 
continue  the  necessary  development  that 
the  engineer  said  he  would  like  to  see 
done  before  going  to  flotation.       Then 
they  subsequently  floated   the    company 
for   £245,000,  of   which   45.000   were  re- 
serve shares.      The  Giant  Company  then 
returned  to  the  Enterprise  the  whole  of 
its  £40,000,  and  also  80,000  shares.     Wit- 
ness    did   not    withdraw    from    the  offer 
defendants  made  on  the  28th  February. 
Witm'ss  had  confidence  in  the  future  of 
th')   Enterprise  Company.       The    shares 
were  not  by  any  means'  broadly  spread. 
Cross-examined :   He  did  not  see   how 
the    plaintiff   had   suffered   damages    by 
reason  of  the  non-delivery  of  the  shares. 
The  only  way  in  which  he  could   have 
suffered  damage   was  if  he  could    have 
said   that  had   he  had  the  shares    when 
they  were  at  the  very  highest  pinnacle, 
he  could  have  sold  them.     If  the  plain- 
tiff had  sold  at  37s.  per  share  he  would 
have  had  the  benefit  of  the  whole  37s., 
seemg  that  if  the  shares  had    been  de- 
livered to  him  he  would  have  had  to  pay 
nothing  for  them.      Intrinsically,  witne8.s 
thought  the  shares  were  worth  more  to- 
day than  when  the  company  was  started. 
He  understood  that  it  was   agreed   that 
a    fair   market    price    to-day    would    be 
126   6d. 

Maaisdopp,  J.,  puft  it  to  witneaa  whe- 
ther, seeing  that  on  the  average  of  the 
past  few  years  the  shares  had  been  of 
the  value  of  208.,  a  proper  measure  of 
damages  would  be  the  difference  be- 
tween that  figure  and  the  present  market 
price  upon  the  shares  that  should  have 
been  delivered  to  the  plaintiff. 

Witness  said  he  was  not  in  a  position 
to  answer  that  question. 


220 


"CAPE  TIMEB"   LAW  REPORTS. 


Couiisol    iiaviug   Lccu   heard    in   argu- 
niont. 

Maaedorp,    J. :    The   plaiirbiff    in    this 
oaee   alleges   that   he    rendered    certain 
services   to    the    defeiKiants    in    obtain- 
ing  <for    them   a  number    of    oleimfl    or 
pro  oriiee    in     Rhodesia,     and    that     it 
was    agreed   between   the    parties    that, 
in  consideration  of  the  services  render- 
ed  by   the    plaintiff   to   the    deifendants 
in     the    purchase    of     the    baid    claims, 
t ho  defendants  undertook  to  pay  to  the 
plaintiff  a  commission  of  10  per  cent,  on 
any  property  secured   to  the  defendants 
by  the  plaintiff,  the  «»id  commission  be- 
ing payable  on  the  sale  or  flotation  of  the 
said   properties.       The    plaintiff    further 
states  that  the  properties  which   he  ob- 
tained on  behalf  of  the  defendants  were 
afterwards  sold  and  transferred   on    the 
1st  March,  1899,  from  the  defendants  to 
tho  Enterprise  Gold  Mining  and  Estates 
(Vmpany,    and  that  the      consideration 
given  for  these  claims    was    £10,000    in 
cash  ajid  shares,  equal  to  £217  Ts.  lOd. 
i  I    cash    per   block   of  ten    claims,    and 
£782  12s.   2d.  in  shares  per  block  of  10 
claims.       Plaintiff  states  that  in  respect 
of    the  consideration      obtained    by   the 
company   for    these  claims,   he   wa<$  en- 
titled to  a  sum  of  £217  in  cash,  and  t^) 
782  shares  in  the   Enterprise  Company. 
There  is  also  a   further  claim    for    £25 
for    out  of -pocket   expenses    incurred    by 
the  plaintifi  in  respect  of  certain  licences. 
Ill   respect  of  these  allegations,  the   de- 
frdant  now  claims   £217  7s.    lOd.,   with 
interest  a  tempore  morae,  and   the      de- 
livery  of  782   shares    in    the    Enterjzrise 
Gold  Mining  Company,  and  to  have  also 
£1,153  as  damages  suffered  by  him  be- 
CBUf<e  of  the  non-delivery  of  these  shares 
upon  the  due    date    bv'  the  defendnnts. 
Then  there  is  this  further  claim  for  £25. 
At  first  the  whole  of  the  claim  put  for- 
ward by  the  plaintiff   was   disputed    by 
th<>  defendants.       At   one  time  they  re- 
garded the*^  claims  as  not  having  ^en 
obtained   through   the   services     of     the 
plaintiff,    but   that   after    his  efforts    to 
obtain  the  claims  the  whole  matter  had 
fallen   through.       However,      they  now 
abandon  that  position,  and  they  are  pre- 
pared to  accede  to  certain  of  the  plain- 
tiff's   claims.       Admitting    that  he   ren- 
dered services  for  which  he  is  to  be  re- 
munerated,   they   tendered    on   the  28th 
February  last  to  pay  the  sum  of     £217 
7s     lOd.,    to  deliver    to  him  782  shares, 
and  in   respect  of  damages  to  pay  him 
the  sum    of  £200.   and  also  to  pay  the 
further  claim  of  £25.       The  only  differ- 
ence  between    the  parties,    therefore,  at 
present   is    whether   the    plaintiff   is   en- 
titled to  damago.s  in  the  sum  of  £1.153, 
or  only  in  the  sum  of  £200.      The  ques- 
tion of  damage  is  raised  on  the  ground 
that  the  .shares  were  available  for  distri- 
bution   in    the    beginning    of   1900,    and     | 
that  the  defendants  then  failed  to  deliver 
them.     Since  that  period  the  shares  have 
been   saleable  at   various  prices:,    and   at 
one  time  they  rose  to  as  much  as  39s. 


Their  value  now  seem&  to  be  126.  Thj 
plaintiff,  therefore,  seeks  to  recover  the 
aifference  between  12s.  and  39s.  per 
share.  The  question  the  Court  has  to 
decide  is  whether  the  plaintiff  is  entitled 
to  delivery  of  the  (shares,  and  also  to  the 
damages  suffered  through  the  delay  of 
the  defendants  in  making  the  delivery 
to  the  plaintiff  of  the  shares.  Upon  this 
question  there  is  a  passage  in  wnich  the 
matter  is  dealt  with  by  Voet.  In  Voei, 
19.  1,  20,  appears  the  following  |>assage  : 
ITor  neither  can  a  purchaser,  on  the 
ground  of  delay  in  the  deliver v  of  the 
thing  sold,  claim  the  value  of  the  profit 
which  he  mi^ht  have  obtained,  by  trad- 
ing if  the  delivery  had  been  made  at  the 
proper  time.  Upon  the  doctrine  here 
laid  down  by  Voet  there  was  a  case 
deoided  in  the  Supremo  Oourt,  Philip  v. 
The  Metropolitan  and  Suburban  Rail- 
way Coinpuny  (10  Juta,  52).  The  Chief 
Jiii>tice,  in  giving  judgment,  in  that  case, 
quotes  this  passage  from  Voet,  and 
says:   "There  mav  be  exceptions  to  this 

General  rule,  as,  for  instance,  where  the 
efendant*s  refusal  to  perform  his  part 
of  the  contract  has  been  fraudulent,  but 
no  such  exception  arises  in  this  case." 
Of  course,  the  exception  would  be  based 
upon  the  principle  that  where  the  de- 
fendant had  been  guilty  of  fraud  he 
would  be  liable  to  damages,  which  would 
not  occur  there,  there  is  simply  a  ques- 
tion of  breach  of  contract.  Now,  in 
this  case  decided  in  the  Supreme  Court 
it  appeared  that  there  had  been  land 
sold,  and  the  purchase  price  for  the  land 
had  been  paid,  but  the  transfer  of  the 
land  did  not  take  place  for  a  consider- 
able time.  Plaintiff  afterwards  sued 
the  defendant  for  transfer  of  the  land, 
and  also  claimed  damages  for  the  loss  he 
had  suffered  through  the  delay.  If  this 
case  is  decided  on  the  principles  here 
laid  down,  then  it  must  be  held  that  tho 

f)iaintiff  is  not  now  entitled  to  claim  de- 
iv^'ry  of  the  shares,  and  also  to  ask  for 
damages  suffered  through  the  delay.  But 
it  has  been  urged  by  Mr.  Burton  that 
thcfie  cases  go  off  on  the  principles  ap- 
plicable to  purchase  and  sale,  and  would 
not  affect  a  case  of  the  present  charac- 
ter It  seems  to  me  that  upon  this  par- 
ticular principle  there  can  be  no  differ- 
ence. Supposing,  for  instance,  it  was 
a  case  of  exchange,  the  same  principle 
would  be  applicable  even  if  money  was 
not  to  pass  on  one  side.  Here  we  have 
a  case  neither  of  sale  nor  exchange,  but 
of  giving  services  in  return  for  the  do- 
li\ery  of  these  shares.  It  seems  to  me 
that  for  the  value  the  plaintiff  puts  on  his 
services  he  now  claims  this  consideration. 
I  am  of  opinion  that  there  is  no  diffi- 
culty in  applying  the  principles  men- 
tioned in  the  authority  cited  to  the  pre- 
•<«nt  case,  and,  if  that  is  so,  I  come  to 
\.\\'\  conclusion  that  the  plaintiff  is  not 
entitled  to  damages  cau.sed  merely  by 
delay,  and  I  ma^  say  that  ik)  case  has 
been  cited  in  which  an^  plaintiff  has  yet 
been  successful  in  obtaming  the  delivery 


"CAPE  TIMES"   LAW  REPORTS. 


221 


of  shares  and  dajfnacres  on  the     gzound 
that  the  shares  "were  "not  delivered  in  due 
time.      It   appears    that    some   damages 
hare  been  tendered   by  the   defendantfl, 
and  Mr.  Schreiiicr    has  explained    that 
there  were  certain    circumstances  which 
influenced  the  defendants,  in  coming'  to 
the  conclusion  that,    although   they  did 
not  know  exactly  on  what  claim  for  dam- 
ages the  plaintiff    might    be  successful, 
probably  some  good  reason  for  claiming 
damages  might  be  made  out,  and  defend, 
ants  were,  therefore,    induced  to  tender 
the  sum  of  £200.     It  is  quite  pofisible  the 
question  may  have  been  raised  whether 
tne  plaintiff  would    not  have   been  en- 
titled to  more  than  the  mere  interest  a 
^pere  morac,  and  might   have  claimed 
interest  from  the   year  1899,    so      there 
seems  to  me  to  have  been  good  ground 
for  apprehension  that  the  plaintiff  might 
have  been  entitled  to  some  damages.  It 
B  not  now  necessary  to  go  into  the  ques- 
tjon  of  what  amount  he  would  have  been 
entitled  to  through  lose  of  interest,  be- 
canse  it  is  quite  clear  that  the  amount 
tCDdered  would  fax  exceed  any  amount 
which  might  be  arrived   at  by   any  cal- 
cnlation.  tinder  the  circumetances,  judg- 
ment most  be   entered  for  the  plaintiff 
nnder  orayers   (a)    and    (c),    and   under 
P™y«f  fh)  judgment  must  be  entered  for 
the  tarn  of  £200  aa  and  for  damages.  As 
It  leenis  to  be  agreed  by  the  parties  that 
a  tender  to  that  effect  was  made  on  the 
»th  February.  1905,  coots  must  be  paid 
by  the  defendants  up  to  that  date,   and 
««t3  incurred   after  that   date  must  be 
paid  by  the  plaintiff. 

[Pfcintirs  Attorneys:  Syfiet,  God- 
lonion  and  Low;  Defendant's  Attor- 
neys:   Van  Zyl   and   Buissinn^.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplet.] 


TRIAL  CAUSES. 


VAN    NIEKEBK    V.    VAN      /        190.5. 

KIEKBRK.  (  Mar.  9th. 

This  was   oji    action    to  oompel   the 
dflfendaoi  to  cariy  out  a  oertain  a^ee- 
ment  wiitih    regard    to   the   division   of 
JMtain  land  in  the  district  of  iMalmes- 
bary    and  to  sign  the  i^apers  neoessary 
for  the  purpose.     The    deolanution    set 
<w  tha-t  the  partree  were  the  undivided 
wne«  ci  certain  Hand  in  the  Maimei»- 
wuy  dbtriot.     In   the   month   of  Jnly, 
^,   they   agreed   to   a  partition,   and 
the    neoeaaaiy    documents  were   drawn 
«g>  and   signed    by    the    pkirefiff,    but 
roe    defendaot     refused    to    oar^    out 
toe  agreement.        In   his  plea   tibe   de- 
fendant stated  that  he  agreed  to  the  par- 
tition of  the  land,  subject  to  the  adjust- 


ment  of  their  rights.  He  was  never  con- 
sulted with  regard  to  this  adjustment, 
and  knew  nothing  about  it  until  the  do- 
cuments were  sent  to  him.  The  mode  of 
division  cut  off  the  water  supply  for  his 
live  stock.  He  was  ready  and  willing  to 
sim  the  document,  provided  the  plaintiff 
g^ve  'him  a  r«i;iht  to  the  wiater,  and  a 
niglit  of  iwiay  of  ninety  feet  wide.  The 
bond'boldeFs  over  Che  property  refused 
U}  a<rree  to  the  partition. 

Sir  H.  Juta,  K.C.  (with  him  Mr.  Rus- 
sell), was  for  the  plaintiff,  and  Mr.  W. 
P.  Buchanan  (with  him  Mr.  D.  Buch- 
anan), waa  for  the  defendant. 

Henry  Thomas,  Elsie's  River  Halt, 
said  he  had  been  connected  with  land 
speculation,  and  made  arrangements  to 
purchase  the  plaintiff's  land  with  a  view 
tr*  cutting  it  up  into  plots.  The  defend- 
ant was  aware  of  the  division.  Certain 
pegs  were  put  down,  showing  the  divi- 
sion. The  defendant  chose  the  portion 
on  which  the  homestead  was  when  the 
division  was  made.  About  a  month  later 
the  defendant  came  to  him,  and  asked 
witness  to  sub-divide,  and  sell  his  land. 
Or.  written  instructions  from  the  defend- 
ant, witness  gave  the  surveyor  authority 
to  sub-divide  his  ground.  It  was  agreed 
that  they  would  keep  the  two  home- 
steads for  their  "educational  scheme." 
One  hundred  and  fiifteen  of  lote  of  the 
defendant's  «rn>und  were  sold,  and  all 
those  of  the  plaintiff's.  Transfer  was 
not  yet  taken,  ais  the  people  would 
not  pay  until  the  siding  was  put  there. 
The  defendant's  portion  was  sold  on  the 
misrepresentation  that  a  siding  was  going 
to  be  placed  there. 

Cross-examined  by  Mr.  Buchanan: 
He  purchased  the  plaintiff's  portion  in 
Jul^,  when  arrangements  were  made  to 
divide  the  two  farms.  The  defendant 
was  with  the  surveyor  all  over  the  farm, 
and  showed  him  how  the  division  was  to 
be^  carried  out.  Not  a  single  word  waa 
said  about  the  water.  Witness  believed 
ho  would  give  £2,000  for  the  ground, 
and  although  that  would  settle  the  case, 
he  was  not  in  Court  to  do  business. 

Alfred  Holme,  Government  land  sur- 
veyor, who  divided  the  farm,  in  July, 
1903,  stated  the  defendant  knew  what 
witness  was  doing.  The  beacons  enclosed 
more  ground  than  the  diagram  showed, 
and  tne  farm  was  about  equally  divided. 
Witness  went  with  the  defendant  and 
another  person  to  fix  a  place  where  the 
siding  was  to  be  on  the  defendant's 
grround.  The^  defendant  must  have 
known  what  witness  was  doing  when  he 
pegged  out  the  other  lots. 

Cross-examined  by  Mr.  Buchanan: 
Thomas  engaged  him  first,  and  witness 
took  it  that  he  was  arbitrator  between 
the  two  brothers  in  dividing  the  land. 
The  defendant  knew  of  the  sub-division 
when  thee  were  working  at  the  siding. 

Thos.  Caimoroes,  engineer,  who  went 
out  to  the  land  in  February  last,  stated 
that  he  had  holes  made  in  the  bed  of  the 


222 


"CAPE  TIMES*'  LAW  REPORTS. 


river  at  the  defendant's  place,  and  found 
water  at  1  ft.  9  in.  and  1  ft.  11  in.  from 
the  surface.  He  concluded  there  was  no 
difficulty  in  gettinflf  water  at  that  place. 

Cross-examined  by  Mr.  Buchanan :  Ue 
had  to  bore  for  water. 

Nicholas  Frederick  van  Niekerk,  plain- 
tiff, said  he  sold  his  half  of  the  farm 
to  Thomas.  When  they  discussed  the 
matter  together,  defendant  said  he  would 
take  the  part  with  the  buildings  on  it. 

[Hop ley,  J.:  Did  your  brother  see 
t'he  >jpegs  showing  the  division?] 

Witness :  After  Mr.  Holme  finished  the 
survey,  I  showed  my  brother  the  pegs. 

Arthur  Wallace  Steer,  plaintiff's  at- 
torney, said  the  defendant  fully  under- 
stood and  agreed  to  the  plan. 

Sir  H.  Jwta  closed  hjs  case. 

The  defendant  stated  that  when  his 
brother  said  he  had  sold  his  part  of  the 
farm,  witness  said :  **  Why  did  you  not 
say  anything  about  it  before,  and  sell 
the  whole  farm?  "  Plaintiff  said  perhaps 
the  buyer  would  take  the  lot,  and  that 
ho  was  getting  £1,500  for  his  part.  Plain- 
tiff said  he  would  have  tne  ground 
divided  into  two  equal  parts.  In  May 
or  June  they  asked  him  to  sign  certain 
documents,  which  he  refused  to  do. 

Abraham  van  Niekerk  stated  that  he 
was  a  brother  of  the  defendant  and 
plaintiff,  and  during  his  father's  time  he 
herded  the  oattle.  In  summer  the 
little  river  was  quite  dry.  There  was 
no  water  in  the  middle  of  the  farm  in 
midsummer. 

Rachel  van  Niekerk.  wife  of  the  de- 
fendant, stated  that  the  plaintiff  told 
lier  he  had  sold  his  portion,  and  the 
defendant  could  chose  what  portion  he 
would  have  about  the  boundary,  and 
witness  said  he  would  give  a  reply  on 
Saturday.  The  first  time  she  saw 
lliomas  was  after  the  surveyor  had 
been  on  the  farm.  'Her  husband  said 
he  could   not  decide  until   Saturday. 

Katrina  Jameson,  sister  of  the  defen- 
dant, stated  ehe  was  present  when  the 
plaintiff  and  Thomas  came  to  the  house. 
The  defendant  said  he  would  consent  on 
Saturday. 

Andries  Loubecher,  a  neighbouring 
farmer  denied  that  water  could  always 
be  got  in  the  bed  of  the  Klapmuts 
River. 

Cross-examined  by  Sir  H.  Juta:  On 
the  side  of  the  defendant's  farm,  he  did 
not  see  a  fountain  in  the  river.  About 
a  month  or  so  ago  he  was  on  the  farm. 

Lamber  Dreyer,  neighbouring  farmer, 
stated  that  in  dry  summers  there  was 
no  water  in  the  Klapmuts  River. 

Cross-examined  by  Sir  H.  Juta:  He 
knew  nothing  of  the  wells  on  the  farm, 
but  he  saw  no  reason  why  thev  should 
not  be  made. 

Mr.  iBuohanan  closed  his  case,  hav- 
ing been  heard  in  «argument  on  the 
factis, 

Ilopley.  J. :  The  declaration  migiht 
have  been  oxoepted  to  as  being  at 
yaiiance  wtith  the  aummone,   but  as  no 


such  exceptioin  was  takem,  it  is  for  me 
to  jvee  whether  I  am  satisfied  there 
wjis  a  contract,  such  as  set  forth  in 
the  docla<ration,  and  'Wiiether  effect 
should  6e  gaven  to  it.  Tiie  proposal 
to  divide  was  one  of  the  fairest  that 
could  be  dervieed,  and  the  defen- 
daunt  »got  his  choice,  and  took  the 
portion  with  the  two  houses.  That  he 
agreed  to  this  line,  as  spoken  of  by  more 
than  one  witness,  I  am  quite  satisfied. 
The  defendant  asked  Thomas  to  dispose 
of  his  portion,  and  the  matter  was  com- 
mitted to  a  document,  which  was  drawn 
up  in  Mr.  Stejer's  office.  The  defendant 
clearly  acquiesced  in  the  sub-division. 
The  defendant  will  be  ordered  to  give 
transfer,  as  agreed  upon  by  him  in 
July.  1903.  aooording  to  the  documerrts 
drawn  up  by  Mr.  Holme,  the  land  sur- 
veyor, and  that  the^  defendant  give 
transfer  of  the  remaining  extent  of  the 
land  held  in  common  by  tnem.  If  there 
be  any  expenses  in  getting  the  remain- 
ing extent  properly  aescribed,  these  ex- 
penses will  be  shared  equally  by  the 
plaintiff  and  the  defendant,  'the '  defen- 
dant to  pay  the  costs  of  this  present 
action,  and  the  plaintiff  to  have  hi« 
vvitnos.ses'  expenses. 


SUPREME  COURT 


FIRST  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maasdobp.] 


TRIAL  CAUSE. 


FOURTR     AND      OTHERS 
MOSTERT   AND    OTHERS 


Will,  joint — Adiation — Condition 
ne  exeat  extra  familiam — Sale 
— Fraudulent  mi8**epre8enta- 
tion. 

This  was  an  action  for  a  declaration 
of  rvghtB.  From  the  pleadings  it  ap- 
peared that  the  plaintiffs  were  ceitain 
of  the  chi>)dren  of  Ooenraad  Fourie, 
and  the  defendants,  one  Mostert 
and  M«re.  Airnien-berg.  who  'was  mar- 
ried out  of  conMnunity  of  property, 
aiid  the  third  defendant,  Ockert  Foil- 
rie.  one  of  the  eons  under  the  will. 
Bv  the  will  and  codicil,  the  nroperty  at 
Oudtshoorn      and    Ladismith  wa»      be- 


"CAPE  TIMES'*  LAW  REPORTS. 


22B 


qneaihed  to  the  ehildrca,  subject  to     a 
certain  condition  that  the    liein     could 
aeU  Cheir  righte    only    to   one   another. 
Under    false  and     fraudulent    mi^refyrc- 
lentations,  the   plaintiffs   were     luduci.'d 
to  giire  their    consent  to  a  saJe   of    Ock- 
erta  share  to  the  defendants,  who     le- 
prespkted  that  the  share  had  been  par. 
chased  for  £3,050,  and  that  he    was  get- 
ting in  exchange  a  farm  worth  £2.700, 
after  all  hia  ^Ockcrt's)     debts  had   uoen 
paid.       Plaintiffs  sought   for  a  devloxa 
tion  of  their  rights,  and  weie  willing  to 
purchase  the  share     inherited    by    O.'k 
ert  for   £1,900,    which   was    the     actual 
once  arranged     upon.      The  defemfani^ 
in  their  plea   denied  that  the  plafntlils 
were  by   fake  and      fraudulent     repre- 
sentation induced  to  sign  the    consent. 
Sir  H.    Juta,   K.C.   (with    him      Mr. 
Upinirton),  was  for  the  plaintiffs      and 
Mr.  Schreiner  (with  him  Mr.      button), 
was  for  the  defendants. 

Johannes  Fourie,  one  of  the  plaintiffs 
stated  that  under  the  testament  *A  his 
parents,  the  heirs  could  only  sell  thoir 
shares  to  one  another.  He  knew  Mrs. 
Annenberg  before  September  last  year 
Moetert  came  to  the  farm  in  September 
lait.  and  told  witness  that  he  had  bought 
his  brother  Ockert's  share.  WitneM 
asked  him  what  right  Ockert  h  id  itH 
to  sell  the  ground,  and  added  thai  if  lie 
did,  the  Jews  would  come  and  take  the 
groond,  and  he  (witness)  would  have  to 
suffer.  Mostert  said  he  had  bought 
Ockert^s  share  for  £3,000,  and  inat  he 
would  nay  ail  his  debts,  and  leave  him 
with  £350  clear.  Mostert  further  said 
he  had  bought  Ockert  a  beautif  j1  farm 
at  Oudtshoom  for  £900.  It  had  a 
magniBcent  vineyard  and  an  orchard. 
Witness  said  he^  would  go  to  Wn  at> 
torney  at  Ladismith  and  make  imiu'ries 
Mostert  said  he  was^  anxious  to  settle 
the  nuitter,  and  at  his  request  w'tneM 
accompanied  him  from  farm  to  farm 
to  see  the  different  brothers.  Eventu* 
•lly  it  was  decided  that  Uie  ground 
Mould  not  be  Sfipportioned  by  a  land 
««rveyor,  but  by  aimitrators.  . .  jtness, 
when  he  heard  Mostret  say  that  he  had 
bought  the  whole  of  the  Ockert's  share, 
and  not  one-seventh,  refused  to  have 
uiTthing  to  do  with  the  matter. 

Cross-examined      hj     Mr.  Schreiner: 

«fone  Ockert     negotiated     with     Mos- 

tert,  he  never  heard  that  he  attempted  to 

>«U  his  share  to  Klaasen.       Wheii  there 

WIS  water,  they  were  all  making  a  gf'od 

Wing  on  the  farm.      If  a  man  had  got  to 

Uie  his  portion  at  the  bottom,  he  woujd 

juffer     more  in  the   dry     season.       He 

had  never  heard  anything  about    Orkert 

trying  to  get  rid  of  his  property.  Ockert 

«Mf    not  heg  of    witness     to    give     his 

consent  to  the  sale.      When  hie  brothers 

w  important  business,  they     coQiuited 

witness     about   it.        Stephanus     came 

home  from  Oudtshoom  one  night,  but  he 

was  not  competent  to  do  business.      The 

following  Sunday    he    was  capan'e      of 

doing  business,     but   although     he    ex* 


pressed  an  intention  of  doing  so,  he 
did  not  go  and  see  Ockert.  Mri  .An 
nenberg's  husband  promised  to  give  fur- 
niture to  Stephanus's  wife  if  Stephanus 
would  sigrn  the  consent.  Witn.'M  was 
the  first  to  sign  the  document  m  £r;jik*8 
office.  He  identified  a  do  uineut 
gimilar  to  that  put  before  him 
on  the  first  oocasi<Mi,  wlien 
Mr.  Brink  made  alterations.  Wbc^n 
Mostert,  witness,  and  his  fstbei- 
v/ere  together,  his  father  might  have 
a<4ked  Mostert,  who  was  going  to  pay 
the  annuity  of  £15  per  annum.  Mos- 
tert said  that  Ockert  would  pay.  Ockert 
did  not  ask  for  assistance  outsido  be- 
cause witness  could  not  pay  the  £1,900 
for  the  farm.  Mr.  Mostert  said,  if  wit- 
ness agreed  to  sell  the  ground,  he  would 
pay  all  the  debts  of  Ockert,  who  would 
have  £350  over.  Ockert  said  that  the 
ground  he  was  buying  was  double  the 
value,  and  much  larger  than  the  ground 
ho  was  selling.  Ue  did  not  advise 
Nicholaas  to  sign  the  consent.  Witness 
said:  "I  wonH  sign  anything;  you  can 
do  what  you  like."  He  did  not  help 
Mostert  to  get  the  other  brother*!*  signa- 
tures. 

He-examined  by  Sir  H.  Juta:  If  he 
could  buy  Ockert  s  share  for  £1,900,  he 
would  have  no  difficulty  in  selling  it  at  a 
higher  price. 

Frednck  Ellis,  brother-in-law  of 
Johannes  Fourie,  stated  that  in  Septem- 
ber last  year  he  was  in  Johannes  Fourie's 
farm.  He  was  present  at  the  conversa- 
tion between  Mostert  and  his  brother-in* 
law.  Mostert  told  the  last  witness  that 
he  had  bought  Ockert  Fourie*s  ground, 
and  Johannes  t>aid  he  would  not  sign 
his  consent.  Then  Mostert  road  a 
document.  Johanner^  posiitively  refused 
to  sign  the  document.  Mostert  said 
he  had  given  £3,500  for  the  ground, 
and  told  Johannes  that  he  had  pur- 
chased for  Ockert  a  fine  farm  at 
Oudtshoom.  Mostert's  explanation 
about  a  bargain  which  witness  could 
not^  understand  waa  that  ho  was 
anxious  to  clear  Ockert  of  debt,  and 
place  him  on  a  good  footing. 

Cross-examined  by  Mr.  Schreiner: 
Johannes  Fourie  was  not  willing  to  sign. 
He  heard  all  the  conversation,  but  some- 
thing might  have  escaped  him. 

Louis  Fourie,  another  plaintiff,  in  the 
case,  gave  corroborative  evidence  of  the 
transaction,  as  set  forth  by  his  brother, 
with  the  exception  that  he  valued  Ock- 
ert's  share  at  £4,000. 

Daniel  Stokes,  carpenter,  of  Oudts- 
hoom, who^  had  formerly  been  farming 
in  the  district,  stated  that  he  knew  the 
plaintiff's  farm.  He  was  there  last  Sep- 
tember, doing  some  work,  when  Mostert 
came  on  the  farm  (m  Saturday,  24th,  and 
wanted  a  paper  signed  by  Louis  Fourie, 
etating  «faet  he  was  buying  Ookert's 
e^hare.  (Mostert  said  to  Louis:  ''Now, 
Louis,  don't  be  foofieKh,  oome  and  sign 
the  pai^r.'*  Louie  said  he  wanted  a 
sub-a^'ided   portion   that   miiat  be   ai^r- 


93& 


"CAPB  TIMES"  LAW  REPORTS. 


veyed.         Louis  told    his  brother    that 
tboy  should  huj   tJhe  eharo    thom-solvcs. 

OoKS-exaniTned  by  Mr.  Schreinor :  He 
wan  not  rol«te<l  to  tlio  partjcs.  The 
papor  was  read  out  after  ho  canw  into 
the  house.  It  wan  stated  in  his  pres4Mico 
by  Louis  Fourie  that  tlicre  was  the  name 
of  a  Jew  in  the  paper,  and  Mostert  ex- 
plained that  by  the  fact  that  he  had  to 
gfet  £800  off  Minnie  Annenber^. 

St«phanus  Fourie,  one  of  the  plain- 
tiffs, stated  that  he  saw  Mostert  about 
six  o'clock  on  the  evening  of  the  24th 
September  at  the  farm.  Mostert  want- 
ed witness  to  sign  the  consent  paper, 
but  witness  refused  to  do  so.  Mostert 
came  back  later  on,  and  endeavoured  to 
impress  witness  with  the  beautiful  farm 
he  had  bought  for  Ockert  at  the  other 
side  of  Oudtshoom,  and  stated  that  he 
had  bought  Ockert *s  share  for  £3,050, 
and  the  other  farm  would  cost  £2,700. 
Next  morning,  Mostert  renewed  the  ap- 
plication, ana  witness  told  him  to  go 
away,  as  he  would  sign  nothing.  Ulti- 
mately witness  gave  his  consent,  but  if 
he  had  known  that  the  purchase  price 
was  £1,900  instead  of  £3,050  he  never 
would  have  signed  it.  He  was  still 
ready  to  buy  Ockert's  share  for  £1,900. 

Cross-examined  by  Mr.  Schreiner:  He 
had  £100  in  cash  at  home,  and  130 
ostriches  on  the  farm.  Witness  was  an 
insolvent.  Previous  to  the  24th  Sep- 
tember, witness  saw  Joseph  in  Oudts- 
hoorn,  but  Joseph  did  not  tell  him  that 
the  farm  at  Oudtshoorn  which  Mostert 
had  bought  was  a  bad  one.  When  Mos- 
tert and  Annenberg  came  to  the  farm 
he  did  not  tell  them  that  he  had  seen 
Joseph  the  previous  day  and  talked  the 
matter  over  with  him.  He  was  fined 
for  malicious  injury  to  property  by 
breaking  through  the  gates  on  Mostert's 
property. 

Re-examined  by  Sir  H.  Juta:  His 
estate  was  voluntarily  surrendered.  He 
had  been  carrying  on  farming  ever  since, 
and  was  a  far  better  farmer  now  than 
ever. 

Johannes  Mostert,  brother-in-law  of 
the  plaintiffs,  stated  that  the  defen- 
dant Mostert  came  to  his  farm  with  a 
paper  on  the  morning  of  the  24th  Sep- 
tember. The  defendant  asked  him  to 
sign  a  document  stating  that  he  had 
bought  Ockert's  share.  Witness  re- 
fiised  to  sign  it.  The  defendant  told 
him  ho  bought  Ockert's  share  for 
£3,050.  Eventually  he  agreed  to  sign 
the  paper  when  lie  saw  the  names  of 
the  others  on  it.  If  witness  had  known 
that  the  price  was  £1,900  he  would  not 
have  signed  the  document.  He  yalued 
Ockert's  share   at   £3.000. 

Cro^s-examined  by  Mr.  Schreiner :  His 
wife  was  not  Coined  as  one  of  the  plain- 
tiffs. The  defendant  did  not  call  to 
see  him  on  the  22nd  September.  Wit- 
ness did  not  send  the  defendant  to 
Johannes  first,  stating  that  whatever 
Johannes  did  he  (witness)  would  do  like- 
wi-a. 


Paul  Stophan  Klassen  stated  on  the 
lift  November  last  year  he  went  to 
Johan  Smit's  place  at  Oudtshoom. 
There  wore  between  five  and  six  morgen 
of  arable  land.  There  would  be  about 
throe  thousand  nine  hundred  vines  in 
the  vineyard. 

Sir  H.   Juta   closed    his   ca.sc. 

Jacobus      Mostert,    defendant    in    the 
case,  stated  that  on  15th  September  two 
options,  one  for  £1,000  and  another  for 
£2,000,  were  obtained  by  witness.      The 
contract    that    was   sub^equentlv    made 
was  for  the  option  on  the  whole.       On 
the  17th   September   he   got   an   option 
from    Mr.    J.    J.    Smit    at    Oudtshoorn. 
The  option  mentioned  £900  as  the  pur- 
chase price  of   Smit's  property.       Wit- 
ness went  out  to  Smit's  farm  with  Ock- 
ert,  and   after   looking  over   the     farm 
agreements  were  come  to  between  wit- 
ness,   Ockert,    and   Smit.       Next   morn- 
ing, alonf^  with  Ockert  and  Annenberg 
he  went  into  Attorney  Theron's  office, 
and^  had  the  deeds  drawn  up  from  the 
options.        The    documents    were    read 
over   to  Ockert,    and   everything       was 
dearly  explained  to  him.       It  was  only 
after  the  aocuments  had  been  drawn  up 
that  he  discovered  the  conditions  of  the 
will.       The  attorney  dreiw  up  the  con- 
sent paper,  and  Ockert,  Annenberg,  and 
witness   went  out  to   the   farm.       W^it- 
ness  told  Mostert  that  Ockert  got  £1,900 
for    the    farm,    and    that    another   farm 
was  to  be  bought  for  him   for   £1,500. 
Mostert  told  witness  to  go  to  Joh&nnes 
first,    and   if   he  signed      he     (Mostert) 
would  sign  also.       Witness  also  saw  the 
plaintiffs    father,  and  talked  the  matter 
over   with    him.       When   witness      saw 
Johannes  on   the  morning  of  the  24th 
he  seemed    to   know   all  about   it,    and 
asked    about   Ockert's    debts.       Witness 
told  him  Ockert  would  get  £350  to  settle 
his  debts.       Witness  neyer  said  that  he 
was  paying  £3,060  for  the  ground,  nor 
did  he  say  t>hat  £2,700  was  to  be  paid 
for   Ockert's   new   farm.       Witness   did 
not  describe  the  farm  as  stated  by  the 
plaintiffs.       They   seemed    to   know    all 
about  the  transaction.       Johannes   was 
not    willing  to   sigrn    at    the    time;    he 
wanted  to  see  Becker,   an  attorney     at 
Ladismith,  first.  The  old  man's  attitude 
was  taken  up  chiefly  in  respect  of  the  an- 
nuity of  £15  per  annum.       It  was  sug- 
gested by  Johannes  and  his  father  that 
the  farm  should  be  divided  by  arbitra- 
tion.      The   pencil      alterations   on  the 
con  Rent  paper  were  made  by  Mr.  Brinck 
on   the  suggestion   of  Johannes  provid- 
ing  for  the  division      by      arbitration. 
When  Mr.   Brinck  read  over  the  docu- 
ment,   Johannes   expressed   his   satisfac- 
tion,  and  signed  it.      The  only  troul)lo 
in   getting  Louis   to   sign    was   that    he 
was  anxious  to  have  a  surveyor  instead 
of    dividing  the    farm    by    arbitration. 
Witness  paid  off  £350  to  settle  Ockert's 
debts.       Johannes    helped    him    materi- 
ally to  get  the  signatures.       Stephanus 
had  l)een  very  adverse  to  signing,  and  it 


"OAPB  TIMES"   LAW  REPORTS. 


226 


WM  only  when  tbo  suite  of  furniture 
WIS  promised  to  "M-ts.  Fourie  that  he 
igTped  to  sign.  Xhe  farm  was  di Tided 
ia  die  course.  At  the  time  of  the 
purchaee  he  thouc^ht  at  £1,900  the  farm 
wu  a  good  bargain,  but  he  did  not 
think  fto  now. 

CroM-exaoiined   by  Sir  U.  Juta :   Wit- 

Mn  thought  tbe  value  of  Ockert's  shara 

wu    about     £1,800.       Witness    was     a 

&MCulatoT  in   land.        It  was  not  a   big 

MOW  to  him  when  he  heard  that  he  had 

to  obtain   the    peraiiasion   of  the  other 

BiembeTE  of  the   family.     He  knew   per- 

fectly  well   that    the  orothers  would  bo 

very  anxious  to  buy   Ockert's  share  for 

£1.250,  which  was  really  the  amount  he 

was  paying  for  it,  when  Smit's  property 

wa^  counted  as  a  joint  transaction.     He 

wcMild  not  have  told  the  brothers  if  they 

had  asked  him  what  he  paid   Smit  for 

his  property.     The  brothers  were  not  in 

the  least  curious   to  find  out  what  sort 

of  procerty  Smit'fi  was. 

Jacobus  Mostert,  under  croes-examina- 
tion  continued,  stated  that  he  was 
aiixioufl  to  get  the  consent  paper 
signed  before  Monday  as  Joseph, 
to  whom  the  Fouries  owed  money, 
might  come  on  the  scene  and  trv 
to  get  possesion  of  the  ground. 
Joseph's  idea  was  to  lend  them  plenty 
of  money,  and  force  them  to  be  in - 
>olTent.  He  was  not  afraid  that  Joseph 
would  offer  a  better  price.  Witness 
vts  not  anxious  to  get  possession  of 
^  land  b^ore  anjr  question  was  asked, 
j^  did  not  think  it  necessary  to  bring 
Ockert,  w4k)  had  tried  to  get  rid  of 
his  land,  to  his  brothers  in  order  to  in- 
duce them  to  give  their  consent.  Ock- 
<*rt  was  never  present  at  any  of  the  in- 
terriews  when  the  brothers  were  re- 
luctant about  signing  the  consent  paper. 
If  Klassen  said  witness  told  him  he 
was  going  to  give  £3,050  for  Ockert's 
farm  it  was  not  true.  Stephanas  told 
vitneis  that  he  (witness)  nad  hum- 
DQSged  his  brother  by  selling  him 
worthless  ground.  Witness  told  him 
It  was  not  so.  The  terms  for  the  pur- 
chase of  Smiths  farm  was  a  bond  of 
*W  and  the  rest  in  cash. 

Re-examined  by  Mr.  Schreiner:  He 
spoke  to  the  wives  of  the  plaintiffs 
woat  the  matter,  and  three  of  them 
were  in  court  at  present. 

Vr  Annenberg,  husband  of  the 
>0cond  defendant,  stated  that  he  went 
with  Ockert  to  Smit's  farm.  The  sale 
wu  concluded  with  Ockert  apart  from 
Smit,  and  then  they  saw  Smit,  and  the 
*«e  was  arranged.  Ockert  was  quite 
*ohe7  when  the  documents  were  read 
ojer  in  the  attorney's  office.  It  was 
sfter  the  deed  of  sale  was  drawn  up  that 
he  heard  of  the  restriction  in  the  will. 
Stephanus  said  that  he  had  been  to 
Joseph's,  and  knew  all  about  it,  and 
mused  to  sign  the  oonsent  paper. 
Witness  explained  that  Ockert  would 
be  insolvent  in  a  few  months,  and  when 
he  explained  to  Siephanus  his  own  posi- 


tion he  got  a  bit  annoyed.  Not  a 
word  was  said  about  the  new  farm  that 
Ockert  was  to  get.  There  was  no  men- 
tion of  the  price.  Mrs.  Fourie  said  she 
would  talk  to  her  husband  if  witness 
would  make  her  a  present  of  a  suite 
of  furniture.  Witness  agreed  to  that 
in  order  to  save  time.  Stephanus  then 
agreed  to  sign  the  paper.  Stephanus 
was  afraid  that  his  property  would  be 
cut  into  a  seventh.  The  business  had 
been  quite  straightforward  throughout. 
In  all  £360  was  paid  in  respect  of  Ock. 
ert's  debts.  There  was  never  a  word 
said  to  Paul  Klassen  about  the  price 
of  the  farms.  The  only  question  was 
that  by  a  mistake  of  the  attorney  the 
document  was  erroneously  drawn,  and 
the  pUiotiffs  said  that  the  defendant 
had  purchased  a  seventh  of  Ockert's 
share,  which  would  be  a  seventh  of  a 
seventht  instead  of  a  seventh  of  the 
whole.  When  Mr.  Bink  asked  the 
heirs  if  they  objected  on  the  ground 
of  misrepresentation  there  was  no  re- 
ply from  them. 

Cross-examined  by  Sir  H.  Juta:  He 
was  very  much  surprised  to  hear  of 
the  misrepresentations.  His  brother- 
in-law  was  a  very  "  bad  hat  "  ;  he  was 
a  gankbler.  His  brother  was  in  court, 
ana  he  challenged  him  to  take  an  ac- 
tion against  him. 

He  included  in  his  furniture 
business  the  sale  of  mules  and 
speculation  in  land.  Some  people 
might  call  that  gambling^  but  he 
drew  the  line  at  cards.  Witness  ob- 
tained about  £800  from  another  busi- 
ness, and  put  it  into  this  transaction  in 
his  wife's  name.  His  business  was  in- 
solvent for  about  £6,000,  and  there  was 
thai  amount  of  debt  about  a  couple  of 
months  ago.  His  only  creditor  was 
aware  that  he  was  taking  £800  out  of 
the  estate  to  buy  property  for  his  wife. 
He  expected  the  Court  to  believe  that. 
On  the  8th  October  he  put  Ockert's  os- 
triches in  the  pound ;  in  all  there  were 
about  thirty-four.  Relations  were  strain- 
ed when  Johannes  came  up  with  a  stick 
to  prevent  him  imj[>ounding  Ockert's  os- 
triches. His  religion  forbade  him  to 
drive  on  a  Saturday  if  he  oould  possibly 
avoid  it,  and  he  did  not  do  any  business 
ou  the  Saturday :  it  was  Mostert  who  did 
the  busiue&s.  He  denied  that  the  whole 
transaction  of  the  furniture  was  his  own, 
and  that  the  introduction  of  his  wife's 
name  was  a  blind. 

He-examined  bv  Mr.  Schreiner :  When 
be  made  the  advance  to  his  wife  he 
never  dreamt  of  insolvency.  His  liabili- 
ties would  amount  to  about  £8,000,  and 
his  assets,  which  consisted  of  stock-in- 
trade  and  outstanding  debts,  amounted 
to  about  £7,500.  There  would  be  a  de- 
ficiency of  about  £500  in  his  estate.  His 
only  creditor — Mr.  Wallace — knew  all 
about  the  transaction  of  taking  money 
out  of  the  estate. 

Carl  Meiring,  landed  proprietor,  of 
Oudtshoorn,    stated   tliat    he   was  asked 


226 


*i 


CAPE  TIMES"   LAW  REPORTS. 


by  the  Fouries  to  come  in  to  divide  the 
farm.  Witness  measured  the  different 
areas,  and  awarded  Ockert  about  sixteen 
morgen.  When  Brink  read  out  iiu^ 
deeds,  not  one  of  the  plaintiffs  said  a 
word  about  the  amount  of  £3,050,  nor 
did  they  6ay  anything  about  £1,9()0  be- 
inp  too  little.  Ho  might  have  heard  of 
misrepresentation  at  the  meeting. 

Cross-examined  by  Sir  H.  Juta:  It 
was  when  he  received  a  letter  from  Mos- 
tert  and  Annenberg  that  he  concluded 
the  dispute  about  the  division  on  the 
13th  was  settled. 

Re-examined  by  Mr.  Schroiner:  He 
had  no  doubt  that  Mr.  Brink  read  out 
the  prices  of  £1,900  and  £1,S00.  Not  a 
single  one  of  the  heirs  even  said  that  the 
defendants  had  told  him  that  Ockert  was 
getting  £3,050  for  his  ^hare. 

Johan  Anderson,  farmer,  of  Oudts 
hoom,  who  acted  as  arbitrator  in  the 
division  of  the  farm,  stated  that  Ockert 
gave  up  his  part  of  the  farm  in  witness'b 
presence.  From  witness's  experience  he 
valued  the  land  which  belonged  to  Ock- 
ert at  £1,900.  It  was  an  out  of  the  way 
price  to  speak  of  £200  a  morgon,  for  the 
land.  On  Ockert's  farm  there  were  not 
fifty  bird*. 

Cross-examined  by  Sir  H.  Juta:  Wit- 
ness was  a  step-brother  of  Mostert.  He 
knew  of  no  land  in  the  Oudtshoorn 
fetching  £200  per  morgcn.  He  knew 
nothing  of  the  farmers  endeavouring  to 
extract  very  fat  prices  out  of  the  Gov- 
ernment. 

Charles  Theron,  attorney,  of  Oudts- 
hoorn.  stated  that  on  the  22nd  Septem- 
ber, he  heard  for  the  first  time  of  the 
sale  of  Ockert's  land.  Mostert,  Annen- 
berg, and  Ockert  called  at  hiti  office,  and 
witness  drew  up  the  documents  oontain- 
lujj  the  prices.  There  wa«  no 'sugges- 
tion of  such  a  price  as  £3,050.  Nothing 
was  said  of  the  will  at  that  time.  When 
ho  heard  of  the  conditions  of  the  will,  he 
draw  up  a  consent  paper,  and  handed  it 
to  Mr.  Mostert.  Witness  held  Mrs.  An- 
nenberg*6  power  of  attorney,  and  also 
that  of  Ockert  to  pay  out  certain  moneys 
amounting  to  £350  to  his  creditors.  Ste- 
phanus  told  witness  that  ho  heard  Ockert 
had  sold  his  land,  and  that  he  would  re- 
fuse to  sign  transfer. 

Cross-examined  by  Sir  H.  Juta:  Wit- 
ness got  the  money  from  Annenberg  and 
Mostert  to  pay  Ockert's  debt».^  The 
money  came  from  Annenberg  direct  to 
nay  Smit.  Stephanus  did  not  say  that 
nis  brother  had  been  "  humbugged." 
The  refusal  stopped  short  because  the 
defendants  did  not  want  the  plaintiffs  to 
know  what  they  paid  Smit. 

Mr.  Sohreiner  closed  his  case. 

Cur.    Adv.   Vult. 
Pottea  (April  17th). 

Maasdorp,  J.:  It  appears  from 
the  evidence  adduced  in  this  oaae  that 
on  the  12th  dav  of  November,^  1881, 
Coenraad  Josephus  Fourie  and  his  wife 
Martha  Maria  Fourie,  wiio  were     mar- 


ried in  community  of  property  made  a 
joint  will,  to  which  a  oodioil  is  an- 
nexed by  which  they  bequeathed  to 
their  joint  children  already  begotten, 
or  still  to  be  begotten,  of  their  marriage, 
and  in  case  of  predeoeaee  of  one  or 
more  of  them,  then  their  lawful  de- 
scendants, all  the  landed  properW  be- 
longrin^  to  their  estate  at  their  oeath, 
the  heirs  having  the  right  to  sell  thetr 
ehares  or  rights  to  one  another,  only  so 
that  these  lands  shall  remain  in  the 
possession  of  the  heirs  or  their  lawful 
descendants  only.  Thereafter  Martha 
Maria  Fourie  died,  but  Ooenraad 
Josephus  Fourie  is  still  living.  He 
seems  to  have  adiaited  under  the  will 
and  codicil,  and  the  inheritance  and 
bequests  become  vested  in  the  heirs  and 
legatees  m  terms  of  the  will  and  oodioil. 
The  chal<fren  interested  in  the  land  be- 
queathed under  the  codicil  cue  the 
plaintiffs,  their  sister  Isobella  Johatma 
Mostert,  and  the  defendant  Ockart  Jo- 
sephus Fourie.  After  the  death  of 
their  mother,  the  children  were  per- 
mitted by  their  father  to  take  posses- 
sion of  the  land  bequeathed  to  them 
in  separate  but  undivided  portions,  on 
condition  that  each  of  them  paid  him 
an  annuity  of  £15  in  consideration  of 
hie  havmg  given  them  the  immediate 
occupation  of  the  land.  Tho  several 
heirs  acoordinglv  took  poaseasion  of 
their  separate  portions,  and^  ramained 
in  occupation  thereof  until  the  year 
1904.  On  the  22nd  of  September  of 
that  year  Ockert  Fourie  entered  into 
an  agreement  with  Minnie  Annenberir, 
married  in  community  of  property  to 
Hirsch  Braur  Annenberjj,  and  Ja- 
cobus Petrus  Mostert,  two  of  the  de- 
fendants, by  which  he  sold  to  them  the 
land  inherited  by  him  under  the  above- 
mentioned  codicil  for  the  sum  of 
£7.900.  in  lieu  of  £1,500,  of  which  the 
seller  accepted  land  held  by  the  pur- 
chaser under  an  option  from  one  Jo- 
hannes J.  Smith;  £350  was  to  be 
paid  i-n  cash,  and  £50  in  value,  re- 
prasented  by  a  boiler  and  other  artioMs. 
Possession  was  to  be  taken  on  the  loth 
October,  1904,  and  transfer  to  be  given 
as  soon  as  posable.  The  purchasers 
also  undertook  to  pay  the  annuity 
of  £15  payable  by  Ockert  to 
his  father.  When  this  purchase 
took  phoe,  the  purchasers  were  not 
aware  of  the  reetrictions  upon  the  sale 
of  the  property  contained  in  the  codicil. 
When  they  discovered  that  the  sale  could 
not  go  thw>ugh  without  the  consent  of 
the  other  heirs,  they  set  about  obtainins: 
it,  with  the  result  that  upon  the  24th 
of  September,  1904,  they  became  the 
holders  of  a  document  signed  by  all  the 
heirs,  in  which  the  heir?  gave  their  con- 
fsent  to  the  sale  of  the  property  mentioned 
to  Winnie  Annenberg  and  Jacobus  Mos- 
tert. saying  they  had  no  desire  to  take 
over  or  buy  the  proj^n^rty  in  t-emns  o' 
the  will  of  their  parents.     Upon  the  cjr- 


"CAPE  TIMES"  LAW  REPORTS. 


2t\ 


Gumstences  attendizifi^    the   execution   of 
this  document  depend   the  issues  raised 
between  the  parties    in   this  case.      The 
plaintiffs  alWo    that    their  consent  was 
ehtained  by  take   and   fraudulent  repre- 
wiitation*  made   by  the  defendant  Mos- 
tert,  acting  for   himself  and  hie  oo-pur- 
chaaer,   Winnie    Annenberg,    and    they 
pray  that  the  said  written  consent  may 
be  declared  null  and  void,  and  that  the 
defendants  may    be    ordered    to   deliver 
up  to  them  the  «aid  document ;  and  they 
aao  ask  for  an  order  restraining  the  said 
Ockert  Josephus    Fourie    from    passing 
and  the  other   defendants   from   taking 
transfer  of  the  property.    The  defendantu 
(Mostert  and  Annenberg)  deny  that  any 
false  and  fraudulent  representations  were 
made  to  induce    the   plaintiffs   to   give 
their  consent  to  the  sale.      The  alleged 
Topresentations  are  set  forth  in  the  eighth 
paragraph  of  the  declaration,  and  are  the 
[oUovnng:     That     the    defendants     had 
bought  Okert's   share   in    the   land    for 
»p,050,  and  had  sold  to  him  the  property 
of  Smith  for  £2,700,  leaving  £350  to  re- 
lease Ookert  from  his  financial  embarrass- 
njents,  and  that  Smith's  farm  consisted 
of  20  morgen  arable  land,   400  morgen 
grajmg  land,  and  a  large  vineyard  and 
orchard,  whereas  the  purchase  price  was 
m  fact  only  £1,900,  to  be  paid  upon  the 
terms  already   mentioned,    and   Smith's 
farm  consisted  only  of  about  six  morgen 
arable  land  and  70  morgen  grazing  land, 
and  was  worth  no  more  than  from  £600 
to  £700.     It  appeans  that  the  farm  of 
Smith  was  bought  by  the  defendants  on 
yy  27th  of  September,   1904,   for  £860, 
*400  of  which  was  to  go  in  payment  of 
a  bond  on  the  property,  £250  to  be  paid 
in  ca«h,  and   £200   by   a  four   months' 
promissory  note.    The  Divisional  Council 
value  of  Smith's  property  was  £480,  and 
ts  it  is  not  nnfrequently  the  case,  that 
the  Divisional  Council  valuation  is  not 
much  more  than   half   the   true   vaJue, 
It      may       be       taken       that       £850 
J»    a    fair     price      for      the      land. 
The  def<vidant  Mostort  said  in  evidence 
ifcat  at  the  time   h©     bought     Ockert's 
ground  he  considered    it      worth      from 
£2,100  to  £2,200.     In  that  case  the  de 
fendants  obtained  a  property  worth  up- 
wards of  £2.000  for  one  valued  at  £850. 
a  cash  payment  of  £350  and  £50  value 
m  goods,  making  a  total  of  £1.250.  Thifi 
was  an  <-xrellent  bar^rain  for  them,  and 
the  plaintiffs  say  it  was  even  better  than 
that   because    Ockert's    property,     they 
»y.  is  worth  £3,000.     Tlie   plaintiffs  do 
not  question   the   amount   of  the   actual 
pnoe  given  m  standing  at   £1,900,   and 
ooiwequently   the  Court   has    not   to   go 
into  the  question  whether   persons  who 
have  a  right  of  pre-emption  can  object 
to  the  value  placed  upon  property  form- 
ing part  of  the  purchase  price  with   re- 
spect to  which    they   have    to      exercise 
their  option.      It  is  quite  obvious   that 
•pch  persons  may   be   defeated  in  their 
rights  if  the  purcba.se    price    is   in   this 
manner    fictitiously    increased.    As   be- 


tween the  parties  it  must  be  taken  that 
Smith's   property    represents    £1.500    of 
the  purchase  price  of  Ockert's  land,  but, 
taking  it  at  that,   the  defendant  expect- 
ed   to   make  a  very  good    thing  out  of 
the  transaction,   when,  unfortunately  for 
them,    they  discovered   that  unless   they 
obtained   the  consent  of  the  other  heirs 
they  would  be  disappointed  in  their  ex 
peotations.     On  the  other  hand,  it  is  per- 
fectly clear  that  the  plaintiffs  were  very 
averse   to      having     strangers      coming 
amongst  them  on  to  the  land,  and  woula 
have  done  everything  in  their  power  to 

Srevent  it.     It  is  not  pretended  by  the 
efendants   that    the  plaintiffs    gave   up 
their  right  of  pre-emption,  because  they 
were   indifferent  in  the   matter,   on  the 
contrary,  Mostert  admits  that  he  had  the 
greatest  trouble  to  induce  them  to  give 
their  consent.      The  position  was,  there- 
fore, this,  the  plaintiffs  were  anxious  to 
keep  the  defendants  out  of  the  property, 
and  there  was  no  reason  to  believe  that 
if  they  could  have  done  so  by  buying  the 
property  for  them.selves  at  a  reasonable 
price  thev  would  have  been  unwilling  to 
d3  it.    There  is  no  doubt    that  the  de- 
fendants upon  their  own   admission  had 
bought  the  property  at  a  reasonable,   if 
not   low    figure.       In     law    they    were 
obliged  to  allow  the  plaintiffs  the  option 
of  taking    the   farm    over    at    the   same 
price,  before  they  could  take  advantage 
of  their  bargain,    and    they    must  have 
been  aware  that  if  that  option  had  been 
placed       before       the      plaintiffs,    they 
would        in        all        probability      have 
adopted        the        purchase.        It        was 
under         these        circumstances        that 
Mostert  went  to  the  plaintiffs  to  obtain 
their  consent,  and  it   was  under     these 
circumstances  that  the  plaintiffs  sa^  he 
made  the     false     representations     com- 
plained of.       Now  it  is  quite  clear  that 
the  plaintiffs  were  entitled  to  be  inform- 
ed that  they  could,  if  they  wished,    take 
over  the  property  for  £1,900,     the  price 
actually  agreed  upon  by  the  defendants, 
and  yet  the  defendant     Mostert  admits 
that  he  never  told  them  what     the  price 
was     stipulated  between  them     and  Oc- 
kert.     Mostert  says  the  true  price     was 
not   mentioned       because    the   plaintiffs 
must     have     known  what  it  was,     but 
there  is  no  evidence  that  they  did,  and 
I    fully    believe    their       uncontradicted 
statement  that  they  did  not.      This  find- 
ing has  a  damaging  effect     upon      the 
rest  of  the  defendant  Mostert's  evidence. 
The  price  for  which  the  plaintiffs  might 
obtain  the  property,  in  accordance  with 
their  rights  under  the  oodidl,      was  all 
important  to  them,  and  must  have  been 
a  subject  of  inquiry  bv  them.      I  believe 
the  question  was  raised,  and  the     price 
was  mentioned,  but  not  the  true  price. 
The  issue  raised  was  a  very  serious  one! 
and  counsel  ori  both  sides,    seeing     the 
iinportance  of  it,  subjected  the  opposing 
witnesses   to  very  severe  cross-examina- 
tion.      This  necessarily  occupied  a  con- 
siderable time,  but  it  throws  much  light 


228 


f( 


CAPE  TIMES"  LAW  BEP0BT8. 


apon  the  oaae,  and  as  a  result  has 
ffreatly  facilitated  the  finding  of  the 
Court  upon  the  facts.  The  weight  of 
evidence  upon  the  side  of  the  pfaintiff. 
both  direct  and  circumstantial,  is  so 
orerwhelmin^,  that  I  consider  it  unneces- 
sary to  go  into  a  nice  analysis  of  the 
conflicting  testimonv.  One  would 
imagine  thai  when  Mostert  went  to  see 
the  plaintiffs  to  obtain  their  consent 
ta  the  written  contract  of  sale,  with  the 
terms  <^  which  be  would  have  to  acquaint 
them,  the  most  natural  course  was  to 
take  the  contract  with  them ;  but  this  he 
neglected  to  do.  Not  having  the  docu- 
ment with  him,  the  next  best  thing  was 
to  take  Ookert,  who  was  in  his  com- 
pany on  his  way  to  the  plaintiffs,  with 
him,  to  support  his  application  to  them; 
but  this,  also,  he  neglected  to  do,  the 
result  being  that  he  now  stands  unsui>- 

Scrted  by  documentary  or  other  evi- 
enoe  over  against  all  the  plaintiffs  and 
several  disinterested  witnesses.  One  af- 
ter another,  these  witnesses  narrated 
what  took  place  at  the  interviews  be- 
tween Mostert  and  the  plaintiffs,  and 
there  is  no  doubt  Uiat,  as  compared  wiUi 
the  evidence  of  Mostert,  the  probabili- 
ties are  vastly  in  their  favour.  I  can  see 
no  reason  for  doubting  the  credibility  of 
Ellis.  Claassen,  and  Stokes,  who  are 
wholly  disinterested  in  the  case,  I  cannot 
see  wnat  could  have  induced  the  plaintiffs 
to  withdraw  their  consent  in  October,  if 
they  had  given  it  in  September,  with 
full  knowledge  of  all  the  circumstances. 
Nor  do  I  believe  that  if  they  fabricated 
a  false  case  in  October,  they  could  have 
induoed  meo  like  Ellis,  Claassen,  and 
Stokes  to  support  them  in  it.  These 
are  onl^  a  few  of  the  many  reasons 
that  exist  for  coming  to  the  condusion 
that  Mostert  did,  by  these  false  repre- 
sentations set  forth  m  the  declaration,  in- 
duce the  plaintiffs  to  ^ve  their  consent 
to  the  sale.  The  plaintiffs  are,  there- 
fore, entitled  to  have  it  declared  that 
the  written  consent  obtained  from  them 
under  those  circumstances  is  null  and 
void.  Judgment  is  given  for  the  plain- 
tiffs in  terms  of  paragraphs  (a),  (b),  and 
(c)  of  the  declaration,  tne  plaintiff  de- 
clared a  necessary  witness. 

[Plaintiffs'  Attorneys:  Walker  and 
Jacobsohn ;  Defendants  Attorneys : 
Fairbridge,   Arderne  and   Lawton.] 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplkt.] 


GENERAL  MOTIONS. 


W.    AND    O.    SCOTT    V 
SCARERBANE 


f        19a5. 

(  Mar.  lOtb. 

This  was  an  application  for  a  certain 
rule  fiM*  to  bo  made  absolute,  inter- 
dicting the  respondent,  Antonia  Scare- 
bane,  from  parting  with  a  certain  boat 
lying   in  Taole  Bay. 

The  petition  of  George  Adie  Scott 
stated  that  on  the  17th  August,  1904,  the 
firm  of  W.  and  G.  Scott  entered  into  an 
agreement  with  one  Theodorus  Bouklas, 
by  which  they  undertook  to  supply  the 
said  Bouklas  with  timber  of  the  value  of 
£48,  for  the  purpose  of  building  a  boat. 
Oil  certain  terms  and  conditions.  The 
boat  was  to  be  built  and  finished  within 
a  certain  period  b^  Bouklas,  but  he  was 
not  to  have  the  right  to  sell  or  dispose 
of  the  said  boat  until  he  should  have 
paid  Messrs.  Scott  in  full  for  all  the  ma- 
terials supplied  by  them.  Up  to  the 
present,  Bouklas  had  paid  nothing  for 
the  said  materials.  The  deponent  was 
informed  that  Bouklas  had  sold  and  de- 
livered the  said  boat  to  Antonio  Scarer- 
bane  (the  respondent)  for  £80.  Bouklas 
had  disappeared  from  his  dwelling  house, 
and  his  wnereabouts  could  not  be  traced. 

The  answering  affidavit  of  the  re- 
spondent stated  that  he  purchased  the 
boat,  Angolo  Custodier,  from  Bouklas, 
for  a  sum  of  £85.  In  the  agreement  of 
sale,  Bouklas  &aid  that  the  boat  was  his 
own  personal  property,  unmortgaged, 
and  free  from  all  encumbranises.  As 
regarded  this  boat,  he  knew  that  a 
portion  of  the  wood  was  old. 

A  replying  affidavit  of  an  employee 
of  Bouklas,  stated  that  he  knew  the 
wood  for  the  boat  in  question  had  been 
obtained  from  W.  and  G.  Scott. 
Counsel  then  formally  moved  for  the 
rule   nut   to  be   made   final. 

Mr.  Bisset  for  applicants,  Dr.  Greer 
for  respondent. 

•Dr.  Greer  argued  that  there  was  bon^z 
fide  ignorance  on  the  part  of  the  re- 
spondent that  Messrs.^  Scott  had  any 
property  in  the  boat  in  question.  This 
was  a  sale  of  wood  which  was  afterwards 
transformed  into  a  boat ;  the  whole  tran- 
saction was  different  from  a  transaction, 
sav.  in  a  hoiee.  ^  He  submitted  that  the 
innocent  party  in  this  case  should  not 
be  made  to  suffer.  There  was  a  certain 
amount  of  negligence  on  the  part  of  the 
applicants  in  not  taking  over  possession 
of  the  boat,  and  giving  notice  to  the 
small   world   at   the  beach   that   it  was 


"CAt>E  TtnlES"  LAW  REPOtlTS. 


22^ 


tbfiir  property.  W.  and  G.  Soott  were 
the  penoDS  who  oue^ht  to  have  looked 
after  this  person  who  had  disappeared. 

Hoplej,  J. :    If    the    respondent  were 
absolutely    an    innocent   purchaser      in 
this  matter  then  he  is  very  much  to  be 
oommiserated ;    but   he   has   the  misfor- 
tune o!  having  bought  another  person's 
property  from  one   who  seems  to  be  a 
dishonest  man,    and    he    has    to    suffer 
pecuniarily.    I    am    afraid    there   is    no 
course  open  to  mo  except  to  make  the 
rule  nin  absolute,  with  leave  to  the  re- 
spondent to  bring  an  action  during  next 
term,  costs  to  abide  the  result  of  such 
action  if  instituted,  failing  such  action, 
respondent  to  pay  costs. 


Da  FRBKZ  V.  TBKBLANCUE. 

.Mr.  Gardiner,  on  behalf  of  the 
plamtiff,  moved  as  a  matter  of  urgency 
for  the  removal  of  the  trial  to  the  next 
Circuit  Court  at  Oudtshoorn.  Defend- 
ants attorney  consented  to  the  applica- 
tion. 

The  cause  waa  ordered  to  be  removed 
lor  trial  as  prayed. 


FI8HCB  V.  ISAACS  AND  PARRY. 

Thi*  ^*>  a  motion  for  an  order 
requiring  the  respondents,  Albert  Isaacs 
«M  Edwin  Parry  to  pay  into  Court  the 
«uni  of  £300,  being  the  deposit  stipulated 
tor  and  paid  by  one  Benny  Yates,  as 
P5"*iM«r  of  certain  licensed     premises, 

u'  ™^»*'«'«  Hotel,  St.  John-street,  of 
Jjh«h  applicant  was  the  leasee,  and  for 
toe  attachment  of  certain  money  ad  fun- 
vandam  juHsdittionem^  pending  an  ac« 
tjon  to  be  brought  by  ap|]Aicant  against 
the  said  Yates  for  completion  of  the  con- 
tnct  of  purchase.  The  petition  set  out 
that  the  purchaser,  Yates,  had  left  the 
jurisdiction,  petitioner's  impression  being 
that  he  had  gone  to  the  Transvaal.  The 
petitioner  had  given  a  cheque  to  Isaacs 
on  account  of  the  purchase-price,  and  the 
latter  had  cashed  the  cheque  and  divided 
Jhe  money  between  Parry  and  himselL 
Inc  purchase-price  was  £d,150. 

An  answering  affidavit  by  the  ro- 
jr^ndent  Parry,  stated  that  he  and 
Isaacs  acted  as  brokers  in  the  transaction, 
waacs  received  a  cheque  from  Yates  after 
the  parties  had  agreed  to  the  sale  and 
purchase.  The  amount  of  the  cheque 
*M  £300.  The  amount  due  on  brokerage 
00  the  sale  was  £400,  and  the  cheque  in 

rtion  was  treated  as  a  set-off  against 
brokerage  that  was  due  and  owing. 
He  denied  that  the  said  sum  was  to  be 
dqjosited  with  the  landlord,  and  said  it 
was  agreed  between  applicant  and  the 
brokers  that  it  should  be  treated  as  a 
set-off  against  the  brokerage.  Deponent 
said  that  the  purchaser,  Yates,  had  not 
left  the  jurisaiction   of  the  Court,  and 


that  he  was,  to  his  knowledge,  residing  at 
Swellendam. 

The  replying  affidavit  of  the  appli- 
cant, John  Fisher,  stated  that  £300  was 
part  of  the  £1,000,  which  was  the  por- 
tion of  the  purchase-price  that  was  to 
be  paid  in  cash.  The  money  was  to 
have  been  deposited  with  some  outside 
person,  and  it  was  never  agreed  that  it 
should  be  treated  as  a  set-off.  Depo- 
nent added  that  the  South  African 
Bioweriee  and  Gourlay,  Gavanagh  and 
Co  would  not  consent  to  the  comple- 
tion of  the  purchase  of  the  lease  and  so 
forth  by  Yates. 

Hopley,  J.  remarked  that  it  did  not 
seem  to  him  that  it  would  be  much  use 
for  applicant  to  obtain  judgment  for  the 
completion  of  the  puronase  if  the  land- 
lords     would   not  recognise  Yates      mm 

Mr.  Searle,  K.C.,  for  applicant,  Mr. 
Alexander  for  respondent. 
After  hearing  Mr.  Searle  in  argument, 
Hopley,  J.:  This  is  an  application 
calling  upon  the  respondents,  who  are 
brokers  in  Cape  Town,  Albert  Isaacs 
and  Edwin  Parry,  to  show  cause  why 
they  should  not  be  ordered  forthwith  to 
pay  into  the  Court  the  sum  of  £300,  b»' 
ing  a  deposit  stipulated  for  and  paid  by 
one  Benny  Yates  as  purchaser  of  the 
Belvidere  Hotel  from  the  applicant 
They  are  also  called  upon  to  show  cause 
whv  the  said  money  should  not  be  at- 
tached, to  found  jurisdiction  in  an  action 
to  be  instituted  by  the  applicant  against 
Yates  for  the  completion  of  the  said 
sale,  or  in  the  alternative,  for  damages 
and  for  forfeiture  of  the  deposit  money. 
Now,  it  appears  that  these  two  brokers 
were  concerned  in  arranging  a  sale  from 
Fisher  to  Yates  of  the  Belvidere  Hotel, 
and  it  seems  perfectly  dear  from  the 
correspondence  that  in  consideration  of 
their  giving  Fisher  the  price  of  £3.150, 
Fisher  was  perfectly  willing  to  pay  tnem 
£400  as  commission.  The  matter  was 
put  through  finally  by  the  brokers  as  be- 
tween Fisher  and  Yates  on  the  13th 
January,  and  on  that  day  Yates  paid  a 
stun  of  £300,  which,  in  the  broker's  note, 
is  described  as  a  "  deposit,"  but  which, 
as  I  read  the  broker's  note,  ought  to  be 
described  as  a  cash  payment  of  £300  to- 
wards the  purchase-price.  To  my  mind, 
when  the  £300  was  paid,  it  passed  to 
Fisher,  and  became  his  property,  and  the 
agreement  of  sale  being  compfeted  and 
Fisher  being  satisfied  and  Yates  being 
satisfied,  it  seems  to  me  that,  prima 
faeie,  the  two  brokers  had  earned  their 
£400,  as  agreed  upon.  I  see  nothing  un- 
natural in  the  statement  of  the  r««pond- 
ents  that  Fisher  agreed  that  they  snould 
take  this  sum  of  £300  in  part  payment  of 
their  commission.  It  seems  to  me  that 
if  Fisher  wishes  to  contest  this  position 
he  had  better  bring  an  action  against  the 
respondents.  I  do  not  see  why  they 
should  be  ordered  to  pay  this  sum  of 
money  into  Court ;  there  is  no  allegation 
that  they  are  men  of  straw.   On  the  other 


230 


"CAPE  TIMES"   LAW  REPORTS. 


handy  tho  application  to  attach  £300  to 
found  jurisdiction  against  Yates,  it  seems 
to  me,  must  fail  on  two  grounds — first 
of  ali  because  it  is  no  longer  clear  that 
it  is  the  property  of  Yates,  and,  second- 
ly, because  1  am  satisfied  that  he  is  out 
of  the  jurisdiction.  It  is  said  that  Yates 
is  in  iSwellendam,  and  if  so  there  should 
be  no  attachment,  whether  the  money 
belongs  to  him  or  anybody  else,  to 
found  jurisdiction,  which  this  Court 
already  has  over  his  person.  It  seems 
to  me  that,  on  all  those  grounds,  the 
application  should  be  refused  with 
costs. 


HARRIS  V.  LEE. 

Ejectment — Rights  uf  joiut  ten- 
aa  ts — Acq  uiesceuce. 

This  was  an  application  for  an  order 
requiring  the  respondent,  Robert  Lee, 
trauding  as  RoL«rt  Lee  and  Co.,  to  so 
adjust  a  oertain  show  c-ase  that  it  should 
no*t  encroach  on  the  front  wall  of  the 
applicant's  premises.  The  petitioner. 
Alfred  Harris,  stated  that  he  was  a 
watchmaker  and  jeweller,  carrying  on 
business  at  78,  Plein-street,  Cape  Town, 
occupying  the  ground  floor  of  a  double- 
story  building.  The  respondeu-t  occu- 
pied the  upper  portion  of  the  adjoining 
premises.  No.  80,  Plein-street,  and  car- 
ried on  the  bufimess  of  a  photographei 
Petitioner  had  a  show  case,  in  which  h? 
desired  to  place  spectaclee,  etc.,  for  sale, 
but  owing  to  the  show  case  of  the  re- 
spondent encroaching  on  his  front  wall, 
it  was  impossible  for  him  (applicant)  to 
put  out  his  show  case.  An  affidavit  by 
Robert  Brown  Morrison  stated  that  he 
was  the  landlord  of  both  78  and  80, 
Plcin-fltreet,  and  that  the  show  case  of 
Messrs.  Lee  and  Co..  photographic 
artists,  encroached  on  the  wall  space  of 
the  apv>licant. 

The  affidavit  of  Robert  Lee  stated 
that  his  show  case  had  stood  in 
this  place  for  some  years,  and  that  a 
show  case  was  there  when  he  took  over 
the  business  from  his  predecessor.  He 
only  claimed  such  enjoyment  of  the  pre- 
mises as  his  predecessor  had  had  for  a 
considerable  time.  Applicant  had  en- 
tered upon  his  tenancy  subsequently  to 
deponed,  who  declared  that  he  had  in 
no  way  encroached  upon  the  wall  space 
of  applicant. 

The  replying  affidavit  of  the  appli- 
cant denied  respondent's  allegations. 
Mr.  Alexander  for  applicant  submitted 
that  it  was  clear,  not  only  from  the 
affidavits,  but  also  from  the  photographs 
put  in  by  the  respondent,  that  his  show 
case  encroached  on  the  applicant's  wall 
space.  The  respondent  occupied  rooms 
upstairs,  and  he  had  no  right  to  exhibit 
on  the  front  wall  of  the  applicant's  shop. 

Mr.  Searle,  for  the  respondent, 
submitted  that  it  was  by  no 
means  clear  what  were  the  rights  of 
the    applicant    in    this    matter.        The 


point  had  often  been  mooted  in  this 
Court,  but  had  neyer  been  decided,  as 
to  what  were  the  rights  of  a  perscHi  who 
came  into  possession  of  certain  pre- 
mises finding  a  state  of  things  there 
which,  to  some  extent,  might  be  held 
to  conflict  with  the  apparent  rights  of 
another  party.  Counsel  urged  that 
the  respondent  had  a  right  to  some  por- 
tion of  the  wall,  so  that  he  was  enaoled 
to  display  his  goods  to  people  in  the 
street.  The  applicant  had  not  shown 
a  clear  right  to  the  portion  of  the  wall 
where  the  respondent  was  exhibitinj^* 
his  show  case  and  where  the  re- 
spondent had  had  a  show 
case  for  five  yeam.  He  contended 
that  the  Court  should  not,  on  motion, 
gi-ant  what  was  really  an  order  of  eject- 
ment, seeing  the  great  hardship  it  would 
bo  to  the  respondont,  who,  for  instance, 
had  put  up  an  arch  that  would  have  to 
be  removed. 

Mr.  Alexander  submitted  that  there 
had  been  no  acquiescence  on  the  part  of 
the  applicant  in  the  acts  of  the  respon- 
dent. The  matter  was  really  now  a 
matter  betwi^en  the  landlord  and  the 
respondent. 

Hopley,  J.,  The  applicant  seeks 
an  order  of  ejectment  against 
the  respondent  on  the  ground  that 
by  means  of  a  certain  show-case 
he  is  encroaching  on  the  street  sur- 
face of  the  party  wall  which  divides  the 
entrance  to  the  premises  occupied  by  the 
respondent  from  those  occupied  by  the 
applicant.  There  seems  to  be  no  doubt 
that  the  respondent  was  a  tenant  some 
time  in  advance  of  the  applicant.  Re- 
spondent's predecebsor  had  been  a  photo- 
grapher, and  he  found  when  he  went 
into  this  place  a  show-case  on  either 
side.  It  was  that  entrance  and  the  show. 
C3se  alongside  which  he  took  over.  For 
seme  time  the  jeweller  seems  to  have 
raised  no  protest,  but  on  the  contrary  he 
set  up  a  glass  frame  on  which  he  painted, 
and  fiet  forth  all  the  various  details  of 
his  busines.s,  and  the  various  depart- 
ments, which  stood  in  between  the  show- 
case and  his  own  shop  window.  His  own 
shop  window  seems  to  be  very  large,  but 
in  1903  ho  wanted  more  room,  and  he 
caused  a  law  agent  to  address  a  letter 
to  the  respondent  calling  upon  him  to 
remove  the  show-case.  The  respondent 
declined,  and  he  seems  to  have  been 
determined  all  along  to  resist  to  the  ut- 
most any  such  demand  on  the  part  of  the 
applicant.  The  applioant  now  conies, 
and  says  that  he  has  a  perfectly  clear 
right,  aiid  that  the  respondent  must  re- 
move his  show-case  lower  down.  I  can- 
not fee  that  he  has  such  a  clear  right, 
or  that  he  has  a  right  at  all.  I  cannot 
say,  for  instance,  that  there  is  not  some 
tsort  of  defence  which  might  not  be  raised 
on  the  ground  of  acquiescence,  quite  apart 
from  anything  in  the  way  of  prescrip- 
tion. Prescription,  of  course,  could  not 
be  set  up,  but  acquiescence  might  pos- 
sibly be.    I  think  that,  as  the  applicant 


"  CAPE  TIMES  **  LAW  REPORTS. 


281 


knew  perfectiv  well  that  this  matter  was 
conterted  and  that  there  would  be  oon- 
ndi'rable  difficulty  in  showing  that  he 
was  entitled  to  a  perfectly   ctear   ri^ht, 

?  L**  '**^  *®  come  here  upon  motion. 
I  think,  therefore,  that  I  must  give  no 
omer  on  the  present  application,  and 
direct  the  applicant  to  pay  costs, 
«»'«  that  the  applicant  may,  ifhe  choose, 
enter  an  action  to  prove  his  right, 
notice  oE  motion  to  stand  as  summons.  1 
think  that  the  applicant  has  come  to 
court  wrongly,  and  that  he  should  pay 
thecosti. 


SUPREME  COURT 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplbt.] 


AD1IISSI05S. 


I       1905. 
(Mar.  13th. 

Mr.  P.  S.  T.  Jones  moved  for  the 
admission  of  John  Henry  Bailey   as  au 

advocate. 

.  Application  granted   and  oath   admin- 
istered. 

Mr.  P.  S.  T.  Jones  moved  for  the 
adiniaeion  of  Charles  James  Ingram  as 
an  advocate. 

.  Application  granted  and   oath  admin- 
istered. 

Mr.  P.  8.  T.  Jones  moved  for  the  ad- 
mission of  Basil  Kellett  Long  as  an  ad- 
vocate. 

.  Application  granted  and  oath   admin- 
totered. 

Mr.  W.  Porter  Buchanan   moved     for 
tbc  admission  of  Wm.    Charles      Eaton 
Stent  as  an  attorney  and  notarv. 
.  Application  granted,  and  oaths  admin- 
Bteied. 

Mr.  W.  Porter  Buchanan  moved  for 
tn«  admission  of  Charles  Frederick  Wil- 
liam Bands  as  an  attorney  and  notary. 
.  Application  granted,  and  oaths  admin- 
istered. 

Mr.  W.  Porter  Buchanan  moved  for 
the  admission  of  Herbert  Norman  Att- 
well   as  an  attorney  and  notary. 

Application  granted,  and  oaths  admin- 
istered. 

Mr.  W.  Porter  Buchanan  moved  for 
the  admission  of  Arthur  Vintcent  Croas- 
fey  Biiset  as  an  attorney,  notary,  and 
conveyancer.  Mr.  Buchanan  stated  that 
there  had  been  a  break  of  six  months  in 
the  applicant's  service,  owing  to  his  hav- 
ini?  visited  England  vrith  a  cricket  team. 


Notice  was  given  to  the  Incoroorated 
Law  Society,  who  consented  to  nis  ad- 
mission. 

Application  granted,  and  oaths  admin- 
istered. 

Mr.  J.  £.  R.  de  Villiers  moved  for  the 
admission  of  Johan  C.  J.  van  Rensburg 
as  an  attorney  and  notary. 

Application  granted,  oaths  to  be  taken 
before  the  R.M.  of  Steynsburg. 


PROVISIONAL  ROLL. 


PRICE  V.  DKLBANOO. 


j         1905. 
IMar.  13th. 

Mr.  J.  E.  R.  de  Villiers  moved  for  the 
final  adjudication  of  the  defendant's  es- 
tate as  insolvent. 

Order  granted. 


OOBTHUIZEN  V.  FOTHUBIMORAM. 

Mr.  De  Waal  moved  for  provisional  sen- 
tence for  £67,  upon  a  promissory  note, 
with  interest. 

Order  granted. 


KaUGBR  v.  FBASBR. 

Mr.  De  Waal  moved  for  provisional 
sentence  upon  a  mortgage  bond  for  £250, 
with  intercut,  the  bond  having  become 
due  by  rea<K)n  of  notice  having  been 
given;  counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable. 

Order  granted. 


KRUGER  BROS.  Y.  FERREIRA. 

Mr.  Do  Waal  moved  for  provisional 
sentence  on  a  promissory  note,  with  in- 
terest. 

Order  granted. 


LIPSGHITZ  AND  OTHERS  V.  NEL. 

Mr.  De  Waal  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as  in- 
solvent. 

Order  granted. 


MCGREGOR  V.  HOFFMAN  AND  SAACK8. 

Mr.  P.  S.  T.  Jones  moved  for  provi- 
sional sentence  on  a  promissory  note  for 
£716  17s.  4d..  less  £400  paid  on  account, 
together  with  interest  on  the  capital 
sum. 

Order  granted,  with  interest  a  tempore 
morae  on  the  balance  unpaid. 


2t2 


"CAPE  TIMES'*  LAW  BEt>Otitd. 


HODGES  AND  CO.  V.  LIKQUM. 

Mr.  Alexander  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Order  e^ranted. 


QODLONTON  V.  SOLOMON. 

Mr.  p.  S.  T.  Jones  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £150,  with  in4»rest,  the  bond  hav- 
ing become  due  by  reason  of  tli«  non- 
payment of  interest;  counsel  ateo  ap- 
plied for  the  property  specially  hypo- 
thecated to  be  declared  executaole,  with 
costs. 

Order  gnuited. 


ZEEDEBBBSO     AMD     DUNCAN     V. 
ALPBROWITZ. 

Summons — Service. 

The  posting  of  a  summoim  on 
the  door  of  the  Supreme  Court 
is  not  sufficient  service. 


Mr.  Pyemont  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent.  It  was  stated  that  service 
had  been  made  by  posting  the  summons 
on  the  door  of  the  Supreme  Court. 

Hopley,  J.,  said  that  there  would 
be  no  order,  on  account  of  insufficient 
service. 

Mr.  Pyemont  then  applied  for  an  ex- 
tension of  the  return  day  until  the  15th 
April. 

This  was  granted,  subject  to  fresh 
service  of  the  summons. 


GARYIE  V.  TAMBOER. 

Dr.  Rainsford  moved  for  the  Qnal  ad- 
judication of  the  defendant's  estate  as 
insolvent  Counsel  said  he  was  not 
aware  what  service  there  had  been  on 
the  defendant. 

Final  order  granted,  with  ooets,  save 
costs  of   briefing  counsel. 

At  a  later  stage,  His  Lordship  said 
it  had  been  brought  to  his  notice  that 
for  some  years  it  had  been  the  practice 
in  this  Court  for  the  Taxing  Master  not 
to  allow  to  the  attorneys  costs  for 
briefing  counsel  with  returns  of  sum- 
monses, and,  as  a  consequence,  a  prac- 
tice had  grown  up  of  counsel  coming  into 
court  uninstructed  in  a  great  many 
cases  as  to  the  returns  of  the  sum- 
monses. That  [)ractice  might  have 
been  idl  very  well  if  provisional  ca«es 
were  still  heard  before  two  judges,  so 
that  while  one  judge  heard  the  applica- 
tion, the  other  could  check  the  re- 
turns of  service.  It  was  obviously 
impossible  for  one  judge  alone  to  do 
that.       He  personally  thought  that  the 


Taxing  Master  ought  certainly  to  allow 
costs  of  briefing  counsel  with  the  re- 
turns oi  service.  As  to  the  orders  he 
had  made  that  morning,  it  seemed  that 
under  the  circumstances  he  should  with- 
draw that  part,  disallowing  costs  of 
briefing  counsel,  and  that  those  costs 
should  be  allowed.  He  hoped  that  in 
the  future  ooumel  would  alwa]^  be 
briefed  with  the  returns  of  the  service, 
and  that  the  Taxing  Master  would  allow 
the  costs. 


VALUE  SUPPLY  CO.  V.  WILSON. 

Mr.  Pyemont  moved  for  a  decree,     of 
civil  imprisonment    u{>on  an    unsatisfied 
judgment  of  the  Magistrate's  Court  for 
about  £15.       It  was  stated  that  the  de 
fendant  lived  at  Victoria  West. 

Decree  granted. 


MOUAT  V.  EVERABBT. 

Mr.  W.  p.  Buchanan  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £500.  with  interest  at  the  rate  of  6 
per  cent,  per  annum  from  the  1st  Jana 
ary,  1904,  less  £4  10s.  paid  on  acooimt. 
and  that  the  property  specially  mort- 
gaired   be  declared  executable. 

Order  granted. 


BOARD  OF  EXECUTORS  V.  MILLER. 

Mr.  p.  Jones  moved  for  provisioDal 
sentence  on  a  mortgi^e  bond  for 
£1,200,  with  interest  at  o  per  cent  oer 
annum  from  Isi  January,  1904,  £15  12s.. 
two  premiums  for  insurance  paid,  ana 
that  the  property  specially  hypothe- 
cated be  declared  executable.  The  bond 
had  become  due  by  reason  of  non-pay- 
ment of  interest. 

The  defendant  appeared  in  court,  and 
stated  that  nine  months  ago  he  as- 
signed his  estate  to  Mr.  Stejrtler,  who 
had  sent  a  cheque  for  £36,  being  half 
the  amount  of  interest  due,  and  the 
plaintiffs  refused  to  accept  it. 

[Hopley,  J. :  If  the  plaintiffs  paid  all 
the  interest,  would  you  want  to  exe- 
cute?] 

Mr.  Jones :  We  may  have  the  trouVo 
of  coming  again  to  court. 

[Hopley,  tT:  I'll  give  him  a  month.] 

Mr.  Jones :  He  would  have  that  under 
the  rules  of  Court,  my  lord. 

[Hopley,  J. :  I'll  give  him  two  then.] 

Order  granted,  execution  stayed  for 
two  months  to  |five  respondent  time  to 
pav  all  arrear  interest,  costs,  and  the 
insurance  premiums. 


BOSMAK  V.  BEOWM. 

Mr.  Van  Zyl  moved  for  the  discharge 
of  sequestration  granted  on  a  pTovisional 
order. 

Order  granted. 


*'CAt>E  TtMES"   LAW  feEt>0ftT8. 


23i 


BHE4KBS  V.  COHEN   AND  OAFFANOWITZ. 

Mr.  Roux  moved  for  proyiaional  sen- 
tenoe  on  a  mortg^gpe  bond  for  £200, 
with  intereet  from  1st  November,  1903, 
It  6  per  cent,  per  annum,  and  that  the 
property  specially  hypothecated  be  de- 
clared executable.  The  bond  became 
due  by  reason  of  non-payment  of  in 
teratl. 

Order  granted. 


CKLLIVBfl  V.  MINNAAR. 

Mr.  Van  Zyl  nx>ved  for  provisional 
sentence  on  a  promiasory  note  for  £51, 
with  interest  and  costs. 

Order  granted. 


BBTATB   HETELSRKAHP 
WALT. 


V.    VAN    DSR 


Mr.  Swift  moved  for  the  final  adjudi- 
ntioQ  of  the  defendant's  estate  as  insol- 
vent 

Order  granted. 


GR08B  V.  DUNN. 

Mr.  Pyemont  moved  for  the  final  ad- 
iudiration  of  the  defendant's  estate  as  in- 
•olfent. 

Order  granted. 


VSRSriCLD  V.  6CUKEPER8. 

Mr.  W.  Porter  Buchanan  moved  for 
provisional  sentence  upon  a  mortgage 
bond  for  £90,  with  interest,  the  bond 
having  become  due  by  reason  of  the  non- 
payment of  interest;  counsel  also  ap- 
plied for  the  property  specially  mort 
gaged  to  be  declared  executable. 

Order  granted. 


ARKBLL  AND  ANOTHER  V.  HOFFMAN. 

Mr.  Lewis  moved  for  a  decree  of  civil 
imprisonment  upon  an  unsatisfied  judg- 
ment to  be  suspended  on  defendant 
carrying  out  an  offer  to  pay  off  the  debt 
at  the  rate  of  £25  a  month,  first  pay- 
ment to  be  made  on  the  Ist  April. 

Order  granted,  execution  to  be  stayed, 
subject  to  payment  in  aocordanoe  with 
the  defendant's  offer. 


ARDERNB     V.     KALWBRUKT     AND 
WINNITBKY. 

Mr.  P.  S.  T.  Jones  moved  for  provi- 
sional sentence  on  a  mortgage  bond  for 
£600,  with  interest,  the  bond  having  be- 
come duo  by  reason  of  the  non-payment 
of  interest ;  counsel  also  applied  for  the 
property  specially  hypothecated  to  be 
declared  executable. 

Order  granted. 


LITKIE  V.  CHRISTIAN  I. 

Or.  Greer  moved  for  provisional  sen- 
tecce  on  a  mortgage  bond  for  £1,500, 
ti'ith  interest  and  cost  of  insurance ;  the 
wnd  having  become  due  by  reason  of 
notice  given;  counsel  also  applied  for 
[hp  property  specially  hypothecated  to 
be  declared  executable. 

Order  granted. 


OBKKNBBRO  AND  OO.  V.  JOSEPH. 

Mr.  W.  Porter  Buchanaii  moved  for 
hitercst  and  costs  in  an  action,  in  which 
the  principal  amount  (£50)  had  been  paid 
ftihekfuent  to  issue  of  summons. 

Order  granted. 


MOSES  y.  BROWN. 

Dr.  Greer  moved  for  provisional  sen- 
tenoe  on  a  mortgage  bond  for  £458  8s., 
with  interest,  the  bond  having  become 
dne  by  reason  of  demand  duly  made  by 
[^Bgistered  letter;  counsel  also  applied 
•or  the  property  specially  hypothecated 
to  be  declared  executable. 

Order  granted. 


HILL  AND  CO.  V.  8AAGKB. 

Mr.  Swift  moved  for  provisional  sen- 
tence on  a  promissory  note  for  £200, 
with  interest. 

Order  granted. 


BE88ELL  V.  TWINE. 

Mr.  p.  S.  T.  Jones  moved  for  provi- 
sional sentence  on  a  promissory  note  for 
£100.  with  interest. 

Order  granted. 


besbell  v.  oruneberg. 

Mr.  P.  S.  T.  Jones  moved  for  provi- 
sional seatence  on  a  promissory  note  for 
£304  IQs.,  with  interest. 

Order  granted. 


ESTATE  OILLI8  Y.  RAUBENHEIMER. 

Mr.  Du  Toit  moved  for  provisional 
sentence  on  a  promissory  note  for  £59 
13e.  6d.,  with  interest. 

Order  granted. 


23^ 


(( 


CAt>E  TIMES"  LAW  Re1»0IIM. 


CoCUIIaN   V.  BuAND. 

Mr.  Giddy,  K.C.,  moved  for  judg- 
ment, under  Rule  329d,  (1)  for  £1,000 
money  lent  and  advanced  on  a  certain 
mortgage  bond;  (2)  for  the  property  at 
Worcester  flpecially  hypothecated  to  be 
declared  executable;  (d)  for  interest; 
and  (4)  costs.  The  bond,  he  said, 
appeared  to  have  been  cancelled  in 
error.  The  monev  bad  not  been  paid 
as  the  applicant  had  thought.  An 
order  of  Court  had  been  granted  some 
time  ago,  when  the  error  was  discovered, 
restraining  Brand  from  selling  the  pro- 
p«rty.  Counsel  said  that  the  applica- 
tion was  somewhat  unusual,  and  he  was 
unable  to  find  a  case  on  all  fours  with 
the  present  one. 

Order  granted  in  terms  of  prayers  (1), 
(3),  and  (4).    No  order  as  to  prayer  (2). 


STEEU  V.  LOUW. 


BA6NALL  AND  CO.  V.  BGHAPERA. 

Dr.  Rainsford  moved  for  judgment, 
under  Rule  329d,  for  costs,  the  capital 
amount  having  been  paid  since  issue 
of  summons. 

Order  granted. 


D£  VILLIEBS  AND  ANOTHER  V.  NEWMAN. 

Mr.  W.  Porter  Buchanan  moved  for 
judgment,  under  Rule  329d,  for  £88, 
purchase  price  of  certain  lots  of  ground 
at  Ida's  Valley,  division  of  Stellen- 
bosch,    plaintiff    tendering    transfer. 

Order  granted. 


DE  VILLIEBS  AND  ANOTHER  V.  VIPSBR. 

Mr.  W.  Porter  Buchanan  moved  for 
judgment,  under  Rule  329d,  for  £33 
i2s.,  the  purchase  price  of  certain 
ground. 

Order  granted. 


WOODHBAP,  PLANT  AND  CO.  V.  ELBURO. 

Mr.  Pyemont  moved  for  judgment, 
under  Rule  329d,  for  £50,  unpaid  bal- 
ance of  moneys  lent  and  advanced,  and 
interest. 

Order  granted. 


WALLANDBR  V.  WBRNBERG  AND 
DEEOKER 

Mr.  P.  S.  T.  Jones  moved  for  judg- 
ment, under  Rule  329d,  for  (1)  an  order 
of  fransfer  of  certain  lots  of  land  sold 
to  plaintiff  for  £71,  of  which  £56  Os.  9d. 
had  been  paid,  or  (2)  in  the  alternative 
to  cancel  sale  and  for  refund  of  money 
paid. 

Order  ^rsnfced  for  transfer  of  the 
land,  or,  in  alternative,  repayment  of 
£55  Os.  9d.,  with  costs. 


Mr.  P.  8.  T.  Jones  moved  for  judg- 
ment, under  Rule  320d,  for  £33  Os.  5d., 
balance  of  account  for  profeesional  ser- 
vices and  disbursements. 

Order  granted. 


YIBNINOS  AND  ANOTHER  V.    KRAAI- 
rONTEIN  HOTEL  CO. 

Mr.  P.  S.  T.  Jones  moved  for  judg- 
ment, under  Rule  329d,  for  £160  Bs., 
balance  of  contract  money  for  the  erec- 
tion of  the  Kra&ifontein  Hotel. 

Order  granted. 


KOTZE  V.  BRUINS. 

Mr.  J.  E.  R.  de  Villiers  moved  for 
judgment,  under  Rule  319,  in  terms  of 
declaration  for  delivery  of  a  gold 
watch,  the  defendant  having  been  barred 
from  pleading.  Couivel  said  that  the 
original  claim  was  for  a  watch^  a  fanuly 
heirloom,  or  its  value,  £50.  The  watch 
had  been  placed  in  the  defendant'a 
custodv  for  safe-keeping,  and  it  had 
been  aetained  by  her  against  certain 
charges  for  reiMurs.  She  claimed  £3 
odd.  and  plaintiff  had  offered  her  250. 

Hoploy,  J.  said  that  there  appeared 
to  have  been  a  good  deal  of  unneces- 
sary litigation  in  this  matter.  An  order 
would  be  granted  for  delivery  of  the 
watoh  on  payment  to  defendant  by  the 
plaintiff  ot  25t.,  defeodaut  to  pay  the 
costs. 


BANK  OF  AFRICA  Y.  HOFFMAN  AND  CO. 
AND  ANOTHER. 

Mr.  Soarle,  K.C.,  moved  for  judg 
moirt,  under  Rule  319,  upon  a  declara- 
tion claiming  £606,  with  interest,  and 
for  certain  property  specially  hypothe- 
cated to  be  declared  executable,  defen- 
dants having  been  barred  from  plead- 
ing. 

Order  granted  as   prayed. 


CAPE  COLD  STORAGE  V.  8AYERF. 

Dr.  Rainsford  moved  for  judgment, 
jnder  Rule  329d,  for  £203  13e.,  goods 
9oId  and  delivered,  with  interest  a 
tempore  morae. 

Order  granted. 


CAPK  MARINE  SUBURBS  V.  RECREATION 
SYNDICATE. 

Mr.  Gutsche  moved  ffir  judgment, 
under  Rule  329d,  for  £479  7a  4d.,  money 
lent  and  advanced  and  disbunwd  for 
defendants,  with  interest  a  temp&rt 
morae  and  costs. 

Order  grmnted. 


I 


"CAPK  TIMES"   LAW  REPORTS. 


287 


TABLE  BAY  HARBOUR  BOARD  Y.  INKSTSR 
AHD  MASTER  OF  THE  SHIP  *'DYW1IANT." 

Mr.  p.  3.  T.  Jones  moTed  for  judg- 
OMnt,  under  Rule  329d,  for  £150,  Ber- 
noM  rendered  by  the  tug-  Sir  Ohurks 
SQki,  for  £64  10b.,  dock  daes  and  other 
charee^  and  for  inteneflt  and  ooets. 

Older  granted. 


GENERAL    MOTIONS. 


£rj«rf.lfRTCALFE.        \^^%,^ 

Mr.  P.  S.  T.  Jones  moved  as  a  mat- 
ter of  urgency,  on  behalf  of  Alfred  Wills 
and  Abbott  and  Charles  Ritter,  for  the 
amendment  of  a  provisional  order  grant* 
ed  in  the  estate  of  Max  Schleohter,  of 
Namaqualand.  by  the  insertion  of  his 
(all  name,  -which  had  since  transpired, 
TO.,  Ernst  Ludivic  Gustav  Max  Sonlech. 
ter. 

Order  granted  as  prayed. 


BEX  V.  UOLDlf  AN. 

Criminal   trial    on    Circuit— Re- 
moval. 

The  Supreme  Court  has  no 
power  to  remove  a  criminal 
trial  from  one  circuit  to 
another.  AppliecUion  should 
be  made  to  ike  Circuit  Court, 


Mr.  Barton  nooved  as  a  matter  of 
BiKeacy.  upon  notice  to  the  Attorney- 
weral,  for  removal  of  the  triiJ  of 
petitioner  from  the  ensuing  Circuit 
^oort  at  Oudtshoom,  to  such  court  as 
tmi  Honourable  Cburt  may  appoint. 
^  charge  against  the  petitioner  was 
c«^  attenwting  to  oomnut  the  crime  of 
fraud  and  perjury.  The  ground  of  the 
appuoation  was  that  considerable  com- 
">fnt.  criticism,  and  prejudice  had 
<n«eo  against  tne  petitioner  in  the 
k>irn  and  district  of  Oudtshooro,  on 
>«»unt  of  his  dealings  with  a  certain 
insolvent,  and  he  was  assured  that»  ow- 
ing to  the  prejudice  that  had  existed, 
and  did  still  exist,  he  would  not  receive 
«  fair  trial.  Corroborative  affidavits 
by  A  J.  Gill,  of  Prince.  Vintcent  and 
Co..  and  Mr.  Nel,  Field-comet,  were 
read. 

Mr.  Nif^tingale  appealed  for  the 
Attorney-General  to  oppose. 

Mr.  Burton  said  that  he  thoug^ht  it 
would  be  apparent  frcan  a  newiQMkper 
utieie  drcnlated  fn  the  Oudtshoorn  ois- 
^ct  that  ooDsiderable  preiudice  existed 
■Xainst  the  petitioner.  He  understood 
™  the  Attomey-Oeneral  intended  to 
we  the  {XMQt  tW  the  Ooiirt  had    no 


jurisdiotion.  and  thai  suoh  an  applioa- 
tion  should  be  made  to  the  Circuit 
Court  where  the  indictment  was  pre- 
seiited.  Counsel  admitted  that  the  case 
of  Queen  v.  Otto  (3  E.D.  Court,  170) 
was  against  him.  The  44th  section  of 
the  Charter  of  Justice,  whioh  gave  the 
Court  jurisdiction,  used  the  term  "ac- 
tion ^  or  suit,"  and  did  not  mention 
criminal  indictments.  He  submitted, 
however,  that  under  the  wide  general 
powers  conferred  upon  the  Supreme 
Court,  his  lordship  had  the  power  to 
order  removal  of  the  trial.  He  ad- 
mitted, however,  that  he  was  unable  to 
produce  a  precedent  for  this  applica- 
tion. 

Mr.  Nightingale  said  that  the  indict- 
ment in  this  trial  was  filed  in  the  Cir- 
cuit Court,  and  the  Crown  relied  on 
tlic  44th  section  of  the  Charter  of  Jus- 
tice, as  supported  by  the  case  of  Queen 
V.  OUo. 

Mr.  Burton  said  it  was  extremaly  u-'i 
unfortunate  that  the  Crown  should  per- 
sist  in  the  attitude  whioh  had  been 
adopted.  The  air  of  Oudtshoorn  was 
altogether  unfavourable  to  the  peti- 
tioner. 

Hopley,  J.:  If  the  judge  before 
whom  the  case  comes  has  reason 
to  believe  that  the  applicant  will 
not  have  a  fair  trial,  ho  will  be 
able  to  remove  the  hearing  to  a 
more  convenient  court.  It  seems  to 
me  that  according  to  the  44th  section 
of  the  Charter  of  Justice  and  the  ruling 
of  the  E.D.  Court  in  the  case  of  Queen 
V.  Otto,  I  cannot  make  any  such  order 
as  I  am  now  asked  to  make,  in  face  of 
the  opposition  of  the  Attorney-General 
to  such  an  order.  The  result  is  that 
T  rsTi  ^  make  no  order  on  the  present  ap- 
plication, leaving  the  petitioner  to  make 
an  application  to  the  proper  Court,  the 
Oirpuit  Court  at  Oudtshoorn,  before 
which  the  trial  is  now  pending. 


WBAKLBT  V.  ESTATE  VAN  DBR  WALT. 

Mr.  P.  S.  T.  Jones  moved,  on  behalf 
of  Weakley,  defendant  in  the  action, 
for  the  removal  of  the  trial  to  the  Cir- 
cuit Court  at  Colesberg,  costs  to  be 
costs  in  the  cause.  Respondent's  at 
tomev  consented. 

Order  granted  as  prayed. 


23^ 


"CAt>E  TIMES"  LAW  Re1»0IIM. 


CoCUIlAK   V.  BuAND. 

Mr.  Giddy,  K.C,  moy«d  for  judg- 
ment, under  Rule  329d,  (1)  for  £1,000 
money  lent  and  advanced  on  a  certain 
mortgage  bond;  (2)  for  the  property  at 
Worcester  apecially  hypothecated  to  be 
declared  executable;  (d)  for  interest; 
and  (4)  ooflts.  The  bond,  he  said, 
appeared  to  have  been  cancelled  in 
error.  The  monev  had  not  been  paid 
as  the  applicant  had  thought  An 
order  of  Court  had  been  granted  some 
time  ago,  when  the  error  waa  discovered, 
restraining  Brand  from  selling  the  pro- 
perty. Counsel  said  that  the  applica- 
tion was  somewhat  unusual,  and  he  was 
unable  to  find  a  case  on  all  fours  with 
the  present  one. 

Oraer  granted  in  terms  of  prayers  (1), 
(3),  and  (4).    No  order  as  to  prayer  (2). 


BAGNALL  AND  CO.  V.  8CHAPBRA. 

Dr.  Rainsford  moved  for  judgment, 
under  Rule  320d,  for  costs,  the  capital 
amount  having  been  paid  since  issue 
of  summons. 

Order  granted. 


DE  VILLIEBS  AND  ANOTHER  V.  NEWMAN. 

Mr.  W.  Porter  Buchanan  moved  for 
judgment,  under  Rule  329d,  for  £88, 
purchase  price  of  certain  lots  ol  ground 
at  Ida's  Valley,  division  of  Steilen- 
bosch,    plaintiff    tendering    transfer. 

Order  granted. 


DB  YILLIERS  AND  ANOTHER  V.  VIBSBR. 

Mr.  W.  Porter  Buchanan  moved  for 
judgment,  under  Rule  329d,  for  £33 
i2s.,  the  purchase  price  oi  certain 
ground. 

Order  granted. 


WOODHBAD,  PLANT  AND  CO.  V.  ELBURO. 

Mr.  Pyemont  moved  for  judp^ment, 
under  Rule  329d,  for  £50,  unpaid  bal- 
ance of  moneys  lent  and  advanced,  and 
interest. 

Order  granted. 


WALLANDBR  V.  WBRNBERG  AND 
DEEOKEE 

Mr.  P.  S.  T.  Jones  moved  for  judg- 
ment, under  Rule  329d,  for  (1^  an  order 
of  fr&nsfer  of  certain  lots  of  land  sold 
to  plaintiff  for  £71,  of  which  £56  Os.  9d. 
had  been  paid,  or  (2)  in  the  alternative 
to  cancel  sale  and  for  refund  of  money 
paid. 

Order  granted  for  transfer  of  the 
land,  or,  in  alternative,  repayment  of 
£55  Os.  9d.,  with  costs. 


STEER  V.  LOUW. 


Mr.  P.  8.  T.  Jones  moved  for  judg- 
ment, under  Rule  32Bd,  for  £33  Os.  5d., 
balance  of  account  for  professional  ser- 
vices and  disbursements. 

Order  granted. 


YIBNINGS  AND  ANOTHER  V.    KEAAI- 
FONTEIN  HOTEL  CO. 

Mt.  p.  S.  T.  Jones  moved  for  judg- 
ment, under  Rule  329d,  for  £160  8a., 
balance  of  contract  money  for  the  erec- 
tion of  the  Kraaifontein  Hotel. 

Order  granted. 


KOTZE  V.  BRUINS. 

Mr.  J.  £.  R.  de  Villiers  moved  for 
judgment,  under  Rule  319,  in  terms  of 
declaration  for  delivery  of  a  gold 
watch,  the  defendant  having  been  barred 
from  pleading.  Couivel  said  that  tho 
original  claim  was  for  a  watch^  a  fanuly 
heirloom,  or  its  value,  £50.  The  watcb 
had  been  placed  in  the  defendant's 
custody  for  safe-keeping,  and  it  had 
been  detained  by  her  against  certaiu 
charges  for  repairs.  She  claimed  £3 
odd.  and  plaintiff  had  offered  her  258. 

Hopley,  J.  said  that  there  appeared 
to  have  been  a  good  deal  of  unneces- 
sary litigation  in  this  matter.  An  order 
would  be  granted  for  delivery  of  the 
watoh  on  nayment  to  defendant  by  the 
plaintiff  ot  25b.,  defendant  to  pay  the 
oosts. 


BANK  OF  AFRICA  Y.  HOFFMAN  AND  GO. 
AND  ANOTHER. 

Mr.  Searle,  K.C.,  moved  for  judg 
nicirt,  under  Rule  319.  upon  a  declara- 
tion claiming  £606,  with  interest,  and 
for  certain  property  specially  hypothe- 
cated to  be  declared  executable,  defen- 
dants having  been  barred  from     plead- 


ing. 
O 


rder  granted  as  prayed 


GAPE  COLD  BTOKAOE  Y.  BATERP. 

Dr.  Rainsford  moved  for  judgment, 
jnder  Rule  329d,  for  £203  13s.,  goods 
sold  and  delivered,  with  interest  a 
tempore  tnorae. 

Order  granted. 


CAPE  MARINE  SUBURBS  V.  BBCEEATION 
SYNDICATE. 

Mr.  Gutsche  moved  ffir  judgment, 
under  Rule  329d,  for  £479  Ts.  4d.,  money 
lent  and  advanced  and  disburaed  for 
defendants,  with  interest  a  temp&n 
morae  and  costs. 

Order  granted. 


"CAPE  TIMES"   LAW  REPORTS. 


237 


TABLE  BAY  HABBOUB  BOASD  V.  DffSTSB 
AID  MASTER  OF  THE  SHIP  *'DYNMANT." 

Mr.  P.  S.  T.  Jones  moTed  for  judg- 
ment, under  Rule  d89d,  for  £150,  Ber- 
noes  rendered  bj  the  tug  Sir  Oharies 
EUioi,  for  £64  10b.,  dock  dues  and  other 
ehamRt   and  for  interest  and  ooets. 

Oraer  granted. 


GENERAL    MOTIONS. 


&  parte  METCALFE.       {  Mai^ith . 

Mr.  P.  S.  T.  Jones  moved  as  a  mat- 
ter of  urgency,  on  behalf  of  Alfred  Wills 
uid  Ahbott  and  Charles  Ritter,  for  the 
amendment  of  a  provisional  order  grant* 
ed  in  the  estate  of  Max  Schleohter,  of 
Nimsqualand.  by  the  insertion  of  his 
fall  nsme,  which  had  since  transpired. 
Til.,  Ernst  Ludivic  Gustav  Max  Sohlech. 
ter. 

Order  granted  sa  pcayed. 


BEX  V.  UOLDMAN. 

Criminal   trial    on    Circuit — Re- 
moval. 

The  Supreme  Court  has  no 
]H>iter  to  remove  a  criminal 
trial  from  one  circuit  to 
another.  AppliccUion  should 
be  made  to  Ae  Circuit  Court. 


Mr.  Burton  nooved  as  a  matter  of 
urgency,  upon  notioe  to  the  Attorney* 
Gsoeral,  for  ronooval  of  the  trial  of 
petitioner  from  the  ensuing  Circuit 
Court  at  Oudtshoorn,  to  such  court  sc 
tbii  Honourable  Court  ma^r  appoint 
Xbe  oharge  against  the  petitioner  was 
of  attemoting  to  oonmut  the  crime  of 
fraad  ana  perjury.  The  ^^und  of  the 
tpplioation  was  that  considerable  com- 
otecfl,  criticism,  and  prejudice  had 
arisen  against  the  petitioner  in  the 
town  and  district  of  Oudtshoorn,  on 
account  of  his  dealings  with  a  certain 
ioKriveot.  and  he  was  assured  that»  ow- 
ing to  the  prejudice  that  had  existed, 
and  did  atill  exist,  he  would  not  receive 
a  iiair  trial.  Corroborative  affidavits 
by  A  J.  Gill,  of  Prince.  Vintcent  and 
Cfc..  and  Mr.  Nel.  Field-comet,  were 
ntd. 

Mr.  Nightingale  appeared  for  the 
Attorney-General  to  oppose. 

Mr.  Burton  said  that  be  thougiht  it 
would  be  apparent  from  a  newspaper 
uticle  dronlated  m  the  Oudtshoorn  dis- 
trict that  oooriderabfe  preiudice  existed 
aKainit  the  petitioner.  He  understood 
that  the  Attomev^enerral  intended  to 
t«U  the  poi^t  tbftt  the  Court  had    no 


jurisdiction,  and  that  such  an  ajM>lioa- 
tion  should  be  made  to  the  Cireuit 
Court  where  the  indictment  was  pre- 
seuted.  Couirael  admitted  that  the  case 
of  Queen  v.  Otto  (3  E.D.  Court,  170) 
was  against  him.  The  44th  section  of 
the  Charter  of  Justice,  which  gave  the 
Court  jurisdiction,  used  the  term  "ac- 
tion ^  or  suit,'*  and  did  not  mention 
criminal  indictments.  He  submitted, 
however,  that  under  the  wide  geneDal 
powers  conferred  upon  the  Supreme 
Court,  his  lordship  had  the  power  to 
order  removal  of  the  trial.  He  ad- 
mitted, however,  that  he  was  unable  to 
PjiToduce  a  precedent  for  this  applica- 
tion. 

Mr.  Nightingale  said  that  the  indict- 
ment in  this  trial  was  filed  in  the  Cir- 
cuit Court,  and  the  Crown  relied  on 
thti  44th  section  of  the  Charter  of  Jus- 
tice, as  supported  by  the  case  of  Queen 
V.  OUo. 

Vr.  Burton  said  it  was  extremdly  u-'i 
unfortunate  that  the  Crown  should  per- 
sist  in  the  attitude  which  had  been 
adopted.  The  air  of  Oudtshoorn  was 
altogether  unfavourable  to  the  peti- 
tioner. 

Hopley,  J. :  If  the  judge  before 
whom  the  case  comes  has  reason 
to  believe  that  the^  applicant  will 
not  have  a  fair  trial,  ho  will  be 
able  to  remove  the  hearing  to  a 
more  oonvenient  court.  It  seems  to 
me  that  aooor^ng  to  the  44th  section 
of  the  Charter  of  Justice  and  the  ruling 
of  the  E.D.  Court  in  the  case  of  Queen 
V.  Otto,  I  cannot  make  any  such  order 
as  I  am  now  asked  to  make,  in  face  of 
the  opposition  of  the  Attomev-General 
to  such  an  order.  The  result  is  that 
T  ran  ^  make  ik>  order  on  the  present  ap- 
plication, leaving  the  petitioner  to  make 
an  application  to  the  proper  Court,  the 
Oirruit  Court  at  Oudtshoorn,  before 
which  the  trial  is  now  pending. 


WEAKLEY  y.  ESTATE  VAN  DEB  WALT. 

Mr.  P.  S.  T.  Jones  moved,  on  behalf 
of  Weakley,  defendant  in  the  action, 
for  the  removal  of  the  trial  to  the  Cir- 
cuit Court  at  Colesberg,  costs  to  be 
costs  in  the  cause.  Respondent's  at- 
tomev  consented. 

Order  granted  as  prayed. 


238 


(( 


CAPE  TIMES"   LAW  REPORTS. 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hou.  Mr.  Justice  Hopley  ] 


TRIAL  CAUSES 


BOISON  V.  B0I80N. 


f        HIOo. 

^Mar.  14th. 

This  WBA  an  action  for  restitution  of 
conjugal  rights  brought  by  Amyas  Good- 
wood Boison,  otherwise  known  as  Sidney 
Boison,  against  his  wife,  Emma  Jemima 
Boison  (born  Price),  on  the  ground  of 
her  unlawful  and  malicious  desertion  of  ' 
the  plaintiff. 

The  defendant  was  in  England, 
and  the  notice  of  summons  was 
served  by  edictal  citation,  substituted  ' 
service  having  been  allowed.  It  ap- 
peared that  the  citation  had  come  to  the 
notice  of  the  defendant,  but  she  had  not 
entered  a  plea. 

The  declaration  set  out  that  the  parties 
were  married  at  the  Registry  Office,  Mile 
End-road,  London,  England,  on 
January  13,  18d6;  that  in  or 
about  the  year  1896  tho  plain 
tiff  oame  to  Oai>e  Town,  and  de- 
fendant afterwards  joined  him ;  that  the 
parties  resided  together  in  Cape  Town 
until  May,  1898,  when  the  defendant 
unlawfully  and  maliciously  deserted  the 
plaintiff;  and  that  her  present  where- 
abouts were  unknown  to  the  plaintiff. 
Plaintiff  claimed  an  order  of  restitution, 
failing  which,  divorce. 

Mr.  W.  P.  Buchanan  for  plaintiff; 
defendant  in  default. 

Amy  as  Goodwood  Boison  (the  plaintiff) 
said  he  was  known  among  his  friends  as 
Sidney  Amyas  Boison.  After  marriage, 
he  and  his  wife  lived  in  London  about 
four  months,  and  he  then  came  out 
here,  intending  to  settle  here.  He  sent 
his  wife  a  passage  ticket  after  he  had 
been  here  about  nine  months.  They 
took  a  house  at  Green  Point,  and  lived 
together  about  two  years.  While  he 
was  travelling  up-country  his  wife  de- 
serted him  in  May.  1898. 

His  wife  used  to  be  always  "  nagging,'' 
and  wanting  to  go  home.  She  used  to 
tell  him  that  if  he  had  sent  her  money 
instead  of  a  passage  ticket  she  would  not 
have  come  out  here.  In  June,  1904,  he 
was  in  England,  and  he  employed  a 
private  inquiry  agency  to  make  investi- 
gations, but  he  was  unable  to  find  any 
trace  of  his  wife's  whereabouts.  Witness  i 
was  aware  that  letters  had  passed  be- 
tween the  attorneys  of  the  defendant  and 
the  witness's  attorneys.  A  letter  from  de-  i 
fendant's  attorneys  stated  that  they  pro- 
posed to  instruct  Messrs.  Reid  and 
Nephew.  W^itness  was  of  independent 
means  when  he  wha  married,  but  he  was 


now  engaged  as  a  commercial  traveller. 
His  wife  was  a  hospital  nurse. 

Decree  of  restitution  granted,  de- 
fendant to  return  to  the  plaintiff  on  or 
before  June  15,  plaintiff  to  tender  to  de- 
fendant a  second-class  passage  to  Cape 
Town,  failing  which,  defendant  to  show 
cause  on  June  29  why  a  decree  of  divorce 
should  not  be  granted  as  prayed,  the 
rule  to  be  served  personally,  or  on  the 
defendants  solicitor,  Mr.  R.  Philip 
Upton,  5,  Great  James-street,  Bedford - 
row.  London. 


SBALE  V.  DOOVBY. 

This  was  a  case  which  came  before 
the  Court  on  March  3rd,  and  at  the 
suggestion  of  Hopley,  J.,  stood  over  in 
order  to  give  the  parties  an  opportunity 
of  arriving  at  a  settlement.  The  case 
was  now  resumed. 

Mr.  W.  Porter  Buchanan  (with  him 
Mr.  Roux)  was  for  the  defendant. 

Mr.  Buchanan  stated  that  his  learned 
friend,  Mr.  Upington,  appeared  for  the 
plaintiff  at  the  first  hearing,  but  he  was 
now  unable  to  be  present,  owing  to  a 
case  which  was  being  heard  in  another 
Court. 

Mr.  Gie,  of  Messrs.  Herold  and  Gie 
(plaintiff's  attorneys),  in  answer  to  his 
Lordship,  said  that  the  plaintiff  desired 
the  case  to  be  continued.  Notice  had 
been  given  to  the  defendant  on  the  pre- 
rious  day  that  there  was  a  possibility 
that  this  difficulty  would  arise,  but  no 
reply  had  been  received  from  the  de- 
fendant. 

The  case,  he  urged,  might  be  poet- 
poned  until  next  term. 

Hopley,  J.,  said  that  it  would  be  a 
pity,  it  seemed  to  him,  to  have  the  ex- 
pense of  a  protracted  postponement,  with 
a  further  hearing  fee,  counsers  re- 
freshers, and  so  on. 

Mr.  Buchanan  indicated  to  his  Lord- 
ship the  principal  points  still  in  issue  be- 
tween the  parties. 

Hopley,  J.,  suggested  that  the  parties 
should  agree  to  refer  the  points  to  a  com- 
petent architect  or  builder. 

After  a  consultation  between  the 
parties 

Mr.  Buchanan  intimated  that  they  had 
practically  agreed  upon  the  name  of  Mr. 
Parker  as  referee. 
At  a  later  stage, 

Mr.  Buchanan  produced  a  consent 
paper,  signed  by  the  parties,  for  sub- 
mission of  the  matters  at  issue  to  the 
arbitration  of  any  qualified  architect  ap- 
pointed by  the  Court  in  terms  of  Act  29. 
of  1898. 

An  order  was  granted  referring  the 
matter  to  Mr.  John  Parker,  failing  him, 
Mr.  Simkiti.  in  terms  of  consent  paper, 
evidence  already  taken  and  papers  pro- 
duced to  be  handed  to  the  referee,  with 
power  to  recall  any  witnossoej  whom  he 
may  think  fit 


"CAPE  TIMES"   LAW  REPORTS. 


289 


PnUa  (June  28tb). 

Sfr.  Upiniirton  applied  to  have  the 
avard  of  the  official  referee's  report, 
made  a  rule  of  Court.  The  other  side 
diipated  the  award,  on  the  {irround  that 
the  iefereo*s  decision  waa  not  ooik<istent 
with  the  le^al  direction  given  by  his 
lonUiip  at  the  trial.  The  application 
wai  made  on  behalf  of  the  plaintiff  in 
the  ease,  and  called  upon  DooTey  to 
ilunr  cause  why  the  referee's  report 
ihoold  not  be  made  a  rule  of  Court,  and 
why  the  defendant  should  not  pay  the 
costs. 

Kr.  Roux  put  in  affidavits,  and  con- 
tended that  the  referee  had  put  a 
vroDg  construction  on  the  contract,  by 
holding*  that  the  plaintiff  was  not  bound 
to  go  down  to  the  solid  for  foundation, 
ind  moved  to  hare  the  allowance  to  the 
plaintiff  reduced,  or  to  have  the  matter 
iwnitted  to  the   referee 

Counsel  having  been  heard  in  argii> 
ment  of  the  facts. 

Hopley,  J.,  aaid  the  referee  had 
carefully  gone  into  the  matter,  and  had 
Knea.  a  very  clear  and  lucid  report ;  but 
he  has  taken  upon  himself  to  construe 
a  coDtract  in  a  way  which,  no  doubt, 
appeared  to  him  equitable.  The  con- 
trict,  however,  miiet  be  taken  as  he 
finds  h.  After  reviewing  the  facts  of 
the  award,  his  lordship  held  that  by 
disallowing  the  £124  'for  foundations 
and  bv  rectifying  the  chiim  for  £44 
nwde  by  the  defendant  to  £22.  which 
wa*  claimed  on  the  pleadings,  there 
would  be  in  favour  of  the  defendant 
£102  17s.,  and  taking  that  from  £191 
Wi.  5d.,  the  amount  awarded,  left  a 
hslanco  in  favour  of  the  plaintiff  for 
*w  Is.  5d.  for  the  plaintiff,  both  par- 
ties to  pay  their  own  co^t«.  the  refer- 
ence costa  divided. 


PROVISIONAL  ROLL. 


LOOAK  V.  ABBAHAM80N. 


f        1906. 

]  Mar.  Uth. 

Mr.  Gutsche  said  that  a  settlement 
had  now  been  arrived  at,  and  he  moved 
fcv  the  provisional  order  of  sequestration 
to  be  superseded. 

Provisional  order  superseded. 


REHABILITATIONS. 


Mr.  J.  E.  R.  de  Villiers  applied  for 
the  rehabilitation  of  Robert  Duncan, 
trading  as  Duncan  Bros.  Counsel  said 
that  the  trustees*  report  waA  favourable. 
Insolvent  had  been  a  landing  and  ship- 
ping agent,  and  hi.s  own  father  was  a 
cnpditor  for  more  than  half  the  liabili- 
ties. 

Granted. 


Mr.  INemont  applied  for  the  rehabili- 
tation of  Henry  Strutt  Taylor  and  Philip 
Barrand,  trading  as  Barrand  and  Com- 
pany, of  Grahani's  Town.  The  trustees 
raised  no  objection  to  the  application. 

Ordered  to  stand  over,  pending  pro- 
duction of  Master's  certificate. 

At  a  later  stage,  Mr.  Pyemont  produc- 
ed the  Master's  certificate,  and  the  ap* 
plication  was  thereupon  granted. 


GENERAL  MOTIONS. 


Ex  parte  KELLY. 


j       1906. 
(Mar.   14th. 


Mr.  Roux  moved  for  the  cancellation 
of  certain  mortgage  bond  for  an  amount 
of  £50,  upon  certain  property  at  2^nne- 
bloem.  All  trace  of  the  bond,  which  was 
believed  to  have  been  paased  in  1863 
to  the  late  Mr.  Hofmeyr,  auctioneer, 
Cape  Town,  had  been  lost.  Petitioner 
bought  the  property  in  question  in  No- 
vember, 1904,  and  be  hadre-eold  it.  The 
matter  was  one  of  considerable  urgency ; 
hence  the  application.  The  applicant 
prayed  for  an  order  cancellinff  tne  bond 
upon  payment  by  him  of  £50  mto  Court, 
and  for  a  rule  to  issue  calling  upon  all 
concerned  to  show  cause  why  the  said 
sum  of  £50  should  not  be  returned  to 
him. 

Order  granted  as  prayed,  rule  to  be  re- 
turnable on  the  15th  April,  and  to  be 
published  once  in  the  "  Cape  Times " 
and  the  "South  African  News." 


BUTLBB  V.  BUTLER. 

Divorce  —  Substituted   service  — 
Authentication. 

The  Court  granted  a  decree  of 
divorce  on  the  faith  of  an 
affidavit  sworn  by  a  clerk  to 
a  certain  firm  of  attonieyH  in 
Chicago,  hut  stated  that  in 
future  all  similar  affidavits 
must  be  duly  authenticated. 


Mr.  Gutsche  moved  for  a  certain 
rule  nisi  for  restitution  of  conjugal 
rights,  failing  which,  divorce,  to 
be  made  absolute,  the  defendant 
(Jessie  Butler),  who  had  been 
served  with  the  rule  in  Greenwood- 
avenue.  Chicago,  U.S.A.,  being  in  de- 
fault. It  was  stated  that  defendant  re- 
fused an  offer  of  passage  money  to  re- 
turn to  her  husband  in  Cape  Town,  and 
said  she  did  not  want  to  return  to  him. 
An  affidavit  to  this  effect  was  put  in, 
sworn  by  a  clerk  in  the  employ  of  a  firm 
of  attorneys  in  Chicago,  before  one  Mar- 
garet  Shortle,  a  notary  public. 

Hopley,  J.,  said  ho  thought  there 
should  be  some  certificate  attached,   as 


240 


*'CAPE  TIMES"   LAW  REPORTS. 


to  the  bona  fidet  of  the  affidavit.  Tho 
matter  must  stand  over  ponding*  fur- 
ther inmiiries. 

At  a  later  stage, 

Hopley,  J.,  said  that  he  had  shown 
the  document  to  the  Chief  Justice.  They 
agreed  that  the  document  ought  to  b<* 
properly  authenticated,    and  that   in  its 

Sesent  form  it  was  somewhat  irregular, 
owever,  he  saw  no  reason  to  believe 
that  the  document  waa  not  authentic, 
and  that  service  had  not  been  effected  on 
the  defendant.  He  wanted  it  to  be 
clearly  understood  that  this  waa  not  to 
bo  a  precedent  for  any  future  application 
where  documents  were  not  in  due  form. 
An  order  would  be  granted  as  prayed 
for  divorce,  and  access  to  the  child. 


Eo!  parte.  MAKABUWA. 

Mr.  Roux  moved  for  a  rule  ni»i,  un- 
der the  Derelict  Lands  Act,  to  be  made 
absolute,  due  publication  having  been 
given. 

Rule  made  absolute. 


Ex  parte  MOOB. 

Mr.  W.  Porter  Buchanan  moved  for 
a  rule  ntjrt,  authorising  the  removal  of  a 
certain  servitude,  aa  a  roadway,  upon 
land  belonging  to  petitioner  to  be  made 
absolute. 

Rule  made  absolute. 


Ex  parte  REMPEK. 

Dr.  Greer  moved  for  a  rule  nut  re- 
leasing the  p<»titioner*8  estate  from  se- 
auestration  to  be  made  absolute.  Peti- 
tioner's estate  had  been  seouest rated  by 
mistake  instead  of  his  wife  s. 

Rule    made   absolute. 


WILMS  y.  THISLB. 

Mr.  W.  Porter  Buchanan  moved  for 
a  rule,  temporarily  interdicting  certain 
goods  and  property,  pending  an  action 
to  be  brougrnt,  to  be  made  absolute. 

Rule  made  abeolute. 


Ex  parte  mabais. 

Mr.  Pyemont  moved  for  an  order 
authorising  the  transfer  to  petitioner  of 
certain  three  water  erven  in  ih  edivision 
of  Gra&ff-Reinet,  bought  hj  him,  and 
belonepng  to  the  estate  of  his  late  wife, 
of  which  he  was  executor. 

Order  granted  as  pvayed. 


CHANNINQ  V.  OHAHHINO. 

Mr.  W.  Porter  Buchanan  moved    on 
behalf     oC     Janet  Obanning,  of    Cape 


Town,  for  leave  to  aiie  her  husband, 
Matthew  Obanning,  a  carpenter,  by 
edictal  citation,  for  restitution  of     con- 

t'ugal  rights,  failing'  which,  divorce, 
'etitioner'a  husband  joined  a  corps  in 
Natal  on  the  outbreak  of  the  war  io 
1899,  when  he  requested  her  to  oome 
to  Cape  Town.  She  had  not  since  heard 
from  him,  and  she  knew  nothing  as  to 
his  whereabouts. 

Hopley,  J.,  said  that  the  matter  had 
better  stand  over  until  the  petitioner 
had  nuide  inquiries  for  the  corps  that 
her  husband  joined.  He  would  not 
grant  an  order  at  present. 


BAUMOARTBN  Y.  PAUL. 

Mr.  J.  E.  R.  de  Villievs  moved,  on  be- 
half of  the  defendant  in  this  action,  for 
leave  to  sign   judgment      against     the 
plaintiff  for  not  proceeding  with  his  ao 
tion,  with  costs. 

Order  granted. 


LEVY  V.  WYNBSS. 

Mr.  Roux  moved  for  leave  to  sue  the 
respondent,  who  had  been  lessee  of  the 
Frontier  Hotel,  at  Dordrecht,  by  edictal 
citation,  for  a  sum  of  £250,  and  for  the 
attachment  of  funds  defendant  had 
placed  in  the  hands  of  Messrs.  Dre3^u8 
and  Co.,  of  East  London,  agents  of  the 
North  British  Insurance  Co.,  ad  fun- 
dandam  jurisdictionem.  The  respondeat 
was  believed  to  be  at  Petersburg,  in  the 
Transvaal.  l%e  matter  arose  out  of  a 
fire  at  the  hotel,  and  the  insurance  of 
the  billiard  tables  and  appurtenances, 
Venetian    blinds,  and  linoleums. 

Order  granted,  authorising  the  peti- 
tioner to  sue  Wyness  by  edictal  citation, 
and  the  attachment  of  the  sum  of  £250 
in  the  hands  of  Messrs.  Dreyfus  ad  fun- 
dnndam  jurisdictionem ;  rule  to  be  served 
personally,  failing  which,  one  publica- 
tion in  the  "  Zoutpansberg  Review  "  and 
*'  Star,"  Johannesburg,  rule  to  be  re- 
turnable on  the  13th  May. 


SCHMIDT  V.  BOHMIDT. 

Dr.  Greer  moved  for  an  order  direct- 
ing the  respondent,  petitioner's  husband 
to  pay  her  a  sum  of  £50.^  to^  enable  hei 
to  institute  an  action  for  judicial  sepama- 
tion  and  also  for  alimony.  The  ground 
of  t-he  proposed  action  was  the  respon- 
dent's cruelty  towards  the  petitioner,  his 
intemperate  habits,  and  failure  to  supply 
her  with  means  for  household  purpoeea 
Respondent  was  now  in  possession  of  all 
the  joint  estate,  and  was  living  on  the 
Flats. 

Respondent  did  not  appear. 

An   order  was  gi^ntea  directing     re- 
spondent to  pay  a  sum  of  £25  to     the 


"CAPB  TIMES"   LAW  REPORTS. 


241 


tpplioant*s  .Attorney  for  the  purposes  oi 
tin  proposed  suit,  and  £6  a  month  as 
alimony^  oosta  to  abide  the  result  of  the 
action. 


Ex  parte  BOSSEAU. 

Mr.  De  Waal  moved  for  the    registra 
tion  ol  a  certain   ante-nupit-al   contract  be- 
tween one  Gideon   Jacobus  van  Heerdeu 
And  Louisa  Krigo,  who  were   clients   of 
the  petitioner,  an  att-omey  of  this  court, 
practising  at   Steynsburg.       The   reason 
of  the  aoplicaticni  was  that  the  contract 
had  not  been  registered  within   the  stipu 
lated  period  from   the    marriage,   delay 
haiin);  been  occasioned  by     rejection  of 
the  ooDtraot  b;^  the  Registrar  of  Deeds 
on  account  of  insufficient  description  of 
an  erf   donated    to   the   intended    wife 
ander  the  contract. 
Order  granted  as  prayed. 


COLOHIAL  GOVERNMENT  V.  SCHWARTZ. 

Mr.  Howel  Jones  moved  for  leave  to 
■oe  the  defendant  by  edictal  citation 
upon  certain  mortgage  bonds,  due  by 
leL^on  of  the  non-payment  of  interest, 
snd  for  the  attachment  of  the  property 
at  Kenhardt  ad  fundandafa  jurisdie- 
tiimm.  Defendant  was  resident  at  Ger 
miaton,  Transvaal. 

Order  granted  as  prayed,  rule  to  be 
K^rred  peisonally.  and  to  be  returnable 
on  the  4th  May. 


S08SEY  v.  HOLLANDER. 

Mr.  W.  Porter  Buchanan  moved  for 
a  rnie  nwf  temporarily  interdicting  cer- 
t<io  pictures,  pending  an  action,  to  be 
nude  absolute. 

Role  road^  absolute,  costs  to  be  costs 
in  the  cause. 


JSjt  parte  marais  AND  wife. 

Mr,  W.  Porter  Buchanan  moved  for 
leave  to  sell  certain  property  in  the  divi 
sion  of  Bedford,  to  enable  petitioners  to 
Piy  off  the  liabilities  of  the  estate, 
and  costs  of  this  application,  and  with 
the  balance  to  purohase  landed  property, 
subject  to  thie  limitations,  conditions, 
and  atipnlations  of  the  ante-nuptial  oon 
tract  The  property  was  settled  by  the 
fint  petitioner  on  his  wife  for  the  oene- 
fit  of  any  children  bom  of  the  marriage ; 
failing  issue  that  outlived  the  first  peti- 
tioner, the  property  to  revert  to  him 
sbonld  his  wife  predecease  him.  The 
Master,  in  his  report,  said  that  the  case 
showed  how  worthless  were  settlements 
that  were  made  without  the  appointment 
of  trustees.  The  parties  had  disre 
girded  the  termfi  of  the  settlement  from 
the  beginning. 

The  matter  was  ordered  to  stand  over 
for  further    information 


Hx  parte  curtib. 

Mr.  Searle,  K.C.,  moved,  on  behalf 
of  George  Curtis,  as  Mayor  of  Oudts 
hoorn  and  chairman  of  the  Town  Coun- 
cil, for  an  order  fixing  a  date  within 
which  certain  claims  should  be  filed  of 
persons  claiming  transfer  of  certain  pro- 
perty, the  remaining  extent  of  which 
had  been  acquired  by  the  Town  Coun 
cil.  Possession  had  been  given  to  cer 
tain  persons  without  a  transfer  having; 
been  passed,  and  the  Town  Counal 
desired  to  nave  some  finalitv  to  the 
matter.  An  order  was  made  bv  the 
Court  in  1897  giving  the  Council  the  re- 
maining extent  of  the  farms  in  ques- 
tion, and  leaving  them  to  settle  with 
any  other  claimants.  The  petitioners 
had  got  transfer  of  the  property,  but 
they  were  unable  to  sell  because  this 
order  was  endorsed  on  the  deeds. 

Hopley,  J.,  said  that  ho  did  not 
see  how  he  could  make  an  order 
shutting  out  other  people  who  might 
possibly  have  rights  to  these  pro- 
perties. 

Mr.  Searle  said  that  the  matter  was 
a  very  old  one,  and  he  did  not  think 
the  Court  in  making  the  order  of  1897 
contemplated  that  the  Council  should 
wait  thirty  years  to  obtain  prescription. 
He  quite  recognised^  the  difficult  posi- 
tion the  Court  was  in. 

Hopley,  J.,  said  it  seemed  to  him 
that  there  were  onlv  two  ways  out  of 
the  difficulty.  Either  the  Council 
should  promote  a  Bill  in  Parliament  or 
sell  the  land,  subjeot  to  an  indemnity 
given  by  the  Council  to  buyers  against 
any  possible  claimants. 

After  hearing  Mr.   Searle  further, 

Hopley,  J.,  said  that  no  order 
would  lie  given  on  the  present  applica- 
tion. 


o'drek  v.  masterton. 

Mr.  Roux  moved  on  behalf  of  peti- 
tioner, now  of  Three  Anchor  Bay,  and 
formerly  carrying  on  business  as  a 
draper  and  outfitter  at  Mowbray,  for 
leave  to  sue  Thomas  Masterton  in 
forma  Ruperts  for  the  filing  of  a 
liquidation  account  of  his  administra- 
tion of  petitioner's  estate,  inspection  of 
the  books  of  his  estate,  and  so  forth. 

A  rule  nisi  was  granted  subject  to  the 
usual  certificate  calling  upon  Mr. 
Masterton  to  show  cause  on  the  15th 
April  why  leave  should  not  be  granted 
to  the  petitioner  as  prayed. 


Ex  2fovte  DE  KOCK. 

Mr.  J.  E.  R.  de  Villiers  moved  for  an 
order  authorising  the  Master  to  pay  out 
to  petitioner,  as  guardian  of  two 
children  by  her  first  marriage,  certain 
money  standing  in  the  Guardians' 
Fund  to  the  credit  of  the  elder  child, 
to  be  applied   to   her  education   at   the 


242 


tt 


CAPE  TIMES"   LAW  REPORTS. 


Huguenot  Semin-ary,  Wellingion.  Peti- 
tioner's second  husband  was  dead,  and 
she  was  in  somewhat  straitened  ciroum- 
stances. 

Order  granted,  authorising  the  Mas- 
ter to  pay  out  £50  a  year  for  three 
years  upon  proof  to  the  Master  that 
the  girl  was  attending  school  and  mak- 
ing satisfactory  progress. 


lu  re  THE  AHOY  BRICK  8YNDI0ATB,  LTD. 

Mr.  J.  E.  R.  de  Villiers  presented  the 
first  and  preliminary  report  of  the 
liquidators  of  this  company,  formerly 
carrying  on  business  at  or  near  Stellen 
boscn,  and  moved  for  an  order*  in  terms 
of  the  recommendations  of  the  liquida 
tors.  The  amount  still  due  from  con- 
tributories  waa  about  £72. 

Hopley,  J.,  said  that  an  order 
would  be  granted  directing  all  claimi 
against  the  company  to  be  sent  in  on 
or  before  the  31st  May,  and  the  con 
tributories  to  pay  unpaid  portions  of 
shares  on  or  before  the  31st  May. 


PASTIVI  v.  CASTA. 

Dr.  Rainsford  moved  for  the  appoint- 
ment of  a  commission  to  take  the  evi 
dence  of  a  witness  in  Johannesburg 
0>nsent  was  filed  by  the  defendant,  sub- 
ject to  the  commission  being  made 
general.  Counsel  asked  for  an  order 
accordingly. 

Order  granted  for  a  commission  dc 
bene  eae  m  terms  of  consent  paper,  thi 
commissioner  to  bo  Advocate  Percival 
Smith,  failing  him  Advocate  Saul 
Solomon. 


DABTEB  V.  DABTBB. 

Mr.  W.  Porter  Buchanan  moved,  on 
behalf  of  Georgina  Darter,  for  leave  to 
sue  her  husband,  Adrian  Albert  Darter, 
by  edictal  citation  for  restitution  of 
conjugal  rights,  failing  which  divorce 
by  reason  of  his  malicious  desertion. 
The  parties  seemed  to  have  been  of 
itinerant  habits,  and  ..he  alleged  deser- 
tion  took  place  while  they  were  on  a 
visit  to  England.  Counsel,  in  answer 
to  the  Court,  said  that  the  petitioner 
resided  in  Cape  Town,  and  the  respon- 
dent's domicile  of  origin  was  also  in 
Cape  Town.  The  petitioner  alleged 
that  her  husband  went  to  Anoerica  in 
1903   with    another  woman. 

The  matter  was  ordered  to  stand  over 
until    to-morrow    (Wednesday)    for  pro- 
duction of  an   affidavit  with   regard  to 
the  respondent's  domicile  of  origin. 
Postea  (March  21st). 

Leave  was  granted  as  prayed.  Cita- 
tion to  be  served  personally  if  possible, 
failing  which  one  publication  in  each  of 
two  Cape  Town  papers.  Rule  return- 
able on  June  Ist. 


Ex  parte  BORLAND. 

Mr.  W.  Porter  Buchanan  moved,  on 
behalf  of  petitioner,  a  fish-dealer,  of 
Faure,  suing  for  leave  to  raise  a  bond 
for  £250  on  a  certain  farm  belonging  to 
petitioner's  son,  who  was  of  unsound 
mind.  The  land  had  been  cultivated 
by  the  petitioner  during  the  lunacy  of 
his  son,  to  whom  the  land  was  originally 
granted  by  the  Government.  It  was 
proposed  to  divide  the  proceeds  of  the 
lond  botiweon  the  petitioner  and  the 
other  creditors. 

An  order  was  granted  authorising  the 
curator  bonis  of  the  lunatic  to  raise  a 
liond  for  £250  for  payment  of  the  peti- 
tioner and  other  creditors  of  the 
lunatic. 


Ux  parte  MCCALLUM. 

Mr.  P.  S.  T.  Jones  renewed  the  ap- 
plication in  this  matter  for  leave  to  aell 
the  Royal  Hotel,  in  the  district  of  Alice, 
and  produced  an  affidavit  of  the  value 
of  the  property  and  other  particulars, 
as  directed  by  the  Court  at  the  previous 
hearing.  The  petitioner  was  acting  on 
behalf  of  his  son. 

Order  granted  authorising  the  peti- 
tioner to  sell  the  property  for  a  sum  of 
not  less  than  £5,500  net,  and  authoris- 
ing the  Registrar  of  Deeds  to  pass  trans- 
fer to  the  purchaser,  the  proceeds  of 
the  sale  to  be  paid  to  the  manager  of 
the  Standard  Bank,  Fort  Beaufort,  in 
trust  for  the  minor,  until  re-invested  in 
immovable  property  of  a  rent-produc- 
ing nature  or  on  first  mortgage  upon 
immovable  property,  to  the  satisfaction 
of  the   Master. 


SUPREME  COURT 


[Before  the  Chief  Justice  (the  Riirht 
Hon.  Sir  J.  H.  db  Villirbs,  P.C, 
K.C.M.G.,  LL.D.).J 


PROVISIONAL  ROLL. 


MEBBINGTON  V.    DAVIDSON,  f        1905. 
BTIBLING,  AND  MUIL.         i  Mar.   15th. 


This     was    an 
sicnal    sentence 
in  their  capacity 
tate  of  Caroline 
with  interest   at 
30th   November, 
tions  of  sale,   a 
ready  been  paid. 


application  for  provi- 
against  the   defendants, 

as  executors  of  the  es- 
Elizabeth  Muil.  for  £84. 

6  per   cent,     from    the 

1903,  on  certain  condi- 

sum  of  £84  having  al- 

The  matter  arone  out 


"CAPE  TIMES"  LAW  REPORTS. 


243 


o(  the  sale  of  certain  Wis  of  ground  at 
Retreat,  {ormingr  part  of  the  lifracombe 
&tate. 

The  answering  affidavit  of  John  Muil 

stated  that  he  went  to  the  spot  prior  to 

the  sale,  and  walked  over  certain  ground 

to  the  left  of  the  beacon  in  company  with 

Mr   Merrington.     Thie  ground,   he  took 

it,  was  the  ground  to    be  offered  at  the 

sale.  At  the  sale  held  at  ( -laremont  suhse- 

qiwntly.  he  made  a  number  of  purchases, 

believing  that   the  ground    was   part  of 

that  ov«-r  which  he  iiad  walked  with  the 

plaintiff.    It   turned   out    that  the    land 

wad  situate  on  the  right-hand  side  of  the 

road  leading  from  the  beacon  to       the 

eastward,    and     consisting     of  sandhills. 

He  claimed  to  have  transfer  of  block  C, 

which  was  to  the  right  of  the  beacon. 

The  replying  affidavit  of  the  plaintiff 
stated  that  he  told  the  defendant  Muil 
that  the  land  to  the  left  of  the  beacon 
belonged  to  Mr.  Powrie,  and  that  the 
land  on  the  right  waa  his  (deponent's). 
He  denied  that  he  pointed  out  to  Muil 
the  land  that  he  had  purchased. 

Defendant's  further  affidavit  denied 
the  plaintiff's  version  as  to  what  took 
place  at  the  visit  paid  to  the  ground. 
Deponent  repeated  that  the  position  of 
the  ground  with  regard  to  the  beacon 
■9  pointed  out  by  Mr.  Merrington  was 
different  from  the  position  of  the 
RToand  as  pointed  out  bv  the  surveyor. 
Mr.  M.  de  Villiers  for  plaintiff;  Mr. 
Alexander  for  defendant. 

Mr.  Alexander  having  been  heard   in 
•ri^iunent  on  the  facts, 

De  Villiers,  C.J. :  According  to 
the  conditions  of  sale,  the  correct- 
ness of  which  is  assumed,  the  de- 
fendants bought  at  a  public  sale 
lots  Nos.  1  to  28,  block  *'  c.c,"  at  £6 
etrh.  The  plan  has  been  put  in  upon 
vhich  the  sale  took  place,  and  it  is  clear 
that  the  whole  of  this  property  was 
divided  into  lota  and  blocks,  ana  it  was 
quite  competent  for  every  purcharser  to 
have  found  out  for  himself  what  those 
lots  were.  Anyhow,  the  defendants 
booRht  "  c.c."  Now,  they  say  that  they 
really  intended  to  buy  "  c,"  and  the 
la^t  arfniment  is  that  that  was  an  error. 
Well,  if  it  was  an  error  it  certainly  was 
not  a  juttiu  erroTt  because  defendants 
ought  to  have  inquired  what  lote  they 
were  buying.  The  real  defence  is  that 
there  was  misrepresentation  by  Mr.  Mer- 
nngtoti.  the  plaintiff  in  this  case,  as  to 
what  lots  were  to  be  sold.  The  misre- 
presentation is  alleged  to  have  taken 
place  before  the  sale  actually  took  place. 
The  alleged  misrepresentation  consists  in 
this,  that  there  waa  a  certain  beacon  at 
a  comer  of  the  road,  and  that  Mr.  Mer- 
rington said  be  waa  selling  the  portion  to 
tb)  left.  That  seenus  to  mo  extremely 
i^irobaUe.  because  it  is  clear  from  tm 
alndavits  that  the  property  to  the  left 
of  the  beacon  did  not  belong  to  the 
plaintiff.  Clearly,  the  defendants 
whoUv  misunderstood  the  plaintiff.  All 
tiic  probabilities  of  tt»e  case  are  in  fa- 


vour of  the  plaintiff.  Judgment  will  be 
given  for  the  amount  prayed.  It  is 
said  that  there  has  been  no  tender  of 
transfer  of  the  ground  by  plaintiff  on 
payment  of  the  balance  of  purchase 
pnce. 

Counsel  having  been  heard  further  on 
this  point, 

De  Villiers,  C.  J. :  I  think  that  the 
plaintiff  ought  to  have  tendered  trans- 
fer, and  considering  also  that  lie  claimed 
double  what  he  was  really  entitled  to  in 
the  summons,  the  Court  should  refuse  to 
allow  the  plaintiff  coets.  But  the  Court 
will  allow  the  amendment  of  the  sum- 
mons, so  as  to  place  the  summons  in  the 
condition  in  which  it  ought  to  have  been, 
i.e.,  to  add  the  word«  "  plaintiff  tender- 
ing transfer  upon  payment  of  the  pur- 
chase price.*'  There  will  be  provisional 
sentence,  for  £168,  loss  £84  paid  on  ac- 
count, with  interest,  each  party  to  pay 
his  own  costs. 


'   IMPERIAL  GOLD  8TOBAOE    AND  SUPPLY 
CO.  V.  BARTLB  AND  GOUS. 

Mr.  W.  Porter  Buchanan  moved  for  a 
decree  of  civil  imprisonment  against  the 
two  defendants,  at  one  time  trading  in 
partnership,  upon  an  unsatisfied  judg- 
ment, for  £138  15s.  4d.,  ktss  £8  lOe.  6d., 
paid  to  the  plaintiff's   attomevs. 

Mr.  P.  S.  T.  Jones  (for  the  defendants) 
said  that  they  were  prejpared  to  make  an 
offer  on  behalf  of  uous  of  £2  per 
month,  and  for  Bartle  of  £1  per  month. 

Mr.  Buchanan  accepted  the  offer,  sub- 
ject to  defendants  pacing  costs. 

Decree  granted,  with  costs,  execution 
to  be  suspended  on  payment  of  £2  a 
month  by  Gous  and  £1  a  month  by 
Bartle,  first  payment  to  bo  made  on  the 
Ist  April. 


CHIAPPINI  BROS.  v.  BCHNEIDBB. 

Dr.  Greer  moved  for  provisional  sen- 
tence upon  a  mortgage  bond  for  a  bal- 
ance of  £585  38.  9d.,  with  interest  from 
the  1st  January  last,  the  bond  having 
become  due  by  reason  of  notice  given. 
Counsel  also  applied  for  the  property 
speciallv  hypothecated  to  be  declared 
executable. 

Mr.  Alexander  (for  the  defendant) 
read  an  affidavit  by  Edward  Barsdoif 
(who  holds  defendant's  power  of  attor- 
ney) to  the  effect  that  if  proper  notice 
were  given  by  the  plaintiffs  the  defen- 
dant would  be  able  to  meet  the  bond. 
The  defendant  had  been  suddenly  called 
upon  to  pay  the  bond.  She  was  receiv- 
ing large  rents  from  property  at  Zonne- 
bloem. 

Dr.  Greer  read  a  replying  affidavit  by 
Alex.  John  Chiappini,  who  said  he  was 
still  prepared  not  to  enforce  the  bond, 
provided  the  defendant  authorised  the 
plaintiff  firm  to  collect  the  rents,   and 


i 


244 


»< 


CAPE  TIMES"  LAW  REPORTS. 


Bet  them  off  against  the  bond.  One 
reason  why  notice  calling  up  the  bond 
had  been  given  was  that  the  defendant 
had  started  collecting  the  rents  o£  the 
property,  contrary  to  a  verbal  agreement 
she  haa  entered  into  with  the  plaintiff 
firm. 

Counsel   having   been   heard   in   argu- 
ment on  the  facts, 

Do  Villicrs  C.  J. :  The  bond 
on  which  the  plaintiff  sues  is 
for  JB600,  as  second  mortgage  on 
certain  property.  There  is  nothing  on 
the  face  of  the  bond  to  show  that  it  is 
a  mere  covering  bond  for  money  ad- 
vanced and  to  be  advanced,  while,  as  a 
matter  of  fact,  it  is  a  bond  for  £600, 
being  money  duly  lent  and  advanced  to 
the  nearer,  upon  which  interest  at  the 
rate  of  6  per  cent,  is  to  be  paid.  The 
bond  contains  the  usual  clause  that 
three  months'  notice  must  be  given,  to 
the  effect  that  £488  was  claimed  under 
the  bond  three  months  hence.  In  the 
notice  to  the  defendant,  the  plaintiffs 
say,  *'  Please  find  statement  of  account 
showing  a  balance  due  by  you  of  £488 
88.  4d.,  which  is  covered  by  second  bond 
in  our  favour."  After  the  notice  had 
been  given,  the  parties  apparently  be- 
came on  friendly  terms  agam,  the  notice 
was  silently  ignored,  the  plaintiffs  con- 
tinued to  receive  the  ronta,  and  were 
paid  5  per  cent,  for  collecting,  and  out 
of  those  rents  they  paid  themselves  the 
interest  acruing  on  the  bond,  bcsido 
paying  other  claims  owing  by  tlie  de- 
fendant. Things  went  on  in  this  way 
until  afterwards  the  defendant  gave  her 
power  of  attorney  to  Mr.  Barsdorf  to 
receive  these  rents,  whereupon  the  plain- 
tiffs naturally  refu<$od  to  go  on  any  longer 
assisting  the  defendant,  and  the  plain- 
tiffs brought  an  action  on  the  bond. 
But  they  no  longer  treated  it,  in  the 
summons,  aa  a  covering  bond.  In  the 
summons  they  sued  for  the  full  amount 
of  the  bond,  viz.,  £600.  Clearly,  there 
has  never  been  any  notice  to  the  defen- 
dant to  pay  £600  in  terms  of  the  present 
summons.  There  has  been  a  notice  to 
pay  £488,  and,  failing  payment  of 
that  sum,  the  bond  to  fall  due.  Now, 
the  summons  calls  upon  the  defendant 
t  >  pay  the  full  £600,  for  which  there  has 
been  no  due  notice  given  to  the  de- 
fendant. It  is  unnecessary  to  go  into 
the  further  question  whether  the  plain- 
tiffs and  defendant  had  made  a  verbal 
agreement,  such  as  the  plaintiffs  allege, 
VIZ.,  an  agreement  under  which  they 
wore  to  continue  to  collect  the  rents; 
and  further,  whether  it  was  in  conse- 
quence of  the  defendant's  action  in  con- 
nection with  the  appointment  of  Bars- 
dorf that  the  plaintiffs  were  entitled  to 
cease  to  act  under  this  agreement,  and 
revert  to  the  original  notice.  There  has 
bten  no  due  notice  given  by  the  plain- 
tiffs to  the  defendant  calling  up  the 
balance  due  on  the  bond.  Provisional 
sentence  must,  therefore,  be  refused 
with  costs. 


MCLVOD  v.  MULLBB  AKD  OTHBBB. 

Mr.  Searle,  K.C.,  moved  for  provision- 
al sentence  on  a  promissory  note  for 
£1,617  Os.  lOd.,  of  which  the  first  defen- 
dant was  the  maker  and  the  other  defen- 
dants were  endorsers. 

Mr.  W.  Porter  Buchanan  appeared  for 
the  defendants,  and  read  an  affidavit  by 
Abraham  Johannes  Muller,  of  Aberdeen, 
who  denied  that  he  owed  anything  to 
the  plaintiff  on  a  promissory  note.  The 
plaintiff  had,  he  said,  no  authority  to 
sue  on  the  promissory  note.  Counsel 
also  read  affidavits  by  the  other  defen- 
dants, both  of  whom  declared  that  there 
was  no  amount  owing  to  the  plaintiff 
under  the  promissory  note. 

Mr.  Searle  read  an  answering  affidavit 
by  William  James  McLeod  (the  plain- 
tiff), who  entered  into  a  detailed  state- 
ment with  regard  to  the  transactions 
leading  up  to  the  promissory  note.  He 
averred  that  the  amount  claimed  was 
owing. 

Mr.  Searle  having  been  heard  in  argu- 
ment on  the  facts, 

De  Villicrs,  C.  J. :  This  docu- 
ment is,  on  the  face  of  it,  sonae- 
what  obscure.  When  the  plain- 
tiff was  applied  to  for  particulars  of 
the  account  on  behalf  of  the  defendants 
lie  expressed  his  surprise  at  the  applica- 
tion, and  declined  to  give  them  a  state- 
ment. He  should  have  remembered  that 
he  was  dealing  with  ignorant  farmers, 
and  that  he  had  been  acting  for  them, 
and  that  it  was  due  to  them  that  he 
should  give  them  an  explanation.  It 
14  really  a  matter  of  surprise  to  me  that 
he  refused  to  give  them  the  explanation, 
which,  in  my  opinion,  was  reasonably 
asked  for  on  behalf  of  the  defendants. 
Oil  the  whole,  I  have  come  to  the  con- 
clusion that  justice  would  be  done  in 
the  present  case  by  directing  that  the 
plaintiff  should  go  into  the  principal 
rase.  He  can  then  prove  the  indebted- 
ness of  all  the  parties,  including  the  two 
sureties,  under  this  document.  In  the 
meanwhile,  I  would  suggest  that  if  the 
defendants  find,  upon  accounts  rendered 
by  the  plaintiff,  tnat  there  is  an  indebt- 
edness, they  should  then  avoid  any  fur- 
ther costs  which  may  be  incurred  bv 
tendering  the  amount  of  the  indebted- 
ness which  they  find  to  be  due,  instead 
of  going  into  the  principal  case.  For 
the  present,  it  appears  to  me  not  to  be 
a  case  in  which  the  Court,  under  the 
ordinary  procedure,  would  be  justified 
in  giving  provisional  sentence.  Thi; 
(;Ourt,  therefore,  will  order  the  par- 
ties to  go  into  the  principal  case,  and 
the  costs  will  be  costs  in  the  cause. 


t< 


CAfB  TIMES'*  Law  ftEPOllTd. 


245 


SUPREME  COURT 


[Before  the  Chief  Justice  (the  Rijfht 
Hon.  Sir  J.  H.  DB  ViLLiERS,  P.C., 
K.C.M.O^  LL.D.).] 


RBHABI LITATIOKS. 


1 


1905. 
Mar.  Itith 


Mr.  P.  S.  T.  Jones  applied  for  the 
n'htbilitetion  of  William  Peter  Daniel 
Moyer. 

Granted. 

Mr.  P.  S.  T.  Jones  applied  for  the 
rehabilitation  of  Jacob  Geor^  Buhlmann, 
whose  estate  disclosed  a  deficiency  of 
£33. 

De  Villiers,  C.J. :  The  insolvent  ought 
tj  have  kept  proper  books,  and  the 
tnjsteo  thinks  that,  apart  from  the  fire 
which  insolvent  says  destroyed  his 
DookB,  the  insolvent  had  not' kept  a 
proper  record.  The  application  will  be 
refoaed,  with  leave  to  apply  again  in 
six  months. 


GENERAL  MOTIONS. 

HHMAKir  AMD    CANABD    V.  f        190o. 
POLICANSKY  BROS.  )  Mar.  16th. 

This  was  an  application,  upon  notice 
^'f  motion,  for  an  interdict  restraining 
toe  respondents  from  selling  cigarettes 
u»  packets  which  are  colourable  imita- 
BCDs  of  the  packets  containinjg  cigarettes 
manufsctured  by  the  applicants,  and 
wfcich  are  calculated  to  deceive  anybody 
iLiending  to  purchase  applicants'  cigar- 
ettes. 

The  affidavit  of  Nathan  C'anard, 
•  partner  in  the  applicant  firm, 
stated  that  they  were  registered 
proprietors  of  a  certain  brand  of 
cigarettes  called  **  Sultans."  The 
respondents,  Louis  and  Philip  Polican- 
Ky,  were  also  registered  proprietors  of 
a  certain  trade-mark  called  "Sultan." 
Both  were  registered  on  the  11th  Jpiiu- 
vy,  1905.  When  the  respondents  claimed 
to  have  this  mark  registered,  the  ap- 
pucants  objected,  on  the  ground  that  as 
Ur  back  as  1897  the  applicanU  ha-^  been 
uting  the  wor  J  "  Suitan  "  in  rer  td  to 
cigarettes  sold  in  South  Africa,  '^^e  re- 
spondent, Philip  Policansky,  had  been 
in  the  employ  of  the  applicants,  and 
"P^  he  had  commenced  in  business 
with  his  brother,  he  had  bought  Jarga 
qnantities  of  their  cigarettes,  the  last 
»e  being  on  the  6th  October,  1904. 
Ine  respondents  were  now  selling  vheir 
own  cigarettes,  in  packets  which  w-ire 
colourable  imitations  of  packets  used  by 
applicants,  and  calculated  to  deceive  any- 
wwy  intending  to  purchase  the  cigar- 
ettes of  the  applicant  firm. 


The  answering  affidavit  of  Philip 
Policansky,  stated  that  his  firm  had 
used  the  words  *'  Sultan's  Favourites " 
for  a  term  of  five  years.  Ho 
denied  that  the  packets  in  which 
their  cigarcttee  were  ondoecd  were 
colourable  imitations  of  those  used  by 
the  applicants,  and  said  that  his  firm 
wcro  first  in  the  field  with  the  brand 
"Sultan's  Favourite,"  and  that  it  was 
because  of  the  successful  sales  that  they 
had  had  in  this  cigarette  that  the  present 
proceedings  were  brought 

A  replying  affidavit  was  put  in, 
and  Mr.  Gutsche  for  the  applicants, 
submitted  that  the  whole  get-up 
of  the  respondents*  cigarette  packets 
showed  a  great  similarity  to  tha*e  of  the 
applicants',  both  in  regard  to  tl«>  label 
and  size  of  the  packets.  They  did  not 
say  that  the  respondents  were  acting 
wrongfully,  but  they  did  say  that  the 
Registrar  of  Deeds  ought  not  to  have  re- 
gistered two  trade  marks  which  bore  so 
much  resemblance.  For  over  seven  years 
the  applicants  had  been  iksing  the  gre<M\ 
label  with  the  imprint  "Sultan,"  upon 
their  packets  of  ciga.rettes.  Ho  also 
submitted  that  the  respondents  were 
quite  in  error  in  saying  that  the  appli- 
cants had  put  on  the  market  a  colouraole 
imitation  of  the  respondent's  cigarettes. 
"Sultan's   Favourites." 

Without  calling  upon  Mr.  Burton  (for 
respondents) : — 

De  Villiers,  G.J. :  The  only 
similarity  between  the  two  marks 
is  that  the  word  "  Sultan "  ap- 
pears in  them,  but  the  respondents  are 
registered  owners  of  the  trade  mark 
"  Sultan,"  so  that  that  is  not  a  sufficient 
ground  for  making  an  order  in  terms  of 
tho  application.  But,  then,  it  is  said 
th.it  the  word  "Sultan"  is  printed  in 
exactly  the  same  way  on  the  respon- 
dent's mark  as  on  the  applicants .  I 
have  before  me  the  registration  of  the 
re«?pondents'  trade  mark,  in  which  the 
word  "  Sultan "  appears  in  that  very 
form,  but  an  "  S,"  a  large  "  S,"  is  below 
the  rest  of  the  letters.  Then  another 
contention  is  that  the  trade  mark  is 
gicen,  but  the  colour  green  is  not  a 
monopoly  of  one  person  more  than  an- 
other, and  it  does  not  appear  to  me  to  be 
any  intentional  imitation  of  the  appli- 
cants' trade  mark,  beyond  the  use  oi  the 
word  "  Sultan,"  which,  as  I  have  said, 
is  common  to  both.  There  are  many 
points  of  difference.  For  instance,  there 
is  the  ornamentation  of  the  side^.  The 
respondents  have  not  adopted  that  orna- 
mentation, and.  moreover,  I  find  that  in 
another  respect  they  might  have  imitat- 
ed the  applicants'  trade  rnark,  and  they 
did  not  do  so.  In  the  origin^  there  are 
the  words  "  Egyptian  cigarettes  "  at  the 
bo-  tom.  That  is  exactly  the  same  as  the 
applicants'.  But  they  (respondents') 
omitted  the  words,  and,  in  the  trade 
mark,  now  objected  to,  instead  of  having 
the  words  "  Egyptian  cigarettes  "  ap- 
pearing on  the  packets,   as  they  might 


1 


S46 


"CAPE  TIMES"  LAW  REPORTS. 


have  had.  they  have  the  words  "  manu- 
factured by  Policansky  Bros,"  as  if  to 
avoid  an  imitation,  which  might  other- 
wise exist.  It  seems  to  me  perfectly 
clear  that  there  is  no  ground  for  the 
present  application,  and  it  must  be  re- 
fused with  costs. 


TURNBB     y.     LLEWELLYN     AND 
WIQOINOTON. 

This  was  an  application  upon  notice 
of  motion,  calling  upon  the  rcsnondents 
to  show  cause  wny  thej  should  not  be 
committed  for  contempt  m  failing  to  obey 
an  order  by  Mr.  Justice  Hopley  to  dis- 
cover on  oath  documents  relating  to  a 
certain  matter  at  issue  between  the 
parties.  Dr.  Rainsford  was  for  the  ap- 
plicants; Mr.  W.  Porter  Buchanan  was 
for  the  respondents. 

Dr.  Rainsford  stated  that  since  the 
notice  of  motion  was  served,  a  further 
and  fuller  affidavit  of  discovery  had  been 
made  by  the  respondents,  and  the  only 
matter  now  in  dispute  was  the  question 
of  costs.  At  the  time  the  further 
affidavit  was  made,  the  notice  of  motion 
had  been  served,  and  counsel  had  been 
briefed.  Counsel  read  an  affidavit  in 
support  of  his  statements  by  W.  G. 
Fairbridge,  of  the  firm  of  Messrs^  Fair- 
bridge,  Arderne  and  Lawton,  the  plain- 
tiff's attorneys. 

Do  Villiers,  C. J. :  The  affidavit 
does  not  disclose  any  wilful  dis- 
obedience on  the  part  of  the  re- 
spondents, and  it  is  only  for  wilful 
disobedience  tliat  the  Court  would  com- 
mit them  for  contempt  of  Court.  In 
filing  an  affidavit  of  discovery,  they  in- 
dicated in  the  schedule  that  they  had 
certain  documents.  They  said,  for  in- 
stance, that  they  had  correspondence 
'*  between  i)laintiif  and  defendants  and 
their  respective  attorneys."  It  would 
iiave  been  more  formal  to  mention  the 
dates,  and  specify  more  particularly  the 
correspondence,  but  it  is  a  mistake 
which  it  was  natural  to  make,  because 
the  defendants  deemed  that  "  if  once 
they  referred  to  corresix)ndence  between 
themselves  and  the  opposite  party,  that 
would  be  sufficient  indication  to  the 
opposite  party  as  to  what  docu- 
ments they  intended  to  produce. 
Well,  the  plaintiff  was  not  satisfied 
with  that,  and  demanded  fuller 
particulars,  upon  which  the  defendants' 
attorneys  wrote  to  their  clients— their 
clients  being  some  distance  from  here,  at 
Kast  London — asking  for  the  informa- 
tion. Then  there  is  a  demand  that  it 
must  be  done  by  telegraph.  A  letter 
was  sent  in,  and  in  due  time  the  further 
particulars  were  given,  but  in  the  mean- 
while application  had  already  been  made 
to  the  Court  for  attachment  for  con- 
tempt of  Court.  I  think  the  plaintiff 
was  in  too  great  a  hurry.  The  de- 
fendants* attorneys  were  anxious  to  com- 
ply with  the  Rules  of  Court,  they  made 


a  technical  mistake,  but  it  was  not,  in 
my  opinion,  such  a  mistake  that  re- 
spondents snould  be  punii^ed  hv  the 
Court.  The  application  must  be  re- 
fused, with  costs. 


KEATING  y.  NAZARETH  HOUSE  AND 
OTHEBB. 

This    was    an    application   to   have   a 
rule     nigi     made     absolute     restraining 
ti.e  Mother  Superior     of  the  Nasareth 
House  from  parting  and  otherwise  deal- 
ing with  a  certain  cheque  for  £200,  or 
paying  it  over  to  one  Oreste  NannuccL 
The       affidavit      of      the      applicant 
stated     that     in     February,     1904,     he 
entered       into     a     contract     with     the 
Mother      Superior      and   Sisters   of   the 
Nazareth  House,  Cape  Town,      for  the 
erection  of  a  laundry  block,  for  the  sum 
of  £2,850;  and  that  he  gave  the    Mother 
Superior  authority  to   pay  to   Nannucci 
any  money  which  might  become  due  to 
him   (applicant)    on      the  said   contract 
Numerous  and   complicated  transactions 
had  since  taken  place  between  applicant 
and  the  said  Nannucci,  accounts  had  not 
yet  been  struck,   there      was  a  dispute, 
and  the  balance  had  to  be  ascertained. 
He  believed  Nannucci     was  claiming  a 
sum   far   in  excess      of  what  petitioner 
owed  him.     On  the  14Ui  February,  1905, 
he  wrote  to  the     Mother  Superior     re- 
voking  the   authority   to   pay   over   the 
said  sums,  and  on  the  16th  February  re- 
ceived a  letter  from  her,     in    which  she 
said  that  a  cheque  for  £200  had  already 
been    made    out    payable    to   Mr.    Nan- 
nucci, but,  in  consequence  of  the  letter, 
this  cheque  had  not  been  forwarded  to 
Mr.  Nannucci.    There  was  a  balance    of 
£200  due  to  the  petitioner  on  the  con- 
tract 

The  answering  affidavit  of  Oreste 
Nanucci,  stated  that  the  whole  of 
tho  transactions  in  question  were 
between  the  applicant  and  the  com- 
pany of  which  he  (deponent)  was  manag- 
ing director,  and  that  he  could  show 
clearly  that  the  petitioner  was  indebted 
to  the  said  company  in  the  sum  of  £444 
lis.  lid.  He  denied  that  there  were  any 
complications  of  accounts.  Deponent 
held  a  promissory  note  from  the  peti- 
tioner for  £213  8s.  2d.,  payable  on  the 
28th  February,  1905,  leaving  a  balance 
due  to  deponent  of  £231  38.  9d.  Ad- 
vances had  been  made  to  the  petitioner 
!  to  enable  him  to  enter  into  the  contract 
with  the  said  authorities  of  Nazareth 
House. 

Mr.  P.  S.  T.  Jones  for  applicant;  Mr. 
W.  P.  Buchanan  for  respondents. 
After  hearing  counsel  on  the  facts. 
Do  Villiers,  C.  J. :  It  is  quite 
clear  that  the  Court  has  not 
sufficient  information  before  it  to 
decide  between  the  parties  on  the 
merits  on  this  application,  but  it  is 
clear  that  the  Mother  Superior  ought 
to  be  allowed  now  to  pay  the  money 


"CA1»B  HMES'*  LAW  REPORTS. 


247 


over  to  the  Registrar.  The  Court  will 
tathoriee  her  to  pay  the  sum  over  to 
the  Regiitrar  of  the  Court  to  abide  anj 
further  order  of  the  Court,  costs  of  this 
tmUoatioii  to  stand  oyer,  any  costs 
Which  the  Mother  Superior  xpay  reason- 
tbly  have  incurred,  for  which  in  any 
erent  she  is  not  to  be  held  liable,  to  be 
paid  by  whichever  party  is  ultimately 
held  to  he  in  tftie  wron^. 

Mr.  Jones  asked  if  those  costs  would 
inclade  the  double  briefing  of  counsel  on 
the  other  side? 

De  Yilliers,  C.  J. :  I  think  thoyr  are 
wholly  unnecessarv  costs  .There  is  no 
reason  why  this  lady  should  have  ap- 
peared at  all. 


EsB  parte  lawbencb  akd  CO. 

Mr.  J.  £.  R.  de  Villiers  moved,  as 
s  matter  of  urgency,  for  an  interdict 
NstrainiDg  one  Barnard  Philips  froni 
Paying  out  to  one  Per  Krawitz  certain 
moneys,  being  the  latter's  share  in  a  cer- 
tam  partnerwip,  ponding  an  action  to 
be  btooght  by  the  petitioners  in  the 
Magistrate's  Ck>urt.  The  said  Krawitz. 
who  formerly  carried  on  business  at  34, 
Caledon-street,  Cape  Town,  was  in- 
debted to  the  petitioners  in  tne  sum  of 
£37.  Krawitz  had  been  away  from  this 
cobny  for  a  period  of  four  years,  and 
there  was  reason  to  believe  that  when 
the  partnership  had  been  liquidated  he 
would  again  leave  the  junsdiotion  of 
the  Court. 

De  Villiers,  C.J. :  Under  the  special 
circumstances  the  Court  will  grant  a 
rule,  but  it  will  not  make  an  order, 
the  rule  to  be  served  on  Krawitz  and 
Philips  to  show  cause  on  the  15th  April 
why  an  order  should  be  made  as 
prayed,  rule  to  operate  as  an  interim 
mterdict,  with  leave  to  either  of  the 
respondents  to  apply  in  the  meantime 
for  the  discharge  of  the  order. 


BABSON  Y.  BECK. 

Mr.  J.  E.  R.  de  Villiers  (for  the  ap- 
plicans)  moved  as  a  matter  of  urgency 
tor  a  commission  to  oxamino  one 
Arnold  Francois  Stewart,  who  was 
about  to  leave  this  port  by  the  Buorger- 
meister  for  Marseilles. 

De  Villiers,  C.J.,  said  that  a  commis- 
sion de  bene  esse  would  be  granted, 
**nng  all  just  exceptions  hereafter,  the 
oommiasioner  to  be  Mr.  Advocate  Do 
Waal. 


HOBDE37  y.  KBTS. 


This  was  an  application  upon  notice 
of  motion  for  a  rule  nisi  to  be  made 
jhsoloie^  restraining  the  respondent 
from  proceeding  with  the  execution  of 
ft  certain      wnt  under   which   he  had 


attached  applioant's  goods  and  chattels, 
rule  to  operate  as  an  interdict  in  the 
meantime. 

The  matter,  it  appeared,  arose  out  of 
a  sale  of  certain  licensed  premises  .  at 
Kuil's  River,  and  had  been  standing 
over,  pending  the  decbion  of  an  ftPpoM 
in  the  action  brought  by  Bosman,  Fowis 
and  Co.  against  Norden,  to  determine 
the  oonstruotion  of  a  broker's  note.  That 
appeal  had  now  been  decided,  and  the 
judgment  given  in  favour  of  Norden  in 
the  action  had  been  upheld. 

Mr.  P.  S.  T.  Jones  was  for  the  appel- 
lant, Joseph  Bonjamin  Norden ;  Mr. 
Searle,  K.C'.,  was  for  the  respondent, 
Johannes  Simon  A.  Kets. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

De  Villiers,  C. J. :  The  Court  has 
not  now  to  consider  whether  Kets 
has  acted  in  a  very  considerate 
manner,  but  the  question  is,  has 
ho.  acted  according  to  the  law? 
There  is  nothing  to  show  that  he  has 
acted  illegally.  He  has  acted  upon 
his  strict  rights,  and  although  the  Court 
did  grant  a  rule  niti  for  the  purpose 
of  preventing  the  possibility  of  injustice 
being  done  to  the  applicant,  the  Court 
did  not,  by  granting  that  rule  nut,  in- 
tend to  intimate  that  Kets  had  acted  in 
any  way  improperly.  By  law,  he  is 
entitled  to  proceed  to  execution,  but, 
considering  that  the  appeal  was  still 
pending,  and  that  the  result  of  that 
appeal  might  be  to  place  the  applicant 
in  a  bettor  position  to  oarry  out  his  part 
of  the  contract,  the  Cburt  virtually — 
that  is  the  effect  of  it — postponed  the 
putting  into  effect  of  that  judgment. 
The  applicant  now  has  suoceeaed  in  the 
ai>peai.  and  it  appears  now  that  he 
will  be  prepared,  whjch  he  was  not  be- 
fore, to  oarry  out  his  part  of  the  con- 
tract. Mr.  Steytler,  in  refusing  to  ad- 
vance the  full  sum  whioh  he  promised 
to  advance  to  the  applicant,  acted  as 
the  secretary  of  his  Board,  which  was  to 
lend  the  money  independently  of 
Kets.  Kets  was  not  in  any  way  re- 
sponsible for  it.  It  BO  happens  that  Mr. 
Steytler  was  also  the  agortt  of  Kets,  but 
that  does  not  alter  the  fact  that  Mr. 
Steytler,  in  lending  the  money,  was  act- 
ing in  an  entirely  different  position. 
Under  these  circumstances,  I  am  of 
opinion  that  the  rule  should  be  dis- 
charged, and  as  to  the  costs,  these  must 
be  paid  by  the  applicant. 


COWLING  V.  STABLEFOBD  AND  CO.,  LTD. 

Mr.  P.  S.  T.  Jones  moved,  in  terms 
of  section  141  of  the  Companaes  Act,  for 
leave  to  continue  a  ccrtam  action  which 
the  applicant  was  bringing  against  the 
reeponaent  company.  As  a  matter  of 
fact  the  defendant  company  had  called 
the  applicant's  attention  to  the  matter. 

Order  granted  as  prayed. 


^4S 


"CAPE  TIMES"  LAW  REl>OttTS. 


J'Jx  parte  BELL. 

Mr.  P.  S.  T.  Jonee  moved  for  leave 
to  raise  a  Bum  of  £1,000  on  mortgrage, 
for  the  benefit  of  his  minor  children. 

Order  granted  in  terms  of  the  Mas- 
ter's report,  loan  to  be  r&iaod  for  the 
purpose  of  defraying  all  liabilities  to 
the  satisfaction  of  the  Master,  includ- 
ing costs  of  this  application. 


VAN  NIBKEBK    V.  FABBR. 

Mr.  Searlew  K.C.,  moved  for  an  order 
extending  the  return  day  of  a  certain 
citation.  Defendant,  when  the  original 
application  was  made,  was  believed  to  be 
in  German  South-west  Africa,  but  a 
letter  had  since  been  received  from 
him  from  Germany  stating  that  ho 
would  come  back  to  this  colony  in  March 
or  May. 

Return    day   extended  until    the   11th 

May. 


DONAGHY  V.   DONAG 


f        1005. 
'"^-     JMar.   Ulh. 


Marriage  —  Bigamy  —  Decree  of 
nullity. 

The  Court  rpfiised  to  grant  a 
decree  of  nullity  of  marriage 
mi  motion;  though  the  rcspon- 
d-ent  had  been  conincted  of 
bigamy  by  intermarrying  with 
the  applicant,  his  wife  being 
still  alive. 


Tliis  was  an  applica'tion  upon  notice 
calling  upon  the  respondent,  Frederick 
Donaghy,  to  show  cause  why  the  mar- 
riage purporting  to  have  l^eeii  entered 
into  between  himself  and  the  petitioner 
on  the  10th  September,  1901,  should  not 
bo  declared  null  and  void,  and  the  re- 
cord cancelled.  Respondent  appeared 
in  person. 

De  Villiers,  C.J.,  remarked  that  it 
wtis  unusual  to  cancel  a  marriage  on 
notice  of  motion. 

Mr.  Searlo  (for  applicant),  admitted 
that  it  was  unusual.  The  i)ctitioner  in 
this  ca^e  appeared  to  have  been  un- 
fortunate in  her  matrimonial  relations. 
She  was  first  married  to  one  Slate, 
from  whom  She  obtained  a  divorce, 
and  then  she  married  the  respondent, 
who  was  at  the  time  also  married  to 
someone  else.  He  w"as  convicted  of 
bigamy  and  was  now  serving  his  sen- 
tence on  the  Breakwater.  His  sentence 
wa«*   15   months*   imprisonment. 

[De  Villiers,  C.J.  (to  respondent) : 
Do  you  appear  to  oppose  this  applica- 
tion ?] 

Yes,   my  lord. 


[De  Villiers,  C.J. :  On  what  grounds?] 

At  the  present  time,  having  still  three 
months  to  serve,  I  have  no  means  of 
obtaining  legal  assistance,  but  when  I 
receive  from  petitioner  the  moneys  be- 
longing to  me,  I  can  engage  an  attor- 
ney. The  petitioner  was  well  acquain- 
ted with  her  position  all  along,  and  I 
would  like  the  matter  adjourned  until 
the  end  of  my  term. 

[Do  Villiers.  C.J. :  If  you  admit  that 
you  were  already  married  at  the  time 
there  can  be  no  defence.] 

Respondent  said  that,  as  to  costs,  he 
was  unable  to  pay  anything. 

Mr.  Searle,  replying  to  nis  lordship, 
said  he  would  not  press  for  costs  against 
the  respondent. 

Respondent:  I  was  led  to  believe  that 
the  second  marriage  would  be  valid, 
providing  the  fir^t  wife  did  not  set  foot 
in   South  Africa. 

[De  Villiers,  C.J. :  That  makes  no 
difference.  If  you  are  married  it  does 
not  matter  where  your  wife  is.  For- 
tunately that  is  not  the  law.] 

I  thought  it  was  under  the  Roman- 
Dutch   law,  sir. 

[De  Villiers,   C.J. :    Oh,  dear  no.] 

Respondent  went  on  to  say  tlmt  be 
claimed  a  ten  per  cent,  comnodssion  for 
managing  the  petitioner's  property,  for 
£60  in  cash,  and  wished  'bo  have  an  or- 
der for  that  and  also  for  his  private 
prcwperty. 

[De  Villiers.  C.J. :  I  am  -afraid  you 
will    have    to   proceed    by    action.] 

Respondent  further  stated  that  he  had 
been  advised  that  he  could  obtain  a 
divorce  from  his  first  wife  on  the  grounds 
of  her  insanity.  It  had  been  his  inten- 
tion to  have  made  the  petitioner  his 
lawful  wife  Ss  soon  as  that  was  done, 
but  he  was  arrested  before. 

Mr.  Searle  said  it  was  put  before  the 
Court  at  the  trial  that  respondent's 
first  wife  wa6  In  an  asvlum  in  Ireland. 
He  was  informed  that  the  petitioner  did 
not  know  Donaghy  was  already  married 
when   she  entered   into   this  mariage. 

De  Villiera,  C.J.,  said  if  the  respon- 
dent objected  to  the  present  application 
on  notice  of  motion  he  could  do  so, 
and  a  summons  would  be  served  upon 
him,  but  that  would  lead  to  muoh  more 
expense. 

Respondent  said  he  would  prefer  that 
the  matter  should  stand  over  until  he 
W86  liberated  in   three  months'    time. 

[De  Villiers,  G.J. :  It  may  be  less 
than  that.] 

Respondent :  No,  my  lord,  there  is 
no  mitigation  on  a  fifteen  months'  sen- 
tence. Perhaps  Mr.  Justice  Hopley 
did  not  think  of  that  at  the  time. 

[De  Villiers,  C.J. :  Well,  he  can  be 
communicated  with.] 

De  Villiers.  C.  J. :  No  order  will  be 
made  until  the  resjxmdent  is  liberated 
from  gaol.  This  is  too  important  a 
matter  to  be  decided  on  motion.  The 
man  says  he  has  a  claim  in  reoonven- 


"CAJI^E  TlB<IE3''  LAW  HE^ftTS. 


^9 


tion.  He  may  have  a  claii9  for  cotAs 
ID  the  action.  It  is  clearly  a  case 
which  should  not  be  decided  on  motion, 
hut  by  action.  There  will,  therefore, 
bo  no  order  on  the   application. 


SUPREME   COURT 


[Before  the  Chief  Justice  (the  Kif^Lt 
Hon.  Sir  J.  H.  DS  Villiebb,  P.O., 
K.C.M.G..  LL.D.).] 


GENERAL    MOTIONS. 


B*  rCUBK    V.    CADBB   AND    f         I'.Kiu. 

11AS8AM.  (Mar.  17th. 

This  was  an  application  by  Francois 
L  C.  Boucher  to  have  a  rule  nisi  made 
absolute,  calling  upon  the  respondents, 
Cader  and  Hassan,  to  show  cause  why 
the^  should  not  be  interdicted  from 
paying  oTer  certain  moneys  to  one 
Abdol  Mahomet,  until  the  debt  due  to 
the  petitioner  from  Mahomet  had  been 
discharged.  Mr.  P.  8.  T.  Jones  was 
for  the  applicant;  Mr.  Alexander  was 
for  the  respondents. 

From  the  affidavits,   it  appeared   that 

the  applicant  alleged  that   there  waa  a 

lum  of  £52   10s.   due  to  him   under     a 

pramiaeory    note   given   by      Mahomet; 

(hat  Mahomet  had  eold   certain      buai- 

oess      he     had      lately    carried    on  in 

D'Crban-road,  Mowbray,      to    the      re- 

fpondents;    that  respondents      owed    to 

Mahomet  a  balance  of  £93     Ss.   on  the 

lale  of  the  business.     Mahomet,   in   his 

answering  affidavit,  now  repudiated  the 

ptomisaory  note. 

De  Vilfiers,  C.J..  remarked  that  't 
wsjt  a  matter  of  daily  occurrence  that 
they  hjd  trouble  with  these  Indians. 
They  commenced  business,  and  then, 
when  they  got  into  difficulties,  Hiey 
iold  out,  and  the  creditors  found  that 
th*  assets  were  gone. 

Mr.  Alexander  submitted  that  the 
applicant's  remedy  was  not  against  the 
raspondepts,  but  against  Mahomet,  to 
whom  respondents  now  owed  no  liabil- 
ity.  *^ 

Mr.  Jones  submitted  that  the  affi 
davits  filed  on  behalf  of  the  respon- 
dents were  not  to  be  relied  upon,  and 
that  the  evidence  was  not  sufficient  to 
^how  that  the  money  had  been  paid  to 
Mahomet. 

.  De  Viiliers,  O.J. :  Not  a  word 
w  said  by  the  respondents  in 
their  affidavits  in  regard  to  the 
more    important    allegation    made    by 


the  petitioner  in  his  affidavit  that 
they  had  expressly  promised  to  dela^ 
the  payments  in  order  that  ho  (the  peti- 
tioner) might  get  the  amounts  as  they 
fell  due.  In  the  absence  of  any  denial 
by  them  of  their  promise,  I  prefer  to 
believe  what  the  Detiti<>ner  stated  in 
his  affidavit,  and  1  entirolv  disbelieve 
what  they  state  in  their  affidavits.  It  is 
too  prevalent  a  thing  with  these  Indian 
traders  that,  as  soon  as  they  are  in 
difficulties,  as  soon  as  a  summons  i^ 
served  upon  them,  they  immediately  find 
some  compatriots  who  are  prepared 
to  purchase  the  property  from  them  and 
take  an  obligation  up(n  themselves, 
without  really  meeting  the  obligation 
towards  the  creditors.  This  appears  to 
me  to  be  one  of  those  cases.  If  the 
respondents  had  been  prepared  to  show 
that  it  was  not  such  a  ca^e,  I  should 
certainly  have  expected  from  them  a 
far  fuller  affidavit  than  they  have  made. 
They  fail  entirely  to  meet  the  most  im- 
portant allegation  made  by  the  peti- 
tioner in  his  affidavit.  I  take  it  that 
they  still  have  the  money  in  their  hands, 
anci  that  they  still  owe  the  money  to 
the  defendant  Mahomet,  and  that  be 
ing  my  opinion  the  rule  must  be  made 
al^olute,  with  costs. 


PAMA  V.  FB£MAMTLB. 

This  was  an  application  for  an  order 
extending  the  time  within  which  an 
appeal  might  be  prosecuted,  the  timo 
allowed  under  the  rules  having  ex- 
pired on  the  7th  March.  The  matter 
originally  came  before  the  Magistrate's 
Court  at  Matatiele  on  the  20th  October 
last,  when  jud^ienfc  was  given  for  the 
defendants.  This  judgment  was  ap- 
pealed agaiiiiit  in  the  Eastern  Districts 
Court  on  the  7th  December,  and  the 
judgment  of  the  Court  below  was  there- 
upon reversed  to  6ne  of  judgment  for 
the  plaintiff.  The  present  applicant, 
Fremantle,  desired  to  appeal  to  the 
Supreme  Court  from  the  decision  of  the 
Eastern  Districts  Court.  Mr.  P.  S.  1. 
Jones  was  for  the  applicant;  Mr.  W. 
Porter  Buchanan  was  for  the  reFpon- 
dent. 

After  the  affidavits  had  been  read,  and 
counsel  had  been  heard  in  argument, 

An  order  was  jpranted  extending  the 
time  for  prosecution  of  the  appeal  until 
the  end  of  the  May  term,  costs  to  bo 
costs   in  the  oause. 


BBUMHEB  V.  E8TATB  &TBTK. 

Mr.  P.  S.  T.  J  ones  moved,  on  behalf 
of  the  petitioner,  Barend  Jacobus 
Brummer,  for  an  order  compelling 
the  respondent  to  sign  a  certain  trans- 
fer. The  point  at  issue  between  the 
parties  was  as  to  the  dividing  line  be- 
tween two  farms.       Mr.      Jones     said 


250 


"CAPE  TIllES*'  LAW  ttEPOllTS. 


that;  the  Tespondent  had  sworn  an  affi- 
davit, in  Wnioh  she  put  forward  ber 
version,  and  said  that  ehe  did  u.)t 
desire  any  litigation,  and  left  the  mat- 
ter  to  the  decision  of   the  Court. 

Rule  nUi  granted,  calling  upoii  the 
respondent  to  show  cause  wny  an  order 
should  not  be  made  as  prayed,  rule  to 
be  retumaible  on  the  20tn  April. 


DEVIS  V.  MCDONALD. 

Mr.  J.  B.  R.  de  Villiers  moved,  on 
behalf  of  Leon  Devia,  for  an  order  com- 
pelling respondent  to  disclose  particulara 
of  a  claim  in  reconvention  for  the  sum 
of  £91  16s.  9d.,  made  by  the  respon- 
dent in  an  action  now  pending  in  this 
Court  in  which  the  applicant  was  the 
plaintiff.  Mr.  W.  Porter  Buchanan 
was  for  tho  respondent.  The  plain- 
tiff claimed  £51  lis.  for  salary  ; 
the  defendant  adniitk>d  liability  for 
salary  and  certain  board  and  lodging 
to  the  amount  of  £31  10s.  9d.  In  re- 
convention, however,  the  defendant 
said  that  the  plaintiff  had  falsely  and 
fraudulently  claimed  for  amounts  for 
personal  expenses  largely  in  excess  of 
what  he  had  actually  spent. 

Mr.  De  Villiers  said  that  no  dates  or 
amounts  as  to  the  alleged  overcharges 
were  given,  and  that  plaintiff  was 
Thereby   embarrassed. 

Mr.  Buchanan  said  that  there  was 
no  Rule  of  Court  to  enable  such  an 
application  as  this  to  be  made.  The 
charge  of  the  defendant  related  simply 
to   board   and   lodgings. 

Do  Villiers,  U.J. :  It  is  worth 
while  considering  whether  the  Court 
should  not  frame  rules  to  meet  a 
case  like  the  present.  Cases  un- 
doubtedly arise  m  which,  quite  in- 
dependently of  the  rules  of  Court,  it 
would  be  advisable  that  the  Court 
should  have  and  exercise  the  power 
of  ordering  particulars  being  given. 
But  no  such  rule  is  in  existence  yet. 
I  do  not  say  that  the  absence  of  such 
a  rule  would  have  justified  the  Court 
in  cases  where  it  is  perfectly  clear  that 
a  party  is  unable  to  plead  properly 
ownig  to  the  vague  ana  embarrassing 
nature  of  his  opponent's  pleadings  or 
owing  to  the  absence  of  details — I  say 
a  case  might  arise  in  which  the  Court 
would  order  particulars  to  be  given  for 
the  purpose  of  enabling  a  party  pro- 
perly to  plead.  In  the  present  case, 
however,  no  such  application  was  made 
to  the  C^ourt  before  the  plaintiff  re- 
plied to  tho  plbaT  Now,  having  plead- 
ed, he  comes  and  asks  for  his  particu- 
lars. In  my  opinion  it  is  not  a  case 
in  which  the  Court  should  f^o  out  of 
its  way  to  assist  the  plaintiff,  seeing 
that  he  did  not  himself  apply  to  tho 
Court  by  exception  or  otherwise  before 
he  filed  his  replication  to  the  plea.  It 
is  quite  true  tnat  now  the  plaintiff  will 
have  to  be  prepared,   in  order  to  meet 


hw  case,  with  particulars  as  to  these  ex- 
penses of  personal  board  and  lodging, 
but  it  does  not  seem  to  me  to  be  such 
a  very  wide  range  for  him  to  go  over. 
The  Court  w^iil  make  no  order  on  tho 
application,  question  of  costs  to  stand 
over  until  after  the  trial. 


HIDDLETOK  V.  WATERCHUTE  CO, 

Award  of  arbitrator — Costs. 

This  was  an  application  to  havo 
a  certain  award  of  an  arbitrator 
made  a  Rule  of  Court,  subject  to  an 
amendment  of  the  last  paragraph,  so 
as  to  provide  for  the  costs  being  paid 
by  the  respondents. 

The  applicant  erected  by  contract 
tihe  waterchuto  at  the  recent  Cape 
Town  IndustriaJ  Exhibition.  The 
arbitrator  in  his  award  made  no  order 
as    to    costs. 

The  affidavit  of  the  applicant,  Fossey 
John  Middleton,  a  builder  and  contrac- 
tor, stated  that  he  and  the  respondcnta 
subscribed  to  a  certain  deed  of  submis- 
sion, dated  the  10th  February,  and  on 
the  27th  February'  an  award  was  made 
and  published,  pursuant  to  tho  said  sub- 
mi>sion.  The  respondents  had  taken 
up  the  award  and  paid  the  costs  there- 
of, as  well  as  the  coc^ts  of  the  short- 
hand writers'  services,  hire  of  room,  etc. 
Deponent  had  substantially  succeeded  in 
tho  claim,  and  he  submitted  that  the 
costs  mentioned  in  the  last  paragraph 
of  the  award  should  have  been  made 
in  his  favour.  He  asked  that  tho 
respondents  should  be  ordered  to  pay 
the  costs. 

[De  Villiers,  C.J.:  What  does  the 
deed  of  submission  say?] 

Mr.  Scarle,  K.C.  (for  the  applicant): 
The  deed  of  submission  says  that  the 
matter  of  costs  is  in  tho  discretion  of 
the  arbitrator. 

[Do  Villiers,  C.J. :  How  can  tho  Court 
interfere?] 

Mr.  Searle  said  he  believed  the 
Court  could  only  interfere  in  a  very 
special  case.  He  would  call  his  lord8hip'.H 
attention  to  the  case  of  Wyhberg  Muni- 
cipality  v.  Cajte  Town  Council  (9  Juta 
412).  He  might  shortlv  state  the 
claims  that  were  made  and  the 
amounts  awarded.  In  the  deed  of 
submission,  the  whole  claim  of  the 
applicant  was  £1,122  128.,  made  up  • 
of  certain  six  items.  On  the  other 
hand,  the  respondents  claimed  against 
the  applicant  £1,558,  made  up  of  five 
items,  quite  different  from  those  of  the 
applicant.  The  award  of  tho  art>itra- 
tor  was  for  £1,026  9s.,  on  the  appli- 
cant's claim,  and  for  £50  on  the  re- 
spondent's counter-claim,  so  that  the» 
applicant  recovered  a  balance  of  £996 
9s.,  f.c,  he  recovered  within  £150  of 
his   whole   claim. 

The  answering  affidavit  of  Joseph  C. 
Jones,  secretary  and  managing  director 


"CAPE  TIMES"  LAW  REPORXa 


251 


of  the  respondent  company,  stated  that 
the  oompany  submitted  that  the  award 
was  not  valid,  inasmuch  as  the  arbitra- 
tor had  awarded  the  applicant  £420  as 
hire  of  certain   machinery,  whereas  the 
hire  of  the  said  maohinery     formed  no 
p&rt  of  the  said  Bubmissioii.       He  also 
Jii^fid  that  the   award   was  against  the 
weight  of  evidence.   Mr.  W.  P.  JBuchanan 
(for      the     respondents)      opposed     the 
award  being    made    a    Rule    of    Court, 
and    said  that  they   were   desirous     of 
applying      for  a    fresh       arbitration,    or 
for  the  dispute   between   applicant   and 
ihemselTes   to    be    dealt    with    by      thU 
Coart.      Counsel  said   that  the  arbitra- 
tor, in  his  award,  stated  that   he  had, 
in  aase^ing   the   amount   due    to      the 
plaintiff  included    a   sum  of    £420      as 
cost  of  the  hire  of  the  said  machinery 
and     plant     for      Messrs.   Cunningham 
and     Gearing.        Counsel   pointed  out 
that  the   machinery   belonged    to    Cun- 
niugham    and    Gearing,    and    that    the 
applicant  had  no    right   to  the   sum   of 
m2Q   or    any    portion    thereof.  He 

urged,  further,  that  the  referee's 
award  of  bonus  to  the  applicant  was 
based  on  a  miscalculation  as  to  the 
contract  between    the   parties. 

Mr.  Searlc  said  that  Cunningham 
and  Gearing  were  really  sub-contrac- 
tcTi  under  the  applicant,  and  the  sum 
of  £420  had  to  bo  paid  by  somc- 
hodjr.  Clearly  this  matter  was  in- 
cluded in  the  submission,  because  it 
was  part  of  the  appHcant's  contract 
price  of  £1,875.  The     company  said 

they  preferred  not  to  deal  with  Cun- 
ningham and  Gearing  directly,  and 
the  applicant  therefore  engaged  Cun- 
ningham and  Gearing  to  fix  the 
machinery,  and  also  hired  the  machin- 
ery at  a  certain  rate. 

Do  Villiers,  C.J.,  observed  that  if  the 
arbitrator  had  said  nothing  as  to  the 
i^nsons  for  his  award,  they  would 
probably  have  heard  nothing  furt«her 
about  this  matter. 

Mr.  Searie :  The  whole  thing  arises 
from  the  wav  the  arbitrator  put  it. 

Mr.  Buchanan  said  that  the  re- 
spondent's position  was  that  they  did 
not  want  to  pay  for  the  hire  of  the 
machinery  twice  over. 

Mr.  Olive  (the  arbitrator)  was  called, 
and  in  answer  to  the  Court,  said  that 
in  the  contract  price  of  £1,875  the 
amount  of  £420  for  the  hire  of  machin- 
ery was  included.  The  defendant  com- 
pany counter-claimed  £420,  and  said 
that  the  machinery  was  theirs.  In 
his  award  he  stipulated  that  Messrs. 
Cunningham  and  Gearing  were  to  be 
entitled  to  recover  £420  from  the 
applicant,  and  to  take  the  machinery 
awaj. 

Witness,  on  being  questioned  by 
Mr.  Buchanan,  said  that  as  arbitrator 
he  objected  to  giving  details  showing 
how  his  award  of  £l,CK26  in  favour  of 
the  applicant  was  arrived  at.  His 
object  m  pultting  this  clause     into  the 


award  was  to  make  it  clear  that  the 
Waterchute  Company  would  not  be 
liable  to  Messrs.  Cunningham  and 
Gearing  for  the  hire  of  the  machin- 
ery. 

Mr.  Searie,  on  the  question  of 
costs,  cited  the  case  of  Wpnberg 
Municipality  v.  Tawfi  Council  of  Cape 
Town  (9  Juta  412),  and  submitted  that 
the  applicants,  having  succeeded  almost 
on  the  whole  of  their  claim,  were  en- 
titled to  costs. 

De  Villiers,  C.J. :  This  is  an 
application  to  have  an  award  made 
a  Rule  of  Court,  subject,  how- 
ever, to  a  condition  that  the  award 
as  to  costs  is  not  to  stand,  but 
that  the  respondents,  the  Waterchute 
Company,  should  be  ordered  to 
pay  those  costs.  I  am  clearly  of 
opinion,  however,  that  as  the  parties 
have  left  the  question  of  costs  to  the 
arbitrator,  it  requires  a  very  clear 
case  of  impropriety  on  the  part  of  the 
arbitrator  to  iustify  the  Court  in  al^tsr- 
ing  his  award.  It  is  true  that,  ac- 
cording to  the  ordinary  practice  of  this 
Court,  the  applicant  would  havo  had 
his  costs,  considering  that  he  re- 
covered a  very  larKo  proportion  of 
the  amount  claimed  by  him,  and  that 
the  res^ndeiits  recovered  a  very  small 
proportion,  but  still  they  recovered 
some  pro^rtion,  and  I  am  unable  t* 
say  that  it  was  suoh  a  gross  error  on 
thd  part  of  the  arbitraitor  as  to  justify 
the  Court  in  amending  the  award  iu 
the  manner  asked  for.  But  fhe  re- 
spondents again  object  on  other 
grounds,  the  chief  ground  being  that 
a  sum  of  £420  was  wrongly  awanled 
by  the  ai'bitrator,  and  that  the  deci- 
sion upon  that  point  had  not  been  re- 
ferred to  the  arbitrator  by  the  deed 
of  submission.  There  is  no  doubt 
that  the  clause  relating  to  this  sum  of 
£420  is  exceedingly  ambiguous,  and 
there  is  much  force  in  Mr.  Buchanan's 
argument  that  it  might  bo  road  as  if  it 
were  a  matter  quite  outside  the  deed 
of  ^u^bmission,  and  as  if  the  amount 
of  £420  was  practically  ordered  to 
be  paid  twice  over.  On  going  m^^rd 
fully  into  the  case,  however,  it  is 
quite  clear  that  the  ai4)itrator  simply 
expressed  himself  wrongly.  He 
wanted  to  give  a  reason — he  made  a 
mistake    by    giving    reasons.  if    he 

had  simply  satisfied  himself  with 
saying  that  so  much  was  due,  no  ques- 
tion would  havo  arisen — he  wanted  to 
make  this  award  perfectly  clear,  an 'I 
instead  of  making  it  clear,  he  made  It 
perfectly  obscure.  The  object,  I 
tliink,  was  to  leave  no  doubt  upon 
the  question  as  to  who  was  to  pay 
Cunningham  and  Gearing.  That  be- 
ing the  case,  I  consider  that  the  ob- 
jection to  the  £420  falls  to  the 
ground.  As  to  the  two  other  objec- 
tions, they  are  really  objections  the 
Court  cannot  entertain.  If  there 
were  no  evidence    here    in   support  of 


\ 


2^2 


"CAPE  TIMBS"   Law  IlEl>(AtS. 


the  decision  of  the  arbitrator,  it  mighs 
be  considered  a  question  of  siAi 
gross  impropriety  as  to  justify  the 
Court  in  interfering,  but  tnen  there  la 
some  evidence  in  support  of  the  deci- 
sion of  the  arbitrator  on  both  the 
points.  The  Court  will  not  now 
consider  it  part  of  its  duty  to  go 
into  the  evidence,  in  order  to  ascer- 
tain whether  the  decision  is  against 
the  weight  of  evidence.  The  objec- 
tions, therefore,  in  my  opinion,  fall 
to  the  ground,  and  the  award  :)hou'd 
be  made  Rule  of  Court,  with  Tosts  of 
the  opposition. 

Mr.  Buchanan :  Does  your  lordship 
allow    costs    of    opposition    against    u^? 

[Do  Villiers,  C.  J. :  Oh,  yes.    Of  course, 
there    would     have    been     some     cos^s 
even    if   there   had   been   no    opposition. 
The     costs    occasioned  by     the     opposi- 
tion are  to  be  paid  by  the  respondents.] 

[Applicants  Attorneys :  Tredgold, 
Mcliityre  and  Bisset ;  Respondents  At- 
torneys:   Van    Zyl   and    Buissinn^.] 


SUPREME  COURT 


[Before  tl.e  Chief  Justice  (the  Bight 
Hon.  Sir  J.  H.  db  Villiebb,  P.C  , 
K.C.M.G.,  LL.D.).] 


ADMISSIONS. 


I 


um. 

Mar.   2lBt. 


Mr.  Roux  moved  for  the  admission  of 
Wm.  Duncan  Campbell  as  an  attorney 
and  notary.  ^  Counsel  said  that  the 
papers  were  in  order,  except  that  no 
birth  certificate  was  attached,  but  it  was 
clear  that  the  applicant  was  of  full  age. 

Application  granted,  oath  to  be  taken 
before  the  R.M.  of  Steynsburg. 

Mr.  \y'.  Porter  Buchanan  moved  for 
the  admission  of  Claud  Merrington  as  a 
conveyancer. 

Application  granted  and  oath  admm- 
ist«red. 

Robert  Greening  asked  for  leave  ^  to 
mention  the  matter  of  his  suspension 
from  the  roll  of  attorneys,  and  applied 
for  re-admission. 

The  Registrar  informed  his  lordship 
that  the  application  had  not  been  set 
down. 

Applicant:  The  order  of  su/^jpension 
gave  me  leave  to  apply  after  the  16th 
March. 

[De  Villiers,  C.  J. :  Yes,  but  that  does 
not;  dispense  with  the  necessity  of  set- 
ting it  down.] 

Applicant :  j  could  not  set  it  down,  be- 
cause to-day  is  not  a  motion  day. 


Mr.  Searle,  K.C.,  said  that  he  was  in- 
structed by  the  Incorporated  Law  So- 
ciety to  apply  for  a  postponement  of  any 
hearing  of  this  application  for  a  month. 
The  Law  Society^  would  have  to  make 
certain  inquiries  in  the  matter,  and  it 
would  be  necessary  to  obtain  some  evi- 
dence from  NataL  Applicant  was  sus- 
pended in  Natal  in  June,  1904. 

Applicant:  That  was  in  consequence 
of  the  order  made  by  this  Court.  The 
adiournment  of  the  hearing,  my  Lord, 
will  increase  my  suspension  to  thirteen 
months. 

[De  Villiers,  C. J. :  I  am  afraid  I  can- 
not give  you  any  special  facilities.  The 
case  has  not  been  set  down  for  to-day, 
and  the  only  available  day  will  be  the 
first  Thursday  of  next  term,  when  the 
application  will  be  heard.] 

Mr.  Searle  said  that  Mr.  Greening  had 
not  yet  paid  the  costs  of  the  last  appli- 
cation of  the  Law  Society. 

De  Villiers,  C.J.,  said  he  thought  the 
applicant  should  first  pay  the  costs  of 
that  application. 

Mr.  Greening  asked  if  the  application 
could  be  allowed  to  stand  over,  subject 
to  his  paying  the  costs  of  the  last  appli- 
cation. 

[De  Villiers,  C.J. :  Yes.] 

Mr.  J.  E.  R.  de  Villiers  mentioned 
the  application  of  Mr.  Fletcher  for  ad- 
mission as  an  attorney  of  this  Court. 

Mr.  Searle,  K.C.,  said  that  the  Incor- 
porated Law  Society  were  not  at  present 
prepared  to  offer  any  opinion  with  re- 
gard to  the  application. 

[De  Villiers,  C.J. :  I  think  the  matter 
had  better  be  set  down  in  the  ordinary 
way,  on  a  date  on  which  motions  are 
heard.  The  Registrar  has  had  no  notice 
of  this  application.  I  would  also  say 
that  I  have  continually  had  to  make  re- 
marks about  the  Law  Society  not  taking 
a  definite  stand.  They  come  and  cast 
doubts,  and  then  leave  the  responsibility 
with  the  Court.  If  they  think  the 
man  should  be  admitted  let  them  raise 
no  objection.  If  they  think  he  should 
not  be  admitted  then  let  them  say  so. 
Lot  the  matter  stand  over  till  the  first 
Thursday  of  nnxt  month.] 


GENERAL  MOTIONS. 


MOKADOM  V.  HASSAN. 


f        1905. 

iMar. 


21st. 


Mr.  W.  Porter  Buchanan  moved,  on 
notice,  calling  on  respondent  to  show 
cause  why  the  judgment  given  in  the 
trial  cause  on  the  20th  October,  1904,  at 
the  suit  of  the  plaintiff,  and  by  reason 
of  the  defendant  s  default  of  appearance, 
should  not  be  set  saide  and  defendant 
allowed  to  purge  his  default  and  defend 
the  action,  and  why  costs  should  not  be 
paid  by  respondent.      Counsel  read  an 


"GAPB  TIMES*'  LAW  REP0BT8. 


268 


affidftTit  by  8«id  Hassan,  of  Kimberley, 

and  late  of  Mafeking,  who  said  that  be 

did  not  owe  the  plaintiff,  Ismael  Moka- 

dom,  the  money  claimed  by  him  in  the 

summons,  and   that  the      plaintiff     had 

wrongly  procured  ]ud(^ment  against  him 

FoTtber  affidavits  were  read  to  the  effect 

that  the  plaintiff   had   admitted  having 

obtained   judgment    against   the     appii- 

caot  in  mistake. 

Mr.  Roux  read  a  replying  affidavit 
svom  by  the  man  holding  the  plaintiff's 
Itoiker  of  attorney,  the  defendant  being 
at  present  m  India. 

Conniel  having  been  heard  in  argu- 
ment on  the  fact£, 

De     Villiers,      C.  J. :      The     question 
is   whether    sufficient    cause    has    been 
shown    for    setting     aside     the     judg- 
ment   given     against     the     defendant. 
That  judgment   was  given  was   as    far 
back  IS  October  last  jear,  and  now,  m 
March,  1905,  an  application  is  made  to 
set  aside  the  judgment  on  the  ground 
that  the  amount  was  not  due.     I  must  say 
that  if  the  application   had  been  made 
immediately  after    judgment   had    been 
given  there   would    have    been     strong 
grottnds    for    granting    it,    seeing    that 
th3  statement  that  the  £31  was  m  resi>ect 
of  a  guarantee  is  not  specifically  denied. 
Bat  the  plaintiff  does  not,  in  his  affida- 
vit, repeat  his  claim  for  £31,     and     he 
makes  the  further  statement     that     the 
leveral  letters   were   written   by   him   to 
tbiE?  defendant  before  the  summons  was 
issued,  and  he  got  no  answer  to  any  of 
them.     That  statement  is  not  denied  by 
the  defendant.       Well,    plaintiff   makes 
further  statements  as  to  the  defendant 
having  disposed  of  his  business  and  ab- 
sconded from   Cape  Town,  which  etate- 
mcnts  are  also  not  denied.    Anyhow,  I 
wn  not  satisfied  that  there  is  sufficient 
cause    shown,  the  lapse  of  time  *s     so 
Ifreat.  and.  moreover,  the  statement  as 
to  the  defcndant*s  illness  is  not  suppor- 
ted by  any  affidavit  of  a  medical  man. 
There  is,  therefore,  not  sufficient  cause 
shown,  and  the  application  must  Lo  re- 
fused, with  casts. 


VOGEL  V.  VOGEL. 

Mr.  P.  S.  T.  Jones  moved,  on  behalf 
of  the  petitioner,  Mrs.  Vogel,  for  leave 
to  sue  her  husband.  Rudolph  Vogel,  by 
edictal  citation  for  restitution  of  conju- 
gal rights,  failing  which  divorce.  The 
petitioner  said  her  husband  carried  on 
business  in  partnership  as  a  manufac- 
turer's agent  in  St.  George's-etreet,  Cape 
Town.  Respoixdfilit  was  now  believed 
to  he  in  Holland. 

Leave  granted  to  sue  as  prayed,  cita- 
tion  to  be  returnable  on  the  12th  June, 
^  to  be  served  on  the  defendant  per- 
conaiJy. 


1 


ESTATE    BUSSELL    V.    BONOBBOeOH 
MUNICIPALITY. 

This  was  an  application  upon  notice  of 
motion  callmg  on  the  respondent  Muni- 
cipality to  show  cause  why  they  should 
not  be  ordered  to  sanction  the  sale  oi 
certain  propertv  in  that  Municipality,  on 
the  Glendarragn  Estate,  belongmg  to  the 
estate  of  the  late  Wm.  Alfred  Ruasell, 
accordmg  to  the  plan  of  sub-division  sub- 
mitted to  thorn  for  approval,  or,  in  the 
alternative,  why  the  applicant  should  not 
be  entitled  to  sell  the  eame  without  the 
sanction  of  the  Municipality. 

The  affidavit  of  Mr.  Gothor  Mann 
stated  that  the  Council  refused  to  sanc- 
tion the  plan,  on  the  ground  that  it  did 
not  show  roads  of  sufficient  width  to 
satisfy  thorn.  The  Council  had  no  right 
to  demand  that  tho  roads  should  be 
widened  at  the  expense  of  tho  estate. 

The  answering  affidavit  of  A.  W. 
Bawkins,  Mayor  of  Rondebosch,  stated 
that  there  were  two  roads  adjacent  to 
the  estate  which  tho  Council  held  to  be 
secondary  or  branch  roads  within  the 
moaning  of  their  regulations.  One  of 
these  was  known  as  the  Lovers*  Walk. 
The  regulations  specified  that  such 
roads  should  be  of  a  width  of  not  less 
than  30  ft.  It  was  because  the  appli- 
cants did  not  show  roads  30  ft.  wide 
that  the  C^ouncil  refused  to  sanction  the 
plan   of  sub-division. 

The  replying  affidavit  of  Mr.  Mann 
stated  that  the  Council  was  trying  to 
obtain  land  from  the  estate  for  the 
benefit  of  the  ratepayers  at  large  with- 
out paying  for  the  same. 

Mr.  J.  E.  R.  de  Villiers  was  for  the 
applicant ;  Mr.  Searle,  K.C.,  was  for  tho 
respondents. 

Having  heard  Mr.  De  Villiers  in  argu- 
ment, 

De  Villiers,  C.  J. :  The  7th  section 
of  the  Act  41  of  1899  makes  it 
unlawful  "  for  any  owner  of  pro- 
perty to  sell  such  property  in  sub- 
divided portions  without  having  first  sub- 
mitted the  plan  of  such  subdivision  to 
the  Council  and  obtained  the  sanction  of 
the  Council  thereto."  _  The  applicants 
desired  to  sub-divide  their  property,  and 
they  submitted  a  plan  of  such  sub-divi- 
sion to  the  Council,  and  now  this  Court  is 
appealed  to,  as  if  it  were  a  Court  of  Ap- 
peal, from  the  decision  of  the  Municipal 
Council.  The  Court  has  never  arrogated 
to  itself  the  position  of  a  Court  of  Ap- 
peal in  such  cases.  The  proper  tribunal 
to  decide  whether  the  sub-division  is  to 
bo  allowed  or  not  is  the  Council.  Of 
course,  if  the  Council  acts  improperly,  if 
it  acts  illegally,  or,  I  may  say,  if  it  acts 
wholly  unreasonably,  the  Court  would 
have  the  power  to  interfere  upon  gene- 
ral principles,  quite  independently  of  the 
Act,  but  a  clear  case  to  that  effect  must 
bo  made  out,  and  certainly,  in  the  pre- 
sent case,  no  such  clear  case  has  been 
made  out.      It  may  well  be  that,  if  tho 


254 


"CAPE  TIMES"  LAW  REPORTS. 


judges  were  Municipal  Councillors,  in 
this  particular  case  they 'might  have  act- 
ed di£PerentIy,  but  that  ia  not  the  point 
of  view  from  which  they  should  regard 
the  matter.  The  question  is,  has  the 
Council  acted  within  the  limits  of  the 
law  without  such  impropriety  as  would 
justify  the  Court  in  interfenng?  It  is 
clear  that  if  a  person  sub-divides  his 
property  for  the  purpose  of  a  sale  he 
must  do  so  with  tne  object  of  selling*  it 
to  persons  who  intend  to  build  upon  the 
different  lots.  Therefore,  the  very  sub- 
division implies  a  large  addition  to  the 
buildings  in  the  place,  and  when  there  is 
a  considerable  addition  to  the  buildings 
the  necessity  arises  for  increasing  the 
width  of  the  roads.  In  regard  to  one  of 
these  roads,  the  Lovers'  Walk,  which  has 
hitherto  been  22  ft.  in  width,  the  Council 
now  insists  upon  its  being  30  ft.  wide. 
The  owners,  of  course,  can  avoid  any  in- 
terference by  the  Council  by  simply  not 
sub-dividing,  but,  if  they  sub-divide,  then 
they  must  comply  with  the  requirements 
of  the  Municipality,  and  it  does  not  seem 
to  me  by  any  means  an  unreasonable  re- 
quirement, when  these  lots  are  sub-divid- 
ed so  as  to  become  small  lots,  that  a  road, 
which  up  to  the  present  has  been  22  ft. 
wide,  should  be  30  ft.  It  does  not  seem 
to  me  to  be  so  wholly  unreasonable  as  to 
justify  the  interference  of  the  Court. 
The  same  remark  applies  to  the  continua- 
tion of  the  old  road.  The  old  road  is  to 
be  30  ft.,  but  at  one  portion  of  it  the 
applicants  propose  to  retain  it  at  its 
former  width,  which  is  less  than  30  ft. 
I  am  not  prepared  to  say  that  it  is  such 
an  improper  requirement,  or  such  a 
grossly  unreasonable  requirement  as  to 
justify  the  Court  in  assuming  the  posi- 
tion of  a  Court  of  Appeal  from  a  decision 
of  the  Municipal  Council.  In  my 
opinion,  the  application  should  be  refused 
with  costs.  The  costs,  I  suppose,  will 
come  out  of  the  estate,  seeing  that  the 
application  is  made  on  behali  of  the 
estate. 


WILSON  AKD  CATHCART  V,  YOUNG. 

Mr.  P.  S.  T.  Jones  moved  for  an  order 
in  terms  of  the  report  of  the  special  re- 
feree in  an  action  m  which  the  applicant 
claimed  a  sum  of  £224  10s  as  balance  of 
a  building  contract,  and  also  a  lien  upon 
the  building,  pending  the  payment  of 
such  sum  as  might  be  found  to  be  due. 
There  was  no  appearance  for  the  respon- 
dent. The  matter  had  been  standing 
over  for  production  of  an  affidavit  of 
service  upon  respondents,  which  was  now 
read. 

Order  granted  in  terms  of  the  report 
of  special  referee. 


Ex  parte  LAZA.Rns  and  othbbs. 

Mr.  P.  S.  T.  Jones  moved  for  the  ap- 
pointment of  a  ewator  ad  litem  for    the 


petitioners'  minor  sister,  Marie  Laesru^ 
in  an  action  arising*  out  of  certain  mat 
ters   relating    to  the  estate  of   the  late 
Laurence   Lazarus,   of   Cape   Town   and 
London. 

Order  granted,  appointing  junior 
OGun^iel  of  the  plaintiffs  in  the  action 
(Mr.  Jones)  as  curator  ad  litem  to  the 
minor  Marie. 


DBUTSOHBS  HAUS  AND  CO.  Y.  JULIE 
D08B  AMD  OTHBBS. 

Mr.  Searle,  K.C.,  moved  for  a  rule  nisi 
temporarily  interdicting  Julie  Dose, 
widow  of  Louis  Dose,  a  provision  mer- 
chant, of  Cape  Town,  and  others,  from 
disposing  of  the     proceeds     of     certain 

folicy  of  insurance  in  the  Economic  Life 
nsuranoe  Company  until  the  balance  of 
an  alleged  debt  due  to  the  petitioners, 
amounting  to  £449,  shall  have  been  paid. 
oentJy,  left  the  said  policy  of  life  insur- 
ance as  security  for  a  certain  debt. 

Counsel  having  been  heard  in  argu- 
ment, 

De  Villiers,  C.J. :  I  sec  no  reason  for 
altering  the  view  which  I  held  at  the 
time  the  application  was  made  to  me 
in  Chambers.  If  the  proceeds  of  the 
policy  belong  to  the  estate,  in  which 
case  the  applicants  should  make  their 
claim  in  the  ordinary  course  against 
tha  estate,  the  Court  would,  by  order- 
ing this  money  to  be  paid  to  the  peti- 
tioners, be  giving*  them  a  preference 
against  the  other  creditors  of  the 
estate.  If  the  proceeds  belonged  to  the 
widow,  I  should  be  loth  to  hold  that, 
because  of  an  unguarded  statement 
made  by  her  to  the  applicant  at  a  time 
when  her  ^rief  must  have  been  very 
recent— it  is  said  that  more  than  a 
month  had  elapsed,  but  certainly  not 
more  than  six  weeks. 

Mr.  Searle  (interposing) :  Less  than  a 
month. 

De  Villiers,  C.  J. :  Very  well,  I  should 
say  that  is  recent  enough,  and  I  consider 
that  it  is  not  clear  to  my  mind  that  there 
was  a  binding  contract  made  by  the 
widow  under  those  circumstances,  by 
which  she  is  bound  to  forego  her  rights 
in  the  estate  to  the  policy  and  pay  a  sum 
over  to  the  applicants,  who  would  have 
no  claim  against  her.  At  all  events,  it 
IS  a  case  in  which  she  ought  to  have 
notice  of  the  application  before  the  Court 
makes  an  order  upon  her.  A  rule  niH 
might  have  the  effect  of  leading  the  par- 
ties to  suppose  that  the  Court  is  of 
opinion  that  there  is  a  prima  faeie  case 
against  her,  but  I  do  not  think  there  is 
a  prirna  facie  ca.se  against  her.  There- 
fore, there  will  be  no  order. 


DONAOHT  V.  E8TATB  HABLUTZEL. 

This  was  an  application  upon  notice  of 
motion  brought  by  Elieabeth  Sarah 
Donag-hy,  daughter  of  the  late  Hendrik 


it 


CAPE  TIMES"  LAW  REPORTS. 


255 


Pieter  Hablutael,  for  an  oTder  diieoting 
the  Board  of  Executors  as  executors  tes- 
tamentary in  the  estate  of  her  father  to 
pay  out  certain  money.  Mr.  Searle, 
K.C.,  was  for  the  applicant;  Mr.  Uping- 
ton  was  for  tlie  respondents. 

From  the  affidavits  it  appeared  that 
the  testator  directed,  by  clause  3  of  his 
will,  **  that  for  the  purpose  of  preserving 
my  tomb-stone  and  keeping  the  vault  in 
Older  and  repair,  and  the  suroundings 
decent,  I  wish  my  executors  to  use  a  sum 
from  my  estate  which,  when  invested, 
shall  produce  yearly  £60,  to  be  used  and 
appropriated  as  m^  executors  and  admin- 
istrators shall  decide  on,  for  the  upkeep 
and  maintenance  of  the  vault  of  myself 
and  family.'*  Under  the  will  two 
dsughters  were  excluded  from  partici- 
pating in  the  estate  except  as  to  a  life 
interest.  It  was  admitted  that,  under 
the  clause,  a  sum  of  £159  had  accrued  as 
irtercat  accumulated  and  not  used.  Pe- 
titioner said  that  the  grave-yard  where 
the  vault  was  situated  was  now  closed. 
She  claimed  that,  as  one  of  the  heirs,  she 
was  entitled  to  an  eighth  share  of  the 
accumulations  of  the  said  sum,  and  also 
to  one-«ighth  of  such  portion  of  the  said 
sum  as  shall  not  be  used  and  appropriat- 
ed in  the  future.  The  Board  of  Execu- 
tors, while  not  appearing  to  oppose  the 
application,  felt  that  under  the  terms  of 
the  will  they  would  not  be  entitled  to 
make  a  distribution  such  as  the  petitioner 
asked  for,  unless  so  directed  by  an  order 
of  Court. 

De  Villiers,  C.J. :  The  testator 
apparently  thought  that  more  would 
b<^  required  for  the  up-keep  and 
maintenance  of  the  vault  and  tomb- 
stone of  himself  and  family  than 
has,  in  fact,  been  required.  Since  his 
death  the  up-keep  has  cost  considerably 
less  than  £60,  and  the  question  is,  who 
has  to  get  the  balance  ?  Well,  clearly  the 
heirs.  There  is  no  one  else  who  can 
daim  it.  The  heirs  being  in  the  posi- 
tion of  residuary  legatees,  they  are  en- 
titled to  any  portion  which  lapses,  and 
thi^  is  practically  a  lapse  of  a  portion  of 
a  legacy,  so  that,  in  my  opinion,  the  ap- 
plicants would  be  entitled  to  receive  so 
much  of  the  amount  as  has  not  been  ex- 
pended by  the  executors.  Then,  as  to 
those  who  have  only  a  life  interest,  al- 
though that  does  not  form  part  of  the 
application,  I  may  at  once  say  that  they 
would  be  entitled  to  treat  the  annual 
balance  also  as  a  part  of  the  interest 
which  has  been  accruing  during  the  year, 
and  to  them,  therefore,  would  be  payable 
an  eighth  share  each  of  such  balance. 
The  executors  were,  in  my  opinion,  quite 
justified  in  not  consenting  to  this  appli- 
cation without  an  order  of  Court._  But 
I  have  no  hesitation  now  in  making  the 
order,  costs  to  come  out  of  the  estate. 


EsB  parte  WARNER. 

Mr.  P.  S.  T.  Jones  said  that  this  mat- 
ter had  been  standing  over  pending  a 
report  by  Mr.  Stanford,  the  Assistant 
Chief  Magistrate  of  the  Transkeian  Ter- 
ritories. The  application  was  for  leave 
to  sell  certain  property  of  a  native,  the 
late  William  Rambani,  in  the  district  of 
Queen's  Town,  to  his  son,  Edward  Wil- 
liam Rambani,  and  for  an  order  direct- 
ing how  the  proceeds  should  be  disposed 
of.  Mr.  Stanford,  in  his  report,  said 
that  it  was  possible  to  administer  this 
estate  according  to  native  law,  which, 
under  the  peculiar  circumstances  of  the 
case,  would  in  his  opinion  bo  the  fairest 
way  of  distributing  the  proceeds  of  the 
sale. 

Order  granted  in  terms  of  Mr.  Stan- 
ford's report 


SUPREME  COURT 


[Before  the  Chief  Justice  (the  Right 
Hon.  Sir  J.  H.  db  Villiers,  P.C. 
K.O.M.G.,  LL.D.).] 


SPECIAL  CASE. 

MASKBW    V.     ESTATE    MAS- f        1905. 

KEW.  (  Mar.  22nd. 

Joint  will — Husband  and  wife — 
Massing  of  joint  estate  — 
Confirmation  by  survivor  of 
joint  will. 

Hie  testators,  being  husband 
and  irife^  mad^,  a  joint  mll^ 
by  which  the  testator  instituted 
as  his  heirs  the  testatrix  and 
his  children  by  her,  and  the 
testatrix  instituted  the  testator 
and  her  children  by  him,  and 
of  a  previous  marriage^  and 
they  directed  that  the  surinvor 
was  to  rrviain  in  full  a/ndfree 
possession  of  the  whole  of  the 
joint  estate.  The  testator  died 
first,  and  after  him  his  son 
William,  who  left  one  child, 
namely,  the  plaintiff.  The 
testatrix  made  a  will,  revoking 
all  former  icills,  e^ccept  the 
joint  will. 

Held,  that  even  if  there  toas 
no  such  massing  of  the  joint 


"CAPE  TIMBS''  LAW  REPORTS. 


estate  as  to  make  the  joint 
toill  binding  on  the  survivor 
after  adiation^  the  effect  of  the 
recognition  by  the  testatrix  of 
Vie  joint  will  ica^  to  shew  that 
she  intended  by  her  separate 
will  to  treat  the  first  will  as 
binding  and  to  deal  only  with 
her  after  acqnired  proptrty^ 
and  that  the  plaintiff  icas 
entitled  to  the  share  of  the 
joint  estate^  which  wouUl  hare 
accrued  to  her  father  if  he 
had  survived  his  mother. 

Held  further,  that  under  the 
joint  will  the  survivor  teas 
entitled  to  deal  with  her  child's 
portion  as  her  own,  and  that 
it  consequently  forms  part  of 
the  property  disposed  of  by 
her  separate  wilL 


This  was  a  tpocial  case  stated  hy 
Dorothy  Maskew^  assisted  by  her 
mother,  the  '  widow  of  Wm.  Henry 
Maskew,  against  the  executor  testa- 
mentary in  the  estate  of  the  late  Maria 
Maskew,  widow  of  Wm.  Wilson  MaA- 
kew,  for  a  determination  by  the  Court 
of  the  rights  of  the  plaintiff  under  the 
joint  estate  of  William  Wilson  Maskew 
and  Maria  Maskew. 

The  special  case  was  stated  in  the 
following  tern>s : 

1.  Tho  plaintiff  is  Dorothv  Maskew, 
duly  assisted  and  represented  bv  Irene 
Ellen  Maskew,  widow  of  tne  late 
William  Henrv  Maskew,  in  her  capacity 
as  mother  and  natural  guardian. 

2.  The  defendant  is  George  William 
Steytler,  in  his  capacity  a«  secretary  to 
the  Colonial  Orphan  Chamber  and  as 
such  the  executor  testamentary  of  the 
estate  of  the  late  Maria  Maskew, 
widow  of  the  late  William  Wilson 
Maskew. 

3.  The  said  William  Wilson  Mafkew, 
and  his  wife  Maria  Maskew  were  mar- 
ried in  community  of  property,  and  on 
December  8,  1887,  they  executed  the 
mutual  will  copy  whereof  is  annexed 
hereto  marked      A." 

4.  Under  the  said  will  the  testator 
instituted  as  his  heirs  the  testatrix  and 
his  children  in  equal  shares,  and  the 
testatrix  appointed  as  her  heirs  the 
testator  together  with  her  children  by 
the  said  marriage  and  by  a  previous 
marriage. 

5.  The  testator  died  on  December  20, 
1893,  leaving  him  surviving  his  widow, 
the  said  Maria  Maskew,  and  the  follow- 
ing children,  Maria  Maskew,  William 
Henry  Maskew,  Francis  Hortensia 
Vester  Maskew,  and  Frederick  Thomas 
Charles  Maskew,  and  leaving  the  said 
will  unrevoked. 


6.  The  said  Maria  Maskew,  adiated 
under  the  said  will  received  benefits 
thereunder,  and  remained  in  posseasion 
of  the  whole  of  the  joint  estate,  as  it 
was  provided  in  the  said  will  that  she 
might  do. 

7.  Shortly  after  the  testator's  death 
an  account  of  the  whole  joint  estate 
was  framed  by  the  executors  of  the  said 
will,  no  sum  was  therein  awarded  to 
any  of  the  heirs,  but  the  gross  balance 
of  the  joint  estate  was  shown  therein, 
the  survivor  being  stated  therein  to  be 
entitled  to  a  life  interest  on  the  »aid 
balance. 

8.  The  said  William  Henry  Maskew 
died  on  April  12,  1903,  leaving  one 
child,  the  plaintiff,  surviving. 

9.  The  testatrix,  the  said  Maria  Mas- 
kew, died  on  Julj  31,  1904,  leaving  her 
surviving  two  children  by  her  first  and 
chree  by  her  second  marriage. 

10.  The  said  Maria  Masicew  left  at 
her  death  a  further  will  executed  on 
June  16,  1903,  in  which  she  revoked 
all  former  testamenary  dis^sitions 
save  and  except  the  aforesaid  joint  will, 
and  made  certain  bequests  to  her 
children  by  both  marriages,  a  copy  of 
the  said  will  is  hereunto  annexed 
marked   "B." 

The  plaintiff  contends: 

11.  That  the  said  Dorothy  Maskew  is 
entitled  under  the  said  joint  will  to 
the  share  of  the  point  estate  to  which 
the  said  William  Henry  Maskew  would 
have  been  entitled  had  he  survived  the 
testatrix. 

12.  That  the  child's  portion  bequeath- 
ed to  the  testatrix  by  tne  testator  forms 
psrt  of  the  said  joint  estate,  and  should 
be  distributed  under  and  in  aecordanoo 
with  the  said  joint  will. 

The    defendant    contends  : 

13.  That  there  is  not  effected  any 
massing  of  the  joint  estate  by  the 
mutual  will  of  the  testator  and  testatrix. 

14.  That  the  last  will  of  the  testatrix, 
dated  June  16,  1903,  must  in  law 
govern  and  determine  the  distribution 
of  her  entire  estate,  including  the  half 
of  the  joint  estate  and  the  portion  in- 
herited by  her  from  the  testator. 

15.  That  under  her  last  will  the 
testatrix  has  made  no  provision  for  tin* 
plaintiff. 

Wherefore  the  parties  pray  for  judg- 
ment in  terms  of  their  respective   cou 
tontions   with   costs. 

Mr.  Searle,  K.C.,  for  plaintiff;  Sir 
H.  Juta,  K.C.,  for  defendant. 

Mr.  Searle  said  that  if  it  were  clear 
under  this  will  that  the  two  estates  were 
massed  then  he  submitted  that  the  plain- 
tiff's first  contention  would  be  substan- 
tially proved.  He  submitted  that  the 
intention  under  the  first  will  was  to  give 
the  testatrix,  Mrs.  Maskew,  merely  a 
usufruct.  She  herself  seemed  to  have 
treated  it  as  a  life  interst. 

De  Villiers,  C.J.  (interposing)  said 
that  as  regarded  the  first  contention  he 
should  like  to  hear  Sir  Henry  Juta.  The 


"CAPE  TIMES"  LAW  REPORTS. 


2o7 


8eooiid  contention  seemed  to  be  rather 
more  doubtful,  beo&uae  what  struck  him 
waa  that  the  testator  left  Mrs.  Maskew 
a  ohild^s  portion   absolutely. 

Mr.  Searle  said  that  in  the  second  will 
Vin.  Maskew   did   not  purport    to  deal 
vith  a  child's  portion.     She  did  not  take 
a  child's  portion  out  of  the  joint  estate, 
and  put  it  away  to  be  dealt  with  separ- 
ately.     The  intention  under  the  will,  it 
woold  be  gathered,  was  to  benefit  even 
more  remote  descendants  in  the  direct 
line  than  the  children  of  the  testator  and 
testatrix.      He  urged   that   the  account 
and  the  fact  that  no  mention  was  made 
of  the  child's  portion  in  the  second  will 
vould  appear  to  support  the  second  con- 
tention ot  the  plaintiff. 

Sir  H.  J uta  submitted  that  there  uras 
BO  massing  with  regard  to  the  William 
MaskeVs  share  of  the  inheritance.  TJie 
whole  will  must  be  read  together,  and  in 
order  to  give  it  any  noeaning  at  all  they 
must  construe  it  to  mean  that  Mrs  Mns- 
keir  confirmed  her  previous  will,  so  lar 
as  she  had  not  altered  it  by  the  second 
vill,  and  that  she  confirmed  what  she 
had  said  in  the  first  will  except  so  far  as 
the  dispositions  in  the  seoona  will  were 
contrary  to  the  first  will.  He  claimed 
that  Mrs.  Maskew  had  the  right  when 
she  made  the  second  document  to  mak-* 
say  will  she  chose. 

De  Villiers,  C.J. :  According  to  the 
special  case  the  testator's  wife,  Maria 
Maskew,  adiated  under  the  will, 
snd  she  seems  to  have  recognised— I 
gather  that  frcxn  the  admission  in  the 
special  case — the  joint  will  as  one  bind- 
ing upon  her.  Accordingly  when  she 
proceeded  to  make  her  separate  will 
sfter  the  death  of  her  husband,  the  verv 
first  provision  in  that  will  was  :  I, 
Maria  Maskew,  widow  of  the  late  Wil- 
liam Wilson  Maskew,  do  hereby  revoke 
sll  former  testamentary  dispositions 
nude  by  me  save  and  except  the  joint 
will  made  by  me  and  the  said  late  Wil- 
liam Wilson  Maskew,  bearing  date  the 
eighth  day  of  December.  1887.  and  since 
lodged  in  the  MasFter's  Office,  Cape 
Town."  I  take  the  fair  and  true  mean- 
ing of  this  to  be  that  she,  the  testatrix, 
now  recognises  that  will  to  be  binding 
upon  her,  and  it  is  upon  this  ba^is  that 
iui3  proceeds  to  make  her  subsequent 
ovpositions.  It  is  unnecessary  therefore 
^  consider  whether  there  has  been  such 
s  mttsing  of  the  joint  estate  as  to  make 
ti^  joint  will  binding  on  the  survivor 
^r  adiaiion.  So  far  as  the  children 
^f6  concerned,  the  testator  and  testatrix 
both  agreed,  whatever  they  may  have 
oissgreed  about,  that  those  children 
■hoaid  be  the  heirs.  The  testator  wish- 
^•1  the  children  of  his  wife  to  be  his 
nein;  the  testatrix  wished  the  children 
of  her  husband,  that  is  the  testator,  to 
be  her  heirs.  Therefore,  there  is,  in 
>^rd  to  the  children,  a  joint  desire 
on  the  part  of  the  testators  to  make 
them  the  heirs,  and,  in  my  opinion, 
uiai  n  what  the    testatrix  intenaed   by 


her  will  when  she  uid  that  she  doet 
not  revoke  it,  and  practically  confirms 
it.  If  >thai  view  of  the  case  be  correct, 
then  it  would  follow,  in  my  opinion, 
that  the  plaintiff,  who  is  aamitted  to 
be  the  only  daughter  of  one  of  the 
children  of  the  testator,  should  take  the 
share  which  the  father  was  entitled  to. 
It  is  true  that  her  father  died  before 
her  grandmother,  his  mother,  but  it  ap* 
pears  to  me  that  this  was  entirely  a 
usufructuary  disposition.  The  testatrix 
was  intenaed  to  have  the  usufruct  of 
the  whole  of  the  estate,  and  therefore 
the    inheritance   ol    the    father   of    the 

Slaintiff  did  vest  in  him  before  the 
eath  of  the  testators,  and  ^  she  therefore 
is  entitled  to  step  into  his  shoes  upon 
his  death,  and  to  claim  his  share  of  the 
joint  estate. 

The  next  point  is,  what  forms  part  of 
this  joint  estate;  in  other  worcGi,  was 
the  testatrix  entitled  under  the  will  to 
her  child's  portion?  In  my  cnpinion,  the 
point  is  perfectly  clear.  The  testator 
instituted  as  his  heirs  the  testatrix  and 
his  children  in  equal  shares.  The  use 
of  the  word  "testatrix"  would  have 
been  wholly  futile,  would  have  meant 
nothing,  if  the  plaintiff's  contention  be 
correct.  The  Court,  therefore,  finds  : 
(1)  That  Wm.  Qenry  Maskew  was  one 
of  the  heirs  of  the  testators,  under  the 
joint  will  of  the  testators,  and  that  the 
plaintiff  is  entitled  to  the  share  whioh 
would  have  accrued  to  him  if  he  had 
survived  his  mother;  and  (2)  that  the 
child's  portion  bequeathed  by  the  testa- 
tor to  the  testatrix  fonns  part  of  the 
estate  which  she  was  entitled  to  dispose 
of  by  her  subsei^ueni  will.  Costs  to 
come  out  of  the  joint  estate. 

[Plaintiff's  Attorneys:  Beid  and  Nep- 
hew ;  Defendant's  Attorneys :  Van  Zyl 
and  Buissin^.] 


8TABLEF0BD  V.  JOHUB. 

Mr.  Alexander  moved,  on  behalf  of 
William  Stableford,  general  agent,  Cape 
Town,  for  an  order  directing  the  re- 
spondent, Percy  Johns,  forthwith  to  de- 
liver to  the  applicant  the  goods  enumer- 
ated in  the  auctioneer's  statement,  an- 
nexed to  his  affidavit.  Mr.  W.  Porter 
Buchanan  was  for  the  respondent. 

Mr.  Buchanan  took  the  objection  that 
the  applicant  should  proceed  by  action, 
and  not  by  motion. 

From  the  affidavits  it  appeared  that 
the  respondent  was  arrested  on  a  certain 
charge,  and  that  some  negotiations  took 
place  between  the  applicant  and  respond- 
ent as  to  finding  a  bail  bond.  The  ap- 
nlicant  said  that  he  undertook,  on  his 
own  securities,  to  provide  bail  in  the  sum 
of  £300.  Subsequently  a  sale  of  the  re- 
spondent's furniture  took  place  at  his 
house  at  Mowbray.  The  applicant  said 
that  in  order  to  protect  his  own  interests 
he  bought  a  quantity  of  the  groods,  which 


258 


(I 


CAPE  TIMES"   LAW  REPORTS. 


would  otherwise  have  been  knocked 
down  at  very  low  prioea.  He  also  said 
that  he  made  other  disbunemento  on  be- 
half of  the  reapondent  in  connection  with 
his  trial  before  the  Magistrate's  Court. 
The  respondent  now  refused  to  let  him 
have  deliverv  of  the  goods  which  he  had 
bought.  The  respondent  denied  several 
of  the  allegations  made  by  the  appli 
cant. 
During  the  reading  of  the  affidavits, 
De  Villiors,  C.J.  interposed,  and  said 
it  was  clear  that  the  case  was  one  in 
which  the  plaintiff  should  bring  an 
action,  seeing  that  there  were  so  many 
disputed  points  between  the  parties. 
The  Court  would  direct  the  apphcant  to 
proceed  by  action,  notice  of  motion  to 
stand  for  summons,  and  costs  to  abide 
the  result. 


BB8SEY  V.  HOLLANDER. 

Mr.  J.  E.  R.  de  ViUiers  was  for  the 
applicant  Hollander;  Mr.  W.  Porter 
Buchanan  waa  for  the  respondent,  Res- 
soy. 

From   the  affidavits  it  appeared   that 
the  parties  had  carried  on  a  panoramic 
show  at  the  recent  Cape  Town  Interna- 
tional Exhibition.    The  present  respond 
ent,   Ressey,   alleged  that  the  applicant 
had  taken  away  certain  sets  of  picturee 
to  which  he  had  no  right,  and,  upon  a  re 
presentation   to  the   Court   that    Ressej 
was  about  to  leave  for  Durban,   Natal, 
he  obtained  a  writ  of  arrest,  and  after 
wards  obtained  an  interdict  against  Hol- 
lander,  the  writ  being  then  suspended. 
The   present  question   before  the  Court 
was  as  to  who  should  pay  the  costs  of  the 
writ  of  arrest. 

De  Villiers,  C.  J. :  The  defend- 
ant, the  present  applicant,  has 
already  boon  released,  and  tho 
only  question  the  Court  has  now 
to  decide  is  as  to  who  is  to  pay  the 
costs  of  the  arrest.  The  affidavit  made 
by  the  plaintiff  for  the  purpose  of  pro- 
curing the  arrest,  states  that  **  the  de- 
fendant told  me  personally  this  morning 
he  was  leaving  for  Durban,  Natal,  to- 
day, at  4  p.m.,  and,  in  proof  of  his  state- 
ment, I  visited  his  boarding-house,  and 
found  all  his  goods  packed  ready  to  be 
sent  off."  On  the  other  side,  the  de- 
fendant positively  denies  having  made 
such  an  admission,  and  he  denies  that 
his  goods  were  packed,  and  he  produced 
ha  father  to  support  him  that  there  was 
no  such  packing,  and  his  landlady,  who 
makes  an  affidavit  to  the  same  effect,  that 
the  goods  had  not  been  packed,  and  that 
she  had  no  conception  of  the  defendant 
leaving.  Under  tnese  circumstances,  the 
weight  of  the  evidence  is  entirely  in 
favour  of  the  defendant.  It  appears  to 
me  that  the  plaintiff  was  somewhat  hasty 
in  these  proceeding's.  We  find  that  not 
only  did  he  obtain  a  writ  of  arrest,  but 


I 


he  abo  obtained  an  interdict.  Having 
discharged  this  double-barrelled  gun  at 
the  defendant,  I  think,  at  all  events,  he 
should  pay  the  costs  of  the  one  appli- 
cation, which  was  wholly  unnecessary, 
and  which  is  not  supported  by  real  facts. 
The  writ  will  be  discharged,  with  costs. 


SUPREME  COURT 


[Before  the  Chief  Justice  (the  Ri^ht 
Hon.  Sir  J.  H.  db  Villiers,  P.O., 
K.C.M.G.,  LL.D.).] 


IN  CHAMBERS. 


MOTION. 


DOWELL  V.  POLAND.  [  |ftti^27th. 

I  This  was  an  apj^lioation,  on  notice  of 
'  motion,  to  set  aside  a  certain  writ  of 
'  arrest  against  the  applicant,  Poland,  on 
I  the  ground  that  he  was  noi  indebted  to 
the  respondent  in  the  anoount  claimed 
I  or  any  portion  thereof,.  Mr.  W.  Por- 
ter Buchanan  was  foi'  the  applicant, 
I  Arthur  Poland;  the  respondent,  George 
'  Dowel  1,  of  4,  Savings  Bank  Buildings, 
I    Cape  Town,  appeared   in  person. 

Mr.  Buchanan  read  the  affidavit  of  the 
I  applicant,  Dowell,  on  which  the  writ 
against  his  client  was  issued  under  date 
of  the  24th  March.  The  affidavit  stated 
'  that  the  respondent  was  indebted  to  the 
I  applicant  in  the  sum  of  £150,  amount 
^  of  money  lent  and  advanced  from  time 
I  to  time  by  him  to  meet  respondent's  bills. 
Deponent  had  reason  to  believe  that 
the  applicant  was  about  to  leave  this 
colony,  having  booked  a  passage  by  the 
steamship  Devon,  which  is  due  to  sail 
for  Buenos  Ayres  on  the  26th  inst.  The 
plaintiff  was  unable  to  discover  that  the 
applicant  had  any  other  security  for  the 
said  (^ebt.  Mr.  Buohanan  proceeded  to 
read  a  lengthy  affidavit  by  the  appli- 
cant denying  that  he  owed  the  respond- 
ent any  money  whatever.  No  demand 
had  been  made  upon  him  in  respect  of 
any  debt  until  he  was  served  with  the 
writ  of  arrest,  nor  had  it  ever  pre- 
viously  been  suggested  to  him  that  he 
owed  the  plaintiff  aiiy  sum.  They  were 
formerly  intimate  friends,  but  owing  to 
the  fact  that  respondent  had  recently 
si>oken  disparagingly  of  him  behind 
his  back  to  a  lady,  to  whom  he  was 
engaged,  their  relations  had  been 
strained.        He    had    stayed    with     the 


"CAPE  TIMES"  LAW  REPORTS. 


269 


pbintiS  at  TKriouB  boarding  bouses  and 
00^,  but    it    had    always     been   as  a 
guest  of  the  plaintiff,   whom,  in  return, 
he  had  assisted  in  hia  businees,  both  in 
clerical  work   and   in    obtaining  orders. 
It  vas  his    intention      to     proceed     to 
Buenos  Ayres   with  Miss     Neva     Oarr 
Glynn,  to  whom  he  was  engap^ed,  with 
the  intention  of    getting   married   there 
as  soon  as  possible.       He  intended  af  ter- 
vsidfl    to    return  to  the  Colony.       The 
plaintiff  had  demanded   from   him  that 
be  should  pav  his  fare  so  that  he  also 
could  proceed   to   South  America,     but 
witne«  had  refused  to  do  so  and    had 
declined  to  have  anything  further  to  do 
with  him.    Counsel    also   read    support- 
ing affidavits  by  Fredk.   Charles  Kipps 
and  Mias  Neva  Carr-*Glynn,  of  the  Sass 
and  Nelson  Comedy  Company. 

Respondent  said  that  he  had  only  been 
aerred  vith  copies  of  the  affidavits  that 
morning  and  he  had  had  no  opportuni- 
ty of  replying  to  them«      He,  however, 
made  a  statement  to  the  Court^  in  which 
he  undertook  to  pay  the  applioant*s  ex- 
penses from  the  day  he  met  him.    When 
^  met  him  applioatnt  was  staying  at  the 
Royal  Hotel,   Plein-street,     whence    he 
was  ejected  because    he   could   not  pay 
nis  bills.   Witness  produced  certain  bills 
which  he  had   since  paid   on   behalf  of 
the  applicant  and  Miss  Neva  Carr-Glynn 
ThePB  were  hotel  oharges  in  connection 
with  the  Metropole     Hotel,      Somerset 
Strand.      He    had    kept  the     ajyplicant 
jour  months  in   Mill-street,    paying   his 
hoard  and  lodgings,  also  for     clothing, 
hoots,  etc.       Applicant   did     absolutely 
nothing  in   return    for    him;      be     vas 
without  occupation  and  was  going  away 
to  South  America   for  pleasure.        The 
bills  showed  actually  £75  paid   for  the 
applicant,  but  there  was  also  money  ad- 
▼anoed.      Witness    took   no   promissory 
notes  from  the  applicant  because  he  did 
not  know  at   that  time  what  sort  of  a 
man  be  was.      Applicant  had  told  him 
pjeatedly  that  he  was  expecting  money 
irom  Home    and     from     Johannesburg 
and"  that  he  would  repay  witness. 

Cross-^iamined :  He  denied  that  he 
wanted  to  go  to  Buenos  Ayres.  He  had 
J*ver  stated  that  he  would  swear  Po- 
und's life  away  if  he  did  not  pav  his 
|w*  to  Buenos  Ayres  nor  had  he 
thresteoed  to  shoot  him.  He  was  not 
vumated  in  these  proceedings  by  spite, 
^n  one  occasion  Mr.  Poland  and  Miss 
Carr-Glynn  had  a  quarrel  at  the  dinner 
[*hle  and  the  former  struck  Miss  Carr- 
^lynn  iu  the  face  and  knocked  the  soup 
'poon  out  of  her  mouth.  Witness  told 
hun  that  if  he  did  not  leave  the  lady 
alone  he  would  settle  with  him  (appli- 
^*nt).  Applicant  then  turned  round 
wd  blackguarded  him.  He  <^€nied  that 
he  had  been  standing  treat  for  the  ap- 
Phcant.  The  quarrel  was  not  occasion- 
^  by  witness  having  made^  disparsging 
i^arks  about  applicant  behind  his  back. 
Applicant  wished  Miss  Gl^n  to  say  a 
certain  thing   to  vntnees  m   applicant's 


prooopoe  but  she  would  not  tay  it. 

[De  Viiliers,  C.J.:  What  do  you 
mean?] 

That  I  had  said  to  Mr.  Kipps  that  I 
knew  more  about  Miss  Glynn  than  ap- 
plicant did. 

Applicant,  in  answer  to  his  lordship, 
said  that  he  had  been  enga^;ed  to  be 
married  to  Mias  Glvnn  about  six  months. 

[De  VilierSy  C.J. :  How  is  it  you  are 
not  married  yet?] 

Witness:  It  has  been  lelt  over  and 
left  over  for  one  reason  and  other. 

[De  Villiers,  C.J. :  But  you  take  this 
lady  away  from  the  rest  of  the  com- 
pany?) 

Witness  said  that  Miss  Glynn  would 
be  performing  at  4^e  l^voli,  apsCtfrom 
the  Sass  and  Nelson  CocD^any. 

Answering  further  quertions,  wvtness 
said  that  he  wss  intending  to  marry 
Miss  Glynn  in  South  Africa.  He  would 
not,  however,  geit  married  until  he  re- 
turned to  this  country. 

[De  Villiers,  C.J.:  What  is  Miss 
Glynn?] 

Witness :  She  is  a  leading  member  of 
the  SoAB  and  Nelson  OperaitioCbmpan^. 
During  further  statements,  witness  said 
that  the  respondent  had  told  him  that  he 
was  making  £250  a  month.  Witness  did 
a  good  deal  of  wodc  for  the  respon- 
dent ;  he  obtained  a  considerable  num- 
ber of  orders  for  oloihing  on  bis  behalf. 
The  orders  were  executed  in  England. 
Respondent,  he  considered,  had  sworn 
the  affidavit  out  of  viciousness.  Wit- 
ness had  been  under  arrest  since  Fri- 
day. 

De  Villiers,  C.J:  This  applica- 
tion came  before  me  in  Chambers, 
but  I  pointed  out  that,  according 
to  the  affidavit,  there  was  a  debt 
due,  and  defendant  was  about  to 
leave  the  Colony,  and  that,  therefore, 
an  application  should  be  made  to  the 
Registrar  in  the  ordinary  course,  and 
upon  that  affidavit  the  Registrar  wns 
quite  justified  in  issuing  a  writ  of  Ar- 
rest, because  the  affidavit  was  appar- 
ently in  order.  But.  on  going  into 
the  faots  of  the  case,  it  appears  to  me 
that  that  affidavit  was  somewhat  ro-k 
lessly  sworn.  There  is  a  statement 
that  the  defendant  is  indebted  to  the 
plaintiff  in  the  sum  of  £150,  "being 
the  amount  of  moneys  lent  and  ad- 
vanced from  time  to  time  by  me  to 
meet  his  bills."  When  the  plaintiff 
is  examined  he  is  unable  to  prove,  at 
all  events,  £150  to  be  due.^  He  pro- 
duces some  ^  aooounts,  and  it  is  quite 
consio'tent  wrtih  these  aooounts  that  the 
defendant's  statement  may  be  correct, 
that  he  was  throughout  the  gueat  of 
the  plaintiff.  The  two  bills  are  pro- 
duced, one  for  £7  4s.  and  the  other 
for  £6  14s.  3d.,  which  are  duplicates, 
not  originals.  These  show  that  there 
were  moneys  paid  by  the  plaintiff  for 
the  defendant.  As  I  say,  it  is  quite 
consistent  with  these  balls  that  the  de- 
fendant^ may  have   been  the   guest    of 


960 


« 


CAPE  TIMES"   LAW  REPORTS. 


4be    plfldxitiff.        He    #weMv    posibiTely 
tbttt  ne  WM  the  guest,  and,  looking  ait 
all  the  faoU  of  the  oaee,  I  oonsid^  that 
<^e  balance  of   t'he  testimony   ia  in  fa- 
vour of  the  defendant,  and  I  must  bear 
in  mind  in  this  oonneobioa  the  conduct 
of  the  plaJntaff  in  regard  to  the  arrest. 
Wbiiutever  else  ia  in  doubt  in  the  uMut- 
ter,   one    thing    is    perfectly  dear,    that 
at   the   lAst   nooment    the   plaintiff   was 
willing  to  forego  any  clainaa  if  the  de- 
fendant would  take  him     with     him    to 
South    Amerioa.        When    the    Sheniia 
officer    was     waiting  to  arrest  the     de- 
fendant,   the   plaintiff   came 'to    the   de- 
fendant in    his  room    at  the  Kimberley 
Hotel,   and  said  **  Look  here,    whait  ar.; 
you  going  to  do  about  my  going   wi*^ii 
you   to  ^uth  America?       Am    I  goiny^ 
or  not?"      To     this     defendant  replied, 
"  I  want  nothing  more  to  do   with  you 
whatever."       Upon    this    the    plaintiff 
said   "All    right,    I    have   a     gentleman 
downstairs    who    wants    to     nee     you." 
Plaintiff    called    up  the  Sheriff's  officer, 
who  placed  the  defendant  under  arr'>^t. 
After  hearing  the  defendant's  own    vi- 
sion of  it,     I     am  satisfied  that  that  is 
really    what    occurred,    and    it    appears 
that  the  plaintiff  has  used  the  Rule  of 
Cou<rt  as  a  means  of  enforcing   an   ex- 
tremely     doubtful      claim.        I  am    in- 
clined to  think   that  he  treated   thi  <{« 
fendant    throughout    as    his    guest,    and 
that,    now   that  he   has   quarrelled    with 
the  defendant,  be  seeks  to  show  by  this 
means  that  there  is  a  debt  due  to  him 
from  the  defendant,  and    as  a  mean«  of 
detaining    him     here    for    the    purpose 
of  enforcing   payment    of   this   doubtful 
claim.       At   all  events,    Vt   is   a   process 
where  the  liberty  of  the  subject  is  con- 
cerned,   and    the    Court   should  not    be 
the  means  of  deprivmg     any  person  of 
his  liberty  upon  a  claim  of  so  extreme- 
ly   doubtful    a    character.        For    these 
reasons  I   am  of  opinion   that   the  writ 
should  be  discharged.       1  depend  upon 
^e    defendant's      statement     that      he 
intends  to   return   to  this      colony.        I 
hope  he  wall  carry  that  out,  so  that  the 
plaintiff   may  have    an    opportunity    ot 
bringing   his   action   hereafter,  not   thst 
I    think   he  may   be  able    tp  get   much 
by  that  action,  even  should  the  defen- 
dant be  fortunate  with  his  speculation- 
at  Buenos  Ayres  in  regard  to  oattle.     1 
am  satisfied  that  there  is  no  debt    ow- 
ing, and,  having  that  opinion,     I  think 
that   the   defenoant   should    not    be  de- 
prived  of  his  liberty.       The   writ   will, 
raerefore,  be    discharged,    costs   of    this 
application   to   abide  the   result   of   anv 
ac&on      which      may      afterwards      bf 
brought.      If  such  action  is  not  brough' 
after    the    return    of    the    defendant    *r> 
this  colony,      then      in      the      ordinary 
course  the  defendant  may  apply  to  thi^ 
Court  for   his   costs.       Tbe     writ     wii' 
(itand  in  place  of  a  summons. 


APPENDIX. 


NOTE. 


The  Editor  regrets  to  state  that  the 
following  important  judgments  were 
receive<i  too  late  to  follow  ibe  respective 
cases  in  this  report  to  which  they  refer  : — 

MaNIClPALITT     OP     iDBNDORP      V. 
KIMGSWELL. 

Maasdorp,    J.  :     It    appears    in    this 
c^se    that    in    November,     1865,        one 
Adendorff.  the  owner  of  a  farm  in  the 
neighbournood  of   Graaff -Heine t,    called 
"  De  Erf  "    was  desirous  of  establishing 
a  village  on  'his  fanm.       For  that  pur- 
poisc  he  caused    a  portion   of  this  land 
to  be  laid  out  by  a  Burveyor  in  lots  or 
erven,  wbich  he  sold  a/t  pu'blic   auction 
on       the      iiJch     of     November,      1855. 
Amongst     the     oondiiions  of  sale  were 
the   foUowdng.  which  are  the  only  ones 
material  to  the  issues  in  this  suit :    '*  II. 
Every    purchaser    or  owner   of   any   erf 
shall*  have  right    to    the    grazing  lands 
as    hereinafter  stipulated,    and    the   said 
grazing  landb  shall  be  used  by  the  owners 
or    occupiers    of    *'  Do     Erf,"     or    the 
future  owners  also.      IV.     The  grazing 
land  aibove    mentioned,    shaJl   consist   of 
all  the  ground,   not   being    arable    land 
stiuate  on  the  right  or  western  side  of 
the  Sunday   River,   and  shall   be  exclu- 
sively  for    the    use  of  the  occupiers    of 
"De   Erf,"  or  any  of  the  occupiers   of 
the  ground    thereof      and      owners      of 
erven    and  no  one  shall  have  the  right 
to       accept   or   allow  strange    cattle    to 
graze,     and    every    erf   shall    have    the 
right    to    keeip   eiffht    oxen    and   twelve 
Bho^p  on    the   said  grazing   land.         V. 
No      one     shall    have  the   right   to    cut 
wood  on  the   ground  of   "  De  Erf,"   or 
damage  the  growing  trees  in  any  way ; 
ownore  of  erven  shall,  however,  be  en- 
titii'vi    to    firewood,    by    which    must  be 
understood     dry     Ithorn-wood,   and   that 
only  on  the   left  or  eastern  side  of  the 
river,   as    far    as    the    village    expends." 
The     village    established     in     1856     was 
called  Adondorp.    On  the  5th  of  Nevem- 
ber,    1856,   another  portion  of   the   farm 
was  laid  out  in  erven  or  lots  of  ground, 
and  sold  at  pubHo  auction,   constituting 
what  are  called  in  this  case,  the  villages 
of  Rouvierville  and  Retreat.     The  graz- 
ing     rights   of    the  erfholders  in    these 
viliages  were  similar  to  thos^S  of  Aden- 
dorp,    but    their    right    to    firewood^   is 
expressed  in  the  foUowing  terms :    **  V. 
Any  owner  shall  have  the  right  to  cut 
wood  as   far  as   his    ground   or  erf   ex- 
tends on  both  banks  of   the  river,  but 
they  shall  in  no  way  damage  any  grow- 
ing  tborn    trees,    and   no  one  fihall    out 
wood,  or  in  any  way  damage  the  trees, 
along  the  water -furrow."     I  have  given 
the   conditionB   respecting   the   right    to 
firewood   of  fhe    erfholders    of    the    vil- 
I    lage  of  Adendorp  in  fuU,   not  because 


iF 


i< 


CAPE  TIMES**   LAW  REPORTS. 


261 


It  IS  material  to  the  ismies  directly, 
but  for  the  light  it  is  said  to  throw 
on  the  condition  appertaining  to 
RouYierville   and    Retreat.        It    is    ad- 

"^'l*Yj  '^*  ^^^  oomplaiat  of  the  former 
eriholders   in    this    respect    cannot       be 
maiutained,      because     the     village     of 
Adendorp  had  no  right   to  firewood  on 
the  west  hank    of    the    river,    and    the 
operationa  on    4 he  part    of   the  defend- 
ant, which     -was      complained    of,  were 
confined  to   that    bank    only.         But    a 
ctMnparison  of  the  conditioiis  has  given 
•"^f  *»  the  contention  that  whereas  the 
crfholders    of    Adendonp  had  no  right 
to  latenfere   witii    any    growing      trees, 
but  were  to  be  contented   for  firewood 
to  take  only  dry  thorn-wood;    ihe   erf- 
holders   of    Rouvierville    and     Retreat, 
^^J^^  <>th«r  hand,  were  entitled  to  cut 
wood,  80  long  as  they  did  not  damage 
Any  growing    thorn  trees.      This    is  al- 
most    a     larger   right   than    the  plain- 
tin  s   seemed  a;t  one    time   to      contend 
ror,  but  I  think  it  must   be  taken,   now 
that   It  waa  agreed   at   the   trial      that 
every   erfholder    of     Rouvierville     and 
Kctreat  was  entitled  to  cut  wood  other 
M»an  growing  thorn   trees,    and    in    the 
caae  of  thorn  trees  they  could  take  dry 
or  dead  wood.        Thie    right    could    be 
exepcBed  by  each  owner  only  opposite 
a»  own  erf   on   both    banks      of      the 
nver.       It  was  contended   for   the   de- 
endant  that  the  right  should  be  stridt- 
ly  oopfined  to  the   immediate   banks  of 
fO€  river,  and   not  extend  inland.     But 
It  A^pe&Ts   to    me,    after    hearing    the 
description  of  the  country  given  by  the 
wuneases,     iha.t    a    belt   of    trees    runs 
flong  both  banks    of   the   raver,    wider 
jn  some  parte  and  narrower   in  othere, 
oitt  never  verv   wide,    and   I    think  the 
conditionB  has    reference  to    the    whole 
«  the  belt,  as   distinguished    from    the 
trees  on      other    parts     of     the     farm, 
ineee,     therefore,      were    the    grazing 
"gate  of  the   erfholders   of   Adendorp, 
Koavier  and    Retreat,     and      the      full 
ngnte  of  those  of  Rouvier  and  Retreat. 
p ,  j^^"ua»palfty    was    thereafter    ostab- 
«fa«d,    embmcing    the     three     villagcw 
mentioned,     called  the   Municipality  of 
Adendorp.     The  Oommisaioners  of  that 
^um«piil,ty  appear  m  pJaintilTs  in  this 
case  to  vindicate  the  common  rights  of 
*f  "ihabitanto  .    and   it  is  admitted  by 
counsel  for  the  defendant  that  they  are 
entitled  to  take    up  that   position,       in 
Mcordance     with    the   cases   decided    in 
^w  Court.    In  1901  the  defendant  pur- 
chaeed  the   farm    "  De    Erf,"  which    is 
J«JJ«rt  to   the    abve-raentioned       servi- 
jwi«  in  favour  of    the  erfholders,    and 
^  obtained    transfer  on   the  21et    day 
f  September,    1901.      His   main   object 
m  tile  transaction  was  to  n^ake  a  pro- 
lV«?"    ^  *^*  firewood   growing  on   the 
'Wd,   and   he   says    himself,       "Before 
^y^"?,  I  made  a   thorough   inspection 
J".  *a«  property,   with  a  view  to  ascer- 
■J°^"a  jrlirthcr  the    wood-ciffcting  upon 
"P<»    the  land  would   recoup  me   for 


the   purohase."     At  tha.t  time,    in  con- 
sequence of  the  restrictions  imposed  un- 
der     Martial   L#aw,    the   inhabitants   of 
the    town    and  das.trict  of   Graaff-Reinet 
were     hindered      in     their     movements 
about      the      neighbourhood,      and     ex- 
perienced   great    difficulty    in    obtaining 
fuel   Ifor  ordinary   daily    use.     Any  per- 
son,   who   wa»i   allowecf  facilities   by  the 
military  authorities  in  this  respect,   en- 
joyed a  (fair  prospect  of  making  a  good 
thmy  out  of  the  sale  of  firewocx].     Such 
facilities    were    alk>wed    to    it  he    defend- 
ant,  and   he  was  not  slow    to  take   ad- 
vantage of    them.       The    more  fuel    he 
could     place     upon     the     GraafiT-Reinat 
markc(t  during  a  time  which  was  a  close 
season  to   mo»t   of  the    inhabitants,  the 
better  for  him.     He  says,    "  I   told   the 
woodcu'bters    to    cut    all     wood    fit    for 
fuel."     Mylburgh  tays,    *'  I  was  employ- 
ed   in   cutiting  »wood   for  the    defendant 
for    a'bout    a  year.         I    cuit    everything 
suitable  that  1    came  across.         I      cut 
every  kind  of  bush,   if  it  was  sui table. 
In  -the   matter  of  bushes,    I  would   not 
cut     anything     under     one-and-half     or 
two    inches    in    diajnoter."         Cornelia 
Sfwanepoel.  who  was   also  employed    by 
the   defenaant  to  cut  wood,  stated,  "I 
was  told  to  cut  all  I  could  find.       The 
defendant's   instructions   to  me   were   to 
cut  right  and  left   as   you   go.        I   was 
leaving  young  trees  of  about  two  inohes 
in  diameter,  but  I  was  told  to  cut  them 
down."     The  wood  brought  into  Graiaff- 
Roinet    is     described    by     Smith,     who 
•bought   it   for   his  bakerv,      and     says, 
**Tne    defendant  supplied    me    with  all 
tjorts    of    wood — plum,     witgtat,     quarri. 
and  others.     Some  of  art  was  ver^  thin, 
but  we   were   glad   to  get    anything    at 
that  (time,  as  Martial  Law  was  prevent- 
ing   'people    from  coming    in    with    the 
wood.      It    was    all   green    wood       with 
which    I   was  eirppliod.        I    had    never 
previously      bougnt      green      plum-tree 
wood.      It   is   very  seloom      cut,    unless 
land    is   'being   cleared   for   sowing  pur- 
poses.'      This     gives     a     pretty     clear 
idea    of    the    instructions    given  by    the 
defendant  to   his  workmen,   and  ai  the 
way    the     work     was     performed.         It 
socTOB  to  me   thiat  even    if   the    defend- 
ant      were       acting  wholly    within   his 
rights  in  what    he    did,    it   would    be    a 
very    sad   day    for    the    country   if    any 
largo  numiber  of  farmers   were   to   deal 
witn      their    land  in   the    way    he  dealt 
with    his;    and    disrastrous   results   would 
follow  from  the   consequent    denudation 
of  the  country.     Fortunate!''  so  strong 
a   temptation   as  existed    in   this       cawe 
does    not   often   occur.      I    am    not  sur- 
prised that  Mr.  Booysen,    a  neighbour- 
ing     farmer,    was   so  shocked   when   he 
saw  the  'oank  of  the   river  being  strip- 
ped     bare,      that    he  eagerly   enquired 
whether  no  means  in  law  could  he  dis- 
covered  to   stop   the   work.     These    re- 
inarks    are  only    made    in  pasi^ing,    be- 
muse, if  the  defendant  acted  within  his 
legal  rights,   no  one  has  in  law  a  right 


262 


<( 


CAPE  TIMES*-  LAW  REPORTS. 


to  oomplain,  and  all  the  Court  has  to 
aacertain  a  H  any  injury  was  done  by 
the   deifendant  to  the   erfbolden   repre- 
sented by  the  plaintiffs  for  which  they 
are  entitled   to  redress.     It   was    urged 
that   the  defendant  was   not      engaged 
in     any  worthless  or   wanton     destruc- 
tion, and  for  my  own  part  I  must  say 
ihat  all     that     aotuated     the     plaintiff 
iw^ro     the     ooonmeroiul     and     nnanoial 
considerations     of    making^    as  large      a 
profit    as    possible    within    the    exercise 
ol  what  he  regurded  as  his  iegal  rights. 
He  bougfht  the    Jand     for    £225,      sold 
aix)ut   1,000    loads    of    wood    for    some- 
thing like  £2,000,  more  than  half  being 
cle<&r   prodt,   and    then    resold  the    pro- 
•pertv  to  the  Adendorp  Municipality  for 
£61(},  -agreeing  to  forego  half  t^e  pur- 
chacie    price  if  the   Municdpalitv   eradi- 
cated  the    prickly    on  the    lana    within 
12   months.       The  character     of     these 
financiaJ     trandaotions   does    not     affect 
the     ]eg<al  issue     between  the     parties. 
The  Court  «has  now  to  decide  if  the  de- 
fendant in   cutting   wood    on   the   farm 
injured  the  erfholders  in  the  rights  to 
firewood  and   gracing  under  the   condi- 
tions ntienltioned    aibove.    The    plaintiffs 
complain     thatt    the   defendant     wrong- 
fully and  unlawfully  cut  down   and  re- 
moved all  the  veld  bushes,  thorn  trees, 
and    other    trees   and  ehrube    of   every 
sort  grdwing  on  the  property  in  viola- 
tion of  ihe  rights  of  the  erfholders,  and 
therdby   destroyed    the   grazing    ground 
thereon.       The  complaint  of   tne  plain- 
tiffs     is   (twofold,   fir»t     in    respect     of 
their    loss  in    firenvood  -    second,   in    re- 
spect  of   the    damage    to    the     grazing. 
As  to  the  former,   the  defendant  in   iiih 
plea,    aiPter    staiting   that  the   erfholders 
at  times  exceeded  their  Inuwful  rights  in 
cutting  wood,   admits  that  ihe  cut  down 
and    revnoved    certain    firewood    on  the 
west    or   right   bank    of    the    river      in 
respect  of    Which  the  erfholders   of   the 
villages  of  Rouvierville  and  Retreat  had 
ceptain     rights     of     cutting     wood     in 
terms  of  the  said  conditions,   and  in  re- 
spect of   any  damages  suffered   by  them 
in  this  revpect  he  tenders  the  sum     of 
£25.       It    was   contended    at    the  trial 
that  thie  tender  was  not  initended  to  be 
reetrioted  to  thie  part  of  the  oase,   but 
in  view  of  my  decision  in  the  oase  that 
ipoint  will  not    be    of    any    importance. 
It  was   admjptrted   at   the   trial   that   the 
defendant  in  cuttinjj^  down  all  the   trees 
opposite     Rouvierville       and       Retreat 
acted  under  a  misapprehension,   and   in 
ignorance    of    the    faot    that    the   rights 
attacihing    to   these   erven    were    larger 
tlian   -those   belonging  to  Adendorp     in 
that  the^  expended  to  the  opposite  bank 
of  the   river.    In  mv  opinion   the  con- 
ditions  in  respect  ai  firewood   does  not 
deprive     the    owner     of  the     property 
from   making   a   rea6onable   use  of   the 
trees  growing  on  the  banks  of  the  river, 
and  from  cutting  them  down  as  he  may 
from   time  to    time    require    them,    and 
even    selling    them    as    firewood  if    he 


were  desirous  of  doing  so.    But  he  must 
respedt     the  rights    of   the     erfholders 
While    exercising^    his  own.    They    were 
enititled    from  time    to   time    to    collect 
drv  wood,  and  even  to  cut  down  trees 
otner  than  >(hom  trees,   which  I  take  to 
be   mimoaa  trees.       These   rights   must 
run  together,    and    whether    they      are 
exercised  roaeonalbly   ie  a  relative   ques- 
tion dependant    always   on  the     special 
circumstances   of   each   case.     But   it    is 
not   difficult  to   decide   tha«t  when      the 
defendant    laid   bare    the   banks   of  the 
river,   as  he  is  in  my  opinion  i>roved  to 
have  done,    he  wrongfully  deprived   the 
erlholders     of     substantial    benefits     to 
which    under    the    conditions    di    sale 
•they    were    entitled.     Evidence  was  pro- 
duced    to  prove     that     in    time     trees 
would  fs^ring  up  again,    but   thie   must 
necessarily  Ibe  a  process  of  some  years, 
and    the    erfholders     in    the    meantime 
suffer  loaa  for  which  they  have  a  right 
to  compensation.     That  some  pecuniary 
loss  has  been  sustained   in   this   respect 
by  each   of   the  erfholders   of   Rouvier- 
ville   and   Retreat    has    in    my   opinion 
been    proved,  and   the   accumulation    of 
dry    wood   left    after    the   wood-cutting 
by  defendant  has  not  compensated  them 
for  their  loss,  but  on  the  other  hand  I 
am    satiefied    upon     the    evidence     that 
after     the  manner    in  which    the     erf- 
holders   have   exercised    their   rij^hts    in 
the    past    the    annual  yield    of  firerwood 
under   (the  conditions    would    not    have 
-been  large.    I   cannot  accept    the    view 
that  the   wood  so  obtained  would   have 
satisfied  their  daily  requirements.     The 
nioteriaLs    provided    for    assessing    dam- 
ages   suffered     by      the     eifholders     of 
Rouvierville   and    Retreat   through    less 
of  firewood   is  extremely  meagre,   but  it 
would  seem  thart;  fche  belt  of  wood  oppo- 
site   their    erven    skirted   the    river  for 
i^bout   3,000  yards,    and   extended   some 
distance    from    the    banks,    and    during 
the  year  they  collected  a  fair  Quantity 
cf  firewood,  the  loss  of  whioh  tney  will 
experience   for  a  nuomber  of  seasons.     I 
think   £100  damages  should  be  allowed 
in   this    respect.    This    is    certainljr    not 
excessive,    'but   only    a    rough  estimate 
can    be    made    upon   the    evidence   ad- 
duced.    The  other    branch   of   the   case 
dealing   with   the    grazing  rights  of  all 
the    enholders    is    practically  the    niore 
•iimportant  of  the   two  to  the   plaintiffs, 
ibut    in    view   of   the  evidence  produced 
it  presents   very   little   difficulty.  There 
is  Bibundant  evidence  to  prove  that  the 
defendant  in  his  wood-cutting  operations 
do5troyed     an      immense     quantity      of 
bushes  and  shrubs  which   constitute  the 
bulk  of  the  pasturage  on  the  slopes   of 
the   hills.    On    the   one    hand  I   am    of 
opinion   that    although    the  large    trees 
mav  at   certain  seasons  afford  excellent 
herbage,    they   do    not   the    less  retain 
the    character    of    firewood    which    the 
defendant  was   entitled    to  cut  down  in 
a  reasonable  manner ;  but  on  the  other, 
althougih   amon^  the  buahes  or   shrubs 


"CAPB  TtMES"  iiAW  BEt^OttTS. 


263 


me&tioDed  some  ihioker  stumpe  may 
be  found  fit  for  firewood,  thej  neyer- 
tbekss  were  regarded  by  the  parbiee 
and  most  be  taken  to  form  the  graz- 
ing for  stock  provided  for  in  the  con- 
ditioM  of  sale.  It  appeared  that  the 
erfholders  <would  have  a  right  to  place 
1.724  small  stock  and  1,045  head  of 
cattle  OQ  the  land,  and  ait  he  beet  the 
land  could  not  support  more  than 
1.000  abeep  and  ITO  head  of  cattle. 
They  would  therefore  be  entitled  to  the 
full  uid  undiminished  pasturage  on  the 
property.  The  defendant  admits  that 
from  &0  to  300  loads  of  wood  were 
cut  in  the  kloofs  and  riidges.  A  large 
proportion  of  this  must  have  oonsisted 
of  the  stumps  of  shrubs  and  buihes,  of 
which  very  many  would  be  required  to 
nuke  up  one  load,  each  of  these  stems 
roust  have  carried  a  fair  amount  of 
foKa«,  and  their  desitruotion  must  have 
largely  reduced  the  herbage  on  the 
land.  I  quite  believe  the  witnesses  who 
•ay  that  the  shruibs  in  question,  grow- 
ing on  the  rugged  stony  hillsides  take 
a  considerable  time  to  recover  after 
being  cut  down.  Some  substantial 
oMaages  mus*  have  been  sustained  By 
toe  erfholders  through  the  consequent 
orterioration  of  the  veld,  and  in  this 
ca«e  also  the  loss  must  ex<tend  over 
wveral  seasons.  But  here  also  no 
Dieasttre  is  afforded  by  which  the  dam- 
fgeg  can  be  nicely  estimated,  but  when 
It  is  borne  in  miiid  what  the  defendant 
made  in  the  sale  of  wood  taken  from 
this  portion  of  the  land,  I  am  of  opin- 
•on  that  £200  would  be  a  reasonable 
sum  to  allow  the  plaintiffs  in  this  part 
Ji  the  case.  Juclgment  will  be  given 
for  the  plaintiffs  for  £300  d&mageri 
^h  co0ts,  the  Commission  declared 
n^oeasary  witneases. 

[Plaintiffs'  Attorneys:  Michau  and 
De  Villiers;  Defendant's  Attorney: 
TrolKp.]  ^ 


FOURIE  AKD  OTHERS    V.    MOSTKRT  AND 
OTHERS. 

Maasdorp,  J. :  It  appears  from  the 
evidence  adduced  in  this  case  that  on 
the  12th  dav  of  November,  1881,  Ooen- 
2*^  Joeepnus  Fourje  and  his  wife 
Martha  Maria  Fourie,  who  were  mar- 
ried in  community  of  property  made  a 
]omt  will,  to  which  a  codicil  is  an- 
aexed  by  which  they  bequeathed  to 
their  joint  children  already  begotten, 
or  still  to  be  begotten  of  their  marriage, 
»nd  in  case  of  predecease  of  one  or 
wore  of  them,  then  their  lawful  de- 
joendants,  all  the  landed  property  be- 
longing to  their  estate  at  their  death, 
the  heirs  having  the  right  to  sell  their 
•hares  or  rights  to  one  another,  only  so 
that  these  lands  shall  remain  in  the 
Posaeesion  of  the  heirs  or  their  lawful 
oescendants  only.  Thereafter  Martha 
Mana     Fourie     died,     but     Coenraad 


Josephus  Fourie  is  still  living.  He 
seems  to  have  adiated  under  the  will 
and  codicil,  and  the  inheritance  and 
bequests  became  vested  in  the  heirs  and 
legatees  in  terms  of  the  will  and  codicil. 
The  children  interested  in  the  land  be- 
queathed under  the  codicil  are  the 
plaintiffs,  their  sister  Isabella  Johanna 
Mostert,  and  the  defendant  Ockart  Jo- 
sephus Fourie.  After  the  death  of 
their  mother,  the  children  were  per- 
nnitted  by  their  father  to  take  posses- 
sion of  the  land  bequeathed  to  them 
in  separate  but  undivided  portions  on 
condition  that  each  of  them  paid  him 
an  annuity  of  £15  in  consideration  of 
his  having  given  them  the  inunediate 
occupation  at  the  land.  The  several 
heirs  accordingly  took  possession  of 
their  separate  portions,  and  remained 
in  occupation  thereof  until  the  year 
1904.  On  the  22nd  of  September  of 
that  year  Ockert  Fourie  entered  into 
an  agreement  with  Winnie  Annenberg, 
married  in  community  of  property  to 
Hirsch  Braur  Annenberg,  and  Ja- 
cobus Petrus  Mostert,  two  of  the  de- 
fendants, by  which  he  sold  to  them  the 
land  inherited  by  him  under  the  above- 
mentioned  codicil  for  the  sum  of 
£7,900,  in  lieu  of  £1,500,  of  which  the 
seller  accepted  land  held  by  the  pur- 
chaser under  an  option  from  one  Jo- 
hannes J.  Smith ;  £350  was  to  be 
paid  in  cash,  and  £50  in  value,  re- 
presented by  a  boiler  and  other  articles. 
Possession  was  to  be  taken  on  the  16th 
October,  1904,  and  transfer  to  be  given 
as  soon  as  possible.  The  purchasers 
also  undertook  to  pay  the  annuity 
of  £15  payable  by  Ockert  to 
his  father.  When  this  purchase 
took  place,  the  purchasers  were  not 
aware  of  the  restrictions  upon  the  sale 
of  the  property  contained  in  the  codicil. 
When  they  discovered  that  the  sale 
could  not  go  through  without  the  con- 
sent of  the  other  heirs,  they  set  about 
obtaining  it,  with  the  result  that  upon 
the  24th  of  September.  1904,  they  be- 
came the  holders  of  a  document  signed 
by  all  the  heirs,  in  which  the  heirs  gave 
their  consent  to  the  sale  of  the  pro- 
perty mentioned  to  Winnie  Annenberg 
and  Jacobus  Mostert,  saying  they  had 
no  desire  to  take  over  or  buy  the  pro- 
perty in  terms  of  the  will  of  their  par- 
en  t.s.  Upon  the  circumstances  attend- 
ing the  execution  of  this  document  de- 
pend the  issues  raised  between  the  par- 
ties in  this  case.  The  plaintiffs  allege 
that  their  consent  was  obtained  by  false 
and  fraudulent  representations  made  by 
the  defendant  Mostert,  acting  for  him- 
self and  his  co-purchaser,  Winnie  An- 
nenberg, and  they  pray  that  the  said 
written  consent  may  be  declared  null 
and  void,  and  that  the  defendants  may 
be  ordered  to  deliver  up  to  them  the 
said  document;  and  they  also  ask  for 
Si  I  order  restraining  the  said  Ockert 
Josephus  Fourie  from  passing   and   the 


264 


tt 


CAPE  TIMES*'   LAW  REPORTS. 


other   defendants   from   taking    transfer 
of  the  property.      The  defendants  (Mos- 
tert  and     Annenberg)     deny     that  any 
false     and      fraudulent     representations 
were  made   to   induce   the   plaintiffs   to 
give  their  consent  to  the  sale.      The  al- 
leged   repreeontations    are    set  forth    in 
th^  eightn  paragraph  of  the  declaration, 
and  are  the  foUowmg :     That  the  defen- 
dants had  bought  Ockert's  share  in  the 
land  for   £3,050,    and   had   sold    to   him 
the  property  of  Smith  for  £2,700,  leav- 
ing £350  to  release     Ockert     from  his 
financial       embarassments,       and      that 
Smith's  farm   consisted    oif   20      moreen 
arable      land,      400      morgen       grazmg 
land,    *and     a    large    vineyard    and  or- 
chard, whereas  the    purchase    price  was 
in  fact  only  £1,900,  to  be  paid  upon  the 
terms  already  mentioned,  and      Smith's 
farm  consisted  only  of  about  six  morgen 
arable  land  and  70  morgen  grazing  land, 
and  was  worth  no  more  than  from  £600 
to  £700.       It  appears  that  the  farm  of 
Smith  was  bought  by  the  defendants  on 
the  27th  of  September,   1904,  for  £860, 
£400  of  which  was  to  go  in  payment  of 
a  bond  on  the  property,  £250  to  be  paid 
in  cash,  and   £200  by  a  four     months' 
promissory  note.  The  Divisioiial  Council 
value  of  Smith's  property  was  £460,  and 
as  it  is  not  unfrequently  th^  case,   that 
the  Divisional  Council  valuation  is  not 
much  more     than  half  the  true  value, 
it  may  be  taken  that  £850  was  a  fair 
price  for  the     land.       The     defendant 
Mostert   said   in  evidence  that   at      the 
time  he  bought  Ockert's  ground  he  con- 
sidered it  worth  from  £2,100  to  £2,200. 
In  that  case  the   defendants     obtained 
a  property  worth  upwards  of  £2,000  for 
one  valued  at  £850,  a  cash  payment  of 
£350  and  £50  value  in  goods,   making 
a  total  of  £1,250.    This  was  an  excellent 
bargain  for  them,  and  the  plaintiffs  say 
it  was  even  better  than  that,     because 
Ockert's  property,   they     say,   is  worth 
£3,000.       The  plaintiffs  do  not  (question 
the  amount  of  the  actual  price  given  as 
standing   at   £1,900,   and      consequently 
the  Court  has  not  to  go  into  the  ques- 
tion whether  persons  who  have  a  right 
of  pre-emption  oan  object  to  the  vidue 
placed   upon   property   forming   part  of 
the  purchase  price  with  respect  to  which 
they  have  to  exercise  their  option.       It 
is  quite  obvious  that  such  persons  may 
be  defeated  in  their  rights  if  the  pur- 
chase price  is  in  this  manner  fictitiously 
increased.       As   between   the  parties   it 
must  be  taken     that     Smith's  property 
represents  £1,500  of  the  purchase  price 
of  Ockert's  land,  but,  taking  it  at  that, 
the  defendant  expected  to  ntuike  a  very 
good  thing  out  of  the  transaction,  when, 
imfortunately  for  them,    they  discvered 
that  unless  they     obtained  the  consent 
of  the  other  heirs  they     would  be  dis- 
appointed  in    their    expectations.        On 
the  other  hand,  it  is  perfectly  clear  that 
the  plaintiffs  were  very  averse  to  having 
strangers  coming  amongst  them   on  to 


the  land,   and   would  have  done  every- 
thing in  their  power  to  prevent  it.     It 
is  not  pretended  by  the  defendants  that 
the  plamtiffs  gave  up  their  ri^ht  of  pre- 
emption,   because  they   were  mdifferent 
in  the  matter,  on  the  contrary,  Mostert 
admits  that  he  had  the  greatest  trouble 
to  induce  them  to  give  their     consent. 
The  position  was,      therefore,   this,    the 
plaintiffs  were   anxious  to  keep  the   de- 
fendants out  of  the  property,  and  there 
was  no   reason  to  believe   that  if   Ihey 
could  have  done  so  by  buying  the  |  r'v- 
perty   for   themselves   at   a      reasonablo 
price  they  would  have  been  unwillir.^  to 
do  it.     There  is   no  doubt  that  the   de- 
fendants upon  their  own  admission  Yhd 
bought   the    property     at    a  reasonable, 
if   not  low   figure.       In    law   they   woro 
obliged  to  allow  the  plaintiffs  the  option 
of  taking  the  farm  over  at  the      same 
price,  before  they  could  take  advant;.i;€ 
of   their  bargain,    and   they   must   have 
been  aware  that  if  that  option  had  letn 
placed      before      the      plaintiffs,      tliey 
would  in  all  probability  have     adopted 
the  purchase.       It  was  under  these  cir- 
cumstances that     Mostert     went  to  the 
plaintiffs   to  obtain   their  consent,    and 
it  was  under     these     circumstances  that 
the  plaintiffs  say     he      made  the  false 
representations  complained  of.     Now    it 
is  quite  clear  that  the  plaintiffs  were  en- 
titled to  be  informed  that  they  could,  if 
they  wished,  take  over  the  property  for 
£1,900,     the  price  actually  agreed  upon 
by  the  defendants,   and  yet  the  defen- 
dant Mostert  admits  that  he  never  told 
them  what   the      price     was  stipulated 
between  them  and  Ockert.     Mostert  says 
the  true  price  was     not  mentioned  be- 
cause  the    plaintiffs   must   have   known 
what  it  was,   but  there  is  no  evidence 
that  they  did,  and  I  fully  believe  their 
uncontradicted  statement  that  they  did 
not.        This    finding    has    a    damaging 
effect   upon  the   rest   of   the    defendant 
Mostert's     evidence.        The     price     for 
which   the   plaintiffs  might   obtain   the 
property,     in     accordance     with     their 
rights  under  the  codicil,  was  all  important 
to  them,  and  must  have  been  a  subject 
of    inquiry    by    them.         I    believe    the 
question  was  raised,  and  the  price  was 
mentioned,     but    not     the    true     price. 
The  issue  raised  was  a  very  serious  one. 
and   counsel   on   both  sides,   seeing  the 
importanco  of  it,   subjected   the   oppos- 
ing   witnesses    to    very     severe     cross- 
examination.     This  necessarily  occupied 
a  considerable  time,  but  it  throws  much 
light  upon  the  case,  and  as  a  result  has 
greatly    facilitated    the    finding    of    the 
Court  upon  the   facts.     The  weight  of 
evidence  upon  the  side  of  the  plaintiff, 
both    direct    and    circumstantial,    is    so 
overwhelming,  that  I  consider  it  unne- 
cessary  to   go   into   a   nice   analysis  of 
the   conflicting   testimony.      One   would 
imagine  that  when  Mostert  went  to  see 
the  plaintiffis  to  obtain  their  consent  to 
the  written  contract  of  sale,   with  the 


"CAJB  riMES"  iiAW  ItEi^OfitS. 


art 


tcnoB  of  whioh  he  would  have  to  acquaint 
tbem,  the  moot  natural  oourse  was  to 
take  the  contract  with  them;  but  this 
he  neglected  to  do.  Not  having  the 
(tocument  with  him,  the  next  best  thing 
wu  to  take  Ockert,  who  was  in  his 
company  on  his  "way  to  the  plaintiffs, 
with  him,  to  support  his  application  to 
them;  bat  this,  also,  he  neglected  to 
do.  the  result  being  that  he  now  stands 
unsupported  by  documentary  or  other 
evidence  over  agrainst  all  the  plaintiffs 
and  seT«ral  disinterested  witnesses. 
One  after  another,  these  witnesses  nar* 
nted  what  took  place  at  the  interviews 
between  Mostert  and  the  plaintiffs,  and 
there  IB  no  doubt  that,  as  compared  with 
tbe  evidence  of  Mostert,  the  probabili- 
ties are  vastly  in  their  favour.  I  caji 
«e  no  reason  for  doubting  the  credi- 
bihty  of  Ellis,  Claassen,  and  Stokes, 
vho  are    wholly    disinterested    in    the 


case,  I  cannot  see  what  oouM  have  in- 
duced the  plaintiffs  to  withdraw  their 
consent  in  October,  if  they  had  given 
it  in  Sei>teinber,  with  full  knowledge  of 
all  the  oircumstancee.  Nor  do  1  believe 
that  if  they  fabrioated  a  false  case  in 
October,  they  could  have  induced  men 
like  Ellis,  Claassen,  and  Stokes  to  sup- 
port them  in  it.  These  are  onlv  a  few 
of  the  many  reasons  that  exist  for  com- 
ing to  the  conclusion  that  Mostert  did, 
by  these  false  representations  set  forth 
in  the  declaration,  induce  the  plaintiffs 
to  fiive  their  consent  to  the  sale.  The 
plamtiffs  are,  therefore,  entitled  to  have 
it  declared  that  the  written  consent  ob- 
tained from  them  under  those  circum- 
stances is  null  and  void.  Judgment  will 
be  given  for  the  plaintiffs  in  terms  of 
paragraphs  (a),  (b),  and  (c)  of  the  decla- 
ration, the  plaintiffs  being  declared 
necessary  witnesses. 


^^Cape  Times"  Law  Reports. 


CASES  DECIDED  IN  THE  SUPREME  COURT, 


CAPE    COLONY. 


SUPREME  COURT 


[BefoK  the  Chief  Justice  (the  Ri(rht 
Hoo.  8ir  J.  H.  DK  Villibrb,  P.O., 
K.C.M.G.,  LL.D.).] 


MOTIONS. 


A>  partt  HBATLIB.        I  ^ p * 


1906. 
4th. 


Mr.  W.  Porter  BuohnuinATi  moyed  for 
*  rule  niM  restraining  Eiias  Adam- 
itein  from  collectmsr  or  receiving  rents 
irom  the  tenants  of  certain  property 
koown  as  York  Buildings,  Hanover- 
•traet.  Cape  Town,  to  be  made  absolute. 
Counael  said  nothing  had  been  said 
about  the  ^rvice  aiid  the  rule  was 
haoded  over  to  the  Sheriff  for  service, 
rheie  were  affidavits  from  a  clerk  in  the 
office  of  the  Sheriff  and  from  Mr.  liar 
MDt,  the  attorney  acting  for  the  appli- 
^tnt.  to  the  effect  that  although  every 
effort  had  been  made  to  effect  personal 
Mrvice,  they  were  unable  to  do  so, 
iltbongh  it  was  known  that  the  respond- 
jai  was  in  Cape  Town. 

[De  Viliien,  C.  J. :  Has  he  not  a  last 
koown  place  of  residence  ?] 

Mr.  Buchanan:  No,  my  Lord,  It  is 
not  known  where  he  resides.  He  had 
s  place  at  Richmond,  but  the  order 
lias  been  returned  from  there,  the 
Wipondent  having  left  for  Cape  Town. 
A  copy  of  the  rule  had  been 
•enred  on  William  Henry  Low,  partner 
io  the  firm  of  Syfret,  Godlonton 
*aa  Low,  who  were  acting  for  the  re- 
Vondent,  but  Mr.  Low  said  he  had  no 
power  to  accept  service  and  that  he  was 
sot  acquainted  with  the  rrapondent's 
shereabouts,  although  the  lespondent 
Bsd  been  in  tlie  office  a  few  days  pre- 
vious. In  the  petition  there  was  an 
Allegation  to  the  effect  that  an  irrevoo- 
tble  power  of  attorney  had  been  grant- 
ed to  Mr.  Heatli^  to  collect  the  rent«  and 

T 


there  was  a  further  allegation  to  the 
effect  that  the  attorney  had  written  to 
Mr.  Heatlie  withdrawing  the  power  and 
Mr.  Heatlie  replied  that  he  could 
not       do      so.  The         respondent, 

it  appeared,  was  keeping  out  of  the  way 
in  order  that  the  rule  could  not  be  served 
on  him.  The  re8ix)ndent  had  collected 
rents  from  the  tenants,  but  none  of  them 
knew  his  address.  Under  the  circum- 
stances the  question  was  whether  his 
lordship  would  order  substituted  service, 
or  whether  the  service  on.  Mr.  Low 
would  be  considered  sufficient,  seeing 
that  he  was  acting  for  the  respondent  in 
the  matter. 

De  Villiers,  C.J. :  It  would  appear 
that  the  respondent  is  keeping  out  of 
the  way,  and  the  order  will  be  made, 
but  the  right  will  be  reserved  to  the 
respondent  to  apply  for  a  discharge  of 
tho  order.  He  is  sure  to  become  aware 
of  this  order  being  nMide,  and  then,  if 
h>  can  show  good  cause  he  can  apply 
for  the  discharge  of  the  order.  For  tho 
present  the  Court  will  grant  the  order 
a«  prayed,  with  liberty  to  the  respond- 
ent on  good  cause  being  shown,  to  ap- 
ply for  the  discharge  of  the  order. 


Ej;  2*^f^^  MUIRHEAD. 

Mr.  P.  S.  T.  Jones  nooved  on  behalf 
of  the  petitioner,  as  trustee  in  the  in- 
<K>lvent  estate  of  William  Whittaker,  for 
an  order  requesting  the  Courts  in 
Rhodesia  to  aid  and  be  auxiliary  to  this 
Court  for  the  purpose  of  recognising  an 
order  of  this  Court  for  the  sequestration 
of  the  said  insolvent  estate.  The  pe- 
titioner, it  appeared,  had  sold  a  certain 
farm  belonging  to  the  estate  situate  in 
the  district  of  Gwelo,  but  he  had  now 
discovered  that  he  could  not  give  trans- 
fer thereof  owjng  to  the  fact  that  the 
assets  in  the  estate  in  Rhodesia  had  not 
been  vested  in  petitioner  as  sole  trustee. 

De  Villiers,  C.J.,  asked  counsel  under 
what  Act  the  application  was  brought  ? 


268 


"CAPE  TIMES"   LAW  REPORTS. 


Mr.  Jonee  replied  th»t  the  applioa- 
tion  wu  made  under  46  and  47  Victoria 
(cap.  52).  Aid  such  as  was  now  sought 
was  granted  in  the  case  of  HantU  v. 
Mnckie  and  Co  (14.  O.T.R.,  499). 

De  Villiera,  C.J.,  obseryod  that  118th 
section  seemed  to  be  wide  enough  to 
cover  the  application  and  an  order 
would  be   granted  as  prayed. 


SUPREME.  COURT 


[Before  the  Chief  Jiintice  (the  Ri^ht 
Hon.  8ir  J.  H.  DK  Vilmkrs,  P.C  , 
KC.M.O.,  LL.D.),  and  the  Hon.  Mr. 
Justice  Maasdobp.] 


(       1005. 
(  Apr.  5th. 


MOTIONS. 

COBTSSE    AND    WEB8TEB    V 
BOND  AND  TUCKEB. 

Mr.  Gardiner  moved  as  a  matter  of 
urgency  for  an  order  directing  the  re- 
spondents F.  R.  Bond  and  W.  J.  Tucker, 
to  deliver  to  applicants  possession  of 
certain  premises  known  as  24.  Dorp- 
feireet.  Cape  Town.  The  affidavit  of 
one  of  the  applicants  (Mr.  Cortese) 
stated  that  they  entered  into  an  agree- 
ment of  purchase  and  sale  with  the 
respondents  whereby  the  applicants  dis- 
posed of  certain  engineering  business 
with  mechanical  appliances,  in  Cape 
Town,  to  respondents.  The  agreement 
provided  inter  alia  that  the  dominium 
in  the  property  should  not  pass  to  the 
respondents  until  the  latter  had  paid 
the  last  of  the  four  instalments  of  th;^ 
purchase  price.  The  respondents  had  fail- 
ed to  meet  the  second  instalment  of  £250. 
It  now  appeared  that  there  were  no 
assets  in  the  estate  of  'ho  respondents. 
Applicants  wished  to  got  back  the  pre- 
mises, of  which  they  wjio  lessees,  and 
carry  on  the  business.  There  was  an 
intention,  it  seemed,  to  surrender  the 
estate  of  the  respondents. 

Mr.  Gardiner  (for  the  applicant) :  We 
wish  to  get  back  to  these  premises  and 
carry  on  our  business,  subject  to  any 
rights  of  the  creditors.  Here  the  pre- 
mises were  sold  under  a  suspensive  con- 
dition. Such  a  condition  is  good  in  law 
— see  Quirk*8  Trustee*  v.  Assiffnees  of 
Liddle  (3  Juta  322). 

[De  Villiers,  C.J. :  In  that  case  the 
word  "sold"  was  used;  your  contract 
is  biniply  that  dominium  shall  not  pass 
until  the  purchase  price  shall  have  been 
paid.] 

I  submit  th<at  the  two  coses   are  very 

similar. 


[De  Villiers,  C.J. :  Do  you  claim  for^ 
feiture?] 

Wo  do  not  at  present;  but  we  may 
tJo  so  whoii  the  trustee  shall  have  been 
elected.  Wo  are  fully  prepared  to  un- 
dertake not  to  dispo*^  of  the  pla.ii. 
S^'O  also  Hnrmvr  v.  liylands  (4  Juta 
225). 

De  Villiers,  C.J. :  As  between  the 
applicants  and  the  respondents  the  ap- 
plicants would  seem  to  be  entitled  to 
an  order  such  as  is  prayed  for,  but  any 
such  order  should  not  prejudice  the 
creditors  of  the  respondents.  The  credi- 
tors are  not  before  the  Court  and  we 
do  not  know  what  tliey  might  urge 
against  the  permanent  posserision  on  the 
part  of  tho  applicants  of  the  premiso.s. 
The  Court  will,  therefore,  grant  me 
order  as  prayed,  without  prt^judice  m 
the  rights  of  the  res}X)ndents'  creditors, 
the  applicants  undertaking  not  to  re- 
move any  of  the  machinery  or  mechani- 
cal appliances  on  the  preniist»s,  pending* 
ii  further  order  of  the  Court. 

Costs  against  the  respondents. 

[Applicant's  Attorney  :  G.  Trollip  ; 
Respondents'  Attorney:  W.  G.  Coul- 
ton.J 


MCMULLEN   V.  TBUTEB. 

Mr.  p.  S.  T.  Jones  moved  upon  notice 
calling  upon  the  respondent,  Truter,  to 
show  cause  why  a  writ  of  arrest 
against  the  applicant  should  not  be  sus- 
p<*nded  upon  payment  of  £3  per  month 
and  why  respondent  should  not  be 
ordered  to  pay  the  costs. 

Mr.  Lewis  was  for  tho  respondent. 

An  affidavit  by  the  a.ppiicant,  D. 
John  McMullen,  stated  that  in  January. 
1904.  a  civil  warrant  of  arrest  had  been 
issued  against  him,  to  be  suspended  on 
payment  of  £3  a  month  and  £53  on  the 
l.<tt  April.  He  had  paid  tlie  inatalmeints 
of  £3  a  month  but  nis  financial  position 
would  not  enable   him  to  carry  out  his 

rroinise  to  pay  £53  on  the  1st  of  April, 
le  found  that,  owing  to  the  general 
stagnation  of  trade,  he  had  great  diffi- 
culty in  obtaining  his  fees.  He  also 
had  other  creditors  against  his  estate. 
His  income  from  his  practice  showed  a 
considerable  falling  off  last  month  as 
compared  with   twelve  months  ago. 

Applicant  was  called.  In  answer  to 
the  Court  he  said  that  from  the  be- 
ginning of  October  next  he  thought  he 
would  be  able  to  pay  higher  rnatalments, 
he  would  not  say  whether  it  would  bo 
£53.  He  thought  he  would  be  able  to 
promise,  with  confidence,  to  pay  £13  a 
month  from  the  1st  October. 

Cros.s-examined :  He  was  unable  to 
make  that  offer  date  from  the  present 
month.  There  were  three  other  de- 
mands against  him.  His  practice^  was 
at  the  top  of  Hanover-street,  adjoining 
the  Walmer  Estate.  W^ood-tocJc.  He 
had  paid   £900   oi^t  of   the    £1,400  th^ 


<f 


CAPE  TIMES^"  LAW  REPORTS. 


269 


b»  had  owed,   so    th&t  he  ivtM  still   in- 
debted  in  the  sum  of  £500. 

The  decree  was  further  suspended, 
peoding  the  payment  of  £3  per  nK>nth 
until  the  lat  October,  from  which  date 
an  additional  Rum  of  £10  to  he  paid 
each  month,  until  the  capital  and  coats, 
including  costs  of  this  application,  shall 
hare  \»en  paid. 


REX  V.  JAMSKX. 


}        IS 
I  Apr 

Medical  and  Pharmacy  Acts — 
Chemists*  and  druggists* 
assistant  practising  as  chemist 
and  druggist. 

The  appellant,  who  was  not 
duly  licenaed  as  a  chemist  and 
druggUiy  prepared  medicine^ 
ai  it  iftit  his  habit  of  doing, 
acrording  to  the  prescription 
of  a  medical  practitioner^ 
during  the  temporary  absence 
of  hit  employer  S.^  tcho  was 
duly  licensed  and  teas  the 
(ntHfrofthe  chemists*  shop  in 
ichich  the  appellant  teas  em- 
plof/ed. 

Held,  that  the  appellant  was 
9^lty  of  a  contravention  of 
the  3$th  sedion  of  Act  34  of 
1891. 


1905. 
4th. 


This  was  an    appeal   from  the    Court 
^  the   Resident    Magristrate    of    Cape 
V'vn,  the  appellant  having  heen   con- 
^j^  of  a  contravention  of  section  35 
<»  Act  34  of  1891.     The  charge  against 
the  appellant    was    that    on    the    11th 
N«Teinber,  1904,  he  did  wrongfully  and 
unlawfully,  without   the  licence   in   that 
hehalf  and   contrary    to    the    provisions 
of  section  35,   Act  34,  1891,   practise  as 
a  chemiat   and   druggist,    ana   did    dis- 
pense,  sell,    and    deliver  to    one    John 
James  Kelly,  a  detective   in   the   ufhan 
police,    a    certain   bottle     of     medicine 
which  had  been  prescribed   b^  a  medi- 
cal practitioner.       Mr.    Schreiner,   K.C. 
(with  him  Mr.   Howell   Joneii)    was  for 
tho  Crown. 

Mr.  Schreiner  said  that  the  ca/te  was 
one  of  f^reat  importance  to  the  medical 
profession,  because  it  raised  the  question 
of  whether  an  assistant  of  a  duly 
licensed  chemist  may  or  may  not  dis- 
peoBe  medicine,  except  under  the  actual 
«Ts  of  the  chemist  standing  at  his  aide, 
the  assistant  not  being  himself  regis 
tered.  Our  law  differs  materially  from 
the  English  law  of  1868,  section  15,  un- 
^  which  a  chemist's  assistant  must  be 
himself  registered.  It  is  not  so  with 
^'f  and  the  question  now  raised  is 
whether  an  nniicensed  assistaiit  may  or 


may  not  dispense  medicines  save  under 
the  eye  of  a  licensed  principal.  These 
proceedings  are  taken  under  Act  34  of 
1691,  bection  35.  With  this  Act  must 
be  read  sections  3  and  8  of  Act  7  of 
1899.  Sections  50  and  51  differ  very 
much  in  their  te^ois  from  those  of  the 
English  Act.  They  allow  an  assistant  to 
sell  poisons,  under  certain  restrictions. 
Siirply,  if  he  may  sell  poisons,  be  may  like- 
wise soil  any  othe  drugs.  I  quite  admit 
that  the  principal  is  responsible,  should 
the  assistant,  owing  to  the  negligence 
of  his  employer,  be  guilty  of  any  mis- 
feasance. Had  the  employer  to  stand 
at  the  elbow  of  his  employee  during 
tho  whole  time  that  the  latter  was  en- 
gaged in  making  up  a  prescription ;  no 
doubt  the  employer  would  bo  directly 
liable.  Should  this  conviction  be  up- 
held, every  chemist  mu.^t  close  his  shop 
so  often  as  he  leaves  it,  if  only  for  the 
space  of  five  minutes.  The  English  law, 
though  more  stringent  than  our  own, 
does  not  go  quite  as  far  aa  this — 
Phnrjnnrutirnl  Society  v.  Wiehlen  (62 
L.T.,  727)  in  which,  see  judgment  of 
Hawkins.  L.J. 

[De  Villiers,  C.J. :  Does  not  the  Act 
of  1891  make  a  distinction  between  sell- 
ing poisons  and  practising  as  a  chemist? 
The  appellant  is  not  charged  with  sell- 
ing ^isons,  but  with  practising  as  a 
chemist.] 

I  contend  that  he  was  not  practising. 

[De  Villiers,  C.J. :  What  is  the  mean- 
ing of  **  actual  personal  supervision  ?  " 
Whab  do  you  mean  by  "  actual  "  7] 

True  and  bona  fide  supervision.  Sec- 
tion 45  places  re-^trictions  on  the  sale 
of  poisons. 

[De  Villiers,  C.J.  :  Many  hardware 
merchants  sell   poisons.] 

Only  those  named  in  the  Act. 

[De  Villiers,  C.J. :  Arsenic  is  the  very 
first  named  in  section  46.] 

A  general  mercliant  may  not  sell  that 
without  a  certificate  from  the  Resident 
Magistrate. 

[De  Villiers,  CJ.  :  How  does  that 
affect  you?] 

I  use  that  fact  merely  as  an  a  fortiori 
argument. 

[De  Villiers,  C.J. :  I  do  not  see  how 
you  can  get  over  the  word  **  actual " 
in  the  Act.  If  a  chemist  may  be  absent 
from  his  business  for  an  hour,  why  may 
ho   not  be  absent  for  twenty  years?] 

The  analogy  of  the  ca.se  ot  articled 
clerks  would  go  to  show  that  two  such 
ra.se  would  differ  very  widely.  The 
terms  of  the  Poisons*  Act  show  that  an 
unqualified  assistant  may,  under  cer- 
tain conditions,  without  the  actual  pre- 
sence of  the  chemist  or  druggist,  dis- 
pense poisons  and  a  fortiori  he  need 
not  be  actually  present  when  drugs  of 
a  non-nozious  character  are  compound- 
ed Bona  fde  and  personal  supervision 
does  not  necessarily  mean  actual  pre- 
sence. 

[Maasdorp,  J. :  The  English  case  you 
have  cited  s))ows  that  **  personal  super- 


?70 


CAPE  TIMES"   LAW  REPORTS. 


vision "   means    under  the  very  eye  of 
the  licensed  chemist.] 

In  that  case  the  chemist  would  sell. 
The  Cape  Act  does  not  go  so  far  as  the 
English  Act.  See  also  section  11  of 
Act  7  of  1899.  A  dentist's  a^sistan<t  is 
not  on  the  same  footing  with  a  cliemist's 
assistant. 

[De  Villiers,  C.J. :  A  chemist's  assist- 
ant may  sell  many  things  without  prac- 
tising as  a  chemist,  e.g.,  ho  may  sell 
milk  and  soda.] 

A  man  does  not  practise  simply  be- 
cause he  makes  up  a  prescription  in  his 
employer's  absence. 

[De  Villiers,  C.J. :  How  long  may  the 
employer  be  absent?) 

The  Court  must  judge  each  case  on 
its  own  merits. 

Mr.  H.  Jones  (for  the  Crown)  was  not 
called  upon. 

Without  calling  upon  Mr.  Jones, 

De  Villiers,  C.J. :  There  is  much  to 
be  said  against  the  policy  of  certain  por- 
tions of  the  Medical  and  Pharmacy  Act, 
but  the  Court  has  to  deal  with  the  ques- 
tion whether  there  has  been  a  contra- 
vention of  a  certain  section  of  the  Act. 
I  quite  agree  with  Mr.  Schrciner  that 
the  appellant  could  not  be  convicted 
of  a  contravention  of  the  35th  section 
of  Act  34  of  1891,  unless  he  had  practis- 
ed as  a  chemist  and  drug^st.  His 
general  practice  was  to  dispense  and 
prepare  medicines,  according  to  the  pre- 
scriptions of  medical  practitioners,  dur- 
ing the  temporary  absence  of  his  prin- 
cipal, Mr.  Strange,  who  was  a  duly 
licensed  chemist  and  druggist.  On  the 
occasi<Ki  in  question  he  did  the  same 
thing,  and,  in  my  opinion,  he  practised 
as  a  chemist  and  druggist  in  the  same 
way  as  a  dentist's  assistant,  who  drew 
or  filled  a  tooth,  would  be  practising  as 
a  dentist.  The  Magistrate  was,  there- 
fore, bound  to  convict  the  appellant, 
unless  such  practising  took  place  "  un- 
der the  actual  personal  supervision  and 
control  of  some  duly  licensed  chemist  and 
druggist."  Can  the  Court  possibly  hold 
that  the  appellant  was  under  the  actual 
personal  supervision  and  control  of  his 
principal  it  the  principal  were  eating 
hi«  lunch  at  the  time  in  his  own  house 
away  from  the  shop?  It  may  be  hard 
upon  the  employer,  and  upon  his  assist- 
ants, and  even  upon  the  public,  that  the 
licensed  chemist  and  druggist  should 
have  to  personally  supervise  the  com- 
pounding of  the  medicine,  but  the 
Legislature  has  so  willed  it,  and,  until 
the  Act  is  amended,  it  must  be  carried 
out  by'  all  concerned.  Much  has  been 
said  about  the  8th  section  of  the  sub- 
secj^uent  Act,  the  Act  of  1899,  where 
it  is  sai3  that  everv  shop  shall  be  con- 
ducted and  under  the  horia  fide  and  per- 
sonal^ supervision  of  some  registered 
chemist  and  druggist.  But  I  cannot  see 
that  this  section  can  bQ  held  to  repeal 
the  35th  section  ol  the  previous  Aot 
Then  the  Court  has  been  referred  to  the 
$Oth  sectiQn  of  the  Act  of  1891,     which 


refers  to  the  sale  of  poisons.  I  do  not 
understand  that  in  this  particular  case 
there  was  a  sale  of  poison,  and  the  de- 
fence has  not  been  raised  tliat  under  the 
50th  section  the  appellant  was  entitled 
to  sell  poisons.  I  do  not  wish  it  to  be 
understood,  that  the  C'oupt  thinks  it  is 
against  public  policy  that  this  prohibi- 
tion should  oxist,  bccau^«  we  know  that 
deiitfl,  have  happened  through  prescrip- 
dents.  have  happende  through  prescrip- 
tions l>ring  improperly  made  up.  I  am 
of  opinion  that  the  ap[)eal  Nhould  be  dis- 
missed. 
Maasdorp,  J.,  concurred. 

fAppellanrs    Attorneys  :      Friedlander 
and  Du  Toit.] 


SUPREME  COURT 


[Before  the  Chief  J:  stice  (the  Ri^fht 
Hon.  Sir  J.  H.  de  Villiers,  P.O, 
K.C.M.G.,  LL.D.),  and  the  Hon  Mr. 
Justice  Maasdoup.] 


REVIEW. 


NTIKINCA  V.  NOCANI. 


f         19(r». 
i  Apr.  r.th. 

Review — Gross  irregularity. 

In  an  apjtiiration  hy  the  plain- 
tiff for  review  of  a  ciril 
judgment  of  a  TraNskeiaft 
Magistrate  on  the  fp'ointd  of 
(jroan  irregularity^  it  appearetl 
that  the  record  of  a  previoUH 
judytneut  between  the  partien 
had  been  sent  to  the  Magistrate 
by  tJie  Chief  Magistrate  and 
had  been  admitted  as  evidence^ 
and  that  the  oniy  other  evidence 
given  in  the  case  fully  sup- 
ported the  plea  nf  the  defen- 
dant. 

Held,  that  even  if  there  tras 
some  informality  in  the  manner 
in  which  the  record  had  been 
put  in,  the  plaintiff,  who  had 
not  cross-exauiined  the  defen- 
dant's witnesses  and  had  pro- 
duced vo  evidence  in  support 
of  h  is  own  r^/sr ,  teas  not  entitled 
to  have  the  proceedings  set 
aside. 


This  was  an  application  calling  upon 
the  Assistant  Resident     Magistrate     o| 


"CAPE  TIMES*'  LAW  REPORTS. 


271 


Engcobo  to  show  caiiac  why  a  judgment 
which  he  had  given   in  the  case  of  yU- 
kmra  V.  Ngcani  should  not  be  set  aside. 
The  applicant  in  the  Court  below  had 
brought  an  action  to  recover  £60,    value 
of  certain  crops    of    uii^alies.       The  de- 
fendant   pleaded   rea  judicata,   and  fur- 
ther stated  that  the     land  on  which  the 
rcrn  was   growing    had    been    duly   and 
legally  alloted  to   him,   which  allotment 
wa«  confirmed  by  the  Chief  Magistrate ; 
that  d(.lendant  ploughed  portion  of    the 
laid  ground  and  he  grew  crops  thereon ; 
that  the  plaintiff  or  his  agents  wrong- 
fully ploughed  up  the  said  ground,  and, 
although  warned  not  to  do  so,  he  went 
on  tho  said  land   and    planted   mealies. 
The  case  was  dismissed,   and  defendant 
allowed  his  witnesses'   expenses. 

The  Magistrate,  in  his  reasons  for 
judgment,  said  that  he  took  the  evidence 
of  the  defendant  upon  the  special  plea 
thai  the  matter  had  already  been  settled, 
and  found  that  the  pleas  were  substan- 
tiated in  every  particular.  The  defen- 
dant had  had  the  land  duly  alloted  to 
biffl  under  proclamation.  This  really 
was  a  land  claim,  the  settlement  of 
which  was  provided  for  by  Proclamation 
125  of  1903. 

Mr.  P.  S.  T.  Jones  was  for  tho  ap- 
pellant; no  appearance  was  entered  for 
the  respondent. 

Mr.  Jones  submitted  that  the  case 
should  be  sent  back  to  the  Magistrate  to 
enable  the  plaintiff  to  lead  his  evidence, 
not  on  the  special  plea,  but  on  the  case 
generally. 

Do  Vdiiere,  C.J. :   This  is  an  applica- 
tion for  a  review  of  the  proceedings  of 
the  Court   below, "  on    the    grounds    of 
gross  irregularitjr.        The   alleged   gross 
irregularity   consists    in    the    Magistrate 
li«Tiiig  admitted  a  letter  from  the  Chief 
Magiitrate  enclosing   a  record  of  a  i)re- 
vious  decision  betw€»on  the  same  parties. 
If  there  had    not    b<vn   evidence   quite 
independently   of    this    informality,    this 
Court  might    have    interfered.         I    do 
'K't    wish    to    ^uggost       in     this     case 
that    the    rtH*ord'  which     wa^s     put     in 
*M   informal  :     thcro     is    no    ovidonc<^ 
"P«n   it  ;    we    d«>    n<it    know     tho    na- 
ture of  that  record,  but,    to  all   appcar- 
*nces,  it  was  a  correct  copy  of  the  deoi- 
"Jon  of  the  Land  Court.       But  I   think 
»e  may  leave  that  out  of  consideration, 
•nd  consider   whether    there   was    suffi- 
fi^fit  evidence  to  justify  the  Magistrate 
|n  finding  for  the  defendant.     The   de- 
fpndant  himself  gave  evidence  in      this 
?>»,  and  no  questions  were  put  to  him 
jncross^xamination.     Ho  states  that  the 
land  in   respect  of  which   the      plaintiff 
^'aims  damages  had  first  been  ploughed 
"y  nim  (the  defendant),  and  after  he  had 
"^wed.  the  plaintiff   came      there      and 
ploughed  the  land,  and  now  he     claims 
damages  becau.se    the   defendant    rea|H*d 
the  crops.      Surely    the    defendant    was 
fntiled  to  reap   the    crops.        Not  only 
^  the    plaintiff's     agent    or    attorney 
imH  cross-examined    the    defendant,    but 


heproduced  no  evidence  whatever  to 
rebut  the  evidence  of  the  defendant. 
Consequently,-  the  veddence  was  all  one 
way,  and  the  Magistrate  dismissed  the 
sunimons.  Apraurt  aHogether  from  the 
record  w^ich  has  been  referred  to,  there 
was  abundant  evideijce  to  justify  the 
Magistrate  in  giving  judgment.  The  ap- 
plication for  review,  must,  therefore,  be 
I     dismissed. 

Maasdorp,  J.,  concurred. 

[Appellant's    Attorney's :      Fairbridge, 
Arderne  and  Lawton.] 


REX  V.  BOUWBBti. 


1905. 


{  Apr.  6th. 

Town  Council — Regulations. 

The  Town  Council  of  Cum 
Town  han  no  poire r  to  make 
regulationn  fixing  the  charge* 
to  be  made  by  driver  a  of  cabs 
outside  the  limits  of  the  Mnni- 
cipidity^  or  compelling  ike 
drivers  to  take  fares  outside 
such  limits. 


This  waj  an  appeal  from  a  judgment 
of  the  Assistant  Resident  Magistrate  of 
Cape  Town,  who  had  convicted  the  ap- 
pellant, Sidney  Bo  wen,  a  cab-dri\er,  of 
contravening  regulation  350  of  the  Cor< 
poration  of  the  City  of  Cape  Town, 
framed  under  the  provisions  of  Act  26 
of  1893,  and  had  sentenced  him  to  pay 
a  fine  of  £2. 

The  appellant  in  the  Court  below 
was  charged  with  contravening  aection 
549  of  the  Cape  Town  municipal  re- 
gulations in  that  he,  being  a  regis- 
tered driver  of  cab  No.  271,  plying 
for  hire  on  the  appointed  stand  in  Ad- 
derley-street.  Cape  Town,  did,  on  or 
about  the  2Znd  December.  1904,  wrong- 
fully and  unlawfully  refuse  to  accept 
as  a  fare  one  F.  G.  Thompson,  of  Cape 
Town,  aforesaid,  or,  otherwise,  the  said 
Sidnev  Pow<  rs  did  contravene  section 
350  <A  the  aforesaid  regulations  in  that 
upon  the  date  and  at  the  place  afore- 
said he,  being  a  driver  of  the  said  re- 
gistered cab,  did  wrongfully  and  unlaw- 
fully refu?e  or  neglect  to  drive  the  said 
cab  from  Adderley-street  to  Irviii^ton- 
road,  Sea  Point,  such  place  being  within 
the  schedule  of  fares  laid  down  Iw  the 
Corporation  of  the  city  of  Cape  Town, 
when  Te<iuested  to  do  so  by  F.  G. 
Thompson.  The  court  below  found  the 
appellant  guilty  of  the  alternative  charge 
and  sentenced  him  to  pay  a  fine  of  £2. 

From  tho  record  it  appeared  that  Mr. 
Thompson  went  to  the  respondent  on 
one  of  the  cab-ranks  in  Adaerley -street 
and  a.skod  him  to  drive  him  to  Sea  Point 
by  the  hnur.  The  defendant  refused  to 
go,  and  said  that  he  could  not  be  com 
pelled  to  go  outside  the  municipal  re- 
gula^tions    boundary. 


2^2 


"CAPE  TlMES"   LAW  ttEPORTS. 


Mr.  LViiiglon  (fur  the  aupcUaut)  &4iid 
that  the  contention  of  tne  appellant 
was  that  the  municipality  had  only 
jurisdiction  within  itt>  own  limits,  that 
It  had  no  authority  to  draw  up  a  sche- 
dule of  fares  for  places  outside  its  own 
limits,  and  that  h  had  no  avthority  in 
issuing  licences  to  drivers  of  hackney 
carriages  to  impose  conditions  on  those 
licences  which,  if  embodied  in  a  regu- 
lation, would  be  uitra  rirct. 

In  this  case  it  was  clear  that  the  cab 
man  was  acting  on  principle,  and  tha' 
there  was  nothii^  contumacious  in  his 
conduct.  Mr.  Upmgton  was  proceeding 
to  address  the  court  further,  when  theii 
lordships  interposed,  and 

De  Villiors,  C.  J. :  The  Town  Council 
of  Cape  Town  has  very  large  powers 
under  the  Act,  but  certainly  has  not  the 
power  to  regulate  the  fares  of  cabs  ply- 
ing outside  the  Municipality.  It  can 
only  act  within  the  limits  of  its  ,own 
jurisdiction,  and  fix  the  rates  within 
tho^Q  limits,  but  it  has  no  power  to  fix 
rates  beyond.  If  it  had  the  power, 
where  is  rt  to  stop?  The  Town  Council 
may  then  fix  the  fares  to  Paarl  or  Stel- 
lenbosch  or  Worcest^er.  Is  a  cabman 
then  to  be  compelled  to  take  his  fare 
those  distances  because  the  Town  Coun- 
cil has  chosen  to  make  a  regulation  of 
this  kind?  It  is  clear  to  me  that  in 
this  case  the  regulation  is  beyond  the 
powers  of  the  Council,  and  that  the  cab- 
man was  justified  in  refusing  a  fare 
who  wished  to  take  him  beyond  the 
limits  of  the  Council's  jurisdiction. 
Where  he  is  asked  to  take  a  fare  be- 
yond those  limits  a  special  arrangement 
must  be  made  with  the  cabman.  I  am 
of  opinion,  therefore,  that  the  appeal 
should  be  allowed,  and  the  conviction 
quashed. 

Mr.  Upington  said  that  the  notice  of 
appeal  also  asked  for  costs  against  the 
Corporation. 

I>e  Villiers,  C.J. :  It  is  not  usual  to 
allow  costs  in  criminal  cases,  but  cer- 
tainly in  a  case  of  this  kind,  where  the 
prosecution  is  not  at  the  suit  of  the 
Crown  at  all,  but  at  the  suit  of  a  corpora- 
tion, the  Court  has  departed  from  the 
practice,  and  has  allowed  the  costs.  In 
the  present  case,  the  Town  Council  was 
so  clearly  wrong  that  I  think  the  Court 
would  be  justified  in  ordering  the  costs 
of  the  appeal  to  be  paid  by  the  Town 
Council. 

Maasdorp.  J.,  concurred. 
[Appellant's    Attorney:     Hirschberg.] 


BEX  V.  J008. 


{ 


1005. 
Apr.  <)th. 
„     7th. 


Slaughter  hou8e — Local  authority 
— Ultra  rireti. 

This  was  an  appeal  from  a  judgment 
of  the  Assistant  Resident  Magistrate  of 


the  Cape,  who  had  convicted  the  appel- 
lant of  a  contravention  of  section  2, 
Government  Proclamation  No.  278,  of 
December  22,  1902.  Mr.  Alexander 
was  for  the  appellant,  a  butcher  in  Som- 
erset-road, Cape  Town ;  Mr.  Howel  Jones 
was  for  the  respondent. 

The  appellant  had  been  charged  in  the 
Court  below  with  having,  on  February 
31,  1905,  wrongfully  and  unlawfully  killed 
or  caused  to  be  killed  a  certain  animaL 
the  flesh  of  which  he  intended  to  gell, 
upon  premises  which  were  not  a  place 
registered  as  a  slaughter-house,  and 
situate  at  Maitland.  The  premises,  it 
appeared,  were  outside  the  Municipal 
limits,  and  situate  in  the  district  of  the 
Cape  Divisional  Council.  Appellant  had 
held  a  licence  for  the  premises,  current 
for  the  early  part  of  last  year,  un-til  De- 
cember 31,  1904.  The  defendant  was 
found  guilty  of  tlie  charge,  and  fined 
Ss. 

Counsel  having  been  heard  an  argu- 
ment. 

Cur.  Adr.    Vult. 

Postea  (April  7th). 

De  Villiers,  C.J. :  Tlie  appellant  was 
charged  before  the  Magistrate  at 
Uitvlugt  with  having  killed  or  caus- 
ed to  be  killed  certain  animals, 
of  which  the  flesh  was  intended  for 
sale,  on  his  premises,  the  same  not 
being  a  place  duly  authorised  a^^  a 
slaughter-liouse  by  the  local  authorities. 
He  was  found  guilty,  and  sentenced  to 
a  fine  of  5^.  Against  that  conviction  he 
now  appeais.  The  main  ground  upon 
which  the  appeal  rests  is  that  the  regu- 
lations framed  by  the  Governor,  and 
upon  which  the  Divisional  Council  rely, 
are  ultra  vireti,  and  that  the  Governor 
had  no  power  in  regard  to  the  area 
within  which  the  appellant's  slaughter- 
house is  situated  to  authorise 
any  Divisional  Council  or  any 
local  authority  to  fix  the  place 
where  slaughter-houses  arc  to  l>e 
:<ituatpd  or  to  prevent  them  from  being 
placed  where  the  appellant  chose  lo 
place  them.  The  Governor  has  the 
power  under  the  other  section,  "  on  the 
recommendation  of  the  Medical  Officer 
of  Health  or  the  representative  of  any 
ui^an  authority  direcstly  concerned,  to 
make  regulations  for  the  following  pur- 
pose^."  The  first  is  for  regulating 
slaughter-house:?.  I  need  not  read  the 
rest,  because  the  words  '*  for  regulating 
slaughter-houses "  are,  in  my  opinionti 
quite  sufficient.  In  order  properly  to 
regulate  slaughter-houses,  it  appears  to 
me  that  the  Governor  should  have  also 
the  power  to  issue  regulations  by  which 
the  local  authority,  whichever  it  may 
be — I  shall  consider  directly  which  the 
local  authority  is — the  Governor  should 
have  the  power  to  authorise  a  local 
authority  to  approve  of  the  places  where 
these  slaughter-nouses  are  to  be  situated. 
There  would  be  very  little  benefit  in 
fixing  the  mode  in  which  the  ^slaughter- 
bousA  should   bo  carried  on,  because  a 


"CAt>E  TlAiES"  LAW  HEPOltTS. 


276 


boUsher  might  choose   to     go    into     a 
densely-populated   p&rt^    taking   a   small 
place      situate  between  houses  to  erect 
s  slaughter-house  there,  and  that  would 
certainly    be    moart    deleterious     to     the 
health  of     those     concerned.       In     my 
opinion      the  second  regulation  was  en- 
tirely within  the  powers  of  the  Governor. 
The  rt^gulation  is  as  follows :    "  No  per- 
SOD  shall  kill,  or  cause  to  be  killed,  any 
cattle,  sheep,  goats  or  pigs,  of  which  the 
flesh  is  intended  for  sale,   in   any  place 
other  than  a  slaughter-house  duly  autho- 
rised and  approTed  for  the  purpose  by 
the  regulations  of    any    local    authority 
directly   concerned,   etc. ;    provided   that 
no  slaughter-house    shall    be    authorised 
or  approved    by   the   local    authority  in 
any  situation,   where  any  drain,  or  filth 
from  »uch  slaughter-house  may  he  liable 
to  pollute  any  source  of  water  supply." 
This  proviso  shows  how  important  it  is 
that  the  regulations  should  also  embrace 
the   question    as    to    where  a  slaughter- 
bouse  i.s  to   be  situated.       Well,   it   ap- 
pears that  the  appellant  has  not  received 
any   authority    from    any    body,     either 
from    the    Maitland    or  the    Woodstock 
Municipality,    or    from    the      Divisional 
Council,    to   erect    a   slaughter-house    at 
the  place  where  he  has  erected  it.     The 
question  now   arisen)  which   is  the   local 
authority    which    should    give    approval 
of  that  slaughter-house?      It  clearly     is 
Dot    the    Maitland    Board,    because    the 
premises    are    not    situated    within    the 
jurisdiction.        It  does  not    appear    that 
there   is  a  Village  Management  Board, 
nor  does    it  appear   that   the   Governor 
has  ever  exercised  the   power   given    to 
him  by  the  13th  section  of  the  Act  of 
1897    to    carve    out     a    portion    to    be 
under     the     jurisdiction     of     the     Divi- 
sional   Council     outside     the    Municipal 
limits,    and   declare    it   as   an  additional 
urt>an  area.      Then  ^the  only  local  autho- 
rity that  remains  is  the  Divisional  Coun- 
cil.     Mr.  Alexander  has  argued  that  by 
the  Act  of  1897  the  208th  section  of  the 
Divisicinal  (Council  Act  of  1889  has  been 
rep^^aled.       Under  that  section  the  Divi- 
sional  Council  was   the  local   authority. 
But    he    has  omitted   to   call    the  atten- 
tion   of     the    Court     to    the     fact    that 
35ih  section  of  the  Act  23    of  1897    giy^fi 
very  much    larger   powers   to   the    Divi- 
sional Council  than  it  had  under  any  of 
the  previous  Acts,   and,   in  my  opinion, 
the  35th  section  of  the  Act  23  of  1897  is 
wide     enough     to     enibrace     Divisional 
Council*.       Reading    that    section    with 
the   second   regulation    of    Proclamation 
No.   270.   I   am   clearly  of  opinion   that 
the  local    authority  directly    concpriieil, 
mentioned  in  the  regulation,  is  the  Divi- 
(iinnal    Council,    and    that    body    alone. 
It  cannot  be  any  other  body,  and  there- 
fore,   in    my  opinion,      the      Divisional 
Council  properly  assumed  the  power  to 
regulate  the  slaughter-houses  within  its 
jurisdiction,  and  to  indicate  places  where 
these  slaughter-houses  should  be  allowed, 
as  pari  of  the  regulating  which  wa£  with- 


in its  juri^iction.      I  am    of    opinion, 
therefore,  that  the  Magistrate  was  right 
in  his  judgment,  and  the  appeal  must  oe 
dismissed. 
Maasdorp,    J.,  concurred. 


SUPREME  COURT 


[Before  the  Chief  Justice  (the  Riflrht 
Hon.  >»ir  J.  H.  DE  YiLLlEBS,  P.O., 
K.C.M.G.,  LL.D.),  and  the  Hon.  Mr. 
Justice  Maabdorp.] 


REX  V.  LE  ORANQE. 


{ 


190». 
Apr.  7th. 

Liquor  Licenning  Acts — Selling  to 
native — ^Permit. 


The  appellmit,  having  been 
charged  in  a  Magistrates 
Omrt  irith  having  on  divers 
days  during  the  month  of 
January^  1905,  sold  liquor  to 
natives,  who  had  no  permit 
from  their  master,  in  contra- 
vention of  a  comlition  in  his 
licence,  it  was  prov:d  that  the 
natives  shewed  permits  from 
their  mistress,  in  whose  service 
they  were  for  the  greater  part 
in  each  iveek,  and  that  home 
permits  were  given  by  an 
adult  daughter  oj  their  mistress, 
but  it  vat  not  clear  that  any 
of  the  permits  was  given  on 
days  on  which  the  natives  were 
not  in  service  or  that  those 
given  by  the  daughter  were 
04.' ted  upon  on  any  of  the  (btys 
mentioned  in  the  sumimms. 

Held,  that  a  conviction  of  a 
contravention  on  each  of  the 
days  specified  in  the  summons 
could  not  be  supported,  and 
that  as  it  would  be  difficult  for 
the  Court  of  Apjyeal,  without 
some  further  evidence,  to 
aactrtain  on  which  particular 
days  there  might  have  been  a 
contravention,  the  conviction 
should  be  set  aside. 


This   was   an    appeal   from   the   judg- 
ment  of   the   Resident     Magistrate     of 


274 


"CAl>E  TIMES"   LA\V  REPdfttg. 


Prince  Albert,  who  had  convicted  the 
appellant,  Jacobus  le  Grange,  of  a  con- 
travention of  sections  1  and  2.  Act  28 
of  1896,  and  sentenced  him  to  a  fine  of 
£1.  The  charge  against  the  accused 
was  that  he  had  sold  certain  bottJea 
of  brandy  on  divers  dates  during  Janu- 
ary. 1905,  to  certain  Hottentot  women 
who  were  then  not  in  possession  of  pro- 
per permits  as  required  by  the  endorse- 
ment on  his  licence  to  retail  wines  and 
spirits.  Dr.  Greer  was  for  the  aippel- 
lant  and  Mr.  Howel  Jones  was  for  the 
Crown. 

Dr.  Greer  submitted  thait  on  the  facts, 
aa  disclosed  before  the  Magistrate,  he 
had  wrongfullv  convicted  the  accused. 
Sections  1  and  2  of  the  Act  gave  no 
Licensing  Court  the  power  to  endorse 
hny  conditions  on  the  licence  short  of 
total  prohibition,  and  it  was  admitted 
that  on  this  licence  there  was  endorsed 
a  condition  that  "  no  liquor  be  sold  to 
natives  as  defined  by  the  Act  except 
they  have  a  note  from  their  master, 
or,  in  the  case  of  unemployed  natives, 
from  the  Magistrate  or  a  J. P."  No 
question  arose  as  to  the  genuineness  of 
the  signatures  on  the  notes  handed  in  I 
by  the  two  women.  The  point  turned  | 
upon  the  question  whether  Ganna  Louw. 
a  washerwoman  employed  on  certain  ! 
days  of  the  week  by  a  Mrs.  Strip,  was, 
properly  speaking,  ni  the  service  of  the 
lady  who  had  signed  the  notes.  He 
submitted  that  there  was  no  evidence 
whatever  of  any  guilty  intention  on  the 
])art  of  the  accused.  The  Magistrate 
also  raised  a  point  as  to  the  signatures 
on  the  permits,  but  he  (counsel)  sub- 
mitted that  Bessie  Strip  signed  the  i^er- 
mits  on  behalf  of  her  mother  and  with 
her  full  consent  and  approval. 

Mr.  Jones  submitted  that  the  strongest 
point  against  the  accused  was  that  with 
regard  to  these  permits  which  were 
given  by  Miss  Strip,  the  accused  con- 
travened the  Act.  There  was  no  evi- 
dence whatever  that  Mrs.  Strip  had  aiiy 
knowledge  whatever  of  the  note.s  given 
to  the  two  women  by  her  daughter. 
The  notes  were  simply  signed  "Strip." 
It  was  the  accuscil's  duty  to  satisfy  him- 
self as  to  the  bomi  fidrs  of  the  notes, 
and  he  had  contravened  the  siH'tion  by 
accepting  notes  which  were  not  duly 
signed  by  the  employer  of  these  natives. 

Dr.  Greer  argued  that  Miss  Strip  was 
the  agent  of  her  mother,  and  that  the 
latter,  in  her  evidence,  had  approved 
of  what  her  daughter  did.  The  condi- 
tions of  the  licence  were  not  so  stringent 
as  to  signature  as  his  friend  would  have 
them  believe,  or  he  might  have  gone 
further  and  contended  that  Mrs.  Strip 
had  no  authority  to  g^ve  permits  at  all, 
because  the  endorsement  only  mention- 
ed "  a  note  from  their  master." 

De     Villiers,     C.J.  :       there     was     a 

(general  charge  against  the  appel- 
ant of  havinff  during  the  month 
of  January,  1905.  contravened  sections  1 
and   2  of  Act  28    of  1898,   in   that    he ,  I 


did  sell  liquor  at  divers  times  to  certain 
two  native  women  in  contravention  of 
the  following  conditions  endorsed  on  tlie 
licence,  i.e.,  **  that  no  liquor  bo  sold  to 
natives  as  defined  by  the  Act,  except 
they  have  a  note  from  their  master,  or  in 
case  of  unemployed  natives,  from  tlie 
Magistrate  or  a  J. P."  It  appears  that 
the  two  women  in  question  were  natives 
and  that  they  were  employed  from  time 
to  time  by  a  Mrs.  Strip.  One  of  them 
was  employed  daily  except  Mondays,  and 
another  was  continually  employed  but 
not  quite  so  regularl5[.  and  from  time  to 
time  permits  were  given  by  Mrs.  Strip 
and  her  daughter  to  these  women.  It 
would  appear  that  on  the  g^reater  num- 
ber of  occasions  on  which  permits  were 
give-n,  these  women  were  in  the  service 
of  Mrs.  Strip,  but  it  would  also  appear 
that  on  some  occasions  they  were  not 
in  her  service.  That  may  be  inferred 
from  the  evidence,  although  that  point 
\ft  not  perfectly  clear.  But  the  Mag- 
istrate has  found  apparently  that  in 
every  case  in  which  there  was  a  sale 
there    was  a  contravention.  Clearly, 

the  Magistrate  was  wrong,  because  on 
the  face  of  it,  when  these  women  were 
in  the  service  of  Mrs.  Strip*  the  sales 
were  perfectly  legitimate.  She  was  the 
mistress,  and  she  or  her  daughter  gave 
the  permits.  Now,  the  difficulty  in  the 
present  case  is  to  separate  tlie  illegal 
cases  from  the  other.  The  Magistrate 
has  found  the  accused  generally  guilty*. 
Now  that  conviction  is  clearly  wrong, 
and  the  point  is  now  whether  tne  Court., 
sitting  on  appeal,  should  endeavour  t<» 
pick  out  from  the  evidence  which  of 
these  cases  should  be  separated  ani| 
which  .should  not.  I  think  great  care 
should  be  exercised  in  criminal  cases  to 
have  it  made  perfectly  clear  as  to  what 
particular  offence  a  person  is  found 
guilty  oF.  In  the  present  case,  it  seems 
t.)  be  clear  that  the  accused  ha^  lieen 
found  guilty  of  offences  where  there  has 
boon  no  offence  at  all.  Considering 
that  the  Magistrate  erred  in  convicting 
the  appellant  on  the  whole  charge,  and 
that  it  is  by  no  means  clear  that  there 
has  been  a  contravention  of  the  Act 
within  the  period  specified  in  the  sum- 
mons, 1  consider  that  the  safer  cours:* 
i.s  to  allow  the  appeal  and  set  a«ido  the 
conviction. 

Maabdorp,   J.,  concurred. 


HEX  v.  CROZIER. 


J       I9(«. 
(  Apr.  7th. 


Public    place  —  Shop  —  Abusive 
wt»rd8. 

The  M»e  of  ahimve  WDnh  by 
a  jin'9011  in  a  shop  totcatrU 
another  ;xw«om,  irho  at  the 
time  in  alnc  in  the  nhop,  doen 
not  constitute  a  contravention 


"GAPE  TIMES'*  lAW  &EPOIIT6. 


tn 


0/  the  10th  Hfction  of  A  rt  27 
of  1882. 


.#  il  T*?,  ??  appeal  from  a  decision 
^uu.^^^'..  "'  Namaqualaiid.  by 
which  the  appellant  was  Hnerf  in  £2  or 
ordered  to  undergo  fourteen  days'  im- 
prisonment, for  uaing  tlireateniusr  and 
•touaiye  language  with  intention,  and 
committing  a  breach  of  the  peace,  to  one 
"ok»   ^''*>'"*'*"»       »     Field-cornet,   at 

i-^*^'  ^j^ir'^-  ^^^^  ^**  f<>r  ti»e  appel- 
lant and  Mr.  Howel  Jones  appea>ed 
lor  the  Crown. 

;„'^u®  ^V^^^«^  comphined  of  was  used 
m  the  store  of  the  Cape  Copper  Co.,  at 

^»    It?-   ,^^«»    t*»«    complainant   came 
into  the  store  the  appellant  said  to  him  : 
Are  you  one  of  the  crowd    of  scoundrels 
who   went    to   the   Cape  Police   on   the 

u    ^*^   '?*'^^-       You     ought     to     be 

ashamed  of  yourself.       You  are  a  d 

rogue.  Counsel  said  the  point  of  the 

appeal  wras  that  the  words  complained 
*:ere  used  in  the  ^tore  and  not  in  a 
public  place  as  required  by  the  10th 
Jfction  of  the  Act  27  of  1882,  which  dis- 
tinctly set  out  that  the  language  must 
be  used  ma  street,  road,  or  public  place, 

«;.l!!5?if  1  ^^^^'^.  1*°"*^-  ^'^unsel  sub- 
mitted that  the  evidence  showed  that  the 
words  were  used  in  the  store,  and,  that 
not  being  a  public  place,  the  accused 
Wijs  entitled  to  an  acquittal.  Counsel 
cited  .Review  cases,  where  it  was  held 
rnat    It    the    language    were  used    in    a 

S&  no  conviction  could  be  sustained. 

Ihe  thief  Justice:  What  evndence  is 
there  that  the  parties  were  outside  the 
store? 

Mr.  H.  Jones:  There  is  no  evidence 
except  the  evidence  that  the  ap- 
pellant was  standing  for  a  time 
on  the  threshold  of  the  door. 
Counsel  then  read  the  Magistrate's  rea- 
sons, which  set  out  that  the  store  was 
open  to  the  public  daily,  and  he  did  not 
regard  it  as  a  private  house. 

De  Villiors,  C.J. :   It  is  clear  from  the 
reasons     read    by    Mr.    Jones    that    the 
Magistrate   regarded  a  shop  as  a  public 
place.     In  one  sense  it  is  public  because 
prwumabiy,   the  shop-keeper  invites   the 
public  to  enter  for  ^e  purpose  of  buy- 
ing   his    wares,     bu£    he    is   at    perfect 
liberty  at  any   time  to    close   the  place 
and  turn  out  hi.s  customers.       The  10th 
section  of  the  Act  makes  it   aii  offence 
to    U5e    any    threatening,     abusive,    or 
insulting      words,     or     behaviour,     with 
intention      to     provoke      a     breach     of 
the      iKjaco      m      any      street,       road, 
public       place.       or       licensed       public 
hous.       A     licensed      public     house      is 
specially    mentioned.        If     the    conten- 
tion 18  correct  that  a  shop  is  a  public 
place,   it  is  clear  that  it  was  not  neoes- 
nary  to  mention  a  licensed   public  house 
?  II      •.!-• '^  ?*y  opinion  a  shop  does  not 
faU  within  the  designation,  and  the  only 


I 


other   question    is    whether     the     words 
were  used  in  such  a  way  as  to  be   ad- 
dressed  to   or   by   a  person   in   a  pubio 
place.       In  the  case  of  Brown,  the  per- 
son   to    whom    the    abusive    words    were 
addressed  waa  in  the  street,   and  it  was 
pro|ierIy  held  that  the  words  were  used 
in  a  public  place,  because  it  was  intend- 
ed  to   reach   the     person     outside.       In 
the  present  case  both  parties  were  inside 
the     shop,     and,     tlierefore,     the    words 
were  not-  used  in  a  street,  road  or  pub- 
jic    place.        I    think    that     the     Court 
IS   bound   to   hold   that   the     Magistrate 
erred    and    the  appeal  must  be  allowed 
and  the  conviction  quashed. 
Maasdorp,  J.,  concurred. 

[Appellant's   Attorneys:    Van  Zyl  and 
iiuissine.) 


BEX  V.  BINDKMAN. 

T  hef  t  — Forgery. 

Thp  appfllanf^  being  an  a^enf 
employed  by  R,  to  cillect  n 
debt  for  him^  rcce'tocd  ixujmeut 
of  the  debt  by  m-aus  of  a 
croHtied  vheqtir  tnadv  in  fnrouv 
of  R.  The  appfllnitt  being 
about  to  be  nrrfnted  tn  a  denee 
of  ricil  iwprisimnient,  vnote 
the  name  of  R,  on  the  bcu^k  of 
thf  cheque  and  gave  it  to  K., 
uho  received  payment  of  the 
amount.  K.  devoted  a  fetr 
Mhiltingn  totntrda  payment  ff 
foml  for  the  appellant  ami 
kept  the  balance  for  him. 

Held,  that  the  appellant  had 
been  properly  convicted  of  theft 
of  the  cheque  and  forge^-y  of 
R.'s  name. 


This  was  an  appeal  from  a  conviction 
by  the  A.R.M.  of  Cape  Town,  in  a  case 
in  which  the  accused  was  charged  with 
theft,  forgery  and  uttering  a  forged  in- 
strument. Mr.  Burton  was  for  the  ap- 
pellant, aiMl  Mr.  Howel  Jones  apijeared 
for  the  Crown. 

Mr.  Burton  said  the  alleged  theft 
wa«  in  respect  of  a  cheque  which  was 
made  payable  to  Radus,  and  it  was  al- 
leged  that  the  appellant,  to  whom  it  was 
sent  Appropriated  it,  forged  the  name 
of  Radus  on  the  back  and  caused  k  to 
medium  of  one  Kinsley.  Counsel  hav- 
ing read  the  record  in  the  Court  below, 
said  that  whatever  was  done  by  the  ap- 
pellant was  done  in  a  j.tate  of  great  ex- 
citement. He  had  just  been  arrested, 
and  among  the  letters  handed  to  hini 
was  one  containing  the  cheque.  He 
was  entitled  to  receive  a  letter  on  be- 
half of  Radus.  and  although  Radus 
said    he    revoked    that    authority    by    a 


i?o 


"^CAt>E  TIMES"   LAW  REt»ORTS. 


verbal  comiQuuication,   there     was     no 
wri'fcten  oommunication  sent  to  the  appel- 
lant's office.      Ai^uming    for  the  moment 
that  he  did  endorse  the  cheque,  the  ap- 
pellant was  in  any  case  entitled  to  re- 
ceive it.     Perhaps,  in  a  foolish  moment, 
when  he  was  in  a  hole,  he  did  so  with 
the  intention  of  merelv  taking  his  just 
charges  out  of  it..      There  was  not  the 
slightest   evidence    that    he    intended   to 
retain  the   bulk  of   the  money.       If  he 
wro4e  the  name  it  was  with  the  inten- 
tion of  getting   a  few    shillings   to   buy 
food.     The  Magistrate  might  have  con- 
sidered   the   circumstances   of    the    case, 
and  found  that  the  man  was  merely  en- 
deavouring to  get  temporary  assistance. 
Do      Villiers,      C.J.  :      The      cheque 
was    eent    by     Cillie     in     a    letter    ad- 
dressed    to     the     appellant,      but     the 
cheque     was    made    out    in     favour    of 
Radus  or  order.     The  applicant,  on  the 
receipt  of   that  cheque,   seems    to  have 
been  in  ^reat  trouble.     There  was  a  writ 
of  civil  imprisonment  against  him.     He 
was  about  to  be  arrested,  and  in  his  ex- 
citement   he    apparently    endorsed    this 
cheque,  not  in  his  own  name,  but  in  the 
name  of  Radus.       He  put  it  into  a  let- 
ter addressed  to  Ditcher,  and   gave  the 
letter   to  Kinsley.        Kinsley     went     to 
Ditcher   with   this   cheque    and    got    the 
money  from  him,  and  ho  utilised  iX)rtioii 
of  that  money  for  the   purpose  of  sup- 
plying the  appellant  with  food  while  he 
was  in  gaol.     It  is  clear  from  this  state- 
ment of  facts  that  the  appellant  had  no 
right  to  the  cheque,  although  the  cheque 
was  in  a  letter  addressed  to  him.     The 
cheque  was  in  favour  of  Radus,  and  to 
the  order  of  Radus,   and   the  only  pcr- 
6on  entitled  to  the  cheque   w^aa   Radus. 
The    applicant    in      appropriating      that 
cheque  to    his   own    use    was    guilty   of 
theft,      and      in     endorsing     the     name 
of     Radus,      without       any       authority 
from    him,    he    was    clearly    guilty     of 
forgery,  and  the  forgery  was  committed 
for  the  purpose  of  enabling  him  to  get 
a  very  small   proportion   of  this   money 
t3    get   food    for   himself    in    gaol.     Still 
the  forgery  was   committed.       It  is  not 
suggested   by     the     appellant's     counsel 
that  he  had  any  authority  from  Radus 
to    endorse    the    cheque    for    him.        On 
the  contrary  the  defence  is  that  he  never 
endorsed  it*  at  all.     There  is  no  evidence 
to  show   that  Kinsley   is   the  man   who 
forged    the  cheque.       He   would    derive 
no  benefit  from  it.      The  only  person  to 
derive  any  benefit  from  the  cashing   of 
the  chctiue  was  the  api)ellaiit,  and  there 
seems  to  bo  no  motive  which  would   in- 
duce Kinsley  to  forge   a  cheque.       The 
only  person  who  could  have  committed 
this  forgery  is  the  appellant.    As  to  the 
sentence.   1  must  say  I   consider,   under 
all  the  circumstances  of  the  case,     that 
the  sentence  was  somewhat  severe.   The 
man  was  undoubtedly  in  an  excited  state. 
He  was  to  derive  little  benefit  from  the 
cheque.       The  only   benefit  would  be  a 
few  .  shillings  to  buy  food.       There  are 


circumstances  in  this  case  which  would 
justify  the  Government  in  considerably 
mitigating  the  sentence.  That,  how- 
over,  is  a  question  which  the  Court  has 
not  to  deal  with.  The  only  question  is 
whether  the  conviction  is  right,  and  in 
ray  opinion  the  conviction  was  right. 
Maasdorp.  J.,  concurred. 

Mr.  Howel  Jones:  Your  lordship's 
remarks  will  be  conveyed  to  the  Attor- 
ney-General. 


SUPREME  COURT 


[  Before  the  Hon.Mr.  Justice  Maasdorp.] 


REVIEW. 


REX  V.  MCLAUGHLIN.         J  ^j,^.    i.5th. 

Lashes  —  Previous    conviction  — 
Act  43  of  1885. 

Maasdorp,  J.,  said  tha<t,  as  Judge  of 
the  week,  ilihe  case  of  Rex  v.  McLaugh- 
lin, which  had  been  heard  by  the  As- 
.Istant  Resident  Magistrate  of  Cap<i 
Town,  had  come  before  him,  the  accused 
having  been  charged  with  storefope-akin^ 
with  intent  to  steal,  and  with  theft. 
Accused  pleaded  not  guil*y.  but  was 
found  guilty,  and  sentenced  to  twelve 
months'  "imprisonment,  with  hard  lailxmr, 
and  to  receive  twelve  cuts  of  the  rtine. 
By  the  Act  43  of  1885,  under  which  thir^ 
( liso  was  remitted  by  the  Attorney- 
(loneral.  kshes  or  cuts  could  only  l>e  in- 
flicted in  case  of  previous  convictions 
being  proved  to  have  taken  place  within 
three  years.  The  only  previous  convic- 
tion proved  in  this  case  took  place  in 
1889.  and  consequently  did  not  come 
withhi  the  terms  of  the  section.  The 
scMiitence  mu^t  therefore  be  amended  by 
expunging  the  words  "  and  to  receive 
twelve  cuts  from  the  cane*" 


ADMISSIONS. 

Mr.  Struben  moved  for  the  admission 
of  Fretlerick  Meyer  as  an  attorney  and 
iiot-ary. 

Aippliocytlon  granted  and  oaths  ad- 
ministered. 

Mr.  \V.  Bisset  moved  for  the  admis- 
.>ion  of  William  Forbes  Laurie  as  an 
attorney,  notary,   and   oooveyancer. 

Apiplioation  granted  and  oaths  ad- 
luinisteTed. 


•'cAt>E  TIMES"  Law  reports. 


277 


Mr.  Close  moved  for  the  adiiii«)>ioii 
of  Harry  P.  W»rd  a»  an  attorney  and 
notary.  Counsel  asked  that  the  appli- 
cation should  be  granted,  subject  to 
production  of  birth  certificate. 

Ordwed  to  stand  over  pending  pro- 
doctioa  of  certificate. 

Mr.  P.  S.  T.  Jones  moved  for  the 
MlmiaKion  of  Norman  O.  Norton  ae  an 
attorne^r   and    notary. 

Apphcation  granted,  oaths  to  be  taken 
before  the  Resident  Magistraite  of  Ea..t 
London. 

Mr.  Alexander  moved  for  the  ad- 
miaion  of  Michiel  J.  H.  Keet  as  an 
tttornej-  and  notary. 

A^plioattion  granted  and  oathe  ad- 
mimstered. 

Mr.  Van  Zyl  moved  for  the  admission 
ot  Lancelot  Dixon  Crowbher  as  an  at- 
torney, notary,   and   conveyancer. 

Application  granted,  oaths  to  be  taken 
Wore  the  Resident  Magistralte  of  Ea^t 
London. 

Mr.  Alexander  moved  for  the  ad- 
mission of  Edwin  van  R.  Schlemmor  as 
an  attoruej  and   notary. 

Application  ijranted,  oaths  to  be  tnkeii 
wfore  the  Resident  Magistrate  of  Kok- 

♦u  j'^'  ^*  ^  ^^  Villiers  moved  for 
the  admifeiou  of  Jacobus  R.  de  Wet  as 
***  »^nie7  and   notary. 

Application  granted  and  oafchs  ad- 
ministered. 

Mr.  Close  moved  for  the  admission  of 
'r^  bolomon  Webber  as  an  attorney 
tPV^^ry.  Counsel  stated  that  Mr. 
Webber  was  an  enrolled  attorney  of  tho 
iTansTaal,  and  he  applied  under  tho 
'^^rrx'al  arrangement. 
jf?*«fJopp,  J.,  said  that  it  was  very 
«>irable  that  applicants  should  appear 
ppr^onallv  when  the  application  was 
n»jde.  The  Court  had  decided  that, 
.*k  i5^^'  possible.  the  applicant 
Should  appear  before  tho  Court.  The 
nwtter  would,  therefore,  stand  over 
"mil  the  applicant  placed  before  tho 
J-ourt  reasons  why  he  did  not  attend 
t^roie  the  Court 


PBOVISIONAL  ROLL. 


TUMBULL  V.  STEWART.     (  .,  ^^\\u 

k  Apr.   loth. 

•^■f  H.  Juta,  K.C.,  moved  for  a  writ  of 
?Til  impristmment  upon  an  unsatisfied 
judgment  of  this  Court  for  £150.  with 
'Dterest.  less  £57  lis.  6d.,  paid  on  ac- 
fonnt,  and  for  £50,  less  a  certain  sum 
P«id  on  account,  and  for  costs,  amountt- 
">fto  £21  128.  3d. 

Defendant  said  that  he  was  without 
'Dewis  and  employment.  He  had  been 
^ogAg«d  38  a  chemist's  assistant  at  £17 
ft  month. 


Sir  H.  Juta  cross-examined  tho  de- 
fendant in  regard  to  his  transactions 
since  he  came  out  to  the  Colony  a 
little  over  twelve  months  ago,  and  an 
interest  4>hat  he  had  had  in  a  business 
at  MaLme»bury. 

[Maaedorp,  J.  (to  Sir  H.  Juta) :  You 
soem  to  have  killed  the  goose  before  you 
could   get  tho  eg^.] 

Sir  iH.  Ju^a:  I  am  not  so 'sure  that 
the  egg  is  not  under  the  straw,  my 
lord,  and  that  it  may  not  be  haitched 
when  this  caee  is  oveV. 

Ordered  to  stand  over  until  Thursday 
next,  the  defendant  to  produce  the 
documents  connected  witn  the  con- 
tracts he  had  ewtered   into. 


MCNAU6HT0N  V.  ROWE  AND  WfiLSH. 

'  Provisional  sentence — Lease. 

Mr.  P.  S.  T.  Jones  moved  for  pro- 
visional sentence  upon  a  lease  f<ir 
£396,  rent  due.  Ices  £15  paid  on  ac- 
count. Ck)uu6el  admitted  that  the 
pladntifip  had  sued  under  a  wrong  lease 
and  that  a  sulb^eiiuont  lease  was  en- 
tered into,  upon  which  the  summons 
should  have  been  iftnued.  There  was, 
liowever,  still  a  ot>rtain  sum  due,  and 
in  the  affidavits  the  defendants  albo  set 
up  a  vei^l  agreeDMnt, 

Mr.  Searle  (for  the  defendant) :  I 
adimit  that  the  lease  on  which  wo  are 
sued   ie  not    the    original    lease. 

.Mr.  Jones :  The  two  leascis  should  be 
read   together. 

[Maasdorp,  J. :  You  sue  on  a  liquid 
document,  is  anything  ret|uired  for 
y<yur  case  (beyond  tJiai!?] 

We  wish   to   nut   in  contain   affidavits. 

Mr.  Stearic :  The  document  on  which 
the  plaintiff  sues  is  not  in  CV>urt;  and, 
therefore,  provi^ional  sentence  cannot 
Ik!  granted  on  it.  Poesi'bly  thero  may 
be  certain  liabilities,  but  certainly  there 
are  none  on  the  summons  bailed  on  the 
document  now  put  in. 

[Maasdorp,  J. :  You  must  pix)ve  your 
ca«e.    Mr.    Jones.] 

The  defendant  admits  his  liability  for 
a  contain  amount.  The  first  lease  was 
only  held  in  suspension  by  the  second 
lease.  The  firsit  lease  wac*  to  come  into 
full  force  unless  the  iterms  of  the 
second  lease  were  complied  with,  and 
they  never  were  complied  with.  1  sub- 
mit tihat  judi^ment  should  be  given  for 
such  amount  as  may  be  found  due  to 
us. 

Proviaional  eenttcnce  refused,  with 
costs. 


SEDGWICK  V.  CALITZ. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  on  a  mortgage  bond  for  a 
sum  of  £43  3s. 

Order  granted. 


$78 


•CAPE  TiMES"   LAW  !lEf>0&TS. 


LAZAUU8  V.  DUMBBLLA. 

Dr.  Greer  moved  for  provicdonal  sen- 
tence  on  certain  condihoiie  of  sale  for 
£116,  balance  of  the  purchase  price  of 
cert4iin  property,  and  £25  rent. 

Defendant  aitked  for  an  extension  of 
time,  until  she  had  completed  her  term 
of  imprisonment. 

Order  granted  as  prayed. 


GIBSON   V.  HOFFMAN  AND  CARMELTZ. 

Mr.  Du  Toit  moved  for  pruvisionaJ 
sentence  on  certain  coiKlitions  of  sale 
for  £436,  with  interest  and  costs. 

Order  granted. 


ROSS  V.  8TELLENKAMP. 

Dr.  Greer  moved  for  provirional  non- 
ten  co  on  a  promissory  note  for  £100, 
balaace  due.  with  interest. 

Order   granted. 


ROODT  V.  BOTHA. 

In  this  m*tter  judgment  had  been 
o4>tained  against  <the  first  two  defen- 
dant's in  the  original  motion  in  March 
latjt.  and  the  action  againt^t  tJie  third 
defendant  stood  <n'er  (15,  C.T.R.  235). 
Thee  laiim  was  for  £264  10s.,  ajid  the 
judgment  was  now  sought  against  the 
third  defendant,  who  acted  as  surety  to 
the  promissory  note. 

The  affidavit  of  the  defendant  set  out 
thait  he  agreed  to  act  as  surety  on  con- 
dition that  he  received  270  sheep. 
Ck)unsel  said  he  was  not  relying  now 
on  ithe  question  of  the  sheep,  but  on 
the  deky  in  oxcusaing  the  principal 
debtors,  and  he  contended  that  the 
suretyship   had   lapsed. 

An  an^weriug   affidavit   was  put   in. 

Mr.  Alexander  wa«  for  tlie  plaintiff 
and  Mr.  Gardiner  was  for  the  dc'fen- 
dant. 

I'Maarrdorp,  J. :  You  cannot  press  for 
provisional  senitence.l 

'Mr.  Alexander :  Oh  yes.  The  de- 
fendant was  a  surety  and  provisional 
sentence  h»as  been  given  against  a 
surety.  Wo  gave  him  duo  notice.  Had 
we  gone  to  hian  before  December  16th 
he  m.igbt    have   dbjeoted    that    we    had 


NIORINI  V.  VAN  ROOYBN  AND  WIFE, 

Mr.  VVatermeyer  moved  for  provi- 
sional sentence  on  a  promissory  note  for 
£491  99.  lOd.,  le.'-s  £140  paid  on  ac- 
count,   with   interest   and   costs. 

Defendant  astced  for  stay  of  execu- 
tion for  two  months,  stating  that  he 
was  prepared  to  consent  to  judgment. 
Tliere  was  sufficient  property  to  satisfy 
the  claim. 

Order   granted  as  prayed. 


not  excu. ojJ  the  ^liawij^ul.  lie  had 
not  renounced  the  beneficium  excus- 
tttmiU,  and  if  he  was  not  Italble  after 
Dect^mlber  l&fh   he  wau  no*  liaible  at  all. 

['Miaasdorp,  J. :  If  you  have  put  a 
me-aningless  clause  into  your  eon-tract 
thait   is  vour   misfortune.] 

Should  your  lordship  \ye  against  me 
on  this  point,  1  should  like  to  be  heard 
on  the  <iuo}rtion  of  costs,  as  to  which  1 
rofer  to  Vorster  v.  Van  Wyk  and  An- 
other (11  C.T.R.  586). 

[uVIaiisdorp,  J. :  Mr.  Gardiner,  have 
yuu  any  authority  to  show  that  a 
surety  cannot  be  sued  unless  the  prin- 
cipal   has   been   excussed?] 

Mr.  Gardiner :  I  Irave  only  Herding 
v.   Lc  Hey  (12  Juta). 

Mr.  Ak'xander  (in  reply) :  The  point 
as  to  excussion  of  the  princii>al  lias 
been  raised  only  incidentally  in  one 
affidavit.  It  should  have  been  pleaded 
specifically. 

Maasdorp.  J.  :  In  this  cac5c  the 
defendant  is  sued  upon  a  pro- 
miadory  note  made  by  Botha  and 
Schoemann  in  favour  of  Mrs.  Roodt, 
and  his  lialbility  is  a'Ueged  to  rest  upon 
'the  endorsexnent  made  by  him  to  th't> 
note.  The  endorsement  is  to  the  fol- 
lowing effect  :  *'  As  suretv  until  16th 
Decemiber."  signed,  J.  A.  Botha.  Now 
several  legal  points  have  been  raised 
in  this  ease  as  to  the  position  oJf  a 
surety  where  provisional  sen-tencc  is 
claimed,  'but  it  is  unnecessarv  to  po  into 
any  of  those  matters,  oxt'ept  the  effect — 
the  legal  effect  of  the  endorsement  itself 
upon  this  note.  The  defendant  consented 
tt>  become  surety  and  be  liaible  as  surety 
until  16th  Decem-ber,  1904.  After  that 
date  his  liability  japsed,  and  lie  is  no 
longer  liable  for  anything  t^iat  took 
place  between  panties,  which  con«titutes 
some  agreeoiient  by  which-  his  li-ability 
iis  extended.  Such  mat-ters  ought  to  be 
brought  Ixsfore  the  Court  in  aiK^ther 
form.  The  Court  can  only  deal  with  the 
written  d<>cu<nien«t,  and  upon  that  d<»cu- 
meu't  there  is  no  liability  on  tiie  ^wirt 
of  J.  A.  Botha  as  surety  or  otherwi^iie. 
The  provisional  sentence  will  be  refused 
with  costs. 


CILLIEltS  V,  SACOK. 

Mr.  P.  Jones  was  for  the  plaintiff  and 
Sir  H.  Juba,  K.C.,  was  for  the  defen- 
(lant.  The  application  was  for  provisdon- 
al  sentence  on  a  promissory  note  for 
£300.  Sir  H.  Jut>a  read  the  affidavit 
of  the  defendant,  which  set  out  that 
the  plaintiff  had  purohased  a  piece  of 
t^round  from  him  for  £2,889.  and  when 
the  plans  were  ready  the  £300  could 
be  de^iuetcd  from  the  purchase  price. 

Mr.  P.  Jon<^  read  a  replying  affidavit 
of  the  plaintiff  to  the  effect  thit  the 
defendant  did  not  kec^p  to  the  terms 
of  the  purchase  made  in  Dt*cember, 
1902,  and  he  had  subsequently  cancelled 
the  sale.      Poiasession  was  not  given    in 


"CAPE  TIMES"   Lx\W  REPORTS. 


279 


M&y,  1903,  as  pTomieed.  The  purchase 
bad  been  cancelled  by  reason  of  the 
delay  in  survey ing  the  ground. 

M&Mdorp,    J .  :     The  'plaintiff  sues  the 
defendant    upon    a    promissory  note,    in 
ifhich    the    defendant    promises    to    pay 
the  plaintiff  £300,    wiith   interest  at    the 
ra:*^  of  5  per  cent,    per  annum,  on   the 
3rd  August,    1903.     The    defendant   sets 
ttj)  a  defence  -which  is  contained  in  one 
paragraph  oi    hi«    affidavi^t,    to  the    fol- 
lowing  efifect:     "The    said   Cilliers    ha6 
purchart'd   a  jaece  of  ground   from  me, 
tor      which    he   owes    me    the    »>um    of 
£2,889/'       Now,    if    there   was    a    debt 
actually  due  by  the  pQaintiflP  to  the  de- 
fendant,   it    is    in    ordinary     operation, 
xjod,  a«  a  eet  off.    the  defendant    could 
bring  that  uj>  as  a  defence  against  any 
claim  by  the    plaintiff.     But  it    is  clear 
from   the   documents  pu't    in  that      the 
sale  haa  taken    place,    and    a    date    has 
not   yet  arrived    upon    which    the    pur- 
chaae  price  can  be  claimed  by   the   de- 
fendant.   Even     if     this    contract     does 
go  through,  notwithstanding     the     dis- 
pute now  pot    up  by   the    plaintiff,     the 
actual  due  date  nan  not  arrived,  and  con- 
sequently there    i*    no    sum    of    money 
whirJi  the  defendant   can  set  up  against 
the  k»gal  claim  of  the  plaintiff,  and  pro- 
viswnal  semeuee    must    ^le    given,    with 
co»is. 


SUPREME   COURT 

FIRST    DIVISION. 


/Before  the  Chief  JuHtice  (the  Rijfht 
Hon.  Sir  J.  H.  dk  Villtkus,  P.O., 
K.C.M.G..  LL.D.).    and  the  Hon.  Sir 

JOHX  BUCHAA'AX.J 


APPEALS. 
BEX  V.  BOSSOUW.  {  ^p^.^rth. 

Trespass—Assaolt. 

This  waa  an  appeal  from  the  judgment 
of  the  R.M.  of  Springfontein,  in  oonvict- 
"JR  the  appellant,  Ilermias  Albertus 
Rosaouw.  of  an  assault  upon  a  farmer 
i«nied  Andriea  Frant^ois  Engelbrecht, 
*nd  sentencing  him  to  a  fine  of  £3,  or 
one  month's  imprisonment  with  hard 
laixmr. 

The     appellant    had    been      charged, 

along     witin       his       brother,       Gideon 

Josias    Rossouw,      nvvth     assaulting  the 

complainant    bv    catching    hold  of  him 

tf|d  throwing  him  to  the  ground.  Both 


the  accused  p^leadod  not  guilty,  and  the 
charge  against  Gideon  was  dismissed, 
while  the   appellant  was   found   guilty. 

From  the  record  it  appeared  that  there 
had  been  a  dispute  between  the  com- 
plainant and  the  accused  in  regard  to 
the  boundary  line  of  a  farm  on  which  all 
the  parties  lived.  Certain  cattle  of  the 
accused    were   on   the   land   which   com- 

{)lainant  said  was  his.  and  he  went  there 
or    the    purpose   of    impounding    them, 
whereupon     the     alleged     assault     took 

{ilace.  The  complainant  said  that  he 
lad  had  to  nay  £26  by  wav  of  medical 
expenses.  The  land  on  which  the  cat- 
tle were  found  was  claimed  by  the  ac- 
cused under  a  recent  survey,  but  the 
complainant  said  that  he  had  not  agreed 
to  the  survev,  and  that  the  land 
formed  part  of  his  farm.  One  ofthe 
witnesses,  called  by  the  complainant, 
said  the  she  put  musta.rd  plasters  on 
him.  and  filed  him  with  medicne,  a  piece 
of  information  which,  Mr.  Burton  inci- 
dentally observed  might  account  for  the 
complamant's  condition.  The  defen- 
dant's version  was  that  the  complainant 
was  aggressor,  and  that  no  more  violence 
was  used  than  was  necessary  to  prevent 
the  complainant  from  impounding  the 
horses  and  mules,  which  had  been  driven 
on  the  land  to  graze. 

Mr.  Burton  was  for  the  appellant, 
atid  Mr.  Howel  Jones  was  lor  the 
Crown. 

Mr.  Burton  said  the  affair  seemed  to 
have  ben  a  storm  in  a  tea-cup,  and  the 
matter  did  not  seem  to  be  one  of  great 
importance.  The  appeal  was  raised  on 
two  grounds:  (1)  That  the  verdict  is 
against  the  weight  of  evidence,  and  (2) 
that  if  appellant  used  any  force  against 
the  complainant  he  did  so  in  defending 
the  rights  of  property  which  he  claimed. 
Apparently  both  the  parties  claimed  a 
piece  of  ground  which,  upon  a  survey, 
nad  been  awarded  to  the  appellant,  and 
apparently,  instead  of  going  to  law 
about  the  matter,  they  came  to  this 
stupid  struggle  on  the  day  in  question. 

De  Villiers,  C.J.,  said  it  appeared 
that  the  accused  commenced  the  trouble, 
because  he  drove  horses  and  mules  on 
land  which  had  b^n  cultivated  by  the 
cc  mplainant. 

Mr.  Burton  said  that  the  complainant 
originated  the  trouble,  because  he  went 
on  to  the  land  which  had  been  awarded 
by  the  surveyor  to  the  appellant  to  im- 
pound his  cattle  on  land  that  he  had  no 
right  to. 

Without  calling  upon  Mr.  Jones, 

De  Villiers,  C.J. :  The  Magistrate 
in  this  case  seems  to  have  given 
ihe  'benefit  of  every  doubt  Chat 
could  posirbly  ari-so  to  tJie  accused. 
He  seemrt  to  Ivave  allowed  for  a  certain 
degree  of  exaggeration  in  tlie  evidence 
given  by  the  complainant,  and  acoord- 
ii>jrly  he  acquitted  Gideon,  as  he  was  not 
quite  sa titled  that  Gideon  had  taken 
part  in  the  assault.  Then  as  to  the  chief 
offender,  Mi  as,  the  Magistrate  seems  no^ 


280 


"CAPE  TIMES"   LAW  REPORTS. 


to  have  believed  that  the  assault  was 
quite  so  serious  an  the  complainant  Iiad 
made  it  out  to  be,  but  aiter  making 
every  allowance,  the  Magistrate  came  to 
■the  conclusion  tnatt  upon  the  evidence  an 
asault  had  been  committed,  and  1  con- 
fer 1  do  not  see  what  other  conclusion 
he  could  posibly  have  arrived  at.  Upon 
the  evidence  of  the  accused  hin^self,  he 
had  no  right  to  seize  hold  of  t<he  plaintiff 
in  the  way  he  did.  I  am  of  opinion 
that  there  is  no  ground  for  thi«  appeal, 
and  the  appeal  must  be  dismirsed  and 
the  conviction  confirmed. 
Buchanan,    J.,  concurred. 


PRINCE  V.  WEBSTER.         (Apr.    ITth' 

Purchase  and  sale — Agent — Rati- 
fication— Eatoppel . 

The  (hftndanVs  ilaughter^  being 
about  to  be  manied^  ordei'ed  a 
irediling  cake  from  the  plain- 
tiff and  directed  it  to  be  sent 
to  the  houfie  of  the  defendant. 
The  wedding  did  not  take 
place^  owing  to  the  diaajtpear- 
ance  of  the  brid^groom^  but  the 
cake  was  not  returned  by  the 
defendant y  and  an  account  watt 
sent  to  him  by  the  pktii^ifffor 
the  price  of  the  cake.  The 
defendant  did  not  repwliate 
his  liability^  but  went  ia  search 
of  the  bridegrooni.  A  secimd 
and  third  account  were  sent  to 
the  defendant,  and  it  was  only 
after  receiving  the  third  account 
that  the  defendant  denied  har- 
ing  ordered  the  cake.  In  the 
meantime  the  cake  had  deteri- 
orated in  quality. 

Held,  that  although  the  defen- 
dant liad  not  authorized  hu 
daughter  to  pledge  his  credit, 
heshotdd,  under  all  the  circutn- 
stances,  be  held  to  have  ratified 
her  act,  and  therefore  to  be 
liable  for  the  price. 


This  was  an  appeal  from  a  Judgment  of 
the  Resident  Magistrate  of  East  London 
in  an  action  brought  by  the  present  re- 
spondent against  the  appellant  to  recover 
£5' 10s.  for  goods  sold  and  delivered  to 
the  defendant,  at  his  special  instance 
and  request,  on  or  about  the  9th  July. 
1904,  vis.,  one  wedding  cake,  £2  10s.,  and 
assorted  cakes,  £1.  The  Court  below 
gave  judgment  for  the  plaintiff  for  the 
aimount  claimed    with    costs. 

From  the  record  it  appeared  tha.tthe 
goods  bad  been  delivered  at  tl^e  defen- 


dant's house  in  readiness  for  his 
daughter's  marriage  with  one  Donovan. 
The    marriage,    however,    did    not    take 

El  ace,  for  on  the  eve  of  the  ceremony 
fonovan  disappeared  and  was  believed 
to  have  gone  to  Cape  Town.  Defendant, 
when  applied  to  for  payment  of  the  ac- 
count, said  that  he  was  hunting  for  tlie 
bridegroom.  Plaintiff  said  that  it  was 
customary  for  the  prospective  father-in- 
law  to  pay  for  the  cake,  while  the  defen- 
dant held  that  Donovan  should  pay  for 

it.  , 

The  Magistrate,  in  his  reasons  for 
judgment,  said  that  the  defendant  should 
iiavQ  returned  the  articles,  instead  of 
which  he  kept  them  until  a  portion  went 
bad.  The  action  of  the  defendant  in 
keeping  the  cake  months  after  Donovan 
had  disappeared  deprived  tfie  plaintiff  of 
an  opportunity  of  realising  the  value  by 
other  means. 

Mr.  Gardiner  was  for  the  appellant; 
Mr.   Alexander  was  for  the  respondent. 

Mr.  Gardiner  submitted  that  the  alle- 
gations in  the  summons  had  been  borne 
out.  The  Magistrate  had  not  found 
that  the  defendant  had  bought,  but  that 
Donovan  had  bought  Neither  did  the 
defendant  buy,  nor  did  he  authorise  his 
daughter  to  pledge  his  credit.  The 
Magistrate  seemed  to  think  that  defen- 
dant should  have  returned  the  cake,  but, 
i.i  strict  law,  defendant  could  not  have 
returned  the  goods,  the  property  in  the 
goods  having  passed  to  Donovan.  The 
plaintiff  should  have  sued  Donovan  for 
these  goods. 

Mr.  Alexander  submitted  that  tM  de- 
fendant was.  by  reason  of  his  subsequent 
conduct,  estopped  from  setting  up  the  de- 
fence that  tlie  g(X)d8  were  sent  to  Dono- 
van's order.  it  was  an  imix)rtant  cir- 
cumstance in  this  case  that  the  daughter 
did  not  live  with  her  father,  and  that  the 
cakes  were  to  be  delivered  at  her  father's 
house.  The  accounts  were  sent  at  the 
end  of  each  month  to  Prince,  and  not  to 
Donovan.  It  would  have  been  simple 
for  the  defendant  to  have  explained  that 
Donovan  had  gone,  and  offered  to  re- 
turn the  cake  to  Webster.  It  was  only 
when  the  matter  was  brought  into  court 
that  Prince  set  up  the  defence  that 
Donovan  was  liable  for  the  cakes.  The 
defendant  did  not  seem  to  have  been 
anxious  that  thq  wedding  should  take 
place,  and,  in  fact,  objected  to  it,  so 
that  he  would  not  be  likely  to  assist  in 
catching  Donovan. 

Buchanan,  J. :  If  the  bride  could  not 
catch  Donovan,  I  doubt  whether  the 
confectioner  could  have  done  so. 

Mr.  Gardiner  said  that  the  wedding 
cake  $>hould  not  have  gone  bad  in  three 
months,  because  he  believed  it  was 
usual  to  keep  a  portion  for  the  first 
chrisftening.  Replying  on  the  argu- 
ment, Mr.  Gardiner  said  it  was  true 
that  the  accounts  were  sent  to  the  ap- 
pellant, but  they  were  afterwards  sent 
on  to  Donovan.  The  plaintiff  seemed 
to  have  gone  on  a  custom  that  it  waa 


r 


"CAPE  TIMKS"    LAW  RRPORTS. 


2S1 


Qsual  for  the  bride's  father  to  pay  for 
the  cake,  but  thafc  custom  had  not  been 
proved.  He  failed  to  see  how  the  law 
oE  estoppel  apptic»d  in  this  ease. 

De  Viiliors,     C.J. :      The    defendant's 
(laughter  was  about  to  be  married  to  one 
Donovan,  and  she  and  Donovan  together 
went  to  the  plaintiff* s  oonfectioner's  shop 
and  there  ordered  a  wedding  eake  to  bo 
sent  to  the  house  of  the  defendant.     The 
day     after,     the     defendant's     daughter 
thought    it  would  bo  better  that     there 
should  be  a  smaller  wedding  cake,   and 
other  «tma)l  cakes  and  sweets,  and  aflke<I 
the  plaintiff  to  substitute  these  for    the 
original  wedding  oake.     That  was  agreed 
TO.  the  price  (£3  10s.)  being  the  same  in 
each  case.    The  articles  were  sent  to  the 
defendant,  but.   unfortunately,  the  wed- 
ding did  not   cx>me  off;   the  bridegroom 
disappeared,  and,  after  the  day  on  which 
the  wedding  was  to  have   taken   place, 
the  plaintiff  sent  an  account  for  the  cakes 
ti>  the  defendant.       I  take  it  from  the 
evidonce  that  the  account  must  have  been 
made  out  in  the  name  of  the  defendant. 
That  seems  to  mo  the  fair  purport  of  the 
evidence.       The   defendant    did    not    at 
once  repudiate  the  liability,  but   he  en- 
dcaroured  to  find  out  the  brid€^groom, 
apparently  with  a  view  of  getting  him  ta 
pay  the  money,  but  by  not  answering  the 
plaintiff  it  would  appear  to  me  that  he 
recognised  his  liability.     Now,  this  was  a 
case  of  a  wedding  to  be  celebratc^l  in  the 
hou.se  of  the  defendant.       His  daughter 
was  to    get    married.         The     ordmary 
curse  is  for  the  bride^s  parents  to  be  at 
the  <>xpense  of  providing  the  entertain- 
ment, and,  in  my  opinion,   it  would  re- 
quire very  little   evidence  of  ratification 
on  the  part  of  the  father  under  circum- 
sunces  like  the  present  to  induce     the 
Court  to   hold  that  he  should  be  regar- 
ded   as     the     purchaser     of    the    cake. 
After  the  end  of  the  next  month,  another 
account  was  sent  to  the  defendant.     lie 
did  not  then  repudiate  the  account,  but 
still  sought  to  find  Donovan,  and  it  was 
only  after   the   third    account    had    been 
sent   that   the   defendant  repudiated   his 
liability.       But,  in  the  meantime,    some 
of  the  cakes  went   bad.       According   to 
the   plaintiff    the   defendant     told     him 
(plaintiff)  that  he  had  eaten   the  cakes. 
Tbo  daughter,   howevAr,  does  not  agree 
with  this;  she  says  mo  cakes  went  bad. 
But,  whichever  statement   we  take,  the 
plaintiff  might  have  got  back  his  cakes 
if  he   had    known    the   d^endant    repu- 
diated liability;  so.  at  all  events,  some  of 
the   articles    which    had    been    delivered 
went  bad.  and  the  plaintiff  waa  debarred 
from  getting  them  back,  because  he  was 
left  under    the   imprecision    at    the   time 
that  the  articles  bad  been  ordered  bv  the 
defendant,  and  not  by  Donovan.     Now, 
I  take  it  there   is  sufficient  proof  of  a 
ratification  by  the  father  of  the  acts  oi 
his  daughter  in  ordering  the  cake  to  be 
sent  to  hia  house  to  justify  the  Court  in 
holding  that  there  was  a  contract,  ren- 
dering the  defendant   liable   to  pay  for* 


the  wedding  cake.  I  am  of  opinion, 
therefore,  that  the  appeal  must  be  dis- 
missed with  costs. 

Buchanan,  J.,  concurred. 

[Appellant's  Attorneys :  Siiberbauer, 
Wahl  and  Fuller ;  Respondent's  Attor- 
neys; Walker  and  Jacobsohu.j 


NOONAN 


r       1905. 
s'  V.  METER.        -I  Apr.    17th. 

I     „      2Cth. 


Purchase  and  sale^Stolen  pro- 
perty— Refund  of  price — 
Eviction. 

Certain  cattle  which  the  plain- 
tiff had  piu'chatied  from  the 
defendant  icere  chimed  by  one 
M.,  from  whom  they  had  been 
stolen^  tchereupon  the  plaintiff 
handed  them  over  to  Af.^  and 
informed  the  defendant  of  what 
he  had  dme. 

Held  that,  upon  proof  by  the 
plaintiff  in  an  action  against 
the  defendant  for  a  refund 
of  the  price,  that  as  the  cattle 
had  been  stolen  and  that  the 
defendant  icould  have  had  fio 
oalid  defence  to  a  suit  at  the 
instance  of  3f.,  the  plaintiff 
iras  entitled  to  sficceed^  although 
there  had  been  no  judicial 
eviction. 


This  was  an  appeal  from  a  judgment 
of  the  Re^ident  Magistrate  of  Kokstad 
in  an  action  brought  by  the  present  re- 
spondent for  the  return  of  £2b  10s.  pur- 
cnaae  price  of  certain  oattl^  bought 
from  the  appellant.  The  Magistrate 
gave  judgment  for  the  plaintiff  for  tho 
amount  claimed  with  costs. 

From  the  record  in  the  Court  below  it 
appeared  that  the  cattle  had  been 
sold  to  the  Respondent,  Meyer,  by  the 
appellant  for  £25  15s.  and  that  subcte- 
quently  a  queetion  arose  as  to  the  real 
ownership  of  the  animals.  It  was  said 
that  the  animals  had  been  stolen  from 
the  estate  of  one  John  Macdonald  before 
they  came  into  the  possession  of  N<K)n- 
an,  who  had  bought  them  from  a  native. 
Tlie  respondent  delivered  up  the  cattle 
to  the  representatives  of  tiie  estate  of 
Macdonald  upon  application  being  made 
to  him.  Appellant  said  that  he  should 
not  have  done  so  es^pecially  as  he 
(Noonan)  had  offered  to  refund  to  him 
the  sum  of  £25  15s.  if  the  cattle  were 
handed  back  to  him.  The  ground  of 
the  appeal  was  that  the  plaintiff  sh^)uld 
not  have  parted  with  the  cattle  until  he 
,    had  been  evicted   from  pos.«»os.Hion. 


282 


*'CAPE  TIMES"   LAW  REPORTS. 


Mr.  P.  S.  T.  Jones  was  for  the  appel- 
lant; Mr.  Gardiner  was  for  the  respon- 
dent. 

Counsel  having  been  heard  in  argu- 
ment, 

f'tir.  Adr.   Vult. 

rotten   (April  26th). 

De  Villiers,  C.J.  :  This  is  an  appeal 
against  a  judgment  of  the  Resident 
Magistrate  of  Kokstad  in  an  action 
whereby  the  plaintiff  claimed  from  the 
defendant  the  refund  of  the  price  of 
certain  three  head  of  cattle,  which  the 
plaintiff  had  bought  from  the  defend- 
ant, but  had  subsequently  returned  to 
McDonald  on  discovering  that  they  had 
been  stolen   from  McDonald. 

It  was  proved  to  the  satisfaction  of 
the  Magistrate  and  of  this  Court  that 
the  cattle  sold  to  the  plaintiff  were 
stolen  cattle,  but  it  is  not  suggested  that 
ho  defendant  stole  them  or  even  know 
that  they  have  been  stolen.  He  had 
himself  bought  them  from  on©  Tsean, 
and  it  had  not  even  been  proved  that 
Tsean  was  himself  the  thief.  On  behalf 
of  the  esitate  of  McDonald,  the  cattle, 
when  discovered  in  the  plaintiff's  posses- 
sion, were  claimed  from  him.  If,  upon 
thic^  claim  being  made,  the  plaintiff  had 
forthwith  informed  the  defendant  of  the 
claim,  and  called  upon  him  to  defend 
any  suit  that  might  be  brought  by  Mc- 
Donald's estate  for  the  restoration  of 
the  cattle,  the  burden  of  defending 
such  suit  would  have  been  thrown  on 
the  defendant,  and  if  such  a  suit  proved 
successful,  the  plaintiff  would  have  had 
a  clear  right  to  recover  the  purchase 
price,  the  consideration  for  the  payment 
of  it  having  wholly  failed.  Under 
the  Roman  law.  the  vendor  warranted 
undisturbed  possession,  and  the  pur- 
chaser could  not  bring  an  action  on  the 
warrantly  until  he  had  been  judically 
deprived  of  such  poessession.  (See  Code 
8.  45,  3.)  The  plaintiff,  instead  of 
waiting  until  it  had  been  decided  by  a 
Court  of  law  that  the  cattle  belonged 
to  someone  el^HJ  than  the  vendor,  hand- 
ed them  over  to  the  true  owner  upon 
being  perfectly  satisfied  that  they  had 
been  stolen  from  him,  and  the  ques'tion 
for  decision  is  whether  the  Court  be- 
low was  right  in  holding  that,  by  our 
law.  a  purchaser  is  entitled  to  a  refund 
of  the  price  if  ho  clearly  proves  in  the 
action  for  such  refund  that  a 
suit  by  the  owner  would  have 
established  his  ownership,  and  deprived 
the  purchaser  as  well  as  the  seller  of 
the  right  to  the  possession  of  the  thing 
sold.  Croenewegen  (De  Leg.  Abr.),  in 
his  commentary  on  the  passage  of  the 
Code  ju^t  cited,  seems  to  regard  the 
rule  there  laid  down  as  applying  only 
to  cases  in  which  the  purchaser  sought 
to  enforce  the  stipulation,  express  or 
implied,  for  a  |)enalty.  which,  under 
the  Roman  law.  attached  in  case  of 
eviotitin.  He  adds  that  ,a.s  the  stipula- 
tion had  in  his  time  fallen  into  disuse, 


the  learned  discussiona  of  the  oommen- 
tators  had  also  become  useleee  and 
superfluous.  Voet.  on  the  other  hand, 
in  the  Title  of  Evictions  21,  2,  30.  and 
34).  treats  the  subtleties  of  the  Roman 
Law  as  still  in  force  in  his  time,  but  he 
admits  (21,  2,  22}  that  if  one  who  has 
suffered  eviction  without  haying  given 
notice  to  his  vendor  can,  taking  up  the 
character  of  the  evicting  party  himself, 
assert  that  the  latter'^  ri^ht  was  cer- 
tain, and  cuu  show  a  manifest  want  of 
right  on  the  part  of  his  vendor,  he  is 
considered  entitled  to  the  same  n^coursc 
against  the  vendor  as  if  he  had  given 
timely  notice  of  the  suit.  Among  the 
authorities  cited  by  Voet  is  (J rot i us 
(Intr.  3,  15,  4),  who  says  that  when  a 
purchasers'ft  title  to  the  property  i«i 
jr.dically  interfered  with,  either  wholly 
or  in  part,  he  is  bound  to  give  timely 
notice  to  the  seller,  who  will  bo  bound 
to  take  up  the  case  for  him ;  otherwise 
the  purchaser  will  lose  his  recourse 
against  the  seller,  **  unless  the  property 
beyond  all  doubt  belonged  to  another.  ' 
Another  writer  cited  by  Voet  is  Van 
Leeuwen,  who,  in  his  Cenaura  Foren- 
sis  (1,  4,  19,  14),  after  ^ying  that  on 
failure  of  notice  the  purchaser  has  no 
recourse  against  his  vendor,  makes  an 
exception  in  cases  where  the  right  of 
the  evicting  party  is  obvious,  and  it  is 
clear  that  the  seller  had  no  right,  or 
the  purchaser  undertakes  to  prove  this. 
The  difficulty  of  the  present  case  arises 
fiom  the  fact  that  the  plain  tiff  *s  right 
to  the  cattle  has  never  been  judically 
interfered  with,  and  that,  instead  of 
waiting  for  an  eviction,  ho  handed  over 
the  cattle  to  the  true  owner  withoiit 
the  consent  of  h'm  vendor.  It  aj^ears 
to  me.  however,  that  on  principle  the 
plaintiff  should  not  be  deprived  of  his 
recourse  against  the  defendant,  pro- 
vided that  he  could  clearly  establish 
the  right  of  McDonald  to  recover  the 
cattle.  The  plaintiff  took  a  very  serious 
risk  upon  himr>elf  when  he  delivered 
the  cattle  to  the  person  whom  he  lx»- 
li<ved  to  be  entitled  to  vindicate  them. 
The  safer  course  would  have  t>oen  to 
retain  them,  after  giving  notice  to  the 
defendant  of  the  owner's  claim,  and 
thus  to  throw  upon  the  defendant  the 
onus  of  defending  his  right  as  against 
such  owner.  Bv  himself  delivering  up 
the  cattle  to  the  owner,  the  plairrtiff 
t^'ok  upon  himself  the  whole  burden  of 
proving,  not  only  that  the  cattle  had 
been  artolen,  but  that  the  defendant 
would  have  had  no  valid  defence 
against  any  suit  at  the  instance  of 
McDonald.  But,  if  onoe  the  plaintiff 
succeeds,  as  he  did  in  the  Court  below, 
in  establishing  such  proof,  it  would,  to 
my  mind,  be  a  needless  formality  to  in- 
sist upon  two  action  being  brought  for 
th."  purpose  of  asserting  the  plaintiff *s 
right  to  a  refund  of  the  purchase  price. 
An  opportunity  was  afforded  to  the  de- 
fendant  in   the   Court  l^low   of   raising 


"CAPE  TIMES"   LAW  REPORTS. 


?8a 


wxj  defence  wihich  he  would  haye  h«d 

to  any   suit   by    McDonald   for   the  re- 

oovery  of   the   cattle.        He  has  wholly 

faiVed   In    establishing    such    a   defence, 

and  there  can  be  no  valid  reason  why 

ihe  plaiiftiff,    after   proving  that  a  sitit 

at  the  instance  of  McDonald  must  havo 

reralted  in  an   eviction,   should   not  be 

in  the  same   position    as   if   an   evictioh 

bad  actually    taken    place.         I   am    of 

opinion,  therefore,   that  the  Magistrate 

was  right  in   giving   judgment  for   the 

plaintiff,   and   that  the  appeal  must   be 

dismissed,  with  costs. 

His  Lordship  added  that  his  learned 
brother  Buchanan,  who  8«t  with  him  in 
the  case,  agreed  in  the  judgment. 

[Appellant's  Attorneys:  Findlay  and 
Tait;  Respondent's  Attorneys :  Faure, 
Van  Eyk  and  Moore.] 


SECOND  DIVISION. 


[Before  the  Hon.  M  r.  Jnstice  M a  asdorp.] 


PROVISIONAL  ROLL. 


f      1906. 
(Apr.   17th. 


DU   PLE88I8    Y.    HAUPT- 
FLBISCH. 

Promi^ofy  note  —  Accoromoda- 
tion — Consideration . 

Mr.  Lewis  moved  for  provisional  sen* 
tc-roe  on  a  promissory  note  for  £1,684  9s. 
4d..  for  valne  received,  with  interest  and 
costs. 

Mr.  Searie,  K.C.,  appeared  for  the  de- 
feiHlanta,  and  put  in  afndavits,  which  set 
out  that  when  the  first  defendant's  wife, 
t3  whom  he  was  married  in  community 
of  property,  died,  he  and  his  brother, 
the  second  defendant,  were  appointed  o« 
CO  executors  testamentary  in  the  joint  es- 
tate. The  plaintiff  got  notice  that  the 
estate  was  in  liquidation,  and  that  a  sale 
would  be  held  in  April,  but,  owing  to  the 
CDDtinoanoe  of  a  severe  drought,  the  sale 
had  to  be  deferred.  The  first  defendant 
believed  if  he  were  given  time  all  his 
eijeditors  would  be  settled  with  in  full. 
The  whole  of  the  plaintiff's  claim  was 
diK  bv  the  joint  estate  of  his  wife  and 
himself,  ana  not  by  himself  and  the 
KcoDd  defendant.  The  second  defend- 
ant signed  the  note  a^  an  accommoda- 
tion note. 

Counsel  having  been  heard  in  argu- 
ment, 

Maasdoip,  J. :  The  plaintiff  in  this  case 
MWs  the  defendants  upon  a  promissory 
note  dated  29th  August,  by  which  the 
iMlcert  promise  to  pay  to  the  plaintiff 
the  sum  of  £1,684  fts.  4d.  The  defend- 
ants appear,  and  they  put  in  affidavits, 
rn  which  one  of  the  defendants  sets  up 
«>e  defence  that  the  debt,  for  which    he 

V 


made  the  promissory  note,  is  reallv  a 
debt  due  upon  the  joint  estate  of  him- 
self and  hie  wife.  Even  if  that  were  so, 
if  he  takes  the  debt  upon  himself,  he 
becomes  liable  upon  that  note  whatever 
ottier  parties  are  liable  in  other  respects. 
I  am  not  quite  satisfied  it  is  a  joint  debt 
— that  it  is  a  debt  of  the  joint  estate. 
There  are  no  details  set  forth  to  prove 
in  what  respect  that  debt  in  the  joint 
estate  arose,  and  there  seems  to  be  some 
evidence  that  the  note  was  made  in  re- 
spect of  the  indebtedness  on  account  of 
certain  monejrs,  which  the  first  defend- 
ant held  in  trust  for  the  plaintiff.  But, 
however  that  may  be,  ui>on  the  face  of 
the  promissory  note  as  it  now  stands, 
the  first  defendant  is  clearly  liable,  not- 
withstanding the  allegations  contained 
in  his  affidavit,  which  contend  on  behalf 
of  the  second  defendant  that  he  was  only 
an  accommodation  ^laker  of  this  note 
for  the  accomniodation  of  the  first  de- 
fendant, and  with  the  knowledge  of  the 
f>laintiff,  and  that  therefore  he  ia  not 
iable.  But  such  a  defence  cannot  hold 
in  law.  He  accommodates  ihe  other 
maker,  so  as  to  further  secure  the 
plaintiff's  consideration  to  the  other  party. 
That  is  sufficieoit,  and*  pladntiff  is  en- 
titled to  recover  the  money  from  him, 
notwithstandinir  the  fact  that  he  became 
an  accommodation  party  for  the  purpose 
of  accommodating  one  of  the  other  par- 
ties. The  provisional  sentence  will  be 
given  with  coets. 


FIELD  AND  CO.  V.  SHEAR. 

Mr.  Pyemont  moved  for  provisional 
sentence  on  three  promissory  notes  for 
£30,  £30,  and  £25,  with  interest  and 
costs. 

Granted. 


WILSON,  SON  AND  CO.  V.  PFUHL. 

Dr.  Greer  moved  for  provisional  sen- 
tence for  £339  4s.  7d.  on  a  promissory 
note,  with  interest  and  costs. 

Granted 


NANNUCI,  LTD.  V.  KEATING. 

Mr.  Close  was  for  the  plaintiff,  and 
Mr.  Struben  was  for  the  defendant.  Mr. 
Close  moved  for  provisional  sentence  on 
a  promissory  note  for  £213  8s.  2d. 

Mr.  Struben  put  in  certain  affidavits, 
in  which  the  defendant  disputed  certain 
accounts,  and  counsel  submitted  that  the 
dispute  could  not  be  settled  now.  The 
defendant^  had  interdicted  the  plaintiffs 
from  receiving  certain  moneys  from  the 
Sisters  of  Nazareth  in  respect  of  a  cer- 
tain contract,  and^  then  tne  committer 
said  that  the  dispute  could  not  be 
settled  between  the  partdes  on  a  motion. 
It  was  only  fair  to  the  defendant,  on 
the    allegajbions   made^    that    judgment 


284 


"CAPE  TIMES"   LAW  REPORTS. 


should  be  refused,  and  that  the  plaintiff 
should  be  ordeiea  to  go  into  the  princi- 
pal oase. 

Mr.  Close  said  the  note  was  given  for 
specific  goods,  and  it  was  on  an  entirely 
separate  transaction.  The  interdict  was 
granted,  he  understood,  pending 
an  action  to  be  broug'ht  by 
another  party,  and  the  onus  lay  as 
much  on  his  learned  friend's  client  to 
bring  the  action  as  it  did  with  his.  Coun- 
sel submitted  that  the  defendant  would 
not  be  prejudiced  now  by  the  granting 
of   provisional   sentence. 

Maasc^rp,  J. :  The  plaintiff  sued 
the  defendant  on  a  promissory  note 
for  £213,  and  the  defendant  appears 
to  oppose  the  granting  of  the  pro- 
visional sentence  on  the  ground  tliat 
the  position  of  the  parties  is  now 
such  that  a  promissory  note  upon  which 
he  is  sued  becomes  merely  an  item  in  a 
general  account,  and  consequently  a 
separate  action  should  not  be  allowed 
on  the  note.  He  contends  that  bhe  plain- 
tiff should  be  compelled  to  go  into  the 
whole  of  his  aoount.  It  appears  to  me 
from  the  allegations  contained  in  the  af- 
fidavit cl  the  defendant  himself  that  this 
promissory  note  was  intended  to  be  de- 
voted to  the  payment  of  his  account  for 
cement  and  tiles  purchased  from  Frank 
Clarke  and  Co.  Well,  if  there  was  such 
a  distinct  transaction,  the  plaintiff  is  en- 
titled upon  this  promissory  note  to  sue 
for  the  promissory  note  as  being  in  re- 
spect of  such  transaction.  It  is  contend- 
ed on  behalf  of  the  defendant  that  there 
is  an  indebtedness  to  Clarke,  and  that 
the  moneys  that  were  received  in  dis- 
oouninng  the  note  ought  to  have  been 
paid  for  this  indebtedness  to  Clarke,  and 
I  think  he  himself  misconceives  his  po- 
sition. Clarke  simply  acted  as  agent, 
and  there  is  no  indebtedness  to  Clarke. 
The  matter  now  has  been  taken  out  of 
the  hands  of  Clarke,  and  the  plaintiff 
demanded  payment  of  the  money  direct. 
I  think  this  ou^ht  to  be  treated  as  a  se- 
parate transaction^  without  producing 
any  complication  in  any  further  case, 
and  provisional  sentence  will  be  given 
for  the  plaintiff,  with  costs. 


TH WAITS  V.  HAKEKOM. 

Mr.  Long,  for  the  plaintiff,  moved  for 
provisional  sentence  on  a  mortgage  bond 
for  £425,  with  interest  and  costs,  and  to 
have  the  property  specially  hypothecated 
declared  executable. 

Maasdorp,  J.,  said  that  a  special  ap- 
plication would  have  to  be  made,  as  the 
money  was  attached  in  respect  of  another 
suit. 

Granted. 


OAIRNCROSS  v.  LIZAMORE. 

Dr.   Rainsford    moved   for   provisional 
sentence  on  a  mortgage  bond  for  £300, 


witxh  intezeat  and  ooeta,  and  that  the  pro- 
perty speoially  hypothecated  be  declared 
exeoutable. 
Granted. 


QEAAFF  Y.  BROOM BBBO. 

Mr.  Uping^n  moved  for  provisional 
sentence  for  £3,000  on  a  mortgage  bond, 
vvith  interest  and  costs,  the  bond  hav- 
ing become  due  by  reason  of  non-pay- 
ment of  interest  and  £6  ISs.  9d.,  pre- 
naium  and  stamps,  and  that  property  spe- 
cially hypothecated  be  declared  execu- 
table. 

Granted. 


GOODMAN  V.  ZWAIGRNHAFT. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  mortgVLge  bond  tor  £1,300, 
with  interest  and  costs,  the  bond  having 
become  due  by  reason  of  non-pa^rment  of 
interest  and  that  property  specially  hy- 
pothecated be  declarea  executable. 

Granted. 


GLABK  y.  LAKO. 

Mr.  D.  Buchanan  moved  for  provi- 
sional sentence  on  a  mortgage  bond  for 
£500,  with  interest  and  costs,  the  bond 
hiiving  become  due  by  reason  of  non- 
payment of  the  capital,  and  that  the  pro- 
perty specially  hypothecated  be  declared 
executable. 

Granted. 


DEMPER8  V.  SXEL. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond,  with  in- 
terest and  costs,  the  bond  having  become 
due  bv  reason  of  non-payment  of  interest, 
and  that  the  property  be  declared  exe- 
cutable. 

Granted. 


FET0HER6  AND  OTHERS  V.  DIAMOND. 

^  Dr.  Rainsford  moved  that  the  provi- 
sional order  of  sequestration    in  the  de- 
fendant's estate,  granted  on  20rh  March, 
should  be  made  final. 
Granted. 


LAWRBNCIE  V.  BERNSTEIN. 

Mr.  Sutton  moved  for  the  final  adjudi- 
cation  of  the  defendant's  estate  as  insol- 
vent. 

Granted. 


ZEEDEBBBRa    AND    DUNCAN     V. 
ALPBROWITZ. 

Mr.  Pyemont  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Granted. 


it 


CAPE  TIMES*'  LAW  REPORTS. 


285 


WINNS  V.  MEYXE. 

Mr.  Pyemont  moved  for  the  final  ad- 
judioaiion  of  the  defendant's  estate  as 
iiiiolTent. 

Granted. 


aTBOKO,    TBOWBRIDO£    AND    CO.    V. 
FOBSYTHB. 

Mr.  Swift  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as  in- 
tolient. 

Gnated. 


THORNB  V.  BATAILLOU. 

Mr.  M.  Bisaet  moved  that  the  provi- 
nonal  order  of  sequestration  in  the  de- 
fendant's estate  be  made  final. 

Granted. 


CAPS  GOLD  BTOBAOE  V.  SATEBS. 

Dr.  Rainsford  moved  that  the  provi- 
MfflMl  order  of  sequestration  in  the  de- 
feDdantB'  estate  be  made  final. 

The  defendant  appeared  in  court,  and 
«*id  he  had  no  objection. 

Granted. 


VAK  BTN   WINE  AND    8PIBIT  CO.   V. 
BliDIN  AND  00. 

.Mr.  W.  Biaset  moved  iftkai  the  pro- 
pAMoal  order  of  sequestration  be  made 
finu  against  the  defendants'  estate. 

Grsnted. 


B0WEB8  V.  ARAND8E. 

Mr.  Alexander  moved  for  a  decree  of 
cmJ  imprisonment  on  an  unsatisfied 
judgment  of  tiie  Supreme  Court  against 
the  defendant,  who  was  co-defendant  in 
recent  divorce  proceedings. 

Tha  defendant  appeared  in  Court,  and 
bemg  asked  by  His  Lordship  what  he 
had  to  say,  replied,  "  Not  gu.lty."    Pro- 
^'^Ming,  he  Stt»d  there  was  no  date  on 
the  summons,    and    he    knew    nothing 
abont  the  case.        At  present  he   was 
earning  six  shillings  a  day  as  a  farrier. 
Cross-examined    by    Mr.    Alexander  : 
At  Dreaoit  he  was  living  with  the  de- 
wndint  an  the  rscent  case. 
*v^*r  ^''nted,   to  be   suspended   on 
y  defendant  paying  £2  a  month,  the 
M  payment  to  be  made  on  «he  fint 
of  next  month. 


FLETCHEB  V.  HUBWITZ. 

lir.  Sutton  moved  for  provisional  sen- 
f^  on  a  mortg'a^e  bond  for  £1,100 
ura  £4  6b.  premiums,  etc.,  with  interest 
nd  oosts,  and  that  the  property  speoi- 
«|7  hjpotheoated    be    declared    execut- 

Gnnted. 


MOOBBEBB  V.  U06IAfl80HN. 

Mr.  Russell  moved  for  provisional 
^antenoe  for  £150,  being  the  firet,  second, 
and  -third  instalments  on  a  mortgage 
bond,  and  that  property  specially  hypo- 
thecated be  declared  exeoutairfe. 

Order  granted,  with  the  exception  of 
the  latter  claim,  on  which  execution  will 
not  issue  until  a  writ  is  taken  out  and 
a  return  of  nulla  bona  made  thereto 
wholly  or  in  part. 


•  MABTIN  BB06.  V.  NOBTON. 

Mr.  Waitermeyer  moved  for  the  pro- 
visional sentence  on  a  promissory  note 
for  £80  lOs.,  with  interest  and  costs. 

Granlted. 


CELANDINE  V.  6TBYDOM. 

Mr.  Gutsohe  moved  for  provisional 
sentence  on  «  mortgisge  bond  for  £750, 
with  interest  and  costs,  less  £13  paid  on 
account.  The  bond  became  due  by 
reason  of  non-pavment  of  interest. 
Counsel  also  asked  that  the  property 
specially  hypothecated  be  declared  exe- 
cutable, and  for  leave  to  attach  the 
rents. 

Order  granted,  the  rents  declared  exe- 
cutable, and  to  be  paid  to  the  Sheriff. 


VAN  DEB  BTL  Y.  TAHAAB  AND  0THEB8. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £300 
and  interest,  at  the  rate  of  8  per  cent. 
The  bond  had  become  due  by  resson 
of  non-payment  of  the  capital.  Coun- 
sel also  asked  that  the  property  specially 
hypothecated  be  declared  executable. 

Granted. 


SWANBPOEL  V.  HEINEMANN. 

Mr.  J.  E.  R.  de  Villiers  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £3,000,  with  interest  and  costs,  and 
Jhat  the  property  specially  hypothecated 
be  declared  executable. 

Granted. 


ESTATE  MASKEW  V.  VAN  HEEBDEN  AND 

ANOTHER. 

Mr.  Watermeyer  moved  for  provisional 
sentence  on  a  bond  of  £1,060,  and  costs, 
and  that  the  property  specially  hypothe- 
cated be  declared  executable. 

Granted. 


KAAL  V.  FORTUTN. 

Mr.  Van  Zyl  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £240,  with 
interest,  and  that  the  property  specially 
hypothecated  be  declared  execatable. 

Granted. 


286 


"CAPE  TIMES"   LAW  REPORTS, 


HEWITT  V.  VILJOBN. 

Mr.  0e  Waal  moved  for  provieional 
Bontenoe  on  a  mortgage  bond  for  £250, 
with  interest  and  costs,  and  that  the 
property  apecially  hypothecated  be  de- 
clared executable. 

Granted. 


filQUA  y.  PATHS. 

Mr.  Alexander  moved  for  provisional 
sentence  for  £200  on  two  promissory 
notes,  with  coets. 

Granted. 


GUNMIlffaHAIf  AND  AMOTHKB  V.  OBB. 

Mr.  P.  Jonee  moved  for  provisional 
sentence  for  £24,  on  certain  conditions 
of  sale,  being  the  balance  of  the  pur- 
chase pnce  of  £60  for  land  at  Hout 
Bay. 

The  defendant  appeared  in  person,  and 
said  he  had  paid  £51  out  of  the  original 
price  of  £60.  He  was  willing  to  give 
them  back  the  property. 

Order  as  prayed. 


DE    VILLIBSS    y.    MYBUSOH     AND 
ANOTUEB. 

Mr.  J.  E.  R.  de  Villiers  moved  for 
provisional  sentence  on  a  promissory  note 
ior  £1,006,   with  interest  and  cost.s. 

Granted. 


HETNS  y.  ABMSTR0N6. 

Dr.  Rainsford  moved  for  provisional 
sentence  on  a  promissory  note  f«r  £25, 
less  £5  paid  on  account,  with  interest 
and  costs. 

Granted. 


BURMEI8TBR  y.  PLEHN. 

Mr.  Gutsohe  nK>ved  for  the  fiital  ad- 
jiuHoation  of  the  defendant's  estate  as 
msolveok 

Granted. 


WELLS  y.  SCHLECHTEB. 

Mr.  P.  Jones  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Granted. 


yAN  ZYL  AND  BUISSINNE  y.  SIEO. 

Mr.  P.  Jones  moved  for  the  final  ad- 
judioation  of  the  defendant's  estate  as 
msolvent. 

Granted. 


ZAOKON  y.  SAAGK8  Ain>  H0FFMA17. 

Mr.  P.  Jones  moved  for  the  final  ad- 
judication of  the  defendants*  private 
and  partnership  estates  as  insolvent. 

Granted. 


MILLS  y.  YOUHG. 

Mr.  P.  Jones  moved  for  the  final  ad- 
judioatioQ  of  the  defendant's  estate  as 
insolvent. 

Granted. 


ABDEKNE  y.  BIDEN. 


Mr.  P.  Jonee  m.oved  for  provisional 
sentence  on  promissory  notes  for  £525 
186.  4d.,  £515  13s.,  £520  15b.,  £542  IBs. 
4d.,  and  £300,  witJi  interest  and  cost^ 

Granted. 


Li:>. 


MUS8BTT  V.  NAPPEB. 

Mr.  Jones  moved  for  ^  provisional  sen- 
tence for  £25  on  certain  acknowledg- 
ment of  debt,  and  £10  on  an  lOU,  witn 
costs. 

Mr.  Burton,  for  defendant,  put  in  affi- 
davits which  showed  that  one  Harry 
Stevens  agreed  to  advance  the  money  to 
the  defendant,  and  on  the  back  of  bhe 
document  appeared  the  name  of  Musset. 
If  Musset  appeared  to  him  to  be  any- 
thing, he  was  a  surety. 

Order  refused,  with  costs. 

At  a  subsequent  stage,  when  Mr.  Bur- 
ton  mentioned  the  matter  of  the  defen- 
dant's arrest  on  a  writ,  Maasdorp,  J., 
ordered  that  the  writ  be  dischargea,  and 
that  the  defendant  be  reieasea  from 
custody. 


AFEICAN  HOMES  TBU8T  CO.  y.  8EBBA 
AND  ANOTHEB. 

Mr.  J.  E.  R.  de  Villiers  moved  for  pro- 
visional sentence  on  a  mortgage  bona  for 
£850,  with  interest,  and  that  the  pro 
porty  hypotheoated  be  declared  execut- 
able. 

Granted. 


8C0TT  y,  KIBBY. 

Mr.  Lewis  moved  for  a  decree  of  oivil 
imprisonment  against  the  defeodaaL 
The  defendant  appeared  in  court,  and 
said  he  never  received  the  first  summons. 
The  plaintiflf  was  awaie  that  the  defen- 
dant had  changed  his  residence.  The 
first  intimation  he  had  was  when  he  saw 
the  newspapers. 

Maasdorp.  J. :  You  will  have  to  re- 
open the  whole  matter  if  you  prove  that 
you  had  not  proper  service. 

Defendant:   All  right,   my  lord. 

Maasdorp,  J.,  ordered  the  apc^ication 
to  stand  over  until  13th  May,  tne  quos- 
tion  of  costs  also  to  stand  over. 


(< 


CAI»E  TIMES"  LAW  tlEPO&TS. 


^ 


GENERAL  MOTIONS. 

VAH  NIEKE&K   V.  WILL  AND/        1906. 

OTHERS.  (Apr.  17th. 

Mr.  Close  appealed  for  tlie  plaintiff, 
Mr.  Gardiner  for  Will,  and  Mr.  P. 
•I  ones  for  the  second  defendant. 

Mr.  Gardiner  applied  for  a  postpone- 
ment of  the  trial  sine  die,  on  the  ground 
that  the  defendant  WiU,  who  wa«  making 
every  effort  to  locate  important  wit- 
nesses, would  be  prejudiced  if  forced  to 
go  to  trial  on  the  date  for  which  it  was 
filed. 

Mr.  Close  pointed  out  that  certain 
of  bis  witnesses  had  already  travelled 
coDsiderablv  over  200  miles  by  poatoart, 
and  that  plaintiff  would  be  put  to  great 
expense. 

The  hearing  was  set  down  for  Mon- 
day, 8th  May,  with  leave  reserved  to  the 
d»eDdants  to  apply  for  a  postponement, 
and  either  partv  to  call  furtner  wit- 
neeees,  costs  to  be  costs  in  the  cause. 


J'Jx  parte  ORBENING. 

Mr.  Alexander  moved,  as  a  matter  of 
urg^kcy,  on  behalf  of  the  Incorporated 
Law  Society,  to  have  the  petitioner's  ap- 
plication, which  was  set  down  for  Thurs- 
day next^  postponed  until  June  1.  Coun- 
ial  said  the  applicajtion  was  on  behalf 
of  Robert  Greening  to  be  reinstated 
as  an  attorney,  and  the  Law  Society 
were  opposing  the  application. 

The  respondent  appeared  in  person, 
and  said  that  on  the  20th  March  he  ap- 
plied for  re-admission  as  an  attorney. 
He  had  been  suspended  in  the  Cape 
Colony  and  Natal  for  twelve  months,  at 
the  instigation  of  the  Law  Society.  The 
Law  Society  applied  to  the  Right  Hon. 
the  Chief  Justice  for  a  postponement  on 
the  g^und  that  thev  did  not  know  Uiat 
he  had  been  suspended  in  Natal,  whioh, 
as  a  matter  d  course,  followed  the  sus- 
pension in  the  Gape  Colony.  If  he  did 
not  apply  in  June  for  re-admission  in 
Natal  ne  would  be  struck  off  the  rolls 
tbere.  He  was  only  suspended  there  be- 
cause he  was  suspended  here,  and  the 
Law  Society  had  only  just  discovered 
this.  The  Chief  Jmtice  then  told  the 
lAarned  counsel  that  he  thought  it  would 
be  sufficient  if  he  gave  him  a  postpone- 
ment until  the  11th  April. 

[Maaadorp.  J.:  The  only  question  is 
wliether  you  will  be  prejudiced.] 

Respondent:  I  shall  be  finished  in 
Natal,  my  lord.  At  present  I  have  no 
D»ans  of  earning  a  living. 

Mr.  Alexander  pointed  out  that  the 
respondent  was  suspended  with  leave  to 
*^y  again.  Counsel  said  he  had  an 
affidavit  which  referred  to  malpractices 
in  Natal. 

R^pondent:  I  do  object  to  the  post- 
ponement, because  this  is  an  attempt  to 
extend  my  puntshment. 


Mr.  Alexander  read  an  affidavit  bv  the 
secretary  of  the  Law  Society,  which  set 
out  that  there  was  reason  to  believe  that 
certain  fees  were  still  due  to  members 
of  the  bar  here  by  the  respondent — some- 
thing between  £dOO  and  £400— and  there 
was  considerable  probability  that  Mr. 
Greening  had  appropriated  some  of  the 
money  to  his  own  use.  A  letter  had  been 
sent  to  the  Attorney-General,  and  from 
his  reply  it  appeared  that  anjjr  fees  owing 
were  long  overdue  before  tne  respono- 
ent's  insolvency,  and  no  claims  against 
the  estate  were  made  by  members  oi  the 
bar.  The  members  of  the  bar  felt  that 
before  they  should  give  any  information 
there  should  be  an  expression  of  opinion 
from  the  Court.  A  further  affidavit  was 
put  in  from  one  Nioholls,  of  Durban, 
which  set  out  that  the  respondent  had 
been  struck  off  the  roll  of  notaries  in 
consequence  of  the  disgrraceful  state  in 
which  he  kept  his  protocol. 

The  respondent  said  he  had  no  ubjeo- 
tion  to  members  of  the  bar  giving  the 
names  of  olients  and  all  information  that 
lay  in  their  power.  When  the  Law  So- 
ciety obtained  the  previous  order  against 
him  they  were  well  primed  with  all  the 
facts  thev  had  now.  There  was  no  one 
that  could  find  half  as  bad  about  him 
as  he  could  himself.  They  oame  up 
with  the  story  about  counsers  fees,  but 
man^  a  time  he  had  paid  them  without 
getting  anything  from  the  clients.  The 
secretary  of  tbe^  Law  Sooiet^s  affidavits 
were  vague,  incoherent,  inconsisiant, 
egotiBiicai,   and  absurd. 

Maasdorp,  J. :  It  seems  the  matter 
must  stand  upon  the  roll  where  it  has 
been  placed.  There  is  no  urgency  shout 
this  application.^  If  the  bar  is  in  a 
position  to  give  information  which  would 
satisfy  the  Court  that  the  applicant  is 
unfit  to  be  reinstated,  then  such  infor- 
mation would,  of  course,  be  of  the  utmost 
iinportanoe  to  the  Court. 

The  Respondent:  I  should  like  a  full 
inquiry,  your  lordship. 


SUPREME  COURl' 


FIRST    DIVISION. 


[Before  the  Chief  Justice  (the  Rigrht 
Hon.  Sir  J.  H.  D£  Yilliebs,  P.O., 
K.C.M.G.,  LL.D.).] 


DIVORCE  CASES. 


HAAKKN8BN  V.  HAAKEK8EN 


This  was  an  action   brought  by  Ber- 
nard Julius  Haakensen,  of  Oape    Town, 


/       1905. 
J  Apr.   18th. 
• )  May     let. 
(     .,      4th. 


290 


"CA1>E  TIMES  ♦»  Law  Reports. 


dven.  This  he  denied,  beoause  the 
farm  was  bequeathed  to  the  childrem 
by  his  first  wife. 

^  Mr.  Molteno  said  that  the  defendant 
lived  close  to  the  plaintiff's  farm. 

Decree  of  restitution  g-ranted,  de- 
fendant to  return  to  the  plaintiff  on  or 
before  the  15th  May,  failing  which,  to 
show  cauee  on  the  2nd  June  why  a  de- 
cree of  divorce  should  not  be  granted  as 
prayed,  with  costs. 

Pottea  (June  2nd).  Decree  absolute 
with  costs. 


TRIAL  CAUSES. 


PALMER      V.      CAPS      GOLD  f        1905. 
STORAGE  AND  SUPPLY  CO.   (Apr.    18th. 

Sale    and    purchase — Suspensorj 
oondition. 

This  was  &n  action  brought  by  CSiarles 
Thos.  Palmer,  of  Obsenratory-ioad, 
affainst  the  Cape  Cold  Storage  and  Sup- 
ply Co.,  for  th(B  return  of  a  xiorseor  its 
value  (£40),  and  for  damages  for  de- 
tention in  the  sum  of  £10. 

From  the  pleadings,  it  appeared  that 
the  plaintiff  sold  to  one  Robert  Jenkins 
a  certain  horse,  the  terms  being  that 
the  buyer  was  to  pajr  £5  down  and  £1 
10s.  per  week  until  the  debt  was 
discluurged.  It  was  a  condition  of  the 
agreement  that  the  sale  was  not  to  take 
effect,  and  property  fn  the  said  ajiimal 
was  not  to  pass,  until  the  last  instal- 
ment had  been  paid.  The  said  Jenkins 
paid  down  the  sum  of  £5,  and  also  paid 
certain  instalments,  but  he  afterwards 
failed  to  keep  to  the  terma  of  the  agree- 
ment between  them,  and  in  the  end  the 
plaintiff  found  that  the  animal  hod  been 
sold  to  the  defendants  for  the  sum  ot 
f'23.  He  demanded  its  return,  but  they 
refused  to  deliver  up  the  animal  until 
after  pleadings  had  been  filed,  when  the 
animal  was  given  up.  The  defendants 
put  the  plaintiff  to  proof  of  damages, 
and  jprayed  that  the  claim  should  be 
dismissed,  with  costs. 

Dr.  Raiineford^  was  for  the  plaintiff; 
the  defendants  in  default. 

Charles  Thos.  Palmer  (the  plaintiff) 
said  that  be  first  saw  the  maie  in  a 
cart  belonging  to  the  defendant  com- 
pany, and  aecertained  that  the  company 
hod  bought  the  mare  for  £23.  Witness 
at  once  pointed  out  that  the  animal  was 
his  property,  under  a  hire  and  pur- 
chase agreement.  Witness  produced  the 
agreement  for  the  inspection  of  the 
company's  manager,  Mr.  Elliot,  and 
also  the  traveller.  The  former  said 
that  the  agreement  was  not  worth  the 
paper  it  was  written  on.  Witness  had 
not  at  that  time  commenced  proceed- 
ings. The  horse  was  returned  to  him 
a  month  afterwards.  Witness  was  a 
cartage  contractor,  and  owing  to  the 
horse  being  detained,  be  had  had  to  ob- 
tain aikother  horse  for  his  business.   The 


animal  would  have  been  worth  from 
10s.  to  £1  a  day  to  him. 

Edward  Isaac  Sidney,  the  plaintiff's 
attorney,  said  that  he  offered  to  one 
of  the  representatives  of  the  defendants' 
attorneys  an  inspection  of  the  hire  ozid 
purchase  a^^reement  between  Jenkins 
and  the  plaintiff. 

[De  VillieiB,  C.J. :  I  am  bound  to  say 
that  these  agreements  are  not  really 
agreements  to  be  encouraged,  because 
thv  open  the  way  to  fraud.  A  man  is 
left  in  possession  of  a  hone,  he  enters 
into  negotiations  for  a  sale,  and  then  it 
turns  out  that  there  is  a  private  agree- 
ment between  the  paities  that  the 
ownership  in  the  horse  has  not  to  pass. 
Have  there  been  any  deciAons  that  sudi 
an  agreement  can   be  maintained?] 

Dr.  Rainsford  said  that  there  were 
several  cases  re{>orted  w^ch  upheld  tiie 
suspensory  condition.  There  was  the 
case  of  Albertyn  v.  Bcuwn  (15  C.T.R. 
118).  decided  before  Mr.  Justice  Hopley 
on  February  18th  last.  The  same 
principle  had  been  recognised  in  pre- 
vious cases  including  that  of  Wolfe  v. 
RUter  (3  High  Court,   102). 

De  Villiers,  C.J. :  In  this  esse  it  is 
unnecessary  to  discuss  the  question  of 
law,  which  might  have  been  an  interest- 
ing one  if  the  defendants  had  defend- 
ed the  case.  The  defendants  have  ad- 
mitted their  liability  to  return  the 
horse  by  actually  returning  it  after  the 
costs  had  been  incurred,  and  I  think, 
therefore,  that  they  should  pay  the 
costs  of  the  action,  which  is,  to  nay 
mind,  the  only  question  really  in  dis- 
pute. There  is  a  further  claim  for  dam- 
ages, and.  in  my  opinion,  that  should 
not  be  allowed.  The  form  of  contract 
is  one  which  I  think  should  not  be  en- 
couraged. It  certainly  opens  the  way 
to  fraud.  A  man  is  left  in  possession 
of  an  animal  as  if  it  were  his  own  pro- 
perty; there  is  nothing  to  give  notice 
to  the  penson  with  whom  he  deals  that 
the  animal  does  not  belong  to  him. 
After  he  has  sold  to  a  bona  fide  pur- 
chaser, the  owner  comes  forward  and 
says  to  the  purchaser,  **  It  is  my  horse,'* 
and  he  praoticAlly  claims  the  benefits 
of  a  pledgee  without  having  the  article 
pledged  in  his  possession.  Then,  again, 
m  this  ca<^  it  is  not  perfectly  clear  to 
me  tliat  any  damages  have  been  sus- 
tained. In  any  case,  it  would  ai^)ear  to 
me  that  a  person  who  does  buy  an 
animal  under  circumstances  like  the  pre- 
sent is  entitled  to  require  the  clearest 
proof  that  the  animal  is  not  that  of 
tho  ostensible  owner  before  delivering 
it  back.  That  was  the  position  the  de- 
fondants  took,  and  in  the  present  case, 
on  the  whole,  I  think  that  the  plain- 
tiff should  not  have,  in  addition  to  the 
value  of  the  animal,  and  in  addition  to 
the  costs  of  this  action,  any  damages  for 
detention  of  this  horse.  There  will, 
therefore,  be  iudgment  for  the  plaintiff 
for  costs  of  tnis  action. 


r 


"CA1>E  TIMES**   LAW  ItEPORTS. 


29i 


CHORITZ   V.   SHOOLIIAN. 

This  was  an  action  to  recover  the  Bum 
<A  £300  \»oa  a  certain  acknowledg- 
oMDi  of  debt,  -with  iirterest  a  tempore 
RMte  and  ooeta.  Mr.  Alexiuider  was  for 
the  plaintiff;  the  defendant,  Max  Sfhooi- 
man,  did  not  appear. 

Mr.  Alexander  stated  that  the  defen- 
dant bad  heen  prosecuted  for  forgery 
of  an  alleged  previous  agreement  under 
which  it  waa  eaid  that  plaintiff  agreed 
to  accept  £S0  a  year.  The  defendant 
wa4  admitted  to  bail,  but  on  the  day 
of  the  trial  he  did  not  appear,  and  tM 
bail  bad  been  estreated.  A  warrant  had 
been  issued  for  his  arrest,  but  Sliool- 
man  had  not  been  found. 

John  H.  C.  van  Breda,  clerk  at  the 
Resident  Magistrate's  Court,  Cape  Town, 
prodaoed  the  record  in  the  case  of  Rex 
T.  Sboolman. 

Judgment  was  entered  for  the  plain- 
tiff for  the  amount  claimed,  with  coats. 


ILLIQXnD  ROLL. 


TREDOOLD,  MCINTTRK    AVD  f        190."). 
BISSET  V.  JBPFAKYB.  (  Apr.    18th. 

Dr.  Greer  moved  for  iudgment  under 
rule  329  (d)  for  £54  lOs.  8d.,  balance  due 
for  professional  services  and  moneys  dfis- 
buned,  with  interest  a  tempore  moras 
aod  costa. 

Order  ^ranifced. 


COLLIE  V.  WAONEB  AND  CO. 

Mr.  Swift  moved  for  iudgment  under 
nile  3»  (d)  for  £41,  balance  of  rent 
doe,  with  interest  a  tempore  morce  and 
costs. 

Order  granted. 


JONES  V.  GASn. 


Mr.  Long  moved  for  judgment  under 
rule  329  (d)  for  £31  Is.  3d. 
Order  granted. 


BENDHEm  y.   HIBSCHHOBN. 

Mr.  Swift  moved  for  judgment  under 
rule  329  (d)  for  £157  168.  9d.,  balance 
of  account  for  goods  sold  and  delivered, 
vith  interest  and  ooets. 

Order  granted. 


ABBLU  V,  BUBCHABTH. 

Mr.  Sutton  moved  for  judgment  under 
Tide  329  (d)  for  £97  lOs.,  rent  due  with 
interei^  a  tempore  mora  and  costs. 

Order  granted. 


BATON,  BOBINS  AND  GO.  Y.  ABEBG. 

Mr.  Sutton  moved  for  judgment  under 
Rule  329d. 
Order   granted. 


BOWL  AND  HILL  AND  GO.  T.  LOUW. 

Mr.  Struben  moved  for  judgment  un- 
der Rule  329d  for  £147  176.  2d.,  balance 
of  account  for  goods  sold  and  d^ivered. 

Order  granted. 


NICOLA   V.  FALSE  BAY  QUABBIES. 

Dr.  Greer  moved  for  judgment  under 
Rule  329d  for  £86  178.  lOd.,  for  work 
and  labour  done  and  material  supplied. 

Order  granted. 


GBAUOPHONB  AND    TYPEWBITEB  CO.    V. 
ANDEB80N. 

Mr.  Struben  moved  for  judgment  un- 
der Rule  329d  for  £175  7e.  5d.,  lose  £50 
paid  on  account,  with  interest  a  tempore 
mora,  and  costs. 

Mr.  Alexander  (for  defendant)  ap- 
plied for  a  stay  of  execution,  and  stated 
that  defendant  waa  prepared  to  at  once 
pay  £50  more.  He  bad  outstanding 
debts  in  his  favour  amounting  to  about 
£1,000.  The  defendant  said  that  there 
wsA  only  due  from  hiim  to  plaintiff  £114 
7s.  5d.  The  balance  would  be  paid 
within  one  month. 

Judgment  was  given  for  £125  78.  5d., 
with  costs,  with  etay  of  execution  on  con- 
dition that  the  sum  of  £50  be  paid  before 
4  o'clock,  and  the  balance  and  costs  be 
paid  before  May  20. 


KBUMM  V.  BBOWN. 

Mr.  Douglas  Buchanan  moved  for 
judgment  under  Rule  329d  for  £79,  bal- 
ance of  rent  and  goodwill  and  money 
lent,  with  interest  a  tempore  mora  and 
costs. 

Order  granted. 


WOODSTOCK  MUNICIPALITY  V.  DELMOBE. 

Mr.  Sutton  moved  for  judgment  under 
Rule  329d  for  £143  6e.  8d. 
Order  granted. 


LIBEBMAN  AND  BUIBSKI  V.  ENDIN. 

Dr.  Greer  moved  for  judgment  under 
Rule  329d  for  £150  10s.  4d.,  for  goods 
sold  and  delivered,  with  interest  a  tem- 
pore mora  and  costs. 

Order  granted. 


292 


(( 


CAPE  TIMES"  LAW  ftEPOftTS. 


DEMPKK8    AJND     VAM     KYXEVELD    V. 
BODDE  AND  HtCTOR. 

Dr.  Greer  moved  for  judgment  under 
Rule  329d  for  £139  98.  4d.,  balance  of 
account. 

Order  granted. 


KICK   V.  TANNER. 


Mr.  Roux  moved  for  judgment  under 
Rule  329d  for  £700,  balance  of  purchase 
price  of  certain  land  at  Piquetburg. 

Order  granted. 


MAXWELL  AND  EARP  V.  NEL. 

Mr.  J.  E.  R.  de  Villiera  moved  for 
judgment  under  Rule  329d  for  £201  1^. 
4d.,  for  goods  sold  and  delivered,  with 
interest  a  tempore  mora  and  costs. 

Order  granted. 


ZEKDERBBRO  AND  DUNCAN    V.   LOKTUS. 

Mr.  Douglas  Buchanan  moved 
for  judgment  under  Rule  329d 
for  £47  14s.  6d.,  less  £30  paid 
on  account  for  goods  sold  and  de- 
livered, with  interest  a  tempore  mora, 
and  costs. 

Order  granted. 


PEARSON  V.  WBRNBERO  AND  DSCKBB. 

Mr.  Douglas  Buchanan  moved  for 
judgment  under  Rule  329d  for  transfer 
and  conveyance  of  certain  land  at  Re- 
treat, sold  to  plaintiff  by  the  defendants 
for  £36,  and  in  respect  of  which  £39  lis. 
had  been  paid  by  way  of  purchase  price 
and  transfer  expenses  or,  in  the  alter- 
native, for  cancellation  of  sale  and  re- 
turn of  the  sum  of  £39  lis. 

Order  granted;  transfer  to  be  given 
or  on  before  May  15. 


GENERAL  MOTION. 


/>  parte  VOSLOO. 

Mr.  Roux  moved  for  leave  for  the 
petitioner  to  be  examined  in  Pretoria 
as  an  attorney  and  notary. 

De  Villiers,  C.J.,  said  that  the  Court 
would  grant  a  similar  order  to  that 
given  in  ex  parte  Dirk. 


SUPREME  CUUKT 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maabdobp.] 


TRIAL  CAUSES. 


S.A.  BIBLE  DNION    V.  C08AY 


f        1906. 
•(Apr.   18th. 

Sale  and  purchase — Agent. 

This  was  an  action  for  transfer  of 
certain  premiies.  The  declaration  set 
out  tha.t  the  plaintiff,  Mr.  Pienaar,  was 
the  secretary  of  the  S.A.  Bible  Union, 
Sarah  Oossay,  was  the  defendant,  both  of 
Cape  Town.  Prior  to  and  in  July,  1904, 
certain  negotiations  took  place  between 
the  parties  for  the  purchase  of  certain 
property  belonging  to  the  defendant, 
consisting  of  two  shops  and  six  offices 
in  Churdi-street,  Cape  Town.  The 
plaintiff,  on  the  16th  July,  1904,  offered 
to  purcnase  the  property  for  £8,000, 
subject  to  certain  conditions,  and  subject 
to  the  confirmation  by  the  directors. 
The  defendant  aooepted  the  said  offer, 
subject  to  the  conditions  referred  to. 
and  on  this  understanding  the  property 
was  bought  by  the  plaintiff  in  July. 
The  plaintiff  proposed  to  the  defendant 
certain  terms  as  to  the  payment  of  rates 
and  taxes,  and  as  to  a  certain  dividing 
wall,  and  that  the  purcha«e-price  was  to 
be  paid  on  transfer.  The  defendant  ex- 
pressed dissatisfaction  with  certain  of 
the  conditions,  but  not  as  to  the  purchase 
price  or  to  the  mode  of  transfer.  Plain- 
tiff, on  the  14th  July,  withdrew  and 
waived  all  the  said  conditions,  except 
the  method  of  payment  and  the  mode  of 
transfer.  Plaintiff  was  always  willing 
to  pay  the  purchase-price,  and  all  ex- 
penses of  transfer,  but  defendant  re- 
fused to  transfer  the  property  to  the 
plaintiff.  Plaintiff  had  sustained  dam- 
ages to  the  extent  of  £2,000,  and  claim- 
ed an  order  for  the  transfer  of  the  pro- 
perty. 

The  plea  set  out  that  the  main  condi- 
tion required  by  the  defendant  during 
the  negotiations,  and  which  was  the 
principal  reason  for  the  refusal,  was  that 
part  of  the  purchase-money  should  be 
paid  at  once,  and  before  transfer.  No 
completed  sale  ever  took  place. 

Mr.  Burton  (with  him  Mr.  Van  Z^) 
was  for  the  plaintiff,  and  Mr.  Gardiner 
Twith  him  Mr.  P.  Jones)  was  for  the 
defendant. 

George  Stephman,  broker,  stated  that 
at  the  Qnd  of  1903  he  was  approached  by 
Mrs.  Cosay  with  regard  to  the  sale  of 
certain  property  in  Church-street 
Among  other  people,  he  approached  the 
S.A.  Bible  Union,  and  after  certain  of- 
fers had  been  refused,  on  the  1st  July 
witness      wrote  to   Mr.   Pienaar  saying 


"CAPfi  TIMBS**  LAW  ttE^OtlTS. 


293 


thai  if  £9,000  were  offered  for  the  oro- 
periy,  Mn.  Co6&3r'8  affent  would  inauoe 
Mr  to  MOODt.  On  tEe  5th  July,  Mr. 
Pmdut  nid  thai  the  letter  had  been  laid 
before  the  Financial  Committee,  who 
ooold  Qot  tee  their  way  to  offer  more 
than  £8,000.  On  the  6th  July,  Mr. 
Pienaar  again  wrote,  stating  that  the 
offer  would  be  subject  to  certain  condi- 
tions. On  the  8th  July,  the  defendant 
aeoepted  the  offer,  subject  to  the  condi- 
tions referred  to  being  satisfactory. 
Ihat  letter  was  handed  to  the  secretary 
(rf  the  Bible  Union,  and  witness  was  re- 
quested to  draw  up  a  draft  broker's  note, 
and  lie  was  given  instructions  what  oon- 
ditions  to  insert.  It  wae  set  out  in  the 
note  "that  the  property  was  sold  for 
£8,000,  the  purchaser  to  pay  all  transfer 
expenses,,  and  such  to  be  paid  to  the 
KUer  up  to  the  Ist  August,  all  current 
rates  and  taxes  for  the  current  year  to 
be  paid  to  the  seller,  the  present  dividing 
wall  to  be  built  up^  to  the  roof ;  cash 
against  delivery."  The  note  was  hrnded 
to  the  d^endant's  representative,  who 
r^urned  it  next  day,  saying  that  he  had 
sobmitted  it  to  Mr.  Partridge,  who  was 
holding  Mrs.  Cosay^s  power  ot  attorney, 
and  who  refused  to  accept  the  note,  say- 
ing that  he  could  not  accept  the  condi- 
ticns.  Subsequently,  witness,  with  Mr. 
Pienaar,  went  to  the  office  of  Mr.  Par- 
tridfire.  and  had  an  interview  with  him. 

Mr.  Gardiner  said  if  his  learned  friend 
wss  going  to  i>rove  that  a  contract  was 
made  by  Partridge,  on  Mrs.  Cosay's  be- 
half, he  would  object,  as  that  was  not 
pleaded.  Partridge  had  disappeared,  and 
there  was  no  trace  of  hioL 

[Maasdorp,    J.  :       Tou   will   have   to 

Srove  that  Partridge  was  acting  for 
in,  Oosay.] 

Mr.  Burton  pointed  out  that  at  a  sub- 
■eqiient  stage  Mrs.  Cosay  wrote  saymg 
that  the  conditions  would  have  to  satisfy 
Mr.  Partridge. 

[Maasdorp,  J. :  I  might  allow  an 
amendnMnt  of  the  plea.] 

Mr.  Grardiner  pointed  out  there  was 
no  plea  of  a  venbal  contract  with  Mr. 
Partridge. 

[Maasdorp,  J. :  Hie  questioa  is  whe- 
ther this  contract  made  with  Partridge 
•hould  not  have  pleaded?] 

Mr.  Barton:  We  maintain  that  the 
contract  was  made  by  the  letters  of  the 
16th  July.  The  only  question  is  whether 
thoie  conditions  were  fulfilled. 

[MsMdorp,  J. :  Then  the  question  is 
whether  at  thii»  time  the  conditions  wore 
settled   in    Partridge's    presence.] 

They  were  discussed  with  Partridge, 
and  notification  was  sent  to  the  defen- 
dant for  Partridge's  decision.  Counsel 
applied  to  amend  his  declaration  to 
read  :  *'  The  defendant  either  by  her- 
self or  through  her  agent,  one  Par- 
tridgeu" 

lu".  Gardiner  objected  to  the  smend- 
msot  at  this  stage. 

[Maasdorp,  J. :  I  will  note  your  ob- 
jection.] 


Witness  (proceeding)  said  when  Par- 
tridge came  to  the  item  of  rates  and 
taxes,  he  objected,  stating  that  it  waA 
usual  that  the  purchaser  paid  a  pro  rata 
share.  He  also  objected  to  the  stipula- 
tion as  to  the  leases  and  the  building  up 
of  the  dividing  wall.  Nothing  was  said 
about  cash  against  transfer.  That  was 
the  usual  condition.  Partridge  did  not 
say  that  he  objected  to  the  price.  Wit- 
ness drew  up  another  draft  note.  A 
letter  was  sent  to  the  defendant  from 
the  Bible  Union,  withdrawing  the  condi- 
tions except  the  usucd  one,  cash  against 
delivery,  and  defendant  replied  that  she 
cr.uld  do  nothing  until  Mr.  Partridge 
wan  satisfied. 

Cross-examined  by  Mr.  Gardiner:  He 
was  aware  that  an  offer  of  £10,000  had 
been  made  bv  the  Bible  Union  for  the 
property  in  April.  He  had  heard  that 
Mrs.  dosav  was  anxious  to  have  some 
money  in  hand.  Mr.  Thomas  had  writ- 
ten, asking  £1,000  deposit,  which  would 
mean  before  transfer.  As  a  broker,  he 
could  see  as  time  went  on  that  Mrs. 
Thomas  was  getting  more  anxious  to  get 
the  money.  He  was  positive  that  Par- 
tridge did  not  object  to  cash  against 
transfer.  On  Mrs.  Cosay  acoeptiug  the 
offer  of  £8,000,  he  thought  the  contract 
was  made.  He  drew  up  another  note  to 
see  if  Thomas  would  accept  it.  He 
"vally  did  not  know  among  the  three, 
Mrs.  Cosay,  Thomas,  and  Partridge,  who 
had  the  authority  to  act. 

Bernard  Pienaar,  secretary  of  the 
S.A.  Bible  Union,  stated  that  in  1903  the 
Union  were  anxious  to  buy  certain  pro- 
perty in  Church-street.  Some  time 
about  May  or  June  he  was  approached 
by  the  broker,  Mr.  Stephman.  On  the 
5th  and  6th  July,  witness  offered  £8,000 
subject  to  certain  conditions  being  agreed 
upon,  and  the  defendant  accepted  the 
£0,000,  subject  to  the  conditions  being 
satisfactory.  Thomas  said  that  Par- 
tridge refused  to  allow  Mrs.  Cosay  to 
sign.  Witness  corroborated  the  last  wit- 
ness as  to  what  took  place  before  Mr. 
Partridge  Nothing  was  said  about 
"  oash  against  transfer."  He  said  others 
had  come  up  and  offered  to  buy  the  pro- 
j.erty,  but  he  had  told  them  that  the 
offers  could  not  be  entertained,  as  the 
pi-opertv  was  sold.  While  the  transactions 
about  £8,000  was  going  on  there  was  no 
niention  of  cash  down. 

Cross-examined  by  Mr.  Gardiner:  Mr. 
Partridge  read  the  note  through,  but  did 
not  nuike  any  remark  about  the  condition 
as  to  payment.  Witness  knew  that  Mrs. 
Cosay  was  in  want  of  money  some  time 
before.  He  never  said  to  his  commit- 
tee^  before  Mr.  Thomas,  that  if  they 
waited  they  would  get  it  at  their  own 
price. 

By  the  Court:  Witness  did  not  buy 
the  property;  when  he  met  Mr.  Par- 
tridge, he  only  had  to  report,  but  both 
witness  and  Mr.  Partridge  took  it  that 
the  property  was  purchased. 

Mr.  Burton   closed   his  case. 


2d4 


"CAl*B  TIMES"  LAW  EEPOllTS. 


Regiuald  Meto&lfo,  eolicilor,  in  the 
office  of  Silberbauer,  Wahl  and  Fuller, 
said  Mr.  Thomae  was  in  the  office  for 
some  time,  and  acted  for  Mrs.  Cosay. 

William  Thomas  said  he  was  employed 
by  Mr.  Oosay  as  bookkeeper.  In  June 
of  last  year  he  was  anzioufi  to  get  money 
to  meet  bonds  on  Mrs.  Cosay's  pro- 
perty. On  June  14  he  told  Stephman 
and  PiniwuLT  that  he  wanted  £1,000 
He  could  not  say  that  he  mentioned 
this  later  on,  but  he  several  times  men- 
tioned that  he  wanted  monejr.  Mrs. 
Cfjsay  objected  to  tbo  conJitior*  of  the 
broker's  note.  Witness  attended  a  meet- 
ing of  directors  of  the  Bible  Union,  and 
stated  he  was  instructed  to  object  to  all 
the  conditions.  He  wats  never  author- 
ised to  accept  the  conditions. 

Cross-examined  by  Mr.  Burton :  The 
broker's  note  produced  was  the  second 
note.  The  first  was  a  rough  piece  of 
paper.  The  two  notes  submitted  to  him 
both  contained  the  objectionable  condi- 
tions. He  received  a  letter  on  July  14 
withdrawing  the  objectionable  condi- 
tions. In  July  he  was  negotiating  for  the 
sale  of  the  whole  proijertv,  and  had  an 
offer  of  £20,000.  t>f  the  £20,000  he  con- 
sidered that  tho  portion  of  the  property 
sold  to  the  Bible  Union  represented 
£12,000.  This  was  before  the  accept-ance 
of  the  Bible  Union's  offer.  After  "us- 
ccpting  of  the  oflFcr,  witness  ceased  to  ne- 
gotiate elsewhere.  At  the  present  time, 
Mrs.  Cosay  had  a  better  offer  for  the 
property  by  £500.  This. offer  waa  made 
within  the  last  three  months. 

Sarah  Cosay,  defendant,  said  she  never 
authorised  Mr.  Thomas  or  Mr.  Partridge 
to  conclude  any  sale.  The  main  condi- 
tion was  money  down.  She  wanted 
£2.500. 

CVoss-examined  by  Mr.  Burton :  Wit- 
ness told  Partridge  that  she  must  have 
£1,000  at  once,  out  if  he  could  get 
£2,000,  to  do  so.  Witness  asked  Par- 
tridge to  tell  the  Bible  Union  this.  Wit- 
ness told  Partridge  that  cash  against 
transfer  wa.s  no  good  to  her. 

Mr.  Gardiner  cloned  his  case;  and 
counsel  were  then  heard  dn  argument 
on  the  facts. 

Maasdorp,  J. :  *'  In  this  case  the 
plaintiff  sues  the  defendant  for  the 
transfer  of  a  certain  building,  belong- 
ing to  the  defendant,  which  they  al- 
leged was  purchased  by  them  from  the 
defendant  for  tho  sum  of  £8,000.  The 
defendant  denies  that  any  contract  was 
ever  concluded  between  them,  and  the 
Court  has  now  to  decide  whether  such 
a  contract  of  sale  was  made  between 
the  parties.  It  appears  that  as  early 
as  June,  1904.  there  were  negotiations 
going  on  between  the  plaintiff,  and  the 
defendant,  through  the  medium  of  a 
broker.  Stenhman,  and  at  that 
time  it  was  brought  to  the  knowledge 
of  the  plaintiff  that  it  was  a  mat- 
ter of  some  importance  to  the  defend- 
ant that  she  snould,  if  the  sale  went 
through,  obtain  a  certain  amount  of  the 


purchase  price  on  deposit  forthwith,  and 
that  she  could  not  wait  the  passing'  of 
transfer.  It  was  admitted  by  the  plain- 
tiffs that  at  that  time  they  were  aware 
she  was  pressed  for  money,  and  anxious 
to  obtain  it,  and  with  her  negotiations 
it  was  a  matter  of  importance  that  she 
should  receive  some  cash  payment  at 
once.  However,  no  contract  was  then 
concluded  between  the  parties.  The  ne- 
gotiations went  on  until  the  5th  of  July, 
when  a  letter  was  written  by  the  plain- 
tiff's secretary  to  the  broker  Stephman 
offering  to  purchase  the  property  for 
£8,000.  After  this  letter  was  des- 
patched the  secretary  sent  another  letter 
before  the  terms  contained  in  the  letter 
of  the  5th  could  be  accepted,  and  that 
letter  is  the  important  document  upon 
which  this  case  mainly  turns.  The 
terms  of  the  letter  are  the  following.  It 
is  a  letter  sent  by  Mr.  Pinnaar,  and 
addressed  to  Mr  .  Stephman— "  Advert- 
mg  to  my  letter  of  yesterday  I  have  to 
state  that  my  offer  of  £8,000  is  subject 
to  certain  conditions  to  be  agreed  upon, 
and  same  to  be  confirmed  by  the 
Board  of  Directors  of  the  Bible  Union." 
An  answer  was  sent  to  this  letter  by  the 
defendant  herself,  in  which  she 
accepted  the  offer,  subject  to  the 
conditions  referred  to  being  satisfac- 
tory. Now,  it  is  quite  clear  that  up 
to  the  6th  July  no  agreement  of  sale 
had  been  concluded  between  the  parties, 
but  it  is  also  pretty  clear  that 
in  Mr.  Stephman*s  opinion  sucih  an 
agreement  had  been  concluded,  and  I 
may  almost  say  that  in  the  declaration 
that  oninion  of  his  appears  to  have 
been  adopted,  because  in  the  third  para- 
graph we  have  the  following  words: 
Oil  or  aibout  the  same  day  in  July 
last,  aforesaid,  the  defendant  acoe:^teo 
the  said  offer,  subject  to  the  conditions 
relerred  to  bcnng  saiisfaotory,  and  iix>on 
this  tbe  property  was  sold  by  the  de- 
fendant to  the  plaintiff."  ^  Here  again 
the  plaintiff  seems  to  anticipate  matters, 
because  there  could  be  no  sale  until 
the  agreement  was  concluded,  and  here 
the  position  taken  up  is  that  when  the 
letter  of  acceptance  was  written  on 
the  6th  July  the  agreemnt  was  con- 
cluded. So  far  from  that  bein^  the  case 
it  was  necessary  for  the  ^aintiffs  to  sub- 
mit their  conditions  which  were  to  be 
taken  into  consideration  by  the  defen- 
dant, and  afterwards  to  reject  or  ex- 
press satisfaction  with  them  and  con- 
clude the  sale.  The  conditions  which 
the  plaintifiis  proposed  were  embodied 
in  the  broker's  note,  which  Mr.  Steph- 
man handed  to  Mr.  Thomas,  and  by  him 
the  broker's  note  was  submitted  to  Mr. 
Partridge.     Now,  with  reference  to  the 

risition  of  Mr.  Piartridge  in  this  case, 
have  come  to  this  conclusion,  that  he 
was  empowered  by  the  defendant  to 
carry  on  negotiations,  and  so  far  he  had 
a  limited  power  of  attorney.  He  had  no 
full  powers  to  conclude  an  agreement 
with  the  plaintifiEs  for  the  sale  of  this 


"CAPE  TIMES"  LAW  REPORTS. 


295 


property,  bot  under  the  authoritT  given 
him  he  had  to    refer    back   to   her  for 
iinftl  decisioa.     The  conditions  contained 
in  the  broker*  s   note  were  submitted   to 
Mr.  Partridge,  and,  Mr.  Partridge  hav- 
ing read  thofie  relating  to  the  payment 
of  the  renta  of    the  property,    and   the 
payoient  of  the  rates  and  taxes,  objected 
to  tfaem,  and  some  other  conditions.    At 
the  foot  oC  the  broker's  note  appeared : 
*'Casb  agaiDfit  transfer."     It  is  said  he 
also  read  these  words,  but  did  not  ex- 
press any  objection  to  that     condition, 
bat  it  -was  also  clear    that   he  did  not 
in  so  m^ny    words    accept    that  condi- 
tion. When  Mt.   Pinnaar  left  the  office 
mcttent  wore  in  the  poeition     that  ^  the 
conditions  snbmitted     were     unsatisfao- 
tory  and  Mr.  Pienaar  was  told  that  they 
were  unsatisfaciory   and   would  not   be 
accepted.      Mr.    Partridge     never     told 
Mr.  Pienaar  what  conditons  he  actually 
did  scoept.      After  considering  tiie  mat- 
ter the  plaintiff  decided  to  withdraw  a 
number  of  the  conditions     which  were 
ooDtained  in  this  broker's  note  and  wrote 
a  letter  to  inform  the  defendant  of  this, 
and  I  will  just  point  out  here  that  this 
letter  was  not  written  to  any  agent  but 
direct  to  Sarah  Gosay  and  also  point  out 
that  when  a  letter  passed   between   de- 
fendant  and  plaintiff  it  was   signed  b^ 
S.  Gosay,  acting   for   herself.    In      this 
letter,  written  by  Mr.  Brand,  acting  on 
behalf  of  the  Bible  Union,   they   with- 
drew all  their  conditions,  but  the  letter 
ocRicliides  "The  only  condition  is   oost 
against  traztsfer."    ^  This  is  not  an  im- 
omditional  offer  which  is  merely  subject 
to  the  ordinary  consequences     of  law. 
It  is  said  the  ordinary  consec^uences  of 
law  is  that  cost  would  be  paid  against 
transfer,  but  it  is  here  more  a  condition 
that  thcoe  diould  be  cash  against  trans- 
fer.    After  this  letter  is  written  another 
broker's  note  is  drawn  up.    and  I  presume , 
amonpt  other  things,  this  broker's  note 
contained  the   condition    "cash   agasinst 
transfer."       On   this  second  note  bein? 
submitted    to  Thomas  and     Oosay  ^  the 
offer  was  again    rejected.       Now    it   is 
contended    on    behalf    of    the    plaintiff 
that  the  position  was  this  :      that  the 
sale    for    £8,000    was    concluded      and 
that    no    conditions    existed    to    which 
Mrs.  Oosay  oould  object        To  that  I 
may  say  that  I  consider  this  condition, 
"cash  against  transfer,"    an   important 
one.  and  she  does  object  to  it,  and  did 
directly    after    the    offer    was    submrt- 
ted;    but,   even   if    it    did    not    contain 
aa  exception    when    the    letter    of   the 
6th  July  was  written,  the  position  was 
this— that      the     parties      contemplated 
that    the    bare    sale    for     £8,000     was 
not  sufficient,  but  they  should  meet  and 
consider  as  to  the  terms  of  the  payment 
after  the  parchase  price,  which   was  an 
important  matter,  and  until  they  so  met 
and  considered  their  arrangements  as  to 
the  sale  and   the   purchase     price,     no 
agreement  was  oonoladed.      It  was  sug- 
gested that  the  4efendant  contemplated 


the  axpreement  as  a  concluded  contract, 
and  that  she  only  withdrew  from  it 
when  certain  better  offers  were  made  to 
her,  and  that  sho  did  not  take  up  a  ^m< 
fd€  position  in  the  matter,  birt  merely 
attempted  to  escape  from  what  was  a 
binding  contract.  Now.  there  was  no 
positive  evidence  that  that  was  so,  and 
it  appears  to  me  from  the  correspondence 
itseu  that  the  defendant  did  not  with- 
draw from  the  nep^otiations.  The  posi- 
tion she  took  up  in  the  last  letter  writ- 
ten for  her  by  Mr.  Thomas,  was  that 
the  conditions  put  forward  to  that  date 
were  not  satisfactory,  but  she  did  not 
withdraw  from  the  negotiations,  or  ter- 
minate them,  or  wholly  reject  the  pro- 
visional arrangements  that  she  had  up  to 
that  date  entered  into.  Upon  the  whole 
of  the  correspondence,  and  tlie 
evidence  submitted  I  have  come  to 
the  conclusion  that  the  contract  to  sell 
alleged  in  the  declaration  was  never 
finally  concluded  between  the  parties, 
and  that  the  plaintiffs  are,  therefore, 
not  entitled  to  claim  tranitfer  of  the  pro- 
perty, and  judgment  will  be  given  for 
the  defendant  with  costs. 

[Plaintiff's  Attorney:  P.  M.  Brinck; 
Defendant's  Attorneys :  Silberbaurr, 
Waiil  and  Fuller.] 


MACLEOD  V.  JOUBERT. 

Pleading — Amendment  of  plea — 
Costs. 

This  was  an  argument  on  exceptions, 
the  plaintiff  taking  exception  to  the  de- 
fendant's plea  on  the  grround  that  it 
was  vague,  and  embarrassing  in  law,  in 
that  no  tender  was  made  in  the  prayer 
of  the  plea,  although  made  in  the  body, 
and  that  certain  noting  charges  had 
also  been  included  in  the  tender,  but 
not  in  the  plea,  and,  further,  there 
was  irrelevant  and  argumentative  mat- 
ter in  the  plea.  Mr.  Gardiner  was  for 
the  plaintiff,  and  Dr.  Greer  was  for  the 
defendant. 

Counsel  having  been  heard  in  argu- 
ment, 

Maasdorp,  J. :  An  exception  is  taken 
by  the  plaintiff  in  this  case,  to  the  plea 
of  the  defendant.  It  is  alle^^ed  that 
the  plea  was  vague,  embarrassing,  and 
inconnstent ;  in  that  it  appears  in  one 
part  of  the  plea  that  a  certain  sum  its 
alleged  to  be  tendered  in  respect  of  the 
9aid  debt,  whereas  in  another  i>ortion 
of  the  plea  it  almost  appeam  as  if  that 
debt,  in  respect  of  whicn  the  condition 
is  made,  is  absolutely  denied.  Then  in 
the  plea  the  defendant  prays  that  the 
whole  of  the  plaintiff^s  claim  may  be 
dinniased,  whereas,  as  a  mat;ter  of  fact, 
he  had  already  admitted  liability  for  a 
portion  of  it,  and  tendered  tliat 
portion.  Now,  this  plea  seems  to  mo, 
on  the  face  of  it,  technically  defective 
and  not  very  artistically  drawn,  bi^t  for 


296 


u 


CAPE  TIMES"   LAW  REPORTS. 


my  own  part  I  muftt  admit  I  don't  lee 
there  would  have  been  actually  an  em- 
barrassment to  the  jplaintiff  in  thi£ 
matter.  The  plamtin  would  htLte  set 
about  proving  his  debt  in  the  ordinary 
way.  and  then  the  Court  would  have 
considered  what  the  balance  was  that 
was  due,  and  whether  the  amount  ten- 
dered was  Buffioient.  However,  when 
the  attention  of  the  delendanit  was 
called  to  the  fact  that  the  piea  was  ex- 
cepted to  as  embaTrsAsin^,  be  suffS[eeted 
he  should  be  allowed  to  correct  this  de- 
fect, and  amend  the  plea  so  as  to  be 
a  ^^ood  and  effective  answer  to  the 
plaintiff's  claim.  The  plaintiff  offered 
to  allow  the  amendment  upon  the  pay- 
ment of  all  costs  in  the  matter.  Now, 
it  seems  to  me,  considering  the  whole 
case,  thai  the  exception  is  really  not  a 
vital  matt-er,  and  it  is  a  very  trivial 
matter.  ^  Indeed,  there  could  have  been 
no  special  costs.  I  see  no  grounds  for 
believing  that  there  are  any  special 
costs  attached  to  introducing  this  ex- 
ception in  the  answer  to  the  defen- 
dant's plea,  and  under  all  the  cireum- 
stances  of  this  caae,  I  think  the  amend- 
ment ought  to  have  been  allowed  with- 
out the  raising  of  any  difficulty  at  all 
on  the  part  of  the  plaintiff.  The  Court 
will  now  order  that  the  amendments,  as 
suggested,  be  allowed  in  the  plea,  and 
that  each  party  pay  his  own  costs. 


BBHABILITATIOKS. 


{ 


1905. 
Apr.  18th. 


Mr.  J.  ^  E.  R.  de  Villiers  mored  for 
the  rehabilitation  of  Anna  van  Heerden, 
who  is  the  survivins  spouse  in  respect  of 
the  jodnt  estate  of  her  late  husband  and 
herself.  Three-fifths  of  the  creditors 
consemted  after  the  first  and  final  liqui- 
dation and  dirtribation  of  the  accounts. 

Granted. 

Mr.  J.  E.  R.  de  Villiera  moved  for  the 
rehabilitation  of  Frana  ^  Schoeman, 
whose  estate  was  voluntarily  surren- 
dered on  the  11th  July,  1900.  The  de- 
ficiency was  £322,  and  there  was 
nothing  unfavourable  in  the  trustee's 
report.  The  insolvency  was  due  to  the 
unsettled  condition  of  the  district  du*- 
ing  the   war. 

Granted. 


GENERAL  MOTIONS. 

BGHBBIBER  V.  SCHBEIBBB. 

Mr.  Russell  moved  to  make  absolute 
a  rule  nut  calling  on  the  defendant  to 
restore  conjugal  rights  to  the  plaiotiff 
or  to  show  cause  why  a  decree  (  di- 
vorce, with  forfeiture  of  the  benefits 
of  the  marriage,  should  not  be  granted. 
The  rule  had  been  personally  served  in 
St.  Louis,  U.S.A.,  from  where  the  de- 
fendant sent  a  postcard  to  his  wife,  tell- 
ing her  that  he  had  already  obtained  a 


divorce  there,  and  that  he  was  free 
and  in  a  free  oountry.  He  had  no  ob- 
jection to  forfeiting  the  benefits  of  the 
marriage,  and  he  added :  '*  If  the  house 
still  exists,  give  it  to  your  dear  mother." 
Decree  of  divorce  granted,  with  ccisU ; 
I  a  division  of  the  property  ordered,  with 
leave  to  counsel  to  suggest  someone  to 
divide  the  property. 


Kb  parte   THB   MUNICIPALITT   OP 
PBABSTON. 

Mr.  J.  E.  R.  de  Villien  moved  to 
make  absolute  a  rule  nut  granted  under 
the  Derelict  Lands  Act. 

Rule  made  absolute. 


Ex  parte  DUBHFOBD. 

Mr.  P.  Jones  moved  to  make  absolnte 
a  rule  calling  on  all  persons  to  show 
cause  why  certain  vacant  strips  of  land 
on  certain  property  in  which  title  has 
been  given  to  the  Admiralty  should  not 
be  made  absolute. 

Rule   made   absolute. 


Kx  parte  F0BBB8. 

Mr.  Sutton  moved  to  make  absolute 
a  rule  nwf  granted  under  the  Derelict 
Lands  Act. 

Rule   made   absolute. 


Em  parte  VLkVU, 

Dr.  Greer  moved  for  a  postponement 
of  the  return  day,  as^  the  defendants 
who  were  last  heara  of  in  Russia,  had  not 
yet  been  traced  eo  far  aa  counsel  knew. 

Return  day  extended  until  let  June. 


Ex  parte  B8TXTE  BAVKB. 

Mr.  P.  Jones  moved  to  make  absolute 
a  rule  calling  on  all  persons  to  show 
cause  why  the  Registrar  of  Deeds  should 
not  be  authorised  to  cancel  a  certain 
mortgage  bond. 

Rule  made  absolute. 


Ex  parte  E8TATB  DBVBNISR. 

Mr.  D.  Buchanan  moved  to  make 
absolute  a  rule  for  the  cancellation  of  a 
bond  which  had  not  been  traced 
for  over  twentr  yean. 

Rule  made  absolute. 


Ex  parte  B$>TATB  8TBTDOM. 

Mr.  P.  Jones  moved  to  make  absolute 
a  rule  nut  calling  on  the  Registrar  of 
Deeds,  at  King  William's  Town,  and  all 
pevBone  concerned,  to  ihow  cause  why 


« 


CAPE  TIMES"   LAW  REPORTS. 


297 


truBler  should  not  be  given  of  oertain 
laod  in  the  estate  of  the  late  Johannes 
Stiydom. 
Rale  made    abeolute. 


£je  parte  KSTATE  BROOK. 

Mr.  Close  moved  for  leave  to  realise 
oeztain  property  in  an  estate  in  which 
the  petitioner  was  curator,  the  owner 
having  been  declared  a^  lunatic,  and  wae 
at  present  confined  in  the  Pretoria 
Afiylnm.  It  was  necessary  to  realise 
the  {HToperty  to  maintain  him  and  pay 
certain  debts. 

Granted. 


CLOETE  V.  DIEPBAEM. 

iir.  Upington  moved  to  make  abso- 
late  a  rule  calling*  on  the  respondent 
to  ihow  cause  why  eertam  debts  should 
not  be  attached  in  satisfaction  of  the 
•mount  of  an  award  by  a  judgment  of 
thft  Court. 

Role  made  abeolute. 


Ex  parte  E8TATB  MCCABE. 

Mr.  Close  moved  to  make  absolute  a 
mle  to  have  certain  proof  of  debt  by 
the  insolvent's  son  expunged. 

Bole  made  absolute. 


Ejc  parte  ESTATE  BADENHORST. 

Mr.  P.  Jones  moved  for  leave  to  pass 
transfer  of  oertain  property  to  one  of  the 
oo-exeouton.      The  advertising  and  the 
•lie  were  shown   to  have  heen  satlsfac 
toiy. 

Gcanted. 


Ex  parte  ESTATE  MOBTBRT. 

Mr.  J.  E.  R.  de  Villiers  moved  to 
oiake  absolute  a  rule  calling  on  all  per- 
was  to  show  cause  why  a  oertain  bond 
should  not  be  oanceUecf. 

Granted. 


JACOBS  V.  MILLER  AND  OH  I  AT. 

Mr.  Alexander  moved  to  have  this  case 
reopened  on  the  ground  that  the  appli- 
cants were  unaware  of  the  iprooeedmgs. 
Mr.  Roux  produced  affidavits  to  show 
that  they  must  have  been  aware,  inas- 
much as  they  had  already  instructed  at- 
temeys  in^  the  matter. 

Application  refused  with  costs. 


Ex  parte  KELLY. 

Mr.  Roox  moved  to  make  absolute 
the  esaoeDatioa  of  a  bond  and  for  the 
ntam  of  the  £60  deposited  in  court. 

Order  aa  prayed. 


Ex  parte  ESTATE  VAN  der  WALT. 

Mr.  Sutton  moved  for  an  order  auth- 
orising the  Master  to  pay  out  certain 
moneys  to  the  tutors  of  the  minors. 

The  Master  reported  favourably. 

Order  in  terms  of  the  Master^ s  report. 


Em  parte  RAWLIK8. 

Mr.  Sutton  moved  for  an  order  auth- 
orising the  transfer  of  a  oertain  farm  to 
the  minors,  as  the  surviving  spouae  was 
about  to  remarr^r  and  it  was  to  the  in- 
terest of  the  children  that  this  course 
should  be  adopted. 

The  Master  reoommended  that  the 
petition  be  granted. 

Order  granted  in  terms  of  the  Master's 
report. 


MCNEILAGB  V.  LONDON  AND  LANGABHIBB 
FIRE  ASSURANCE  COMPANY. 

Mr.  Swift  moved  for  leave  to  si^ 
judgment  against  the  plaintiff,  who  had 
been  duly  barred  from  proceeding. 

Granted. 


Ex  parte  dold. 

Mr.  Watermeyer  moved  for  authority 
to  raise  a  loan  in  the  interests  of  the 
minors  under  a  oertain  ante-nuptial 
contract. 

Maasdorp,  J.,  said  he  would  require 
further  information  as  to  the  amount 
required  for  the  education  of  the 
children. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Chief  Justice  (the  Riprht 
Hon.  Sir  J.  H.  de  Villiers,  P.C, 
K.C.M.G.,  LL.D.)] 


DIVORCE. 


CHRIST  V.  CHRIST. 


j         190.). 
(Apr.   19th. 

This  was  an  action  brought  by  Mar- 
gduetha  Elizabeth  Christ,  of  Cape 
Town,  against  her  husband,  John  Christ, 
merchant,  Cape  Town,  for  a  divorce, 
on  the  ground  of  his  alleged  adultery, 
or,  in  the  alternative,  for  a  judicial 
separation,  on  the  ground  of  his  alleged 
cruelty. 


298 


(I 


CAPE  TIMES"   LAW  REPORTS. 


The  plaintiff  in  her  deolaration  said 
that  she  waa  married  to  the  defendant 
in  community  of  property  at  Oape  Town 
in  1877,  and  that  for  several  ^ears  past 
they  had  lived  unhappily,  owing  to  the 
ungovernable  temper  of  the  defendant. 
In  the  latter  part  of  1904  he  struck  her 
on  several  occasions,  and  caused  her 
bodily  hama.  The  plaintiff     also  al- 

leged that  in  November  and  December 
last,  at  Oape  Town,  and  in  January  at 
Muizenberg,  the  defendant  committed 
adultery  with  one  Minnie  Zimmerman. 
He  had  struck  the  plaintiff  with  his 
clenched  fist,  and  threatened  to  do  for 
her,  and  in  consequence  she  had  been 
compelled  to  leave  the  house.  Her 
daughter  had  also  been  compelled  to 
leave  the  house,  owing  to  the  conduct 
of  the  defendant.  Since  January  the 
defendant  had  contributed  nothing  to- 
wards their  support.  Plaintiff  orayed 
for  a  decree  of  divorce  against  tne  de- 
fendant, or,  alternatively,  for  a  judicial 
separation  a  mensa  et  thoro^  division  of 
the  joint  estate,  pa3mient  of  a  sum  of 
money  by  way  of  alimony,  alternative 
relief,  and  oosts  of  suit. 

The  defendant,  in  his  plea,  denied  the 
allegations  of  cruelty,  and  said  that  the 
differences  were  solely  due  to  the  plain- 
tiff  being  unhappily  addicted  to  intem- 
perance. He  denied  that  he  had  neg- 
lected to  maintain  or  support  tM 
plaintiff  or  his  daughter,  and  said  that 
both  left  of  their  own  accord.  He  said 
that  his  house  was  always  open  to  them, 
and  that  if  they  returned  to  him.  he 
Hras  prepared  to  receive  them  ana  sup- 
port them  as  hitherto.  He  also  denied 
the  allegations  of  adultery,  and  prayed 
that  the  claim  be  dismissed,  with  costs. 
The  replication  was  general. 
Dr.  Greer  was  for  the  plaintiff;  Mr. 
Burton  (with  him  Mr.  Douglas 
Buchanan)   was  for  the  defendant. 

Dr.  J.  B.  Lester  said  that  he  had  been 
attending  the  plaintiff  during  the  past 
week.  He  saw  so  signs  of  intemper- 
ance or  any  indications  that  she  was 
addicted  to  drink.  He  formerly  at- 
tended Mrs.  Christ,  when  her  condi- 
tion mipfht  have  been  the  result  of  ex- 
cessive indulgence  in  drink.  Tha.i  was 
about  four  or  five  years  ago.  She  was 
in  a  ver^  nervous  condition,  and  was 
very  irritable. 

Mar^aretha  Elisabeth  Christ  (the  plain- 
tiff) said  she  was  married  to  the  defen- 
dant in  October,  1877.  After  the  mar- 
riage they  lived  happily  for  a  few 
years.  Then  the  defendant  started 
carrying  on  with  the  coloured  grirls; 
witness  remonstrated,  and  defendant  re- 
torted that  she  wias  jealous.  Defendant 
was  very  cruel  towards  her,  and  some- 
times struck  her.  Last  November 
Minnie  Zimmerman  oame  to  stay  at 
their  house,  a  letter  of  invitation  hav- 
ing been  sent  to  her  by  witness's 
daughter  at  her  husband's  request.  Wit- 
ness saw  the  defendant  take  the  girl 
into  his  room  an4  look  the  door.      Wit- 


ness had    seen   her  sitting  on  his   kp, 
and  had  aJso  seen  them    kiann^    each 
other.      This  was  protested  against    bj 
witness.       She  told  defendant   that     it 
waa  indecent  to  behave  in  such  a  oun- 
ner.        Defendant   told   her  that  if  she 
clid  not  shut   up,   he  would  give  her   a 
good     sjamboking.      One  day    the  de- 
jfeudant  danced  against  her,  and  when 
she  told  him  to  mind  where   he     was 
I    going,  he  struck  her  on  the  nose.      Wit- 
<    ness's  daughter  complained  that     Miss 
I    Zimmerman  waa  not  fit     company     for 
her.      Her  father  told  her  that  he  was 
I    going  to   have   Miss      Zimmerman     at 
the  house,  and  that  she  must  dear  out 
if  she  did   not  like  it.       Her  daughter 
left   the   house,    and  had  since  be^   in 
service  at  Worcester.       The    defendant 
told  witness  that  he  would  not  supoort 
her.      He  had  threatened  to  shoot  her* 
and    had  kept  a  six-ohambered    revolYer 
in  his  room.       She  left  the  house   the 
following  morning,   about  ^  the       14th 
January,   because  ahe  considered     that 
her  life  was  in  danger.      Witness     had 
since   had  a  quantity  of  her     clothmg 
returned  to  hOT,  but  the  defendant  still 
retained  her     jewels.        It  was  imtme 
to  say  that  her  husband  treated      Miss 
Zimmerman  as  a  child.      She  was  over 
twentv  years  of  age.      Witness  had  told 
the    defendant  that  Miss     Zimmeixnaa 
was  more  his  wife  than  she     (witness) 
was.        Witness  oommenoed  an     action 
against  her  husband  four  yeans  ago,  but, 
at  the   request  of  the  defendant,      she 
withdrew  the  proceedings,  and  her  hus- 
band paid     all  the  cosrts.       She  denied 
the  charges  of  intemperance,     and  said 
that  she  was  suffering  trpm    nerrousnees 
in  consequence  of  the  defendant's  cruel 
treatment  of  her. 

Ooss-ezamined  by  Mr.  Burton:  Wit- 
ness  had  formerly  taken  beer,  like  any 
German  would,  but  she  denied  that  she 
had  taken  drink  to  excess.  She  denied 
that  she  had  got  drunk  and  used  abusive 
language  to  all  and  sundry,  and  thrown 
things  about.  Her  husband  twice  went 
with  her  to  Europe,  but  she  denied  that 
it  was  so  that  she  should 
undergo        treatment  on      aocoimt 

of  her  intemperate  habits.  Miss 
Zimmerman  and  witness's  daughter 
had  attended  the  Convent  School  to- 
gether, but  witness  had  not  encouraged 
th;)  former  to  visit  the  house.  Her  hus- 
band always  objected  to  their  keeping 
company  with  Germans.  Tbe^  ^^^ 
scarcely  anv  Germans  visiting  with 
them ;  her  nusband  always  wanted  Eng- 
lish friends.  Miss  Zimmerman  wa£  an 
orphan.  It  was  not  true  that  she  had 
regularly  called  witness  and  her  hus- 
bfend  "Mammy"  and  "Daddy."  Miss 
Zimmerman  had  not  been  in  the  habit 
of  taking  wine,  but  had  taken  whisky, 
because  wine  was  not  strong  enough  for 
her.  One  day,  while  they  were  at 
Muizenberg,  Miss  Zinmierman  got  drunk, 
and  was  lying  on  the  sands  in  an  inde- 
cent  state.       Witness   did   not   see  that 


"CAPE  TIMES"   LAW  REPORTS. 


299 


incident,  bat  she  -was  told  about  it  by 
ber  (Uughter.  Witness  had  practically 
been  a  prisoner  for  three  years.  Shortly 
liter  she  left  the  house  in  January,  the 
defendant  refused  to  let  her  have  her 
dotbes  and  jewellery. 

Bertha  Caroline  Christ  (20),  daughtor 
oi  the  partico,  said  that  sho  had  »een 
Miss  Zimmerman,  who  was  about  her 
own  age^  on  her  father's  kiieo,  and  she 
had  seen  him  kissing  her.  Miss  Zim- 
memian  had  alfio  gone  to  her  father^s 
room,  but  she  had  told  witness  that  she 
had  only  gone  there  to  have  a  drink. 
Miss  ZimmernMui  and  witness  shared  one 
room,  and  witness  had  had  occasion  to 
complain  about  her  father  coming  into 
the  room  in  the  morning  before  they 
were  dressed.  They  had  a  bathing-house 
as  Muizenberg.  containing  two  compart- 
ments. A  stock  of  liquors  was  kept  in 
both  compartments.  Her  father  entered 
tbd  box  just  after  Miss  Zimmerman  and 
witness  bad  been  bathing.  Miss  Zim- 
merman had  called  out  to  her  father, 
and  said  that  she  was  oold,  and  he  then 
came  in  and  got  her  a  drink  of  whiskv. 
Witness  objected,  and  her  father  told 
Iwr  that  she  must  shut  up,  or  he  would 
do  something  to  her.  Witness  also  stat- 
ed that  her  father  had  treated  her 
mother  cruelly,  and  had  used  violence  to- 
wards her.  Her  mother  was  not,  to  her 
knowledge,  of  intemperate   habits. 

Cross-examined  h^  Mr.  Burton:  Miss 
Zimmerman  had  often  visited  her  par- 
ents, and  had  occupied  the  same  room  as 
witness,  and,  in  fact,  had  been  treated 
as  a  member  of  the  family.  It  was  un- 
true that  her  mother  had  been  addicted 
to  liquor  at  any  time.  There  had  long 
been  unhappineas  between  her  parents. 
Witness  had  always  taken  the  side  of 
her  mother,  while  her  elder  sister  had 
always  taken  her  father's  side. 

Charles  Hanna,  of  the  Central  House 
Private  Hotel,  said  that  the  plaintiff  had 
been  staying  at  the  house  a  little  over 
two  months.  He  had  never  seen  her 
under  the  influence  of  drink. 

De  ViUiers,  C.J.,  said  that  it  did  not 
seem  to  him  that  the  evidence  was 
strong  enough  to  support  the  charge  of 
adultery. 

Dr.  Greer  said  that  in  that  case  he 
would  rely  on  the  alternative  prayer  of  a 
judicial  separation  a  men$a  et  ihoro. 

Evidence  was  called  for  the  defence. 

Dr.  S.  P.  Impej  said  that  he  attended 
the  plaintiff  in  1901,  and  found  that  she 
was  suffering  from  the  effects  of  intem- 
perance. Sl^  undoubtedly  had  a  crav- 
ing  for  drink,  and  was  suffering  from 
dipsomania.  He  considered  that  the 
defendant  was  indulgent  towards  her. 
Ht)  thought  the  drink  habit  might  have 
been  oavned,  but  not  aggravated  by 
cruel  treatment  Witness  thought  that, 
in  addition  to  liquor,  the  plaintiff  must 
have  been  addicted  to  a  drug,  probably 
morphia.  He  had  noticed  that  she  pre- 
▼ariottted  a  good  deal.  The  first  symp- 
tom of  morphia  was  untruthtulnese. 
Plaintiff  made  many  charges  against  her 

W 


husband,  but,  knowing  the  circumstances, 
witness  did  not  believe  the  allegations. 
Witness  had  occasionally  prescribed  mor- 
phia for  plaintiff  for  dyspepsia,  but  Mrs. 
Christ  had  had  the  medicnie  repeated 
without  authority. 

Cross-examined :  Witness  spoke  very 
strongly  to  plaintiff  about  the  morphia. 
She  said  she  must  have  something,  and 
witneM  prescribed  a  medicine  for  her  to 
do  away  with  the  craving.  When  wit- 
ness saw  her  last  in  1901,  she  was  not 
under  the  influenco  of  morphia. 

John  Christ  (the  defendant),  said  that 
his  wife  left  him  in  January  last.  There 
was  trouble  owing  to  witness's  daughter 
complaining  of  her  mother's  ill-treat- 
ment, while  his  wife  complained  of  the 
daughter.  Witness  saw  it  was  better  for 
one  to  leave.  His  daughter  left  some 
days  later;  witness  returned  from  busi- 
ness, and  found  his  wife  had  gone.  He 
denied  that  he  had  ill-treated  his  wife, 
or  that  he  had  been  intimate  with  Miss 
Zimmerman.  He  had  kissed  her — "  like 
he  would  a  child."  Witness  had  never 
taken  the  girl  into  a  room,  and  closed 
the  door.  He  had  taken  her  into  a  room 
two  or  three  times  to  give  her  a  drop 
of  wine  or  whisky,  but  had  not  closed 
the  door. 

[De  Villiers,  C.J. :  How  old  is  Miss 
Zimmerman  ?] 

Twenty. 

And  you  are? 

Fifty-three. 

And  you  thought  it  a  right  thing  to 
do  to  take  a  young  girl  into  your  room 
and   give  her  whisky? 

I  didn't  think  much  of  it.  Perhaps  I 
did  wrong  in  thalt  way. 

Referring  to  the  bathing-house  inci- 
dent, the  witness  said  his  daughter  called 
to  him  from  the  bathing-house  to  go  in 
and  dry  Miss  Zimmerman's  hair. 

[De  Villiers,  C.J. :  Spare  your 
daughter.] 

I  must  tell  the  truth. 

[De  Villiers,  C.  J. :  Your  daughter 
called  you  in,  you  say.  Very  in^^edd- 
ble.] 

Witness  said  he  opened  the  door,  and 
Minnie  called  out,      ''No;  don't     come 


in. 


[De  Villiers,  C.J. :  It  is  nonsense. 
What  could  a  daughter's  object  be  in 
telling  her  father  to  do  such  a  thing?] 

Witness  denied  the  ^  allegations  of 
cruelty,  and  said  his  wife  was  verv  jea- 
lous, especially  when  under  the  inffuenoe 
of  drugs  and  liquor.  She  used  to  abuse 
the  children.  If  the  houses  were  all 
occupied,  the  r^nts  would  amount  to 
£95  a  month,  but  he  was  drawing  only 
£65  rent  a  month  from  Uie  properties, 
and  he  had  to  pay  5  per  oent.  interest 
on  loans.  The  interest  came  to  £760, 
and  he  had  to  pay  £220  for  rates  and 
insurancci    The  property  could   not,   at 

E resent,  be  realised  to  advantage.  He 
ad  done  practically  no  work  for  nine 
or  ten  months  as  a  painter  and  decora- 
tor. The  utmost  witness  could  paj  to 
his  wife  was  £10  a  month.      He  wished 


300 


"CAPE  TIMES"   LAW  REPORTS. 


to  keep  the  boys,  who,  he  believed 
sided  with  him  in  the  matter.  He  was 
willing  to  take  his  wife  and  daughter 
back.  .         . 

By  Dr.  Greer:  His  daughter  objected 
to  Miss  Zimmerman  coming  there,  aiid 
witness  told  her  if  she  objected  he  would 
stop  young  men  coming  to  the  house. 
She  then  said  she  would  go,  and  witness 
told  her  she  could  do  as  she  pleased. 
That  was  not,  however,  the  reason 
why  she  left, 

Minnie  Zimmerman  was  called,  and 
denied  the  charges  of  misconduct. 

Llewellyn  Henry  Robe.rts,  son-in-law 
of  the  i>artie«,  said  that  he  had  known 
the  parties  for  six  years,  and  he  thought 
the  unhappy  relations  were  entirely  due 
to  Mrs.  Christ's  craving.  She  was 
very  abusive  at  times.  Witness  had  of- 
ten been  surprised  at  the  defendant  con- 
trolling his  temper  when  his  wife  pro- 
voked him. 

Mr.  Burton  closed  his  case,  and  coun- 
sel were  heard  in  argument  on  the  facts. 
De  Villiers,  C.J.,  remarked  that  he  was 
not  inclined  to  order  any  division  of  the 
property.     For  the  sake  of  the  lady  her- 
self,  it  would   be  far  better  for   her  to 
get  a  fixed  allowance,  which  should  not 
be  too  great.      He  did  not  think     such 
cruelty  had  been  proved  as  would  justify 
the  Court  in  giving  a  decree  if  there  had 
been  any  real  opposition,  but  the  defen- 
dant himself  recognised  that  it  w^ould  be 
impossible  for  himself  and   his   wife   to 
come  together  again.      At  the  same  time, 
he  considered  that  the  defendant's  con- 
duct had  been  very  improper,     very  in- 
decent,   and   very       immodest   with    the 
young  girl  Zimmerman,  whom  he  ought 
to  have  protected,  and  he  was  inclined 
to  order  defendant  to  pay  all  costs. 
After  hearing  Mr.  Burton, 
The  Court  granted  a  decree  of  separa- 
tion, with  costs,  the  plaintiff  to  have  the 
custody  oi  the  daughter  Bertha,     It  was 
also   ordered    that,   pending      a   further 
order  of  Court,  on      the  application    of 
either  party,  the  defendant  should     pay 
to  the  plaintiff  the  monthly  sum  of  £14, 
for  the  support  and  maintenance  of  her- 
self  and   daughter   during  the   minority 
of   the    daughter,   and.   after      that,      a 
monthly  sum  of  £10,  defendant  to  keep 
accounts  of  his  income  and  expenditure 
until   a  final  division      of  the  property 
should  take  place,  and  to  hand  over  to 
the  plaintiff  forthwith   all  her  jewellery 
and  personal  belongings. 


HiLIQUID  CASE. 


SMUTS  V.  BBITTON. 


Mr.  Rowson  moved  for  judgment,  un- 
der rule  329d,  for  £37  10?.,  for  rent. 
Order  granted  as  prayed. 


[Before  the  Hon.  Mr.  Justice  Ma  asdobp.] 


GENERAL  MOTIONS. 


JKp  parte  JOSEPH. 


I 


1905. 


Apr.   19th. 


Dr.  Greer  (on  behalf  of  the  respondent, 
the  husband  of  the  petitioner)  moved 
for  the  rule  nUi  temporarily  interdict- 
ing certain  moneys  lying  to  the  re- 
spondent's credit  in  the  Post  Office  Sav- 
ings Bank  to  be  discharged.  The  peti- 
tioner, in  her  original  application,  said 
that  she  intended  to  institute  an  action 
forthwith  for  judicial  separation,  but 
had   failed  to  institute  proceedings. 

Rule  discharged. 


Ex  parte  estate  black. 

Mr.  Watermeyer,  on  behalf  of  the 
executors  testamentary  under  the  will, 
Sarah  Black  and  William  Runciman, 
moved  for  an  order  authorising  the  re- 
payment of  a  certain  loan  of  £700,  and 
to  advance  further  sums  out  of  the  capi- 
tal. 

Maasdorp,  J.,  said  that  the  application 
could  not  be  made  without  John  M 
Black,  onQ  of  the  heirs,  being  a  party. 
He  must  receive  notice  of  the  applica- 
tion. 


BOTHA  V.  BOTHA. 

This  was  an  application  for  attach- 
ment of  the  respondent  for  contempt  of 
Court,  in  not  obeying  an  order  to  pay 
alimony  to  the   plaintiff. 

Mr.  J.  E.  R.  de  Villiers  was  for  the 
applicant     Respondent  did  not  appear. 

The  matter  was  ordered  to  stand  over 
on  account  of  an  affidavit  having  been 
filed  for  respondent  to  the  effect  that 
there  had  been  a  reconciliation. 


8BALE  V.  DOOVEY. 

Mr.  Upington  moved  for  the  referee's 
report  to  be  made  rule  of  Court. 

Mr.  Roux  (for  the  respondent)  ureed 
that,  as  the  matter  originally  came  oe- 
fore  Mr.  Justice  Hopley,  it  would  bo  in 
the  interests  of  all  concerned  that  the 
present  matter  should  come  before  Mr. 
Justice  Hopley. 

Mr.  Upington  submitted  that  th© 
matter  was  one  that  might  properly  be 
dealt  with  by  the  Court  at  present,  and 
he  called  attention  to  the  terms  oi  the 
reference.  The  dispute,  it  seemed,  re- 
lated to  the  erection  by  the  plaintiflT  of 
certain  shops  and  tenements  in  the  dis- 
trict of  the  Woodstock  Municipality,  at 
the  contract  price  of  £1,650.  Certain 
difficulties  occurred  during  the  progress 
of  the  building  operations  between   the 


<l 


CAPE  TIMES"   LAW  REPORTS. 


801 


bnildor  and  the  Mununpality.  The  re- 
port of  the  referee  showed  that  he  found 
ihftt  there  was  a  balance  due  to  the  plain- 
tiff of  £191  18s.  5d.,  the  defendant  hav- 
ing  tendered    £68   odd. 

Ifr.  Roux  read  an  affidavit  by  the  de- 
fendsnt*8  attorney,  who  submitted  that 
the  referee  had  placed  a  construction 
upoD  th^  contract  that  was  contrary  to 
law.  That  was  in  reference  to  the 
fcundstioDs  and  excayations.  He  sub- 
mitted that  the  award  should  be  reduced 
accordingly,  or  returned  to  the  referee. 
The  amount  allowed  by  the  referee  for 
the  ezcayations  and  foundations  was 
£2M. 

Maaidorp,  J.,  said  that  he  thought 
Mr.  Justice  Hopley  would  shortly  be 
hack  from  the  Circuvt  Courts,  and  in 
the  meantime  he  considered  that  it  would 
he  better  to  allow  the  matter  to  stand 
OTer,  to  he  mentioned  to  Mr.  Justice 
Hopley  apoD  bis  return. 


8CHEBIFBR  V.  BCRRBIFEB. 

Mr.  Russell  applied  for  the  appoint- 
ment of  Mr.  W.  A.  Currey,  of  the 
General  Estate  and  Orphan  Chamber, 
to  act  in  the  diyision  of  tne  joint  estate. 

Order  granted. 


Er  parte  OBE8LBY. 

Dr.  Greer  moved,  on  behalf  of  peti- 
tioner, as  executor  in  the  estate  of 
George  Bolton,  for  an  order  directing 
the  Master  to  accept  a  certain  distribu- 
tion account  and  file  the  same.  It  was 
stated  that  there  had  been  a  second 
marriage  by  Bolton.  The  first  wife  had 
not  been  heard  of  for  a  period  of  twenty- 
five  years,  and  her  death  had  been  pre- 
somed. 
Order  granted  as  prayed. 


Eg  parte  ESTATE  ALBERTRB. 

Mr.  Rouell  moved  for  leave  to  trans- 
fer certain  property  to  an  executor. 
Massdorp,  J.,  said  that  notice  must  be 

S'yen   to   the   usufructuary,   Magdalena 
liiaheth  Botha,  and  the  mat^ter  would 
therefore  stand  over. 


ffx  parte  M abbrt. 

Mr.  J.  E.  R.  de  Villieri  moved  for 
leave  to  aell  certain  property  in  the  estate 
of  petitioner  and  her  late  hu!A>and,  and 
to  appiy  the  proceeds  to  the  purchase  cl 
aoother  properW. 

Order  gnmtea  authorising  the  sale,  the 
proceeds  to  be  devoted  to  the  purchase 
of  a  property,  to  be  regietered  in  the 
name*  of  the  children, 


Ex  parte  D.S.  OHURCH,  jamestown. 

Mr.  Roux  moved,  on  behalf  of  the  pe- 
titioner, the  minister  of  the  Dutch  Re- 
form Church,  Jamestown,  in  the  district 
)f  Aliwal  North,  for  an  order  calling 
jpon  the  High  Sheriff  to  pay  £1  28.  6a. 
for  each  of  certain  erven  set  out  in  the 
schedule,  or  altogether  a  sum  of  £25 
I7s.  6d.  The  erven,  according  to  the 
affidavit,  bore  by  the  original  conditions 
<»f  sale  an  annual  tax  of  Ss.  in  favour 
of  the  D.R.  Church  at  Jamestown,  and 
four  and  a  half  yea»'  taxes  were  claimed 
It  appeared  that  the  land  had  been  at- 
tached by  the  Divisional  Council  by 
reason  of  the  non-payment  of  rates,  that 
the  High  Sheriff  tiad  held  a  sale,  and 
that  a  certain  sum  of  £160  remained 
unclaimed  in  his  hands. 

Maasdorp,  J.,  said  notice  of  the  ap- 
plioation  should  be  served  upon  the 
Sheriff,  so  that  he  might  be  a  con- 
senting party.  The  matter  would  stand 
over  pending  a  reFK>rt  from  the  Sheriff, 
and  then  the  quesiion  might  arise  as  to 
whether  a  rule  nisi  should  be  issued. 
Perhaps  under  all  the  circumstances  it 
would  be  beet  to  give  a  rule  nisi  now  to 
avoid  further  costs.  The  order  of  the 
Court,  therefore,  would  be  that  a  rule 
nisi  be  issued  calling  upon  all  parties  in- 
terested in  the  properties  mentioned  to 
show  cause  why  the  sums  claimed  by  the 
applicant  should  not  be  paid  out  of  the 
proceeds  in  the  hands  of  the  Sheriff, 
notioe  to  be  served  on  the  Sheriff,  and 
rule  to  be  ]3iiblished  once  in  a  newspaper 
circulating  in  Jamestown  and  to  be  re- 
turnable on  the  13th  May. 

PoHea  (May  15th).  The  rule  was  made 
absolute. 


Ex  parte  BTROBEL. 

Mr.  Douglas  Buchanan  moved,  on  be- 
half of  petitioner,  acting  as  father  and 
natural  guardian  of  his  minor  son.  for 
leave  to  raise  a  further  sum  of  £250  to 
complete  the  erection  of  a  dwelling- 
house.  Leave  had  already  been  given 
to  bond  the  property  to  the  extent  of 
£250,  so  that  the  property,  if  the  pre- 
sent application  were  gpranted,  woula  be 
mortgaged  in  the  sum  of  £500.  The 
Divisional  Council's  valuation  was  £600. 

Maasdorp,  J.,  said  that  if  the  order 
were  granted  in  the  present  form  of 
the  application,  the  minor  might  be 
saddled  with  a  good  deal^  of  interest.  He 
would  take  time  to  consider  the  form  in 
which   he   would  grant  the  order. 

PoHea  (March  20th).  Leave  granted 
as  prayed. 


OARLTOK  V.  THOMPflOH. 

Mr.  Uprngton  moved  for  an  award  of 
arbitrator  to  be  made  a  rule  of  Court. 
The  dispute  related  to  a  lift  in  premises 
belonging  to  the  applicant.  The  arbitra- 
tor found  for  Mr.   Thompson   for  £157, 


302 


'CAPE  TIMES"   LAW  REPORTS. 


but  ordered  him  to  refund   £500  to  the 
applicant,    and  directed  the   respondent 
to  pay  the  coets  of  the  arbitration. 
Order  made  rule  of  Court,  with  costs. 


SECOND    DIVISION. 


RATNER,  CAWOOD  AND  00.  V.  NORVAL. 

Mr.  P.  S.  T.  Jones  moved  for  the  at- 
tachment of  certain  property  situate  in 
Coteeberar  ad  fundandam  jurisdirtionem, 
and  for  leave  to  sue  the  respondent  by 
edictal  citation  for  £48  ISs.  7d.  De- 
fendant was  residing  in  the  Orange 
River  Colony. 

Order  granted  for  the  attachment  of 
the  property  as  prayed,  and  leave  grant- 
ed to  sue  by  edictal  citation,  citation  to 
be  served  personally,  and  to  be  return- 
able on  the  1st  June. 


Ex  parte  NBSER. 

Mr.  M.  Bisset  moved  for  the  appoint- 
ment of  Mr.  Thomas  Percy  Dawson  as 
sole  trustee  in  the  insolvent  estate  of 
Simon  Solomon.  Petitioner  said  that 
he  was  a  creditor  against  Solomon's 
estate  upon  a  promissory  note  for 
£1.000. 

Order  granted,  appointing  Mr.  Daw- 
son as  provisional  trustee,  with  full 
powers  of  a  trustee  to  administer  the 
estate. 


Ex  parte  marais  and  wife. 

Mr.  P.  S.  T.  Jones  moved  for  leave  to 
sell  certain  proijerty.  The  matter,  he 
said,  had  previously  been  before  the 
Court,  and  had  been  ordered  to  stand 
over  pending  further  information.  The 
petitioners  were  married  by  ante-nuptial 
contract,  under  which  certain  settle- 
ments were  made,  certain  of  the  pro- 
perty was  mortgaged,  and  there  were 
sundry  other  liabilities.  One  Van 
Ardtt  also  had  a  life  interest  in  the  pro- 
perty. The  whole  estate  was  in  a  most 
complicated  and  involved  state.  Coun- 
sel stated  that  the  further  information 
required  by  the  Court  had  now  been  fur- 
nished. ,        ,    .  -  . 

Maasdorp,  J.,  said  that,  before  makmg 
an  order,  he  would  like  to  read  the 
papers  in  the  matter. 

Postea  (May  5th).  Lease  errantod  t<> 
sell  the  property  at  not  less  than  £2  per 
morgen. 


ILLIQUID  ROLL. 


JAGOBSOHN  V.  0RB9BE. 

Mr.  Van  Zyl  moved  for  judgment, 
under  Rule  329d,  for  £163  18s.  6d.,  bal- 
ance of  account  for  goods  sold  and  de- 
liverod,  with  interest  a  tempore  morae 
and  costs. 

Order  granted. 


[Before  the  Hon.  Sir  John  Buchanan.] 


1905. 
Apr.   19th. 


TRIAL  CAUSE. 

PARRY     V.     LANG     AND      f 
ANOTHER.  ( 

Sale  and  purchase — Brokerage 
Rectincation    of    contract— 
Misjoinder  of  parties. 

This  was  an  action  to-  recover  £86  for 
brokerage  in  respect  of  a  transaction  in 
connection  with  the  sale  of  the  Trans- 
vaal Hotel,  Sir  Lowry-road. 

The  declaration  set  out  that  the  plain- 
tiff was  a  broker,  of  Cape  Town,  the  first 
defendant  until  recently  a  licensed  vic- 
tualler, and  the  second  defendant,    who 
had  been  originally  joined  as  co-defend- 
ant,   was   also   a   licensed    victualler    of 
Cape   Town.      The   first-named   defend- 
ant employed  the  plaintiff  to  find  a  pur- 
chaser, and  in  January,  1905,  the  first- 
named  defendant  sold  the  goodwill  and 
fixtures  of  the  Transvaal  Hotel  through 
the  instrumentality  of  the  plaintiff  to  the 
second   defendant   for   £3,000.       One  of 
th«  conditions  was  that  the  first-named 
defendant  should   pay  the  plaintiff   £85 
for  brokerage.      Inadvertently,  the  words 
the  "purchaser  to  pay  the  brokerage" 
instead  of  *^  vendor  to  pay  brokerage " 
appeared     in     the     note,    and   plaintiff 
claimed    a   rectification   of   the   note    so 
that  the  vendor  should  pay  the  brokerage. 
In  February,  1905,  the  plaintiff  obtained 
a  rule  niH,  acting  as  an  interim  interdict 
against  both  defendants,  and  he  claimed 
against   Lang   £85    brokerage,    with    in- 
terest and  costs  of  suit. 

The  plea  set  out  that  the  plaintiff 
introduced  two  likely  purchasers  in  Gina- 
berg  and  Kanterowitz.  The  defendAnt 
denied  that  he  ever  instructed  plaintiff 
to  find  a  purchaser,  or  that  the  saJe  to 
Moore,  the  second  defendant,  was  effect- 
ed through  him.  The  first  defendant 
signed  the  note,  but  informed  the  plain- 
tiff that  he  did  not  effect  the  sale.  The 
defendant  denied  that  through  inadvert- 
ence the  words  were  put  in  the  note, 

Mr.  Alexander  for  the  jplaintiff,  and 
Mr.  Searle,  K.C.  (with  him  Mr.  Gar- 
diner) was  for  the  defendants. 

Edwin  Parry,  broker,  said  he  had 
known  Lang  for  upwards  of  two  years. 
When  he  know  him  first  defendant  was 
concerned  in  the  sale  of  an  hotel  at  Ro- 
bertson for  a  friend  of  Lang's. 

The  defendant  asked  him  in  March, 
1903,  to  call  at  the  hotel  to  see  if  a 
sale  could  be  put  through,  and  witness 
said  the  price  of  £6,000  for  the  Trans- 
vaal Hotel  was  too  much.  Lang  sub- 
sequently said  Josephs  had  put  through 
the  sale.  Moore  was  the  last  purchaser 
he  introduced.      That  was  in  December 


"CAPE  TIMES"  LAW  BEPORTS. 


803 


lA»t.  lu  the  cabo  of  Kaiiterowitz,  brok- 
er ti  notes  w€re  actually  made  out.  Ac- 
cording to  these  Lang  had  to  pay  the 
brokerd^e.  The  sale  was  announced 
to  Lang's  principal  creditors,  and  a 
meeting  was  h«ld  at  Messrs.  Logan's  of- 
fice, at  which  Lang  was  present.  It  was 
then  found  that  Lang's  statements  re- 
garding loans  were  incorrect.  Kanteru- 
witz  was  prepared  and  anxious  to  carry 
the  sale  through  if  Lang's  representa- 
tions had  been  correct.  Witness  after- 
wards told  Lang  he  had  another  pur- 
chaser, and  about  December  23  he  in- 
troduced Mr.  Moore  to  Lang  and  to  Mr. 
Ancbutz,  the  manager  of  Sedgwick's. 
It  was  arranged  that  Mr.  Moore  should 
interview  the  creditors,  and  that  gen- 
tleman showed  witness  a  written  option 
he  had  obtained  from  Lang.  There  was 
a  difficulty  in  the  matter  of  finance,  but 
witness  got  two  of  the  firms  to  transfer 
tb^r  loans.  A  meeting  was  arranged 
wifth  Mr.  Bultitude,  and  at  that  meet- 
ing witness,  in  the  presence  of  Mr. 
Moore,  discussed  the  matter  of  broker- 
age. Lang  asked  him  to  reduce  the 
amount^  and  witness  agreed  to  take  £85. 
Lang  said  he  would  pay  this,  and  Mr. 
Bultitude,  who  was  present  during  part 
of  the  discussion,  suggested  that  witness 
should  make  the  note  out.  Lang,  how- 
ever, said  he  would  not  sign  it  then, 
but  would  go  to  witness's  office.  After- 
wards, Lang  said  he  would  not  let  Mr. 
Moore  have  the  billiard  table  or  the  cash 
registers.  Witness  remonstrated  with 
him,  and  eventually  they  went  to  wit- 
ness's office,  where  the  note  was  written. 
They  took  the  note  to  Moore,  and  the 
latter  and  Lang  signed  it. 
.^  Mr.  Alexander,  in  putting  the  note 
in,  said  it  was  unstamped.  Application 
had  been  made  to  the  Treasury  to  assess 
the  fine,  but  the  Treasury  preferred  to 
leave  it  to  the  Court.. 

Continuing,  the  witness  said  that  next 
day  he  altered  the  note,  substituting 
**  vendor."  Moore  pointed  out  the  mis- 
take to  witness.  He  took  the  amended 
note  to  Lang  next  day,  but  the  latter 
said  he  did  not  want  to  alter  the  note, 
but  wanted  witness  to  cancel  the  sale,  as 
hx3  had  been  offered  £500  more.  He 
said  he  would  give  witness  £100  instead 
of  £85  in  the  event  of  his  selling  to  some 
other  purchaser.  Witness  asked  him 
to  put  this  in  writing,  and  he  did  so. 
Moore,  however,  refused  to  cancel  the 
sale.  Subsequently,  Lang's  attorney 
wrote,   repudiating  the  amended  note. 

Cross-examined  by  Mr.  Searle :  He 
would  produce  his  Lloence  for  January, 
1905.  The  note  was  signed  at  the  Cafe 
Royal,  and  the  only  people  present  and 
interested  in  the  matter  were  Lang  and 
Moore.  The  broker's  note  was  written 
at  witness's  dictation.  Moore  claimed 
the  discounts,  and  witness  filled  them  in. 
Witness  did  not  instruct  Mr.  Bernard 
to  draw  up  the  note  over  the  deal  with 
Kanterowitz.      He  knew   in   the  agree- 


ment that  the  disoountt  were  to  be  given 
to  Lang,  but  Lang  was  to  pay  brokerage. 
Lang  never  said  to  him  in  Ohi&jon's  office 
that  he  refused  to  jpay  brokerage,  as 
there  was  no  broker  in  the  matter.  He 
did  say  that  he  would  refuse  to  pay 
brokerage,  an  witne^is  had  done  him  a 
shabby  trick  over  another  action.  The 
premises  were  never  advertised  by  wit- 
ness on  behalf  of  Lang,  although  Lang 
did  authorise  him  to  do  so. 

Re-examined  by  Mr.  Alexander:  On 
the  12th  witness  pointed  out  the  mis- 
take, but  he  did  not  write  until  the 
16th. 

Arthur  Moore,  proprietor  of  the  Cafe 
Royal,  said  that  he  purchased  the  Trans- 
.  vaal  Hotel.  The  first  he  heard  of  the 
hotel  was  that  Parry  had  it  in  hand. 
Some  time  afterwards  Parry  brought  Lang 
into  the  C^fe  Royal,  and  witness,  in 
reply  to  a  question  from  Parry,  said  he 
was  still  prepared  to  buy  the  hotel  at  a 
price.  Anchutz  said  there  was  no  broker 
in  the  business,  but  Parry  did  not  hear 
that  remark.  There  was  never  any  ar- 
rangement that  he  should  pay  Parry  any 
brokerage.  Witness  heard  a  dispute  be- 
tween tiie  plaintiff,  Lang,  and  Bultitude 
as  to  the  brokerage  in  Ohlsson's  office. 
Parry  wanted  the  full  amount  (£175), 
and  at  the  finish  they  arrived  at  a  com- 
promise. Lang  agreeing  to  pay  £85. 
Lang  also  told  Logan's  manager  that 
he  would  pay  the  brokerage. 

Cross-examined  by  Mr.  Searle:  Lang 
extended  the  option  which  witness  held 
for  a  few  days.  In  consequence  of  an 
interview  with  Mr.  Sedgwick,  witness 
got  the  option  on  the  hotel.  Mr.  Sedg- 
wick said  there  was  to  be  no  broker  m 
the  affair.  Witness  objected  to  the  dis- 
counts not  being  in,  and  the  plamtiff 
must  have  put  th^m  in  while  he  was  in 
the  Cafe  Ko^al,  but  witness  did  not 
actually  see  him  write.  When  witness 
heard  that  he  was  a  oo^efendant  in  the 
case,  he  got  an  assurance  from  Parry 
that  he  would  claim  no  brokerage  from 
him.  There  was  a  dispute  pending  be- 
tween witness  and  Lang  over  certain 
fixtures. 

Re-examined  by  Mr.  Alexander:  He 
knew  when  the  conversation  took  place 
about  a  broker  that  Parry  was  concerned 
with  the  affair. 

By  Buchanan,  J. :  The  discounts  on 
beer  last  year  amounted  to  £67  28. 

Archibald  Bultitude,  manager  for  Ohis- 
sons,  stated  that  his  firm  were  landlords 
of  the  Transvaal  Hotel.  Witness  gave 
Lang  notice  to  leave,  a.3  he  was  behind 
with  his  rent  and  beer  account.  Pdrry 
was  the  man  who  introduced  Kantero- 
witz.  On  the  final  day  Lang,  Moore, 
Parry,  Anchutz,  or  Sedgwick,  and  wit- 
ness were  present,  and  on  that  day  he 
believed  the  note  was  signed.  There  was 
a  good  deal  of  friction  between  Lang  and 
Parry,  and  witness  induced  Parry  to  take 
£85  in  full  settlement.  Lang  distinctly 
agreed  to  do  that,  and  the  matter  was 
again  confirmed   in  Logan's  office.      It 


904 


<i 


CAPE  TIMES*'  LAW  REPORTS. 


was  agreed  that  Moore  was  to  have  the 
disoounts  on  the  beer. 

Crofls-examined  by  Mr.  Searle :  He  was 
quite  clear  as  to  what  took  place.  He 
never  swore  that  the  note  was  signed 
in  his  presence.  Witn€£6  coDflidered  that 
Moore  was  entitled  to  the  beer  disoounts. 
Lang  oljjected  to  paying  any  commis- 
sion. 

George  Frederick  Brown,  manager  for 
J.  D.  Logan  and  Co.,  said  that  m  De- 
cember witness  was  pressing  Lang,  and 
witness  told  him  he  must  sell  the  uu.. 
Several  persons  were  introduced  to  Parry 
as  buyers.  Parry  was  the  broker  all 
through.  At  one  meeting  he  heard  Lang 
objeotmg  to  pay  Parry  brokerage,  and 
heard  the  others  urging  him  to  pay,  but 
he  did  not  hear  Lang  consent  to  pay 
£86. 

Wm.  George  Duncan  NioholU,  manag- 
ing clerk  for  the  plaintiff,  atated  that 
shortly  after  he  joined  Parry  eight 
montKs  ago,  then)  were  negotiations 
about  the  Transvaal  Hotel  with  Ean- 
terowitz.  On  the  10th  January  Parry 
and  Lang  came  into  the  office,  and  plain- 
tiff immediately  said  that  the  business 
with  Lang  was  finished,  and  instructed 
witness  to  write  out  the  note.  There 
wad  a  dificussion  about  cork-pullers,  and 
a  cash  register,  and  the  plaintiff  said  he 
would  not  be  a  party  to  Moore  paying 
for  those  article).  The  plaintiff  said 
that  Lang  had  cut  him  down  in  his 
brokerage  to  £85,  and  Lang  said  :  "  You 
are  all  right,  Pnrry;  you  have  made 
enough."  Lang  never  said  that  he  was 
not  going  to  pay  the  brokerage. 

Cross-examme  1  by  Mr.  Searle:  They 
had  plentv  of  printed  forms  of  brokers' 
notes  in  tne  office,  but  they  did  not  put 
the  agreement  in  the  brokers'  printed 
form.  Witness  knew  nothing  about  the 
plaintiff's  licence.  Witness  understood 
that  the  contract  was  completed,  but  still 
he  drew  up  a  second  draft.  He  believ- 
ed the  document  was  drawn  up  on  the 
10th  Jpnuary. 

Re-examined  by  Mr.  Alexander: 
There  was  still  a  dispute  about  the  bil- 
liard table  and  Mr.  Moore  was  not  pre- 
sent. 

Mr.  Bultitude  (re-called)  fixed  the  in- 
terview in  this  office,  as  far  as  he  lie- 
lieved,  at  the  10th  January. 

Solomon  Kanterowitz,  builder  and 
dealer,  said  he  was  introduced  a.s  a  pur- 
chaser of  the  hotel,  and  subsequently 
Lang  told  him  that  Parry's  man  was  the 
buyer.  Lang  told  Parry  that  ho  would 
not  get  more  than  £100,  and  witness, 
at  Parry's  reciuest,  made  a  note  of  thi<^. 

Cross-examined  by  Mr.  Searle :  It  must 
have  been  a  day  or  tw)  aft<»r  the  15th 
December,  when  he  saw  the  plaintiff  and 
defendant. 

Abraham  Born.stein  stated  that  he 
went  with  the  last  witness  to  the  Trans, 
vaal  Hotel,  where  Lang  said  the  place 
was  as  good  as  sold.  Lang  said  it  was 
all  right,  it  was  Parry's  man,  and  he 
(Parry)  would  get  £100. 

Bennie     Yates,      licensed     victualler, 


of  Sweliendam,  stated  that  in  January 
he  had  occasion  to  go  to  the  Transvaal 
Hotel  with  Isaacs,  where  they  saw  the 
defendant.  Witness  said  he  could  put 
£1,200  into  the  hotel,  and  Lang  produc- 
ed a  note,  which  he  handed  to  Isaacs, 
and  asked  him  if  he  saw  anything  wrong 
with  the  note.  Isaacs  did  not  see  it,  and 
Lang  pointed  out  "  purchaser  to  pay 
brokerage,"  instead  of  "seller  to  pay 
brokerage." 

Cross-examined  by  Mr.  Searle:  Isaac? 
and  the  plaintiff  were  supposed  to  be  in 
partnership  at  the  time.  He  could 
not  say  that  anything  was  struck  out 
of  the  note. 

Albert  Isaacs,  broker,  stated  he  went 
down  with  Yates  with  an  idea  of  selling 
tlie  hotel,  and  Lang  told  him  that  Moore 
had  bought  it.  He  saw  the  broker's 
note.  For  the  moment  witness  did  not 
see  the  mistake.  Beyond  a  joint  trans- 
action with  Parry  over  the  Belvedere 
Hotel,  there  was  no  partnership  between 
them.  Lang  pointed  out  the  mistake, 
*•  purchaser  to  pay  brokerage." 

Cross-examined  by  Mr.  Searle:  Parry 
suggested  that  Yates  might  be  a  pur- 
chaser of  another  hotel.  The  note  that 
he  saw  was  typewritten. 

George  Blyth  stated  that  he  beard 
Lang  say  to  Parry  that  he  had  made  a 
mistake  in  the  note.  Parry  offered  to 
alter  it,  but  Lang  would  not  let  him. 
Lang  said  he  had  another  man  who 
would  go  £500  more^  and  Parry  said  if 
he  could  arrange  with  Moore  that  he 
(Parry)  would  not  stand  in  his  w^y. 
He  heard  Lang  say  that  he  would  giTe 
Parry  £100  if  the  sale  with  Yates  went 
through. 

CrosB-ezamined  by  Mr.  Searle:  He 
believed  that  sale  had  already  gone 
through  when  the  question  of  xeseTling 
to  Yates  cropped  up. 

Mr.  Alexander  closed  his  case. 

Frederick  John  Christian  Lang  (de- 
fendant) stated  that  Moore  came  to  him 
about  the  hotel  about  a  yetiv  ago.  Wit- 
ness never  gave  the  plaintiff  any  in- 
structions about  advertising  the  hotel. 
He  did  not  hear  Anohutz  say  that  there 
was  no  broker  in  the  matter.  Witness 
saw  Parry  with  Moore  at  Ohlsson's 
office,  where  the  only  thing  discussed 
was  the  brokerage.  As  Mr.  Sedgwick 
sent  down  the  buyer,  witness  ruuaed 
to  pay  brokerage  altogether.  He 
never  agreed  to  pay  any  brokerage.  At 
Logan's  office,  Panr  again  asked  for 
his  brokerage.  The  plaintiff  said  he 
would  draw  up  a  note  and  protect  wit- 
ness with  regard  to  the  billiard  tabic. 
cash  register,  etc.  Witness  signed  after 
they  came  to  an  agreement  about  the 
discounts  on  the  beer.  When  Isaacs. 
Parry,  and  Yates  were  present,  the 
place  had  not  been  sold,  and  witness 
said  if  Parry  could  get  the  sale  through 
for  £4,000,  the  plaintiff  would  get  £100. 
Witness  took  up  the  position  that  Moore 
was  sent  to  him  by  Sedgwick's.  It  was 
incorrect  to  say  that  all  that  took  place 


"CAPE  umbs''  law  bepo&ts. 


305 


OQ  the  day  in  question  when  the 
property  had  been  sold.  Tf  he  had  had 
the  aiscounte  over  the  sale  with 
Kanterowits,  he  would  have  paid  the 
brokerage. 

Cross-examined  by  Mr.  Alexander: 
The  plaintiff  was  to  get  nothing  for  all 
his  trouble.  The  plaintiff  had  nothing 
to  do  with  the  transaction  with  Moore. 
BulUtude  was  not  speaking  the  truth 
when  he  said  witness  offered  £85  in 
settlement  of  the  brokerage.  The  sale, 
a«  far  as  he  knew,  was  completed  be- 
tween the  11th  and  the  15th  January. 
WrtnesB  did  not  ask  Parry  to  endeavour 
to  break  off  the  sale  with  Moore.  He 
promised  Parry  £100  if  the  sale  with 
Yates  went  through.  Yates  was  intro- 
duced b^  Isaacs.  Witness  could  not 
explain  why  he  would  give  Parry  £100 
over  the  sale  with  Yates.  Moore  was 
not  introduced  as  a  buyer. 

Charles  Low  stated  that  in  January 
Isat  he  was  in  0hls8on*e  office,  when 
he  heard  the  defendant  tell  the  plain- 
tiff that  he  would  see  him  "blowed*' 
if  he  paid  him  any  brokerage,  and  he 
did  not  thick  he  was  entitled  to   it. 

Cross-examined    by    Mr.    Alexander: 
He  was  not  certain  as  to  the  date.      It 
might  have  been  when  the  lawyer's  let- 
ter was  sent. 

John  Henry  Anchutz,  manager  for 
Sedgwick  and  Co.,  stated  that  when  he 
was  in  the  Cafe  Royal,  Moore  asked 
him  if  anything  was  done,  and  witness 
toid  him  to  come  to  the  office.  Witness 
uked  Moore  if  he  was  on  his  own^  with- 
out any  broker,  and  Moore  replied  in 
the  affirmative. 

Cross-examined  by  Mr.  Alexander: 
Witness  did  not  have  a  private  interest 
in  the  hotel  with  the  defendant  Parry 
never  asked  Moore  in  witness's  presence 
if  he  was  still  prepared  to  buy  the 
Transvaal  Hotel. 

Mr.  S^arle  closed   his  case. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts. 

Buchanan.  J. :  In  this  case  there  was 
a  contract  "between  two  parties — Lang 
and  Moore — and  I  cannot  understand 
whv  exception  was  not  taken  to  the 
declaration,  on  the  ground  that  the 
plaintiff  had  absolutely  no  part  in 
the  contract,  and  had  no  legal 
status  to  come  before  the  Court  to  ask 
f^r  a  rectification  of  the  docuinent.  As 
fir  as  this  document  stands,  it  is  a  con- 
tract between  Lang  and  Moore.  It  was 
<^<nQpetent  for  either  of  these  parties  to 
sue  the  other  for  a  rectification,  but  I 
don't  see  how  it  is  possible  for  the 
niaintiff  to  do  so.  Carefully  reading 
Mr.  Baltitude's  evidence,  I  hesitate  to 
hpJieve  that  Lang  agreed  to  pay  the 
plaintiff  the  amount  of  £85.  Moore^  and 
Lang  took  no  objection  to  the  written 
docament,  and  the  only^  thing  for  the 
Court  is  to  give  absolution  from  the 
instance,  with  costs. 

[Plaintirs    Attorenys:     P.  Andres; 
Defendants'   Attorneys:    C.   Bernafrd.J 


SUPREME  COURT 


[  Before  the  Hon.  Mr.  Justice  Maasdobp.] 


ADMI&'IONH. 


S       IIKXV 
{  Apr.  2(»th. 

Mr.  P.  S.  T.  Jones  moved  for  the  ad- 
mission of  A.  P.  de  Villiera  as  an  at- 
torney and  notary. 

Application  g^ranted,  oaiths  to  be  taken 
before  the  Resident  Magistrate  of  Rich- 
mond. 

Mr.  Roux  moved  for  the  admission  of 
Charles  W.  A.  Coulter  bb  an  attorney 
and  notary. 

Application  granted  and  oaths  admin- 
istered. 

Mr.  J.  E.  R.  de  Villiers  moved  for  the 
admission  of  Albert  R.  Fleisohack  as  an 
attorney. 

Mr.  Searle,  E.C^  appeared  for  the 
Incorporated  Law   Society. 

Mr.  De  Villiers  said  that  the  appli- 
cant, who  was  a  Transvaal  attorney,  was 
prepared  to  oome  down  and  appear  per- 
soQiallv.  He  asked  that  the  Court 
should  grant  the  apolication,  and  allow 
applicant  to  take  the  oath  on  his  ar- 
rival. 

Ordered  to  stand  over,  pending  the 
appHoant  appearing  personally  before  the 
Court. 


PROVISIONAL  ROLL. 

TUBNBULL  V.  BTBWABT. 

Sir  H.  Juta,  E.O.,  said  that  this  mat- 
ter was  standing  over  pending  produc- 
tion by  the  respondent  of  certain  con- 
tracts. 

The  respondent  said  that  he  had  ap- 
plied to  Messrs.  Walker  and  Jacobsohn 
or  the  contracts,  but  they  refused  to 
et  him  have  the  documents,  because  he 
lad  not  paid  the  costs  of  the  first  ap- 
plication. 

Maasdorp,  J. :  The  document  is  no 
pledge  for  costs.  ^  I  should  like  to 
nave  some  exp'lanation  from  the  at- 
torneys. A  note  must  be  sent  to  the 
attorneys  asking  them  to  attend  and 
give  an    explanation. 

At  a  later  stage  a  representative  of 
Messrs.  Walker  and  Jacobsohn  pro- 
duced the     documents  in  question. 

Defendant  having  been  cross-examined 
by  Sir  H.  Juta, 

Maasdorp,  J.,  sadd  that,  as  it  appeared 
that  in  this  case  the  defendant  nad  no 
means,   there  would  be  no  order. 


NANNUCCI,   LTD.   V.  OASLOLI. 

Mr.  Swift  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as  insol- 
vent. 

Order  granted. 


806 


i( 


CAt*E  TIMES »'  LAW  REPORTS. 


VAN  DIB  8PUY  V.  LE  UliANUiC. 

Mr.  De  Waal  moved  for  provisioiuU 
senfcence  on  &  mortgage  bond  for  £200, 
with  interest  from  1st  Julv,  1904,  and 
for  the  property  specially  hsrpothecated 
to  be  declared  executable.  The  bond 
became  due  by  reason  of  non-payment 
of  Intereet. 

Order  granted. 


UABTBODT    V.    MCKAY 
AND   GO. 


I 


1905. 
Apr.  20th. 


Provisional  sentence  —  Bills  of 
exchange  —  Liquid  and  illi- 
quid claims. 

The  Court  refused  provisional 
aenteiice  upon  certain  bills  of 
excJiange,  where  it  did  not 
clearly  appear  how  far  these 
bills  refen^ed  to  items  for 
which  credit  had  been  given. 


Mr.  Burton  moved  for  provisional 
sentence  for  £1,496  198.  6d.,  upon  cer- 
tain bills  of  exchange  drawn  and 
tain  bills  of  exchange  drawn  up  and 
accepted  by  the  defendants,  which  had 
been  dishonoured.  There  was  also  an 
illiquid  claim  for  £497  ITs.  5d.,  goods 
sold  and  deliveredi  and  disbursements 
made  for  and  on  behalf  of  the  defen- 
dants. Plaintiff  allowed  under  these 
heads  a  credit  of  £961  16b.  3d. 

Mr.  Gardiner  was  for  the  defendants. 

Mr.  Burton,  repljring  to  the  Court, 
said  that  he  did  not  at  the  present  sta^ 
move  for  judgment  on  the  illiquid 
claim. 

Mr.  Gardiner  read  an  affidavit  by  Mr. 
John  P.  A.     Bischoff,  a  partner    in    the 
defendant  firm,  who  stated  that  they  had 
demanded  from  the  plaintiff  a  full  and 
complete  account    of   all       transactions, 
but  the  same  had  never  been  rendered. 
The    deponent  said  further  there  wa«  a 
considerable  sum  due  to  the  defendants 
on  account  of     percentage     of     freight 
to  which  they  were  entitled.      They  said 
that      they    Lad   never      received       an 
account    showing    the    amount  due      to 
them  by  way  of  rebate,    and    that     the 
rebate  must  be  considerable,    as     their 
transactions  must  have    amounted       to 
about  £12,000.      They    estimated  that  at 
least    £250  was  due  to  them  under  this 
head.      There  were  also  a  goodly  number 
of  credit  notes  due  to   them.        Defen 
dants      maintained  that,    if  full     parti 
culars  were  rendered  to  them,   the  posi 
tion  of  affairs  would  bo  very     differeii 
from      that       alleged   by    the    plaintiff 
Under   all    the  circumstances,   tne      de 
fendants  prayed    that    the  plaintiff      be 
orderod  to  go  into  the  princi]^al  case. 

Mr.  Burton  read  an  affidavit  by  Mr. 
Gother  Mann,  of  the  South  African  As- 


sociation, who  stated  that  the  aatooaation 
had  been  acting  on  behalf  of  the  plain- 
tiff. He  annex^  a  balance-sheet  handed 
to  him  by  the  accountant  employed  by 
the  defendants.  In  that  bslance-sheet 
there  figured  a  debit  due  to  the  plaintiff 
of  £968  4s.  3d.  A  further  affidavit  by 
Mr.  George  Forrest,  who  held  the  plain- 
tiff's power  of  attorney,  annexed  the 
specified  account  referred  to  in  the  de- 
fendant's affidavit  As  to  the  other 
allegations,  an  answer  could  only  be 
given  by  plaintiff  from  London  or  Ham- 
burg. 

Mr.  Gardiner  said  that,  although 
there  were  two  claima,  one  liquid  and 
the  other  illiquid,  the  two  were  very 
much  involved  one  with  another. 

Maasdorp,  J.,  intimated  that  he  would 
first  hear  Mr.  Burton. 

Mr.  Burton  submitted  that  the     fact 
that  certain  parts  of  the  plaintiff's  claim, 
bills    of    exchange  had  not  been  drawn, 
could   not  debar  the  plaintiff  from  his 
right    to       obtain    provisional    sentence 
upon    the    liquid    documents    which    he 
now   produced.       If  necessary,      let  the 
whole  of  thQ  credit  go  off  agaiust     the 
liquid    claim.        The       defendants     hod 
given  no  answer  to  the  plaintiff's  claim 
upon  the  bills  of  exchange.      The  figure 
brought  up  by  the  defendants'  account- 
ant      approximately    corresponded    with 
thu  amount  claimed  by  the  plaintiff. 
Mr.  Gardiner  was  not  called  upon. 
Maasdorp,    J.:    The    plaintiff   in   this 
case     sues  the  defendants  upon  certain 
bills    of     exchange,     and     also    for    an 
illiquid     claim.     It     appears     from    the 
documents     put     in     that     there     is     a 
large      amount      of      indebtedness    be- 
tween    the     parties,     consisting,     to     a 
large   extent,  of  bills  of  exchange,     and 
also  a  number  of  items  for  goods     sold 
and  delivered.      For  a   portion  of  these 
debts  credit  has  been  given.     Upon  the 
face  of  the  accounts  these  items    are  in- 
extricably involved.       There  is  a  credit 
allowed,  and  upon  the  face  of    thc^  docu- 
ments it  is  impossible  to  say  in  respect 
to  which  items  these  credits  have    been 
allowed.       It  is  stated   in  the  affidavits 
that   portions   of   the  items      for   which 
credit     has  been  given  have  been  allo- 
cated, but  it  is  admitted  Uiat  others  have 
not.   and  it  is   now  suggested  that  the 
appropriation  may   be   made  in  law^  dn 
respect  of  the  bills  of  exchange.    What 
the   legal   effect  might  be  if  no  appro- 
priation took  place  would  be  a  question 
of  law  but,  as  a  matter  of  fact,  such  ap- 
propriation   may   have   taken    place  be- 
tw<H»n     the     parties  when  they  entered 
iii>to  tho<;c  transactions.     It  also  appears 
that  certain^'rebates  ought  to  be  alowed, 
and  that  such  rebates  might  be  a  set-off. 
On  the  whole.  I  have  come  to  the    con- 
clusion that  tne  items  of  account  are  so 
involved  that  it  is  impossible  to  distin- 
guish between  the  bills  of  exchange  and 
the  rest  of  tho  account.    Provisional  sen- 
tence will  be  refused,  costs  to  be  costs 
in  the  cause. 


"CAPE  TIMES*'  LAW  REPORTS. 


307 


PUBCBLL,  YAI.LOF  AUD  EViSKKTT    V. 
HCNAU6HTON  AVD  BON. 

Mr.  Swift  inoired  for  prorisional  sen- 
teDOd  on  a  promissoi^  note  for  £528  le. 
Id.,  with  luterefiL  Counsel  also  applied 
for  judgment  under  Rule  329d  for  £173 
19i.  8d.,  for  goods  sold  and  delivered, 
and  for  £33  Is.  5d.,  interest,  and  costs 
of  suit 

Order  granted. 


SACHS  V.  DB  JAGEB. 

Mr.  J.  E.  R.  d^  Villiers  moved  for 
provisioual  sentence  on  a  notarial  bond 
for  £100.  and  upon  a  promissory  note 
for  £100,  less  £85  paid  on  account,  with 
iiterest 

Order  granted. 


DK  VILLISBS  V.  KEET. 

Mr.  p.  T.  S.  Jones  moved  for  provi- 
•icEal  sentence  on  a  promissory  note  for 
£164,  together  with  interest  at  9  per 
cent.,  and  costs  of  suit. 

Order  granted. 


TBKDGOLO  AND  CO.  Y.  VAN  DYK. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £360,  with 
interest,  the  bond  having  become  due 
by  reason  of  the  non-payment  of  inter- 
est; counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable,  with  costs. 

Order  granted. 


KOCH  V.  MOBBIS. 

Mr.  Russell  moved  for  provisional 
sentence  upon  a  mortgage  bond  for 
£l,00O,  lees  £15  paid  on  account,  with 
bterest,  the  bond  having  become  due 
by  reason  of  non-payment  of  interest; 
counsel  also  applied  for  the  property 
specially  hypothecated  to  be  declared 
executable. 

Defendant's  wife  appeared,  and  said 
that  her  husband  was  ill,  and  was  with- 
out means  to  pay  anything  more  at  pre- 
sent.   She  asked  for  a  postponement. 

Order  granted,  His  Lordship  advising 
Mrs.  Morris  to  communicate  with  the 
creditor. 


WOODUEAD,  PLANT  AND  CO.  V.  PPUHL. 

Mr.  Gardiner  moved  for  provisional 
sentence  for  £464  Is.  9d.,  which  the  de- 
fendant owed  on  a  deed  of  suretyship, 
snd  for  judgment  under  Rule  329d  for 
£1  91b.  6d.,  for  goods  sold  and  delivered, 
with  costs. 

Order  granted. 


HABDIK  V.  BABNABD. 

Mr.  Sutton  moved  for  provisiolnal 
sentence  on  a  mortgage  bond  for  £500, 
with  interest,  the  bond  having  become 
due  by  reason  of  notice  havmg  been 
given.  Counsel  also  applied  for  the 
property  specially  hypotnecated  to  be 
declared  executable. 

Order  granted. 


JOSEPH  Y.  FI8HEB. 

Mr.  De  Wa<al  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Order  granted. 


ESTATE  HIDDINOH  V.  HOFFMAN. 

Mr.  Swift  moved  for  provisional  6en- 
teuce  upon  a  mortgage  bond  for  £690 
9s.  2d.,  with  interest. 

Order  granted. 


ILLIQUID    ROLL. 


COLONIAL    OOYEBNMENT    V 
BUBQBB. 


.  f       1905. 
<Apr.  20th. 

Mr.  Howel  Jones  moved  for  judgment 
under  Rule  329d  for  £5  quitrent  and 
stamp  duties. 

Order  granted. 


KALK  BAY  MUNICIPALITY  Y.  PKIDBAUX. 

Mr.  p.  S.  T.  Jones  moved  for  judg- 
ment under  Rule  329d  for  £161  Us. 
3d.,  owners'  rates  for  1904-1906,  less  £47 
6s.  paid  on  account,  and  for  £27  14«., 
balance  due  for  road  construction  at 
Lakeside. 

Order  granted. 


ESTATE  BAUMANN  V.  LOUW. 

Mr.     Pymont     moved     for    judgment 
under  Rule  329d    on    a    balance    of    ao 
count  for  £19   Is.    Ud.,   less   £14   10s., 
with  interest  and  costs. 

Order  granted. 


STESB  Y.  TBUSTEBS  MALAY  MOSQUE. 

Mr.  P.  S.  T.  Jones  moved  for  judg- 
ment under  Rule  329d  for  £261  lis. 
2d.,  balance  of  certain  money  lent  by 
the  plaintiff   to   the   defendants. 

One  of  the  defendants  appeared  in 
Court,  and  said  he  had  been  summoned 
for  the  debt  to  Mr.  Steer,  who  drew  the 
rent  of  £6  a  month.  Mr.  Steer  dis- 
covered that  he  could  not  pass  the  bond, 
and  asked  witness  to  call  a  meeting  and 
explain  to  the  congregation  that  the 
bond  oould  not  be  passed.     Afterwards 


308 


••CAPE  TIMES**   LAW  REPORTS. 


Mr.  Steer  dUcovered  he  had  made  a  mU- 
take  in  the  title.  The  congregation 
agreed,  in  satisfaction  of  Mr.  Steer's 
debt,  that  he  should  draw  the  rent,  pro- 
vided he  paid  the  taxes.  Mr.  Stoer 
agreed  to  thia  arrangement.  Mr.  Steer 
subsequently  said  they  would  have  to 
pay  interest  at  the  rate  of  6  per  cent., 
and  later  at  the  rate  of  8  per  cent. 

Mr.  P.  S.  T.  Jones  said  an  appearance 
had  been  entered  on  behalf  of  the  de- 
fendants, and  it  had  been  withdrawn. 

[Maasdorp,  J. :   You  awe  this  money?] 

Defendant :   Tes. 

[Maasdorp,  J. :  And  you  represent  the 
congregation?] 

Yes. 

[Maasdorp,  J. :  Why  don't  you  pay?] 

We  will  pay. 

Maasdorp,  J.,  said  judgment  must  he 
given  as  prayed.  The  defendant  could 
arrange  to  give  Mr.  Steer  security. 


PURCELL  AND  OTHERS  V.   MCNAUOHTON 

Mr.  Swift  moved  for  judgment  under 
Rule  329d  for  £60,  goods  sold,  delivered, 
and  £3  128.,  with  interest  and  costs. 

Order  granted. 


KAPLAN  AND  OTHKRS  V.  POBTKR. 

Mr.  Watermeyer  moved  for  judgment 
for  £150  lOs.  9d. 
Order  granted. 


JANU8KA  V.   O'BRIEN. 

Mr.  Gardiner  moved  for  judgment 
against  the  defendant  for  £120  18s.  6d., 
being  moneys  deposited  vyith  the  de- 
fendant in  order  to  instdtute  certain 
proceedings,  and  for  costs  of  suit  a* 
between   attorney  and  client. 

Order  granted. 


8PILHAUS  AND  CO.  V.  BAMSODIEN. 

Mr.  Watermeyer  moved  for  judg- 
ment under  Rule  329d  for  £62  2s.  6d., 
with  interest  and  costs. 

Order  granted. 


WAR  DKP.RTMKKT   V.   EDWARDS. 

Mr.  Upington  moved  for  judgment  un- 
der Rule  319,  in  default  of  plea,  on  an 
action  in  which  plaintiff  sued  for  £55 
4s.  9d.,  with  interest  and  coste.  The 
money  was  lent  to  the  defendant,  who 
was  a  sergeant  in  the  Royal  Irish  Lan- 
cers. 

Order  granted. 


REHABILITATION. 

Mr.  Du  Toib  moved  for  an  order  for 
the  rehabilitation  of  Max  Satiski  The 
insolvency  occurred  four  years  ago,  and 
applicant  was  charged  with  fraudulent 
insolvency,    but   was   acquitted. 

Order  granted. 


GENERAL  MOTIONS. 


KRIOB  V.  MALHERBB. 


1 


1905. 
Apr.   20th. 

Mr.  J.  E.  R.  de  Villiers  was  for  the 
plaintiff,  and  Mr.  Van  Zyl  a»ppeared  as 
curator  ad  litem.  Mr.  De  Villiers  moved 
for  an  order  declaring  the  defendant  of 
unsound  mind,  and  for  the  appointment 
of  a  curator  to  dispose  of  his  property, 
in  order  to  maintain  his  wife,  himself  and 
children. 

The  affidavit  of  Dr.  Dodds  set  out  that 
the  defendant,  who  was  confined  in  the 
Asylum,  exhibited  symptoms  of  mental 
unsoundness,  and  incapable  of  managing 
his  own  affairs. 

Mr.  Van  Zyl  said  he  had  seen  the  de- 
fendant, and  he  could  offer  no  opposi 
tion  to  the  applics/tion. 

Order  granted,  declaring  the  defend- 
ant of  unsound  mind.  Mr.  Herman  J. 
Dempers,  attorney,  of  Cape  Town,  ap- 
pointed as  curator  bonis,  with  power  to 
sell  the  property  and  pay  debts,  and  ad- 
vance moneys  for  the  maintenance  of 
the  defendant,  his  wife,  and  children, 
oosts  to  come  out  of  the  estate. 


LIHSCOTT  V.  LIN8C0TT. 

Mr.  Gardiner  was  for  the  plaintiff 
and  Mr.  Sutton  appeared  as  curcUar  ad 
litfm. 

The  summons  called  on  the  defendant 
to  show  cau^e  why  she  should  not  be  de- 
clared of  unsound  mind.,  and  for  the  ap- 
pointment of  a  curator  to  administer  the 
estate. 

Wm.  John  Dodds,  medical  superintend- 
ent at  Valkenberg  Asylum,  said  that  the 
defendant  was  admitted  on  March  25 
this  year.  The  defendant  was  undoubt^ 
edly  insane,  and  quite  incapable  of  look- 
ing after  herself  and   her  property. 

Examined  by  Mr.  Sutton:  There  was 
a  very  fair  prospect  of  a  recovery. 

Arthur  LinscM)tt,  husband  of  the  re- 
spondent, said  he  was  married  in  Franoe 
in  1898.  The  respondent  was  always 
somewhat  hysterical,  and  since  the  birth 
of  her  child  she  got  worse,  and  had  to 
be  detained  as  a  lunatic.  His  wife  had 
an  income  of  about  £110  a  year.  Wit- 
ness was  desirous  of  being  appointed  as 
curator  of  her  person   and  property. 

Order  granted,  declaring  the  respond- 
ent incapable  of  managing  her  own  af- 


"CAPE  TIMES"  LAW  REPORTS. 


309 


ftin.  ind  appointing^  the  husband,  Ar- 
thur LiDsoott,  as  curator  of  her  peraon 
ud  property,  with  power  to  receiye  the 
leTenne  frofli  her  property  for  the  main- 
teDEQce  oi  the  respondent. 


JSr  parte  BSTATfi  KKKDEL. 

Mr.  De  Waal  moved  to  make  absolute 
ft  rule  nin  under  the  Derelict  Lands  Act. 

His  Lordship  pointed  out  that  publica- 
tion had  been  ordered  in  a  Duton  news- 
paper. It  had  been  published  in  a  Dutch 
paper  in  the  English  language,  but  it 
wa;  palpable  that  publication  in  the 
Dutch  language  was  meant.  He  held 
that  the  publication  was  insufficient. 

The  return  day  was  extended  until 
Thursday  next  for  proper  publication. 


KRIGE  V.  UBBEF. 

Mr.  De  Waal  moved  to  make  absolute 
a  rule  nin,  calling  on  respondent  to  re- 
turn a  certain  mare  and  foal. 

Rule  made  absolute. 


BROWNE  V.  HAY  WARD. 

Mr.  VanZyl  moved  for  the  applicant's 
(Browne's)  release  from  civil  imprison- 
ment 

Mr.  Close  appeared  for  the  respondent, 
•nd  consenteo  to  suspension  of  the  de- 
cree, pending  Daymen t  of  £100  out  of 
the  proceeds  of  certain  property. 

An  order  was  made  in  terms  of  a  con- 
sent paper. 


&:  parte  SEDGWICK  AND  CO. 

Mr.  Struben  moved  for  an  order  au- 
thorising the  issue  of  a  certified  copy  of 
a  certain  bond  to  enable  petitioners  to 
institute  a  certain  suit. 

Rule  tuH  granted,  rule  to  bo  publish- 
ed onoe  in  the  "  Cape  Times,"  and  to  be 
rpturaable  on  the  4th  May. 


HASBI8  BB06    V.  PBANKEL. 

Mr.  Cloae  moved  for  an  order  of  eject - 
njent  a^inst  the  respondent  in  respect 
^  certain  premises  at  Seaforth,  Simon's 
Town.  Ml".  Alexander  was  for  tho  ro- 
•pondent. 

Mr.  Close  read  affidavits  filed  on  behalf 
of  the  app]icant4%,  in  which  it  was  alleged 
that  the  respondent  admitted  having  re- 
eeived  notice  to  quit,  and  having  agreed 
to  leave  on  the  Slat  March. 

Mr.  Alexander  read  a  replying  affidavit 
hy  the  respondent,  Solomon  Frankcl, 
who  stated  that  be  took  over  the  business 
of  Messrs.  J.  Lipett  and  Co..  upon  pay- 
nient  of  certain  consideration,  and  that 
Mesffs.  Harris  Bros,  bad  granted 
Messrs.  Lipett  a  two  yean*  lease.     The 


lease  was  dated  the  Ist  May,  ld04,  and 
was  subsequently  confirmed  r>y  the  firm 
by  letter.  Deponent  said  that  he  in- 
terviewed a  member  of  the  applicant 
firm,  and  was  granted  by  him  a  verbal 
lease  of  the  shop  for  the  remainder  of 
Meesrs.  Lipett*s  unexpired  term.  Upon 
this  undertaking  he  had  paid  £28  for 
tho  goodwill  of  the  business,  and  took 
possession  in  September  last.  Depon- 
ent had  regularly  paid  his  rent  since  he 
entered  into  pnossession.  Counsel  also 
read  a  supporting  affidavit. 

Mr.  Close  read  an  answering  affidavit 
by  Mr.  Greengood,  a  member  of  the 
firm  of  Messrs.  Lipett  and  Co.,  who  de- 
clared that  the  respondent  on  interview- 
ing Messrs.  Harris  was  accepted  as  ten- 
ant of  the  shop,  but  only  on  a  monthlv 
tenancy,  and  he  (the  respondent)  took 
the  shop  on  this  condition.  Counsel  also 
read  a  supporting  affidavit  by  Mr. 
Wolf  Harris.  Mr.  Close  having  bocij 
heard  in  argument  on  the  facts, 

Maasdorp,  J.  :  There  is  a  confldct  of 
evidence  in  this  matter  upon  which  the 
Court  might  have  assistance  if  the  wit- 
nesses appeared,  and  their  testimony 
could  be  tested  at  the  trial.  Under  the 
circumstances,  the  Court  will  now  refuse 
the  application,  costs  to  be  costs  in  the 
cause,  and  motion  to  stand  as  summons 
in  the  case. 


£x  parte  OLIVUR. 

Mr.  Sutton  moved,  on  Ix'half  of  the 
executor  testamentary  in  the  estate  of 
J.  J.  Olivier,  for  leave  to  pass  certain 
mortgage  bond  to  dischaige  liability. 

Order  granted. 


MABEBLY  V.  WOODSTOCK  MCJKIGIPAL 
COUNCIL. 

Mr.  Searle,  E.C.,  said  that  he  apuc«red 
for  the  Municipal  Council  of  Woodstock, 
but  he  understood  that  there  was  no 
appearance  for  the  applicant,  John 
M&berly.  Some  time  ago  Maberly  ob- 
tained a  rule  nisi  against  the  Woodstock 
Council,  restraining  them  from  proceed- 
ing with  the  purchase  of  a  certain  farm 
in  connection  with  the  water  schemo  of 
Oliphant's  Hoek.  Thai  rule  was  made 
absolute  on  the  17th  November,  1902. 
The  respondent  Council  now  applied  for 
the  interdict  to  be  discharged,  the  con- 
sents which  it  was  pointed  out  when  the 
rule  was  made  absolute  were  necessary 
to  enable  the  Council  to  proceed  having 
now  been  obtained.  Counsel  road  affi- 
davits by  Mr.  Smith,  Town  Clerk,  to 
the  effect  that  tho  Council  had  obtained 
the  necessary  consents  of  the  Minister 
and  the  Governor.  Mr.  Searle  sub- 
mitted that  the  Council  were  entitled  to 
have  the  rule  discharged. 

Maasdorp.  J. :  It  seems  that  the 
grounds  upon  which  the  interdidt  was 
granted  have  now  been  removed,  and 
the   applicant,    who  obtained  the   inter- 


310 


"CAPE  TIMES"   LAW  REPORTS. 


diet,  duob  not  appear  to  oifer  aiiy  op- 
poeition  to  the  order  being  discharged. 
Under  the  circumstances,  the  Court  will 
order  tha)t  the  interdict  be  discharged. 
Mr.  Bearle,  replying  to  his  lordship 
said  that  the  Council  did  not  aek  for 
costs. 


A>  parte  ALLY. 

Mr.  Pymont  moved  to  make  absolute 
a  rule  ni»i  calling  on  the  Registrar  of 
DeeddS  to  issue  a  certified  copy  of  a 
mortgage  bond  which  had  been  destroyed 
in  a  fire  in  June,  1902. 

Rule  made  absolute. 


Jbjjs  parte  A.LLY. 

Mr.  Pymont  moved  for  an  order 
authorising  the  Registrar  of  Deeds  to 
accept  a  certain  power  of  attorney  signed 
before  a  notary  public  in  Bombay,  but 
which  had  not  been  properly  attested 
aa  required  on  notarial  deeds  outside  the 
Colony.  Counsel  said  that  the  notary 
was  on  the  Civil  Service  List  in  India. 

Maasdorp,  J.,  ordered  'that  the  matter 
be  referred  again  to  the  Registrar  with 
the  fresh  information  to  see  if  the  Re- 
gistrar had  any  objection  to  the  Couri 
granting   the  order. 


AFUICAN     MUTUAL    TRUST     AND     A8SU- 
BANGB  CO.  V    ABBAUAMSON. 

Mr.  Gutsche  moved  for  leave  to  sue 
the  respondent  by  edictal  citation  for 
the  recovery  of  certain  moneys  due  on 
a  bond. 

Application  granted,  with  leave  to  at 
tach  the  property,  the  citation  to  be 
returnable  on  the  Ist  August,  personal 
service  if  possible,  failing  which  one 
publication  in  the  '*  Gazette "  and  one 
in  a  paper  circulating  in  the  Malmes- 
bury  district. 


20th. 


btbwart'b  estate  v.  the  f  a  ^  ^^* 

MASTER.  -^^y    i9ti^ 

Succession  duty — Sees.  1  and  16 
of  Act  5  of  1864— Act  4  of 
1895. 

/S'.,  domiciled  hi  Sen f land,  died 
intestate  in  India,  tearing 
certain  worahle  properly  in 
this  Colony^  ichich^  in  virtiie 
of  a  certain  antenuptial  con- 
tract entered  into  here,  derolved 
upon  certain  heirs,  ah  intesto, 
tvho  vere  aho  domiciled  in 
Scotland.  Letters  of  adntinis 
tration  had  been  tak^n  out  here, 
and  the  Mobster  claimed  that 


the  mucablt property  icon  liable 
to  snccessiott  duty  under  Sec.  1 
of  Act  5  of  1864. 

Held,  that  as  theae  heirs 
stu'ceeded  to  a  settled  estate  in 
this  country  under  a  settlement 
executed  fiere^  the  estate  was 
liable  to  succession  duty. 

Held  further,  that  by  Sec.  15 
of  Act  6  of  1864^  such  succes- 
sion duty  was  to  be  assessed  at 
the  rate  of  Jive  per  cent. 

This  was  a  {petition  to  have  it  declared 
that  the  moveable  estates  of  the  late 
Charles  Stewart  and  his  wife  within 
this  colony  was  not  liable  to  succession 
duty. 

Ine  petition  sot  forth  that  by  an  ante- 
nuptial contract  entered  into  between 
tne  late  Charles  Stewart  and  his  wife, 
Lena  Stewart,  in  1882,  it  was  provided 
that  there  should  be  a  settlement  on 
trustees  of  a  certain  sum  for  the  benefit 
of  the  issue  of  the  marriage.  There 
was  only  one  child  of  the  marriage — a 
son — who  died  in  India,  and  was  a  domi- 
ciled Scotsman.  The  trust  funds  were 
taken  over  by  applicant  on  his  appoint- 
ment as  executor  dative.  The  next-of- 
kin,  who  were  heirs  in  the  estate,  ten 
in  number,  were  domiciled  in  Scotland, 
and  petitioner  held  that  dstribution  musi 
take  place  in  Great  Britain  and  succes- 
.sion  duty  paid  there.  The  Master,  how- 
ever, decided  to  assess  a  succession  duty 
of  5  per  cent.,  and  applicant  now  prayea 
for  a  declaration  that  succession  duty 
was  not  payable  in  this  colony. 

SirH.  Juta,  K.C.,  appeared  for  the  ap- 
plicant; Mr.  Searle,  K.C.,  for  the 
Master. 

Sir  H.  Juta:  This  is  a  question  of 
puocossion  duty.  The  deceased  was  in 
India,  the  heirs  ab  intestato  in  Sootland, 
and  the  property  in  this  country.  The 
property  will  be  administered  accord- 
ing to  the  law  of  Scotland.  Act  5  of 
1864  does  not  say  whether  the  succes- 
sion duty  applies  to  the  situs  of  the 
property,  or  to  the  place  of  death  of  the 
de  (ujutt.  or  to  the  residence  of  the 
heir.  The  person  liable  for  succesaion 
duty  must  be  sueable  for  it,  and  I  there- 
fore argue  that  the  heir  cannot  be 
liable  unless  he  is  in  this  colony.  The 
duty  must  be  paid  by  someone  amenable 
to  the  jurisdiction  of  this  Court,  Sec- 
tions 7  to  14  of  the  Act  show  this.  As 
to  Act  4  of  1896,  before  that  Act  was 
passed,  succession  duty  had  to  be  padd 
on  moveables  wheresoever  they  might 
be.  But  the  Htus  of  mo\'eal>le  pro- 
perty hafl  nothing  to  do  with  succession 
duty.  There  is  no  machinery  by  which 
it  can  be  levied. 

[Maasdorp,  J, :  Does  not  property 
under  trusteeship  stand  upon  a  different 
footing  from  otner  property?       If  pro- 


"CAPE  TIMES"  LAW  REPORTS. 


311 


pcrty  in  a  certain  country  tb  Bcoepted  by 
ft  legttee.  he  accepts  it  subject  to  the 
laws  ol  that  country.] 

But  see  Section  21  of  x\ct  25  of  1894, 
whence  we  mav  eay  that  dt  is  not  the 
property  whicli  pays  succession  duty, 
but  the  saccessors. 

[Maasdorp.  J. :  The  Court  has  ruled 
that  the  domicile  of  the  testator  settles 
the  whole  question.] 

Then  if  a  man  comes  here  and  ac- 
c^uires  property  bore,  but  is  not  domi- 
ciled, no  duty  will  bo  due? 

[Maaadorp,  J. :  If  the  property  -were 
vested  in  a  tru6t<»c  here,  would  not  that 
make  the  property  to  be  legally  here?] 

But  the  ante-nuptial  oontract  provides 
that  the  property  should  go  to  the  one 
child  on  his  majority  or  marriage.  The 
property  therefore  vested  in  the  son, 
only  the  enjoyment  of  it  was  deferred. 
There  was  no  trust,  and  nothing  for  a 
trustee  to  do.  The  property  was  not 
tied  up,  and  all  the  executor  had  to  do 
was  to  realise  it  and  send  the  proceeds 
to  Scotland. 

Mr.  Searle  (for  the  Master) :  An  exe- 
cutor dative  was  appointed  here  at  the 
i^qoeet  of  the  trustees.  Section  1  of 
Act  5  of  1864  is  practioaly  the  same  as 
Section  2  of  the  English  Succession  Act 
<^  1853.  If  this  were  res  novaj  the 
Court  might  be  open  to  listen  to  argu- 
ments based  on  the  ambiguity  of  the 
Art;  but  we  have  a  number  oi  English 
decisions  on  the  matter.  The  only  scc- 
tiona  of  our  Act  to  which  I  need  refer 
•re  I  and  15.  If  the  property  to  be  ad- 
ministered is  settled  here  it  must  pay 
iluty  and  stands  on  (^uite  a  different 
footing  fro  mthin^s  which  a  man  car- 
res  about  with  him.  See  Hanson  on 
Probate  and  Succession,  p.p.  22  to  25 
and  219  to  225  and  Attomey-Otneral  v. 
Campbell  and  Lyle  v.  Lyle  therein  re- 
f<'rred  to,  which  show  that  the  question 
of  the  forum  of  administration  poverns 
tlie  law  as  to  duty  (Ha neon,  p.  23). 

fMaasdorp.  J. :  ~  As  eoon  as  John  suc- 
'«ed8  there  will  no  longer  bo  any  pro- 
I>«rty  under  the  trust.] 

Tha*  is  so. 

[Maasdorp,  J. :  Then  how  do  the  heirs 
«ft  hOfstato  come  under  the  trust?] 

They  could  not  get  the  property 
Without  the  trust.  "We  do  not  enargo 
duty  on  property  not  brought  into  the 
country. 

[MsMdorp,  J. :  Oh  yes,  duty  can  bo 
charged  in  England  on  moveables  no 
Diatter  where  they  may  be  if  an  Eng- 
i^litnoian  be  domiciled  there.  If  a  tes- 
fator  has  (Usposed  of  property  inter  vivos 
JD  trust,  the  law  of  the  country  in  which 
that  has  been  done  will  govern  the 
question  of  duty.] 

Sir  H.  Juta  (in  reply) :  The  English 
V?  '^'/fera  widely  from  our  Act.  As  to 
y^  liability  of  moveable  property  to 
°uty,  see  Hansen  (p.  22).  My  wliole 
<»ntention  is  that  the  Acts  look  to  the 
P*Jon  and  not  to  the  property. 

WMsdorp,  J.,  said  section  1  of  Act  5 


of  1864,  upon  the  interpretation 
ol  which  the  decision  of  this 
matter  depends  is  almost  identical 
with  the  corresponding  section  in  the 
English  Succession  Duty  Act.  The  chief 
difference  exists  in  the  express  exemp- 
tion from  duty  of  immovable  property 
out  of  the  Colony,  but  ni  view  of  the 
principles  upon  which  the  question  is 
dealt  with,  this  exemption  may  almost 
be  regarded  as  surplusage,  xne  Eng- 
lish decisions  upon  the  question  raised 
in  this  case  go  off  entirely  u^ion  general 
rules  and  finst  principles  of  law  which 
are  common  not  only  to  our  law  and 
English  law,  but  also  to  the  law  of  almost 
all  civilised  nations,  and  they  may  .there- 
fore, be  taken  as  safe  guides,  if  not 
conclusive  authorities  in  the  determina- 
tion of  the  issue.  The  intestate  whose 
succession  m  in  question^  though  he  died 
in  India,  was  at  the  time  of  his  death 
domiciled  in  Scotland,  and  the  ]}ersonal 
property  in  question,  to  which  his  heirs 
succeed  is  situate  in  this  colony.  Now,  in 
the  decided  cases  in  England  ic  has  been 
clearly  and  finally  jaid  down  that  if  a 
person  dies  domiciled  in  England, 
testate  or  intestate,  and  whether  or  not 
it  be  necessary  to  have  recourse  to  a 
foreign  tribunal  for  the  administration 
of  portion  of  the  property  situate  in  a 
foreign  country,  and  wherever  the  heirs 
may  happen  to  be,  the  personal  pro- 
perty of  such  person,  wherever  situate, 
IS  subject  to  English  legacy  duty  and 
succession  duty.  Whereas,  on  the 
other  hand,  if  under  similar  circum- 
stances a  person  dies  domiciled  out  of 
England  his  personal  property  situate 
in  England  is  not  liable  to  English  leg- 
acy duty  or  succession  duty.  These 
decisions  are  based  upon  the  rule  that 
the  personal  property  of  a  person  must 
be  taken  to  be  where  he  is  domiciled, 
upon  the  maxim  mobila  ttcqwUur  per- 
sonam. It  is  quite  within  the  power 
of  any  country  to  tax  the  property  of 
foreig^ners  within  its  jurisdiction,  but 
such  intention  is  not  presumed  unless 
it  is  clearly  expressed.  After  the  law 
had  been  settled  as  abovementioned  by 
the  English  decisions,  the  case  of  the 
Attorney -General  v.  Campbell  came  be- 
fore the  Muster  of  tho  Rolls  in  England, 
and  he  held  accordingly  that  a  certain 
fund  in  England  passing  under  the  pro- 
visions of  the  will  of  a  testator  domi- 
ciled abroad  was  not  liable  to  succession 
duty.  _  Upon  appeal  to  the  House  of 
Lords  it  was  held  that  this  case  was  to 
be  distinguished  from  those  upon  which 
tho  decision  of  the  Master  of  the  Rolls 
proceeded,  in  that  the  fund  which  form- 
ed the  subject  of  the  succession  was  a 
settled  fund  under  an  English  settle- 
ment made  by  the  testator,  and  no  lon- 
ger^ followed  his  domicile,  but  becamo 
subject  to  succession  duty.  It  is  con- 
tended on  behalf  of  the  Master  in  this 
case  that  the  succession  of  tho  heirs  in 
Scotland  is  in  respect  of  a  settled  fund 
under  a  Colonial   settlement,   and      that 


312 


"CAPE  TIMES**   LAW  REPORTS. 


they  succeed  under  the  trusts  of  a 
marriage^  settlement  executed  in  this 
country  in  respect  of  property  situate 
here.  The  deceased  John  N.  Stouart, 
who  died  before  he  attained  his  ma- 
jority, would  have  bocoino  entitled  to 
the  nosarasion  of  the  fund  upon  his 
attaining  majoritv,  and  it  is  agreed  on 
both  siaes  that  the  fund  vested  in  him 
upon  the  death  of  his  parent,  and  that 
his  heirs  in  Scotland  are  entitled  to  suc- 
ceed to  it.  In  my  opinion  these  heirs 
succeed  to  a  settled  estate  in  this  coun- 
try under  a  settlement  executed  here, 
and  that  fund  is  liable  to  succession 
duty.  Act  4  of  1895  does  not  seem  to 
me  to  affect  this  case.  It  having  been 
decided  that  succession  duty  is  payable, 
the  question  arises  at  what  rate  is  it  to 
be  charged.  It  is  provided  by  section 
15  of  the  Act  that  "  where  the  interest 
of  any  successor  in  any  property  shall, 
before  he  shall  have  become  entitled 
thereto  in  possession,  have  proved  by 
reason  of  death  to  any  other  successor 
or  sucoessore,  then  one  dut^  only  shall 
be  paid  in  respect  of  such  mterest,  and 
shall  be  due  by  the  successor  who  shall  first 
become  entitled  thereto  {possession),  but 
such  duty  shall  be  at  tne  highest  rate 
which,  if  every  such  succession  had  been 
subject  to  dutv,  would  have  been  pay- 
able by  any  of  them."  It  appears  that 
if  John  Nairn  had  succeeded  the  duty 
would  have  been  at  the  rate  of  1  |>er 
cent.,  u]>on  the  succesaion  of  his  heirs 
the  rate  ia  5  per  cent.  The  Court  there- 
fore declares  that  succession  duty  is  pay- 
able in  this  ca»e  at  the  rate  of  5  per  oetn., 
costs  to  be  paid  out  of  the  estate. 

[Petitioner's  Atorneys :  Friedlander 
and  Du  Toit ;  Respondent's  Attorneys : 
Reid  and  Nephew.} 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Hon.  Sir  John  Buguanak.] 


DIVORCE. 


RKED  V.  REED. 


1905. 
Apr.  26th. 


This  waa  an  aotion  brought  by  Au- 
gust Salemon  Reed,  of  Philip's  Town, 
a  maaon,  against  his  wife,  Francina 
Reed,  of  Hanover,  for  restitution  of 
conjugal  rights,   failing  which,    divorce, 


by  reason  of  the  unlawful  and  malicious 
ilesertion  of  plaintiff  by  defendant. 

The  declaration  set  out  that  the  par- 
ties were  married  in  community  of  pro- 
perty at  the  Dutch  Reformed  Mission 
Church,  Hanover,  in  January,  1892. 
There  was  no  issue  of  the  marriage. 
Within  three  months  of  the  marriage 
defendant  unlawfully  and  maliciously 
deserted  the  plaintiff  and  had  been 
absent  from  him  since,  although^  re- 
quested to  return  to  him.  Plaintiff 
prayed  for  a  decree  of  restitution,  fail- 
ing which  divorce,  and  forfeiture  of  de- 
fendant's half  share  of  ^  property. 

Mr.  Van  Zyl  was  for  the  plaintiff; 
the  defendant  was  in  default. 

Mr.  Van  Zyl  said  that  defendant  had 
been  barred  from  pleading  and  in 
consequence  of  the  plaintiff  being  old 
and  infirm  leave  was  obtained  for  the 
Court  ^  to  have  his  evidence^  taken  on 
commission  before  the  Civil  Oommia- 
sioner  of  Philip's  Town.  Oounael  hav- 
ing  read  the  evidence  taken  on  oommia- 
sion, 

A  decree  of  restitution  waa  granted, 
with  costs,  defendant  to  return  to  or 
receive  the  plaintiff  on  or  before  the  lat 
June,  failing  which  rule  to  issue  cal- 
ling on  the  defendant  to  shew  cause 
on  the  15th  June  why  an  order  for  di- 
vorce should  not  be  granted  and  why  de- 
fendant should  not  be  declared  to  have 
forfeited  any  rights  accruing  from  the 
marriage. 

Postea  (June  15th).    Rule  absolute. 


TRIAL  CAUSE. 


LE  ROUX  V.  MARAI8  AKD  OTHERB. 

Preaoription. 

This  was  an  aotion  brought  by 
Thomas  Jacobus  le  Roux,  junior,  of  Cale- 
don,  against  Johasmes  Petnis  Maraia, 
of  Caledon,  and  the^  Cc^onial  Govern- 
ment and  the  Municipality  <^  Caledon 
for  the  declaration  of  rights  in  respect 
of  a  certain  strip  of  land,  an  in- 
terdict against  the  first  defendant  asid 
also  dama^ree  against  him  for  trespass. 

The  plaintiff's  declaration  was  as  fol- 
lows: 

1.  The  plaintiff  and  the  first  defend- 
ant reside  at  Caledon  and  are  the  reg- 
istered owners  of  certain  erven,  in  Mill- 
street,  in  the  Municipality  of  Caledon, 
the  plaintiff  of  erf  La  H,  No.  15,  and 
the  said  defendant  of  erf  La  H,  No.  16 
in  the  eaid  atreet. 

2  Between  the  boundaries,  according 
to  diagram  of  the  said  erven  there  lies 
a  strip  of  land  which  has  never  been 
granted  from  the  Crown,  and  ^  which 
would  appear  to  have  been  originally 
set  apart  as  a  road  or  paasaoe,  but  dur- 
ing a  period  of  much  more  than  50  Tears 
the  said  strip  of  land  has  been  enclosed 


"CAPE  TIMES"  LAW  REPORTS. 


RIS 


and  oontinuoualy  poesessed  and  lued 
advenely  as  and  of  ri^ht  as  against  the 
other  defendants  by  the  plaintiff,  and 
the  first  defendant  and  tficir  predeces- 
sors in  title. 

3.  There  existed  for  more  tl>an  40 
yeans  and  until  recently  iip<^>n  the  said 
strip  of  land  a  certain  quince  hedge 
which  the  plaintiff,  the  first  defendant 
and  their  predecessors  in  title  at  all 
times  recognised  as  the  boundary  between 
their  respective  properties,  and  the 
plaintiff  and  his  predecessors  in  title  for 
the  period  of  40  years  and  upwards  have 
rontmnouBly  possessed  and  used  adverse- 
ly and  as  of  right  pro  domino  the  por- 
tion of  the  aforesaid  strip  of  land 
bounded  by  the  sand  quince  hedge,  and 
the  ownership  of  the  said  portion  of  the 
said  strip  has^  been  by  prescription  ac- 
qaired  as  against  the  Colonial  Govern- 
ment and  the  Municipality  of  Caledon 
and  generally  as  against  all  persons 
whatsoever. 

4.  In  or  about  the  month  of  April 
1904.  the  first  defendant  wrongfully  and 
■nlawfully  in  part  cut  down  the  said  quinoo 
oedge,  whereupon  the  plaintiff  by  his 
Attorneys  protested  against  the  said  acts 
of  the  first  defendant  and  threatened  to 
hnng  an  action  for  a  declaration  of 
nghts  and  for  damages. 

5*  Thereafter  in  the  month  of  June, 
Iw.  the  first  defendant  by  his  Attor- 
neys in  consideration  of  a  settlement  of 
the  dispute,  and  an  abandonment  by 
the  plamtiff  of  his  intention  to  bring  the 
said  action,  proposed  that  the  first  de- 
fendant should  recognise  the  said  hedge 
as  the  boundary  of  his  said  erf  and  of 
that  of  the  plaintiff,  and  that  if  the 
plaintiff  was  satisfied  that  he  was  the 
owner  or  entitled  to  the  land  on  his  side 
of  the  said  hedge,  the  said  hedge  should 
for  the  future  be  viewed  as  the  com- 
mon boondary  between  them,  and  the 
plaintiff  by  bis  Attorneys  thereafter 
apeed  to  aocepi  the  said  proposal  and 
atMndoned  his  intention  to  bring  the 
said  action  and  settled  the  dispute  in 
aooordanoe  with  tlw  said  proposal. 

6.  Thereafter  in  violation  of  the  plain- 
tilTs  rights  acquired,  as  set  forth  in 
P&ngraph  3,  and  also  in  breach  of  the 
■jpeement  so  arrived^  at  as  aforesaid, 
the  first  defendant  in  the  months  of 
October  and  November,  1904,  trespassed 
open  the  plaintiff'fl  land  acquired  by 
him  b^  prescription  as  aforesaid  and 
i^eeognised  by  toe  said  agreement  as  his 
property,  and  more  especially  in  the 
month  of  November,  1904,  the  first  de- 
fendant wrongfully  and  unlawfully  so 
trespassed  and  placed  iron  standards  and 
a  wire  fence  on  the  said  land  on  the 
plaintiff's  ti^  of  the  said  quince  hedge, 
enclosing  the  said  hedge  a-nd  a  portion 
of  the  plaintiff's  said  land.  The  first 
defendant  has  caused  damages  to  the 
plaintiff  in  tbe  sum  of  £50. 

7.  The  Colonial  (rOTemment^  and  the 
Municipality  of  Caledon  are  joined  in 
this  rait  in  order  that  the     plaintiff's 


rights  in  respect  of  the  aaid  land  may 
be  declared  in  respect  of  the  said  land, 
but  no  costs  are  a^kod  against  cither  of 
tho9«  dofendfiiit.s  who  do  not  (lisinilo 
the  plaintiff's  titio  to  the  said  land 
bounded  by  the  said  quinoo  hedge. 

Wherefore  the  plaintiff  prays  for:  (a) 
An  order  declaring  that  he  is  by  pre- 
scription and  by  tho  agroomont  referred 
to  in  paragraph  5.  entitled  to  the  said 
land  bounded  by  the  said  quince  hedge, 
and  lying  between  the  said  hedge  and 
the  erf  La  H,  No.  15,  in  Mill-street,  in 
the  Municipality  of  Caledon;  (b)  An 
order  compelling  the  first  defendant 
forthwith  to  remove  the  said  iron  stand- 
ards and  wire  fence  and  restraining 
him  by  perpetual  interdict  from  tres- 
passing upon  the  said  land:  (c)  Judg- 
ment against  the  first  defendant  for  £50 
sterling  by  way  of  damages;  (d)  Other 
relief;   (e)  Costs  of  suit. 

Mr.  Searle,  K.C.  (with  him  Mr.  Sut- 
ton) for  plaintiff.  Defendants  in  de- 
fault. 

Mr.  Searle  said  that  upon  these  pro- 
ceedings being  taken  the  plaintiff's  at- 
torney wrote  to  the  Colonial  Govern- 
ment and  the  Caledon  Municipality  and 
now  had  letters  from  those  authorities 
to  say  that  they  did  not  intend  to  de- 
fend the  action.  The  first  defendant 
had  now  been  barred  from  pleading  and 
did  not  enter  appearance. 

Buchanan,  J.,  said  that  a  letter  had 
been  received  from  the  first  defendaat 
stating  that  the  plaintiff  bad  no  right 
to  the  land  in  question  and  that  he  sold 
it  to  him  (the  writer)  in  1885  upon  the 
purchase  of  land  on  the  other  side. 
Marais  added  that  he  had  been  advised 
bv  his  friends  not  to  appear  as  the 
Court  could  not  take  away  any  ground 
which  was  marked  off  by  a  surveyor  as 
belonging  to  him.  He  thought  it  would 
b3  best  for  the  plaintiff  to  look  into 
that  point. 

Mr.  Searle  said  thev  would  do  to. 

Evidence  was  called. 

Johan  Frederick  Willem  Kaupferber- 
ger.  Government  Land  Surveyor,  said  he 
had  surveyed  lots  15  and  16  of  the  Mill- 
street  erven  and^  he  explained  the  points 
of  the  plan  put  in 

Johannes  Jacobus  le  Roux  (the  plain- 
tiff) and  others  gave  evidence. 

At  a  later  stage  Mr.^  Searle  produced 
a  copy  of  the  transfer  in  question. 

Judgment  was  given  for  the  plaintiff 
against  all  the  defendants  in  terms  of 
prayers  (a)  and  (b)  of  the  declaration, 
and  against  the  first  defendant  (Marais) 
for^  £5  damages  and  costs,  to  include 
plaintiff's  expenses  as  a  necessary  wit- 
ness. 

[PlaintifTs  Attorneys :  Van  Zyl  and 
Buissin^.] 


814 


<f 


CAPE  TIMES"   LAW  REPORTS. 


SECOND  DIVISION. 


[  Before  the  Hon.  Mr.  Justice  M  aasdobp.] 


DIVORCE. 

KAUBENHSIHEB  V.  RAUBEN-  f        1905. 

HEIllEB.  )  Apr.  25th. 

This  wfiA  an  action  brought  by  the 
husband  for  restitution  of  conjugal 
rights,  failing  which  divorce,  bv  reason 
of  alleged  desertion  by  his  wife.  Mr. 
P.  S.  T.  Jones  was  the  the  plaintiff. 

The  defendant  appeared,  and  said  that 
she  had  left  her  husoand  because  he  had 
not  supported  her,  and  she  did  not  in- 
tend to  return  to  him  because  he  could 
not  support  her. 

Decree  of  restitution  granted,  defen- 
dant to  return  to  the  plaintiff  on  or  be- 
fore the  15th  May,  failing  which  rule  to 
issue  calling  upon  her  to  show  cause  on 
the  15th  June  why  a  decree  of  divorce 
should  not  be  granted,  and  plaintiff  be 
declared  to  have  custody  of  the  minor 
child,  a  girl. 

Posten  ( 


TRIAL   CAUSE. 


MCLEOD  V.  JOUBRRT. 

This  was  an  action  brought  by  William 
Jame^  McLeod,  conveyancer,  of  Caoe 
Town,  formerly  carrying  on  business  a* 
an  auctioneer  and  general  dealer  a 
Aberdeen,  against  Johannes  A.  Joubert, 
farmer,  Aberdeen,  to  recover  a  sum  of 
£15  15s.  lid.,  alleged  to  be  due  by  way 
of  dobt,  with  interest  a  tempore  mora 
and  costs. 

The  plaintiff,  in  his  declaration,  al- 
leged that  a  sum  of  £15  15b.  lid.  was 
due  to  him. 

The  defendant,  in  his  plea,  said  that 
he  had  already  paid  a  sum  of  £10  in 
part  payment  of  the  account  to  Mr. 
Smytne,  who  took  over  the  plaintiff*s 
business.  He  admitted  that  a  balance 
of  £5  15s.  lid.  was  due,  and  made  a 
tender  accordingly. 

The  plaintiff,  in  his  replication,  said 
that  the  defendant  gave  him  a  certain 
promissory  note  for  £26  12s.  9d.,  and 
that,  taking  the  sum  of  £10  into  account, 
there  was  still  an  amount  due  of  not  less 
than  the  amount  claimed.  The  said 
sum  of  £10  was  paid  as  against  the  pro- 
missory note. 

Mr.  Gardiner  was  for  the  plaintiff; 
Dr    Greer  was  for  the  defendant. 

Maasdorp,  J.,  ruled  that  the  onus  lay 
upon  the  defendant  to  prove  that  the 
payment  of  £10  was  in  respeot  of  the 
open  account. 

Evidence  having  been  led  for  the  plain- 
tiff, 


Mr.  Gardiner  argued  that  the  amount 
of  £10  was  paid  towards  partial  diicharge 
of  the  promissory  note,  and  that  the 
plaintiff  had  taken  a  proper  remedy  in 
bringing  his  action  in  this  Court. 

Dr.  Greer  contended  that  the  balance 
of  the  evidence  was  in  favour  of  the 
statement  of  the  defendant,  that  he  had 
paid  the  sum  of  £10  in  reduction  of  the 
o{>en  account.  The  plaintiff,  he  sub- 
mitted, had  multiplied  and  piled  up  costs 
against  the  defendant  ana  the  Court, 
even  if  it  found  for  the  plaintiff,  should 
not  award  costs  to  him. 

Mr.  Gardiner  having  been  heard  in 
reply, 

Maasdorp,    J. :    The    plaintiff   in    this 
case  claims  from  the  defendant  the  sum 
of  £15  156.    lid.,   being   the  balance  of 
an  account,  the  items  of  which  are  an- 
nexed  in   full  in  the  plaintiff's  declara- 
tion.    The  account  consists^  of  items^  of 
an  open  account  and  other  items  having 
reference    to    the    indebtedness    of    the 
debtor    to    the    plaintiff    upon    a    pro- 
missory note,  to  which  he  nad  become 
surety.        The   indebtedness  of   the  de- 
fendant   upon    this    account   runs    over 
the  years  1902  and  1903.     It  would  ap- 
pear   that   at   the    same  time  that  this 
account     was     running     the     defendant 
also  owed   the  plaintiff  a  sum  of   £26 
12s.   9d.   upon   a  promissory  note  made 
by  him  on  the  loth  June,  1905.   which 
fell  due  on  the  15th  July.  1903.    It  aeems 
that    during   August,     1903,     this    pro- 
missory    note     was      partly      renewed 
by       another,       for       the       sum       of 
£17  19s.  3d.,  a  payment  on  account  hav- 
ing in  some  form  been  made  by  the  de- 
fendant to  the  plaintiff.      The     ciroum- 
stances  under  which  that  payment  waa 
made  have  really  given  rise  to  this  action, 
and  I  may  say  the  suit  is  largely  the  re- 
sult of  a  misunderstanding  between  the 
parties.      The  defendant  alleges  that  he 
paid  a  sum  of  £10,  on  the  7th  August, 
1903,  to  the  agent   of   the   plaintiff,    at 
Aberdeen,    and    he    says    that   he    paid 
this  amount  and  expected  it  to  be  set  off 
against  his  open  account,  upon  which  he 
is  now  sued  by  the  plaintiff.  -   However, 
in  August,  he  had  an  interview  with  the 
plaintiff,   in  which  the  plaintiff  brought 
t>3  hie  knowledge  that  a  promissory  note 
for  £26  12s.  9d.  was  due.    The  plaintiff 
also  then  admitted  to  the  defendant  that 
he  had  received  the  sum  of  £10,   which 
he  suggested  should  be  set  off  against  that 
promissory  note,   the  renewal  of  which 
it  had     been     already     agreed     should 
be  made  by  the  defendant  in  favour  of 
tha  plaintiff.     It  ap{>ear8  that  credit  was 
given  by  the  plaintiff  for  the  £10  paid 
by  the  defendant.    When  this  suit  arose, 
it  appeared    to  the  defendant   that   no- 
where wae  an  acknowledgement  made  of 
the  receipt   of  the   £10,  and   he   conse- 
quently endeavoured  to  set  up  the  pay- 
ment of  the  £10  against  the   open   ac- 
count, and  here,   as  I  say,  a  misunder- 
standing arose     between      the      parties. 
When  the  defendant  proposed  to  set  off 


s* 


CAPE  TIMES"  LAW  REPORT& 


315 


thftt  £10  against  the  open  account  he 
wts  not  at  the  time  informed  by  the 
pluDtiff  that  he  had  already  given  him 
credit  for  the  £10,  and  that  he  set  it  oflf 
against  the  promissory  note,  for  which 
he  had  granted  a  renewal.  If  the  matter 
had  been  cleared  up  between  the  par- 
ties at  that  time,  I  am  sure  that  the 
ease  would  not  have  proceeded  any  fur- 
ther, because  the  defendant  would  fully 
hare  nnderatood  that  he  had  received  cre- 
dit for  the  £10.  At  one  time  the  plain- 
tiff was  unwilling  to  admit  that  the  pay- 
ment made  to  Smsrthe,  which  had  been 
made  by  the  defendant,  was  a  payment 
to  himself  through  his  agent,  for  which 
the  defendant  ought  to  receive  credit, 
hut  that  state  of  affairs  was  wholly  al- 
tered when  the  plaintiff  filed  his  repli- 
cation. In  the  pleadings,  it  will  be  seen 
that  what  the  defendant  had  contended 
for  was  admitted  by  the  plaintiff.  I 
have  come  to  the  conclusion  that  the 
monev  was  paid  for  the  promissory  note, 
and  that,  when  the  defendant  signed  a 
lenewal  of  the  promissory  note,  he  was 
a  consenting  party  to  the  £10  licing 
treated  as  in  part  payment  of  the  original 
rote.  Upon  the  defendant  receiving  the 
replication,  all  the  diflficulties  which  had 
Qp  to  that  time  existed  were  removed, 
and  it  wa^  consequently  brought  to  the 
notice  of  the  defendant  that  he  had  re- 
ceived full  credit  for  the  £10  paid  by 
him.  Under  the  circumstances,  the  £10 
cannot  now  be  set  off  against  the  ac- 
count, which  is  annexed  to  the  declar- 
*Hon,  but  the  plaintiff  is  entitled  to 
judgment  upon  •  that  account.  The 
question  arises  whether  under  the  cir- 
ccmstanoes,  considering  the  amount  of 
the  claim,  the  plaintiff  should  have  his 
costs  in  this  case.  Now,  as  has  been 
pointed  out  by  counsel,  upon  the  au- 
thorities cited,  the  Act  of  Parliament,  in 
vhich  the  power  of  the  Court  in  this 
rw^pect  is  granted,  does  not  allow  the 
Court  discretion  to  hold  in  a  case  like 
th*"  present  that  a  plaintiff  is  only  en- 
titled to  Magistrate  »  Court  costs.  A 
further  difficulty  arises  in  my  mind 
whether  the  plaintiff  should  not  be  dis- 
entitled to  his  costs  on  other  i^rounds, 
because  of  his  having^  at  one  time  de- 
nied the  receipt  of  the  money.  But, 
as  I  Bay,  with  respect  to  the  costs,  the 
Court  cannot  now  go  back  upon  the  state 
cf  the  case  before  the  replication  was 
wived,  and  when  the  replication  was 
»rved,  that  difficulty  was  removed,  and, 
although  there  may  have  been  some 
doubt  still  in  the  mind  of  the  defend- 
ant, whether  lie  had  received  the  full 
credit  he  was  entitled  to,  still,  for  that 
dcubt  he  is  himself  only  to  blame.  He 
k  no  doubt,  not  a  good  business  man, 
he  was  not  aware  that  he  had  signed  a 
renewal  of  the  former  promissory  note, 
which  has  been  clearly  proved,  and  under 
the  circumstanoes  I  think  the  difficulties 
under  which  the  defendant  laboured  were 
the  result  of  a  bad  memory  and  business 
incapacity,  but  for  this     the      plaintiff 


should  not  suffer.  Judgment  will  be 
given  for  the  plaintiff  for  the  amount 
claimed,   with  costs. 

[Plaintiff's  Attorney:  R.  G.  McLeod; 
Defendftiit's  Attorneys:  Dempers  and 
Van  Ryiieveld.] 


GENERAL  MOTIONS. 


BRUMMER  V.  ESTATE  STETN 


•I 


1905. 


Apr.  2»th. 

Mr.  P.  S.  T.  Jones  moved  for  the  rule 
niii  calling  upon  the  respondent,  as  exe- 
cutrix testamentary  in  her  late  husband's 
estate,  to  show  cause  why  she  should  not 
sign  oertain  papers  for  the  sub-division 
of  a  certain  farm  to  be  made  absolute. 

Rule  made  absolute,  with  costs. 


Ex  parte  EfiTATB  EDKINB. 

Mr.  Gardiner  moved  for  leave  to  pay 
over  proceeds  of  policy  of  assuranoe  to 
Mrs.  Edkin«j  and  to  discharge  petitioner 
from  the  office  of  trustee.  The  Master's 
report  was  favourable. 

Order  granted  in  terms  of  Master's  re- 
port. 


JSjb  parte  dath. 

Mr.  Gardiiier  moved  for  leave  to  sell 
certain  propertv.  Petitioner  married 
the  widow  of  the  late  Mr.  EMiott,  and 
thej  had  executed  a  mutual  will,  in 
which  they  ajjpointed  the  children  of 
the  first  marriage  and  any  children  to 
be  ,bom  of  the  second  marriage  to  be 
their  heirs.  The  seoond  marriage  was 
without  issue.  Petitioner's  wife  had 
since  died,  petitioner  was  in  bad  health, 
there  were  certain  charges  to  be  met— 
£1,000  odd  annually— and  ho  desired  to 
sell  such  properties  as  produced  a 
low  rent,  and  put  out  the  proceeds  on 
mortgage.  The  outgoings  were  a 
little  in  excess  of  the  income  from  the 
property.  Petitioner  applied  for  an 
order  for  the  appointment  of  Mr.  G. 
W.  Steytler  to  sell  such  properties  as 
he  thought  fit.  Counsel  said  that  the 
Master  m  his  report  pointed  out  that 
this  was  not  a  favourable  time  for  the 
sale  of  landed  property,  but  he  (Mr. 
Gardiner)  contended  that  the  interests 
<rf  all  ooncemed  would  be  protected  if 
a  reserve     price  were  fixed. 

Maasdorp,  J.,  said  he  thought  it  was 
desirable  that  the  Court  should  have  a 
report  from  Mr.  Steytler  upon  the  mat- 
ter before  any  order  was  made.  The 
matter  would  therefore  stand  over  for 
further  information  from  Mr.  Steytler 
as  to  the  whole  matter,  but  especially 
as  to  which  properties  should  be  dis- 
posed of  or  mortgaged  to  meet  the  ro- 
quiremente  of  the  oa«e. 


316 


it 


CAPE  TIMES"  LAW  REPORTS. 


KBAfiMUS  V.  VAN  DBR  MERWE. 

Mr.  De  Waal  moved  for  a  rule  nwi 
calling  upon  the  reepondent  to  bHow 
cause  why  a  certain  inheritance  of  xilUU 
due  to  hina  should  not  be  declared 
executable  to  a  judgrment  obtained  by 
the  petitioner  to  be  made  absolute. 

Rule  made  absolute. 


MAKGOSOA  V.  FLAG  MINI. 

Mr.  Alexander  moved  for  an  order  of 
personal  attachment  ag-ainst  the  respon- 
dent for  contempt  of  Court,  in  failing 
to  restore  to  the  applicant  her  female 
child.  Lily  Malefani,  in  accordance 
with  an  order  of  the  Court.  Counsel 
read  an  affidavit  by  the  petitioner,  who 
stated  that  the  respondent  had  failed  to 
restore  the  child,  and  had  declared  his 
intention  of  not  returning  the  child.  He 
added  that  the  respondent  had  never 
appeared  in  court.  The  applioant  was 
the  mother  of  the  child,  and  it  appeared 
that  the  respondent  had  obtained  pos- 
seesion  of  it  by  a  subterfuge,  and  was 
retaining  it  because  the  applicant  had 
refused  to  marry  him.  The  respondent 
resided  at  Aliwal  North. 

An  order  was  granted  directing  the 
reepondent  to  deliver  the  child  to  the 
Deputy-Sheriff  at  Aliwal  North,  and 
directing  the  Deputy-Sheriff  to  take  the 
child  from  the  respondent  and  place  it 
in  the  possession  of  the  applicant;  re- 
spondent ordered  to  pay  the  costs  of 
this   application. 

Maasdorp,  J.,  said  ho  thought  that 
the  defendant,  seeing  that  the  demand 
for  restoration  of  the  child  had  been 
made  upon  him  by  the  applicant's  agent, 
had  not  really  understood  that  he  was 
disobeying  an  order  of  Court  in  refusing 
to  give  up  possession. 


SUPREME  COURT 


[Before  the  Chief  Justice  (the  Rijrht 
Hon.  Sir  J.  H.  de  Villiers,  P.O., 
K.C.M.G.,  LL.D.),  and  the  Hon. 
Mr.  Justice  Maasdorp.] 


TllIAL  CAUSES. 


KRUGER  V.  KRUGER. 


i         I90n. 

iApr.  26th. 


Will  —  Codicil  —  Construction  — 
Bequest  by  implication. 

A  testator^   hy  codicil   to   his 
ivill,  bequeathed  a  farm  to  his 


gramlnon  A .,  "  upon  this  under- 
standing tluii  he  shall  not  be 
able  to  sell  the  farm^  but  that 
afte^'  his  death  and  that  of  his 
tcife  it  shall  devolve  upim  hia 
eldest  «/m."  A.  married  his 
first  wife  after  the  testator's 
death ^  and  after  hei'  death  he 
was  twice  mar>  led.  Upon  the 
death  of  A .,  the  plaintiffs  being 
his  eldest  son  by  his  first  wife^ 
took  possession  of  the  farm. 

Held,  in  an  action  by  A. 'a 
widow,  being  his  third  wife, 
claiming  a  life  interest  in  tho 
farm,  tliat  the  wife  referred  to 
in  tlie  codicil  was  the  mother 
of  the  eldent  son  of  A.^  ami 
that  the  defendant,  as  such 
eldest  xow,  mas  entitffd  to  the 
farm  after  the  death  of  his 
father  an  t  mother. 


This  was  an  action  brought  by  Hester 
Carolina  xvruger,  widow  of  the  late  Abra- 
ham Ludevicus  Kruger,  of  Steynfiburgf,^ 
against  Jacob  Pctru.s  Kruger,  for  an' 
order  of  eviction  from  the  farm  Mors- 
fonteiii,  in  the  district  of  Cradock,  and 
also  for  damages. 

From  the  pleadings     it    appeared  that 
the  circumstances  were  as  follows :  By  the 
codicil  to  a   certain   will  a    bequest   waa 
made  to  a     grandson     called  Abraham, 
whose  widow  plaintiff  was.  That  bequest 
was  embodied  in  a  codicil  in  the  follow- 
ing terms:     To  our  grandson,  Abraliani 
Lodevicus  Kruger,  the  perpetual  quit-rent 
farm  named  Morsfonteiii,  situate  in  the 
Field-cornetcy  of  Brak  River,  aforesaid, 
for  which  he  shall  indemnify  and  pay  to 
our  estate  the  sum  of  four  thousand  Rix 
dollars,    also    upon    this    understanding, 
that  he  shall  nut  bo  able  to  sell  the  said 
farm,  but  that,  after  his  death  and  that 
of  his   wife   (it),   shall  devolve   upon   hi^i 
oldest  son ;    out,   in  case  he  should   die 
unmarried,  the  said  farm  shall  then  fa.ll 
back  to  our  joint  estate,  which  shall  also 
take  place  after  the  death  of  his  wife,  as 
well  a. 4  hio  own,   in  case  he  should  die 
without  leaving  children.     And  that  the 
ground  and  the  dam,  of  which  a  fieparate 
diagram  exists,  and  ivhich  are  at  present 
used    with   the   farm  Morsfontein,    shall 
be  regarded  exactly  as  if  the  same  were 
incluiled  in  one  and  the  same  diag^ram 
and  title  deed,  to  be  assumed  and  pos- 
sessed by  our  two  last-named  legatees  for 
alwavs   after  the  death  of  both  of   ua ; 
and,  in  case  of  their  predecease,  as  her^' 
inbefore  mentioned,  by  their  lawful  de- 
scendants by  representation,  as  free  and 
lawful   property,    without  the  contradic- 
tion   of  anyone."    Tho   testator  died    in 
January,  1843.  at  which  time  the  grand- 
son Abraham  waa  a  boy  about  13  year?  of 


"CAPE  TIMES"  LAW  REPORTS. 


317 


•ge.  Subeequently  Abrahakin  married,  and 
by  his  first  marriage  there  was  born  the 
defeoduit.  Then  Abraham  married  a 
second  time,  and  afterwards  he  married 
ft  third  time,  and  it  was  his  widow  by 
the  third  marriage  wbo  had  instituted 
the  present  6uit.  Abraham  died  in  Oc- 
tober, 1904,  and  the  plaintiff  claimed 
thftt  under  this  codicil  she  was  entitled 
to  remain  in  poiise&sion  of  the  farm  Mors- 
fontein  during  her  life. 

The  declaration  further  stated  that  the 
defendant,  Jacob,  the  eldest  son,  had 
taken  possession  of  the  farm,  and  the 
plaintiff  claimed  that  she  was  en- 
titled to  have  possession  during  her 
life.  There  was  also  a  claim  for 
damages.  The  plaintiff  hereelf  wa^ 
unable  to  come  to  Oajpe  Town,  and  she 
bad  abandoned  the  claim  for  damages, 
and  the  question  simply  arose  a&  to  the 
con.nruction  of  this  coaicil.  The  defen- 
dant, in  his  plea,  said  that  the  marriage 
was  without  community  of  goods.  He 
dkeented  from  the  construction  placed 
upon  the  will  by  the  plaintiff,  and  denied 
the  correctness  of  that  construction.  He 
admitted  having  taken  possession  of  the 
farm,  and  that  he  now  occupied  it,  but 
said  that  he  was  lawfully  entitled  to  do 
so,  and  he  refused  to  give  up  possedsion. 
He  ako  said  that  the  plaintiff  voluntarily 
quitted  the  farm  after  the  death  of  hi9 
(defendant's)  father. 

Sir  H.  Juta.  K.O.  (with  him  Mr.  Sut- 
ton) for  plaintiff.  Mr.  Searle,  K.C.  (with 
him  J.  E.  R.  De  Villiers)  for  defendant. 

Jacob  Petrus  Kruger  (the  defendant), 
■aid  that  ho  was  the  eldest  son  of  the 
late  Abraham  Lodevicus  Kruger,  of 
Stcynsburg,  by  the  first  marriage.  He 
was  now  occupving  the  farm  in  question, 
having  lived  there  from  his  eleventh  or 
twelfth  year,  that  was  since  about  1861. 
During  "his  father's  lifetime  witness 
bought  his  father's  life  interest,  paying 
about  £600  for  it.  Upon  his  father^ 
death  in  October,  the  plaintiff  left  the 
farm  nine  days  afterwards,  and  went  to 
Ht.*  with  her  son  by  a  previous  marriage, 
who  was  at  BethuUe.  Witness  first 
heard  in  January  that  she  was  making  a 
claim  to  the  farm,  receiving  a  notice  on 
the  27th  January.  The  farm  contained 
a  little  over  7,0iOO  morgcn.  His  step- 
mother (the  plaintiff)  was  not  qiiite  50 
vean  old ;  witness  was  55  years  old.  Wit- 
ness had  built  a  house  on  the  farm. 

Sir  H.  Juta  argued  that  there  waa  a 
bequest  by  implication  to  the  plaintiff, 
and  that  it  wa«  intended  that  Abraham's 
widow,  whichever  she  was,  should  enjoy 
tht*  usufruct  of  the  farm. 

Mr.  Searle  contended  that  the  testators 
only  contemplated  the  first  wife  of  Abra- 
ham, and  tnat  it  wbb  never  intended, 
seeing  that  an  eldest  eon  had  been  bom, 
that  the  widow  by  ^ny  subsequent  mar- 
riages should  have  any  enjoyment  of  the 
property.  In  this  case  they  had  a  lady 
wbo  was  claiming  against  the  eldest  son 
of  Abraham,  who  was  several  years  her 
senior.  The  intention  of  the  testators 
was  to  beqefit  the  eldest  «on,   and  not 


to   benefit   any  lady   who   was  not     th-j 
mother  of  the  eldest  son. 

Sir  H.   Juta  having  been  heard  in   re- 
ply, 

De  Villiers,  C.J. :  The  farm  in  question 
was  bequeathed  by  the  testators  to  their 
grandson,  Abraham  Kruger,  upon  this 
understanding,  that  "  be  shall  not  be  able 
to  sell  the  farm,  but  that  after  his  death 
and  that  of  his  wife,  it  shall  devolve  upon 
his  eldest  json."  H  the  codicil  had 
stopped  here,  I  would  have  had  no  doubt 
whatever  that  it  was  the  testator's  in- 
tention to  postpone  the  enjoyment  by 
the  eldest  son  until  the  death  of  his 
mother  as  well  as  his  father.  In  point 
of  fact,  Abraham  had  three  wives. 
The  defendant  in  the  present  case 
was  the  eldest  son  by  the  first 
wife.  The  third  wife  was  alive  at  the 
time  of  Abraham's  death,  and  she  now 
claims  that  i^he  is  the  wife  referred  to 
and  that  she  is  entitled  to  remain 
in  possession  during  her  lifetime,  exclud- 
ing the  defendant,  who  is  the  eldest  son 
of  the  first  wife.  In  my  opinion  the 
words  *'  after  his  death  and  that  of  his 
wife,"  must  be  held  to  refer  to  the  first 
wife,  the  mother  of  the  eldest  <«n.  If 
it  were  otherwise,  it  would  have  been 
i'.i  the  power  of  Abraham  practically  to 
oust  the  eldest  son.  In  his  old  age  he 
might  marry  a  young  wife,  and  this  young 
wife  would  step  in,  retain  the  property 
during  her  lifetime,  and  practically  oust 
the  step-son.  who  would  be  very  much 
older  than  she  is  herself.  In  the  present 
case  the  stepson  is  only  five  years  older, 
but  he  might  have  been  20  years  older  or 
more,  and  in  that  way  fhe  desire  of  the 
testators  would  be  completely  frustrated. 
That  could  never  have  been  the  intention 
of  the  testators.  Therefore,  in  my 
opinion,  even  if  a  bequest  could  be 
allowed  by  implication,  there  is  no  such 
necessary  implication  in  the  present  cas« 
as  to  justify  the  Court  in  holding  that 
the  third  wife  is  entitled  to  a  life  interest. 
But,  then,  there  is  a  further  clauso  in 
the  will,  and  the  Court  has  to  doHde 
whether  that  further  clauso  should  in 
any  way  affect  the  interpretation  the 
Court  would  place  upon  the  first  part  of 
th*»  codicil.  That  further  clause  says, 
"  But  in  case  he  shall  die  unmarried,  the 
said  farm  shall  then  fall  back  to  our 
joint  estate,  which  shall  also  take  place 
after  the  death  of  his  wife,  as  well  as 
his  own,  in  case  he  should  die  without 
leaving  children.'*  No  doubt,  this 
clause  throws  some  doubt  upon  the  con- 
struction the  Court  has  placed  upon  the 
first  part,  but,  in  my  opinion,  the  doubt 
is  not  of  such  a  nature  as  to  exclude  the 
interpretation  I  have  just  referred  to. 
It  may  well  be  that  the  testator  desired 
that  the  eldest  son  should  take  the  be- 
quest, and  thus  exclude  the  third  wife, 
but  in  that  case  there  were  no  children 
at  all.  There  is  nothing  to  show  that 
the  widow  of  Abraham,  even  if  not 
his  first  wife,  should  have  a  life  in- 
terest.    In  the  events  which  have  hap- 


318 


"CAPE  TIMES"   LAW  REPORTS. 


pened  tho  dofcndant  was  entitled,  after 
the  death  of  his  father  and  mother,  to 
the  benefit  of  the  b<»que8t.  For  these 
reasons  I  think  that  the  judgment  f  llie 
(yourt  should  bo  for  the  defendant.  In 
regard  to  the  costs,  I  think  defendant 
should  have  his  costs,  and  as  to  his  cx- 
pei.ses  as  witness,  under  the  cireum- 
stancos,  eeeing  that  tho  claim  for  dani- 
ages  was  not  withdrawn  until  to-day,  I 
think  the  defendant  is  entitled  to  his 
witness's  expenses. 

Maasdorp,  J.,   concurred. 

[Plaintiff's  Attorneys  :  Fairbridge, 
Arderne  and  Lawton ;  Defendant's  At- 
torneys:  Walker  and  Jacobsohn.J 


MALCOM£SS    AN 
GARY 


S-D    CO.     V.    J         lUOS. 

(Ai)r.   26th. 


Misjoinder  of  plaintiffs — Excep- 
tion— Compensation . 

M.  aiul  the  trustee  of  N.'a 
insolvent  estate  joined  in  an 
action  to  recover  the  amount 
*)f  certain  promissory  notes 
made  by  the  defendant  in 
favour  of  N,^  and  by  N.  en- 
dorsed before  his  insolvency^ 
in  favour  of  M.^  as  security  far 
certain  advances  made  to  N. 

Held,  that  in  the  absence  of 
any  j)rej'ud/cr  to  the  defendant 
from  such  johuler^  he  ivas  not 
entitled  to  except  thereto. 


This  was  an  argument  upon  an  excep- 
tion taken  by  the  defendant  to  the 
plaintiffs'  declaration.  The  plaintiffs, 
Malcomeas  and  C'o.,  of  East  London, 
and  IVtrr  yXugust  Reimers,  in  his 
capacity  as  sole  trustee  in  the  insol- 
vent estate  of  the  firm  of  H.  B.  Cary,  of 
Tarkastad,  brought  an  action  against 
Ihomas  Bovey  Cary,  to  recover  a  sum 
of  £414  2rt.,  upon  certain  promissory 
notes,  with  interest  a  itmpore  morac,  and 
costs. 

The  declaration  set  out  that  the  first 
plaintiff  carried  on  business  at  East 
London  and  elsewhere  under  the  style 
of  MjilcomesR  and  Company,  and  the 
second  plaintiff  joined  in  the  action 
in  order  to  oumpleto  the  record  and 
assist  tho  plaintiff,  as  far  as  n<?>ed  be, 
but  he  did  not  advance  any  claim  on 
})ehalf  of  creditors  in  such  insolvent 
estate,  other  than  that  of  tho  said 
Malcomess  and  Co.  to  the  proceeds  of 
the  promissory  notes,  in  respect  of 
which  the  defendant  was  sued  in  this 
matter.  The  two  promissory  notes  in 
question  were  made  by  the  defendant  in 
February,  1903,  for  amounts  of  £265  and 
£149  2s.  respectively,  in  favour  of  the 
firm  of  H.   B.   Cary,  or  their  order,  at 


the  Standard  Bank,  Tarkastad.  The 
said  notes  were  due  and  payable  en 
the  9th  May.  1903,  but  before  their 
maturity,  they  were  endorsed  by  lie 
firm  of  Cary  to  the  Standard  Bank, 
who  took  the  said  notes  with  others  to 
hold  for  and  on  account  of  Malcomeas 
and  Co.,  the  said  firm  of  Cary  having 
ceded,  assigned,  and  pledged  the  said 
notes^  to  Malcomess  and  Co.  by  way  of 
security  in  respect  of  the  liability  of 
the  latter  under  a  guarantee  to  the  ex- 
tent of  £8,000,  given  by  Malcomess 
and  Co.  to  the  said  bank  for  the  amount 
of  any  overdraft  of  the  firm  of  Cary. 
The  amount  of  the  overdraft  of  the 
firm  of  Cary  at  the  said  bank  was 
£2,447,  and  Malcomess  and  Co.  had 
been  called  upon  to  meet  the  said  notes, 
which  had  been  dishonoured. 

Sir  H.  Juta.  K.C.^  was  for  the  excipi. 
ent  and  defendant  m  the  action;  Mr. 
McGregor  was  for  the  respondents  and 
plaintiffs  m  the  action. 

Sir  H.  Juta  said  that  the  ezoeption 
was  to  two  plaintiffs  suing  the  defen- 
dant. ^  It  was  a  most  extraordinary 
proceeding  for  a  trustee  to  sue  together 
with  a  creditor.  If  the  debt  was  due 
to  tho  insolvent  estate,  then  the  trus- 
tee must  sue.  It  was  of  vital  import- 
ance to  the  defendant,  because  he  said 
that  there  were  mutual  ci-ed its  at  the  date 
of  the  insolvency,  which  he  would  be 
able  to  set  off  against  any  indebted- 
ness on  his  part  to  the  insolvent  estate, 
and  if  in  some  manner  or  other  this 
creditor  Malcomess  could  sue,  then  bo 
must  sue  on  his  own  behalf.  As  a 
matter  of  fact,  Malcomess  had  sued  for 
provisional  sentence  on  these  pro- 
missorv  notes.  Defendant  opposed  on 
certain  grounds,  and  the  Court  refused 
provisional  sentence,  and  ordered  Mal- 
comess to  go  into  the  principal  case. 
Malcomess.  after  a  time,  instead  of  go- 
ing int<^  the  principal  case,  paid  up  all 
the  costs  of  provisional  sentence,  and 
then  this  action  was  instituted,  in 
which  Malcomess  joined  th^  trustee  of 
the  insolvent  estate.  One  or  other 
might  have  a  right  to  sue.  but  the  two 
could  not. 

[De  Villiers,  C.J.  :  Has  Malcomess 
paid   up   his  guarantee  to  the  bank?] 

Sir  H.  Juta  said  that  he  had.  He 
would,  however,  draw  their  lordships* 
attention  to  one  or  two  points.  When 
his  client  gave  the  promissoiy  notes,  he 
was  indebted  to  the  firm  of  Cary.  but 
subsequently  the  firm  became  indebted 
to  him,  and  they  had  a  regular  sit- 
down  and  a  settlement  of  accounts,  in 
which  credit  was  given  to  the  firm  of 
Cary  for  these  very  promissory  notes. 
Malcomess  was,  no  doubt,  in  a  quand- 
ary, and  he  wanted  to  get  the  trustee 
to  holp  him  out  of  his  difficulties.  This 
money  either  belonged  to  tho  insolvent 
estate  or  it  did  not.  It  was  a  very  nice 
way  of  getting  out  of  the  difficulty 
when  you  were  in  doubt  to  wh<mi  the 
debt  was  duo,  but  he  submitted  that  it 


"CAt^B  ttMES"  LAW  ItEPOttTS. 


819 


wai  a  oouiuel  of  perfection  that  that 
Court  would  not  allow. 

Mr.  McGregor  said  that  the  object 
nhi  to  have  it  mado  quite  clear  that 
there  might  bo  no  question  of  a  party 
whose  rights  were  affected  not  being 
before  tte  Court.  He  contended  that 
the  plaintiff  was  quite  justified  in  hav* 
in{^  the  trustee  in  ihe  inaolTent  estate 
juined  with  him  as  plaintiff. 

De  Villiers.  C.  J. :  Tho  declaration 
discloses  the  fact  that  Malcomea  and  Co. 
(the  plaintiff<()  are  the  legal  holders  of 
certain  notes  made  by  the  defendant. 
That  fact,  no  doubt,  would  entitle  the 
plaintiffs  to  sue  the  defendant,  but  then 
the  declaration  further  discloses  this 
fact:  that,  although  the  plaintiffs  are 
the  holders  of  these  notes,  yet  they  took 
them  merely  as  security,  and  the  ques- 
tion mav  therefore  well  arise  whether, 
seeing  these  notes  are  held  merely  as 
lecurity,  the  trustee  is  not  the  person 
who  should  sue,  or  at  all  events,  has 
such  an  interest  in  the  notes  as  to  en- 
title him  to  become  a  party  to  the  suit. 
In  order,  therefore,  to  remove  any  dif- 
ficulty, the  trustee  is  joined  as  co- 
plaintiff.  It  certainly  cannot  prejudice 
the  defendant  that  the  trustee  is  so 
joined  because  every  defence  which 
would  be  open  as  against  each  plaintiff 
suing  separately  would  be  available  as 
against  the  plaintiffs  suing  jointly.  It 
ti  said  that,  if  the  trustee  sued  alone, 
the  defendant  could  plead  compensation, 
but  if,  bv  law,  -there  has  been  oompen> 
lation,  the  defendant  could  plead  it, 
notwithstanding  that  Malcomess  and 
Co.  arc  co-plaintiffs.  It  is  just  possible 
that  at  the  trial  further  facts  may  come 
to  light,  shewing  that  there  has  been  a 
misjoinder  of  the  plaintiffs,  and,  there- 
fore, in  disallowing  the  exception,  the 
Court  will  order  the  costs  to  be  costs  in 
the  cause. 

Maaadorp,  J.,  concurred. 


HOULDKB  BBOS.  V.  COLONIAL  (        190.'>. 


GOVKVNMENT. 


{       19 

(Apr. 


26th. 


Plea— Document  relied   upon  in 
defence — Exception. 

A  derUiratUm  set  ftn-th  the 
terms  of  a  eoMfrart  tifMn  which 
ike  plaiutiJTff  relfed,  ami  the 
plea,  wilhtmt  aflmitftNg  or 
denying  ihtit  the  termn  of  the 
rontntci  had  been  coiTectly 
Mtated,  alleged  that  the  temm 
of  the  cofitrart  mere  contained 
in  a  certain  letter  addrcMned  at 
n  certain  date  to  the  defen- 
dcmtf^  agent,  Imt  the  terms  of 
ike  letter  was  not  set  out,  noi' 
was  its  general  pti'rport  stated. 
An  exception  by  the  plaintiff 


to  the  plea  as  being  embarras- 
ing  was  sustained. 

This  was  an  argument  on  exceptions 
to  a  certain  amended  plea  (see  16, 
C.T.R.  41),  on  the  ground  that  the 
amendment  raised  a  new  defence,  and 
that  if  the  Court  were  to  decide  u{)on 
that  exception  in  the  plaintiffs'  favour, 
there  would  be  no  need  to  have  the 
Commission,  for  which  the  application 
had  been  mado,  to  go  to  take  evidence 
in  England. 

Sir  H.  Juta,  K.C.  (with  him  Mr. 
Struben) ,  was  for  the  excipient  (plaintiffs 
in  the  action).  Mr.  Ilowel  Jonee  was 
for  tho  Colonial  Government  (defendants 
in  the  action.) 

Sir  H.  Juta  said  that  the  evi- 
dence required  on  CoiiiinisMion  would 
not  be  necessary  if  tho  Court  took  a 
certain  view  as  to  the  coii.st ruction  of 
the  contract.  It  wus  neoc^sary  that  the 
contract  should  be  beforo  the  Court, 
and  the  Government  in  its  plea  had  re- 
ferred to  the  contract.  The  Govern- 
ment said  that  the  terms  of  the  agree- 
ment w^ere  contained  in  a  certain 
letter,  addressed  b|y  tho  plaintiffs  Ut 
the  Agent-General  on  August  7,  1901, 
and  tlMit  the  letter  would  be  produced 
at  the  trial.  The  point  was,  that  tho 
plaintiff  said  that  the  letter  ought  to 
be  in,  or  that,  if  it  were  not,  the  material 
termB  should  have  been  set  out  to  show 
the  agreement,  because  if  that  were  done 
the  question  of  the  construction  of  that 
agreement  might  at  once  be  raised  be- 
fore the  Court.  The  action  was  in- 
stituted by  the  plaintiffs  against  the 
Government  upon  a  contract  for  tho  sup- 
ply to  the  Colonial  Government  of  cer- 
tam  coal,  to  he  sent  out  to  the  Cape 
Colony,  and  the  Government  was  to  take 
delivery  of  that  coal  in  inatalments.  The 
plaintiffs  alleged  that,  by  the  agreement, 
the  Grovernment  undertook  to  pay  de- 
murrage at  the  rate  of  fourpence  per 
net  rep^ifitered  ton  per  diem,  m  respect 
of  sailug  ships,  and  sixpence  per  diem 
in  respect  of  steamers.  The  plaintiffs 
allegea  that  the  Government  did  not 
take  delivery  of  the  coal  as  it  was  bound 
to  do  under  its  contract,  and  that,  as  a 
result,  these  yessels  were  detained.  They 
claimed  demurrage  in  terms  of  this  con- 
tract. The  original  plea  simplv  ^ave  a 
denial  as  to  the  Government  being  in- 
debted to  the  plaintiffs  in  any  demur- 
rage. The  declaration  had  set  up  that 
the  Government  had  paid  aemur- 
rago  in  respect  of  a  number  of  these,  but 
refused  to  pay  on  the  remainder.  The 
plea  waa  a  denial  that  the  Government 
was  bound  to  pay  any  demurrage,  or 
damages  for  detention.  Then  the  Gov- 
ernment moved  the  Court  to  amend  the 
plea,  and  leave  was  given.  By  the 
amended  plea  the  case  which  the  Gov- 
ernment now  set  up  was  that  the  rate<? 
of  demurrage  stipulated  for  in  the  char- 
ter parties  of  these  ships  was  a  different 


320 


"CAPE  HMES*'  LAW  ItEPORTd. 


rate  of  demurrage  to  that  laid  down  in 
that  agreement  between  the  Government 
and  the  plaintifFs,  and  that  the  Govern- 
ment, if  It  were  liable  for  anything,  vraii 
liable  to  the  owuen  of  the  ships,  and  not 
to  the  plaintififl.  Now,  in  order  to  as- 
certain whether  the  Govemnient  was 
liable  to  the  owners  of  the  ships  or  to 
the  plaintiffs,  it  would  be  necessary  to 
^ee  the  terms  of  the  agreement  entered 
into  between  plaint-ifffi  and  the  Govern- 
ment. The  plaintiffs  asked  that  that 
agreement  of  August  7  should  be  an- 
nexed to  the  plea,  and  he  (counsel)  could 
not  see  how  the  Government  could  be 
prejudiced  by  this.  The  point  was  whe- 
ther the  Government,  if  it  were  liable 
for  demurrage,  was  liable  to  the  plain- 
tiffs in  terms  of  the  contract  made  with 
them,  or  whether  it  was  only  liable  to 
the  owners  of  the  iihipB.  The  letter  con- 
taining the  contract  was  not  before  the 
Court,  and  consequently  this  vas  the 
first  proceeding  the  plaintiff  took.  He 
excepted  to  the  plea  on  the  ground  that 
it  wus  vague,  etubarrassing,  and  incon- 
sistent in  law,  and  that  the  plaintiffs 
were  prejudiced  and  delayed  m  their 
suit.  He  contended  that  where  the  de- 
fendant relied  u|^x>u  a  document  for  his 
defence,  he  should  put  that  document 
before  tlK^  Court,  and  he  would  ask  his 
learned  friend  whether  he  would  not  an- 
nex the  letter,  which  procedure  would 
save  a  groat  deal  of  time  and  expense. 

Mr.  Jones  urged  that  the  Court  had 
the  contract  before  it  in  the  plaintiff*s 
declaration,  which  set  out  at  length  all 
the  terms  of  the  contract.  Government 
admitted  all  the  terms  of  the  agree- 
ment, with  one  exception,  regarding  the 
quality  of  the  coal,  and  that  not  being 
spjcifically  denied  in  the  plea,  it  was 
admitted  by  implication.  All  that  was 
iM3cessary  had  been  done,  and  there 
was  no  reason  for  doing  anything  fur- 
ther. 

[Do  Villiers,  C.J. :  For  the  convenience 
of  the  plaintiffs,  and  perhaps  for  your 
own  convenience,  if  they  say  the  in- 
sertion of  the  letter  would  save  time  and 
expejise,  would  you  not  be  prepared  to 
insert  the  letter?] 

Mr.  Jones  said  he  was  not  prepared 
to  take  the  responsibility  of  attaching 
the  letter.  There  was  nothing,  he 
urged,  to  prevent  the  plaintiffs  putting 
the   letter  before  the  Court. 

De  Villiers,  C.J. :  The  declaration  set* 
out  the  terms  of  the  contract  between 
the  plaintiffs  and  the  defendant,  that  is, 
the  tenns  aa  understood  by  the  plain- 
tiffs. Then  the  plea  says:  "As  to 
paragraph  2.  the  defendant  denies  that 
It  wa«  agreed  by  the  parties  that  the 
Welsh  coal  contracted  for  must  be 
Merthyr  coal.  He  says,  further,  that 
the  terms  of  the  agreement  referred^  to 
in  the  said  paragraph  are  contained  in  a 
certain  letter  adaressed  by  the  plain- 
tiff on  the  7th  August,  1901,  *o  the 
Agent-General  of  the  Gape  of  Good 
Hope,   and,   for  the  gp^aier     certainty 


I 


as  to  the  terms  of  the   agreement,     he 
craves  leave  to  refer  to  the  said  letter 
when    produced    at    the    trial    in    this 
court."        It   is   impossible   to  say    that 
this    letter    is    not    relied   upon   aa    the 
defence  to    the   action,    because    if   thak 
letter  were   produced,    and   the      terms 
of    it  were  different    from    the       terms 
stated  in  the  declaration,  the  defendant 
would  be  entitled  to  have  the  benefit  of 
the   terms  of  that     letter.       It  is  there- 
fore, right,  if  the  plaintiffs  insist  upon  it, 
that   the   defendant    should       set      out 
generally  the  effect  of  the  letter,  or  set 
out  the  letter  in   terms.       Looking  fur- 
ther into  the  plea,  I  find     in  the     sixth 
paragraph  the  following  is  stated :      "  It 
was  the  duty  of  the  plaintiffs,  in  terms 
of  and  according  to  the  true  and  proper 
interpretation  of  the  agreement  referred 
to  in  paragraph  2,  to    despatch  the  coal 
to  Cape  Town."      It  is  clear,  then,  that 
the   defendant  here  relies      upon       the 
interpretation    of    a    certain  agreement, 
and   that    agreement  can  only   be       the 
document   which  is  referred   to.       Now, 
how  is  the  Court  to  decide   upon      the 
true   and  proper     interpretation  of  that 
document  without    havmg    that       docu- 
ment Ixjfore  it?       It  seems  to  me  clear 
that  the  defence    is  roally  ba«ed      upon 
that  document,   and  that  there  is  a  sug- 
gestion    that     the     document,      if     pro- 
duced,   would  show   a    different      agree- 
ment  from   that  which  is      disclosed  in 
the  declaration.       It  is,  therefore,     fair 
towards  the  plaintiff,  in  order  to  enable 
him  either  to  except  or  to  reply  to  the 
plea,  that  the  true  nature  of  the  agree- 
ment contained  in    the  letter  should  be 
set  out.  end.  as  at    present    advised,    it 
would  seem    to   me   that   the    pleadings 
are     embarraasing     to  tlie  plaintiff,      in- 
asmuch   as  this     letter      is  not  set  out, 
nor  is    its    purport  stated.       The  excep- 
tion, will,   therefore,     be      allowed,  and 
the    defendant    be     allowed     to    amend 
his    plea      by       inserting      a      copy    of 
the  letter  in  his  plea.       As  t-o  the  costs 
of  this  exception,   I   must  say  that,  with 
the  information   at   present   before     the 
Court,  it  is     impossible  to  say  whether 
the      embarrassment    was    such    as       to 
justify  allowing   the   costs   of  this  argu- 
ment.      The  exception  will  be  allowed, 
the  defendant  will  be  allowed    to  amend 
his  plea  by  inserting  a  copy  of  the  let- 
ter of   the  7th   August.  1901,  and      the 
question  of  costs   will    be  reserved. 
Maasdorp.  J.,  concurred. 

[Plaintiffs'  Attorneys:  Fairbridge,  Ar- 
derne.  and  Lawton.] 

[Defendants'  Attorneys:  Reid  and 
Nephew.] 


«l 


CAPE  TIMES'*  LAW  tlEPORTS. 


321 


SUPREME   COURT 


[Before  the  Hon.  Sir  John  Uuguanan.] 


REVIEW. 


BEX  V.  MKYKR.  {  j^^l^j^^^ 

Buchanan,  J.,  said  that  this  case  had 
had  come  before  him  aa  judge  of  the 
week,  the  defendant  having  been  charged 
before  a  special  Justice  of  the  Peace  at 
Herbertsdaie,  under  the  Master  and  Ser- 
Tints'  Ordinance,  '*  in  that  he  wrongfully 
and  unlawfully  took  his  son  awa^  from 
Mr.  P.  du  Preez.  without  giving  him  pro- 
per notice."  The  charge  was  Laid  under 
iub-$ection  2,  ejection  7,  of  the  Act  18, 
1873.  This  section  only  applied  to  ser- 
▼Jnis  absenting  themselves  without  law- 
ful cause,  and  it  did  not  allow  a  Magis- 
trate to  punish  the  father  of  a  servant, 
vho.  being  his  son,  had  been  allowed  to 
return  home  from  an  indefinite  hiring, 
for  refusing  to  allow  him  to  go  out 
again.  The  conviction  must  bo  quashed. 


ADMISSIONS. 

Mr.  Cio&e  moved  for  the  admission  of 
Harry  P  Ward,  as  an  attorney  and  no- 
taiT. 

Application  granted,  oaths  to  be  taken 
before  the  R.M.   of  Komgha. 

Mr.  Gardiner  moved  for  the  admission 
of  Y.  G.  F.  Solomon  as  an  attorney  and 
notary. 

Application  granted,  and  oaths  ad- 
ministered. 

Mr.  C*lose  moved  for  the  admission  of 
Arnold  E.  G.  W.  Grimmer  as  an  attor- 
ney. 

Application  granted  and  oaths  admin- 
isteied- 


PROVISIONAL      ROLL. 


j        1905. 
<Apr.   37th. 


BANK  OF  AFRICA  V. 
KOBNIO  AMD  CO. 

ProTisional  sentence  —  Bill  of 
exchange — Liquid  document 
— Settiff. 

Sir  H.  Juta,  K.C.,  moved  for  provi- 
sicnal  sentence  on  eleven  bilks  of  ex- 
change amounting  to  £12,921  9$.,  drawn 
bv  Knowles  and  Co.,  to  the  order  of 
plaintiffs,  upon  and  accepted  by  the  de- 
lendaota 

Mr.  Searle,  K.C.  (for  the  defendants), 
said  that  the  defence  was  that  the  bills 
had  been  discharged  br  an  arrai^ement 
come  to  between  the  Bank  and  Koenig. 

These  bills  cannot  now  be  sued  upon. 
They  have   never  been    presented,   and 


the  summons  is  not  correct  in  stating 
that  they  were  all  due  on  January;  14th. 
That  was  not  so.  Tlie  question  is  one 
purely  of  fact.  The  application  for  a 
loan  of  £22,000  is  very  im|X)rtant.  The 
bank  cannot  now  sue  on  these  bills.  By 
letter  dated  March  3rd,  the  nmnager  un- 
dertook to  hold  over  its  claims  against 
Koenig  in  consideration  of  a  commission 
paid  by  him.  The  commission  amounted 
to  over  £200.  The  only  question  in  dis- 
pute is  as  to  whether  ttie  bills  were  pre- 
sented to  us  or  not.  We  say  that  tney 
were  not  presented  till  after  the  issue  of 
summons.  The  bills  are  all  more  than 
a  year  old,  and  practically  are  only  pre- 
sented now.  We  have  paid  interest 
to  the  amount  of  £4,000  instead  of  tlio 
legal  interest  amounting  to  about  £1,500. 
If  the  bank  can  come  down  u|K)n  us  at 
any  moment,  to  what  do  our  facilities 
amount?  Where  is  our  consideration  for 
our  money?  The  bank  says  it  set  off  our 
£4,000  as  against  our  bond.  Possibly  it 
may  be  able  to  sue  on  the  bond,  but  I 
contend  it  cannot  sue  on  the  bills.  Thi; 
idea  that  money  paid  in  should  go  against 
the  overdraft  is  quite  inconsist^^nt 
with  their  own  letters.  The  only  facil- 
ities the  bank  gave  ua  was  a  pactum  dc 
turn  petendo. 

Sir  H.  Juta  (for  plaintiff):  I  do  not 
understand  the  defence.  Either  those 
bills  have  been  met  or  not— or  they  may 
have  been  novated.  Last  June  the  de- 
fendants set  up  the  case  that  thoy  hud 
been  met:  they  had  not,  and  wo  still 
hold  the  bills  and  that  is  a  very  impor- 
tant point  in  a  Question  of  provisioiral 
sentence.  The  facilities'  given  by  the 
bank  were,  that  they  would  retire  the* 
bills  in  the  hands  of  the  National  Bank 
(£2,000)  and  others:  in  all  about  £6.000, 
and  the  bank  also  agreed  not  to  press  for 
paj'mont.  Our  letter  of  March  3rd  has 
no  reference  to  a  loan,  we  merely  asked 
for  1  per  cent,  on  defendant's  liabilities 
for  retiring  these  bills.  His  £4,000  went 
to  pay  this  overdraft.  I  do  not  see  that 
there  was  any  novation.  The  considera- 
tion received  by  the  defendant  was  the 
retiring  of  bills  in  the  hands  of  other 
banks. 

Mr.  Searle  was  not  heard  in  reply. 

Buchanan,  J. :  The  plaintiff  in  this 
case  sues  upon  a  certain  number  of 
bills  made  by  the  defendants,  and  prima 
facie  they  are  liquid  documents.  But 
the  papers  which  have  been  put  in 
show  that  this  is  not  a  case  which  can 
be  settled  upon  provisional  proceeding. 
If  the  bank  have  any  case,  they  mu8t 
go  into  the  principal  case,  either  upon 
this  summons  or  uiK)n  the  general 
liabilit^ir  of  the  defendant  to  them. 
Provisional  sentence  will  be  refused, 
with  costs.  It  appears  to  me  that  this 
is  not  a  matter  which  ought  to  have 
been  brought  in  provisional  form. 

[Plaintiff's  Attorneys:  Tredgold,  Mc- 
Intyre  and  Bisset;  Defendant's  Attor- 
neys: D.  Tonnant,  Jun.J 


&22 


tt 


GAPB  TBiBS"  LAW  ftEtH>&td. 


KIPLEY  V.  LATBGAN. 

Mr.  Long  moyed  for  provkional  sen- 
tence on  a  promissory  note  for  £42, 
with  interest  and  costs  of  suit. 

Order  granted. 


AFBICAN  HOMES  TRUST  V.  BOYCE. 

Mr.  J.  E.  R.  de  YiUiers  moved  for 
provisional  sentence  on  a  mortgage 
bond  for  £1,400,  with  interest,  less  £12 
paid  on  account,  the  bond  having  be- 
come due  by  reason  of  the  Tion-paymeiit 
of  interest  and  capital.  Counsel  also 
applied  for  the  property  speoiallv  hypo- 
thecated to  be  declared  ezecutaole. 

Order  granted. 


LO*fNITZ  V.  O'DRISCOLL. 

Mr.  Gardiner  moved  for  provisional 
sentence  on  a  mortgage  bond  lor  £1,500, 
with  interest  and  costs,  the  bond  having 
become  due  by  reason  of  the  non-pay- 
ment of  interest.  Counsel  also  applied 
for  the  property  specially  hypothecated 
to  be  declared  executable. 

Order  granted. 


ESTATE    FILLI8    V.    VAN  DER  WB8T- 
HUYZBN. 

Mr.  Dc  Waal  moved  for  provisional 
sentence  on  a  promissorv  note  for  £83, 
less  £7  168.  5d.  paid  o£f,  and  also  for 
£100  on  a  notarial  bond,  and  for  the 
property  to  be  declared  executable. 

Order   granted. 


KAPLAN  V.  8MIT. 

Mr.  Gardiner  moved  for  provisional 
sen<tenoe  on  a  judgment  of  the  Magis- 
trate's Court  at  Calitsdorp  for  £15, 
with  interest  and  costs,  and  for  cer- 
tain share  in  a  farm  to  be  declared 
executable. 

Order  granted. 


CONRADIS  V.  BMIT. 

Mr.  Watermeyer  moved  for  provisional 
sentence  on  a  Magistrate's  Court  judg- 
ment for  £9  Is.  lid.,  and  also  for  £16S, 
balance  of  purchase  price  of  certain  pro- 
perty, and  for  the  property  to  be  de- 
clared executable. 

Order  granted. 


SAVAOE  AND  SONS  V.  TANNOCK. 

Mr.  Watermeyer  moved  for  final  ad- 
judication  of  defendant's  estate. 
Granted. 


MALMBSBUBY  BOARD  OF  EXlfiCUTOBS   Y. 

WITTLE. 

Mr.  Struben  moved  for  provisional 
sentence  on  mortgage  bonds  for  the 
sums  of  £40  Ss.  8d.,  £20,  £40,  and 
£25,  with  interest  and  costs,  and  for 
certain  property  to  be  declared  execut- 
able. 

Granted. 


MALMEi^BUBY  BOARD  OF  BXBCUTOR8    V. 
LAUB8CHBR. 

Mr.  Russell  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £75,  with 
interest  at  the  rate  of  6  or  7  per  cent. 
Counsel  said  the  bond  stipulated  6  per 
cent.,  but  defendant  entered  into  a 
special  agreement,  whereby  he  under- 
took to  pay  7  per  cent.  The  Sheriff, 
however,  had  not  in  his  return  given 
proof   of  service  of   the  agreement. 

The  matter  was  ordered  to  <.land 
over  for  a  week  for  an  amended  return 
bv  the  Sheriff. 


MAJ.ME.SBUBY   BOARD  OF   KXKCUTORS    V. 
LAUBSCHER. 

Mr.  D.  Buchanan  moved  for  provi- 
sional sentence  for  £125  and  £75  on  two 
mortgage  bonds. 

The  circumstances  in  thi*  case  were 
similar  to  those  of  the  last  case,  and 
the  matter   was  ordered  to  stand  over. 


OAVIN    v.    BOTHA,  EXBCCTBIX  TESTA- 
MENTARY ESTATE  BOTHA. 

Dr.  Greer  moved  for  provisional  sen- 
tence on  two  mortgage  bonds  for  £1,000 
and  £500  respectively,  with  interest  and 
costs,  and  for  property  specially  hypo- 
thecated to  be  declared  executable. 

Buchanan,  J.,  granted  provisional  sen- 
tence, subject  to  production  of  a  certi- 
ficate from  the  master  that  the  dcfendaut 
had  been  appointed  executrix. 


VIS8ER  AND  ANOTHER  V.  NAQ.\N. 

Mr.  Gardiner  applied  for  an  order  foi 
the  final  sequestration  of  defendant's 
estate. 

Granted. 


ILLIQUID     ROLL. 

GRASSICK  V.  B.S.A.  ASPHALTS  f        1905. 

CO.  J  Apr.  27th. 

Mr.  P.  S.  T.  Jones  moved  for  judg- 
ment uuder  Rule  319  in  default  of  plea. 
The  claim  was  for  certain  sums  for  tar 
paving  which  plaintiff  had  laid  down  for 
the  Town  Council,  as  sub-contractors, 
defendants  being  contractors. 

Granted. 


If 


CA^B  tbfEB"  LAW  REPC^tB. 


323 


HOIK  V.  MOIB. 

Mr.  Struhen  moved  for  judgmeot 
uoder  Rule  319.  The  declaration  was 
filed  and  appearance  wa^  entered.  Ser- 
vice of  a  demand  for  plea  was  made  on 
the  attorneys,  as  also  was  notice  of 
bar. 

Buchanan,  J.,  pointed  out  that  service 
was  made  on  the  attorne^«  after  the 
latter  had  informed  plaintiff  that  they 
no  longer  acted. 

The  matter  was  ordered  to  stand  over 
for  proper  service. 


6AU88  V.  ESTATE  EYBERH. 

Mr.  Van  Zyl  moved  under  Rule  329d 
for  judgment  for  £20  for  professional 
services. 

Judgment  was  given,  fiubject  to  the 
ceni6cate  of  the  Master  being  filed  that 
the  defendant  was  executor. 


GAUSS  V.  BYBERS. 

Mr.  Van  Zyl  moved,  under  Rule  329d, 
for  judgment  for  £149  for  profesfiional 
semces. 

Granted. 


PUBCBLL,  YALLOP  AND  EVEBETT  V, 
VI88ER. 

Dr.  Greer  moved  for  judgment,  under 
Hule  329d,  for  £16  10a.  lid.,  for  goods 
sold  and  delivered. 

Granted. 


CLABK  V.  LEA. 


Mr.  D.  Buchanan  moved  for  judgment, 
'"5«'  Rule  329d,  for  £103,  money  lent 
»na  adyanced 

Granted. 


DEWAN  V.  HAET. 

¥'•  Van  Zyl  applied  for  judgment, 
"nd«' Rule  3»d,  for  £310  IBs.  6d.,  bal- 
ance of  purchase  price  of  certain  ground. 

Granted. 


^ARQDARD  AKD  CO.  V.  JACOBS, 

Mr.  De  Waal  moved,  under  Rule  329d, 
'or  judgment  for  £69  2s.  3d.  for  goods 
"oW  and  delivered. 

Granted. 


REHABILITATIONS. 


Mr.  J.  E.  de  Villiers  moved  for  the 
rehabilitation  of  Martin  Elfert,  whose 
estate  was  voluntarily  surrendered      •" 

i9oa 

Giantod. 


in 


Mr.  Gutscbe  moved  for  the    rehabilita- 
tion    of  Angelo  Bruaoni,  whoBe  estate 
was  surrendered  in  1903. 
Granted. 


GENERAL   MOTIONS. 


1905. 


Ex  paHe  STERLEY.         I  ^pr    27th. 

Mr.  Watermeyer  moved  to  make 
absolute  a  rule  mat  granted  under  the 
Derelict  Lands  Act. 

Granted. 


Kx  parte  TUB  estate  ok  ksrdel. 

On  the   motion   of  Mr.    De  Waal, 
similar  order  was  made. 


BOTHA   V.   BOTHA. 

Mr.  J.  E.  R.  de  Villiers  moved,  on 
notice,  calling  on  the  reepondent,  the 
husband,  to  show  cause  why  an  order 
should  not  1%  granted  for  his  attach- 
ment for  contempt  of  Court,  in  not  pay- 
ing alimony  which  he  was  ordered  to 
pay  by  the  Circuit  Court  at  Wor- 
cester. 

Sir  H.  Juta,  K.C.,  appeared  for  the 
respondent. 

Mr.  De  Villiers  said  the  matter  arose 
out  of  a  oaee  heard  at  the  Worcester 
Circuit  Court  in  October  last,  when  an 
order  for  judicial  separation  waa  mad^ 
Defendant  stated  that  his  wife  and 
himself  had  resumed  ntarital  relations 
since  the  order  was  made.  The  wife 
admitted  this,  but  said  she  had  only 
been  persuaded  to  aooompany  her  hus- 
band to  Cape  Town  on  three  oooaaions, 
on  his  promise  that  he  would  securo  a 
house  there.  She  was  only  willing  to 
return  to  him  on  the  condition  that 
they  left  Worcester.  He  had  not  kept 
that  promise. 

Buchanan,  J.,  said  he  was  sorry  for 
the  wife,  who  had  been  too  easily  per- 
suaded, but  she  had  put  herself  out  of 
Court  by  her  act  in  returning  after  the 
order  for  judicial  separation  was  granted. 
Mr.  De  Villiers  argued  that  there  was 
no  reconciliation;  that  there  "'f.M  <J*iy 
Au  attempt  at  reconciliation,  which  had 
fallen  through,  because  the  defendant 
failed   to   keep  his   promise. 

Buchanan,  J.,  said  that  the  decree 
had  fallen  to  the  ground,  owing  to  the 
action  of  the  wife,  and  no  order  would 
be  made. 

The  application  was  acoordmgly  re- 
fused,  with   costs. 


3^ 


<f 


CAPE  TtMEB''  LAW  REPOtlTS. 


VAN    RBENEN    V.    ESTATE    f        1905. 

VINK.  i  Apr.  27th. 

Will —  Fidei  co  m  m Ihxu m — (t  rand- 
children  —  Renunciation  of 
fiduciary  interest. 

V,  MHtiiuUd  hu  »even  children 
and  their  children^  by  repre- 
sentation^ fiH  hin  heirs^  but 
burdened  the  inheritance  wtth 
a  life  interest  in  fartmr  of  his 
wife.  V.  hariny  died^  hi» 
tridoic  tiotr  wished  to  renotu re 
her  life  interest  in  far  our  (f 
the  fidei  oommissarii. 

Held,  that  as  it  luid  been 
ascertained  that  no  further 
grandrhildren  of  \'.  could  be 
h(frn,  the  portiotis  of  the  heirs 
should  at  once  be  paid  out, 
notmihstanding  the  fact  that 
F.'«  widow  hadjioicer  to  impose 
further  fidei  commissa.  It 
wa«,  however^  ordered  that  the 
shares  of  the  minor  heirs  were 
to  be  paid  to  the  executor  for 
their  behoof. 


This  was  an  application  for  an  order 
on  a  certain  oxccutor  to  pay  to  the 
three  applicants  their  inheritance,  un- 
der the  will  of  the  late  Peter  Joseph 
Vink,  of  Koebcrg  The  will  bequeathed 
Mrs.  Vink  the  usufruct,  with  a  fidei 
rommusum  in  favour  of  her  children. 
The  will  made  provision  for  the  passing 
of  the  share  of  any  children  dying  to 
their  lawful  descendants  and  gave  Mrs. 
Viuk  power  to  encumber  the  share 
of  any  child  with  a  fidti  commis- 
sum.  Mrs.  Vink  now  wished  to  re- 
nounce her  usufruct,  in  order  that  the 
applicants  might  forthwith  be  paid 
their  inheritance,  and  the  question  for 
the  Court  to  decide  was  whether  this 
could  be  done  under  the  terms  of  the 
will. 

Sir  H.  Juta,  K.C.,  was  for  the  appli- 
cants, and  Mr.  Van  Zyl  for  the  execu- 
tor. 

After  argument, 

Buchanan,  J. :  In  this  case  the  late 
Mr.  Vink  instituted  as  his  heirs  his 
seven  children,  but  he  burdened  the 
shares  of  the  children  with  a  fidei 
rommuisum.  It  was  admitted  on  both 
sides  that  the  effect  of  the  will  was  to 
give  a  vested  lintereet  to  the  grand- 
children, subject  only  to  the  life  interest 
of  the  mother,  and  that  construction 
is  in  accordance  with  the  construction 
so  frequently  placed  on  such  wills  by 
this  Court.  The  mother  now  is 
willing  to  renounce  her  life  interest 
in  the  three-sevenths  which  is  vested  in 
the      applicants,     and     to     allow     the 


amount  to  be  paid  out  to  them  at 
onoe.  The  mother,  it  is  true,  under 
the  will,  had  power  to  burden  the 
shares  of  the  applicants  with  a  further 
fidei  commissumy  but  she  does  not  wish 
to  exercise  this  power,  and  there  is  no 
compulsion  on  her  to  do  so.  The 
shares  of  the  minors  will  remain  with 
the  executor,  and  will  not  be  affected 
by  the  order  that  the  Court  will  make 
in  any  way.  It  is  clear  that  there  oan 
be  no  more  grandchildren  entitled  to  a 
share,  and  consequently  the  amount  of 
the  grandchildren's  share  can  now  be 
ascertained.  That  amount  being  Tested 
in  them,  and  being  only  subject  to  the 
life  interest  of  the  mother,  and  m  she 
now  waives  her  life  interest,  there  is 
no  objection  to  the  Court  ordering  that 
th'3  three-sevenths  vested  in  the  appli- 
cants be  paid  over  to  them.  As  to  the 
costs,  I  think  it  is  only  fair  that  the 
costs  should  come  out  ot  tint  three- 
sevenths. 

[Applicant's  Attorney:    J.   D'CHiveira; 
Respondent's  Attorney:  Not  on  record.] 


HEYNSS,  MATHEW  AND  CO.  V.  COOPER. 

Sale    and    purchase— Goodwill — 
Sub- tenancy. 

This  was  an  application  upon  notice 
of  motion  by  Heynes.  Mathew  and  Co., 
wholesale  chemists.  Cape  Town,  calling 
upon  the  respondent,  John  William 
Cooper,  to  show  cause  why  he  should 
not  be  ordered  to  give  up  possession  to 
the  applicants'  representative  of  certain 
premises  in  Main-street,  Malmesbury, 
occupied  by  the  Malmesbunr  Dispensary. 

The  affidavit  of  A.  H.  Mathew,  of  the 
applicant  firm,  stated  that  they  pur- 
chased the  business  in  question  in  Sep- 
tember, 1899,  and  continued  the  respon- 
dent in  liis  position  as  manager.  Sub- 
sequently, on  the  27th  February,  1903, 
the  parties  entered  into  an  agreement, 
whereby  Cooper  purchased  the  business. 
The  respondent,  however,  had  fallen 
into  arrear  with  the  instalments  of  the 
purchase  price,  due  to  the  applicants, 
and  the  applicants  had  now  given  him 
notice  that,  under  clause  7  of  the  agree- 
ment, they  now  resumed  possession  of 
the  business.  The  respondent  had 
broken  nearly  every  clause  of  the  agree- 
ment. The  affidavit  of  Mr.  Cope,  a 
representative  of  the  applicant  firm, 
stated  that  he  had  demanded  possession 
of  the  premises  from  the  respondent, 
but  that  the  latter  said  that  he  could 
only  give  up  the  fixtures,  and  stock,  and 
that  he  had  no  right  to  hand  over  the 
premises  to  the  applicants  without  an 
order  of  Court. 

The  answering  affidavit  of  the  respon- 
dent stated  that  ho  was  willing  to 
give  up  the  stock  and  fixtures, 
but  he  could  not  sub-let  the  premises, 
without  the  permission  of  tiie  owners, 


<t 


CAPE  TIMES'*  LAW  REi?ORTd. 


326 


Mttsrs.  Booth,  Pexnberthy  and  Co.,  and 
be  (the  regpondenU  was  merely  a  monthly 
tenant.  He  denied  that  he  had  broken 
tlmott  every  clause  of  the  agreement. 
An  affidaYit  by  Mr.  William  Pemberthy 
stated  thai  his  firm  only  acknowledged 
the  said  Cooper  a&  their  tenant,  and  no 
one  else. 

A  replying     affidavit     by     Mr.  A.  H. 
Matthew  was  also  put  in. 

Counsel  having    t>een   hoard   in   argu- 
ment on  the  facts, 

fiuchanan.  J. :  In  the  agreement  under 
which  the  respondent  Cooper  took  over 
the  business  for  Messrs.  Heynes, 
Mathew  and  Co.  there  were  certain 
conditions  bv  which,  if  Cooper  did 
not  fulfil  them,  he  agreed  tliat 
Heynes,  Mathew,  and  Co.  should 
have  the  power  to  take  possession  of  the 
busineas  without  further  recouroe  to 
l«gal  prrx^eeding3.  Heynes  Mathew  and 
Co.  wish  to  take  possession  of  the  busi- 
neas; Cooper  will  not  allow  them  to  do 
!!0.  saying  that  the  premises  belong  to 
persons  who  are  not  parties  to  this  suit, 
that  he  is  only  a  monthly  tenant,  and 
that  he  has  no  right  to  £ub-let.  I  can- 
not in  any  way  in  this  order  bind  the 
proprietors  of  the  property,  but  as  Dt- 
tween  Cooper  and  Heynes,  Mathew  an  i 
Co.  he  has  absolutely  no  right.  Cooper 
agreed  to  take  over  the  business  hitherto 
«5cupied  and  carried  on  by  Heynes. 
Mathew  and  Co.  as  the  Malmesbury 
Dispensary,  and  this  business,  occupied 
and  carried  on  by  Hcvnes,  Mathew  and 
Ca,  is  the  business  wnich  Cooper  under- 
took by  his  agreement  to  give  up  if  he 
broke  the  conditions  of  this  agreement. 
He  is  bound,  therefore,  by  his  own  con 
tract,  to  give  up  possession  at  once.  The 
owners  of  the  property  may  have  a 
Jjemedy,  both  agamst  Cooper  and  Heynes, 
Mathew  and  Co..  if  there  is  any  remedy, 
but  apparently  they  are  not  concerned 
"[  this  matter  between  Cooper  and 
Heynes.  Mathew  and  Co.  Ho  must 
forthwith  deliver  up  the  business  known 
*j  the  Malmesbury  Dispensary  and  pay 
the  costs  of  this  application.  I  think,  un- 
der all  the  circumstances,  he  ought  to  de- 
IiTer  up  the  business  within  forty-eight 
bouns. 


£x  parte  ABTSB  BROS. 

.  Mr.  Roux  moved  for  a  rule  nisi  call- 
ing upon  the  respondent  to  deliver  up 
the  keys,  books,  etc.,  of  a  certain  aerated 
water  busineas  at  Prieaka  to  be  made 
sbeolute. 
Rule  made  absolute,  with  costs. 


£x  parte  ESTATB  DE  KLERCK. 

Mr.  J.  E.  R.  de  Villiers  moved,  on 
behalf  of  petitioner,  the  surviving  spouse 
of  the  late  Joseph  de  Klerk,  of  Cradock, 
for  leave  to  prove  by  affidavit  the  con- 


tents of  a  certain  will  which  had  been 
destroyed  by  Frank  Isaacs,  the  adopted 
son  of  the  petitioner,  against  whom 
criminal  proceedings  had  been  instituted. 
Isaacs  had  pleaded  guilty  to  the  charge 
brought  against  him,  but  the  Solicitor- 
General  had  declined  to  prosecute,  be- 
cause he  did  not  think  that  the  act  of 
the  youth  was  Auch  as  was  contemplated 
by  the  section.  Certain  affidavits  were 
also  read  in  support  of  the  applioation, 
including  one  by  the  youth  Isaacs,  who 
admitted  that,  in  a  fit  of  disappointment, 
on  seeing  the  contents  of  tne  will,  he 
destroyed  the  document.  Petitioner  and 
her  late  husband  were  married  in  com- 
munity, an<i  he  made  a  joint  will.  Coun- 
sel asked  the  Court  to  grant  a  rule  nisi. 

Rule  granted  calling  upon  all  persons 
i'jterested  in  the  estate  of  Joseph  de 
Klerk  to  sluuv  cau:se  why  the  disposi- 
tions mentioned  in  the  petition  should 
not  be  adinitled  by  the  Master  as  tho 
joint  will  fif  Joseph  de  Klerk  and  his 
wife,  rule  to  be  published  in  the  "  Gov- 
ernment Gazette  "  and  the  *'  Midland 
Newe,"  to  be  served  on  the  brother  and 
sister  of  the  late  Joseph  de  Klerk,  and 
to  be  returnable  on  the  15th  June. 

Po9tca  (June  15th).    Rule  absolute. 


ICx  parte  estate  brucb. 

Mr.  Searle,  K.C,  moved,  on  behalf  of 
ihp  executors  tchtamontary  in  the  estate 
Bruce,  Mr.  E.  II.  Syfrct  and  Mrs.  Cleg- 
horn,  for  leave  to  raise  a  mortgage  of 
£5,000  upon  certain  property,  94  and  96, 
xVdderley-streot,  Cape  Town.  The  pro- 
perty was  valued  at  £17,000,  and  was 
at  piesent  leased  to  the  liccond-named 
petitioner's  husband.  The  property  was 
at  present  unmortgaged.  The  heirs  under 
tho  wili  all  consented  to  the  application, 
which  was  made  on  behalf  of  tne  seconi- 
named  petitioner's  husband.  Couu*i'l 
also  read  an  affidavit  by  Mr.  J.  Brucs 
Cloghorn,   attorney. 

Order  granted  a*>  prayed. 

Buchanan.  J.,  remarked     that  he  was 
sorry  that  the  heirs  were  not  minors. 


REINECKE  V    OOBTHUIZEN. 

Mr.  Van  Zyl  appeared  for  the  appli- 
cant; Mr.  Searle,  k.C,  for  the  respon- 
dent. 

An  order  was  granted   in  terms   of   a 
consent  paper. 


Ejt  parte  WARD  AND  FELIX. 

Mr.  Sutton  moved  for  leave  to  the 
petitioners  to  sue  in  forma  pauperis. 

Granted,  Mr.  Sutton  being  appointed 
counsel.  Mr.  S.  S.  Hutton  attorney. 


386 


« 


OAPB  TiBiEB"  LAW  ftEJPObTd. 


Ha  jmrte  orornewald  and  wife 

Dr.  Greer  moved  for  au  order  in  terms 
of  a  certain  notarial  deed  of  separation. 

Buchanan,  J.,  said  the  Court  could  not 
grant  a  judicial  separation  on  motion. 
An  action  must  be  Drought. 

No  order  was  made. 


£w  parte  the   executrix   of   the 

ESI  ATE  OF  BLIER. 

Mr.  Gutsche  applied  for  leave  to  mort- 
gage certain  property  to  enable  tlie 
widow  to  support  the  minor  children. 
The  Master's  report  was  favourable. 

An  order  was  granted  in  terms  of 
the  Master's  report. 


Ex  parte  DC  plessis. 

Mr.  Gardiner  moved  for  judgment  for 
certain  moneys  from  the  estate  of  the 
late  Opperman,  to  which  the  children  of 
petitioner  were  entitled  under  the  will. 
Petitioner  asked  for  the  payment  of  the 
shares  of  the  major  children,  who  con- 
sented to  the  order. 

The  Court  ordered  that  the  share  of 
the  inlieritanco  given  to  the  major  heirs, 
who   had   consented   to   the  application, 
be  authorised  to  be  paid  over  to  the  peti 
tioner. 


Egg  2)arte  VENTER. 

Mr.  Burton  moved  for  an  order  au- 
thorising the  Master  to  pay  out  certain 
money.  The  Master's  report  wa«  favour- 
able. 

Order  granted. 


Ke  parte  the  cape  times,  ltd. 

Mr.  McGregor  moved  for  an  order  to 
have  a  certain  election  account  re-open- 
ed. The  petition  set  forth  that  on  the 
4th  November.  1903,  Mr.  W.  H.  C. 
Klein,  acting  on  behalf  of  the  election 
agent  of  Mr.  W.  P.  Schreiner,  a  candi- 
date for  the  Parliamentary  election  at 
Ckiledon,  ^ave  an  order  for  the  insertion 
of  a  certain  advertisement  in  the  "  Owl  " 
newspaper.  The  account  was  rendered 
before  the  expiration  of  the  36  days  pre- 
soribed  by  the  Act,  but  it  appeared  to 
have  gone  astray,  and  could  not  now  bo 
paid   without   order  of  Court. 

It  was  ordered  that  leave  be  given  to 
pay  the  amount. 


JSx  parte   THE  COLONIAL  aOVERNMENT. 

Mr.  Howel  Jonea  moved  for  authority 
to  the  High  Sheriff  to  pay  out  certain 
mcney  in  satisfaction  of  claims  bv  the 
Government  against  a  certain  land  syn- 
dicate. 


Buchanan,  J.,  said  there  had  been  no 
judgment. 

Mr.  Jones  suggested  that  a  rule  nisi 
should  bo  issued  calling  on  respondents 
to  show  cause  why  the  money  should 
not  be  pud. 

An  order  was  granted,  giving  leave  to 
sue  by  edictal  ci^tiou,  and  to  attach  the 
money,  the  citation  being  made  return- 
able on  the  Ist  August. 


Ex  parte  MARAIS. 

Mr.  Van  Zyl  moved  for  leave  to  mort- 
gage certain  property  donated  to  the 
minor  children  of  the  petitioner  for  the 
sum  of  £150,  for  the  purpose  of  paying 
for  improvements  made  to  the  property. 
The  Master  recommended  that  authority 
be  given  subject  to  a  sum  of  £20  being 
paid  annually  out  of  the  rents  towards 
restoring  the  capital. 

Order  granted  in  terms  of  the  Master's 
report. 


Ex  parte  LBIBBRANDT. 

Mr.  Rowson  moved  for  an  order  to 
have  Mary  Ann  Attwell,  an  inmate  of 
the  Valkenberg  Asylum,  declared  of  un- 
sound mind,  and  to  appoint  a  curator  ad 
litem. 

His  Lordship  asked  counsel  where  the 
respondent's   husband,  Holme,    wa<s? 

Mr.  Rowson  said  that  the  marriage 
proved  to  be  bigamous.  They  knew  no- 
thing as  to  Holme's  whereabouts. 

Rule  granted,  calling  upon  the  respon- 
dent to  show  cause  why  an  order  should 
not  be  granted  as  prayed,  Mr.  Advocate 
J.  E.  R.  de  Villiers  to  be  appointed  as 
eumtor  ad  litem,  and  rule  to  oe  return- 
able on  the  7th  May. 

Po»tea  (May  11th). 

Mr.  Rowson  asked  leave  to  mention 
the  case  of  Mar^  Ann  Attwell,  with  a 
view  to  the  appointment  of  a  curator. 

Dr.  Black,  medical  officer  at  Valken- 
berg Asylum,  said  that  Mary  Ann  Att- 
well was  sufiPering  from  suicidal  mania, 
and  was  not  likely  to  lecover.  She  was 
quite  unable  to  manai^e  her  own  affairs. 

Mr.  J.  E.  R.  de  Villiers,  curator  ad 
litem,  said  he  had  seen  Miss  Attwell,  aad 
was  satisfied  that  she  required  to  be 
kept  under  restraint. 

Mr.  Rowson  moved  that  Mr.  Lie- 
brandt,  an  uncle  of  Miss  Attwell,  be  ap- 
pointed curator  honi/t. 

Mr.  J.  E.  R.  de  Villiers  moved  that 
Mr.  Roos,  of  the  Board  of  Executors,  be 
appointed. 

Order  granted,  declaring  Miss  Attwell 
of  unsound  mind,  and  appointing  Mr. 
Roos  as  curator. 


Ex  parte  TROLLIP. 

Mr.    Upington   moved    for    cession  of 
certain  artioka  of  olerkship  to  Mr.  J.  B. 


"OAPB  TIMES'*  LAW  REPORTS. 


327 


Cle^hom,  who  would  act  for  petitioner 
danng  his  abeencc  from   the  Colony  od 
account  of  ill-health. 
Order  granted  as  prayed. 


Ex  parte  STEWART    AND    f        1905. 

WIPE.  )Apr.  27th. 

Scottish  marriage — Married  Wo- 
men's Property  Act — Com- 
mnnity  of  property. 

Hvahajui  and  imfe  domiciled 
(Md  married  in  Scotland  p7'ior 
to  the  ifassing  of  the  Manied 
W(fnieH^8  Prvperttf  Act  of 
1882,  are  married  in  com- 
munity  as  to  movable  jrroperti/ 
but  not  as  to  immovable. 


Mr.  Sutton  moved  to  have  a  certain 
trftiisfer  deed  of  ground  situate  at  East 
London  amended  by  the  description  of 
ihh  parties  as  having  been  married  in 
community  of  property.  The  parties 
wfw  manied  in  Scotland,  where  they 
were  domiciled,  in  1877,  before  the  pass- 
ing of  the  Married  Women's  Property 
Act.  Thev  had  since  become  domiciled 
in  this  colony. 

Buchanan,  J.,  said  that  it  soemed  to 
him  that  the  parties  were  married  m 
community  so  far  as  movable  property 
ws?  concerned,  but  without  community 
*^  far  a<)  immovable  property  was  con- 
cerued.  On  the  authorities  quoted,  he 
was  not  prepared  to  say  that  this  pro- 
pertv  was  held  in  community.  There 
would  be  no  order. 


SUPREME   COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Mr-  Justice  Hoplky.] 


TRIAL  CAUSES. 


DE    KOCK    V.    COIX)NIAL 
GOTEKNMBNT. 


{: 


1905. 
Apr.   28th, 
May      iBt. 

Fire — Riilway — Neglijjencft. 

Ijtif(fiin   r.    t'olonial   Govern- 
ment (14    C.T.R.,    D^fi)    fol 
loweil. 


This  was  an   action   brought  by   Mar- 
Ihiiius  de  KQck«-  farmer,      Malmesbury, 


against  the  Colonial  Government,  to  re- 
cover damages  in  the  sum  of  £100  for 
injury  done  to  his  propertj'  by  rLa^()ll 
of  the  negligence  of  the  Railway  Depart- 
ment, ur  its  servants. 

From  the  pleadings  it  api)earcd  that 
the  plaintiff  claimed  £100  by  way  of 
damages  caused  through  his  grazing 
lands  having  been  burned  out,  the  grass 
having  caught  lire  from  coals  thrown  or 
deposited  from  a  railway  engine  pro- 
ceoding  past  his  farm  on  its  way  from 
Cape  Town  to  Malmesbury.  On  the  7th 
January  last  what  was  locally  known  as 
the  11  down  train,  was  passing  through 
plaintiff's  farm  to  Malmesbury,  when 
live  coal  was  thrown  out  from  the  en- 
gine, and  the  plaintiff's  summer  grazing 
was  destroyed.  Defendants  repudiated 
liability,  and  said  specially  that  the  fire 
and  damage  complained  of  were  not  'n 
any  way  caused  by  or  attributable  to 
the  acts  or  negligence  of  the  driver  of 
the  engine  or  any  other  servants  of  the 
defendant. 

Mr.  Upington  (with  him  Mr.  Alexan- 
der) was  for  plaintiff;  Mr.  Howel  Jones 
(with  him  Mr.  Morgan  Evans)  was  for 
the  Government. 

The  plaintiff,  Marthinus  de  Kock,  said 
that  he  was  a  farmer  at  the  farm  Amoh- 
kuil,  division  of  Malmesbury.  The  line 
nassed  through  his  ground.  Witness  had 
from  time  to  time  suffered  from  fires 
when  railway  trains  had  been  parsing. 
On  the  7th  January  the  train  for  Mal- 
Ufopbury  passed  ih''ouc[h  his  farm  about 
10.45  a.m  Witness's  farm  was  about 
three  miles  from  Malmesbury.  At  the 
tiro-c  the  train  passed  he  was  on  his  horse, 
and  was  getting  ready  to  go  to  ono  of  his 
camps.  He  at  onoe  noticed  a  fire,  which 
grew  rapidly;  there  was  a  strong  north 
wind  blowing  in  the  direction  of  witness's 
homestead.  Witness  immediately  went 
to  the  railway  line  to  see  how  the  fire 
had  been  caused.  He  found  that  coal 
had  been  thrown  down  from  the  engine. 
One  piece  was  by  the  wire  fence,  and 
about  a  yard  from  this  was  another  piece 
of  coal  lying  inside  the  fence.  The 
coal  was  still  burning,  so  that  he  was 
unable  to  handle  it.  He  afterwards 
picked  up  the  two  pieces  of  coal  (pro- 
duced), and  went  to  his  homestead  im- 
mediately. 

By  the  Court :  There  was  no  other 
way  in  which  tho  fire  oouid  have  been 
caused  except  by  the  hot  coals  from  the 
engine.  Tnere  was  no  one  by  at  the 
time  he  went  to  the  spot.  Witness  was 
about  300  yards  from  the  lino,  when  the 
fire  broke  out,  and  heat  once  rode  to  the 
spot. 

Wibness  (continuing)  said  that  the  fire 
spread  in  tlK)  summer  grazing,  and  went 
as  far  as  his  kraal.  Ho  called  up  his 
son  and  some  coloured  helpers.  It  was 
impossible  to  save  the  summer  grazing. 
He  had  great  difficulty  in  keeping  the 
fire  from  spreading  to  his  homestead. 
The  line  was  not  clean ;  grass  was  grow- 
ing   in    it.       The    same    afternoon    the 


328 


"CAPE  TIMES"  LAW  REPORTS. 


train,  on  its  reUirn  journey  to  town, 
caused  airather  fire  on  his  farm ;  the  veld 
was  burning  as  the  train  was  passing. 
That  fire  was  soon  extinguished  by  his 
servants.  He  valued  the  hire  for  one 
summer  of  the  grazing  destroyed  at 
£100,  or  even  more.  That  was  what  he 
would  have  been  prepared  to  give  for 
such  grazing. 

By  t»he  C^ourt :  He  had  kept  all  his 
stock  on  his  farm.  He  had  not  hired 
any  other  veld  in  consequence  of  the 
fire,  nor  had  he  had  to  buy  fodder.  He 
considered  that  his  cattle  were  in  poorer 
condition  by  reason  of  the  grazing  hav- 
ing been  burnt.  He  had  had  to  give  the 
cattle  more  hay  than  would  otherwise 
have  been  necessary.  He  calculated  that 
about  £25  worth  of  hay  more  had  been 
consumed  than  would  have  been  neces- 
sary if  the  grazing  had  not  been  de- 
stroyed. 

Witness  (in  further  cross-examination) 
said  that  he  had  received  a  circular  from 
the  Railway  Department  in  reference  to 
the  measures  to  be  taken  to  minimize 
the  risk  of  fires  along  the  line.  He  sent 
a  reply ;  he  did*  not  know  whether  he 
posted  it,  but  he  was  not  prepared  to 
agree  to  the  proposals  of  the  Depart- 
ment. 

Mr.  Jones  said  that  the  department  had 
not  had   a  reply  from  the  plaintiff. 

Witness  (continuing)  said  that  his 
land,  extending  100  ft.  from  the  fence, 
was  very  valuable.  He  recived  a  fur- 
tlier  letter  from  the  Department,  stating 
that  they  took  it  that,  if  they  had  no 
reply  from  the  plainiff,  ho  did  not  con- 
sent to  the  making  of  a  fire-path  100  ft. 
outside  trfie  railway  boundary.  On  the 
day  of  the  fire  he  noticed  grass  growing 
on  the  railway  line  itselt. 

Cross-examined  by  Mr.  Jones :  He 
would  not  swear  that  he  wrote  a  reply 
to  the  communications  that  he  received 
from  the  Government.  He  objected  to 
giving  the  Government  100  ft.  of  land  on 
each  side  of  the  fence.  As  to  the  pro- 
posal of  the  Government  to  cut  a  10  ft. 
fire-path,  he  did  not  think  they  would 
have  kept  such  a  path  clean.  He  could 
not  afford  to  give  the  Government  10 
ft.  of  the  ground  for  nothing.  On  the 
day  in  question  he  saw  grass  growing 
about  a  foot  high  on  the  line  between 
the  two  fences.  The  line  was  not  kept 
clean.  The  Department's  servants  were 
on  the  line  almost  every  day. 

Mr.  Jones  (to  witness) :  How  are  you 
the  poorer  on  account  of  this  fire? 

Witness :  I  can't  say  I  am  the  poorer, 
but  I  have  the  damage ;  I  have  the  loss. 

Further  cross-examined :  He  had  about 
600  or  700  morgen  of  good  grazing  ground. 
Much  more  than  25  morgen  was  burnt 
out  by  the  fire.  He  had  suffered  dam- 
age by  t;he  previous  fires,  but  the  dam- 
age in  the  present  case  was  so  serious 
that  he  was  obliged  to  bring  an  action. 
He  had  had  to  keep  two  men  specially 
pn   his  f^rm   during  certain  months  to 


look   after   any   fires   that   might   break 
out. 

Re-examined :  He  did  not  consider  that 
an  100  ft.  path  would  be  necessary  if 
the  line  were  kept  clean. 

Joseph  de  Kock  (son  of  the  plaintiff) 
spoke  to  the  springing  up  of  the  fire 
immediately  after  the  train  had  passed, 
and  the  extremely  rapid  extension  of 
the  flames.  He  corroborated  his  father's 
evidence  on  various  iioints,  and  said 
that  he  valued  the  grazing  destroyed  by 
the  fire  at  about  £100. 

By  the  Court :  About  half  a  camp  waa 
burnt  out  by  the  fire. 

Cross-examined :  He  had  seen  burnt 
paper  where  the  fire  occurred. 

Marthmus  de  Kock,  jun.,  another  son, 
also  gave  evidence. 

Mr.  Burg,  surveyor,  proved  the  plan 
put  in,  showing  the  area  damaged  by 
the  fire.  About  40  morgen  of  ground 
was  damaged. 

Cross-examined  :  Witness  surveyed  the 
land  for  the  purposes  of  the  case  on  April 
13. 

Wilhelm  Hubach,  baker.  Malmesbury, 
said  that  on  Saturday,  January  7,  while 
travelling  on  the  main  road  he  saw  a 
fire  on  the  plaintiff's  farm  shortly  after 
11  o'clock.  He  stopped,  and  went  to 
the  spot.  He  did  not  know  whether  the 
fire  had  started  from  the  inside  or  out- 
side the  fence.  The  fire,  he  was  sure, 
started  from  the  railway  side.  There 
was  a  strong  northerly  wind  blowing  to- 
wards the  homestead.  During  the  fol- 
lowing week  he  passed  along  the  road, 
and  saw  a  ganger  employed  by  the 
C.G.R.  engaged  in  burning  the  grass  on 
the  line  opposite  to  the  plainlnff's  farm. 

Cross-examined  :  The  grass  was  not  be- 
ing burned  opposite  the  exact  place  where 
the  fire  had  t^lcen  place.  He  came  to  the 
conclusion  that  the  fire  bad  been  caused 
by  the  railways.  He  took  some  interest 
in  the  matter,  becaa«e  so  many  of  the 
farmers  in  the  Malmesbury  district  had 
complained  about  damage  done  to  their 
farms  by  fire. 

John  de  Kock,  farmer,  Malmesbury. 
said  he  valued  the  grazing  destroyed  by 
the  fire  at  £100  or  more. 

By  the  Court :  He  would  be  prepared 
to  pay  £100  for  forty  morgen  of  grazing 
land  for  one  season,  if  he  had  a  good 
deal  of  stock,  say,  about  100  head.  Wit- 
ness wa/^  not  related  to  the  plaintiff. 
Plaintiff  had  one  of  the  best  stock  farms 
in  the  district  of  Malmesbury. 

Cross-examined  :  The  value  of  the  farm 
was  about  £5,000. 

Mr.  Upington  said  that  from  the  trans- 
fer deed  it  appeared  that  the  farm  con- 
tained 1.491  morgen,  and  the  purchase 
price  in  1893  was  £2,500. 

Abraham  Carel  Steyn,  of  the  farm 
Diep  River,  dii»trict  Malmesbury,  said 
that  he  had  also  suffered  from  fires  to 
his  property  caused  by  the  railway,  and 
so  recently  as  the  21st  March  he  was 
engaged  for  half  a  day  in  putting  out  a 
fire  due  to  this  caqse.     He  coQsidered 


"CAPE  TIMES"  LAW  REPORTS. 


329 


that  about  £140  or  £150  of  damage  waa 
done  to  the  plaintiff's  yeld. 
Mr.  Upington  closed  his  case. 
Mr.  Jones  called 

Martin  Delanev,  engine-driver,  em- 
ployed by  the  C.G.R.,  who  fiaid  that  he 
droTe  the  17  down  train  from  Cape 
Town  to  Malmesbury  on  the  17th  Janu- 
ary. He  knew  nothing  about  a  fire  hay- 
ing occurred  on  the  plaintiff's  farm. 

By  the  Court:  He  did  not  remeinber 
that  the  17th  January  was  a  very  windy 
day. 

VVitnefis  (continuing  his  evidence)  said 
that  he  saw  fires  along  the  line  so  often 
that  he  did  not  take  any  notice.  It  was 
not  an  impossibility  thiat  the  pieces  of 
coal  (produced)  would  pads  through  the 
fire  bare  and  drop  underneath  the  en- 
gine on  the  line.  There  was  a  width  of 
20  feet  on  the  line  between  the  fences. 
It  was  posfiible  that  the  coal  produced 
inight  have  been  blown  on  to  the  ad- 
joining land  if  there  had  been  a  very 
nigh  wind. 

Cross-examined  by  Mr.  Upington :  He 
had  bad  16  years'  experience  as  a  driver, 
hoih  on  the  main  line,  the  Malmesbury 
branch,  and  the  Sir  Lowry  Pass  branch. 
He  had  shovelled  coal  into  the  veld  for- 
nM'Hy,  but  they  did  not  do  that  now.  He 
had  iseen  places  along  the  Malmesbury 
line  where  fires  had  occurred,  but  he 
W2M  not  aware  that  the  fires  had  been 
caused  by  the  railway.  He  had  been 
called  upon  by  the  assistant  locomotive 
superintendent  to  make  an  explanation 
in  regard  to  a  fire  on  a  farm  adjoining 
the  plaintiff^s.  He  was  not  aware  that 
tne  man  was  compensated.  Ho  had  re- 
marked to  the  stoker,  **  Hello,  we  shall 
he  blamed  again.'*  He,  however,  did  not 
reinfmber  any  other  occajsions  wnen  they 
had  been  blamed  before. 

Witness  did  not  know  that  there  had 
been  demands  made  upon  the  Depart- 
ment by  Jordaan,  Loftus,  and  John 
Steyn,  all  of  whom  had  been  compen- 
sated. He  did  not  know  that  there  bad 
wjn  a  demand  by  Mr.  Van  der  Spuy  for 
tTj  damage  to  hw  veld. 
•f  k  ^^P'"fi^^'>-  Now,  to  be  quite  plain, 
«  they  had  only  kept  the  railway  line 
^ear  of  long  grass,  there  would  be  none 
of  these  fires  at  all? 

^Vjtness:  I  cannot  say. 

Vjitne^s,  replying  to  another  question, 
said  that  the  line  was  clean  m  some 
parts. 

In  further  cross-examination  witness 
exclaimed:  How  much  ground  do  you 
*»nt  the  railway  to  keep  clear? 

Mr.  Upington :  Ah,  Mr.  Jones  will  tell 
us  that. 

"  itness.  re-examined,  said  that  he  did 
Dot  know  anything  about  the  other 
<*lainM  made  for  compensation. 

Thomas  Hollvan,  locomotive  inspector, 
said  he  hid  examined  the  engine  in  ques- 
twn,  and  found  that  it  was  fitted  with 
^1  the  latest  appliances  for  preventing 
pi«ce«  of  live  coal  getting  through.  The 
<park-arrester  was  of  the  latest  type. 


In  cross-examination,  witness  said  that 
bO  far  as  the  prevention  of  fires  was  con- 
cerned, the  C.G.R.  engines  were  as  good 
as  any  in  the  world. 

Frederick  Gie,  fireman  on  the  engine 
in  question,  said  that  they  did  not  throw 
out  coals  on  the  journey.  It  wa.s  usual 
to  empty  the  grates  only  at  the  end  of 
the  journey. 

Cro6s-examined  by  Mr.  Upington :  His 
idea  was  that  some  of  these  fires  were 
caused  by  the  farmers,  and  that  they 
tried  to  get  money  out  of  the  Govern- 
ment. 

William  Edward  Wood,  ganger, 
C.G.R. ,  said  that  on  the  Monday  after 
the  fire  he  found  five  burnt  matches  near 
the  gate-post  on  plaintiffVs  farm.  He  told 
the  plaintiff  about  what  he  had  found. 

Cross-examined :  Witness  and  his 
under-ganger,  Lindequist,  would  be  held 
responsible  for  the  fire  if  it  were  caused 
by  the  railway.  He  denied  that  he  was 
now  merely  trying  to  "  save  his  own 
skin."    Witness  produced  the  matches. 

Mr.  Upington:  You  see  it  is  rather  a 
pity,  because  there  are  six  matches  in 
the  paper. 

Witness:  I  can't  help  that;  it  may  be 
five  or  six. 

Thos.  Hollvan,  locomotive  superinten- 
dent (recalled  by  Mr.  Jones),  stated  that 
the  engine  came  out  of  the  shops  on  the 
6th  April,  1904.  It  was  the  practice  with 
an  engine  of  that  class  to  shovel  the 
ashes  out  at  the  end,  of  the  journey,  and 
not  in  the  course  of  it. 

Crose-examined  by  Mr.  Upington :  He 
found  out  his  misrtake  that  morning  as 
to  the  time  when  the  engine  went  out  of 
the  shop.  The  first  bars  wore  nob  burnt. 
Since  he  gave  evidence  he  thought  that 
the  engine  was  out  longer  than  he  had 
stated  on  Friday 

Christian  Rindquisb,  a  ganger,  stated 
that  a  week  before  the  fire  he  burnt  all 
the  dry  grass  on  the  line.  The  Mon- 
day after  the  fire  witness  went  with  the 
ganger  Wood,  who  found  some  matches 
outside  the  fence. 

Cross-examined  by  Mr.  Upington :  He 
always  burnt  the  grass  right  up  to  the 
fence.  Sometimes  he  was  left  to  do 
the  work  by  himself. 

John  Griffiths,  permanent  way  inspec- 
tor, stated  that  me  fire  was  reported  to 
him  on  the  Wednesday  following.  The 
next  dav  he  vi»ited  the  scene  of  the 
fire,  and  came  to  the  conclusion  that 
the  fire  started  at  the  hanging  post  of 
the  gate.  It  could  not  have  started  in- 
side the  gate.  The  Thursday  j^revious 
he  inspected  the  line,  and  noticed  no 
combustible  matter  by  i^e  permanent 
way. 

\Vm.  George  Hopkins,  olaima  inspec- 
tor, who  visited  the  scene,  said  that 
Joseph  de  Koch  told  him  that  when  he 
first  saw  the  fire  it  was  160  yards  north 
of  the  gai»-po6t,  and  70  ft.  inside. 

Cross-examined  by  Mr.  Upington: 
During  this  summer  he  had  examined 


380 


« 


CAPE  TIMEB"  LAW  REPORTS. 


fire  claims  for  damage  by  fire  in  that 
neighbourhood. 

Mr.  Jones  closed  his  case. 

Mr.  De  Koch,  plaintiff  (recalled  by 
His  Lordship)  said  of  falie  40  morgeu 
mentioned,  about  half  was  Btubble  land, 
which  had  been  reaped. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Hopley,  J.  :  In  this  case  it  is  not 
necessary  for  me  to  consider  my  judg- 
ment, because  the  principles  that  should 
govern  my  judgment  have  been  suffi- 
ciently laid  down  in  the  case  of  lAttegan 
v.  Colonial  Government  (14,  C.T.R.,  955), 
and  all  the  Court  has  to  do  is  to  apply 
them  to  the  circumstances  of  the  pre- 
sent case.  Mr.  De  Koch  was  on  horse- 
back on  the  morning  of  January  7th, 
and  saw  a  fire  break  out  just  after  the 
train  has  passed  his  farm.  After 
telling  his  servants  to  put  it  out,  he  went 
at  once  down  to  the  £cene  of  the  out- 
break. No  doubt  it  occurred  to  him 
that  he  was  going  to  suffer  considenable 
losS)  and  thought  he  had  better  go  and 
see  what  caused  it.  He  came  to  the 
conclusion  that  the  fire  started  just  in- 
side the  line  by  the  fence,  and  he  dis- 
covered just  inside  the  railway  fence  a 
small  piece  of  coal,  and  also  one  on  his 
own  side,  still  hot.  I  have  to  consider 
two  points,  and  find  them  proved  before 
I  can  give  judgment  for  the  plaintiff. 
The  first  is,  was  the  engine  the  «*ause 
of  the  fire?  and,  if  so,  was  it  through 
the  negligence  of  the  Colonial  G<>7ern- 
ment,  or  through  its  servants?  \  be- 
lieve there  was  no  fire  before  tha  train 
passed,  and  also  believe  that  shortly 
after  the  train  passed  there  was  a  fire. 
There  is  no  evidence  that  there  was 
anyone  on  the  veld  who  could  have 
caused  it.  Then,  as  a  matter  of  common- 
sense,  I  think  there  is  no  other  ex- 
planation that  could  be  adopted  than 
that  the  fire  was  caused  by  the  engine. 
It  is  possible,  as  stated  by  some  of  the 
witnesses,  that  it  might  happen  that, 
owing  to  the  slides  being  left  open,  livo 
sparlu  might  get  out,  and  that  would 
constitute  neglect.  It  was  necessary  for 
the  Colonial  Government  to  perform 
with  the  greatest  vigilance  all  its  duties. 
The  view  I  take  is  that  the  fire  was 
caused  by  the  engine,  and  there  mu^t 
have  been  neglect,  because  there  is  thd 
evidence  of  Hughes  that  combustible  ma- 
terial was  left  mside  the  fence,  and  the 
Railway  Department  must  be  held  strict- 
ly responsible  in  that  matter.  They 
Biiould  have  seen  that  their  hands  kept 
their  line  as  clean  as  po.<isible.  I  think, 
therefore,  they  could  not  escape  lia- 
bility. The  real  question  is  tnat  of 
damages.  Ai  to  the  pica  of  contributoi'v 
nefirligence  laised  by  Mr.  Jones  as  againit 
the  plaintiff,  because  he  would  not  al- 
low a  fireuath,  the  Court  cannot  hold 
that  hw  refusing,  without  compensation, 
to  have  fire  p.iths  cut  in  his  veld  on 
each  side  of  the  line  constituted  contri- 
butory negligence.      As  to  t|ie  mpoqut 


of  damages,  farmers  of  experience  have 
stated  it  was  excellent  land,  and  was 
t)eing  preserved  for  summer  fodder. 
The  fodder  was  of  excellent  quality.  One 
of  the  witncticies  said  that  the  cattle 
were  poorer  and  mi^ht  suffer  from  sick- 
ness. I  consider  justice  between  the 
parties  would  be  done  by  giving  judg- 
ment for  the  plaintiff  for  £30,  with 
costs,  also  allowing  Mr.  De  Kock  his 
expenses  as  a  material  witness. 

[Plaintiff's  Attorneys;  Berrang6  and 
Son  ;  Defendant's  Atorney :  Reid  and 
Nephew.] 


SUPREME  COURT 


FIRST  DIVISION. 


[Before  the  Chief  Justice  (the  Ri^ht 
Hon.  Sir  J.  H.  de  Villiers,  P.O., 
K.C.M.G.,  LL.D.).  and  the  Hon.  Mr. 
Justice  Maabdobp.] 


APPLICATION. 


Ex  parte  MARAI8.         ] 


1905. 
May  lifit. 

Insolvency— ^-Provisional  trustee — 
Practice. 


In  the  CUM  of  an  application 
for  apiw'mtinfHt  of  a  fyrori- 
siofuU  trwftee  to  an  insolvent 
etttotp^  the  Court  must  be  in- 
formed  as  to  the  proportion  of 
creditors  who  aupport  such 
application. 


Mr.  Burton  moved,  as  a  matter  of 
urgency,  for  the  appointment  of  peti- 
tioner, who  is  secretarv  of  the  Afncan 
Mutual  Trusd  Co.,  at  Malmesbury,  as 
provisional  trustee  in  the  estate  of  Ed- 
ward Geo.  Devenish  Poggenpoel,  which 
was  provisionally  sequestrated  on  April 
28 

De  Villi'^rs,  C.J.,  said  that  the  prayer 
of  the  petitioner  would  be  granted  in 
the  present  instance,  but  it  should  be 
understood  that  the  practice  must  be 
followed  of  informing  the  Court  what 
proportion  of  creditors  was  represented 
bv  the  person  wishing  to  be  appointed 
trustee.  That  had  not  been  done  by 
the  present  applicant,  but  it  must  be 
notoa  that  in  all  such  applications  in  the 
future  the  information  must  be  stilted  in 
the  petitioiu 


"CAPE  TIMES*'  LAW  REPORTS. 


331 


PaOea  (May  2nd). 

De  VilHers,  C.J..  said  that  it  ap- 
Doared  in  this  matter,  which  came  be- 
lora  t\\e  Court  yesterday,  for  the  ap- 
pointment of  the  petitioner  as  pro- 
TJsional  trustee  in  the  estate  of  £dward 
George  Derenish  Poggenpoel,  that  the 
estate  had  not  been   yet  sequestrated. 

Mr.  Burton,  who  appeared  for  the 
petitioner,  said  ho  was  extremely  sorry. 

Msasdorp,  J. :  The  only  thing  you 
can  do  is  to  apply  to  the  Master  to  ajp- 
point  a  curator.  The  order  must  be  dis- 
charged. 


ACKEBMAK  V.  SMUTS. 


1905. 
May  Ist. 


Review  of  proceedings  in  inferior 
Court  — ^6  ross  irregularity — 
Postponement  of  trial — With- 
drawal of  action — Claim  in 
reconvention. 

Tkf  plaintiff  sued  the  defemUnU 
In  the  Supreme  Court  for  £500 
for  alleged  slauder^  and  the 
defewUint  pleaded  to  the  decla- 
ration and  filed  a  claim  in 
reconvention  for  £20  for  illegal 
impouudini^  of  cattle.  The. 
phtintijf  thereupmi  gave  notice 
to  the  defeiulant  of  the  taith- 
druMcal  of  the  action^  and  insmed 
a  summons  again Kt  the  defen- 
dant in  a  Resident  Magistrates 
Cmtrt  for  £20  for  the  slander, 
T)ie  Magistrate  derided  In 
j/ostpftne  the  h faring  of  the 
case  until  the  claim  in  recon- 
rention  hid  be^^i  decided  by  ih". 
Supreme  Court. 

Held,  on  application  for 
review,  th/it  inasmuch  as  the 
question  whether  the  plaintiff" 
conld  irithdrair  pnreedint/s 
in  the  Supreme  Court  after 
filinfr  of  the  claim  iu  recmi- 
tention,  \ras  an  important 
question  of  practice  for  the 
Supreme  Court  to  decide ^  the 
postpfinem^nt  of  the  case  did 
not  constitute  a  gross  irregu- 
larity. 

This  was  an  Application  by  the  plain- 
tiff in  the  suit  of  Abraham  N.  Ackerman, 
calling  upon  the  R.M.  of  Cape  Town 
and  the  defendant  in  the  suiti,  Nicolaas 
Smuts,  to  show  cause  why  certain  pro- 
osedingB  in  the  Court?  of  the  ^  R.M. 
should  not  be  reviewed  and  set  aside  on 
th«  ground  that  they  were  groasly  irregu- 
lar and  contrary  to  law. 


From  the  record  it  appeared 
that  the  applicant  had  instituted 
an  action  in  the  Supreme  Court 
to  recover  £500  damages  for  slander,  to 
which  the  respondent  had  filed  &  claim 
in  reconvention  for  £20  damages  for  the 
illegal  impounding  of  certain  cattle.  The 
applicant,  however,  had  withdrawn  from 
the  action  in  the  Supreme  Couivt,  and 
had  commenced  an  action  in  bhe  R.M.'s 
Court  for  £20  damages  for  slander.  The 
counter-claim  by  Smuts  in  the  Supreme 
Court  had  not  been  withdrawn.  The 
Magistrate,  when  Ackerman's  claim  came 
before  him,  ordered  the  further  hearing 
to  be  i>ostponed  sine  die,  with  costs,  untU 
the  suit  between  the  parties  in  the  Su- 
preme Court  had  been  iieard. 

Mr.  J.  £.  H.  de  Villiers  was  for  the 
applicant;  Mr  Burton  was  for  the  re- 
spondent. 

Mr.  I>e  Villiers  argued  that  it  was  the 
duty  of  the  Resident  Magistrate  to  pro- 
ceed with  the  hearing  of  the  applicant's 
case  in  his  court,  notwithstanding  that 
the  counter-claim  in  the  Supreme  Court 
had  not  been  disposed  of.  The  plaintiff 
said  that  the  defendant  was  a  man  of 
no  means. 

Mr.  Burton  addressed  their  lordships 
on  the  question  of  whether  the  Resident 
Magistrate  should  have  directed  the  ap- 
plicant to  pay  the  costs  of  tlie  day,  and 
submitted  that  the  order  was  quite  justi- 
ablc. 

Mr.  Do  Villiers  having  been  heard  in 
roply. 

Do  Villiers,  C.J. :  When  the  case 
came  on  for  hearing  in  the  Magistrate's 
Court  the  Magistrate  decided  to  post- 
pone tho  further  hearing  until  the  Su- 
preme Court  had  ^  decided  the 
question  of  the  claim  in  recon- 
vention, which  had  not  been  brought 
in  the  Magistrate's  Court.  Now,  there  is 
an  application  to  this  Court  to  set  aside 
those  proceedings  on  the  ground  of  gross 
irregularity,  and  the  only  question  to  be 
decided  is,  was  there  such  gross  irregu- 
larity on  the  part  of  the  Magistrate  as 
to  justify  this  Court  in  interfering?  To 
my  mind,  thoro  was  nothing  approach- 
ing gross  irregularity.  It  seems  to  mo  to 
have  been  a_very  prudent  course  on  the 
part  of  the  Magistrate  to  postpone  the 
further  hearing  of  the  case  until  the  Su- 

?reme  Court  had  decided  the  matter, 
'here  was  an  important  question  of 
practice  in  the  Supreme  Court  involved. 
As  to  what  the  position  of  the  Court 
would  have  been  in  such  a  case,  it  is  not 
necessary  now  to  decide,  but,  at  all 
events,  there  are  authoriti^  to  the 
effect  that  a  plaintiff  is  not  entitled  to 
withdraw  his  claim  in  convention  if  the 
defendant  has  filed  a  cla\im.  in  reconven- 
tion. If  there  had  been  a  doubt  upon  the 
point,  the  Supreme  Court  alone  could 
nave  decided  that  doubt.  Therefore,  in 
this  case,  it  was  a  prudent  course  for  the 
Magistrate  to  postpone  the  case.  But 
there  seems  to  me  to  have  been  another 
reason  why  the  Magistrate  might  fairly 


332 


« 


CAPE  TIMES"  LAW  REPORTS. 


postpone  the  case.    There  was  a  claim 
in   reconvention,   and  we     must  take  Jt 
that  it  was  a  bona  fide  claim;  there  was 
nothing  to  show  that  it  was  not  a  bona 
fide  claim.     A  considerable  time  might 
elapse  between  the  hearing  of  the  claim 
in  reconvention   in    the   Supreme  Court 
and     the   hearing   of    the   case   at    the 
Magistrate's  Court,  and  the  Magistrate 
might   have   fairly   said    that   inasmuch 
as  the   plaintiff   was    the    cause    of    the 
difficulty  inasmuch  as  he  first  proceeded 
in   the  Supreme  Court  and   then  after- 
wards,   when   the    plea   had    been    filed, 
removed   the  venue  to  the  Magistrate's 
Court,    he   (tho   Magistrate)   first   of    all 
wished  to  ©ee  what  became  of  the  claim 
in  recconvention  in  the  Supreme  Court, 
It    was    a    course    which,  under  all  the 
circumstances,     seems    to    me    to    have 
been   perfectly   justified.      On  the  ques- 
tion of  costs,  1  am  bound  to  say  that  it 
would    have  been   better   if   the  Magis- 
trate had  reserved  the  question  of  costs ; 
but    it    was    no    gross       irregularity    to 
award    cost**.      The    application    for    re- 
view must  be  disntissea  with   costs. 
Maasdorp,  J.,  concurred. 

[Applicant's  Attorneys:  Michau  and 
De  Villiers ;  Respondent's  Attorneys : 
Dempers  and  Van  Ryneveld.] 


DU  TOIT  V.  KRUGER. 


{ 


1905. 
May  1st. 
,,     4th. 


Private  property  of  enemy — 
Booty — Rebel — Divesting  of 
property — Vindicatio — Com- 
pensation. 

During  the  recent  xnar^  the 
plaintiffs  a  British  subject 
reMding  within  this  Colony^ 
joined  the  r( publican  forces 
which  had  invaded  the  district 
in  which  his  farm  was  situated ^ 
and  accompanied  them  to  the 
Transvaal.  During  his  absence 
the  BAtish  troops  entered  the 
district  aiul  seized  his  goods 
on  his  farm,  including  a 
harmonium,  which  were  sold 
to  the  defendant  at  pxiblic 
awtion  by  order  of  the  Military 
authorities. 

Held,  in  an  action  for  the 
recovery  of  the  harmonium 
or  its  value,  that  if  the  seizure 
of  the  harmonium  was  contrary 
to  the  usaj^es  of  modern  war- 
fare, the  plaintiff  should  apply 
to  the  Imperial  Gocemment 
for  compensation,  but  that,  as 
it    had    been    taken    by    the 


Military  authorities  during 
the  war,  with  the  object  of 
acquiring  the  ownership  thereof 
from  a  person  who  had  joined 
alien  enemies,  the  plaintiff  had 
been  diveMed  of  his  ownershtp 
and  was  not  fntitM  to  vindi- 
cate the  property. 


This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Vryburg, 
in  an  action  brought  by  the  respwident 
(Kruger)  to  recover  £4^5,  the  price  of  a 
certain  harmonium,  or,  in  the  alterna- 
tive,  for  its  restoration. 

From  the  record,  it  appeared  that  the 
claim  of  the  respondent  was  reduced  in 
the  Court  below  to  £20,  in  order  to 
bring  it  within  jurisdiction.  Between 
October.  1899,  and  May,  1900.  the  re- 
spondent,  a  Vryburg  farmer,  was  serv- 
ing with  the  Republican  Forces,  and  in 
his  absence  the  military  authorities 
seized  from  his  home  the  instrument  in 

auestion.  during  guerilla  warfare  in  the 
istrict  of  Vryburg.  The  harmonium  was 
afterwards  sold  by  public  auction  by  the 
military  authorities,  ajid  lK)ught  by  the 
appellant,  Du  Toit,  a  Vryburg  shop  as- 
sistant The  respondent  returned  to 
the  Vryburg  district  in  February,  1906, 
and  had  been  tried  for  high  treason,  and 
disfranchised.  The  Magistrate,  in  his 
reasons  for  judgment,  said  that  the  gues- 
tion  to  bo  decided  was  whether  plaintiff 
had  been  legally  divested  of  his  property, 
and  whether  it  had  legally  vested  in  de- 
fendant. On  the  authority  of  the  case 
of  Jansen  v.  Van  der  Walt,  he  the  Resi- 
dent Magistrate)  came  to  the  conclusion 
that  the  plaintiff  had  not  been  legally 
divested  of  his  property,  and  that  he 
was  therefore,  entitled  to  recover  it  from 
the  defendant.  Judgment  was  given  for 
the  plaintiff. 

Mr  Searle,  K.C.,  was  for  the  appel- 
lant; Mr.  Burton  was  for  'the  respon- 
dent. 

Do  Villiers,  C.J.,  «^aid  that  he  could 
well  understand  that  cattle  might  be 
of  use  to  the  enemy,  but  he  did  not  see 
how  an  harmonium  could  be  of  use  to 
the  enemy,  unless  it  were  to  incite 
them  to  courage. 

Mr.  Searle  said  that  it  might  be  placed 
at  the  head  of  the  army,  but,  even  then, 
he  was  afraid  the  music  would  be  rather 
slow.  Counsel  said  the  International 
authorities  were  agreed  that  booty  com- 
prised all  things  a  soldier  picked  up  in 
the  courw  of  military  operations,  whe- 
ther such  articles  were  of  use  in  hos- 
tilities or  not. 

[Maasdorp,  J. :  Has  it  not  been  de- 
cided that  if  a  soldier  carries  off  pro- 
per* v  for  his  own  benefit,  he  is  guilt v 
of  theft?] 

I  have  not  seen  the  case. 

[De  Villiers,  C.J. :  That  was  a  case  of 
a  rebel  taking  a  watch  from  a  station- 
master.] 


"CAPB  TIMES"  LAW  REPOBXa 


333 


There  H  was  held  that  that  was  not 
done  in  the  course  of  anv  military  ope- 
rations «t  all.  It  depends  a  great  deal 
whether  there  is  a  disciplined  force  un- 
der offioenk  Here,  everything  was  done 
regularly  by    the   military    authorities. 

[Maasdorp,  J. :  Supposin^r  the  mili- 
ttry  took  the  property  of  a  peaceful 
sahject.  and  then  removed  it  to  another 
place  and  sold  it,  do  you  say  that  would 
chaoge  the  ownership?] 

No;  the  Court  would  then  say  there 
was  not  sufficient  to  divest  the  original 
owner.  But  I  put  this  case  on  the 
ground  of  booty,  on  which  the  interna- 
tional authorities  are  clear. 

Mr.  Burton  submitted  that  the  true  de- 
fii'ition  of  booty  was  propertjr  taken  in 
the  actual  progress  of  hostilities,  in  the 
couFbe  of  action.  Unless  property  wore 
taken  on  the  field  of  battle,  so  to  speak, 
•eizure  of  any  other  kind  could  only  di- 
Te.U  the  owner  when  accompanied  by  the 
proper  legal  forms,  and  oeremonicfl  re- 
quired by  a  Court  of  law. 

[De  YilHers,  0.  J. :  Can  the  Court  now 
interfere  with  the  acts  of  the  military 
during  warfare  in  respect  of  property 
seised  from  the  enemvT] 

Mr.  Burton:  I  say  that  under  the  rules 
of  international  law  there  are  certain  re- 
cognised ways  in  which  seizure  and  sale 
can  take  place,  and  that  only  in  such 
ways  can  there  be  a  chance  of  a  man 
being  divested  of  his  property.  There 
ha^^  been  no  such  recognised  mode  of 
acting  here  as  to  divest  the  man  of  his 
owr.ership. 

Pottfa  (May  4th). 

De  Villiers,  C.J. :  This  case  has  been 
eiceedingly  well  argued  by  counsel  on 
both  sides,  and  the  Court  is  in  a  posi- 
tion to  gixo  judgment  without  further 
consideration.  The  facts  of  the  case 
are  briefly  as  follows:  During  the  re- 
rent  war  the  plaintiff,  who  was  a  British 
subject  residing  in  the  district  of  Vry- 
burg,  joined  the  Republican  forces  when 
they  invaded  that  district  and  wont 
with  them  into  the  Transvaal.  During 
hi«  absence,  the  British  troops  entered 
the  district  and  seized  his  private  pro- 
perty on  his  farm,  including  a  nar- 
monium.  The  goods  were  brought  into 
the  town  of  Vryburg  and  were  sold 
there  at  public  auction  by  order  of  the 
military  authorities,  martial  law  being 
in  force  at  the  time.  The  defendant 
bought  the  harmonium,  and  is  still  in 
possession  of  it.     After  peace  had  been 

Eroclfimed,  the  plaintiff  returned,  when 
e  was  tried  for  hi^h  treason  and  pun- 
ished with  disfranchisement.  The  plain- 
tiff, finding  that  the  defendant  was  in 
povesaion  of  the  harmonium,  brought 
an  action  for  its  resoration  or  payment 
of  its  value,  and  the  Court  below  held 
that  the  plaintiff  had  never  been  divestc 
of  his  ownership,  and  was  entitled  to 
▼indicate  his  propertr.  The  modern 
authorities,  to  which  this  Court  has 
been  referred,  on  the  rights  ci  capture 
dqting  war  do  not  afford  much  assist- 


ance for  the  decision  of  t^ie  appeal. 
The  rules  which  are  laid  down  by  some 
writers  for  exempting  the  private  pro- 
perty of  an  enemy  from  capture  have 
not  been  so  universally  accepted  and 
acted  upon  as  to  justify  this  Court  in 
treating  them  as  binding  principles  of 
law.  The  general  theory  of  war  is 
that  all  private  propertv  of  the  enemy 
may  be  taken  in  war,  but  the  modern 
usage  is  not  to  touch  private  property 
in  land  without  making  compensation, 
except  in  certain  specified  oases.  These 
exceptions,  aocordinff  to  Hallock  (2  In- 
ternational Law,  3rd  Ed.,  p.  68),  may 
be  stated  under  three  general  heads: 
1st,  confiscations  or  seizures  by  way  of 
penalty  for  militarv  offences;  2nd, 
forced  contributions  for  the  support  of 
the  invading  armies,  or  as  an  indem- 
nitv  for  the  expenses  of  maintaining 
orcfer  affording  protection  to  the  con- 
quered inhabitants;  and  3rd,  property 
taken  on  the  field  of  battle,  or  in  artorm- 
ing  a  fortress  or  town.  None  of  these 
exceptions  applies  in  the  present  case, 
for  it  has  not  been  suggested  that  the 
harmonium  and  other  goods  of  the 
plaintiff  were  seized  as  a  penalty  for 
any  military  offence  committed  by  him, 
or  were  required  for  the  support  of  the 
British  troops,  or  were  captured  on  the 
field  of  brattle  or  in  atonamg  a  fortrras. 
I  do  not,  however,  find  any  authority 
for  holding  that  if  modern  usage  is  not 
followed  by  an  army,  this  or  aaiy  other 
Court  would  be  entitled  to  disregard 
principles  of  law  which  had  been  well 
established  before  modem  usuage  sought 
to  mitigate  some  of  the  hardships  of 
war.  For  the  purpose  of  ascertaining 
those  principles  the  Court  has  to  fall 
back  upon  rules  laid  down  by  the 
ancient  jurists  of  Rome,  perpetuated  in 
the  jurisprudence  of  the  Netherlands 
and  accepted  in  times  pa.<vt  as  holding 
good  in  international  law.  Among  the 
national  modes  of  acquiring  property, 
the  Roman  lawyers  regarded  *' occu- 
pancy" as  the  most  important.  If  a 
thing  which  had  no  owner— a  rrn 
nuHifU — was  taken  possession  of  with 
the  object  of  acquiring  the  property 
therein,  the  person  who  so  took  it  be- 
came the  owner.  Among  goods  which 
were  regarded  as  nobodys  property  were 
goods  belonging  to  the  enemy  during 
time  of  war.  Such  goods  were  therefore 
capable  of  being  acquired  by  capture, 
and  it  made  no  difference  whether  they 
were  the  private  property  of  individuals 
or  the  publio  property  of  the  State. 
The  result  was  that  the  title  to  pro- 
perty lawfully  taken  in  war  was  con- 
sideied  as  divested  from  the  owner  and 
transferred  to  the  captor  as  soon  as  ho 
acquired  firm  possession,  provided  that 
he  took  and  kept  the  booty  with  the 
object  of  appropriating  it  to  has  own 
use.  A  discussion  arose  between  the 
writers  on  IntemafcioDal  law  during  and 
aftcnr  the  tune  of  Grotius  as  to  whether 


B34 


"CAPE  TIMES"  LAW  REPORTS. 


such  booty  belonged  to  the  State  whose 
troops  captured  it,  or  lo  the  individual 
captor,  but  they  were  all  agreed  that 
the  original  owner  waA  divested  of  his 
ownership.  Now,  it  is  agreed  in  the 
preeont  case  that  whatever  acts  were 
done  in  the  taking  and  selling  of  the 
plaintiff's  property  were  done  by  direc- 
tions of  the  military  authoritiea  during 
the  subsistence  of  the  war,  and  at  a 
time  when  the  plaintiff  was  one  of  the 
King's  enemies.  He  was  outbade  the 
Colony,  and  his  goods  were  inside,  but 
the  facts  remained  that  his  goods  were 
the  goods  of  an  enemy,  and  that  they 
were  taken  by  the  British  troops  in 
the  course  of  actual  warfare.  It  seems 
strange  to  an  ordinary  civilian  that  it 
should  have  been  considered  necessary 
for  the  due  prosecution  of  the  war  to 
seize  the  man's  {Mnvate  effects,  includ- 
ing a  musical  instrument  like  a  har- 
monium, but  is  the  Court  now  to  con- 
stitute itself  as  a  tribun&l  to  decide 
whether  the  capture  was  justifiable  or 
not?    The  military  authorities  took  the 

foods  as  booty  and  sold  it  aa  such,  and 
y  their  acts  they  have,  in  my  opinion, 
transferred  the  ownership  to  the  person 
who  bought  the  goods.  The  case  of 
Johnson  ▼.  Van  der  WaU{lZG.T.R.  931). 
which  has  been  cited  in  support  of  the 
Magistrate's  judgrment,  does  not,  when 
closely  examined,  support  the  plain- 
tiff's case.  Unfortunately  the  head 
note  to  the  report  contains  a  statement 
of  the  law  which  is  not  justified  by  the 
facts  of  the  case  or  the  remarks  of  the 
learned  judges  who  decided  it.  The 
head  note  is  to  the  effect  that  the  pri- 
vate property  of  alien  enemies  or  even 
of  rebels  is  not  booty,  and,  if  this  state- 
ment of  the  law  was  correct,  the  judg- 
ment of  the  Court  below  would  have 
been  fully  justified.  But,  in  fact,  the 
horse  there  in  question  had  not  been 
captured  as  booty  but  had  been  taken  to 
a  camp  for  protection.  It  wa.s  subse- 
quently sold  by  a  military  officer,  but 
there  is  nothing  to  show  that  ho  acted 
on  behalf  of  the  military  authorities.  In 
his  judgment,  Maasdorp,  J.,  remarked 
that  in  dealing  with  the  ac(iuisition  of 
property  the  intention  is  ^vervthing, 
and  he  held  that,  as  the  lawful  auth- 
ority had  not  appropriated  the  horse, 
the  ownership  remained  with  the  plain- 
tiff, as  original  owner,  notwithstanding 
his  rebellion.  This  view  is  entirely  con- 
sistent with  the  principle  that  in  order 
to  vest  the  ownership  of  a  thin^  in  the 
occupant,  it  is  necessary  that  hjs  taking 
possession  of  it  should  have  been  with 
the  view  of  acquiring  property  in  it 
for  Imnself.  In  the  present  case  there 
can  be  no  doubt  whatever  that  the  mili- 
tary authorities  took  the  harmonium 
with  the  object  of  aociuiring  the  owner- 
ship and  sold  it  with  the  object  of 
vesting^  the  ownership  in  the  purchaser. 
All  this  was  done  during  the  war  and 
in  the  coune  of  military  operations.  The 


plaintiff  at  the  time  was  fighting  in 
the  ranks  of  an  alien  enemy,  and,  how- 
ever desirable  it  might  be  thst  more 
enlightened  rules  of  warfare  should  be 
adopted,  it  is  impossible  to  avoid  the 
conclusion  that,  as  the  law  actually 
stands,  the  capture  and  retention  of  the 
harmonium  by  the  military  forces  di- 
vested the  plaintiff  of  his  ownership. 
If  the  rules  of  modern  warfare  have  not 
been  observed  by  the  British  authorities 
the  plainrtiff  would  have  a  fair  claim 
for  compensation  against  the  Imperial 
(lovemment.  but  the  defendant  has  ac- 
quired a  vaUd  title  to  the  harmonium. 
The  appeal  must  therefore  be  allowed 
with  costs  in  this  Court,  and  judgment 
entered  for  the  defendant  with  costs  in 
the  Court  below. 

[Appellaivts    Attorney:     G.     Trollip; 
Respondent's  Attorney :  Not  on  record.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 


REVIEW  CASE. 


RKX   V.  T.  AND  J.  LOUW. 


i   May  iHt. 
Indecent  assault — Children. 

Children  nitder  the  age  of  7 
yearn  cannot  be  convicted  of 
indecent  asuiulL 


Hopley,  J. :  A  case  has  come  be- 
fore mo  from  the  Afi^istant  Resi- 
dent Magistrat'e  of  Malmesbury,  sil- 
ting at  Ilopefield.  He  had  before  him 
two  children,  named  Toss  Louw  and  Jan 
Louw,  aged  six  years  and  five  years  re- 
spectively, charged  with  indecent  as- 
sault, lliese  children  were  found  guilty^ 
and  sentenced  to  be  apprenticed  for  long 
terms,  up  to  the  years  1915  and  1916  re- 
spectively. Of  course,  these  children 
are  not  guilty  of  the  crime,  being  under 
the  age  of  seven  years,  and  the  Magis- 
trate ou^ht  to  have  known  that,  and 
simply  discharged  them  with  a  caution. 
Probably  he  might  have  ordered  their 
mother  to  give  them  a  good  whippinp^. 
The  conviction  must  be  quashed  m 
both  cases. 


GENERAL  MOTIONS. 

00ATE8  V.  BEARLB. 

Pleading — Declaration  and  repli- 
catioti — Variation. 

Sir  H.  Juta,  K.C.,  was  for  the  appli- 
cant,   and    Dr.    Rainsford    was    for  the 


»'c?A:^E  ll3tB8*'  Law  fiBPofexfl. 


336 


respondent.  Sir  H.  Juta  moved,  upon 
notice  of  motion  to  the  pUintlff,  to  show 
cause  why  the  set  down  of  the  case  for 
the  5th  May  should  not  be  discharged, 
and  the  case  removed  from  the  list,  with 
costs.  The  affidavit  of  the  defendant  set 
out  thai  the  renlication  of  the  plaintiff 
was  served  on  his  attorneys  on  the  7th 
April.  It  was  necessary  tnat  the  defen- 
dant should  rejoin,  in  view  of  the  fact 
that  fresh  matter  was  introduced  into 
the  replication.  The  pleadings,  counsel 
contended,  were  prematurely  closed. 

Dr.  Rainsford  put  in  the  affidavit  of 
the  plaintiff's  attorneys,  whidi  set  forth 
that  no  lie w  matter  was  introduced  into 
the  replication.  An  offer  had  been  made 
to  remove  the  set  down  if  the  defendant 
was  willing  to  accept  short  notice. 

Counsel  having  been  heard  in  argu- 
ment, 

Hopley.  J.:  In  this  case  the  declara- 
tion sets  forth  that  on  the  20th  January 
the  defendant  agreed  to  pay  to  one  C  O. 
Coatea.  the  plaintiff,  the  sum  of  £500  aa 
commission  on  a  certain  sale,  and  they 
»j  on  that  date,  20th  January,  the 
said  C.  C  Coates  succeeded  in  selling 
the  prooerty  for  £4,500.  The  defendants 
plead  that  it  is  true  that  this  amount  of 
^00  is  due  to  C.  C.  Coates,  and 
they  say  there  was  a  certain 
agreement  as  to  what  amount  was 
paid.  £100  was  to  be  palid  on  the 
payment  of  one  instalment  of  £700.  and 
another  £100  on  the  payment  of  £800, 
and  the  balance  when  the  purchaser  pa«s- 
•d  thc^  mortgage  bond  for  £3,000.  The 
plaintiff  sets  forth  in  hu  replication  what 
wems  to  me  to  be  a  froeh  contract.  The 
nplication  says  that  £100  should  be  paid 
en  the  LOth  January,  and  that  thereupon 
if  that  were  paid  th*»  roat  would  become 
flue  in  February^  and  it  says  that  the 
£100  was  thereaitrr  paid  on  ♦hat  date. 
But  it  seems  to  me  if  that  were  the  con- 
tjact  it  ought  to  have  been  in  the  de- 
claration, and  been  embodied  in  the  re- 
plication. It  contains  fresh  matter; 
^nething  that  the  defendant,  on  seeing 
it  would  have  to  consider  and  look  back 
»t  his  evidence,  and  everything  that  had 
P««*d,  to  see  whether  or  no  he  could 
»*«et  that  replication  eucoessfully,  and 
whether  he  ought  to  reconsider  his  whole 
position,  and  perhaps  accede  to  the  plain- 
tuTs  claim.  It  appears  to  me  that  there 
»new  matter,  and  I  can  only  put  myself 
in  the  position  of  the  defendants  in  such 
a  caw.  and  say  I  think  to  this  now  mat- 
t*.*  they  should  have  claim  a  right  to 
**■«  a  rejoinder.  It  seems  to  me  that 
the  {daintiff  ha«  been  premature  in  set- 
ting down  this  matter  without  giving  the 
wfendants  a  chance,  especially  after  the 
wfendants  said  they  were  wanted  t^  re 
join.  That  being  the  state  of  affairs, 
•«  far  as  I  can  judge,  it  seems  to  me 
that  the  plaintiffs  are  in  the  wrong,  and 
that  they  set  the  matter  down  premature- 
ly* and  that  thia  application  should  be 
granted.      Aa  they   acted   precipitately, 


the   logical    consequence  is   that       they 
must  pay  the  costs  involved. 

[Applicant's    Attorneys:    J.    Buirski; 
Respondent's:  Moore    and  Son.] 


[Before  the  Hon.  Sir  John  Buchanan 
and  the  Hon.  Mr.  Justice  Maabdobp.] 


MURBAYSBUBO     MUNICIPA-  f        1905. 
LITY  V.  HOLLANDBB.         (    May  1st. 

Thid  was  an  appeal  from  a  decision  of 
the^  R.M.  of  Murraysburg  in  a  oaae  in 
which  the  applicant  sued  for  a  writ  of 
ejectment  agaanst  tho  respondent,  who 
was  the  occupier  of  a  hut  in  the  Municipal 
location.  In  tho  Court  below  the  plain- 
tiffs contended  that  the  conditions  of  the 
lease  had  not  been  complied  with,  the 
respondent  not  having  applied  for  a  re- 
newal at  the  termination  of  the  t)erif)d 
of  lease.  The  respondent  stated  that  hv. 
had  tried  ineffectually  to  ^et  another 
house,  and  had  tendered  six  months* 
rent.  The  Magistrate  ruloi  that  the  ap- 
plication f^hould  have  li<M-n  proc^dod  by 
a  summons  for  rent.  lie  further  stated 
that  tho  respondent  had  bfcii  a  tonaiit 
for  a  considerable  peri')d,  and  hid  con* 
formed  to  the  regulations. 

Dr.  Greer  appeared  for  the  appellant : 
respondent  wa.s  not  represented. 

Dr.  Greer  (for  the  applicant).  The 
respondent  has  not  even  attempted  to 
comply  with  the  regulations  by  applying 
for  a  new  lease  on  or  before  December 

3l8t. 

[Buchanan.  J. :  Ho  applied  on  De- 
cember 26th.] 

The  evidence  is  very  contradictory, 
but  the  respondent^e  own  statement 
shows  that  he  did  not  ask  to  see  the 
Town  Clerk. 

[Maasdorp,  J. :  Did  the  Magistrate 
find  that  no  application  was  made  for  a 
new  lease?] 

He  did  not  find  on  that  point.  Ho 
seems  to  have  held  that  the  respondent 
was  a  tenant.  The  whole  difficulty 
would  seem  to  have  arisen  from  certain 
new  regulations  as  to  water.  Those 
regulations,  however,  tho  respondent 
never  even  attempted  to  see.  I  submit 
that  the  respondent  was  no^  longer  a 
tenant  after  December  31st.  Even  had 
he  applied  for  a  renewal  of  lease,  the 
Municipality  could,  an  thoir  discretion, 
have  refused  to  grant  it. 

Buchanan,  J. :  There  may  be  some- 
thing behind  these  proceedings  that  tho 
Court  is  not  acquainted  with,  but  as  it 
stands  the  record  shows  that  the  de- 
fendant was  the  lessee  of  a  certain  hut 
in  the  Murrav^burg  Location,  which  ho 
had  leased  for  six  monthn.  The  six 
months  expired,  and  he  did  not  obtain 
a  renewal  of  his  lease.  Summons  wa.H 
thereupon  issued  for  an  order  of  eject- 
ment. ^  The  defendant  offered  to  re- 
new his  lease,  but  the  Council  refused  to 


336 


"CAPE  TIMES"  LAW  EEtORT^. 


reuow  except  on  certain  conditions,  to 
which  defendant  objected.  The  Magis- 
trate seemed  to  think  that  the  condi- 
tions upon  which  the  Municipality 
offered  to  renew  the  lease  were 
conditions  which  were  ultra  vires. 
That  question,  however,  is  not 
before  the  Court:  all  we  have  to 
decide  is  whether  the  defendant  was 
entitled  to  remain  in  ix>88eMion  of  the 
hut  after  his  lease  expired  on  the  Slst 
December.  It  is  not  pleaded  or  alleged 
that  there  is  anythdnff  in  the  Municipal 
Kgulations  to  compel  the  Municipahty 
to  renew  the  lease.  They  did  not  do  so, 
and  as  defendant  has  not  shown  any 
right  to  remain  the  Municipality  are 
entitled  to  judgment.  The  api)eal  must 
be  allowed  with  costs;  and  judgment 
entered  in  the  Court  below  for  the 
plaintiff  for  an  order  of  ejectment,  with 
costs. 

Maasdorp,  J.,  concurred. 
[Appellant's  Attorneys:    Dempers  and 
Van  Ryneveld;   Respondent  in  default.] 


ARMENIA.    V,   CLAREMONT    f        1905. 

MUNICIPALITY.  (  May  Ist. 

Public  washing — Nuisance. 

The  Municipal  regulations  of 
C.  prohibited  ''^  all  washing  of 
clothes  in  any  public  streams 
within  the  limits  of  the  Munici- 
pality^^'  and  further  ordained 
thai  **  all  public  umshing  of 
clothes  shall  be  done  in  p%d)lic 
tpash'houses."  A  had  xoashed 
certain  clothes^  the  property  of 
other  people^  on  prermses 
whereof  »he  was  a  tenant^  and 
had  thereupon  be  convicted  by 
the  R.M,  of  Wynberg  of 
having  contravened  the  afore- 
said regulation. 

Held  on  appeal,  thai  in  this 
case  there  had  been  no  ^^ public 
trashing  of  cloihes^^^  and  that 
the  appecd  must  be  allowed. 


Mr.  Burton  appeared  for  the  appel- 
lant ;  the  Claremont  Municipality  were 
n«>t  represented. 

This  was  an  appeal  against  a 
decision  of  the  Resident  Magis- 
trate at  Wynberg,  under  the  regulatioiie 
of  the  Claremont  Municipality.  The 
Municipality  summoned  the  defendant 
for  a  contravention  of  section  1,  chapter 
13,  of  the  Claremont  Municipal  Regula- 
tioiii)  in  that  she  did  public  washing  at 
a  place  other  than  the  public  wash- 
houses,  erected  for  that  purpose.  De- 
fendant was  convicted,  and  fined  lOs. 
Exception  was  taken  to  the  summons  on   ' 


thp)  grounds  that  the  summons  did  not 
correctly  set  forth  what  was  intended  to 
be  dealt  with  by  the  regulations,  that  it 
did  not  disclose  any  offence  known  to 
law,  that  there  was  no  allegation  that 
the  defendant  washed  clothes  in  a  pub- 
lic stream  or  water,  and  that  the  regula- 
tion, if  it  were  intended  to  interfere  with 
the  rights  of  citizens  as  to  the  washing 
of  oloSies  on  their  own  premises,  was 
ultra  vires.  The  Magistrate,  in  his  rea- 
sons, stated  that  the  defendant  was 
charged  with  public  washing  in  a  place 
other  than  at  a  public  wash-house  and 
this  charge,  he  held,  had  been  clearly 
proved. 

Mr.  Burton  (for  appellant).  The  ap- 
peal is  brought  on  tne  ground  (1)  that 
the  summons  does  not  set  forth  the 
plaintiff's  claim ;  (2)  that  the  defendant 
was  not  charged  with  any  offence  known 
to  our  law;  (3)  that  the  Council's  regu- 
lation under  which  she  was  charged  is 
ultra  vires.  The  appellaiyt  washed  the 
clothes  of  other  people  on  her  own 
property.  The  regulation  forbids  only 
public  washing.  The  appellant  (I  con- 
tend) did  not,  by  washinj^  the  clothes 
of  other  people  on  her  private  property 
contravene  the  regulations.  *'  Public 
Washing "  means  washing  in  public 
ertreams,  or  on  public  ground ;  but  here 
there  was  nothmg  of  the  kind.  There 
was  no  nuisance,  and  the  appellant  was 
sunmioned  for  committing  a  nui.sance, 
but  the  act  which  constituted  the  al- 
leged n-uisance  is  not  contrarv  to  any 
regulation.  In  the  event  of  -the  appeal 
being  upheld,  I  ask  for  coste  against 
the  Municipality. 

Buchanan,  J. :  The  appellant  was 
charged  before  the  Magistrate  with  hav- 
ing contravened  section  1,  chap.  13,  of 
the  Claremont  Municipal  Regumtions,  in 
that  she  wrongfully  and  unlawfully  did 
public  washing  at  a  place  other  than 
the  public  wash  houses  erected  for  the 
purpose  at  Claremont.  llfte  charge 
falls  under  the  Municipal  Regulations, 
which  lay.s  down  that  from  aixl  after 
the  promulgation  of  these  regulations, 
all  washing  of  clothes  in  any  public 
streams  wiUiin  the  limits  of  the  Muni- 
cipality is  strictly  prohibited,  and  that 
from  that  time  all  public  washing  o£ 
clothes  shall  be  done  in  public  wash- 
houses.  The  question  here  is:  Has 
there  been  any  public  washing  oi 
clothes?  The  bye-law  is  framed  to  pre- 
vent the  washing  of  clotbes  in  puolic 
streams,  and  it  is  very  difficult  to  say 
what  under  these  circumstances  .is  meant 
by  "  public  washing "  apaft  from 
washing  in  a  public  place  or  in  a  public 
river  but  there  is  no  regulation  pte- 
venting  washing  on  private  preniise«. 
It  may  be  competent  tor  the  Municipal- 
ity to  make  such  a  regulation — I  do  not 
9ay  that  they  cannot — but  there  is  at 
present  no  such  regulation.  All  the 
regulation  says  is  that  there  shall  be  no 
puolic  washing  of  clothes.  Now,  the 
defendant  in  this  case  washed     clothes 


« 


CAPE  TIMES"  LA^W  fiEPOBTS. 


S37 


on  her  own  premifles.  There  was  no 
public  washing  in  the  seDBe  that  there 
was  vaahing  in  a  public  river  or  in  a 
public  place,  and  I  certainly  think  the 
regulation  was  not  intended  to  apply  to 
the  act  committed  in  this  instance. 
The  appeal  must  be  allowed,  and  the 
conviction  quashed,  on  the  ground  that 
the  evidence  does  not  disolose  the  of- 
fence alleged  in  the  summons,  and  as  the 
fine  has  gone  into  the  Municipal  ex* 
chequer,  the  Municipality  will  be  or* 
dered  to  pay  the  costs  of  the  appeal. 
Maasdorp,  J.,   concurred. 

[Appellant's   Attorney:    J.    Buiriski.] 


DAVIE8  V.  BCHOLTZ. 

This  was  an  appeal  from  a  deciaion 
of  the  Assistant  Keaident  Magistrate  of 
Cape  Town. 

from  the  record  in  the  Court  below 
it  ai^ared  the  appellant  sued  the 
respondent  for  £150.  due  on  an  acknow- 
ledgment of  debt  The  defendant  ex- 
cepted to  the  Court's  jurisdiction,  on 
the  ground  that  the  document  sued 
upon  was  not  a  liquid  document,  and 
that  the  amount  exceeded  £20.  Sub- 
ject to  the  exception  being  dismissed, 
the  defendant  pleaded  that  there  had 
been  oo  presentation.  The  document 
stipulated  for  pavmeut  of  the  £150  on  a 
certain  date,  and  interest  payable  every 
three  months,  and  it  was  further  pro- 
vided therein  that  in  the  event  of  the 
non-payment  of  interest,  the  capital 
sum  should  become  due.  The  defendant 
counter-claimed  £7  for  goods  supplied 
io  plaintiff,  and  claimed  that  this  should 
be  set  off  against  the  interest.  ^  The 
Uagistrate,  after  hearing  evidence, 
found  for  the  defendant,  and  gave  judg- 
ment for  absolution  from  the  instance, 
with  costs.  In  his  retasons,  he  stated 
that  the  document  was  in  the  nature  of 
a  promissory  note,  which  should  have 
been  presented,  and  that  ibe  counter- 
claim operated  as  a  set-off.  The  defen- 
dant had  tendered  the  interest,  and  he 
(the  Magistrate)  held  that  the  action 
wss  premature. 

Dr.  Greer  was  for  the  appellant ;  Mr. 
Gardiner  was  for  the  respondent. 

Dr.  Greer:  This  was  not  an  ordinary 
promissory  note,  but  a  mere  acknow- 
ledgement of  debt,  and  provision  was 
made  for  the  payment  of  the  debt  by 
instalments.  No  presentation  could  be 
pwde  before  June  1,  1906,  unless  the 
lostalmonts  were  ncji  duly  pafid.  Wo  ad- 
mit that  they  were  not  so  paid. 

Buchanan,  J. :  The  only  uuestion  is 
whether  we  have  hero  a  penal  clause  or 
Dot.  T^  whole  question  as  to  penal 
nausea  was  fully  discussed  in  Rymer  v. 
WkUe. 

As  to  the  sctroff.  there  is  nothing  to 
wow  that  the  plaintiff  was  aware  that 
there  was  any  set-off  claimed.  The  con- 
ditions  prescribed  in   the  acknowledge- 


ment of  debt  were  not  compUed  with. 

Mr.  Gardiner  (for  the  respondent)  was 
not  called  upon. 

Buchanan.  J. :  An  action  is  brought 
upon  a  writ^n  document,  which  ac* 
knowledfires  a  debt  for  £150  to  be 
due,  which  amount  is  parable  on 
the  1st  January,  1905.  That  date 
has  not  yet  arrived.  This  debt 
bears  interest  to  be  paid  every 
three  months,  and  there  is  a  condition 
in  the  agreement  that  if  the  interest  is 
not  regularly  paid  every  three  months, 
then  the  whole  debt  may  become  due 
and  pavable.  Three  months'  interest 
accrued,  but  at  that  time  the  defeindant 
had  sold  certain  goods  to  the^  plaintiff, 
and  be  counier-cuimed  against  the 
plaintiff  for  more  than  the  amount  of 
the  interest  due  to  him;  and  before  the 
summons  was  issued,  he  wrote  to  the 
plaintiff's  attorneys,  saying:  "I  have 
this  claim  against  you;  I  give  you  the 
details  thereof,  and  I  shall  bo  plosjiod 
to  hear  from  you  whether  you  accept 
this  as  against  the  interest  due.  If  y5>u 
think  this  will  prejudice  my  claim 
against  you,  I  will  send  you  a  cheque 
for  the  interest,  and  sue  you  for  the 
amount  due  to  me.''  No  rcplv  was 
sent,  and  summons  was  issued.  As  far 
as  the  evidence  shows,  there  is  a  good 
set-off,  and  not  only  is  this  the  case, 
but  there  is  also  a  tender  to  (>ay  the 
amount  of  the  interest.  I  think,  in 
theee^  circumstances,  the  Magistrate's 
decision  that  the  action  is  premature 
is  a  sound  one;  that  the  amount  is  not 
yet  due.  The  question  of  non -presenta- 
tion I  do  not  think  iio(vs.sa.ry  to 
discuss  in  this  case;  the  question  will 
go  rather  on  the  point  that  the  interest 
was  tendered  when  demanded.  The 
appeal  will  therefore  be  dismissed,  with 
costs. 

Maasdorp  J.,  concurred. 

[Appellant's  Attorneys:  Dempers  and 
Van  Ry nevoid  ;  Respondent's  Attor- 
neys :   Friedlander  and  Du  Toit.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maasdorp.] 


KSLLT  AND  CO.  V.  HERMA 


..{ 


1905. 
May  2nd. 

Partnership^Dissolution —  Liabi- 
lity of  retiring  partner. 

This  was  an  action  to  irecover  the  bal- 
ance of  the  purchase  price  of  goods  sold 
and  delivered. 


^ 


(I 


CAP£  hmeb"  law  repobts. 


The  deoluration  oet  out  that  between 
18th  March,  1898,  and  January,  1900,  the 
firm  of  B.  Schocher  and  Co.,  in  which 
the  defendant  wai  a  partner,  bought 
goods  from  the  piaintitt'  to  the  value  of 
±;i,575  10s.  id  £1,296  18i^.  6d.  had  been 
paid  on  account,  and  there  waa  still  a 
balance  of  £305  lis.  9d.,  ,  which  the 
plaintiff  was  entitled  to  claim  from  the 
defendant.  The  plea  set  out  that  the 
partnership  between  defendant  and 
8ch<Jchor  was  dissolved  on  the  12th 
August,  1899,  the  deed  providing  that 
tichocher  should  be  responsible  for  all 
debts  and  liabilities  of  the  said  businen. 
and  that  he  was  to  indemnify  the  said 
defendant.  The  plaintiff  was  informed 
of  the  deed  of  dlwriution. 

Mr.  Percy  Jones  was  for  the  plain- 
tiffs ;  Mr.  Close  for  the  defendant. 

Mr.  Jones  said  that  last  September  a 
comnvission  wa«  appointed  to  take  evi- 
dence in  the  Transvaal  (14,  C.T.R., 
638).  Evidence  was  then  given  by  tlie 
defendant  to  show  that  the  plaintiff 
had  released  him  from  the  liability, 
on  the  partnerehir)  account.  Certain 
checiues  were  produced  to  support 
this,  and  application  was  made  for 
an  adjounnnent  in  order  that  plain- 
tiff who  had  given  his  evidence 
on  commission,  should  be  examin- 
ed in  regard  to  these  cheques.  The 
cc.mmission  was  made  a  general  one, 
and  the  evidence  had  been  duly  taken. 

Counsel  read  the  evidence  taken  on 
commission.  The  plaintiff  denied  the 
statement  of  the  defendant  relative  to 
the  passing  of  the  cheques;  the  cheques 
were,  he  said,  g^ven  in  respect  of  money 
Herman  advanced  him  on  behalf  of  his 
brother,  B.  Herman,  pending  the  arrival 
of  money  which  plaintiff  had  wired  for 
to  Pietersburg,  wnero  he  resided.  This 
was  upon  his  (plaintiff't^)  arrival  in  Cape 
Town  from  Europe.  Further  evidence 
taken  on  behalf  of  both  parties  was  also 
read. 

The  defendant  was  called  and  supple- 
mented  his  previous  evidence. 

Maasdorp,  J. :  In  this  case  the  plain- 
tiff sues  the  defendant  for  the  sum 
of  £305  lis.  9d.,  which  it  is  alleg- 
ed was  duo  from  the  firm  of  Schocher 
and  Co.,  in  which  defendant  was  a 
partner  in  the  year  1899.  The  in- 
debtedness of  the  defendant  is  based 
upon  the  fact  that  Schohor  has  now 
left  the  country  and  cannot  be 
sued  jointly  with  him.  The  defen- 
dant admits  that  the  firm  of  Schocher 
and  Co.  was  indebted  to  the  plaintiffs 
in  1899,  but  he  alleges  that  in  August  of 
that  year  he  dissolved  partnership  with 
Schocher,  and  acquainted  the  plaintiffs 
with  the  dissolution  of  the  partnership, 
and  they  consented  to  the  dissolution  of 
the  partnership,  and  thereupon  the  de- 
fendant was  released  from  liability.  I 
shall  not  now  remark  upon  the  legal  as- 
pect of  that  plea.  I  take  it  for  the  pur- 
pose of  the  defence  to  mean   that   the 


plaintiffs  thereupon  discharged  the  de- 
fendant from  liability.  The  defendant 
having  admitted  that  the  debt  was  at 
one  time  in  existence,  the  burden  of 
proving  he  was  released  falls  upon  hini, 
and  it  is  necessary  to  inquire  what  is 
the  evidence  setting  forth  the  circum- 
stances of  this  release.  The  plaintiffs 
admit  that  they  knew  this  dissolution 
took  place  in  1899,  and  they  were  also 
aware  that  the  defendant  was  about  to 
leave  the  country,  but  they  say  they 
never  consented  to  his  being  released 
from  his  share  of  the  debt  of  the  part- 
nership, but  they  did  not  press  him  at 
the  time  because  they  expected  to  be 
satisfied  by  the  firm  of  Schocher  and  Co. 
after  the  defendant  had  left  the  country. 
Now  I  must  say  that  the  defendant's 
evidence  upon  this  point  is  undoubtedly 
of  a  very  vague  and  unsatisfactory  de- 
scription. The  firm  was  indebted  to  the 
plaintiffs  in  the  sum  of  upwards  of  £300, 
and  his  object,  as  he  alleged,  was  to  ob- 
tain a  release  from  his  credit.  One 
would  have  ex{)ected,  under  the  circum- 
stances, that  ho  would  acquaint  the 
creditors  with  all  the  circumstances  un- 
der which  the  dissolution  took  pdace, 
and  give  them  a  full  statement  of  the 
affairs  of  the  partnership,  and  then  enter 
into  a  clear  arrangement  on  the  basis 
oi  the  position  in  which  affairs  then 
were.  Defendant,  however,  says  that 
ho  came  down  to  Pietersburg  and  there 
saw  the  plaintiffs,  and  asked  them 
"  would  they  release  him,  as  he  wanted 
to  go  to  America,  and  his  partner  was 
going  to  take  over  everything,"  and  that 
plaintiffs  said  "  All  right ;  no  differ- 
ence." That  was  supposed  to  embrace 
all  the  negotiations  that  took  place  to 
lead  up  to  such  an  important  contract  as 
to  release  the  defendant  from  a  debt  of 
£300.  He  says  he  informed  the  plain- 
tiffs that  his  partner  was  going  to  take 
over  all  the  liabilities  and  assetr*.  This 
statement  is  unsatisfactory,  becauso 
Schocher  did  not  take  all  of  the  assets, 
for  the  reason  that  jmrt  of  the  assets  in 
cash— £200-  -was  taken  away  by  the  de- 
fendant, but  not  taken  dishonestly.  The 
plaintiff's  themeselves  were  not  fully  in- 
lormed  of  the  position  of  the  partners  as 
to  what  took  place,  and  everything  was 
left  in  the  most  vague  condition.  The 
defendant  necessarily  should  have  told 
the  plaintiffs  under  what  circum- 
stances he  was  leaving,  and  he  says 
that  he  told  the  plaintiffs  that 
Schocher  had  taken  over  all  the  assets. 
Then  if  he  did,  it  was  a  misapprehen- 
sion, but  I  don't  say  he  did  so.  The 
result  of  the  evidence  is  that  tlie  whole 
matter  was  not  discussed  in  such  a  man- 
ner as  we  would  expect  it  to  be  if  a 
release  were  intended  to  be  obtained 
and  granted.  The  defendant  then  left 
Cape  Town  and  nothing  more  wa.* 
hoard  until  1903.  when  application  waa 
mode  to  the  defendant  for  payment,  af- 
ter Schocher  had  left.  In  one  part  of 
defendant's  letter  in  reply  he  says:  "I 


"CAPE  TIM£8"  LAW  REPOBTS. 


St9 


diHolved  partnerahip  with  Schocher  in 
December,  1889,  he  taking  over  all  assets 
•od  liabilities  and  notice  was  sent  to  the 
creditore.  If  this  is  the  only  evidence 
to  be  put  before  the  Court  by  the  de- 
fendant then  there  was  no  release.  He 
seemed  to  think  that  upon  notice  be- 
ing eent  to  the  creditors  of  the  dissolu- 
tion of  partnership  and  of  the  fact  that 
his  partner  had  taken  over  the  liability, 
be  was  necessarily  released  from  further 
liibrlity,  but  in  this  he  is  mistaken.  I 
tske  the  plea  to  mean,  as  it  was  alleged 
to  mean,  that  the  discharge  was  actually 
granted  but  the  proof  is  wanting.  We 
have  therefore  now  such  vague  and  un- 
satisfactory statements  of  what  took 
place  at  the  time  this  release  was  said 
to  be  granted  that  I  must  oome  to  the 
octidusion  that  the  defendant  has  failed 
to  discharge  the  burden  laid  upon  him 
of  proving  this  discharge.  It  was  con- 
tended that  the  long  delay  throw  doubt 
on  the  plaintiff^s  case,  but  it  was  quite 
dear  that  from  two  to  two  and  a  half 
\^m  after  defendant  left,  the  coun- 
try was  in  such  a  state  that  that  would 
Ho  an  excuse  for  not  taking  proceed- 
in.i|;5,  and  afterwards,  it  appeared,  the 
plaintiff  himself  was  not  in  the  country ; 
but  almost  immediately  on  his  return 
he  took  p«)ceeding8  against  the  defend- 
ant. It  has  not  been  proved  that  the 
d'siharge  was  granted  and  the  liability 
continues,  but  it  appears  a  portion  of 
the  indebtedness  arose  after  the  plain- 
tiff became  aware  of  the  dissolution  of 
partnership  and  to  that  extent  the  in- 
debtedness must  be  reduced  by  the 
amount  of  £26  7s.  9d.  There  will  be 
judgment  for  £299  3s.  lid.  with  costs. 

(Plaintiff's  Attorneys:  Tredgold,  Mc- 
Intyrc  and  Bisset;  Defendant's  Attor- 
ney: D.  Tennant,  Jun.] 


TRIAL  CAUSES. 

HBIDOCK  V.  HEIDOCK. 

This  was  an  action  for  a  decree  of 
divorce,  brought  by  Elizabeth  Heidock 
a^nst  her  husband,  on  the  ground  of 
hu  adultery.  Mr.  Roux  waa  for  the 
pUintiff,  and  the  defendant  was  in  de- 
fault. 

The  plaintiff,  Elizabeth  Heidock, 
stated  that  she  was  married  in  com- 
munity of  property  to  the  defendant  at 
CaJTinia  in  February,  1898.  She  lived 
with  her  husband  at  Oalvinia,  and  was 
fairly  happy  until  December,  1903.  when 
the  defendant  lost  his  temper  and  threw 
the  things  out  of  the  house,  and  subse- 
quently threw  the  plaintiff  out  after  the 
furniture.  Witness  then  went  to  live 
with  her  mother,  and  the  defendant 
continued  to  live  in  witness's  house,  and 
in  November,  1904,  he  took  another 
woman  into  the  house.  The  wonian, 
with  whom  be  waa  at  present  living, 
had  been  deHveied  of  a  child.      Plaintiff 


claimed  a  decree  of  divorce  and  a  divi- 
sion of  the  joint  estate  and  costs.  The 
defendant  was  possessed  of  two  carts 
and  two  horses. 

Further  evidence  having  been  given 
of  the  adultery, 

Maasdorp,  J.,  granted  a  decree  of 
divorce,  with  costs,  the  plaintiff  allowed 
her  costs  as  a  witness.  His  Lordship 
added,  if  at  any  time  it  was  found  there 
was  any  substantial  property  in  the 
estate,  the  plaintiff  would  have  leave 
to  move  the  Court 


rOUBIE  V.  FOUBIB  AMD  AHOTH£B. 

This  was  an  action  for  decree  of  divorce 
brought  by  Ignatius  Fourie,  of  Union- 
dale,  against  his  wife,  on  the  ground 
of  her  adultery.  The  parties  were 
married  in  community  of  prroerty  in 
October,  1892.  at  Knvsna.  They  lived 
happily  togetner  until  his  wife  met  the 
co-defendant  Jordaan,  in  July  last. 
Jordaau  came  as  a  traveller  from  the 
Orange  River  Colony,  and  stayed  at 
witness's  house  for  some  time.  In  the 
middle  of  August  witness,  his  wife,  and 
Jordaan  went  down  to  ^nysna  to  visit 
his  wife's  parents.  Witness  stayed 
about  eight  days,  and  his  wife  remained 
longer  with  her  people,  and  Jordaan 
stayed  over  also.  Three  weeks  later 
witness  went  to  bring  his  wife  home, 
and  he  noticed  that  she  was  very  in- 
different towards  him,  and  said  that 
she  would  not  live  with  hini  any  longer. 
On  a  second  occasion  his  wife  refusea  to 
return  home.  All  the  time  Jordaan 
was  living  in  the  district.  Subsequently 
his  wife  disappeared,  and  he  was  un- 
able to  find  her.  A  number  of  letters 
in  Jordaau's  handwriting  came  into  his 
possession.  The  letters  were  couohed 
m  most  loving  terms,  and  addressed  to 
witness's  wife,  and  referred  to  the  time 
when  the  co-respondent  and  the  defen- 
dant would  Hve  happily  as  man  and 
wife 

Mr.  Burton  waa  for  the  nlaintiff,  and 
the  defendant  was  in  default. 

Evidence  was  led  to  show  that  the 
defendants'  lived   as  man  and  wife. 

Decree  of  divorce  granted,  and  the 
defendant  declared  to  have  forfeited 
tha  benefits  of  marriage.  No  order  as 
4o  ooati. 


CILLIBKB  V.  UEINTJE8. 

This  was  an  action  to  recover  £139 
8s.  for  rent  for  a  certain  furnished  house 
At  Gordon's  Bay,  which  had  been  let 
by  the  planitiff  to  the  defendant.  The 
defendant  took  the  house  on  a  lease  for 
one  year  from  May,  1904,  at  a  rental  of 
£16  per  month,  payable  quarterly.  In 
June,  1904,  the  defendant  represented 
that  he  was  unable  to  pav  the  £48  due 
for  rent.  Thereupon  plaintiff  waived 
£9  for  the  first  three  months.     On  the 


340 


"CAPE  TniEB**  LAW  Bfi^ATd. 


13th  of  FebriMiry,  1906,  the  plaintiff,  be- 
lieving that  the  defendant  waa  about  to 
remove  certain  Sirticles  without  paying 
his  rent,  obtained  an  interdict  restrict- 
ing him  from  doing  so  (15  C.T.R.,  150), 
but  before  the  oraer  was  issued  the 
furniluie  was  removed.  The  defendant, 
in  his  plea,  set  up  counter  claims  for 
£31  16b.  for  meak,  £27  being  the  pur- 
chase price  of  certain  furniture  bought 
by  the  defendant  and  £11  12s.  paid  on 
account,  and  claimed  £71  in  reconven- 
tion for  damage  by  reason  of  the  plain- 
tiff's failure  to  make  certain  alterations. 

Mr.  J.  E.  R.  de  VUlien  wa«  for  the 
pluiniiff  and  the  defeodant  waa  is  de- 
fault. 

The  plaintiff,  Johannes  Cilliers,  said 
ho  let  the  hou^  at  £16  per  month  to 
the  defendant  on  a  year's  lease,  which, 
however,  was  not  reduced  to  writing. 
At  the  end  of  the  firet  quarter  witness 
agreed,  on  a  requeat  from  the  defendant, 
to  reduce  the  rent  for  that  (quarter  by 
£9,  but  he  did  not  reduce  it  for  the 
whole  of  the  year.  The  defendant  had 
paid  £11  12s.  on  acoount,  and  witness 
was  willing  to  take  off  the  £31  16e. 
claimed  by  tlie  defendant  for  meals  sup- 
plied to  the  plaintiff.  On  February  13 
witness  obtained  an  interdict  in  the 
Supreme  Court  in  respect  of  goods  in 
the  house.  Witness  made  no  agreement 
as  to  taking  over  anv  of  the  goods.  He 
believed  defendant  nad  gone  to  Bula- 
wayo. 

tfudgment  wa*  given  for  plaintiff  for 
£107  12s.,  being  £130  Ss.,  less  £31  168. 
for  board,  with  costs,  including  costs  of 
motion.  The  claim  in  Teconvention  was 
dii^miased,  and  plaintiff's  expenses  as  a 
witness  were  allowed. 


BURROUGHS  AND  WATTS  V    CAMPBELL. 

Sale  and  purchase — (luarantor — 
Suspensory  condition — "  In- 
stalment system." 

This  was  an  action  brouglit  by  Messrs. 
J  urroughes  and  Watts,  who  are  billiard- 
table  manufacturers  and  general  mer- 
chants, against  the  defendant,  who  re- 
sides at  Middelburg,  to  recover  from 
hini  £196  lis.,  bcmg  the  price  of  a 
billiard  table  and  accessories  supplied 
to  one  Adam,  for  the  payment  of 
which  it  wa«  alleged  the  defendant  was 
guarantor.  The  declaration  set  forth 
that  in  October,  1903.  the  plaintiff  firm 
wcro  in  treaty  with  one  Adam,  of 
Middolburg.  to  supply  him  with  a 
billiard  tabic  and  accessories,  and  to  fix 
the  samo  at  Middolburg.  A  letter 
was  written  by  the  defendant  to  the 
firm  stating  that  as  Mr.  Adam  had  in- 
formed him  he  wished  to  purchase  a 
billiard  table  on  the  instalment  system, 
he  (defendant)  would  te^ifj  that  Adam 
was  an  hone:$til'  solvent,  and  desirable 
purchaser,  and  Jie  (defendant^  was  will- 
ing to  accex>t  responsibility,  m  conjunc- 


tion with  Mr.  Adam.  The  table,  etc., 
?rere  supplied,  and  some  time  afterwards 
the  estate  of  Adam  was  sequestrated,  and 
no  part  of  the  purchase  money  was  re- 
covered therefrom.  The  plaintiffs  now 
claimed  payment  from  the  defendant. 
In  his  plea  the  defendant  denied  that 
the  letter  amounted  to  an  undertaking 
or  guarantee,  and  said  that  at  the  time 
be  wrote  it  he  did  not  intend,  and  plain- 
tiffs knew  he  did  not  intend,  to  give  any 
such  undertaking  or  guarantee  as  alleged 
in  the  declaration.  He  merely  intended 
to  say  that  Adam  was  an  honest,  solvent, 
knd  desirable  purchaser.  Even  if  the 
letter  was  a  guarantee,  he  pleaded  that 
it  was  given  subject  to  a  condition  pre- 
cedent that  the  table  should  be  supplied 
on  the  instalment  system,  by  which  temt 
it  was  meant  that  the  property  remained 
in  the  lessor,  and  that  in  default  of  pay- 
ment of  ail  ins^talment  the  lessor  sliould 
resume  Dtrssession,  the  leetsee  forfeiting 
all  instalments  paid.  Instead  of  that, 
the  plaintiffs  had  sold  the  table  out- 
right, by  reason  of  which  the  defendant 
was  unable  to  get  the  table  from  the 
insolvent  estate.  Exception  was  taken 
to  the  paragraph  of  the  plea  which  set 
forth  that  when  he  wrote  the  letter  de- 
fendant did  not  intend  to  give  any 
undertaking  or  guarantee. 

Mr.  Burton  was  for  the  plaintiffs ;  Mr. 
J.  "K.  R.  de  Villiers  for  the  defendairt. 

Mr.  De  Villiers  said  he  did  not  in- 
tend to  rely  on  the  defence  raised  in 
that  paragraph,  and  would  agree  to  its 
being  struck  out. 

Aubrey  Joseph  0*Mant,  manasrer  of 
the  plaintiff  company  in  Cape  Town, 
produced  correspondence  between  Adam 
and  the  company  in  relation  to  the  pur- 
chasing of  the  billiard  table.  There 
were  no  verbal  oommunioaitions  between 
them ;  eversrthing  was  done  by  letter. 
The  first  letter  was  written  b^  Adam,  in 
which  he  expressed  his  desire  to  pur- 
chase a  table,  for  which  he  offerea  to 
pay  on  ninety  days*  terms.  The  com- 
pany replied  offering  to  supply  a  table 
on  these  terms,  providing  Adam  fur- 
nislied  them  with  a  reference.  Subse- 
quently Adam  wrote  enclosing  a  letter 
froni  uampbell,  and  asking  for  an  ex- 
tension of  a  month.  Enclosed  in  that 
letter  was  the  defendant's  guarantee 
upon  whioh  the  oa^e  was  baaed.  The 
company  thereupon  agreed  to  extend  the 
period.  A  promissory  note  was  sent  to 
Adam,  with  a  request  to  get  defendant's 
signature.  Adam  had  gone  insolvent, 
and  there  was  no  dividend  from  his 
estate  to  concurrent  creditors.  If  an 
article  were  sold  on  the  instalment  sys- 
tem, it  passed  cut  of  the  hands  of  the 
vendor,  and  rt  was  paid  for  by  two  or 
more  instalments.  In  witness's  business 
the  instalment  system  and  the  hire  pur- 
chase s3rstem  were  quite  distinct.  If  an 
article  were  sold  on  the  hire  purchase 
system,  the  goods  remained  tne  pro- 
perty of  the  seller  until  payment  was 
made.    Witness  put  in  one  of  the  forma 


•'GAPS  TIMBS"  hkW  RBPOBT6. 


3ii 


tMed  in  the  case  of  a  hire  purchase  ar- 
nugement,  which  was  called  an  agree- 
ment of  lease,  and  which  stipulated  for 
the  payment  of  rent.  In  the  case  of  a 
hire  purchase  contract,  the  firm  did  not 
require  security,  as  the  property  re- 
mained Tested  in  them. 

Cnns-ezamincd  by  Mr.  De  Villiers  : 
In  hia  letter  of  guarantee,  the  defendant 
said:  *' I  understand  Adam  wishes  to 
be  supplied  with  a  billiard  table  on  the 
instalment  system."  The  firm  did  not 
claun  the  buliard  table  from  the  insol- 
reni  estate,  inasmuch  as  they  had  sold 
it  outright. 

George  Forrest,  manager  for  R.  Mul- 
ler.  music  dealer.  Cape  Town,  gave  evi- 
dence as  to  the  nature  of  hire  purchase 
contracts.  The  hire  purchase  contract 
wai  in  the  four  '  £  a  lease,  which  ter- 
minated on  payment  of  the  full  value. 
L'r.til  full  payment  was  made,  the  article 
rc-mained  the  property  of  the  seller.  Se- 
curity was  not  demanded.  It  was  a  prac- 
tice of  witnesses  firm  to  give  credit  when 
it  w;.5  iiicotivenient  for  the  pur'l»aMr  to 
pay  at  once,  and  in  such  casoe,  security 
»ai  required  with  few  exceptions.  ^  Wit- 
HfSjf  had  no  knowledge  of  an  "  instal- 
BK-nt  system." 

Mr.  Burton  closed  his  case. 

John  Campbell,  the  defendant,  gave 
evidence.  He  said  he  gave  Adam  the 
letter  referred  to  in  consequence  of 
Adam  saying  Burroughes  and  Watt-s 
wanted  a  letter  of  reference.  Adam  did 
not  show  him  any  of  the  correspondence 
with  the  plaintim».  Witness  wrote  the 
letter  intending  to  be  security  if  the 
gcc-ds  were  supplied  on  the  instalment 
S}stem.  He  regarded  the  instalment 
system  as  measing  that  until  all  instal- 
ments were  paid  the  articles  did  not  be- 
come the  property  of  the  purchaser. 

Morris  Rosen,  proprietor  of  Rosen's 
warehouse,  said  instead  of  advertising 
"hire  system,"  the  words  **  instalment  " 
•nd  **  deferred  "  were  used,  but  they  all 
oaeant  the  same  thing.  In  respect  of 
U)>thing  9cAd  out-and-out,  witness  did 
not  ooosider  that  it  had  anything  to  do 
witli  the  *•  instalment  system." 

Mr.  De  Villiers  closed  his  case,  and 
counsel  were  then  heard  in  argiunent  on 
the  facta. 

Maasdorp,  J. :  The  plaintiffs  in  this  cass 
sue  for  the  recovery  of  £196  upon  what 
is  said  to  be  a  written  guarantee  for  the 

Eurchase  price  of  a  billiard  table  supplied 
y  the  plaintiffs  to  one  Adam.  it  ap- 
pears that  the  billiard  table  was  sold  by 
the  plaintiffs,  who  carried  on  business  at 
Port  Elizabeth,  to  Adam,  who  resided 
at  Middelburg,  on  condition  that  the 
gaintiffs  erected  this  billiard  table  at 
Middclburg,  and  included  all  these  inci- 
dental expenses  in  the  purchase  price. 
The  plaintiffs  earned  out  their  agree- 
ment, and  supplied  the  table,  and  there- 
upon Adam  became  indebted  in  the  sum 
of  £196.  But  it  appears  now  that  the 
^*ie  of  Adam  has  been  sequestrated  as 
insolvent,  and  the  plaintiffs  consequently 


say  that  they  are  entitled  to  sue  the  de- 
fendant as  surety  for  the  amount  upon 
the  guarantee.  In  order  to  ascertain  the 
rights  of  the  parties  in  this  case,  it  will 
btj  necessary  very  narrowly  to  construe 
the  terms  of  this  written  guarantee.  It 
li  as  follows:  "I  have  known  Mr.  H. 
Adam  for  some  time,  and  I  understand 
hj  wishes  to  be  supplied  with  a  billiard 
table  on  the  instalment  system.  I  con- 
sider you  are  quite  safe  in  doing  this,  if 
^ou  can  agree  as  to  price,  and  I  am  will* 
mg  to  accept  responsibility  for  thw  in 
conjunction  with  the  said  Mr.  Adam." 
Now,  I  think  it  must  be  taken  to  be 
c^uite  clear  that  this  is  not  an  uncondi- 
tional guarantee  by  Camj>bell  for  the 
f>ayment  of  the  purchase  price  of  the  bil- 
iard  table.  There  are  certain  conditions 
attached  to  this  document,  and  they 
seem  to  be  to  the  following  effect : 
Campbell  undertakes  to  accept  a  joint 
responsibility  with  Adam  for  the  price 
of  this  table  in  case  it  i£  supplied  to 
Adam  by  the  plaintiffs  on  the  instalment 
sj^steni.  I  consider  that  a  material  con- 
dition of  the  contract  entered  into  by 
Campbell.  Ho  was  aware  that  Adam 
contemplated  buying  a  billiard  table, 
and  if  his  allegation  contained  in  this 
letter  is  taken  to  be  true,  then  ho  was 
aware  that  Adam  contemplated  purchas- 
ing the  billiard  table  on  the  instalment 
system.  He  coiutequcutly  telk  the  plain- 
tiffs that  they  would  be  perfectly  safe  in 
supplying  a  billiard  table  to  Adam  on 
the  instalment  system,  and  that  if  they 
did  so  he  was  prepared  to  become  respon- 
sible jointly  with  Adam  for  the  payment 
of  the  price.  It  is  necessary  consequent, 
ly  for  the  Court  to  construe  what  was 
meant  bjr  the  words  "  instalment  sys- 
tem." The  question  arises  whetlier 
these  words  have  acquired  such  a  tech- 
nical meaning  in  the  trade,  and  with 
persons  carrying  on  bi^iness,  as  it  was 
here  carried  on  between  the  plaintiffs 
and  Adam  that  they  must  be  taken  to 
bear  that  meaning  in  a  contract  of  this 
kind  between  the  parties  to  such  an 
agreement.  Oral  evidence  was  called 
with  the  object,  on  the  one  side,  of  prov- 
itig  that  the  words  have  acquired  a  tech- 
nical meaninff  which  they  must  necessar- 
ily bear  in  a  contract  of  this 
kind,  and  be  binding  upon  the  con- 
tracting parties,  and,  on  the  other  side, 
to  disprove  the  fact  that  this  technical 
meaning  has  been  established.  Now,  I 
think  it  has  not  been  clearly  established 
by  the  evidence  adduced  in  this  case-- 
however  it  might  be  if  further  evi- 
dence could  have  been  adduced — that  the 
words  have  such  a  general  acceptance 
that  they  must  be  taken  now  to  have  a 
technical  meaning,  known  to  all  parties 
who  carried  on  this  class  of  business. 
It  is  alleged  on  the  part  of  the  defendant 
that  the  words  **  instalment  system  " 
necessarily  meant  **  hire  purchase 
system,"  and  he  has  called  a  witness — 
Mr.  Rosen — who  says  that  in  his  busi- 
nesSi  when  be  speaks  of  the  *'  instalment 


3i2 


"CAPS  TIMES"  LAW  REPOBTS. 


system,"  be  intended  to  oonTey  the 
nieaning  '*hire  purchase  syst^n."  On 
the  other  hand,  we  have  Mr.  Forrest, 
who  is  also  conversaiit  with  this  class 
of  business,  and  carries  on  a  large  busi- 
ness in  the  sale  of  pianos,  and  who  says 
he  himself  has  never  regarded  the 
term  "  instalment  system "  as  neces- 
sarily identical  with  **  hire  purchase 
system."  In  fact,  he  himself  never 
applies  the  words  '*  instalment  system,'* 
but  *'  hire  purchase  system."  If  you 
take  these  two  witnesses,  the  result  of 
their  evidence  is  that  the  words  *]  in- 
stalment s'-stem "  have  not  acquired 
in  the  trade  generally  the  meaning  of 
the  words  **  hire  purchase  system." 
Tlwrefore  the  Court  has  to  construe  the 
words  as  they  appear  in  the  contract, 
and  if  we  take  the  ordinary  and  natural 
moaning  of  the  words,  they  would 
simph  seem  to  signify  that  the  con 
tract  should  be  made  upon  a  system 
by  which  payments  are  necessarily 
m-Tide  by  instalments.  And  the  ques- 
tion arises  whether  '*  instalment  syatem  " 
must  be  taken  to  refer  to  a  form  of 
co.itract  in  systematic  use  for  pay- 
ments by  instalments.  Now,  there  is 
no  evidence  before  the  Court  as  to  the 
existence  of  any  special  system  called 
the  "  instalment  system,"  which  is  ap- 
plied to  contracts  of  this  kind,  and,  in 
my  mind,  it  was  not  merely  intended  by 
the  use  of  these  words  that  the  contract 
should  be  simply  by  pa^rment  of  instal- 
ments. Under  the  circumstanoes,  if 
the  Court  cannot  construe  the  ordinary 
words  of  this  contract  as  establishing  a 
clear  condition  under  this  oontract,  the 
Court^  would  have  to  hold  that  the  con- 
tract is,  in  its  terms,  void,  but  I  do  not 
think  we  are  quite  ariven  to  that  posi- 
tion, because  the  question  further 
arises  whether  these  terms  were  not 
understood  between  the  parties  them- 
selves, when  they  entered  into  the  con- 
tract, to  bear  a  special  meaning,  and  if, 
as  between  the  parties  themselves,  it 
could,  be  proved  that  it  bore  a  speoial 
meaning,  then  the  oontraot  would  be 
upheld.  When  we  look  at  the  evidence 
for  the  purpose  of  ascertaining  whether 
the  parties  aie  agreed  as  to  the  mean- 
ing of  these  words,  we  find,  on  the  part 
of  the  defendant,  a  statement  that  he 
intended  the  words  to  mean,  the  hire 
purchase  system.  The  plaintiffs,  on  the 
other  hand,  state  that  they  never  con- 
templated that  the  words  should  bear 
that  meaning.  Well,  if  words  were 
used  upon  which  the  Court  cannot  fix 
any  technical  meaning  or  ordinary  mean- 
ing binding  on  the  parties,  and  it  is  im- 
possible to  ascertain  that  the  i>arties 
themselves  agreed  upon  the  meaning  of 
the  words,  then  the  result  will  be  that 
no  mutual  consent  upon  the  contract 
between  the  parties  has  been  established. 
Thon  there  is  another  feature  in  the  ease 
which  ought  to  be  looked  at,  and  that 
is,  that  it  was  cloarly  intended  by  Camp- 
bell tiiat  a  contract  should  be  entered 


into  between  plaintiffs  and  Adam  vpoo 
the  instaiment  system,  and  I  take  it 
that  thereby  was  meant  that  a  contract 
was  to  be  entered  into  which  was  to  set 
forth  the  mode  in  which  pajrments  were 
to  be  made  by  instalments  from  time 
to  time,  and  that,  when  a  contract  in 
these  terms  was  concluded  between 
Adam  and  the  plaintiffs,  that  contract 
was  then  to  be  submitted  to  the  defen- 
dant, who  was  to  signify  his  acoeptanoe 
thereof.  And  I  quite  accept  the  view 
taken  by  the  defendant  that,  after  ex- 
pressing his  willingness  in  this  document 
to  accept  responsibility,  he  all  along  ex- 
pected that  some  form  of  contract  would 
oe  submitted  to  him  upon  which,  he 
would,  conjointly  with  Adam,  signify 
his  responsibility.  We  find  that  the 
mere  contract  ot  sale  was  not  considered 
sufficient  so  far  as  Adam  was  concerned, 
because  a  promissory  note  was  sent  to 
him  to  sign.  It  was  clearly  contem- 
plated that  there  should  be  some  docu- 
ment submitted  to  Campbell  for  his 
signature  before  the  contract  was  com- 
pleted. Therefore,  this  is  clear :  that  no 
contract  was  entered  into  upon  any 
system  which  could  in  any  form  of 
words  be  described  as  the  instalment 
system  which  was  contemplated  by 
Campbell,  and  his  responsibility  under 
this  guarantee  therefore  does  not  arise. 
Judgment  must  be  given  for  the  defen- 
dant, with  costs. 

[Plantiff's  Attorney:  W.  K.  Baxter; 
Defendant's  Attorneys:  Michau  and  De 
Villiers.] 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplet.] 


TRIAL  CAUSE. 


1905. 


1 


ROSENBERG  V.  CAPE  TOWN  1  May    2nd. 
HEBREW  CONQEBGATION.    ]        „     Hth. 

C  Jane  6tb. 

Architect's  plans  —  Fees  —  Esti- 
mate of  cost. 

This  was  an  action  brought  by  Max 
Rosenberg,  architect.  Cape  Town, 
against  the  secretary  of  the  Cape  Town 
Hebrew  Congregation  to  recover  a  sum 
of  £50  alleged  to  be  due  as  premium 
award  for  certain  plans. 

The  declaration  set  out  that  in  Decem- 
ber, 1902,  the  congregation,  through 
the  defendant,  offered  to  the  phuntiff, 
among  other  architects,  that  if  be  would 
prepare  and  furnish  the  congregation 
with  plans  for  the  erection  of  a  syna- 
gogue at  the  top  of  the  Government 
Avenue,  Cape  Town,  in  accordance  with 
certain   particulars  set  out   in   annexux^ 


r 


"CAPE  TIMES"  LAW  BEP0BT8. 


843 


marked  **A/'  and  if  the  plan  prepared 
by  him  should  be  adjudged  by  the  ad- 
judicator appointed  bv  such  congrega- 
tion to  be  tbe  best  plan  the  congrega 
tioQ  would  pay  to  him  £50  as  a  prize. 
The  particular  stipulated,  ifUer  alia, 
were  that  the  cost  of  the  building  should 
be  £20,000.  Plaii>ti£F  accepted  the  said 
offer,  and  prepared  plans  complying  in 
erery  respect  with  the  particulars  set 
oat  in  the  annexure.  In  March,  1903, 
the  adjudicator  adjudged  his  plans  to 
be  the  best  furnished,  and  awarded  him 
fint  prize.  The  defendant,  however, 
wrongfully  and  unlawfully  refused  to  ^ay 
the  sum  of  £50,  the  amount  of  the  pnae, 
and  plaintiff  claimed  that  sum,  with  in- 
terest and  costs. 

Defendant,  in  his  plea,  did  not  admit 
that  the  plans  submitted  by  the  plaintiff 
complied  with  the  parflculan  in  all 
respects,  he  admitted  having  refused  to 
pa^  the  plaintiff  the  sum  of  £50  as  a 
priie,  and  said  that  the  plaintiff  had 
failed  io  satisfy  the  adjudicator,  or  the 
said  congregation,  that  the  aaid  build- 
ing oould  1)6  erected  for  a  sum  of 
£a),CXX)  or  thereabouts.  He  orayed  that 
the  claim  might  be  diumiased.  The  de- 
fendant, for  a  claim  in  Teconvention, 
said  that  the  plaintiff  promised  a  dona- 
tion of  £50  to  the  said  congregation, 
which  he  had  not  yet  paid,  and  that  he 
»lso  owed  a  sum  of  £14  17s.  6d.,  due 
from  him  as  a  member  and  seatholder  of 
the  congregation.  The  defendant  claim- 
ed from  the  plaintiff  payment  of  the 
£uaM  of  £50  and  £14  17s.  6d.  respec- 
tively, with  interest  and  costs. 

The  plaintiff,  in  his  replication,  denied 
that  it  was  a  condition  precedent  to  pay- 
ing the  said  prise  to  produce  a  bona 
/Ide  tender  from  a  reliable  builder  to 
the  effect  that,  should  it  be  decided  to 
erect  the  said  building,  he  would  be  pre- 
pared to  do  the  work  for  £20,000,  and 
guarantee  to  abide  by  his  tender.  While 
denying  that  the  defendant  was  entitled 
to  i Deist  upon  such  a  condition,  he  ob- 
tained a  hona-fide  tender  from  a  builder 
to  erect  the  building  within  the  price 
ttipulated.  For  a  plea  to  the  claim  in 
reconvention,  he  said  that  as  to  the 
donation  of  £50,  the  congregation  had 
diiclosed  no  ground  in  law  to  support 
such  a  claim,  and  that  the  claim  was 
irrelevant  and  embarrassing,  and  he 
pnyed  that  the  paragraph  should  be 
itmck  onL  He  also  said  that  the 
^nagogue  now  being  erected  wa«  not 
being  erected  in  accordance  with  the 
?aid  particulara.  He  admitted  that  he 
owed  £14  17s.  6d.  to  the  defendant,  and 
tendered  that  sum. 

Mr.  Gardiner  (with  him  Mr.  Lewis) 
for  Dlaintiff.  Mr.  Searle,  K.C.  (with 
him  Mr.   Upington)  for  defendant. 

Max  Rosenberg  (the  plaintiff)  said  that 
with  the  plans  he  suomitted  a  report, 
in  which  he  estimated  that  the  cost  of 
buildings,  based  on  figures  actually  ob- 
tained from  the  laetest  buildem'  tenders, 
with  a  d^iB^^^^i^n  'o^  tower,   would  be 


£20,012  10s.  He  did  not  take  out 
quantities  and  specifications  for  the 
building;  his  fee  for  that  work  would 
be  £500.  He  looked  at  the  prices  of 
tenders  in  his  office,  Mr.  Gilham  actually 
working  out  the  estimate*  Witness  also 
saw  Mr.  F.  B.  Smith  about  the  estimate 
Wituebs  subsequently  received  a  letter 
from  the  congregation  stating  that  they 
did  not  consider  any  of  the  designs  to 
be  suitable,  and  that  none  of  the  authors 
had  any  claim  upon  them.  They  ha^i 
decided  not  to  build  on  the  designs  sub- 
mitted. They  would,  however,  be  pre- 
pared to  pay  out  this  premiumB  if  tho 
authors  could  obtain  a  bona-^de  tender 
of  £20,000.  or  at  any  rate  within  ten 
per  cent.,  from  a  reliable  builder  to  the 
effect  that  he  would  be  prepared  to  carry 
out  the  work  for  the  sum  of  £22,000. 
Further  correspondence  took  place  in 
which  the  seoretary  of  the  oongrregation 
intimated  that  if  the  author  of  tho 
deaign  would  obtain  a  bona  fide  tender 
from  a  responsible  builder  of  £22,000 
they  would  be  prepared  to  award  the 
premium.  He  would  not  have  been 
able  to  obtain  a  tender  from  a  builder  if 
the  building  were  not  to  be  erected. 
He  oould  not  have  got  a  guarantee  ten 
der  on  the  rough  specifications  put  in. 

Mr.  Gardiner  reaa  a  lengthy  report  by 
the  adjudicator  (Mr.  Howard,  Public 
Works  Department),  from  which  it  ap- 
peared that  he  did  not  consider  that 
either  of  the  two  premiated  designs  could 
be  carried  out  for  £20,000  or  any  ap- 
proach thereto.  He  suggested  that  the 
plaintiff  should  be  asked  to  invite  ten- 
ders by  public  competition.  He  had  his 
doubts  as  to  whether  any  of  the  designs 
which  he  had  premiated,  ezoept  that  of 
'*  Peace "  (awarded  fourth  position) 
could  be  carried  out  for  the  sum  of 
£20,000.  or  anything  near  it.  Mr.  How- 
ard added  that  the  best  course  would  be 
i>  invite  fresh  designs  upon  a  properly- 
prepared  schedule  of  instructions.  Mr. 
Howard's  estimate  of  the  cost  of  carry- 
ing out  the  designs  premiated  was  as  fol- 
lows: First,  £27,000;  second,  £28,000; 
third,  £26,000;  fourth,  £21,000. 

Witness  (continuing)  said  that  he  had 
been  delayed  in  bringing  his  action 
through  various  causes,  one  being  that 
he  had  understood  that  the  congrega- 
tion were  considering  the  matter,  and 
that  he  he  had  hoped  they  would  come 
to  reason.  Witness  had  a  tender  pre- 
pared by  Mr.  McGregor,'  dated  the  6th 
January,  1904,  tendering  to  erect  the 
Synagogue  for  £19,500.  This  he  placed 
in  the  nands  of  his  attorneys.  On  the 
18th  February,  1902,  he  sent  a  letter 
tendering  a  donation  of  £50  towards  the 
proposed  new  Synagogue.  ^  He  was  a 
member  of  the  congregation  at  the 
time.  He  made  the  offer  at  the  time 
the  first  competitions  were  put  out,  and 
in  which  he  did  not  participate.  His 
donation  was  to  be  for  a  Svnagogue 
at  the  top  of  the  Avenue.  Tne  Bvna- 
gogue  had  not  been  built  *t  Hope  Milli 


844 


n 


CAPB  TIMES*'  LAW  BEPORTS. 


top  of  GoverDment  Avenue.    The  build- 
ing had  beMi  put  up  in  the  middle  of  the    ; 
Avenue.    Witness  did  not  approve  of  the    i 
soheme   which   had   been     carried     out. 
He  did  not  think  that,  financiallv.  itwa^    | 
as  sound  as  the  first  scheme.    He  con-    ' 
sidered  that  the  building     would     have    ' 
Icoked  much   better  at  Hope  Mill,   in-    j 
stead  of  on  the  present  site.    Cross-ex- 
amined   by  Mr.   Searle:    His   Attorney,    ! 
h)  believed,  did  not  send  in  the  tender    ' 
he  obtainea  to  the  Cape  Town  Hebrew 
Congregation.     His   attorney  told     him 
that  thev  were  nesotiating  with  the  at< 
torneys  for  the  otner  side,  Messrs  Van 
Zyl  and  BuissinnA. 

By  the  Court:  He  had  thought  that, 
after  the  very  unfair  way  in  which  he 
had  been  treated,  the  con^egation 
would  never  claim  the  donation  from 
him. 

Charles  Gilham,  quantity  surveyor, 
said  that  he  was  in  the  employ  of  the 
plaintiff  when  the  latter  sent  in  designs 
for  the  Synagogue.  He  prepared  the 
rough  estimate  under  the  plaintiff's 
supervision,  and  ffot  out  the  prices  from 
tenders  they  had  in  the  office  at  tue 
time.  He  considered  that  the  price  set 
out  of  a  little  over  £20,000  was  a  fair 
price. 

Frederick  B.  Smith,  builder,  said  that 
he  was  the  contractor  for  the  erection  of 
the  University  Buildings.  In  January, 
1903,  he  saw  the  designs  and  rough  es- 
timate for  the  Synagogue  prepared  by 
the  plaintiff.  Witness  considered  that 
the  amount  that  he  made  up  of  under 
£20,000  was  quite  satisfactory.^ 

Croes-examnned :  Witness  did  not  re- 
collect having  gone  through  the  piain- 
tifTs  apix'OQrimate  estimate  of  cost.  The 
only  way  to  test  the  prices  was  to  get 
a  tender,  and  witness  was  inclined  to 
think  that  he  gave  a  tender  in  writing. 

Re-examined :  From  memory  now  tie 
oculd  not  say  what  prices  he  actually 
took  at  the  time. 

Edward  Simpkin,  architect,  who  erect- 
ed among  other  large  buildings  that  of 
the  Harbour  Board,  stated  that  he 
carried  off  the  prize  on  the  first  occasion 
when  he  submitted  £13,000. 

Cross-examined:  Witness  was  one  of 
the  architects  Mr.  Roeenberg  objected 
to,  although  he  got  the  prize. 

Edward  Austin  Cook,  architect,  stated 
that  in  his  opinion,  in  February  or 
March,  1903,  the  price  would  have  been 
generally  satisfactory.  It  was  impossible 
to  give  anything  but  a  rough  estimate 
on  a  competition.  The  fall  in  prices 
from  February,  1903,  to  February,  1904, 
was  only  in  the  cheaper  material. 

Cross-examined :  Witness  had  very 
little  experience  of  the  stone  work  in 
this  country,  and  he  would  not  care  to 
give  an  opinion  on  it. 

Charles  Rutherford,  builder,  who 
erected  the  present  Civil  Service  Club 
and  the  Royal  Hotel,  stated  that  he  saw 
Mr.  Rosenberg's  estimate,  and  he  con- 


sidered the  prices  somewhat  high.  If  the 
quantities  were  riffht  the  building  could 
have  been  erected  for  £20,000  in  Feb- 
ruary, 1903. 

Croea-cxhmiued :  Labour  was  just  the 
same  now  as  it  was  a  couple  of  years 
ago.  Materials,  on  the  whole,  were 
about  15  per  cent,  cheaper.  The  lower 
clasd  of  labour  might  have  dropped  a 
little  in  price. 

James  McGregor,  buiMer,  who 
tendered  ^  in  January,  1904.  for 
tlie  building  of  the  Synagogue  for 
£19,500,  stated  that  he  went  on  the  com- 
Iietitive  plans,  and  the  rough  specifica- 
tion by  Mr.  Rosenberg.  In  February, 
1903,  he  reckoned  the  job  could  have 
been  done  for  £19,500. 

Cross-examined :  He  was  asked  to  give 
a  tender  for  Januarv,  1904.  The  price 
fell  a  little  from  Feoruary,  1903. 

Mr.  Gardiner  closed  his  case. 

Adolph  Howard,  who  held  an 
appointment  under  the  Government 
since  1891,  stated  he  was  asked  to  act 
as  assessor  in  this  matter,  and  he  con- 
sidered the  figures  too  iow.  Witness 
cubed  the  building,  and  arrived  at  a 
fair  price.  He  considered  that  on  the 
designs  it  would  reauire  £27.000  to 
erect  the  building.  Tne  building  might 
be  erected  now  tor  £22,000.  Tii^re  had 
been  a  very  substantial  drop  since  Feb- 
ruary, 1903.  as  he  knew  from  the  Govern- 
invnt  tenders  that  went  through  his 
hands.  Witness  dictated  the  letter  set- 
ting out  on  a  bona  fide  tender  from  a 
builder  that  the  building  would  be  erect- 
ed for  the  price  mentioned  the  prize 
would  be  awarded,  and  although  the 
committee  did  not  intend  using  any  of 
the^  designs,  if  they  reconsidered  their 
decision  the  builder  would  be  bound  by 
his  tender.  He  was  not  satisfied  that 
any  of  the  competitors  were  entitled  to 
the  m'lte  if  thev  did  not  have  a  guaran- 
tee that  the  building  could  be  erected  for 
the  price  stated.  The  prise  was  only  to 
be  awarded  on  a  satirfactory  tender  that 
the  building  could  be  erected  for  £22,000. 

Cross-examined:  The  raremium  offered 
was  a  very  small  one.  He  did  not  con- 
template that  a  man  sending  in  a  de- 
sign should  take  proper  specifications. 
Witness  thought  that  Rosenberg  should 
have  a  tender  from  a  builder.  He  never 
thought  that  Rosenberg  was  not  to  men- 
tion to  the  builder  that  the  committee 
were  not  going  to  erect  the  building. 
If  a  builder  was  paid  he  would  tender 
for  a  building,  even  if  there  waa  no 
chance  of  getting  the  job.  He  never 
contemplated  what  Rosenberg  might 
have  to  pay  the  builders.  Witnen 
would  have  told  the  builder  that  there 
was  no  chance  of  getting  the  contract, 
and  still  there  would  be  a  chance  that 
the  builder  might  under  such  conditions 
give  a  guarantee  tender.  Witness 
thought  that  Rosenberg  might  have  a 
builder  with  his  eyes  open  that  would 
lose^  over  the  contract  with  a  view  of 
getting  his  name  up.  He  took  the 
general  price  ol  9d.  per  foot  in  cubing 


<l 


GAPE  TIMES"  LAW  REPOBTB. 


346 


tb'  buildiog,  and  thai  was  a  oompara- 
iiielj  low  price. 

Leopold  Jacobi,  defendant,  as  secretary 
of  the  committee,  stated  that  all  the  let- 
ten  he  wrote  were  with  the  approval 
of  the  committee.  The  second  prize  was 
awarded  on  the  production  of  a  tender. 
The  price  quoted  was  £^,000,  but  the 
winner  of  the  second  prize,  Mr.  Ransom, 
produced  a  tender  for  £20,000. 

[Hopley,  J. :  There  was  no  guarantee 
with  this  tender.] 

Witness :  No,  my  lord ;  we  took  it  in 
good  faith. 

Witness  (continuing)  said  that  he  heard 
nothing  about  the  matter  from  Rosen- 
berg from  September,  1903,  to  October, 
1904.  There  were  several  reasons  why 
the  site  in  the  Gardens  was  preferred. 

Cross-examined :  It  was  understood 
that  if  the  first  prize  winner  did  not 
satisfy  them  with  a  tender,  the  money 
was  to  go  to  the  second  prize  winner; 
but  Mr.  Ransom  did  not  get  the  £50, 
neither  did  the  third  prize  winner  get 
any,  surplus,  aa  it  was  thought  that  the 
plaintiff  would  still  send  in  a  tender. 
When  they  were  in  the  thick  of  the  fight 
with  the  plaintiff,  they  still  thought  that 
they  would  get  the  donation  of  £50  from 
Mr.  Rosenberg  towards  the  building  of 
the  Synagogue.  He  would  not  say  that 
it  was  on  the  faith  of  tho  plaintiff's  don- 
ation the  building  of  the  Synagogue  was 
undertaken. 

[Hopley,  J. :  I  suppose  you  are  still 
keejiing  a  seat  for  him  it  he  cares  to 
come  there?] 

Witness:  Yes^  my  lord. 

Witness  (continuing^)  said  it  was  not 
necessary  for  the  Building  Fund  Com- 
mittee to  send  collectors  for  the  money. 
Rosenberg  was  not  the  only  person  who 
had  failed  to  pay  up^  At  a  meeting  at 
which  some  sixty  persons  were  present, 
ten  objected  to  the  chan^  of  the  site 
and  thirty-four  voted  for  it. 

Thomas  Howard,  of  Messrs.  Howard 
jnd  Scott,  stated  that  in  March,  1905.  la- 
bour and  material  were  at  the  higne.«t 
they  ever  were  in  Cape  Town.  In  Janu- 
ary, 1904,  there  was  a  substantial  fall, 
^,,the  price  of  material  in  particular, 
"itness  had  irone  into  Mr.  Rosenberi^'s 
pnces  very  carefully,  and  he  was  positive 
that  the  prices  dia  not  touch  anything 
hke  what  prevailed  at  the  time.  The 
matter  could  never  really  have  been 
senoQsly  taken  into  consideration.  At 
that  time  witness  was  getting  £19  for 
steel  girders,  whereas  Mr.  Rosenberg 
pit  them  down  at  £13.  \yitness  went 
mto  the  whole  thing,  and  doing  it  on  five 
per  cent,  profit,  as  witness's  firm  had 
acne  for  a  place  of  worship  in  Kimber- 
ley.  the  lowest  would  be  £27,000. 

Cross-examined  by  Mr.  Gardiner  : 
You  were  the  contractor  for  the  City 
Hall ;  what  was  the  contract  originally .' — 
£96.000.        ,  ^ 

What  is  it  now? — ^It  may  run  into 
i^l60,000. 


It  may  run  into  £200,000?— Oh,  no. 
Our  tender  for  the  City  Hall  was  based 
on   the  prices  six  years  ago. 

Proceeding,  under  cross-examination, 
witness  asserted  that  Mr.  Rosenberg's 
specification  was  merely  an  apology.  A 
certain  quaJity  of  iron  girders  could  have 
been  put  in  for  £14,  but  he  would  be 
sorry  to  put  them  in  a  place  of  that  de- 
scription. In  the  early  stage,  March, 
1903,  he  would  have  calculated  £31,000 
for  the  job.  The  skilled  man  to-day 
knew  that  there  were  plenty  of  men 
waiting  on  his  job,  and  his  work  was 
consequently  20  per  cent,  better. 

Re-examined:  The  war  had  a  great 
deaJ  to  do  with  the  building  of  the  City 
Hall.  The  contract  had  to  be  entirely 
altered. 

Edmund  James  Sherwood,  architect 
and  quantity  surveyor,  stated  that  he 
had  gone  through  Mr.  Rosenberg's 
estimate,  and  taking  the  quantities  given 
him,  he  totalled  up  £31,587.  The 
largest  increase  over  ihe  plaintiff's 
prices  was  in  the  stone- work. 

Cross-examined:  The  cubing  up  was  a 
very  good  old  system,  if  you  knew  how 
to  do  it.  The  prices  he  quoted  he  made 
up  yesterday,  but  he  waa  well  acquainted 
with  the  quotations  prevailing  at  the 
time.    It  was  absurd  to  think  of  £22,000. 

John  Drake,  builder  and  contractor, 
reckoned  £31,500  for  the  building,  with- 
out the  tower,  in  March,  1903.  The 
building  could  not  now  be  built  for 
£22,000.  There  was  a  fall  of  about  12 
per  cent,  in  prices  from  March,  1903,  to 
February,  1904.  Witness  was  building 
Carlton  Buildings  in  March,  1903,  for 
which  he  got  8s.  3d.  for  the  stone  walls. 

Cross-examined :  He  put  the  iron  at 
£18  10s.,  fixed. 

By  Hopley,  J. :  Painting  and  plaater- 
ing  were  omitted  from  the  estimates. 
The  contingency  of  £1,000  could  not  have 
included  those  items,  as  contingency  was 
only  put  down  after  every  conceivable 
item  had  been  covered. 

Posiea  (May  11th).  Counsel  were 
heard  in  argumeiyt  on  the  facte. 

Cur.  Adv.  VuJt. 

Postea  (June  6th). 

Hopley,  J.,  in  giving  judgment,  held 
that  the  plaintiff  had  done  all  things 
necessary  to  entitle  him  to  the  aw^ri 
of  £50.  for  bis  design,  and  judgment 
would  be  for  that  amount  for  the  plain- 
tiff in  convention,  and  for  £64  7s.  6d. 
for  the  plaintiffs  in  reconvention,  the 
defendants  in  convention  to  pay  the 
costs  of  the  action. 

[Plaintiff's  Attorneys:  W.  E.  Moore 
and  Son;  E>efendants*  Attorneys:  Van 
Zyl  and  Buissinn^.] 


r       1906. 
<  May  2nd. 
I      M    4th. 


OLOETE  V.  DIPRJlEM 


Mr.  Upington  moved   as  a  matter  of 
I    urgency   for  the  arreet   of   the   respon- 


346 


"CAPB  TIMK8''  LAW  BBPOBTS. 


deot,  affaiDfct  whom  numerous  applica- 
tions nad  bceii  made  and  judg- 
ment obtained  for  £647  Ts.  Id. 
See  15  C.T.R.  69,  P2,  114  an.J 
178.  The  plaintiff  was  a  i^licitjr. 
practising  at  Lady  Grey,  Aliwal  North, 
and  when  return  of  nulla  bona  was 
made,  the  plaintiff  proceeded  to  execute 
against  two  plots  of  land  on  the  Wyn- 
berg  Flats.  The  respondent  had  also 
debts  oustanding  to  the  amount  of 
£351,  and  the  movable  property  rea- 
lized £75.  The  defendant  had  handed 
the  promissory  notes  on  the  above  debts 
to  his  wife,  who  sent  them  to  Lady 
Grey,  and  the  bank  manager  refused  to 
give  them  up,  as  they  were  the  pro- 
perty of  Mrs.  Dipraem.  There  was 
mformation  now  (said  counsel)  that  the 
defendant,  who  had  absconded  to  the 
Orange  River  Colony,  intended  to  re- 
turn to  Lady  Grey  on  May  15,  and  so 
come  within  the  jurisdiction  of  the 
Court.  Counsel  now  applied  for  an 
order  on  the  Sheriff  to  arreit  him  when 
he  crossed  the  border.  Counsel  ur^^ed 
that  the  Court  had  power  to  deal  with 
a  man  of  this  sort,  who  deliberately 
evaded  justice. 

[Hopley.  J. :  People  ^  have  done  that 
before  by  simply  clearing  over  the 
border  and  looking  at  their  creditors, 
and  sometimes  snaking  hands  with 
them.] 

Mr.  Upington  said  he  felt  there  was  a 
difficulty  in  regard  to  the  application, 
but,  at  the  same  time,  he  would  submit 
that  the  Court  had  power  to  prevent 
its  orders  from  becoming  more  nullity. 
Here  was  a  distinct  allegation  u[)on  ^ 
oath  that  the  defendant  was  coming 
over  the  border.  He  might  come  over 
once   a  week. 

[Hopley,  J. :  No  doubt  it  is  very  an- 
noving  to  Mr.  Cloete.] 

Mr.  Upingrton :  The  question,  my  lord, 
I  submit,  is  whether  under  the  general 
jurisdiction  the  Court  has  not  the  power 
to  deal   with  such  a  state  of  affairs. 

fHopley.  J. :  If  you  can  bring  me  any 
authority,  I  shall  oe  only  too  willing  to 
help  you.J 

Mr.  Upmgton :  I  submit  it  is  really 
contempt  of  the  order  of  Court. 

[Hopley,  J. :  Surely  you  can  stop  his 
coming  across  the  border  by  a  writ  of 
civil  imprisonment.] 

Mr.  Upington :  But,  my  lord,  we  can't 
serve  the  notice  upon  him.  He  is  not 
now  within  the  jurisdiction.  Counsel 
said  that  the  respondent  changed  his 
reaidence  from  day  to  day. 

The  matter  was  ordered  to  stand  over 
until  to-morrow  to  give  counsel  time  to 
find  if  posi^ible  any  authority  for  tho 
order. 

Postea  (May  4th). 

Mr.  Upington  cited  ffUl  and  Paddan 
V.  Barrherdt  (2,  H.C.,  253),  Van  der 
Linden  (S-4— 1),  Voet,  (2-4-22). 

Order  granted  attaching  the  defendant, 
pending  an  action  for  civil  imprisonment 
to  bo  instituted  forthwith  by  the  plaintiff,  , 


and  a  rule  nisi  granted  interdicting  tlie 
manager  of  the  bank  at  Lady  Grey  from 
parting  with  the  notes  or  the  proceeds 
thereof,  pending  an  application  upon 
notice  to  the  defendant,  and  Mrs.  Di- 
praem to  i»how  cause  why  the  said  notes 
or  the  proceeds  should  not  be  taken  la 
execution  of  the  judgn^ent  of  this  Court, 
with  leave  to  telegraph. 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  MAASDObP 
and  a  Special  Jury.] 


VAN  ZYL  V.  WARNER. 


{ 


1905. 
May  3rd. 

Fire — Negligence— Damages. 

This  was  an  action  to  recover  £l,(XX) 
damages  for  certain  trees  destroyed  by 
fire  last  March.  The  plaintiff,  Mr. 
C.  H.  van  Zyl,  of  Sea  Point,  was  the 
owner  of  a  large  property  of  about 
fifty  acres  in  extent  on  the  Kloof- 
ruad  and  Victoria-road,  at  Botany  Bay. 
Towards  the  Kloof-road,  on  sloping 
ground,  a  plantation  was  planted 
about  ten  years  ago,  at  a  good  deal 
of  expense.  The  property  was  sur- 
veyed and  laid  out  in  Iocs,  but  the  only 
portion  of  it  that  was  sold  was  ihat  to 
the  defendant.  Robert  Charles  NVaruer 
On  Saturday,  May  4,  while  a  btiff  south- 
easter wa«  blowing,  there  was  a  bush 
fire  coming  up  from  the  Camp's  Bay 
side,  high  on  the  mountain.  About 
five  o'clock  in  the  afternoon  ''.e  defen- 
dant, who  wai4  on  the  spot^  hetjif  ap- 
prehensive of  his  own  prenr^'es,  m-i  firo 
t-o  the  plaintiff's  grass  in  the  plantation, 
in  spite  of  warningii;  not  to  do  so.  Within 
fifteen  minutes  about  a  tho-JSH.id  troea 
were  destroyed,  as  well  as  ihe  hedges. 
The  defendant  denied  that  he  was 
warned  not  to  do  so,  but  admitted  that 
he  did  set  fire  to  the  grass,  and  tendercj 
£250  damages.  The  damage  was  much 
greater. 

Mr.  Searle,  K.C.  (with  him  Mr.  Gar- 
diner),  was  for  the  plaintiff;  Mr.  Up- 
ington (with  him  Mr.  P.  S.  T.  Jones j 
was  for  the  defendant. 

W.  Versfeld,  Governnoeut  surveyor, 
who  prepared  the  plans,  stated  that  the 
distance  from  the  point  the  bush  fire 
actually  reached  to  the  defendant'.<i 
house  was  about  BOO  feet.  The  area  of 
<he  fire  was  about  two  morgen. 

Casper  H.  van  Zyl  (the  plaintiff)  stated 
that   he    bought    the  property  in    1^ 
It  was  a  very   remote    place  and   diffi- 
cult to  grow   trees   in,  as  the  soil  was 
aandy.      Cottages   were    built     on    the 


•• 


OAPB  TIMB8"  LAW  BSPCATB. 


547 


gnmnd  in  1894.  PreTioai  to  ih*t  time 
he  had  pknted  trees.  During  the  last 
teo  yearn  he  liad  gone  to  «  deal  of 
trouble  to  ffoi  the  trees  to  grow.  The 
firrt,  seoond,  and  third  yean  half  the 
tiees  died,  mod  he  replanted  them.  About 
a  couple  of  jean  ago  part  of  the  pr(>> 

Krty  waa  scHd  to  Warner  for  £^500. 
*foie  witneaa  vent  to  Bngland  he 
voald  not  have  «okl  the  lota  under  £250 
each,  and  now  he  would  not  take  less 
than  £500  each.  He  wanted  to  main- 
fain  the  atatus  of  the  district,  and  so 
restrictiona  were  put  in  the  conditions 
of  sale.  Witness  was  on  the  plantation 
after  the  fire,  «nd  found  the  trees  de- 
stroyed in  seven  lots.  The  trees  would 
never  grow  again ;  he  would  have  to  re- 
plant them.  In  all,  there  were  about 
a  thousand  trees  burnt.  The  trees  could 
not  be  pUnted  again  under  £100.  It 
wonJd  take  ten  yeiars  at  least  to  bring 
the  trees  to  the  aame  growth.  It  would 
take  o^er  £60  a  year  to  pay  for  the 
labour,  and  £100  for  water  for  ten  years. 
None  of  the  burnt  treea  were  under 
seven  vean  of  age.  He  had  sustained 
move  than  £1,000  damages  by  this  fire. 

Cross-examined  by  Mr.  Upington:  It- 
was  a  great  hobby  of  his  to  plant  trees. 
Immediately  nfter  the  fire  he  claimed 
£1,000  damages,  and  accused  the  defen- 
dant of  maliciously  burning  the  planta- 
tion, but  witneas  would  not  now  say  it 
was  malicious.  The  defendant  said  he 
had  set  fire  to  it,  and  that  he  did  not 
think  the  fire  would  spresd.  The  fire 
got  into  Sknother  part  of  the  plantation. 
Warner  did  not  discuss  the  question  of 
compensation  at  all.  He  did  not  know 
that  Mr.  Pilla-na  was  an  authority  on 
forest  trees.  The  trees  witness  planted 
were  valuable  trees. 

Mr.  Upington,  in  further  cross-exam- 
ination, put  it  to  witness  that  Mr.  War- 
ner had  a  very  nice  house  on  the  ground. 

Witness:  Yes,  the  nicest  house  at  Sea 
Point. 

Mr.  Upington :  But  there  is  no  stable ; 
he  cannot  have  a  stable  on  the  ground  ? 

Witness:  He  has  got  a  stable  on  my 
ground,  for  which  he  pays  nothing.  He 
doea  not  pay  a  sixpence  for  it. 

Cross-examination  continued :  The  pur- 
chase price  of  Mr.  Warner's  lot  with  the 
house  was  £2,500.  The  house  cost  wit- 
neaa £1.750  to  build  in  1899. 

Mr.  IJpington:  The  price  of  property 
has  [Tooo  up  very  considerably    thenf 

Witness :  Tee,  property  did  go  up,  but 
It  haa  gone  down  again. 

I  mean  the  price  of  property  was  high 
then,  when  the  defendant  nought  in  1900, 
sa  compared  with  1899?— Yes. 

Further  cross-examined:  Witness  held 
a  mortgage  on  the  defendant's  property 
to  the  amount  of  £2,000.  He  considered 
thai  the  property  was  worth  at  least 
£3,000. 

Mr.  Upington :  Is  it  your  case  that  you 
have  been  damaged  to  the  extent  of 
£1,144  and  more  by  the  destruction  of 
750  to  1,000  gum  trees? 


Witneas :  Yes,  and  there  is  the  depre- 
ciation of  the  land.  The  land  haa  dim- 
inished in  value  at  least  £150  a  lot. 

You  don't  want  to  have  both  the  value 
of  the  trees  and  the  depreciation  of  the 
Und? — I  take  it  as  a  whole. 

Witness,  repljring  further  to  Mr.  Up- 
ington, said  that  he  based  his  damages 
on  the  depreciation  of  the  property,  and 
what  it  would  cost  to  put  the  property 
i%ain  into  a  similar  state. 

Mr.  Upington :  I  put  it  to  you  that  for 
£210  a  nurseryman  is  prepared  to  re- 
plant that  ground  and  maintain  it  for 
three  years? 

Witness :  If  he  plants,  aa  a  tree  should 
be  planted,  I  should  take  him  at  once. 
Many  people  do  not  know  how  to  plant. 
They  simply  dump  it  into  the  ground, 
and  say:  **  The  Lord  must  do  the  reet." 

Richard  Brenmer,  superintendent  of 
Mr.  Van  Zyl'a^  property  at  Botany  Bay, 
said  he  supervised  the  plantation  on  the 
mountain  aide,  and  the  one  burnt  out. 
0*1  the  4th  March  he  saw  what  seemed  to 
be  a  small  fire  at  the  back  of  the  houses 
at  Clifton.  Afterwards  he  saw  smoke 
rising  in  the  air.  He  went  up  to  Mr. 
Saunders's  estate.  Witness's  cottage  was 
about  75  yards  from  the  defendant's 
place.  Mr.  Warner  told  him  that  he 
would  set  fire  to  the  field  down  below. 
Witness  told  him  he  must  do  nothing  of 
the  kind,  and  that  he  had  enough  to 
look  after  with  the  fire  on  the  mountain. 
Witness  walked  away  with  the  defend- 
ant's coachman,  and  on  chancing  to  look 
round  he  saw  the  field  on  fire,  and  Mr. 
Warner  standing  by.  Witness  at  once 
sent  down  the  defendant's  man,  and  told 
him  to  ask  Mr.  Warner  to  put  out  the 
fire  at  once.  The  other  fire  was  about 
1,000  yards  from  Mr.  Van  Zyl's  property 
at  that  time. 

Cross-examined :  Mr.  Shaw  was  present 
when  witness  spoke  to  the  defendant. 
Witness  denied  that  be  was  in  a  "  blue 
funk."  There  was  a  tremendous  cloud 
of  smoke  rising  towards  the  Lion's  Head. 
The  fire  travelled  from  Clifton  towards 
Sea  Point;  a  south-easter  was  blowing. 
Witness  was  sure  that  he  told  Mr.  War- 
ner that  be  must  not  set  fire  to  the 
grass.  Witness  had  never  seen  a  flow- 
ering gum  in  the  Peninsula,  except  on 
Mr.  Van  Zyl's  property. 

Henry  Wepener,  farrier.  Sea  Point, 
said  he  heard  Mr.  Warner  say  to  Mr. 
Bremner  that  he  would  set  fire  down  be- 
low at  the  spot  close  to  his  house..  Mr. 
Bremner  said  that  he  (defendant)  must  do 
no  such  thing.  They  then  turned  to  ^o 
up  the  mountain,  and  Mr.  Warner  said, 
"  All  right,  Bremner,  I  will  look  after 
the  lower  part."  When  they  returned 
the  lower  part  had  been  burnt  out. 

Fred  Fox  said  that  he  rented  a  billiard 
saloon  in  Cape  Town,  and  lived  at  Sea 
Point.  He  corroborated  substantially 
the  evidence  spven  by  Bremner  as  to  the 
conversation  that  the  latter  had  with  the 
defendant.  VHtness  said  that  the  remark 
made  by  defendant  struck  him  as  very 


348 


"CAPE  TIMES"   LAW  REPORTS. 


peculiar,  because  be  could  not  see     any 
need  to  set  fire  to  the  part  down  bolow. 

Pete,  a  Kafir,  said  he  went  down  to 
the  lower  place,  where  the  fire  was  burn- 
ing, and  asked  defendant  who  had  caused 
the    fire.         Mr.    Warner   said    "  Go  to 


»> 


I 


Hugh  Ross  Sharpe  said  that  be  lived 
at  a  cottage  near  the  plantation.  He 
saw  Mr.  Warner  just  outside  his  own 
fence  with  his  hose  watering  his  ground 
to  prevent  the  fire,  which  no  had  just 
lip[hted  in  the  plantation,  spreading  to 
his  property.  Witness  asked  him  what 
he  meant  by  lighting  the  plantation, 
and  Mr.  Warner  said  that  ne  wantea 
to  save  his  property.  Witness  then 
said,  ''What  about  my  house?"  and 
the  defendant  rejoined.  "  I  can't  help 
that ;  when  my  place  is  all  right,  I  will 
come  and  help  you."  The  defendant 
was  not  trying  to  put  out  the  fire.  The 
fire  soorched  the  gable  of  witness's 
house.  He  saw  no  reason  whatever  why 
the  defendant  should  have  set  light  to 
the  plantation.  He  should  say  that  the 
plaintiff's  property  had  suffered  to  the 
extent  of  quite  £100  a  plot. 

Cross-examined :  Witness  was  a 
tailor.  Witness  saw  the  beginning  of 
the  fire,  but  he  never  saw  the  defen- 
dant trving  to  extinguish  the  flames 
with  a  bush.      He  did  not  see  a    Kafir 

o  up  to  the  defendant.       Witness  had 

ad  no  quarrel  with  the  defendant.  Mr. 
Warner  was  watering  about  6  feet  out- 
side his  own  fence. 

Pieter  Johannes  Zoutendyk,  of  the 
firm  of  Stamper  and  Zoutendyk,  auc- 
tioneers, said  that  he  was  acquainted 
with  the  plaintiff's  property  at  Botany 
Bay.  He  estimated  that  the  value  of 
the  lots  before  the  fire  was  £400  a  lot, 
while  to-day  it  was  £300  a  lot ;  in  other 
words,  that  the  lots  had  depreciated 
£100  each  ii^  consequence  of  the  fire. 

Cross-examined:  He  had  not  sold  lots 
in  the  neighbourhood  of  the  plaintiff's 
property;  the  ground  was  not  level, 
and  it  was  some  distance  from  town. 
No  property  had  been  sold  by  auction 
in  the  particular  vicinity  of  plaintiff's 
estate.  The  Fresnaye  Estate  was  about 
200  yards  from  the  plaintiff's  property. 

Mr.  Upington:  Mr.  Behr,  I  believe, 
sold  that  estate? 

Witness :  Well,  wo  all  had  a  finger  m 
the  pie. 

Further  cross-examined:  There  were 
no  sellera  to-day  at  the  price  that  buy- 
era  'were  willing  to  pay.  There  had 
not  been  many  forced  sales,  except  ra 
District  6.  There  had  been  very  few 
residential  properties  forced  into  the 
market.  He  had  a  very  suooessful 
sale  on  Tuesday  afternoon  at  the  Grove 
Estate,  Clareniont.  He  sold  lots  on 
that  estate  at  £150  a  lot  twelve  months 
ago,  and  on  Tuesday  the  lots  made  £285 
a  lot. 


land 


Mr.    Upington :   In  your  opinion,   the 
nd  market  is  "boommg"? 


Witness :  No,  it  is  not  by  any  means. 


However,  in  that  part  of  Claiemont? — 
Well,    it  did  yesterday   afternoon. 

Witness,  in  further  cross-examination, 
referred  in  appreciative  terms  to  Mr. 
Warner's  property,  and  was  proceed- 
ing to  refer  to  the  beautiful  viow  and 
so  forth,   when 

Mr.  Upington  interposed  with  the  re- 
mark: We  are  not  going  to  oompete 
with   you,  you  kuow,   Mr.  Zoutendjrk. 

Witness,  replying  to  further  questions, 
said  that  Mr.  Van  Zyl  had  turned  a 
deeert  into  a  park,  and  he  had  crften 
admired  that  gentleman's  enterprise. 
Witness  was  answering  further  ques- 
tions, when 

Mr.  Upington  observed :  W^e  did  not 
get  you  here  to  tell  us  platitudes,  Mr. 
Zoutendyk ;  you  must  credit  even 
counsel  with  a  certain  amount  of  com- 
mon-sense. 

Gerhard  Hendrick  M^^^'>  auctioneer 
and  sworn  appraiser,  said  he  to<^  the 
value  of  the  ten  lots  to-day  to  be 
about  £150  a  lot  In  1903  and  1904  he 
valued   the  ground   at  £300  a  lot. 

[Maasdorp,  J. :  Now,  what  would  be 
the  value  of  the  ground  to-day  if  the 
trees  were  still  on  it?] 

Witness :  That  would  be  hard  for,  me 
to  say,  because  I  have  not  much  idoa 
about  trees  and  their  value. 

Answering  a  further  question  by  his 
lordship,  witness  said  that,  according  to 
the  times,  he  would  say  that  the  ground 
would  now  be  worth  £200  to  £250  a  lot 
if  the  trees  had  still  been  standing. 

Gideon  Brand  van  Zyl  (son  oF  the 
plaintiff)  said  he  did  not  consider  the 
conditions  of  sale  to  be  onerous.  Similar 
conditions  were  used  on  the  Orange- 
zicht  flstate,  and  also  an  estate  at  the 
top  of  Mill-street,  Gardens.  Witness 
had  had  offers  of  £400  a  k>t  within  the 
past  year.  He  had  had  no  offers  since 
the  fire.  The  plans  for  the  defendant's 
house  were  passed  in  1901,  and  the 
building  was  erected  in  1902.  The  sale 
to  the  defendant  took  place  in  1903. 

Samuel  Wood  house,  gardener  and 
florist.  Capo  Town,  said  that  the  burnt 
trees  would  be  of  no  use  in  the 
future.  He  estimated  that  it  would 
take  £500  to  replant  the  tiees, 
and  put  everything  in  order  for  a  period 
of  twelve  months.  His  estimate  for  all 
expenses  of  replanting,  retying,  restak- 
ing,  watering,  and  so  forth,  would  be 
for  a  period  of  ten  years  £1,550.  He 
had  made  the  estimate  on  the  basis  of 
1,000  trees. 

Cross-examined  by  Mr.  Upington : 
Witness  denied  that  he  had  put  the 
figure  too  high.  He  could  get  the  samo 
results  from  tree-planting  in  Cape  Town 
in  two  yeans  as  ne  could  get  m  seven 
years  in  Sea  Point. 

William  Henry  Higgo,  chief  forester, 
employed  by  the  Gape  Town  City  Coun- 
cil, said  he  considered  that  £1.000  of 
damage  had  been  done  to  Mr.  Van  Zyl's 
property.    He  considered  that  the  differ- 


"CAPB  TIMES"  LAW  BEPORTB. 


349 


6000  is  ibe  rate  of  growth  between  the 
Cape  Town  tide  of  the  mountain  and 
tlie  Sea  Point  aide  was  aa  four  years  to 
uz. 

Mr.  Searle  closed  his  case. 

Mr.  Upincton  eaid  that  he  did  not 
propose  to  lead  evidence  on  the  whole 
of  tne  eircuxDstancQB  of  this  matter,  but 
to  confine  himaelf  entiiely  to  what  the 
damage  waa.  It  appeared  to  him  that 
the  sole  issue  to  go  oefore  the  jury  w&? 
"How  muoh." 

His  Lordahip  assented. 

Mr.  Upington  then  called  eyidence. 

Eustace  Pillans,  horticultural  assistant 
in  the  Agricultural  Depiurtment,  said  }fe 
found  that  about  700  trees  w^re  burnt 
on  the  pilaintiff'a  ground,  but  he  did  not 
inclode  in  iiis  count  any  trees  which 
hsd  not  been  singed  or  destroyed,  and 
which  stood  in  toe  Kloof.  There  was 
only  a  small  number  of  scarlet  flower- 
ing gums  on  the  ground;  he  should 
lay  that  nothing  like  150  had  been  grow- 
ing on  the  ground.  He  thought  £150 
woold  be  sufficient  to  replant  the  700 
gum  trees  and  keep  them  for  twelve 
months— sood,  strong  trees  in  tins,  suoh 
trees  as  they  could  get  from  Tofcai. 

Cross^Kamined  by  Mr.  Se&rle:  Wit- 
ness did  not  think  the  trees  would  re- 
qoiie  much  watering  alter  the  firat 
twelve  months.  Hss  gospel  of  tree-plant- 
ing wss  rather  different  to  some  people's. 
Witness's  estimate  of  700  trees  did  not 
inclode  partially-scorched  trees,  which 
had  since  revived.  He  would  not  call 
the  box  thorn  "  a  tree " ;  it  might  be 
placed  in  the  Government's  catalogue, 
hot  be  scarcely  thought  it  would  be 
called  a  tree. 

Mr.  Searle:  You  put  down  in  your 
estimate  the  excavating  of  the  holes  at 
foarpenoe  per  hole.  1  suppose  that 
woold  be  by  convict  labour? 

Witness:   Oh,  no. 

Further  crose-examined,  witness  said 
that  he  allowed  in  his  estimate  £70  for 
loss  of  trees  until  the  new  trees  were 
grown.  He  had  not  included  anything 
in  his  estinkate  for  supervision  for  the 
first  year. 

Re-examined:  Witness  thought  that 
in  four  or  five  ^ears  they  could  get  the 
place  back  again  to  its  old  state.  He 
considered  that  lOb.  a  week  would  be  a 
fair  allowanoe  for  a  man  to  water  the 
trees. 

Joseph  WiHiam  Matthews,  florist, 
Ckpe  Town,  said  that  he  found  about 
730  trees  damaged  or  destroyed  on  the 

JlaintilTs  ground.  He  had  tendered  to 
Ir.  Warner  to  replant  1,000  trees,  and 
look  after  the  trees  for  a  period  of  two 
yean,  for  £180.  That  amount  did  not 
inclode  the  cost  of  water.  He  was  pre- 
pared to  repeat  the  tender  to  Mr.  vian 

Croas-examined :  Witness  had  been 
mostly  engaged  in  laying  out  gardens; 
he  had  not  had  charge  of  any  planta- 
tion. 


Charlee  P.  Behr,  aiaotknieeir,  Oape 
Town,  said  that  he  thought  it  wsa  im- 
possible to  value  the  ground  as  building 
lots.  He  took  the  seven  lots  as  a 
whole  to  be  of  the  value  of  £525.  Tak- 
ing the  whole  ground,  he  thought  the 
vuue  would  be  enhanced  if  tne  trees 
were  standing.  As  building  lots,  be  con- 
sidered the  ground  would  not  be  of  any 
more  value  beoauee  of  the  trees.  He 
had  taken  the  plots  at  80  feet  by  00 
feet. 

Cross-examined:  He  had  deducted  40 
feet  from  the  lots  for  a  road. 

Mr.  Searle :  But  there  is  no  load. 

Witness :  I  was  told  that  there  was. 

Bv  the  Court:  Takins  the  ground  as 
a  whole,  the  trees  would  make  a  differ- 
ence in  the  value  of  £100. 

Joseph  Fock,  valuator,  said  that  three 
yesn»  ago  he  was  valuer  for  the  Sea 
Point  Council,  and  he  valued  the  house 
where  Mr.  Warner  now  lesided,  and  the 
whole  of  the  eleven  lots  of  ground,  at 
£2,500.  He  had  valued  the  land  tiiat 
day  (Wednesday)  for  the  purposes  of  the 
present  case.  He  valued  the  ground  as 
buildinff  lots  at  £775-^thme  lots  at  £150 
each,  tmee  at  £100  each,  and  one  (in 
the  ravine)  at  £25.  The  trees  were  a 
nuisance  really,  if  they  were  going  to 
build. 

Cross-examined:  He  had  taken  the 
value  on  the  basis  of  what  the  lots 
would  fetoh  at  public  auction. 

Mr.  Upington  dosed  his  case. 

Counsel  having  addressed  the  jury, 

Maasdorp,  J.,  summed  up  on  the 
facts. 

The  jury,  without  leaving  the  box,  in- 
timated that  they  found  for  the  plaintiff 
for  damages  in  the  sum  of  £250,  the 
auKMint  tendered. 

Judgment  wsa  entered  for  the  plaintiff 
for  £^0,  defendant  to  pay  costs  to  date 
of  plea,  and  plaintiff  to  pay  costs  subse- 
quently incurred. 

[Plaintiff's  Attorneys:  Van  Zyl  and 
Buiasinn^ ;  Defendant's  Attorneys : 
Fairbridge,  Ardeme,  and  Lawton.] 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Sir  John  Buchanan.] 


ADMIBSIOVB. 


1905. 
May  4th. 


Mr.  Sutton  moved  for  the  admission 
of  David  Duncan,  Stormont,  la  an  ad- 
vocate. 

Application  nanted,  the  oaHi  to  be 
taken  before  the  Regietrar  of  the  Eas- 


i 


3(.0 


"CAPE  TIMES"   LAW  REPORTS. 


tern  District  or  the    Registrar   on  Cir- 
cuit. 

Mr.  J.  E.  R.  de  VillieDS  moved  for 
the  admission  of  Albert  Reinhold  Fleis- 
chack  as  an  attorney. 

Application  granted  and  oaths  adminis- 
tered. 

Mr.  P.  S.  T.  Jones  moved  for  the 
admission  of  William  Oharlos  Eaton 
Stent  OA  a  conveyancer. 

Application  granted  and  oaths  adminis- 
tered. 


PROVISIONAL   ROLL. 


PITTMAN  V.  MUTTER. 


I        19()5. 
(  May  4th. 

Mr.  Douglafi  Buchanan  movod  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £600,  with  interest  and  costs,  and 
that  the  property  specially  hypothecated 
be  declared  executable.  The  bond  had 
become  duo  by  reason  of  non-payment 
of  interest. 

Granted. 


MALHBSBURY  BOARD  OF  EXECUTORS   V. 
LAUBSCHER. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  three  mortgage 
bonds,  with  interest  and  coats,  and  that 
the  property  specially  hyix)theoated 
under  the  two  second  bonds  be  declared 
executable. 

Granted. 


CASTLE  WINE  AND   BRANDY  CO.   V. 
HEINEMAN. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  promissory  note  for  £76  10s., 
and  for  judgment  under  Rule  329d  for 
£52  88.  9d. 

Granted. 


LINDSAY  V.  FORD  AND  BTOKELL. 

Mr.  p.  S.  T.  Jones  moved  for  judg- 
ment on  an  acknowledgment  of  debt 
for  £270,  with  interest  and  costs,  less 
£6  15s. 

Granted. 


VAN  BYNBVELD  V.  OOUS. 

Mr.  Alexander  moved  for  provisional 
eentenoe  for  £600  on  a  mortgage  bond, 
with  interest  and  costs,  and  that  th** 
property  specially  hypothecated  be  de- 
clared executable.  The  bond  bi^came  due 
by  reason  of  non-payment  of  interest. 

Granted. 


LEWIS  V.   RAPTON. 

Mr.    Swift  moved  for  nrovirional  sen- 
tence on  a  mortgage  Ijona  for  £400,  with 


interest  and  costs,  and  that  the  property 
hypothecated  be  declared  executable. 
Granted. 


MYERS  AND  GOLEM  AN  V.  DB  VILLI  ERS. 

Mr.  Roux  moved  for  provi&ion&I  sen- 
tence on  a  mortgage  bond  for  £250,  with 
interest  and  costs.  The  bond  became 
due  on  15th  April. 

I'he  defendant  appc&r<>d,  and  applied 
for  a  stay  of  execution  for  a  couple  of 
months  to  give  him  time  to  meet  the 
bond. 

Buchanan,  J.,  said  he  could  not  force 
tlio  plaintiffs  to  give  him  time,  and  sug- 
gested that  the  defendant  should  ap- 
pioach  the  plaintiffs'  attorneys. 

Order  granted. 


BTEYTLER  AND  00.  V.  SAND. 

Mr.  Close  moved  for  provisional  sen- 
tence for  £1,000  on  a  mortgage  bond, 
which  became  duo  by  reason  of  non-pay- 
ment of  interest,  and  instalments,  and 
that  the  property  be  declared  executable. 

The  defendant  appeared  in  court  and 
asked  for  time,  and  he  was  referred  to 
tho  plaintiffs,  or  their  attorneys. 

Granted. 


BUYSKE8  V.  MARGOLIN. 

Mr.  Gutsche  movod  for  provisional  seii- 
terco  on  a  mortgage  boncf  for  £910,  with 
interest  and  costi>,  and  that  the  property 
£!ix^cially  hvpotliecated  be  declared  exe- 
cutable. Ihe  Iwnd  became  due  by  rea- 
son of  non-payment  of  interest. 

Granted. 


HIJTT  AND  HRRBINO   V.  LB  GRAKUB. 

Mr.  Sutton  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as  insol- 
vent. 

Granted. 


DK  VILLIBRS  V.  BOTHA. 

Mr.  Rowson  movod  for  provisional  sen- 
tence for  £83  17s.  6d.,  due  on  a  promis- 
sory note. 

Granted. 


VAN  NIEKERK  V.  ALLBB. 

Mr.  P.  S.  T.  Jones  moved  for  provi- 
sional f=ontonco  on  a  mortgage  bond  fur 
£300,  due  by  reason  of  non-payment  of 
interest,  and  that  the  pro£)erty  l^  declar- 
e'l  exoru table,  and  for  judgment,  under 
Rune  329d,  for  £47,  money  lent. 

Granted. 


E8TATB  PRITCHARD  V.  BLYTH. 

Mr.  Swift  moved   for  provisional  sen- 
tence on  a  mortgage  lx>nd  for  £750,  with 


r 


"CAPE  TIMES"  LAW  AEPOftTS. 


351 


interest  and  ooets,   and  for  £3  lis.   9d., 
certain  cxpeitMs   incurred,   and  that  tho 
property  specially   hypothecated    be   de- 
clared executable. 
Granted. 


WILSON  AND  CO.  V.  PFUHL. 

Mr.  Sutton  moved  for  tho  final  adjudi- 
cation of  the  defendant's  estate  aa  insol- 
Tent. 

Granted. 


TiaSKB  V.  G0BDHA.L8. 

Mr.  Alexander  moved  for  judgment, 
nnder  Rule  329d,  for  £80,  rent  tor  six 
months,  with  interest  and  costs. 

Granted. 


BOVDEBO^H  HIGH  SCHOOL  V.  TAIT. 

Mr.  P.  S.  T.  Jonee  moved  for  judg- 
ment for  £31  12s.  lOd.,  fees  due  for  tlie 
tuition  of  the  defendant's  children,  with 
luieTat  and  co;st8. 

Granted. 


COLOHIAL  GOVEBNMENT  V.  MAIDMENT 
AND  DE  BBER. 

Mr.  Howel  Jones  moved  for  judgment 
for  £48  3«. 
Granted. 


VAN  DBB  MEBWB  V.  GOLDBEBG. 

Mr.  Roux  moved  for  judgment,  under 
Rule  329d,  for  £27,  the  purchase  price  of 
two  hones  sold  to  the  defendant,  with 
mterest  and  coats. 

Granted. 


GENERAL  MOTIONS. 


Rt  parte  THE  TOWN  COUN-  j        1905. 
CIL  OP  BIYER8DALB.  (  May  4th. 

Mr.  Sikton  moved  for  an  order  amend- 
ing the  description  of  certain  property 
in  a  rale  which  was  issued  under  tho 
Derelict  Lands  Act. 

Application  granted,  and  an  order 
granted  for  the  saJo  of  these  properties, 
the  rule  to  be  advertised  as  before  and 
returnable  on  the  8th  June. 


JSr parte  CAPE  GOVERNMENT  RAILWAYS. 

Mr.  Howel  Jones  moved  to  make 
absolute  a  rale  granted  under  the  Dere- 
lict Lands  AcL 

Rule  made  absolute,  to  the  extent  of 
the   fand   specified  in       the       consent 


OBBEB  V.  MABTBBTON. 

This  was  the  return  day  of  a  rule 
nisi  calling  on  the  defendant  to  show 
cause  why  he  shall  not  be  sued  in 
forma  jtauperis  for  a  full  statement  of 
the  petitioner's  affairs. 

The  affidavit  of  Thomas  Maaterton, 
who  was  the  assignee  of  the  estafte, 
set  out  that  the  creditors  agreed  to 
accept  15s.  in  the  £,  and  the  balance 
was  to  go  to  the  maintenance  of  the 
petitioner's  wife  and  himself.  The  re- 
spondent was  always  willing  to  give  tho 
applicant  every  facility  o!  examining 
the  affairs  of  the  estate.  The  respon- 
dent would  gladly  welcome  an  action, 
but  he  feared  that  the  applicant,  who 
was  unable  to  pay,  would  mulct  hdm 
in  heavy  costs.  The  respondent  was 
quite  prepared  to  submit  everything  to 
an  accountant  appointed  by  the  Court. 

Mr.  Roux  was  for  the  applicant,  and 
Mr.  Gardiner  was  for  the  respondent. 

Mr.  Roux  said  he  was  instructed  to 
consent  to  tho  Court  appointing  an 
accountant.  The  replying  affidavit  of 
the  petitioner  set  out  that  the  defendant 
had  persistently  refused  to  allow  de- 
ponent to  examine  the  books.  Counsel 
asked  that  the  petitioner  bo  allowed  to 
be  present  when  the  books  were  exam- 
ined. 

An  order  was  granted  appointing  Mr. 
Mavnard  Nash  as  referee  to  go  into  tho 
booKS,  to  see  what,  if  anything,  was 
due  to  the  applicant,  the  referee's  foes 
to  bo  paid  out  of  the  balance  in  the 
possession  of  the  respondent. 


VAN   ROOTAN  V.  FBLE. 

This  was  the  return  day  of  a  rule  nifi 
ordering  the  respondent  not  to  part 
with  two  cattle,  and  authorising  the 
Deputy-Sheriff  to  get  possession  of  the 
cattle  pending  an  action  to  recover 
them  from  the  ree^ndent,  who  wrong- 
fully took  them  mto  his  possession. 
Counsel  now  applied  for  an  order 
compelling  the  respondent  to  immedi- 
ately restore  the  animals  to  the  appli- 
cant. 

Mr.  Struben  was  for  the  applicant,  and 
Mr.  J.  £.  R.  de  Yilliers  was  for  the 
respondent. 

Buohanan,  J.,  said  it  would  be  bet- 
ter to  let  the  Magistrate  of  Uniondale 
settle  the  question. 

It  was  ordered  that  an^  action  be 
brought  by  the  applicant  in  the  Court 
of  the  Resident  Magistrate  of  Union- 
dale,  to  declare  the  pwnership  of  the 
cattle,  apd  upon  such  judgment  the 
Deputy-Sheriff  to  restore  tne  oattle  to 
the  right  owner,  the  costs  to  follow  the 
result. 


BOBIKI  V.  WHYTE. 


This  was  an  application  for  an  order 
on   the   respondent  compelling   him    to 


362 


t( 


CAPE  TIMES''  LAW  BEPOETS. 


deliver  up  oeriain  dooumaatfl.  in  order 
that  transfer  might  be  passea  of  a  cer- 
tain farm  in  East  Griqualand. 

Mr.  Pyemont  waa  for  the  applicant, 
and  Mr.  Rouz  waa  for  the  respondent. 

Order  granted  as  pr&jed,  the  respon- 
dent to  forthwith  dehver  up  to  the 
applicsipt  the  title-deeds  in  his  poasea- 
sion.  and  to  pay  the  coats  of  the  mo- 
lion. 


Ex  parte  willembb. 

This  waa  the  return  day  of  a  rule  nisi 
calling  on  the  respondent  to  show 
cause  yrhy  he  should  not  be  ejected 
from  certain  premises  at  Stellenbosch, 
and  counsel  now  moved  to  make  the 
rule  absolute. 

Mr.  Roux  for  applicant ;  Mr.  Gardiner 
for  respondent. 

Rule  made  absolute,  with  coats. 


RATMEB  AND  BIMAN  V.   RBCARDO. 

This  waa  an  application  to  make 
absolute  a  rule  restraining  one  Mosko- 
vitch  from  paying  out  certain  money 
pending  an  action  to  be  brought  by 
the  petitioners  for  the  commission  ^a 
brokerage  on  the  sale  of  certain  premi- 
ses in  Pnmrose-street.  Affidavits  were 
put  in  to  the  effect  that  the  respondent 
would  leave  the  country  as  aoon  as  the 
balance  of  the  purchase  price  waa  paid 
him.  The  replying  affidavit  of  the  re- 
spondent stated  that  he  never  gave  the 
applicants  any  instructions  to  sell  the 
property,  and  that  he  had  no  intention 
of  leaving  the  country. 

Mr.  G«.rdiner  waa  for  the  applicant  and 
Mr.  Sutton  for  the  respondent. 

Buchanan,  J. :  Without  expressing 
any  opinion  as  to  the  merits  of  tne  oaae, 
the  order  will  be  discharged,  with  leave 
to  sue  for  the  costs  in  the  action. 


EOB  parte  THE  KUILS  RIVSR  PUBLIC 
SCHOOL. 

This  waa  an  application  to  make  ab- 
solute a  rule  enabling  the  petitioners, 
the  committee  or  board  of  management 
of  the  pubtio  school,  to  pass  transfer  of 
the  school  propertv  to  the  Consistory 
of  the  Dutch  Reformed  Church  at 
Kuils  River.  The  Registrar  of  Deeds 
refused  to  pass  transfer  without  an 
order  of  Court.  Oouns^,  after  out- 
lining the  history  of  the  school,  urged 
that  the  money  that  established  the 
school  came  from  the  members  of  the 
Dutch  Reformed  Church. 

The  affidavit  of  Dr.  Must,  the  Super- 
intendent-General of  Education,  set  out 
that  the  school,  which  had  since  1869 
been  conducted  aa  an  undenominational 
school,  had  received  granta  from  the 
Government,  and  that^  it  was  always 
looked  upon  as  a  pubUo  school  Toe 
school-room  had  alao  been  used  for 
servioee  of  the  English  Church.  It 
would  be  entirely  wrong  to  transfer 
such  ptroperty  to  the  Dutch  Reformed 
Churon  or  any  other  church. 

Mr.  McGregor  was  for  the  applicants 
and  Mr.  Howel  Jonee  appeared  to  op- 
pose on  behalf  of  the  Superintendent- 
General  of  Education. 

Counsel  having  been  heard  in  argu- 
ment, 

Buchanan,  J. :  Under  the  regula- 
tions, the  Grovemment  have  contri- 
buted to  the  upkeep  of  the  school,  and 
it  is  clear,  if  it  had  not  been  a  pul^ 
undenominational  school,  the  legulatHMis 
would  not  have  allowed  these  contribu- 
tions. In  the  title  deeds  it  will  be 
seen  tihat  the  board  ol  management 
stand  in  the  position  of  trustees.  It 
would  be  a  grave  deviation  from  the 
trust  to  enable  the  board  of  manage- 
ment of  an  undenominational  publio 
school,  which  has  been  raised  by  publio 
funds,  to  transfer  it  away  to  whoever 
they  liked.  Under  the  circumstances,  the 
rule  must  be  discharged. 


TABLE  BAY  HARBO0R  BOARD  V.  LIQUI- 
DATORS COLEMAN  AND  CO. 

This  was  an  application  to  have  a 
certain  matter  referred  to  arbitration, 
and  it  came  before  the  Court  because 
the  respondents  could  not  agree  to  the 
deed  of  submission. 

Mr.  Searle,  K.C.,  was  for  the  ap- 
plicants, the  liquidators  of  A.  J.  Cole- 
man and  Co.,  and  Mr.  Close  was  for  the 
respondents. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts 

Buchanan,  J.,  I  cannot  make  an 
order  compelling  the  respondents  to  go 
to  arbitration.  As  to  the  costs,  they 
will  stand  over  for  the  decision  of  the 
case. 


Lx  parte  bbtatb  dbuby. 

Mr.  P.  Jones  moved  for  leave  to  pass 
a  general  covering  bond  on  propertv 
in  which  certain  minora  were  interested. 
The  Master's  report  -was  favourable. 

Granted. 


Ex  parte  OREEMING. 

The  applicant  appeared  in  person,  and 
Mr.  Alexander  was  for  the  Law  Society. 
The  petitioner  renewed  his  application 
for  reinstatement  as  an  attorney  of  the 
Supreme  Court.  Mr.  Ak^xander  applied 
for  a  further  postponement  until  June  1 
in  order  to  get  material  particulars  of 
charges  against  the  applicant,  in  order  to 
oppose  the  application. 

Buchanan,    J.:    While    oharges    are 
hanging  over  the  head  of  an  attorney  of 


I( 


CAPS  TIMES"  LAW  REPORTS. 


35S 


the  Suprome  Court,  I  oaonot  see  my  way 
to  admit  him,  bufc  I  think  the  charges 
Blicnld  be  investig'ated  -within  a  reason- 
able time.  The  aJSdavits  must  be  served 
on  the  applicant  before  the  1st  June,  and 
tho  case  will  be  postponed  until  the  8th 
Jane. 


SUPREME  COURT 


FIRST    DIVISION. 


[Beforethe  Hon.  Mr.  Justice  Maasdokp.] 


TRIAL  CAUSES. 


RING  V.  BING. 


I 


1905. 
May  6th. 


This  was  an  action  brought  by  Josi:i«> 
Rinff  again«it  her  husband,  George  Ring, 
for  restitution  of  conjugal  rights,  failing 
which,  a  decree  of  divorce.    Mr.  Joubcrt 
was  for  the  plaintiff,   and  the  dofcndan*^- 
was  in  default.     The  parties  were   mar- 
ried at  Kimberley  in  April,  1900.     They 
remained  at  Kimberley  for  a  few  weeks, 
when  her  husband  -went  to  Bloemfontein, 
where  the  plaintiff  ^subsequently  followed 
him,   and   found  him    living    with  some 
very  undesirable  people.     In  November, 
1900,  she  left  Bloemfontein,  as  5ihe  was 
starving,  and  the  doctor  ordered  her  to 
return  to  her  mother  at  Kimberley.  The 
defendant  worked  at   intervals,  but  sent 
the  plaintiff    no    money.      Towards   the 
end   of   1900  the   defendant   joined    the 
ocottish  Horse,  and  subsequently  went  to 
Johannesburg,  where  several  letters  were 
sent  to  the  defendant,  but   he  failed  to 
J^ply.    A  letter  was  sent  to  him  through 
hia  sister,  asking  him  to  return,   but  he 
refnsed  to    do  so.     In    December,    1903, 
the  defendant  wrote  the  ]>laintiff  to  the 
effect  that  he   had   committed  adultery, 
and  that  he  had  no  intention  of  return- 
ing to  her.    He   waa   totally  indifferent 
w  to  what  course  she   pursued.     There 
was  a  child  eighteen   monthi)  old  of  the 
marriage,  and  plaintiff  claimed    custody 
of  it 

Decree  of  restitution  granted,  the  de- 
fendant ordered  to  return  by  the  1st 
June,  or  to  show  cause  on  the  15th  June 
why  a  decree  of  divoroo  should  not  bo 
granted. 

Po8Ua  (June  15th).  The  rule  was 
made  absolute. 


WEBNER  ▼.  MILLS 


I  Ml 


19a5. 
May   5th. 
15th. 

Personal    injury  —  Contributory 
negligence. 

This  was  an  action  to  recoirer  £2,500 
damagce  for  the  defendant's  negligence 
in  not  keening  a  brick-pressing  machmo  in 
proper  order,  by  which  the  plaintiff  lost 
a    hand. 

The  plaintiff,  in  his  declaration,  set 
out  that  when  it  was  necessary  to  clean 
the  plunger  it  wa^  sufficient  to  shift  a 
band  from  a  fixed  pulley  to  a  looeo  pul- 
ley On  the  10th  November  he  waa  en- 
deavouring to  take  out  a  little  clay,  when 
out-  of  the  forks  snapped  and  tne  acci- 
dent occurred.  The  engine  had  a  gover- 
nor, but  no  belt,  which  rendered  it 
useless.  The  machine  was  also  out 
of  the  level.  The  plea  set  out  that  the 
plaintiff  acted  contrary  to  definite  in- 
structions, and  that  the  accident  hap- 
pened through  his  own  negligence.  The 
machine  was  in  perfect  order  prior  to 
the  accident. 

Mr.  Gardiner  was  for  the  plaintiff,  and 
Mr.  P.  S.  T.  Jones  was  for  the  defen- 
dant. 

Theodore  Werner  stated  that  at  the 
works  at  Kloof-road  he  worked  under 
a  Mr.  Pickering,  who  was  in  charge  of 
the  brickfields.  On  the  10th  November 
the  machine  was  out  of  order,  it  being 
necessary  to  clean  it  every  few  minutes. 
At  first  when  he  wanted  to  clean  the 
machine  he  stopped  the  engine,  and 
the  defendant  told  him  that  that  waa 
a  waste  of  time  and  labour,  and  said  it 
would  be  sufficient  to  slip  the  band  on 
to  a  loose  pulley  and  so  stop  the 
machine.  \Vitne8s  reported  the  state 
of  the  machine  to  Mr.  Mills,  and  the 
defendant  promised  to  have  it  made 
right,  but  he  had  never  done  so.  ,The 
defendant  very  often  saw  the  plaintiff 
put  his  hand  m  to  clean  the  die.  Per- 
sonally he  could  supervise  other  men, 
but  he  oould  not  now  make  bricks  him- 
self. The  cause  of  the  delay  in  bring- 
ing the  action  was  a  promise  from  the 
defendant  that  be  would  always  find 
him  employment  After  a  couple  of 
months  the  defendant  said  he  would 
have  to  dispense  with  witness's  ser- 
vices, aa  trade  was  too  bad.  Witness 
knew  of  no  other  way  of  cleaning  the 
die. 

Cross-examined :  Witness  was  in 
charge  at  Kloof-road  before  Pickering 
came.  Pickering  relieved  witness  of 
the  managership  of  the  brickfield.  I^r. 
Bygott  did  not  explain  the  machine  to 
witness  and  warn  him  not  to  clean  it 
with  his  hands.  There  was  an  iron  hoop 
which  was  used  when  the  material  was 
hard,  but  the  iron  hoop  could  not  be 
used  round  the  corners.  He  denied  that 
he  was  cleaning  the  die  while  the  ma- 
chine was  in  motion.  The  defendant 
said    he   was    sorry    he  0(9uld    not    pay 


354 


"CAPE  times  "  LAW  &E^0ftt6. 


witness  his  wag^es  durii^r  the  time  be 
was  in  the  hospital.  The  defendant 
said  that  the  accident  would  not  pre- 
vent witness  earning  his  living  from 
him.  Witness  had  failed  to  pay  cer- 
tain labourers,  but  that  was  due  to  the 
defendant's  action  in  breaking  the  con- 
tract. Just  prior  to  the  accident  Hoff- 
nuui  did  not  pull  witness  away  from 
the  machine  and  warn  him  that  b^ 
would    lose  his  hand. 

Re-examined:  There  waa  only  the 
boy  present  when  the  accident  occarred. 

Frank  Palmer,  an  engine-driver,  who 
was  in  the  defendant's  employ  at  the 
time  of  the  accident,  said  the  plaintiff 
was  manager  until  Pickering  came. 
Mills  was  acquainted  with  the  faulty 
state  of  the  belt.  Without  a  governor 
belt  the  engine  would  race.  The  de- 
fendant was  told  by  witness  that  the 
machine  was  out  of  the  level.  After 
the  accident  he  found  that  one  of  the 
pins  was  broken. 

Cross-examined:  The  increased  speed 
was  liable  to  break  the  fork.  ^  He 
did  not  say  to  anyone  that  be  believed 
the  accident  was  caused  through  the 
breaking  of  the  fork.  It  w«s  quite 
I>o98ible  that  witness  warned  the  plain- 
tiff against  the  dangerous  process  of 
cleaning  the  machine.  The  plaintiff 
to  witness's  knowledge  had  cleaned  the 
machine   while  it  was    working. 

Re-examined:  He  had  aleo  seen 
Pickering  clean  the  machine  while  the 
plunger  was   going   up  and  down. 

John  Benson,  the  boy  who  was  pre- 
sent at  the  time  of  the  accident,  eaid 
that  before  the  plaintiff  started  to  clean 
the  noachine  he  stopped  it,  and  witness 
held  the  knob.  The  belt  had  slipped 
between  the  two  pulleys.  After  the  die 
had  been  released  witness  noticed  that 
one  of  the  i)iii8  was   broken. 

Cross-examined :  Witness  had  seen 
the  plaintiff  clean  the  machine  while 
it  was  in  motion,  but  on  the  oooasion 
of  the  accident  the  plaintiff  stopped  it. 

Mr.  Miller,  engineer,  stated  that  in 
his  opinion  the  pins  were  very  weak 
It  would  be  safe  to  clean  the  machine 
while  the  belt  was  running  on  the  loose 
pulley.  As  far  as  brickmaking  ma- 
chinery went,^  he  found  that  generally 
it  was  very  indifferently  erected.  The 
forks  seemed  to   him  to  be  very  weak. 

Cross-examined :  The  belts  very  often 
cut  through  the  forks.  The  machine 
appeared  to  be  a  fairly  good  one. 

Mr.   Gardiner  closed  his   case. 

The  witness  Palmer  (recalled  by  His 
Lordship)  stated  that  after  the  aooident 
he  got  a  new  governor  belt;  the  ma- 
chine was  wooded  round  for  safety. 
The  day  the  accident  happened  there 
was  no  governor  belt  on  the  engine. 

Samuel  Mills^  defendant,  stated  that 
Pickering  was  introduced  to  him  as  a 
practical  brickmaker,  and  he  was  sent 
up  to  Kloof-road  brickfields,  but  he 
was  not  to  interfere  with  the  plaintiff, 
who  was  only  there  until  the  plant  for 


the  oontraot  at  Sea  Point  arrived.  By- 
gott,  who  showed  the  plaintiff  how^  to 
work  the  machine,  warned  him  against 
attempting  to  clean  the  die  while  the 
plunger  was  in  motion.  Ihe  plaintiff 
was  shown  how  to  dean  the  machine 
by  means  of  a  piece  of  hoop  iron.  The 
fork  was  not  broken  a  couple  of  days 
after  the  accident.  Th^  plaintiff,  m 
reply  to  witness,  said  that  he  did  not 
blame  him  for  the  aooident  Witness 
promised,  without  recognising  any  lia- 
bility, that  he  would  endavour  to  find 
him   employment. 

Cross-examined:  Even  if  a  machine 
was  in  perfect  order,  there  was  always 
a  danger  of  the  belt  slipping.  It  was 
correct  that  Palmer  told  nim  that  the 
machine  was  not  quite  level.  Palmer 
drew  his  attention  to  the  governor 
belt  being  considerably  worn.  Within 
four  days  of  the  accident  he  examined 
the  machine  and  found  nothing  broken. 
The  only  time  he  ever  saw  the  plain- 
tiff clean  the  machine  was  while  it  was 
in  motion. 

Nicholas  HoffuMn,  brickmaker,  who 
was  in  the  employ  of  Mills  in  Novem- 
ber, 1903,  stated  at  the  time  of  the  acci- 
dent he  was  wheeling  bricks  from  the 
machine.  Previous  to  the  accident  wit- 
ness saw  the  plaintiff  clean  the  die  with 
his  hand,  and  pulled  him  away  from 
the  machine,  telling  him  that  he  would 
get  his  hand  off  if  he  continued  that 
practice.  A  minute  or  so  later  he  heard 
a  shout,  and,  running  back,  saw  the 
plaintiff  s  hand  caught  in  the  machine. 
There  was  some  delay  before  the  men 
were  able  to  reverse  the  maohine,  and 
so  release  the  plaintiff's  hand.  The 
machine  was  worked  five  minutes  after 
the  accident.  The  same  machine  con- 
tinued to  work  until  the  works  were 
closed  down.  At  Sea  Point  witBess  saw 
the  plaintiff  clean  the  knives  of  the 
pug  with  a  shovel  while  the  machine 
was  working — a  very  dangerous  prac- 
tic«». 

Cross-examined  by  Mr.  Gardiner: 
Witness  never  saw  a  piece  of  iron  put 
in  the  ground  to  guide  the  belt  It 
was  necessary  to  use  a  block  of  wood 
to  keep  the  plunger  from  coming  down. 
The  first  he  saw  of  the  broken  fork  was 
a  month  after  the  accident  Witness 
alwaj;6  used  the  hoop  iron  to  clean  the 
machine. 

Re-examined  by  Mr.  Jones:  The 
weight  of  the  plunger  would  bring  it 
down  even  if  the  belt  was  on  the  loose 
pulley.  If  the  fork  had  been  broken 
at  the  time  of  the  accident,  the  lever 
could  not  have  worked  the  transfer  from 
the  fast  to  the  loose  pulley. 

Bv  Maasdorp  J. :  At  present  he  was 
working  for  the  defendant 

Witness  told  Pickering  the  day  of  the 
accident  what  he  had  seen. 

Thomas  Pickering,  brickmaker,  who 
was  engaged  by  the  defendant  in  No- 
vember, 1903,  to  work  at  the  Kloof- 
road    works,   stated   that    witness    was 


"CAP^  TbiBS**  L4W  REK^Td. 


3^ 


Mf  «g«d  to  maiiaee  Um  worlv  ftf  tor  Wer- 
ner kit.  The  day  of  the  accident  wit- 
Den  w«8  standing  outside,  when  he 
heard  a  scream,  and,  rushing  in,  he  saw 
the  i^aintiff  caught  in  the  machine.  Wit- 
oMs  Mped  to  release  the  plaintiff,  and 
had  his  hand  bandaged.  There  was  a 
pieoe  of  a  brick  in  the  machine,  on 
which  there  was  an  impreasion  of  the 
plaintiff^s  hand,  but  witness  threw  it 
sway.  The  machine  wsa  worked  after 
the  accident,  and  witness  was  certain 
that  the  fork  was  not  broken.  The 
bk)ck  of  wood  was  only  used  as  an  extra 
piccaution.  Witness  had  seen  Werner 
clesn  the  die  with  his  nand  while  the 
machine  was  working,  and  while  it  was 
stopped.  Witness  cautioned  him  of  the 
danger  in  putting  his  hsnd  in  while  the 
phinger  was  in  motion.  At  Sea  Point 
the  plaintiff  used  a  shovel  to  clean  the 
pug,  and  witn€iss  considered  that  was 
dangerous  to  the  man  and  to  the 
machine.  The  fork  was  broken  a  month 
after  the  accident. 

Croos-ezamined  by  M|r.  Grsrdiner: 
When  he  was  asked  to  give  evidence 
he  was  in  Mills's  employ.  After  the 
accident  they  had  a  trial  every  morning 
witn  the  machine.  Witness  never 
cleaned  it  with  his  hand.  Witness  was 
getting  £1  a  day,  and  Werner  Sis.  a 
day,  and  yet  he  was  under  Werner. 
There  never  was  a  piece  of  iron  put 
in  the  ground  to  keep  the  belt  from 
slipping.  The  belt  mi^ht  have  been 
running  when  he  examined  the  forks. 
He  could  not  explain  whv  he  put  a 
piece  of  wood  under  the  plunger  when 
be  cleaned  the  machine.  He  believed 
there  should  be  no  danger  of  the  plun- 
ger coming  down  when  the  belt  was 
slipped  frona  the  fast  to  the  loose  pulley 
if  the  nsachine  was  in  good  order.  Short- 

g  after  MiUs's  return  from  Oaledon, 
slmer  reported  to  him  that  the  fork 
was  broken. 

John  Bygott,  practical  engineer,  said 
be  had  twenty-five  years'  experience  of 
that  particular  machine.  He  superin- 
tended the  erection  of  the  machine,  the 
working  of  which  he  explained  to  the 
plsintin,  and  cautioned  him  especially 
about  puiunff  his  hand  under  the  plun- 
ger. Mr.  Miller  did  not  understand  the 
working  of  that  particular  machine. 
The  blocks  of  wood  were  to  be  used 
to  keep  the  plunger  up.  The  same 
governor  belt  was  on  the  machine  now 
as  when  witness  handed  it  oyer.  The 
lever  was  designed  to  work  lightly,  but 
no  vibration  could  throw  it  over. 

Cross-examined  by  Mr.  Gardiner :  He 
left  the  machine  in  perfect  working 
order.  Every  belt  bad  a  bias  one  way 
or  the  other,  and  this  belt  was  true 
enough.  He  had  no  diplomas;  he  al- 
ways fought  shy  of  people  who  had. 
Except  that  it  was  exactly  at  the  top, 
the  plunger  was  bound  to  come  down 
when  the  belt  was  slipped  on  to  the 
loose  pulley.  The  governor  belt  might 
haTe   been    lengthaned.        The  blo^ 


of  wood  were  not,  as  a  rule,  supplied 
with  a  machine  of  that  deeoription. 

Mr.  Jones  dosed  his   case. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Maasdorp,  J. :  The  jplaintiff  alleges 
that,  by  reason  of  the  defendant's 
negligence,  the  accident  happened, 
and  he  claims  £2,500  damages. 
The  defendant  pleads  that  it  was 
necessary  in  stopping  this  machine 
that  proper  care  and  caution  should 
be  taken,  not  only  to  throw  the 
belt  on  to  the  loose  pulley,  but  also  to 
put  a  couple  of  blocks  of  wood  under 
the  cross-heads  which  are  attached  to 
the  plunger.  The  case  for  the  defen- 
dant is  that,  even  if  the  belt  is  over, 
and  the  blocks  not  used,  the  weight  of 
the  plunger  would  bring  it  down  and 
cause  injury  to  anvone  who  was  work* 
ing  at  the  die  at  the  time.  Now,  it  is 
necessary  to  inquire  whether  the  acci- 
dent happened  in  the  way  it  was  stated 
to  have  happened  by  the  plaintiff,  or 
whether  the  defendant  is  correct  in 
saying  it  arose  from  the  negligence  of 
the  plaintiff  himself.  To  support  the 
defendant's  case  as  to  the  occurrence  on 
the  dav  in  question,  only  one  witness 
was  called.  He  was  a  little  boy  help- 
ing at  the  working  of  the  machine. 
That  little  boy  states  he  drew  the  lever 
back  to  throw  the  belt  on  to  the  loose 
pulley.  He  placed  a  block  behind  the 
lever  to  prevent  it  coming  back  again, 
and  notwithstanding  these  preoautions, 
the  machine  was  set  in  motion  by  the 
belt  becoming  attached  to  the  fast 
pulley.  With  regard  to  the  evidence  of 
the  boy  as  to  the  plaoing  of  a  block 
behind  the  lever,  I  must  say  that  that 
evidence  is  wholly  unsupported,  and  it 
is  material  to  see  whetner  the  boy  is 
truthful  in  that  respect.  Witnesses 
have  been  called  for  the  defendant,  who 
:state  that  it  is  wholly  unnecessary  to  put 
a  block  there,  as  the  lever,  if  left  alone, 
would  not  fly  back  again.  I  am  in- 
clined to  be^eve  that  the  boy  is  mis- 
taken in  stating  that  he  put  a  block 
behind  the  lever.  That  would  not  be 
done  in  the  ordinary  course  of  working. 
The  only  evidence  to  support  the  theory 
that  the  fork  was  broken  at  all  is  the 
statement  of  the  boy  that  he  discovered 
a  bit  of  iron  lying  under  the  machine, 
but  there  is  no  proof  that  this  was 
reallv  part  of  the  fork.  I  come  to  the 
conclusion  that  the  machine  was  in  mo- 
tion, not  because  the  belt  had  slipped 
back  to  the  loose  pulley,  but  because 
the  machine  was  never  stopped.       The 

Klaintiff  had  been  warned  not  to  put  his 
and  under  the  die  while  the  machine 
was  in  motion,  and  I  am  of  opinion  that 
the  accident  happened  through  the 
plaintiff's  own  negligence.  It  appears 
Mr.  Mills  wished  to  do  his  best  for  the 
plaintiff,  in  order  that  he  might  not  be 
utterly  thrown  out  of  employment,  and 
it  is  only  to  be  hoped  that,  notwithstand- 
j    ing  tbrae  prooeeaings.   If  il  should  be 


d56 


(I 


CAFB  TtMES"  LAW  tlEPOKTS. 


in  the  defendant's  power,  that  he  will 
do  something?  for  the  plaintiff.  Judg- 
ment will  be  given  for  the  defendant, 
with  costs. 

[Plaintiff's  Attorneys:  Syfrot,  Godlou- 
ton  and  Low ;  Defcudaiit's  Attorneys : 
Silberbauer,   Wahl  and   Fuller.] 


Er  parte  THE  B.8.A.  ASPHALT  OO. 

Mr.  P.  Jones  moved  as  a  matter  of 
urgency  for  an  order  restraining  Bridie 
and  Co.,  of  Strand-str<x>t,  from  removing 
any  goods  from  their  premises,  pending 
an  action  to  be  brought  against  them 
by  the  B.S.A.  Asphalt  Company  for 
£46  178.,  rent  due. 

Interdict  granted,  pending  an  action 
to  be  brought,  with  leave  to  the  reepou- 
dent  to  move  to  set  it  aside. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplet] 


EBRAHIM   V.  DEHNINO. 


f       1905. 
(May  oth. 

Mr.  Alexander  moved  as  a  matter  of 
urgency  for  an  order  requiring  the  re- 
spondent to  restore  possession  of  two 
snops,  of  which  the  applicant  alle||red 
that  he  had  been  deprived  by  sooliation. 
Counsel  said  that  the  responaent  had 
filed  an  affidavit  denying  the  forcible 
ejectment,  and  stating  that  he  had  ten- 
dered the  key  to  the  applicant.  He  de- 
sired to  file  answering  affidavits,  and 
asked  leave  to  mention  the  matter  later 
in  the  day. 

Mr.  J.  E.  R.  de  Villiers  was  for  the 
respondent. 

Hopley,  J.,  said  that  as  long  as  the 
respondent  had  returned  the  kev  to  the 
applicant,  he  failed  to  see  how  there  was 
anv  urgency  in  the  matter. 

Mr.  Alexander  said  that  the  question 
of  costs    waA  urgent. 

Hopley,  J.,  said  that  if  there  was 
any  urgency  counsel  might  mention  the 
matter  later  in  the  day,  but  it  was  diffi- 
cult to  see  how  there  could  be  any  ur- 
gency in  a  question  of  costs. 


BING  BROS.    V.    ESTATE 
WAB8EBFALL. 


r 


190.5. 
May  6th. 
1       „     8th. 
I      ,.     9th. 

Prescription  —  Title  to    land  — 
Transfer. 

Thi«  was  an  action  brought  by  King 
Bros.,  of  Durban ville,  against  the  ostate 
Wasserfall  to  determine  their  rights  in 
Inspect  of  certain  two  erven  on  the 
farm  Johanneefontein,   DurbanviUe. 


This  case  arose  out  of  an  ap- 
plioation  by  the  plaintiffs  under  the 
Derelict  Lands  Act.  The  plaintiffs 
claimed  a  number  of  erven  at  Juhanue^ 
fontein,  and  the  Court  granted  a  rule 
nvii  under  the  Derelict  Lands  Act.  On 
the  return  day  claims  were  made  to  one 
of  the  erven  on  behalf  of  the  estate  My- 
burgh  and  to  two  of  the  erven  on  beh^f 
of  the  estate  Wasserfall.  After  hearing 
counaeL  the  Court  directed  that  the  rule 
be  discharged,  with  costs,  so  far  as  con- 
cerned the  erf  claimed  by  the  estate 
Myburgh,  and  as  to  the  erven  claimed  by 
the  estate  Wamerfall.  the  rule  was  dia- 
oharged,  costs  to  abide  the  result  of  any 
action  the  petitioners  might  bring  to  de- 
cide the  owuerehip  of  the  land  claimed ; 
in  case  no  such  action  was  brought,  the 
petitioner  to  pay  the  costs.  Leave  was 
given  to  try  the  action  on  the  informa- 
tion before  the  Court.  Consequently,  •  wo 
pleadings  had  been  filed.  The  two 
erven  in  dispute  were  Nos.  3  and  7  of 
the  farm  Johannesfontetn. 

Mr.  Searle,  K.C.  (with  him  Mr.  Mc- 
Gregor), was  for  the  plaintiffs ;  Mr.  Bur- 
ton was  for  the  defendants. 

Mr.  Searle  briefly  traced  the 
changes  in  the  ownership  of  the 
ervem  from  the  year  1860,  among 
the  owners  having  been  Melt  van 
der  S^uy  (who  originally  divided  the 
land  into  erven),  Jacob  van  Renen  van 
Niekerk,  Hendrik  Cornelius  van  Nie- 
kerk,  K.  C.  Dekenah,  R.  M.  Roes.  Mr. 
Rowari,     and    Mrs.    Lawrensou.  The 

plaintiffs  bought  from  Mrs.  Lawrenson 
m  1902  the  two  erven  in  dispute.  They 
claimed  that  the  erven  were  their  pro- 
perty by  adverse  prescriptive  user  of 
their  predeoesfiors  in  title  and  themselves. 
The  two  lots  in  question  were  situate 
one  in  front  and  the  other  behind  the 
homestead. 

Mr.  Burton  asked  for  leave  for  the 
evidence  of  Mr.  Dekenah,  who  v?a8  an 
invalid,  to  be  taken  on  commission. 
Mr.  Dekenah  was,  he  said,  quite  un- 
able to  attend  the  court. 

Mr.  Searle  said  that  Mr.  Dekenah 
li\ed  at  Black  River,  on  the  Flats, 
and  he  should  raise  no  objection  to  the 
proposed  afmlication   for  a  oommiasion. 

Hopicjy,  J.,  said  that  he  also  had  a 
letter  from  Mr.  A.  J.  Smith,  sergeant 
of  police,  stating  that  he  had  been  sub- 
poanaed  as  a  witness,  but  that  he  was 
unable  to  attend  owing  to  illness. 

Mr.  Searle  said  that  he  did  not  pro- 
pose to  take  Mr.  Smith's  evidence  on 
commission. 

Mr.  Burton  applied  for  a  commission 
to  take  the  evidence  of  Mr.  Dekenah, 
and  suggested  the  name  of  Mr.  Advo- 
cate Giddy,  or  failing  him.  Advocate 
Greer,  as  commissioner. 

The  application  was  granted. 

John  King,  a  partner  in  the  firm  of 
King  Bros.,  said  that  they  purchased  the 

Sroperty,    Johannesfontein,    from    Mrs. 
.awrenson  for  £4,000  in  the  year  1901. 
Mr.  Montgomery  Walker  toc^  an  option 


"CAl»E  TlMfiS'*  LAW  HEPOHTS. 


35t 


Qo  behalf  of  witness,  it  being  arranged 
that  hia  (Mr.  Sling's)  name  was  not  to 
appear.  Witness  had  always  lived  in  the 
immediate  neighbourhood  of  the  farm. 
Witneis  purchased  from  Mrs.  Lawroasoa 
in  1901,  his  impression  being  that  he 
parchaeed  the  entire  block  of  land.  He 
had  since  made  inquiries,  but  he  had 
been  unable  to  trace  the  whereabouts 
of  Mrs.  Lawrenson,  though  he  believed 
that  she  was  now  living  in  Johannes- 
burg. Witness,  after  the  purchase,  let 
the  property  on  the  upper  side  of  the 
cross  stre<'t  to  Rowan  on  lease.  Mrs. 
Lawrenwn  had  up  to  that  time  lived 
on  the  farm.  When  he  made  his  pur- 
chase he  bought  without  a  diagram. 
He  was  told  that  Mns.  LawTenson  had 
DO  transfer  in  respect  of  certain  lots. 
There  was  a  transfer  in  regard  to  a  cer- 
tain lot  3,  but  he  had  discovered  that 
that  lot  3  did  not  apply  to  the  farm 
Johannessfontein.  In  1903  Rowan,  who 
had  an  option  of  the  property,  adver- 
tised Johannesfontein  for  sale.  Wit- 
ness thereupon  obtained  an  interdict 
against  Rowan,  who  had  not  exercised 
his  option. 

Hopley,  J. :  Evidently  be  wanted  to 
iee  whether  he  would  be  able  to  sell 
the  property  for  a  higher  figure  than 
his  option,  and  he  left  over  the  option 
until  he  had  found  out  whether  he 
would  be  able  to  secure  a  profit  on  the 
option. 

Witness  (continuing  his  evidenoe)  said 
that  while  he  was  in  possession  of  the 
property,  and  also  before,  he  had  not 
heard  of  anv  person  called  Wasserfall, 
except  the  Wasserfall  in  Cape  Town. 
The  property  was  in  the  area  of  the 
Durban ville  Village  Management  Board 
and  their  successors,  the  Municipality. 
T!hb  local  authorities  rated  Johannes- 
fontein as  one  property;  the  erven  in 
question  was  not  separately  rated.  The 
rating  was  based  on  the  occupation. 

Cross-examined :         Plaintiffs  had 

thouffht  that  the  land  now  occupied 
by  the  widow  Van  Niekerk  was  also 
part  of  the  property  they  bought,  but 
thev  had  given  up  that  portion.  He 
had  had  some  bother  with  Kowan  about 
the  breaking  ojten  of  certain  doors  of  a 
huildinff  on  this  ground,  and  it  was 
after  tnis  bother  had  occurred  that  he 
found  that  Mrs.  Van  Niekerk  was  en- 
ticed to  this  particular  part.  He  had 
understood,  when  he  purchased  from 
Mrs.  Lawrenson,  that  there  was  some 
dispute  as  to  one  or  two  of  the  erven. 
Ab  far  as  witness  knew,  neither  of 
the  lots  in  question  had  been  culti- 
vated, but  had  been  used  as  a  kraal,  and 
to  pot  carts  and  implements  on. 

fi&njamin  Francois  van  Niekerk  said 
that  his  father  bought  Johannesfontein 
about  39  years  affo.  As  to  the  disputed 
erven,  they  used  one  lot  as  a  cattle 
kraal  and  on  the  other  they  had  a  wheat 
stack,  and  twed  to  do  their  threshing 
thcTO.  He  had  seen  the  lots  used  for 
similar  purposes  by  subsequent  owners. 


All  the  lots  were  used  except  the   two 
bottom   ones. 

Cross-examined  :  Dekenah  used  the  lots 
in  the  same  way  as  witness's  father  had 
done.  Witness  was  present  when  the 
farm  was  sold  in  Dekenah's  insolvent 
estate.  Witness  wa«  also  present  at  the 
sale  in  Rowan's  insolvent  estate. 

Witness  had  never  heard  Dekenah 
say  that  one  of  the  disputed  lots  be- 
longed to  Wasserfall,  and  that  the 
others  belonged   to  somebody  else. 

Andries  Jacobus  V.  van  Niekerk« 
Field-cornet,  Koeberg  district,  said  he 
lived  on  the  farm  with  his  father  in 
1873,  and  stayed  until  the  1st  April, 
1875.  Witness  s  father  bought  from  his 
cousin,  Jacob  van  Niekork.  His  father 
bought  the  whole  of  the  propertv,  except 
a  bit  at  the  bottom,  which  an  old  MaJay 
boy  had,  and  from  whom  his  father 
bought.  About  that  time  the  rush  to 
the  goldfields  took  place.  Witness  rode 
transport.  They  had  up  to  six  and  seven 
wagons  and  from  80  to  100  mules.  .Dur- 
ing his  father's  time  witness  heard  no 
question  raised  in  regard  to  the  owner- 
ship of  lots  3  and  7.  There  was  some 
question  about  the  stable,  which  an  old 
man  in  Cape  Town,  who  wore  a  helmet, 
said  belonged  to  him.  He  never  saw 
the  old  man  on  the  farm.  Witness  saw 
the   place   several    times    after    he    had 

?;one  to  reside  in  the  Paarl  in  1875,  and 
ound  that  the  lots  were  being  used  in 
the  same  way  as  his  father  nad  used 
them,  both  by  Dekenah  and  Rowan.  Wit- 
ness had  never  heard  of  Wasserfall  own- 
ing part  of  the  property. 

Hopley,  J.,  remarked  that  from  this 
case  it  appeared  that  the  most  element- 
ary rules  of  conveyancing  had  been  neg- 
lected. He  should  take  it  that  it  was 
the  duty  of  a  conveyancer  to  look  into 
the  titles  before  he  conveyed  the  pro- 
perty. Of  course,  they  nad  to  take 
things  as  they  found  them,  but  at  the 
same  time  tKere  did  appear  to  have 
been  a  great  deal  of  carelessness. 

Mr.  Searle  said  that  that  seemed  to 
be  so. 

In  cross-examination,  witness  said  that 
in  September  last  Rowan  told  him  that 
Wasserfall  claimed  lots  3  and  7,  and 
that  if  they  could  prove  that,  they  could 
make  a  good  deal  of  money. 

Sidney  S.  Jacobsohn,  of  the  firm  of 
Walker  and  Jacobsohn,  plaintiffs'  attor- 
neys, put  in  a  list  of  owners  of  the 
property  extracted  from  records  in  the 
Dee^  Registry,  from  the  time  of  Jacob 
van  Niekerk. 

Johannes  Jacobus  Huys,  of  Durban- 
ville,  said  that  he  was  80  years  of  age. 
He  was  born  at  Johannesfontein.  His 
grandfather  was  the  original  grantee. 

Mr.  Searle :  That  takes  us  back,  I 
think,  to  1813. 

[Hopley,  J. :   To  1801.] 

Witness  (continuing)  said  he  remem- 
bered Mr.  Jacob  van  Renen  van  Nie- 
kerk cominff  to  the  farm.  Behind  Mr. 
Van  Niekerk's  house  there  was  a  kraal ', 


d68 


It 


aAt»E  TIMES'*  LAW  REK>BTa 


the  lot  in  front  of  tfao  houfie  was  used 
by  Mr.  Van  Niekerk  for  his  vehicles 
and  cattle.  Mr.  Hendrick  Cornelius  van 
Niekerk,  who  followed  Jacob,  used  the 
two  lots  in  the  dame  way.  Mr.  Dekenah, 
the  next  owner,  used  the  two  lots,  the 
one  as  a  kraal  and  the  other  for  his 
carts  and  cattle.  Mostert  next  hired 
the  farm,  and  then  came  Louw,  both 
the  occupiers  using  the  two  lota. 

By  the  Court :  The  farm  took  its  name 
from    witness* s  grandfather. 

Witness,  in  further  evidence,  spoke 
as  to  the  user  of  the  lots  by  Rowan, 
who  used  to  slaughter  sheep  in  the  kraal. 
Then  came  Mrs.  Lawrenson.  who  used 
the  lots  as  her  predecessois  nad  done. 

B.  F.  van  Niekerk  (recalled  at  the  re- 
quest of  Mr.  Burton)  said  that  he  did 
not  remember  seeing  Mr.  Rois,  of  the 
Board  of  Executors,  produce  a  plan  of 
the  property  at  the  eale  of  Rowan's  in- 
solvent estate  in  1899.  He  did  not 
hoar  anything  said  a^  to  lots  3  and  7 
being  kept  out  of  the  sale. 

Colin  Graham  Botha,  clerk  in  the 
Civil  Commissioner's  office,  said  that  the 
books  in  the  office  did  not  show  that 
quitrent  had  been  paid  in  respect  of 
any  portion  of  Johannesfontein  by  any- 
one named  Waasorfall. 

J.  W.  Parmen,  of  the  Divisional 
Council's  staff;  Johannes  Marais,  Gov- 
ernment land  surveyor ;  Henry  Patoa 
Baxter  (70  years  of  age),  a  resident  of 
Durbanville  for  43  years  ;  Thomas  Samp- 
son,  another  old  inhabitant;  and  Davi.i 
Stephanufi  Malan,  agent  and  valuator, 
Durbanville,    also  gave  evidence. 

Mr.  Burton,  replying  to  his  lordship, 
said  that  Mr.  Advocate  Giddy  had  con- 
sented to  conduct  the  commission  ap- 
Eointed  to  take  the  evidence  of  Mr.  Do- 
enaJi  to-morrow  (Saturday). 
George  Milne  Baxter,  a  valuator  to 
the  Municipality,  stated  he  had  known 
the  property  since  he  was  a  small  boy. 
Whether  a  house  was  erected  on  the 
lots  or  not,  he  valued  the  property.  He 
remembered  a  kraal  on  lot  7,  and 
cattle  grazing  on  lot  3.  Rowan  and 
Dekenah  used  the  lots.  W^itness  was 
present  at  the  sale  of  Rowan's  estate, 
and  bid  for  the  property,  which  he  be- 
lieved at  the  time  included  lots  3  and  7. 
He  did  not  remember  seeing  a  plan  at 
the  sale. 

Cross-examined :  He  was  not  a  very 
keen  buyer;  he  might  have  seen  a  dia- 
gram produced  by  Mr.  Roos,  who  was 
trustee  in  the  estate.  The  farm  was 
put  up  as  a  whole.  Previous  to  1901 
lie  used  to  value  Mr.  My  burgh's  lot 
with  the  whole  farm,  but  subsequent 
to  that,  he  heard  there  was  a  separate 
claim  to  it. 

Benjamin  Thompson,  blacksmith 
and  pound  master,  stated  he  had  been 
on  and  off  the  property  all  his  life.  He 
remembered  Van  Niekerk  and  Dekenah 
living  there.  About  thirteen  or  four- 
teen years  ago,  he  went  to  live  in  the 
house.      Rowan  allowed  him  to  eieot  a 


kraal  about  ten  yvds  from  tbe  back  of 
the  house.  Witness  remained  in 
the  house  about  twelve  months,  and 
during  that  time  Rowan  used  the  front 
and  back  erf.  Dekenah  also  kept 
cattle  there. 

Cross-examined:  He  did  not  exactly 
know  where  the  lots  were,  but  he  knew 
the  front  and  back  of  the  house.  He 
did  not  know  that  other  people  grazed 
there. 

James  Downing,  who  remembered  the 
place  from  the  time  of  Mr.  Rowan, 
stated  that  in  1902  he  was  about  ten 
yards  in  front  of  the  house,  when  Mr. 
Rowan  ordered  him  off  the  ground. 

Cross-examined:  Rowan  and  he  were 
not  very  good  friends  during  martial 
law. 

John  Phalant.  a  coloured  transport 
driver,  49  years  of  age,  remembered 
the  Van  Niekerks,  Louw,  Bowan, 
Lawrencoson,  and  King  on  the  pro- 
perty. There  was  a  kraal  ereoted  con- 
venient to  the  house,  and  on  tbe  oppo- 
site side  wagona  were  kept.  Mr.  Rowan 
kept  a  racehorse  there. 

Witness  (continuing)  stated  there 
was  also  a  small  tent  lent  to  a  cattle 
herd  in  front  of  the  house.  Witness 
was  between  the  gum-trees  and  the 
house  when  Rowan  said  that 
he       did  not        wish       to  see 

him      on      his        (Rowan's)        ground. 
Another    witness    stated    that    Rowan 
placed  a  vegetable  garden   close   to   the 
Kraal. 

George  Montgomery  Walker,  partner 
in  the  firm  of  Walker  and  Jaoobson, 
stated  in  December,  1901,  he  obtained 
an  option  from  Mrs.  Lawrenoeson  on 
Johanneafontein.  Originally,  he  was 
brought  into  touch  with  the  property  by 
Mr.  Rowan.  ^  What  he  went  over  with 
Mr.  Rowan  included  the  erven  3  and  7. 
There  was  no  question  if  he  purchased 
as  to  his  right  of  ownership  to  the  lots 
3  and  7.  Suosequently,  King's  name  was 
substituted  for  that  of  witness  as  the 
purchaser  of  lot  1.  If  he  had  thought 
there  would  be  difficulty  about  lots  3  and 
7,  he  would  not  have  purchased. 

Cross-examined :  Rowan  mentioned 
there  were  some  lots  to  which  transfer 
had  not  been  given,  but  he  did  not 
specify  them. 
Mr.  Searle  dosed  his  case. 
Mr.  Burton  read  the  evidence  of  De- 
kcnab,  taken  on  commission,  which  eet 
out  that  he  was  the  owner  of  the  place 
Johannesfontein  more  than  twenty  years 
ago.  He  was  told  bv  one  of  the  oldest 
peoplo  in  Durbanville  that  the  ground 
an  which  the  thrashing  floor  and  the 
kraal  were  ereoted  belonged  to  SVasser- 
fall.  He  never  troubled  which  erven  be- 
lonf^ed  to  him  as  long  as  he  got  the  use 
of  it.  Nobody  at  Johannesfontein  ever 
paid  a  penny  of  quitrent;  he  pwiid  the 
lot.  He  never  thought  that  the  man  who 
built  the  house  would  be  such  a  fool  as 
t'j  sell  the  erf  in  front  of  him.  Ben- 
jamin Thompson  never  lived  with  him. 


"CAPE  TIMES''  LAW  REPORTS. 


359 


James  Robert  Maolay  said  he  was  62 
yeaiB  ol  age.  Witnees  knew  Jobannes- 
tontein  for  about  50  yean,  and  was  at  the 
sale  when  it  was  cut  i^>  into  lots.  Wai^- 
aerfall  bought  the  lots  at  the  front  and 
back  of  the  farmhouse.  Witness  never 
remraibered  a  kraal  being  on  erf  number 
7.  He  nerer  saw  erf  number  3  in  use, 
and  nerer  saw  farm  implements  or 
iWxiB  on  the  erf. 

^lOH-ezam-ined :  Witness  was  away  for 
a  number  of  years,  but  returned  in  1891 
or  1892,  when  he  purchased  a  farm.  Wit- 
aeas  remembered  Van  Niekerk  coming 
into  occupation  of  the  farm.  Witness 
via  at  that  time  living  at  Cape  Town, 
la  order  to  approach  the  farmhouse 
with  a  cart,  it  vraa  necessary  to  drive 
acrasi  lot  3  or  leave  the  cart  on  the  road. 

C.  P.  Rowan  said  he  was  one  of  the 
former  owners  of  Johannesfontein.  Wit- 
nsM  bought  it  from  Ross.  At  that  time 
witness  knew  nothing  of  lots  3  and  7, 
hot  was  informed  of  it  some  time  after- 
wards, when  one  of  th&  oldest  inhabi- 
tants informed  him  that  lots 
3  and  7  belonged  to  W^asserfall. 
In  1886  or  1887  his  mother  leased  the 
farm  from  Dekenah,  and  at  that  time 
there  was  no  kraal  on  the  lots  3  and 
7.  Dunng  his  mother's  time^  he  did 
aome  butohenring  on  the  premises,  but 
lots  3  and  7  were  not  actually  used. 
As  far  as  witness  knew,  lots  Nos.  3  and 
7  were  not  cultivated.  Witness  always 
Otttsp&nned  his  wagons  on  lot  ^  No.  1. 
Ko  aensible  man  would  outspan  in  front 
of  his  door.  Witneea  knew  that  lot 
No.  3  did  not  belong  to  him.  When 
witness  went  insolvent  in  1899  he  in- 
formed his  trustee  that  the  lots  3  and 
7  did  not  belong  to  him.  Witness  was 
at  the  sale.  Mr.  Marais  produced  a 
plan  in  the  dining-room. 

GroK-examined  :  Witness  went  to  Mr. 
Steytler  to  start  the  case.  Witness  knew 
the  plots  did  not  belong  to  him  before 
be  applied  for  the  amended  title.  He 
believed  he  cultivated  lots  to  which  he 
bad  no  title.  After  the^  interdict  he 
was  not  on  good  terms  with  the  plain- 
tiffs. Witness  had  not  paid  the  costs 
of  the  interdict,  but  King  had  not  paid 
the  cost  of  the  damage  to  the  furni- 
ture. 

By  Hopley,  J. :  When  he  came  on 
the  iiarm  he  was  told  by  old  x>eople 
that  he  had  no  ri^ht  to  the  lots  in  ques- 
tion. No  special  use  was  made  of  No. 
7  in  his  oKFther's  tenancy. 

Johannes  Roos,  Secretary  of  the  Board 
of  Executors,  stated  that  m  April,  1899, 
be  was  appointed  first  trustee  in  the 
estate  of  Rowan.  The  sale  took  place 
in  May,  1899.  Prior  to  the  sale,  he 
found  that  all  the  tftle-deeds  were  not 
in  order.  He  had  to  get  a  oopy  of 
one  of  the  dh^ams.  Rowan  drew  wit- 
ness's attention  to  two  lots,  one  in 
front  and  one  at  the  back  of  the  house, 
which  he  could  not  tell.  Those  would 
be  evidently  lois  3  and  7,  which  must 
have  been  clearly  shown  at   the  sale. 


according  to  the  plan  produced  by  Mr. 
Marais.  He  remembered  perfectly  well 
it  bein^  thrown  in  his  face  that  he  could 
not  tiell  the  lots  in  question.  Witness 
explained  to  Lawrcnceson  and  to  the 
buyers  that  he  could  not  sell  the  lot 
in  front  and  the  lot  at  the  back,  and 
that  he  was  only  selling  the  lots  to 
which  he  had  the  title.  If  witness  could 
have  disposed  of  the  two  lots  in  ques- 
tion he  would  easily  have  got  £1,500 
for  the  property. 

Cross-examined :  The  lots  in  front 
and  at  the  back  of  the  house  were  the 
lot^  mentioned  by  ^e  people  present  at 
the  sale  of  which  there  was  no  trans- 
fer. He  sold  what  was  described  in 
the  transfer  deed,  and  nothing  else. 
According  to  his  advertisement  in  the 
"  Government  Gazette,"  he  did  not 
sell  a  piece  of  the  property  in  question. 
There  was  no  mention  of  the  house  in 
the  advertisement  of  the  sale. 

Mr.  Burton  stated  that  the  witness 
whom  he  had  expected  to  call  from 
Malmesbury  was  unable  to  attend  ow- 
ing to  illness.  Counsel,  therefore,  pro- 
posed  to  close  his   case. 

Mr.  Walker,  of  Messrs.  Walker  and 
Jacobsohn  (the  plaintiffs'  attorneys), 
re-called  by  Mr.  Searle,  was  about  to 
give  evidence  in  regard  to  a  conversa- 
tion that  Rowan  had  with  him  in  1901, 
when 

Mr.  Burton  objected  to  the  evidence, 
on  the  flrround  that  it  was  not  material 
to  the  question  of  prescription.  The 
only  ground  on  which  it  could  be  ad- 
mitted was  that  it  bore  on  the  credibility 
of  Mr.  Rowan.  ^ 

Mr.  Searle  said  that  that  was  pre- 
cisely the  reason  why  he  desired  to 
lead  this  further  evidence,  inasmuch  as 
the  evidence  directly  affected  the  credi- 
bility of  the  witness  Rowan.  Counsel 
argued  that  the  evidence  was  admis- 
sible. 

Mr.  Burton  contended  that  the  evi- 
dence was  not  relevant  to  the  subject- 
matter  of  the  action. 

Hopley,  J.,  ruled  that  the  evidence 
was  inadmissible.  The  evidence,  he 
said,  came  dose  to  the  borders  of  rele- 
vancy, but  it  seemed  to  him  that,  as 
Rowan  ceased  to  be  owner  in  1899,  he 
could  not  be  held  to  bind  the  land  by 
anything  he  said  in  1901. 

Mr.  Searle  said  that  he  would  call 
evidence  bearing  upon  statements  made 
by  Rowan  when  he  was  owner  in 
1898. 

Mr.  Marais,  Government  land  sur^ 
veyor,  was  thereupon  recalled.  He 
stated  that  in  November,  1898,  he  was 
preparing  an  amended  title  for  Rowan. 
Witness  told  Rowan  that  he  had  no 
title  to  lot  7,  but  that  he  had  title  to 
lot  3.  Rowan  seemed  to  be  surprised. 
Witness  subseNquently  found  that  he 
was  mistaken  in  regard  to  lot  3.  Wit- 
ness denied  that  Rowan  mentioned 
Grundlingh's  name  to  him.  Rowan 
was  anxious  to  obtain  title  to  the  lots 


360 


(( 


CAPE  TIMES"   LAW  REPORXa 


for  which  be  had  no  tranafer,  and  wit- 
ness advised  him  to  proceed  for  title 
by  moving  tho  Supreme  Court  under 
the  Derelict  Lauds  Act.  Witness  ad- 
vised Rowan  to  instruct  an  attorney. 

Cross-examined :  Witness  only  found 
that  he  had  made  a  mistake  in  regard 
to  lot  3  after  King  Bros,  bad  become 
the  owneiB,  and  that  the  lot  3  men- 
tioned in  the  diagram  did  not  refer  to 
Johannesfontein  at  all. 

This  ooncluded  the  evidence. 

Mr.  Searle  aaid  that  the  question  in 
this  case  was  whether  prescription  of 
lots  3  and  7  of  the  farm  Johannesfon- 
tein had  been  proved.  He  thought 
there  would  be  no  difference  of  opinion 
between  his  learned  friend  and  hunself 
as  to  the  law.  Counsel  proceeded  to 
quote  from  Sir  Andries  Maaadorp  and 
Voet,  and  also  from  oases  decided  in 
this  court.  He  said  that,  clearly,  it 
did  not  matter  what  knowledge  a  man 
had  as  to  the  land,  the  real  point  in 
the  case  was,  what  had  been  toe  user 
of  the  land,  what  had  been  the  occupa- 
tion? On  the  facts,  counsel  submitted 
that  it  had  been  shown  beyond  all  Ques- 
tion that  for  over  thirty  years  the  land 
in  dispute  had  been  used  as  part  of  the 
farm  by  the  occupier  of  the  home- 
stead. Coming  to  the  evidence,  he 
urged  that,  although  Mr.  Dekenah 
gave  evidence  on  behalf  of  the  defend- 
ant, he  was  actually  on  the  side  of  the 
plaintiff.  Mr.  Baxter  was  a  bidder,  and 
he  heard  nothing  about  lots  3  and  7 
not  being  included  in  the  sale,  as  stated 
by  Mr.  Boob.  The  impression  among 
the  intending  purchasers  was  undoubt- 
edly that  the  whole  of  Rowan's  pro- 
perty was  being  auctioned.  The 
rates  had  always  been  paid  as  if  the 
property  belonged  to  the  person  who 
owned  the  farmhouse.  Counsel  sub- 
mitted that  the  plaintiffs  had  clearly 
established  their  right  of  prescription 
for  thirty  vears,  and  that  it  was  en- 
tirely an  afterthought  for  Mr.  Rowan 
to  say  that  he  did  not  intend  to  occupy 
it  as  an  owner  during  a  considerable 
portion   of  his  time. 

Mr.  Burton  said  the  question  was 
whether,  as  against  the  registered 
owner,  the  plaintiffs  had  made  out 
their  claim.  They  claimed  upon  pre- 
scription. One  thing  was  clear— that 
the  onus  of  proof  lay  heavily  upon  the 
plaintiffs.  The  main  element  was  that 
the  possession  of  the  penoa  who 
claimed  a  right  of  prescription  must 
be  upon  some  just  title  he  believed  in. 
The  use  made  of  the  property  was  never 
of  such  a  nature  as  to  disturb  the  right- 
ful ownership.  It  was  a  curious  thing 
that  all  these  years  use  was  made  in  a 
superficial  way,  and  there  was  nothing 
to  show  at  wnat  stage  it  oould  be  said 
that  the  owners  of  that  place 
dealt  with  the  two  lots  with 
the  object  of  acquiring  the  property. 
Occupation  of  these  lots  was  part  and 
parcel  of  the    oooiipatran  of   the   farm 


Johannesfontein.  It  waa  not  enough 
to  say  that  they  took  whatever  were  the 
rights  of  their  predecessors.  Did  they, 
as  a  matter  of  fact,  get  the  rights  of 
their  {jredeoessora  ?  It  was  clear  from 
the  evidence  given  by  Mr.  Roos  on  the 
point  tlMit  nothing  passed  in  oonnection 
with  these  two  lots*  From  the  evidence 
of  the  different  owners,  it  did  iK>t  ap- 
pear that  they  made  use  of  this  pro- 
perty with  a  view  of  acquiring  it. 

Mr.    Searle   having  been  heard  in  re- 
ply. 

Hopley,  J. :  The  farm  Johannes- 
fontein was  for  some  years,  at  all 
events  in  the  year  1860,  owned 
by  a  gentleman  named  Van  der 
Spuy,  who  seemed  to  have  been 
indebted  to  Mr.  Daniel  Mills  about  that 
time.  Van  der  Spuy  had  the  farm  cut 
into  lots  for  building  purposes,  and  ap- 
parently at  that  sale  tots  3  and  7  were 
purchased  by  Waaserfall.  That  was  m 
1862.  Mills  bought  the  house  for  the  Nie- 
kerks  somewhere  about  1866,  and  in 
1868  they  built  a  kraal  behind  the  house, 
and  Benjamin  Niekerk  states  thai  his 
father  told  him  that  Mills  had  bought 
back,  with  the  exception  of  one  lot,  all 
the  erven,  and  that  the  whole  of  the 
land  around  the  house  was  part  of  the 
farm  Johannesfontein.  They  clearly 
thought  the  land  was  their  own,  as  they 
used  it  just  as  if  it  was.  Then  a«[ain,  in 
addition  to  the  actual  occupation  of 
these  erven,  Jacob  Niekerk  paid  the 
rates  and  taxes,  and  he  did  all  the  acts 
of  dominium  which  the  ordinary  owner 
of  land  would  do.  That  continued  with 
his  successor,  H.  C.  Niekerk,  who 
bought  in  1873.  The  land  was  then  sold 
to  Dekenah.  Dekenah  thought  he 
bought  the  whole  thing,  and  he  also 
used  the  lots  in  exactly  the  same  way 
as  the  others.  Although  someone  threw 
out  a  hint  to  him  that  a  couple  of  lots 
near  the  house  belonged  to  Waaserfall, 
he  paid  no  attention,  and  continued  to 
use  the  lots  as  before.  In  1888  Dekenah 
seemed  to  become  insolvent,  and  R.  M. 
Ross  had  to  take  over  this  farm.  In 
his  (Ross's)  time  he  leased  it  to  ten- 
ants, and  the  tenants  made  no  differ- 
ence as  to  how  they  used  these  lots.  In 
1889  Mr.  and  Mrs.  Rowan  appfurently 
came  to  live  on  the  farm,  and  during 
that  time  he  oould  not  see  that  Rowan 
had  abstained  from  making  use  of  these 
particular  lots.  Rowan  said  in  his 
mother's  time  there  was  no  kraal,  but 
he  did  not  say  that  his  mother  did  not 
use  lot  7  just  as  she  chose.  Rowan 
occupied  the  lots  for  something  like  ten 
years,  and  during  that  time  1  think  he 
made  use  of  the  place  just  as  the  others 
had  done,  and  in  his  case  there  was 
evidence  that  he  actually  ordered  people 
off  lot  3  as  though  it  belonged  to  him- 
self. I  don't  think  I  can  quite  accept 
that  portion  of  his  evidence,  although 
he  may  not  be  telling  an  untruth,  where 
he  says  that  he  was  told  that  the  lots 
belonged  to  WasseidEall,  as  there  is  iiQ 


«< 


CAPB  TIMES"  LAW  REPORTS. 


361 


mention  of  it  in  his  affidavit  In  1899 
Rowan  WAB  ioAolvent,  and  then  we  have 
Mr.  Roos  coming  on  the  scene  aa  trua- 
tce  of  the  estate.  Mr.  Roos  aaye  that 
he  explained  that  he  did  not  hold  the 
title  of  these  erven,  and  that  he  was 
selling  the  thing  aa  a  whole,  and,  fur- 
ther, that  it  was  thrown  in  hie  faoe  that 
he  oWd  not  give  transfer  of  these  lots. 
It  eeems  to  me  that  he  was  sim^lv 
selling  the  insolvent's  rights,  and  witn 
that  knowledge  Mr.  Lawrenceson 
bought      I  don*t   think   Lawrenoeson'e 

Sarchase  in  that  way  would  make  any 
iflFerence  in  the  lapse  of  time  neoesaary 
for  the  ac(iuisition  by  prescription.  Up 
to  that  time  I  hold  that  tne  various 
ownera  from  1866  onward  had  been  us- 
ing these  lots  as  though  they  were  their 
own  property.  Mr.  Roos  aayB  he  said : 
*'I  cannot  give  you  transfer,"  but  he 
does  not  sav :  **  I  cannot  pass  any  rights 
on  to  you.  Lawrenceson  goes  on  using 
this  ground  just  as  the  othens  before 
bim,  and  he  aleo  paid  the  rates  and 
taxes.  In  1902  King  Bros,  bought  from 
him,  and  they  went  on  in  possession 
until  1904,  when  they  applied  under  the 
Derelict  Lands  Act  to  get  a  perfected 
title.  The  executor  of  the  W«8serfall 
estate  was  discovered,  and  when  the 
rule  came  to  be  affirmed  the  Court  could 
not,  on  the  facte  disclosed,  grant  the 
application.  Now,  my  view  on  the  case 
is  that  the  yarious  owners  had  been  pos- 
sessing this  property  perfectly  peace- 
ably until  19CPl,  when  Kin^  Bros,  tried 
to  get  the  property  into  their  own  name, 
and  then  -Uie  WasserfAll  Etstate  for  the 
fiivt  time  came  in.  It  appears  to  me 
that  King  Bros,  acquired  these  rights  in 
1902,  and  they  have  a  ri^ht  to  have  the 
lots  3  and  7  registered  m  their  name. 
The  jud|fment  will  be  that  the  plaintiffs 
are  entitled  to  registration  in^  their 
names  of  lots  3  ana  7  in  the  diagram 
attached  to  the  petition,  with  coste,  and 
Mr.  King  to  nave  hiA  personal  ex- 
penses. 

[PUiintifr's  Attorneys:  Walker  and 
Jacobsohn ;  Defendant's  Attorneys : 
8auer  and  Standen.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maasdorp.] 


VAN  NIBRERK  Y.  WILL  AND 
OTHERS. 


1905. 
8th. 
<      „       9th. 
I     „     10th, 

V  ♦ 


r    19 

\May 


12th. 


Title  to   land  —  Registration  — 
Illegal  sale. 

(hie  F,  li.^  acting  under  an 
alleged  power  of  attorney  from 
P.  B.^  had  sold  certain  land 
to  W.y  and  the  sale  was  duly 
registered  and  endorsed  on  the 
title  deeds^  and  W,  thereafter 
dealt  with  the  land  as  his  own. 
Subsequently  P.  B,  repudiattd 
the  sale^  on  the  ground  that  he 
had  not  been  paid  the  purchase 
price,  and  sold  it  to  the  plain- 
tiff, tvho  ttiok  possession  and 
applied  to  have  it  registei'ed  in 
her  own  name.  Her  applica- 
tion was  refused,  A  man  who 
alleged  that  he  was  W,^s  part- 
ner, and  had  fomurly  held 
possession  of  the  farm,  having  . 
become  insolvent,  and  the  farm 
having  been  attrched,  the 
plaintiif  obtained  an  order 
restraining  the  Sheriff  from 
dealing  with  it,  claimed  it  as 
her  otni,  aiul  alleged  that  W, 
had  obtained  transfer  by 
forging  signatures  to  tlie  de- 
claration of  seller  and  to  tfie 
power  of  attorney  from  P.  B. 
to  F,  B, 

Held,  that  these  disputed 
signatures  were  genuine  and 
that  W'  must,  therefore,  6e 
regarded  as  the  legal  mcner  of 
the  farm. 


This  waa  an  action  for  declaration  of 
rights  in  respect  to  a  farm  known  as 
Leutland's  Pan,  in  the  district  of  Gor- 
donia. 

Mr.  Close,  in  opening  the  caae,  aaid 
from  the  {headings  it  appeared  that 
this  action  was  one  in  the  nature  of  a 
claim  for  declaration  of  rights  in  re- 
gard to  the  farm  Lcutland's  Pan.  The 
case  arose  out  of  a  rule  nisi  granted 
in  April  of  last  year.  (See  14 
aT.R.     424).       The     defendant    WiU 


"CAPB  TIMES"  LAW  BEF0BT8. 


resided    at    Upington,    and    the    farm 
iu  question  was  one  granted  in  the  old 
concession  days  of  the  Chief  David  Vi- 
lander,    who    granted    farms    to  various 
people,   mostly  natives.      After  the   an- 
nexation of  Bechuanaland   there  was  a 
Land  Concession  Court   held,   in   which 
the  titles   of  people  having   concessions 
under  this  old  chief  were  inquired  into. 
If  they    were   found    to  be  valid,    quit- 
rent  grant  was  issued,   and  it  appeared 
that  tnis  particular  f*ami  was  under  one 
of  thefte  titles.     It  was  originally  granted 
by  the  Chief  Vilander  to  one  Piet  Boch, 
who  was  now  dead.     The  latter  got  his 
concession    ratified    by    the    Concession 
Court,   and    the   claim    was    in    respect 
of    that   property.       Prior  to  the   ouit- 
rent  grant  being  issued,   the  defendant 
Will    claimed    to    have    purchased    the 
propertT.    The  quitrent  grant  was  issued 
in  October,  1895,  and  he  claimed  to  have 
purchased  it  by  virtue  of  a  deed  signed 
in    June,    1894,    sixteen    months    before 
the  quitrent  gnant   was  issued   for  Piet 
Boch.     In  those  days  in  Bechuamilaod, 
when  Will  got  his  title,  one  would  get 
title  either  oefore  the  Registrar  or  be- 
fore  a   notary.      Will   claimed  to  have 
bought  under  the  old  burgher  title  be- 
fore  a   notary.       In   1897  the    plaintiff 
approached  Piet  Boch  with  a  view   to 
purchasing     the    property,     she     being 
wholly  unaware  of  Will's  position  in  the 
matter.     Subsequent  to  tnat  the  neces- 
sary documents  were  obtained,  and  Booh 
signed    a    power    containing    the    usual 
clause  that  he  had   never  sold  the  pro- 
perty to  anyone  before.     Mrs.  Van  Nie- 
kerk  put  the  matter  into  the  htinds  of 
her  attorney   to   pass   transfer,    but   no 
transfer  had  been  passed.      To  her  sur- 
prise, in  February,  1904,  she  was  served 
with  a  notice  of  attachment  of  this  pro- 
perty, and  upon  its  receipt  she  became 
for   tne  first  time  aware  of  the  allega- 
tion  that  Will   was    the    owner   of  the 
property.       The    notice   of    attachment 
was  given  as  the  result  of  a  suit  brought 
by  the  second  named  defendants,  Messn. 
Kosenblatt   and    Weasels,   on   a    certain 
bond  covering  the  property.     Judgment 
was  taken   in  the  Hign  Court  of  Kim- 
berley.      On  a  previous  occasion,    when 
the  j>l!aintiff  had  been  in  Upington  con- 
sulting   her    attorney    with    regard     to 
transfer,    it  was   ascertained  that  trans- 
fer duty  had  already  been  paid  by  Will. 
The  matter    was    left  in   the   hands  of 
the  attorney,  and  no  further  steps  were 
taken  prior  to  the  attachment,  oecause 
of  these  facts.     On  it  being  ascertained 
that    Will     had     paid     transfer     duty, 
Mr.     Lennox    and    plaintiff,     who^   re- 
sided   on    the    farm,     made    inquiries, 
Lennox,  who  had  once   been  a  partner 
of  Will,   having  an  intimate  knowledge 
of  certain  transactions.     In  1898  he  was 
informed  that  the  signatures  of  two  wit- 
nesses  to  the    documents  covering   the 
will  were  forgeries.    After  much  trouble 
one  of  these  alleged  witnesses  had  been 
found  in  England,   and  had   made  ap 


affidavit.  The  other  was  dead.  Lennox 
saw  Piet  Booh,  and  the  attorney  aasiued 
him  (Lennox)  tlmt  Will  could  do  nothing 
in  face  of  the  forgeries.  Being  in  pos- 
sessiMi  of  the  farm,  plaintiff  took  no 
active  steps  to  assert  ner  rights.  C^- 
siderable  amounts  of  money  had  been 
spent  on  the  farm  in  imj>ioyements,  and 
the  plaintiff  had  paid  quitrent  and  taxes 
and  Dorne  all  the  burden  of  the  liability 
of  the  estate,  and  had  never  been  turned 
off  by  Will,  who  had  likewise  not 
claimed  rent.  However,  in  1902  Will 
wrote  to  Lennox,  saying  that  he  and 
plaintiff  must  clear  from  the  farm  and 

Eay  rent  at  the  rate  of  £75  per  annum, 
ennox  submitted   the  demand    to   ius 
attornev  at  Upington,  and  then,  in  1904, 
the  following   position    was  developed: 
Judgment  was  taken  on  the  bond,  and 
notice  of  attachment  was  given  to  Mrs. 
Van    Niekerk,    who    promptly    applied 
for  an  interdict  against  Will.     On  that 
a  rule  nisi  was  granted  in  April,   1904, 
and  on  June  1,  1904,  it  was  oonfirmed, 
and    proceedinni    were   stopped.       The 
case  was  complicated   by  the   fact   that 
Lennox   had  been   the  partner  of   Will 
in      certain      kind     speculationsL      but 
in     1896    there     was    a    quarrel,     and 
although  the  partnership   remained   for 
purposes  of  aooount,  Lennox     cancelled 
the  power  of  attoniey  he  had  given  Will 
for  partnership  purposes,   and  no     fur- 
ther     selling     transactione  took     pUuDe 
between  them.      The  cause  of  the  quar- 
rel was  that  Will,  who  was  the     active 
business  man  of   the  firm,    had  sot      a 
number  of  farms  which  had  been  bought 
by    Lennox  on   joint   account   for    the 
partnership.        He   had      them      en- 
tered in  Ills  own  name,  whilst  really  they 
belonged  to  the  partnership.      He    had 
bonded   them     for  private  debts  of  his 
own,  and  this  resulted  in  an  action   by 
Lennox  against  Will.      In  1897    Lennox 
was  made  insolvent    by    Rosenblatt  and 
W^ssels,   to  whom     Will     owed  money, 
but  the  trustee  of  the  estate    was  direot- 
ed  by  the    creditors  to  bring  an  action 
against  Will  to     compel  him  to     haaod 
over  the  assets  of  the    partnership     es- 
tate,    which  the    trustee  held  Will  had 
dealt  with  in   such  manner  as  to  be  a 
breach  of  trust.       The  case  was    beard 
in  the  High  Court  of  Griqualand    West. 
The   trustee    olaimed    that      Leutlaod'a 
Pan  was  psxt  of  the    partnership  trans- 
actions, and  that,  therefore,  he    was  en- 
titled  to   a    half-share.       The   position 
of  the    defendants  was  that  Will  held 
that  the  documents  were   bona  fide  mort- 
gagee for  value,  and  the  second-named 
detendants  alleged  that  they  acted  in  a 
perfectlv  open    manner,   and    had      no 
knowledge  of  the  alleged  forgeries. 

Mr.  Close  (with  him  Mr.  U|>ington), 
for  plaintiff;  Mr.  Gardiner  (with  hiai 
Dr.  Kainsford),  for  the  first  defendant; 
Mr.  P.  S.  T.  Jones,  for  the  second  and 
third  defendants  (Rosenblatt  and  Wea- 
sels). 


4* 


OAPB  TIMES"  LAW  REPORTS. 


363 


On  the  application  of  oounsd,  all  wit- 
nesses were  ordered  out  of  court 

Gordon  Krimlick,  clerk  in  the  At- 
torney-General*fl  Office,  produced  certain 
records  refeiring  to  the  transaction  in 
1894  between  Boch  and  Will. 

George  St  Leger  Lennox  deposed 
Uiat  from  1892  until  1896  be  waa  in 
partnerahip  with  the  defendant  Will 
as  speculator  in  land  and  stock.  Will 
did  toe  official  work — registering,  trans- 
ferring, and  so  oa — and  witness  and 
Rautenbach  travelled  around  getting 
powers  of  attorney  in  respect  of  con- 
cessions bj  \he  Land  Court  relative 
to  titles  given  by  David  Vilander.  Wit- 
ness got  certain  land  on  behalf  of  the 
partner^ip,  and  found  subsequently 
that  Will  had  registered  these  proper- 
ties in  his  own  name,  and  had  oonded 
them  for  private  ddjts.  They  quar- 
relled on  that  acootmt,  and  witness 
ppooeeded  against  Will  in  the  Hi^h 
Court  of  Gnqualand  West.  He  (wit- 
ness) was  made  insolvent,  and  the  trus- 
tee oontinued  the  action,  recovering 
about  £800.  Gertain  land,  witness 
eiaimed,  he  obtained  by  judgment  of 
the  Court  Prior  to  1896  witness 
had  been  to  Leutland'a  Fam,  where  he 
wss  now  living.  Hie  first  visit  waa  to 
inspect  the  beacons.  On  a  second  oooa- 
sion,  he  went  because  he  understood 
Will  had  bought  the  farm — the  latter 
told  him  sa  Tbis  was  in  about  1894. 
On  that  ocoanon  he  saw  Piet  Boch, 
with  whom  he  had  a  conversation. 

Gounsel  was  prooeeding  to  ouestion 
the  wttneas  aa  to  what  Booh  told  him, 
when 

Mr.  Gardiner  objected  that  it  was 
not  evidence. 

Mr.  Close  contended  that  the  evidence 
was  adi^sible.  Boch  was  dead,  and 
the  witness  wae  at  that  time  acting  as 
agent  for  Will. 

In  reply  to  the  Court,  the  witness  said 
the  farm  was  partnersnip  property — if 
Will  had  bought  it  Will  asked  wit- 
ness to  go  and  see  what  the  farm  was 
like. 

Maasdoip,  J.,  said  that  the  agency 
was  not  estaUieiied,  and  unless  further 
evidttice  were  forthcoming,  the  stwte- 
ment  made  hj^  Boch  to  the  witness  could 
not  be  admitted.  If  the  witness's 
agency  extended  no  further  than  to  go 
and  see  what  the  ground  waa  like,  a 
statement  made  by  Boch  to  him  was 
not  evidence.  A  casual  oonveraatkm, 
sudi  as  the  witneea  had  with  Boch, 
could  not  be  admitted. 

The  witness  said  he  afterwards  re- 
ported to  Will  that  be  had  met  Fiet 
Boch.  and  tiiiat  the  latter  had  told  him 
1h>  had  not  sold  the  farm  to  him  (Will). 
Win  said  he  understood  thai  Rautenbach 
had  bought  it  for  him.  Witneas  sub- 
seqnently  went  to  aee  Piet  Booh,  near 
Keimos,  doee  to  Upington;  he  was 
accompanied  by  Mrs.  Van  Niekerk. 
Both  Boch'a  biotben  were  preMot, 
George  and  Fred.      Tbazo  ww  a  tnuii- 

Al 


action  between  Mtb.  Van  Niekeik  and 
Piet  Boch,  as  a  result  of  which  the 
latter  signed  the  documents  (produced) 
— a  declaration  for  seller  and  a  power 
to  transfer  the  fam.  Mrs.  Van  Nie- 
kerk bought  the  farm  Leutland's  Pan 
from  Piet  Boch  for  £60;  this  price  waa 
to  be  paid  by  a  horse,  merchandise,  and 
food  to  Georse  Boch.  George  waa 
supporting  the  father  at  the  time.  Wit- 
ness saw  the  document  of  receipt 
of  purchase  price  signed  by  Gk>org«. 
Mrs.  Van  Niekerk  went  on  the  farm  in 
1897  or  18^,  and  she  had  since  occupied 
it.  Later  on,  witness  discovered  that  the 
farm  had  been  registered  in  Wiir«  name, 
and  that  he  had  taken  out  an  attach- 
ment. Mrs.  Van  Niekerk,  when  she 
went  on  the  farm,  gave  her  general 
power  of  attorney  to  her  local  adviser, 
Tillncnr.  When  the  real  state  of  affairs 
was  discovered,  they  took  the  whole 
matter  out  of  Tillney*s  hands.  About 
1900,  Will  was  military  prosecutor  at 
Upington ;  witness  later  oo  held  a  posi- 
tion on  the  military  headquarters  staff, 
and  he  came  into  contact  with  Will. 
Will  never  made  any  reference  to  his 
title  to  the  farm,  and  never  made  a  de- 
mand for  reni  Witness  saw  the  docu- 
ments produced  in  the  Magistrate's 
clerk's  office.  The  first  that  witness 
heard  about  the  farm  having  been  trans- 
ferred in  Will's  name  was  when  the  writ 
of  attachment  waa  received.  He  had 
not  previously  to  that  time  heard  that 
Will  had  a  bond  on  the  farm.  After 
the  suit  brought  against  him  by  Rau- 
tenbach, witneas  did  not  authonse  Will 
to  send  to  Miss  Van  Niekerk  a  letter  in- 
struoting  her  not  to  admit  to  the  Sheriff 
that  anv  of  the  goods  belonged  to  him 
(witness),  and  to  say  that  they  belonged 
to  him  (Will).  WiU  also  advised  her  to 
be  very  careful  in  her  conversations  with 
the  Sheriff,  and  to  be  on  her  guard 
against  "  catch  "  questions. 

Cross-examined  by  Mr.  Gardiner: 
Witness  spoke  to  Will  about  the  farm  not 
belonging  to  him  (Will),  and  the  latter 
replied:  "See  Rautenbach."  The 
money  was  paid  to  George  Bok,  at  the 
Court-house^  and  he  gave  Mrs.  Van  Nie- 
kerk a  receipt. 

The  first  time  witness  saw^  the  signa- 
ture he  said  it  was  not  genuine. 

Alwyn  Jacob  Rautenbach  stated  that 
ho  did  not  recognise  the  document  of 
purchase  produced.  Witness  traveled 
round  in  1892,  getting  powers  of  attor- 
ney for  the  land  court.  Witness  and 
Kennedy  never  witnessed  Piet  Bok's  sig- 
nature. 

Croes-ezamioed  by  Mr.  Gardiner:  Of 
the  signatures  now  submitted  witness  ad- 
mitted the  firet  and  last,  but  the  others 
were  dubious. 

Mr.  Gardiner  then  tested  witness  bv 
giving  him  various  Dutch  and  Englisn 
phrasea  to  write. 

In  further  cross-examination  by  Mr. 
Gardiner  the  witneas  said  he  had  writ- 
ten to  Will  saying  that  Bok  had  been  to 


364 


« 


CAPE  TIMES**  LAW  REPORTS. 


him  for  the  money,  and  that  if  he  did 
not  send  money  Bok  would  cancel  the 
Bale.  Will  sent  witness  £10.  which  wit- 
ness paid  to  the  chief,  Vilander,  for  Bok. 
Vilander  gave  a  receipt. 

[Maasdorp,     J.     (to    Mr.    Gardiner): 
How  do  you  say  the  £50  was  paid?] 

Mr.  Gardiner:  £10  waa  paid  in  notes, 
afi  the  witness  has  stated,  and  for  the 
remaining  £40,  Will  had  a  set-off  for 
professional  services  on  behalf  of  Bok  in 
the  Concession  Court. 

Cross-examination  continued :  He  did 
not  sign  any  part  of  the  declaration  for 
seller,  or  of  the  power  of  attorney. 

Mr.  Gardiner  pointed  out  that  in  these 
documents  the  words  "  Peit "  and 
*'  Kleinmeir  *'  appeared  wrongly  spelt. 
}vi&t  as  they  were  in  the  sentences  writ- 
ten by  the  witness  since  entering  the  wit- 
ness-box. 

The  witness  said  that  in  the  sentences 
written  in  court  he  spelled  the  words 
as  they  were  generally  spelled  in  the 
district.  Continuing  under  cross-examin- 
ation, Rautenbach  said  that,  although  he 
was  writing  to  Will  tdfter  he  discovered 
his  name  had  been  forg-ed,  he  never  men- 
tioned the  matter  to  Will. 

Witness  could  not  say  if  the  signature 
produced  on  the  power  of  attorney 
was  his  or  not.  Witness  could  not  re- 
member Will  forwarding  a  declaration 
of  seller  and  other  documents.  If  he 
had  his  j;>aper8  he  could  perhaps  ascer- 
tain. His  papers  were  at  Reitfontein, 
180  miles  north-west  of  Upington.  On 
June  30,  witness  wrote  Will  that  he  was 
trying  to  get  Bok  to  sign  the  docu- 
ments. Fred.  Bok  refused  to  sign. 
Witness  only  saw  Piet  Bok  twice.    Will 

fot  Bok's  burgher  grant  confirmed. 
S^itneas  was  living  at  Upington. 
Witness  had  made  two  or  three  affida- 
vits for  Lennox  and  Tillney. 

Ro-examined :  Witness  told  Lennox 
that  he  had  a  refusal  of  the  farm  from 
George  Bok.  The  money  was  to  be 
paid  in  three  months  to  Fred.  Bok. 
Witness  never  paid  Fred.  Bok  more  than 
the  £10.  Witness  repeatedlv  asked  Will 
to  pay,  otherwise  Bok  would  cancel  the 
sale.  Will  sent  him  £10,  and  promised 
to  send  the  rest  later.  This,  nowever, 
ho  never  did.  Witness  never  signed  any 
documents  with  or  without  Kennedy. 
Frederick  Bok  sold  his  farm  to  Kennedy. 
M.  L.  Roux  said  he  knew  Kennedy, 
and  was  well  acquainted  with  his  hand- 
writing. The  letter  produced  was  receiv- 
ed by  witness  from  Kennedy  in  1894. 
W^itness  was  not  prepared  to  swear  to 
the  handwriting. 

John  Hunter  Kennedy,  fanner,  resid- 
ing at  Gordonia,  said  that  on  February 
23.  1903,  he  swore  an  affidavit  denving 
hi&  signature  to  certain  documents.  Wit- 
ness saw  Lennox  in  1898  or  1899.  Wit- 
ness knew  Rautenbach  in  1894.  Witness 
and  Rautenbach  acted  as  valuators  in  the 
estate  of  Bok,  but  witness  did  not  think 
the  valuation  produced  was  the  one  then 
drawn  up.      He  beUeved  the  document 


he  signed  was  foolsc&p.  The  dedaration 
of  seller  produced  was  not  drawn  up  at 
Klein  Meer,  nor  did  witness  or  Piet  Bok 
sign  it.  He  knew  nothing  of  the  power 
of  attome5[  produced. 

Re-examined :  Witness  never  signed  a 
power  of  attorney  authorising  Will  to  act 
for  Andries  Bok  in  the  Commission 
Court  In  1898  or  1899  Lennox  came  to 
witness  and  asked  him  if  he  had  wit- 
nessed a  declaration  of  sale  to  Will,  of 
Leutland*8  Pan.  Witness  said  he  had  not. 
and  swore  an  affidavit  to  that  effect.  Wit- 
ness did  not  think  Rautenbach  forged  the 
signature,  and  believed  Will  was  too 
much  of  a  gentleman  to  do  it. 

Frederick  George  Bok  said  his  father 
was  Piet  Bok,  and  his  brother  was  Klein 
Piet  Bok.  Klein  Piet  got  the  farm, 
Leutland*s  Pan,  from  the  chief,  Vilander. 
Witness  arranged  for  the  sale  to  Will, 
and  was  to  receive  the  money,  but  had 
never  seen  it.  Witness  was  present  when 
Mrs.  Van  Niekerk  bought  the  farm  from 
Klein  Piet. 

Oroos-examined :  Klein  Piet  told  wit- 
ness he  could  sell  the  farm.  Witness  had 
authority  from  his  brother  to  sell  the 
farm,  but  did  not  tell  Rautenbach  to 
give  the  money  to  Vilander.  Witness 
gave  Rautenbach  three  months  in  which 
to  pay  the  money,  and  asked  him  three 
times  for  the  money.  Vilander  married 
a  sister  of  witness.  W^iineas  told 
"Scotty"  Smith  and  Mrs.  Van  Niekerk 
that  the  farm  was  for  sale.  The  money 
was  paid  to  witness  because  he  had  to 
maintain  his  father. 

Mrs.  S.  van  Niekerk  (plaintiff)  said  she 
was  living  on  the  farm  with  Lennox,  and 
described  at  length  her  negotiation  for 
the  purchase. 

Mr.  Close  closed  his  case. 

James  Herbert  N.  Will,  attorney,  said 
he  practised  at  Upington  from  1891  to 
1902.  Witness  obtained  several  powers  of 
attorney  in  1893,  including  Bok*s.  The 
writing  on  the  document  was  Rauten- 
bach*s,  as  was  the  signature.  The  other 
signature  was,  witness  believed,  that  of 
Kennedy.  Witne.s8  acted  for  Piot  Bok, 
and  his  account  against  Piet  was  £150. 
Rautenbach  came  to  witness,  and  said  be 
could  ^t  Leutland's  Pan  farm  for  £50. 
and  witness  told  him  to  do  so.  On  June 
15,  1897,  witness  received  a  written  con- 
tract. Witness  sent  £10  on  account,  but 
did  notisend  anv  more,  as  he  was  settling 
some  of  Rautenbach's  debts,  and  thought 
Rautenbach  could  pay  Bok. 

Witness  spoke  as  to  the  signatures 
on  certain  documents,  and  the  hand- 
writing on  the  same.  Lennox  had  been 
his  partner,  and  he  gave  him  notice  to 
c[urt  the  farm  Leutland's  Pan  on  hear- 
ing that  he  was  cutting  wood.  Witness 
had  the  farm  surveved  in  1896,  and  also 
paid  the  transfer  fees  and  expenses  of 
getting  title.  Witness  had  expended 
£150  upon  the  farm.  Witness  never 
received  any  advice  from  Lennox  or 
Mrs.  Van  Niekerk  that  she  had  pur- 
chased the  farm.    The  Bni  in^atioQ 


"CAPE  TIMES"  LAW  REPORTS. 


B6r> 


witoess  had  that  the  signatures  were 
alleged  to  be  forj^ed  was  when  the  affi- 
davit in  connection  with  the  rule  nisi 
were  put  in.  When  witness  authorised 
Rantenbach  to  buy  Leutlaiids  Pan  it 
was  underatood  that  Rautenbach  was 
to  get  a  percentage. 

Croes-ezamined,  wit-uess  never  agreed 
to  give  Rautenbach  7s.  per  cent,  oommis- 
noo.  Witneas  was  anxious  to  got  the 
power  of  attorney  signed  before  ho  put 
m  his  bill  of  coste.  When  witness  wrote 
to  Rautenbach  that  he  would  insist  upon 
the  sale  being  carried  through,  it  was 
probably  because  there  had  been  a 
threat  of  canoellation  of  the  aale.  Wit- 
ness was  not  trying  to  force  a  sale  on 
Bok;  he  was  merely  endeavouring  to 
hold  him  to  what  be  had  done.  He 
wu  not  altogether  dissatisfied  with  Fred 
Bok's  signature  to  the  deed  of  sale,  but 
be  wrote^  to  Rautenbach  asking  him  to 
get  Piet's  ^  signature.  Rautenbach  was 
the  man  with  whom  witness  was  to  set- 
tle. Rautenbach  wan  repeatedly  told 
aboat  the  BiU  of  coste,  but  an  account 
was  never  forwarded.  The  bill  of  costs 
had  not  yet  been  taxed,  and  witness  an- 
ticipated when  it  was  it  would  be  re- 
duced from  £150  to  £51.  He  repeated- 
ly told  Rautenbach  that  an  arrangement 
would  have  to  be  made  about  his  bill  of 
costs  b^ope  the  purchase  price  was  paid. 
The  fin$i  reference  to  setting  off  the  oostfi 
against  payment  of  the  purchase  price 
was  made  on  Monday.  He  consiaer<»d 
he  had  settled  with  Rautenbach  when  he 
sent  him  £10,  and  said  that  the  bill  of 
costs  would  be  set  off.  There  wa«  more 
doe  to  witness  than  he  had  to  pay.  Wit- 
ness did  all  the  work  for  Bok  in  the 
Concession  Court  through  Rautenbach. 
Witness  could  not  understand  why  Ken- 
nedy and  Rautenbach  should  deny  their 
signatures.  Witness  was  perfectly  cer- 
tain Kennedy  signed,  but  also  believed 
that  Kennedy  had  forgotten  about  it. 
The  rule  nin  was  granted  last  year. 

By  Mr.  Jones:  If  the  bond  had  been 
tet  aside  in  1898  he  would  have  been  in 
a  better  financial  position  than  at  present. 
Further  cro6»-examinod :  If  he  could 
reeoTer  all  that  was  outstanding  to  him 
he  would  be  solvent  at  present. 

By  Mr.  Gardiner :  He  drew  up  the  in- 
ventory as  he  was  appointed  executor  in 
the  estate  of  Vilander.  He  waa  perfect- 
ly certain  he  paid  the  quitrents. 

Herman  Rosenblatt,  attorney  and 
notary,  of  Vryburg,  said  formerly  he 
was  in  partnenhip  with  a  Mr.  Weasels, 
who  waa  also  interested  in  the  decision 
with  regard  to  the  bond.  In  1895,  Con- 
cession Courts,  to  go  into  titles,  etc.,  sat 
at  British  Bechuanaland.  According  to 
the  GoTernment  proclamation,  transfers 
of  unsurreyed  property  could  take  place 
by  notarial  deed.  Tnat  would  account 
for  the  transfer  to  Will,  and  the  bond 
being  by  notarial  deed.  On  the  seo3nd 
bond  on  Lentlands  Pan^  witness  had  ob- 
tained judgment  against  Will.  The 
MiOQnt  of  the  writ  issued  against  Will 


waa  £1,491  6s.  Id.,  with  interest.  The 
transfer  to  Will  went  through  witness's 
office  on  a  power  of  attorney.  He  would 
have  no  knowledge  whether  the  signa- 
tures were  forgeries  or  not.  The  proper- 
ties attached  realised  about  £1,600,  leav- 
ing £1,600  short.  In  1897  or  1898,  Croz- 
ford  came  to  witness's  office  and  saw  the 
mortgage  and  the  transfer  deed. 

By  Mr.  Gardiner:  He  thought  that 
the  quitrent  would  run  from  the  time 
when  the  country  was  annexed.  He  had 
no  doubt  that  the  signature  on  the  de- 
claration of  seller  waa  that  of  Rauten- 
bach. 

Cross-examined  by  Mr.  Close:  If  he 
had  known  that  the  signatures  were  not 

? genuine,  he  would  not  nave  passed  trans- 
er.  Croxford  told  him  that  he  had  pur- 
chased the  property  for  Mrs.  Van  Nie- 
kerk,  and  witness  told  him  that  WiUs 
had  already  purchased  it,  and  that  be 
(witness)  had  a  bond  on  it  As  far  as 
this  case  was  oonoemed,  the  reserve  of 
£3,000  was  too  high  on  the  other  pro- 
perty. 

By  Mr.  Jones :  If  Lentlands  Pan  were 
withdrawn  from  the  bonds,  witness  would 
suffer  financially. 

Mr.  Gardiner  called 

Charles  Matthews,  derk  in  the  Sur- 
veyor-General's Office,  who  produced  the 
claim  made  by  Piet  Bok  for  the  farm 
Lentlands  Pan. 

Cross-examined:  The  Imperial  Gov- 
ernment onl^  claimed  quitrent  from  the 
date  of  the  judgments.  This  closed  the 
evidence. 

Mr.  Close  contended  that  the  ar- 
rangement in  1897  was  a  good 
one.  In  the  case  of  Will,  hav- 
ing got  a  power  of  attorney,  signed 
with  a  X  by  Bok,  it  was  possible  for  him 
to  ^et  all  the  other  papers  without  tlie 
native  knowing  anythmg.  He  submitted 
that  a  solemn  declaration,  duly  signed 
and  witnessed,  must  be  before  the  notary 
before  any  transfer  could  be  given.  If 
th>)  documents  in  the  case  were  held  to 
be  good,  and  that  there  was  a  sale  in 
1894,  the  case  of  the  plaintiff  fell  to  the 
ground,^  but  the  plaintiff  took  the  step 
of  alleging  that  the  documents  were  for- 
geries committed  at  the  instigation  of 
the  first  defendant.  The  witnesses 
Rautenbach  and  Kennedy  denied  their 
signatures,  or  that  they  had  eyer  seen 
the  documents.  There  was  no  allegation 
again.st  Rautenbach,  except  that  he 
drank,  to  weaken  his  evidence.  Then 
there  was  the  evidence  of  Kennedy,  and 
be  was  the  one  witness  more  clear  than 
any  other  as  to  what  he  did  and  did  not 
do.  Four  signatures  were  shown  him, 
and  he  immediately  identified  two, 
which  on  examination  proved  to  be 
genuine.  A  third,  of  whioh  he  said, 
[*  This  I  don't  know,  but  I  don't  think 
it  is  mine,"  turned  out  to  be  the  signa- 
ture to  the  power  of  attorney. 

Maasdorp,  J.,  asked  what  Mr.  Close 
had  to  say  as  to  the  signature  on  the 
inyentory,  because   Kennedy  denied  it. 


366 


i< 


CAPE  TIMES"  LAW  BEPORTB. 


Mr.  Ck>8e  said  ibat  in  the  oaso  of  the 
power  of  attorney  Mr.  Kennedy  not 
oulv  denied  the  signature,  but  said  Piet 
BoK  was  not  at  the  plaoe.  Afi  to  the 
inventory,  Kennedy  was  not  so  dear. 

In  further  reply  to  the  Court,  Mr. 
Close  said  that  the  deed  of  sale  produced, 
and  signed  by  Fred  Bok,  came  as  a 
great  surprise  to  them.  He  did  not  dis- 
pute it  being  a  valid  sale.  Kennedy  ad- 
mitted having  signed  an  inventory,  but 
not  the  one  produced 

Maasdorp,  J.,  said  the  document  was 
drawn  up  by  Rautenbach,  and  he  said 
the  signature  was  his,  and  that  Ken- 
nedy also  signed.  Was  it  alleged  that 
the  signature  of  Kenedy  was  a  forgery? 

Mr.  Cloeo  said  Kennedv  asserted  it 
was  not,  and  he  accepted  Kennedy's 
statement,  and  would  urge  upon  the 
Court  that  Kennedy's  evidence  was  ab- 
solutely reliable,  and  that  he  had  not 
been  proved  incorrect  in  one  particular. 
Assuming  Kennedy's  evidence  to  be  cor- 
rect, the  signature  on  the  power  of  at- 
torney was  not  that  of  Kennedy.  Piet 
Bok  was  not  at  Klein  Meer  on  the  date 
alleged,  and  Kennedy  and  Rautenbach 
never  signed  together  to  Piet  Bok's  sig- 
nature and  therefore  the  signatures 
were  forgeries.  It  would  be  remem- 
bered that  Will  admitted  the  matter  lay 
between  himself  and  Rautenbach.  Tak- 
ing the  question  of  motive,  there  was 
nothing  alleged  against  Rautenbach. 
Will,  however,  had  started  the  system 
of  touting  for  business,  and  thus  showing 
no  respect  for  his  profession.  Then  there 
was  the  attempt  to  defraud  Van  Niekerk. 
There  were  other  matters  of  a  fraudu- 
lent nature.  He,  therefore,  submitted 
that  when  it  came  to  a  qu<^ion  be- 
tween Rautenbach  and  Will,  the  version 
of  Kennedy  and  Rautenbach  was  cor- 
rect^ and  that  Bok  never  did  sign  at 
Klein  Meer,  and  that  the  signatures  were 
not  there.  The  arrangement  of  1897 
was  absolutely  in  favour  of  the  plain- 
tiff, if  there  was  nothing  previous,  and 
he  submitted  there  was  not. 

Mr.  Gardiner  said  the  first  point  he 
would  urge  was  that  a  sale  by  Bok  to 
Will  was  clearly  proved,  yet  the  plain- 
tiff came  into  court  and  said  there  was 
not  a  sale.  The  attitude,  however, 
tidcen  up  now  appeared  to  be  that  there 
was  a  sale  between  Frederick  Bok  and 
Will,  but  that  Frederick  Bok  had  no 
power  to  sell.  This  was  directly  contra- 
dicted by  Frederick  Bok,  who*^  said  he 
had  his  brother's  authority  to  sell. 
Frederick  Bok  said  he  sold  the  farm, 
and  Piet  Bok  ratified  the  sale.  The 
fact  that  plaintiff  waited  ten  years  threw 
no  doubt  on  her  claim.  Lcnnon  and 
Mrs.  Van  Niekerk  found  these  forged 
documents  in  1898,  and  that  the  transfer 
duty  was  P&id.  However,  they  wait 
until  Piet  Bok  died  in  1901,  and  yet  they 
wait  until  now  before  bringing  this  case. 
Rautenbach's  evidence,  he  submitted, 
was  not  to  be  relied  upon.  He  could 
not  identify  his     signatures     unless  he 


saw  the  documents.  Rautenbach  had  a 
bad  memory,  to  say  the  least  of  it 
Rautenbach  could  not  have  written 
the  signature  of  Kennedy.  The  pro- 
bability was  that  Kennedy's  signature 
was  a  genuine  one.  What  stronger 
proof  could  there  be  that  Kennedy  had 
signed  the  inventory  in  question  than 
Kenned5r*s  own  evidence?  Was  it  likely 
that  such  an  old  document  as  the  power 
of  attorney  given  by  Andries  Bc^k  would 
be  forged  by  Will?  Was  it  likely  a^ain 
that  a  witness  would  ask  to  look  into 
the  contents  of  a  will  before  he  signed 
it?  If  the  Court  once  found  thai  Ken- 
nedy's signature  was  a  genuine  one, 
then  it  must  be  held  that  the  mark  wad 
made  by  Piet  Bok.  On  the  i>oint  of 
forgfery  there  was  no  proof  that  Will 
instigated  the  forgery.  Counsel  sub- 
mitted that  the  plaintiff  had  no  ground 
to    upset   the  transfer. 

Maasdorp,  J. :  It  appears  from  the 
evidence  in  this  case  that  Vilander,  who 
was  a  recognised  chief  of  &  por- 
tion of  Bechuanaland,  which  was 
subsequently  annexed  and  became 
British  territory,  made  a,  grant  of 
the  farm  called  Leutland's  Pan  to  a 
man  called  Piet  Bok.  In  1893  a  Land 
Court  was  appointed  to  inquire  into 
the  claims  to  title  to  land  in  that  por- 
tion of  the  country,  and  on  December  7, 
1893,  this  Land  Court  confirmed  the 
grant  by  Vilander  to  Piet  Bok,  and  the 
necessary  orders  were  subsequently 
i%ued  by  this  Land  Court  for  the  pur- 
pose of  effecting  transfer  to  whoever 
might  be  entitled  upon  that  grant. 
After  the  confirmation  of  this  title  by 
the  Land  Court  many  of  these  titles 
came  into  the  market,  and  the  defen- 
dant Will  in  this  case  tried  to  obtain 
as  many  of  these  as  he  could  secure.  Oa 
the  15th  June,  1894,'  a  sale  was  effected 
by  a  man  called  Frederick  Bok,  as  the 
agent  of  Piet  Bok,  of  this  farm  Leut- 
land's Pan,  to  Will,  for  the  sum  of  £50. 
Subsequent  to  that  further  proceedings 
were  taken  for  the  purpose  of  effecting 
transfer  to  Will,  and  it  is  alkged  that 
on  the  6feh  of  November,  1894,  a  power 
of  attorney  was  obtained  from  Piet  Bok 
to  effect  this  transfer,  and  that  on  the 
same  day  a  declaration  of  seller  was  also 
made  by  Piet  Bok  for  that  purpose. 
Will  then  paid  the  necessary  transfer 
dues,  and  appeared  before  a  notary  pub- 
lic for  the  purpose  of  having  transfer 
executed  that  was  done  on  June  27. 
1895.  After  the  transfer  was  executed 
before  the  inotary  public  it  was  despatch- 
ed to  the  Registrar  of  Deeds  at  Vry- 
burg,  and  there  duly  registered,  and  up> 
on  the  title  deeds  being  put  in  evidence 
the  fact  that  the  registration  had  t^^n 
place  was  endonsed.  The  title  deeds  at 
that  date  vrere  duly  registered  in  the 
name  of  Will,     and     two  bonds    were 

Siaeeed  over  the  property,  one  for  a 
ebt  due  to  the  second  defendant, 
Rosenblatt  and  the  other  to  some  other 
creditor.    On  the  21st  October,  1895,  % 


"CAJ»E  TlMEy  LAW  REPORTS. 


367 


pint  which  U  was  neoeesary  to  oblniin 
from  the  GoyenuxLent   upon    the  docu- 
ment which  had  already  been  executed 
at  Vryburg,  was  made  to  Piet  Bok,  and 
that  grant  was  akso   duly   registered   in 
the  Register  of    Deeds  Office  with  the 
endonement  upon  it  of  the  re^tration 
in     favour     of      Will,         which      had 
been     preyioualy      effected.       Now,    if 
all     these     documents      were  genuine, 
and      all      these     transactions      which 
had     taken     place     were    legal,      Will 
wouJd  now  be   in  possession  of   a  legal 
title  to  the  ground.     After  the  registra- 
tion of  the  title   it  appears  that   oorre- 
.  epondence   proceeded   between  Will    on 
the  one  part  and  Lennox,  who  now  ap- 
pears as   interesteu     on     behalf  of  the 
plaintiff  in  the  case  on  tho  other  part, 
which     proTcs     that  up   to  April,  1896, 
\yill  was  dealing  with  the  property   as 
iiii   own,  and  had  requested  Lennox  to 
see  to     certain     improvements  on   the 
fami,  and  Lennox  had  evidently,    from 
what  one  can  judge  by  the  correspond- 
ence, andertaken  to  do  what  Will  had 
requested  him  to  do  on  the  farm.     Oon- 
sequently  up  t-o  April,      1896,      Lennox 
knew  of  the  claim  to  the  property,  and 
that  Will   intended   to   deal  with  it  as 
his  own.    Leaving  the   matter  there,  I 
shall    endeavour     to  ascertain  the  posi- 
tion taken  up  by    the    plaintiff    in  this 
nutter    to    give  her   a  loctu  $tandi  to 
qoestiou  Will's  title  it   appears  that  on 
March  4,   1887,    it  was  ascertained  that 
Frederick  Bok  was  prepared   to  dispose 
of  this  property  on  behalf  of  his  brother 
Piet  Bok  on  the  ground  that  Piet  Bok 
had  repudiated   the  sale  to  Will  owing 
to  not     having     received   the  purohase 
money.    The  purchase   was   then  made 
from  Piet  Jt5ok  by  the  plaintiff,  and  the 
neceatary    contract   entered    into.      The 
idaintiff  thereupon   set   about  obtaining 
the  registration  of  the  property  in  his 
name,  out  it  was  then  diaooyered   that 
the  prop^iy   was  already  registered   in 
the  name  of  Will  and  had  been  mort- 
gaged.    Nothing  further  seems  to  have 
been  done,  but  in  1896  Lennox  and  the 
pUintiit  took  poasession  of  the  farm  and 
occupied  it.    It  was  neoeesary  to  ascer- 
tain how  it  was  that  Will  holding  trans- 
fer on  the  one  side  and  Mrs.  Van  Nie- 
kerk  being  in  possession  ^  on  the  other 
never     came     into    collision.     Will    al- 
leges     that     he     knew     in     1898  that 
Lennox      viras       in       possession,      but 
did  not  know  of  an;r  claim  by  Mrs.  Van 
Niekerk,  and  this  is    supported    b^     a 
letter,   written  by  Will  m  1902,   giving 
Lennox  orders  to  quit,   and     pay      for 
damages   done   and    rent.     Will   alleges 
that  he  thought  Lennox  had  taken  pos- 
■eaiton  under  an  idea  that  he  had  some 
right  under  a  partnership.     In  1904  the 
bwid    holders  sued  Will,    and   obtained 
iudgment   against   him,    and   Leutland's 
Pan  wa9    doclared   executable,   and   the 
Sheriff  proceeded  to  deal  with  it  under 
the  writ  of  execution.     Thereupon  the 


plaintiff  came  forward  and  obtained  an 
mterdict  to  restrain  the^  sale  of  the  pro- 
perty  upon  a  claim  which  she  then  set 
up  by  virtue  of  the  sale  which  she  had 
entered  into  with  Piet  Bok.  The  claim 
of  plaintiff  then  first  came  to  the  know- 
ledge of  Will,  and  it  was  based  upon  the 
ground  that  the  declaration  oc  pur- 
chaser and  power  of  attorney,  upon  the 
strength  of  which  Will  had  obtained 
transfer  of  the  property  were  forgeries, 
and  the  allegations  to  tnat  effect  depend 
wholly  upon  the  eyidenoe  then  adduced 
by  Rautenbach  and  Kennedy.  An  affi- 
davit was  obtained  from  Rautenbach,  in 
which  he  alleged  that  his  signature  as 
a  witness  to  both  the  declaration  of 
seller  and  power  of  attorney  was  a  for- 
g;ery,  and  that  at  the  time  of  the  execu- 
tion of  these  documents  he  had  not 
been  at  the  place  Klein  Meer.  The  de- 
fendant became  aware  that  he  vrould 
have  to  meet  that  allegation,  and  it 
seemed  that  amongst  certain  documents 
which  he  then  had  in  his  possession,  and 
to  which  Rautenbach  had  also  been  a 
party,  ho  discovered  an  inventory  in  the 
estate  of  J.  Vilander,  and  upon  that 
document  appears  the  signature  of  Rau- 
tenbach as  one  of  the  appraisers  in  an 
appraisement  which  took  place  upon  the 
sixth  day  of  November,  1894.  That 
document  was  placed  in  the  hands  of 
Rautenbach,  who  admitted  that  it  was 
a  g[enuine  document,  and  that  the  ap- 
praisement took  place  at  Groot  Mccr  on 
November  6,  1894.  Here  a  very  mate- 
rial point  in  the  plaintiff's  case  was  dis- 
posed of  by  proof  that  on  the  sixth  No- 
vember, as  appears  on  a  docu- 
ment sifi^ned  by  himself,  and  ad- 
mitted in  the  evidence,  Rauten- 
bach was  at  Great  Meer.  and  that 
upon  his  way  there  ho  passed  by  Klein 
Meer.  Nevertheless,  Rautenbach  per- 
sists in  saying  that  the  signatures  to  the 
documents  are  not  his.  Tho  question 
arises  then :  is  there  any  evidence  as  to 
how  Will  became  possessed  of  these 
documents?  In  referring  to  the  corres- 
pondence I  find  a  letter  of  tho  11th  July, 
1894,  which  is  written  by  Will  to  Rau- 
tenbach, telling  him  that  ho  encloses 
the  power  in  question,  and  asking  him  to 
kindly  get  it  signed.  Mr.  Will  has  said 
that  the  documents  there  referred  to 
were  the  documents  relating  to  tlio  pur- 
chase of  the  farm  from  Bok  on  the 
30th  July.  The  answer  was  received 
from  Rautenbach  "  I  have  received  your 
favours  of  the  20th  June  and  the  11th 
instant.  I  will  try  to  get  Bok  to  sign 
the  transfers  as  soon  as  possible.'*  Here 
the  documents  sent  are  directly  con- 
nected with  Piet  Bok.  Will  states  tho 
documents  he  received  were  the  docu- 
ments in  question,  that  is  the  power  of 
attorney  and  the  declaration  of  seller. 

We  have  it  that  Rautenbach  did  sign 
certain  documents  as  a  witness,  and  the 
c^uestion   is   whether    the    denial   of  the 
signatures  to  these  documents  satisfy  me 


368 


(4 


CAPE  TMEB"  LAW  REPO&TS. 


that  the  documenU  in  queetion  aredocu- 
m,entB  oUier  than  those.  As  to  the 
handwriting  there  can  be  no  doubt  that 
the  signature  was  the  signature  of  Rau- 
tenbach.  The  spelling  of  some  of  the 
documents  is  somewhat  peculiar,  and  I 
ana  satisfied  that  ho  also  filled  in  cer- 
tain words  in  tlie  document  We  have 
it  therefore  that  the  signature  of  Rau- 
tengach  is  perfectly  genuine.  I  do  not 
doubt  Kennedy's  veracity ,  as  he  has 
signed  so  many  documents ;  but  I  be- 
lieve on  the  evidence  that  the  hand- 
writing is  that  of  Kennedy.  I  am  satis- 
fied that  the  documents  were  witnessed 
by  Rautenbach  and  Kennedy,  and  that 
the  signature  attested  by  them  is  that 
of  Piet  Bok.  I  come  to  the  conclusion 
that  these  documents  are  genuine,  and 
that  the  plaintiff  has  failed  to  impeach 
the  title  of  Will,  Will  having  obtained 
his  transfer  in  a  legal  and  regular  man- 
ner is  now  entitled  to  be  regarded  as 
the  owner  of  that  property.  'Ae  praver 
of  the  declaration  is  to  the  effect  that 
the  transfer  of  and  registration  of  WilVs 
title  nuLy  be  declared  null  and  void,  and 
there  is  a  prayer  with  respect  to  the 
other  defendants  that  their  bonds  may 
be  declared  null  and  void.  Upon  the 
facts  I  have  found  in  this  case,  judg- 
ment must  be  given  for  both  the  de- 
fendants with  costs,  the  defendant  Will 
declared  a  -necessary  witness. 

[Attorneys  for  Plaintiff:  Fairbridge. 
Arderne  and  Lawton ;  Attorneys  for  De- 
fendants: Van  Zyl  and  Buissinne.] 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 


GENERAL  MOTION. 


JOSEPH  y.  HOFFMAN  AND    I         1906. 

GOTTLIEB.  (  May  8th. 

Mr.  Burton  nioved  as  a  matter  of 
urgency  on  notice  of  motion  for  an 
order  compelling  the  respondents  to  al- 
low the  applioant  free  and  undisturbed 
access  to  the  premises  of  Gotlieb,  the 
Dominion  Tobacco  Co.,  to  remove  cer- 
tain machinery  at  any  time  during  the 
current  month.  The  machinery  had 
been  hired  to  Hoffman,  and  that  re- 
spondent, after  asking  for  several  post- 
ponements, admitted  that  he  was  un- 
able to  meet  the  instalments.  At  the 
request  of  the  applicant,  the  respon- 
dent Gottlieb  allowed  him  to  store  the 
machinery  for  a  month  at  a  rental  of 
£10.  Hoffman's  estate  was  surren- 
dered on  the  2nd  May,  and  on  the  5th 
May  the  applicants*  workmen  were 
ordered  out  of  the  premises  by  both 
respondents. 


Mr.  Swift  appeared  on  behalf  of  an 
execution  creditor,  to  ask  for  a  short 
poBtponement,  in  order  that  inquiry 
mignt  be  made  into  the  matter.  He 
submitted  if  Mr.  Joseph  was  entitled 
to  the  machinery,  he  could  suffer  very 
little  real  damage  by  a  short  delay. 

Order  granted  as  prayed,  with  costa 
againb-t    tne    respondents. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting-  Chief  JuRtioo,  the 
Hon  Sir  John  Buchanan.] 


RUTTKR  V.  ASHBNDBN.       |  M^y^oth. 

Patent — Infringement — Specifica- 
tion—Repeal. 

In  December,  1902^  A.  de- 
]X)sited  a  specification  describ- 
ing an  in  mention  for  an  acetylene 
generator;  in  March,  1903, 
R.  deposited  a  sjiecification 
describing  an  invention  for  a 
machine  of  the  same  class  ;  in 
April,  1903,  A,  deposited  an 
amended  specijication  of  his 
machifte ;  letters  patent  were 
granted  to  A.,  aftd  subsequently 
to  R. 

Held,  that  R.  cmild  not  succeed 
in  an  action  for  infringement 
against  A,  in  respect  of  ma- 
chines made  and  sold  by  A,, 
ti^ich  were  covered  by  R,^s 
specification  and  by  A,^s 
amended  specification^  btU  not 
by  A, ^s first  specification. 

Held  further,  that  R.^s  machine 
was  covered  by  A.\  previous 
patetU^  and  that  R.  was  not 
the  first  inventor,  and  conse^ 
quently  that  R,*s  subsequent 
letters  pcUeni  ^hotUd  be  re- 
ptaUd. 


This  was  an  action  brought  by  Joha 
Robert  Rutter.  tinsmith  and  ffas-fitter.  of 
Cafe  Town,  against  PercT  Asbenden,  oiril 
engineer,  of  Rondeboscn,  for  an  inter- 
dict restraining  him  from  selling  and 
offering  for  sale  a  certain  acetylene  gas- 
making  maohine  and  for  £500  damages. 


"  CAPE  TIMES "  LAW  BEPORTB. 


The  plaintiflF,  in  his  decl«ration,  taid 
that  he  wu  the  first  and  true  inyentor 
of  certaiii  apparatus  for  generating  aoetv- 
lene  sas,  and  that  on  the  2hst  March, 
1905,  oe  was  granted  letters  patent  run- 
ping  for  fourteen  years.  Sinoe  the  grant- 
ing of  theM  letters  patent,  and  up  to  the 
commeucement  of  the  action,  the  de- 
fendant had  infringed  the  rights  of  the 
plaintiff  thereunder  by  unlawfully  sell- 
ing and  offering  for  sale  articles  of  the 
nature  and  description  protected  by  tho 
said  letters  patent,  and,  while  knowing 
the  premises,  he  had  coniinued  so  to  do. 
Plaintiff  had  lost  the  profits  which  he 
would  have  made  from  the  sale,  and 
manufacture  of  those  articles,  and  sus- 
tained dama^  in  the  sum  of  £500.  He 
claimed  an  interdict  restraining  the  de- 
fendant from  continuing  to  infriuge  his 
patent  righte,  and  also  damages  m  the 
sum  of  £500. 

The  defendant,  in  his  plea,  said  that 
he  was  the  first  and  true  inventor  of  a 
certain  new  manufacture  and  invention, 
to  wit,  certain  apparatus  for  nukking 
acetylene  zae,  and  that,  on  the  31st 
December,  i90S,  letters  patent  were  duly 
Ksued  to  him  according  to  law.  Tho 
articles  which  the  defendant  sold  and 
offered  for  sale,  and  which  were  com- 
plained of  in  the  declaration,  were  all 
articles  protected  by  that  patent.  He 
^d,  further,  that  on  the  21st  March, 
1903.  tho  plaintiff  wrongfully  and  un- 
lawfully, under  cover  of  the  Act  in 
that  beoalf  existing,  caused  the  letters 
patent  described  in  paragraph  3  of  the 
declaration  to  be  iasued,  and  an  entry 
of  the  same  to  be  made  in  the  Register 
of  Patents.  The  aaid  letters  were  invalid 
owing  to  the  letters  patent  granted  to 
the  defendant,  and  the  said  entry  was 
consequently  invalid.  Subject  to  the 
above,  the  defendant  denied  paragraphs 
3.  4,  and  5  of  the  declaration,  and  prasred 
that  the  claim  may  be  dismissed,  with 
costs.  In  reconvention,  he  claimed  an 
order  repealing  the  letters  pAtent  granted 
to  the  plaintiff,  and  directing  that  the 
entry  in  the  Register  of  Patents  be  ex- 
punged. 

Mr.  Upingion  (with  him  Mr.  Ruaeell) 
was  for  the  plaintiff ;  Sir  H.  Juta  K.C. 
(with  him  Mr.  Douglas  Buchanan),  was 
for  the  defendant. 

Mr.  Upington  aaid  be  took  it  thai 
ihe  question  between  the  plaintiff  and 
defendant  was,  were  the  letters  patent 
issued  to  the  plaintiff  valid,  and,  if  so, 
wu  the  machine  sold  by  the  defendant  an 
infringement  of  that  patent?  The 
Kbedule  attached  to  the  declaration 
ihowed  that  defendant  had  aold  to  J. 
Cross  for  £6  an  acetylene  gas  generator, 
which  the  plaintiff  aaid  was  an  infringe- 
ment of  his  patent. 

[Bocbanan,  A.C.J. :  The  first  issue  is, 
has  the  defendant  done  anything  which 
he  hM  not,  under  the  letters  patent 
grtnted  to  him,  the  right  to  do?] 

Mr.  Upingion  aaid  that  the  whole  case 
would  turn  upon  the  device  at  the  foot 
of  the  hopper  for  tiie  purpose  of  feed- 


ing the  calcium  carbide  into  the 
water  below.  The  plaintiff  said 
that  the  device  in  the  defendant's  ma- 
chines was  an  infringement  of  his  pa- 
tent, and  the  question  would  be  whether 
the  defendant,  under  the  letters  patent 
granted  to  him,  was  not  departing  from 
the  specification.  Counsel,  by  the  aid  of 
models,  explained  the  system  of  work- 
ing, and  the  points  of  similarity  between 
Uie  feeders  in  the  respective  machines. 

Carl  Brown,  clerk  m  the  Colonial  Se- 
cretary's oflBce,  produced  the  specifica- 
tions of  the  plaintiff's  and  defendant's 
patents. 

John  Robert  Rutter  (the  plaintiff)  said 
he  was  a  plumber  and  gasfitter,  carrying 
on  business  at  Castle-street,  Cape  Town. 
He  was  the  limelight  operator  at  the 
Opera  House,  and  had  been  employed 
in  that  position  since  the  days  of  Cap- 
tain Roebuck.  Witness  had  made  a  spe- 
cial study  of  gas  lighting,  and  had  ex- 
perimented in  the  manufacture  of  acety- 
lene gas.  He  had  his  first  machine  all 
work  in  1902,  when  the  machine  was  in- 
stalled in  his  house.  He  had  known  the 
defendant  between  three  and  four  years; 
defendant  saw  the  machine  at  work  in 
his  (witness's)  shop  in  1903.  That  was 
the  machine  substantial! v,  as  witness  pa- 
tented it  Witness  had  done  work  for 
the  defendant,  and  had  constructed  some 
portions  of  hjs  machine  before  he  (de- 
fendant) got  his  patent.  Witness  did 
not  construct  the  internal  parts,  but  he 
saw  them,  and  defendant  asked  him  not 
to  mention  the  matter  to  anybody.  De- 
fendant was  often  at  witness's  shop  while 
he  was  experimenting.  Witness  lodged 
his  specification  with  the  Attorney-Gen- 
eral on  March  21,  1903.  Ashenden  laid 
an  objection  on  June  9 ;  witness  knew 
that  Ashenden^s  objection  was  heard  a 
few  days  later.  Letters  patent  were  is- 
sued to  witness  on  September  21,  1903, 
dating  back  to  March  21.  The  machines 
that  witness  was  now  selling  were  iden- 
.tioal  with  the  machine  that  he  showed 
to  the  Attorney- General  when  he  made 
his  application,  and  corresponded  with 
the  specification.  The  machine  in  Court 
was  produced  to  him  by  one  Cross; 
he  had  examined  it,  and  found  that 
so  far  as  the  feeding  of  the  carbide  was 
concerned  it  was  identical  with  his  own. 
except  that  the  weight  at  the  end  of 
the  lever  was  loose,  while  in  his  own 
machine  it)  was  fixed.  The  action  in 
both  machines  was  exactly  the  same. 
Witness's  complaint  was  wholly  directed 
to  the  infringement  of  the  method  of 
feeding  the  water  with  carbide.  Wit- 
ness had  been  harmed  in  his  business; 
people  had  told  him  that  they  could  not 
give  him  orders,  because  the  machine 
was  Ashenden's  patent. 

Cross-examined  by  Sir  H.  Juta:  The 
defendant  saw  witness's  machine  working 
in  May,  1902,  at  Rondebosch.  Witness 
did  not  know  that  the  defendant  had  a 
machine   working  at  the  Public  Works 


I 


S70 


*'CAPB  T1MH6"  LAW  RBPC«Tfl. 


Department  in  Jaly,  1902.  Witness  did 
not  get  his  two  halvee  from  Asbenden's 
specincationB. 

In  further  oroas-examination,  the  wit- 
ness said  the  second  valve  was  the  cock 
on  the  top  of  the  machine,  and  when 
that  was  opened  the  air  escaped,  and 
the  gasometer  sunk  until  the  lever  rested 
on  the  flans[e,  and  in  doing  so  allowed  a 
small  quantity  of  carbide  to  escape. 

Re-examined:  The  form  of  gasometer 
used  was  the  one  in  ordinary  use.  Wit- 
ness did  not  claim  any  patent  on  the 
oock,  but  claimed  for  the  automatic 
valve  and  the  general  simplicity.  He 
had  not  stolen  t^e  idea  of  his  machine 
from  Mr.  Ashenden.  It  was  "  more  like 
the  other  way.'* 

By  the  Court :  Witness  had  sold  about 
40  of  the  machines  in  the  last  two  years, 
ranging  in  price  from  £6  to  £120.    Wit 
ness  made  about  20  per  cent. 

Mr.  CairnorosB^  Engineer,  also  gave 
evidence.  He  said  that  there  was  only 
one  valve.  There  had  apparently  been 
an  error  in  drawing  the  specification, 
and  the  valve  I  was  really  the  valve  F. 

Cross-examined :  Witness  did  not  agree 
with  Mr.  Rutter  that  valve  I  was  the 
cock  outside  the  holder.  If  the  gasome- 
ter was  very  large,  it  might  be  neces- 
sary to  have  appliances  to  open  the 
valve  F. 

George  Lacey  Good,  engineer,  said  he 
had  examined  the  specification  and  plans 
of  the  plaintiff  and  defendant  in  the 
case.  Witness  had  particularly  examined 
defendant's  specification,  and  did  not 
think  Rutter  a  machine  could  be  con- 
structed from  it. 

Cross-examined :  Witness  considered 
that  it  was  possible  to  construct  Rut- 
ter's  apparatus  from  the  specification 
and  plans  produced  by  plaintiff. 

Mr.  Upington  closed  his  case. 

Professor  Henry  Payne,  Professor  of 
Engineering  at  the  South  African  Col- 
lege, said  he  had  been  through  the  com- 
plete specification  of  the  defendant,  and 
also  the  plaintiff.  Witness  could  read- 
no  sense  in  the  patent  of  the  plaintiff  as 
regards  the  two  valves,  nor  was  there 
any  sense  in  the  words  *'  fourth  end  off 
a  lever." 

Cross-examined :  Witness  considered 
the  two  valves  in  defendant's  specifica- 
tion was  a  vital  defect. 

Paul  Daniel  Hahn  Lecturer  on  Cbem- 
istrv  at  the  South  African  College,  said 
he  had  considerable  experience  in  acety- 
lene ^as  plant,  and,  having  examined 
plaintiff's  specification,  was  distinctly  of 
opinion  that  the  person  who  drew  ous 
the  specification  intended  there  should 
be  two  valves. 

H.  C.  Geering,  mechanical  engineer, 
said  he  saw  a  machine  at  work  at  Mr. 
Asbenden's  house  in  May,  1902.  The 
valve  was  actuated  in  the  same  mann'^r 
as  defendant's. 

Percy  Ashenden,  defendant,  said  Rut- 
ter never  showed  him  a  generator  with 
a  valve,   but  showed  him  one  without 


a  valve,  tnd  witness  now  had  it  in  his 
possession.  Witness  was  certain  that  he 
sent  in  the  amended  specification  in 
JanuaiT,  190i5,  to  his  a^enis. 

Sir  H.  Juta  dosed  his  case,  and  coun- 
sel were  heard  in  argument  on  the  facts. 

Buchanan,  A.U  J.,  in  giving  judgment, 
said:  The  plaintiff  obtained  letters 
patent,  dated  21st  March,  1903,  securing 
to  him  rights  for  what  was  alleged  by 
him  to  b«  an  invention  for  automatic 
feeding  of  carbide  of  calcium  to  a 
machine  for  generating  acetylene  gas. 
It  was  contended  for  the  defence  ^at 

glaintiff's  specification  of  his  invention 
ad  been  drawn  up  in  such  an  irregular 
and  incomplete  manner  that  no  practical 
workman  could  ascertain  the  object  of 
the  patent,  or  manufacture  a  machine 
from  the  description  given.  Expert  evi- 
dence has  been  called  on  both  sides, 
and  as  is  nob  unusual,  the  opinions  of 
the  experts  incline  to  the  side  which  en- 
gap:ed  it.  I,  however,  agree  with  the 
evidence  led  for  plaintiff  that  from  the 
specifications  and  diagrams  filed,  a  mic- 
tical  workman  could,  even  though  a 
theoretical  expert  could  not,  construct  a 
machine.  We  must,  therefore,  deal  with 
this  case  on  the  merits.  The  defendant 
justifies  his  conduct  on  the  ground  that 
he  also  had  secured  letters  patent  at  an 
earlier  date  than  those  of  the  plaintiff. 
There  is  no  claim  that  the  defendant's 

Eaten t  is  invalid,  but  only  that  his  speci- 
cations  do  not  cover  the  device  paten- 
ted by  plaintiff,  and  it  is  on  this 
question  that  the  case  mainly  depends. 
The  defendant  filed  his  first  specifica- 
tion and  acquired  a  provisional  protec- 
tion of  his  desi^  on  the  31stl>ecember. 
1902.  This  specification  was  for  an  auto- 
matic feeder,  which  was  actuated  by 
means  of  a  wheel  and  float.  The  plain- 
tiff filed  his  specification  and  designs  on 
the  21st  Marcm,  1903,  showing  an  auto- 
matic feeder  actuated  by  means  of  a 
lever  and  weight,  a  certainly  more  simple 
device  than  the  one  described  by  defend- 
ant. The  defendant  filed  what  is 
marked  as  a  complete  specification  of  his 
invention  on  the  13th  April,  1903,  and 
this  second  specification  covers  both  de- 
vices. On  the  first  blush  it  appeared 
that  letters  patent  of  December,  1902, 
could  not  cover  an  invention  disclosed 
by  the  defendant  only  in  the  April 
following.  But  I  find  that  although 
letters  patent  are  issued  within  six 
months  of  the  deposit  of  the  specifica- 
tions, by  the  13th  section  of  the  Patents 
Act  when  issued  they  must  be  sealed 
and  bear  date  as  of  tne  day  of  the  de- 
posit of  the  specifications.  As  a  fact 
the  defendant's  patent  was  issued  on 
the  30th  June,  and  the  plaintiff's  in 
the  following  September,  so  that  when 
the  defendant  obtained  his  patent  his 
complete  speoification  had  been  deposit- 
ed. The  letters  patent  do  not  describe 
the  invention,  this  must  be  dotennined 
by  referenoe  to  the  speoifioations.    The 


''cAt^E  Thttjs'*  Law  hEtoitTS. 


m 


defendant  had  a  nK>del  of  hk  maohine 
in  WMk,  which  ith  aotuaied  by  a 
weight  and  lever  before  he  filed  his 
fint  specification,  and  at  first  it  seemed 
sknnge  he  should  not  have  induded 
ihis  deince  in  any  specification  until 
after  the  plaintiff  had  deposited  his 
speeification ;  but  it  would  seem  from 
tiie  20th  section  of  the  Act  that  the 
ipeoificfttioiia  deposited  may  not  be  in- 
spected by  the  public  until  after  letters 
patent  are  granted,  so  that  neither 
party  could  have  had  access  to  the 
othei's  specifications.  The  defendant 
stated  be  handed  the  draft  of  his  com- 
plete specification  to  his  attorney  to  be 
iiled  within  a  day  or  two  of  depositing 
the  first  specification,  and  that  he  left 
town  shortly  after,  and  it  was  only  on 
his  return  to  town  that  his  attorney  ob- 
tained his  signature  to  a  clean  copy, 
which  was  then  deposited,  and  that 
this  was  done  in  ignorance  of  the  terms 
of  plaintiff's  specification.  In  both 
specifications  the  object  in  view  was  to 
regulate  automaticiuly  the  feeding  of 
the  carbide  into  the  generator,  the  dil- 
feienoe  of  the  two  methods  being  in  the 
mechanism.  The  principle  of  weifi[ht 
aod  lever  is  oonunon  to  both  the  p4ain> 
tiifs  and  the  defendant's  designs, 
though  perhaps  the  plaintiff's  is  the 
more  neatly  designed  and  executed.  But 
the  idea  is  the  same,  and  does  not  con- 
stitute a  different  inyention.  By  the  4th 
section  of  the  Act  the  Attorney-General 
may  during  the  term  of  six  months,  for 
which  the  provisiofial  {protection  is 
panted,  and  before  the  issue  of  the 
Ktten  patent,  allow  either  the  original 
specification  to  be  amended  or  another 
and  sufficient  specification  to  be  de- 
posited in  lieu  thereof,  and  every  such 
amended  new  specification  sbaH  have 
the  same  force,  effect  and  operation  as 
if  it  had  been  originally  deposited  in  its 
smended  state.  In  the  absence  of  any 
fraud  therefore  the  defendant  is  entitled 
to  refer  to  his  complete  specification  as 
interpretini^  his  patent,  and  as  his  let- 
ten  are  prior  to  those  granted  to  the 
plaintiff  for  the  Mme  invention,  he 
nnst  be  held  to  be  justified  in  selling 
the  machines  of  which  the  plaintiff  com- 
pisins.  Judgment  will  tnerefore  be 
given  in  convention  for  the  defendant. 
As  to  the  claim  in  reconvention,^  both 
on  the  ground  that  the  plaintiff  is  not 
the  first  inventor  and  also  that  the  de- 
fendant had  obtained  prior  letters  pa- 
tent, which  letters  still  stand  and  are 
not  sought  to  be  set  aside,  on  order  will 
be  granted  for  the  cancellation  of  the 
subsequent  letters  patent  granted  to  the 
plaintiff.  Hie  plaintiff  must  pay  the 
costs  ci  this  action. 

Judgment  accordingly  for  the  defen- 
dant, with  costs. 

[PlaintiTs  Attorney:  A.  W.  Steer; 
Defenduit's  Attorneys:  Beid  and 
MepimrJ 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  Johk  Bdohanak.] 


1D1II86I0N. 


{ 


1906. 
May   nth. 

Upon  the  application  of  Mr.  J.  E.  R. 
do  Villiers,  A.  R.  Fleischack  was  sworn 
as  a  translator  to  the  Court. 


PROVISIONAL      ROLL. 


SEiriOE  V.  ATTWOOP. 

Mr.  ^  Douglas  Buchanan  applied  for 
pfovisioiial  sentwice  on  a  mortgage  bond 
of  £800,  together  with  interest,  and  that 
the  prooerty  specially  hypothecated  be 
declared  executable. 

Granted. 


8.1.  MUTQAL  V.  M0BSJ16. 

Mr.  Douglas  Buchanan  applied  for  pro- 
visional sentence  for  interest  on  a  Irand 
for  £800,  amounting  to  £24. 

Granted. 


ZBBDBBB£RO  AND  DUNG  AN  Y.  JA00B8. 

Mr.  Douglas  Buchanan  a{>plied  for 
provisional  sentence  on  promissory  notes 
fur  £44  4s.  lOd.  and  £58  16s.  6d.,  al«o 
for  judgment  on  amounts  owing  of  £2 
Is.  2d.,  £3  lis.  3d.,  £27  7s.  4d. 

Buchanan,  A.C.J.,  said  that  defendant 
had  imtil  the  afternoon  to  enter  ap- 
pearance on  those  latter  amounts. 
There  would  be  judgment  for  the  pro- 
missory notes,  the  other  amounts  to 
stand  over. 


SLDITBB  v.  YAM  ZYL. 

Mr.  Swift  applied  for  provisional  sen- 
tence for  £303  Os.  5d. 
Granted. 


BOARD  OF  EXB0UT0B8  Y.  YAM  ZYL. 

Mr.  Watermeyer  applied  for  provisional 
sentence  on  a  mortgage  bond  for  £288. 
Granted 


BCHWBYE8  Y.  FBIEDGOOD. 

Mr.  Douglas  Buchanan  applied  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £2,000.  with  coats,  less  £18T8s.  paid, 
also  that  toe  property  be  declared  execu- 
table. 

Gnmted. 


372 


i< 


CAPS  TIMES"  LAW  REPOATSu 


0HL88OM*B  BBBWBBIE8  V.  BBADSHAW. 

Mr.  Strubeii  applied  for  provisional 
sentence  for  amount  awarded  under  a 
judgment. 

An  affidavit  was  filed  by  the  defen- 
dant to  the  effect  that  he  had  been 
charged  for  beer  he  had  not  received. 

Buchanan,  A.C.J. ,  said  that  as  de- 
fendant was  resident  in  the  Transvaal 
he  did  not  see  what  jurisdiction  the 
Court  had.  The  case  of  Benjamin 
settled   the   matter. 

The  case  wa«  adjourned  until  Saturday 
to  give  plaintiff  time  to  file  affidavits. 


EATON  AND  CO.  V.  VAN  ZYL. 

Mr.  Sutton  applied  for  a  proviaioDal 
order  of  sequestration  of  aefendant'e 
estate  to  be  made  absolute. 

Order  granted. 


ILLIQUID  ROLL. 

CAPE  TIM B8,  LTD   V.  GABDI- |        1905. 

NEB  AND  EA8TON.  <  May    llth. 

Mr.  McGregor  applied  for  judgment, 
under  Rule  329d,  for  an  amount  due  for 
advertisin^^r. 

Application  granted. 


STOOLSTAINEB  A'VD  00.  V.  TUCHTBN. 

Mr.  Swift  applied  for  judgment  for 
an  amount  for  goods  delivered,  or  a 
statement  of  account;  also  for  an  order 
calling  upon  the  defendant  to  render  to 
the  plaintiffs,  as  agents  for  certain 
firms,  an  account  in  respect  of  ▼arioua 
consignments  of  goods.  Counsel  read 
affidavits  on  behalf  of  the  plaintiffs,  in 
which  they  stated  that  thev  had  always 
communicated  with  defendant  at  Cape 
Town,  and  that  they  did  not  believe  that 
defendant  was  now  domiciled  in  Johan- 
nesburg. 

Judgment  for  plaintiff  as  pmyed. 


COLONIAL  GOVEBNMENT  V.  SCHWABTZ. 

Mr.  Nightingale  applied  for  pro- 
visional order  on  two  mortgage  bonds 
for  £1,360  and  £582,  with  interest, 
and  that  the  property  specially  hypothe- 
cated be  declared  executable. 

Application  granted. 


VAN  HOLT  V.  PORTER. 

Mr.  De  Waal  applied  for  judgment 
for  an  amount  received  by  Porter  for 
land   sold. 

Application  granted. 


HALL  V.  KABOO  B0BIN<3  CO. 

Mr.    Upington  Applied,    under     Rule 
319,  for  judgment  for  £121  19b.  Id. 
Judgment  aooordtngly. 


REHABILITATION. 

Mr.  P.  S.  T.  Jones  applied  for  the 
rehabilitation  of  Frederick  Joseph  Wells. 
The  affidavit  was  to  the  effect  that  the 
insolvency  took  place  ten  years  ago,  and 
there  had  been  a  full  and  fair  sur- 
render. The  applicant  was  •  grocer. 
The  trustee  reported  that  the  books 
were  not  satisfactory,  but  the  applicant 
had  c^ven  every  assistanoe  in  liquida- 
tion. 

Application  granted. 


GENERAL    MOTIONS. 


BOTHA  V.  PHILLIPS. 


f        1905. 

IMay  llth. 

This  was  an  application  for  reasonable 
security  for  costs  in  an  appeal  noted 
by  Botha.  The  affidavit  of  Botha 
stated  that  he  had  good  ground  for  his 
appeal,  and  would  be  prepared  to  pay 
any  costs  awarded  bv  the  Supreme  Court. 

Mr.  Close  was  for  the  applicant  (Phillips) 
and  Mr.  Gutsche  was  for  the  respondent. 

Buchanan,  A.C.J.,  said  it  was  neither 
the  custom  nor  the  law  oi  this  country 
that  persons  should  be  required  to  give 
secunty  because  they  were  poor.  The 
application  most  be  refused. 


LAVfSON  V.    BB8IDENT  MAGIBTBATB, 

CAPS. 

This  was  an  application  for  an  order 
calling  on  the  respondent  to  show  cause 
why  a  certain  memorial  in  connec- 
tion with  an  application  for  a  wine  and 
spirit  licence  should  not  be  given  up. 
Affidavits  had,  however,  been  filed,  and 
li  appeared  that  proceedmgs  were  being 
taken  against  the  person  who  collected 
the  signatnires.  The  memorial  had  been 
impounded  in  connection  with  that  case, 
and  under  the  circumstances  the  appli- 
cant did  not  intend  to  proceed  with  the 
application. 

Mr.  Upington  was  for  the  appUoant 
and  Mr.  Nightingale  was  for  the  re- 
spondent. 

Application  withdrawn  accordingly. 


•l 


H17KTBB  v.  HBBNRN. 

This  was  an  application  for  an  order 
for  oompukory  liquidation  of  a 
certain  partnership.  From  the  peti- 
tion it  appeared  that  in  1904  ap- 
plicant saw  an  advertisement  for 
a   partner  with  £400,   and    offering    a 


"CAPE  TIMES"  LAW  REPORTS. 


378 


f alary  of  £20  per  monfeh.  In  interviews 
defendant  stated  that  he  was  malsing 
£40  per  month,  and  that  it  could  be 
iocreaaed.  The  business  was  the  Ek;lipse 
Aerated  Water  Factory,  Woodstock.  Re- 
fDondent  said  that  the  debts  were 
a  boat  £400,  and  that  the  accounts  out- 
standing were  more  than  that.  Appli- 
cant therefore  paid  £400  for  a  one-half 
share  m  the  buc»iness.  Applicant  joined 
the  business  in  December,  1904.  Respon- 
dent shortly  afterwards  drew  money 
from  the  bank  to  the  amount  of  £75, 
and  in  consequence  applicant  could  not 
draw  bis  salary  at  me  end  of  Decem- 
ber. Applicant  had  only  received  db42 
as  salary  for  four  months.  Believing 
that  the  business  was  being  run  at  a 
loss,  applicant  decided  to  termimite  the 
partnership  on  March  15.  In  reply  the 
respondent  said  if  applicant  wished  to 
dissolve  the  partnership  he  must  arrange 
for  the  sale  of  his  portion,  as  respon- 
dent did  not  wish  to  buy  it.  Applicant 
a^ked  for  an  order  for  liquidation,  and 
for  the  appointment  of  a  liquida- 
tor. The  answering  affidavits  of 
icspondent  and  Mr.  Coats  stated  that 
the  business  was  not  run  at  a  loss  to 
their  knowledge,  and  that  the  £400  put 
in  by  applicant  was  much  less  than  half 
the  amount  paid   into   the   business. 

Mr.  Douglas  Buchanan  was  for  the 
applicant,  and  Mr.  Upington  was  for  the 
respondent. 

Counsel  contended  that  the  applicant 
nust  give  reasonable  notice  of  aissolu- 
tion.  If,  however,  the  Court  decided  to 
order  liquidation,  then  he  was  instruct- 
ed to  say  that  applicant  objected  to 
the  appointment  of  Mr.  Close  as  liqui- 
dator, and  suggested  a  substitute  in 
Mr.  Maynard  Naah. 

An  order  was  made  liquidating  the 
wtate  and  appointing  Mr.  Maynard 
j*f -i**  I^ceiver  to  the  business,  and  to 
jhstnbute  the  asseto.  The  date  of  disso 
ution  of  partnersnip  to  be  March  35 
last 


JOHKBOH  V.  CHIAPPINI. 

Mr.  Burton  was  for  the  respondent, 
fS?  '***®^  there  was  no  appearance  on 
the  other  side.  Johnson  obtained  a 
nile  nut  restraining  respondent  from 
waling  with  a  certain  horse.  Counsel 
*y  »pplied  that  the  rule  be  discharged. 

Rale  nin  discharged  accordingly. 


^«  parte  the   recbivebb  grakd 

JUNCTION  RAILWAYS. 

Mr.  Upington  applied  for  an  order 
authorising  and  empowering  the  Re- 
ceivers to  inderanifv  A.  F.  Hills  from 
josts  incurred  in  defending  an  appeal  of 
the  Colonial  Government  against  a  judg- 
Djent.  The  action  of  Hills  was  for  the 
penent  of  the  Receivers  and  the  credi. 
ton. 

Application  was  granted. 


[Before  the  Hon.  Mr.  Justice  Maasdosp.  ] 


X7MHLBBE  V.  UMHLEBE. 

This  was  an  application  to  make  abso- 
lute a  rule  nisi  reatraining  the  executor 
in  the  estate  of  the  Tate  Zaccriah 
Umhlebe  from  dealing  with  certain  pro- 
perty in  Glen  Grey,  pending  an  action 
to  be  brought  by  the  applicant. 

Mr.  Sutton  was  for  the  applicant,  and 
Mr.  Burton  for  the  respondent. 

Counsel  having  been  hoard  in  argu- 
ment, 

Maasdorp,  J.,  said  that  with  the  in- 
formation before  the  Court,  the  appli- 
cant was  not  entitled  to  the  eztra- 
ordinarv  remedy  of  an  interdict,  and  re- 
fused the  application,  with  costs. 


PALMER  V.  CAPS  COLD  STORAGE  CO. 

This  was  an  application  on  notice  of 
motion,  calling  on  the  respondent, 
who  was  plaintiff,  to  show  cause  why  a 
judgment  given  on  18th  April,  1905, 
should  not  be  set  aside,  and  the  de- 
fendants allowed  to  purge  their  default. 
No  notice  of  set  down  of  trial  was 
given  to  the  defeuuants'  attorneys, 
w!h>o  wene  defending  the  oa»e  on  a  ques- 
tion of  costs,  the  plaintiff  refusing  to 
give  anv  prooif  of  hii^  ownership  of  a 
certain  honse. 

Mr.  Upington  was  for  the  applicants 
(defendants  m  the  case),  and  Dr.  Rains- 
ford  was  for  the  respondent. 

Maasdorp,  J.,  eai<x  there  was  a 
bona  fide  intonition  on  the  part 
of  ithe  defendanit  to  appear  at  the 
trial  Jto  defend  the  actaon,  mainly  if 
not  wholly  on  the  question  of  costs. 
That  intention  was  not  carried  out 
through  some  mishap  to  the  service  of 
noitice  of  itriaJ.  The  judgment  would  bo 
set  aside,  and  leave  granted  to  the  appli- 
cant to  purge  his  default,  and  to  take 
the  evidence  of  one  Harry  Saunders,  on 
commission,  Mr.  Stapleton,  of  Graham's 
Town,  appointed  to  act  as  commissioner, 
tho  question  of  costs  to  stand  over. 


ROBERTS  y.  ESTATE  ROBERTS. 

Thos  was  an  appHc»tion  to  have  a 
certain  order  of  Court  restraining  the 
oppliciant  <the  defendant  in  a  former 
aonon),  from  disposing  of  certain  goods 
altbadhed  by  ithe  Oount  discharged. 

Mr.  Roux  was  for  the  applicant,  and 
Mr.    Gardiner   was   for  the  respondent. 

Order  discharged  with  costs,  includ- 
ing the  costs  of  the  former  application. 


I 


Ex  parte  CHADdogk. 

Dr.  Raansford  moved  for  leave  to 
assume  the  death  of  the  petitioner's 
husband,  Edward  T.  Chaddook,  and  her 


874 


**CAt»B  TIMES"  LAW  ItEt^OttTS. 


son,  Robert  J.  CThaddock,  and  for  an 
order  authorising  the  Master  to  issue 
letters  of  administration.  The  peti- 
tioner's husband  and  son  were  respeo- 
tiTely  master  and  engineer  of  the  8.8. 
Dee,  which  was  wrecked  in  February 
last  oflP  the  Albatross  Rock. 

iMuasdorp,  J.,  toad  his  difficulty  was 
that  the  application  was  somewhat  pre- 
mature. 

These  people  mi^ht  have  been  picked 
up  by  a  passing  ship.  A  rule  nisi  would 
be  granted,  calling  on  all  concerned  to 
show  cauae  by  the  1st  August  why  the 
death  notice  should  not  be  accepted  by 
the  Master,  and  letters  of  administra- 
tion issued,  one  publication  in  the  "  Cape 
Times'*  and  one  in  the  "Cape  Argus." 

PoBtea  <Augu9t  1).  (Etule  mode  abx>- 
lule. 


£x  parte  ESTATE  VAN  DEB  BESO. 

Mr.  Alexander  moved  for  leave  to  the 
petitioner,  who  is  executrix  in  the  ?-3tate 
of  her  late  husband,  to  transfer  certain 
property  which  she  bought  out  of  the 
estate  at  a  public  auction.  There  was 
evidence  that  the  price  was  satisfactory. 

Granted. 


WHITE,  BY  AN  AND  CO.  V.    FLOBIDA. 

Mr.  Lewis  applied  for  leave  to  attach 
certain  lots  of  ground  at  Retreat  ad 
fundandam  jurUdictionem  agamst  the  de- 
fendant in  an  action  to  recover  £50  5s. 
lid.,  which  the  respondent  owed  to  the 
applicants  for  goods  sold  and  delivered. 
The  respondent  was  la«t  heard  of  in 
Ontario. 

Order  granted  with  leave  to  sue  by 
edictal  citation,  personal  service  if  pos- 
sible, failing  which  one  ^  publication  in 
the  "Gazette''  and  one  in  a  newspaper 
circulating  iii  Freeborn,  Ontario,  ana  a 
copy  of  the  citation  to  be  addressed 
care  of  the  Postmaster,  Freeborn, 
Ontario. 


JCx  parte  LIBBBNBEBO. 

Mr.  Du  Toit  moved  for  leave  to  the 
^titioners  to  transfer  a  certain  share 
of  1,500  morgen  in  a  farm  on  the  pay- 
ment of  £900  into  the  African  Mutual 
Trust  Company  or  any  other  institution 
ordered  by  the  Court. 

Order  granted. 


JEx  parte  LOUW. 

Mr.  P.  S.  T.  Jones  moved  for  an 
order  consenting  on  behalf  of  the 
minors  te  the  partition  of  certain  pro- 
perty. 

Granted. 


E»  parte  LOYAL  OAK  LODGB. 

Mr.  Sutten  moved  for  an  order 
authorising  the  Registrar  of  Deeds  to 
pass  transfer  of  certain  property  at 
Uitenhage. 

Granted. 


jE>  Jfarte  EXBCUTOBS  B8TATB  BLACK. 

Mr.  Watermeyer  moved  for  an  order 
authorising  certain  money,  to  the  ex- 
tent of  £700  which  had  been  advanced 
to  lone  <rf  the  'heire  to  ibe  refSaM  out  of 
this   portion  of  (the  eertsiAe. 

Granted. 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  Hoplby.] 


GENERAL  MOTION. 


OHLSSON'S  BBEWBBIEB   V 
BBADSHAW. 


•( 


1905. 
May   12th. 


Mr.  Struben  moved  as  a  matter  of  ur- 
gency for  the  arrest  of  the  defendant  in 
order  to  found  jurisdiotion. 

Order  granted. 


SUPREME  COURT 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


ADMISSIONS. 


{ 


1905. 
May   13th. 


Mr.  P.  S.  T.  Jones  moved  for  the 
admission  of  Malcolm  N.  Maclnnes  as 
an  advooate.  The  applicant  asked 
that  the  oath  be  taken  in  Johannes- 
burg. 

Application  granted,  oath  to  be  taken 
before  the  Registrar  of  the  Witwaten- 
rand  High  Court. 

Mr.  Alexander  moved  for  the  admis- 
sion of  B.  Ginsberg  as  an  attorney  and 
notary. 

ApplioaJtion  granted  and  odths  admin- 
istered. 


i-i 


GENERAL    MOTION. 

OHL880N*B  BBEVTBEIBB  T.  BBADSHAW. 

Mr.  UpinfilicxL  moTod  aa  a  matter  of 
urgency  l<nife   ditohaiKe   ci  writ   of 


«« 


GAPS  TDIES"  LAW  RRP0RT8. 


876 


arrest  whi<di  had  beeo  ianued  on  Fri- 
day a^iiut  tbe  defeodaBL  The  debt 
araae  to  the  TraiuTaal,  the  oontnot 
WM  made  tbeve  and  performed  there, 
and  the  defendant  had  no  property  in 
this  colony.  He  waa  beie  on  a  teic- 
porary  viait,  and  waa  learinff  shortly 
for  the  Transvaal.  Counsel  cited  tlw 
cases  of  Solomon  and  Wolf  (8  C.T.B., 
184,  519)  and  Einwald  v.  The  Qerman 
South-west^  Aftiea  Company  (5  Juta  86), 
and  anhmitted  there  was  no  jurisdiction 
of  any  kind. 

Mr.  Struben  read  the  affidavit  on 
whioh  the  writ  of  arrest  ad  fundandam 
ptrisdietionem   waa   issued. 

The  affidavit  set  out  that  the  defen- 
dant had  no  property  in  the  Tranavaal, 
and  did  not  intend  returning  there. 
Ahhooffh  he  had  no  property  nere.   it 


possessed  of     a 
{   ready       cash. 


for 
pro- 


beoeved     he  waa 
cooaderable    amount  o: 
Counsel  said  he  intended  to  aippLj 
oonfirmation   of  the   writ   and  for 
▼isiooal  sMitenoe.       The  defendant  was 
the  leasee  of  the  Elandsfontein     Hotel, 
and  bemg  pressed  for  jpayment,   he  set 
up  a  counter-claim  of  £500  against  the 
company  for  short  delivery  in      certain 
casks.        He    entered   appearance,    but 
no  plea  was     filed,  and  the  defendant 
was  barred.      During    that     period  the 
defendant      leased  the   hotel.        As  he 
failed  to  pay  the  amount  of  the  judg- 
ment, a  writ  waa  issued,  when  it  was 
foand  be  had  left  Johannesburg. 

Mr.  Upington  submitted  that  the  pre- 
sent case  was  on  all-fours  with  the  case 
of  Einwald,  and  that  the  Gourt  would 
not  asBome  jurisdiction  by  attaching 
the  defendant's  person.  Both  the 
parties  had  a  domicile  in  the  IVansvaal, 
and  there  was  no  proof  that  the  defen- 
dant wss  making  the  0^>e  Colony  his 
domicile. 

IBodhanan.  A.C.  J. :  I  tlnnk  tftits 
oaie  is  not  ait  all  governed  by 
the  esse  ol  ESinwald,  whioh  must 
be  adhered  <to,  but  is  nOt  appli- 
cable in  this  case.  I  think  the  wnt  of 
arrest  must  be  confirmed,  and  the  defen- 
dant must  either  remain  in  gaol  or 
^▼e  leeurity  pending  further  proceed- 
logB.,  ^  The  defendant  will  be  released 
on  giTinij^  security  to  the  satisfaction  of 
the  Registrar  in  tbe  sum  of  £100  to 
»ide  the  judgment  of  the  Court.  The 
summons  will  have  to  be  set  aside  and 
toe  action  instituted  forthwith. 


PROVISIONAL  ROLL. 


8C0TT  V.  lOBBT. 


I 


1905. 
May  13th. 

Mr.  Lewis  moved  for  a  decree  of  civil 
imprisonment  on  an  unsatisfied  judgment 
of  the  Oouit  for  £50,  with  interest  and 


Tbe  defendant  tfapeared  recently  be- 
foTO  Mr.  Juatios  Maasdorp,  who  gave 
him  time  on  a  statement  ^ihat  be  ne^r 


received  Ifiie  summons.  fie  saad  the 
fii9t  ndtifioaibion  he  bad  had  of  the 
martiteir  was  when  he  saw  it  in  the 
putfpbr.  (He  wan'ted  the  oase  re-0|pened. 
Decree  granted,  execution  suspended 
for  one  month. 


POPPE  AMD  BENNBTT  V.  BIIOWN. 

Mr.  Burton  appeared  on  behalf  of  the 
afisTgnees,  and  Mr.  Gutache  was  for  the 
defendant.  Mr.  Cxutscho  moved  for  tho 
final  adjudication  of  the  defendant's  es- 
tate. Mr.  Burton  opposed  the  appli- 
cation, and  read  the  affidavit  of  the  de. 
fendant.  who  repudiated  all  liability  to 
tho  petitioners. 

Mr.  Gutsohe  pointed  out  that  the  de- 
fendant had  given  notice  in  the  *'  Ga- 
aette  "  of  his  intention  to  surrender,  and 
counsel  said  that  that  was  proof  of  insol- 
vency. 

The  proviaional  order  of  sequestration 
waa  set  aside  on  the  ground  of  the  in- 
sufficient evidenoe  in  the  affidavit  upon 
which  it  was  originally  granted. 


ARDEBHB  AJSTD  CO.  V.  OIBD. 

Mr.  Roux  nooved  for  proviaional  sen- 
tence on  a  promissory  note  for  £100, 
with  coats. 

Granted. 


VAN  DER  BYL  V.  MOHADIBM. 

Mr.  Struben  moved  for  the  final  adju- 
dioation  of  the  defendant's  estate  as  in- 
solvent. 

Granted. 


LB  BOUX  V.  DB  VILLI  BBS. 

Mr.  Du  Toit  moved  for  provisional 
sentence  for  £24  4a.  6d.,  on  a  cheque, 
with  costs. 

Granted,  subject  to  the  production  of 
a  certificate  of  presentation. 


LOGAN  V.  ABBAHAM80N. 

Mr.  Gutsche  was  for  the  plaintiff,  and 
Mr.  Alexander  for  the  defendant.  Mr. 
Gutsche  moved  for  the  final  adjudication 
of  the  defendant's  estate. 

Mr.  Alexander  put  in  the  affidavit  of 
the  defendant,  in  which  he  admitted 
there  was  due  £2,250  on  a  mortgage 
bond  and  other  amounts,  but  denied 
that  he  wss  insolvent.  If  he  were  given 
time  he  would  be  able  to  satiny  the 
debts,  as  he  was  expecting  a  remittance 
fzom  his  father.  If  tbe  hotel  were  sold 
next  month  there  would  be  a  balance  in 
his  favour  after  the  plaintiff  was  paid. 
On  a  fair  valuaition  of  !his  asseMbt,  there 
would  be  a  sizrplua  in  has  fainour  ol 
£776. 

Mr.  Gutsche  put  in  an  anawering  affi- 
davit by  the  curatpr,  who  oonsidared  the 


376 


(t 


CAPE  TIMES'*   LAW  REPORTS. 


value   put  on  the  schedule   by   the  de- 
fendant as  eKceasive. 

Buchanan,  A.C.J. :  The  credkore 
oann-crt  <bc  compelled  io  give  tiime,  and 
tfce  provisional  order  of  eequeisitrait'ion 
will  be  made  fintal. 


GAPE  TIMES  V.  LANQERMAN. 

Mr.  Douglas  Buchan&n  moved  for 
judgment  on  a  promiaaory  note  for  £66 
17s.,   with  intereat  and  oosta. 

Granted. 


HENNEBSY  T.  DE  MAEILLAC. 

Mr.  P.  S.  T.  Jones  moved  for  pro* 
vis^ioual  sentence  on  a  promiseoiy  note. 

Ilie  defendant  appeared  and  aaked 
for  postponement  for  a  month,  to  give 
him  an  opportunity  to  P^ythe  money. 
He  practically  owned  £9,000  worth  of 
properfcv,  and  oould  not  put  his  hand 
on  £200  ready  caah. 

Granted. 


PITTMAN  v.  HATOUEB. 

Mr.  Douglas  Buchanan  moved  for 
judgment  on  a  mortgage  bond  for 
£600,  with  interest  and  costs. 

The  defendant  appeared  in  court,  and 
said,  as  his  property  was  pulled  down, 
he  could  not  get  a  penny  to  pay  the 
interest  with. 

The  case  was  ordered  to  stand  over 
until  Monday,  to  see  what  amount  of 
interest  was  due. 


VAN  DEB  MBUWE  Y.  BESTS  R. 

Mr.  Du  Toit  moved  for  provisional 
sentence  for  £310  on  a  mortgage  bond, 
with  interest  and  costs,  and  that  the 
property  be  declared  executable. 

Granted. 


WBIQHT  V.  DU  TOIT. 

Mr.  Douglas  Buchanan  moved  for 
judgment  on  a  mortgage  bond  for  £200, 
with  interest  and  16s.  premium  paid, 
and  that  the  property  specially  hypo- 
thecated be  declared  executable. 

Granted. 


COLONIAL    ORPHAN    CHAMBER 
LATBOAN. 


V. 


Mr.  Douglas  Buchanan  moved  for 
provisional  sentence  on  a  mortgage  bond 
lor  £4,700,  with  interest,  less  £125  paid 
on  aooount.  and  £17  lis.  6d.  premiums 
of  insurance,  and  that  the  property 
tpedally  hypothecated  be  declared 
executable. 

Granted. 


8APIEB0  V.  SOLOMON. 

Mr.  p.  S.  T.  Jones  moved  for  judg- 
n'ent  on  a  mortga^  bond. 

Buidhanan,  J.,  pointed  out  tha4  there 
was  short  service,  and  the  return  day 
was  extended  uuiil  2nd  Jitoe 


AFBICAN  MUTUAL  V.  POOGENPOEL. 

Mr.  Purtou  moved  for  the  final  ad- 
judication of  the  dtfendant*8  estate  as 
insolvent,  and  thfit  Mr.  Maraii  b^  ap- 
pointed provisional  trustee. 

Granted. 


LIEPSCHITZ  V.  NOBMDS. 

Mr.  De  Waal  (for  the  plaintifi}  moved 
for  the  discharge  of  the  order  oi  sequea- 
tratioD  against  the  defendant's  est^e. 

Granted. 


SUPREME  COURT 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


PROVISIONAL     ROLL. 


LITHMAN  Y.  HAT8CHBB. 


f        1905. 

iMay  15th. 

Mr.  D.  Buchanan  moved  for  provi- 
sional sentence  on  a  mortgage  bond  for 
£600,  with  interest,  less  £125  paid  on 
account. 

Judgment  as  prayed,  the  hypothecated 
property  being  declared  executable. 


D£  JONGH  V.  KOENIG. 

Mr.   Roux  moved  for  provisional  sen- 
tence for   £2,359,  with  intereet. 
Granted. 


ILLIQUID     ROLL. 

ENDLEY    AND    ANOTHEB    V.    ESTATE 
ENDLBY. 

Mr.  Freer  moved  for  judgment  under 
Rule  329d  for  £58  Os.  lOd.,  amount  of 
inheritance  due  to  John  Endley. 

Judgment    as  prayed. 


COLONIAL  OOVEBNMENT  V.  BUCKLEY. 

Mr.  Nightingale  moved  for  judgment 
under   Rule  3^   for  £50  19s.  9d.,  (or 


*'CAPB  TIMES'*  LAW  REPORTS. 


377 


oonrict  labour  supplied,  wifch  interefit  mid   .' 
costs. 
Order  granted. 


VAN  BKNBBURG   V.  LIKBENBEBG. 

Mr.  Freer  moved  for  judgment  under 
Rule  32Skl  for  return  of  eight  oxen  or 
tbeir  value  (£64),  with  interest  a  tern- 
fore  mora  and  ooata. 

Judgment  as  prayed,  deliverv  to  be 
made  within  14  davs,  failing  whioh  de- 
fendant to  pay  £64. 

Order  gnuifted. 


IMFEIIIAL  TOOL  GO.   V.    GREEP  AND 
WALTER. 

Ifr.  UpingtOD  moved  for  judgment  in 
default  of  plea  upon  a  declaration  claim- 
ing a  full  and  true  account  of  the  de- 
feoduitB'  dealings  as  agent. 

Judgment  as  prayed. 


OKDIBBIHO  AND  DUNCAN  V.  JACOBS. 

.  Mr.   Douglas  Buchanan     moved    for 
luagment  for  three  sums  amounting  in 
•U  to  £29  18b.  9d. 
^^"«f  gvanted. 


GENERAL  MOTIONS. 

&|«rf.8TROEBBL.         [Ma^fsih. 

Mr.  GtttKhe  moved  for  the  rule  niH 
^  the  Derelict  Lands  Act  to  be 
WMe  abiolute. 

Kale  made  absolute. 


^  parte  ESTATB  WALKER. 

,Ji^'  ^"*«he  moved  for    a    rule    niti 
"M«r  the   Derelict   Lands    Act    to    be 
n»de  absolute. 
Rule  made  absolute. 


Sae  parte  GRBRFP. 

Mr.  McGregor  moved  for  a  rule 
"«»  under  the  Derelict  Lands  Act  to  be 
inade  absolute.  The  matter  related  to  a 
wrtain  erf,  No.  34,  with  the  buildings 
g»^epn,  in  the  town  of  Somerset  East, 
mtioner  was  the  daughter  of  Cor- 
nelius  Francois  van  Rooyen,  and  claim- 

i/*    *■  ■**^®  *"*^  universal  heir. 

Mr.  Searle,  K.C.,  on  behalf  of  one 
Ijasc  Dirk  Bower  (the  deputy  messenger 
^tbe  Magistrate's  Court,  Somerset 
«ast,  and  cousin  of  the  petitioner)  op- 
Pgod  the  application.  Bower,  in  an 
andavit,  denied  that  the  petitioner  had 
e^er  succeeded  to  the  erf  in  question, 
and  claimed  that  his  five  sisters  and 
bimaelf  should  benefit  to  the  same  extent 
w  the  petitioner. 


Mr.  McGregor  read  answering  affi- 
davits by  the  petitioner  and  others. 

Buchanan,  A.C.J.,  suggested  that  the 
parties  should  meet  and  decide  on  a 
settlement.  Prima  facie,  it  seemed  to 
him  that  the  erf  should  be  divided,  one- 
half  between  each  of  the  parties.  It 
would  be  a  pity  to  waste  the  erf  in 
litigation. 

Mr.  McGregor  thought  the  suggestion 
a  very  e^ood  one. 

Mr.  Searle  said  that  the  suggestion 
met  with  his  acquiescence,  but  he 
thought  the  petitioner  should  pay  the 
costs.  The  petition,  under  the  Dere- 
lict Lands  Act,  had  really  fallen  away. 

Mr.  McGregor  did  not  think  that  the 
petitioner  should  bear  the  costs  be- 
cause the  application  benefited  both 
sides. 

Buchanan,  A.C.J. ,  said  that  the  order 
of  the  Court  would  be  that  the  matter 
stand  over  tine  die.  He  would  suggest 
that  the  parties  should  come  to  terms, 
and  make  a  joint  application  to  the 
Court  for  division  of  the  erf,  one  half 
to  the  petitioner  and  the  other  half  to 
Mr.  Searle's  clients.  If  that  were  pub- 
lished^ and  no  opposition  made  by  Mrs. 
Ferreira,  it  would  settle  the  matter.  It 
could  not  possibly  be  settled  now  on  the 
affidavits  before  the  Court 


Ew    parte    DB    RICHMOND    HAKDELS 
MAAT8GHAPPIJ,  BEPBRKT. 

Mr.  J.  E.  R.  de  Yilliers  moved  for 
an  order  confirming  the  reduction  of 
the  company's  capital  by  £1,896,  amount 
of  certam  shares  declared  forfeit. 

Buchanan,  A.C.J.,  said  that  under  the 
Companies  Act  it  was  necessary  that 
every  creditor  should  be  advised  of  the 
application ;  so  that  the  Court  could  only 
grant  a  rule  niH  calling  upon  all  persons 
concerned  to  show  cause  why  the  ap- 
plication should  not  be  granted.  It 
was  only  right  that  the  creditors  should 
have  an  opportunity  of  objecting.  A 
rule  would  be  granted,  returnable  on 
June  15;  to  be  published  in  the  Rich- 
mond newspaper  and  in  the  "Govern- 
ment Gazette." 

Pottea  (June  16).    Rule  nude  absolute. 


BLIGNADLT  V.  WSPSNAAR. 

This  was  an  application  to  have  a  cer- 
tain amended  award  of  arbitrator  to  be 
made  a  rule  of  Court.  The  matter  re- 
lated to  water  rights  at  Buffel's  VIei. 

The  affidavit  of  the  respondent  stated 
that  he  did  not  oppose  making  the 
award  a  rule  of  Court,  but  desired  that 
a  clause  relating  to  water  led  beyond  the 
boundaries  of  the  farm  BuflFel's  VIei 
should  be  deleted.  He  contended 
that  the  arbitration  went  beyond 
the  scope  of  reference  in  deter- 
mining    the       right       to    lead     the 


378 


"CAPB  TIMES"  lAW  BEP0BT8. 


water:  that  they  only  had  power  to 
arbitrate  in  regard  to  water  within  the 
boundaries  of  the  farm. 

Mr.  Burten  for  applioaut;  Mr.  Mc- 
Gregor (with  him  Mr.  Close)  for  respon- 
dent. 

Buchanan,  A.C.J.»  said  that  the  award 
was  in  the  spirit  ol  the  order  of  Court, 
but  too  many  words  had  been  struck 
out  of  the  clause.  It  would  ma£e  it  clear 
if  the  words^  "on  the  farm  Buffel's 
Vlei''  were  re-inserted.  Subject  to  this 
amendment  the  award  would  be  made  a 
rule  of  Court.  The  costs  would  be  paid 
aa  ordered   in   the  previous  rule. 


VAN  NIIKVRK  V.  8ANDTLAKDS. 

This  was  an  application  made  by  the 
trustee  in  the  insolvent  estate  of  Van 
Niekerk  to  have  a  proof  of  debt  amend- 
ed by  expimging  it  as  a  preferent  claim, 
and  admitting  it  as  a  concurrent  claim. 
Sandilands  claimed  that  Van  Niekerk 
had  pledged  certain  stock  to  him  as  se- 
curity for  debt  on  a  promissory  note; 
Van  Niekerk  said  that  the  stock  was  aent 
to  Sandilands  to  graze,  and  was  not  sent 
as  a  pledge.  The  Magistrate  held  that  the 
stock  was  pledged,  and  admitted  the 
claim  as  preferent.  It  was  alleged  by 
Sandilands  on  affidavit  that  he  {purchas- 
ed 50  Afrikander  rams  and  50  Afrikander 
ewee,    and   later   on  purchased   248  An- 

foraa.  ^  Subsequently,  Sandilands  teld 
''an  Niekerk  that  he  could  not  accept 
the  steck,  as  it  was  old.  It  was  arrang- 
ed that  Van  Niekerk  was  to  retein  the 
money  as  a  loan,  Sandilands  retaining 
the  aneep  and  goats  as  security.  Re- 
plying affidavits  were  read  denying  the 
pledging. 

Mr.  Seaiie,  K.C,  appeared  for  the  ap- 
plicant; Mr.  McGregor  for  the  respon- 
dent. 

Mr.  Searle  urged  the  claim  set  up  was 
au  untenable  one ;  if  there  were  a  pledge 
it  would  have  been  shown  on  the  ocm- 
tract,  but  the  contract  was  clear  that  it 
was  a  lease.  It  was  perfectly  clear  under 
the  contract  that  the  stock  was  the  pro- 
perty of  the  insolvent,  and  that  there  was 
no  pledge.  It  was,  of  oourse,  open  to 
the  respondent  to  take  action. 

Mr.  McGregor  argued  that  it  was 
quite  possible  that  the  stock  might  be 
leased,  and  might  also  be  retained  as  a 
pledge. 

Buchanan,  A.C.  J. :  In  this  case 
the  creditor  proved  for  a  pre- 
ferent claim.  ^  The  trustee  now 
wanted  to  strike  out  the  prefer- 
ent claim,  and  make  it  a  concurrent 
claim.  The  circumstances  are  not  very 
clear,  but  the  creditor,  Sandilands,  ap- 
pears to  have  authorised  the  debtor  to 
bujr  stock.  Debtor  did  so,  and  Sandilands 
paid,  and  the  stock  has  remained  in  his 
possession  ever  since.  Shortly  after- 
wards Sandilands  objected  to  the  stock 
as  being  old,  and  wanted  to  return  them. 
ITe,  howeTer,  agreed  to  keep  them    as  j 


leased  pioperty,  and  the  debtor  agreed  to 
repay  the  money.  If  this  is  true  tha 
equity  is  all  in  favour  of  Sandilands,  and 
if  the  estate  wanto  to  cancel  the  sale, 
and  have  the  stock  bade,  thev  must  pay 
the  money  back.  Under  toe  oircum- 
stenoes  thece  is  certainly  no  reason  to  re- 
duce this  claim  from  a  preferent  to  a 
concurrent  one,  but  leave  will  be  given 
the  trustee  to  teke  any  action  he  may 
be  advised.  The  application  muet  be  re- 
fused, costs  to  follow  any  action  taken, 
and,  if  no  action  be  taken,  the  trustee  to 
pay  costs. 


HUSTEB  V.  HBKNBN. 

Mr.  Douglas  Buchanan  (for  Hhe  appli- 
cant) stated  that  in  this  matter,  which 
was  heard  last  Thursday,  no  order  was 
made  as  to  costs.  He  applied  for  costs 
against  the  respondent. 

Buchanan,  X,,  said  that  the  posts  of 
the  application  would  be  costs  in  liqui- 
dation. 


Ex  parte  the  curator  bonis  op 

MARGARET  FRANCIS. 

Mr.  D.  Buchanan  moved  for  leave  to 
sell  a  chemistV  business  belonging  to 
Margaret  Francis. 

Order  granted,  notice  to  be  given  to 
creditors  who  have  not  consented  to  the 
application. 


EsB  parte  TBRBLANCHE. 

Dr.  Greer  moved  for  leave  to  partici- 
pate in  certain  partition  of  property. 

An  order  was  granted  in  terms  of  the 
Master's  report. 


Ex  parte  Ronx. 

Mr.  J.  E.  R.  de  Villiers  moved  for  an 
order  authorising  the  Mutual  Life  Insur- 
ance Oomi>any  to  pay  petitioner  certain 
money  on  insurance  policies  in  respect  of 
minor  children. 

Order  granted. 


Ex  parte  FERRBIRA. 

Mr.  De  Waal  moved  for  authority  to  sell 
and  transfer  land  belonging  to  minors. 
Granted 


Ex  parte  the  executrix  in  the  estate 

OF  THE  Uk^TE  J.  L.  DELPORT. 

Mr.  Gutsohe  moved  for  leave  to  pass  a 
mortgage  bond  in  order  to  raise  money 
for  the  benefit  of  the  heirs.  The  beirf 
consented. 

Order  granted* 


f( 


CAPB  TIMB9"  LAW  REPORTS. 


^79 


Ex  parte  KIBSOHOPr. 

Mr.  J.  E.  R.  de  Villiers  moved  for  an 
order  authorising  Ihe  Registrsr  of  Deeds 
at  King  Willi&ni'B  Town  to  register  cer- 
tain property  in  petitioner's  name.  The 
petitioner  purchased  the  land  out  of  the 
estate  of  which  he  was  executor.  The 
sale  was  by  public  auction,  and  it  was 
stated  that  the  amount  paid  waa  fair 
▼alue. 

Order  granted. 


ELLIOT  V.  ENOF.LBRECHT. 

Mr.  Du  Toit  moved  for  the  appoint- 
ment of  J.  P.  Krige  as  proyisional 
trustee  in  the  respondent's  intfolvent 
estate. 

Granted,  costs  of  the  application  to 
be  costs  in  the  estate. 


Ex  parte  MILLS. 

Mr.  De  Waal  moved  to  make  absolute 
a  rule  niti  authorising  the  executors  in 
th*  estate  of  Coetzer  to  pay  the  peti- 
tioner a  certain   inheritance. 

Granted. 


Ex  parte  DH  villiebk. 

Mr.  Upington  moved  for  leave  to  the 
petitioner  to  expend  £1,000  out  of  the 
accumulated  interest  on  a  sum  be- 
queathed to  minora  in  the  estate  of 
which  petitioner  ia  executor.  The 
money  was  required  for  the  expenses  of 
a  trip  to  Europe  by  the  two  minor 
daughters,  aged  respectively  20  and 
18.  In  his  report,  the  Master  referred 
to  a  previous  application  in  1892  by  the 
survivor— the  widow — for  pavment  lo  her 
of  the  accumulated  interest  for  the  main- 
tenance of  the  minore,  which  applica- 
tion was  granted.  The  Maater  was  of 
opinion  tnat  th©  minors  could  defer 
their  trip  until  they  become  of  ago. 
Counsel  said  the  estate  waa  a  very 
valuable  one.  the  roeidue  being  £50,000, 
and  it  was  not  pronosed  to  touch  the 
capital.  The  idea,  it  seemed,  was  that 
these  young  ladies  were  about  to  be 
married,  and  wished  to  eee  a  bit  of  the 
world  before  that  happened  and  they 
settled  down.  The  trii>  would  be  in 
the  nature  of  an  education. 

The  application  was   granted. 


TAN  KIBKEBK  V.  FABEB. 

Mr.  Gardiner  moved  for  an  extension 
of  the  return  day  of  a  citation.  The 
T)Pspondent  had  left  the  place  where  he 
was  residing  at  the  time  the  previous 
Older  was  granted,  and  his  exact  where- 
aboDts  were  not  known,  though  it  was 
believed  he  had  returned  from  Ger- 
many to  this  colony. 

Bl 


Buchanan,  A.C.J.,  nid  there  waa  no 
information  as  to  where  the  respondent 
formerly  carried  on  business  in  the 
Colony,  and  as  to  where  the  debt  was 
incurred.  Publication  would  depend 
on  this  information,  and  the  matter 
would  therefore  have  to  stand  over. 


Ex  parte  CHAN  NINO. 

Mr.  Douglas  Buchanan  applied  for 
leave  to  sue  bv  edictal  citation.  The 
petitioner's  affidavit  was  to  the  effect 
that  she  married  Mathew  Channing  in 
1896,  and  resided  af  Cape  Town.  When 
the  war  broke  out,  her  husband  joined 
the  army,  and  had  not  since  rejoined 
her.  She  was  desirous  of  suin^  for 
restitution  of  conjugal  rights  or  divorce, 
and  asked  permission  to  sue  by  edictal 
citation. 

Leave  granted  to  sue  by  edictal  cita- 
tion, one  publication  in  the  "Govern- 
ment Gasette  "  and  one  in  the  "  Natal 
Witness,"  rule  retumabje  June  30, 
with  leave  to  serve  notice  of  trial  and 
intendit  at  the  same  time. 


In    lie  DU88EAU  AND  CO.,  LTD. 

Mr.  Douglas  Buchanan  presented  the 
final  report  of  the  liquidator.  It  was 
pointed  out  that  some  shares  had  been 
put  down  to  one  Hoogendoon)  in  error. 
One  hundred  shares  had  been  put  against 
him,  insitead  of  fifty. 

Buchanan,  A.C.J. ,  said  an  order  would 
be  granted  for  publication  of  the  re- 
port for  fourteen  days,  after  which  the 
other  matter  could  come  up. 


Ex  parte  RECEIVER  GRAND  JUNCTION 
RAILWAY. 

Mr.  Upington,  on  behalf  of  the  Re- 
ceiver, applied  for  the  issue  of  a  rule 
niai  under  the  Derelict  Lands  Act.  The 
piece  of  land  in  question  was  acquired 
by  John  Walker  and  Son  for  the  pur- 
pose of  the  railway.  The  Receiver  now 
claimed  same,  and  that  it  should  be 
transferred  to  them  for  the  benefit  of 
the  creditors. 

Buchanan,  A.C.J. ,  pointed  out  that 
the  matter  had  been  before  the  Chief 
Justice  in  1904,  when  His  Lordship  then 
made  a  note  to  the  effect  that  there 
was  no  information  before  the  Court 
that  Amos,  in  whose  name  the  property 
was  still  registered,  was  dead,  mentally 
incapable,  or  had  left  the  Colony. 

Mr.  Upington  said  he  was  not  in- 
structed as  to  that. 

Buchanan,  A.C.J.,  said  the  attorneys 
should  have  been  aware  of  it,  and  or- 
dered the  mailer  to  stand  over  for  fur- 
ther information  as  to  Amos. 


380 


tt 


CAPE  TIMB8"   LAW  REPORTS. 


Eas  parte  PAXTON. 

Mr.  Watermever  moved,  on  behalf  of 
the  trustee  unaer  aa  ante-nupti&I  con- 
tract and  the  parents,  for  leave  to  raise 
£100  loan  on  a  life  poUoy  to  pay  arrean 
of  school  fees  for  the  children,  and  to 
provide  for  their  future  maintenance. 

Application  granted,  the  money  to  be 
devoted  to  the  payment  of  the  arrears 
of   the   school  fees,  the  cost  of   the  ap- 

glication,  and  the  balance  to  be  applied 
y  the  trustee  for  the  future  school  fees 
in  termg  of  the  Master^s  report. 


SUPREME  COURT 


[  Before  the  Hon.  Mr.  Justice  Ma  asdobp.] 


TRIAL  CAUSE. 

VAN  DBB  BYL  AND  CO.  V.    f         1905. 

AFBIOA.  \  May    16th. 

Guarantee^Forged  signature. 

This  waa  an  action  to  recover  £65  Os. 
lOd.  from  Coraeliue  Africa,  of  Worces- 
ter, upon  a  security  given  by  the  defen- 
dant on  behalf  of  the  son. 

The  declaration  set  out  that  when  Cor- 
nelius Africa  retired  from  business  in 
1902,  his  fion,  James  Africa,  took  on  the 
business,  and  the  plaintiffs  declined  to 
supply  the  latter  unless  the  father  would 
give  a  guarantee.  This  the  father  ulti- 
mately did.  The  son  became  insolvent, 
and  the  plaintiffs  then  sued  for  the 
amount  due  bv  the  father  as  security. 
The  defendant  a  plea  waa  briefly  that  his 
signature  on  the  document  was  a  for- 
gery. 

Mr.  Burton  (with  him  Mr.  Btruben) 
waa  for  the  plaintiffs;  Mr.  McGregor 
(with  him  Mr.  Swift)  was  for  the  defend- 
ant. 

P.  van  der  Byl,  of  Messrs.  Van  der 
Bvl  and  Co..  Cape  Town,  stated  that 
after  several  proposals  hod  been  made 
by  the  eon,  witness  wrote  on  the  8th 
July  to  the  father,  who  was  security, 
threatening  him  with  proceedings  unless 
a  settlement  was  forthcoming.  In  reply, 
Mr.  Lindenberg,  the  attorney,  wrote 
denying  that  the  letter  of  the  2nd  May 
was  ever  received,  that  the  father  was 
security,  and  pointing  out  that  the  son 
was  awaiting  trial  at  Cape  Town  on  a 
charge  of  forging  his  father's  name  to  a 
number  of  securities. 

Cross-examined  by  Mr.  McGregor :  He 
waa  not  bold  in  asserting  that  the  sig- 
nature was  that  of  '*  C.  Afrioa,"      Per- 


sonally he  had  no  opportunities  himself 
of  judging  <^  the  signature.  The  goods 
in  the  grocery  shop  were  supplied  by 
witness,  and  were  rightly  the  property 
of  James.  Afterwaras  witness  got  the 
son  to  get  a  deed  of  guarantee  signed 
by  the  father.  In  IwZ  the  son  took 
over  the  acoounts,  when  Cornelius  ceas- 
ed to  oome  up  to  Cape  Town.  Beforo 
the  deed  of  guarantee  was  signed  wit- 
ness's firm  gave  James  credit. 

Re-examined  by  Mr.  Burton :  Witness 
discriminated  between  the  genuine  sig- 
nature of  '*  C.  Africa  "  on  a  cheque  and 
'*  C.  Africa "  written  by  James  in  two 
letters. 

Adam  Cornelius  Neethling,  who  had 
formerly  been  in  the  emf^oy  of  James 
Africa,  and  vritness  to  a  document,  iden- 
tified the  signature  of  "  C.  Africa," 
which  had  been  written  by  the  defend- 
ant. James  held  his  hand  while  he  sign- 
ed the  paper. 

Cross-examined  by  Mr.  McGregor:  He 
did  not  know  that  Cornelius  had  been 
abJe  to  write  his  name  for  twenty-five 
years.  He  thought  it  very  strange  that 
James  held  his  hand  on  that  occasion. 
Solomon's  signature  was  already  on  the 
paoer  before  the  defendant  signed  it. 

Ke-examined  by  Mr.  Burton:^  That 
was  the  onlv  document  he  ever  signed. 

James  William  Bain,  traveller,  m  the 

Slaintiff  firm,  said  frcrni  time  to  time 
uring  the  last  four  or  five  years  he 
had  seen  Cornelius  Africa  at  Worcester. 
In  September,  1902,  Cornelius  said  he 
would  be  responsible  for  the  debt  of  his 
son,  but  he  did  not  care  to  sign  any 
docimients.  A  month  or  five  weeks  after- 
wards witness  asked  for  security,  and 
Cornelius  said  that  be  'had  signed,  and 
that  it  would  be  all  right. 

Cross-examined  by  Mr.  McGregor:  On 
hid  second  visit  he  did  not  know  that  the 
plaintiffs  had  already  signed  a  document 
purporting  to  bear  the  signature  of  Cor- 
neliue.  After  he  heard  that  the  docu- 
ment was  signed  he  was  prepared  to 
take  orders  from  James. 

Mr.  Burton  closed  his  case. 

Cornelius  Africa,  the  defendant,  was 
called,  and  stated  he  had  lived  many 
years  at  Worcester,  and  had  been  a 
wagon  maker,  but  gave  it  up  and  took  a 
butchery.  Later  he  gave  up  the  but- 
chery owing  to  ill-health,  and  advertised 
that  he  bad  done  so  in  the  but<chery. 
The  son  took  over  the  business.  ^Tien 
witness  had  the  business  he  never  had 
any  grocery  store,  but  his  son  had  a 
grocery  shop  in  Napier-street  afterwards. 
Witness  remembered  Mr.  Bain  calling, 
and  saying  Mr.  Van  der  Byl  had  eent  a 
message  to  ask  if  witness  would  go 
surety  for  his  son  for  grocery.  Witness 
said,  **  No,  Mr.  Bain,  I  have  given  up  all 
business;  my  health  is  too  bad,  I  won*t 
go  surety  for  anything."  Witness  did 
not  see  Mr.  Bain  afterwards;  he  only 
saw  Bain  once.  If  Bain  said  he  saw  him 
again  with  James  he  did  not  think  it  was 
correct.    Witness    never   told    Pajn   the 


«« 


CAPE  TIMES"  LAW  REPORTS. 


881 


aeoond  tune  that  he  had  aignod  fche  docu- 
ment. Tlie  aigoaiure  waa  uot  his.  Wit- 
nass  knew  N«ethliug,  but  it  was  not  true 
that  he  signed  before  him,  or  that  James 
held  his  hand.  Witnoas  had  no  share  iii 
the  busineas  at  thai  time.  Witness  only 
TcoeWed  one  letter  from  Van  der  Bvl,  that 
was  after  hia  son  was  arrested.  Witness 
hdieved  it  waa  asking  him  for  money, 
■od  he  took  the  letter  to  Mr.  Linden- 
berr,  who  answered  it.  Before  witness 
dealt  with  Van  der  Byl,  he  dealt  with 
other  people,  and  never  had  any  trouble. 
Before  witrtcsa  retired  he  had  no  man 
•ger;  James  worked  for  him»  and  wit- 
ness clothed  and  fed  him. 

Clross-examined :  James  did  not  man- 
age the  business  of  witness.  Witness  used 
to  come  up  to  Cape  Town  himnclf. 
When  he  gAve  op  coming  he  gave  up 
his  business.  Witness  could  not  sw^Hv* 
that  the  signature  produced  was  his ; 
it  might  be.  Witness  would  swear  a 
hundred  times  that  he  never  met  Mr. 
Bam  a  second  time,  or  told  b'm  thut 
be  bad  signed  any  security.  The  evi- 
dence of  Neethling  as  to  the  signing 
was  entirelv  false.  W^itness  once  signed 
a  bill  for  his  son  at  the  bank  for  £80, 
but  never  signed  anything  else. 

Frederick  Lindenberg,  attorney,  of 
Worcester,  aaid  he  had  done  Cor- 
nebn^  Africa's  work  for  many 
years,  ^  and  knew  his  signature. 
Tbe  signature  on  the  guarantee 
document  was  not  that  of  defendant; 
that  he  waa  certain  of.  Witneas  wrote 
on  behalf  of  defendant  on  July  11  to 
Messrs.  Van  der  Byl  repudiating  all  lia- 
bility. Defendant  could  only  write  his 
name,  as  far  as  witness  knew. 

Cross-examined :  Witness  based  his 
opinion  of  the  aignatures  being  false 
apott  the  general  build  of  the  word, 
■ad  particularly  the  largeness  of  the 
letter  "o"    in   Africa. 

Be-eKamined:  Neethling,  a  previoiM 
witness,  told  him  that  four  signed  the 
document,  and  also  said  that  Cornelius 
could  not. 

James^  Africa,  a  convict  ai  Tokai, 
nndergoing  twelve  months*  imprison- 
ment with  h&rd  labour  for  forgery, 
•tated  that  he  waa  the  son  of  the  de- 
fendant After  1902  witness  took  on 
the  butchery  business.  Mr.  Bain  saw 
bim  about  a  security  from  his  father. 
On  the  second  occasion  Mr.  Bain 
brought  a  suretyship,  on  which  he  re- 
qnired  bis  father's  signature.  Witness 
■igned  the  document  without  his  father's 
aotboritv.  The  document  was  signed 
in  tbe  outcher's  shop.  He  intercepted 
the  letter  from  the  plaintiffs  to  his 
father.  He  wrote  tne  letter  to  the 
plain  tills  without  his  father's  authority. 

Cross-examined  by^  Mr.  Burton :  The 
document  he  signed  in  his  father's  name 
be  took  to  Mr.  Bain.  Before  his  father 
gave  up  his  business,  witness  opened 
the  letten.  but  previously  he  read  them 
to  bis  father.  Neethling^a  evidence  was 
shsolntel^  false.  In  one  year  he,  bad 
forged  ha  father's  name  three    times. 


He  had  practised  the  aignature  care- 
fully. 

Japtha  Solomon,  who  signed  the  docu- 
ment as  a  witness,  stated  that  when  he 
signed  there  were  no  other  names  on 
the  paper.  Witness  waa  told  that  he 
was  signing  for  sheep  that  James  would 
get  from  tne  farm.  He  never  saw  Cor- 
nelius sign  the  paper. 

Mr.  McGregor  dosed  his  case. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Buchanan,  A. C.J. :  Unfortunately, 
Mr.  Van  der  Byl  ia  not  famili- 
arly acquainted  with  the  signa- 
ture of  Cornelius  Africa.  Although 
I  am  satisfied  there  is  a  great  deal  of 
force  in  Mr.  Lindenberg's  statement,  I 
would  be  sorrj  to  decide  this  question 
upon  the  opinion  of  a  witness  as  to  the 
authenticitv  of  the  signature.  On  the 
question  of  the  genuineness  of  the  docu- 
ment there  is  a  serious  conflict  of  evi- 
dence. I  am  not  satisfied  that  Cor- 
nelius made  any  admission  to  Mr.  Bain 
that  he  signed  the  contract.  I  come  to 
the  conclusion,  on  the  evidence,  that 
James  had  an  object  in  trying  to  place 
a  spurious  document  before  the  plain- 
tiffs, and  he  obtained  the  signatures 
under  false  jpretences.  I  do  not  think 
that  the  plaintiffs  have  proved  that  it  is 
a  genuine  contract  signed  by^  Cornelius 
A^ica.  I  am  quite  satisfied  it  is  a  for- 
gery on  the  part  of  James  Africa,  and 
judgment  will  be  given  for  the  defen- 
dant, with  costs ;  the  defendant  declared 
a  necessary    witness. 

[Plaintiff's  Attorneys:  Van  der  Byl 
and  De  Villiers ;  Defendant's  Attorneys : 
Van  Zyl  and  Buissinn^.] 


SECOND    DIVISION. 


[Before  the  Hon.  M r.  Justice  M  A  ASDOBP.  ] 


TRIAL  CAUSE. 


ALLAN  AND  SHAW  V.    BBN-  f        1905. 

NETT.  *May  18th. 

This  was  an  action  brought  by  tha 
plaintiffs,  who  aro  a  limited  company, 
registered  in  England,  and  carrying  on 
busineas  in  the  Oape  Gblony.  against  the 
defendant,  a  builder,  of  Wynberg,  to 
recover  £263.  balaaoe  of  aooonnt  for 
material  supplied. 

The  declaration  set  out  that  during 
January,  1904,  and  February,  1906.  the 
defendant  bought  oertain  building 
n»aterial  from  the  i^fntiff's  ahop  at 
Wynbei]g,  and  paid  certain  inatalments, 
amounting  to  £54.  From  time  to  time 
particulars  were  rendered,  and  on 
February  15  a  complete  statement  waa 
Tendered,  showing  a  balance  of  £263, 
for  which  the  action  waa  bought     Tb« 


382 


It 


CAPE  TJMEA**  law  reports. 


pleft  set  out  that  the  defendant  had 
been  overcharged  on  certain  items,  and 
some  of  the  ffoods  charged  had  never 
been  delivered.  It  waa  also  pleaded 
that  a  verbal  arrangement  had  been 
entered  into  by  which  the  defendant  waa 
to  pay  by  instahnents  from  time  to  time. 
He  was  willing  to  pay  £251  by  instal- 
ments, as  had  oeen  arranged.  The  re- 
plication admitted  the  arrangement  aa 
to  instalments,  but  that  was  confined 
to  another  building  which  had  been 
completed,  and  it  was  understood,  if  the 
instalments  were  not  paid  at  the  speci- 
fied times,  the  whole  amount  would  fall 
due. 

The  defendant,  in  reply  to  His  Lord- 
ahip,  said  it  was  never  agreed  that  on 
failure  to  pav  the  instalment  the  whole 
amount  ooula  be  called  up. 

Mr.  Close  was  for  the  plaintiffs  and 
the  defendant  in  person. 

H.  J.  Ross,  manager  of  the  plaintiff 
company,  stated  that  at  the  end  of  each 
month  the  defendant  was  furnished 
with  a  detailed  account.  In  October 
last  the  defendant  called  to  make  an 
arrangement  about  getting  further  credit, 
and  on  the  first  of  uiat  month  he  owed 
the  firm  £39  6s.  3d.  There  was  no 
arrangement  whatever  previous  to  that. 
In  October,  Allan  agreed  to  give  the 
defendant  credit  to  the  amount  of  £250, 
and  witness  heard  Allan  come  to  an 
agreement  with  the  defendant  that  the 
latter  was  to  pay  off  £100  on  the  com- 
pletion of  the  building,  for  which  he 
required  the  material,  and  to  pay  £10 
a  month  thereafter.  The  defendant  did 
not  pay  the  £100  or  the  £10  a  month* 
as  arranged  upon.  ,  ,     j     *      w* 

Cross-exammed  by  defendant:  Wit- 
ness could  not  show  where  the 
defendant  used  the  9^eet  columns, 
which  he  said  had  been  sup- 
plied to  the  defendant.  As  far  as 
his  recollection  went,  the  four  columns 
were  not  returned.  The  defendant 
could  not  have  used  the  columns  on  his 
buildinira.  Everything  was  charged 
to  the  Wynberg  firm  at  cost  price  land- 
ed in  Cape  Town,  but  the  head  office 
put  on  10  per  cent,  to  cover  handling, 
etc.  Witness  would  not  say  that  Wyn- 
berg  had  to  make  up  any  loss  sustained 
in  Cape  Town.  Witness  was  positive 
that  the  defendant  agreed  to  pay  £10  a 
month.  but  he  was  not  pre- 
sent when  the  arrangement  was 
made  that  the  whole  amount 
became  due  on  the  failure  to  pay  instal- 
ments. It  was  true  that  after  the  con- 
versation with  Mr.  Allan  the  defendant 
said  he  would  be  able  to  pay  the  £100 
if  a  bond  went  through.  Witness  would 
not  care  to  express  an  opinion  as  to 
whether  the  case  would  never  have  come 
into  the  Court  if  the  matter  had  been 
left  in  his  hands. 

Robert  Allan,  managing  director  of 
Allan  and  Shaw,  Ltd..  stated  that  in  Oc- 
tober last  the  defendant  was  referred 
to  him  with  a  view  to  extended  credit. 


Witness  agreed  to  give  him  £250  credit 
to  enable  him  to  build  two  villas.  The 
arrangement  was  that  as  soon  as  the 
houses  were  completed  he  would  pay 
£100  down  and  £10  a  month  after  the 
new  vear,  when  he  exjpected  the  houses 
would  have  been  completed.  When  wit- 
ness asked  for  the  £100  the  defendant 
used  insulting  language,  and  defied  wit- 
ness to  take  action.  It  was  made  clear 
to  ikie  defendant  that  if  he  failed  to 
pay  the  instalments  of  £10  a  month,  the 
whole  amount  would  become  due. 

Cross-examined  by  the  def«idant: 
Witness  did  not  suggest  that  the  £10 
should  be  paid  every  month  on  a  subse- 
quent occasion.  The  £10  a  month  was 
to  be  paid  through  Thos.  Haael,  of 
Cape  Town. 

Defendant:    Are  you  a  business  man? 

Witness :  I  hope  so. 

Why  didn't  you  reduce  that  to  black 
and  white  T — I  can't  say. 

Tou  are  not  a  business  man ;  you 
never  were  one. — That's  your  opinion ; 
we  don't  require  black  and  white  from 
some  of  our  customers. 

The  defendant  went  into  the  box,  and 
stated  that  it  was  true  that  he  promised 
a  £100  if  a  bond  went  through,  which, 
however,  did  not  take  place.  There  waa 
no  agreement  about  the  amount  falling 
due,  if  witneAS  failed  to  pay  the  instal- 
ments. The  8  ft.  columns  were  re- 
turned for  some  9  ft.  ones. 

[Maasdorp,  J. :  Why  don't  you  pay 
the  £100?] 

Defendant :  I  had  not  got  it.  I  have 
been  always  willing  to  come  to  an  agree- 
ment. 

Mr.  Close  said  Mr.  Allan  was  still  will 
ing  to  accept  the  £100,  and  £10  a  month. 

Maasdorp,    J. :      The     plaintiff      sues 
the      defendant       upon        an      aooount 
for       goods        sold       and        delivered. 
This     account     is     partly     disputed  by 
the  defendant,    who  denies  that    he   re- 
ceived certain  articles  mentioned  in   tiie 
account.       These   articles    are    four    col- 
umns, said  to  be  supplied  by  the  plaint- 
iff to  the  defendant,   to  be  used  in  the 
building  of  his  houses.      It  appears  quite 
clear  that  these   columns  were  sent   on 
the  order  of  Mr.   Bennett  to  the  build- 
ings which  he  was  busy  erecting.       He 
discovered    that   the   columns    were    un- 
suitable,   and   I   am   satisfied,   upon   the 
documentary    evidence  ,  that    the     col- 
umns  were  not  used   by   Mr.    Bennett. 
and  Mr.  Ross  is  not  prepared  to  swear 
that  these  columns  did  not  come  back. 
Under    the    circumstances    the    account 
must  be  altered  by  striking  out  the  items 
dealing  with  the  columns.      The  defend- 
ant     also  objects  to  a  couple  of  other 
items  as  over  charges      made  at  Wyn- 
berg,  but  that  he   ought  to   have    con- 
sidered  that  when   he  had  his  dealings 
with  the  firm,  and  I  think  these   items 
must  be  allowed  to  stand.  With  reference 
to  the  rest  of  the  account  the  defend- 
ant  admits    that    he    owes   the    money. 


*'caPvi  itiMes"  Law  reports. 


6^ 


bat  he  says  that  a  special  arrangement 
WIS  made  by  which   the  parties  agreed 
that  £100  should  be  paid  upon  his  be- 
ing  successful    in    certain    speculations 
and  that  the  rest  was  to  be  paid  by  in- 
stahnents,   withoub  reference  to  amount 
or  time  when   these  instalments  should 
fall  due.      The  plaintiff  says  there  wa« 
a  definite  arrangement  that  £100  was  to 
be  paid  on  the  completion  of  the  build- 
ing, in  respect  of  which  bhe  goods  were 
supplied,  and  thereafter  there  should  be 
a  monthly  payment  of  £10,  and  in  tho 
erent  of  his   failing  to   pay   either   the 
£100  or  these  instalments,  that  the  wholo 
amount  should  fall   due.      On   bhe  part 
of  the  plaintiffs,  here  we  have  a  clear, 
definite,   business-like   agreement,    which 
the  Court  can  put   into  force,   whereas 
the  defendant's  agreement  is  of  such  a 
Tague  character,   and  its  conditions  are 
■o  uncertain,  that  it  is  not  really  a  con- 
tract which  could  be  regarded  as  bind- 
ing on  the  parties.      There  must,  in  my 
opimon.  be  a  period  when  the  creditor 
could   enforce   payment,   and   I    do  not 
believe     that      the     matter     should  be 
Irft      over       to       the      discretion       of 
Jhe      debtor.       On       the       whole        it 
has    been     proved     to     my  satisfaction 
that  there  was  a  definite  agreement  made 
in  the  terms  of  the  statement   put  be- 
fore the  Court  by  Mr.  Allan.     The  build- 
ings were   completed    in    Januarv,    and 
Mr.   Bennett   failed    to   pay,    and       the 
plaintiff  was  entitled  to  claim  the  whole 
of  the  indebtedness.       I   can   only   now 
pTc  mdgment  in  favour  of  the  plaintiff 
lor  the  amount  of  his  claim,  and  leave 
It  to  the   parties   to    make   such   other 
Arrangements     as  it    seems,     upon     the 
offer  now  made  by  the  plaintiff,      they 
might  be  well  able  to.      Judgment  will 
be  for  the  plaintiff,  less  £7  lOs.  for  the 
colamns,   with   costs.       The  amount   of 
the  judgmeot  will  be  £254  4s.  7d. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Jnitice,  the 
Hon.  Sir  John  Buchanan.] 


GENERAL      MOTIONS. 

WITE  DAVIDS  V.  DAVIDS,  {^^l^^fg^j^ 

This  w«s  an  api^ication  upon  notice 
of  mottoQ  calling  upon  the  respondent, 
Jacobus  Dayids,  tp  show  oante  why  an    I 


order  of  personal  attachment  should  not 
be  issued  against  him  for  contempt  of 
Ck)urt  in  neglecting  to  sign  the  neces- 
sary declaration  to  enable  the  applicant 
to  obtain  a  certified  copy  of  a  certain 
deed  of  transfer  of  property  situate  in 
Jordaan-street,  Cape  Town,  the  original 
having  been   lost  or  mislaid. 

The  affidavit  of  Mr,  W.  A. 
Currey,  the  executor  dative,  stated 
that  the  certified  copy  of  the 
deed  was  required  to  enable  him  to 
olose  and  administer  the  affairs  of  the 
estate.  The  respondent  was  married 
in  community  to  his  wife,  who  had  died 
intestate.  The  property  was  registered 
in  the  respondent's  name.  The  heirs 
in  the  estate  claimed  that  the  property 
should  be  |)ut  up  by  public  auction,  so 
that  they  might  take  their  shares.  Coun- 
sel also  read  affidavits  by  two  of  the 
heirs,  daughters  of  the  late  Mrs.  Davids, 
by  a  previous  marriage. 

The  answering  affidavit  of  the 
respondent  denied  that  he  had  re- 
fused to  sign  the  declaration  or  to 
obey  the  order  of  the  Court.  He  was 
<]^uite  willing,  he  said,  to  make  a  declara- 
tion of  facts  within  his  knowledge,  but 
he  declined  to  make  a  declaration  of 
facts  beyond  his  knowledge,  as  he  had 
been  asked  to  do,  and  he  also  declined 
to  say  that  the  said  deed  was  lost  by 
him.  He  denied  that  he  was  assuming, 
as  had  been  alleged  by  the  executor,  a 
defiant  attitude,  and  said  he  was  will- 
ing to  amist  the  petitioner  in  the  ad- 
mmistration  of  the  estate.  He  objected, 
however,  to  a  forced  sale  in  the  pre- 
sent circumstances,  but  was  willing  to 
sign  for  the  sale  of  the  property  at  a 
reasonable  figure,  seeing  that  he  was 
interested  as  to  one  half.  He  did  not 
object  to  signing  a  power  of  attorney, 
but  up  to  the  present  no  sale  had  been 
effected.  He  nad  been  away  at  Cale- 
don,  hence  some  delay  had  taken  place. 

Mr.  P.  S.  T.  Jones  was  for  the  appli- 
cant (the  executor  ckttive);  Mr.  Alex- 
ander was  for  the  respondent. 

Buchanan,  A.C.J. ,  said  that  there  was 
no  contempt  on  the  part  of  the  respon- 
dent, and  the  application  would  be  re- 
fused with  costs. 


P0LICAN8KT  BROS.  V.    HEBMANN  AND 
CANABD. 

Trade    mark — Colourable    imita- 
tion— Interdict. 

This  was  an  application  for  an  inter- 
dict restraining  Che  respondents  from 
using  a  label  or  cover  for  cigarettes 
oalled  "  Sultan's  Specials,"  the  same 
being  an  infringement  of  the  trade- 
mark registered  by   the  applicants. 

The  affidavit  of  Philip  Polican- 
sky  stated  that  the  label  "  Sul- 
tail's  Specials"  was  a  colourable 
imitation      of      the     registered     trade- 


384 


i( 


CAPE  TIMES"   LAW  REPOltTd. 


mark  uaed  by  the  appUoant  firm 
called  "Sultan's  Favourites."  The  de- 
ponent said  that  the  respondents  had 
taken  up  this  attitude  because  of  an 
unsucoeseful  applioation  formerly 
brought  by  them  asainst  the  present 
applioants  for  an  alleged  infringement 
of  trade-mark. 

Mr.  Burton  for  applicant;  Mr.  Gut- 
sche  for  respondent. 

[Buchanan,  A.C.J,  (to  Mr.  Burton): 
You  have  not  a  sole  right  to  the  use  of 
the  word  *' Sultan  "7] 

No,  my  lord;  we  say  that  the  whole 
get-up  is  a  colourable  imitation  of  our 
trade-mark,  and  calculated  to  deceive  the 
public.  Counsel  went  on  to  point  out 
that  his  clients  formerly  obtained  an  in- 
terdict against  a  third  party  (Wolf 
and  MilUr  v.  Smit)  (11  C.T.R.  553) 
for  infringement  of  their  trade-mark 
by  a  label  called  *' Sultan's  Beauties." 
and  he  submitted  that  if  there  waa  an 
infringement  in  that  case,  there  was 
much  more  of  an  infringement  in  the 
matter  now  in  question.  He  also  read 
an  affidavit  by  Alexander  Gromer,  who 
said  that  he  had  called  at  a  shop  in 
Galedon-street  for  the  purpose  of  pur- 
chasing "  Sultan's  Favourites,"  and  had, 
owing  to  the  get-up  of  the  cover,  been 
deceived  into  buying  **  Sultan's  Spe- 
cials." 

The      answering      affidavit     of      Ra- 

Shaei  Hermann,  one  of  the  rcspon- 
ents,  said  he  denied  that  the  trade- 
mark used  by  his  firm  was  an  in- 
fringement of  the  applicants'  trade- 
mark. As  to  the  former  case  in  regard 
to  ''  Sultan's  Beauties,"  he  pointed  out 
that  the  respondents  in  that  matter  were 
-not  registered  proprietors  of  the  mark. 
He  claimed  that  his  firm,  being  the  re- 
gistered proprietors  of  the  trade-mark, 
were  entitled  to  use  the  label  now  dis- 
puted. 

Counsel  were    hoard  in   argument. 

Mr.  Burton  submitted  that  there  was 
such  an  identity  between  the  two  marks 
as  U)  deceive  the  public. 

Mr.  Gutsche  contended  that  the  labels 
were  by  no  means  similar,  and  that 
there  was  a  greater  divergence  of  labels 
in  the  present  instance  than  in  the 
former  case  heard  in  March  la^t. 

Buchanan,  A.  C.  J. :  Both  the  appli- 
cant and  respondent  have  registered 
trademarks  in  which  they  use  the 
word  "  Sultan."  but  this  applicar 
tion  is  basea  solely  on  the  al- 
legation that  the  lahol  used  lor  the  cigar- 
etl<'8  of  the  respondents  is  a  colourable 
in.itation  of  the  lal)el  used  by  the  ap- 
plicants. The  applicants  had  been  1x3- 
fore  the  Court  oi  several  occasions.  In 
one  case  in  1901  an  interdict  was  granted 
egainfit  the  use  by  certain  respondents  of 
a  label  imitating  the  one  in  question  in 
this  cafe.  In  tnat  case  the  only  diflfor- 
ence  between  the  labels  was  that  the 
wf»rd  "  Beauties  "  was  used  instead  of 
'*  Favourites."  The  applicants  had 
**  Sultan's  Favourites,"  tne  respondents 


had  ''Sultan's  Beautieti."  In  several 
respects  the  labels  were  identical.  It  was 
then  held  that  the  one  was  a  colourable 
imitation  of  the  other,  and  an  interdict 
was  granted.  In  the  present  case  the 
two  labels  tseem  to  me  to  be  by  no  means 
similar,  and  not  at  all  likely  to  deceive 
an  intending  purchaser.  In  the  fir^t 
place  the  ooluur  is  different,  and,  as  his 
lordship,  the  Chief  Justice,  remarked  in 
tli^  case  before  him  recently,  there  is  no 
monopoly  of  colour.  Then  the  words, 
"  Sultian's  Favourites"  in  the  applicants' 
labels  are  printed  differently  from  the 
words  **  Sultan's  Specials  "  \n  the  respon- 
dents' labels.  Then  there  ara  other  rea- 
l^octs  in  which  the  labels  are  dissimilar. 
I  think  it  would  be  going  very  far  indeed 
to  say  that  the  one  label  is  a  colourable 
imitation  of  the  other,  and  likely  to  de- 
ceive even  the  most  ordinary  purchaser. 
Using  my  own  common  sense  in  the  mat- 
ter, I  cannot  see  any  colourable  imita- 
tion, and  I  think  tlie  application  must 
be  refused,  with  costs.  I  am  6t.rengthea- 
od  in  this  position  when  I  look  at  the  case 
v/hich  came  before  his  lordship  the  Chief 
Justioo  in  August  last,  Ro$ebank  Match 
Co.  V.  Jonkopingt  VuUan4  (14  C.T.R. 
616),  because  although  there  was  great- 
er similarity  between  the  two  labels  in 
that  case,  his  lordship  refused  to  make 
an  order. 


8TEVBNS0N    V.    CAPE  TOWN 
LICENSING  COURT. 


1905. 


{May   19tlu 
July  14th. 


Liqnor  licence — ^Ma^strate's  dis- 
cretion— Withholding  of  cer- 
tificate. 

S,  had  applied  for  a  nettj 
liquor  licence  in  respect  of 
certain  premises^  mid  the  licence 
teas  grtuited.  The  }fagi9trate 
withheld  hin  ce-'tijicate  on  the 
fjrmind  that  some  of  the  sig- 
nature»  to  the  petition  icere 
forgeries. 

Held,  that  as  after  the  forged 
mimcH  were  struck  ojf^  there 
was  still  a  nuijoriltf  in  far  our 
of  the  licence^  the  Magintraie 
teas  bound  to  grant  his  certtfi- 
cate. 


This  wso  an  application  upon  notice  of 
motion  addressee)  to  the  Rev^ident  Magis- 
trate of  Cape  Town,  calling  upon  him  to 
show  cause  why  he  should  not  forthwith 
issue  and  deliver  to  the  applicants  the 
certificate  required  to  enable  them  to 
tAke  out  a  licence  to  sell  intozicatiner 
liquors  on  the  premises  called  Annandale 
Hall  and  Ktmberley  House,  situate  ai 
Gardens,  Cape  Town. 


^*OAi>B  TtMBS'*  Law  ttEPOHTS. 


986 


Mr.  Molieno  wa«  for  the  applioant; 
Mr.  Nightingale  appealed  for  the  At- 
torDey-General. 

The  affidayit  of  Harry  StevenBon,  the 
appUcant,  set  out  the  proceedings  which 
had  led  up  to  the  present  state  of 
thinn.  He  had  been  granted  a  licence 
in  toe  ordinary  course,  but  the  Magi- 
strate refused  to  deliver  to  him  the 
neoessary  certiBcate. 

The  answering  affidavit  of  Mr.  J. 
T.  Wyide,  R.M.  of  Cape  Town, 
said  thai  the  memorial  deposited  by 
the  applicant  bore  1,067  signatures.  Forty 
had  been  discovered  up  to  that  time  to 
have  been  forgeries,  and  the  total  num- 
ber of  voters  whose  namee  ^  appeared 
more  than  once  in  the  memorial  wa6  74, 
thus  reducing  the  number  of  signatures 
t.>  953.  which  number  did  not  represent  a 
majority  in  the  district  as  required  by 
the  Act.  Under  the  circumstances  he 
deemed  it  his  duty  not  to  issue  a  certifi- 
cate. 

The  replying  affidavit  of  the  appli' 
cant  said  that  the  number  of  bona  fide 
ligRatures  on  the  meorial  was  1,067. 

Mr.  Molteno  (for  applicant) :  When 
once  the  Litvnsing  Court  has  decided 
to  grant  a  licence  the  Magistrate  hae 
DO  option  as  to  furnishing  the  necessary 
certificate.  He  is  a  mere  conduit  pipe 
for  the  granting  of  the  licence.  This 
is  neither  an  appeal  nor  an  applica- 
tion for  review,  hut  simply  an  applioa- 
tion  for  an  order  to  compel  the  Magis- 
trate to  perform  a  statutory  duty.  The 
persons  who  signed  twice  were  regis- 
tered twice  in  respect  of  different  pro- 
Erties.  We  have  the  decision  of  the 
sensing  Court,  and  the  Magistrate  is 
bound  to  act  upon  it. 

Mr.  Nightingale  (for  the  Attorney- 
General)  pointed  out  that  a  man  was 
to  be  tried  at  the  next  Criminal  Ses- 
sions on  a  charge  of  having  forced 
tome  of  the  signatures  to  the  petition. 

Buchanan,  A.C.  J. :  The  appKoatioii 
had  better  stand  over  till  the  first  pro- 
visional day  after  the  Criminal  Ses- 
sions. 

Poffea  (July  14). 


[  Before  the  Hon.  Mr.  Justice  M  aabdorp.] 


The  applicant's  affidavH  stated 
that  at  the  meeting  of  the 
Licensing  Court  on  the  Ist  March 
Isst,  presided  over  by  ^  the  re- 
ipondeot.  he  made  application  for  a 
retail  licence  to  sell  intoxicating 
liquors  at  his  premises,  known  ae  An- 
nandale  Hall  and  Kimberley  House, 
which  application  was  grantea.  On 
the  1st  April  he  applied  to  the  clerk 
to  the  Resident  Magistrate  for  a  cer- 
tificate signed  by  the  Resident  Magis- 
tiate^  as  required  by  the  Director  of 
Btampa  befon  isauing  licences ,  and 
was  mfonned  by   him  that   the   certi- 


ficate had  been  made  out,  but  that,  by 
orders  from  the  Attorney-General,  he 
was  not  to  issue  the  same.  Subse- 
quently correspondence  ensued  between 
deponent's  attorneys  and  the  Attorney- 
General's  Department. 

The  answering  affidavit  of  the 
respondent  ^tated  that  the  ^  total 
number  of  voters  on  the  C]k>uncil'8  roll 
for  District  No.  4,  where  the  pre- 
mises were  situated,  was  1,999.  The 
number  of  signatures,  passed  aa  correct 
by  the  Resident  Magistrate's  Court 
omciai,  on  the  said  memorial  was 
1,067.  Of  these  1,067  signatures,  40 
were  discovered  to  have  been  forgeries 
up  to  the  present,  and  the  number  of 
voters  whose  names  appeared  m.ore  than 
once  in  the  memorial  amounted  to  74, 
thereby  reducing  the  number  of  sig- 
natures to  953,  which  number  did  not 
represent  a  majority  of  voters  in  the 
district,  as  required  by  the  Act.  De- 
ponent communicated  these  facts  to  the 
Attorney-General,  and  advised  that, 
under  the  circumstances,  a  licence  should 
not  be  issued,  except  by  order  of  the 
Supreme  Court.  (Jounsei  also  read  an 
affidavit  by  Claude  Miles,  a  head  con- 
stable of  the  urban  police,  giving  the 
results  of  the  investigation  up  to  that 
ftage.  Counsel  addend  that,  since  the 
application  was  first  mentioned  to  the 
Cfourt.  an  agent  named  Samuels,  who 
had  been  collecting  signatures,  had 
been  proaecuted  for  forgery  in  respect 
of  eight  signatures,  and  had  been  found 
guilty  and  sentenced.  No  proceed- 
ings had  been  taken  against  the  other 
canvassers,  who  were  2X>  longer  in  the 
Colony.  Counsel  had  35,  affidavits  of 
persons  who  said  their  signatures  had 
been  forged. 

The  replying  affidavit  of  the  appli- 
cant said  that  the  memorial  originally 
contained  about  1,5(X)  signatures,  but 
those  who  were  not  voters  and  those 
whoso  nameii  appeared  on  the  mem- 
orial twice  had  been  deducted,  leaving 
a  total  of  1,067  bona  fde  signatures. 
The  affidavit  of  Mr.  Buyskes,  a  canvasser 
employed  bv  the  applicant,  said  that 
the  list  of  bona  ^dt  signatures  dis- 
closed a  majority  of  69  in  favour  of  the 
licence.  The  officials  acting  for  the 
Government  had  omitted  to  strike  off 
the  voters'  list  those  who  had  been 
placed  on  the  list  twice,  or  who  were 
dead,  or  who  had ,  left  Cape  Town  be- 
fore the  list  was  issued.  After  de- 
ducting the  number  of  those  who  were 
absent  from  Cape  Town,  or  who  were 
dead,  or  who  had  been  placed  twice 
on  tne  list,  the  total  -numoer  of  voters 
left  would  be  1,929 ;  consequently  the 
majority,  as  required  by  the  Act,  would 
be  965.  There  were  originally  1,516 
names  on  the  memorial.  Taking  away 
the  non-votera  who  had  signed  tne  me- 
morial (378)  and  persons  who  had 
signed  more  than  once  (131),  there  re- 
mained 1,(X)7  signatures.  Of  these,  39 
were  alleged  to  be  forgeries,  thus  leav- 
ing 968  genuine  signatorea.       In  a  fur* 


m 


it 


CAPE  TIMES*'  LAW  KEP0RT8. 


ther  affidavit,  Mr.  Buyskes  eaid  that 
he  had  nukde  inquiries  in  order  to  ascer- 
tain the  number  of  deceased  persons 
on  the  Divisional  Council  voters'  list 
for  1904  (District  No.  4).  All  the  per- 
sons named  in  the  schedule  (b)  an- 
nexed were  dead,  with  the  exception  of 
five  (including  one  of  the  judges  of  the 
Colony).  Amongst  the  decoascd  per- 
sons aforesaid,  seven  signed  the  me- 
morial during  their  lifetime.  Taking 
Head  Constable  Miles's  figures  ot 
1.067.  and  deducting  74  signatures  for 
duplicates  and  38  for  forgeries,  the^ 
had  left  955.  According  to  his 
(Buyskes)  investigations,  after  deduct- 
ing non-voters,  forgeries,  and  dupli- 
cate names,  there  remained  1,026  eig- 
naturcs.  The  number  of  names  on  the 
voters'  list  for  1904  was  actually  1,999, 
the  names  appearing  twice  were  60, 
and  the  names  of  deceased  voters  were 
27,  leaving  a  total  of  1,912.  Adding  to 
these  the  voters  who  signed  the  me- 
morial prior  to  their  death,  the  total 
would  be  1,919,  so  that  the  majority, 
as  required  by  the  Act,  would  be  960. 
There  was  therefore  a  majority  of  66 
bona  fide  signatures.  Deponent  fur- 
ther stated  that,  as  regarded  the  al- 
leged forgeries,  affidavits  had  been 
sworn  by  three  persons  who  were  not 
on  the  voters'  roll,  and  by  one  who 
had  not  signed  the  memorial.  The 
number  of  signatures,  therefore  should 
be  increased  by  four  in  favour  of  the 
applicant. 

Mr.  ^iiurton,  for  the  applicant,  said 
that  the  Act  said  that  when  a  licence 
was  granted  by  the  Liccni?ing  Court,  the 
Magistrate  must  give  a  cort^fioate.  The 
Magistrate  wafi  bound  as  a  necessary 
consequence  to  give  a  certificate,  and 
could  not  go  behind  that  dooision  of 
the  Court.  Applicant  claimed  to  have 
a  majority,  even  on  respondent's  show- 
ing  It  was  a  verv  near  thing.  If  the 
Court  thought  the  matter  should  be 
gone  into,  he  would  suggest  that  a  com- 
petent and  impartial  person  should  go 
through  the  memorial  in  the  presence 
of  the  partiies,  and  find  out  how  many 
genuine,  proper  signatures  there  were 
on  the  memorial,  and  whether  they 
constituted  a  majority. 

Mr.  Evans,  for  the  Attorney- 
General,  con-tended  that  this  was  in 
effect  an  application  to  this  Court 
for  a  licence.  The  Aot  required  that 
there  must  be  a  menaorial  signed  by 
a  majority  of  the  voters  before  a  licence 
should  be  granted  and  he  submitted 
that  it  was  now  for  the  applicant  to 
clearly  prove  to  the  C/ourt  tha*  the 
memoriaJ  did  in  fact  contain  a  ma- 
jority. If  the  Government  discovered 
that  there  were  circumstances  not  in  the 
knowledge  of  the  Licensing  Court, which 
oonfiitituted  a  contravention  of  the  law, 
he  oontended  vt  was  their  duty  to  atep 
in  and  prevent  a  breach  of  the  law. 
It  had  been  proved  that  after  deducting 
the   forged    and  duplicated  names,   the 


requisite  majority  had  not  been  obtain- 
ed. He  suggested  that  the  naost  euuit- 
able  course  would  be  to  refer  the  whole 
matter  back  to  the  Licensing  Court  to 
go  into  again. 

Mr.  Burton,  in  repl^,  urged  that  the 
Supreme  Court  was  oeing  asked  by  the 
respondent  to  go  behind  the  decision 
of  the  Licensing  Court.  The  want  of 
a  majority  of  voteK  as  signatories  to 
the  memorial  had  not  been  proved  by 
the  other  side.  There  mu^  oe  a  scru- 
tiny. The  Court  was  now  asked  to  do 
the  very  work  which  the  Magistrate 
under  the  Aot  ought  to  have  done. 
The  position  seemed  to  him  (counsel) 
to   be  preposterous. 

Maasdorp,  J. :      It     appears  that  the 
Liceiibing      Cou^rt      held       its     sitting, 
and      determined      all     the      questions 
submitted      to       it,       and       came       to 
the       conclusion       that        the       appH- 
oaiit  was   entitled    to  his  licence.      The 
Magistra-te,    however,    refused    to  grant 
a   certificate    upon    grounds    which   will 
have  to  bo  decided   under  section  13  <^ 
the   Act   25   of  1891.       It    is  there  pro- 
vided  that    if    an    application   is   for    a 
new  licence   it   shall   not  be   lawful    for 
the    Licensing   Court  to   grant  such    li- 
cence   unless  there    be   lodged  with    the 
Magistrate  of  the  district,   at  least  four 
days  before  the  meeting  of  the  Licens- 
ing Court  to  consider  the  application,  a 
memorial  signed   by   a  majonity  of   the 
voters    registered    lor  the    election      of 
members  of  the  Divisional  Counoil  with- 
in   the    Divisional    Counoil  district,   the 
municipality,  or  the  ward  or  district  of 
the  municipality,  approving  of  the  issue 
of  the  said  licence.     The  grround  taken 
by  the  Magi^rate  in  this  inatter  is  that 
there  has  been  no  such  majority  of  the 
voters  afi    is    required    by   this  section. 
It   appears  tbait  att   the  time  when  the 
application    was    made    the    Magistrate 
had  to  ascertain  whether  such  a  majority 
existed,  and  he  came  to  the  conclusion, 
after  scrutinising  the  memorkkls  and  the 
list  of  voters,  that  a  inajority  of  voters 
had    appended    their    signatures    to   the 
memorials.     He  informed  the  Licensing 
Court   of    that,    and    upon   that   ground 
the  Liceneing  Court  grant-ed  their  certi- 
fioatc  that  the  Hoence  i^hould  be  issued. 
It  is  contended   now  that,   subsequeutly 
to  the  Licensing  Court  coming  to  that 
decision    it   has  been  discovered    that   a 
majority   of    voters    did    no^    6ign    the 
memorials.     It  is  said  thait,  amongst  the 
signatures,   there  were  38  forgeries,  and 
thaft  to   that   extent  the  names   on  the 
memorials  should  be  reduced.     I  am  of 
opinion  clearly  that  that  mu^  be  done. 
It  has  been  clearly  proved  that  the  num- 
ber   of    names   on  the  memorials    must 
be  reduced  by  38.     Counsel  for  the  ap- 
plicant in  this  matter  has  admitted  that 
the  applicant  cannot  take  advantage  of 
forged  signatures.      On  the  other  hand, 
I  am  of  opinion   that  these  forged  sig- 
natures   must   be  struck  off     the     list. 
There  is  no  proof  that  the  applicant  him- 


''caPe  tiMfis"  IaW  itBPdRM. 


88? 


•elf  vw  rosponaible  for .  the  forgerie« 
1w?ing  been  committed,  and  the  for- 
geriee  rfiould  not  operate  to  hie  preju- 
dice. U  is  quite  dear  that,  under  tne 
Act,  memonaU  may  be  got  up  without 
the  interyention  of  the  applioant  for  a 
licence.  But,  after  striking  off  the 
thirty-eight  names,  it  would  appear  that 
there  is  still  upon  tho  memorials 
a  majority  of  voters  in  fayour  of  the 
ivuing  of  the  licence.  Ths  Magistrate, 
however,  contends  that  he  has  now  dis- 
ccvered  that  74  of  thoee  names  appear 
twice,  and,  as  a  matter  of  course,  the 
names  must  be  reduced  by  that  number. 
Now,  the  question  arises  whether  that 
reduction  reduces  the  majorit;^  to  a 
minority.  In  my  opinion,  if  it  were 
qaite  clear  upon  the  evidence  before 
this  Court,  that  the  supposed  nnajority 
has  now  been  reduced  to  a  minority,  the 
Ccart  would  not  help  the  applicant,  be- 
cause the  section  provides  that  it  shall 
not  be  lawful  for  the  Licensing  Court  to 
grant  a  licence  unless  there  is  the  ap- 
proval of  the  majority,  and  if  this  Court 
nad  now  evidence  that  there  is  no  such 
•pproval.  the  Court  would  not  compel, 
with  full  knowledge  of  that  circum- 
stance, the  Court  below  or  any  officer  of 
that  Court  to  commit  an  illeg^lit^.  But 
the  question  arises  now,  has  it  been 
proved  that  the  majority  has  been  reduc- 
ed to  a  minority?  I  take  it  that,  a/t 
the  time  when  the  application  was  con- 
sidered, the  whole  of  the  evidence  was 
gone  into;  all  the  facts  upon  which  tho 
oecision  had  to  bo  come  to  were  doter- 
mined,  and,  amongst  other  things,  it 
was  determined  by  the  Court  below  that 
memorials  were  in  order.  In  so  far  as 
the  memorials  are  not  in  order  in  rosfwct 
of  the  forgeries,  so  far  the  memorials 
must  be  set  right.  But  when  the  ques- 
tion arises,  w nether  in  reducing  the 
names  bv  74,  which  appear  twice  on  tho 
memoriaJs,  the  majority  is  reduced  to  a 
minority,  certain  matters  have  now  to 
be  taken  into  consideration,  which  the 
Magistrate  has  not  taken  into  consider- 
ation. It  is  not  now  attempted  to  set 
aside  thd  judgment,  the  question  is  not 
now  before  the  Court,  whether  the  judg- 
ment was  correctly  arrived  at  upon  the 
evidence  that  wa«  before  it,  but  the 
judgnaent  stands,  and  the  judgment 
must  be  considered  to  be  given  on  good 
and  sufficient  grounds,  and  the  presump- 
tion is  in  favour  of  that  judgment,  until 
there  is  most  absolutely  clear  proof  that 
that  judgment  is  wrong.  Now,  I  have 
come  to  the  conclusion  that  there  are 
certain  circumstances  which  the  Magis- 
trate dy  not  take  into  consideration, 
which  affects  his  opinion  that  the  ma- 
jority bad  been  reduced  to  a  minority. 
Be  takes  the  number  of  votera  at  1,999, 
became  that  number  appeara  on  the  roll 
and  be  is  clearly  proved  to  be  wrong, 
because  undoubtedly  a  number  of  these 
voten  have  died  since  the  list  was  made, 
out.  Oonsequently,  thait  basis  upon 
vhioh  he  went  m  erroneoos.      With  ra- 


speot  to  some  of  the  names,  if  not  all 
oil  them,  which  have  been  mentioned,  it 
would  appear  that  the  names  of  some 
Totem  appear  more  than  once  upon  the 
roll.  Here  again,  the  list  of  total  voters 
must  be  reduced,  and  I  am  not  satisfied, 
if  this  list  be  properly  reduced  in  the 
manner  suggested  in  Mr.  Buyskes'  affi- 
davit, that  there  will  now  be  a  minority 
of  voters,  instead  of  a  majority  in  favour 
of  the  issue  of  the  licence,  even  though 
the  38  forgeries  and  the  74  duplicate 
voters  have  been  removed.  Under 
these  circumstances,  I  think  the  judg- 
ment ou^ht  to  f  tand,  because  there  is  no 
clear  evidence  upon  which  to  refuse  to 
allow  it  to  stand.  The  Court  is  asked  to 
enforce  it  by  granting  an  order  upon  the 
Magistrate  to  give  effect  to  it  by  issuing 
his  cortifioate.  It  appcairs  to  me,  upon 
my  reading  of  this  Act,  that  tho  issue  of 
a  certificate  is  contemplated.  Who  ex- 
actly is  to  sign  that,  and  what  the  prac- 
tice is  with  reference  to  making  out  the 
list,  which  is  sent  to  the  Magistrate,  and 
making  out  certificates,  is  not  very 
clear,  out  I  think  that  the  Court  will 
meet  tho  requirements  of  the  oa>»e  by  de- 
ciding that  the  applicant  is  entitled  to 
his  licenoo,  and  that  he  is  entitled  to 
receive  the  necessary  documents  from 
the  Magistrate.  I  do  not  think,  after 
that,  there  will  be  any  difficulty  in  ob- 
taining what  the  applicant  requires.  The 
Court  will  declare  that  he  is  entitled  to 
the  certificate  required. 

[Applicant's  Attoriievs:  Sauer  and 
Standeii.  Respondent  s :  Reid  and 
Nephew.] 


'     HEYDENRYCH  V.  THK  TRU8-  f        1905. 

TKE   OF    MAOKIR,    YOUNG <  May     19th. 
AND  CO.  AND  ANOTHER.      (      „       2r)th. 

Insolvency — Preferent  and  con- 
current creditoFB — Rights  of 
cessionary  of  a  general  cover- 
ing bond. 

In  1901,  C.  d'  Co,  agreed  to 
support  if.  &  Co.,  mi  the  latter 

firm  pamnr  o.  general  covering 
bond  in  their  favour.  C.  tb  Co. 
supplied  goodn  to  M.   <£•   Co. 

from  time  to  time,  for  which 
the  latter  gave  acceptances. 
Subsequently  C.  cC*  Co.  dis- 
counted some  of  these  ttidi 
the  Standard  Bank,  af id  on 
December  12th,  1902,  ceded  to 
the  Bank  the  said  covering 
bond  as  security  for  the 
acceptances  discounted.  In 
1904,  when  the  estate  of  M.  & 
Co.  was  sequestrated,  all  iheir 
cun'ent  acceptances  in  the  hands 
qf  the  Bank  were  of  date  later 


S88 


i< 


CAPB  TtMES"  tAW  EEtOfel*. 


than  December  12th,  1902, 
The  Bank  claimed  thai  debts 
due  on  these  acceptances  irere 
preferenl,  and  the  Master 
having  admitted  the  claim,  the 
truMee  Jiled  a  liquidatutn  and 
distribution  account  accord- 
ingly. The  petitioner  now 
aiyplied  for  thin  to  he  amended 
by  treathtg  the  said  debts  a^ 
cmicurrent. 

Held,  that  as  the  Bank  held 
the  bond  as  security  for  all 
the  paper  of  M,  &  Co,  dis- 
counted by  C,  d'  Co,y  whether 
before  or  after  the  cession^  the 
applicatian  must  be  refused. 


This  was  an  application  calling  upon 
the  respondents  to  fihow  cause  why  the 
account  and  plan  of  distribution  in  the 
insolvent  estate  of  Mackie,  Young  and 
Co.,  should  not  be  amended. 

The  circumstances,  ae  disclosed  by  the 
affidavits,  were  that  the  trustee  of  the 
insolvent  estate  admitted  as  a  preferent 
claim,  a  claim  by  the  Standard  Bank 
under  a  bond  for  £5,000.  In  1902,  the 
firm  of  Mackie,  Young  and  Co.  entered 
into  an  agreement  with  Messrs.  Creawell, 
Sons  and  Co.,  who  agreed  to  give  them 
financial  assistance  in  consideration  of 
receiving  a  bond  for  £5,000,  to  cover 
advanoea  made  by  them  on  behalf  of 
Mackie,  Young  and  Co.,  for  the  pur- 
chase of  ?oods  ordered  by  the  last- 
named  firm.  Messrs.  Cieswell  ceded 
the  bond  to  the  Standard  Bank  in 
1892.  and  subsequently  the  applicant 
was  given  covering  bonds,  against  which 
property  was  specially  hyi>otheoated. 
Another  oovering  bond  waa  isBoed  to 
Croswell  and  Co.  for  £3,000  and  this 
was  ceded  to  the  bank  in  1903.  Most 
of  the  advances  on  the  covering  bonds 
to  the  bank  were  made  subsequent  to 
the  cession.  The  question  to  be  de- 
cided was  whether  the  bank's  claim  was 
I>r<>forent  or  concurrent,  and  applicant 
claimed  that  it  should  be  regarded  as 
concurrent. 

Mr.  Burton  was  for  the  applicant; 
Mr.  Searle,  K.C.,  was  for  the  respond- 
ents, Mr.  H.  Hands,  trustee  in  the  in- 
solvent estate  and  ^the  Standard  Bank 
of  South  Africa. 

Mr.  Burton  contended  that  the  bank 
could  only  claim  for  the  amount  of  the 
advances  prior  to  the  cession.  The  ces- 
sionary acquired  the  rights  of  the  mort- 
gagor, and  upon  the  cession  there  was  a 
cessation  of  the  obligation  to  advance 
further  moneys.  He  submitted  that  the 
bank  was  only  entitled  to  preference 
to  the  extent  of  advances  maoe  prior 
to  the  date  of  cession. 

Mr.  Searle  argued  that  if  the  ces- 
sionary at  any  time  while  the  bond  was 


in  force  made  adyanoes  in  xeipec^ ,  of 
obligations  owing  by  the  onginjU 
moztgagor,  then  the  cessionary  could 
prove  preferently.  It  was  broadly  laid 
down  m  the  authorities  that  the  ces- 
sionary held  the  same  rights  as  the 
cedent.  This  was  the  ordinary  bank- 
ing practice,  and  he  contended  the 
Court  must  have  a  dear,  definite  author- 
ity before  declaring:  saw  a  practice  ille- 
gal. 

Cur.   Adv,    Vtdt, 

Postea  (May  25th). 

Buchanan,  A.C.J. :  The  second 
named  respondents,  the  Standard 
Bank,  claimed  as  preferent  credi- 
tors on  the  insolvent  estate  of 
Mackie,  Young  and  Co.,  in  re- 
spect of  certain  acceptances  secured 
by  a  notarial  general  bond  duly  regis- 
tered on  the  23rd  April,  1901.  This 
claim  was  admitted  by  the  Master,  and 
the  first  named  respondent,  the  trustee 
of  the  estate,  has  now  filed  his  liquida- 
tion distribution  account,  in  which  he 
has  awarded  the  bank  preference  on  the 
proceeds  of  the  property  not  subject  to 
any  special  hvpothecation.  The  appli- 
cant, who  holds  several  bonds  registered 
subsequently  to  the  respondents  bond, 
has  applied  to  have  the  distribution  ac- 
count amended  so  as  to  award  to  him 
under  the  general  clause  in  his  bonds 
the  preference  which  the  trustee  has 
awarded  to  the  bank.  To  understand 
the  relative  position  of  the  parties  it 
is  noccssarv  to  consider  the  facts  dis- 
closed on  the  affidavits.  From  these  it 
appears  that  early  in  the  year  1901, 
Messrs.  Cresswell,  Sons  and  Co.,  a  Lon- 
don firm,  agreed  with  Messrs.  Mackie, 
Young  and  Co.,  who  narried  on  business 
in  Cape  Town,  to  open  a  supporting  ac- 
count upon  Mackie,  Young  and  Co.. 
passing  in  their  favour  the  general  bond 
in  question,  covering  present  and  future 
transactions.  The  validity  of  this  bond 
is  not  ouestioned.  Under  tiiis  security 
Cresswell  and  Co.  supplied  goods  from 
time  to  time,  for  the  price  of  which 
Mackie,  Young  and  Co.  gave  accept- 
ances. Later  on,  Cresswell  and  Co.  dis- 
counted some  of  these  drafts  with  the 
Standard  Bank  ceding  to  them  the 
covering  bond  in  question.  The  date  of 
cession  was  the  12th  December,  1902. 
and  is  in  terms  absolute.  But  it  is  clear 
froni  the  affidavits  and  the  subseouent 
dealings  of  the  parties  that  the  Dond 
was  held  b^  the  bank  as  security  for 
the  paper  discounted,  and  that  Cresswell 
and  Co.  were  entitled  to  the  return  of 
the  bond  when  their  liability  to  the  bank 
on  the  acceptances  discounted  were  dis- 
charged. This  especially  appears  from 
the  fact  that  subsequently  when  negotia- 
tions took  place  between  Cresswell  and 
Co.  and  Gardiner  and  Co.  to  take  over 
Mackie,  Young  and  Co.'s  account,  Cress- 
well and  Co.  directed  the  bank  to  hold 
the  bond  at  disposal  of  Gardiner  and 
Co.  on  their  discharging  Mackie,  Young 
and  Co.'s  liabilities  on  their  drafts  in 
favour  of     Cresswell  and  Co.       These 


r 


i< 


CAt»B  TDiBS"  IaW  kEPOBTa 


389 


negotiafeioiia  fell  through,  &nd  the  bond 
wu      retained    by    the    bank.       When 
Msckie,  Young      and  Co.'s  estate  was 
Mquestrated  in   1904,   their  acxieptances 
then   current    were    all    of   date   subee- 
qoent  to  the  12th  December,   1902,  the 
date  of  the  cession  to  the  bank.     These 
aooeptances  were  at  the  time  under  dis- 
oount  with  the  bank,  who  had  recurrence 
thereon    against     Cresswoll     and     Co. 
Holding   these  acceptances,   as  well   as 
the  bond,  the  bank  proved  them  on  the 
estate,  claiming  the  preference  now  in 
question.     The  applicant  does  not  object 
to  the  proof  of  the  bank,  his  case  being 
that  it  should  rank  as  a  concurrent  and 
not  a   prelerent      claim.       Applicant's 
counsel  freely  admitted  that  had  Cress- 
well  and  Co.  never  ceded  the  bond,  but 
had  retained  possession  of  it,  and  had 
themselves   proved   for  the  outstanding 
acceptances,  they  would  have  been  en- 
titled to  the      preference,   but  he  con- 
tended that  in  the  hands  of  the  bank 
the  bond   only   secured   preference   for 
such  bills  as  were  in  the  bank  at  the 
date  of  cesbiou.     This  contention,   if   I 
understand  ccunsol's  argument  correctly, 
was  founded  on  the  proj^osition  that  the 
bank,   not  being   an   original   party   to 
the  bond,  could   not  tack  on  the  debt 
due  to  CresawcU   and  Co.   at  the  time 
of  the  cession,  and  then  transferred  to 
the  bank  a  debt  subsequently  incurred 
to  the  bank   itself.       The    doctrine   of 
tacking  of  claims  is  certainly  not  recog- 
nised by  our  law,   and  the   applicant  s 
contention  might  have  had  some  force 
if  the  bank  had   claimed   a  preference 
for  debts  incurred     by  the     insolvents 
directly  to  the  bank  subsequently  to  the 
cession.    But  there  were  no  transactions 
wtweon  Mackie,  Young  and  Co.  and  the 
Bank.    On  the  cossion  of  the  bond   to 
the  bank,   Cresswoll    and   Co.    did   not 
dose  their  account  with  Mackie,  Young 
and  Co.,   but  continued   the  course   of 
business   agreed    upon    when    the   bond 
was  passed.       These   very   transactions 
were  what  the  bond  was  given  to  secure, 
snd  they  are  represented  by  the  accopt- 
•noes  in  question,      and   it  is  common 
cause  that   had   Cresswoll   and   Co.    re- 
tained the  bond  in  their  possession  they 
coold     have  claimed   a   preference   for 
them.    In  the  caee  of  London  and  South 
Afriran  Bank   v.    Trustees   of   Gates   (5 
Searle,  246),  it  was  argued  by  counsel 
'or  the  successful  party  that  where  pro- 
misiiory  notes  in  the  hands  of  third  per- 
sons were  secured  by  a  registered  bond, 
the  holders  of  tho  bond  could  be  com- 
pelled to  prove  for  such  liabilities,  and 
to  hold  the  amount  recovered  as  trustee 
for  the  creditor  holding   the  notes.     It 
does  not  appear  from  the  report  whether 
or  not   the   Court    adoptea    this    view, 
but  it  is  not  necessary  to  go  so  far  in 
this  case,   as  the  bank   holds  both   the 
acceptances   and    the   bond    which    was 
^iven  with  the  object  of  securing  them. 
For  the  financing  of  their  business.  Cress- 
well  and  Co.  discounted  with  the  bank 
Ibe    aooeptances    they    reoeired    from 


Mackie,  Young  and  Co.,  and  handed 
the  bond  to  the  bank  just  as  they  might 
have  handed  over  any  other  securities 
they  might  have  had  in  their  possession. 
I  fail  to  see  how  the  fact  that  some  of 
these  acceptances  were  discounted  by 
Cresswell  and  Co.  at  the  time  of  the 
cession,  and  others  were  discounted  sub- 
sequently, could  relieve  Mackie,  Young 
and  Co.  from  their  obligations  under 
the  bond.  The  cession  of  the  bond  to 
the  bank  did  not  give  them  a  discharge 
of  their  debts.  As  the  bond  covered  the 
subsequent  transactions,  and  was  valid 
as  against  Mackie,  Young  and  Co.,  I 
see  no  ground  for  holding  that  their 
insolvent  estate  can  be  placed  in  a  better 
position  than  they  themselves  were  in. 
The  very  object  ot  the  bond  was  to 
secure  a  preference  in  the  event  of  in- 
solvency. The  registration  of  the  bond 
was  notice  to  tho  applicant  that  he  was 
dealing  with  persons  who  had  secured 
their  supporters  in  business  for  past 
debts  as  well  as  for  future  advances, 
which  security  would  give  the  supporters 
a  preference  should  insolvency  inter- 
vene; and  with  this  notice  before  him 
the  applicant  became  a  creditor.^  and 
now  insolvency  has  intervened.  Under 
these  circumstances,  in  my  opinion  this 
application  must  be  refused,  with  costs. 

[Attorneys  for  applicant :  Van  der  Byl. 
For  Mackie  Young:  Reid  and  Nephew. 
For  the  Standard  Bank :  Fairbridgo,  Ar« 
dome  and  Lawton.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  JustioeMAA8DORP.] 


BOSEK     V.    BARLS     AH 
6CHM1TZ. 


,0    I 


IIX)"). 
May.  IDth. 


Mr.  Gardiner  moved,  as  a  matter  of 
urgency,  for  an  order  for  the  delivery 
and  restoration  of  certain  furniture  and 
goods  sot  out  in  a  schedule  attachod 
to  a  hire  purchase  agreement  From 
the  affidavit  of  Mr.  Andrew  Carmichael, 
a  bookkeeper  in  Mr.  Rosen's  employ, 
it  appeared  that  certain  furniture  was 
supplied  to  Earls  under  a  hire  pur- 
chase agreement  when  he  was  proprie- 
tor of  tne  Mount  Pleasant  Hotel,  Re- 
form-streetb  The  instalments  had  been 
paid  as  they  had  become  due  except  as 
to  the  rent  for  April,  £5,  which  had 
not  been  paid.  iJeponent  had  ascer- 
tained on  the  10th  instant  that  the  re- 
spondent Earls  had  left  tho  hotel  and 
handed  over  possession  of  tho  furniture 
to  Schmitz  Earls  had  disposed  of 
the  furniture  to  Sdimitz  in  violation  of 
the  agreement.  An  offer  had  been 
made  by  the  applicants  to  allow  the 
furniture  to  be  transferred  to  Schmita 
in  consideration  of  his  paying  in  cash 
the  balanoe  owmg  of  £32  9s.  2d.     From 


teo 


"CAPB  tlME8»'  LAW  ftEPdtlTd. 


the  oorrespondeiice  it  transpired  that 
he  respondent  Earls  said  that  he  had 
not  handed  over  possession  of  the  fur- 
niture to  Schmitz  and  ho  denied  that 
the  goods  had  really  passed  out  of  his 
custody.  Deponent  (Carmichael)  said 
that  he  had  applied  for  leave  to  inspect 
the  goods,  but  this  had  been  refused 
by  Schmitz.  The  total  value  of  the 
goods,   added   counsel,    was   £46   Os.   2d. 

The  respondent  Schmitz,  who  appear- 
ed ill  person,  produced  a  document 
showing  that  he  had  purchased  all  the 
movables  from  Earls.  Ho  objected  to 
the  api^icant  coming  to  his  premises  for 
the  purpose  of  removing  them. 

Maasdorp,  J.,  said  that  the  Court 
would  give  the  respondent  an  cmpor- 
tunity  of  appearing  beiore  the  Court 
again,  if  he  had  a  case,  though 
he  did  not  sec  that  he  had 
got    a    case.  The    parties,    however, 

might  come  to  a  settlement  before  a 
further  order  of  Court  was  made  and 
in  the  meantime  an  interdict  would  be 
granted  restraining  Schmitz  from  part- 
ing with  the  property,  pending  a 
further  order  of  the  Court  and  direct- 
ing Schinitz  to  allow  the  applicant  to 
insj)ect  the  property,  question  of  costs 
to  stand  over. 


Ex  parte  d'ath. 

Mr.  Gardiner  moved  for  leave  to  mort- 
gage certain  property  in  order  to  pay  off 
the  debts  of  the  estate.  The  petitioner  . 
was  co-executor  with  Mr.  Steytler  in  the 
estate  of  his  late  wife,  who  had  former! v 
been  married  to  Charles  Elliott  wJth 
whom  tihe  drew  up  a  mutual  will,  the 
terms  of  which  were  that  the  survivor 
should  inherit  the  property,  with  the  ex- 
ception of  the  provieion  of  £1,000  for 
the  children,  and  that  the 
property,  including  certain  pro- 
perty at  Diep  River,  should  not 
be  sold  until  the  youngest  child  attained 
the  age  of  21.  The  petitioner  and  his 
wife  made  a  mutual  will,  making  the 
children  heirs  to  all  the  property,  sub- 
ject to  a  life  interest  in  favour  of  the 
survivor.  There  was  a  considerable 
amount  of  landed  property,  but  the  rents 
were  not  sufficient  to  pay  the 
debtee  and  expenses,  and  to  provide  for 
the  children.  The  original  application 
had  been  to  sell  certain  property,  and 
it  had  been  ordered  to  fi^tand  over  for  a 
report  from  Mr.  St<?ytler,  who  now  ex- 
press e  J  his  opposition  to  selling  any  pro- 
perty owing  to  the  depressed  state  of  the 
market,  and  recommended  that  the  pro- 
perty at  Wynberg  and  Muizenberg, 
which  was  valued  at  £9,575,  should  be 
mortgaged  to  the  extent  of  £1,250.  Coun- 
sel said  that  he  thought  Mr.  Steytler 
must  have  included  the  property  at 
Mowbray,  otherwise  the  valuation  of  the 
other  two  properties  had  been  wrongly 
entered.  , 

i 


Maasdorp,  J.,  granted  an  order  in 
terms  of  Mr.  Steytler's  recommendation, 
the  order  to  be  amended  to  include  the 
Mowbray  property,  if  Mr.  Steytler  in- 
tended it. 


GRASHICK  V.  B.S.A.  A8PUALT  CO. 

Practice — Default  of   plea -Set- 
ting aside  of  judgment. 

Although  it  in  not  necesstuy 
to  give  notice  of  a  net  doirn 
for  judgment  to  a  defendant 
who  has  been  barred^  it  in 
competent  for  the  Court  to  set 
aside  the  judgment  upon  the 
defeiulant  giving  good  reosotis 
for  his  default  and  showing 
that  he  has  a  prima  facie 
ground  of  defence. 


This  was  an  appUeation  upon  no- 
tice of  motion  calling  on  the  respon- 
dent to  show  cause  why  a  certain  writ  of 
attachment  should  not  be  set  aside  or 
the  sale  postponed  in  accordance  with  a 
judgment  given  in  the  Supreme  Court 
on  the  27th  April,  1906,  at  the  suit  of  the 
plaintiff,  by  reason  of  the  defendants' 
default  of  plea,  and  why  the  defendants 
should  not  be  allowed  to  reopen  their 
case  and  defend  their  action.  The  affi- 
davit of  Harry  Davifi,  secretary  of  the 
B.S.A.  Company,  set  out  that  the  de- 
fendants contracted  with  the  City  Cor- 
poration for  tar  pavement  at  the  Early 
Morning  Market.  The  plaintiff  engaged 
to  do  certain  piece  work  to  the  satis- 
faction of  the  City  Engineer,  who,  how- 
ever, condemned  the  work,  and  the 
plaintiff  was  ordered  to  cease  work.  The 
work  had  to  be  redone  by  the  company. 
By  reason  of  the  delay  in  doing  the 
work  the  company  did  not  know  tlie 
exact  amount  of  their  counter  claim  un- 
til the  18th  April.  Defendants  were 
barred  on  the  19th  April,  and  owing  to 
the  intervening  four  holidays  and  the 
presfiure  at  the  Supreme  Court  the  mat- 
ter did  not  come  on  until  26th  April, 
and  the  following  morning,  without 
notice,  judgment  was  taken  out  against 
them  by  default.  The  company  waa 
never  served  with  a  notice  of  set  down. 
The  company  had  good  grounds  of  de- 
fence, and  had  a  bona  fide  counter  claim. 
The  applicants  were  willing  to  pay  the 
amount  of  the  judgment  into  Court,  and 
to  pay  an^  wasted  costs  if  allowed  to  re- 
open their  ease.  The  amount  of  the 
judgment  was  £160  and  the  counter 
claim  amounted  to  £213. 

Mr.  Jones  put  in  an  answering  affi- 
davit, which  set  out  that  the  plaintiff 
was  working  for  the  defendants,  and 
that  the  engineer  had  nothing  to  do 
with  the  work  beyond  the  condition 
that  it  was  to  be  carried  out    accord- 


<l 


CAPE  TIMBS"  LAW  REPORTS. 


391 


iflg  to  hk  meaauiemetits.  He  denied 
that  be  was  requested  to  ceaae  work, 
but,  on  the  other  hand,  he  refused  to 
c»ny  out  the  work  unless  he  had 
inotey  to  pay  his  labourei-s.  The 
pUintiff  did  not  believe  the  company 
had  got  a^  hcna  fide  claim ;  they  were 
merely  tryine^  to  gain  time,  and  he  had 
reason  to  belieTe  further  that  they  in- 
tended   going    into  liquidation. 

Mr.  Upington  put  in  a  replying  aflS- 
davit  from  the  secretary,  in  whioh  he 
denied  m  toto  the  allegations  of  the 
plaintiff. 

Mr.  Upington  for  the  applicants  (de- 
fendants in  the  action).  Mr.  P.  S.  T. 
Jones  for  the  respondent. 

Counsel  having  been  heard  in  argu- 
ment, 

Maasdorp,     J.:      It    seeme     to      me 
tbat      the        plaintiff        in       this     case 
complied      with       the       conditions     of 
tbe     Rules    of      Court    before   he  ob- 
tained      judgmeiyt,     and     consequently 
be  obtained    his       judgment      in      due 
cC'Uise.      The     defendant     was     barred 
from    pleading,     and,     in    my    opinion, 
after  hie  was  so  barred    there   was      no 
necessity  under  the    rule  of  the   plain- 
tiff giving    the    defendant    notice    that 
tbe  case  was  to  be  set  down   for  judg- 
ment   But    I    think    that       judgment, 
having  been   obtained,   it   is  within  the 
discretion  of  the  Court   to  set    it  a»ide 
npon   the    defendant       satisfying       the 
Court  that  there  was  some  good  reason 
for  his  default,  and  that  he  has  a  prima 
faeie  cause  of  defence,   although  it  doee 
not  quite    clearly    appear  that    all   the 
necessary    steps    were    vigilantly    taken 
by  the  defendant  in    these   prooedings. 
I   think    some   p^ood    explanation       has 
been  given,   which   accounts  for  his  de- 
fault  in    this    matter,    and    the    Court 
would   therefore    consider   further    whe- 
ther he  has  given       prima  facie  grounds 
for  a  defence.       It  seems    to   me   that 
the  dispute   i^  a  bona   fide   dispute,  and 
It  did  not  arise  after  the  action  brought 
by  the  plaintiff.     The    defendants  were 
dissatisfied    at    the    work  performed    by 
the  plaintiff,   and    did      not       consider 
themselves  liable  for  the  full  amount  of 
his  claim.     Under  all  the  circumstances 
tbe  Court  will  set  aside   the  judgment, 
•nd  allow     the    defendant    to  purge  his 
default  and    to    plead    upon   the   plain- 
*'o  being  fully  secured   m  the  amount 
of  his  judgment   in   case  he  shall      be 
hereafter   successful.     The    defendant  to 

a  into  Court  the  amount  of  this 
jment,  and  to  pay  the  costs  which 
have  been  incurred  m  consequence  of 
their  default.  The  judgment  will  be 
■et  aside,  the  defendant  allowed  to 
purge  his  default,  and  to  pay  into 
Court  £162  Ss.  6d.  to  abide  the  judg- 
Bktnt  of  the  Court,  and  to  pay  costs  ; 
incurred  by  his  default,  and  coets  of  ' 
this  motion.  I 

^[Applioant's      Attorney:     P.    Hughes. 
iUtpondenes:   A.  J,  MoCallum.]  i 


DUNLOP  V.  UNION  CLAN  LINE. 

Sir  H.  Juta,  K.C.,  for  the  dofeiid- 
ants,  moved  for  the  appointment  of  a 
commission  to  take  the  evidence  of  de-" 
fondants'  witnesses  in  New  York.  Mr. 
Burton,  for  the  plaintiff,  cx>nscnted  on 
condition  that  the  commission  be  a 
joint  one.  Sir  H.  Juta  suggested,  as 
commissioner,  the  British  Consul  at 
New  York. 

Order  appointing  a  commiRsion 
granted,  tlie  British  Consul  at  New 
York  to  act  as  commissioner. 


In  re  THE  ESTATE  STEER. 

Mr.  Gutsche  applied  for  an  amend- 
ment of  a  recent  order  by  the  insertion 
of  the  word  "  unsecured."  The  order 
allowed  certain  property  to  be  mort- 
gaged for  the  suin  of  £800,  in  order 
to  pav  the  liabilities,  and  counsel  now 
movea  for  the  alteration  to  make  it 
read    *  unsecured  liabilities." 

Granted. 


Ex  parte  the  liquidators,  buffalo 

SUPPLY  AND  COLD  STORAGE  CO. 

Mr.  Burton  moved  as  a  matter  of  ur- 
gency for  the  removal  of  me  of  the 
official  liquidators  of  the  companv, 
Christopher  Robertson,  who  had  ab- 
Boondea  with  some  of  the  funds  of  the 
company.  Robertson  had  since  writ- 
ten saying  that  he  had  taken  the 
money  as  remuneration  foT  his  ser- 
vices. The  other  liquidators  could  do 
nothing   without  Roberti«on's    signature. 

A  rule  niai  was  granted,  catling  on 
Robertson  to  sh<  w  cause  wliy  he  should 
not  be  removed  from  the  omoo  of  liqui- 
dator, returnable  Juno  8,  to  be  served 
personally,  if  possible,  and  in  case  of 
default,  one  publication  in  the 
"  Gazette,"  and  one  in  a  Ploemfontein 
paper,  authority  in  the  meanwhile 
given  to  the  two  liquidators  to  act  in 
the  lijiuidation  The  usjal  order  of 
inspection  of  the  repirt  rcade,  publi- 
cation in  a  paper  in  Cape  Town  and 
East  London. 

Po8tea   (June   Bfh). 

Mr.  Burton  moved  on  behalf  of  the 
official  liquidators  of  the  Buffalo  Supply 
and  Cold  Storage  Company  (Messrs.  H. 
M.  Fleming  and  J.  Power),  for  the  re- 
moval of  one  of  their  co-liquidators, 
Christopher  Robertson,  from  his  office. 
Counsel  said  that  he  had  already  present- 
ed a  report  of  the  liquidators  to  the 
Court,  and  that  report  wa*;  now  lying 
for  inspection.  Paragraph  15  said  that 
Robertson,  about  the  middle  of  April, 
left  Bast  London,  and  in  consequence 
of  certain  information,  Mr.  Fleminj? 
(who  drew  iip  the  report)  went  to  East 
London,  and,  as  a  result  of  inquirio?, 
had  found  that  Robertson  had  absconded, 
and  had  misappropriated  certain  of  the 
company's  funds.       Part  of  that  money 


ad2 


"CAPE  TIMES"  LAW  REPORTS. 


had  been  reoeived  daring:  yoluntary  li- 
quidation, and  part  afterwards.  The 
total  amount  bo  misappropriated,  as  far 
as  had  been  ascertained,  would  amount 
to  less  than  £150.  A  letter  had  since 
been  reoeived  from  Robertson,  written 
from  Bloemfonteini  aaving  that  the  funds 
BO  taken  by  him  had  been  applied  to- 
wards payment  of  remuneration,  due  to 
him  in  connection  with  the  liquidation, 
lie  went  on  to  aay  that  he  waa  without 
means,  or  he  should  have  entered  an 
appearance  to  reply  to  some  of  the  state- 
ments in  the  report  which  he  thought  un- 
reasonable and  unni^cessarilv  harsh. 
Counsel  asked  for  the  removal  of  Rob- 
ertson from  office,  and  a  direction  that 
lie  should  receive  no  remuneration  for 
hui  services.  lie  also  asked  on  behalf  of 
th«)  liquidators  for  an  order  by  the  Court, 
as  to  a  claim  for  £150  by  Mr.  Lawrence 
Wray  for  rent  to  rank  as  preferent. 

Order  granted  for  the  n>moval^  of 
Robertson  from  office,  and  Mr.  Wray's 
claim  to  rank  as  preferent. 

His  Lordship  said  that  the  matter  of 
Robertson's  remuneration  could  be  dealt 
with  when  the  question  of  remuneration 
to  all  the  liquidators  came  before  the 
Court. 


RSTATC  DAVIDSON  V.  AUFET. 

This  moltiter  came  before  the  Ohdef 
J-usrtdce  in  Jtanuary  la<^t,  and  a 
judgment,  aldAiough  nort  of  a  final 
naiture,  wias  given.  'His  Lontehtp  re- 
ferred the  nvBitter  back  to  tihe  Roai- 
demt  Mvi^i^nute  for  funther  infonnaibion 
on  centain  poinits  (15  C.T.R.  21). 
The  origrinal  application  was  to  have  a 
certain  pn>of  of  debt  filed  by  the  res- 
pondent expunged.  Davidson  had  bor- 
rowed £300  from  the  respondent,  and 
an  agreement  on  which  the  money  was 
borrowed  was  to  the  effect  that  Auret 
wafi  to  have  the  right  to  inspect  all  the 
books,  and  that  he  was  entitled  to  a  half 
share  of  the  profits  yearly.  At  the  <Mid 
of  the  first  year  there  was  a  profit  of 
£200  or  £300,  Aurct  applied  for  his 
half  share  of  the  profits,  out  Davidson 
was  not  in  a  position  to  saii-sfy  this  de- 
mand, and  the  respondent  obtained 
judgment  against  Davidson  in  the 
Court  for  £300  and  half  the  profits,  and 
Davidson,  being  unable  to  satisfy  the 
judgment,  surrondered  his  estate.  Auret 
filed  his  claim,  and  the  Resident  Mag- 
istrate allowed  it.  Wlien  the  matter 
came  before  the  Chief  Justice,  he  re- 
ferred it  back  to  the  Resident  Magis- 
trate, with  leave  to  both  parties  to  pro- 
duce further  evidence  for  information 
on  the  following  points:  (1)  Production 
of  all  correspondenoe  that  may  have 
passed  between  Auret  and  Davidson 
r^ative  to  the  tailoring  business  car- 
ried on  by  the  latter;  (2)  any  relevant 
oral  evidence  that  may  be  tendered  on 
either  side  upon  the  questions  at  issue 
with  liberty  to   the  opposing   party  to 


oross-eKamine  the  witnpasos;  (3)  pro- 
duction of  the  statement  submitted  by 
Davidson  in  March.  1904,  and  showinir 
an  alleged  profit  of  £283  lis.  6d.;  (4) 
an  account  prepared  by  some  oompe- 
tent  person,  and  sworn  to  by  hun 
showing  (a)  the  capital,  ^  if  any,  paid 
into  tM  businesi  by  Davidson;  (b)  the 
actual  amount  and  dates  of  advanoes 
made  bv  Auret;  (o)  the  sums,  if  any, 
obtaiiiea  from  the  business  by  Auret, 
and  the  sums  drawn  by  Davidson  aa  sal- 
ary as  his  share  of  the  profits  and  for 
his  private  purposes ;  (d)  the  profits  and. 
losses  made  and  incurred  between  the 
date  of  the  agreement  and  the  date  of 
sequestration:  (e)  the  value  of  the  as- 
sets of  the  Dusiness  and  the  value  of 
assets  not  belonging  to  the  business  at 
the  date  of  sec^uest ration ;  (f)^  the 
amount  of  the  liabilities  <^  the  business 
and  the  amount  of  the  other  liabilities 
of  Davidson  at  the<date  of  sequestration, 
and  (g)  generally  the  balance  of  either 
profit  or  loss  of  the  business  at  the  date 
of  sequestration.  Counsel  said  that 
there  was  no  reply  to  the  questiim  as  to 
the  sums  drawn  by  Davideon.  as  his  sal- 
ary, as  hia  share  of  the  profits  and  for 
his  private  purposes,^  but  with  that  ex- 
ception there  was  evidence  on  the  other 
matters. 

Mr.  Giddy,  E.C.,  was  for  the  plain- 
tiff,  the  trustee  in  the  estate;  ana  Mr. 
Searle,    K.C..    was  for  the  defendaut. 

Counsel  having  been  heard  in  arg^u- 
ment, 

iMaasdorp,  J..  iMuid  it  nngiht  be  neces- 
sary for  him  to  ask  for  further  inform- 
ation hereafter,  meanwhile  he  would 
look  into  the  papers. 


SUPREME  COURT 


[Before  the  Actinr  Chief  Justice,  (the 
Hon.  Sir  John  Buchanan),  and  the 
Hon.  Mr.  Justioe  Maasdobp.] 


VAN  ZTL  V.  WARNER.        {  May^d. 

New  trial — Insufficient  damages. 

Where  a  case  involving  only 
questions  offctci  has  been  tri«i 
before  a  jury  which,  in  the 
opinion  of  the  judge  who  pre- 
sided, has  tu)/  acted  perversely 
or  unreasonably^  the  Court 
will  not  order  a  fiew  trial,  on 
the  ground  that  the  verdict  wat 
against  the  toeight  of  epideifee, 


Iff 


CAPE  TIMES"  LAW  BEP0RT8. 


398 


atd  that  inmffieiettt  damages 
were  awarded. 


Thu  was  ftn  applioation  imon  notice 
of  notion  for  a  new  trial  ot  an  action 
haaai  last  term  before  Mr.  Justice  Maas- 
dorp  and  a  jury.  The  applicant,  Ghris- 
tisn  Hendrik  van  Zvi,  of  Sea  Point,  sued 
the  respondent,  Robert  Charles  Warner, 
also  of  Sea  Point,  for  £1,000  damages,  by 
reason  of  the  defendant  having  wilfully, 
wrongfully,  and  unlawfully  set  fire  to  a 
plantation  on  the  applicant's  land  at 
Botany  Bay,  and  destroyed  a  large  num- 
ber of  trees  and  hedges.  The  deifendant 
made  a  tender  of  £250,  with  costs  to  date 
of  tender.  The  jury  found  for  the  appli- 
(Mt  for  £260  (tamagea,  the  amounit  of 
the  tender,  and  judgment  was  entered 
aooordingly,  ciefendant  to  pay  costs  to 
dete  of  tender  and  plaiiitiff  to  pay 
Nifaseqaesit  ooeta. 

Mr.  Van  Zyl  now  moyed  the  Court  for 
a  new  trial,  on  the  ground  tfa»t  the  dam- 
sges  awarded  by  the  jury  were  too  small, 
snd  that  the  verdiot  was  against  the 
weight  of  evidence,  and  also  for  the 
Court  to  ezeroiee  its  aiscretion  in  regard 
to  giving  final  judgement  on  the  evidence 
already  recorded.  Counsel  intimated 
tliat  It  was  not  proposed  to  press  the 
latter  puri  of  the  application. 

The  aApliottliion  .was  broug<ht  under 
seotkm  36  of  Act  No.  2&  cf  1891,  biA>- 
Motions  3  and  0,  which  were  respec- 
tively, '"tlisi  ibhe  damages  are  excee- 
nve  or  4oo  emaQ,**  and  *'  tbait  t^ 
veididt  w  against  the  weigbt  of  evi- 
dence " 

The*  affidavit  of  the  appUcant  etated 
tbdfc  the  daoMgee  atwairaed  wene  too 
sottlL 

Ti»  lep^ng  affidavit  of  Uhe  reepon- 
denft  ^t«ibed  tiuKt  he  oonaiderad  the 
amount  of  damages  oiwarded  wae  laiir 
and  reasonable,  and  theit  he  objedted 
40  a  new  trial,  by  which  4ie  would  be 
put  to  fuBther  espenee. 

.Mr.  Searlo,  K.C.  (with  him  Mr.  Gar- 
dinw)  was  for  the  applicant;  Mr.  Uping- 
ton  rWith  him  Mr.  P.  S.  T.  Jones)  was 
for  the  respondent. 

Mr.  Gardiner  then  proceeded  to  read 
the  record  of  the  evidence  called  for  the 
plainti£f. 

Mr.  Jones  read  the  record  of  evidence 
called  for  the  defence. 

Mr.  Seaide  referred  to  the  oaee  of 
HmUer  v.  Tramteap  Company  (10  Cape 
Times  Law  Reports,  and  l7  Supreme 
Court  Reports,  80).  He  submitted  that 
it  was  dear,  as  regarded  the  present 
matter,  that  the  preponderance  of  evi- 
dence was  strongly  in  favour  of  the 
plaintiff,  in  view  of  the  character  of  the 
witnesses  and  their  local  knowledge. 
Neither  Mr.  Matthews  nor  Mr.  Pillans, 
who  were  called  for  the  defence,  really 
met  the  case  at  all.  Mr.  Matthews's  evi- 
denoe  might  very  properly  be  sw^ 
#wa7,  beoaose  bis  tender  was  not  hasid 


on  the  correct  estimate  of  what  it  would 
cost  to  reinstate  the  trees.  Mr.  Pillans, 
in  his  estinutte,  only  took  into  account 
maintenance  for  twelve  months,  and  he 
also  left  out  the  charge  for  labour.  Both 
the  estimates  failed  to  go  to  the  issue, 
which  was,  what  it  woiud  have  cost  to. 
put  Mr.  Van  Zyl  in  possession  again  of 
nis  plantation.  It  waa  perverse  and  un- 
reasonable if  the  jury  found  the  damages 
on  the  estimates  given  by  Mr.  Matthews 
and  Mr.  Pillans,  inasmuch  as  they  had 
not  provided  for  the  full  set  of  circum- 
stances for  which  the  plaintiff  was  en- 
titled in  law  to  damages.  Again,  on  the 
question  of  the  deterioration  of  the 
ground,  counsel  submitted  that,  so  far 
as  the  defence  was  concerned,  tne  only 
evidence  which  was  directly  of  value  in 
the  matter  at  all,  was  that  given  by  Mr. 
Behr,  in  answer  to  the  Court,  when  he 
said  that,  with  the  trees  on  the  planta- 
tion, ho  would  value  the  ground  at  £625. 
That  was  tho  only  evidence  which  the^ 
had  to  support  the  verdict  It  was  evi- 
dent that  his  estimate  could  not  be  ac- 
cepted, because,  on  his  own  admission, 
he  had  taken  the  lots  at  a  less  extent 
than  he  should  have  done,  by  deducting 
space  for  a  roadway.  He  would  not  sa^ 
that  the  respondent's  action  was  mali- 
cious, but  it  was  a  wanton  case  of  de- 
struction, and  liberal  compensation 
should  have  been  given.  One 
never  knew  whait  influenced  a 
jury — buit  ift  wjas  clear,  in  tlhis 
case,  that  the  weight  of  evidence  was 
stronffly  in  favour  of  the  plaintiff.  Coun- 
sel eubmitted  that  the  Court  should  now 
hold  that  the  verdict  was  against  weight 
of  evidence,  and  direct  a  new  trial. 

Mr.  Upington  quoted  authorities  on 
damages,^  and  submitted  l^hat  it  could 
not  be  said  in  this  case  that  the  jury  did 
not  itutke  lall  of  the  eiemonte  of  damages 
into  their  consideration.  The  authori- 
tiee  went  to  show  how  reluctant  the 
Court  was  to  ffrant  a  now  trial  on  the 
ground  that  tne  damages  were  inade- 
quate. 

Buchanan,  A.C.J. :  The  appli- 
cairfc  was  plaiirtiff  in  an  acitaon 
for  damageksi  suffered  in  oonee- 
quence  of  a  fire  which  the  de- 
fendant had  originated,  and  by  which 
fire  plaintiff  had  a  plantation  of  trees 
destroyed.  The  plaintiff  himself  ad- 
mits that  he  was  satisfied  with  defend- 
ant's explanation  that  the  fire  was  not 
done  maliciously,  and  he  accepted  de- 
fendant's explanation  that  it  was  done 
for  the  purpose  of  saving  defendant's 
own  property.  A  bush  fire  was  sweep- 
ing over  the  mountain  in  the  direction 
of  the  plaintiff's  property,  and  the  de- 
fendant set  fire  to  the  grass  in  plaintiff's 
property  in  order  to  save  his  own.  It 
was  a  wrongful  act  on  the  part  of  the 
defendant,  and  the  defendant  very  pro- 
perly admitted  his  liability  for  the  injury 
done.  The  only  question  was  what  was 
the  amount  of  the  injury  the  plaintiff 
■uffered.      The  plaintiff  cUimed  £1,000, 


394 


ti 


CAPE  TIMBS'*  LAW  REPORTS. 


and  the  defendant  tendered  £250.  The 
question  went  before  the  jury,  and  there 
is  DO  objection  taken  to  anything  set 
before  the  jury  or  the  direction  of  the 
Court.  The  only  objection  is  that  the 
amount  of  damages  was  too  small,  and 
against  the  weight  of  evidence.  Now* 
there  is  evidence  to  show  that  Mr.  Van 
Zyl  was  put  to  considerable  expense  in 
planting  these  trees,  but  he  planted  them 
m  a  place  where  trees  do  not  readily 
grow,  and  a  good  deal  of  the  expenditure 
was  unremunerative.  The  jurv  had 
before  them  direct  evidence  that  the 
trees  could  be  replaced  for  leas  than  £200, 
It  waa  essentially  a  jury  question  to 
determine  what  amount  should  be  award- 
ed for  damages.  The  circumstances  on 
which  a  new  trial  is  granted  are  fairly 
sftaHied  in  ttihe  case  of  Hunter  against 
the  Cape  Toton  Tramway  Co.  (10 
C.T.R.  141),  and  t^here  iit  is 
Ikud  down  When  the  question  is 
one  of  fact,  and  there  is  evidence  to 
8ui^>ort,  the  verdict  ought  to  stand. 
Then,  again,  the  Court  will  consider 
the  opinion  of  the  learned  judge  who 
heard  the  case.  He  was  in  a  fair  po- 
sition to  judge,  and  he  was  of  opinion 
there  was  no  perverseness  or  unreason- 
ableness on  the  part  of  the  jury,  and, 
on  the  contrary,  it  was  a  fair  verdict. 
We  have  a  question  left  entirely  to  the 
jury.  We  have  the  evidence  before 
the  jury,  and,  in  the  opinion  of  his 
lordship,  the  jury  acted  in  an  honest 
way.  Under  the  circumstances  it  is 
difficult  for  the  Court  to  find  any  sound 
ground  to  grant  the  application  for  a 
new  trial.  On  the  contrary,  it  was  a 
jury  case,  and  there  was  no  law  involved 
m  it.  The  jury  had  been  chosen  by 
the  plaintiff,  and  they  gave  their  verdict 
honestly  on  the  evidence.  The  Court 
ought  not  to  go  out  of  its  way  to  upset 
this  verdict.  One  may  sympathise  with 
Mr.  Van  Zyl,  on  losing  a  property  he 
had  an  affection  for.  While  sympathis- 
ing with  him,  I  cannot  hold  that  the 
verdict  is  an  improper  one,  and  I  think 
that  the  application  ought  to  be  refused, 
with  costs. 
Maasdorp,  J.,  ccmcurred. 

[Applicant's  Attorneys:  Van  Zyl  and 
Buissinn^.  Respondent's:  Syfret,  God- 
lonton  and  Low.] 


GENERAL     MOTIONS. 


1905. 


ESTATE  ULYATE  V.  SAVAGE /«.„  o«k.j 

JMay  ^. 

Thus  <wa8_  an  applioation  on  no- 
tice of  motion,  brought  by  the  trustee  m 
the  eetate  to  have  certain  preference  of 
debt  expunged  or  amended.  The  appli- 
cants formerly  carried  on  business  at 
East  London,  and  it  appeared  that  two 
bonds  had  been  entered  into  with  the 
respondents,  first  w^ei)  the  firm  waa  a 


partnership,  and  asain  when  the  firm 
had  been  transferred  into  a  limited  com- 
psny. 

Mr.  Searle,  K.C.,  wa<»  for  the  appli- 
cant, and  Sir  H.  Juta,  K.C.,  was  for  the 
respondenlt. 

Mr.  Searle  submitted  that  the  evidenoe- 
ahowed  that  it  was  never  intended  that, 
there  should  be  two  bonds  in  exiatenoe. 
It  was  fully  understood  between  the  par- 
ties that  the  aeoond  bond  should  take 
the  place  of  the  first.  The  old  bond 
couIgI  not,  he  urged,  be  now  revived. 

Pottea  (May  29^). 

Counsel  were  further  heard  in  argu- 
ment. 

Buohanan,  A.  J.C :  The  firm  of 
Savage  and  Sons  oarrded  on  busi- 
neas  aft  Poiit  EUsabetfti  and  in 
London,  and  one  of  their  custo- 
mer wiaa  UJyaite,  who  carried  on 
business  at  East  London.  As  is  a  com- 
mon practice  in  this  country,  Ulyate, 
in  1896,  gave  a  general  bond  to  the  firm 
of  Savage  and  Sona  to  cover  present  and 
future  advances  by  his  supporters.  In 
1896  Savage  and  Sons'  business  in  Lon- 
don was  formed  into  a  limited  liability 
company,  and  the  limited  liability  com- 
pany took  over,  as  one  of  the  aasets  of 
Savage  and  Sons,  the  debt  of  Ulyate. 
An  agreement  waa  then  entered  into 
that  Ulyate  should  pass  a  new  bond  to 
the  limited  liability  company  formed  in 
London,  and  that  the  old  bond  passed 
by  him  to  Savage  and  Sons  should  be 
cancelled.  The  carrying  out  of  this 
agreementt  wiaa  enltruerted  to  the 
altitorney  of  Kftie  company.  Mr. 
Chabaud,  of  Port  Elizabeth.  Aa  there 
were  many  transactions  of  the  eame 
nature,  and  Mr.  Chabaud  could  not  at- 
tend^^o  'them  'personally,  the  conduct  of 
thie  buaineiss  was  handed  over  to  his 
ohitcif  derk,  'Mr.  .Van  der  Horst,  who 
was  an  aittorney  and  notary  puiblic. 
The  lim/ited  liaHhlty  co.  were  cogniaant, 
and  conaenited  to  this  arrangement, 
but  looked  to  Mr.  Chaibaud  to  have 
t/hds  work  done  in  a  proper  maimer.  In 
compliance  with  this  agreement  Ulyate 
paisBed  a  new  bond  to  the  limited 
liiabiilvty  company  on  the  22nd  Decem- 
ber, l698.  This  new  bond  w«a  regis- 
tered in  itihe  IRegicltry  of  Deeds  in 
Oape  Town,  but  the  asttorney  evidently 
overlooked  the  faot  thait  under  the 
Aot  No.  3  of  1865  registration  w«a 
ailao  irequired  in  (the  Deeds  Registry  of 
King  w&Uiam's  Town,  Eatft  London 
having  formed  a  portion  of  the 
former  province  of  Britiah  Kaffraria. 
Wlien  ulyvite  became  inaolvenst  in 
19M,  the  lisnifted  liability  eompaxfy 
clanmed  under  the  new  bond  of 
the  22nd  December,  1898,  to  have  a  pre- 
ference for  the  amount  of  the  debt  due 
to  them  by  Ulyate.  The  debt  waa  al- 
lowed as  preferent,  but  on  an  appeal 
to  the  Eastern  Districts  Court,  that 
Court  decided  that  in  consequence  of  the 
failure  to  regiater  at  King  William'a 
T<onirn  <tftie  'pirafereiit  daim  must  be  ex* 


"CAPE  TIMES"   LAW  REPORTS. 


39/S 


ponged,   but  tiie   kmutod   liability  com- 
pany  were   allowed   to   rank  as   a  oon- 
current   cret^tor.    The   decwion    of  the 
HMkem     DhJlni<^  Court   is   not     uues- 
tioned,  end  stHl  stands,  and  this  Court 
omnoi    now    ^  behind    thai   deai»ion. 
Ittieitoupon  (the  company   w^dbdrew   the 
oAum,    which    they  ^  had    proved,    and 
aooffist  Ito  eecure  tneir  preference  under 
bcMHi,  wUioh     Ulyato     had     given     to 
Savage,  and   wibioh  by  the   agreement, 
was  to  be  oancaOed  on  the  paasing  of 
the  new  twod.    ThU  bond,   as  I   have 
ahoady   itated,  bad   been  cancelled    in 
^     Deeds   Ilegasltry  of    Qape     Town, 
bm   h  had  not  been   cancelled   in  the 
Deeds      Registry    <£     King     WilUam's 
Town,   Knd  when  we  loc^  at  the  facte; 
on    the  insolvency    of    IHyaite    we   find 
dMt  the  English  oon^pany     tihenMcJvos 
totally   ignored   any  claim   under      the 
old  bond,  and  stood  by  their  own  bond 
which    had   been  jnssed    &n   1898.        It 
wts  only  when  thu   new  bond  was  de- 
clared   not  to   gave  them   a  preference 
thalt  «bey  sought  to  httve  a  preference 
under  the  okl  bond.    The  question   is, 
thereionB,     wlhether    H^  old     bond     is 
attM  of  force,  and  can  be  relied  on  by 
the  limited    liability    co.    It   is    aileged 
thai    the  ooaelts  of    Siavage  and     Sons 
were  ceded     to     the    limited     Kability 
company,  and  thafb  Ma  was  one  of  the 
snets     iwbich  went     to  the     company. 
Baft  when  we  come  to  look  at  the  bond 
itoetf  it  appears  that  tihe  old  bond  was 
not  oedsd  itx>  the  new  ooimpiany  at  all. 
The  new  Ibond  was  passed  on  the  22nd 
December.    1898,   and   I  find    upon  the 
dd  bond  not  a  oc«on  to  the  company, 
but  a  canceUaAfton  by  Savage  and  Sons 
on  the  14th  January,   1899.       It  is  evi- 
d<*irt  thalt  Stavage  and   Sons   considered 
aU  along  thai   the  old    bond   had  been 
avpersedod,  and  that  there  bad  boon  an 
acquittance   thereon.  ^  The   quc^ion  the 
Court  has  to  decide  is  wherthor  the  new 
bond  was  accepted  in  pllace  of  the  old 
one.     I  think  undoiAytcdIy  it  w.afi.     The 
documents     themselves     show    that     i-t 
was;    the  condudt  of  the  English  com- 
pany   in  proving   on     (fhe     new     bond 
i&howB     tbtft    they  considered   it      w^m ; 
and  I  thank  thai' now  ilt  is  too  late  for 
them  to  a4tomipt  (o  revert  to  a  lia'bility 
on    a  document  which,  had   boon     put 
oat  of  exiflltenoe,  and  to  re»ly  on  a  docu- 
ment  which  had   been    declared    to  be 
oanceUiRd.       On   thai   simple    ground    I 
think  tibat  the  EngHsh  company  are  not 
enfntied  to  irevent  to  this  old  ertingudsh- 
ed  agreement,   »nd  thereunder  claim  a 
preference.    The   Court  are   of  opinion 
that  die  old   Isability  was   nci  of  force 
and  effect  as  against   Ulyaie.    The   ap- 
pHcaiion    must,  tberefore,    be    granted, 
deckring  that  the  respondents   had  no 
preference  under  the  bond  of  1896. 

B€aasdorp,   J.,  concurred. 

[Applicant's     Attorneys :      Fairbridge, 
Ardeme     and     Lawton.      Respondento: 


C0ATB8  y.  8EARLE. 

Sir  H.  Juta,  K.C.,  moved  upon  notice 
calling  upon  the  plaintiff  in  the  action 
to  show  cause  why  an  order  should  not 
he  graut4>d  restraining  him  from  pro- 
ceeding with  his  suit  until  he  shall  have 
paid  the  costs  of  an  application  heard  on 
the  1st  May,  and  the  costs  of  this  ap- 
plicatioh. 

Order  granted. 


Van  Zyl  and  Buissinn^.] 


t 


[Before the  Hon.  Mr.  Justice  Maasdorp.] 


GRAND  JUNGTIOM  RAILWAYS  f        1905. 

V.  WALKER.  (Hiy  22nd. 

This     wjiB     a      doubfle      ajipHoataon, 
arising     oiii    of     an    applicaiion     thai 
wa8  made  some   time   ago  on  behalf  of 
John  Walker  for  leave  to  have  his  evi- 
dence taken  on  commission  in  an  action 
in  which   the   receivers   of  the      Grand 
Junction  Railways,  who  are  suing  John 
Walker  and  Sons  and  John  Walker  indi- 
vidually for    tran<ifer  of  certain    landed 
properties,  which  were  acquired  for  the 
purpose  of  the  railways,  and  which,  un- 
der a  certain  agreement,  they  contracted 
to    hand    over   to    the    Grand   Junction 
Railways.    The  Court  had  previously  or- 
dered that  the  case  should  be  set  down 
for  trial  on  the  13th  May,  and  that     ic 
the    meantime    the    present       applicant 
should  take  the  opportunity  of     having 
Mr.   John    Walker  medically   examined, 
and   decide  whether  or  not   they  would 
oppose  the  application  for  leave  to  take 
his     evidence      on     commission.       Mr. 
Walker   applied    to   have  his      evidence 
taken  on  commission  on     two  grounds: 
the   fir»t  being  his   state   of  health,  and 
that  he    had  an  action    pending    in    the 
English  (^oiirt  in  which  no  is  defendant, 
and  Arnold  Frank  Hills  plaintiff.      Hills 
was  willing  to  suspend  those  proceedings 
to  enahlo  Jc»hn  Walker  to  come  out  here 
tD  give   his  evidence.       The   application 
was  on  notice  of  motion,  calling  on  the 
respondent  to  show  cause  why  an  order 
should  not   be  granted  to   further  post- 
pone the  hearing  of  the  action,  ancf  the 
application  of  John  Walker  for  leave  to 
give  his  evidence  on  commistiion. 

Mr.  U.ping^Km  for  the  applicants; 
Mr.  Russell  for  the  respondents. 

Mr.  Russell  said  he  consented  to  the 
postponement  of  the  hearing  of  the 
action. 

Mr.  Upington  said  he  moved  for  tliQ 
postponement  of  the  hearing  of  the  ac- 
tion, and  of  the  application  to  take  Mr. 
Walkers  evidence  on  commission.  Coun- 
sel put  in  affidavits  which  set  out  that 
Walker  put  such  conditions  in  the  way 
that  it  was  impossible  to  obtain  a  pro- 
per medical  report.  Dr.  Gay  had  said 
that  Mr.  Walker  was  suffering  from  cer- 
tain senile  affections,  that  he  had  suf- 
fered from  apoplectic  seizures,  and  that 
it  would  be  danger6us  to  his  health  if  he 


396 


l€ 


CAPE  TIMES'*  LAW  REPORTS. 


undertook  tho  journey  to  the  Gftpe.  It 
was  neoeeenry  to  have  Walker  examined 
by  a  surgeon,  but  he  would  not  have  the 
pnysiciaji  and  surgeon  examine  him  at 
the  same  time,  and  insisted  on  seeing  the 
first  doctor's  certificate  before  he  sub- 
milted  himself  to  the  second  examin- 
ation. Mr.  Upington  road  letters  from 
Dr.  Ferrier  and  Sir  Victor  Honley  to 
the  effect  that  it  was  essential  that  the 
examination  should  be  made  conjointly. 

Mr.  Russell  read  medical  affidavits,  one 
stating  that  the  examination  could  well 
be  made  on  separate  occasions,  and  an- 
other to  the  effect  that  some  years  ago 
Mr.  Walker  suffered  from  a  sharp  at- 
tack of  cerebral  congestion,  and  as  there 
was  always  a  danger  of  recurrence,  he 
was  warned  to  avoid  excitement  and 
worry,  and  live  quietly.  Counsel  did  not 
object  to  the  postponement  of  tho  trial, 
but  he  opposed  the  postponement  of  the 
application  to  take  Walker's  evidence  on 
commission. 

Matasdorp,  J. :  In  tihis  case  there 
is  an  aip^lioarfiion  for  posltponement 
of  ithe  triiad,  and  4ihat  being  con- 
sented ito,  ithe  case  is  poitponed 
««7ie  die,  as  the  trial  depends  upon 
the  result  of  the  other  application  tnat 
is  before  the  Court.  Then  there  is  a 
motion  on  behalf  of  XValker  for  a 
commission  to  take  his  evidence  in  Lon- 
don. It  appears  that  the  matter  has 
already  been  before  the  Court,  and  the 
Court  ordered  that  the  decision  be  post- 
poned until  the  plaintiff  had  an  oppor- 
tunity of  obtaining  an  affidavit  by  a 
medical  man  as  to  the  state  of  health  of 
the  defendant.  Then  the  plaintiffs  made 
some  attempt  to  got  the  necessarv  medi- 
cal certificate,  and  in  order  to  ao  so,  it 
was  necessary  that  the  defendant  should 
consent  to  submit  to  such  examinatioai. 
Upon  being  approached,  certain  ^  diffi- 
culties were  raised  by  him,  and  in  the 
result,  as  the  correspondence  now  stands, 
it  appears  that  the  parlies  came  to 
terms  on  most  points,  leaving  only  one 
outstanding.  When  the  plajntiff  re- 
(luested  a  physician  to  examine  ^  Mr. 
Walker,  he  expressed  it  as  his  opinion 
that  it  would  be  necessary  to  have  the 
a.ssi»tanco  of  a  surgeon,  and  the  sur- 
geon concurred  with  the  physician  that 
tno  only  satisfactory  examination  could 
be  by  the  two  of  them  jointly.  Mr. 
Walker  consented  to  all  the  proposals 
of  the  attorneys  in  London,  but  h«  re- 
fused to  submit  himself  to  a  joint  exam- 
ination by  the  surgeon  and  {>hysician. 
Now,  I  cannot  possibly  conceive  what 
reasonable  objection  Mr.  Walker  can 
have  to  such  examination,  and  we 
have  it  positively  stated  by  two  emin- 
ent medical  men  that  any  but  &  joint 
examination  would  be  unsatisfactory.  I 
can  only  hold  that  Mr.  Walker  ought 
to  allow  himself  to  be  jointly  examined 
by  these  men.  No  order  will  be  made 
on  the  application  for  a  commission  to 
take  Mr.  Walker's  evidence,  but  leave  is 
given  to  %\^  applicant  to  move     again 


when  he  shall  have  consented  to  sufamit 
to  a  joint  examination  in  consultation 
by  two  medical  men.  Any  future  ap- 
plication to  be  made  not  later  than  the 
1st  August,  the  question  of  costs  to  stand 
over. 


^  parte  METER. 

Mr.  Burton  moved  for  an  order 
authorising  the  Registrar  of  Deeds  to 
amend  certain  deed  <^  transfer  and 
mortgage  bond,  by  substituting  the 
petitioner's  full  name,  Sabrant  Henard 
Meyer,  instead  of  Sabrant  Meyer. 

Granted. 


VAN  DRIEL  V.  WENTER  AND  NIEBERQ. 

Mr.  Douglas  Buchanan  was  for  tho 
applicant,  and  Mr.  Watermeyer  was 
for  the  respondent.  The  application 
was  for  leave  to  sue  the  defendants  in 
forma  pauperis  over  a  certain  contract. 

M-ataedopp,  J.,  saad  he  would  like  to 
have  further  information  as  to  certain 
itoms,  and  ordered  the  case  to  stand 
over. 


SUPREME  COURT 


[Before  the  Acting  Chief  Justice  (the 
Hon.  Sir  John  Buchanan)  and  the 
Hon.  Mr.  Justice  Maasdorp.  j 


REVIEW. 


REX  V.  HANS  PEKBUK.       |  M^L^^ij 


23rd. 

Magistrate's  jurisdiction — Lashes 
—Act  43  of  1885. 

Maiaedorp,  J.,  said  that  the  cnae 
of  liex  V.  Hans  Pekeur  had  come 
before  him  from  the  Court  of  the  Resi- 
dent  Magistrate  of  Montague.  The  ac- 
cused was  charged  with  assault  with 
intent  to  do  grievous  bodily  harm.  This 
case  had  been  remitted  to  the  Magis- 
mate  under  the  Act  43  of  1885.  The 
accused  was  found  guilty,  and  sen- 
tenced to  six  months'  unprisonment 
with  hard  labour  and  24  lashes.  It  ap- 
peared that  under  tho  Act  43  of  18§5 
the  accused  could  only  be  sentenced  to 
Idshes  in  case  of  a  previous  oonvictiotj 
for  some  offence  within  the  last  thr«» 
vears.  No  previous  oonviotion  ha<& 
been  proved  in  this  case,  and  conse- 
quently the  sentence  must  be  quashed 
by  striking  out  the  words  "  and  24 
lashes." 


"tJAPE  TIMES''  LAW  REPORTS. 


397 


CRIMINAL.    APPEALS. 


SEX  V.  DUM BELLA. 

This  WM  an  appeal  from  a  oonvictioQ 
of  the  Aflristant  ReaideDk  Magistrate  of 
toe  Obpe  at  Uitvlugt,  who  had  sen- 
tenoed  the  accused  to  a  fine  of  £50.  with 
the  alternatiTe  of  three  months*  hard 
labour,  for  a  breach  of  the  liquor  laws. 
IVe  charge  against  the  accused  was  that 
she  bad  contravened  section  75  of  the 
Act  28  of  1883,  in  that,  on  or  about 
the  26th  February,  at  or  near  UitTlugt, 
the  accused.  Matilda  Dumbella,  aid 
wrongfully  and  unlawfully,  and  without 
a  Ucenoe  and  contrary  to  the  proviskons 
of  the  said  Act,  self,  deal  in,  or  dis- 
pose of  intoxioating  liquors,  or  sell, 
offer,  or  expose  for  eale  to  certain  per- 
sons mentioned  in  the  summons  a  quan- 
tity of  intoxioating  liquor,  to  wit, 
Kafir  beer.  Gape  beer,  and  Cape  brandy, 
oiberwise  with  a  contravention  of  sec- 
tion 7  of  Act  28  of  1888,  in  that  she 
did  wrongfully  make,  assist  in,  or  cause 
to  be  made  a  quantity  of  intoxicating 
liquor,  to  wit^  one  tin  oontaining  Kafir 
b«Br,  without  having  obtained  the  per- 
mission of  the  owner  or  lessee  <:^  the 
premises. 

^  The  Magistrate,  in  his  reasons  for 
judgment,  said  that  be  did  not  believe 
the  evidence  of  the  witnesses  called  for 
the  defence,  and  he  was  quite  satisfied 
that  the  accused  was  the  owner  of  the 
liquor  in  question. 

Mr.    Burton     wae  for  the  appellant ; 
Mr.  Nightingale  was  for  the  Cfrown. 

Mr.  Burton:  The  first  point  raised  is 
an  alleged  o£Fenoe  under  section  75  of 
Art  28  of  1883,  viz. :  the  selling  intoxi- 
•^ating  liquor  without  a  licence.  This  Act 
ntaea  a  presumpltion  (in  favour  <k  the 
Crown.  In  the  case  of  Queen  v.  Ful- 
ItrUm  (4  H.C.  246).  the  conviction  was 
quadbed  on  appoai,  authough  a  con- 
Mdenable  quanWty  of  liquor  wom-  found 
>n  the  howe.  In  the  caa©  of  Qurm  v. 
Ihi  PlegsU  (9  Juta  03),  iho  evidence  was 
much  Anooger.  Hero  the  woman  ad- 
mits Uie  ownen»hip  of  the  beer  end 
Kafir  beer,  ibuft  she  denies  having  dcaJt 
in  it  'Hiere  ie  no  evddenoe  to  connect 
her  with  dealing  in  brandy  and  Gape 
beer.  A  witness  olaimed  Hhe  Cbpe 
beer  sb  hss  own  property.  The  natives 
fiviug  fbi  the  house  procured  the  Kafir 
beer.  No  sale  ihee  t>een  proved.  The 
BM»o  who  really  sold  the  beer  were 
scquided,  and  the  accused  who  wias 
innocent  was  convicted.  As  to  beiing 
in  pcMSMsion  ol  Kafir  beer,  she  admits 
that  lit  was  iiers. 

fBucflianan,  A.C.J. :  Bbo  must  show 
that  ahe  bad  permic«ion  to  malco  Kafir 
beer.} 

Xo,  she  is  accused  of  making  Kafir 
beer  wiifaouit  a  licence.  See  Queen  v. 
Kirkman  <4  RD.C.  309),  especially  t^e 
judgmenlt  of  Shippard,  J.  There  must 
be  at  ilofl#  prima  facie  evidence  that 
the  accoeed  iiad  no  lioenoe. 


OBucbanan,  A.C.J. :  6he  oertalinly 
had  no  licence  to  sell  Kafir  beer,  nor 
had  she  permission  to  make  ift.] 

Section  6  of  Aot  26  of  1898  only 
gives  permioaion  to  a  landnwnei'  or 
lessee  to  searob  £or  Kafir  beer. 

Mr.  Ndgbtingale  (for  the  Crown), 
was  not  called  upon. 

Buchanan,  A.C.J.,  said  ibat,  taldng 
the  w^Kxie  of  <ihe  oiroumMtanoes  into 
consideration,  the  Magistnate  w«e  justi- 
fied in  findmg  thsit  the  liquor  was 
actually  consumed   by  the  men  on  tihe 

E remises,  and  suppUed  by  a  won>an  wlvo 
ad    no   licence.    The   ap^al    would  be 
diemfiseed  and  the  eonvioteion  oonfirooed. 
Mr.   Justice  Maaedorp   concurred. 


BBX  V.  RADASI. 

This  was  an  appeal  from  a  conviction 
of  the  A.R.M.  of  the  Cape  at  Uitvlugt, 
The  caee  waa  in  several  respects 
similar  to  the  previous  one.  The  ac  • 
cusod  wsB  charged  with  contraventions 
of  ficction  75  of  the  Act  28,  1883,  or, 
otherwise,  with  a  contravention  of  sec- 
tion 7  of  the  Aot  28  of  1898,  the  allega- 
tions being  that  he  had  sold,  in  the 
first  instance,  a  bottle  of  Cape  beer  to 
a  native,  and,  in  the  second  instance, 
Kafir  beer,  Ca^  beer,  and  Cape 
brandy  to  certain  natives,  and,  alter- 
natively, that  he  had  in  his  possession 
two  bottlos  of  Kafir  beer.  The  accused 
was  convicted  on  all  counts,  and  sen- 
tenced to  pay  a  fine  of  £50,  or  thiee 
months'  imprisonntent,  with  hard  la- 
bour. 

The  Magistrate,  in  his  reasons  fot 
judgment,  said  he  did  not  believe  the 
evidence  with  regard  to  the  sub-letting 
of  the  premises,  and  he  was  satisfied 
the  liquor  was    found   on  the  premise? 

Mr.  Burton  was  for  the  appellant, 
Arthur  Hadasi,  of  McKenzie*s  Farm; 
Mr.   Nightingale  was  for  the  Crown. 

•Mr.  Bullion  contended  that  the  Magis- 
trate's  deci»ion  with  regard  to  the  sub- 
letting wad  not  supported  by  the  evi- 
dence. \Va6  it  probable  that  this  nian 
would  lease  a  whole  row  of  rooms  with- 
out having  any  sub-tenants?  The  con* 
stable,  w1k>  was  well-known  to  the  ac- 
cused, stated  that  he  was  not  sent  to 
trap  the  accused,  but  that  he  went  to 
the  room  of  his  own  accord.  The  evi- 
dence of  the  policeman  wa«  extremely 
improbable,  and  it  was  entirely  unauj^- 
ported.  There  was  not  a  tittle  of  evi- 
dence to  show  that  anybody  else  was 
the  owner  of  the  place.  The  evidence 
went  to  show  that  the  accused  was  the 
owner,  and  there  was  no  evidence  that 
he  did  not  get  permission  to  have  the 
Kafir  beer,  and  the  Map^i^trate  was 
wrong  in  refusing  the  application  of  the 
appellant'a  attorney  for  a  discharge  on 
that  count. 

Buohanan,  A.C.J.,  said  there  was 
an  alternative  count,  and  before  dealing 
with  the  matter  he  would  refer  it  back 


398 


if 


CAPE  TIMES"  LAW  REPORTS. 


to  tho  Magisirato  to  ask  him  if  ho  found 
ibo  aocusGQ  guilty  on  all  three  counts, 
and  if  so  to  apportion  the  punishment. 

Poxtea   (May  B9t'h). 

(Buoba<iuui,  (A.C.J.,  said  itlva't  'w'hon 
this  oase  was  argued  inet  week, 
the  Court  waa  of  opinion  that  there  was 
sufficient  evidence  to  justify  the  Magis- 
trate's decision,  but  an  irregularity  ap- 
peared on  the  face  of  the  proceedmsB, 
m  that  the  Magistrate  had  convicted  the 
accused  on  two  counts,  and  on  an  alter- 
native count  to  the  second,  and  the 
Court  sent  the  matter  back  to  the  Magis- 
trate to  apportion  the  fine  on  the  three 
convictions.  The  Magistrate  now  ap- 
portioned 10s.  to  the  alternative  count, 
aind  to  this  extent  the  sentence  would 
be  reduced,  and  the  conviction  on  the 
count  quashed.  Otherwise,  the  deci- 
sion of  the  Magistrate  would  be  con- 
firmed. 


BEX  ▼.  WEDDBLL. 

This  was  an  appeal  from  a  conviction 
of  the  R.M.  of  Colesberg,  by  which  the 
appellant,  Robert  Weddeli,  junior,  was 
ordered  to  pay  a  fine  of  £20,  or  one 
month's  imprisonment,  to  be  cumulative 
on  two  counts  for  a  breach  of  his  licens- 
ing oonditione  ait  Naiauwpoaxit. 

The  charge  woe  thatt  the  accused, 
wJio  nrem  manager  of  the  British 
Airican  Hotel,  in  ibreaoh  of  con* 
ditirions  1  and  2  of  !hia  licence, 
sold  a  botMo  of  bnandy  to  an  unro- 
giatered  Baeuto  (who  had  no  permit)  be- 
tween the  hours  of  6  p.m.  and  10  a.m. 
The  appellant's  attorney  applied  for  a 
dibmiMal  of  tho  case  on  the  ground  that 
tiiere  was  no  evideiioe  to  snow  Robert 
Woddell  was  licensed  to  sell  liquor,  and 
that  as  the  licence  read  "  before  10  a.m. 
and  6  p.m.,"  there  was  total  prohibition, 
and  there  could  be  no  breach  of  the  con- 
ditions.    The  application   was      rofusod. 

Mr.  Gardiner  was  for  the  appellant, 
and  Mr.  Nighitinga^e  wa.s  for  the 
Crown. 

Mr.  Gardiner  said  he  relied  in  his  ap- 
peal on  the  ground  that  Robert  Woddell 
was  absent  in  Johannesburg,  and  was  no 
party  to  Che  offence. 

Buchanan,  A.C.J. :  TIhe  accused  in 
tliis  caee  was  c^iargod  with  contraven- 
ing the  conditions  of  his  licence 
in  tha/t  Mquor  ypbs  eold  by  hi-s  barman 
to  an  aboriginal  native  at  a  time  when 
Kuch  Bale  was  not  aWowed  by  the  con- 
diitions,  anB  also  wi'tliout  tho  permit 
recju^red.  There  are  two  defences  set 
up.  Tho  first  one  is  tliajt  the  person 
charged  was  only  manniging  tJie  bui^i- 
nc^,  and  that  tbe  licerivsoc  was  absent 
at  the  time  when  the  sale  took  place. 
It  is  true  the  defendant  was  absent,  but 
he  admitted  he  was  the  manager  for  hiii 
(father,  and  (*ho  11  till  section  of  Adt  44 
of  1885,  makes  the  person  managing 
tihe  bu««iucss  of  any  licence  lioflder  liaible 
to  <^ho  eame  duties  and  obligations  and 


penalties  as  such  bolder.  The  mere 
I  tacit  of  bis  boing  out  of  the 
hotel  att  the  time,  if  he  had  eiood 
,  iu  the  position  of  the  licensee  does  not 
,  exculpate  him  from  the  consequence  of 
the  act  of  the  barman,  whom  he  placed 
in  charge.  The  12th  section  of  Act-  28 
of  1898^  enacts  that  anv  liquor  in  Cbe 
pusiffission  of  a  licensed  dealer  sold  by 
any  member  of  his  family  or  person  in 
(hi4  service  or  enu>loy  abaU  for  the 
purposes  of  the  Lriquor  Adts  of  1883 
and  1806  be  condjusively  deemed  to 
bave  been  sold,  delivered  and  deatt  in, 
or     sufvplfied    vMi  (the  kirawledge     and 

SermdssDon  of  the  holder  of  the  licence. 
t  lis  the  duty  of  tbe  manager, 
to  keep  a  man  in  chaise  who  will 
not  contravene  the  conditions  of  the  li- 
cence, and  the  wrongful  act  of  the  bar- 
man was  committed  within  the  scope  of 
his  (the  barman's)  employment.  It  is 
no  aefenoe,  tbougn  it  might  affect  the 
amount  of  the  penalty,  that  the  act  waa 
committed  against  the  wish  of  the  man- 
ager, and  that  the  manager  did  his  beat 
to  avoid  a  contravention.  The  next 
pwint  'has  reference  to  the  conditions 
of  the  licence.  There  were  two  condi- 
tions which  were  charged  tm  having 
been  contravened,  but  both  offences 
were  hi  respect  of  the  some  aot, 
and  it  is  a  principle  in  law  that  one 
act  like  ithw  should  noit  be 
spllit  up  and  muiltipHed  into  sepa- 
rate offences.  I  think,  therefore, 
there  should  be  onlv  one  conviction  on 
this  charge.  The  Magistrate  convicted 
tho  accused  of  two  offences,  and  imposed 
a  cumulative  penalty.  I  think  one  of 
tho  convictions  should  be  struck  out,  and 
the  sentence  reduced  to  one  fine  c^  £20, 
or  one  month's  imprisonment.  The 
8<»ntenoe  will,  therefore,  be  corrected,  but 
otherwise  the  conviction  will  be  confirm- 
ed, and  the  appeal  will  be  dismissed. 
Maiasdorp,   J.,    concurred. 


SUPREME  COURT 


[Before  the  Acting  Chief  Justice  (the 
Hon.  Sir  John  Buchanan)  and  tho 
Hon.  Mr.  Justice  Maasdobp.] 


JACOBS  AND  CO.  V.  MILLEB  f        1905. 

AND  CHIAT.  (  May  25tb. 

This  was  an  application  on  notice 
of  motion  calling  on  the  respondents  to 
show  cause  why  they  should  not  be  com- 
mitted for  contempt  of  Court  for  not 
complying  with  an  order  of  Court.  The 
affiiavit  of  Fnancis  Guthrie,  attorney,  rf 


"CAPE  TIMES"  LAW  REPORTS. 


39d 


CaledoQ.  and  sole  trusted  in  the  estate 
of  Jacobs  and  Ca,  sot  out  that  ho  ob- 
tained judgment  against  the  respondents 
for  £771  3s.  9d.,  and  a  further  order  was 
obtained  to  attach  the  book  debts  of 
the  firm.  The  respondents  handed 
in  one  book,  which  was  apparently 
Maked."  Miller  statod  to  the  de- 
ponent that  there  were  outstanding 
debU  in  the  books  to  the  amount  of 
£180.  and  the  book  showed  nothing 
like  that.  His  refusal  to  deliver  up 
the  books  would  injure  the  creditors. 
The  respondents  had  purchased 
Jaoobs's  biMiness,  and  an  action  for  the 
UQoaot  of  the  purchase  price  went  by 
default 

ThiQ  affidavit  of  Bokunon  Miller  statod 
he  admttted  judgment  was  obtained 
against  his  firm,  and  an  order  granted 
to  attach  the  books.  He  endeavoured 
to  carry  out  the  order  of  Court,  and 
was  willing  to  hand  over  the  books 
(o  the  trustee.  The  only  book  was 
the  one  handed  in,  and  it  was  made 
up  from  little  pocket-books  kept  in  the 
Yiddish  lanjguage  bv  Jacobs. 

The  reifying  affioEavit  of  Mr.  Guiiihrie 
drew  aitt^jnttion  to  the  fact  that  only 
one  of  the  re9ponden4»  made  An  affi- 
davit. The  affidavit  of  one  Be  We/t, 
Ataied  ihaX  he  had  seen  three  books- 
ledger,  cash,   and  a  rough  dayixxik. 

Mr.  Upington  was  for  the  applicant, 
sod  Mr.  Alexander  was  for  the  lespon- 
dents. 

Buchanan,  AX7.J. :  to  make  the 
previous  order  perfectly  dear,  and 
in  order  to  prevent  any  funbhei 
illegality,  an  oider  will  be  issued 
that  the  respondents  deliver  up  to  the 
applicant  all  books  connected  wit^  their 
busioeas,  the  order  to  be  served  per- 
M&ally  on  both  respondents,  as  this  was 
*  question  ol  contempt  of  Court. 


Ex  parte  THE   BECEIVEBS    OP    THE 
OKAKD  JUNCTION  RAILWAYS. 

Mr.  Upington  asked  leave  to  mention 
this  matter,  which  had  been  ordered  to 
stand  over  for  further  information  as 
to  one  Amos,  in  whose  name  certain 
property  which  had  been  purchased  by 
Joim  Walker  and  Son  for  the ,  Grand 
Junction  Railways  was  still  roistered. 
Amos,  counsel  said,  was  still  living  in 
ibe  Colony.  Counsel  moved  for  trans- 
fer under  the  Derelict  Lands  Act. 

A  rule  ntfft  was  granted  under  the 
Derelict  Lands  Act,  the  rule  to  be 
served  on  Amos  and  the  late  partners 
of  the  firm  of  John  Walker,  tno  part- 
ners in  the  Colony  to  be  served  per- 
•ODslly.  and  those  out  of  the  Colony 
to  be  served  by  registered  letter,  one 
pabljoation  in  the  Gazette "  and  in 
the  "Cape  T^mes."  returnable  3rd 
August. 

Pottea  (August  3rd). 

Mr.  Upington  said  that  this  wa^  the 
Datttzn  dajf  of  the  rule  fiMt  under    the 


Derelict  Lauds  Act.  One  of  the  respon- 
dents (Amos)  did  iK^t  appear,  and 
counsel  asked  that  the  rule,  so  far  as 
he  was  concerned,  bo  made  absolute. 
As  to  the  other  respondents,  John 
Walker  and  partners  of  John  Walker 
and  Soais,  he  asked  that  the  matter 
stand  over  ponding  the  decision  of  other 
questions  by   an    action. 

Mr.  Russell  (fur  the  respondents,  John 
Walker  and  John  Walker  and  Sous) 
consonted. 

Rule  absolute  as  against  Amos,  and 
ordered  to  stand  over  as  against  other 
respondents. 

His  Lordship  intimated  that,  with 
reference  to  the  application  for  a  com- 
mission de  bene  ease  to  take  the  evidence 
of  John  Walker  in  England,  ho  had 
seen  his  brother  Hopley,  who  agreed 
with  him  that,  on  the  certificate  filed 
by  the  two  English  doctors,  the  ap- 
plioation  for  a  commission  should  n<»t 
be  granted.  The  application  would  bo 
refused,  with  coats,  and  the  Court  would 
direct  that  the  parties  should  go  to 
tnaJ  within  the  first  week  of  noxt  term, 
which  would  allow  sufficient  time  for 
Mr.  John  Walker  to  come  out  from 
England. 


SUPREME  COURT 


[Before  the  Actinsr  Chief  Justice  (the 
Hod.  SSir  John  Buchanan)  and  the 
Hon.  Mr.  Justice  Maasdobp.] 


BEX  v.  JELLIMEN. 


f        1905. 

(May  26th. 

Magistrate's  finding  on  facts  over- 
ruled. 

This  was  an  appeal  from  a  judgment  of 
the  Resident  Magistrate  of  Macloar. 

The  appellant,  Wm.  Edward  Jellimen, 
of  the  Royal  Hotel,  Maclear,  had  been 
convicted  in  the  Ck>urt  below  of  contra- 
vening section  30  of  Proclamation  104, 
of  1903,  in  that  he  did,  himself,  or  by 
or  through,  or  by  the  hand  of  his  ser- 
vsnt,  or  oarman,  one  Collins,  at  or  near 
the  Royal  Hotel,  wrongfully  and  unlaw- 
fully sell,  give,  or  supply,  or  deliver  to 
a  native  (a  Basuto),  a  bottle  of  brandy, 
the  said  native  not  having  obtained  a 
peimit  signed  by  a  Magistrate.  The 
aeou.<«ed  had  been  sentenced  to  pay  a  fine 
of  £50,  or  in  default  six  months  impri- 
sonment. 

Mr.  CTlose  was  for  the  appellant ;  Mr. 
Pyeniont  was  for  the  Crown. 

Mr.  Close  said  that  the  grounds  of 
appeal .  were ;   (1)  That  there  woe     not 


400 


CAPE  TIMES"  LAW  tCEPOItTB. 


sufficient  proof  that  tho  barman  Golline 
did  sell  the  liquor,  and  (2)  that  the  bar- 
man had  been  in^tructca  by  his  master 
not  to  sell  liquor  to  natives.  Appellant 
had  originally  been  licensed  under  Pro- 
clamation 250  of  1900.  Under  that  Pro- 
clamation the  hotel  was  carried  on  for 
some  time.  The  last  time  the  licence 
wafi»  renewed  it  was  issued  on.  a  form 
under  the  old  Proclamation,  whereas,  as 
a  matter  of  fact,  that  Proclamation  had 
been  repealed,  and  the  new  Proclam- 
ation of  1903  had  been  substituted.  The 
di£Ferenoc  between  the  two  was  that  thera 
was  a  specific  penalty  under  the  Pro- 
clamation mentioned  on  tho  licenoe  hand- 
ed to  tho  licensee,  but  there  was  not  a 
word  as  to  forfeiture,  while  under  the 
later  Proclamation  forfeiture  was  provid- 
ed for.  That  was  the  particular  Pro- 
clamation under  which  the  appellant  was 
convicted.  The  Magistrate  apparently 
recognised  the  very  serious  consequences 
and  had  suspended  his  jtid^ment.  He 
(counsel)  might  mention,  as  indicative  of 
the  very  serious  result.s  to  the  appellant, 
that  the  value  of  his  8t(x;k  was  £2,000. 

[Buchanan,  A.C.J. :  As  the  law  standi 
at  present  the  Magiittrate  has  got  a  dis- 
cretion?] 

Mr.  Close :  No,  he  has  got  no  discre- 
tion. The  case  is  rather  an  impasse, 
because  appellant  has  got  his  licence  un- 
der a  Proclamation  that  does  not  exist. 
Of  course,  ho  is  bound  by  the  conditions 
on  his  licence. 

[Buchanan,  A.C.J. :  Carried  to  the 
legitimate  insue,  then,  he  has  got  no 
licence  to  sell  at  all?] 

Mr.  Close  said  he  thought  the  position 
would  bo  that  appellant  was  entitled  to 
act  under  the  authority  given  him.  Pro- 
oeeding,  counsel  said  that  his  client  did 
not  deny  that  the  brandy  was  sold,  but 
ho  said  that  it  whs  sold  in  the  bar  to  a 
white  man,  and  that  tho  white  man  sold 
thi.'  liquor  to  the  native  at  the  side  door. 
Counsel  submitted  that  Bcfiter's  evidence 
was  contradicted  in  regard  to  his  posi- 
tion ;  he  contradicted  himself  as  to  where 
the  native  was.  Kennedy,  an  important 
witness  for  the  Crown,  gave  a  totally  dif- 
ferent version  from  Bester,  as  to  the  time 
the  native  arrived  at  the  hotel.  With 
all  the  contradictions  of  Bester  by  cre- 
dible witnesses,  the  Magistrate,  haying 
such  drastic  powers,  should  have  given 
the  appellant  the  benefit  of  the  doubt. 
It  was  clear  by  section  12,  of  Act  28,  of 
1898,  that  the' holder  of  a  licence  could 
not  defend  himself  by  saying  that  he 
gave  instructions  to  his  servant  not  to 
sell,  but  that  law  only  applied  to  the 
Colony. 

Mr.  Pyemont  said  he  would  not  argue 
that  t-hene  were  contradictions  on  both 
sideis,  but  unless  there  was  something 
startlingly  wrong,  he  did  not  think  that 
the  decision  of  the  Magistrate  should  be 
upset,  and  he  contended  that  the  proba- 
bilities were  in  favour  of  the  prosecu- 
tion. 
Buobanan,  A.C.J. :  The  licence  of  the 


I 


hotel  waa  held   under  a     Proclamation 
issued  in  1900.     At   the  time   the  licence 
was  issued,  that   Proclamation  had  been 
repealed  and     replaced    by     a     Procla- 
mation of  1903.      The    teims  of  the  two 
Proclamations,  as  far  aa  they    affect  the 
oflPonce,  do  not  differ  to  any     material 
extent,  but  the  punishment    under    the 
two  Prookkma.tiona  differs,  and    if     this 
conviction  is     sustatned,  it  will  be     an 
interesting        subject       for      discuasioD 
whether   or  not   defendani   is  liable  ^  to 
the    penalties  under  the     Proclamation 
under  which   the  licence  was     granted, 
or  to  the  jpenolties  under  the      Procla- 
mation existing  at  the  time  the  offence 
was  committed.      The  appeal     is  made 
bv  the  appellant  on  the  grounds:   first- 
ly, that  the   conviction      is  against  the 
weight  of  evidence  in  the   case;      and, 
secondly,    that    the   person    who      com- 
mitted the  offence  was  the -barman,  who, 
if  he  did  sell  Hquor  to  a  native,  did   it 
against   tho  orders   of  the  hotelkoeper. 
I'he  circumstanced  of  the  case  are  such 
that  it    will    be   sufficient    to  deal   only 
with   the      weight     of     evidence.     The 
learned  couneel  for  the  Crown  admitted 
there  is  a  contradiction  in  the  evidence, 
but  put  it    to   us    that  we  slKHild    take 
the  evidence  and  weigh   it,   and  say   to 
which    side   it    leans.     Well,   if    I    were 
fii>t'ting  as  a  juror,  I  should  have  no  beei- 
tation   in  sajrin^  that  the  great  weight 
of  evidence  is  in  favour  of  the  appeU 
lent ;   but,  aa  the  question  depends  upon 
the    finding   of    the   Magistrate   on    the 
fact,  it  is  necessary  to  go  more  carefully 
into  the  evidence,  than  to  give  a  gene- 
ral impression  as  to  which  side  the  evi- 
dence supports.     It  has  frequently  been 
laid    down     that>     where  witnesses    are 
call<Ki  and  facts  have  to  be  determined, 
the  person  who  tries  the  caee  sees  the 
witnesses  and   their   bearing    in    Court. 
is  the  person  better  able  to  jud|;e  aa  to 
the  credibility  of  the  evidence  given  be- 
fore him.    But  it  must  also  be  remem- 
bered   that   in    a    criminal    charge    the 
onus  is  on  the  Crown  to  prove  its  caise, 
while  in  a  civil  action  it  is  very  often  a 
question    as   to  on  on  which  side    falls 
the  balance  of     testimony.     The  charge 
is    that     the     appellant's    barman    sold 
liquor  to  a  native  when  not  entitled   to 
do    so     under    the    licence.      Hie  nsr 
tive      is       one     Koloko.       The       only 
witness  called  to  show  that  liquor  was 
sold  is  a  man  Bester.  and  his    evidence 
is  positively  contradicted  by  a    number 
of  witnesses,  and  one  has  to  look  close- 
ly at  Bester's  evidence  and    antecedents 
before  we   can   say  whether      his     evi- 
dence    should  be     acted  upon     alone. 
He  says  he  went    into  the  bar  of  the 
hotel,  and  when  he   entered  the  barman 
Collins  was  actually    serving  the  native 
at  a  side  window.       Cbrporal    Kennedy, 
of  the  CM. R.,  called  to   support  Bester. 
directly  contradicts  him    in    this  respect. 
Kennedy,    on   the   contrary,    says    that 
when    Bester  entered    the   bar,    Koloko 
was  then  proceeding  to  the  aide  window. 


CAPB  TIMES"  LAW  BEP0IIT8. 


401 


Besters  evidence  ib  oooiradictory  iu  it- 
self, lie  fint  said  on  entering  the  bai- 
he  weiit  to  the  end  of  the  counter  but 
cxruld  not  eee  the  side  window,  but 
when  pressed,  it  is  clear  be  went  from 
the  door  openinj;  on  the  side  directly 
to  the  bar,  and  it  would  be  impossible 
for  him  to  aee  where  the  native  was 
supposed  to  be  standing.  Bester  did 
not  go  at  the  instigation  of  the  police 
to      trap.  He^   went     there  simply, 

he  says,  for  a  drink.      He  says  be  did 
not  buy  a  bottle  of    brandy,  but  witness 
after  witness — and  they  seem     credible 
witnesses — say  he   did    buy   a  bottle  of 
brandy,  and  oame  out  of  the  hotel  with 
the  bottle   and  the  msQ     Feirrara,     to 
whom  the     Magistrate  alludes*     says  he 
raw  him  go      out  of  the  bar  with  the 
bottle.       The    Magistrate     queries    his 
eridenoe*    because  ne  says  witness  was 
not  certain    as  to  the  time,  but  witness 
ssys  it  was  while  the  sale  was  goina^  on, 
and  it  was  dear  from     other  evidence 
that  it  took  place  between  10.30    and  1 
o'clock.       Therefore  it  was    likely  that 
Feirrara  did  see  Bester  coming  out  of 
the  hotel    with    the  bottle   of  brandy  at 
the   same  time  that   the  other  witness 
deposes  to.      As  to  Hester's  character,  it 
appears   ho   was  a  man  who  associated 
with  natives,   and  who  on  previous  oc- 
casions     had    bought   liquor    for  them, 
knowing  they  were  not  entitled  to  bu;r 
themselves.     The  native  Koloko  says  it 
wss   Bester,   and   not  the  barman,  who 
gave  him  the  liquor,  and  he  gave  it  out- 
Hide   the   hotel.     Koloko  also  says   tha/t 
he  had   received  liquor  from  Bester  on 
a    previous    occasion.         Bester    denies 
buving     brandy,   but     Collins,   the  bar- 
man,     says   he  sold   him   a  bottle      of 
brandy.       Kolopolo's  son  says     he    saw 
Bester     come  out.   and  saw  him     give 
the    brandy    to     Kolopolo,     and     J^lli- 
men,   the   hotelkeeper   himself,   says    he 
gave^   instructions  to  the  barman  never 
to  give  liquor  to     natives,   and  that  he 
saw  Bester  and  the  native      walk  over 
to  the  hotel.     Looking  at  this  evidence, 
1  think  the  Magistrate  should  have  care- 
fullv  scrutinised  Bester's    evidence,  and 
should  not  on  his  evidence  alone    have 
convicted  the  accused,  unless  there  was 
corroboration.      Six  or  seven    witnesses 
positively    contradicted  Bester,  and  the 
evidence  of  these  witnesses    should  have 
received   more  weight  than  they      did. 
The    Ma^strate    simply    says     a  num- 
^^r  of  witnesses  were  called  for  the  de- 
foDce,   but  he  says  he  could  not  accept 
their  evidence,   as   they  were      all      ad- 
dicted to  the  use  of  brandy,  and  it  was 
to    their    interest  to  keep    the       hotel- 
ke^>er  there.       If  that  was  the     reason 
for   not    accepting    their   evidence,     the 
aame     objection      would   also    apply    to 
Bester.     Keluctant  as  I  am  at  any  'tim<^ 
to  interfere  with  the  finding  of  a  magi- 
strate on  facts,  yet,  ss  there  is  only  the 
uncorroborated    evidence    of    one    man, 
who     had      previously   contravened    the 
law,  and  who,  when  the  native  was  ai^ 


rotated,  had  a  strong  interest  in  trjring 
to  shield  himself;  and  he  is  contradic- 
ted by  the  police  (who  are  Crown  wit- 
nesses) as  well  as  by  so  many  witnesses 
for  the  defence,  I  think  the  Magistrate 
would  have  acted  with  better  discretion 
if  he  had  acquitted  the  accused.  In  our 
opinion,  on  the  evidence,  the  appeal 
must  be  allowed,  and  the  conviction 
quashed. 
Masbdorp,  J.,  concurred. 


SUPREME  COURT 


[Before  the  Actinj?  Chief  Justice  (the 
Hon.  Sir  JouN  Buchanan)  and  the 
Hon.  Mr.  Justice  MiABDOBP.] 


CRIMINAL  APPEALS. 


HEX  V.  ADAMS  AND  OTUEBS 


•{ 


1905. 


May  29th. 
Mission  station — Grazing  rights. 

Thifi  was  an  appeal  from  a  decision  of 
the  Assistant  Resident  Magistrate  of 
Malmesbury,  who  convicted  Adams 
and  22  othors  of  the  crime  of  contra- 
vening section  30  of  Act  15  of  1892 
(the  Founds  Act),  and  sentenced  each 
of  them  to  pay  a  fine  of  £1,  or  ten 
days'  imprisonment,  with  hard  labour. 
The  allegation  was  that  on  the  2nd 
March  last  they  unlawfully  seized  and 
rescued  130  head  of  cattle  from  one 
Nathan  Lederman,  the  said  cattle  hav- 
ing been  lawfullv  seised  by  Lederman 
and  others  for  the  purpose  of  impound- 
ing. The  appeal  was  made  on  the 
grounds  that  the  accused  were  justified 
in  retaking  the  cattle,  that  the  cattle 
were  not  lawfully  seized  by  Leder- 
man. that  the  Magistrate  had  no  juris- 
diction, inasmuoh  as  title  of  land  was 
bona  fide  in  dispute;  that,  under  any 
circumstances,  the  accused  had  a  twelve 
months'  agreement,  and  had  not  received 
notice  to  quit,  and  that  the  conviction 
was  not  supported  by  the  evidence.  It 
appeared  from  the  evidence  that  the 
cattle  were  seized  by  Lederman  and 
others  from  land  on  the  Moravian  Mis- 
sion Society  property,  in  the  division  of 
Malmesbury.  It  was  alleged  that  the 
appellants  belonged  to  a  disafiFected 
party  in  the  miRsion  station.  They  had 
used  the  ground  for  grazing  for  a  num- 
ber of  years,  and  up^  to  two  years  ago 
were  said  to  have  paid  a  small  sum  per 
year  for  the  right.  Upon  an  intima- 
tion that  the  missionaries  intended  to 
lease  the  land  some  two  yean  ago»  the 


402 


CAPE  TIMES''  LAW  ftEPOlltfi. 


pooplc  had  paid  no  money  in  respect 
of  grazing.  It  was  alleged  tnat  at  a  meet- 
ing held  at  that  time,  one  of  the  society 
miiifiiouarios  agreed  to  give  the  P<>^1® 
the  grazing  rights  free  of  charge.  The 
land  was  afterwards  leased  oy  the 
Moravian  Society  to  Lederman,  who 
took  possession.  The  Magistrate  held 
that  the  complainant  was  in  lawfid  and 
I)onti  fide  possession  of  the  ground.  The 
superintendent  had  the  power  to  grant 
a  loai^;,  and  the  lease  oeing  otherwise 
in  order,  the  complainant  was  entitled 
to  remain  in  possession  until  ousted  by 
order  of  a  higher  court.  He  further 
ruled  that  the  permission  given  to  ap- 
pellants to  graze  in  1903  was  revoo- 
able. 

Mr.  Burton  appeared  for  the  appel- 
lants; Mr.  Van  Zyl  for  the  complainant 
in  the  Court  below. 

Buchanan,  A.C.J. :  The  land  on 
which  the  cattle  were  seized  belonged 
to  the  supcrint<'ndent  of  the  Moravian 
Mission.  It  had  been  bought  for  £240 
from  the  Government.  The  sui>erin- 
tondcut  hyt  the  land  to  one  Lederman. 
It  is  clear  that  this  land  was  not  upon 
the  same  f<>oting  as  the  land  granted 
the  Moravian  Mission  Society  which 
by  terms  of  the  grant  the  appellants 
ha<d  no  grazing  rights  over.  The  de- 
fendants had  been  allowed  to  graze 
their  stock  on  the  land  now  leased  upon 
paying  a  «!>mall  aimual  rental  to  the 
superintendent;  but  they  received  due 
n(j(tice  that  tliey  were  no  longer  to 
graze  their  cattle  there,  and  that  the 
land  had  been  leased.  One  of  the  de- 
fendants said  they  intended  to  bring  an 
action  in  the  Supreme  Court  to  nave 
their  rights  declared.  Knowin?  they 
had  no  rights,  and  that  thev  had  been 
instructed  not  to  go  on  the  ground, 
they  went  and  obstructed  the  person 
who  was  in  lawful  possession  wHo  was 
impounding  cattle  trespassing  on  tfio 
land,  and  rescued  the  cattle  with  a 
considerable  amount  of  violence.  The 
penalty  imposed  by  the  Magistrate  was 
substantial,  but  not  vindictive.  ^  The 
Magistrate  was  justified  in  convicting 
the  defendants. 

The  appeal  must  be  dismissed. 

Maasoorp,  J.,  concurred. 


BEX  V.  BAVOOKA  AND  OTHERS. 

Theft — Technical  exception. 

Where  certain  pi^nrnters  were 
accused  of  fttealing  napery 
from  7?..  the  rxception  teas 
taken  tftat  the  goods  were  not 
the  property  of  R,,  but  of  a 
firm  in  which  he  was  only  a 
jmrtner. 

Held  on  appeal,  that  the  excep- 
tion was  purely  technical^  and 


that  as  the  gomls  were  in  the 
lawfid  possesion  of  R.^  the 
appeal  mtutt  Ite  dismissed. 


This  was  an  appeal  from  a  decL^i^n  of 
the  R.M.  of  East  London,  in  which  the 
apiicllants  were  found  guilty  of  theft,  tr»e 
fir^t  accused  being  sentenced  to  three 
months'  imprisonment  with  hard  laboiir. 
and  the  remaining  three  to  stiX  months* 
imprisonment  with  hard  labour.  The 
nllefired  thefts  were  committed  during 
1902,  1903,  and  the  first  nine  months  of 
1904.  The  evidence  showed  that  the  ac- 
ciired  were  Indian  laundrymen,  carry-' 
ing  on  business  at  East  London.  The 
proprietor  of  the  National  Hotel  became 
suspicio.is,  and  on  a  search  warrant  he 
found  a  considerable  quantity  of  tlie 
hotel  linen  in  the  boxes  of  the  accused. 
Iho  case  was  remitted,  and  an  applica- 
tion to  adduce  further  evidence  on  be- 
half of  the  Crown  was  allowed.  The  de- 
fence set  out  by  Harry  Bavooka  was  that 
he  had  sold  the  laundry  to  one  Morrow, 
who  had  disappeared,  and  that  the  litien 
found  in  the  hoikse  was  retained  by  the 
other  accus>ed,  as  Morrow  had  not  paid 
them.  The  Magistrate  held  there  was 
guilty  knowledge  on  the  part  of  the  other 
u«cu&ed.  who  denied  to  the  detective« 
that  there  was  any  National  linen  in  the 
bouse.  Taking  the  last  throe  accused, 
counsel  submitted  that  they  probably 
took  the  clothes  as  a  sort  of  lien  for  the 
wages  due  to  them  by  Morrow.  The  iu- 
dictment  set  out  that  the  linen  was  the 
property  of  Michael  Reeoe,  but  on 
Reece's  admission,  he  was  only  a  partner 
in  the  hotel  at  the  time.  The  three  last 
accused,  counsel  submitted,  could  only  be 
charged  with  reeeivmg,  and  in  the  case 
of  Eavooka,  he  took  the  technical  objec- 
tion that  the  property  was  wrongly  laid. 

Mr.  Gardiner  wsb  for  the  appellantti, 
and  Mr.  Pyemont  appeared  for  the 
Crown. 

Buchanan.  A.C.  J. :  The  first  accused 
was  entrusted  with  the  washing  of  the 
Imtcl  linen,  which  was  delieveied  to 
him  from  time  to  time.  He  did  not  re 
turn  all  the  linen.  After  a  time  he 
gave  over  his  business  to  one  Monx>w, 
who,  however,  shortly  after  gave  back 
the  business  and  left  the  premises.  The 
accused,  Bavooka,  continued  to  wa^h 
for  the  hotel  after  Morrow  left..  Mor- 
row has  gone,  and  is  not  now  to  be 
found.  Mr.  Reecc.  knowing  he  lost  a 
large  quantity  of  linen,  obtained  a  search 
warrant,  and  in  the  house  of  Bavooka, 
where  the  prisoners  all  lived,  he  dis- 
covered a  quantity  of  linen  in  each  of 
their  rooms.  These  people  could  give 
the  Magistrate  no  reasonable  account  of 
their  possession,  and  were  convicted  of 
theft.  On  appeal  a  technical  exception 
is  taken  on  tiie  ground  that  the  charge 
lays  the  .stolen  property  as  being  that 
of  Mr.  Reece,  whereas,  as  a  fact,  the 
hotel     belonged      to  a    partnenhip    in 


"CAPE  TIMES"  LAW  ttEPOtlTS. 


403 


which  Mr.  Rooqe  was  only  one  of  tho 
partners.  This  ie  purely  a  technical  ob- 
jection, and  I  think  it  is  ooverod  by  the 
words  in  his  lawful  poescssion..  The 
Ma^trat«  has  sentenced  the  firat-named 
prisoner  to  three  months'  imprison- 
ment. As  the  record  stands,  it  seems 
to  me  that  the  first-named  person  is 
the  much  more  guilty  of  the  four,  and 
aitboug^h  the  conviction  will  be  con- 
firmed before  finally  dealing  with  the 
cate.  the  Afagistrato  will  be  asked  to 
explain  why  the  other  three  prisoners 
received  a  b€»avier  eentence  tnan  the 
first  accused.  It  may  be  that  it  is  a 
clerical  error  for  six  weeks. 

Maasdorp.  J.,   concurred. 

[The  Magistrate  subsequently  reported 
that  the  sentence  passed  on  the  three 
accused^  was  »iz  weeks'  (and  not  six 
months')  imprisonment.  The  record 
was  amended  accordingly,  and  so  amend- 
ed was  confirmed.] 


SUPREME  COURT 


[Before  the  Actin^r  Chief  Justice  (the 
Hod.  hir. John  Buchanan  J  and  the 
Hon.  Mr.  Justice  Maasdobp.] 


Kr  parte  8IM0NS.  | 


1905. 
May  30tb. 

Mr.  Gardiner  moved,  as  a  matter  of 
urgency,  on  behalf  of  Mr.  John  Deane 
Simons,  in  his  capacity  <^  sole  trustee 
in  the  insolvent  estate  of  Max  Sea- 
^U.  trading  as  Seagull  and  Co.,  at 
Port  Elizabeth,  for  the  appointment  of 
a  commissioner  to  take  certain  evi- 
dence. 

Petitioner  said  that  in  the  examina- 
tion of  the  inaolrent  before  the  Resident 
Magistrate  of  Port  Elizabeth,  at  the 
second  and  third  meetings  of  creditors, 
the  insolvent,  when  aakea  to  account  for 
the  disappearance  of  practically  all  his 
•aaets.  alleged  that  they  had  been 
pledged  by  Peycke  and  Co.,  of  Port 
Elisabeth.  On  the  insolyent  being 
questioned,  he  was  unable  to  give  a 
istisfactory  explanation  of  his  deal- 
ing and  transactions  with  the  said 
firm  of  Pevoke  and  Co.  Peycke  and 
Co.  had  filed  a  concurrent  claim  of 
£1.486  5s.  4d..  but  ther  had  as  yet  filed 
iH>  preferent  claim.  They  had  admitted 
that  they  had  a  considerable  quantity 
of  the  assets  of  the  insolvent,  but  ai- 
lejr^^d  that  they  held  the  same  undor 
a  legal  pledge,  and  declined  to  hand 
over  sucn  aswts.  Petitioner  was  fur- 
ther informed  thai    Peycke  and      Co. 


were  suing  an  insurance  company 
under  a  fire  policy  affecting  the  insol- 
vent, upon  part  of  his  stock  which  had 
been  damaged  and  destroyed  by  fire. 
Owing  to  the  poaition  taken  by  the 
insolvent  and  Peycke  and  Co., 
on  account  of  to  the  latter 
refraining  from  proving  their  pre- 
ferent claim  against  the  insolvent 
estate,  it  was  impossible  for  peti- 
tioner to  ascertain  what  assets  of  Sea- 
gull, Peycke  and  Co.  actually  hold,  and 
whether  they  had  any  legal  right  to  the 
same.  Ho  prayed  that  the  Court  may 
grant  an  order  authorising  the  Acting 
Resident  Magistrate  of  Port  Elizabeth 
to  take  the  evidence  on  commission  of 
the  persons  set  out  in  the  schedule,  in- 
cluding insolvent  and  his  wife,  the 
managers  and  accountants  of  tho 
Standard  Bank.  Bank  of  Africa.  Afri- 
can Banking  Corporation.  National 
Bank,  partners  oi  Peycke  and  Co., 
bookkeepers  and  clerks  of  Peycke  and 
Co..  and  three  ex-omployoes  of  insol- 
vent. 
Order  granted   as  prayed. 


REX  V.  JAFFE. 

Ctilpable     insolvency  —  *•  Proper 
books." 

There  in  no poniiive  lf<jal  stand- 
ard as  to  what  are  ^^  proper 
hooks  J"  But  tJie  books  kcp 
must  shoio  all  transactions  cj 
the  business^  its  assets  and 
liabilities :  or  at  least  give 
data  from  trhich  these  can  be 
ascertained. 


This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Calvinia, 
who  had  convicted  the  appellant,  Harris 
Jaffe,  hawker,  Rietfontein,  of  cul- 
pable insolvency,  under  section  71  of 
tho  Insolvency  Ordinance,  and  sen- 
tenced him  to  six  weeks'  imprisonment 
with  hard  labour. 

From  the  record  it  appeared  that 
the  appellant  was  originally  charged 
at  a  preparatory  examination  on 
two  counted  —  first,  with  fraudu- 
lent insolvmicy  in  contracting  a 
certain  debt  of  £191  lis.  with  Mendels- 
sohn and  Co.,  of  Cape  Town,  when  he 
had  reason  to  believe  he  was  not 
solvent :  and  secondly,  with  not  hav- 
ing kept  proper  books.  The  case  was 
eventually  remitted  to  the  Magistrate 
to  be  dealt  with  in  regard  to  the 
soccmd  count.  The  appeal  was  based 
iij>on  tho  grrounds  that  the  books  and 
Recounts  kept  by  the  accused  were  as 
sufficient  and  comprehensive  as  might 
reasonably  be  expected  or  required 
from  one  exercising  his  particular 
trade  or  calling,  and  that     no    evidence 


404 


"CAt»B  tlMBS"  LAW  ttSPOftTS. 


was  adduced  to  prove  that  they  were 
insufficient. 

Mr.    Burt6n    was    for    the   appelkuit; 
Mr  Nightingale  was  for  the  reepondent. 

Couneel  having  been  heard  in  argu- 
ment on  the  facts, 

Buchanan.  A.O.J. :  There  is  no  stand- 
ard fixed  by  the  Insolvent  Ordhianoe 
what  i>articular  books  must  be  kept  by 
a  particular  person,  but  regard  must 
be  had  to  the  dealings  and  transactions 
of  the  insolvent,  and  what  was  his  par- 
ticular trade  or  calling.  The  books 
required  from  a  merchant  or  banker 
would  be  different  from  what 
would  be  required  from  a  person  like 
a  hawker.  The  Magistrate  convicted 
insolvent  for  not  keeping  proper  books, 
but  did  so  on  the  inference  drawn  bv 
himself  from  the  books  produced. 
These       books         are      before  us, 

and  we  caji  draw  our  own  inference. 
Now,  having  regard  to  the  fact 
that  the  intaiixent  was  a  hawker,  and, 
having  regard  to  the  fact  that  the  bookb 
produced  show  all  his  transactions — 
there  w  no  complaint  that  they  did  not 
shov  any  transaction — and  having  re- 
gard to  the  fact  that  accused  iMuiked 
his  cash  and  produced  a  bank-book,  and 
that  he  forwarded  his  invoices  and 
books  and  stock  Hsts,  the  fact  that  the 
accused  did  not  keep  a  formal  cash- 
book  was  not  enough  to  justify  a  con- 
viction. Having  regard  to  the  particu- 
lar trade  or  calling  of  the  insolvent,  I 
think  the  Magistrate  would  have  been 
better  advised  if  he  had  not  convicted 
the  insolvent.  I  think  it  is  a  fair  case 
in  which  the  appeal  might  be  allowed. 

The  conviction  will  be  quashed. 

Maasdorp,   J.,   concurred. 


RBZ  V.  TBOTSOBB. 

Act  23  of  1897,  Sees.  80  and  81. 

Under  5«!.  80  of  Act  23  of 
1897 y  any  police  officer  or  other 
l}ernon  authorized  hy  the  local 
authority  or  the  Minister  moy 
enter  at  all  reasonable  timen 
upon  any  landn  or  premises 
for  the  purpose  ofniakiny  any 
inspectimi  or  doing  anything 
required  by  the  Act,  and  any 
person  obstructing  such  officer 
tn  the  execution  of  his  duty  is 
liable  to  the  penaliies  specified 
in  <StfC.  81. 


This  was  an  appeal  from  a  judgment 
of  the  A.R.M.   of  Port  Elizabeth. 

Appellant  had  been  charged  in  the 
Court  below  with  having  on  the  12ih 
April  last  wrongfully  and  unlawfully 
refused  entrance  to  one  John  Sprang, 
a  sergeant  of  the  C.M.R.^  stationed  m 


the  district  of  Port  Elizabeth,  and  being 
a  person  duly  authorised  thereto  and 
acting  in  the  course  of  his  duty.  The 
charge  was  laid  under  the  Public  Health 
Act,  No.  23  of  i897,  and  proclamations 
duly  published  in  the  '*  Gazette  "  from 
time  to  time.  Accused  nleaded  not 
suilty,  buit  was  convicted  and  fined 
£6  or  five  weeks'  imprisonment,  with 
hard  labour. 

From  the  record  it  appeared  that  ac- 
cused occupied  a  dwelling  at  the  Hills 
Location,  Korsten,  and  that  the  Acting 
Resident  Magistraite  of  Port  Elizabeth 
had  been  appointed  by  the  Colonial  Soc- 
retarjr  to  oirect  the  removal  of  all  per- 
sons in  that  area  to  a  place  which  he 
might  point  out.  Sergeant  Sprang,  in 
default  of  the  woman's  compliance  with 
an  order  to  vacate  the  premises,  went 
there  under  the  instructions  of  the  Act- 
ing R.M.  for  the  purpose  of  evicting 
her,  but  the  accused  stood  outside  the 
house,  the  door  was  locked,  and  she 
declined  to  give  the  officer  the  key  or 
in  any  way  to  enable  him  to  carry  out 
the  directions  of  the  Acting  R.M. 

Mr.  Gardiner  for  appellant;  Mr. 
Nightingale  for  the  Crown. 

Mr.  Gardiner  said  the  defendant  was 
accused  in  terms  of  the  section  with 
wilfully  refusing  entrance  to  a  duly 
authorised  officer.  In  order  to  see  whe- 
ther she  wilfuUv  refused  entrance  i& 
must  be  seen  wnat  Sprang' a  duty  was. 
Sprang  was  only  instructed  to  go  m  and 
take  her  things  out  if  she  did  not  go 
out  herself.  Sprang,  counsel  contended, 
had  no  author Jtv  to  demand  any  further 
entrance  from  the  appellant.  Then  again 
there  was  no  proof  that  the  appellant 
had  the  key  of  the  hut,  and,  if  she  did 
refuse  entrance,  she  was  acting  under 
compulsion  by  her  husband,  who,  after 
all,  was  the  occupier  of  the  place.  In 
conclusion,  counsel  submitted  that 
Sprang  was  not  a  duly  authorised  officer 
in  terms  of  the  Act. 

Mr.  Nightingale  was  not  called  upon. 

Buchanan,  A.C.J. ,  said:  The  accused 
was  charged  under  the  80th  sec- 
tion cA  the  Public  Health 
Amendment  Act  with  refusing  entrance 
to  the  premises  in  question  to 
a  sergeant  of  police.  The  section  refers 
to  "  aforesaid  officers  or  duly  authorised 
persons  in  the  performance  of  their 
duty."  The"  officers  aforesaid  "are  officers 
of  police,  or  constable,  or  other  person 
duly  authorised.  The  principal  objection 
raised  in  this  case  is  that  the  wcxnan  was 
ordered  to  leave,  and  refused  admission 
to  the  house  to  a  person  who  was  not  duly 
authorised.  The  person  who  attempted 
to  carry  out  the  directions  of  the  min- 
ister was  the  sergeant  of  police,  and  not 
only  was  he  acting  under  the  directions 
of  the  minister^  but  he  had  specific  and 
special  instructions  from  the  Magistrate 
to  eject  this  woman  from  the  location. 
The  appellant  had  been  previously  order- 
ed to  remove  from  the  location,  but 
as    a  favour     had       been      allow^    to 


•*CAPE  TIMES**  LAW  REPORTS. 


40o 


remain      on       until        the       13th        of 
the    month,     and     not     quitting    then, 
the   Magistrate  insisted  on  his  previous 
decMon   being   carried    out.       It    was  a 
matter  of    urgency  with  plague    in    the 
district,   and   I  think  the  sergeant     not 
oi'ly    being   a    sergeant    of   police,    but 
also   having  special  instructions,    was   a 
duly  authorised  person.    The  next  point 
i^  that  the  accused  wilfully  refused  en- 
trance.     She  was  told  she  had  to  leave 
this  hut,  and  go  away  to  another  loca- 
tion,    and     she  refused.       She     looked 
the  door,  and  sat  outside,  and  that  is  not 
in  compliance  with  the  order  to  quit  the 
location.       She  does  not  deny  she  had 
the  key.     She  was  the  only  person  oo  the 
premises,  and  I  think  it  is  clear  she  con* 
travened    the  section  of   the   Ordinance, 
and  wilfully  refused  the  admittance  to  a 
police  iiergeant  in   the  discharge  of   his 
duty.    On  the^e  grounds  the  appeal  will 
be  dismissed,  and  the  conviction  confirm- 
ed. 
Maasdorp,   J.,    concurred. 


SUPREME   COURT 


CIVIL  APPEAL. 


BCULLABD  V.  PRICE. 


This    was     an     appeal    from    a     de- 

ci>ion  of  the  U.M.  of  Elliot,  in  an  actiou 

ii  ."iitutcd  by  the  plaintiff  to  recover  £60 

66  2d.  for  work  and  labour  done  at  the 

defendant's      request.       The     defendant 

acknowledged  his  indebtedness    to      the 

plaii)tiff  in  the  sum  of  £6  15s.  8d.,  which 

HOiouitt  he  teudere<l  to  the  plaintiiF.  The 

cfefeodant  prayed   for  judgment  for   the 

amount  of  the  tender,  with  cc£ts  against 

the  plaintiff.      Judgment   was  given  in 

reconvention  for  the  sum  of  £34  9s.  2d., 

and  in  convention    for  the   sum  of  £54 

17s.  lid.,   each  party    to   pay    his   own 

oosta. 

Mr.  Gardiner  was  for  the  appellant, 
and  there  was  no  ai^>earance  on  the 
other  side. 

Mr.  Gardiner  submitted  that  the 
Magistrate  had  wrongly  refused  to  allow 
two  itema  in  the  claim  in  reconvention 
for  £13  Is.  3d.  and  lis.  9d.,  for  re-bor- 
ing deepers,  which  the  plaintiff  had  fail- 
(-d  to  do  according  to  tne  contract,  and 
if  be  had  allowed  these  items  it  would 
cave  brought  the  amount  to  that  tender- 
ed by  tlie  defendant. 

Buchanan,  A.C.J.,  said  that  the 
Magistrate,  in  going  through  the 
accounts,  appeared  to  have  gone 
a  little  astray.  The  effect  of 
an  examination  of  the  accounts  was  to 
show  that  the  tender  made  by  the  defen- 
dant waa  sufficient,  and  the  appeal  would 
therefore  be  allowed,  with  coats,  and 
judgment  entered  in  the  Court  below  f  )t 
the  plaintiff  for  the  amount  of  the  ven- 
der, the  plaintiff  to  pay  the  costs. 


[Before  the  Actinjr  Chief  Justice  (the 
Hon.  Sir  John  Buchanan)  and  the 
Hon.  Mr.  Justice  Maahdobp.] 


CIVIL  APPEALS. 


8MUT:}  V.   POOLK. 


f        19(5. 
<May    3lBt. 


Payment  of  costs  by  telegraphic 
money  order. 

Fayment  of  costn  by  telegraphic, 
money  order  i»  a  good  and 
sufficient  payment. 


This  was  an  appeal  against  a  decision  of 
the  Resident  Magistrate  of  Wynberg,  in 
a  case  in  which  the  appellant,  who  was 
plaintiff,  sued  the  respondent  (defendant) 
tor  the  sum  of  £1  for  goods  sold  and 
delivered.  The  defendant's  agent,  Mr. 
Walker,  excepted  on  the  ground  that  the 
costs  in  a  previous  hearing  bad  not 
been  paid.  A  telegram  was  put  in  dur- 
ing the  trial,  whicn  read  as  follows: 
"  Silberbauer  to  Walker :  Smuts  v. 
Poole,  cash,  14s.  costs,  herewith."  The 
telegram  was  not  answered,  Mr.  Walker 
statuig  that  he  was  waiting  on  the 
money,  and  that  the  telegram  was  not 
sufficiently  explicit.  The  exception  was 
sustained,  with  costs,  the  Magistrate  not 
considering  payment  by  telegram  a  suf- 
ficient tender.  In  his  reason,  he  added 
he  did  not  consider  it  incumbent  on  the 
defendant's  attorney  to  attend  the 
Post  Office  for  the  money.  Counsel 
said  it  appeared  that  the  previous  case 
went  off  on  non-appearance  of  the  plaint- 
iff. On  Nov.  17  the  plaintiff's  attorney 
sent  the  telegram,  wnich  was  put  in. 
The  plaintiff*^  attorney,  in  order  to  save 
the  preparation  of  a  bill  of  costs,  sent 
the  telegraphic  money  order  for  the  sum 
of  148. 

Mr.  Burton  was  for  the  appellant,  and 
Mr.  Upington  was  for  the  respondent. 

Mr.  Upirgton  said  a  telegram  was 
sent  to  pay  the  costs  of  the  previous 
hearing,  but  no  order  was  included. 

[Buchanan,  A. C.J. :  It  is  attached  to 
the  telegram?] 

Mr.  Upington  said  he  did  not  know 
that,  but  he  would  submit  that  the  cre- 
ditor was  not  bound  to  go  to  the  Post 
Office  in  order  to  obtain  the  money,  and 
that  the  payment  must  be  made  direct- 
ly in  cash.  The  tender  must  be  made 
in  cash  unless  the  party  consented 
to  accept  the  cheque.  Supposing  Mr. 
Walker  had  gone  down  to  the  Post  Office 
to  obtain  this  money,  he  would  have 
wasted  hia  time,  and  presumably  he 
would  have  been  entitled  to  charge  his 
client  ior  thai. 


i06 


"CAPe  TIMES"  LAW  REP(^td. 


Buchafiian,  A.C.J. :  The  plaintifF  sued 
the  defendant  in  the  Magistrate's  Court 
on  a  debt  of  £1  for  goods.  On  the  re- 
turn of  the  summons,  the  plaintiff  was 
represented  by  his  agent,  but  the  plain- 
tiff himself  not  being  present,  his  agent 
applied  for  a  postponement,  and 
Ik>  tendered  the  cost«  oif  the  day. 
The  defendant's  agent  objected  to  this, 
and  the  Magistrate,  exercising  his  dis- 
cretion, refused  the  postponement,  and 
di>missed  the  summons,  with  costs.  No 
doubt,  under  the  rules  of  the  Court, 
these  cob'ts  mue/t  be  tendered  be- 
fore the  case  can  be  re-heard.  A  sum- 
mons was  taken  out,  and  on  the  return 
day  of  the  summons  the  defendant's 
agent  again  objected  that  he  did  not  re- 
ceive the  costs,  but,  as  a  matter  of  fact, 
when  he  made  that  objection  he  had  re- 
ceived a  telegram,  in  which  was  includ- 
ed a  postal  money  order  for  14s.,  the 
amount  of  the  costs  of  the  previous 
case.  He  does  not  object  to  the  tele- 
gram or  the  amount,  but  he  says  it 
IS  not  a  proper  tender.  He  had,  how- 
ever, never  demanded  his  costs,  and 
he  had  kept  the  telegnraphic  order  for 
the  amount  due.  Under  these  circum- 
stances, the  Magistrate  should  have 
heard  the  case,  instead  of  dismissing  it. 
Though  the  Magistrate  erred  in  judg- 
nient,  the  agent  was  to  blame  in  hav- 
ing taken  the  objection,  and  his  client 
must  take  the  consequences.  The  ob- 
jection win  be  overruled,  the  caae  re- 
mitted to  the  Magistrate  for  hearing, 
and  the  aplpeal  allowed,   with   costs. 

Maasdorp,  J.,  concurred. 


HART  V.  FORMAN. 

School — Notice  of  withdrawal  of 
pupil. 

Notice  of  irithdravxtl  of  a 
pupil  given  to  the  »ecrrtary  of 
a  public  school  is  ftufficieiit 
notice  to  the  Jiead  master. 
Where^  howeret\  the  xchool 
authorities  stipulate  for  a 
f/uai't^ya  notice^  such  notice 
mtist  he  giceu  at .  the  bfffin/iing 
of  a  school  quarter. 


This  waa  an  apfwal  from  a  de- 
cision of  the  Resident  Magistrate 
of  Cathcart.  in  a  cai»e  in  which  the  ap- 
pellant was  summoned  by  the  respondent 
tor  £10,  which  waa  alleged  to  be  due  in 
lieu  of  a  quarter's  notice  to  the  plaintiff 
(Forman)  on  the  occasion  of  the  defend- 
ant's minor  daughter  leaving  a  board- 
ing school,  of  which  the  plaintiff  was  the 
principal.  Judgment  was  given  in  fa- 
vour of  the  plaintiff,  and  against  that  de- 
cision the  defendant  appealed.  From 
the  evidence  it  appeared  that  the  defend- 


ant agreed  to  give  a  quarter's  notice  if 
ho  should  have  occasion  to  take  his 
daughter  from  the  school,  and  it  was 
C(jntondfd  on  his  behalf  that  the  notice 
he  .-sent  to  the  secretary  of  the  school  on 
the  24th  October  was  sufficient,  although 
the  plaintiff  denied  any  knowledge  of  it. 
The  plaintiff  contended  that  a  quarter's 
notice  meant  the  school  term,  and  not 
any  three  mouths'  which  might  be  select - 
e.l  by  the  defendant.  The  Magistrate, 
in  hi6  reasons,  said  that  the  plaintiff  sued 
the  defendant  for  £10  for  board  charges, 
due  in  lieu  of  a  quarterns  notice.  The 
defendant  contends  that  in  giving  notice 
to  the  secretary  it  was  sumcient  aa  re- 
gards the  school,  and  the  boarding  de- 
partments, but  he  admits  that  he  never 
treated  with  the  secretary  in  regard  to 
the  boarding  department.  The  Court 
was  of  opinion  that  a  school  term  was 
implied,  as  shown  on  the  school  calen- 
dar, and  that  notice  ^hould  have  been 
given  before  the  opening  of  the  school 
for  the  new  term. 

Mr.  Burton  for  appellant;  Mr.  Gar- 
diner for  respondent 

Counsel,  having  been  heard  in  argu- 
ment on  the  facts, 

Mr.  Burton,  in  reply,  submitted  that 
the  whole  thing  was  a  pure  technicality, 
and  a  mere  legal  ouibble.  This  techni- 
cality was  disposed  of  by  the  secretary 
of  the  school,  who  said  he  agreed  that 
there  should  be  three  months'  notice  from 
one  date  to  another.  He  submitted  that 
the  plaintiff  really  had  no  caae. 

Buchanan,  A. C.J. :  The  plaintiff  is  the 
principal  of  the  Cathcart  Public  School, 
and  besides  being  principal  of  the  school, 
he,  assisted  by  his  wife,  kept  a  boarding 
establiahment  for  boys  and  girla.  The 
defendant  aent  hia  girl  to  this  boardmg 
establishment  in  1902,  and  kept  her  there 
until  the  end  of  the  school  term  in  De- 
cember, 1904.  The  contract  between  the 
parties,  bevond  what  was  stated  in  the 
letters,  is  shown  by  the  prospectus  of  the 
school,  which  is  published  in  every  issue 
of  the  local  newspaper,  and  whiwi  it  is 
admitted  was  seen  by  the  defendant. 
Indeed  it  is  not  in  dispute  that  this  pros- 
pectus was  the  basis  of  the  contract  be- 
tween the  parties.  On  the  24th  October, 
1904,  defendant  gave  notice  to  the  secre- 
tary of  the  school  that  he  would  remove 
hia  daughter  from  the  school  at  the  end 
of  that  term.  This  notice  came  to  the 
principal's  knowledge  at  the  meeting  of 
the  Board  in  November,  1904.  The  girl 
was  removed  at  the  end  of  the  term  in 
December,  and  wa^  not  sent  back  to  the 
school  afterwards.  The  plaintiff  now 
sues  defendant  for  not  having  complied 
with  the  contract  in  giving  one  quar- 
ter's notice  before  removing  his  dau||pfa- 
ter.  The  Magistrate  held  that  notice 
to  the  secretary  of  the  committee  oif  the 
school  waa  not  notice  to  Mr.  Forman, 
the  principal,  and  he  has  also  held  that 
the  notice  was  not  given  in  sufficient 
time.  On  the  first  point,  looking  at  the 
advertiaement,  whioo  simply  stated  that 


<« 


CAPE  TIMES'*  LAW  REPORTS. 


407 


Mr.  Forman  was  principal  and  that 
Mr.  Benilcy  was  secretary,  it  is  a  fair 
inference  to  be  drawn  by  the  public 
tliat  ooniniunications  shoulu  be  made  to 
the  secretary,  and  consequently  that  no- 
tice given  to  the  secretary  would  be 
sufficient  In  his  evidence,  it  is  true 
the  secretary  says  that,  as  far  as  the 
boarding  establishment  is  concerned,  he 
does  not  thrnk  that  notice  should  be 
given  to  him,  but  notice  should  be  given 
to  him  in  regard  to  school  fees.  I  do 
not  see  on  what  princii^e  the  secretary 
ran  divide  this  prospectus  into  two 
parts  in  this  way.  I  do  not  think  that 
the  Magistrate  was  sound  in  his  reasons 
when  he  says  that  this  notice  given  to 
the  secretary  was  insufficient^  But  the 
question         remains  whether       this 

ootice  was  given  in  time?  Now,  one 
vould  say  that  *'  a  quarter's  notice  re- 
quired*' would  mean  a  quarter  of  the 
yetr,  so  that,  under  ordinary  circum- 
stances, notice  should  be  given  on  the 
1st  January,  let  April.  Ist  October,  and 
ao  on,  but,  looking  at  the  adTertise- 
ment.  another  interpretation  is  given  to 
the  word  "  quarter.**  The  quarter  there- 
in referred  to  evidently  means  the 
the  school  quarter,  and  the  question  is, 
has  notice  been  given  at  the  beginning 
of  the  school  quarter  for  the  removal  of 
the  girl  in  that  quarter?  Notice  was 
not  given  until  some  time  after  the 
quarter  commenced,  though,  as  it  turn- 
ed out.  it  was  given  just  three  months 
before  the  pupils  had  to  re-assemble 
in  January  for  that  quarter.  ^  I  think 
that  the  Magistrate  erred  in  saving 
that  notice  to  Bentley  was  not  sufficient, 
but  that  he  was  rignt  in  holding  that 
a  quarter's  notice  in  terms  of  the  con- 
tract botween  the  parties  was  not  given, 
and  on  that  ground  the  defendant  is 
liable  for  the  quarter's  fees.  On  that 
ground,  the  appeal  must  be  dismissed, 
with  costs. 

Maasdorp,  J.,  concurred. 


PRIEST  T.  8TBOMAN 
0THEB8. 


(     I9a5. 

AND  J  May  3lBt. 
]  June  19tb. 
I    „     26th. 


Bfneficia  S.  C.  Velleijam  et  Au- 
ihefiilca  9%  q\ui  muUer — Pro- 
missory note — ^Endorsement 
by  women— Act  19  of  1893. 

P.,  a  married  woman^  had 
gifl'tied  a  promis8ory  note  made 
hy  her  huaband  on  the  back 
**«s  surety  and  co-prmclpcd 
debtor ^^  without  expressly  re 
nouncine  her  benefits  under  the 
8.  C.  ^Ueijna  et  Authentica 
si  qna  mulier.  When  wed 
on  the  note  in  an  R.M.  Courtj 


she  pleaded  these  benefits  and 
further  urged  that  the  note  was 
not  presented  to  her  and  noted 
at  the  due  date. 

Held  on  appeal,  that  by  Sec.  30 
of  Act  10  of  1893,  it  is  not 
necessary  that  a  woman,  who 
accepts  or  endm'ses  a  note  or  a 
billy  should  renounce  the  said 
benefits,  in  order  to  be  held 
liable. 

field  farther,  that  a  surety 
icho  binds  herself  in  solidum 
and  as  co  principal  <Ubtor, 
incurs  the  same  responsibilities 
as  the  maker  of  the  ftot^ 
^dis.  Maasdorp,  J.)^  and  that 
pi'esentatioti  is  not  necessaf^^ 
in  order  to  render  such  surety 
liable. 


This  waa  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Graaff- 
Reinet,  in  an  action  brought  by  (be 
respondents  upon  a  oertain  promissory 
note,  which  the  appellant  had  endoned 
on  the  back  as  surety  and  oo-principal 
debtor. 

From  the  record  it  appeared 
that  the  appellant  was  sueid  in 
the  Court  below  for  £33  4a., 
due  upon  a  certain  oromissory  note 
dated  the  4th  April.  1904.  The  appel- 
lant was  the  wife  of  the  maker  of  the 
note,  T.  P.  Priest,  and  at  the  hearing 
of  the  action  an  exception  was  taken 
that  she  was  married  out  of  community, 
and  that  she  had  not  renounced  the 
exceptions  of  excussion  and  division. 
The  Magistrate  gave  judgment  for  the 
plainti£fs  for  the  amount  claimed. 

Mr.  Upinffton  for  the  appellant;  Mr. 
Sutton  for  the  respondents, 

Mr.  Upington,  in  argument,  said  that  he 
was  unable  to  find  any  case  in  the 
reports  which  was  ojn  all  fours  with 
the  present  case.  He  submitted  that 
where  a  woman  signed  as  surety  and 
co-principal  debtor,  the  creditor  had 
notice  that  she  was  signing,  not  for 
her  own  benefit,  but  for  the  benefit  of 
the  maker  of  the  note.  He  contended 
that  a  person  who  aigned  a  promissory 
note,  as  Mrs.  Priest  had  done,  al- 
though liable  for  the  amount  of  the 
note,  was  not  really  the  maker  of  the 
note  in  the  sense  required  by  the  Act. 
His  submission  was  that  the  position 
of  a  surety  who  signed  as  such,  and  as 
co-principal  debtor  was  really  the 
most  onerous  form  of  suretyship.  If 
this  were  not  so.  why  put  in  "  suret]^ " 
at  all :  why  not  sign  only  as  oo-prin- 
cipal debtor?  The  phrase  would  be 
meaningless,  if  it  had  the  effect  of 
making  a  person  the  joint  maker  of  th# 
note. 


408 


f< 


CAPS  TIMES"  LAW  REPORTS. 


The  case  of  MeAlitter  (Kotze*e  Rep.,  6 
Natal,  10)  is  much  stronger  than  the 
present  casei 

[Buchanan,  J. :  A  woman  need  not 
renounce  benefits  if  she  gets  value.] 

Oak  V.  Lumsd^n  (3  Juta,  144)  hardly 
goes  as  far  as  tliat.  The  case  of  a 
woman  who  haa  received  money  for  her 
own  use  is  distinguishable  from  that  of 
one  who  has  signed  as  co-principal 
debtor.  The  important  thing  is  the 
knowledge  of  the  creditor,  as  was  pointed 
out  by  De  Villiers,  C.J.*  in  Hope's  case, 
case. 

[Maaadorp,  J. :  If  a  person  signs  a 
note   in  the   place     where     the  maker 


should  sign,  will  he  not  be  held  liable?] 
No;  see  Klopper  v.   Van  Siraaten  (11 
Juta,     94).       A  person  who   writes  nis 


name  on  the  back  of  a  note  is  not  neoes- 
aarily  a  maker.  He  may  tbe  liable  in 
Bolidum  on  the  note,  but  he  is  not  the 
maker.  Take  the  case  of  a  man  who 
signs  aa  security  for  a  lease.  He  is 
responsible,  but  he  is  not  the  lessee. 
So,  a  pari,  a  man  who  endorses  a  note 
is  liable  if  he  receives  consideration,  but 
he  is  not  a  joint  maker.  Here  the  credi- 
tor haa  notice  ex  facie  of  the  document 
that  the  surety  is  signing  merely 
as  a  surety.  See  Oak  v.  LufM- 
den  (3  Juta,  144)  and  SmuU  and 
Co.  V.  Coette  (Buch.,  1876,  p.  56).  In 
this  case  the  defendant  did  not  discuss 
the  defence  raised.  It  has  been  held  in 
the  High  Court  that  a  fem^e  is  entitled 
to  the  benefit  of  the  S.O.  Vellijani ;  see 
the  judgment  of  Barry,  J. P.,  in  Etiate 
Klueagen  v.  Adrat*  (7  E.D.C.,  171^. 
There  the  woman  was  the  actual  maker 
of  the  note.  That  is  a  very  different 
cane  from  the  present.  See  also  Whit- 
nail  ▼.  Ooldsehmidt  (3  E.D.O.,  314). 
A  woman  cannot  ftign  a  note  as  surety. 
In  English  law  srhe  would  be  stopped 
from  denying  her  signature.  The  know- 
ledge of  the  creditor  as  to  tho  relation 
between  the  principal  and  surety  is  all 
important.  This  case  raises  an  inter- 
esting point  of  law  as  to  what  was 
the  liability  of  a  woman  married  out 
of  community  of  property,  who  endors- 
ed a  promissory  note  for  the  benefit  of 
her  husband  as  surety  and  co-principal 
debtor.  He  (counsel)  was  not  able  to 
produce  any  direct  authority  upon  the 
point;  as  far  as  he  knew,  the  point  had 
not  been  decided  -in  our  courts.  Dr. 
Nathan,  in  his  work  on  the  Common 
Law  of  South  Africa  (vol.  2,  p.  897) 
made  the  statement  that  in  such  a  case 
the  woman  would  be  liable,  but  the 
cases  that  he  cited  in  support  of  that 
view — Colliton,  Sons  and  Co.  v.  Ouild^n- 
huys  (5  Soarle,  62)  and  Ouildenhuys  v. 
Swart  and  Others  (5  Searle,  162) — wore 
not  to  his  (Mr.  Upington's)  mind,  any 
authority  in  favour  of  the  view  of  tho 
learned  author.  One  had,  under  the 
circumstances,  to  go  back  to  the  provi- 
sions of  tho  Bills  of  Exchange  Act,  and 
the  main    principles    which    had      been 


li 


enunciated  in  the  cases  that  he  should 
venture  to  quote.  Proceeding,  counsel 
first  addressed  the  Court  on  the  question 
of  what  was  the  nature  of  the  endorse- 
ment  on  this  promissory  note.  He  sub- 
mitted that  tne  correct  way  of  looking 
at  this  matter  was  not  to  look  upon  Mrs. 
Priest  as  endorser.  The  maker  of  the 
note  should  be  gone  against.  An  en- 
dorser was  entitled  to  claim  the  benefits 
of  an  endorser,  and  those  benefits  had 
certainly  not  been  allowed  to  the  pre- 
sent appellant.  If  it  was  contended  that 
this  woman  was  to  be  regarded  as  an 
endorser,  then  the  defenoe  could  be 
raised  that  the  note  had  not  been  pre- 
sented on  the  due  date  which  was  a 
very  good  defenoe,  and  it  would  be  giv- 
ing her  an  even  wider  interpretation  of 
co-debtor. 

Maasdorp,  J.,  said  it  had  been 
decided  in  the  Supreme  Court  that  a 
person  signing  as  a  surety  did  not  re- 
quire notice. 

Mr.  Upington  said  his  main  conten- 
tion really  was  that  the  defendant  in 
this  case  intended  to  contract,  and  did 
onlv  contract  the  liability  of  a  surety, 
and  nothing  more  than  the  liability  of  a 
surety.  The  appellant  was  not  getting 
the  consideration  of  a  principal.  If 
that  view  was  not  held  by  the  Court, 
then  at  the  least  she  must  be  looked 
upon  as  an  endorser  with  the  privileges 
of  an  endorser,  and  when  the  note  was 
not  presented  on  due  date  in  that  line  of 
defence  she  must  succeed,  and  she  could 
not  in  any  way  bo  looked  upon  as  a 
joint  maker  of  the  note,  inasmuch  as 
sh?  contracted  all  her  liability  without 
her  name  appearing  on  the  face  of  the 
note. 

Mr.  Sutton  for  the  respondent. 

The  appellant  cannot  now  take  advan- 
tage of  tho  Senatus  consuLtum  Vellijam 
and  authentica  si  qva  mulier.  She  loses 
her  privilege  by  reason  of  section  20  of 
Act  19  of  1895,  which  is  intended  to 
apply  to  all  cases  where  women  become 
sureties  to  promissory  notes  or  bills  of 
exchange.  The  appellant,  if  not  actu- 
ally a  joint  maker  of  the  note  sued  upon, 
signed  as  co-principal  debtor  and  surety, 
and  so  is  in  the  position  of  a  maker. 
She  is  not  entitled  to  notice  of  dishonour 
or  presentment  for  payment.  Michnelis 
V.  Mosina  (5  E.D.C.,  129).  She  is  not 
entitled  to  the  ordinary  benefits  of  a 
surety,  e.g.,  the  ben^ts  of  ezcussion 
and  division.  CoUison,  Sons  and  Co.  v. 
Guildenhuy  (5  S.,  62);  Ouildenhufs  ▼. 
Swart  and  Others  (5  S.,  165);  Willema 
v.  WidoK  Schendler  (2  M..  24);  Ken- 
nedy, N.O.,  V.  Haarhof  (2  H.C..  215). 

If  not  a  joint  maker,  sne  has  indorsed 
the  note  within  the  meaning  of  section 
20  of  Act  19  of  1893.  See  section  54  of 
Act  19  of  1893,  Chalmers'  Bills  of  Ex- 
change, n.  6  and  p.p.  188  and  189;  Evan 
Cape  Bills  of  Exchange,  p.  30;  Klopper 
V.  Van  Straaten  (11  J.,  97),  Coeitee  ▼. 
Tiran  (1  P. ;    43).      Such  an  mdorser  '%% 


«l 


OAPB  TIMES"  LAW  BEPOBT& 


409 


not  entitled  to  notice  of  dishonour  or 
preMntment  for  payment,  MichaelU  v. 
Monna  (5  KD.C.,  129).  A  surety  is  iiot 
entitled  to  notioe  of  dishonour  on  pre- 
aentments  for  payment.  Hyal  ▼.  Lwms 
(1  H.O.,  238)). 

Mr.  Upinffton  said  he  had  nothing 
further  to  add,  but  referred  the  Court 
to  a  caao  decided  in  the  late  Orange 
Free  State,  and  reported  in  14,  **  Cape 
Law  Journal,"  page  296. 

Cur.  Adv,   Vult. 

PotUa  (June  26): 

Buchanan,  A.C.J. :  The  defen- 
dant was  sued  in  the  Magistrate's 
Oourt  upon  a  ^romdaeory  note  signed  by 
ner  husband,  Thomas  Priest,  in  favour 
of  tile  plainltiffs,  Messrs.  Stegman,  Esse- 
ien  and  Roos.  On  the  back  of  the  note 
Woaia  the  following:  "As  surety  in 
Midaai  and  co-pnn<»pal  debtor.— A.  S. 
S™^r  ,Tbi8  endonement  is  that  of 
the  defendant,  who  pleaded  non-liabiJAty 
theieuiKier  on  the  grounds,  fir*t,  tiiat 
Me  had  not  renounced  the  benefit  of  the 
exosjAions  ienaiu*  eomultum  Vellijani 
wd  de  atdhentica  ti  qua  mulier,  and, 
■ecoDdly  that  if  »he  wm  to  be  regarded 
m  the  hgUi  of  an  endorser,  abe  bad 
been  disohaxiged  from  liability  owing 
to  the  fa<*  that  the  note  was  not  duly 
I»«enrted  and  noted  for  non-payment 
«t  the  due  date.  The  suit  was  for  pro- 
▼"•oiial  sentence  on  the  note,  conse- 
quently no  evidence  was  led,  but  it 
Mems  to  have  been  aasunoed  that  the 
payees   were  aware  that  defendant   bad 

SE"®4*^'*?y  ■*  «arety  for  her  hivband. 
^e  Magistrate  overruled  the  defence 
■ad  gave  judgment  for  nlaiiivtiffis  as 
Pwyed.  with  costs.  A^rainst  this  de- 
ciMon  the  defendant  now  ap[>ea]s.  As 
to  the  fint  pfea  filed,  it  is  true  that 
there  had  been  numerous  oases  in  our 
courts  in  whicsh  it  has  been  held  that 
women  who  had  entered  into  oontraccs 
by  which  they  had  bound  themselves 
M  sureties  for  their  husbands  were  not 
usble  thereon  where  they  had  not  ex- 
pre^ly  or  impliedly  renounced  these 
htne^na.  But  the  Bills  of  Exchange 
Act,  No.  19,  1893,  has  modified  the  law 
on  this  matter,  at  any  raite  as  regards 
bills  and  promissory  notes.  Section  20 
of  thai  Statute  enacts  as  follows :  "  Ca- 
P««tv  to  incur  liability  as  a  paity  to 
&  hill  is  co-extensiye  with  capacity  to 
contract,  provided  that  to  the  validity 
of  a  bill  accepted  or  endorsed  by  a  wo- 
man, the  renunciation  of  the  oenefits 
•matuM  earuufti  VelUjani  and  atahentira 
•i  qua  mulier  shall  not  be  requisite." 
Independently  of  this  enactment  by  our 
law,  women,  whether  married  or  single, 
had  the  capackv  to  bind  themselves  by 
contract,  provided  they  com.plied  with 
the  p-rr>per  legal  forms.  Several  cases 
are  given  in  Mae  report^,  in  which  judg- 
nients  have  been  given  against  married 
women  upon  neg<itiaible  instruments.  In 
other  cases  the  exceptiona  relied  upon 
here  have  been  auatained  as  affording 
•  ^ood   defeoMs   tra*  tha   fM    that  it 


has  been  held  that  such  a  defence  must 
bo  apeeifically  raised  supports  the  view 
that  they  have  the  capacity  to  oontracc. 
The  considered  judgment  6L  De  Villiers, 
C.J.,  in  Oak  v.  Lunuden  (3  Juta,  144), 
indicates  certain  circumstances  in  which, 
even  before  the  Act,  women  were  not 
entitled  to  rely  upon  these  exceptions. 
And  now  this  20tn  section  removes  the 
necessity  of  women  going  through 
the  form  of  specifically  renounc- 
ing the  beiiefirta  of  their  exceptions 
when  they  are  parties  to  a  bill  or  promis- 
sory note.  But  it  has  been  argued  with 
some  ing[enuity  that  in  this  case  the  de- 
fendant IS  neither  the  maker  nor  a  sim- 
ple endorser,  and,  therefore,  she  should 
not  be  taken  to  be  "  a  party  to  the 
bilP'  under  the  20th  section.  I  fail, 
however,  to  see  the  force  of  this  conten- 
tion. The  defendant  has  endorsed  the 
promissory  note  itself,  and  not  bound 
herself  by  any  collateral  agreement.  Her 
liability,  if  it  exists  at  all,  arises  upon 
the  note  and  upon  nothing  else.  I  can- 
not see  1k>w  she  can  deny  being  a 
**  party  "  to  the  note — the  extent  of  her 
liability  as  a  special  endorser  is  quite  a 
different  question.  And,  moreover,  this 
objection  is  met  by  the  54th  section  of 
the  Act,  which  says :  "  Where  a  pezson 
signs  a  bill  otherwise  than  as  drawer  or 
acceptor,  he  or  she  thereby  incurs  the 
liabilities  of  an  endorser  to  a  holder  m 
due  course."  The  Magistrate  was, 
therefore,  right  in  deciding  this  point  in 
favour  of  plaintiffs.  The  only  defence 
remaining  to  be  considered  is  the  one 
founded  on  the  fact  that  notice  of  dis- 
honour was  not  given  to  the  defendant 
on  the  due  date  of  the  note.  Here, 
also,  I  think  the  judgment  in  the  Magis- 
traite's  Court  was  correct.  To  ascertain 
the  extent  of  the  defendant's  liability, 
we  must  look  at  the  contract  entered  into 
by  her.  Had  she  simply  signed  ber 
name,  and  endorsed  the  bill  in  blank 
without  more,  there  might  be  aome 
ground  upon  which  to  rust  her  claim  for 
a  discharge  from  liability.  But  it  is 
not  necessary  to  decide  that  quecition,  as 
the  defendant  has  specially  endorsed  on 
the  note  that  she  bounci  herself  as 
surety  in  soliduin  and  co-principal  debt- 
or. Similajr  words  liave  received  judicial 
interpretation  in  several  cases,  where 
they  have  been  decided  to  mean  that 
the  person  binding  himself  in  this  way 
assumes  the  same  responsibilities  as  are 
incurred  by  the  maker  of  the  note.  As 
want  of  presentation  on  the  due  date 
does  not  operate  as  a  discharge  of  the 
maker,  it  would  follow  that  it  does 
not  discharge  the  co-principal  debtor 
from  liability.  The  cases  cited  in  argu- 
ment on  this  point  were  not  heard  in 
this  C'Ourt,  but  I  am  under 
the  impression  that  they  are  in 
accord  with  decisions  of  the  Su- 
preme Court.  At  any  rate,  we  have  not 
been  referred  to  any  judgment  to  the 
contrary  effect,  and  I  see  no  sound  rea- 
.son  for  dissenting  from  them.       In  my 


410 


"CAPB  TIMES"   LAW  REPORTS. 


opinion,  therefore,  Uie  Magi»trate*o  }udg- 
iiieiit  should  bo  upln^ld,  and  the  appeal 
dif>missed,  with  costs. 

Maasdrvrp,  J. :  I  wish  to  make 
my  opinion  quito  clear  upon  one 
point  in  this  case,  and  it  is  thia :  1  do 
not  regard  the  defendant,  who  had  en- 
dorsed the  note  in  the  form  in  which 
she  has  endorsed  it,  as  the  maker  of  the 
note,  thouflrh  she  mfty  in  some  respects 
stand  in  tne  position  of  a  maker,  and 
incur  responsibilties  similar  to  those  of 
a  maker.  It  appears  that  under  sec- 
tion 20  the  benefit  of  these  exceptions 
need  not  be  renounced  by  a  woman 
where  she  signs  as  a  maker  or  where 
she  endorses  a  note.  I  regard  her, 
under  section  54^  as  standing  exactly 
in  the  same  position  as  the  endorser. 
Section  54  is  to  the  following  effect: 
"  Wl>ere  a  person  signs  a  bill  otherwise 
than  as  drawer  or  acceptor,  he  or  she 
incurs  the  liability  of  an  endorser  to  a 
holder  in  due  course."  This  note  has 
been  endorsed  by  the  defendant,  and 
she  has  incurred  all  the  responsibilities 
of  endorser,  but  it  is  also  quite  clear 
that  the  endorser  may  endorse  upon  a 
note  a  modified  endorsement — a  qualified 
endorsement.  ^  I  am.  therefore,  of 
opinion  that,  if  her  qualified  endorse- 
ment had  been  that  of  a  surety  only, 
the  question  would  still  be  open  whether 
she  could  then  take  advantage  of  these 
benefits.  I  do  not  say  she  can,  but  I 
would  like  to  reserve  my  opinion  upon 
that  point.  In  this  case,  however,  after 
restricting  her  responsibilities  by  de- 
scribing herself  as  surety,  she  then  ex- 
tends them  by  desoribmg  herself  as 
'*  oo-principal  debtor."  and  it  is  upon 
those  words  that  I  hold  she  is  liable  to 
the  full  extent  as  an  endorser.  As  to 
the  question  of  whether  she  had  had 
notice  of  dishonour,  it  has  been  held 
that  where  an  endorsement  is  made  by 
an  endorser,  with  the  full  liabilities  of 
co-principal  debtor,  in  that  case  she 
stands  in  the  position  of  the  maker,  and 
is  not  entitled  to  notice.  Under  these 
circumstances,  I  concur  in  the  judgment, 
but  I  reserve  my  opinion  upon  the  point 
as  to  what  would  have  been  the  result 
if  she  had  only  endorsed  as  surety. 

Hopley,  J. :  I  concur  in  the  judg- 
ment, for  the  reasons  stated  by  His 
Lordship  the  Acting  Chief  Justice. 

[Appellant's  Attorneys :  Reid  and 
Nephew;  Respondent's:  Dold  and  Van 
Breda.] 


SUPREME  COURT 


[  Before  the  Hon.  Mr.  Justice  Maasdorp.] 


ADHI8RION8. 


(       1905. 
(June   2nd. 


Mr.  Douglas  Buchanan  moved  for 
the  admission  of  Templar  Buissinnc  as 
an  attorney  and  notary. 

Application  granted  and  oaths  admin- 
istered. 

Mr.  Burton  moved  for  the  admission 
of  Johannes  Hendrik  de  Klerk  as  an 
attorney  and   notary. 

Application  granted  and  oaths  admin- 
istered. 

Mr.  Swift  moved  for  the  admission  of 
Herbert  N.   Attwell  u  a  conveyancer. 

Application  granted  and  oaths  ad- 
ministered. 

Mr.  Close  mentioned  the  application 
of  F.  S.  Webber  for  admission  as  an 
attorney  of  this  Court,  applicant  hav- 
ing been  already  admitted  to  practise 
in  the  Transvaal.  Counsel  read  an  affi- 
davit setting  forth  Mr.  Webber*6  ex- 
planation of  his  non-appearance. 

Application  granted;  oaths  to  betaken 
before  the  Registrar  of  the  High  Court 
at   Bloemfontein. 


PROVISIONAL  ROLL. 


LONDON    AND    LANCASHIRE  A8SUEANCE 
CO.  V.  MwNAUOHTON. 

Mr.  P.  S.  T.  Jones  moved  for  the 
final  adjudication  of  the  defendant's  es- 
tate as  insolvent. 

Order   granted. 


HEINAMAN  V.  HEI.VAHAN. 

Mr.  M.  Bis^t  moved  for  a  pro- 
visional order  of  sequestration  to  be 
made  final. 

Order   granted. 

Mr.  Bisset  applied  for  the  appoint- 
ment of  Mr.  W.  A.  Currey  as  provision- 
al trustee  of  the  estate,  the  principal 
assets  of  which,  it  was  stated,  were  an 
hotel  at  Robertson. 

Application  granted,  Mr.  Currey  to 
have  power  to  carry  on  the  hotel  and 
collect  monthly  rents  as  they  fall  doe. 


MANQOLD  y.  KEUK  AND  ANOTHER. 

Mr.  Upington  moved  for  provisional 
sentence  upon  a  promissory  note  for 
£76  4s.  7d.,  less  £54  6s.  Id.,  upon  a  bill 
of  exchange  which  was  also  sued  upon, 
with  interests 

Order  granted. 


"CAPE  TIMES*'  LAW  REPOBTa 


411 


BMITR  V.  LEVIN. 

Mr.  Swift  mo^ed  for  provisional  sen- 
tenoe  od  an  acknowiedgment  of  debt 
for  £30,  with  interest  and  costs. 

Order  granted. 


IBTATB  VAN  DEB  MBRWE  V.   HEBNS- 

UANN 

Mr.  McGregor  moyed  for  proTisional 
wDtence  upon  a  mortgage  bond,  the 
bond  having  become  due  bv  reason  of 
non-payment  of  interest ;  Counsel  also 
applied  for  the  property  specially  hy- 
pothecated to  be  declared  executable. 

Coumel  said  that  the  defendant  had 
filed  an  affidavit  to  the  e£Fect  that  there 
were  no  arrears  of  interest  duo.  The 
plaintiff  had  filed  a  replying  affidavit 
itating  that  £17  odd  was  due  by  way 
of  interest 

Order  granted. 


SEDGWICK  V.  SLABBER. 

Mr.  Struben  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £800^  due 
by  reason  of  the  non-payment  of  inter- 
est, and  for  property  speoially  hypothe- 
cated to  be  declared  executable,  and 
oosts  of  suit. 

Order  granted. 


HAYBITTEL  V.  VAN  DEB  W^BTHUIZEN. 

Mr.  Btiley  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £730, 
the  bond  having  become  due  by  reason 
of  the  non-payment  of  interest;  counsel 
jiao  appliea  for  the  property  specially 
hypothecated  to  be  declared  executable. 

Order  granted. 


RAPIEBO  V.  SOLOMON. 

.  Mr.  P.  S.  T.  Jones  moved  for  provi- 
^ontl  sentence  on  a  mortgage  bond  for 
£300,  less  £50  paid  on  account,  the 
ootid  having  become  due  by  reaaon  of 
toe  noo-niyment  of  interest;  counsel 
*1»  applied  for  the  property  specially 
hypothecated  to  be  declared  executable, 
and  costs  of  suit. 

Order  granted. 


ESTATE  BEABLE  V.  VAN  DEB  WEST- 
HUIZEN. 

Mr.  Baily  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £500. 
due  by  reason  of  the  non-payment  oi 
the  interest,  and  for  the  property 
speciallv  hypothecated  to  be  declared 
executable. 

Order  granted. 

pl 


GHOBITK  V   6R00LMAN. 

Mr.    Alexander      moved  for  the  final 
adjudication  of  the  defendant's  eatate. 
Order  granted. 


0HL88ON*B  BBEWEBIB8  V.  BBAD8HAW. 

Mr.  Strdben  moved  for  proviaional 
sentenoe  on  a  judgment  of  tae  Witwa- 
tersrand  High  Court.  A  writ  of  arre«t 
had  been  issued  in  the  case  in  order  to 
found  jurisdiction  the  defendant  having 
been  resident  at  Camp'a  Bay  for  a  time 
but  being  domiciled  m  the  Transvaal. 
The  plaintiffs  had  obtained  judgment 
against  the  defendant  for  a  sum  of  about 
£500,  in  the  Witwaiererand  High  Court. 

Order  granted. 


MABAIS  V.  VILLBT. 

Dr.  Greer  moved  for  provisional 
sentenoe  on  mortgage  bond  tor  £2,400, 
the  bond  having  become  due  by  reason 
of  the  non-payment  of  interest;  coun- 
sel also  applied  for  the  property  specially 
hypothecated  to  be  declared  executable. 

Order  granted. 


OAUVIN  V.  BONCEEB. 

Mr.  Douglas  Buchanan  moved  for 
judgment  on  a  mortgage  bond  for 
£1,800,  with  interest,  less  £55  paid  on 
account,  the  bond  having  become  due 
by  reason  of  the  non-payment  of  in- 
terest ;  counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  d^ 
clared  executal>le. 

Order  granted. 


OOBTBLLO  BROS.  V.  OWBRIDQE. 

Mr.  Water meyer  moved  for  provi- 
sional sentence  on  a  promissory  note  for 
£103,   with  interest  and  oosts. 

Order  granted. 


ABDEBNE  V.  VAN  WEBNAN. 

Mr.  P.  S.  T.  Jones  moved  for  the  final 
adjudication  of  the  defendant's  estate  as 
inaolvent. 

Order  granted. 


IBBK  V.  OHBIEDON. 

Mr.  M.  Biaset  moved  for  provisional 
sentenoe  on  a  mortgage  bond  for  £530, 
the  bond  having  become  due  by  reason 
of  the  non-payment  of  interest;  counsel 


412 


"CAPE  TIMBS"  LAW  BUSPORT8. 


also  applied  for  the  property  ipeoiftlly 
hypothecated  to  be  declared  executable. 
Order  granted. 


MALMESBUBT  BOABD  OF  BXECUT0B8   V. 
VAN  BCHALKWYK. 

Mr.  Douglas  Buchanan  moved  for 
provisional  sentence  on  a  mortgage  bond 
tor  £325,  with  interest,  the  bond  having 
become  due  by  reason  of  the  non-pay- 
ment of  interest;  counsel  also  applied 
for  the  property  specially  hypothecated 
to  be  declared  executable. 

Order  granted. 


HALMBSBURT  BOABD  OF  EXECUTORS   V. 
VAN  NIBKERK. 

Mr.  Douglas  Buchanan  moved  for 
provisional  sentence  on  a  mortgage  bond 
for  £760,  with  interest,  the  defendant 
being  jointly  and  severally  liable  with 
his  brother  Lodewyk  van  Niekerk. 
Plaintiffs  tendered  cession  of  right  of 
action  acrainst  L.  van  Niekerk. 

Mr.  Gardiner  read  an  affidavit  bv 
Nicolaas  F.  van  Niekerk,  from  which 
it  appeared  that  the  defendant  had  ob- 
tained an  order  in  the  Supreme  Court 
for  a  division  of  the  farm  which  he  and 
his  brother  had  held  in  undivided 
shares,  and  against  which  the  bond  was 
standing.  Subsequently,  however,  hn 
brother  surrendered  his  estate,  and  de- 
ponent was  informed  that  no  steps  could 
be  taken  until  after  the  third  meeting 
of  creditors.  He  urged  that  judgment 
on  the  present  application  should  be  de- 
ferred until  after  the  liquidation  of  his 
brother's  estate.  Counsel  submitted 
that  the  plaintiff  ought  to  wait  for 
his  interest  until  the  15th  July,  1905, 
and  that  the  plaintiffs  were  not  now  en- 
titled to  a  decree  of  forfeiture.  The 
defendant  had  tendered  his  half-share  of 
interest  due.  The  plaintiffs  had  proved 
against  his  brother  s  insolvent  estate, 
and  they  ought  to  wait  until  they  saw 
what  they  got  from  the  insolvent  es- 
tate. All  they  could  do  at  present  was 
to  come  against  the  defendant  for  his 
half-share. 

Provisional  sentence  granted,  the  de- 
fendant's share  of  the  property  declared 
executable. 


ESTATE  aOODBON  Y.   LUCKE. 

Mr.  Sutton  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £1,000, 
with  interest  end  costs,  and  that  the 
property  hypothecated  be  declared  ex- 
ecutable. 

Maasdorp.  J.,  said  a  petition  had  been 
sent  in  by  the  defendant,  and  he  would 
ask  counsel  to  read  it  and  mention  the 
matter  a^ain. 

Later  m  the  day,  His  Lordship 
granted  judgment   as  prayed. 


KUPBB  AMD  OILLI8  V.   BAUBKNHEIMEB. 

Mr.  De  Waal  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Order  granted. 


SCHUTZ  AND  CO.  V.  PFUHL. 

M^'  prArdiner  moved  for  the  final  ad- 
judicaiion  of  the  defendant's  estate  as 
insolvent. 

Order  granted. 


BUTCLIFFB  V.  HIBCHFBLD.        ^^^ 

Mr.  De  Waal  moved  for  a  decree  of 
civil  imprisonment  against  the  defend- 
ant on  an  unsatisfied  ludgment  for  £44, 
for  jewellery  sold  to  the  defendant. 

Order  granted. 


ESTATE  WOBDBN  V.  MILLBB. 

Mr.  Gkhteche  moved  for  provisional 
sentence  on  a  mortgage  bond  for 
£1,100,  with  interest,  loss  £28  10s.  paid 
on  account,  and  that  the  property 
specially  hypothecated  be  declared  exe- 
cutable. 

Order  granted. 


SILBEEBAUBE,  WAUL  AND  FULLER  V, 
SULLIVAN. 

Mr.  G-ardiner  moved  for  providional 
sentence  on  a  promissory  note  for  £2lb 
58.,  and  judgment  for  £S9  2s.  4d.  for 
professional  services  rendered,  with 
interest  and  costs. 

Order  granted. 


HUTT  V.  BRENNINO. 

Mr.  p.  S.  T.  Jones  moved  for  pro- 
viisional  sentence  on  ^  mortgage  bond 
for  £250,  with  interest  and  costs,  less 
£7  10s.  paid  on  account,  and  that  the 
property  specially  hypothecated  be  de- 
clared executable. 

Order  granted. 


STROYAN  V.  BOTHA. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £700, 
with  interest  and  costs,  and  that  the 
property  mortgaged  be  declared  execut- 
able. 

Order  granted. 


SMITH  V.  BOTHA. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  on  a  mortgage  Dond  for 
£1,250,  with  interest  and  costs,  and  that 


"CAPB  TIMES"  LAW  REPOBTS. 


m 


the  property  speoiAlly    hypcytfheoated  be 
dedared  ezecutBible. 
Order  granted. 


S.A.  BBEWEBIB8  V.  SCHMOLLB. 

Mr.  Douglu  Buchanan  moved  for  the 
sequestration  of  the  defendant's  estate 
as  insolTent 

Order  granted. 


ESTATE  MABKEW  V.  MORGAN. 

Mr.  Douglas  Buchanan  moved  for  pro- 
▼iiional  sentence  on  a  mortgage  bond 
for  £1,560,  with  interest  and  costs,  and 
that  the  property  epecially  hypothecated 
be  declared  executable. 

Order  granted. 


LBEB  V.  VAN  BEBKDBN. 

Mr.  De  Waal  moved  for  provisional 
sentence  for  £60,  an  amount  of  interest 
on  a  mortgage  bond,  and  oosta. 

Order  granted. 


PURCELL  y.  MCKBY. 

Mr.  De  Waal  moved  for  provisional 
lenteooe  for  £1,250,  on  a  mortgage 
bond,  with  interest,  leas  £31  28.  5d. 
paid  on  account,  and  for  £11  14s.,  paid 
on  premiums,  and  that  the  property 
specuUy  hypothecated  be  declared  ex- 
ecutable. 

Order  granted. 


SUTHBBLAliD  V.  OWBBIDOE. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  for  £100,  on  a  judgment  of  the 
^urt,  and  that  certain  property  on 
which  the  applicant  had   not    yet      ob- 

r??^  transfer  be  declared  executable. 

[Maasdorp,  J. :  Thore  is  no  property 
to  declare  executable.  It  is  clear  he 
haa  not  got  transfer.  You  can  take 
jour  judgment  without  any  order  as  to 
■*•«  property  at  present.  You  can  men- 
tion the  matter  again  if  you  can  show 
*nv  precedent  for  euch  &  course.] 

At  a  subsequent  stage,  Mr.  Van  Zyl 
jpoted  from  Van  Zyl  (page  250)  to  show 
that  a  special  oraer  was  required  to 
execute  against  the  rights.  This  was 
the  only  property  the  plaintiff  could 
P'^xwed  against,  as  it  was  the  only  pro- 

.The   Court    declared    the    defendant's 
nght  on  the  property  executable. 


HUMAN  V.  BOUX. 

Dr.  Greer  moved  for  provisioniU  sen- 
tence on  a  oertaio  acknowledgement  of 


debt  for  £47  50.»  leas  £6  1b.  paid  on  ac- 
count, with  interest  and  costs. 
Order  granted. 


CAPBON  AND  CO.,  LTD.  V.  G.  AND  H, 
BOWE. 

Mr.  Close  was  for  the  plaintiff,  and 
Mr.  Gardiner  for  the  defendant,  Henry 
Rowe  Howe. 

Mr.  Close  moved  for  provisional  sen- 
tenoe  on  a  bill  of  exohanffe  for  £255 
14s.,  drawn  by  the  plaintiff  on  George 
Rowe  Rowe,  endorsed  by  Henry  Rowe 
Rowe.  The  other  defendant  had  filed 
an  affidavit,  and  the  plaintiff  wished 
to  reply,  and  he  asked  that  the  matter 
should  stand  over. 

Provisional  sentence  granted  against 
George  Rowe  Rowe,  and  as  against 
Henry  Rowe  Rowe  the  matter  ordered 
to  stand  over  until  the  end  of  June. 


BMXJT8  V.   LOUW. 
Mr.    Van  Zyl   moved   for  provisional 

^SS^'^^J^^  ^^'^'  *e»  ^WO,  and 
±»Z00  paid  on  account,  with  interest  and 
costs. 

Order  granted. 


ORAAFF  AND  ABDBBNE  V.  HALWEBI8KT 
AND  0THEB8. 

Mr.  Van  Zyl  moved  to  have  provi- 
sional order  of  sequestration  against 
the  defendants*  estate  made  final. 

Order  granted. 


WILSON  V.  A.M  B.  GHUBOH. 

Mr.  p.  S.  T.  Jones  moved  to  have 
the  j^inaional  order  of  aequeatration 
against  the  defendants  made  nnal. 

Order  granted. 


WOBDON  AND  FEOBAM  V.  OINSBEBO. 
.Mr.    Long  moved  to   have  the  provi- 
Bional  order  of  segueatration  against  the 
defendants  made  nnal. 
Order  grranted. 


DB  BBEB  AND  OTHEBS  V.  BGHWABTZ. 

Mr.  Gardiner  moved  for  the  dieeharge 
of  the  provisional  order  of  sequestration 
and  also  for  the  discharge  of  an  inter- 
dict, with  costs  of  this  applk>ation  and 
previouB  moiion. 

Order  granted. 


ESTATE  OF  BEBD  V.  JONES. 

Mr.  Baily  moved  for  a  provisional 
sentence  on  an  acknowledgement  of 
debt    for   £270. 

Order  granted. 


414 


« 


CAPS  TIMES"  LAW  REP0BT8. 


OAPBON  AND  00..  V.  BOWB. 

Mr.  Du  Toit  moved  for  provisional 
eeutence  on  a  promissory  note  for  £109 
168.  on  two  bills  of  excbaage  for  £68 
7a  and  £25  Ts.  lOd.,  and  for  judgment 
under  Rule  329  (d)  for  £96  Os.  5d. 

Order  granted. 


KOLBB  V.  KOLBB. 

Mr.  Roux  moved  for  judgment  on  a 
Magistrate's  Court  summons  for  £6  17s., 
with  interest  and  costs,  and  to  have 
certain  properties  declared  executable. 

Defendant  said  he  had  made  an 
arrangement  to  pay  Zs.  6d.  a  week,  and 
had  paid  for  two  weeks. 

Mr.  Roux  said  he  would  make  en- 
quiries of  appKcant's  attorney. 


EATON  TRUST  FUND  V.  WEIOMAN. 

Mr.  Gutsche  moved  for  provsional 
sentence  for  £600,  leas  £21  paid  on 
account,  on  ^  a  mortgage  bond  and  for 
certaan  apeoially  hypothecated  property 
to  be  declared   executable. 

Order  granted. 


ILLIQUID    ROLL. 

HULTON  V.  ROBEBTSON.      (jun^^'ond 

Mr.  P.  S.  T.  Jones  moved  under  Rule 
329  (d)  for  judgment  for  £30,  money, 
lent. 

Order    granted. 


CAPE  TIMES,  LIMITED  V.  PLATEWELL 
BUILDERM*  AND  SUPPLY  CO. 

Mr.  Bisset  moved,  under  rule  329  (d), 
for  judgment  for  £72  7s.  6d.,  advertismg 
charges. 

Order  granted. 


SCOTT  V.  SMITH  AND  WILLIAMS. 

Mr.   Bisset  moved  for  judgrment,  un- 
der rule  329  (d),  for  £162. 
Order  granted. 


JOHNSON  AND  CO.  Y.  BURRILL. 

Mr.  Lewis  moved  for  judgment,  under 
rule  329  (d),  for  £124  Ss. 
Order   granted. 


CHIAPPINI  BKOS.  V.  HARRIS. 

Mr.  Baylv  moved  for  judgment  for 
£228  17s.,  the  purchase  price  of  certain 
shares. 

Order  granted. 


SCaOBMAK  V.   LATB9AM. 

Mr.  Do  Waal  moved  for  judgment 
for  £140,  the  purchase  price  of  certain 
horses. 

Order  granted. 


WOODSTOCK  MUNICIPAL  OOUNCIL  V. 
D£  MABILLAG. 

Mr.  Gutsche  moved,  under  Rulo  388 
(d),  for  judgment  for  £40  8s.  4d.,  Moui* 
cipal  rates. 

Order  granted. 


REHABILITATIONS. 


Upon  the  application  of  Mr.  Sutton. 
Lazarus  Rossenstein  and  Bernard 
Rossenstein  were  rehabilitated,  as  waa 
Petrus  Jaoobus  Bosman. 


GENERAL  MOTIONS. 


BTRNB  v.  BYRNE. 


i       1906. 
(Jane  2nd. 

Mr.  Gardiner  applied,  on  behalf  of  the 
wife,  for  a  decree  of  divoroe  to  be  made 
absolute,  for  forfeiture  of  benefits  by 
the  husband,  and  for  the  custody  of  the 
minor   children. 

Decree  granted  as  prayed,  with  costs. 


MAIDMBMT  V.  KENDRICK. 

Applicant  appeared  in  person,  and 
Mr.  Douglas  Buchanan  for  the  respon- 
dentw 

This  was  an  application  by  Henry 
Maidment  for  release  from  civil  im- 
prisonment, he  having  been  attached 
for  failing  to  keep  up  his  instalments. 

Applicant  stated  that  he  had  absolute- 
ly no  money,  but,  if  he  was  allowed 
out,  he  could  make  £5  per  week  at  a 
quarry  in  which  he  wa6  mterested. 

Mr.  Buchanan  read  affidavits  to  the 
effect  that  applicant  had  received  vari- 
ous sunis  of  money  and  could  have  paid. 

Applicant  denied  this  statement,  and 
stated  that  his  share  of  the  profits  in 
the  quarry  were  being  kept  from  him 
by  his  partner,  and  he  wanted  to  get 
out,  so  as  to  obtain  the  money.  If  he 
was  allowed  out  he  would  pay  £4  per 
month. 

Maasdorp,  J.,  eaid  he  had  come 
to  the  conclusion  that  the  appli- 
cant had  no  property,  but  had  a  valu- 
able contract,  which  he  could  not  work 
while  in  prison.  Therefore,  the  Court 
would  order  that  the  applicant  be  re- 
leased and  the^  order  further  suspended 
while  the  applicant  paid  £4  per  month. 


"OAI^B  tlMES"  LAW  REPOBTS. 


i\h 


Ex  parte  EKBRM Air 

Mr.  Gutsche  applied  for  a  rule  nisi 
uiider  the  Derelict  Lands  Act  to  be 
made  aUtrfute. 

AppUcation  granted. 


Ex  parte  VAN  8ITTERT. 

Mr.  Swift  appeared,  to  ask  for  the 
ameDdment  of  a  certain  transfer  and 
bond,  and  for  registraiion  of  a  certain 
contract.  Petitioner  had  been  in  the 
habit  of  using  only  her  first  name  Lucy, 
and  omitting  the  second,  Florence,  and 
uiad?ertently  signed  a  transfer  with  her 
fint  name  only.  She  had  now  con- 
tracted a  marriage,  and  required  an 
ante-nuptial  contract  to  be  registered, 
but  the  Registrar  refused  to  do  so, 
owing  to  the  difference  in  the  names. 
An  order  was  accordingly  prayed  for 
tbe  R^istrar  to  register  and  alter  the 
uocament 

Order  granted. 


SUPREME   COURT 


FIRST  DIVISION. 


[Before  the  Acting  Chief  Juatice,  the 
Hon.  bir  John  Buchanan.] 


CIVIL  APPEALS. 


EADMIEVEE  V.  STONE.        {  j  Jf  ^5^1,. 

This  was  an  appeal  from  a  judgment 
«  the  Resident  Magietrato  of  Union- 
«*w.  in  an  action  brought  by  the  pre- 
»nt  respondent  to  recover  commission 
][pon  a  certain  bill  of  ezofaange.  The 
MsjiristFate  had  given  judgment  for  the 
Pwntiff  in  the  action,  with  ooeta. 

From  the  record,  it  appeared  that 
i5fv  ■PpUMt  eigned  a  bill  on  the 
wth  November,  1904,  promising  to 
{^y  to  the  respondent,  on  the 
13th  February.  19M,  the  sum  of  £212 
1m.  9d..  for  value  received,  and  failing 
pftyment  on  due  date  to  pay  5  per 
cent,  commission  and  10  per  cent,  in- 
*?*«8t,  in  addition  to  the  afore-men- 
twDed  sum.  The  money  was  not  paid 
on  the  due  date,  and  the  plaintiff 
{oereupon  took  proceedings  on  the  20th 
February  in  the  Resident  Magistrate's 
pourt  to  recover  the  capital  amount, 
together  with  5  per  cent,  interest  and 


costs.    An  eixoeption  waa   taken    at  the 
hecuring     .bv  the    defendant'a    attorney 
that  the  bill  had  not  been      presented 
by   a  notary  public  a«     required,     thia 
having   been  due  to   the   fact   that  the 
only  notary  in  the  town  was  absent  for 
the   day,    and  that   the   bill  was   there- 
upon presented  by  a  householder.      The 
exception  was    upheld,  and    the   Magis- 
trate     found    for  the    defendant,    with 
costs.      Subsequently  the  defendant  paid 
the  bill,   with   interest        On   the  27th 
March  the     plaintiff  brought  a    suit  for 
£10  12s.  9d.,   bein^  5  per  cent,      com- 
mission  for  collection  of  the  bill.        At 
the  hearing  the  defendant    excepted  on 
two  grounds :    (1)   that  the  costs  in  the 
previous    action  had  not  been    paid    by 
the  plaintiff,  and  that  he  waa     thus  de- 
barred from  taking  a  further     action; 
(2)   that  the  summons  did  not      disclose 
any  cause  of  actioti,  because  it  did     not 
say  that  the  plaintiff  had     incurred  any 
oxpenees   in   collecting   the   bill.      Plain- 
tiff,   in    reply,    said  that    he    had   been 
ready  and  willing  to  pay  the  costs,  and 
he    tendered    the  same.        The   Magis- 
trate   gave    judgment  for    the    anoount 
jlaimed.  with  costs. 

Mr.  Burton  was  for  the  ap|iellant. 
Gert  Rademeyer;  Mr.  McCrregor  was 
for  the  respondeiit.  J.  T.  Stone. 

Mr.  Burton  said  that  the  appeal  was 
against  the  judgment  of  the  Resident 
Magistrate  upon  the  commission  claimed 
by  the  respondent.  He  submitted  that 
commission  clearli|r  must  be  taken  to 
mean  what  commission  meant  in  such 
cases,  viz.,  commission  for  collecting 
the  amount,  and  inasmuch  as  no  per- 
son was  instructed  to  collect  and  there 
was  no  collection,  the  plaintiff  incurred 
no  risk,  and  was  consequently  not  en- 
titled to  charge  commission.  Counsel 
cited  the  cases  of  Steytler  v.  Smuts 
(1  Menzies,  40),  Jones  v.  Rkyrwutd 
(3  Menzies  463).  and  Fnlkner  v.  Behr 
(6  Juta  410).  and  submitted  that  it  was 
reasonable  to  infer  from  all  these  caeee 
that  commission  was  for  collection, 
and  that  it  could  not  be  recovered  un- 
less the  risk  were  incurred.  In  this 
present  case,  he  submitted,  no  risk  was 
incurred. 

Mr.  McGregor  contended  that,  the 
defendant  having  failed  to  pav  the  bill 
on  the  due  date,  he  was  liable  to  pay 
this  commission.  This  was  a  specific 
form  of  damnum,  and  the  parties  had 
agreed  to  it  as  a  sort  of  compensatioii 
in  default  of  meeting  the  bill  on  the 
due  date.  It  was  a  sort  of  compensa- 
tion for  the  risk  that  waa  run  and  any 
extra  trouble  and  labour  involved 
when  the  defendant  failed  to  meet  his 
obligations.  If  the  Court  thought  it 
necessary  to  regard  the  commission  as 
being  for  collection,  then  he  submitted 
that  there  was  collection  by  the  plaintiff 
himiaelf  and   his  agent.  , 

Mr.  Burton  having  been  heard  in  re- 


416 


"GAPB  TtMEB"  LAW  AE^OkTA, 


Buchanan,  A.O.J.,  in  givins[  judg- 
ment, said  that  he  thought  a  risk  was 
incurred  bv  Stone,  and  the  Magistrate 
had  grounds  for  finding  the  facts  whioh 
he  had  dotne  in  this  OMe.  The  appeal 
would  be  diemiBsed,  with  coete. 


HARRIS  V.  LBNTIN. 

St.olen  property — Bonajide  holder 
for  value. 

The  appellant  had  agreed  to 
let  II.  have  certain  rings  for 
half  an  hour^  in  order  that 
he  might  find  a  purchaser  for 
them.  H.  sola  them  to  L.^ 
approprioited  the  proceeds  ami 
absconded. 

Held  on  appeal,  that  cts  IL 
must  he  held  to  Juive  sUdeu 
the  rings,  and  as  by  our  law 
the  appellant  was  not  bound  to 
prosecute  the  thief  to  con- 
viction before  he  could  recover 
his  property,  judgmefU  mu^t 
be  given  for  the  appellant  for 
the  return  of  the  rings  or  pay- 
ment of  £20,  their  value. 


This  wa«  an  appeal  from  a  judgmeiil 
of  the  Re«^ideut  Magistrate  of  Cape 
Town  in  an  action  brought  by  the  ap- 
pellant for  delivery  of  two  diamond  ringo 
or  their  value,  £20.  The  MagistraU^ 
had  given  absolution  from  the  icuBrtance. 

Mr.  Gardiner  said  that  the  plaintift 
sued  the  defendant  in  the  Court  below 
foi*  the  restoration  of  two  diamond  rings, 
or  their  value  £20.  The  rings  were  ob- 
tained from  the  plaintiff  by  one  Louis 
Hermann,  late  of  Plein-street,  who  had 
agreed  to  take  the  rings  on  approval,  to 
be  returned  within  a  haJf-hour  if  not 
accepted,  the  purchase  price  being  £31. 
The  rings  were  afterwards  sold  by  Her- 
mann to  the  defendant  for  £19  10s. 

The  Magistrate,  in  his  reasons  for 
judgment,  said  he  was  of  opinion  that 
the  plaintiff  lost  possession  ot  the  rings 
by  handing  them  to  Hermann,  with  per- 
mission to  i»ell  them  to  an  un-named  cus- 
tomer, upon  which  he  (Hermann)  did 
actually  sell  to  the  defendant  on  the  same 
date.  The  plaintiff  had  failed  to  pursue 
tht)  said  Hermann  to  conviction.  The 
defendant  appeared  to  have  purchased 
the  rings  bona  fide. 

Mr.  Gardiner,  for  the  appellant ;  Dr. 
Greer,  for  the   respondent. 

Mr.  Gardiner  submitted  that  the  prin- 
cipal WIB8  Hermann   himself. 

Buchanan,  A.C.J.,  asked  why  the  man 
Hermann  had  not  been  prosecuted? 

Mr.  Gardiner  said  it  was  alleged  that 
Hermann  had  left  the  countrv.  Continu- 
ing, he  submitted  that  after  the  half  hour 


had  elapsed  the  transaction  became  a 
sale,  and  that  on  the  authority  of  Daniels 
V.  Cooper  (1  E.D.  Courts,  174),  plaintiff 
wa«  entitled  to  follow  the  rings  mto  tht» 
hands  of  a  third  party. 

Buchanan,  A.C.J.,  said  that,  accord- 
ing to  English  law,  a  man  who  did  not 
pursue  the  thief  to  a  conviction  was  not 
entitled  to  recover  his  property? 

Mr.  Gardiner:  I  don't  think  that  has 
been  held  in  our  law. 

Dr.  Greer  submitted  that  the  onus 
lay  upon  the  plaintiff  to  prove  that  a 
theft  nad  been  committed  of  these  rings, 
and  that  this  had  not  been  proved  in  tiie 
present  case.  There  had  been  careless- 
ness on  the  ^rt  of  the  plaintiff  in  en- 
trusting the  nngs  to  the  poeseasion  of  an 
unreliable  person,  and  if  anybody  was  to 
suffer  it  should  oe  the  plamtiff. 

Buchanan,  A.C.J. :  The  appelUnt 
in  this  case  was  a  jeweller,  and 
had  certain  rings  in  his  posses- 
sion.  These  rings  are  now  in  the 
possession  of  the  defendant,  Lentin.  The 
rings  were  handed  by  the  appellant  to 
one  Hermann,  and  he  soJd  them  to  the 
defendant.  The  first  question  to  decide 
is  whether  the  appeUant,  Harris,  has 
ever  lost  his  property  in  the  rings. 
Looking  at  what  took  place,  I  am  bound 
to  say  that^  the  appellant  Harris  iias 
never  lost  his  property  in  the  rings.  He 
said  that  he  handed  them  over  to  Her- 
mann, who  said  that  he  had  a  customer 
for  them,  and  he  was  allowed  to  take 
them  away  for  half  an  hour  on  approba- 
tion. I  do  not  understand  from  the 
Magistrate's  reasons  whether  he  looked 
upon  Hermann  as  a  thief,  and.  therefore, 
held  that  as  Harris  had  failed  to  pursue 
Hermann  to  conviction  he  could  not  i«- 
cover  those  articles.  Whatever  the  Eng- 
lish law  may  be  on  the  point,  I  do  not 
think  that  principle  is  applicable  to  our 
law.  In  this  caae  it  seems  impossible  to 
prosecute  the  thief  to  conviction,  be- 
cause Hermann  swore  an  affidavit  on  the 
next  day  and  entrusted  the  case  to  the 
police,  and  the  police  were  able  to  recover 
the  property,  but  were  unable  to  find 
the  man.  I  think  that  Harris,  therefore, 
is  entitled  to  look  upon  Hermann  aa 
having  stolen  this  property  from  him. 
The  only  question,  but  a  more  difficult 
one,  still  remaining  to  be  decided  is 
whether,  under  the  circumstances  of  this 
case,  Harris  should  be  held  to  be  barred 
by  his  conduct  from  recovering  the  pro- 
perty from  a  third  person  who  holds  it 
bona  fide  for  value.  It  is  true  that 
Harris  gives  the  rings  to  Hermann  for 
half  an  nour,  but  that  is  the  only  thing 
against  Harris.  It  is  true  that  he  en- 
abled Hermann,  by  handing  possession 
of  the  rings  to  him  for  half  an  hour,  to 
go  and  commit  a  fraud  upon  a  third 
person,  but  I  do  not  think  that  is  suffi- 
cient to  bar  Harris  from  recovering 
his  property,  which  has  been  uractically 
stolen  from  htm.  I  think  that  the  Ma^s- 
trate  would  have  been  wiser  if,  on  the 
facts   before      him,   he   had   held   that 


"CA^S  TIMEB**  LAW  BEP0RT8. 


4it 


■-  — - 


fiaxris  was  noi  barred  from  recoYeriog 
his  property  when  found  in  the  poBsession 
of  a  third  party.  Of  course,  it  ia  under- 
stood that  I  am  deciding  this  case  on 
the  supposition  that  the  third 
person  acted  bona  fide.  I  think 
that  defendant  acted  with  a  ^  certain 
amount  of  negligence  in  buying  the 
rings  under  such  circumstances.  The 
appeal  will  be  allowed  with  costs,  and 
judgment  directed  to  be  entered  in  the 
Court  below  for  the  plaintiff  for  return 
of  the  rings  or  payment  of  their  value, 
£2Ql 

[Appellant's  Attorney:  £.  J.  Sydney; 
Respondent's:    O.   Bnidy.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplet.] 


GENERAL  MOTIONS. 


&,  parte  ucHAVOmov.    {  juJ^^tj,, 

Mr.  P.  S.  T.  Jones  moved,^  as  a  mat- 
ter of  urgency,  for  the  appointment  of 
a  provisional  trustee  in  tne  insolvent 
estate  of  James  McNaughton,  to  look 
after  rents  accruing  on  certain  property. 
Counsel  su||^e8ted  the  ap^xMntment  of 
Mr.   H.    Gibson. 

Aiiplication  granted;  Mr.  H.  Gibson 
appointed  as  provisional  trustee. 


Ejb  parte  MICHBLS. 

Mr.  Sutton  moved  to  make  absolute  a 
role  ntiM  calling  on  the  defendant  to  show 
cause  why  the  petitioner  should  not  be 
allowed  to  sue  in  forma  pauperis. 

Rule  cnaule  absolute,  Mr.  Sutton  to  act 
as  counsel  and  Messrs  Findlay  and  Tait 
u  attorneys. 


i:x  parte  terblakcs  and  othabs. 

Mr.  Bailey  moved  to  have  an  award  of 
the  arbitrators  made  a  rule  of  Court. 
The  respondents  consented. 

Order  as  prayed. 


Ejc  parte  GRAND  JUNCTION  RAILWAYS. 

Mr.  Upington  was  for  the  Receivers 
and  Dr.  lUinsford  appeared  for  the 
London  and  Westminster  Bank. 

Mr.  Upington  said  the  Receivers,  in 
prasentiog  their  second  report,  now  ask- 
ed for  avthority  to  pay  a  dividend  of 
5s.  in  the  £  on  undisputed  claims.    The 


London  and  Westminster  Bank  now 
came  in  and  said  they  appeared  among 
the  disputed  claims,  and  tney  wished  to 
be  removed  to  the  undisputed  list,  but 
there  was  a  further  difficulty,  as  John 
Walker  had  lodged  an  objection  to  all 
the  debenture  claims. 

Dr.  Rainsford  read  certain  correspond- 
ence between  the  attorneys  and  the 
receivers,  and  submitted  that  the  applica- 
tion of  the  bank  was  a  very  reasonable 
one.  The  receivers  could  not  incur  any 
liability,  as  the  London  and  Westminster 
Bank  were  well  able  to  pav  any  claim 
should  John  Walker  succeed  in  his  ac- 
tion. 

Hopley,  J.,  ordered  that  the  Receiv- 
ers be  authorised  to  pay  out  5d.  in  the 
£  on  all  undisputed  claims,  includini^ 
the  claim  of  the  London  and  Weetmin- 
sier  Bank,  on  condition  that  the  said 
Bank  gave  a  satisfactory  indemnity  in 
case  of  any  objection  to  their  claim 
proving  suocestfful.  No  order  as  to 
costs. 


WOLPF  AND  OTHERS  V.  E8TAT1B  TINK. 

Sir  H.  Juta,  K.C.,  was  for  the  ap- 
plicant, and  Mr.  Van  Zyl  was  for  the 
respondents.  Sir  H.  Juta  said  the  late 
Mr.  Vink  executed  a  will,  by  which  he 
appointed  his  children  as  heire,  and  he 
left  the  usufraotory  to  these  children, 
with  a  ^dei  eommissum  in  favour  of  the 
grandchildren.  Last  term,  on  the  pe- 
titaon  of  certain  of  the  grandchildren 
of  the  testator,  the  Court  ordered  their 
shares  to  be  paid  out  on  their  mother 
waving  her  usufruct.  Now,  in  this  ap- 
plication, the  lady  holding  the  usufruct 
was  insolvent,  but  the  triM^tees  wera 
willing  that  she  should  surrender  her 
right,  because  an  arrangement  had  been 
made  by  which  the  children  would  pay 
all  the  credittors  and  release  the  estate 
from  sequestraiion. 

Mr.  Van  Zvl,  who  appeared  for  the 
executors,  saia  they  did  not  actually  op- 
pose the  a^jplication,  but  they  wished  an 
order  of  Court  to  pay  out  the  money. 

Order  granted  in  terms  of  the  petition  ; 
no  order  as  to  costs. 


EtB  parte  ESTATE  LUKE. 

Mr.  Bailey  moved  for  an  order  author- 
ising the  Registrar  of  Deeds  to  i'ssue  a 
certified  copy  of  certain  mortgage  bond 
which  had  been,  in  the  opinion  of  the 
executors,  stolen  from  the  office  of  the 
ESastern  Province  Guarantee  Association 
at  Giuham's  Town. 

A  rule  nisi  was  granted  oaJHng  on  all 
persons  to  show  cause  why  a  certified 
copy  should  not  be  issued,  one  publica- 
tion forthwith  in  both  Graham's  Town 
papere,  the  "  Eastern  Province  Herald." 
and  the  "  Gazette,"  rule  returnable  13th 
July. 


iis 


t€ 


CAPE  TDtEB**  Law  ttEfOfttd. 


JSjs  parte  MEWDIOATlfi. 

Mr.  Gardiner  applied  for  an  order 
authoriein^  the  Registrar  of  I^ds  to 
issue  certified  copy  of  a  certain  bond 
that  had  been  destroyed. 

Decree  nm  granted,  returnable  July 
13. 

Pottea  (July  13).    Rule  made  absolute. 


Ex  jmrte  POTaiBTER. 

Mr.  P.  S.  T.  Jones  moved  for  an 
order  cancelling  an  agreement  of  lease 
between  the  petitioner  and  one  Louis 
Robenthall,  to  whom  certain  property 
had  been  leased  at  Aliw&l  North.  Rosen- 
thal stayed  on  the  property  about  six 
months,  and  then  left  for  Johanneeburg, 
where  dm  address  was  unknown.  The 
lease  was  for  a  period  of  ten  years. 

[Hopley,  J. :  How  can  a  leaiso  be 
cancelled  on   motion?] 

Mr.  Jones  submitted  that  a  sale  had 
been  cancelled  on  motion,  and  cited  the 
petition  of  Henry  Stwens  (6  C.T.R.  150), 
and  suggested  the  issue  of  a  rule  msi. 

Hopley,  J. :  I  think  it  would 
be  fair  to  give  the  petitioner  a  ohanoe 
of  having  the  matter  settled  on  motion. 
If  the  respondent  can  show  that  be  is 
desirous  of  continuing  the  lease,  then 
the  Court  can  order  that  the  matter 
should  be  settled  by  action.  It  will  be 
in  accordance  with  precedent  to  grant  a 
rule  nisiy  calling  on  Rosenthal  to  show 
cause  why  the  lease  should  not  be 
cancelled  as  prayed ;  the  rule  to  be  re- 
turnable on  the  Ist  August,  personal 
service  on  Rosenthal  if  possible,  failing 
which,  publication  in  the  **  Northern 
Post "  and  in  the  "Star,"  Johannes- 
burg ;  personal  service  on  Michael 
Jacobs,  who  might  be  the  means  of 
bringing  this  matter  to  Rosenthal's 
notice. 

Pottea  (August  1) :  Rule  made  abso- 
lute. 


In  re  colonial  asburakcb  cx).,  ltd. 

Mr.  P.  S.  T.  Jones  said  he  was  in- 
structed to  apply  for  the  confirmation 
of  the  final  report  of  the  liquidators,  but 
it  had  not  lain  for  inspection  on  the 
occasion  of  the  presentation  of  the  first 
report. 

It  was  ordered  that  the  papers  lie  for 
inspection  in  the  Master's  office  for  a 
fortnight,  and  publication  to  be  made 
in  "Gape  Times." 


HAKG08A  V.  FLAG  MINI. 

Mr.  Alexander  moved  for  an  order 
of  contempt  of  Court  against  the  re- 
spondent, for  refusing  to  comply  with 
an  order  of  Court  to  deliver  up  the 
applicant's  child.  When  the  resix>ndent 
was  served  with  the  order,  he  informed 
the    Deputy-Sheriff  that   he   would   ^t 


comply  with  it,  until  eight  head  ol 
cattle,  which  were  given  as  dowry, 
were  returned  to  him.  He  alleged  be 
was  married  to  the  applicant  accord- 
ing to  native  customs,  which  the  appli- 
cant denied. 
Order  granted,  with  coats. 


Em  parte  oboenbwald. 

Mr.  J.  £.  R.  de  YillierB  (for  Mr. 
Swift)  moved  for  leave  to  pan  transfer 
of  certain  property  at  Aliwal  North  to 
the  petitioner,  who  was  one  of  the 
executors  in  the  estate.  Sworn  ap- 
praisers testified  to  the  satisfactory 
price  paid  for  the  land. 

Order  granted  authorising  the  execu- 
tors to  pass  transfer  to  the  petitioner. 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  Maasdorp.] 


TRIAL  CAUSE. 


PICTON  V.  PKEBINS.  {j^if^^th. 

Mr.  Roux  was  for  the  plaintiff,  and 
Mr.  Alexander  for  the  defend^uit. 

This  was  an  action  brought  hj 
Stephen  Picton,  a  grocer,  of  Kenil- 
worth,  to  recover  from  Henry 
Perrins,  in  his  individual  capacity, 
and  as  sole  proprietor  of  **  The  Pe- 
ninsular Periodical  and  Press  Company,*' 
£22  18s.  6d.,  balance  for  groceries  sup- 
plied, and  £78  18s.  6d.  on  an  accommo- 
dation note. 

The  declaration  set  out  that  during 
the  years  1899  to  1904,  inclusive,  the 
plaintiff  sold,  and  ihe  defendant  bought, 
groceries  on  a  running  account,  and  on 
July  4.  when  he  owed  plaintiff  the. sum 
of  £78  18s.  6d.,  defendant  made  in  favour 
of,  and  delivered  to,  plaintiff  a  promis- 
sory note  for  the  said  sum,  payable  on 
October  4,  1904,  with  interest  at  the 
r»te  of  8  per  cent,  per  annum.  On  the 
due  dale  of  the  note  the  defendant  failed 
to  redeem  it  by  paying  the  said  sum 
and  interest,  and  on  October  11,  1904, 
he  induced  the  plaintiff,  for  his  accom- 
modation, to  sign  and  deliver  to  him  a 
promissory  note  for  £78  18s.  6d.,  pay- 
able on  January  11,  1905,  made  in  his 
favour.  Defendant  promved  to  dis- 
count the  said  note  with  his  bank,  pay 
the  proceeds   theoreof,    the  som   of  £78 


**CAPn  TlMSfi"  LAW  ltEt»QttT8. 


41^ 


Ifii.  6d.  to  the  plaintiff  in  settlement  of 
iuB  grocery  aooount,  and  redeem  the 
■aid  acoooomodation  note  for  £78  18b. 
6d.  at  ka  maturity.  The  defendant 
duly  discounted  the  said  acoommodation 
note  with  his  bank,  reoeiying  the  full  sum 
of  £78  18b.  6d.  thereof.  He  thereupon 
drew  a  cheque  for  £50  and  paid  tnat 
sum  to  the  plaintiff  in  part  settlement  of 
hie  grocery  account.  He  induced  plain- 
tiff to  deliver  to  him  the  promiasory  note 
made  by  him  in  plaintiff's  favour  on 
July  4,  1904,  on  the  promise  that  he 
would  pay  the  balance  forthwith,  as  he 
had  sold  his  house.  Defendant  failed 
to  pay  the  balance  of  the  promiBsory 
note  for  the  grocery  account,  vis.,  £^ 
ISs.  6d.,  notwithstanding  frequent  de- 
mands Uicrefor.  On  January  11  defcn- 
ant  failed  and  neglected  to  redeem  the 
second  promissory  note  made  for  his 
accommodation  on  October  11,  1904,  and 
plaintiff  was  compelled  to  redeem  it  at 
maturity,  and  to  pay  the  defendant's 
bank  the  sum  of  £78  ISs.  6d.  Plaintiff 
thus  became  the  holder  of  the  promis- 
sory note. 

The  defendant  in  his  plea  denied  that 
be  owed  the  plaintiff  on  July  4,  1904, 
£78  188.  6d.,  or  any  money.  Defen- 
ant  admitted  he  gave  plaintiff  a  note, 
hut  the  note  was  j^iven  for  plaintiff's 
accommodation.  On  October  11  de- 
fendant discounted  the  plaintiff's  note, 
and  disposed  of  tlie  proceeds  as  follows: 
£50  to  the  plaintiff,  £10  set-off  for 
commission  due  to  the  defendant  in  re- 
spect of  certain  shares,  £15  paid  to 
plaintiff,  £3  ISs.  6d.  discounting  charges. 
Defendant,  in  his  rejoinder,  set  out  that 
be  bad  paid  £1  4s.  4d.   for  groceriee. 

Evidence  having  been  called,  and 
counsel  heard  in  argument, 

Maasdorp,  J.,  in  allowing  certain 
daims  put  in  by  the  defendant,  gave 
judgment  for  the  plaintiff  for  £92  ?d  6d, 
with  costs. 


SUPREME  COURT 


[Before  the  Hon.  Mr,  Justice  Maasdorp  ] 


TRIAL  CAUSES. 


LEHMAN  V.  LEHMAN. 


f       1905. 
)  June    7th. 


Thi«  was  an  action  brought  by  Adonis 
Johannes  Lehman,  of  Wynberg,  a 
eoloored  man,  against  his  wife  for  resti- 
tution of  conjugal  rights,  failing  which 
•  decree  of  divorce,  on  the  ground  of 


her  malicious  desertion.  Mr.  Van  Z^l 
was  for  the  plaintiff;  defendant  was  m 
default. 

Wm.  Thomas  Birch,  clerk  in  charge 
of  the  marriage  register  at  the  Colonial 
Office,  gave  evidence  as  to  the  registra- 
tion of  the  marriage. 

Adonis  Johannes  Lehman  said  that  a 
few  years  after  the  marriage  his  wife 
left  him,  and  went  to  live  in  Cape 
Town.  He  had  tried  to  get  her  to  re- 
turn home,  but  it  was  of  no  avail. 
They  had  had  six  children,  of  whom 
three  survived,  all  being  in  the  custody 
of  his  wife. 

Decree  of  restitution  granted,  defen- 
dant to  return  to  the  plaiutift  on  oc 
before  the  22nd  June,  failii>g  which,  to 
show  cause  on  tlie  6th  July  why  a  de- 
cree of  divorce  should  not  be  granted 
as  prayed. 

PoMtea  (July  6):  The  rule  was  made 
absolute. 


OOTZE  V.  BSROL. 

This  was  an  action  brought  by  Karl 
Gotze,  of  Kast  London,  against  Alex- 
ander Bergl,  late  of  Cape  Town,  to 
recover  certain  suras  upon  a  promis- 
sory note.  Mr.  McGregor  (with  him 
Mr.  J.  £.  R.  de  Villiers)  was  for  the 
plaintiff;  there  was  no  appearance  for 
the   defendant. 

From  the  pleadings,  it  appeared 
that  a  letter  liad  been  received  from 
the  attorneys  of  record  to  defeiH 
donts,  Messrs.  Fairbridge,  Arderne  and 
Lawtou,  to  the  effect  that  they  had 
withdrawn  from  the  case.  The  defen- 
dant was  now  in  England.  llie  mat- 
ter arose  out  of  the  purchase 
of  shares  in  the  Federal  Supply  and 
Cold  Storage  Company  by  one  John 
Wedderburu,  who  was  in  July,  1903, 
in  the  company's  employ  at  East  Lou- 
don. Gotze  was  at  that  time  the  com- 
pany's local  manager.  In  May,  1904, 
plaintiff  obtained  provisional  sentence 
against  defendant  on  a  promissory  note 
for  £900.  Li  September  he  claimed 
provisional  sentence  on  two  sums  of 
£150  and  £100,  and  the  Court  then 
directed  that  he  should  go  into  the 
principal  case.  In  July,  1903,  Wedder- 
buru made  a  promissory  note  for  £1,150 
in  favour  of  A.  Bergl;  that  note  was 
signed  by  Bergl  and  endoned  by 
Gotze.  The  note  fell  due  on  the  4th 
October,  1903,  but  in  the  nieantime,  on 
the  24th  September,  there  had  been  a 
renewal  of  the  note  similarly  signed 
and  endorsed  for  £1,000.  Plaintiff,  on 
the  24th  September,  paid  £150  on  be- 
half of  Wedderburn  and  Bergl.  The 
£1,000  note  fell  due  on  the  4th  Janu- 
ary. 1904.  but  again  it  was  not  met, 
and  plaintiff  then  paid  £100,  where- 
upon a  renewal  was  granted  for  £900. 
The  original  note  was  made  to  en- 
able Wedderburn  to  get  a  discount,  and 
with   the  proceeds  of   that  discount   to 


420 


"CAPS  TIMES"  Law  ttEt^OtlTd. 


purohaae  sluiras  m  the  oompaay.  Those 
shares  were  put  in  the  Standard  Bank 
as  collateral  security,  but  just  before 
the  last  note  of  £900  had  to  be  met, 
the  shares  were  sold,  and  realised  £594, 
the  result  being  that  plaintiff  paid  the 
balance  owinff  of  £306  Ss.  3d.  on  the 
5th  April,  1904.  The  defendant's  i^ea 
admitted  his  having  eigned  the  pro- 
missory notes,  but  said  that  be 
did  so  at  the  request  of  plaintiff 
and  Wedderburn,  and  for  their  ac- 
commodation. He  received  no  con- 
sideration for  signing  the  notes. 
Plaintiff  and  Wedderburn  jointly  and 
severally  agreed  at  the  tmie  of  the 
said  endorsement  to  pay  the  note  when 
due,  and  to  hold  him  harmless  against 
action.  He  prayed,  therefore,  that 
plaintiff's  olaim   ahould   be  dismissed. 

Karl  Gotze  (the  plaintiff)  said  Uiat  in 
1903  he  was  in  the  employ  of  the  Federal 
Company  at  E^t  London.  John  Wed- 
derburn was  one  of  the  officials  of  the 
company.  As  to  the  note  for  £1,150, 
Bergl  first  signed  and  witness  afterwards 
signed.  The  note  was  signed  solely 
for  Wedderburn's  accommodation.  Mr. 
Wedderburn  wanted  to  buy  shares  m 
the  Federal.  When  the  note  matured, 
witness  paid  £150;  Mr.  Bergl  said  he 
was  unable  to  pay,  and  he  asked  wit- 
ness to  pay  the  money  for  him.  The 
bank  would  have  pressed  if  witness  lind 
not  paid  the  money.  As  to  the  second 
note  of  £1,000,  witness  paid  £100  when 
the  note  became  due,  because  Bergl 
was  unable  to  manage.  Thev  all  signed 
the  renewal  note  of  £900.  This  renewal 
note  was  paid  by  Wedderburn  or  Bergl. 
Witness  paid  £305  5s.  3d.  Part  had  been 
paid  off  bv  the  sale  of  the  shares,  aiul 
witness  had  to  meet  the  balance.  There 
was  nothing  said  about  witness  idemni- 
fying  the  defendant  ajgainst  an  action. 
Some  of  the  money  g^ven  on  the  notes 
was  for  witness's  accommodation.  He 
told  Mr.  Wedderburn  from  the  begin- 
ning that  he  could  not  help  him  with 
any  money. 

Maasdorp,  J.,  said  thait  witnesB  helped 
Wedderburn  with  his  name. 

Witness  said  that  Bergl  signed  as  the 
first  endorser.  In  further  evidence, 
witness  said  that  Wedderburn  did  not 
ask  him  to  take  up  the  shares.  Witness 
told  Wedderburn  to  get  somebody  else 
to  endorse  the  bill  as  a  protection,  and 
then  he  would  endorse  the  bill.  Wed- 
derburn then  got  Bergl  to  endorse  the 
bill.  When  witness  signed,  Bergl's 
name  was  already  on  the  bill. 

Mr.  De  Yilliers  then  read  the  evi- 
dence taken  on  commission. 

Thomas  Fraser.  formerly  branch  man- 
ager of  the  Standard  Bank,  East  Lon- 
don fwhose  evidence  had  been  taken  in 
Natal)  stated  that  he  pressed  plaintiff 
for  payment  because  he  was  more  acces- 
sible than  Bergl,  the  latter  being  in 
Cape  Town. 

The  evidence  of  the  defendant  (taken 
in      London)  was  to  the  effect    that  he 


was  at  East  London  in  July,  1903,  whea 
he  was  approached  by  Wedderburn,  who 
said  that  he  had  been  unfortunate  in 
the  purchase  of  1,000  Federal  shares. 
He      represented      that  Gotze   was   his 

greatest  friend,  and  had  means,  but  that 
f otze  had  not  sufficient  ready  money. 
Witness  agreed  to  lend  his  name  to  the 
transaction.  Witness  afterwards  saw 
Gotze,  and  said  to  him  that  it  was  only 
in  the  event  of  him  (Gotze)  being  unable 
t.)  pay  that  he  (Bergl)  was  to  be  called 
upon  to  pay.  Grotze  and  Wedderburn 
both  assented.  In  signing  the  docu- 
ment, he  got  no  consideration  from  either 
NVedderbumor  Gotae.  When  the  ori- 
ginal note  became  due,  he  had  no  appli- 
cation  to  pay  the  £150. 

Maasdorp,  J.,  said  the  question  was 
whether  both  were  accommodating  par- 
ties, and  suggested  to  Mr.  McGregor  to 
direct  his  evidence  towards  that  point. 

Karl  Gotze  (recalled)  stated  he  saw 
Mr.  Bergl  after  he  signed  the  note  for 
£1.150.  Witness  asked  the  defendant 
if  he  would  get  into  trouble  for  si^rning 
the  note,  and  the  defendant  assured  him 
that  everything  would  be  all  right  In 
October,  the  defendant  said  he  could 
not  pay  £150.  The  bill  was  renewed 
after  witness  had  paid  defendant  the 
£100. 

By  the  Court:  Witness  told  Wedder- 
burn that  he  would  not  endorse  the 
bill  until  he  got  someone  else.  Bergl 
signed  the  note  to  help  Wedderburn. 

John  Wedderburn  said  that  in  the  first 
instance  he  apj^ached  Gotse  and  asked 
him  to  assist  nim  by  loan  or  bill  to  take 
up  the  shares.  Gotze  aaid  he  had  not 
got  the  cash.  Subsequently  witness  went 
to  him  again,  and  Gotze  said  he  was  pre- 
pared to  assist  by  his  name  on  a  bill, 
providing  he  was  freed  from  all  liability. 
Afterwards  witness  said  Bergl  and  the 
latter  agreed  to  sign  the  bill.  Witness 
and  Bergl  went  to  the  bank  together, 
and  the  matter  was  fixed  up.  Re  did 
not  tell  Bergl  that  he  would  only  have 
to  pay  if  Gotze  could  not.  Finalljr,  after 
further  transactions,  the  bank  insisted 
that  the  shares  should  be  sold.  This 
was  done,  and  the  proceeds  were  paid 
in  against  the  bill. 

This  concluded  the  evidence. 

Mr.  McGregor  contended  that  part  of 
the  money  should  be  regarded  as  naving 
been  paid  at  the  request  and  on  behalf 
of  Bergl.  He  suggested  that  Gotze' s 
name  should  be  struck  off  the  notes,  al- 
lowing Bergrs  name^  alone  to  remain, 
so  enabling  the  plaintiff  to  sue  Beri^l  for 
the  amounts  advanced.  He  submitted 
that  in  any  case  juds'ment  should  be 
for  the  plaintiff  for  half  the  money,  with 
costs. 

Maasdorp.  J.,  said  the  difficulty  was 
that  the  defendant  was  in  default,  be- 
cause his  attorneys  had  withdrawn  at  the 
last  moment.  They  1^  the  defendant 
in  the  case,  and  he  was  not  here  now. 
The  defendant  might  wish  to  appear, 
and  the  court  coula  not  in  hia  abaenoe 


"Cape  Ttonfts"  law  BEPotiTd. 


421 


dupose  of  the  case  on  a  different  g-round 
to  that  stated  in  the  declaration.  Both 
I>arties  had  failed  in  the  jXMition  they 
Aad  taken  up»  and  the  question  was  whe- 
ther the  case  should  now  he  dismissed, 
or  whether  plaintiff  should  have  an  op- 
portunity of  amending  his  declaration 
Dy  putting  in  a  count  embracing  a  olaim 
on  the  ground  of  suretyship.  The  de- 
daratioa  could  not  be  amended  in  the 
absence  of  the  defendant. 

Mr.  McGregor  urged  that  it  was  not 
tn  ordinary  case  of  suretyship,  and  that 
the  court  could  deal  with  it  as  a  matter 
of  equity. 

Maaadorp,  J.,  said  he  would  order  the 
matter  to  stand  over  sine  die,  in  order 
that  the  plaintiff  might  ascertain  what 
position  Bergl  took  up — whether  he  had 
ceased  to  defend,  or  whether  he  wished 
to  defend  If  Bergl  did  nothing  more, 
then  the  plaintiff  could  approach  the 
court  for  judgment,  and  the  court  would 
give  such  judgment  as  it  thought  pro- 
per. 


CAPE      ORCHARD      CO.      V 
COLONIAL  OOVBRNIIEMT. 


r      1905. 
I  June    7th. 
•  {     .,       8th. 
t     »       »th. 
I     „      16th. 

Negligence— Railway  regulations 
— Contract — Delivery. 

The  plaintiff  company  aued  the 
defeHdanU  for  damages  to 
certain  niacninery  resulting,  it 
was  alleged,  from  the  negli- 
geuce  of  the  servants  of  the 
Railway  departmeiU.  By 
doMse  14b  of  the  Raihoay 
regulatioii^j  it  is  provided  that 
*'^all  damages  to  defect,  oi' 
deficieitey  in  a  consignment 
miMt  he  pointed  out  in  icriting 
at  the  time  of  delivery,  atid 
that  no  claim  will  be  admitted 
unless  made  irithin  three  days 
after  delivery.'*  These  con- 
ditions were  embodied  in  a 
cottsig/tment  note  signed  by  the 
plaintiffs'  agent  The  truck 
containing  Uie  goods  loas  left 
by  the  departmeiU  at  a  siding 
tchere  none  of  their  servants 
were  in  attendance,  and  plain- 
tiffs w^re  notified  that  the 
goods  were  lying  there  at  their 
difpitsal.  When  tltey  were 
removed  by  the  plaintiffs,  it 
was  observed  that  the  case 
cotitaimng  them  uxm  broken, 
and  the  machinery  was  after- 
wards found  to  have  been 
injured :    no  claim,   however, 


loas  made  on  the  department 
till  nearly  four  months  after 
delivery  had  been  taken.  The 
Court  found,  as  a  fact,  that 
the  nmchinery  had  been 
damaged  while  in  the  cusUnly 
of  the  department. 

Held,  however,  that  clause  145 
ivas  fair  and  reasonable,  and 
as  the  plaintiffs  had  entrusted 
their  goods  to  be  carried,  sub- 
ject to  its  provisiom,  they  were 
not  entitled  to  daiiiages. 

The  plaintiffs  also  claimed 
damages  in  rcMj^ect  of  certain 
cases  of  grapes  entrusted  to  the 
defendants  for  carriage  to  Cape 
Town  and  export  to  Europe. 
The  grapes  were  notfoncarded 
by  the  usucd  fruit  train  but  by 
a  later  train,  and  arrived  too 
late  to  be  accepted  for  carriage 
by  the  steamship  company. 

Held,  tfiat  as  the  dejHirtment 
had  7tot  contracted  to  carry  the 
fruit  by  a7ty  special  train,  and 
as  they  took  them  to  Qipe 
Town  in  time  for  despatch  by 
the  steamer,  which  had  refused 
to  receive  tftem  in  consequence 
of  regulations  not  hiown  to  the 
department,  judgment  must  be 
given  for  the  defendants  on 
this  claim  also. 


This  was  an  action  brought  against  the 
Commissioner  of  Public  Works,  as  repre- 
senting the  Colonial  Government,  for  re- 
covery of  the  amount  of  dam-age  caused 
to  certain  machinery  while  being  carried 
by  rail,  and  for  the  value  of  certain 
grapes,  the  sale  of  which  was  pre- 
vented owing  to  the  delay  in  delivery 
by  the  Railway  Department.  The  de 
claration  alleged  that  in  June,  1905,  the 
defendant  undertook  to  safely  carry  and 
deliver  certain  machinery  to  Orchard 
Siding  on  behali  of  the  plaintiffs.  The 
oaee  containing  the  machinery  was  con- 
veyed by  rail  from  Cape  Town  to  Or- 
chard Siding,  but  was  delivered  broken 
and  damaged.  It  was  useless  to  the 
plaintiffs,  who  had  to  get  new  machinery 
in  lieu  of  it.  They  claimed  £20  in  the 
Magistrate's  Court,  but  (agreed,  at  de- 
fenoant's  request,  to  incorporate  the 
claim  in  their  action.  In  re- 
gard to  the  claim  concerning  the 
Krapes,  the  plaintiffci  alleged  that  in 
March,  1906,  the  defendtant  undertook 
to  oarry  110  cases  of  grapes  from  Twee- 
fontein,  SUtem,  to  Cape  Town  Docks, 
and  to  deliver  them  within  a  reasonable 
time  for  export  to  London.     Defendant 


482 


(( 


CAPB  TIMBB''  LAW  BEPOBTS. 


received  the  goods,  but  did  not  diapatob 
them  by  the  cuatoxnaxy  traui  for  Buoh 
tniffio,  and  by  reason  of  the  delay  the 
Union  Castle  Company,  under  a  regula- 
tion providing  that  perishable  goods 
must  be  stored  in  the  oold  store  oi  the 
Harbour  Board  for  48  hours  before  the 
departure  of  the  steamer,  refused  to  ship 
them  by  the  mail  boat  th«t  week,  with 
the  result  that  the  grapes  could  not  be 
sold^  as  was  intended,  in  London. 
Plamtiffs  olaimed  the  value  of  the 
grapes  (£33). 

Defendant,  in  his  plea,  stated  that 
in  the  oonsignment  note  for  the  n>achin- 
«fyf  aigned  by  the  plaintiffs'  duly  au- 
thorised agent,  it  was  agreed  that  the 
machinery  should  be  received,  conveyed, 
and  dealt  with  in  accordance  with  the 
terms  and  regulations  published  in  the 
official  tariff-book,  clause  143  of  which 
provided  that  traffic  for  stations  such 
as  Orchard  Siding,  where  no  one  was 
on  duty,  should  be  left  there  at  the  sole 
risk  of  th^  owner.  The  goods  were 
safely  earned  by  the  Railway  Depart 
ment.  and  duly  delivered  at  the  Siding 
on  the  4th  June,  1903,  to,  and  were 
there  off-loaded  from  the  truck  by,  the 
plaintiffs'  agent  at  the  sole  risk  of  the 
plaintiffs.  It  was  provided  by  clause 
i45  of  the  regulations  that  all  damage 
to,  defect,  or  deficiency  in  «-  oonsignment 
were  to  be  pointed  out  in  writing  at  the 
time  of  its  delivery,  and  that  the^  Rail- 
way Department  would  not  entertain  any 
claim  when  this  had  not  been  done, 
and,  further,  that  no  claim  for  any  d«ni- 
age,  defect,  or  deficiency  would  be  al- 
lowed unless  made  within  thiee  davs 
after  the  deliverv  of  the  goods  to  the 
consignee.  No  damage  to  or  defect  in 
the  consignment  referred  to  was  pointed 
out  at  the  time  of  its  delivery,  and  no 
claim  in  respect  thereof  was  made  be- 
fore the  3rd  October.  1903.  Defendant 
did  not  admit  that  the  goods  were  use- 
less to  the  plaintiffs,  and  that  he  had 
been  compiled  to  purohase  goods 
in  lieu  thereof,  and  denied  that  he  re- 
quested the  plaintiff  to  incorporate  the 
claim  for  £20  in  his  further 
action.  Defendant  admito  that  be  un- 
dertook to  carry  for  the  plaintiff  the 
other  goods  referred  to,  and  said  thait  it 
was  agreed  that  they  should  be  rec«v- 
ed,  conveyed,  and  dealt  witli  in  aooord- 
ance  with  the  terms,  conditions  and  re- 
gulations published  in  the  Official  Tariff 
Book  of  the  Cape  Government  Railways 
in  foroe  in  March,  1906.  He  denied 
tb»t  he  undertook  to  deliver  the  said 
goods  by  any  specified  train  or  within 
any  particular  time.  The  goods  were 
reoeired  by  the  defendant  at  Tweefon- 
tein  Station  at  10  a.m.,  on  the  11th 
Maroh,  1905,  and  were  despatched  there- 
from at  3.22  p.m.  on  the  same  day,  ar- 
riving at  the  Capo  Town  Goods  Station 
at  11.45  a.m.  on  the  12th  March.  The 
12th  March  was  a  Sunday,  and  in  conse- 
quence of  there  being  no  reasonable 
facilities  for  delivery  of  the  goods  to  the 
Table  Bay  Harbour  Board  Cdd  Store 


i 


between  tiieir  arriyal  and  7.50  a.iii.  on 
the  13th  March,  they  were  duly  deliver- 
ed at  the  time  last  mentioned,  and  the 
delivery  was  a  delivery  within  a  reason- 
able time.  Defendant  admitted  that  the 
goods  weie  excluded  from  the  mail  boat 
sailing  for  England  on  Maroh  15,  but 
otherwise  denied  paragraphs  12  and  13; 
but  said  the  regulation  of  the  Union- 
Castle  Co.  referred  to  was  neither  with- 
in his  contemplation  nor  within  his 
knowledge  prior  to  the  accrual  of  this 
cause  oi  action.  It  was  provided  by 
clause  154  of  the  Tariff  Book  Regula- 
tions, that  the  Railway  Department 
would  not  be  responsible  for  any  damage 
arising  in  respect  of  any  articles  from 
loss  of  any  fair,  show  or  market,  or  from 
non-delivery  within  any  particular  time. 
Defendant  admits  the  vahie  of  the  grapes 
and  the  request  and  refusal  to  pay  the 
sums  demanded.  Neither  the  defendant, 
nor  his  agents  or  servants,  had  been 
negligent  in  regard  to  the  conveyance 
of,  or  dealing  with,  any  of  the  goods 
referred  to  in  the  declaration,  and  be 
denied  his  liability  to  the  plaintiff  in 
respect  to  the  sums  olaimed.  Plaintiffs, 
in  their  replication,  said  they  had  no 
knowledge  of  the  damage,  nor  was  it 
ascertainable  until  the  machinery  was 
erected. 

Mr.  Struben  for  plaintiff.  Mr.  Searle, 
K.C.  (with  him  Mr.  Evans),  for  defend- 
ant. 

Mr.  Struben  submitted  that  tbo  onus 
lay  upon  the  defendants  to  prove  that 
there  was  no  ne^ligenoe    on  their  part. 

Mr.  Searie  said  ne  wished  to  apply 
for  an  amendment  of  paramiph  10  of 
tho  plea  to  alter  the  time  of  despatch  to 
the  72  up  train,  which  was  booked  to 
leave  Tweefontein  at  9.25  p.m. 

Maasdorp,  J.,  consented  to  allow  the 
amendment. 

Mr.  Searle  contended  that  the  onus 
of  proof  was  upon  the  i^aintiff,  because 
the  department  did  not  admit  haying 
received  in  a  good  condition. 

Maasdorp,  J.,  held  that  upon  the 
pleadings  the  plaintiff  should  commence 
the  case. 

Lester  MacGuire  Dicey,  one  of  the 
managing  directors  of  the  plaintiff 
company,  spoke  to  the  dama^d 
condition  of  the  generator  on  its  arrival 
at  Hex  River  Station.  Mr.  Patterson, 
a  clerk  at  the  station,  came  up  at  Hex 
River,  and  told  him  that  the  7.4  up  train 
would  be  used  for  fruit  each  da^.  There 
was  a  notice  in  the  working  time-table 
that  this  particular  train  would  be  used 
for  fruit.  The  train  passed  Hex  River 
about  12.15  each  dajr.  He  knew  the 
train  ran  on  the  day  in  question,  because 
they  shipped  other  goods  by  it. 

Crom-examined :  Witness  would  en- 
deavour to  produce  the  working  time- 
book  from  which  he  obtained  his  mform- 
ation.  It  was  a  book  supplied  to  the 
firm  similar  to  the  one  produced  marked 
"  private,  workm?  time-book."  He 
would  be  surprised  to  learn  that  grapee 


•« 


CAPE  TIMES"  LAW  REPORTS. 


428 


belonging  to  ofcbsr  large  shippen  had 
been  kepfc  in  ihe  Cold  Storage  for  8  or 
9  dasfB.  He  should  not  like  any  of  the 
oomDany^s  gr»p«e  to  be  kept  iu  the 
Cold  Storage,  lo  long  before  being  des- 
patched by  the  mail  steamer.  He  took 
DO  steps  to  sell  the  grapes  after  he  found 
that  tiiey  had  missed  the  steamer.  Ho 
had  heard  that  the  grapes  were  sold  a 
month  afterwards.  He  did  not  make 
any  attempt  to  sell  them  a*;  any  time, 
because  he  thought  the  grapes  would 
not  make  more  than  the  price  of  the 
ossei,  6d.  each. 

Mr.  Searle:  That  would  be  50s., 
and  yet  these  grapes  made^  a  month 
later,  about  £8. 

WiinesB:  It  might  have  been  on  a 
bare  market. 

By  the  Court:  The  fruH  was  consign- 
ed to  ihe  Harbour  Board  Cold  Store.  It 
was  an  arrangement  made  between  the 
Barbour  Board  and  the  Fruit  Exporters' 
Association  that  all  fruit  should  remain 
in  the  oold  etpre  for  48  hours  to  cool  be- 
fore being  shioped. 

Alfred  W.  B.  Nicholson,  clerk  in 
Messrs.  Spilhaus's  office,  stated  that 
when  he  received  the  receipts  from  the 
ship  for  the  machinery  there  was  no- 
thing to  show  that  the  machinery  had 
been  damaged. 

Grose-examined  by  Mr.  Searle:  Ac- 
cording' to  the  tally  and  montfesto  the 
machiDorr  left  the  ship  undamaged.  If 
there  had  been  any  damage  it  would 
hare  been  mentioned. 

Frank  Robb,  secretary  to  the  Harbour 
Board,  said  the  Railway  Department 
really  took  over  goods  at  tho  Docks,  but 
the  Harbour  Board  loaded  the  goods 
from  the  ship,  and  brought  tho  trucks 
to  the  exchange  siding  at  the  bottom  of 
Addarlej-sireet.  When  goods  were 
damaged  thev  were  set  a^ide  and  ex- 
amined by  the  representative  of  tho 
consignee,  and  tho  ship  representative. 
If  there  was  no  mark  on  the  receipt  to 
that  effect,  the  goods  were  not  dam- 
aged. As  regarded  the  grapes  it  was  the 
practice  of  the  Union-Castle  Co.  to  re- 
fuse shipment  of  fruit  unle^  it  had  been 
cooled  in  the  cold  storage  for  48  hours. 
Fruit  arrived  at  the  store  every  day, 
and  men  were  at  the  oold  storage  on 
Sundays. 

Cross-examined  by  Mr.  Searle:  He 
could  not  say  whether  the  goods  were 
''lightered*'  or  landed  from  the  sbi;i. 
He  had  been  told,  however,  they  were 
'lightered."  The  fruit  would  have 
been  accepted  on  its  arrival.  As  soon 
as  the  fruit  was  put  in  the  cold  storage 
the  Harbour  Board  acted  in  the  capa- 
citv  of  agent  to  the  shipper.  Tiie 
fruit  was  sold  by  tho  Harbour  Board  on 
the  market  on  May  6,  and  realised  £7 
I5s.  Od.  The  fruit  was  kept  two  months 
in  the  cold  storage,  and  it  had  evident- 
ly deteriorated. 

Re-examined  by  Mr.  8truben:  The 
fmit  could  have  been  sent  to  any  cold 
store   outside  the   docks.    In   1903,   the 


custom  was  to  have  a  separate  dam- 
aged list,  and  not  a  discrepancy  list. 

Walter  Hudson,  manager  of  the  en- 
gineering department  of  George  Findlay 
and  Co.,  who  had  the  contraot  to  eroct 
the  general  machinery  at  Hex  River, 
stated  he  saw  the  machine  in  the  case 
on  the  side.  The  case  had  been  con- 
siderably danaaged.  It  was  not  usual  to 
take  a  machine  of  that  description  to 
pieces  before  starting  it.  Towards  the 
end  of  September,  he  saw  the  machine, 
and  noticed  the  pulley  side  fractured, 
which  he  attributed  to  the  case  falling 
on  that  side. 

Cross-examined  by  Mr.  Searle:  The 
machine  oould  have  been  examined  in 
a  day,  but  he  noticed  no  external  dam- 
age on  the  first  occasion. 

Mr.  Ohlsshon,  in  the  employ  of  the 
Orchard  Company,  stated  that  when  the 
case  containing  tne  machinery  was  be- 
ing lowered  from  the  truck  he  saw  that 
it  was  broken.  The  case  was  handled 
carefully. 

N.  Shaw,  who  was  in  charge 
of  the  macninery  when  it  was  ereot^, 
said  he  superintended  the '' off-loading." 
When  the  tarpaulin  was  taken  off  the 
truck  he  entered  the  truck,  and  found 
the  oase  smashed  over  the  part  where 
the  pulley  was.  When  he  wont  up  to 
Hex  River  in  Septmnber  the  machine 
had  been  placed  in  its  bed.  He  started 
the  machine  working,  but  after  an  hour 
or  two  it  was  found  that  oil  was  leak- 
ing and  the  bearings  getting  hot.  On 
taking  the  machine  to  pieces,  it  was 
found  that  there  was  a  slight  crack  in 
the  castings. 

Cross-examined  bv  Mr.  Searle:  The 
machine  was  carefully  lowered  from  the 
truok.  ^  There  was  considerable  risk  in 
off-loading  such  a  machine. 

By  Maasdorp,  J. :  There  were  no 
railway  officials  present  when  ho  off- 
loaded. 

J.  E.  Watkins,  wiroman  employed  by 
Messrs.  Findlay.  said  he  helped  to  "  off- 
load" the  macninory.  which  was  done 
with  proper  oare.  Tne  case  was  smash- 
ed at  one  end. 

John  Bell,  market  agent,  said  he  was 
well  acquainted  with  the  sole  of  fruit  in 
Cape  Town.  There  was  not  muoh  sale 
of  grapes  in  Cape  Town  in  March. 
Grapes  were  scarcer,  and  therefore 
more  valuable  in  May. 

Cross-examined  by  Mr.  Searle:  After 
they  had  been  kept  in  storage  for  three 
weeks,  the  gprapes  would  deteriorate 
rapidly. 

Edward  ^tley,  stationmaster  at  Hex 
River,  said  in  February  he  gave  instruc- 
tions that  a  truck  was  to  be  put  on 
specially  for  fruit.  He  told  Mr.  Dicey 
that  a  truck  for  fruit  would  be  sent  to 
Cape  Town  every  day  for  the  early 
morning  market  and  to  the  docks  by  the 
74  train. 

Cross-examined  by  Mr.  Searle:  He 
never  made  a  special  agreement     with 


424 


fi 


CAPB  TIMB8"  LAW  REPORTS. 


Mr.  Dioey  outside  the  consignment  note. 
He  had  not  acted  outaide  his  instruc- 
tions. 

Mr.  Struben  closed  his  case. 

Patrick  Burgin,  in  the  employ  of 
the  Railway  Department,  8a:id  that 
from  the  facts  o!  the  case  be  belioYed 
that  the  claim  was  not  a  bcna-fide  one. 
He  was  of  opinion,  if,  by  rough  shunt- 
ing, the  case  was  broken,  the  head  part 
of  the  truck  would  have  suffered.  He 
could  not  diflOOTer  any  rough  handling 
from  Worcester  onwards — that  was  his 
section. 

CroM-examined  by  Mr,  Struben:  He 
made  his  report  two  and  a  half  months 
after  the  letter  from  the  department. 

Frederick  Riley,  guard  of  the  train 
from  Worcester  to  Touw*s  River,  stated 
that  the  truck  was  taken  on  to  De  Dooms 
and  sent  back  because  the  Orchard  Sid- 
ing was  full.  Witness  had  to  report  ^ny- 
thmg  he  found  broken.  Although  it 
might  not  reallv  be  his  fault,  he  would 
be  lesponsible  for  rough  shunting.  The 
only  shunt  was  at  De  Doorns. 

Cross-examined  by  Mr.  Struben :  The 
delay  of  214  minutes  was  oaused  through 
witness  having  to  wait  for  another 
train.  It  was  unnecessary  to  make  a 
remark  on  his  journal  that  the  Orchard 
Siding  was  full. 

O.  Hansen,  in  charge  of  the  Harbour 
Board  Cool  Chambers,  noted  instances 
where  fruit  had  been  sent  to  England 
after  being  stored  in  the  chamber  over 
a  week. 

Wm.  John  Ingleby,  who  was  on  duty 
at  the  Docks,  stated  that,  the  train  ar- 
rived about  two  hours  late. 

Cross-examined  by  Mr.  Struben:  He 
did  not  expect  any  consignment  for  the 
cold  store  as  late  as  that. 

By  Maasdorp,  J. :  The  truck  was  the 
only  one  that  arrived  by  the  train  for 
the  Docks. 

James  Patterson,  sectional  clerk  in 
the  Chief  Traffic  Manager's  Office,  who 
saw  Mr.  Dioey,  said  that  he  merely  asl^ 
ed  the  latter  tor  suggestions  with  regard 
to  a  better  co-operation  with  the  fruit- 
growers for  a  more  perfect  service. 

Robert  Barber,  at  present  acting 
chief  clerk  to  the  present  Traffic  Man- 
ager, said  that  he  would  be  aware  of 
any  arrangement  for  the  carriage  of 
fruit,  if  it  interfered  with  the  service. 
He  knew  of  no  specific  arrangement  with 
the   Fruit-growers'   Association. 

Thos.  Mundy,  in  the  employ  of  the 
Railway  Deportment,  produced  the  time- 
book,  mowing  that  the  72  up  arrived  at 
11.50  a.m.  on  March  12th.  The  train 
was  booked  to  leave  Tweefontein  at 
9.25  p.m.  The  74  up  was  due  to  leave 
Tweefontein  at  1.1  p.m.,  and  due  to 
arrive  at  Cape  Town  at  12.25  a.m. 

George  Burgess,  foreman  at  Twee- 
fontein Station,  stated  that  the  loading 
of  the  grapes  was  completed  about  10 
o'clock  on  the  morning  of  the  11th 
March.  By  an  oversight,  the  truck  waa 
not  put  on  to  the  74  up.    He  attributed 


the  oversight  to  an  inaofficienqy  of  staff 
at  the  tim^ 

Cross-examined  by  Mr.  Struben:  It 
was  rather  a  serious  oversig'ht. 

Joseph  Baker,  oterk  in  the  emplov  of 
the  Harbour  Board,  stated  that  he  drew 
attention  to  the  110  cases  that  arrived 
on  Monday,  but  be  oould  not  get  the 
shipping  order  for  Wednesday.  When 
fruit  was  put  in  the  steward's  cfaainber» 
it  was  done  through  an  arrangement 
between  the  consignors  and  tM  ship- 
ping oompany. 

James  Patterson,  of  the  Railway  De- 
partment, said  it  was  quite  understood 
that  fruit  should  come  up  hj  the  special 
train.  The  48  hours  rule  with  regard  to 
placing  fruit  in  the  cold  storage  he  did 
not  know. 

Cross-examined  by  Mr.  Struben:  Mr. 
McEwen,  Greneral  Manager  of  the  Cape 
Government  Railways,  tned  to  assist  the 
fruit-growers,  and  gave  instructions  that 
fruit  for  export  was  not  to  be  delayed 
in  delivery. 

Thomas  Gilham,  guard  in  the  emi^oy 
of  the  Cape  Government  Railways,  gave 
evidence  as  to  carefully  carrying  the 
truck  of  machinery  from  De  Dooms  to 
Orchard  Sidinff. 

Alexander  James  Robb,  Assistant 
General  Manager  of  the  Cape  Govern- 
ment Railways,  stated  he  was  a  member 
of  the  Haiisour  Board  since  the  8th 
June  last.  The  48  hours  rule  with  re- 
gard to  cold  storage  he  had  no  know- 
todge  of  until  a  few  minutes  ago. 

This  closed  the  evidence  for  the  de- 
fendants. ,  . , 

Mr.  Struben  read  the  evidence,  taken 
on  commission,  of  Mr.  Persse,  secretarr 
to  the  Fruit-Growers'  Association,  which 
set  out  thai  special  arrangements  were 
made  with  the  Railway  Department  and 
the  Harbour  Board  for  the  storing  and 
dispatch  of  the  export  fruit.  The  fruit 
for  export  wss  usually  plucked  a  trifle 
green. 

Counsel  having  been  heard  in  argu- 
ment, 

Cur.  Adv.  VuU. 

Pottea  (June  16th). 

Maasdorp,  J. :  The  plaintiffs,  who  are 
a  joint  stock  conipany,  carrying  on  the 
business  at  Hex  River  of  growing,  sell- 
ing, and  exporting  fruit,  seek  to  re- 
cover from  the  defendants  the  sum  of 
£20.  as  damages  suffered  by  them 
through  injury,  caused  by  the  defend- 
ants' neglipsnoe  to  a  machine  belonging 
to  the  plaintiffs,  which  the  defendants 
had  undertaken  to  oarnr  by  rail  from 
Cape  Town  to  Orchard  Siding.  The  de- 
fendants deny  that  the  injury  to  the  ma- 
chine was  the  result  of  their  negligence, 
and  plead  further  that  it  was  provided 
by  clause  145  of  the  Government  Rail- 
way regulations  that  all  damage  to,  de- 
fect or  deficiency  in  a  consignment  was 
to  be  pointed  out  in  writing  at  the  time 
of  its  delivery,  and  that  the  Railway  De- 
partment would  not  entertain  any  daim 
where  this  had  not  been  done,  and,  fur* 
ther,  that  no  claim  for  any  damage,  de- 


"OAPB  TIMES"  LAW  REPORTS. 


426 


feci,  or  deficiency  would  be  allowed  un- 
len  made  within  three  days  after  the  de- 
livery of  the  goods  to  the  conai^iiee.  The 
dafendanta  a&y  that  the  .plaintifia  failed 
to  compljr  with  this  regulation.  The 
plaintjfm  in  their  replicvtion  admit  that 
they  tailed  to  give  notice  in  terms  of  the 
regulations,  but  state  that  the  damage 
could  not  be  ascertained  until  the  ma- 
chinery waa  erected  and  worked,  and 
that  notice  was  ^Yen  within  a  reasonable 
time  after  the  injury  was  discovered, 
and  they  further  plead  that  the  regula- 
tion is  unreaeonable  and  bad.  It  ap- 
peals that  the  machine  in  question  was 
landed  at  the  Cape  Town  Docks  on  the 
2iul  June,  1903,  and  passed  into  the  hands 
of  the  Harbour  Board,  who  acted  in  the 
matter  aa  the  agent  of  the  plaintiffs,  and 
there  is  abundant  evidence  to  show  that 
the  oaoe  was  in  good  order  when  receiv- 
ed by  the  Harbour  Board.  The  Board 
in  the  execution  of  their  duty  placed 
the  machine  upon  a  railway  truck,  and 
delivered  the  truck  into  the  custody  of 
the  defendants  at  the  Exchange  Siding 
in  the  O^pe  Town  Railway  Station.  Up 
to  that  point  the  Harbour  Board  acted 
as  the  agents  of  the  plaintiffs,  and  if 
an^  damage  had  been  done  to  the  ma- 
chine while  in  their  custody,  the  defend- 
ants would  not  be  responsible  for  the  in- 
jurv.  I  am  satisfied  upon  the  evidence 
of  Mr.  Robb,  the  responsible  officer  of 
the  Harbour  Board,  that  the  parcel  was 
in  good  order  when  delivered  to  the 
defendants.  Robb  states  that  if  the  in- 
iniT  to  the  box  containing  the  machine 
oaa  occurred  while  the  articles  was  in 
potseesion  of  the  Harbour  Board,  the 
matter  would  have  been  inquired  into  at 
onoe,  and  there  is  nothing  upon  the  rail- 
way conaignmenft  note,  or  m  the  other 
evidence  adduced  to  prove  that  the  par- 
cel was  at  that  time  otherwise  tnan 
sound  and  in  good  order.  On  the  3rd 
of  June,  the  truck  was  taken  on  bv  the 
Railwav  Department,  and  on  the  4th  it 
was  taaen  past  Orchard  Siding,  which 
was  full,  to  De  Dooms  Station.  On  the 
5th,  it  was  brought  back  to  Orchard  Sid- 
ing, where  it  was  left  at  the  disposal  of 
the  plaintiffs.  At  Orchard  Siding  no 
railway  officials  are  stationed  whose 
duty  it  is  to  unload  the  trucks  in  order 
to  make  delivery  of  goods,  and  I  am  of 
MMnion  upon  tne  construction  of  the 
143rd  rMTulation  that  when  the  truck  was 
left  at  Orchard  Siding,  the  responsibility 
of  the  defendants  ceased,  and  delivery  to 
the  plaintiffs  was  complete.  The  ques- 
tion to  be  decided  is  whether  the  injury 
to  the  machine  occurred  before  or  after 
the  trxMsk  was  left  at  the  siding.  Three 
witnesses,  Pauke,  Shaw,  and  Wilkins, 
were  callied  for  the  plamtiffs,  who  stat- 
ed thai  they  assisted  to  take  the  case  con- 
taining the  machine  from  the  truok, 
and  they  noticed  that  the  case  was  bro- 
ken beK>re  it  was  taken  off  the  truck. 
None  of  the  defendants*  witnesses  had 
any  knowledge  of  the  condition  of  this 
case,  during  transit  or  upon  its  arrival 


at  Orchard  Siding.  And  although  we 
have  the  statements  of  two  of  the  guards 
that  while  they  were  in  charge  the  work 
of  conveyance  and  shunting  was  done  in 
so  oareful  a  manner  that  nothing  oc- 
curred which  could  account  for  an  injury 
to  all  appearance  the  result  of  a  severe 
blow,  I  cannot  lose  sight  of  the  fact  that 
there  is  no  evidence  relating  to  the  time 
when  the  truck  stood  at  De  Dooms. 
Upon  the  whole  of  the  evidence,  I  do 
not  feel  justified  in  doubting  the  truth- 
fulness of  Paulse,  Shaw,  and  Wilkins, 
and  I  come  to  the  conclusion,  notwith- 
standing the  difficulty  of  accounting  for 
the  injury,  that  the  parcel  was  in  good 
order  when  it  came  into  possession  of  the 
defendants,  and  was  damaged  when  de- 
livered at  Orchard  Siding.  From  the 
description  of  the  damage  to  the  side  of 
the  case,  I  have  no  doubt  that  the  vio- 
lence which  broke  the  case  also 
danuiged  the  machine  through  the  severe 
impact  on  the  pulley.  Upon  discoverv 
of  the  injury,  the  plaintiffs,  on  the  5tn 
of  June,  sent  for  Hudson,  who  found 
the  box  standing  in  a  shed  belonging  to 
the  plaintiffs,  the  lid  was  off,  and  Hud- 
son, who  made  a  casual  inspection,  did 
not  then  detect  the  injury  to  the  nui- 
ohine.  In  his  opinion,  it  would  have 
taken  a  fortnight  to  ascertain  the  injury 
after  the  machine  was  removed  from  the 
siding.  The  machinery  was  not  erected 
until  September,  1903,  when  Hudson, 
who  is  m  the  employ  of  George  Find- 
lay  and  Co.,  made  an  inspection,  and 
on  the  29th  September  he  gave  his  writ- 
ten report,  which  has  been  put  in.  On 
the^  3rd  of  October,  the  plaintiffs  sent  in 
their  (^im  to  the  defendants.  Apart 
from  the  conditions  contained  in  the  re- 
gulations, I  am  of  opinion  that  the  de- 
fendants would  have  been  liable  for  the 
damage  suffered,  and  the  question  re- 
ntains  whether  they  are  absolved  by  the 
conditions  contained  in  the  regular.' ons. 
Regulation  145  reads  as  follows: 
**  Claims  for  loss  and  damage.  All  dam- 
age to,  defect,  or  deficiency,  in  a  con- 
signment must  be  pointed  out  in  writing 
at  the  time  of  its  delivery,  and  the  de- 
partment will  not  entertain  any  claim 
when  this  has  not  been  done.  All  claims 
giving  full  particulars  of  the  loss  or  dam- 
age must  be  sent  in  to  the  Traffic  Man- 
agers. No  claim  for  any  damage,  de- 
fect, or  deficiency  will  be  allowed  anl  iss 
made  within  three  days  after  the  deli- 
very of  the  goods  to  the  consignee." 
When  the  goods  in  question  were  deliver- 
ed to  the  defendants,  the  plaintiffs 
through  their  agents  agreed,  as  appears 
from^  the  consignment  note,  "  that  this 
consignment  is  to  be  received  and  to  be 
conveyed  and  dealt  with  in  accordance 
with  the  terms,^  conditions,  and  regula- 
tions published  in  the  official  Tariff-book 
in  force  at  this  date,  with  which  we  ac- 
knowledge ourselves  to  be  acquainted." 
There  is  no  doubt  upon  the  evidence 
that  in  this  case  Uie  plaintiffii  were,  in 
fact,  acquainted  with  the  regulaiions  ip 


42B 


"OAPB  Tncm*'  LAW  HEPORTS. 


the  Tariff-book.  Seeing  that  the  Roode 
were  delivered  on  the  5th  of  June,  ntd 
notice  ffiven  and  claim  made  on  the  3rd 
of  October,  it  is  clear  that  the  re^rulations 
were  not  obeerved.  But  the  plaintiffs 
contended  that  the  regulation  is  unrea- 
sonable and  bad,  and  not  binding  on 
them.  It  was  held  in  a  case  decided  by 
the  High  Court  of  the  Transvaal  that  the 
question  of  reasonableness  does  not  aiibc 
where  the  regulations  are  ex- 
pressly embodied  in  the  contract 
Detween  the  parties,  as  was  done  in 
this  case.  The  same  opinion  was  ex- 
pressed by  Bramwell  B,  in  the  case  of 
Lewis  V.  the  Oreai  Wettem  Railway  Com- 
pany (20,  L.  J.  Exoh.,  430);  and  I  am 
myself  inclined  to  take  that  view,  but 
it  is  unnecessary  to  decide  that  point  of 
law  now,  because  I  am  perfectly  satis- 
fied that  the  regulation  is  reasonable. 
A  similar  condition  was  held  to  be  rea- 
sonable in  the  case  of  Lewis,  already 
cited,  where  Chief  Baron  Pollock  said : 
"It  is  reasonable  that  the  complainit 
should  be  made  at  once,  so  that  the 
railway  company  may  be  in  a  position 
either  forthwith  to  furnish  proof  that  the 
goods  were  duly  delivered,  or  if  there 
be  any  persons  in  their  employ  guilty 
of  want  of  due  care  or  honesty,  they 
may  be  got  rid  of,  and  not  kept  longer 
in  the  employ  of  the  company,  causing 
the  loss  of  goods  entrusted  to  tneir  care. 
This  is  only  reasonable  and  just.'*  It 
seems  to  me  that  the  present  case  fully 
illustrates  the  reasonableness  of  the  rule, 
because  if  the  damage  to  the  box  had 
been  pointed  out  to  the  defendants  be- 
fore it  was  removed  from  the  truck,  as, 
might  have  been  done,  all  this  litigation 
would  have  been  saved.  After  a  lengthy 
trial  this  Court  has  come  to  the  con- 
clusion that  the  damage  occurred  while 
the  box  was  in  the  custody  of  the  de- 
fendants* but  in  October,  when  the  claim 
was  made,  the  defendants,  whose  duty 
it  was  to  ascertain  if  it  was  well  founded, 
were  hardly  in  a  positon  to  collect  the 
evidence  which  was  considered  neces- 
sary to  decide  the  ({uestion  in  this  Court. 
I  come  to  the  conclusion  that  the  regu- 
lation is  reasonable,  and  formed  part 
of  the  plaintiff's  contract,  and  that  they 
were  not  entitled  to  bring  forward  their 
claim  after  the  lapse  of  the  time  stipu- 
lated in  the  regulation.  Upon  this 
part  of  the  case  judgment  must  be  given 
for  the  defendants.  ^  Upon  the  other 
branch  of  the  case  it  appears  that  on 
Saturday,  March  11,  1905,  the  plaintiffs 
delivered  to  the  defendants  110  cases  of 
gra{>es  at  the  Tweefontein  Station,  for 
carriage  to  Cape  Town,  for  the  pur- 
pose of  their  being  dispatched  by  Wed- 
nesday's mail  steanier  to  England.  These 
cases  were  loaded  in  a  truck,  which  the 
plaintiffs  expected  would  be  attached 
to  a  goods'  train  passing  Tweefontein  at 
1  o'clock  on  Saturday  afternoon:  it  was 
also  the  intontion  of  the  defendants'  ser- 
yants  to  attach  the  truck  to  thai  train. 


There  t  wm  no'  exprcw  agwwmenfc  Hulk 
this  abould  be  done,  but  it  was  in  tbe 
ordinary  courae  of  business  to  send  fruit 
by  the  1  o'clock  goods  train.  The 
grapeb  were  intended  for  export  by  the 
next  mail  steamer,  and  that  fact  wi|i 
well  known  to  the  defendants'  servants, 
who  received  the  goods  for  carriage,  and 
I  think  it  should  be  taken  ae  put  of 
the  undertaking  on  the  part  of  defend- 
ants' servants  that  they  would  use  due 
dili^nce  to  deliver  the  grapes  in  Cape 
Town  in  time  to  be  shipped.  Undier 
ordinary  circumstances,  fruit  arriving  mM 
the  ship's  side  on  l/uesday  afternoon 
would  be  in  time  for  shipment.  By  some 
oversight  the  truck  containing  the  grapes 
was  not  sent  on  by  the  1  o'clock  train, 
which  arrived  at  Cape  Town  on  Sunday 
morning,  but  was  dispatched  on  Satur- 
day evening,  and  arrived  here  at  about 
midday  on  Sunday,  and  on  Monday 
morning  the  grapes  were  delivered  to 
the  Harbour  Board,  acting  as  the  plain- 
tiff's agents.  There  was  ample  time  to 
have  the  grapes  placed  on  board 
the  mail  steamer  if  no  special 
obstacle  existed.  But  the  plain- 
tiffs say  there  was  a  further  duty 
under  the  contract  imposed  upon 
the  defendants.  It  appears  that  tlie 
Union-Caatle  Gompany  refuse  to  take  on 
board  and  place  m  their  cool  cEhamfaer 
any  fruk  wliich  has  not  been  in  a  cool 
chsimiber  for  at  least  48  hours  immedi- 
sitely  prior  to  bein^  received  on  board. 
That  would  necessitate  (the  fruit  being 
in  a  cool  ohamiber  by  Sunday  evening 
in  order  to  be  shipped  on  Tuesday  even- 
ing, the  latest  time  for  receiving  fruit 
on  boaird.  The  plaintiffs  say  me  de- 
fendants by  their  contract  undertook  to 
deliver  the  grapes  to  the  Harbour  Board 
on  Sunday  morning,  in  time  to  allow- 
of  their  being  plaoed  in  the  Harbour 
Board's  cooling  chamber  before  Sunday 
evening,  and  through  their  default  the 
gnapes  were  only  delivered  on  Monday 
morning,  in  consequence  of  which  the 
ship  recused  to  take  them.  It  is  quite 
clear  that  there  was  no  express  agree- 
ment to  deliver  this  particular  consign- 
ment of  grapes  within  the  time  above 
meiKtioned,  but  it  was  contended  that 
the  defendants  were  fully  aware  of  the 
e(hip'8  rule,  and  made  their  contract 
subject  to  it,  and  undertook  as  an  im- 
plied condition  to  carry  the  goods  so  as 
to  meet  the  rule.  I  do  not  say  now  that 
if  any  servant  of  the  Railway  Depart- 
ment had  made  an  express  contract  in 
those  terms  that  it  would  have  been 
binding,  in  view  of  the  authorised  re- 
gulations on  the  subject,  nor  do  I  find 
that  knowMge  of  the  ship's  rule  would 
have  introduced  the  above-mentioned 
condition  as  an^  implied^  agreement.  It 
is  unnecessary,  in  tne  view  I  take  of  the 
case,  to  decode  those  questions.  In  my 
opinion,  the  plaintiffis  have  failed  to 
prove  that  the  defendants  knew  of  the 
ship's  rule,  and  there  is  pontire  evidenoe 
given  hj  reUsMe  witaieiMes  tlnit  they  dW 


''GAPE  TIMES"  LAW  BEP0RT8. 


427 


not  I  oome  to  the  oonclueion  that 
when  (he  delendaivts  were  prepared  to 
doliver  the  gooda  to  th«  Harbour  Board 
on  Sunday  'Wternoou  they  had  performed 
their  oontraot.  and  that  the  delivery  oii 
Mooday  mormng  was  a  good  delivery 
within  the  terms  of  their  coxktract.  I 
have  said  that  it  appeared  to  me  that 
ftt  most  there  warn  an  undertaking  to 
deliver  before  the  mail  steamer  left,  but 
it  most  not  be  taken  that  I  decide  that 
eooh  an  undertaking  on  the  part  of  any 
serrant  of  the  Rauiray  Department  is 
binding  upon  the  defendants,  in  view 
of  the  condxtions  contained  in  their  re- 
gpktioDs,  especially  in  their  regulaltion 
No.  154,  in  force  at  the  time.  Judgment 
is  given  in  both  olainui  for  the  defen- 
dants, with  oofifts. 

[Plaintiff's  Attorneys:  Syfret,  Godlon- 
ton  and  Low.  Defendants:  Reid  and 
Nephew.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting  Chief  Jnstioe,  the 
Hon.  Sir  John  Buchanan.] 


ADMUSIONS. 


f       1906. 
I  June    8th. 


Mr.  Burton  moved  for  the  admission 
(tf  Wm.  Abercrombie  Shaw  as  an  attor- 
ney and  notary. 

AppUoation  granted  and  oaths  ad- 
nunistered. 

Mr.  Tan  Zyl  moved  for  the  admission 
of  Abraham  Kriel  le  Roux  as  an  attor- 
ney and  notary. 

Api^ioation  granted  and  oaths  ad- 
minirtered. 

Mr.  Bouz  moved  for  the  admission  of 
Gerhardns  Petrus  Vosloo  as  an  attor- 
ney, and  asked  for  leave  to  the  appli- 
cant to  be^  sworn  in  Pretoria. 

i^^ication  granted,  subject  to  the 
eppiicant  appearing  personally  to  take 
the  oaths. 


PROVISIONAL  ROLL. 

TUBKIHGTON  V,  HUMPHBET8. 

Mr.  Long  moved  for  provisional  sen- 
^we  on  a  promissory  note  for  £25,  less 
»15  paid  on  account,  together  with  in- 
terest. 

Order  granted. 

El 


GEBBBB  v.  VON  WITT.. 

Mr.  Douglas  Buchanan  applied  for 
a  provisional  order  of  sequestration  to 
bo  diecharj^ed. 

Application  granted. 


HODGES  AND  CO.  V.  MUNDRICH. 

Mr.  J.  R  R.  de  Villiers  moved  for 
the  final  adjudication  of  the  defendant's 
estate  as  insolvent. 

Order  granted. 


VAN  DEB  BTL  AND  CO.  V.  BACKS  AND 
LIVEBSON. 

Mr.  Payne  moved  foi   the     discharge 
of  a  provisional  order  of  sequestration. 
Provisional  order  discharged. 


NAUDE  V.  NOOBDEN. 

Mr.  ^  Douglas  Buchanan  moved  for 
provisional  sentence  on  a  promissory 
note  for  £14  15s.,  with  interest 

Order  granted. 


WALKEB  V.  LUBIE. 

Mr.  Lewis  moved  for  a  provisional 
order  of  sequestration  to  be  made 
final. 

Order  granted. 


ILLIQUID  ROLL. 


GABIEB  V.  A  J  AM. 


f       1906. 

I  June    8th. 


Service,    affidavit  of — Notice   of 
bar. 

Judgment  cannot  be  granted 
under  Rule  31 9 ^  uidesa  an 
affidavit  of  service  of  bar  is 
produced.  The  mere  service 
is  not  sufficient. 


Mr.  Douglas  Buchanan  moved  for 
judgment,  under  Rule  319,  in  default  of 
plea. 

Buchanan,  A.G.J.^  said  thai  there  waa 
no  affidavit  of  service  of  bar  upon  the 
defendant. 

Ordered  to  stand  over. 

Later  in  the  day,  Mr.  Buchanan  pre- 
sented an  affidavit  by  the  plaintifTs  attor- 
ney, stating  that  he  baa  sent  a  notice 
of  bar  to  the  respondent  at  her  address. 

Buchanan,  A.C.J.,  said  that  the  ser- 
vice of  bar  was  not  sufficient.  The  mat- 
ter must  stand  over  until  Thursday  next, 
pendmg  produotaun  of  an  affidavit  of 
better  service. 


428 


«f 


CAPE  TIMB8"  LAW  RBPOBTS. 


VBABBR  AND  CO.  V.  UDWIK  BBOfi. 

Mr.  Dougka  Buchanan  moved  for 
judgment,  under  Rule  329d,  for  £267 
12s.,  goods  Bold  and  delivered, 
with  interest,  a  tempore  morce,  and  costs. 

Order  granted. 


VAN  ZYL  V.  MORITZ 

Mr.  De  Waal  moved  for  Judgment 
under  rule  329  (d)  for  £100,  being 
amount  paid  at  the  special  instance  and 
reouest  of  the  defendant. 

&rder  granted. 


VURBAT,  WBIOHT  AND  MOLTBNO  V. 
POBTBB. 

Mr.  P.  S.  T.  Jones  moved  for  judg- 
ment under  rule  319,  in  terms  of  de- 
claration for  account  of  moneys  col- 
lected for  plaintiff  as  agent  for  debate 
and  payment  of  amount  found  to  be 
due   upon  debate. 

Buchanan,  A.C.J.,  said  thai  the  case 
would  come  under  Rule  329d. 

Judgment  granted  in  reapect  of  sum- 
mons, as  jprayed,  account  to  be  ren- 
dered withm  14  days. 


DUNBLL,  BBDRN  AND  CO.  V.  NIEBUBO. 

Mr.  Swift  moved  for  judgment  under 
rule  329  (d)  for  £1,971  48.,  balance  of 
account  for  goods  sold  and  delivered, 
with  interest,  a  tempore  morce t  and  costs. 

Order  granted. 


DA  VIES  BB08.  V.  ISRAEI^OHN. 

Dr.  Greer  moved  for  judgment  under 
rule  319  for  £45,  balance  of  rent  due, 
with  interest,  a  tempore  m^rce,  and  costs. 

Order  granted. 

Dr.  Greer  said  he  took  it  that  the  tem- 
porarv  interdict  against  the  goods  in 
the  shop  would  continue  until  the  writ 
of  attachment  was  issued. 

Buchanan,  A.C.J.,  said  that  execution 
could  be  taken  out  at  once,  and  the  in- 
terdict would  still  stand. 


REHABILITATION. 


Mr.  J.  E.  R.  de  Villiers  aoplied  for 
the  discharge  of  Juliana  Pauline  Vogts 
and  for  her  reinvestment  with  the  es- 
tate, the  creditors  having  accepted  an 
offer  of  comi>osition. 

Order  granted. 


GENERAL  MOTIONS. 


Ex  parte  BOTHA. 


f       1906. 
I  June    8th. 


Dr.  Greer  moved  for  a  rule  met 
under  the  Derelict  Lands  Act  to  be 
made  absolute. 

Rule  made  absolute. 


Ex  parte  TOWN  COUNCIL  OF  BIVBBS- 

DALS. 

Mr.  Sutton  moved  for  a  rule  nUi 
under  the  Derelict  Lands  Act  to  be 
made  absolute. 

Rule   made   absolute. 


Ex  parte  DB  WAAL. 

Mr.  De  Waal  moved  for  a  rule  nut 
under  the  Derelict  Lands  Act  to  be 
made  absolute. 

Rule  made  absolute. 


SAVAGE  AND  SONS  V.  ESTATE  ULTATK. 

Sir  H.  Juta.  K.C.,  moved  for  leave 
to  appeal  to  tne  Privy  Council  on.  be- 
half ol  Savage  and  Sons,  who  were  de- 
fendants in  the  action. 

Mr.  J.  E.  R.  de  ViUiers  (for  the  re- 
spondent) said  that  the  petition  did  not 
set  out  that  the  matters  at  issue  amount- 
ed to  £500. 

Sir  H.  Juta:  The  amount  is  between 
£3;000  and  £4,000. 

Leave  to  appeal  granted  on  the  usual 
terms,   subject    to    applicants    filing    an 

affidavit   that  the  amount    in    suit 

over  £500. 


KABOO  BOBINO  CO    V.  HALI*. 

Mr.  Lewis  moved  for  leave  to  purge 
default,  and  to  file  a  plea.  Mr.  Ij  ping- 
ton  was  for  the  respondent. 

Mr.  Lewis:  All  that  the  applicant 
companv  can  be  required  to  show  is  a 
reasonable  cause  for  their  default,  and 
that  they  have  a  bona  fide  defence.  The 
plaintiff  objects  that  defendants'  stffi- 
davits  do  not  enter  sufiioiently  into  de- 
tails. They  certainly  do  show  that  de- 
fendants'  have  a  bona  fide  defence. 

Mr.  Upington  was  not  heard. 

Buchanan,  A.C.J. :  The  plain- 
tiff (Hall)  took  out  a  summons 
on  tne  27th  February,  and  after 
that  defendant  tendered  £112  odd. 
On  the  15th  April  defendant  was  in- 
formed by  plaintiflTs  attorneys  that  the 
tender  would  be  accepted  provided  be 
paid  costs  to  date.  Defendant  did  no- 
thing on  this,  and  thereafter  on  the  4th 
May,  he  was  served  with  notice  of  bar, 
not  having  filed  his  plea,  and  on  the  9th 
May  judgment  was  taken  against  him. 
He  says  that  at  that  time  he  was  tra- 
velling about,  and  w«s  unable  tp  attend 


"CAPE  TIMES »•  I*AW  REPORTS. 


429 


(o  the  matter  in  East  London.  He  bad 
had  ample  notice  of  the  case,  and  he 
•dmittea  a  debt  within  £9  of  the  plain- 
tiff's claim,  and  made  a  tender.  The 
tender  was  accepted,  and  defendant  did 
not  carry  out  hia  arrangement.  I  cer- 
tainly think  there  are  no  bona  fide 
grrounda  shown  for  the  application,  and 
the  Court  will  therefore  make  no  or- 
der, applicant  to  pay  oostc. 


JSx  parte  POWRIB. 

Mr.  Sutton  moved  for  the  appoint- 
ment of  Mr.  F.  R.  Elliott  aa  trustee 
under  an  ante-nupt»al  contract. 

Order  granted  as  prayed. 


Ex  parte  BLLIOTT. 

Mr.  Sutton  moyed  for  the  appointment 
of  Mr.  F.  R.  Elliott  to  be  trustee  under 
an  ante-nuptial  contract. 

Order  granted  as  prayed. 


PEABSON  y.  WBRNBERO  AND  DECKER. 

Mr.  Douglas  Buchanan  moved  for  an 
order  of  attachment,  by  reason  of  the 
respondents'  contempt  of  Court  in  fail- 
ing to  obey  an  order  to  pass  transfer  of 
rertain  property  at  Retreat,  or  to  re- 
fond  the  amount  paid  by  the  applicant 
to  the  reepondents. 

Order  of  attachment  granted  against 
Wemberg,  and  costs  agafnst  botn  re- 
epondents. 

Buchanan,  A.C.J.,  -said  that  there 
would  be  no  order  of  attachment  against 
Deecker.^  as  he  had  not  been  served 
with  notice  of  the  application. 


VAN  DBR  HOPF  AND  VISCHBR  V.   BECHU- 
ANALAKD  B8TATB  8YNDICATB. 

Sir  H.  Juta,  E.C.,  moved  for  leave  to 
•ne  \}j  edictal  citation  for  transfer  of 
certain  property,  or  in  the  alternative 
for  £  1,000  damages. 

Order  granted,  attaching  a  certain 
fsrai  ad  fundandam  jurisdirtionem^  cita- 
tion to  be  returnable  on  the  15th  August, 
costs  to  be  costs  in  the  cause. 


VADA8Z  V.  YADASZ. 

Mr.  Burton  nkoved  for  the  petitioner 
(wife  of  the  resiwndent)  for  an  order 
for  two  minor  children  to  be  delivered 
up  to  her.  Dr.  Greer  was  for  the 
K»«pondent. 

Mr.  Burton  said  that  a  divorce  suit 
wss  pending  between  the  parties,  in 
which  the  present  applicant  was  the  de- 
fendant. She  declared  that  she  was 
absolutelv  innocent  of  the  charges  made 
H^imi  her.    The  children   had   in   the 


meantime  been  removed  to  Nasareth 
House,  by  direction  of  their  father. 

Dr.  Greer  applied  for  a  postponement 
of  the  application. 

Application  iwstpoiied  until  the  16th 
inst.,  applicant  in  the  meantime  to  have 
access  to  the  children  at  all  reasonable 
times. 


Hx  parte  WILLIAMS. 

Mr.  Sutton  moved  for  petitioner  for 
leave  to  sue  in  forma  pauperii  for  a 
decree  of  divorce  against  hia  wife. 

Rule  nm  granted,  to  be  returnable 
on  the  15th  inst. 

Pottea  (June  15th).  Rule  made  abso- 
lute. 


HERMANN  AND  CANARD  V.  DA  BILYA 
AND  B0DRIQUB8. 

Mr.  Douglas  Buchanan  moved  for  the 
rule  nui  to  be  made  absolute  directing 
respondents  to  pay  over  certain  money. 

Rule  made  absolute. 


JBw  parte  MOBUM  BBOfl. 

Mr.  Gutsche  moved  for  leave  to  sue 
by  edictal  citation,  Oliver  Charlea  Hal- 
lam  for  a  debt  of  £96.  Petitioners  were 
at  Mount  Fletcher,  and  Hallam  was  now 
believed  to  be  in  Natal. 

Leave  to  sue  granted,  personal  service, 
failing  which  citation  to  be  published 
once  in  the  *'  Kokstad  Advertiser "  and 
"Natal  Witness,"  and  to  be  returnable 
on  August  1. 


VAN  RTN  WINE  AND  SPIRIT  CO.  V. 
LEDERMAN. 

Sir  H.  Juta,  K.C.,  moved  for  a  rule  niH 
to  be  made  absolute,  restraining  the  re- 
spondent from  stocking,  buying,  or  in 
anv  way  dealing  in.  Colonial  wines  and 
spirits,  except  those  purchased  direcb 
from  the  petitioners,^  and  from  advertis- 
ing the  Colonial  wines  and  spirits  of 
Green  and  Co.,  or  any  other  persons  ex- 
cept the  petitioners.  It  appeared  that 
the  respondent  was  the  lessee  of  a  certain 
bottle  store  at  the  corner  of  Harrington 
and  Commerical  streets.  Cape  Town, 
and  that  the  applicants  alleged  that  they 
had  a  servitude  on  the  premises  binding 
the  lessee  to  purchase  Colonial  wines 
and  spirits  for  them.  Petitioners  pro- 
posed to  institute  an  action  to  enforce 
the  servitude. 

Mr.  Upington  read  a  replying  affidavit 
by  Hyman  Lederman  (the  respondent), 
and  aUo  an  affidavit  by  Mr.  Archibald 
Bultitude,  of  Messrs.  Onleson's  Ltd.  It 
was  stated  in  the  affidavits  that  Leder- 
man Ruoeeded  Isaac  Purcell  aa  lessee 
of  the  premises,  and  that  the  evidence 
of  the  latter  would  be  important.       He 


430 


"OAPB  TniES**  LAW  REPORTS. 


WM,  however,  abnnt  from  the  Colony, 
and  rMpondent  asked  for  a  poaipono- 
menk.  Puroell  had  a  letter  from  the 
petitioners,  which  was  of  great  import- 
ance, and  yaried  the  original  agree- 
ment. 

Counael  having  been  heard  in  argu- 
ment on  the  facts. 

Buchanan,  A.  C.  J.,  said  that  the  rule 
would  be  made  absolute,  pending  an  ac- 
tion to  be  forthwith  instituted  by  the 
applicants,  costs  to  abide  the  result.  He 
adaed  that  it  was  a  question  for  the  ap- 

flicants    whether    Ohlsson's    Breweries, 
td.,  should  not  be  joined  with  Leder- 
nmn  as  co-defendants. 


TBUBTRE  TORQUE  ELECTRICAL  ENOI- 
NBBRIMO  CO.  V.  HERRON. 

Sir  H.  Juta,  K.C.  (with  him  Mr.  Gar- 
diner) moved  for  a  commission  de  bene 
eat  to  take  the  evidence  of  Walter  Ber- 
nard Phelp,  of  Cape  Town,  and  John 
Edward  van  Stittert  Neale,  late  of  Cape 
Town,  and  now  of  Johannesburg. 

Mr.  Alezandf*r  (for  the  respondent  and 
plaintiff  in  ti^e  action)  oppcwed  the  ap- 
plication so  far  as  Mr.  Neale  was  con- 
cerned. 

Sir  H.  Juta  said  that  this  case  was 
quite  unique.  The  pleadings  showed 
tnat  it  was  essential  that  Mr.  Neale' s 
evidence  should  be  preserved.  It  ap- 
peared that  the  Torque  Company  had 
certain  rights  with  the  Exhibition  people 
to  carry  out  the  electric  light 
installation,  and  ihis  Torque 
Company  was  a  partnership,  in 
which  the  defendants  alleged  that  the 
plaintiff  was  a  partner.  Plaintiff  de- 
nied that.  Then  that  partnership  was 
made  over  to  a  company  called  the 
Neale-Herron  Company.  These  two 
gentlemen  held  all  the  shares,  and  they 
formed  &  compauy  to  carry  out  this  con- 
tract with  the  Exhibition.  The  Torque 
Company  and  the  Neale-Herron  Com- 
pany occupied  offices  in  the  same  build- 
mg.  The  Torque  Company  contracted 
all  the  debts,  and  the  Neale-Herron  Com- 
pany received  all  the  receipts. 

[Buchanan,  A.  C.  J. :  A  very  good  ar- 
rangement] 

Mr.  Alexander  submitted  that  it  had 
not  been  shown  on  the  affidavits  that 
there  was  any  danger  of  Neale's  evi- 
dence beinjg  lost 

Application  granted,  the  evidence  of 
Mr.  rhelp  to  be  taken  in  Cape  Town  be- 
fore Mr.  Advocate  Giddy,  R.C.,  and  of 
Mt.  Neale  to  be  taken  in  Johannesburg 
before  Mr.  Advocate  Percival  Smith. 


Ex  parte  ESTATE  schoolman. 

Mr.  Alexander  moved  for  the  appoint- 
ment of  Mr.  A.  N.  Foote  to  be  provi- 
siooal  trustee  in  this  estate,  with  power 


1 

to  carry  out  lepaira  to  the  properiy,  and 
collect   the   rents. 
Order  granted  as  prayed. 


Ex  parte  BALL. 

Mr.  Swift  reported  that  he  had  certi- 
fied in  reference  to  this  matter,  which 
was  an  application  for  leave  to  sue  in 
forma   pauperis   for  divorce. 

Rule  nisi  granted,  to  be  returnable  on 
the  29th  inst 

Po$tea  (June  30th). 

Mr.  Swift  moved  on  the  petition  of 
Christina  Jinette  Ball  for  the  rule  nwt 
calling  upon  her  husband,  Walter  Thomas 
Ball,  Elast  London,  to  show  cause  why 
ihe  should  not  be  granted  leave  to  sue 
in  forma  pauperis  for  divorce,  to  be 
made  absolute. 

[Buchanan,  A.C.J. :  You  are  not  aak- 
ing  for  any  money  from  defendant?] 

Mr.  Swift:  We  simply  ask  for  leave. 
I  may  say  that  a  letter  has  been  receiv- 
ed from   defendant  admitting  the  adul- 

[Buchanan,  A.d.J. :  (reading  the  let- 
ter): What  does  he  mean  by  this  sen- 
tence: *'It  will  also  be  of  interest  to 
know  that  the  children  were  placed  on 
the  scaffold  with  me  in  Cape  Town,  and 
they  were  hatless,  bootless,  and  in  a 
shookinff  condition.*'] 

Mr.  Swift:  I  dont  understand  that. 
The  children,  I  understand,  are  living 
with  the  wife's  parents  at  Worcester,  or 
somewhere  up-country. 

[Buchanan,  A.C.J. :  One  thing  that  he 
says  apparently  is  thait  the  woman  had 
monev  in  the  Savings  Bank,  and  she  has 
withdrawn  it  She  now  says  that  she  is, 
apparently,  destitute.] 

Mr.  Swift:  Tes.  She,  at  present,  I 
believe,  is  a  housemaid  or  servant  of 
some  sort  in  Cape  Town. 

Rule  made  absolute,  Mr.  Swift  to  act 
as  counsel  and  Mr.  P.  M.  Cloete  as  at- 
torney in  the  forthcoming  trial. 


BBOUOHTON  V.  BROUOHTON. 

Mr.  Upington  moved  for  an  extension 
of  the  return  day  of  a  citation  calling 
upon  the  reepondent  to  show  cause  why 
the  petitioner  should  not  be  granted  a 
decree  of  divorce. 

Return  day  of  citation  extended  until 
the  1st  August,  publication  to  be  as 
directed  in  the  original  application,  and 
trial  to  be  set  down  for  the  11th  August. 


HOLLER  V.  WATERHBTER. 

Mr.  p.  S.  T.  Jones  moved  for  provi- 
sional sentence  upon  a  mortgage  bond 
for  JS310,  the  bond  having  become  due 
by  reason  of  notice,  and  for  the  property 
hypothecated  to  be  declared  exeoutable. 

Mr.    Gardiner  appeared  on  belfiUf  qf 


a 


tAPE  TlMES"   LAW  REPOtlTS. 


4^1 


the  raspondent,  and  moTed  for  tm 
AineDdment  of  the  bond  to  strike  out  the 
clause  relating  to  three  months*  notice 
being  given.  Petitioner  (F.  G.  Water- 
mejer),  in  an  affidavit,  6aid  that  Mr. 
MoUer  agreed  to  let  him  have  the  bond 
as  long  as  he  |.aid  the  interest,  and  that 
he  entered  into  the  agreement  without 
knowing  of  the  existence  as  to  conditions 
of  notice. 

Mr.  Jones  read  a  replying  affidavit,  in 
which  it  was  stated  that  the  applicant 
wa*  an  experienced  man  of  business,  and 
that  the  coudition  was  quite   usual. 

Kr.  Gardiner  said  that  Mr.  MoIIer  was 
trying  to  take  advantage  of  the  error  of 
the  applicant  in  signing  under  the  im- 
pression that  the  bond  embodied  the 
agreement  that  he  entered  into  with 
Mr.  Moller. 

Mr.  Jones  ssid  that  Waiermeyer  had 
deliberately  signed  a  document  with  his 
eyes  open,  and  which  he  must  have  been 
presumed  to  have  read.  Mr.  Moller 
was  no  partv  to  the  signing  of  the  docu- 
meot.  the  bond  being  signed  by  Mr. 
Watermeyer  and  Mr.  Moller's  power  of 
attorney.  He  submitted  that  the  appli- 
cant had  mistaken  his  remedy,  and 
that  such  a  document  oould  not  be 
amended  upon  motion.  The  applicant 
should  proceed  by  action. 

Buchanan,  A.G.J.,  said  that  in 
the  absence  of  any  dispute  as  to 
the  verbal  agreement  entered  into  be* 
tween  the  parties,  there  was  nothing  on 
the  affidavits  to  prevent  the  Gourt  now 
dealing  with  the  matter.  He  failed  to 
see  any  necessity  for  going  into  an 
action.  An  order  would  be  made  for 
tlM  amendment  of  the  bond  by  striking 
out  the  words  "  and  shall  be  obliged  ^ 
and  **  or  receive."  The  application  of 
Watermeyer  for  an  amendnocnt  of  the 
bond  would  be  granted,  but  no^  order 
would  be  made  as  to  costs  in  this  mat- 
ter The  application  of  Moller  for  pro- 
visional sentence  would  be  refused,  with 
costs. 


He  parte  R006. 

Mr.  Sutton  moved  for  the  appointment 
of  petitioner  as  provisional  trustee  in 
the  inscJvent  estate  of  Dorothea  Loui«a 
PfaU,  widow. 

Older  granted  as  prayed,  costs  to 
cone  out  of  the  estate. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buohamak.] 


KBX  ▼.  DB  WET  AMD  OTHERS 


I         1905. 

'I  June  9th. 

Mr.  Burton  moved,  on  behalf  of 
Theunis  de  Wet  and  five  others,  who  are 
awaiting  trial  on  charges  of  murder 
and  assault  at  Villiersdorp,  to  be  ad- 
mitted to  bail. 

Mr.  Nightingale  was  for  the  Crown. 

It  appeared  that  the  prisoners  had 
been  committed  for  trial  at  Swellendam 
on  a  charge  of  assaulting  one  John 
Rooi,  so  as  to  cause  his  death,  and  of 
assaulting  two  others.  The  prisoners 
were  sent  to  the  gaol  at  Galeaon,  and 
an  application  for  bail  made  to  the  Resi- 
dent Idagistrate  at  Galedon  had  been 
refused. 

Mr.  Burton  said  that  there  would  be 
prejudice  to  the  prisoners  in  the  prepar- 
ation of  their  defence  if  they  were  de- 
tained in  custody  pending  the  trial. 

Mr.  Nightingale  said  that  the  posi- 
tion of  the  Attorney-General  was  that 
the  application  was  premature,  be- 
cause the  matter  was  at  the  present  mo- 
ment being  further  investigated. 

[Buchanan,  A.C.J. :  You  mean  the 
preparatory  ezaminaiion  is  to  be  re- 
opened ?] 

Mr.  Nightingale:  That  is  so.  Counsel 
went  on  to  sav  that  he  was  quite  pre- 
pared to  say  tnat  the  evidence  was  such 
that  De  Wet  might  reasonably  be  ad- 
mitted to  bail.  He  thought  that  a  bond 
of  £100  would  be  sufficient  in  that  case. 
He  objected  to  the  granting  of  bail  in 
regard  to  the  other  prisoners. 

Mr.  Burton  said  that  there  was  really 
no  evidence  against  the  other  prisoners 
in  reference  to  the  alleged  assault  on 
the  man  who  died,  except  against  the 
prisoner  Zimmerman. 

Buchanan,  A.C.J.,  said  that  the  appli- 
cation would  be  post^ned  until  the  con- 
clusion of  the  preliminary  examination, 
when  it  could  be  renewed  if  the  At- 
torney-General determined  to  proce<^d 
with  the  indictment  of  the  prisoners.  De 
Wet  would  be  admitted  to  bail,  to  the 
satisfaction  of  the  Resident  Magistrite 
of  Caledon,  in  his  recognisance  of  jlIIOO, 
and  one  surety  in  a  like  sum.  The  ap- 
plication so  far  as  the  other  prisoners 
were  conoemed,  would  be  postponed  sitie 
die,  until  the  conclusion  of  the  pre- 
paratory examination. 


JESr   parte   THE    IHSOLVEUT    ESTATE 
SEAGULL. 

Mr.  Gardiner  applied,  on  behalf  of  the 
trustee  in  the  insolvent  estate    Seagull^ 


432 


ti 


CAPE  TIMES'*  LAW  AEPOATS. 


for  an  extension  of  the  oomniiiision  al* 
ready  gr&nted  to  take  the  eyidence  of 
certain  additional  witnesses,  so  as  to 
include  the  clerks  employed  at  four  oi 
the  local  banks  already  mentioned,  the 
manager  and  accountant  of  the  Robin 
son  Bank,  and  the  trustee  in  the  insol- 
vency. 

Buchanan,  A.C.J. ,  said  he  thought  the 
application  was  too  Sweeping.  Power 
would  be  given  to  examine  the  maniger 
and  accountant  of  the  Robinson  Bank, 
and  the  trustee  in  insolvency  (Mr.  J. 
D.  Simons).  If  others  were  desired  to 
be  included,  a  further  application  should 
be  made  to  the  Court. 


HIGBON  V.  HIGSON. 

This  was  an  action  for  restitution  of 
conjuqral  rights,  brought  by  the  wife 
against  her  husband,  William  R.  Dixon, 
of  Cape  Town,  on  the  ground^  of  his  un- 
lawful and  malicious  desertion.  Mr. 
Russell  was  for  the  plaintiff;  there  was 
no  appearance  for  the  defence. 

Mr.  Russell  read   the  evidence  of  the 

f plaintiff,  taken  on  commission  in  Eng- 
and,  which  was  to  the  effect  that  her 
husband  had  not  contributed  to  the  sup- 
port of  herself  and  children  since  1899. 
Although  he  had  been  in  South  Africa 
for  some  years,  he  had  never  asked  hei 
to  join  him. 

Decree  of  restitution  granted,  defen- 
dant to  return  to  or  receive  the  plaintiff 
on  or  before  the  31st  August,  failing 
which,  rule  to  issue  calling  upon  the 
defendant  to  show  oause  on  the  l^Jlj 
October  why  a  decree  of  divorce  should 
not  be  granted,  personal  service  to  be 
effected. 

FOX  V.  FOX. 

This  was  an  action  brought  by  Walter 
Fox  of  Cape  Town,  and  late  of  Kim- 
berley  acrainst  hie  wife,  Evelyn  Frances 
Fox  (born  Glynn),  for  restitution  of  con- 
jugal rights,  failmg  which,  a  decree  of 
divorce,  by  reason  of  her  malicious  de- 
sertion. Mr.  Upington  was  for  the 
plaintiff;  there  was  no  appearance  for 
the  defendant.  ,     ,  • 

Decree  of  restitution  fjpranted,  defen- 
dant to  return  to  the  plamtiff  on  o'  be- 
fore the  3(Hh  June,  failing  which  »  rule 
to  issue  calling  upon  the  defeniint  to 
show  oause  on  the  13th  July  w'  •  a  de- 
cree erf  divorce  should  not  be  j,'Tantod 
as  prayed. 

Poatea  (July  13th).    Decree  absolute 


NUTTALL  AND  CO.    V.    CAPE  TOWN    GAS 
LIGHT  AND  COKE  00. 

Contract — Arrangement  termina- 
ble at  the  discretion  of  one 
party. 

Thifi  was  an  action  brought  by  E.  Nut- 
tall  and  .Co.,  contractors,   Cape  Town, 


S gainst  the  Cape  Town  Gba  Light  and 
oke  Co.  to  recover  a  sum  of  £370  13s. 
2d.,  damages  for  alleged  breach  of  con- 
tract by  reason  of  tne  defendant  com- 
pany's failure  to  supply  tar  required  in 
the  carrying  out  oi  street  contracts  to 
the  CSty  Council. 

The  declaration  set  out  that   on    the 
11th    February,    1904,    plaintiffs  entered 
into  an  agreement  with  the  defendants 
whereunder  the  defendants  undertook  to 
supply  from  their  .works  at  Cape  Town 
and  Woodstock  to  the  plaintiffs  a  suffi- 
cient quantity    of    tar  for  the    require* 
mente  of  their  business  up  to  an  amount 
of  16,000  gallons  per  month  at  4d.  per 
gallon.     Tkt  was  so  supplied  from  time 
to  time.     Plaintiffs,  for  the  purposes  of 
the    aforesaid    agreement,    erected     at 
Woodstock,  with  the  consent  of  the  de- 
fendants,   and  on  the   defendants'   pre- 
miees,  certain  tanks,  and  the  defendants 
agreed    to    pump   the   tar   supplied   by 
them  to  the  plamtiffs  into  these  tsnks, 
which   had  cost  £59  ITs.  4d.     On  July 
12,  1904,  the  defendants,  without  reason 
able  notice,  refused  to  supply  the  plain- 
tiffs with  any  tar,  and  repudiated     the 
agreement.      Plaintiffs,   in   consequence 
purchased  tar  elsewhere  in  Cape  Town 
and  from  abroad  up  to  the  30th  Decena- 
ber.   1904,   to  a  total  amount  of  25,060 
gallons,    and  they   claimed   as  damages 
the   difference    in   the  cost  of   this    tar 
and  the  contract  price  of  4d.,  and  also 
£59  17s.  4d.,  the  cost  of  the  tanks  afore- 
said.   Plaintiffs  prayed  for  judgment  for 
£370  13s.  2d.  as  damages. 

Defendants,  in  their  plea,  said  that 
on  the  11th  February,  1904,  arrangre- 
ments  were  entered  into  between  the 
parties  as  to  the  price  of  tar  to  be 
bought  by  the  plaintiffs,  and  sold  by 
the  defendants,  vis.,  4d.  per  gallon,  dc- 
fendants  to  do  the  loading  at  Cape 
Town  and  plaintiffs  to  do  the  loading 
at  Woodstock.  Defendants  denied  that 
any  agreement  was  entered  into  to 
supply  the  defendants  with  16,000  gal- 
lons per  month  or  any  definite  amount. 
The  plaintiffs  erected  the  tjuaks  at  their 
own  cost.  Thereafter,  owing  to  the 
plaintiffs  having  no  further  tar  to  sell, 
they  supplied  no  more  tar  to  the  plain- 
tiff6.  Defendants  prayed  for  the  claim 
to  be  dismissed  with  costs. 

Mr.  Close  (with  him  Mr.  Swdfi)  was 
for  the  plaintiff;  Sir  H.  Juta,  K.C 
(with  him  Mr.  P.  S.  T.  Jones),  was  for 
the  defendants. 

Edmund  Nuttall,  a  partner  in  the 
plaintiff  firm,  said  that  his  firm  carried 
on  business  m  England.  In  1903  there 
were  negotiations  for  the  contract  with 
the  City  Council  for  the  making  up  of 
streets  and  side-paths.  He  had  a  re- 
port from  one  ot  the  firm's  representn- 
tives  Tar  would  be  largely  required 
for  the  side-walks.  In  July,  1903,  wit- 
ness came  out  to  see  about  a  tender 
being  put  in  for  the  contract,  and  in 
that  month  hi^  firm  entered  into  a  con- 
tract with  the  Council  for  making  up 
the  unadopted  streets.      The  foo1|»aths 


*«cAi*B  TlilES**  Law  ttEPoftm 


488 


irere  to  be   of    tar    macadam.      On  the 
15th  July   witness  saw  Mr.   Reiily,    the 
secretary    of    the    comfNUiy,    about    the 
supplv  of  tar.     Mr.  Reilly  said  that  he 
would  let    them    have   as  much   tar    as 
they  required  at  4d.   per  gallon.      Wit- 
De»   told    him    that   it   would     be     six 
months    belore   they    required   any   tar. 
The  price  was  fixed  verbally  at  4d.    Wit- 
ness  pointed    out    to   Mr.    Reilly    that 
100,000  to  115,000  sauare  yards  of  pave- 
ment were  to  be  made  up.    Witness  went 
Home,    and    returned    in  November     to 
make    preparations    on    the     >pot     for 
carrying  out    the    contract.      Tney   had 
correspondence  in  February,    1904,   with 
the  secretary  of  the  defendant  company, 
this  being  carried  on  on   behalf   ol  the 
plaintiffs   by  their  manager  (Mr.  Trim- 
mer).     In  January,    1904,  his   firm   got 
mother   contract   with    the   Corporation 
for  the  laying  of    the    continuous   foot- 
wa]«    at    a    schedule   price    per    square 
yard.      They   reckoned  altogether    that 
they    had    120.000     to     140,000     square 
yards  to  do;   the   average  required  was 
slightly  over  a  gallon  of  tar  per  square 
yard.     They   wanted   the  tar   for  about 
eighteen   months,    during   which   period 
tl»ey  expected  to  complete  the  contract. 
At  an  interview  in  February  Mr.  B^illy 
agreed   to  let  them    have  the    tar  from 
time  to  time  as  they  required  it.     They 
aho  made  arrangements  for  the  erection 
of  the  tanks  at  Woodstock.    At  the  time 
of  the   interview  at   which  the   contract 
was  entered  into   witness  had   no  know- 
ledge   whatever   of    the   Gas    Company 
having  entered  into  a  contract  with  the 
B.S.A.    Asphalte   Company.      In  March 
the  Asphalte  Company  commenced  intef. 
diet  proceedings  against  the  present  de- 
fendaate    (14,      C.T.It;      229).        Wit- 
neis      met      Mr.      Redlv      in      April, 
and       the      latter      told       him       that 
the  B.S.A.  had   no   case   against   them, 
and  there  would  be  no  difficulty  about 
supplviiig  witness's  firm   with   tar.     He 
added    that    rather    than     supply      the 
B.S.A.     at    2d.    per    gallon,    ne    would 
turn  the  tar  into  the  sea.    Witness  again 
went   to    England,    and   the    supply    of 
tar  to   his  firm  was  discontinued  in  his 
absence.     His  firm    had    to  order  their 
tar  from  elsewhere,  having  given  notice 
to  the  defendant   company     that     they 
would    hold    them    responsible    for   any 
difference  of  cost.     They  got  some  tar 
from    the    B.S.A.    Company,    and    the 
remainder  from  England.     The  amount 
of  16,000  gallons  per  month  was   fixed, 
because   of  the  possibility   of   a  contin- 
gency with  their   plant,    which     mi^ht 
necessitate    in   some     months     workmsf 
night  and  day    and    a  double  demand. 
T:ie  average  amount  mentioned  to  Mr. 
Reilly  was  7,000  or  8,000  gallons.     The 
amount  actually  taken  in  the  five  months 
was   about    31,000    gallons.      They  had 
only  claimed  op  to  tne  end  of  1904,  but 
at  the  end  of  the  contract  they  proposed 
to  send  another  account  to  the  defendant 
company. 

by  Sir  H.  Juta :     He 


expected  that  the  defendants  would  al- 
ways keep  at  their  disposal  16,000  gal- 
lons of  tar  ^r  month,  whether  .they 
actually  required  it  or  not.  His  opinion 
was  tliat  his  contract  with  defendants 
did  not  terminate  until  the  conclusion 
of  his  contracts  with  the  Town  Council. 
He  did  not  understand  what  was  meant 
bv  "  without  reasonable  notice "  in  the 
plaintiffs'  declaration.  They  had  used 
the  tanks  to  a  certain  extent. 

Re-examined:  He  took  it  that  six 
months  was  **  reasonable  notice "  in  a 
matter  of  this  sort. 

Arthur  Kerr  Trimmer  said  ho  was 
nutnager  in  Cape  Town  for  plaintiffs. 
He  came  out  to  start  this  contract,  and 
when  the  machines  were  ready  to  start 
work,  he  wont  with  Mr.  Nuttall  to  Mr. 
Reilly's  office  to  arrange  about  the  price 
and  the  supply  of  tar.  Figures  were 
put  before  Mr.  Reilly.  showing  the 
amount  required — 16,000  gallons  a  month 
being  g^ven  as  the  maximum,  with  the 
machines  working  night  and  day.  In 
July  Mr.  Reilly  informed  him  about 
the  action  by  the  B.S.A.  Asphalt  Co., 
and  told  him  that  his  counsel  had  ad- 
vised him  to  settle,  in  which  case  the 
supply  of  tar  to  plaintiffs  would  have 
to  stop.  Witness  told  him  that  if  they 
had  to  get  tar  at  an  increased  price, 
they  would  claim  the  difference  from 
defendants,  and  Mr.  Reillv  said,  in  that 
case,  the  defendants  woula  have  to  put 
their  side  of  the  question.  Witness 
subsequently  got  the  tar.  partly  from 
England  and  partly  from  tne  B.S.A. 
Asphalt  Co. 

UrcsB-examined  by  Sir  H.  Juta :  They 
did  not  want  to  bind  themselves  down 
to  take  any  specific  quantity,  but  the 
defendants  were  bound  to  supply  a  cer- 
tain amount.  He  maintained  that  the 
contract  between  the  parties  was  in  the 
correspondence.  He  admitted  having 
received  a  letter  from  the  defendants  in 
November,  in  which  they  said  that  the 
contract  could  not  go  on  till  the  end  of 
time.  He  did  not  reply,  because  he 
took  it  that  defendants  letter  was  a 
reply  to  one  he  had  sent.  The  Gas 
Company  knew  from  the  commencement 
what  time  was  meant,  that  the  tar  was 
to  be  supplied  during  the  continuance 
of  the  municipal  contracts. 

By  the  Court:  The  letters  contained 
no  sj^cific  reference  whatever  to  the 
principal  contracts. 

Sir  H.  Juta  read,  a  letter  sent  bv  the 
witness  to  his  principals  in  July,  1904,  re- 

Sarding  the  stoppage  of  supply  by  the 
efendants,  and  suggesting  means  to 
be  taken  to  import  a  supply.  Counsel 
asked  witness  whether  that  was  the  let- 
ter which  would  be  sent  by  a  man  to 
his  principals  if  the  contract  had  been 
broken? 

Witness  said  that  there  was  no    need 

for  him  to  say  anything,  to  his    principals 

about  the  contract  having  been  broken. 

Sir  H.  Juta:  Yet,  in  the  face  of  that 

letter,  you  have  the  audacity  to  say  that 


434 


(( 


CAPE  TIMES"   LAW  feEPOfttS. 


t}iere  was  «  contract  to  supply  you  with 
tar? 

Witness :  Yes,  for  our  requirements. 

Mr.  Close  dosed  his  case^. 

Sir  H.    Juta   oalled 

Ekiward  Patrick  Reilly,  manager  of 
the  defendant  company,  who  said  that 
on  the  2nd  June,  1903,  he  saw  Mr. 
Nuttall,  and  had  a  conversaion  with 
Inm  in  regard  to  a  supply  of  tar  for  the 
»treet-pavinff  works.  He  said  that  he 
would  supply  them  with  tar  at  4d.  per 
gallon.  He  again  saw  Mr.  NuttaU 
h:ui  Mr.  Trinuoer  on  the  6th  February, 
1604,  and  had  a  conTenuition  in  regard 
to  the  supply  of  tar  from  the  Wood- 
stocL  Works.  It  was  arranged  thn«: 
Nuttairs  should  build  the  tanks  entire- 
ty at  their  own  cost.  As  to  the  subse- 
quent interview  of  the  11th  Februar:^. 
he  treated  plaintiffs  as  ordinary  retail 
customers  at  4d.  per  gallon,  the  reason 
being  that  plaintiffs  could  not  guarantee 
to  take  any  specified  quantity.  Wit- 
ness did  not  agree  to  supply  plaintiffs 
with  any  specinc  quantity.  The  works 
were  capable  of  making  18,000  to  19,000 
gallons  per  month;  he  had  already  a 
contract  with  the  B.S.A.  for  6,500.*  and 
he  should  consequently  have  been  ut- 
terly unable  to  flupply  plaintiffs  with 
16,000  gallons.  A  shorthand  clerk, 
Paris,  was  present  at  the  interview,  and 
he  made  a  note  of  what  took  place.  Be- 
tween February  and  July,  1904,  the 
plaintiffs  many  times  had  to  go  with  a 
short  supply,  because  there  was  no 
tar  at  the  works. 

Cross-examined :  He  thought  Mr.  Nut- 
tall  was  mistaken  when  be  said  that  he 
did  not  Idave  England  until  the  6th 
June.  He  fixed  the  date  by  reason  of 
hi«   marriage  being  two  days  later. 

Richard  W.  Paris,  chief  clerk  in  the 
defendant  company's  office  in  Cape 
Town,  said  that  he  was  a  shorthand 
writer,  and  was  employed  in  FelDruary 
last  vear  by  the  company.  Witness  dic- 
tated a  letter  to  the  j>laintiffs  from  hid 
shorthand  notes  of  an  interview  between 
Mr.  ReUly,  Mr.  NuttaU.  and  Mr.  Trim- 
mer. There  was  no  mention  of  quan- 
tities at  the  interview,  neither  was 
there  any  mention  of  time.  The  discus- 
sion was  all  about  the  price,  the  plain- 
tiffs wanting  to  obtain  the  tar  al  a  lower 
price  than  4d. 

Cross-examined :  He  made  the  notes 
almost  at  the  close  of  the  interview,  at 
the  instigation  of  Mr.  Reilly. 

Mr.  NuttaU  (recalled)  said  that  he  waa 
in  Manchester  on  the  2nd  June,  1903, 
leaving  Southampton  for  the  Colony  on 
the  6th  June. 

Karl  Toucher,  of  Cape  Town  (called 
by  Mt.  Close),  spoke  to  an  order  re- 
ceived from  Nuttalls  for  the  erection  of 
tanks  at  Woodstock. 

This   concluded   the  evidence. 

Mr.  Close  having  been  heard  in  argu- 
ment. 

Judgment  was  given  for  the  defen* 
dants,  with   costs,    his  lordship   holding 


that  the  arrangement  to  supply  the  plain- 
tifiis  with  tar  was  such  that  the  defen- 
dants  could  terminate  it  at  their  discre- 
tion. 


SUPREME  CuURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Justice,   the 
Han.  ^)ir  JoHM  Buchanan.] 


COLONIAL  GOVERNMENT   V.  4         1905. 

MATTHBU8.  |  Juue   13th. 

This  was  a  special  case  staited  for  the 
opinion  of  the  Court  in  regard  to  whe< 
ther  the  defendaot,  Hendnck  Petrus 
Maffctheus,  of  Uitenhage.  who  was  a  can- 
didaite  in  the  LegiaUutive  Council  elec- 
tions for  the  Soiith-Bastem  Circle,  waa 
liable  for  a  share  of  cepboin  expenses 
.incurred  by  the  returning  office. 

The  special  case  was  stated  as  fol- 
lows  * 

1.  The  i>latntiff  is  WiUiam  Aldred  Col- 
lard,  in  his  capacity  as  Assistant  Trear 
surer  of  the  Colony  and  Receiver-Gen- 
eral of  Revenue,  and  as  such  repre- 
senting the  Colonial  Government.  The 
defendant   resides  at   Uitenhage. 

2.  On  or  about  June  28,  1904.  the  de- 
fendant and  one  Hurndall  were  the 
sole  candidates  at  an  election  for  the 
representation  of  the  South-Eastem 
Elecfcreal  Province  in  the  Legislative 
Council. 

3.  The  Returning  Officer  of  the  said 
province  who  was  an  officer  appointed 
by  the  Colonial  Government  to  act  at 
the  B/lcction  as  Returning  Officer  ac- 
cording to  law  in  pursuance  of  his  duties 
as  provided  for  and  declared  in  tho 
16th  and  17th  Sections  of  the  Illegal 
Practices  Prevention  Act,  1902,  from 
time  rbo  time  gave  public  notice  of  tho 
names  and  addresses  of  the  respective 
a^nots  and  sub-agents  of  the  said  can- 
didates forthwith  upon  the  same  being 
declared  to  him  in  conformity  with  the 
said  Act. 

4.  The  public  notice  aforesaid  included 
the  advertisement  of  the  said  names  and 
addresses  in  certain  newspapers  circulat- 
ing in  the  divisions,  distriots,  field-cou- 
netoies  interested  in  the  aforesaid  Elec- 
tion. The  i^aintiff  annexes  hereto  a 
chedule  showing  the  titles  of  the  said 
newspapers,  the  dates  of  the  said  ad- 
vertisements and  the  costs  of  the  same  in 
so  far  as  the  defendant  is  concerned. 

5.  The  particuJars  marked  with  a  star 
(*)  in  the  said  annexure  are  particulars 
of  advertisements  in  which  the  names 
and  addresses  of  the  agents  or  aub-agents 


It 


CAP^  •mffift»  LAW  itEt»ottm 


m 


of  the  defendant  and  those  d  the  agent* 
or  sub-agent«  of  the  said  Humdal'i  were 
jointlj  published,  and  the  amounts  shown 
aa  the  defendant's  share  of  eost  in  regard 
to  those  particulars  are  the  half  of  the 
total  cost  of  the  said  advertisements. 
Those  not  marked  as  aforesaid  are  par- 
ticttlars  of  advertisements  in  which  the 
names  and  addresses  of  the  agents  or 
lab-agents  of  the  defendant  alone  were 
published . 

6.  The  plaintiff  has  defrayed  the  coats 
of  advertising  as  shown  in  the  said 
■nnexure,  and  thus  has  expended  the 
nim  of  £22  128.  3d. 

7.  The  plamtiff  contends  that  the  said 
sum  was  expended  by  him  on  behalf  of 
the  defandukt,  and  that  he  is  entitled 
to  a  refund  thereof  by  the  defandant. 

8.  The  defendant  denies  that  the  said 
sam  was  expended,   or  that   plaintiff  is 
entitled   to  a  refund    therof   from   him. 
Defendant   contends   that  the  said   sum 
was  expended  by  the  plaintiff  in     dis- 
charge   of    a   liability   necessarily      and 
lawfully  incurred  on  behalf  of  the     Co- 
lonial   Government,    to    wit,    the      said 
Returning   Officer    in    his    capacity    as 
such  and  in  the  performance  of  a  duty 
imposed  upon  him  in  his  said  capacity 
by_s€ct4ona    16   and    17    of    Act    26   of 
1902  as  a  matter  of  public  policy    and 
for  the  public  benefit. 

SCHBDULB. 

Advertisements  on  behalf  of  the  Hon. 

R  F.  Hurndall  and  Mr.  H.  P.  Matthus 

(candidates  at   the  Legislative      Council 

Election  for  the  South -Eastern  Electoral 

Province   in    June,    lft04). 


Year  and  Date    In  what 
oflloQth.         Paper. 


1901 

•Jmc2.9.l6  .Journal 
"  18. 21  Jourmil 
"    3,10.17  Penny  Mail 


is.  11  lUitenhage 
Time« 

^  Uitenhage 

Times 

?.16.23  Chronicle 

3, 1ft,  17  E.P.  Herald 


Subject : 
Election 
Agenta  or 
Sub-elec- 
tion Agents 


Election 
AgentH 
Sub-elect'n 

Agents 
Election 
^  AgentH 

30,23      Penny  MailjSub-elect'n 

Agents 
Election 
AgentM 
Sub-clect'n 

Agents 
Election 
Agenb4 
Election 
,    Agents 
2 1. 21. 22  E.P.  HenildiSub-eloct'n 

,    Agentd 

2, 7, 15    Daily  Tele-  Election 

gmph  AgentH 

18. 20, 21Daily  Tele-  Sub-elect'n 

gmph  Agents 

8.15.22  Re-Echo      Election 

Agents 

9. 16. 23  .Alice  TimesJElection 

Agentu 


Mr. 

Mat- 

theuH* 

share  of 

Cost. 


£s>.  d. 

1    4  0 

1  16  0 

10  3 

1    4  0 

1  13  9 

1  13  9 

1  17  6 

1  10  0 

3    0  0 

1  16  0 

.H12  0 

15  0 

19  0 


22  12    3 


I 


Mr.  N^tingiale  (or  plaintiff) :  llie 
first  Question  we  have  to  decide  is,  wha:t 
are  election  expenses.  (See  sections  21 
and  26  of  Act  26,  of  1902.)  Sections  16 
and  17  show  that  the  charges  in  quea- 
tion  are  chargeable  against  the  one  can- 
didate, and  not  against  all.  Section  48 
of  the  Constitution  Ordinance  is  tho 
only  one  whioh  deals  with  expenses,  and 
it  refers  to  Parliamentary  EUections  only. 
Section  7  of  Act  26,  of  1902,  and  Part 
2  of  the  schedule  show  that  the  Return- 
ing Officer  may  charge  for  expenses  of 
pnnting  and  advertising.  The  Act 
fpom  section  16  onwards  deals  with  ex- 
penses which   may    be   brought  up. 

[Buchanan,  A.C.J. :  Can  the  expenses 
of  fixing  polling  days  and  calling  for 
nominations  be  Drought  up  ?] 

I  think  not. 

[Buchanan,  A.  J.C. :  They  would  be  in 
Council  elections;  but  it  may  be  that 
many  expenses  would  be  charged  in 
Council  elections  which  would  not  be  in 
Assembly  elections.] 

See  Part  4  of  the  first  schedule  of  tho 
Act.  As  to  when  a  candidate  should 
become  responsible  for  election  expenses 
see  Rogers  on  Elections  (Vol.  2,  p.  158). 
When  a  candidate  hss  sent  in  nis  ac- 
ceptance to  the  Returning  Officer  he 
becomes  responsible.  Section  25  fixes 
the  limits  of  what  the  Returning  Officer 
may  charge.  The  object  of  tho  Act 
is  to  prevent  the  candidate  from  being 
unduly  burdened.  If  a  candidates  does 
not  appoint  agents  he  becomes  his  own 
agent.  He  is  not  bound  to  advise  the 
Returning  Office  of  that  fact.  The  ap- 
pointment of  agents  and  sub-agents  is 
purely  voluntary,  and  thefore  Govern- 
ment should  not  be  burdened  with  the 
cost  of  these.  Sections  24  and  25,  of 
46  and  47,  Vict.,  C.  51,  correspond  with 
sections  16  and  17  of  our  Act  as  to  ad - 
certising.  See  also  Maxwell  on  Statutes 
(p.  70  and  71)  on  the  value  of  preambles 
and  head  lines.  The  general  scope  of 
our  Act  shows  that  this  charge  ma^  bo 
legally  made  against  the  candidate. 

Mr.  Bisset  (for  the  defendant) :  The 
plaintiff's  case  rests  upon  an  implied  con- 
tract. Everv  such  contract  rests  on  tho 
supposition  that  money  is  expended  for 
the  sole  benefit  of  the  candidate.  By 
section  37  of  Act  9,  of  1883.  an  agent 
must  be  appointed  in  wriCTng.  Act 
26,  of  1902,  orders  the  Returning  Officer 
to  publish  the  names  of  agents  and  sub- 
agents.  This  is  done  in  the  interest's 
of  the  public  and  the  duty  of  doing  it 
is  cast  upon  the  Returning  Officer.  This 
reasoning  has  been  adopted  by  the  Eng- 
lish Courts  (seo  Parlcer  on  Election 
Agents,  p.  286,  and  cases  there  cited). 
These  cases  show  that  English  law  does 
not  recognise  an  implied  contract  be- 
tween the  High  Bailiff  and  the  candi- 
date. See  also  Watton  v.  Sandert  (2 
Camp.,  640).  English  law  goes  fur- 
ther than  our  law  in  casting  liability  on 
the  candidate,  2  and  4 — Cap.  5,  section 
71— Ballot  Act  of  1872,  and  38.  39,  Viot., 


436 


« 


CA^E  TlSlES**  L4W  BEPOtlTd. 


C.  84,  flection  1.  The  prinoiples  of 
Elngli&h  law  havo  been  aa(>ptecr  by  our 
law  save  taat  the  Constitution  Ordinance 
makee  the  Afleembly  candidate,  but  not 
the  Council  candidate,  liable  for  the  ex- 
penses of  election.  See  Instructions  of 
Colonial  Office,  section  19,  sub-section 
13,  p.  140;  also  sub-section  45  (c),  and 
at  p.  147,  sub-section  48,  and  sections 
25  and  24.  Of  course,  I  do  not  cite  these 
instructions  as  having  statutory  autho- 
rity. Counsel  for  the  plaintiff  relies  on 
Part  2  of  the  schedule  to  Act  26,  of 
1902,  sub-section  3,  but  the  expenses 
there  alluded  to  have  no  relation  to 
the  expenses  incurred  by  the  Returning 
Officer  in  the  execution  of  his  duty.  Here 
again  we  have  a  distinction  between 
Council  and  Assembly  candidates.  Sec- 
tions 16,  17,  and  26  show  that  it  was 
never  the  intention  of  the  Legislature 
to  make  Council  candidates  liable.  See 
also  section  24   (c). 

Mr.  Nightingale,  in  repl>, 

(Buchanan,  A.C.J. :  This  is  a  special 
esse,  in  wihich  the  Government 
claiuM  £rom  the  defendant  the 
ootft  of  certain  advertisements  in- 
serted in  different  local  papere, 
advertising  the  election  agents  or  eleo- 
tion  sub-agents  of  the  defendant.  The 
amount  cmimed  is  not  a  question  sul> 
mitted  for  the  consideration  of  the 
Court,  but  only  the  legal  question 
whether  or  not  tne  defendant  is  liable 
for  these  expenses.  The  plaintiff 
clsims  the  amount,  on  the  ground  that 
the  money  was  expended  by  the  Grovem- 
mcnt  on  behalf  of  the  defendant,  and 
the  Government  is  entitled  to  the  re- 
fund thereof ;  defendant  denies  his 
liability,  on  the  ground  that  -this  was 
done  by  the  returmn^  officer  in  his  cajpa- 
city  as  such,  and  in  puisuance  of  a 
dutj  imposed  upon  him  oy  statute  law. 
It  IS  interesting  to  look  at  the  different 
positions  in  which  the  Constitution  Or- 
dinance passed  in  ^  1872  placed  candi- 
dates for  the  Legislative  Council  and 
candidates  for  the  House  of  Assembly. 
In  the  old  Constitution  Ordinance  no 
provision  whatever  is  made  for  the  re- 
fund of  any  expenses  incurred  in  the 
election  of  candidates  for  the  Legis- 
lative Council.  In  the  case  of  election 
of  members  of  the  House  of  Assembly, 
where  a  poll  is  demanded,  and  there  is 
a  contest,  provision  is  misoe  for  the  ex- 
penses of  a  poll  being  divided  among 
the  candidates  who  contest  the  elec- 
tion. It^  is  true  both  Houses  are  elec- 
tive, but  it  is  clear  that  a  distinction  is 
drawn,  not  only  in  the  manner  of  elec- 
tion and^  the  manner  of  nomination, 
but  also  in  the  charges  to  be  made.  In 
Legislative  Council  elections  nominations 
are  made  by  means  of  re<^uisitions, 
which  are  sent  in  to  the  Colonial  Secre- 
tary. In  House  of  Assembly  elections 
nominations  are  made  at  a  public  meet- 
ing of  electors  called  for  that  pur]X)6e, 
and  in  neither  case  do  the  Government 
claim  that  they  are  entitled  to  any  ex- 


penses for  the  notices  calling  for  the 
requisitions  or  nominations  of^  candi- 
dates. The  Statute  only  provides  that 
in  the  event  of  a  contest,  the  candi- 
dates before  the  poll  shall  enter  into 
security  or  pay  costs  in  the  amount  of 
£50  to  satisfy  any  expenses  incurred 
by  the  Government  for  which  the  candi- 
dates are  liable.  There  is  no  departura 
from  this  distinction  drawn  in  any  of  the 
subseuuent  Acts  that  I  can  find  that 
have  been  referred  to.  It  is  true  that 
when  we  come  to  the  Illegal  Practices 
Prevention  Act  of  1902,  under  a  chap- 
ter headed  *'  Election  Expenses,"  certain 
charsres  are  specified.  It  is  provided 
by  the  sections  under  this  chapter,  16 
and  17,  that  a  candidate  shall  nominate 
his  agent  or  sub-agents,  or,  if  he  does 
not  nominate  his  agent  or  sub-agent, 
that  he  himself  shall  be  oonsideiNMl  as 
his  own  election  agent,  and  these  sec- 
tions require  that  when  nominations 
are  made,  the  returning  officer  shall 
publish  in  the  "  Gazette  ^  (and  for  this 
the  Government  claim  no  return),  and 
in  the  usual  places  in  which  Government 
notices  are  posted,  publishing  to  tlM 
electorate  the  names  of  the  agents  and 
sub-agents.  Nothing  whatever  is  said 
in  these  sections  ss  to  the  charges  for 
these  notices  being  recoverable  from 
the  candidates.  But,  in  the  same 
chapter  (section  26),  the  returning  offi- 
cer is  directed  to  publish  the  returns 
made  to  him  by  candidates  of  their  elec- 
tion expenses,  and  for  these  returns  so 
published,  he  is  expressly  by  this 
Statute  authorised  to  cnarge  the  candi- 
dates.  This  might  be  an  argument 
in  favour  of  saying  that  where  the 
Statute  does  not  specially  authorise  the 
charging  of  the  expenses  for  notices 
of  agents  and  sub-agents,  it  does  author- 
ise tne  charging  for  a  summary  of  elec- 
tion expenses  generally— it  would  be, 
I  say.  a  strong  argument  for  holding 
that,  at  any  rate,  as  far  as  members 
of  the  Legislative  Council  are  concerned. 
Parliament  did  not  intend  that  they 
should  be  charged  with  these  expenses. 
Whether  or  not  these  expenses  are 
chargeable  against  candidates  for 
mcmoership  of  the  House  of  Assembly 
is  not  a  question  that  the  Court  has  now 
any  need  to  decide.  A  sound  argument 
might  be  founded  on  the  provisions  of 
the  Constitution  Ordinance,  which 
make  candidates  liable  for  the  expenses 
of  a  poll,  but  that  is  not  the  question 
before  me.  The  defendant  in  this  case 
was  a  candidate  for  the  Legislative 
Council.  The  only  ground  upon  which 
this  action  is  brought  is  an  implied 
contract.  It  is  clear  from  the  Eng- 
lish cases  that  have  been  cited  that  a 
returning  officer  is  entitled  only  to 
claim  expenses  which  by  Statute  he  is 
positively  declared  entitled  to  recoTer, 
or  other  expenses  which  the  candidate 
takes  upon  himself  or  by  his  acts,  it  is 
implied  that  he  authorises  expenses  to 
be  incurred  on  his  behalf.      There  is  no 


tt 


CAttB  T1ME6''  LAW  AEPOAT^. 


487 


Statute  thai  I  can  find,  and  no  Statute 
haa  been  relied  upon,  declaring  that 
these  expenses  shall  be  incurred  by  such 
candidates,  and  there  is  no  conduct  on 
the  part  of  the  defendant  in  this  case 
to  show  that  there  is  an  implied  con- 
tract. I  think  that  the  judgment 
must  be  in  favour  of  the  defendant's 
contention,  that  he  is  not  liable  for  the 
expenses  clainocd,  and.  of  course,  that 
judgment  must  carry  costs.  It  should 
be  clearly  understood  that  I  am  decid- 
ing the  liability  of  candidates  for  the 
Legislative  Council,  and  not  of  candi- 
dates for  the   House  of  Assembly. 

[PlaintiiTs       Attorneys:     Reid        and 
Nepbew.      Defendant's :    G.  TroUip.] 


riSSER    V.    BAKEK    AND 
OTHKBtf. 


f         190r>. 
i  June  13tb. 


Will,  joint — Fidei  Comtniiumm — 
Insolvency  of  fiduciary  — 
Rights  of  minor  fidei-com- 
miasories. 

The  kite  P,  and  hh  \rife  tnade 
a  mutual  will,  by  which  their 
liwded  properly  ictts  bequeathed 
to  their  two  nous  by  a  jUlei- 
Cftumhitiry  beipteHt  Muhject  to 
a  life  i/itei'est  in  favour  of  the 
surviror^  "  in  *  rder  tluit  he  or 
$he  may  be  better  emtbled  to 
maintain^  sttpjmrt  and  educate 
our  children,  dx  "  After  the 
deiUh  of  P.,  his  widow  married 
B.j  and  mdfiet/ neatly  the  eittatts 
of  H.  ami  hilt  wife  were  neques- 
trated.  Their  trtiatee  doomed 
the  life  tutufrurt  of  Mrs,  B, 
in  tke  estate  of  her  for- 
mer husband.  Ihe  defendants 
claimed  that  the  worch  of  the 
trill  ''i«  order  that,  ^'c, 
amounted  to  a  prohibition 
against  alienation  of  the  usu- 
fiikct. 

Held,  that  these  words  only 
implied  an  expression  of  desire 
on  the  itart  of  the  testators  as 
to  tfte  ifHky  in  which  the  Uhu- 
fruct  should  be  employed,  and 
that  Hie  trustee  was  entitle  i  to 
judgment  for  the  same. 


This  was  a  sfiecial  case  brought  l^ 
the  insolvent  estate  Price  as  plaintiff, 
snd  Susannah  Mary  Price  and  others, 
M  defendants,  for  the  determination  of 
the  rights  of  the  insolvent  estate  in  re- 
Ution  to  a  certain  will. 


The  special  case  was  stated  in  the  fol- 
lowing terms: 

1.  The  plaintiff,  Floris  Albertus 
Visser,  of  Queen's  Town,  is 
the  duly  elected  and  confirmod 
trustee  of  the  insolvent  cstoto  of 
Susannah  Mary  Baker,  now  nianiod 
without  community  of  goods  to  i^contird 
George  Baker,  by  whom  she  is  assisted 
in  this  suit. 

2.  Her  estate  was  sequestrated  on  the 
4th  day  of  August,   1904. 

3.  The  defendants  are  Susannah 
Mary  Baker,  formerly  Price,  born 
Staples,  now  married  out  of  community 
of  property  to  Leonard  George  Baker, 
and  by  him  herein  assisted  as  far  as 
need  be,  and  she  is  sued  in  her  capacity 
as  the  mother  and  natural  guardian  of 
the  four  minor  children  born  of  her 
marriage  with  the  late  Charles  James 
Price,  and  Georg[e  Edward  James, 
George  Norman  Price,  and  the  said  Su- 
sannah Mary  Baker  (married  and  as- 
sisted as  aforesaid),  and  they  are  sued 
in  their  capacity  as  executors  testamen- 
tary of  the  ebtate  of  the  late  Charles 
James  Price,  hereinafter  called  the  tes- 
tator. 

4.  The  testator  died  on  the  21st  day 
of  November,  1895,  and  was  at  that 
date  lawfully  married  with  communitv 
of  goods  to  the  aforesaid  Susannah 
Mary,  who  was  born  Staples,  and  they 
had  theretofore  duly  made  on  the  22na 
December,  1894,  their  joint  mutual  last 
will  and  testament,  whereof  a  true  copy 
is  annexed,  and  marked  *'  A." 

5.  Under  the  said  last  will  and  testa- 
ment, certain  farms,  to  wit,  Lot  No.  4 
W,  Thrift,  and  Bushey  Park,  forming 
assets  of  the  joint  estate  were  specially 
bequeathed  to  the  two  sons  of  the  tes- 
tator and  testatrix  for  certain  sums 
payable  after  the  death  of  the  survivor 
and  in  the  said  will  it  was  specially 
directed  that  the  survivor  should  be 
authorised  and  allowed  to  keep  the 
whole  of  the   farm  or   immovable   pro- 

Kerty  of  the  joint  estate  under  his  or 
er  entire  direction  and  administra- 
tion, and  to  remain  in  the  full  and  un- 
disturbed possession  thereof,  and  in  the 
enjoyment  of  the  usufruct  or  the  rents, 
issues,  and  profits  thereof  for  and  dur- 
ing the  term  of  his  or  her  natural  life 
in  order  that  he  or  she  may  be  better 
enabled  to  maintain,  support,  and  edu- 
cate the  children  of  the  testator  and 
testatrix  until  they  become  of  ago  or 
marry. 

6.  There  were  at  the  death  of  the 
testator,  and  still  are,  four  children  of 
his  said  marriage,  two  sons  and  two 
daughters,  and  tney  are  all  minors,  and 
are  of  the  ages  of  18,  14,  12,  and  9 
years,  the  first  and  third  being  sons. 

7.  The  said  Susannah  Mary  (born 
Staples)  as  surviving  spouse  of  the 
testator  adiated  and  accepted  the  bene- 
fits under  the  said  will,  and  has  hither- 
to enjoyed,  inter  cUia,  the  usufruct, 
rents,  and  profits  of  the  aforesaid 
farma. 


m 


i< 


CA^B  TtMSB"  LAW  tt£t>OltM. 


8.  In  ApriL  1904,  the  Mid  SuMiinab 
Mary  (born  Staples),  who  was  married 
a  Beoond  time  in  NoTember,  1903,  to 
Leonard  George  Baker  aforesaid,  did 
with  his  assistance  enter  into  certain 
three  leases  of  the  farms  aforesaid, 
namely:  (a)  Lot  No.  4  W  she  let  to 
one  Lowell  Eldred  Price  for  a  period  of 
three  years  from  the  Ist  Aoril,  1904,  at 
an  annual  rental  of  i&52  lOs.  (b) 
Thrift  she  let  to  one  J.  G.  Frost  for 
the  same  period  at  an  annual  rental  of 
£100:  the  said  Susannah  Marv  (born 
Staples)  purported  to  cede  the  said 
lease  on  or  about  April  28,  1904,  to  one 
Thomas  Bailey  as  security  for  a  debt; 
the  plaintiff  intends  to  take  steps  to 
have  the  said  cession  set  aside  as  an 
undue  preference,  (c)  Bushey  Park  she 
let  to  one  George  James  (one  of  the 
executors  and  defendants)  for  the  same 
period  at  an  annual  rental  of  £87  10s. 
A  true  copy  of  one  of  the  leases  is 
hereunto  annexed,  and  marked  "B." 
The  others  are  similar,  with  changes  of 
the  name  of  the  lessee  and  the  rental ; 
the  lease  (a)  is  in  the  hands  of  the 
defendants. 

9.  The  plaintiff  contends,  as  against 
the  defendants,  that  he  is  eni?itled  m  his 
said  capacity  and  during  the  lifetime 
of  the  ansolveivt,  for  the  oenefit  ol  her 
creditors,  to  the  rentals  and  other  bene- 
fits accruing  to  the  lessor  (now  insolvent) 
under  the  said  leases  and  the  custody  of 
the  said  leases,  and,  further,  to  an  ac- 
count of  all  remtala  received  by  the  de- 
fendants or  any  of  them  under  any  of 
the  8siJ  leases,  w<ith  a  debsite  of  such 
account,  and  payment  of  the  balance 
found  due. 

10.  In  the  alternative,  the  plaintiff 
contends  in  his  said  capacity  thst  he  is 
entitled  to  receifve  out  of  the  rentak  de- 
rived from  time  to  time  under  the  aaid 
leases  such  sums  as  this  Honourable 
Count  may  direct  to  be  paid  over  to 
him  for  the  benefit  ol  the  creditors  of 
the  insolTent,  and  submits  that  his  rights 
in  his  said  capacity  should  be  declared 
and  defined  by  this  Honouraible  Court. 

11.  The  defendants  contend  thst  eo 
long  as  there  are  minor  children  of  the 
testator  living,  who  have  to  be  eduosted, 
supported,  smd  maintained,  the  usufruct 
of  the  said  Canns  bequesthed  to  the  said 
Susannah  Mary  Baker  for  the  educa- 
tion, support,  and  maintenance  of  the 
said  minor  children  cannot  be  paid  over 
to  or  enjoyed  bv  the  oreditors  of  the 
asid  Susannah  Marjr  Baker,  and  that, 
therefore,  the  plaintiff  is  not  entitled  to 
the  said  rents. 

12.  Wherefore  the  parties  pray  for 
judgment  upon  their  reepeotive  conten- 
tions or  for  such  relief  as  may  seem 
meet  with  costs  of  suit 

'*  A." 

Be  it  hereby  made  known. 

This  is  the  Iset  will  and  testament 
of  nm,  Charles  Jssnee  Price  and  Bus- 
anah  Mar^  Price  (bom  Staples)  married 
together  in  oommunity  of  property,  and 


st  present  residing  «t  Tarkaetad,  in  the 
district  of  Tarka,  being  of  sound  aad 
disposing  mind,  memory,  and  under- 
standing, hereby  revoking  and  annull- 
ing all  wiiie,  codicils  and  other  tevta- 
mentary  acts  heretofore  passed  by  us 
or  ei^iber  of  us  desiring  UMt  the  same 
shall  be  of  no  force  and  effect  what- 
ever. 

And  before  proceeding  to  the  institu- 
tion of  heirs,  we  do  hereby  declare  to 
give  and  'bequeath  to  the  survivor  of 
us  one-half  fMkit  or  share  of  all  the 
movable  assets,  inheritances,  legacies, 
credilfi,  and  things  whatsoever  apd 
wheresoever  the  same  may  be  which 
shall  be  left  at  the  death  of  the  fiiwt 
dring  of  us  sa  his  or  her  own  sole  «nd 
absolute  property. 

And  in  regard  to  the  landed  pro- 
perty in  our  estate,  we  do  hereby  de- 
clare to  give,  devise,  and  bequeath  the 
same  to  out  sons  in  manner  following 
— subject,  however,  to  the  _  usufruct 
thereof  hereinafter  menti<»ed  in  faTOur 
of  the  survivor  of  uft,  namely: 

1.  To  our  son  Stanley  Obarles  Price 
our  farm  called  Lot  No.  4  W.,  in  ex- 
tent 802  morgen  and  397  square  roods, 
situslte  in  the  district  of  Tarka,  upon 
condition  that  he  shall  pay  in  to  our 
eetate  within  three  years,  after  the  death 
of  the  survivor  of  us,  the  sum  of  one 
thousand  pounds  £1,000)  sterling,  bear- 
ing interest  st  the  rate  of  5  per  cent, 
per  annum  reckoned^  from  the  date  of 
the  death  oi  the  survivor  of  us. 

2.  To  our  son  Oecil  Bold  Price  our. 
farm  called  "ThriR,"  in  extent  1,615 
moigen  and  403  square  roods  and  our 
i&rm  called  'Busby  Park,  in  erternt  960 
morgen  or  thereabouts,  both  situated 
in  the  district  of  Queen's  Town,  upon 
condition  that  he  cAiall  pay  in  to  our 
estate  within  three  years  after  the  death 
of  the  survivor  of  us  the  sum  of  eigh- 
teen  hundred   and    ninety-three   pounds 

(£1,893)  etediug  for  our  saia  farm 
"Thrift"  and  the  sum  of  fourteen  hun- 
dred and  forty  pounds  (£1,440)  sterling 
for  our  said  farm  Busby  Park  bearing 
interest  at  the  rate  of  5  per  cent,  per  an- 
num and  reckoned  from  the  date  of  the 
death  of  the  survivor  of  us,  and  in  case 
either  of  our  said  eons  shall  not  have 
attsined  the  age  of  majority  at  the 
death  of  <tihe  survivor  of  us.  such  period 
of  three  years  within  which  such  stuns 
of  money  are  diredted  to  be  by  them 
paid  into  our  joint  estate,  together  with 
the  interest  thereon,  shall  be  reckoned 
from  tile  date  of  attaining  their  ma- 
jority respectively. 

In  the  event  of  either  of  our  said 
sons  predeceasing  us,  the  bequest  of 
the  aioresaid  farm  propeiiv  made  to 
such  son  shaH  devolve  vipon  iris  co-lega- 
tee uix>n  the  same  oonditionv  as  ans  eet 
forth  in  such  bequest. 

It  is  our  will  and  desire  that  the 
amounts  required  to  redeem  the  qoat- 
rents  at  present  payable  to  Qovemmefit 
upon  our  above-mentioned  {anus  catted 


"CAPE  TIMES"  LAW  REFOBTS. 


499 


«nd  Lot  No.  4  W.  sbaJl  be  a 
ehafge  upon  our  }oii>t  oeteie,  and  in  'tih« 
eTOfot  of  there  not  being  suffioient  funds 
in  our  estate  at  the  death  of  the  eur- 
TTvor  of  «ift  %o  do  so,   ithe  amounte  re- 

a aired  4o  redeem  the  eame  shall  bo  de- 
loded  from  the  reepeotive  auau  of 
money  40  he  paid  in  to  our  ei^tivte  by 
oar  said  eons  as  sloresatid. 

In  the  event  of  our  acquiring  any 
fartfier  farm  property,  we  direot  that 
Ihe  same  shau  devolve  upon  any  son 
yet  <U>  ibe  oegoitten  during  our  present 
marria^,  upon  condition  that  he  shall 
pay  in  4o  our  estate  the  exim  of  twenty 
afauUngs  per  moi^n  for  tbe  same,  upon 
the  saane  tezxna  of  credit  a£  above  set 
ioBth  lor  our  other  sons. 

In  the  event  of  any  of  our  sons  not 
having  attained  (his  or  their  majonty 
at  tfie  deaitih  of  fthe  survivor  of  us,  we 
direot  that  our  executors  hereinafter 
named  shall  3et  out  our  farm  properties 
on  hire,  until  such  time  as  our  said 
SODS  shall  respectively  ait>taiiin  their  ma- 
jority and^  the  rents  thereof,  together 
irith  all  interest  receivable  from  the 
Master  of  the  Supreme  Court,  on  4;he 
fortions  of  inheritance  hereinafter  men- 
Tiooed  jshi^l  t»e  kept  by  our  said  exe- 
cutoFi  in  one  fund  and  applied  by  them 
in  such  manner  as  they  may  think  fit 
towardfs  ttie  madntenance,  support,  and 
eduoation  of  our  minor  diildren.  We 
further  declare  to  nominate  and  ap- 
point tlie  children  already  begotten,  or 
wJiich  shall  or  may  hereafter  be  be- 
gotten <lunng  our  marriage,  to  foe  t^be 
sole  heira  in  equal  portions,  share  and 
share  alike,  save  and  except  as  is  here- 
inafter mentioned  in  ifiie  case  of  which- 
ever of  our  sons  shall  happen  to  in- 
herit the  iarm  'Bold  Point  of  aU  the 
rest  residue  and  remainder  of  our  joint 
^tate,  ^oods,  effects,  stook,  dbattels,  in- 
heritances, credits,  and  things  whatso- 
ever and  fwfaeresoever  the  same  may  be, 
which  mbmW  be  left  at  the  death  of  the 
first  dying  of  us,  whether  movable  or 
immovable,  and  of  what  nature  or  kind 
soever,  whether  4ihe  same  be  in  posses- 
si<Hi,  refversion,  remainder,  or  expec- 
tancy, nothing  excepted,  and  in  the 
event  of  ainy  of  our  said  heirs  hereby 
Appointed  predeceasing  us,  then  and  in 
sudh  ease  the  shane  of  him  or  her  so 
dying  sball  devolve  upon  his  or  her  ia^ue 
hv  representation  according  to  the  laws 
of  snocesaion  "per  stirpes." 

We  further  direot  tluvt  whichever  of 
our  SODS  ahaU  happen  to  inherit  the 
farm  oaHed  Bold  I^oint  under  and  by 
viitue  of  the  mutual  will  of  tihe  testa- 
tor's parents,  Joseph  Price  and  ElOenor 
Matilda  Price  ^rn  James),  dated  the 
SA  dmj  oi  Maroh,  1888,  such  son  shall 
not  he  eortitled  to  inherit  or  receive 
under  this  onr  wall  any  portion  of  the 
som  or  sums  of  money  to  be  paid  in  to 
our  estate  as  aforesaid  for  our  farm 
propertiea;  and  we  fur^er  direot  that 
Ihe  sum  off  nsne  ^hundred  pounds  (£900) 
•tarling  'v^Boh  is  payable  in  lespeot  of 


li. 


the  cMud  farm  (Bold  Point  in  to  the 
estate  of  the  testators'  said  parents, 
shall  be  paid  out  of  our  joint  estate. 

We  do  hereby  further  direct  that  the 
survivor  of  us  shall  be  authorised  and 
allowed  to  keep  the  whole  of  our  farm 
or  inmiovable  property  under  his  or  her 
entire  direction  and  administration  and 
to  remain  in  the  full  and  undisturbed 
possession  thereof  and  in  the  enjoy- 
ment of  the  usufruct  or  the  rents,  issues 
and  profits  thereof  for  and  during  the 
term  of  his  or  her  natural  life  in  order 
that  he  or  she  may  be  better  enabled  to 
maintain,  support  and  educate  our  chil- 
dren until  they  become  of  age  or  marry. 

We  further  direct  that  our  sadd  execu- 
tors shall  as  soon  as  convenientljr  may 
be  after  the  death  of  the  fint  dying  of 
us  cause  a  just  and  true  inventory  to 
be  made  of  the  noovable  assets  of  our 
joint  estate,  and  the  same  to  be  fairly 
and  equitably  valued  and  appraised  by 
two  impartial  persons  or  sold  by  public 
auction  at  the  opticn  of  the  survivor  of 
us  in  order  by  so  doing  to  asoertain  the 
portions  of  inheritance  of  our  heirs  out 
of  the  estate  of  the  first  dying  of  lis, 
and  after  the  deduction  of  one  moiety 
of  the  wh(^e  of  our  said  movable  pro- 
perty which  is  bequeathed  to  the  sur- 
vivor of  us  as  above  mentioned,  the 
survivor  of  us  shall  be  obliged  within 
two  yesjrs  after  the  death  of  the  first 
dying[  of  ua  to  pay  out  such  portions  of 
inhentanoe  of  the  remaining  moiety 
to  such  of  our  said  heira  as  may  have 
attained  majority,  and  in  the  case  of 
those  who  may  he  minors  to  the  Master 
of  the  Supreme  Court  of  this  Colony 
together  with  interest  reckoned  at  the 
rate  of  five  per  cent,  per  annum  from 
the  date  of  such  valuation,  but 
in  pase  the  survivor  shall  prefer  to 
realise  the  said  movables  by  public  auc- 
tion as  aforesaid,  then  and  in  that  case 
the  portions  of  our  respective  heirs 
shall  be  paid  out  forthwitn  to  such  as 
may  be  majors  and  in  the  case  of 
minors  to  the  Master  of  the  Supreme 
Court  of  this  Colony. 

With  reference  to  the  appointment  of 
valuators,  we  direot  that  one  shall  be 
appointed  by  the  survivor  of  us  and  the 
otner  by  our  other  two  executors  with 
power  to  such  valuaton?  to  appoint  an 
umpire,  who  shall  decide  in  case  of 
dii»agreement  between  such  valuators  as 
to  the  value  of  the  said  movables  or  any 
portnon  thereof. 

We  declare  to  nominate  and  appoint 
the  survivor  of  us  together  with  George 
Norman  Price  and  George  Edward 
James  to  be  jointly  the  executors  of 
this  our  will,  administrators  of  our  es- 
tate and^  effeota  and  guardians  of  our 
minor  children,  giving  and  granting  un- 
to them  all  such  powers  cuid  authorities 
as  appertain  in  hkw  to  those  capacities, 
and  especially  those  of  assumption  ana 
substiitution.  We  reserve  to  oumelves 
the  right  from  time  to  time,  and  at  lUl 
times  hereafter,  to  make  all  such  altera- 


440 


'*  CAPE  TTIOES "  LAW  RBP0RT8. 


tioDS  in  or  additions  to  this  oar  will  aa 
we  may  think  fit  either  by  a  separate 
act  or  at  the  foot  hereof  desiring  that 
all  suol)  alterations  or  additions  so 
made  under  our  own  signature  may  bo 
held  as  valid  and  effectual  as  if  origin- 
ally inserted  herein. 

Lastly,  we  declare  this  document  to 
be  and  contain  our  mutual  last  will  and 
tetrtament,  and  desire  it  may  have  effect 
as  such  or  as  a  codicil  or  otherwise  as 
may  best  consist  with  law. 

In  witness  whereof  we  have  hereunto 
set  our  hands  at  Tarkastad  on  thie 
twenty-second  day  of  December  in  the 
year  of  Our  Lord  eighteen  hundred  and 
ninety  four  in  the  presence  of  the  sub- 
scribing witnesses: 

As  witnesses:— E.  J.  Stanley,  Wm. 
Kidger,  Chas.  J.  Price,  S.  M.  Price. 

Mr.  Searle,  K.C.  (for  plaintiff) :  The 
whole  question  is :  wnat  is  the  true  con- 
struction of  the  will  with  regard  to  the 
rights  conferred  upon  Mrs.  Price  (now 
Baker)?  I  submit  that  the  will  confers 
upon  her  a  usufruct,  and  that  this  usu- 
fruct passed  to  her  trustees  on  her  in- 
solvency. As  it  has  more  than  once 
been  pointed  out  by  the  Court,  the 
power  conferred  by  section  10  of  the 
Insolvent  Ordinance  is  very  wide.  In 
this  case,  a  usufruct  is  conferred,  and 
the  matter  or  object  in  respect  of  which 
that  usufruct  is  to  operate  is  indicated, 
but  no  trust  can  be  thus  imposed  by 
our  law.  This  matter  was  fully  con- 
sidered and  decided  in  Zeederberg  v. 
S.A.  Association  (5  Searle,  266).  and  this 
decision  was  approved  in  Van  der  Byl 
V.  Executor  of  Michau  (2  Juta,  430). 
These  oases  are  entirely  in  point.  In 
fact,  in  the  present  case,  the  present 
will  presenrts  a  stronger  case  for  the 
trusteie  (the  plaintiff)  than  did  the  re- 
spective wills  in  either  of  tliese  ca^. 
For  here  an  out  and  out  usufruct  is 
given,  in  order  (at>  it  is  stated)  that  the 
survivor  may  be  the  better  able  to 
maintain  the  children.  That,  however, 
is  not  sufficient  to  constitute  the  sur- 
vivor a  fiduciary  of  the  usufruct,  and 
that  must  be  the  defendant's  conten- 
tion. 

There  is  no  case  in  which  the  Court 
hB»  held  that  such  words  as  these  can 
make  the  children  fidei  commisaories. 
The  English  law.  is  that  in  order  to 
take  a  bequest  under  a  will  out  of 
the  operation  of  the  Bankruptcy 
laws  there  must  be  a  "gift  over,"  that 
is  some  specific  person  must  have  the 
ownership  transferred  to  him  to  bar  the 
claim  of  the  trustee.  It  was  decided  in 
Hiddin0*8  Trustee  v.  Colonial  Orphan 
Chamber  (2  Juta,  273)  that  the  same 
rule  applies  to  our  law.  Had  it  been 
held  otherwise,  we  should  find  ourselves 
landed  in  extreme  difficulties  in  many 
cases  which  might  possibly  emerge.  As 
an  example,  suppose  the  children  we're 
all  majors  and  that  they  were  all  con* 
oemed  so  that  there  would  be  a  legal 
duty  incumbent  on   the  parent  to  sup- 


il 


port  them:  would  it  be  held  that  he 
could  not  spend  a  penny  of  this  osufruc- 
tury  interest  on  himself  in  the  event  of 
his  insolvency?  Take  the  case  of  the 
children  being  well  provided  for;  and 
here  it  is  clear  that  they  get  a  substan- 
tial amount  of  the  testator's  assets  as 
paternal  inheritance.  However,  cannot 
the  survivor  deal  with  the  usufruct?  It 
is  true  that  we  have  here  an  alternative 
prayer  for  an  inquiry,  but  that  is  not 
a  logical  position  for  the  other  side 
to  take  up.  Either  there  is  a  fidei 
fommiMtum  of  the  usufruct  of  the  farm  in 
the  children  (and  a  vested  fidei  commis- 
sum,  see  Strydom's  case)  or  there  is 
surely  an  interest  which  passes  to  the 
trustee.  Zeederberg's  case  (6  Searle, 
266)  has  stood  for  many  years,  and,  I 
submit  should  not  now  be  overruled. 
The  only  case  which  can  be  said  to 
tend  the  other  way  is  Appd  and  Lip»' 
chiU  V.  Appel  (21,  S.C.R.,  611),  and  that 
that  only  in  virtue  of  an  obiter  dictum, 
and  the  will  was  not  in  the  terms  of  the 
present  will.  There  are  numerous  oases 
in  which  the  Court  has  interpreted  fi^ 
commissa  in  such  wase  as  to  impose  the 
least  possible  burden  on  the  person  m 
possession,  and  that  is  the  rule  of  Ro- 
man Dutch  Law.  See  judgment  of  Con- 
nor,  J.,  in  Blignaut  v.  CiLliers  (Buch.. 
1868,  p.  206),  and  Voet  (36,  1,  7). 

Sir  H.  Juta  (for  defendants) :  We  only 
say  that  as  fidei  commissaries  nothing 
vests  in  us,  and  as  long  as  these  heirs 
are  minors,  the  creditors  cannot  claim. 
The  cases  cited  on  the  other  nde  do  not 
applv.  The  only  aimilar  case  is  AppeVs 
Zeederberg's  case  was  not  at  all  similar. 
This  case  is  much  stronger  than  Appel's. 
The  Court  has  always  made  provision 
for  minors.  Then  see  Sec.  2  of  the  will 
as  to  the  proviso  respecting  the  quit- 
rent  farms.  In  the  event  of  the  death 
of  the  survivor,  the  trustees  must  use 
the  rents,  and  profits  for  the  benefit  of 
the  minors.  After  the  death  of  the  sur- 
vivor the  fidei  commissory  heirs  might 
take  the  inheritance,  but  were^  bound  to 
provide  for  the  minors.  This  will  is 
stronger  than  the  will  in  Appel's  case. 
If  the  trustee  wishes  to  take  the  pro- 
perty he  must  take  it  subject  to  the 
burden  of  providing  for  the  minors. 

Mr.  Searle  (in  reply):  Appel's 
case  is  not  decisive,  but  there 
the  le^y  was  only  for  tha 
the  maintenance  of  the  childreos  eee 
Voet  (42-1-43),  cited  by  Bell  J.,  in 
Zeederberg's  case.  The  trustees  in  the 
insolvent  estate  may  clearly  take  the 
goods  unless  the  alienation  of  the  goods 
required  for  the  minors  is  <dear]y  pro 
hibited.  Defendant's  counsel  does  not 
object  to  the  trustee  taking  the  estate 
if  he  devotes  it  to  the  maintenance  of 
the  children.  This  case  is  stronger  than 
that  of  Zeederberg.  True,  the  testator 
has  said  that  he  wished  the  usufructary 
to  use  the  property  for  the  support  of 
the  minors;    but  that  is   not   a   condi- 


"OAPB  TIMB8'*  LAW  REPORTS. 


i41 


tioDi  The  unifruot  10  vlearly  Tested  in  1 
the  flornTor,  and  the  trustee  does  not 
cUim  anything  but  that.  Suppose  a 
tator  had  misconducted  himeelt,  oould 
the  minoiB  come  into  Court  and  claim 
the  uBufnict? 

Sir  H.  Juta  referred  to  Sande  on  Re- 
£trainti  (3-1-1). 

Buohanani,  A.C.  J. :  The  late  Mr. 
Price,  who  was  married  out  of 
community  to  his  wife,  during 
his  lifetime  acquired  apparently  a 
ocnsiderafble  amount  of  piopepty.  He 
msde  a  joint  will  with  has  wife,  in 
which  he  divided  all  the  movables  be- 
tween himself  and  his  wife,  and  the 
landed  property  was  specially  beaueath- 
sd  to  tmo  sons  on  certain  conaitions. 
Then  the  testotors,  by  their  mutual  will, 
nbjeoted  the  landed  property  to  a  cer- 
tain fUei  eommi$tum,  or  burdened  it 
with  a  life  interest  in  favour  of  the  sur- 
vivor. Price  dving  in  November,  1906, 
hii  wife  took  the  oenefits  given  her  by 
the  win,  and  she  continued  to  enjoy 
the  life  intMest  given  bv  the  will.  She 
Istter  on  married  one  Baker,  and  both 
Baker  and  the  defendant  (his  wife)  had 
had  their  estotes  sequestrated  ss  insol- 
veni.  The  trustee  oUtims  the  benefit  of 
the  hequeat  of  the  life  interest  to  Mrs. 
Baker.  There  is  no  doubt  that  the  In- 
solvent Ordinance  is  wide  enough  to 
entitle  ihe  trustee  to  take  anv  future 
as  well  as  present  righ^,  and  it  it  were 
a  life  interest  pure  and  simple  that  was 
bequeathed  there  would  be  absolutely 
no  doubt  as  to  the  trustee's  ri^ht  to  take 
it.  But  the  question  arising  w  this  case 
depends  upon  the  terms  in  which  the 
Kfe  intereflt  has  been  bequeathed.  The 
claose  in  the  will  in  question  is  shortly 
as  (follows :  **  We  do  hereby  f urthier 
direct  that  the  survivor  of  us  shall  be 
authorised  and  alkywed  to  keep  the 
whole  oi  our  farm  or  immovable  pro- 
perty under  his  or  her  entire  direotion 
and  administration,  and  to  remain  in 
the  full  and  undistuxt)ed  possession  there- 
of, and  in  the  enjoyment  of  the  usufruct 
or  the  rente  issues  and  profits  thereof  for 
and  during  the  term  othis  or  her  natur- 
al life.**  Then  come  these  wordU :  "  In 
order  that  he  or  she  may  be  better 
enabled  to  maintain,  support,  and  edu- 
cate our  children  until  they  become  of 
aee  or  marry."  The  Question  is  whether 
these  woids  which  I  nave  just  read  im- 
pose a  oosidition  on  the  bequest  of  such 
a  nature  that  the  trusty,  who  can  only 
step  into  the  legatee's  shoes,  can  take 
the  ttsttfruot  without  being  burdened  by 
any  ooodition  at  all.  I  think  it  may 
be  argued  that  the  trustee  can  only  take 
what  property  is  vested  in  the  insol- 
vent^ and  if  that  propertv  is  vested  in 
the  insoJ-vent  distixiotlv  subieot  to  a  con- 
dition the  trustee  wno^  taJces  the  pro- 
perty must  take  it  subject  to  that  con- 
dition. It  may  be  a  hard  case  that  the 
late  Mr.   Price's  property  should  go  to 

Ky  the  debts  of  the  second     husband, 
t  thttt  is  not  the  question  now  before 
we.    J  iH^we  to  1oo)f  at  it  from  a  strictly 


legal  point  of  view,  and  decide  whether 
these  words,  *'in  order  that  he  or  she, 
etc.,"  amount  to  such  a  condition  as 
is  binding  both  on  Mns.  Baker  and  the 
trustee.  Now,  after  hearing  the  ai^u- 
ment,  and  referring  to  the  cases  decid- 
ed, I  am  bound  to  follow  the  expression 
0^  the  opinion  of  the  Court  on  previous 
occasions,  and  I  must  look  at  the  words 
used  by  Chief  Justice  Hodges  as  **  more 
an  expression  of  expectation  and  desire, 
and  not  as  a  positive  direction  and  com- 
mand." I  thmk,  therefore,  that,  there 
belong  no  gifo,  I  cannot  hold  that  it  is 
a  condition  that  is  obligatory  on  the 
trustee.  It  seems  to  .be  more  an  ex- 
pression of  desire.  Under  these  circum- 
stances, the  trustee  is  entitled  to  judg- 
ment, and  I  will  give  judgment  so  far 
as  clause  9  of  the  plea  is  concerned,  up 
to  the  word  "  leases."  Before  saying 
anything  as  to  the  question  of  costs,  I 
would  like  to  hear  what  counsel  may 
have   to  say. 

Mr.  Searle  having  addressed  the 
Court, 

Buchanan,  A. C. J.,  said  that  judgment 
would  be  for  the  plaintiff,  declaring  him 
entitled  in  terms  of  clause  9  up  to  the 
word  "  leases,"  costs  to  come  out  of  the 
fund 

[Plaintiff's  Attorneys:  Walker  and 
Jacobsohn;  Defencbnts'  Attorneys:  Sil- 
berbauer,  Wahl  and  Fuller.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maardorp.] 


VOOER  V.  VOOER. 


(       1905. 
\  June  IHth. 

Mr.  P.  Jones  appeared  for  the  plain- 
tiff, and  asked  for  an  extension  of  the 
return  day  of  edictal  citation.  Plain- 
tiff was  suing  for  restitution  of  con- 
jugal rights,  failing  which,  a  decree  of 
divorce  for  malicious  desertion,  but  up 
to  the  present  it  had  been  impossible 
to  serve  the  citation  personally  on  the 
defendant.  Hie  order  was  altered  to 
allow  the  citation  to  be  served  person- 
ally on  the  defendant  or  at  the  defen- 
dant's father's  residence  in  Holland. 
The  return  day  was  extended  to  August 
17. 


(       1905. 
JAOOBBOHK  V.  SCHULTZ.   <  June  13th. 


»» 


Uth. 


1 


Lessor  and  leasee — Mental  capa- 
city of  lessor. 

This  was  an  action  brought  by  Solo- 
mon Jacobsohn,  a  general  dealer,  of 
Kakamas.  in  the  district  of  Kenhardt, 
for  an  order  conypelling  the   defendant 


442 


"CAPE  TIlfBB^'  LAW  RBPOBtS. 


Joh«niies  P.  Schuliz,  a  farmer,  rending 
at  Nous  West,  to  give  plaintiff  pos- 
8e»iou  of  certain  premieee,  and  for  daxn- 
agee  for  not  having  given  up  poases- 
sion  at  an  earlier  date,  or  ae  an  alter- 
native, damagea  fixed  at  £1,000  for 
breach  of  contract. 

The  plaintiff's  declaration  aet  out  that 
he  was  a  general  de&ler,  redding  at 
Kakamaa,  and  the  defendant  was  a 
farmer,  reeidinfi:  at  Nona  West.  On 
or  about  the  6th  October,  1904,  the 
parties  entered  into  a  written  agree- 
ment of  lease,  whereby  the  defendant 
let  to  the  plaintiff  certain  premises  at 
Nous  West  for  five  years,  beginning  on 
the  5th  October,  1904,  at  a  rental  <A  £20 
per  year,  for  the  purpose  of  starting  a 
shop  business.  The  plaintiff  had  paid 
to  the  defendant  the  sum  of  £10  as  and 
for  six  months'  rental  of  the  premises, 
under  the  agreement.  Relym^  upon 
the  agreement,  the  plaintiff  disposed 
of  the  business  which  he  waa  tlran  carry- 
ing on  at  Puffadder,  and  took  out  a 
licence  for  hie  shop  at  Nous  West,  and 
subsequently  forwarded  his  transport 
wagons  with  eooda  to  Nous  West,  for 
the  purpose  of  opening  his  proposed 
business  there.  The  defendant  refused 
to  allow  the  plaintiff  to  go  near  the 
farm,  and  refused  and  stilT  lefuees  to 
give  the  plaintiff  possession  of  the 
premises  let  to  him,  or  to  carrv  out  the 
agreement.  By  reason  of  the  defen- 
dant's breach  of  contract,  the  plaintiff 
had  suffered  considerable  damage.  The 
plaintiff  claimed:  (a)  An  order  com- 
pelling): the  defendant  to  give  him  pos- 
session in  accordance  with  the  terms 
of  the  agreement;  (b)  pavment  of  an 
amount  as  damagea  reckoned  at  the 
rate  of  £2  per  day,  from  the  5th  October 
to  the  date  of  poaaession ;  (c)  aa  an  alter- 
native, payment  of  the  sum  of  £1,000 
as  damages  for  breach  of  contract. 

The  defendant  in  his  plea  stated  he 
admitted  that  the  lease  was  signed,  but 
said  that  it  waa  obtained  from  him  by  one 
Bremner  and  Ossrey,  acting  on  behalf 
of  the  plaintiff,  at  a  time  when  he  (the 
defendant)  was  ill  in  bed,  incapable  of 
managinir  his  own  affairs,  and  partly 
delirious,  or  suffering  from  the  after- 
effects of  deliriousness,  and  that  the 
agreement  of  lease  waa  thereby  ah 
initio  null  and  void.  Defendant  held 
that  at  the  time  when  the  agreement 
waa  made  his  mental  condition  must 
have  been  quite  apparent.  Defendant 
on  November  2.  immediately  on  regain- 
ing control  of  his  senses,  at  once  in- 
formed Bremner  and  the  plaintiff  that 
he  could  not  recognise  the  contract,  and 
that  he  repaid  the  sum  of  £10  to  ^  the 
plaintiff,  which  payment  the^  plaintiff 
accepted.  Defendant    denied       that 

plaintiff  disposed  of  his  business  at  Puff- 
adder,  in  consequence  of  obtaining  the 
lease  at  Nous  West.  Defendant  denied 
that  he  had  committed  any  breach  of 
contract. 

Mr.      Burton    (with  whom  waa   Mr. 


Lewis)  appeared  lor  pkintiff ,   and  Mr. 

MacGregor  (witb  whom  was  Dr.  Greer) 
appeared  for  the  defendant. 

Mr.  Burton  eaid  that,  aeeing  that  there 
was  a  written  agreement  and  that  it 
waa  admitted  by  the  defendant;  the 
onus  lay  on  the  defendant  of  beginning 
the  case,  but  as  the  plaintiff  vkd  to 
prove  hie  damagea,  he  would  open  the 
case. 

Louis  Oaarey  stated  he  waa  an  assistant 
in  plaintiff's  store  at  KaJoamaa.  He 
knew  the  defendant  for  aome  time;  he 
was  a  farmer.  Laet  year  witnesa  wa^ 
a^aisting  in  a  buaineaa  at  Puffadder,  which 
was  near  the  bonier  of  Na«naqualand. 
In  October  laat  plaintiff  gave  witness 
certain  instruG^ons,  and  in  consequence 
he,  accompanied  by  Mr.  Bremner,  went  to 
a  farm  called  Qu^bees  to  erect  a  shop. 
They  were  not  satisfied,  and  went  to  de- 
fendamt's  farm  Nous  West.  They  met  the 
defendant  In  the  front  of  the  house.  His 
wife  waa  with  him.  Defendant  waa  com- 
plaining of  a  cold,  but  beyond  that  there 
did  not  eeem  to  be  anything  wrong. 
Witneaa  told  defendant  that  Mr.  Jacob- 
sohn  had  sent  them  to  look  out  for  a 
place  to  set  up  a  ator^  defendant  e^ig- 
gested  thai  tnev  should  have  a  ahop 
on   his  farm.     He  said   he  had  already 


let   a  ahop  to  Millar  Broa.,   but  there 
was  no  agreemeot  that  there  should  not 
be  a  second  shop  on  the  farm.     Defen- 
dant said   he    knew    that    Millar  Bros. 
would  be  vexed,  but  that  aa  he  had    a 
large  rent  (£56)  to  pay  yearlv,  he  had 
to  do  something.      He  said  that  Miller 
Bros,  were  paying  him  £40  a  year,  and 
if  witness  would  pay  him  £26  he  coald 
live  comfortably.     Witness  drew  up  an 
agreement,    to  take    the  place  for  five 
vears  at  an  annual  rent  of  £20  a  jrear. 
The  defendant  signed  it.   The  next  morn- 
ing Mrs.  Sohultee  aaid  that  they  wouikl 
not  have  much  room  in  the  house  with 
the  two   shops,  and  suggested  that  Che 
plabtiff    should    build    a     small   house 
tor      himself      300      yards    away,    and 
he       would       give       up       the       room 
and      kitchen.        The     defendant     said 
that   if   the  plaintiff    wanted   the   place 
at  onoe,  if  tney  erected  a  tent  for  him 
he  would    move  into  it.      Witness  paid 
defendant  £4  on  account,  and  arranged 
to   give   him    £6    more    on   his    return 
from  Puffadder.    The  plaintiff's  buaineas 
at  Puffadder  was  aold  to  a  man  named 
Stroonau.     Witness  had  had  instructions 
to  sell  the  plaintiff's  business  at  Puffad- 
der if  he  could  arrange  with  defendant. 
Witness,  who  had  been  accompanied  by 
Bremner,  returned  to  Nous  West,  the  de- 
fendant's  farm,    about   12    or    13    days 
after.      The  defendant  then  refused   to 
abide  by  his  agreement,  and  would  not 
allow  plaintiff   to  take  over  {yoasessiorn. 
Owing  to  losing  the^  house,  plaintiff  svui- 
tained    a  loss  by  disposing  of   his  shop 
at  Puffadder.  which  showed  a  profit   of 
£700  or  £800  a  year.     The  plaintiff  ^oc 
in   a  large    stock    of    goods,   which    lie 
had  to  store  at  Kakamas.      There  was 
a  buaineaa  loaa  of  aboqt  £400  on  it. 


"OAPB  TIMES"   LAW  REPORTS. 


m 


Cro9B-eziaiiiiiied  hv  Mr.  MaoGregor: 
There  were  a  fern  tarmere  and  another 
dealer  on  tike  farm  when  wrtness  first 
got  there.  Witness  did  not  consider 
th&t  the  aitempt  to  get  a  shop  in  the 
same  building  a«  Millar's  was  sharp 
practice.  There  were  plenty  of  farms 
in  the  district.  Both  shops  could  thrive. 
Other  people  wanted  to  get  shop  rights 
on  that  farm.  Schultz  wse  no<t  in  oed 
when  witness  arrived  at  the  farm.  Wit- 
nesd  did  not  know  thatt  he  liad  been 
very  ill.  The  agree nient  was  signed  in 
the  bedroom.  Neither  witness  nor 
Bremner  were  partners  in  plaintiff^s  busi- 
neias.  Wiitness^  heard  notliing  about  d<^- 
fendant  reiuming  the  £10  to  pkintiff. 
The  business  at  jPuffadder  was  sold  for 
£225.  The  reason  for  the  low  price  was 
thai  the  building  was  on  the  Govern- 
ment Reserve 

Re-examined  by  Mr.  Burton:  When 
he  returned  to  the  farm  and  paid  the 
balance  of  £6,  the  defendant  appeared 
satitified  with  the  contract  ho  ha!d  made 
with  the  plaintiff. 

Julius  Bremner  said  he  was  with  the 
previous  witness  when  the  negotiations 
with  respect  to  the  letting  of  a  shot)  on 
defendajiit's  farm  to  plaintiff  took  place. 
He  oorrobovated  the  statement  made  by 
Oasrey  with  regard  to  the  conversation 
that  took  pUboe.  Defendant  wa£  couch- 
ing, and  had  a  headache  but  otherwise 
he  appeared  to  be  all  right,  and  in  pos- 
session  of  his  senses. 

Cross-examined  by  Mr.  MacGregor: 
It  was  eleven  o'clock  in  the  morning 
when  th«y  reached  the  farm  on  October 
5.  Sohulu  Appeared  to  be  all  right,  and 
the  nexfc  day  when  they  left  Schultz 
was   also   well. 

Solomon  Jacobsohn.  the  plaintiff,  said 
last  year  he  had  two  businesses — one  at 
Puffadder  and  the  other  at  Kakamas. 
He  wished  to  depose  oi  his  business  at 
the  former  place,  because  it  was  too 
far  from  Kakamas,  and  he  sent  his  two 
assistants,  Ossrey  and  Bremner,  to  see 
if  they  could  buy  a  business  nearer  to 
gnlrMif^^*.  When  his  assistants  came 
back  they  brought  the  contract 
they  had  entered  into  with 
Schultz.  As  the  result  of  a  letter  which 
be  heard  had  been  received  f/om  de- 
fendant, he  put  off  for  a  few  days  his 
journey  to  Nous  West. 

Cross-examined  by  Mr.  McGregor: 
When  witness  purchased  goods  from  the 
wholesale  dealer,  he  had  six  months' 
credit  on  drapery,  after  which  he  had 
to  pay  interest  at  7  per  cent.  On 
groceries,  be  had  to  pay  interest  after 
three  months.  Ossrey  was  on  Nous 
West  Farm  about  November  6.  Wit- 
ness saw  the  defendant  about  the  10th 
November.  Witness  remembered  Millar 
and  a  man  named  Ringer  going  into  his 
shop  about  the  middle  of  November. 
Ringer  did  not  band  him  a  letter  from 
Sdinlts.  When  witness  saw  Schultz.  he 
said  he  had  had  a  bad  cold.  Puff- 
adder  was  rather  far  away  from  wit- 
ness's   principal    business.        Strunnen'a 

P  1 


shop  might  have  done  witness  harm,  but 
if  he  could  have  done  so.  he  would  not 
purchase  witness's  business.  Witness 
only  sold  him  about  £100  worth  of 
stock.  Witness  did  not  know  of  any 
farmers  in  that  district  having  gone 
bankrupt  recently,  but  some  might  go. 

Mr.  McGregor :  Then  you  must  be 
going  to  collect  your  accounts?— I  get 
anv  money  I  oan. 

Have  you  any  money  out  at  interest? 
— No;  I  wish  I  had. 

Do  you  lend  farmers  monov?— If  I 
find  a  farmer  hard  up,  I  lend  him  a  few 
pounds. 

Re-examined:  Schultz  never  asked 
witness  if  he  had  received  £10. 

Louis  Ossrey  (re-examined) ;  The  pro- 
fits on  the  Puffadder  business  were 
about  £350  yearly.  It  cost  about  £27 
lOs.  to  take  the  goods  from  Puffadder 
to     Nous  West. 

Cross-examined  by  Mr.  McGregor: 
Witness  did  not  go  to  see  defendant 
shortly  before  the  King's  Birthday.  De- 
fendant did  not  ask  witness  if  he  had 
received  a  letter  from  him. 

By  Maasdorp,  J. :  If  the  plaintiff  dlid 
not  get  these  premises  back,  he  would 
have  to  try  and  get  some     elsewhere. 

Mr.  Burton  closed  his  caee. 

Jacobus  P.  Schultz  (the  defendant), 
examined,  stated  that  in  August  last 
year  he  was  ill,  suffering  from  typhoid 
fever  and  inflammation  of  the  lungs. 
He  was  ill  three  months,  and  was  not 
quite  well  yet.  In  fact,  on  the  way 
down  to  Cape  Town  for  the  present 
case  he  was  taken  ill.  His  head  had 
been  affected.  On  October  6  Mr. 
Goldstein  had  asked  him  for  the  right 
to  put  up  a  shop,  but  witness  told  him 
he  could  not  sell  it.  as  he  had  a^rreed 
to  give  it  to  Millar  Bros.  Witness 
was  taken  ill  shortly  after,  and  was 
removed  to  his  bedroom.  When  he 
again  came  to  his  senses,  about  twenty 
days  had  elapsed.  Witness  did  not 
remember  secini^  either  Ossrey  or 
Bremner.  nor  aid  he  recollect  signing 
the  ap^reement.  When  he  recovered^ 
his  wife  handed  him  the  agreement 
and  £10.  Witness  did  not  see  Ossrey 
on  October  18.  Witness  did  not  remem 
ber  writing  to  plaintiff  telling  him  that 
he  must  not  bring  stock  on  to  the  farm. 
He  recollected  having  a  letter  written 
to  Jacobsohn,  returning  the  £10,  and 
stating  he  did  not  know  what  he  had 
done  when  he  was  supposed  to  have 
signed  the   agreement.  Mr.      Millar, 

accompanied  Dy  Mr.  Ringer,  took  the 
letter.  Ossrey  called  at  the  farm 
again  about  November  6.  He  said  he 
understood  that  Mr.  Millar  had  got 
witness  to  break  his  contract.  Witness 
replied  that  he  had  not.  Ossrey  then 
asked    witness  if    he   oould    bring       the 

goods  to  the  farm,  but  witness  told  him 
e  could  not.  The  contract  with  Millar 
was  made  in  the  July  previous  to  the 
October.  Other  people  had  also  tried 
to   get  the  shop.       Mr.   Goldstein  was 


444 


"CAPE  TIMES"  LAW  BEPORTB. 


one  of  them.  Witness  told  him  that 
he  could  not  giye  it  to  him,  and  that  he 
would  have  to  apply  to  Millar  for  it. 

Cross-examined  by  Mr.  Burton: 
There  were  some  days  during  his  ill- 
ueas  when  he  was  not  in  hia  proper 
senses.  His  wife  would  know  when 
ho  had  full  control  of  his  faculties.  The 
letter  sent  to  the  plaintiff  was  not  dic- 
tated by  the  Millars. 

Elias  Goldstein,  a  trader,  said  he  re- 
membered being  on  the  farm  at  Nous 
West  on  October  6  at  about  8  o'clock 
in  the  morning.  He  talked  business 
with  Schultz  in  the  breakfast  room. 
Schultz  told  him  that  he  had  not  been 
well,  and  about  ten  o'clock  Schultz  went 
to  his  bedroom  feelini^  ill.  He  seemed 
very  weak,  and  later  in  the  day  Schultz 
fell  off  a  chair  in  which  he  was  sit- 
ting. 

Cross-ezammed  by  Mr.  Burton :  There 
was  rather  a  commotion  when  defendant 
fell  off  the  chair,  and  when  he  was 
taken  into  the  bedroom  witness  did  not 
see  him  again.  When  Ossrev  and 
Bremner  came,  they  went  into  tne  bed- 
room. 

Mrs.  Van  Niekerk  stated  she  often 
attended  people  when  thev  were  ill.  She 
remembered  in  October  last  attending 
Schultz,  who  was  very  ill.  She  was  in 
attendance  on  him  when  Ossrey  arrived. 
She  went  home  that  evening,  but  Mre. 
Schultz  sent  for  her  again  next  morn- 
ing, as  he  was  very  ill.  His  illness  con- 
tinued during  the  whole  month  of  Oc- 
tober. During  his  illness  at  times  he 
did  not  know  what  he  was  doin^.  He 
was  constantly  conceiving  different 
plans.  On  one  occasion  ho  k>ld  his  wife 
to  bake  and  slaughter,  as  ho  intended 
•'  trekking  "  to  the  Transvaal.  On  thn 
afternoon  of  October  5  he  was  not  'n 
a  condition  to  transact  business.  In 
fact,  he  was  not  in  his  right  mind. 
Witness  did  not  see  a  letter  going  from 
Nous  West  with  money  in  it. 

Cross-examined  by  Mr,  Burton :  Wit- 
ness gave  her  "patients"  home  reme- 
dies. She  often  mixed  the  medicine  for 
them.  She  gave  Sohultz  medicine  on 
several  occasions.  He  was  suffering  from 
inflammation  of  the  lungs  from  the  pre 
vious  August.  The  fever  left  him  in 
October.  He  was  f^uffcring  from  the 
effects  of  fever  when  Ossrey  and  Brem- 
ner visited  him.  Witness  nunsed  him 
constantly  whilst  giving  him  medicine. 
Witness's  house  y/sa  five  minutes'  walk 
from  Nous  West.  When  witness  wont 
into  the  house  she  saw  Schultz  lying  on 
the  bed.  He  was  sick,  she  spoke  to 
him ;  but  he  did  not  reply.  She  pointed 
out  to  his  wife  that  he  was  very  ill. 
She  did  not  speak  to  either  Ossrey  or 
Bremner  when  she  saw  them. 

Christina  Susannah  Viviers  stated  that 
she  also  attended  sick  people.  She  had 
visited  the  defendant  occasionally^  and 
helped  to  nurse  him.  She  saw  him  in 
the  month  of   September.     He  was  de- 


lirious from  fever  and  inflammation  of 
the  lungs. 

Albertus  van  Niekerk,  Nous  East, 
stated  he  was  a  farmer.  In  October 
last  he  visited  the  defendant.  He  signed 
the  contract  between  Miller  and  defen- 
dant as  a  witness.  Witness  remembered 
Oasrey  and  Bremner  arriving  at  the 
farm.  Schultz  was  very  ill  during  that 
day.  Ossrey  asked  witness  how  Schultz 
was,  and  he  replied  that  he  was  very 
bad.  Later  on  they  went  into  the  bed- 
room. They  said  they  wanted  to  see 
how  he  was.  >\  hen  witness  went  into 
the  bedroom  afterwards,  he  found 
Schultz  lying  on  the  bed.  Schultz  wrote 
to  Jacobsohn  in  November  returning  thi> 
i/'lO  and  declaring  the  coutraot  null  an.1 
void. 

In  cross-examination,  witness  said  he 
was  much  surprised  when  he  heard  of 
the  lease  between  Schultz  and  Jacob- 
sohn. 

William  van  Niekerk,  jun.,  said  that 
on  October  5  Schultz  was  ill  when  Oasrey 
and  Bremner  arrived.  Bremner  and 
Ossrey,  however,  went  into  the  bedroom, 
where  he  saw  tnem  sitting  on  chairs  iu 
front  of  the  bed.  Schultz's  condition  was 
such  that  he  oould  not  do  any  business. 

Cross-examined  by  Mr.  Burton :  He 
did  not  go  into  the  bedroom,  and  he 
did  not  hoar  any  talking.  Schultz  was 
too  ill  to  do  business.  Sohultz  had 
spoken  rationally  to  him  that  morning. 

Abrahani  E.  Millar  said  he  had  a 
contract  with  Schultz  for  a  shop  on  Nous 
West.  He  arrived  at  Nous  West  at  the 
end  of  October,  when  Schultz  was  too 
ill  to  talk  busmess  that  dav-  A  fow 
days  later  ho  spoke  to  Schultz  about  a 
contract  with  Jacobsohn  on  November  2. 
Sohultz  gave  him  a  letter  to  give  to 
Jacobsolm.  Witness  gave  the  letter  to 
a  man  named  Ringer,  who  took  the 
letter  to  Jacobsohu's  shop. 

Cross-examined  by  Mr.  Burton :  He 
heard  about  the  contract  between  Schultz 
and  Jao(>bsohn  when  he  was  on  his  way 
to  Nous  West  to  set  up  business.  Ho 
had  a  few  goods,  and  goods  on  order 
were  coming  round  from  Cape  Town  to 
Port  Nolloth.  Sohultz  told  him  what 
was  in  tho  letter  he  wrote  to  Jacobsohn. 
Witness  eventually  set  up  business  at 
Nous  West,  and  was  still  there.  Ho 
could  not  say  what  his  profits  were  for 
the  past  six  months. 

Harry  Ringer  said  he  took  a  lettor 
written  by  Schultz  to  Jacobsohn,  and  lie 
saw  Jacobsohn  take  £10  out  of  the 
letter. 

Mr.  Saacs,  Deputy  Sheriff  for  the  dis- 
trict of  Kenhardt,  said  the  nearest  doe. 
tor  to  Nous  West  was  at  Kenhardt,  a 
distance  of  128  miles,  and  the  doctor^ 
fee  to  attend  a  jpatient  at  Nous  Wc^t 
would  be  forty  guineas,  exclusive  of  con- 
veyance. 

Mr.  Boonzaier,  black  and  white  ar- 
tist,  said  he  had  a  few  minutes  previous- 
ly seen  Schultz  write  his  name,  and  com. 
paring  it  with  the  signature  on  the  oon- 


"CAPE  TIMES"   LAW  REPORTS. 


445 


tract  there  was  a  slight  differenoe.  In 
the  signature  on  the  ootittract  there  was 
&  stn&e  Ahort  in  the  "  h  "  and  "  u," 
and  it  might  have  been  written  when 
the  writer  was  ill  or  nervous. 

Mr.   McGregor  closed   his  case. 

Counsel  were  then  heard  in  argu- 
ment. 

Mr.  Burton  said  that  with  regard  to 
the  question  of  liability  he  submitted 
that  undoubtedly  the  burden  of  proof 
rested  on  the  defendant.  The  plaintiff 
alleged  a  contract  of  lease  for  certain 

firemiaes,  and  the  contract  was  put  in. 
t  was  a  written  contract  executed  by 
the  parties,  and  there  was  no  question 
as  to  the  signatures,  and  the  contract 
was  admitted.     The  special  defence  had 
been  set  up     that     at     the     time     this 
document  was  signed  by  the  defendant 
he  was  ill  in  bed,  suffering  from  delir- 
iousness,  and  that  he  was  incapable  of 
doing  his   business.     That  was  the   de- 
fence,       and     the     burden    of     estab- 
lishing   rt    to    the     full  rested  on    the 
defendant.   A  defence  of  that  sort  was  a 
very   exceptional    one,    and   one    which 
had  to  be  proved  up  to  the  hilt.    The 
plea  was  not  one   that  one  would  ex- 
pect.   One  would  have  expected  that  the 
defendant  would  plead  that  he  did  not 
understand   what  he  was  doing,  but  it 
stated   that   he   was    ill    in   b^   either 
delirious  or   suffering   from   the  effects 
of  dcliriousncss.     There  was  no  allega- 
tion  that    he    did    not   understand    the 
contract  when    it   was   signed.       What 
one  would  expect  in  a  plea  would  bo 
that  it  was  alleged  that  he  was  in  such 
a  condition  that  he  was  unable  to  un- 
derstand what  he  was  doing.       It     ap- 
peared from  the  evidence  that  ho  sot  up 
a  plea  of  oblivion.     Gencrallv  speaking, 
^ne  TU)man;Dutch   law  on   tno      matter 
was  verv  limited.       It     was   summarily 
^•{^t  obligations  required  a  free  exorcise 
01  the  will  which  could  not  be  present 
where  judgment    was    impeded    in    its 
*^tion,  as,  for  instance,   in  the  case  of 
lunatics.       There    was    some    authority 
with  regard    to    drunkenness.     He    had 
wen  unable  to  find  any     Roman-Dutch 
'aw  which  set  forth  a  defence  like  the 
present      one.  In      "  Kotjae  s       Van 

*^»wen"      it      was    stated     that     all 
jfWigations     muist      arise     out     of     the 

'^W  not  take  place  where  there 
[T*8  a  hindrance  of  the  will.  The  Eng- 
luih  authorities  went  considerably 
lurther,  and  the  obligation  which  rested 
on  a  person  who  set  up  a  defence  of  this 
nature  was  a  very  heavy  and  serious 
**"*•  It  was  held  there  that  a  person 
could  not  raise  a  point  of  insanity  un- 
ites it  was  known  to  the  other  party  at 
the  time  of  the  signing  of  a  contract 
that  ho  was  insane,  and  the  burden  of 
proving  lay  on  the  person  seeking  to 
avoid  the  contract. 

[Maasdorp,  J. :  I  do  not  think  our  law 
goes  as  far  as  thftj 

I  think  not.  Continuing,  he  said 
that    if   th^    Court     was     satisfied    on 


the  foots  that  this  allegation  by  the 
defendant  was  true,  and  that  he  was 
absolutely  non  compos,  he  was  not  pre* 

Eared  to  maintain  that  he  was  bound 
y  his  contract,  unless  he  8ubse<}uently 
could  be  held  to  have  ratified  i^.  He 
speciall:^  referred  to  that,  becaus^  even 
if  the  oircumstances  were  as  alleged  by 
the  defendant,  his  subsequent  conduct 
showed  that  he  was  quite  satisfied  with 
what  had  been  done.  He  submitted  that 
the  defendant  had  not  discharged  the 
burden  of  proof  that  rested  on  him.  Mr. 
Burton  then  reviewed  the  evidence  at 
some  length,  after  which  he  said  ho  sub- 
mitted that  the  defence  was  not  a  bofia 
fide  one,  and  that  the  defendant  con- 
sequently was  bound  by  his  promise, 
and  to  fulfil  his  contract,  and  if  he  did 
not  do  so,  to  pay  the  plaintiff  certain 
damages. 

Mr.  McGregor  said  the  man's  illness 
must  have  been  an  illness  of  a  very 
serious  nature,  and  Mr.  Ossroy  had  en- 
deavoured! to  make  it  appear  as  slight 
as  possible.  It  was  a  good  stroke  of 
business  on  the  part  of  Ossrey  to  en- 
deavour to  oust  Miller  from  tlie  bu.si- 
ness  in  this  district.  The  plaintiff  wish- 
ed a  man  to  br.eak  a  contract  with 
another  man.  llow  could  he  ask  a 
Court  of  Law  to  give  certain  rights 
when  the  getting  of  such  rights  must 
make  a  man  break  his  contract?  They 
did  not  impute  that  the  signature  on 
the  contract  was  a  forgery,  but  they  did 
say  that  Jacobsohn  was  not  in  law  a 
consenting   party. 

Mr.  Burton  was  not  heard  in  reply. 

Maaisdorp,  J.,  said  the  plaintiff  in  this 
ease  claimed  fipecifio  performance  of  a 
written  contract  of  leanc,  and  damages 
for  delay  in  oomplyiing  with  the  condi- 
tions of  the  contract,  or,  as  an  alterna- 
tive, ho  claimed  £1.000  as  damages  for 
broach  of  contract.  The  plaintiff's  case 
was  bawKl  on  two  ajrrecments — written 
contracts  of  lease.  The  one  signed  by 
the  defendant  as  lessor,  and  the  other 
signed  by  Oshrcy  on  behalf  of  the  plain- 
tiff as  lessee.  The  defendant  admitted 
in  his  plea  that  the  contract  was  signed 
by  him,  but  he  said  tltat  it  was  obtained 
from  him  by  one  Bremner  and  Ossrey, 
acting  on  behalf  of  the  plaintiff,  at  a 
time  when  he  (the  defendant]  was  ill  in 
bed,  incapable  of  managing  his  own  af- 
fairs, and  partly  delirious,  or  suffering 
from  the  after  effects  of  deliriousness, 
and  that  the  agreement  of  lease  was 
therefore  ab  initio  null  and  void.  The 
defence  consequently  set  up  in  this  case 
was  that  if  the  contract  was  executed, 
he  was  not  in  a  state  of  mind  to  give 
consent  to  this  contract.  It  would, 
therefore  be  necessary  for  the  Court  to 
try  and  arrive  at  what  the  mental  condi- 
tion of  the  defendant  was  after  the  con- 
tract was  entered  into,  and  if  it^  was  dis- 
covered that  he  was  then  Buffering  from 
a  temporary  derangement  of  mind  aa  a 
result  of  fever  from  which  he  had  been 
suffering,  and  that  this  illness  had  jn- 
duoed  such  a  feeble   condition  of  mind 


446 


ti 


CAPE  TIMES'*   LAW  REPORTS. 


that  he  wsa  incapable  of  managinjr  his 
own  affairs,  then  the  Court  would  arrive 
at  the  conclusion  that  this  contract  was 
null  and  void.     Under  the  circumstances 
placed  before  the  Court  bv  the  witnesses 
for  the  plaintiff,  which  was  wholly  dif- 
ferent from   the   state  of   circumstances 
which  had  bee»  deposed   to  by  the  wit- 
nesses for  the  defence,  it  appeared  that 
Mr.  Bremncr  and  Mr.  Ossrey,  seeing  that 
it  was  necessary  to  change  the  place  of 
business  from  Puffaddcr  nearer  to  Ka- 
kamas,    set  out    with    the   intention    of 
seeing  a  farmer  living  near  to  the  drift 
with   a    view       to    establishing    a   shop 
there.    When      they    arrived    at  defen- 
dant's shop,   they      were    unaware    that 
there  was  any  likelihood  of  obtaining  a 
place  of  business     from    the   defendant, 
nut  they  aaid  that  the  defendant  on  be- 
ing informed  of  their  minion,  told  them 
that  thev  could  have  a  shop  on  his  farm. 
ITndor  these  circumstances  they  entered 
into    the   lease.     It    was    clearly    estab- 
lished  that  during  the  negotiations  two 
documents  were  drawn  up  which     must 
have  been  the  result  of  some  conversa- 
tion between  them,  and  the  writing  of 
these  documents  must  have  taken  some 
little  time.     They  must  have  been  writ- 
ing in  some  part  of  the  house,  where  the 
))arties   were  exposed   to   view   to      amr 
person  who  might  go  into  the  rooms.  It 
wa«  also  stated  that  during  the  negotia- 
tions  they  referred  to  the  contract  made 
by  Mr.  Millar.     They  had  elicited  from 
the   defendant    that    this  document  was 
kept   in  some  case   in    the   front   room, 
and  not  in  the  bedroom  where  the  de- 
fendant was  supposed  to  have  been.  Not 
a  single  one  of  the  witnesses  for  the  de- 
fence saw  any  of  these  transactions.     The 
explanation  ^iven  bv  the  plaintiff's  wit- 
nesses for  this  was  that  they  saw  nothing 
of   it.   because  they   were  not  there.     It 
was   difficult     to   understand   how   they 
could    have  been  there   and   not      have 
seen  these  documents  drawn  up.     It  had 
been  said  by  the  witnesses  for  the     de- 
fence  that   before    Ossrey  and  Bremner 
arrived  at  the  farm,  that  the  defendant 
had  had  &  fit,  and  was  placed   in     bed 
in  a  dying  condition,  but  notwithstand- 
ing the  serious  condition  he  was  in,  Mrs. 
Schultz,   his  wife,   was  enga^d  trading 
with   a  trader,    and  not  paying   any  at- 
tention  to  her    dving      husband.        He 
came  to  the  conclusion  that  if  the  wit- 
nesses put  forward  by  the  defence  had 
been  present  during  the  day,  they  must 
have  left   before    this    agreement      was 
signed.     There    had    been    evidence    led 
to  show   that  the  defendant  was   in      a 
frail  state  of  health  but  no  evidence  bad 
been  led  to  show  that  he  was  unable  to 
do  business.    His  wife  must  have  been 
in  and  out  of  the  room  repeatedly,  and 
was  it  likely  that  she  would   allow   her 
hueband.  who  was  mentally  deranged,  to 
carry  on    a  business       agreement    with 
these  two  men?    Now.  Schultz  admitted 
that   he  had  recovered   from  his   trance 
about  the  middle  of  October,  but  noth- 


ing was  done  until  the  2nd  November, 
when  Mr.   Millaor  arrived  on  the  scene. 
It  was  apparent  that  Mr.  Millar     was 
not  expected.     With  regaid  to  that  let- 
ter, there   had  been   a  great   conflict  of 
evidence,  and  he  had  come  to  the  con- 
clusion that  Mr.  Millar  and  Mr.  Ringer 
had    not  satisfied    him  that    that  letter 
went  into  the  hands  of  the  plaintiff.  Up- 
on the  whole  of  the  evidence  he  had  ar- 
rived at  the  conclusion  that  it  was  im- 
possible  to  decide   otherwise   than,   that 
when  that  contract  was  entered  into  the 
defendant   was  in   full   po8.session   of  his 
faculties.     The   plaintiff  claimed   specific 
performance  that  would  be  rather  diffi- 
cult to  grant,  and  therefore  the     Court 
could    not   do      so.    The   way   to  assess 
damages  was  to  ascertain  what  loss  the 
plaintiff      had   sustained.     Mr.    Millar's 
statement  was  that  he  was  only  making 
a  bare  living  out  of  the  place.     It  was 
expected      that    there    would  be,    some 
profits,   and    he  was  rather   inclined    to 
take   the  measure  of  damages   at  some- 
thing  not  much   mdre   than   the   actual 
lo«ies.     The   Court   thought   that    if    he 
was  awarded  £100.    it  would   meet    the 
jui«tice  of  the  case. 

[Plaintiff's  Attorneys :  Friedlander 
and  Du  Toit;  Defendant's  Attorneys: 
DemiKjrs  and  Van  Ryneveld.] 


SUPREME  COURT 


FIRST  DIVISION. 


[Before  the  Acting  Chief  Justice,    the 
Hon.  Sir  John  Buchanan, J 


MATRIMONIAL   CAUSES. 


HEYBB  V.  MEYEIl. 


J        1905. 
I  June  14tb. 

This  was  an  action  brought  by  Arend 
Meyer,  of  the  Paarl  district,  against  his 
wife,  Sophia  Petronella  Meyer,  of  the 
Stellenbosch  district^  for  restitution  of 
conjugal  rights,  failing^  which  a  decree 
of  divorce.  Mr.  M.  Bisset  was  for  the 
plaintiff;  there  was  no  appearance  for 
the  defendant. 

Wm.  Thomas  Birch,  cleric  in  charge 
of  the  marriage  regrister.  Colonial  Office, 
gave  evidence  as  to  the  registration  of 
the  marriage. 

Arend  Meyer  (the  plaintiff)  said  he 
was  married  to  the  defendant 
on  the  23rd  September,  1884. 
There  had  been  issue  nine  chil- 
dren, eight  of  whom     were     surviving. 


"CAPE  TIMES"  LAW  REPORTS. 


447 


WitDOss  and  his  wife  often  quarrelled, 
and  about  two  and  a  half  years  ago  she 
left  him.  He  had  tried  to  get  her  back, 
but  without  sucoeas.  She  left  him  be- 
cause he  accused  her  of  spending  too 
much  money,  and  because  he  eaid  that 
his  son  must  come  home  as  soon  as  his 
work  was  finished. 

Decree  of  restitution  granted,  defen- 
dant to  return  to  the  plaintiff  on  or  be- 
fore the  20th  July,  failing  which  rule  to 
issue,  calling  on  the  defendant  to  show 
cause  on  the  5rd  August  why  a  decree  of 
divorce  should  not  be  granted. 

PoHea     (August     5ra).       Rule    made 
absolute. 


TUKNBULL  V.   TURK  BULL. 

This  was  an  action  brought  by  Mag- 
dalena  Jaooba  TurnbuU,  of  Cape  Town, 
against  her  husband,  Charles  Henry 
TurnbuU,  whose  whereabouts  is  un- 
known, for  restitution  of  conjugal 
rights,  failing  which  a  decree  of  divorce. 
Dr.  Greer  was  for  the  plaintiff ;  the  de- 
fendant was  in  default.  The  suit  was 
nv  cHictal  citation. 

Wm.  Thoe.   Birch,  clerk  in  charge  of 
\\i>  marriage      register  at  the   Colonial 
^ce.  gave  evidence  as  to  the  registra- 
t\on  of  the  marriage. 

Plaintiff  said  that  ahe  was  married  to 
the  defendant  in  1879.  They  lived  hap- 
P'ly  together  in  Gape  Town  until  1885, 
woen  the  defendant  left  her  of  his  own 
accord.  She  did  not  know  of  any  reason 
for  his  going  away.  Defendant  was  a 
baker. 

(Buchanan,  A.C.J. :  What  do  you  want 
»  divorce  for  now?  Your  husbajid  must 
he  65  years  of  age?J 

I  want  to  get  a  cnanoe  to  be  married 
*frain,  my  lord.  I  want  someone  to 
support  roe. 

A  decree  of  restitution  was  granted, 
defendant  to  retuni  to  or  receive  the 
plaintiff  on  or  before  the  20th  July, 
failing  which  a  rule  to  issue  calling  on 
the  defendant  to  show  cause  on  the  3rd 
AuffUfit  why  a  decree  of  divorce  should 
not  be  granted. 

Postea  (August  3rd).  Rule  made 
absolute. 


R1CHAB06  V.  MILLS. 

Contract — Verbal — Inchoate. 

Though  a  verbal  contract  is 
binding  on  the  imrties^  yet  if 
ft  be  agreed  that  the  contract 
nhouhl  he  reduced  io  icriting^ 
in  order  that  the  parties  may 
ditrHss  th*  terms  thereof,  the 
preceding  verbal  contract  must 
be  regarded  as  inchoate. 


i       1905. 
(Jane  Htb. 


This  was  an  action  brought  by  Walter 
W.  Richards,  farmer,  Queen's  Town  dis- 


trict, against  James  David  Mills,  farmer, 
Fort  Beaufort  district,  for  specific  per- 
formance of  a  certain  sheep  lease  and 
damages. 

The   declaration   set  out   that  on  the 
25th  July,  1904,  it  was  agreed  between 
the  defendant  and  one  George  Richards, 
the  duly-authorised  ageift  of  the  plain- 
tiff,   that   defendant   should    let   to   the 
plaintiff,  who  was  carrying  on  farming 
operations  in  the  Orange  Kiver  Colonv, 
200  merino  owes,  of  2,  4,  6  and  8  teeth, 
in  equal  numbers,  for  a  period  of  three 
years,  at  a  rental  of  2s.  per  sheep  per 
year,  payable  in  advance.     Plaintiff  was 
to  purchase  the  said  sheen  at  the  end  of 
throe  years  at  208.   per  head.       Defen- 
dant  had   the   option   of   receiving   the 
w^hole  or  part  of  the  purchase  price  at 
any  time  before  the  expiry  of  the  period 
of  hire.     Plaintiff  ^ave  two  sureties  for 
the  fulfilment  of  his  part  of  the  under- 
taking, and  it  was  agreed  that  a  written 
agreement  in  the  above  terms  should  bo 
drawn  up  and  executed  by  the  parties. 
Thereafter  tho   plaintiff  had  a  written 
agreement     drawn  up     embodying  the 
above    terms,    and    the    said    agreement 
was  duly  executed  by  himself    and  two 
sureties   on   tho   8th   August,    1904.     On 
tho     12th     August     the     said     George 
Richards,  acting  as  aforesaid,  duly  ten- 
dered to  the  defendant  £20,  first  year's 
rental,   and  requested   him  to  complete 
tho  said  written  agreement  and  tender 
the  said   sheep   to   tho   plaintiff.       Tho 
defendant  refused  the  said  tender,  and 
refused    to  complete   the   agreement   or 
deliver  the  saia  sheep  as  agreed  upon, 
and  though  frequently  requested  to  com- 
ply     with      his      undertaking,    he   had 
neglected    to   do      so.       Plaintiff      had 
suffered   damages   in   the  sum   of  £150, 
and  would  be  damaged  to  the  extent  of 
£400  during   the  period  of  three  years 
if  plaintiff  failed  to  carry  out  the  con- 
tract.      Plaintiff      claimed      immediate 
delivery  of  the  sheep,  an  order  direct- 
ing  the  defendant  to  execute   the  said 
written  agreement  and  damages  in  the 
sum  of  £150,  or,  as  an  alternative  to  this 
claim,  damages  in  the  sum  of  £400  and 
costs. 

Defendant,  in  his  plea,  said  that 
negotiations  were  entered  into  between 
himself  and  George  Richards  for  the 
letting  to  the  plaintiff  of  200  merino 
ewes.  The  period  of  rental  and  option 
of  purchase  were  discussed,  but  no 
term^  were  come  to  as  alleged.  No 
definite  or  concluded  contract  was 
agreed  upon  either  then  or  at  any  time 
between  the  parties.  It  was  arranged 
that  tho  plaintiff  should  submit  for  ap- 
proval of  the  defendant  on  or  before  the 
12th  August  a  written  form  of  agree- 
ment; and  it  was  of  the  essence  of  the 
negotiations  that  the  said  written  agree- 
ment should  be  submitted  on  or  before 
that  date.  Plaintiff  failed  to  present 
an  agreement  on  or  before  that  date, 
but  on  the  19th  August,  George  Richards 
presented  a  certain  written  document  to 
the  defendant  for  approval,  which,  how- 


448 


"CAPE  TIMES"  LAW  REPORtS. 


over,  did  not  set  out  the  true  nature  of 
the  negotiations  between  the  parties, 
lie  prayed  that  the  claim  may  oe  dis- 
missed with  costs.  The  replication  was 
general. 

Buchanan^  A.C.J.,  remarked  that  it 
socmed  a  pity  that  the  witncr.sycs  should 
have  been  brought  to  Capo  Town  for 
fhis  case,  and  that  the  trial  could  not 
have  takou  place  nearer  Queen's  Town. 

Mr.  Burton  (with  him  Mr.  J.  E.  R. 
do  Viiliors)  for  plaintiff;  Sir  H.  Juta, 
K.V.  (with  him  Mr.  Sutton),  for  de- 
fendant. 

George  Richards,  farmer,  Hopsiield, 
district  of  Queen's  Town,  said  that  he 
had  been  on  very  good  terms  with 
the  defendant  for  many  years.  Wit- 
ness's son  was  the  plaintiff  in  this  ac- 
tion, and  had  a  farm  in  the  Orange 
River  Colony.  The  veld  was  good  on  his 
son's  fat  111,  and  witness  was  requested 
by  him  to  try  to  arrange  fur  the  hire  or 
purchase  of  sheep.  Witness  saw  the 
defendant,  and  had  some  talk  with  him 
about  hiring  certain  of  his  sheep.  Wit- 
ness wefit  down  to  the  defendant's  farm 
on  the  20th  July,  and  on  the  24th  July 
witness  and  defendant  (Mitered  into  a 
contract  for  the  hire  of  the  sheei).  The 
sheep  were  to  be  of  2,  4,  6,  and  8  teeth, 
in  equal  nuinberx  On  the  25th  July, 
witneHi*  arranged  that  Mr.  A.  J.  Green 
and  Mr.  Lovemore,  the  latter  of  whom 
was  present,  should  be  securities.  Mr. 
Lovemore  i)repared  a  memo,  of  the  con- 
ditions of  the  contract.  When  witness 
})re8ented  the  leaijo  to  be  signed  the  de- 
endant  said  it  was  a  one-sided  affair, 
and  that  he  would  not  sign  it.  Defen- 
dant before  then  had  tolu  him  that  ho 
had  had  some  bother  with  his  brother, 
and  that  he  would  be  glad  if  he 
(Richards)  could  arrange  to  get  the 
sheep  elsewhere,  otherwise  he  (defen- 
dant) would  have  to  let  him  have  the 
sheep.  Witness  said  that  he  would  try 
to  get  sheep  elsewhere,  but  at  no  time 
did  he  release  the  defendant  from  his 
agreement.  He  made  every  endeavour 
to  obtain  sheep,  but  he  did  not  succeed. 
It  was  impossible  to  get  sheep,  although 
both  witness  and  his  son  had  tried  both 
in  the  Colony  and  in  the  Orange  River 
Colony,  even  until  February  of  this 
year.  lie  had  been  very  anxious  to 
avoid  unpleasantness  with  the  defen- 
dant. In  regard  to  the  question  of 
damages,  he  calculated  that  his  son 
would  have  lost  at  the  end  of  three 
years  about  £425  by  not  having  had  the 
sheep. 

By  the  Court :  Th©  memorandum  pro- 
duced wa«  a  correct  copy  of  the  agrcM?- 
ment.  It  said  nothing  about  the  lambs, 
but  the  lambs  were  to  bo  retained  by 
plaintiff. 

Walter  W.  Richards  (the  plaintiff) 
bore  out  his  father's  evidence.  W^hen 
defendant  repudiat<od  the  agreement. 
witno0s  tried  to  get  other  sheep,  but 
without  avail,  and  he  wrote  to  defen- 
dant stating     that  the  matter  mu»t  go 


through,  as  he  had  arranged  to  take  an- 
other farm. 

Henry  Thomas  Lovenaore,  farmer  and 
boring  contractor,  said  thero  was  an 
agreement  between  plaintiff  and  him- 
self to  share  the  sheep  when  plaintiff  got 
them  from  defendant,  and  the  agree- 
ment between  the  parties  was  entered 
into  in  his  presence.  Witness  made 
notes  of  what  took  place,  and  these 
notes  were  road  by  Mr.  Mills,  who  said 
it  waa  all  right. 

Cross-examined  :  Witness  was  to  share 
any  damages  that  were  awarded  in  this 
action,  as  he  was  to  have  got  half  the 
sheep,  but  plaintiff  was  paying  the 
costs  of  the  action. 

Mr.  Do  Villiers  closed  his  case. 

Defendant,  in  his  evidence,  said  that 
on  the  first  interview  on  the  25th  July, 
no  agreement  was  concluded,  because, 
in  the  first  plaee,  witness  had  to  be  satis- 
fied as  to  sureties,  and  in  the  second 
place,  the  safe  custody  of  the  sheep.  It 
was  arranged  that  Geo.  Richards  should 
present  a  written  form  of  agreement  on 
the  12th  August.  Witness  dipped  his 
sheep,  and  they  were  ready  to  be  hand- 
ed over  on  the  12th  August.  George 
Richards  did  not  come  to  his  farm  until 
Friday,  the  19th  August;  witness  was 
c|uite  sure  as  to  the  dates.  Witness  told 
Richards  that  he  had  come  too  late, 
and  that  he  did  not  intend  to  hire  out 
the  sheep,  as  he  thought  he  could  do 
better  on  his  own  account.  He  did  not 
j.romi^e  to  lot  Richards  have  his  sheep 
if  he  were  unable  to  find  any  elsewhere. 

Cross-examined:  Witness  denied  that 
he  had  ever  told  the  plaintiff's  father 
that  his  farm  was  over-stocked.  The 
memo,  made  by  Mr.  Lovemore  was  read 
over  to  witness.  He  did  not  agree  to 
the  sureties  proposed  by  George  Rich- 
ards. He  was  not  satisfied  as  to  who 
should  be  responsible  for  the  sheep  dur- 
ing the  term  of  the  l€^ase.  He  told 
George  Richards  definitely  ou  the  19th 
August  that  he  was  going  on  his  own 
*'  hook."  Witness  did  not  hear  anv- 
thing  further  from  George  Richards 
between  the  I9th  August  and  late  in 
fc'<^ptember,  and  he  therefore  thought 
that  Richards  had  in  the  meantime  ob- 
tained sheep  elsewhere. 

Mrs.  Elizabeth  J.  Mills  (mother  of  the 
defendant)  said  that  her  son  was  ex- 
pecting Mr.  Richards,  sen.,  to  call  on 
the  12th  August.  Mr.  Richards,  son., 
however,  did  not  come  until  the  follow- 
ing Friday,  the  19th  August. 

Sir  H.  Juta  olosed  his  case. 

Counsel  Ivaving  been  heard  in  argu- 
ment on  the  facts, 

Buchanan,  A.C.J.,  said  that  ho 
thought  it  might  be  laid  down 
88  a  principle  of  law,  with  us 
especially,  tha^  verbal  contracts  if  fairly 
proved  were  binding,  if  the  parties  had 
entered  into  a  contract,  and  the  reduc- 
ing afterwards  to  writing  was  merely  to 
be  a  record  of  what  had  been  decided 
upon,  the  writing  was  not  neoesaary     to 


"CAPE  TIMBS"  LAW  REPORTS. 


449 


inake  a  ralid  oontract,  but  if  it  were  the 
miention  of  the  parties  to  have  the  do- 
cument reduced  into  writing,  so  that 
they  could  disciKS  the  tenne,  they  were 
not  bound  until  the  contract  had  been 
dUcussed  and  duly  executed.  In  this 
cage  the  onus  waa  on  the  plain tiif  to 
prove  that  what  took  place  on  the  25th 
July  was  an  out-and-out  contract.  This 
was  denied  by  the  defendant.  Lookint^ 
at  all  the  circumstances,  he  (the  learn- 
ed judge)  had  come  to  the  conclueion 
that  the  only  judi^mont  he  could  give 
was  one  of  absolution  from  the  instance 
with  costs.  The  plaintiff  had  not  dis- 
charged the  onus  that  lay  upon  him  of 
proving  that  a  contract  was  entered  in- 
to on  the  25th  July.  Defendant  would 
be  allowed  his  ezpcnsoB  as  a  necessary 
witness. 


SUPREME  COURT 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan  ] 


ADMISSIONS 


/       1905. 
i  June  loth. 


Mr.  P.  8  T.  Jonetj  moved  for  the 
•dmiaBjoTi  of  Kenneth  Wiley  as  an  attor- 
ney and  notary. 

Applicaition  granted  and  oaths  ad- 
ministered. 

w^*"-  Close  moved  for  the  admission  of 
?^  E.  V.  Bergh    as   an   attorney  and 

AppUcaiiofn  granted  and  oaths  ad- 
ministered. 


^^ES,  HATHEW  AND  CO.  V.  CHETTY. 

of  u       ®'  ^*  •^^nos  moved,  as  a  matter 
^yg^ncy,  for   an   order  enabling  the 
K«»ion€ni  to    enforce   their    landlord's 
J.^"<>°  certain  poriflhables  at  the  Central 
'™K  Store,    Longmarket-street,      Oape 
Aown   and   to  sell   the  said  perishatbles 
^Of  ibe  benefit   of  their  claim  of  £120 
<ui«  for  rent.      Respondent  occupied    a 
/r»  f™^"?  J?*''*  °^  Heynes,  Mathew 
A  T    '*  builaingfi,  corner  of  Adderley 
jnd  Longmarket  streets,  and  petitioners 
™£roa8on  to  believe  that  certain  judg- 
ments had  been  taken  against  her  in  the 
«-M.'8  Court, 

Order  granted  as  prayed,  pending  an 
action  to  be  insthuted  forthwith. 


PROVISIONAL  ROLL. 


EQUITABLE  FIBR  ASSURANCE  CO.  V. 
LA    GRANOE. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional eehtcnce  for  £48,  interest  on  a 
mortgage  bond,  and  for  £3  12s.  6d.  in- 
surance premium  and  sftamps. 

Order  granted. 


FARRELL  V.  AREND  AND  SOLKER. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  promissory  note  for  £299. 
Order  granted. 


LOMBARD  V.  MTBUROH. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  promissory  note  for  £500, 
with  intercut. 

Order  gran'ted. 


CAPORN  AND  CO.  V.  BOWB  ROWE. 

Mr.  Close  moved  for  provisional  sen- 
tence on  a  bill  of  exchange  for  £265  148. 
9d.,  endorsed  by  the  defendant  as  sure- 
ty. 

The  afRdavit  of  the  defendant  admit- 
ted that  he  signed  the  bill  of  exchange, 
but  the  bill  in  its  present  state  was  not, 
he  said,  in  that  form  when  he  signed  it. 
Certain  material  alterations  had  been 
made  since  ho  signed  the  bill  in  regard 
to  the  period  of  payment.  He  submit- 
ted that  under  the  circumstances  the 
plaintiffs  had  lost  all  recourse  by  law 
against  him.  The  affidavit  of  George 
Rowc  Rowe,  broker  of  the  defendant, 
fttajted  that  his  brother  Henry  waa  in 
3*0  way  a  party  to  the  alterations  made 
in  the  bill. 

The  answering  affidavit  of  William 
Lindley,  manager  of  the  plaintiff  ctrtn- 
panv,  stated  that  the  alterations  were 
made  in  the  presence  of  Henry  Rowe 
Rowe.  Doponen't  went  on  to  explain 
the  circumstances  under  which  the  draft 
had  been  drawn,  as  an  outcome  of  a 
debt  due  from  George  Rowe  Rowe  for 
bricks  supplied. 

The  replying  affidaviit  of  Henry  Rowe 
Rowe  entered  in  detail  into  the  whole 
transaction. 

Buchanan,  A.C.J.,  suggested  that  the 
parties  should  go  into  the  principal 
case. 

Mr.  Close  argued  that  the  matter  was 
one  that  could  properly  be  determined 
now. 

Mr.  Gardiner  (for  defendant)  waa  not 
called  upon. 

Buchanan,  A.C.J.,  said  that  there  was 
a  direct  conflict  on  the  facts  as  dis- 
closed by  the  affidavits.  The  paTti<« 
would  be  ordered  to  afo  into  the  prin- 
capal  case,  oosta  to  abide  the  retult. 


450 


"CAPE  TIMES*'   LAW  REPORT*. 


BlOa  V.  WEBSBLB. 

Mr.  De  Waal  moved  for  provisional 
sentonoe  on  a  promissory  note  for  £106 
3fl.  4<i.,   with  interest. 

Order  granted. 


PROVIDKNT  LAUD  TRUST  V.  O  CONNOB. 

Mr.  Watermeyer  moved  for  provisional 
sentence  on  a  dishonoured  cheque  for 
£150. 

Buchanan,  A.C.J. .  eaid  that  a  tele- 
gram had  been  received  from  the  de- 
fendant, who  stated  that  he  was  leaving 
Kimberley  for  Cape  Town,  but  he  did* 
not  say  that  he  had  a  defence  to  the 
cjaim.  Provisional  eentenoe  would  be 
granted. 


OHLSSON'B  BRBWERIE8  V.  WBBTWOOD. 

Mr.  Gutsche  moved  for  provisional 
«entence  on  a  lease  for  £225,  rent  due 
for  three  months. 

Order  granted. 


PARKER  V.  BTBVEKSON. 

Mr.  Sutton  moved  for  provisional  sen- 
tence for  £81,  interest  on  two  mortgage 
bonds. 

Order   granted. 


GALLOWAY  V.  TIRAN. 

Mr.  Baily  moved  for  provisional  sen- 
tence on  an  I.O.U.  for  £10,  with  in- 
terest and  costs. 

Order  granted,  eubjeot  to  the  docu- 
ment put  in  being  stamped  if  required. 


BSXATE  WORDON  V.  BAILT. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £750.  due 
by  reason  of  the  non-payment  of  inter- 
est. Counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared exeoutal>le. 

Order  granted. 


VISSBR  V.  GOEDMALS. 

Mr.  Alexander  moved  for  a  decree  of 
civil  imprisonment  on  a  judgment  of 
this  Court  for  £80,  together  £7  ICs. 
costs.  Defendant,  it  was  stated,  rc<?'doi 
at  Humansdorp,  and  plainti£F  resided  at 
Hanover. 

Order  granted. 


ILLIQUID  ROLI. 


ARDEEKE  V.  BIDEN. 


I         1906. 

iJune  16th. 


Mr.  P.  S.  T.  Jones  said  that  this 
matter  was  standing  over  for  produc- 
tion of  an  affidavit  of  service  of  notice 
of  bar.  He  moved  for  judgment  for 
iBlOO,  and  produced  affidavit  of  service 
as  required. 

Order  granted. 


TATES  V.  FISHER. 

Dr.  Greer  moved  for  judgment,  under 
Rule  319,  in  default  of  plea,  for  can- 
cellation of  A  certain  contract,  repay- 
ment of  £300  paid  as  deposit  and  costs  of 
suit,  la  claim  for  damages  having  been 
dropped. 

Order  granted. 


RECEIVERS  ASSIGNED  ESTATE  HARRISON 
V.  GIOVANNI  AMD  DI  BIaBBIO, 
TRADING  AS  DI  BIABSIO. 

Mr.  Scarle,  K.C.,  moved  for  judg- 
ment, under  Rule  319,  in  default  of 
plea  upon  a  declaration  for  cancellation 
of  lease  of  certain  premises  at  Observa- 
tory-road by  reason  of  two  breaches  of 
the  conditions  of  the  lease.  Counsel 
said  that  he  now  applied  for  judgment 
against  Luigi  di  Biassio  for  cancellation 
of  the  lease  and  for  £40  lOs.  due  by  way 
of  rent.  The  claim  for  damages  would 
not  be  pressed. 

Order  granted. 


BHUR  AND  ABRAHAMBON  V.    SCUAPEBA. 

Mr.  Lewis  moved  for  judgment,  under 
Rule  329d,  for  £80  ISs.  7d.,  goods  sold 
and  delivered  and  moneys  disbursed. 

Order  granted. 


TURF  HALL  ESTATE  V.  OAKLET. 

Mr.  Bailey  moved  for  judgment,  under 
Rule  329d,  for  £175,  bemg  first  and 
second  call  on  shares  in  the  Turf  Hall 
Estate,,  Limited,  less  £35  paid  on  ac- 
count. 

Order  granted. 


JOHNBON  AND  00.,  LTD.  V.  ROTAL  HOTBIi 
COMPANY,  LTD. 

Mr.  Van  Zyl  moved  for  judgments  un- 
der Rule  319,  in  default  of  plea  for  £207/ 
with  interest  a  tcmvore  morae  and  coata. 

Ordered  to  stand  over  pending  proof 
of  service  of  notice  of  bar. 


"CAPE  TIMES*'  LAW  REPORTS. 


451 


GENERAL  MOTIONS. 

RAUBEIiHEIMEB  V.  BAUBSN-  f        .905. 

HBIMER.  {  June  loth. 

Divorce-— Order  for  restitution  of 
conjugal  rights. 

Before  divorce  can  be  granted 
for  failure  to  comply  with  an 
order  for  restitution  o/cotrjugal 
rights,  service  of  the  rule  nisi 
must  be  proved  by  affidavit.  It 
is  not  Kufficient  to  shoio  that 
the  nde  must  have  come  to  the 
defemlanVs  knowledge  in  some 
iray  or  other  (e.g.)  because  he 
or  she  mas  p^'esent  in  Court 
when  it  icas  granted. 


Mr.  P.  S.  T.  Jones  moved  for  a 
decree  of  divorce  in  defoult  of  the  wife's 
compliance  with  an  order  for  restitution 
of  conjugal  rights. 

His  Lordship  aaid  that  there  was  no 
*™javit  of  service  of  rule. 

Mr.  Jones  said  that  the  defendant  was 
now  in  court,  as  she  was  when  the  rule 
WW.  issued. 

His  Lordship  said  that  no  order  oould 
f«  ?»ven  until  the  rule  had  been  served. 
"  would  be  necessary  to  serve  the  rule 
on  the  defendant. 

*u  ■  .^^  applied  for  an  extension  of 
the  return  da^. 

»n„i5  ^r^ship  said  that  the  return  day 
37.  b**  extended  until  the  22nd  June, 
lil  V"lf"le  nisi  would  be  extended  un- 
"i  the  6th  July. 


^a?  parte  ESTATE  HOKK. 

undPMkH"^    moved     for    a    rule    nisi 
^Yp®  Derelict  Lands  Act  to  be  made 

^"le  made  absolute. 


VADASZ  V.  VADA8Z. 

,.y.  Burton  moved,  on  behalf  of  Mrs. 

ruu'  for   delivery   of   certain    minor 

fniJdren. 

.Jj^  applicant  stated  in  her  affidavit 
joat  she  wan  defendsJit  in  a  divorce 
^'  Some  time  ago  the  present  respon- 
dent went  to  her  house  with  a  detective 
u?j  Ofeberg,  and  demanded  the  two 
Children  He  locked  her  up,  and  took 
tne  children  away.  The  children  were 
now  in  the  Nazareth  Home,  and  ex- 
P^**«d  a  wish  to  return  home. 

.£''■  Gjreer  for  the  reepondent,  ad- 
n»Kted  that  he  took  the  children  away, 
nut  did  so  because  of  her  neglect  and 
gMconduct.  Ho  had  put  them  into  the 
I  £1?  Hom«  for  safoty  sake.  He 
iocked  her  up    because  he   feared  she 


would  take  some  of  the  oJothes  that  he 
had  packed  in  a  box  for  the  children. 

Buchanan,  A.C.J.,  declined  to  make 
any  order  on  the  application,  but  di- 
rected the  plaintiff  to  go  to  trial  during 
the  present  term. 


£!x  parte  ESTATE  OK  DEAN. 

Mr.  Watermeyer   moved  for   leave  to 
raise  a   loan  on    mortgage. 
The  application  was  granted. 


JCx  parte   DEWDNEY  AND  WEKNICH. 

Mr.   De  Waal  moved  for  leave  to   re- 
gister an  ante-nuptial   contract. 
The  application  was  granted. 


Ex  parte  young. 

Mr.  Douglas  Buchanan  moved  for  au- 
thority to  sell  certain  property. 
The  application  was  granted. 


JSx  parte  grbknino.       {  j Jf^iy,, 

Attorney  —  Professional   miscon- 
duct— Removal  from  roll. 

This  was  an  applioanon  by  Robert 
Greening,  of  Cape  Town,  for  re-ad- 
miisaion  to  practise  as  an  attorney  of 
the  court. 

The  petitioner's  affidavit  stated  that 
on  the  16th  March,  1904,  he  was  sus- 
pended from  practice  as  an  attorney  of 
this  court  for  twelve  months,  in  con- 
sequence of  certain  irregularities  in  con- 
nection with  his  insolvency,  which  was 
held  to  be  culpable,  and  for  which  he 
was  punished.  The  proved  debts  of 
his  insolvency  amount^  to  £750  or 
thereabouts.  He  also  owed  £250,  un- 
proved. During  the  period  of  his  sus- 
pension, he  had  been  unable  to  make 
anjr  arrangements  to  pay  his  debts  or 
maintain  himself,  beyond  securing  a  very 
poor  and  precarious  livelihood  at  mis- 
cellaneous clerical  work.  He  was  will- 
ing, if  his  application  were  granted,  to 
devote  the  whole  of  his  income,  saving 
a  small  allowance  for  his  own  mainten- 
ance, to  the  payment  of  his  debts.  He 
had  no  other  means  of  support  than 
the  practice  of  his  profession,  and  was 
unacquainted  with  any  other  business 
or  calling. 

The  aftdavit  of  William  Scott  Bigby, 
of  Pietermaritzburg,  secretary  of  tihe 
Natal  Law  Society,  stated  tlit  Green- 
ing, on  the  facts  in  regard  to  the  con- 
viction in  Cape  Colony  com-ing  to  their 
society's  notice,  was  (suspended  on 
their  application  by  the  Supreme 
Court.  In  1890  or  1900  a  complaint  was 
made    to    the    Law   Society   ocmoernflng 


4^t 


"CAt»E  TtMBS"  LAW  BEt'OEtS. 


Greening,  but  owing  lo  the  disorgau- 
iswti<Mi  caused  by  the  war,  no  stepe 
were  taken  at  that  time. 

The  affidavit  of  Alexander  John 
McCallum,  secretary  of  the  ^P« 
Law  Socie>ty,  i>tat«d  tha>t  on  tihe 
17'th  April  the  society  applied  for 
an  extension  of  the  rettrrn  day 
uiJtil  the  l»t  June,  to  enable  them  to 
make  proper  investigation  as  to  oertaau 
charges  made  against  the  petitioner, 
both  in  this  colony  and  in  Natal.  It 
was  alleged,  for  instance,  that  he  re- 
ceived from  clients  numerous  sums  of 
money,  for  the  express  purpose  of  pay- 
ing the  fees  of  counsel,  and  that  he  con- 
verted the  said  sums  to  his  own  uses, 
and  that  ho  had  been  guilty  of  fraud. 
Deponent  had  also  received  certain 
information  from  Mr.  A.  Cathcart 
Nicholls,  of  Durban,  regarding  mal- 
practices and  unprofessional  conduct  in 
Natal  on  the  part  of  the  petitioner.  On 
these  groundsj  deponent  asked  for  an 
extension  of  tune  to  the  lot  June. 

The  affidavit  of  Henry  Cathoart 
Nicholls  of  Durban,  stated  that 
between  1898  and  1900  he  had 
numerous  transactions  with  tihe  peti- 
tioner, of  which  he  set  out  par- 
ticulars. On  the  25th  March,  1900, 
Greening  loft  Natal  for  England.  He 
returned  in  February,  1901,  but  avoided 
Durban.  In  February,  1901,  deponent 
instituted  an  action  against  Greening 
for  the  sum  of  £400,  due  to  him,  but 
owing  to  Greening's  being  in  hiding 
and  liis  continuous  change  of  address, 
service  could  not  be  effected  on  him 
until  the  end  of  March.  Appearance 
was  entered  by  Greening  to  the  sum- 
mons, but  he  abandoned  his  address, 
and  again  went  into  hiding.  Deponent 
obtained  judgment  for  £310,  with 
interest  and  costs.  That  judgment  was 
still  unsatisfied.  Greening  was  cited 
by  the  Government  to  appear  in  refer- 
ence to  the  unstamped  documents  and 
other  irregularities  in  his  protocol,  and 
then  absconded.  Deponent,  on  investi- 
gating Greening's  affairs,  found  numer- 
ous instances  of  irregularity  in  the  course 
of  his  practice. 

The  affidavit  of  f James  Murray,  of 
Durban,  a  carrier,  stated  that  in 
January,  1900,  he  employed  Greening 
to  collect  a  debt  for  him,  and  although 
Greening  collected  the  whole  or  tflie 
greater  part  of  the  debt,  he  (Murray) 
could  not  get  any  account  or  payment 
from  ihim. 

The  affidavit  of  George  AiUred  Moss, 
of  Cape  Town,  stated  that  in  the  case  of 
Rex  against  Moss  and  Savare,  heard  at 
Paorl  in  1902.  he  employed  Greening  as 
his  attorney,  and  Mr.  Schreiner  and  Mr. 
W.  P.  Buchanan  appeared  as  counsel. 
During  the  few  months  that  Greening 
hod  charge  of  the  case,  he  paid  him 
about  £550.  A  considerable  portion 
of  this  money  was  handed  to  Green inr. 
on  the  representation  that  it  was  re- 
quired   to  pay   couusers  fees.    The   de- 


ponent afterwards  learned  from  Mr. 
Schreiner  and  Mr.  Buchanan  that  neither 
of  them  had  received  their  fees  from 
Mr.  Greening[.  He  paid  a  cheque  for 
£75  to  Greening  for  the  specific  purpose 
of  having  50  guineas  paid  to  Mr. 
Schreiner. 

An  answering  affidavit  of  the  ap- 
pkican>t  Btcuted  tlhat  in  regard  to  the 
com-pLaint  alleged  by  Mr.  Dig'by  no 
notice  was  given  to  him  at  any  time. 
He  went  on  to  say  that  he  denied  all  and 
singular  the  insinuations  and  inuendoos 
of  Mr.  McCallum's  affidavits,  and  ob- 
jected to  all  such  parts  thereof  as  savour- 
ed of  opinion,  argument,  hearsay,  and 
the  like.  In  regard  to  Mr.  Cathcart 
NichoU  s  affidavit,  he  said  that  Mr. 
Nicholls  was  unhappily  afflicted  with  de- 
mentia, and  was,  he  verily  believed,  of 
unsound  mind,  although  not  so  found  by 
judicial  inquisition.  Mr.  NdchoUfl  was 
refused  admission  as  an  attorney  in 
Natal  upon  the  finding  of  the  Supreme 
Court  that  his  bad  character  and  intem- 
perate habits  debarred  him  therefrom. 
Applicant  went  on  to  allege  that  during 
his  absence  from  Natal  in  1900  he  gave 
Nicholls  his  general  power  'rf  attorney 
and  gave  into  his  custody  ^ll  his  pro- 
perty and  considerable  eume  of  money 
for  collection.  Thereafter,  Nicholls  en- 
deavoured to  extort  money  from  him  by 
means  of  blackmail  and  throats.  He 
gave  Nicholls  a  promise  of  £400,  secured 
by  promissory  notes  or  bills  of  exchange, 
subject  to  the  fulfilment  of  his  promised 
service.  He  (Greeninj^^)  declined  to  meet 
thcee.  and  Nicholls  m  turn  declined  to 
render  him  any  account  of  his  dealings. 
As  to  the  provisional  judgment,  depon- 
ent intended  to  return  and  contest  the 
claim  put  forward  by  Nicholls,  but  was 
prevented  from  doing  so  by  financial 
incapacity.  Deponent  went  on  to  make 
other  allegations  against  Nicholls. 

The  affidavit  of  Helena  Olscn, 
Addison --road,  Salt  River,  ertated  thai 
she  was  one  of  the  plaintiffs  in  the 
case  of  Olsen  and  others  against  Boyd 
and  others,  and  that  Greening  was  lier 
legal  adviher.  At  various  times  in  1902 
she  paid  him  considerably  over  £450 
with  a  view  of  carrying  on  the  case.  On 
several  occasions  Greening  was  paid 
nK>ney  on  the  distinct  representation  t>y 
him  that  it  was  ret^uirea  to  pay  coun- 
sels' fees.  One  of  these  payments  wacf;  a 
sum  of  £25,  for  which  she  received  a 
receipt  signed  by  Mr.  W.  G.  Goulton. 

AppUoant'e  anawering  affidavit 
statea  4^hat  although  he  received 
over  £400  from  Mrs.  Olsen,  his 
expenditure  for  her  one  way  and  an- 
other was  about  £600,  and  his  coste  if 
made  out  would  amount  to  over  £1,000. 
He  denied  having  received  a  sum  of 
£25  for  counsel.  One  sum  was  paid  to 
Mr.  Coulton  and  the  other  to  him  (de< 
ponent)  for  his  own  fees.  He  had  never 
failed  to  effect  anv  specific  purpose  for 
which  money  had  been  paid  to  him. 
Moss's  affidavit  be  declarea  was  worded 


"CAPE  TIMES"   LAW  REPORTS. 


453 


to  deceive.  He  acted  for  Moss  and  his 
partner  Robertson  in  many  matters  be- 
sides the  criminal  oaae.  He  denied  hav- 
ing received  £550  from  Moss.  The  50 
guineas  for  Mr.  Schreiner  he  (Greening) 
duly  paid  over.  There  vfas  another  sum 
ci  50  guineas  paid  to  Mr.  Schreiner,  but 
Moss  had  not  yet  paid  that  to  him 
(Greening),  nor  had  ne  paid  him  Mr. 
Buchanan's  feoa.  In  regard  to  the  in- 
Btances  mentioned  by  Mr.  Nicholls,  de- 
ponent denied  having  taken  Natal 
clients  money.  He  denied  that  he  was 
tited  to  appear  by  the  Government  on 
his  protocol.  The  Master  or  Registrar 
of  the  Supreme  Court,  Natal  wrote  to 
him  to  call  and  see  him.  He  aid  so,  and 
^aiisfied  him.  His  appointment  was  can- 
celled. He  had  no  recolleotion  of  James 
Murray.  Moss,  he  said,  in  November, 
l^t,  told  him  that  the  secretary  of  the 
Law  Society  was  canvaasin^  for  com- 
plaints, and  had  offered  him  £10  to 
make  one.  Moss  had  demanded  £10 
from  him  under  threat  of  making  affi- 
ilavit  ai^aiiMrt  him.  The  affidavit  of 
Hildvard  ^  Home  Drum  mend,  etatod 
that  in  November  Last  Moss  went  in/to 
his  office  and  asked  Greening  to  aeaist 
him  in  a  job.  He  apologised  to 
Greening  for  having  treated  him  badly, 
and  said  that  the  Ijavv  Society  had 
offer<Ml  him  £10  to  make  a  complaint 
aifainst  him,  but  that  he  could  notcon- 
fciemioiisly  do  so.  The  affidavit 
t'f  WiUiam  Frederick  Robertson, 
stated  that  Moss  had  made  misrepresen- 
lationi*  in  regard  to  the  tranaactions 
between  them  arising  out  of  the  criminal 
case  between  them.  Robertson  went  on 
to  accuse  Moss  of  having  betrayed  Green- 

'  by  misrepresenting  him  to  Mr. 
?chreiner,  betravLng  deponent  by  deny- 
ing that  there  liad  been  a  partnership 
between  Moss  and  himself  and  betrayed 
both  Mr.  Schreiner  and  Mr.  Buchanan 
b^  avoiding  their  fees  and  blaming 
Greening. 

The  aiffidayit  of  William  Gordon 
Coulton,  soliieitor,  Oa>pe  Town,  stated 
that  the  t^tatemenit  of  Mrs.  Olsen's  affi- 
davH;  in  paragraph  5,  .to  the  effect  that 
£25  was  paid  to  Greening,  wias  untrue. 
The  6aia  sum  was  paid  to  him  (de- 
ponent). Paragraph  o  was  alleo  untrue, 
inasmuch  as  .the  £25  tiierean  referred 
to  was  paid  to  Greening,  not  for  oouii- 
*eB  fees,  but  on  aecoun<t  of  hi«  own 
fees. 

The  af&davit  of  Edward  Collins,  of 
t  nierion  Chambers,  Cape  Town,  stat- 
ed that  on  the  26th  July,  1902,  while 
®npk)yed  by  Greening  as  a  clerk,  Green- 
ing  handed  to  him  £62  IQs.  in  oaaliL  with 
instructions  to  pay  same  to  Mr.  Schrei- 
«»«.   This  deponent  did. 

The  replydng  affidavit  of  Geo. 
Alfred  Mom,  denied  tthe  allegia- 
tiOM  contained  in  the  applicant's 
affidavit  to  the  effect  that  he  acted 
ror  him  in  another  capacity.  The 
statements  with  regard  to  the  alleged 
bribe  were  unfounded.    Greening  at  the 


time  with  one  Drummond  was  running 
a  native  labour  bureau,  and  engaged 
him  to  act  as  a  native  conductor,  but  as 
he  kept  him  for  a  fortnight  without 
doing  anything,  he  claimed  his  fee  of 
£10,  which  had  been  agreed  upon. 
Greening  was  arrested  in  December,  but 
was  acciuitted.  He  had  also  read 
Drummond's  allegations,  which  were 
false.  He  annexed  to  his  affidavit 
chcaue  counterfoils  to  prove  that  he  had 
paid  Greening  £300.  He  know  Green- 
ing well,  and  believed  him  to  bo 
thoroughly  untrustworthy  and  unreliable 
in  both  public  and  private  life. 

A  further  affidavit  made  by  Mrs. 
Olsen  was  also  read  in  support  of  her 
previous  affidavit.  The  further  affidavit 
of  the  secretary  of  the  Incorporated 
Law  Soc-iety  stated  that  the  petitioner 
was  on  the  12th  April,  1902,  admitted  an 
attorney  of  the  Supreme  Court.     In  his 

{)etition  for  admission  he  allowed  it  to 
)o  understood  that  ho  had  come  direct 
from  England.  That  after  his  admis- 
sion the  Law  Society  discovered  that  he 
had  been  practising  as  a  an  attorney 
and  notary  in  Natal,  and  that  ho  had 
absconded  from  Natal,  and  that  at  the 
date  of  his  admission  to  the  Sui)renM) 
Court  steps  were  being  taken  in  Natal 
with  a  view  to  having  him  struck  off  the 
rolls,  and  that  he  had  already  been  re- 
moved from  tho  roll  of  notaries.  That 
in  corroboration  of  tho  foregoing  he 
directed  the  attention  of  the  Court  to 
tho  affidavits  of  W.  S.  Bigby  and  H. 
(^athcart  Nicholls.  On  the  14th  March, 
1903,  |)ctitioner  surrendered  his  estate 
as  insolvent,  and  the  trustee  oxi^erienced 
tho  greatest  difficulty  in  obtaining  from 
the  insolvent  anything  approaching  a 
correct  statement  of  nis  affairs.  In 
October,  1903,  Greening  was  charged 
with  culp2vble  insolvency.  He  was 
convicted  and  sentenced  to  three 
months'  imprisonment  with  hard 
labour,  and  in  consequence  was 
suspended  from  practising  as  an  at- 
torney fo  ra  period  of  one  year.  After 
his  release,  petitioner  went  into  the 
office  of  an  attorney  named  Gerald 
Scanlon  (who  has  since  absconded)  where 
ho  acted  ostensibly  as  clerk,  but  in 
reality  acted  as  a  partner  of  tho  firm. 
After  leaving  Scanlon's  office,  petitioner, 
in  conjunction  with  an  individja! 
named  Home  Drummond,  and  a  party 
named  Shortle,  initiated  and  carried  on 
in  Cape  Town  a  concern  known  ns  iJie 
Native  Labour  Agency  Company  for  the 
purpose  of  recruiting  natives  for  the 
mines.  Greening  came  under  the  notice 
of  the  police,  and  in  common  with 
Drummond  and  Shortle,  appeared  in 
duo  course  in  dock  at  the  Wale-street 
Criminal  Court  on  a  charge  of  obtaining 
money  on  false  pretences,  but  owing  *o 
a  scarcity  of  evidence  the  case  for  tho 
prosecution  failed,  and  tho  accuAed  were 
discharged.  That  thereafter,  Greening, 
in  common  with  Drummond,  carried  on 
business,  the  nature  of  which  was  u>i- 
known  to  deponent,  at  Rhodes  Buildings, 


454 


"CAPE  TIMES"  LAW  BEPOftOT. 


St.  George*8-8treet.  At  present,  Green- 
ing, in  common  with  Drummond,  was 
carrying  on  a  weekly  newspaper  called 
"  South  African  Truth."  Greening  was 
still  an  undischarged  insolvent.  With 
regard  to  the  affidavit  of  June  1,  it  ap- 
peared that  all  the  expenditure  of 
"£600"  and  costs  of  "over  £1,000," 
totalling  in  all  to  over  £1,600,  was  in- 
curred within  the  very  short  period  of 
six  months.  Receipts  had  been  lodged 
with  deponent  for  a  sum  amounting  to 
£425  for  money  paid  by  Mrs.  Olsen  to 
Greening  in  connection  with  the  case 
referrea  to.  On  the  17th  April,  de- 
ponent wrote  to  the  Attorney-General 
requesting  him  to  obtain  a  note  of  fees 
due  and  outstanding  by  Greening  to 
counsel,  and  he  received  from  Mr. 
Advocate  Schreiner,  K.C.,  Mr.  Advo- 
cate Searle,  and  Mr.  Advocate  Alex- 
ander ataitements  showing  the  amounts 
due  to  them  by  Greening,  but  still  un- 
paid. Acting  under  instructions,  the 
attorneys  to  the  Law  Society  communi- 
_J  cated  with  the  parties  to  several  of 
the  cases  noted  in  Mr.  Schreiner's  and 
Mr.  Searle's  memoranda.  That  the 
letters  were  returned  marked  "  No  Ad- 
dress." That  Greening  owes  a  con- 
siderable sum  amounting  to  the  best  of 
deponent*8  belief  to  £70  to  Mr.  Advocate 
Buchanan,  who  is  at  present  in  Eng- 
land. The  allegation  contained  in  the 
affidavit  with  regard  to  the  Law  Society 
attempting  to  bribe  Moss  was  devoid  of 
any  foundation.  Moss,  when  approach- 
ed on  the  subject  of  making  an  affidavit 
relative  to  Greening's  admission,  evinced 
no  desire  to  do  so,  and  it  was  only  upon 
urgent  representations  that  he  consented 
to  do  so. 

The  applicant  in  penon ;  Mr.  Burton 
(with  bim  Mr.  Alexander)  for  the  Law 
Society. 

The  applicant  said  he  was  labouring 
undeT  great  disadvantage,  because  ap- 
pearing as  he  did  for  himself  he  was  too 
conscious  of  his  imperfections  to  do  him- 
self full  justice.  He  started  practice  in 
this  Colony  in  1902,  but  this  practice 
was  rather  short-lived.  He  was  return- 
ed a  culpable  insolvent,  and  the  Chief 
Justice,  m  dealing  with  him,  struck 
him  off  the  rolls  for  a  year,  but  gave 
him  an  opporunitv  of  retrieving  himself. 
When  he  made  his  application  for  re- 
instatement, the  Incorporated  Law  So- 
ciety opposed  it,  as  they  said  they  wantod 
to  get  affidavits  from  Natal,  which  were 
to  bo  served  on  him.  The  matter  was 
put  off  until  April  20,  but  did  not  come 
on  until  Mav  4,  when  it  was  again  ad- 
journed until  the  present.  The  society 
now  put  in  affidavit  of  one  Catheart 
Nicholls,  whom  the  Law  Society  of  Natal 
would  not  admit  as  an  attorney.  He 
held  that  they  should  render  to  Cesar 
the  things  that  are  C8B.sar's,  and  ren- 
der to  Natal  the  things  that  belonged 
to  Natal.  He  had  to  appear  in  Natal 
during  the  coming  month  to  apply  for  re- 
instatement^ and  then  the  Natal  charges 


could  be  brought  before  him.      In  Cape 
Town  the  Law  Society  had  depended  on 
the   affidavits  of  Moas   and   Airs.   Olsen. 
Now,  he  (the  applican-t)  was  in  a  humble 
hphere   of   life,   but   Moss   was   humbler 
still,   as  he  filled  the  useful,   but  lowly, 
position    of  a    publican,    and   was   he   a 
competent  man  to  judge  of  his  (the  ap- 
licant's)  private  life.       Moss  had  stated 
he   paid   him   £500.       He  had   not   had 
time  to  reply  to  the  affidavit.       He  had 
had  to  disDurse  money  for  him  in  dif- 
ferent kinds  of  biuiness.       In  one  case 
ho  settled  the  claim  a  barman  brought 
against  him  for  £50.       When  Moss  got 
out  of  his  trouble   he  did   nob  want  to 
pay  Mr.   Schreiner  his  fee,   but  he  had 
to  do  so.      He  had,  when  the  proceedings 
w/ere     brought     a^gainst     him,     several 
cases     which    he    had     to    hand     over 
to     other    atftorneys.     He     was      raithor 
•surprised     at     Mrs.     Olsen.    Her     case 
was     a     very     oomplioated     one,      and 
he  formed  itihe  opinion   that   the    Ordi- 
nance of  1826  could  be  set  aside,  but  the 
Court  found   differently.       He   went  on 
with  the  case  for  these  people,  who  would 
not  take   any  advice,   and  they  finished 
up  by  paying  him  a  great  deal  less  than 
he  disbursed  for  her.       Up  to  the  time 
he   had   seen   the   affidavit  by   Mrs.    Ol- 
sen, she  escpressed  nothing  but  gratit-ude 
to  him.       He  did  not  know  how  far  the 
Court  would  rely  on  Moss's  statements, 
but    they    would   see    how      exceedingly 
reckless  he  was  in  some  of  them.    Moss 
denied     that     he     had     teken     Robert - 
for  him  in  any  case  but  a  criminaJ  case. 
He   had   not  been   able   to  answer  that 
affidavit,    but,    if    necessary,    he       could 
bring  witness  to  show  that  he  had.  Mobs 
denied   that   he   had   not  taken   Robert- 
son into  partnership,  but  the  Court  held 
differently,   and  Moss  now  had   the  au- 
dacity   to    impugn    the    finding    of     the 
Court.  If       Moss    believed    that    he 

(Greening)  was  untrustworthy,  why  did 
he  apply  to  him  for  a  job.  In  conclu- 
sion, he  said  he  appeared  before  that 
Court  as  a  man  who  had  done  wrong,  for 
which  he  was  sorry,  and  as  a  man  who 
had  been  severely  punished.  He  asked 
the  Court?  to  give  him  a  chance.  It 
was  not  an  unworthy  ambition  to  try  to 
do  right  again. 

'Mr.   Burton  was  not  called  upon. 


The       appli- 
~    riLl 


'Buchanan.        A.C.J. :         _^ 

cant  in  this  case  was  an  English 
solicitor,  and  bjr  virtue  of  his  qualLfica- 
tions,  was  admitted  to  pracdoe  at  the 
Natal  bar.  He  left  Natal  and  came 
to  the  Cape  Colony,  and  on  his  papers 
he  was  also  admitted  to  practice  as  an 
attorney  of  this  court.  While  so  prac- 
tising, he  was  charged  with  culpable 
insolvency  and  convicted,  and  on  his  con- 
viction he  was  suspended  in  this  colony 
and  also  in  Natal.  The  learned  Chief 
Justice  who  suspended  him  gave  him 
leave  to  apply  again  in  twelve  months 
to  be  reinstated.        Since  the  insolvent 


It 


CAPES  TIMES"  I4AW  REPORTS. 


466 


wu  struck  off,  the  Incorporatod  Law 
Society  heard  somethings  to  his  discredit. 
This  Court  ha^  often  reinstated  attor- 
neys woo  iiave  been  atruck  off  the  rolls 
for  misdemeanour,  and  who  by  their 
conduct  have  shown  that  it  was  merely 
a  mistake,  and  who  were  entiued  to 
be  reinstated.  Is  the  present  one  of 
t^»e  cases?  I  am  clearly  of  opdnion 
that  it  is  not.  The  secretary  of  the 
Law  Society  of  Natal  hstis  commumoated 
with  the  secretary  of  the  Law  Societv 
of  Cape  Colony  intimating  that,  althoufj^h 
the  applicant  had  been  suspended  m 
Natal  because  of  his  suspension  in  Cape 
Colony,  affidavits  had  been  filed  by 
people  in  Natal  with  regard  to  his  con- 
duct there,  and  there  was  also  another 
charge  made  by  the  Government  of 
Natal,  to  the  effect  that,  whilst  acting 
as  a  notary  public,  he  conducted  his 
business  in  such  a  way  as  to  practically 
defraud  the  Government  In  Natal  he 
had  acquired  money  from  clients  which 
he  had  not  full:^  accounted  for,  and  he 
^fio  entered  mto  arrangements  with 
clients  to  settle  their  claims  against  him. 
arrangement  w1m<;4i  he  in  a  letter  proved 
that  he  did  not  intend  to  carry  out. 
It  k  true  that  he  haa  been  acquitted 
on  the  charge  of  theft  by  means  of 
false  pretences,  biit  the  fact  of  his  be- 
ing acquitted  on  such  a  char£[e  is  no 
reaaon  why  he  should  be  remstated. 
The  Court  does  not  require  to  take  into 
consideration  the  charges  alleged  against 
him  in  Natal,  'beoauae  he  has  been 
guilty  of  improper  conduct  in  this 
country.  Tne  improper  conduct  in 
Natal  was  not  brought  to  the  notice  of 
the  Court  when  the  applicant  was  first 
admitted.  The  Court  has  to  decide 
whether  the  applicant  is  a  person  who 
shoald  be  allowed  to  take  up  the  posi- 
tion of  an  officer  of  this  Court,  and  to 
be  allowed  to  treat  the  public  in  the 
vay  he  had  treated  them  in  the  past. 
Two  extraordinary  cases  have  been  re- 
vealed during  the  hearing  of  the  peti- 
tion. One  was  a  case  whieh  has  been 
before  the  Court,  and  in  which  he  col- 
lected some  £450  as  costs  for  a  case  that 
did  not  necessitate  one  tithe  of  that 
amount,  and  after  getting  it,  he  de- 
frauded, not  only  his  clients,  but  the 
bar,  of  the  money  he  received  from  his 
clients  for  them.  Then,  in  the  other 
cue.  a  man  was  charged  with  assault, 
And  paid  him  £550  to  conduct  the  de- 
feoce  and  fee  counsel,  and  he  had  not 
paid  counsel  one  penny  of  the  amount 
due  to  them.  Is  that  a  man  to  be 
»n  officer  of  the  Supreme  Court  and 
to  deal  with  the  public?  I  distinctly 
w)W  he  is  not. 

Tlie  applicant  applied  for  leave  to  ap- 
peal. 

Buchanan,   A.C.J.,    said    he  could  not 

pve  it,  and  there  was   no  good    in  the 

applicant    apnlyin^    hereafter   for    rein- 

•iatement   unless    nw    conduot    justified 
It. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Ma  ASDO.. p.] 


DARTEH  V.  DABTKB.  |  j^^ff^th 

This  was  an  actdon  for  an  order  for 
the  restitution  of  conjugal  rights  brought 
b>r  Mrs.  G.  Darter  against  her  husband, 
Aiden  Albert  Darter,  failing  which  a 
decree  of  divorce  in  consequence  of  his 
malicious  desertion. 

The  plaintiff's  declaration  stated  she 
resided  in  Cape  Town,  and  the  defendant 
was  born  in  Cape  Town,  but  his  present 
address  was  unknown  to  her.  She  was 
married  at  Bulawayo  in  1898.  She  was 
married  by  ante-nuptial  con/tract.  On  or 
about  the  2nd  October,  1902,  whilst  on  a 
visit  to  England,  the  defendant  detierted 
her    and  had  not  since  returned. 

Mr.  Clobe  for  plaintiff;  defendant  in 
default. 

Georgina  Darter,  the  applicant,  stated 
she  was  married  to  defendant  in  Bula- 
wayo in  1898.  They  lived  together  there 
about  14  months,  and  he  then  joined  a 
regiment  and  went  to  the  front.  Witness 
came  to  Cape  Town.  Defendant  went 
to  England  in  1901,  but  returned  again. 
He  then  started  as  a  broker.  Defendant 
was  of  a  roving  disposition,  but  made 
Cape  Town  his  headquarters.  In  1902 
he  went  to  the  Orange  River  Colony,  in 
charge  of  the  Native  Refugee  Camp. 
Plaintiff  then  went  to  Germany,  and  m 
May,  1903,  she  joined  the  defendant  in 
Hamburg.  He  sent  her  across  to  Eng- 
land, as  he  would  not  allow  her  to  stay 
with  him. 

[Maasdorp,  J. :  Whait  do  you  mean 
by  allow?] 

Witness :  He  told  me  he  was  in  diffi- 
cultieH,  and  that  I  would  have  to  go 
away  if  I  did  not  give  him  mone;^.  Wit- 
ness then  went  to  Newcastle,  in  Eng- 
land, and  he  followed  her.  The  defend- 
ant went  to  London,  as  he  said  his  father 
was  ill.  She  found  that  ciuch  was  not 
the  case,  but  that  the  father  was  going 
on  a  holiday.  She  went  back  to  live 
with  him  in  London  in  a  boarding-house. 
There  was  a  lady  living  in  the  house, 
and  she  was  put  out  by  the  landlord. 
The  defendant  left  the  following  morn- 
ing, and  she  did  not  see  him 
again  until  the  next  day.  She  made 
inquiries  as  to  his  abt^ence,  and  he  said 
ho  had  got  drunk  and  slept  at  an  hotel. 
The  defendant  agreed  to  meet  her  at  his 
cou<?in's  that  evening  and  she  went 
there,  but  he  did  not  turn  up.  Sihe 
received  a  letter  from  Ihim,  atajting  that 
lie  Ihad  gone  to  Rochester  ifor  a  holiday. 
Subsequently,  she  received  another 
letter,  in   which   he  stated  thai  be  had 


456 


fi 


CAPE  TIMES*'   LAW  REPORTS. 


decided  'to  etnke  oofc  for  him<sclf,  and 
(bad  gone  to  Amorioa  under  an  assuuiod 
name.  She  did  not  know  hie  present 
Whereaiboute. 

[Maasdorp,  J.  :  How  do  vou  propose 
to  effect  service   of  the  order?] 

Mr.  Close:  In  the  same  way  as  the 
notice  waa  served. 

[Maasdorp.  J. :  Do  you  know  his 
father'^  address?] 

Witness :  Yes.  It  is  Good  Hope  House, 
13,  St.  John's  Wood-road,  London. 

Decree  dF  reetitution  granted,  the  de- 
fendant to  return  to  or  receive  the  plain- 
tiflf  on  or  before  the  15th  Augu.st,  fail- 
ing which  rule  to  issue  calling  upon  him 
to  show  cause  on  the  last  day  of  the 
term  why  a  decriH)  of  divorce  Bhould  not 
be  grante<l  as  prayed.  Perwmal  service 
to  be  effected  if  possible,  and  a  registered 
letter  to  bo  addressed  to  the  defendant 
at  hie  father's  residence. 

PotUa  (Aug.  3l8t).  Rule  made  abso- 
lute. 


VAN  DBR  HERWE  V.  COLO-  /  T.JJJ^Yr^h 
NIAL  GOYERNMKNT.  j-'^^^  V^^^' 

Negligence  —  Railway    Depart- 
men  t — Damages. 

This  was  an  action  brought  by  Carl 
Petriis  van  der  Merwe,  ro»idin£?  at  Wel- 
lington, against  the  Colonial  Oovornment 
to  recover  the  eum  of  £173,  beinp  the 
value  of  certain  tobacco,  con.«>igned 
from  the  Transvaal  to  Wellington  last 
October,  and  alleged  to  have  arrived 
in  a  damaged  condition  at  Welling«t<m 
and    for  £10   damages. 

The  claim  was  an  alternative  one. 
The  plaintiff  claimed  £173  and  £10 
damages,  and  the  defendants  could  re- 
tain tne  tohacoo,  or  on  the  other  hand, 
a  sum  of  i£100,  the  plaintiff  to  retain 
the   t<»hacco. 

The  plaintiff's  declaration  stated  that 
he  purchased  2.008  lb.  of  tobacco  at 
Vereeniging,  and  coiwgned  it  to  Welling- 
ton by  train.  It  became  tlie  duty  of 
the  defendants  to  deliver  tlie  tobacco 
in  the  same  condition  as  it  was  handed 
to  them.  This  they  failed  to  do.  Plain- 
tiff conseouentlv  refuf^od  to  accept  de- 
livery of  tno  tobacco,  and  claimed  the 
value  from  the  Railway  Department. 
Plaintiff  offered  to  sell  the  tobacco  by 
auction  if  the  department  would  agree 
to  pay  the  difference  between  the  amount 
realised  and  the  amount  the  tobacco 
cost,  but  this  the  defendants  declined  to 
do. 

[AIJaaHclorp,  J. :  What  do  you  claim 
the    £10  damages    for?] 

Mr.  Searle :  I  suppose  that  was  put  in 
for  expenses,  but  I  won't  press  that 
claim. 

The  defendants'  plea  admitted  the  con- 
signment erf  the  tobacco.  They  admitted 
that  it  was  their  duty  to  deliver  the 
consignment  in  good  condition,  but  they 


denied  that  it  was  received  into  their 
custody  in  proper  condition.  The  dam- 
age was  caused  by  the  sweating  of  th« 
tobacco.  They  denied  liability,  and 
prayed  tha^t  the  claim  mig-ht  T>e  dis- 
missed with  costs. 

Mr.  Searle,  K.C.  (with  him  Mr.  CIoso), 
appeared  for  the  plaintiff;  and  Mr.  Bur- 
tor  (with  him  Mr.  Nightingale),  ap- 
peared for  the  defendants. 

Mr.  Searle  said  a  good  deal  of  the  evi- 
dence in  this  case  had  been  taken  on 
commission,  and  would  be  read  at  a 
later  date. 

Oarl  Petrus  van  der  Merwo 
(the  pdanntiff),  stated  he  was  a 
speculator.  He  imported  tobacco  from 
the  Tpan.9v«al  and  sold  it  to  dealers. 
On  the  19th  Octofcer  he  had  some  to- 
bacco at  Vereeniging,  Transvaal.  Ho 
consigned  the  tobacco  to  Wellington  Sta- 
tion. There  were  31  bags,  a  bale  and  a 
package.  He  paid  £159  16s.  for  the 
tobacco  there,  and  in  addition  had  to 
pay  wagon  charges.  He  was  claiming 
£173,  which  vas  not  a  very  high  price, 
as  iit  worked  out  ai  Is.  6d.  per  lb.  There 
were  30  bags  of  cut  tobacco,  which  was 
thoroughly  dry.  In  the  .hale  there  were 
40  bags  of  tobacco  weighing  between 
4  and  5  lb.  each.  T^e  parage  contained 
roll  tobacco.  He  saw  the  tobacco  being 
loaded.  It  was  in  good  order  and  con- 
dition. Witness  inquired  from  the 
checker  how  long  the  tobacco  would  take 
to  arrive  at  Oape  Town.  He  said  six 
days.  Witness  then  left  Vereeniging 
and  proceeded  to  Wellington,  ^e  to- 
bacco had  not  arrived  in  the  six  days, 
BO  witnei«,  who  had  sold  the  tobacco  to 
a  Mr.  Liobbrandt,  placed  the  nia(t4er 
in  the  liands  of  his  attorney.  Mr.  Lie- 
brandt  cancelled  the  sale,  in  consequence 
of  the  tobacco  not  arriving.  The  tc»baoco 
arrived  the  following  morning,  so  wit- 
no.«»  weat  to  inspect  it.  He  was  accom- 
panied by  a  Mr.  Malan.  The  tobacco 
was  wet.  It  was  not  the  oause  of  sweat- 
ing. Bv  the  l&th  the  tobacco  had  been 
removed  from  the  wet  saclw  and  placed 
in  dry  ones.  The  roll  tobacco  was  in 
a  fi.sh  sack.  If  the  tobacco  had  been 
opened  out  and  dried  the  day  it  arriv<Hl, 
the  damage  might  not  have  been  so 
great,  but  the  staitionmaster  covered  ii. 
up  with  a  tarpaulin.  The  tobacco  in  that 
state  was  onfy  worth  3d.  or  4d.  per  rt>. 
He  wos  prepared  to  keep  the  tobacoo 
if  the  defendan<t<3  paid  him  half  the 
value. 

In  cross-examination,  witneas  aaid  he 
had  sold  the  tobacco  to  Lie»bbrandt  for 
as.  per  lb.  He  paid  Van  Zyl  from  9d. 
to  Is.  per  H).  for  the  tobacco  he  pur- 
chased from  him.  He  paid  in  cash,  but 
never  bothered  about  a  receipt  for  caah. 
He  bought  more  from  another  Mr.  Van 
Zyl,  and  paid  from  Is.  to  Is.  6d.  per 
lb.  and  paid  Van  Aswegen  from  la.  to 
Is.  3d.  per  lb.  Witness  tried  the  to- 
bacco, but  it  would  not  smoke.  Hoff- 
man, the  checker,  told  witness  that  if 
there   was  not  sufficient  traffic  to   war- 


II 


CAPE  TIMES"  LAW  REPORTS. 


457 


rant  a  thioug'h   truck,   the  delivery  of 
the  tob«M3Co    could    not    be   guaranteed. 
If  Hoffman  said  th«ut  the    tobacco   was 
damp   when    delivered    at    Vereeniging 
i^tk>n,  it  was  incorrect.      Witness  did 
not  intend    to  reject  the  tobacco  if   it 
was  in  good  order.      He   was   sorry   to 
find  thait  the  tobacco  was  damaged,  be- 
cause he  could  easily  have  sold  the  to- 
bacco.     All  the  ba^  showed  signs  ^  of 
wet,  the  whole  bag  m  some  cases  being 
wet  right  through.    Three  bags  and  the 
wool  bale  were  soaking  wet.     The  bale 
was  packed  in  the  middle  of  the  bags. 
At  the  first  im^peotion  he  only  looked  at 
10  or  12  bags.     He  would  not  say  that 
the  bags  ha^  not  been  used  previously, 
but  at  any  ra4«   they  were  clean.      It 
was  not   correct    that   the    great    bulk 
of  the  tobacco  was  in  good  oonditioa 
There  were  more  than  three  bags   opened, 
but  not  more  than   six.      Wet   tobacco 
would  not  sweait   enough   to   stain  the 
bags  in  which  it  was  carried.     He  re- 
membered    one  roll    of    tobacco    being 
opened,  and  jfound  to  be  damp  inside, 
&khough  it  was  dry  on  the  outside. 

B«-exaniined  by  Mr.  Searle:  If  the 
toWco  was  wet  on  the  Isfc  of  Novem- 
ber, it  would  be  possi'ble  a  fortnight 
Uter  for  the  tobacco  to  be  dry  on  the 
outside,  but  9tiII  wet  inside.  He  had 
never  told  the  Government  that  he 
would  be  willing  to  take  book  the  to- 
bacco and  pay  the  expenses. 

Jacobus  Malan,  living  at  Wellington, 
uid  he  renien>bered  the  plaintiff  asking 
him  to  look  at  some  tobacco  in  the 
goodis  shed  at  Wellington.  The  tobacco 
was  in  r  bad  condition,  being  wet. 
Ei?ht  or  ten  of  the  bags  were  partly 
wet.  The  condition  of  the  tobacco  could 
not  have  been  caused  by  sweaiting.  The 
water  dripping  from  the  bags  was  rain 
water. 

Cross-examined  'by  Mr.  Burton  :  Four 
of  the  bags  wore  especially  wet.  There 
were  some  bags  which  were  wet  at  the 
^'figes,  but  not  in  the  middle,  or  wot 
t'D  one  side  only.  The  whole  of  the  bale 
was  wot. 

A  witness  named  Rhondio  artatcd  that 
if  tobacco  sweated  it  would  not  stain 
the  6ack.  In  his  opinion,  what  he  saw 
would  not  be  occasioned  by  tobacco 
•wealing.  Tobacco  would  not  sweat  un- 
less it  was  damped. 

Cross-examined  by  Mr.  Burton:  If 
tobacco  was  damped  for  sweating  pur- 
poses, and  not  properly  dried,  it  would 
^  stain  the  sacks.  Two  yeare  ago 
wituftM  received  12  bags  of  tobacco 
which  had  been  wetted  on  the  journey. 
He  could  not  dispose  of  it.  Witness 
did  not  examine  the  tobaooo. 

Pieter  de  Villiers  stated  he  examined 
the  t<4>aoco  about  16  days  after  it  ar- 
rived. It  was  all  in  baigs.  Mr.  Van 
Eyk  cut  a  bag  open,  and  witness  ex- 
amined the  contents.  There  were  stains 
on  the  bags.  In  witness's  opinion,  they 
i^re  caused  by  the  tobacco  getting  wet 


It  was  not  caused  by  sweating,  as  if  it 
sweated  to  thait  extent  the  whole  bag 
would  be  tiFtained.  The  contents  of  the 
bag  opened  were  mildewed.  Witness 
dealt  in  tobacco. 

Cross-examined  by  Mr.  Burton :  Wit- 
ness was  a  hawker  by  trade.  He  only 
examined  one  bo^. 

Jacobus  Roubaix,  a  carrier^  stated  he 
had  been  employed  by  the  railway  com- 
pany, but  had  left  them.  He  saw  the 
sacks  in  question  aibout  six  weeks  ago. 
They  were  retained.  The  stains  were 
caused  by  water.  Cut  tobacco  now 
fetohed  Ss.  6d.  per  Ib.^  and  roll  tobacco 
2b.  Witness  saw  Smith,  the  checker, 
who  told  him  that  Van  der  Merwe  would 
not  take  the  tobacco  because  it  was 
wet. 

Cross-examined  by  Mr.  Burton:  Wit- 
ness knew  nothing  about  the  growing 
or  drying  of  tobacco. 

Bertram  de  Kock,  a  carrier,  of  Well- 
ington, stated  he  saw  the  tobacco  in  the 
goods  shed.  The  stationmaster  had  the 
damaged  tobacco  on  a  "  6ail "  on  the 
floor.  There  were  three  kinds  of  to- 
bacco. The  men  in  the  shed  were  en- 
gaged in  sorting  the  tobacco. 

Mr.  Bcorle   ck>sed  h/U  case. 

Richard  Smith,  a  railway  guard, 
stated  he  was  guard  of  the  **  97  down  " 
from  Norvdl's  Point  to  Naauwpoort 
on  the  27th  October.  The  truck  in 
whioli  the  tobacco  was  conveyed  was 
wel'J  sheeted  and  properly  fastened. 
No  rain  fell  during  tne  journey,  be- 
oa-use  if  there  ihad  he  would  have  made 
an  entry  of  it. 

Cross-examined  by  Mr.  Searle :  Wit- 
ness know  nothing  of  the  contents  of  the 
truck.  Witness  was  first  spoken  to  about 
this  truck  during  the  present  month. 
It  wjs  hhs  duty  to  see  the  truck  sheet«d, 
and  if  that  was  not  done  it  would  bo 
not-od. 

Frederick  Coxon,  a  railway  guard, 
stated  he  wa.<)  in  charge  of  the  train 
which  conveyed  the  truck  from  Naauw- 
poort to  De  Aar.  Ilis  journal  showed 
that  the  trucks  were  all  right,  and  the 
weather  was  fine. 

Mr.  Burton  said  evidence  had  been 
given  on  commiflh.ion  by  the  station- 
nMCters  at  Norval's  Point,  Naauwpoort. 
and  De  Aar  as  to  the  custody  of  the 
truck  at  the  respective  station.^,  and  it 
would  be  put  in  in  due  course. 

Mr.  Clinch  was  guard  of  the  train 
which  conveyed  the  truck  from  De  Aar 
to  Beaufort  West.  According  to  his 
jouniial,  nothing  unusual  occurred. 

Arthur  John  Coleman,  foreman  at 
Beaufort,  stated  the  truck  was  at  Beau- 
fort for  twelve  hours.  It  was  not  inter- 
fered with  while  there.  There  was  no 
rain  during  that  time. 

Sedgwick  Waterworth  said  he  was 
guard  of  the  train  to  which  this^  truck 
was  attached  from  Beaufort  West  to 
Touws  River.  The  truck  was  properly 
sheeted  and  in  good  conditio^. 


458 


"CAPE  TIMES"   LAW  REPORTS. 


CroM-ex<Bimined :  He  fimt  heard  that 
there  wae  a  complaint  about  eight  weeks 
ago. 

John  Henry  Lynch,  foreman  at  Touwe 
River  Station,  said  that  the  truck  was 
detained  there.  During  the  detention 
of  the  truck  at  Touws  River  no  rain 
fell,  according  to  his  book.  The  cause 
of  the  delay  there  was  want  of  ongiiie 
power. 

John  Mark  hams  Bloom,  another  fore- 
man at  Touws  River,  said  there  wae  no 
rain  bertween  the  time  of  the  arrival  and 
departure  of  the  truck. 

Frank  Farrington,  guard  of  the  train 
coivtaining  the  truck  between  Touws 
River  and  Worcester,  aaid  no  rain  fell 
up  to  the  arrival  at  Worcester. 

J.  Behr,  a  number-taker  at  Worcester 
Station,  remembered  the  truck  arriving 
at  Worcester  and  leaving  the  same  day 
for  Wellington.  There  was  no  rain 
during  the  time  the  truck  was  at  Wor- 
cester. 

John  McKay,  stationmastor  at  Touws 
River,  but  stationma^ter  at  Wellington 
last  November,  said  that  when  the  plain- 
tiff complained  to  him  about  the  n9n- 
arrival  of  the  tobacco,  witness  replied 
that  the  Railway  Department  did  not 
guarantee  to  convey  goods  to  arrive  at 
the  station  on  a  certain  day.  He  saw 
the  bags  of  tobacco  when  they  had  been 
unioaded  in  the  goods  shed,  some  of  the 
bags  and  the  bale  having  patches  of 
moisture  upon  them.  The  bags  were 
not  dripping  wet,  and  all  but  five  ap- 
peared to  be  all  right. 

He  examined  the  bags  on  the 
morning  of  their  arrival.  Five 
bags  and  a  bale  were  partly  damaged 
by  patches  of  moisture.  On  the  2nd 
November  the  plaintiff  said  he  would 
call  next  day  for  an  examination  in 
the  goods  shed  or  De  Villiers*  store, 
but  he  failed  to  do  so.  Witness  re- 
ported to  the  Traffic  Manager  that  six 
of  the  bags  were  damaged  by  wet.  On 
the  2nd  November  the  contents  of  the 
six  bags  that  showed  moisture  were 
sifted  out,  and.  in  all.  about  80  lb. 
were  damaged.  At  the  official  exam- 
ination on  the  16th  November,  the 
plaintiff,  and  Van  Eyk  only  examined 
a  couple  of  bags,  and  assumed  all  the 
others  were  damaged.  When  he  saw 
the  bags  on  the  first  occasion,  he  could 
not  say  what  caused  the  damp. 

Cross-examined  by  Mr.  Searle :  The 
foreman  had  the  bags  arranged  for 
examination  when  witness  first  saw 
them.  He  could  not  say  whether 
"  wet  *'  implied  damaged  by  water. 
Witness  advised  Van  der  Mcrwe  to 
claim  for  the  actual  loss.  With  the 
exception  of  the  five  bags  he  had  re- 
ferred to,  the  bags  were  dry.  He  bad 
handled  the  whole  of  the  bags,  but  did 
not  take  any  tobacco  out,  except  from 
the  five  bags.  He  simply  looked  at 
the  tops  of  the  others. 

Albert  Smithy  a  checker  at  Welling- 
^n   Station,  Bi^id    h«  rememberod     the 


truck  oontaining:  the  tobacco  arriying 
at  Wellington  Station.  The  truck 
was  perfectly  sheeted.  The  bags  oc- 
cupied about  one  quarter  of  the  truck, 
and  the  flooring  of  the  truck  where 
the  bags  did  not  lie  was  dry.  He,  with 
others,  started  unloading,  and  after 
they  had  removed  the  top  laver.  they 
noticed  a  bale  that  was  wet,  and  also 
three  bags,  whilst  two  other  bags  were 
al^  "  clammy."  He  considered  that  the 
bags  containing  the  tobacco  had  been 
used  previously  to  this  consignment. 
Ho  handled  the  whole  of  the  bags. 

Cross-examined  by  Mr.  Searle :  He 
examined  the  sheet  carefully,  because 
of  the  damage   to  the   tobacco. 

Percy  Miller  said  that  he  was  a 
checker  at  Wellington  in  November 
last.  He  was  present  when  the  truck 
containing  the  tobacco  waa  unloaded, 
and  the  sheet  covering  the  tobaooo  was 
in  f^ood  condition.  The  bags  only  oc- 
cupied about  a  quarter  of  the  flooring 
of  the  truck.  When  off-loading,  they 
found  that  the  bottom  of  five  baigs 
showed  signs  of    dampness. 

Croes-cxamined  by  Mr.  Searle:  He 
could  not  say  the  remainder  of  the  ba^s 
were   discoloured. 

Peter  Engledough.  a  checker  on  the 
railway  at  Wellington,  said  the  truds 
oontaining  the  tobacco  was  properly 
slieeted.  In  unloading,  he  noticed  that 
five  bags  showed  signs  of  dampness, 
also  a  bale. 

Cross-examined  by  Mr.  Searle:  He 
noticed  a  little  damp  on  the  bags  at  oS- 
loading. 

Arthur  Colton,  general  merchant,  of 
Wellington,  who  inspected  the  tobacco 
on  the  16th  November  at  the  request 
of  the  stationmaater,  said  he  pointed 
out  to  Van  Dyk  that  the  rolled  tobacco 
was  musty,  as  a  result  of  being  put  up 
before  it  w^as  properly  dry.  The  cut 
tobacco  had  evidently  sweated.  He 
could  put  the  same  class  of  tobacco 
down  at  Wellinerton  at  9id.  a  lb.  The 
bulk  of  the  tobacco  was  merchantable. 
In  all,  about  six  bags  were  unmerchant- 
able as  smoking  tobacco.  Mr.  Van 
Eyk,  who  seemed  annoyed  with  the 
stationmaster,  picked  up  a  bad  roll 
and  walked  awav. 

Cross-examined  by  Mr.  Searle :  For 
seven  or  eight  years  he  had  not  im- 
ported tobacco  from  the  Transvaal.  It 
all  depended  on  how  the  tobacco  was 
packed  in  the  first  instance  whether  it 
sweated  or  not.  It  was  his  opinion  that 
the  damp  stains  came  from  the  inside. 
He  had  a  sample  submitted  to  him 
within  the  laat  ten  days,  offering  him 
any  quantity  at  S^d.  a  lb. 

Fred.  K.  Becker,  general  dealer,  of 
Wellington,  who  aUo  examined  the 
tobacco  at  the  request  of  the  station- 
master,  stated  that  he  found  mouldy 
tobacco  in  four  or  five  bags.  Out  of 
the  lot  he  considered  sound,  he  picJied 
out  ten  or  twelve  bags,  and  found  tlia 
con  ten  to  negotiable. 


"CAPE  TIMES"  LAW  REPORTS. 


469 


Crow-examined  by  Mr.  Searlo:  The 
first  time  he  auw  uie  consig^omeat  was 
the  22nd.  The  appearance  and  smell 
of  the  tobacco  would  toU  him  whether 
it  wtas  good  or  not.  He  only  smoked 
from  oue  bag.  He  had  the  tobacco  in 
view  if  it  was  thrown  on  the  market. 

Edward  Frost,  clerk  in  charge  of  the 
Wellington  Goods  Siation,  who  was  on 
ddty  when  the  plaintiff  ceoie  to  ask 
sboiit  Che  coot  of  delivery,  stated  that 
the  plaintiff  offered  to  take  delivery,  as 
be  was  sack  of  the  whole  business. 

Croas-ezMmned  bv  Mr.  Se»rle:  If  the 
fAainAiff  had  <^eiea  to  pay  the  delivery 
ohaii^ea,  witness  would  not  have  taken 
it. 

Themaa  Alfred  Mundy,  chief  cladms 
clerk  of  'fhe  Western  system,  said  that 
the  ezproseion,  "damaged  partially  by 
water,"  oame  from  the  twisting  of  a 
telegram   from   atsAionmaeters. 

Mr.  Bcu^n  okned  his  case. 

Mr.  CTlose  read  the  evidence  taken  on 
oomnuasion  of  Stephenus  van  Zyi,  who 
•old  the  tobacco  to  the  pkuntnff,  which 
•et  out  that  the  tobacco  was  packed  in 
good  condition,  and  did  not  get  wet 
on  its  way  to  the  station.  Other  wit- 
oeiaes  from  the  C.S.A.R.  testified  to 
the  despatch  of  the  tobacco  to  WeUing- 
ton  in  dry  weatber. 

Mr.  Nighting;ak  read  the  evidence, 
wen  oo  commission,  of  Ben  Collins,  a 
checker,  of  Kroonotad,  wbich  set  out 
that  the  tobacco,  whioh  was  tFanshlpped 
there  was  despatclied  in  good  order.  No 
ram  had  fallen  that  nigbt.  The  checker 
M  Wellington  testified  to  the  proper 
sheeting  of  the  packages.  It  looked  like 
nun  at  Bloemfontein,  but  the  tobacco 
was  properly  covered.  The  guard  who 
conducted  the  train  to  Nerval's  Pont 
l^oduced  his  journal,  which  showed  rain. 
He  would  not  swear  that  the  rain  could 
not  get  through  the  sheets.  Other  evi- 
dence set  out  that  the  truck  was  noi 
interfered  with  in  its  passage  down  the 
Kne. 

Counsel  having  been  heard  in  argu- 
ment on  the  faet^ 

Maasdorp,  J.,  said  that  the  plain- 
tiff's case  was  that  he  delivered  a 
quantity  of  tobacco  in  a  nunnber  of 
hags  to  the  defendants  at  Vereeniging 
to  be  conveyed  from  Vereeniging  to 
Wellington,  and  he  said  that  the  to- 
bacco when  so  deldvered  wa^  in  ^ood 
order  and  condition.  He  complained 
that  when  the  tobacco  arrived  at 
Wellington  it  was  found  to  be  wet, 
and  that  its  condition  was  such 
that  it  was  unmcrohanitialble,  and 
that  be  sustained  loss.  He  now 
sought  to  recover  the  damage  so 
suffered  by  him  from  the  defendant  The 
defendant  admitted  that  if  the  go<>d8 
were  received  in  good  order  and  condition 
k  would  have  b^en  his  duty  to  deliver 
them  in  the  same  condition.  The  de- 
fendant also  admitted  that  when  the 
tobacco  armed  at  Wellington  it  was  wet, 
but  he  said  that  the  condvtion  in  which 


it  wais  was    caiire<l  by  a  proooss    called 
sweating.    The  Court  had  now  to  decide 
whether  the  condition   in  which  the  to- 
bacco   w(as    produced    by    Bweat>in^    or 
whether  it  was  the  result  of  wetting  the 
tobacco  got    from   rain.      His  Lorasbip 
reviewed  the  evidence,    and  said   there 
was    evidence    of    the    external    appli- 
cation    of      moisture,     and      the  only 
comoJusion  the  Court  could  come  to  was 
that  that   external  moisture  mu«t  have 
come  from  the   rain.      Upon  the  whole 
of  the  evidence  he  came  to  the  conclu- 
sion  that  the  bags  got  web   after   they 
got  into  the  possession  of  the  defendant, 
that  the  wetting  was  the  result  of  rain, 
and  that  the    rain   could  not  have  got 
on  to  the  bags  without  the  default  of  the 
defendant.     The  defendant  would  there- 
fore 'be  (liable  in  damages  for  any  loss 
the   plainliff    might  have  suffered   from 
the  injury  to  the  tobacco.  On  the  point 
of  the  damages,  there  was  a  good  deal 
of  evidence,  and   he  might  say  at  once 
that  he  found  the  witnesses  for  the  de- 
fence   had    given    their  evidence    truth- 
fully and  candidly,  and  upon  their  evi- 
dence he  ascer'tained  the  amount  of  the 
damage       that      was       done.       If       it 
had     been     left    merely     to     the  plain- 
tiff's  eviden^y?,    ho  was    very     doubtful 
whether    he  could   upon   that   evidence 
have  come   to  the    conclusion    that    so 
much   damage   was   done,    because   the 
plaintiff  took  no  care  to    make    a    fair 
exami nation  of  the  goods.    The  only  fair 
examination    was    made    by    the    defen- 
dant's witnesses,  and  they  had  satisfied 
the  Court  that  eight  bags  were  damag- 
ed.    The  value  of  the  tobacco  in  thoso 
amounted   to    £39,    but  there    was    not 
total   loss,    and  he  thougbt  it  would  be 
a  fair  allowance  if  damages  were  award- 
ed  to   the  extent   of  two-thirds  of   the 
value  of  the  tobacco.     Judgment  would 
therefore  be  for  the  plaintiff  for  the  sum 
of  £26,  with  costs. 

[PlaintifTs  Attorneys:  Faure,  Van 
Eyk  and  Moore.  Defendant's:  Reid 
and  Nephew.] 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplby.] 


Ex  varte  PHILIPS. 


f       1905. 
(June  16th. 

Mr.  Gardiner  moved,  as  a  matter  of 
urgency,  for  leave  to  sue  by  edictal  cita- 
tion and  for  the  attachment  of  certain 
property  at  Paarl,  ad  fundandam  juri»' 
difitionem.  Petitioner  was  a  wa^on- 
buildor  at  the  Paarl,  and  one  Van  Sit- 
tert.  who  was  now  in  Damaraland.  was 
indebted  to  him  in  the  sum  of  £140. 
Van  Sittert  was  the  owner  of  certain 
landed  property  at  the  Paarl,  whioh 
petitioner  asked  leave  to  attach. 


462 


it 


CAPE  TIMES'*  LAW  REPORTS. 


timber,    and    ilicy   agreed— it   is   a   ner- 
fectly  clear  agreement — ^to  supply      him 
with  wood  to  the  value  of  £48  sterling, 
upon    certain    condiUon    which    are    set 
out  in  writng,   and  which  are  admitted 
to  have  been  an  agreement  between  the 
defendants    and    Bouklas.       The    agree- 
ment  was    thaft    the    timber    Bhould    be 
Bupplied  on  condition  that  Bouklas  built 
a  boat  with  it,^  and  that  he  should  finish 
the   boat  within  ^ight   weeks   from   {he 
date,  and  there  is  a  further     important 
condition   that  he  should   not  have  the 
right  to  sell,  or  in  any  way  dispose  of, 
tne  said  boat,  which  shall  be  and  remain 
the   property    of    the   said    W.    and    G. 
Scott,  until  the  said  Bouklas  shall  have 
paid  them  in  full  for  all  materials  sup- 
plied b^  them  to  him.      Now  this  agree- 
ment, if  it  mean  anything  at  all,  means 
this,    that   they    agreed    to    supply   hi<m 
with  timber,  and  only  on  condition  that 
the   article    built  with   that   timber   be- 
comes their  property.      It  does  not  seem 
to   me   to    oe   a   matter   in   which   they 
suspend,   by  any  condition,   the  passing 
of  the  property  to  a  purchaser,   but  it 
does  seem  to  me  that  they  make  a  con- 
tract by  which  that  timber  remains  their 
own,  and  the  article  which  it  builds  be- 
comes their  own  until  the  purchase  price 
of  the  timber  is  paid.       I  do  not  t^ink 
that  matter  is  affected  by  the  subsequent 
clause  in  the  agreement,  in  which  they 
agree  that  the  boat  may  be  sold  through 
W.   and  G.    Scot?t,   instead  of  by  them, 
and  that  the  purchase  price  must  be  paid 
at  their  Cape  Town  office,  they,  on  their 
part,  agreeing  to  pay  to  tne  said  Bouklas 
as  profit  on   the  said   boat  any  balance 
after  deducting  the  cost;  of  the  timber. 
That   article   means   that   Bouklas   shall 
not       have       the       power       of       dis- 
posing      of       the       boat,       but       still 
no      may      find       a       purchaser       and 
sell  it  through  them,  but  the  important 
reservation    is  made  that    the   purchase 
price    has  to   bo  padd   to  them   at  their 
office.     The  boat  was  finished  about  the 
end  of  October,  or  beginning  of  Novem- 
ber,  and  it  lay  upon  the  beach  at  Roggo 
Bay  for  sale,   and  osteiiidbly  must  have 
looked  to  the  world  as  if  it  were  Bou- 
klaA's  boat.        Afterwards.    Bouklas    did 
a  dishonest  thing.      He  aid  find  a  pur- 
ohaaer,  ho  found  the  unfortunate  plaintiff 
iQ  this  case,  who  thought  he  was  dealing 
with  an  honest  man,  and  who  seems  to 
have  parted  with  his  good  money  to  the 
extent  of  £85  to  Bouklas,  who  was  then, 
apparently,  on  the  point  of  absconding, 
which  he  subsequently  did  as  soon  as  he 
got  the  money.      Skarabino     thereupon 
took  possession  of  the  boat,  but  the  de- 
fendants at  onoe  stepped  in,  and  asserted 
their  rights.    In    face  of     such   a  clear     ' 
agreement  as  this  between  the  defend- 
ants and  Bouklas,  it  seems  to  me  a  pity 
that  plaintiff  did  not  come  to  some  sort 
of  compromise  with  W.    and   G.   Scott, 
who,  I   dare   say,   under   the       circum- 
stances,  would  not  have  been  bard  upon 


him  if  thov  thought  that  he  bad  bought 
bona  iide  from   Bouklas.       They     might 
have  oeoii  content  Bf>  long  as  their  claim 
for  the  price  of  materials  had  been  satis- 
fied.      The    plaintiff  produced    a    legal 
document,  showing  the  sale  from  Bouk- 
las to  him  and  the  consideration      that 
was  paid.     Unfortunately,  bona  fide  pur- 
chasers sometimes  have  to  suffer  by  rea- 
son of  the  dishonesty  of  the  person  from 
whom  they  purchase.       Numerous      in- 
stances of  that  sort  might  be  cited,    for 
example,  of  stolen  horses  being  sold   to 
unsuspecting       purchasers.         Although 
Skarapino  has  acted  bona  fide^  he  has  had 
the  misfortune  to  buy  what  I  must  hold 
to  be  another  person's  property  from    a 
dishonest  vendor,  who  held  himself  out 
to  be     the     owner.       I     regret      very 
muoh      that        Skarabino    must    suffer 
this        loss.         I    regret       still       mare 
that  he  has  added  to  that  loss  by  what 
must   be  very  expensive  legal   proceed- 
ings.     Had  the     matter  to  be  decided 
been  whether  there  was   or   was  not  a 
suspensive  condition  by  Scotts  as  to  this 
tiniber,    I    think    I   should   have    taken 
time  to  consider,   because  it  does  seem 
to  me  that  Dr.  Greer's  argument  is  one 
that  deserves    careful    attention,    and    I 
should  have  liked  to  look  out  authorities 
as  to  whether  a  person,  selling  raw  ma- 
terial to  be  worked  into  some  other  ar- 
ticle, like  a  boat  or  a  suit  of  clothes,  can 
hold  a  suspensive  condition  over  the  fin- 
ished  article  by  reason  of  having  been 
owner  of  the  raw  material.       The  prin- 
ciple would  be  an  important  one,  and  I 
do  not  for  a  moment  wish  to  be  taken 
by  this  decision  to  decide  that  particular 
question.     I  look  upon  this  question,  not 
as  one  of  a  sale  by  Scott's  under  a  sus- 
pensive condition,  but  a  sale  on  a  con- 
dition which  is  perfectly  clear  that   the 
article  when  made  should  be  their  actual 
property.       Under   these  circumstances, 
much  afi  I  sympathise  with  the  plaintiff 
in  this  case,  I  feel   that  there  must    be 
judgment  for  the  defendants,  and  I  sup- 
pose that  costs  must  follow  the  result. 

Dr.  Greer  having  addressed  the  Court 
on  the  question  of  costA, 

Hopley,  J.,  said  that  the  oafae,  he 
thought,  should  not  have  come  into 
court,  and  he  saw  no  reason  for  depart- 
ing from  the  ordinary  rule,  that  costs 
must  follow  the  result.  Judgment  would 
be  entered  for  the  defendants,  with  costs, 
including  costs  of  applications  on  motion. 

[Plaantiff's  Attorney:  S.  Jones.  De- 
fendant's:   Reid  and  Nephew.] 


«( 


CAPS  TIMES"   LAW  REPORTS. 


4ed 


SUPREME  COURT 


[Before  the  Acting:  Chief  Justice  (the 

Hon.  Sir    John    Buchanan),  the 

Hon.   Mr.  Justice   Ma  as  orp,  and 
the  Hon.  Mr.  Justice  Hopley.] 


VILAXDER  CONCfiSIKIONS  8YN 
DICATE  V.  COLONIAL  GOV 
ERNMEMT. 


\'(       19U5. 
*    J  June  19th. 


[For  Head  Note  to  this  case  and  re- 
port of  the  Special  Oaae,  see  16.  C.T.R. 
207,] 

This  was  an  appeal  to  a  full  Court 
irom  a  judgment  gpiven  on  Mor.ch  7th, 
1906.  by  Be  Villiers,  C.J.,  sitting  as  a 
Divisional  Court. 

The  judgment  then  given  was  practi- 
cally absolution  from  the  instance.  The 
concessions  in  dispute  were  two 
in  number,  and  were  given  by 
the  Chief  Vilander  to  one  A.  H. 
Cantonsen.  These  were  set  out  in  the 
special  case  stated  15  C.T.R.   207. 

Mr.  Searle,  K.C.  (with  him  Mr.  Mc- 
bregor),  for  appellants.  Sir  H.  Juta, 
K.C.  {with  him  M«r.  Nightingale),  for 
*  he  respondent  Government. 
Hopley,  J.,  asked  when  Vilander  died, 
oir  H.  Juta  said  that  Vilander  was 
snot  during  the  late  war. 

Mr.  S^rle :  We  want  to  know  what 
OUT  nghts  are.     The   plaintiffs   contend 
U)  tbaft  these  concessione  are  still  of  full 
loroo  and   effect    and    binding   on    the 
Colonial  Government ;  (2)  -Rat  the  plah*- 
tiffs  are  entitled  to  have  their  rights  de- 
cided by  the  Court;    (3)   to  obtain   an 
order  declaring  the   Covemment  bound 
w  recognise  these  concessions.       (4)  To 
obtain  an  order  directing   the    Govern- 
ment as  to  the  granting  of  any  further 
oonc^ions,    and    the   conditions    under 
which    such    concessions     (if     any)     ar« 
|o     be     granted.       The      Government 
oeny    all     our     contentions,     and     say 
«»*    they    can    make     grants,     includ- 
ing that  of  minerals,  without  regard  to 
the  conoessions.      A    further  contention 
of  the  Grovemment    is    that   the    rights 
w   the  concessionaires    have   lapsed    by 
non-payment     of     fees    after   May  6th, 
1891.     But   the   O>noession   Court,  with 
all  the  facts  before  it,  confirmed  the  con- 
cessions,^ and  its  judgment  is  binding  in 
law.     We  paid    Vilander,  and   then   hie 
executors. 

.  [Buchanan,  A.C.J. :  But  the  Conces- 
sion Court  could  control  ptayments  only 
previous  to  the  date  of  their  decision.] 
We  paid  Vilander  up  to  the  date  of 
hte  death,  and  then  we  paid  his  execu- 
tors. The  date  of  his  death  is  quite 
unmaterial.  as  payment  to  his  execu- 
tora  was  as  good  as  payment  to  him- 
mt.  We  hold  that  botn  payments  wero 
Rood.  Even  if  they  were  not.  Govern- 
ment might  have  a  right  to  demand 
pftyment  of  dues   and  even  of  arrears, 


but  they  have  no  right  to  claim  forfei- 
ture. 

[Buchanan,  A.C.J. :  They  do  not 
claim  forfeiture;  they  odily  say  that 
you  are  not  entitled  to  your  declaration 
of  rights  till  you  pay.] 

Either  the  concessions  have  laptsed  by 
reasot»  of  non-payment  or  not.  They 
contend  that  our  concessions  aare  value- 
less a^  Government  is  entitled  to  all 
precious  stones  and  minerals.  Their 
real  contention  is,  that  by  reason  of  the 
judgment  of  the  ConcesKion  Court  the 
concessions  are  practically  of  no  value 
whatever. 

[MaAsdorp,  J. :  If  you  wero  to  tender 
now,  would  they  not  recognise  your 
•right?] 

No.  doubt.  Feasibly  we  may  have 
paid  to  the  wrong  i^arties.  but  on  ten- 
der we  have  a  right  to  our  lesfic. 
K state  Thomas  v.  Kerr  and  Another  (13. 
C.T.R.   526). 

[Hopley,  J. ;  There  the  whole  caso 
turned  upon  the  nxining  laws  of  Bechu- 
analand.] 

Wo  say  that  the  judgment  of  the  Con- 
cession Court  only  gives  us  rights  sub- 
ject to  any  mining  laws  (as  to  the  way 
of  working  niiiws,  etc.)  which  do  not 
conflict  with  our  rights. 

[Buchanan,  A.C.J.  :  And  those  laws 
include  the  payment  of  rater*.] 

I  cannot  admit  that;  we  paid  these 
when  we  paid  our  £500.  We  are  not 
lx)und  to  pay  for  a  mowthly  licence;  for 
if  we  are  in  the  same  position  as  other 

f)rospectors,   our  oonccctsions   are    value- 
ess. 

[Maaedorp,  J. :  Do  you  claim  exclu- 
sive rights?] 

That  is  not  our  point,  but  we  say  that 
we  are  not  bound  in  the  same  way  as 
ordinary  prospectors. 

[Maasdorp,  J. :  After  you  have  chosen 
your  area     can  you  go  beyond  it?] 

No,  but  we  had  a  right,  first  to  400 
suuare  miles,  and  subsequently  to  the 
whole  territory. 

[Maasdorp,  J. :  That  supposes  that 
you  find  there.] 

The  concession  says  "All  minerals, 
etc wheresoever    found.'* 

[Maasdorp,  J. :  Suppot^  that  the 
same  concession  was  given  to  a  number 
of  other  people;  would  they  not  be  in 
the  same  position  as  yourselves?] 

Yes,  but  still  our  concessions  would 
be  of  considerable  value.  See  Procla- 
mation (British  Bechuanaland)  169,  sec. 
3-19  and  21.  Section  2  ig  not  againHt 
mc.  The  Concession  Court  could  not 
admit  rights  beyond  reasonable  limits, 
but  they  could  give  exclusive  rights 
within  reas<mable  limits.  The  whole 
object  of  the  establishment  of  this  Court 
was  to  protect  concessions  which  were 
not  admitted  by  the  ordinary  law. 

[Maa,sdorp,  J, :  Could  the  Court  have 
confirmed  a  concession  which  was  be- 
yond   reasonable    limits?] 

It  could  limit  such  conooesions.  See 
Section  23  of  the  Proclamation. 


464 


"CAPE  TIMES"   LAW  fiEPOfttS. 


[Buchanan^  A.C.J. :  And  they  limited 
your  conoeeskm  bv  making  it  subject  to 
al]   laws  of  Britisn   Bechuanaland.] 

Th€ii  what  is  the  use  of  the  conces- 
sion? 

[Maasdorp,  J. :  Are  you  satisfied  with 
the  judgment  of  the  Conoeasion  Court?] 

Yes,  but  we  want  a  declaration  that 
the  judgment  w  binding  on  the  Govern- 
ment. The  Government  deny  that  we 
are  entitled  to  this. 

[Maaedorp,  J.:  They  admit  it  is  bind- 
ing, but  subject  to  the  laws  of  British 
Bochuanaland.] 

The  question  ia  whether  thie  means 
all  laws,  or  only  those  which  do  not 
conflict  with  our  concessions.  That  is 
the  whole  point.  See  Section  22  of  the 
proclamation.  If  Section  21  stood  alone 
It  might  have  seemed  that  the  Conces- 
sion Court  could  not  give  us  exclusive 
rights,  but  Section  22  shows  that  this 
is  not  so. 

[Ilopley,  J. :  What  rights  do  you 
say  you  have;    not  exclusive  rights?} 

We  have  a  right  to  prospect  and  win 
minerals,  etc.,  etc.,  to  import  machin- 
ery, and  we  can  proniKxt  without  a 
monthly  licence.  The  general  rights  of 
ordinary  prospectors  are  ruled  by  Act 
51  of  1898;  but  in  order  to  rightly  in- 
terpret the  judgmcrrt  of  the  Concejwion 
Court  wo  must  look  to  the  law  then  in 
force  in  British  Bechuanaland,  viz.. 
Proclamation   (B.B.)  63  of  1889. 

[BuchaJian,  A.C.J.  :  It  may  be  that 
the  concessions  are  valueless.] 

[Maasdorn,  J. :  It  may  have  been  the 
object  of  the  Concession  Court  to  make 
them  valueless.  Th<ai  is  often  done 
where  coneet^ions  granted  by  native 
chiefs  are  unreasonable.] 

Then  the  Court  could  have  refused  to 
ratify  them  at  all. 

Sir  H.  Juta  was  not  called  upooi. 

Buchansn,  A.C.J. :  This  action  was 
brought  in  the  Divisional  Court-  in  tho 
form  of  a  (*pecial  case,  which  set  out  the 
facts  agreed  upon  by  the  parties  and 
their  several  contentions.  The  Divi- 
sional Judge  held  that  the  facts  set 
forth  did  not  entitle  the  plaintiffs  to 
the  declaration  of  rightt?  claimed  in  the 
premises  and  f^ave  judgment  of  absolu- 
tion from  the  instance,  leaving  it  open 
to  the  parties  to  take  fresh  proceedings 
and  to  supply  fuller  information  upon 
essential  matters  not  disclosed  in  the 
special  case.  This  judgment  has  been 
appealed  against.  The  action  wan 
founded  on  certain  two  concessions 
granted  by  the  native  chief  Vilander  as 
far  back  as  1889  and  1890.  At  that  time 
Vilander's  country  was  not  under  Bri- 
tish control.  Under  tlie  concessions  a 
payment  of  £500  a  year  was  stipulated 
for  to  be  paid  by  the  concessionaires  to 
the  chief.  In  1891  Vilander's  country 
war«  annexed  to  British  Bechunaland, 
and  in  1895  British  Bechuanaland  was 
annexed  to  this  Colony.  The  Govern- 
rnent  of  this  Colony  is  now  sued,  I  take 
it|  as  the  successors  of  the  chief.    When 


the  annexaiiou  of  Yilaoder's  territory  to 
Briti^  Bechuanaland  took  place,  and 
British  Bechuanaland  was  in  the  posi- 
tion of  a  Crown  Colony,  a  prodamataon 
was  issued  by  the  then  executive  Gov- 
ernment establishing  a  Concessions 
Court,  by  which  ell  concessions  given 
by  the  native  chief  before  the  annexa- 
tion were  to  be  considered  and  adjudi- 
cated upon.  Large  powers  were  en- 
trusted to  this  Court,  and  the  concoci- 
sions  tn  question  were  brought  befcMPO 
that  tribunal. 

This  Concession  Court  gave  judg- 
ment allowing  pHaantiffs*  claim  as  hav- 
ing been  proved,  "subject  to  all  laws 
and  regulations  of  Britii^h  Bechuana- 
land rckkiin^  to  mines  and  minerals 
and  otherwise,  in  force  in  the  said 
•territory."  In  the  special  case  the 
plaintiff  asked  the  Court  to  declare 
tha,t  this  judgment  was  binding  on  the 
Government,  and  that  tihe  plaintiffs 
were  eiiti'tled  to  have  their  rig^nts  in, 
arising  out  of,  and  under  tho  oonces- 
sioi»  docllared.  The  only  specific 
declaration  of  rightt»  asked  for,  how- 
ever, was  an  order  declaring  that  as  to 
all  grants  of  land  already  issued  by  ilic 
Government  in  the  said  territory,  the 
Govcrnmen't  was  Lxnind  to  recogni-de 
that  the  reservation  in  tihe  sadd  grants 
of  mining  rights  and  of  precious  stones 
was  made  ^r  and  on  behalf  of  the 
plaintiffs;  and  further,  to  direct  that 
t'lio  Government  should  iniscirt  in  any 
future  grants  of  land,  a  condition  sub- 
jecting sucJi  grants  to  the  rights  of  the 
plaintiffs.  IIis  'Lordshi'p,  ^e  Chief 
Justice,  who  presided  in  the  Divisi<»nai 
Court,  had  in  his  reasons  conclusively 
t$hown  that  it  is  impossible,  with  t)he 
information  supplied  in  4>he  special  case, 
to  make  the  oeclaration  asked  for  in 
tho  premises.  The  learned  Judge 
clearly  stated  his  opinion  that  the 
judgment  of  the  Concession  Court, 
never  having  been  appealed  again^, 
became  binding  under  the  proclama- 
tion, upon  the  concessionaires  ai»  well 
as  upon  the  GovernTuent.  For  myself 
I  ful^  concur  in  thie  view.  But  when 
we  look  at  the  case  stated  we  find  that 
it  is  ailleged  that  the  £500  {)er  annum 
reserved  under  the  concessions  was, 
notwithstanding  t'ho  annexation  of  his 
■terri'torv,  .paid  to  the  chief  up  to  the 
time  of  his  dearth,  and  after  his  death 
it  wais  paid  to  his  executors.  It  had 
never  'been  paid  to,  or  tendered  to  tlie 
Govcrimient.  In  tlie  DiA'isional  Court 
a  preliminary  objection  was  taken 
that  this  non-payment  had  worked  a 
forfeiture,  but  His  Lordship  pointed 
out  that  this  question  had  no*  been 
clearly  radsed  in  the  ca^  stated.  But 
it  is  a  matter  which  will  have  to  be 
considered  before  any  declarataon  of 
rights  can  'be  made.  Then  again  it 
would  app)ear  that  the  judgment  of  the 
Concesdon  Court,  in  effect,  took  the 
place  ^  of  the  concessions,  and  limited 
the  rights  of  the  parties  in  the  future* 


**CAPB  TIMES"  LAW  REPOttTS. 


465 


This     judemeht,     while     granting     the 
ciftiro    under   the    concessions,    made   it 
^object  to   all  the  laws  and  regulations 
of     Briiiflh    Bcohuaoala-nd    relating     to 
mines   and    minerals   and    otherwise    in 
forec  in   the  said  terri'tory.    No    objec- 
tion  was    t-aken    to    thib   declaration    of 
the   ConcesBJon    Court.     But    the   plain- 
tiffs   widh   to    go    further.        They   ray, 
aasuniing       the    judgmen't    still    stanch, 
His   Lordship    ought  to    have    declared 
that  the  meaning  of  the  judgment  was 
that   only    such    laws    as  were    not    in- 
oonrA»tent     with    the     concessions,     such 
as  those    relating  to    the  good    govern- 
ment   of    the    territory    and    the    like, 
were   binding   on    the  pflaintiffs.        The 
particulars    in    which     tlheso    laws      are 
asked  to  be  declared  as  not  binding  on 
the   plaintiffs,   however,    are    limited    to 
a  reference  to   the  mineral    rightcs      in 
prants  of  land  made,  or  to  be  made  by 
the  Goverimient.    H«   Lordithip,    with- 
out  relerring    in  detail    to  the    iseveral 
proclamations    which    emlx)djr  the    l-aws 
and   regulations    of   the    territory,    tsaj'S 
tiiat  they   aw?   wholly  inconsistent    with 
the  declaration  the  Court  was  asked   to 
make.    'His    Lordship    reraa.rks    further 
that  tlK»re    can   bo    no  possibility    of    a 
<k)ubt  that    the   Concession    Court      iri- 
t«ided  hv  its  judgment   to  sitbiect   the 
nghia   of    the    guarantees     under     the 
conoc»»ion    to    all   laws    and   rogulation«» 
relatittg  to  mines  and  minerals  then  in 
wirtence    and  whidh   had  been  enacted 
'>y  .  the  competent    legislature  of      the 
territory.    As  absolution    from    tlie      in- 
rtance  was   given,   these    remarks    tn&y 
Mve  the  foTOo  only  of  obiter  dicta,  biit 
»t    t^eeme  to   me  tnat    the  reasons     of 
"^  Lordahip  have   not  been  pbaken  in 
arymnent    I      think    for    the      T^asons 
"tated  by  His  Lordship  that  this  appeal 
miwt  be  dismissed,    with  casrts. 

^»4«k)rp  and  Hopley,  J.J.,  con- 
curred. 

[Appellants'  Attorneys:  Byfret,  God- 
Jonton  and  Low;  Reepondents'  At- 
torney*:    Reid   and   Nephew.] 


bursements  made  on  his  behalf  during 
November  and  December.  Detailed 
acoounta  had  been  sent  to  defendant, 
but  he  had  failed  and  neglected  to  pay 
the  amount  due.  Plaintiffs  prayed  for 
judgment  for  £270  lOs.  8d.,  with  costs  of 
suit. 

Defendant,  in  his  plea,  admitted  hav- 
ing received  certain  goods  from  plain- 
tiffs, but  he  did  not  admit  the  amount 
alleged.  He  said  it  was  arranged  that 
lie  was  to  pay  the  net  amount  either  at 
the  expiration  of  six  months  from  date 
of  purchafie  or  to  pay  the  amount  at  the 
expiration  of  four  months,  less  5  per 
cent,  commission.  He  said  that  the 
payments  were  not  due,  and  that  plain- 
tiffs were  not  now  entitled  to  sue  him 
for  any  part  of  the  purchase   price. 

Mr.  P.  Jones  was  for  plaintiffs ;  de- 
fendant did  not  appear,  his  attorneys 
having  withdrawn  from  the  case. 

John  H.  Barrett,  a  traveller  in  plain- 
tiff's employ,  said  that,  in  response  to  a 
letter  from  the  defendant,  he  called  at 
his  store  in  October  last,  defendant  hav- 
ing ju9t  opened  a  store.  Witness  called 
on  the  24th  October,  and  received  a 
large  order,  covering  nearly  the  whole 
of  the  account  now  sued  upon.  Wit- 
ness denied  that  there  was  any  arrange- 
ment to  give  defendant  six  months* 
credit,  or  four  months'  credit,  less  5  per 
cent.  Defendant  gave  a  cheque  for  £20. 
when  the  order  was  taken,  and  ho  after- 
wards made  a  small  payment  on  arrival 
of  the  goods,  and  he  was  to  pass  pro- 
missory notes  for  the  balance.  It  was 
also  arranged  that  for  any  future  busi- 
ness defendant  should  pass  a  second 
mortgage  on  his  property.  Defendant 
had  refused  to  carry  out  his  promises. 
Ho  paid  £10  in  November,  and  he  was 
also  credited  with  £19  7s.  5d.  for  pro- 
duce, which  he  sent  down  for  sale  on  his 
behalf.  Plaintiffs  agreed  to  allow  de- 
fendant £2  Ss.  for  damaged  boot  polish, 
leaving  a  balance  owing  of  £268  2m.  8d. 

Judgment  was  given  for  plaintiffs  for 
£268  2s.   8d.,  with  costs. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Juatice  Hoplby.] 


1IALG01IE86    AND    CO.     AND  ( 

INSOLVENT   E8TATB    H.  B.  1        1905. 

CARY  V.  THOMAS  B.  CARY.  <  June  20th. 

INSOLVENT     ESTATE     H.    B.  i       „      2l8t. 
GARY  V.  THOMAS  B.  CARY.  I 


"VAOE  AND  SONS  Y.  KB^N.  [  j  J*'^,^^ 

This  was  an  action  brought  by  Wm. 
o>v»ge  and  Sons,  merchants.  Port  Eliza- 
•wih.  against  Izak  Johannes  Keun, 
worekeeper,  Colesberg,  to  recover  a  sum 
of  £270  10s,  8d.,  for  goods  sold  and  de- 
J^l^wd.  and  disbursements  made  on  be- 
half of  the  defendant. 

Plaintiff's  declaration  set  out  that 
*27D  lOs.  8d.  was  due  from  defendant 
lor  goods  s<^   and   delivered,  and  dis- 


These  actions  were  consolidated  for 
the  purpose  of  the  hearing.  The  plain- 
tiffs in  the  first  case  wero  Malcomees  and 
Ck).,  merchants,  East  London,  and  Peter 
August  Heimers,  in  his  capacity  as  sole 
trustee  in  the  insolvent  estate  of  H.  B. 
Gary,  of  Tarkastad,  while  in  the  second 
case  the  trustee  sued  alone.  Defend- 
ant was  Thomas  Bovey  Gary,  merchant, 
Tarkastad,  brother  of  one  of  the  part- 
ners in  the  imiolvent  firm  of  H.  B.  Gary. 

The  declaration  in  the  first  case  set  out 
that  the  first  plaintiff  carried  on  bu.siner« 
at  East  London  and  elsewhere  under 
the  atyle  of  M&Icomess   and  Gompany, 


466 


II 


CAPE  TIMES  ••  LAW  BEPOETS. 


and  fche  eecond  plaintiff  joined  in  the 
action  in  order  to  complete  the  record 
and  aeeist  the  plaintiff,  as  far  as  need  be, 
but  he  did  not  advance  any  claim  on 
behalf  of  creditors  in  such  ineolyent  es- 
tate, other  than  that  of  the  said  Mal- 
comese  and  Co.  in  the  proceeds  of  two 
promissory  notesi  in  respect  of  which  the 
defendant  was  sued  in  this  matter.  The 
two  promissory  notes  in  question  wore 
made  by  the  defendant  in  February, 
1903,  for  amounts  of  i!265  and  £149  2s. 
respectively,  in  favour  of  the  firm  of  H. 
B  Cary,  or  thoir  order,  at  the  Standard 
Bank,  Tarkastad.  The  said  notes  were 
due  and  payable  on  the  9th  May,  1903, 
but  before  their  maturity,  they  were 
endorsed  by  the  firm  of  Cary  to  the 
^andard  Bank,  who  took  the  said  notes 
with  others  to  hold  for  and  on  account 
of  Malcomess  and  Co.,  the  said  firm 
of  Cary  having  coded,  as(>igned,  and 
pledged  the  said  notes  to  Malcomess  and 
Co,  by  way  of  security  in  respect  of  the 
liability  of  the  latter  under  a  guarantee 
to  the  extent  of  £8,000,  given  bv  Mal- 
comess and  Co.  to  the  said  bank  for  the 
amount  of  any  overdraft  of  the  firm  of 
Cary.  The  amount  of  the  overdraft  of 
the  firm  of  Cary  at  the  said  bank  was 
£2,447,  and  Malcomess  and  Co.  had 
been  called  upon  to  meet  the  said  notos, 
which  had  been  dishonoured.  Plaintiffs 
were  now  the  legal  holders  of  the  notes ; 
defendant  had  not  paid  the  said  noteis, 
or  any  part  thereof.  Plaintiffs  prayed 
for  judgment  for  £414  2s.,  with  interest 
from  May,   1903,    and  costs. 

Defendant,  in  his  plea,  said  that  in 
May,  1903,  before  the  maturity  of  the 
said  notes,  the  firm  of  H.  B.  Cary  was 
indebted  to  him  in  a  sum  exceeding  the 
amount  of  the  said  notes.  Tlie  said 
debts  were  mutual  debts,  and  on  the 
defendant  pressing  the  said  firm  for  pay- 
ment, an  account  was  stated  in  which 
the  firm  of  H.  B.  Cary  was  found  to  be 
indebted  in  the  sum  of  £136,  exclusive 
of  the  sum  of  £433  lOs.,  claimed  by  de- 
fendant, which  was  left  over  for  future 
adjustment.  Malcomess  had  full  know- 
ledge of,  and  consented  to  this.  The 
debts  were  capable  of  compensation  with- 
in the  meaninp^  of  the  Insolvent  Ordi- 
nance. He  paid  and  discharged  the 
notes  before  maturity,  and  said  that  nei- 
ther of  the  plaintiffs  was  entitled  to  sue 
him  upon  the  said  notes. 

Plaintiffs,  in  their  replication,  said 
that,  as  to  the  alleged  settlement,  they 
were  not  a  party  to  and  did  not  assent 
to  the  proposals.  The  said  proposals 
were  definitely  rejected  by  the  defend- 
ant No  statement  or  settlement  of 
account  was  ever  agreed  to  between  the 
aforesaid  parties  or  firms. 

The  declaration  in  the  second  case  set 
out  a  long  series  of  transactions  be- 
tween the  firm  of  H.  B.  Cary  and  the 
defendant,  both  in  the  way  of  goods  and 
merchandise  supplied  and  promissory 
notes  ^iven  by  the  defendant  to  the  firm. 
Plaintiff     allowed     certain     deductions 


amounting  to  £213  12b.  9d.,  and  prayed 
for  judgment  for  £1,169  5s. 

Defendairt,  in  his  plea,  said  that  the 
debts  were  mutual  debts,  and  capable  of 
compensation,  and  that  the  plaintiff  was 
not  entitled  to  claim  any  amount  from 
him.  He  said  that  a  settlement  was  ar- 
rived at  by  which  it  was  acknowledged 
that  the  said  firm  of  H.  B  Cary  was  in- 
debted to  him  in  the  sum  of  £136.  At 
tbv^  date  of  the  insolvency  H.  B.  Cary 
was  also  indebted  to  him  in  the  follow- 
ing sums:  £200,  due  iipon  a  good-for; 
£183,  due  upon  an  I.O.U. ;  and  £50, 
amount  of  overcharge  for  certain  hamels 
or  sheep. 

Mr.  McGregor  (with  him  Mr.  Burton) 
for  plaintiffs.  Sir  H.  Juta,  K.C.  (with 
him  Mr.   Gardiner)  for  defendant. 

Mr.  McGregor  «^ubmitted  that  the  onus 
was  upon  defcndant  to  prove  that  these 
sums  were  not  dne,  seeing  that  defend- 
ant practically  admitted  the  debts  al- 
leged to  have  been  contracted  by  him 
with  H.  B.  Cary. 

Hopley,  J.,  said  that  he  had  been 
considering  whether  this  was  not  a  case 
which  should  go  before  an  accountant. 

Sir  H.  Juta  said  he  thought  that,  in 
the  first  instance,  they  should  come  to 
some  arrangement  as  to  what  they  were 
going  to  do.  The  defence  was,  first  of 
all,  that  a  settlement  was  come  to,  and 
it  would  be  well  if  the  Court  decided 
whether  such  a  settlement  was  made. 
Then  came  the  defence  that  these  were 
mutual  debts  which  were  capable  of 
compensation.  The  settlement  which 
he  proposed  to  prove  was  that  in  May, 
1S04,  a  clerk  in  the  employ  of  Malcomev^ 
came  to  Tarkastad,  and  the  correspond- 
ence would  throw  most  lurid  light  upon 
some  of  the  affidavits  made  by  Malcomess 
and  Co.  and  their  officials  as  to  their 
knowledge  of  the  settlement.  This 
clerk,  Conraed,  was  sent  up  to  look  into 
the  firm  of  Cary's  businesi?,  and  the  trou- 
blesome account  was  that  of  T.  B.  Cary. 
Conraed  and  the  bookkeepers  went  into 
the  matter,  and  eventually  Conraed  came 
to  what  he  considered  to  be  a  proper 
settlemeirt,  which  formed  the  basis  of 
what  was  known  as  the  Conraed  agree- 
ment. According  to  that  agreement. 
the  firm  of  Cary  owed  £136  to  T.  B. 
Cary,  exclusive  of  £433,  left  over  for 
future  adjustment.  Upon  the  definite 
infftructiona  of  Malcomess  and  Co.,  to 
tho  effect  that  there  was  nothing  else 
left  for  them  but  to  pay,  they  tendered, 
through  the  firm  of  Le  Roux  and  Gar- 
lick,  this  amount  of  £136  on  the  ground 
that  there  had  been  a  definite 
agreement,  and  that  he  (TVxn  Gary)  w«8 
bound  by  it.  It  would  take  days  to  go 
into  these  accounts.  It  seemed  to  him 
(counsel)  that  it  would  be  best,  in  the 
first  instance  to  try  the  queeftion  as  to 
whether  a  seittlpment  had  been  come  to, 
and,  if  there  had  been  no  seitlemonit, 
then  to  send  the  acoounits  to  a  referee. 

Mr.  McGregor  saJd  that  his  clients  did 
not  think  thoit  wotdd  do.     There  weio 


"CAPE  ttMES"  LAW  REPORTS. 


467 


oeiiain  ixi>a*ten  on  which  they  would 
prefer  to  have  the  judgmemt  of  hie  k>rd- 
»hip  concerning  a  countter-claim  by  de- 
fendant  for  large  items  of  i>kins  and 
meat,  and  cubo  the  sum  of  £433.  Were 
these  amounte  due  from  H.  B.  Gary  to 
T.  B.  Gary?  The  items  <rf  the  skins  and 
meait  were  nol;  entered  in  any  book  of 
the  defendant  or  of  H.  B.  Gary. 

Hopley,  J.,  after  hearing  counsel 
further,  said  that  the  matter  would  be 
sent  to  a  referee.  There  bad  been  a 
most  compbcated  eeitiee  of  traneaotions, 
and  it  seemed  to  him  that  the  best  per- 
son to  elucidate  and  come  to  a  com-mon- 
sense  conclusion  about  the  maitter  would 
be  some  good  qualified  accountant. 

Sir  H.  Juta  suggested  iheA  the  Court 
should    try  the    question  of  whether    a 
settlement  of  accounts    between  H.    B. 
Cary  and  T.   B.  Gary  had  been  come  to 
before   committing  the    matter. 
Mr.    McGregor  aeseuted,   and 
Evidence  was  called  by  Sir  H.  Juta. 
Ualbori    Olendinning'    Hannaford,    a 
partner  in  the  insolvent  firm  since  1900, 
*wd  that  in  1904   their  largest  creditors 
^ore  Malcomess  and  Co.,  who  were  their 
eupporting   firm.       In     1903    Malcomess 
«eni  up  to  Tarkastad  one  Mr.  Williams 
as  manager,  Baying   that  he   should  be 
treated  virtually  as  a  partner.     On  the 
12th  May     1904,    a   letter   was   received 
ir<nn   Malcomess    and    Co.    saying    that 
thev  were  sending  up  Mr.    Conraed  to 
roake  a  thorough  inquiry  into  the  posi- 
tron of  the  business  of  H.  B.  Gary.     In 
April  a  baJance-sheot   had    been   drawn 
ftp-  Jjwwing   a  revenue  loss  account   of 
f  A?*'  *°   whieh  was    included  a  sum 
J^  due  to  T.  B.  Cary.     Mr.  Con- 
j*ed  was  a   competent  accountant,   and 
p  w^nft  into  the  accounts  very  thorough - 
i     A.  general  account  was  drawn  up 
5*  credits  and  debits  showing  a  balance 
Jje  by  T.  B.  Cary  of  £672  76.  lid.  Then 
inere   was   a   statement     showing     the 
8«ount9  due  hv  H.   B.   Gary  to  T.   B. 
W,  viz.,    £200  good   for,   £183   good 
w,  and  £50  for   hamels.       The    final 
««oinent  drawn    up    by   Mt.    Conraed 

£136  *  ^*^*"°®  ^^  *°  '^'  ®-  ^"y  ^ 

St  H.  Juta  pu*  in  letters  from  Mal- 
^"^  and  Co.  authorising  a  settlement 
5**»«T.  B.  CtLTy  claim  on  the  basis  of 

«,M>^faed'8  suggestion. 

"itneas  was  cross-examined  at  con- 
^erable  length  by  Mr.  McGregor.  He 
J^nied  thait  he  was  trying  to  help  Tom 
^  «7  against  the  interests  of  the  insol- 
vent estate.  Witness's  private  estate 
*«s  insolvent.  His  wife  hcid  three  house 
properties  in  Tarkastad,  but  thejr  all 
belonged  to  her  before  her  marriage. 
««  had  been  threatened  with  all  sorts 
w  lawsuits  by  Malcomess,  and  in  con- 
•©qw^nce  his  wife  and  Mr.  Gary  of  Bula- 
w^ayo  had  given  them  a  bond  for  his 
protection. 

Joshua  James  le  Roux,  attorney,  Tar- 
k«stad,  of  the  firm  of  Le  Roux  and  Gar- 
iick,  said  that  he  acted  for  the  firm  of 


H.  B.  Gary  last  year.  .He  remembered 
Mr.  Conraed  coming  up  in  May  from 
East  Lfondon  as  a  representative  of  Mal- 
comess and  Co.  to  go  into  the  accounts 
between  T.  B.  and  H.  B.  Gary.  He 
recollected  a  meeting  in  the  book- 
keeper's office  in  H.  B.  Gary'*  store, 
when  Conraed,  T.  B.  Gary,  and  others 
were  present.  They  were  discuseing  a 
final  statement  of  accounts ;  attempts 
were  being  made  to  induce  T.  B.  Gary 
to  agree  to  the  same.  Witness  advised 
Tom  Gary  to  accept  the  settlement,  and 
then  the  latter  said  that  he  would  ac- 
cept provided  Malcomct^s  and  Go.  would 
sign.  He  also  said  that  he  thought  the 
firm  of  H.  B.  Gary  owed  him  more 
money  than  was  shown  in 
the       statement.  On       the       14tb 

Juno  witners's  firm,  on  the  instructions 
of  Mr.  Williams,  acting  on  behalf  of  H. 
E.  Gary,  sent  a  letter  to  the  defendant, 
tendering  the  money  shown  to  be  due  to 
him.  There  was  not  the  slightest  doubt 
that  the  arrangement  was  finally  come 
to.  He  had  never  heard  either  Williams 
or  Hannaford  repudiate  the  agreement. 

C^ossexamined  by  Mr.  Burton  :  He 
was  acting  as  attorney  of  H.  B.  Gary 
an  that  time;  he  had  been  acting  as  at- 
torney of  T.  B.  Gary,  sincK)  Malcomess 
and  Co.  had  taken  the  papens  from  him 
and  handed  them  to  Mr.   Burton. 

Mr.  Burton :  You  don't  think  it  unsat- 
isfactory that  you  should  act  on  the  op- 
posite side  after  having  been  in  the  Con- 
fcronoo  of  the  other  side? 

Witness:  Not  after  I  have  been  abso- 
lutely released,  as  I  have  been,  by  Rei- 
mers. 

Further  cross-examined :  H.  B.  Gary 
confided  to  witness  nothing  about  his  in- 
.>olvency.  T.  B.  Gary  was  in  his  (wit- 
ness's) debt  to  the  extent  of  about  £800. 
At  the  interview  in  May,  T.  B.  Gary 
took  up  the  position  that  he  was  not 
satisfied  with  receiving  only  £136,  froiii 
the  firm  of  H.  B.  Gary.  lie  (defendant) 
seemed  to  be  of  opinion  that  the  promis- 
sory notes  which  had  been  left  over  for 
further  debate  would  be  paid,  treeing  that 
Malcomess  and  Go.  appeared  to  be 
inxious  to  make  a  settlement  of  H.  B. 
Garv's  affairs. 

TKomas  Bovey  Gary  (defendant)  said 
that  he  remembered  the  accounts  be- 
tween himself  and  H.  B.  Gary  being 
gone  into  before  Mr.  Conraed  towards 
the  end  of  May,  1904.  He  remembered 
the  meeting  at  Williams's  office,  at 
which  Mr.  Le  Roux  and  others  were 
present :  they  were  discuf^sing  the  Con- 
raed agreement.  Conraed  wanted  wit- 
ness to  sign  it ;  witness  demurred,  be- 
cause he  considered  that  H,  B.  Gary 
owed  him  more  than  £136.  After  Mr. 
Le  Roux  had  arrived,  there  was  further 
discussion,  and  witness  eventually  said 
that  he  would  acooj^t  the  agrooment  if 
Malcomers  sanctioned  it.  Subsequently, 
he  was  informed  that  Malcomess  had 
signed  the  agreement,  and  he  received  a 
letter  from  Messrs.  Le  Roux  and  Garlick 


468 


tt 


CAPE  TIMES"  LAW  REPORTS. 


tendering  him  the  money.  Mr.  Sfcanley 
replied  on  his  behalf,  repudiating  the 
agreement ;  his  reason  for  doing  that  was 
be(!ause  he  knew  that  Malcomess  and 
Co.  were  anxious  to  settle  the  whole 
matter,  and  he  wanted  them  to  pay  the 

good-forft  which  H.  B.  Gary  had  given 
im.  He  knew  at  the  same  time  that  he 
was  bound  by  his  agreement.  Upon  H. 
B.  Cary  becoming  insolvent,  he  drew  up 
a  proof  of  debt  for  £169,  but  he  did  not 
prove  agaiiMt  the  estate,  because  he  did 
not  think  there  would  be  anything  in 
the  £  for  concurrent  creditors.  He 
thought  that  the  bond  would  sweep  all 
the  assets. 

Mr.  Burton :    Do  you  know  how  much 
the  bond  is  going  to  get? 
Witness :    No. 

Mr.  Burton :  The  bond  i»  going  to  lo^e 
«25.000? 

\Yitnc6s:  I  have  no  idea. 

In  further  cross-examination,  witness 
mid  that  he  could  not  remember  a 
f*heque  (produced),  dated  August,  1902, 
foi-  £179  8s.  5d.,  payable  to  him  from 
H.  B.  Cary.  The  cheque  might  have  re- 
ferred to  skins  for  which  h©  charged  in 
his  counter-claim;  ho  had  forgotten  the 
payment  altogether.  There  was  another 
cheque  in  a  similar  position.  The 
amount  represented  by  the  cheques  was 
£287. 

Mr.  Burton :  So  that  that  would  wipe 
out  your  claim,  and  leave  you  indebted 
to  the  estate  of  H.  B.  Cary? 

Witness:  I  can't  say.  In  further 
cross-examination,  witness  denied  that  he 
had  put  in  any  but  bona  Me  claims 
against  H.  B.  Gary.  He  aamitted  hav- 
ing been  convicted  in  1902  at  the  Cir- 
cuit Court,  Queen's  Town,  of  receiving 
stolen  property  in  connection  with  the 
Army  stores.  He  wa*  fined  £75,  and 
paid  the  fin©  himself.  There  were  writs 
now  out  against  him  for  about  £180. 

Re-oxammed  by  Sir  H.  Juta:  Since 
the  case  was  commenced,  he  had  found 
certain  cheques,  which  he  had  given,  and 
for  which  he  had  not  been  credited  by 
H.  B.  Cary. 

Sir  H.  Juta  closed  bis  case. 

Peter  August  Reimers,  trustee  in  the 
insolvent  estate,  said  that  until  January 
of  this  year  he  wsfi  a  member  of  the  firm 
of  Malcomess  and  Co.  Malcomess  and 
Co.  were  never  asked  to  sign  a  formal 
agreement  concerning  what  had  been 
described  as  the  Conraed  agreement. 
The  agreement  pivported  to  be  between 
H.  B.  Cary  and  T.  B.  Cary 
and  Malcomess  and  Co.  were  not  a 
party  to  it.  All  that  they  had 
directly  to  do  with  the  matter  was  in 
regard  to  a  certain  erf  of  which  they 
had  bhe  deeds  as  the  holders  of  the  bond 
given  to  them  by  H.  B.  C'ary.  Mal- 
comess and  Co.  were  the  suptK)rtiug  firm 
of  H.  B.  Cary;  they  had  not  control  of 
the  business,  otherwise  they  would  not 
have  lost  £20,000  or  £26,000  by  it.  Mal- 
pomeas  and  Co.  were  to  receive  cash  for 


the  erf.  He  had  done  all  he  could  to  bring 
about  a  settlement  in  this  matter. 

Cross-examined  by  Sir  H.  Juta:  Con- 
raed WAS  a  clerk  in  the  employ  of  Mal- 
comess and  Co.  Conraed  placed  that 
settlement  before  him,  and  he  agreed 
to  it  so  far  as  he  had  anything  to  do 
with  it.  They  were  indirectly  interested 
in  t\\Q  settlement,  because  Conraed  was 
in  their  employ,  and  because  they  were 
large  creditors.  He  objected  to  the 
settlement  at  first.  It  was  quite  possible 
that  he  thought  at  the  time  that  Mal- 
comess and  Co.  were  affected  by  it.  He 
admitted  having  sent  a  telegram  on  Juno 
14  to  Williams  at  Tarkastad.  asking  him 
to  close  with  the  Conraed  agreement,  but 
if  safe  to  wait  for  his  (Receiver's)  let- 
ter. By  '*  if  safe "  he  meant  that  if 
there  was  any  danger  of  losing  a  settle- 
ment to  close  up  at  once.  He  had  been 
anxious  not  to  offend  Williams,  fearing 
that  he  might  throw  up  the  whole  busi- 
ness. 

Robert  Hartshorn  Williams,  manager 
of  Malcomess  and  Co.'s  branch  at  Tar- 
kastad, and  formerly  in  H.  B.  Gary's 
employ  as  manager  under  Hannaford, 
said  that  one  of  the  first  things  he 
went  into  after  entering  H.  B.  Gary's 
service  was  the  account  with  T.  B.  Cary. 
He  found  amounts  due  to  H.  B.  Cary, 
and  spoke  to  T.  B.  Cary,  who  said  that 
he  had  a  contra  account,  and  8ub.se- 
quently  sent  in  a  statement.  Witness 
went  on  to  speak  of  the  investigation 
made  by  Mr.  Conraed. 

Cross-examined  by  Sir  H.  Juta:  He 
was  of  opinion  that,  strictly  speaking, 
the  only  direct  interest  Malcomess  had 
in  the  settlement  between  the  Carys  was 
in  regard  to  the  transfer  of  the  erf.  He 
referred  the  matter  to  Malcomess  and 
Co.,  because  he  wanted  to  avoid  un- 
pleasantness between  H.  B.  Cary  and 
Malcomess.  He  admitted  that  at  that 
time  Malcomess  could  have  forced  H. 
B.  Gary  into  insolvencv  in  a  week.  There 
had  been  no  completed  agreement  on  the 
basis  of  the  Conraed  document.  He  ad- 
mitted having  written  a  letter  on  June 
21  to  Malcomess  saying  that  T.  B.  Cary 
bad  entered  into  an  agreement  on  the 
basis  of  the  Conraed  document. 

Benjamin  William  Jandrell,  of  Tarka- 
stad, formerly  a  bookkeeper  in  defend- 
ant's employ,  said  that  he  made  up  a 
contra  account  against  H.  B.  Gary. 
When  he  came  to  the  items  of  £179 
and  £108,  defendant  said  that  both 
those  items  had  been  paid,  but  he 
should  include  them  in  the  account  all 
the  same.  There  was  also  an  item  of 
£183  10s.,  relating  to  a  good-for;  de- 
fendant told  him  that  this  had  been 
settled. 

Hopley,  J.,  asked  witness  whether 
ho  did  not  think  it  was  fraudulent  to 
include  in  an  account  items  which  had 
already  been  settled  for? 

Witness  said  that  he  regarded  the 
statement  as  simply  preliminary.  Pro- 
ceeding, witnew  Mid  that  when  he  wae 


"CAtE  TIMES"   LAW  REPORTS. 


469 


going  through  the  books,  dofcudaiit  told 
him  to  gcb  all  he  could  from  H.  B. 
Cary,  and  give  nothing  away.  He  told 
defendant  that  the  items  would  be  found 
out.  Defendant,  when  in  drink,  in- 
sulted witness,  and  he  left  his  service. 
He  had  not  been  p&id  his  wages.  De- 
fendant, after  the  meeting,  told  witness 
that  he  would  not  aj^rec  to  the  settle- 
ment. 

Cross-examined  by  Sir  H.  Juta:  He 
had  not  said  that  the  skins  account  was 
frauduleutw 

Hopley,  J.,  warned  the  witness  that 
he  was  not  compelled  to  answer  ques- 
tions relating  to  fraudulent  accounts  if 
he  were  afraid  of  being  sent  to  the 
Breakwater. 

Witness  said  that  he  did  not  think 
there  was  any  need  to  have  such  a 
fear. 

Sir  H.  Juta :  I  would  not  be  too  sure, 
Mr.  Jandrell. 

Hopley,  J.,  remarked  that  witness 
had  acknowledged  that  he  had  been 
couceriicd  in  the  perpetration  of  frauds. 
Sir  H.  Juta  (to  witness):  Do  you 
want  us  to  believe  that  in  this  state- 
ment there  had  been  fraudulent  entries 
made  by  yourself  of  £776,  and  that  de- 
fendant was  quite  willing  to  risk  £775 
for  the  sake  of  £383? 

Witness:  I  did  not  have  any  interest 
in  the  matter.  I  merely  wrote  what  I 
was  told  to  write. 

Hopk»y,  J.,  pointed  out  that  the 
fraudulent  items  admitted  by  witness 
amounted  to  £7(X2  Os.  6d.|  and  that  he 
said  these  notes  wore  treated  as  accom- 
modation not^. 

In  further  reply  to  Sir  H.  Juta,  wit- 
ness said  that  he  did  not  know  why,  in 
his  affidavit,  he  made  no  reference  to 
tlie  items  of  £179  and  £109,  which  had 
already  been  paid,  to  defendant's  know- 
ledge. 

[Hopley,  J. ;    Could  you  lose  sight  of 
a  thing  which   was   so   flagrant  and  so 
gross.] 
Witness:    I  don't  know. 
John  Henry  Hughes,  manager  of  the 
Tarkastad  branch  of  the  Standard  Bank, 
•aid  that  the  notes   of  £265  and     £149 
vere  deposited  in   the  bank  against  H. 
B.  Gary's  overdraft,  and  were  not     re- 
leased at  any  time. 
Mr.  McGregor  closed  his  case. 
Counsel   having   been   heard   in   argu- 
ment on  the  facts, 

Hopley,  J.,  said  he  found  that  T.  B. 
Carv  did  agree  at  first  to  the  Conraed 
settlement,  and  that  a  final  and  binding 
contract  was  entered  into  between  the 
parties.  Cary  subsequently  repudiated  it, 
and  the  money  was  t^idered  to  him. 
Then,  on  the  8th  October,  the  contract 
was  rescindod  by  a  letter  from  plaintifTs, 
Sj^reeing  to  a  cancellation.  He,  there- 
fore, found  that  there  was  no  legal  con- 
tract in  existence,  and  the  parties  must 
g>  into  the  whole  matter  before  a  re- 
ree,  unbound  by  any  such      contract 


The  matter  would  be  referred  to 
Maynard  Nash. 


Mr. 


MALC0ME68  V.   FRANK. 

Mr.  Alexander  moved,  as  a  matter 
of  urgency,  for  a  conimiat»iun  to  take 
the  evidence  of  the  plaintiff,  Hermann 
Wilholm  Malcomesd,  of  East  London,  in 
view  of  his  projected  departure  from 
Cape  Town  by  to-morrow's  mail  steamer 
to  Europe.  ^Plaintiff  was  suing  Arnold 
Frank,  veterinary  surgeon.  Cape  Town, 
who  was  staAed  to  be  residing  at  the 
Roval  Hotel,  for  £30  IQs.,  cxpcnseci  in 
and  about  sending  back  to  Cape  Town 
from  East  London  a  certain  mare  sold 
to  him  by  Frank  under  certain  represen- 
tations which  had  wholly  failed. 

Order  granted  ae  prayed,  Mr.  Adv(>cate 
Giddy,  K.C.,  to  be  commijfcioner,  failjng 
him,  Mr.  Advocate  M.  IMsset,  question 
of    costs    to    eft  and    over. 


SUPREME  COURT 


FIRST    DIVISION. 


[ Before  the  Hon.  Mr.  Juatioe  Ma AHDORP.] 


TROLLIP  V.  STEVENSON. 


I 


11K)5. 


(June  21  at. 

This  was  an  action  to  recover  an 
amount  of  taxed  costs  with  interest  in 
a  case  brought  by  the  defendant  against 
Stableford  and  Co. 

The  declaration  set  out  that  the  plain- 
tiiT  was  an  attorney  of  Capo  Town. 
Between  September,  1903.  and  Maich. 
1904,  the  plaintiff  rendered  professional 
sei*vices  to  the  defendant,  and  disbursed 
mcmies  on  behalf  of  the  defendant  in  the 
action  instituted  against  Stableford  and 
Co.  Judgment  was  given  for  the  (then) 
plaintiff  for  £500,  and  costs,  and  plain- 
tiff now  claimed  £58  13s.  Id.,  £6  68.  for 
profeesional  M}rviccs,  and  £7  158.  9d. 
interest. 

The  defendant  in  reconvention  claimed 
£624  28.  9d.,  by  reason  of  the  plaintiff's 
negligence   in    not   prosecuting  a  writ. 

Mr.  P.  S.  T.  Jones  was  for  the  plain- 
tiff, and  Dr.   Greer  for  the  defendant. 

Herbert  Paj[ne,  attornov,  in  the  ser- 
vice of  the  plaintiff,  statocl  when  Steven- 
son brought  the  action  he  was  acting  for 
th^-  defendant,  representing  Mr.  Trollip. 
Witness  took  steins  in  February  to  have 
the  judgment  satisfied  by  Stableford  and 
Co.,  and  wrote  a  let/ter  at  the  delendaut'b 


470 


"CAJ^B  TfatES"  LAW  BEK>ftT6. 


iustructionB.  There  were  no  definite  in- 
6t  ructions  given  to  him  to  issue  a  writ 
of  execution.  Witness  advised  the  de- 
fendant that  to  iaeue  a  writ  would  be 
a  waste  of  monev. 

Cross-examined  by  Dr.  Greer:  The 
plaintiff  suggested  to  witness  to  issue  a 
writ  of  execution,  but  he  did  not  give 
any  definite  iik»tructions.  There  was 
an  offer  of  compromise  by  the  liquidators 
before  the  trial.  He  wrote  to  the  de- 
fendant that  it  was  "  impracticable  "  to 
issue  .a  writ  of  execution,  and  witness 
nieent  that  there  was  nothing  to  gain 
by  it.  The  defendant,  witness  believed, 
understood  the  position  very  clearly  that 
*'  impracticable  meant  there  "  inadvis- 
able." In  February,  1904,  it  was  stated 
by  the  liquidators  that  the  company 
could  pay  15i$.  in  the  £.  It  took  the 
liquidators  a  considerable  time  to  get  at 
tho  true  state  of  the  company.  At  {>re- 
sent  there  was  no  pro6{>ect  of  anything 
being  paid  to  concurrent  creditors.  Wit- 
ness did  not  consider  that  the  estate  had 
been  *•  frittered  "  away. 

Mr.  G.  £.  Orpen  was  called,  and  de- 
posed that  he  was  a  partner  in  the  firm 
of  S^fret  and  Co.  Mr.  Syfret,  who  acted 
a^  liquidator  in  Stableford  and  Co.,  said 
that  the  company  had  never  been  in  a 
position  to  pay  concurrent  creditors  any- 
thing.  There  was  no  prospect  at  pre- 
sent of  the  concurrent  creditors  getting 
anything  unless  they  obtained  the  same 
price  for  the  building  as  Stableford  had 
paid  for  it. 

Oliver  Lamb  gave  evidence  as  to  the 
proceedings  of  the  meeting  of  the 
creditors  of  Stableford  and  Co., on  Maroh 
creditors  of  Stableford  and  Co.»  on 
March  31,  1804,  at  which  defendant  was 
present. 

Wm.  J.  Legg  deposed  that  he  was 
chairman  at  the  meeting  referred  to, 
and  gave  corroborative  evidence. 

Mr.  Jones  closed  his  case. 

Leonard  Stevenson,  the  defendant, 
stated  that  when  he  obtained  judg- 
ment against  Stableford  and  Co.  he 
gave  instructions  to  plaintiff  to  levy  a 
writ  of  attachment.  Subsequently,  the 
plaintiff  wrote  to  him  a  letter,  from 
which  he  gathered  that  it  would  be  im- 
possible to  issue  the  writ.  He  did  not 
think  that  every  effort  had  been  made  to 
get  the  judgment  satisfied,  and  he  con- 
sidered tnat  he  would  have  got  the  bulk 
of  the  £500  if  proper  steps  had  been 
taken  at  onoe. 

Cross-examined  by  Mr.  Jones:  He 
attended  the  meeting  in  March.  He  did 
so  in  order  to  receive  the  report  of  the 
liquidators.  He  did  not  recollect  send- 
ing the  resolution  at  that  meeting;  he 
had  no  distinct  recollection  of  the  pro- 
ceedings there.  Mr.  Payne  advised  him 
that  it  was  impracticable  to  issue  a  writ. 
Witness  considered  that  ho  had  lost 
money bocau.«*e  of  that  advice.  lie  took 
Mr.  Payne  to  mean,  when  he  said  it 
was  impracticable  to  proceed,  that  it  was 
impossible  to  proceed.    If  he  had  under- 


stood that  it  was  possible  to  have  pro^ 
oeeded  with  the  execution,  he  woiild 
have   insisted  on   doing  so. 

Re-examined  :  Witness  understood  that 
ih«2  voluntary  liquidators  made  an  offer 
•}f  10s.  in  the  pound.  He  would  have 
ic:cepted  that  if  he  had  not  thought  he 
lunula  press  them  further. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Maasdorp,  J.,  said  the  plaintiffs  sought 
to  recover  from  the  defendant  a  certain 
sum  of  money  for  services  rendered, 
which  were  specified  in  two  bills  of  costs. 
These  services  were  rendered  in  a  case  in 
which  the  present  defendant  was  the 
plaintiff  and  Stableford  and  Co.,  were 
defendants.  His  Lordship  reviewed  the 
circumstances  of  the  case,  and  said  that 
he  found  that  the  liauidators  were  guilty 
of  no  act  which  damaged  the  estate, 
and  there  was  no  evidence  which  would 
justify  the  Court  in  finding  that  there 
was  any  negligence  on  the  part  of  the 
plaintiffs.  Judgment  would  bo  entered 
for  the  plaintiff  in  con\"ention  for  £58 
13s.  Id.,  with  costs,  and  for  the  defend- 
ant in  reconvention  (plaintiff  in  con- 
vention), with  costs. 


BATNER  AND  TIMAN  V.  KBOAKOB. 

This  was  an  action  in  which  plaintiff 
claimed  £60,  in  respect  of  services  ren- 
dered to  the  defendant  by  the  sale  of 
certain  property. 

The  declaration  stated  that  the  firbt 
plaintiff  resided  at  W'ynberg,  and  the 
second  at  Kalk  Bay,  whilst  defendant 
was  a  landed  proprietor,  residing  at 
Cape  Town.  Tne  plaintiffs  were  in  part- 
nership, and  were  employed  by  the  de- 
fendant te  find  a  purchaser  for  certain 
propert>;,  for  which  service  it  was  agreed 
that  plaintiffs  should  receive  £60.  Plain- 
tiffs introduced  one  Moscowitz  to  the 
defendant,  and  eventually  the  property 
was  sold  to  Moscowitz  for  £4,000.  the 
sale  being  brought  about  through  tlie 
agency  of  plaintiffs.  The  conditions  by 
which  the  plaintiffs  were  to  receive  the 
£60  had  been  fulfilled. 

The  plea  denied  that  there  was  a  part- 
nership between  the  plaintiffs,  and  de- 
nied that  plaintiffs  had  been  employed 
to  find  a  purchaser  for  the  property,  al- 
though defendant  admitted  that  the  pro- 
perty had  been  sold.  The  sale  was  not 
effected  through    plaintiff's  agency. 

Mr.  Lewis  appeared  for  the  plaintiff, 
and  Mr,  Sutton  for  the  defendant. 

Jacob  Timan.  one  of  the  plaintiffs, 
having  detailed  the  arranp:ements  that 
led  up  to  the  defendant  incurring  the 
debt  to  them,  which  arose  out  of  the 
sale  of  a  property,  for  which  plaintiffs 
were  alleged  to  have  obtained  a  pur- 
chaser, and  for  which  services  he  promis- 
ed to  pay  them  £60.  The  witness  was 
subjected  to  a  lengthy  cross-examinatiou, 
in  which  he  admitted  that  he  was  not  a 


"CAPE  TIMES"  LAW  REPORTS. 


471 


broker,  and  that  this  was  the  first  ven- 
ture of  this  kind  he  had  gone  in  for. 

Max  Ratuer  stated  that  the  last  wit- 
ness asked  him  to  look  out  for  a  pur- 
chaser for  the  property,  and  promised 
him  £60  for  doing  so.  He  obtained  a 
purcfaf&ser,  but  had  not  received  the 
amount  promised  to  him. 

William  Moscowitz  stated  he  had  a 
farm  at  Diep  River.  Ratner  suggested 
to  witness  that  he  should  exchange  the 
farm  for  a  property  in  Cape  Town.  The 
deal  did  not  go  through.  He  purchased 
Ihe  property  for  £4,350. 

In  cross-examination,  the  witness  ad- 
mitted that  he  had  been  engaged  in  an 
action  in  which  the  Chief  Justice  (Sir 
Henry  de  Villiers)  stated  he  was  guilty 
of  a  scandalous  fraud. 

[Maasdorp,  J. :  What  has  that  to  do 
with  the  case?] 

Mr.  Sutton:  It  is  brought  forward  to 
prove  incredibility. 

The  defendant,  examined,  stated  he 
was  a  land  dealer  and  speculator.  He 
denied  having  promised  either  of  the 
plaintiffs  any  commission.  In  fact,  he 
did  not  recollect  having  seen  them  prior 
to  the  time  thb  actifon  was  commenced. 

In  croes-examinationj  witness  denied 
that  be  intended  leaving  the  country. 
He  bad  his  wife  and  nine  children  in 
Cape  Town,  and  why  should  he  leave  it. 
Mcscowitz  was  introduced  to  witness  by 
a  man  named  Pelonus. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Maasdorp,  J.,  reviewed  the  evidence, 
ftnd  in  conclusion  said  he  saw  no  leaaon 
M  between  two  business  men  why  one 
should  work  for  the  other  for  nothing. 
}t  was  undoubtedly  proved  that  the  de- 
fendant ajpeed  to  pay  the  plaintiffs  the 
sum  of  £60  if  they  succeeded  in  dls- 
P««ng  of  his  property  for  .him.  They 
aad  done  so,  and  there  would  be  judg- 
ment for   the  plaintiffs  for  the  amount 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting  Chief  Justice,   the 
Hon.  Sir  John  Buchanan  ] 


/»    rf    MALAY    M08QUB,     f        1905. 

TBU8TBE8  OP.  }  June  22nd. 

Buchanan,  A.CJ.,  said  that  amonj? 
the  reports  nxide  by  the  Master  tha* 
morning  was  one  oonoerning  a  sale  of 


the  Malay  Mosque  in  Buiteiikant-street. 
The  sale  was  a  judicial  one,  at  tlio  in- 
stance of  the  mortgagees,  and  had  been 
cunductcd,  and  there  was  a  6iiri)Iu8  of 
tovoral  hundreds  of  i)onnd«>.  lie  m.'n- 
tioned  thia  publicjy.  so  that  anybody 
who  wa(9  interested  in  the  surplus  might 
appear  before  the  Master  before  it  was 
paid  over  by  him  to  the  trustees. 


ADMISSIONS. 


f     mm. 

( June  22nd. 


Mr.  P.  S.  T.  Jones  moved  for  the  ad- 
mission of  G.  P.  Kotze  as  an  attorney 
and   notary. 

Application  granted,  and  oaths  ad- 
ministered. 

Mr.  P.  8.  T.  Jones  moved  for  the  ad- 
mission of  Johannes  B.  Bekker  as  an 
atbome^. 

Application  granted,  oaths  ito  be  ad- 
ministered before  the  Resident  Magis- 
trate of  Aliwal  North. 

Mr.  Gardiner  moved  for  the  admis- 
sion of  Archibald  Henderson  as  an  at- 
torney. 

Application  granted,  oaths  to  be 
taken  before  the  Resident  Magistrate  of 
Griqua   Town. 


PPfOviSIONAL  ROLL. 


OARLICK  V.  STEVENS. 

Mr.  P,  8.  T.  Jones  moved  for  con- 
firmation of  a  writ  of  arrest,  upon  a  debt 
of  £78  16s.   9d. 

Judgment  granted  as  prayed. 


KAHN  AND  LEVI.V   V,  SMUTS. 

Mr.  P.  8.  T.  Jones  moved  for  provi- 
sional sentence  on  a  mortgage  bond  for 
£1,250,  due,  without  notice  being  given, 
i-i  accordance  with  the  terms  of  the 
b(;nd ;  counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared  executable. 

Order  granted. 


DBMPBRS  AND  VAN  RYNEVELD  V.  BULL. 

Mr.  J.  E.  R.  de  Villiere  moved  for  a 
decree  of  civil  imprisonment  upon  an 
unsatisfied  judgment  of  this  Court  for 
£10  17s.  2d.  and  £6  19b.  Id.  costs.  Coun- 
sel read  an  affidavit  by  the  defendant, 
who  said  that  he  had  entered  into  a  prac- 
tice at  Uitenhage,  and  that  he  hoped, 
if  allowed  time,  to  discharge  the  debt, 
He  had  lost  heavilv  by  a  law  suit,  and 
had  paid  a  sum  of  £30  already. 

Decree  of  civil  imprisonment  granted, 
with  costs,  to  be  suspended  on  payment 
of  £3  per  month. 


472 


ii 


CAPE  TTME8"  LAW  REPORTS. 


B  EBB  A  NO  E  V.  »HAW. 

Mr.  Gardiner  moved  for  provisional 
sentence  for  £95  10«.  8d.,  intere»t  reck- 
oned from  June  5,  1903,  to  Deceml>er  31, 
1904,  at  6  per  cent.,  upon  a  capital  sum 
of  £1,050,  amount  of  certain  mortgage 
bond. 

Mr.  Burton  (for  the  defendant)  read 
an  affidavit  by  Mr.  Shaw,  denying  lia- 
bility. The  matter,  he  said,  arose  out 
of  the  purchase  by  the  defendant  of 
certain  ground  at  Sea  Point  for  £1,450. 
Certain  difficulties  occurred  in  regard  to 
the  payment  of  rates  on  the  land,  in 
the  course  of  which  defendant  threw 
over  the  sale,  and  claimed  refund  of 
£400  which  he  had  paid.  Transfer  had 
not  been  passed.  Deponent  went  on 
to  say  that  the  plaintiff  had  passed  the 
bond  against  his  wishes,  and  m  spite  of 
the  power  he  had  ^iven  having  been  re- 
voked. He  subzmitted  that  the  plaintiff 
should  not  be  granted  provisional  sen- 
tence^  but  should  be  orcfered  to  go  into 
the  principal  case. 

Mr.  Gardiner  said  that  it  was  on  re- 
cord that  the  defendant  had  oommenc- 
eJ  an  action  in  January  last  against 
Mr.  Berrangd  for  cancellation  of  the 
sale  and  refund  of  the  sum  of  £400, 
but  Mr.  Shaw  was  barred  through  hav- 
ing failed  to  file  his  declaration,  and 
the  action  was  withdrawn  on  the  8th 
inst.  If  that  record  werer^dmitted  he 
should  apply  for  a  postponement  until 
two  o'clock  to  enable  plaintiff  to  re- 
ply to  the  defendants  affidavit. 

Mr.  Burton  submitted  that  the  plaint- 
iff was  not  entitled  to  provisional  sen- 
tence. 

Provisional  sentence  granted  as  prayed, 
with  leave  to  the  defendant  to  go  into 
the  principal  case. 


MILLS  AND  SONS  V.  BLOCK. 

Mr.  Douglas  Buchanan  moved  for  u 
provisional  order  of  sequostration  to  he 
made  final 

Final  order  granted. 


FEDERAL  SUPPLY  AND  OOLD  STORAGE 
OO.  V.  KARRO. 

Dr.  Rainsford  moved  for  judgment, 
under  Rule  329d,  for  £115,  goods  sold 
and  delivered,  for  £89  14b.  4d.,  balance 
of  further  account,  and  also  for  £8  10s., 
goocb  sold  and  delivered.  and  costs ; 
counsel  also  applied  for  provisional  sen- 
tence on  a  mortgage  bond  for  £200,  with 
interest,  due  by  reason  of  non-payment 
of  interest ;  counsel  also  applied  for  the 
property  hypothocatod  to  be  declared 
executable. 

Judgment  granted  on  illiquid  claim 
and  provisional  sentence  on  the  bond  as 
prayed. 


MCNAUOIITON  V.  SOWE  AND  WELSH. 

Mr.  P.  8.  T.  Jones  moved  for  the  final 
adjudication  of  the  defendants'  estate,  as 
insolvent 

Order  granted. 


8IPELL  AND  SALBEB  V.  KOTZBN. 

Dr.  Greer  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as  insol- 
vent. 

Order  granted. 


ILLIQUID  ROLL. 

PERGDSSON  V.  ROWE.         {j^^f^^d. 

Mr.  Lewis  moved  for  judgment,  under 
i    Rule  329d,  for  £33  6s.  3d.,  work  and  la- 
bour done. 
i       Order  granted. 


COOK  y.  SCARB. 

Mr.  p.  S.  T.  Jones  moved  for  judg- 
ment, under  Rule  329d,  for  £72  17s.  5d.. 
balance  of  account  for  goods  sold  and 
delivered,  with  interest  a  tempore  monu 
and  costs  of  suit. 

Order  granted. 


JOHNSON  AND  GO.  V.  ROTAL  HOTEL  OO., 

LTD. 

Mr.  Van  Zyl  moved  for  judgment,  un- 
der Rule  319,  for  £207  5s.  4d.,  with  in- 
terest and  costs  of  suit,  affidavit  of  ser- 
vice of  bar  being  produced. 

Order  granted. 


SIMKINB  AND  ADAMS  V    BABNETT. 

Mr.  Gutsche  moved  for  judgment,  un- 
der Rule  329d,  for  £56  ISs.,  services  ren- 
dered and  costs  of  suit. 

Buchanan  (A.C.J.)  said  that  judgment 
would  be  granted,  but  he  would  point 
out  that  the  summons  was  not  sufficient- 
ly explicit  to  show  the  cause  of  action. 


VAN  DER  BYL  AND  CO.  V.  MOHITZ. 

Mr.  Sutrton  moved  for  judgment,  under 
Rule  329d,  for  £163,  good«  sold  and  de- 
livered. 

Order  granted. 


WIENER  AND  CO.  V.  PUCHa 

Dr.  Rainsford  moved    for    judgment, 
Mr.    Rainsford  moved   for     judgment, 
under  Rule  329d,  for  £100  lOs.  7d.,  goods 
sold  and  delivered,  with  interest  a  tem- 
pore moraet  and  costs  of  suit. 
Order  granted. 


"CAPB  TIMES"  LAW  REPORTS. 


478 


GENERAL    MOTIONS. 


BICHARDS  AND  UTHBBS 
SIMONS  AND  OTHEHS 


V.    r        1905. 

( June  22n(l. 

Dr.  Raimford  moved  for  the  rule  nisi, 
restraining  the  respondents  from  paring 
0T«r  certain  money,  to  be  made  absolute. 

Rule  made  absolute,  action  to  be  inj»ti- 
tuted  forthwith. 


ATLAS  INSURANCE  GO.  V.  UODBIQUES. 

Fire    insurance  —  Conditions    of 
policy — Arbitration . 

R,  had  taken  out  a  policy  in  a 
cerUiin  Fire  Insvrance  Com- 
pany. His  atock  and  books 
having  been  gtibsequently  burn- 
ed during  the  currency  of  this 
policy,  he  made  his  claim  atid 
agreed  with  the  compatiy  to 
have  his  loss  asxessed  by  arbi- 
iraiion.  The  company  now 
sought  to  have  him  interdicted 
from  proceeding  with  the 
arbitration,  on  the  ground  that 
he  had  violated  one  of  the  con- 
ditions of  his  policy  by  not 
having  given  accounts  of  his 
losses  as  fuH  as  could  be 
given, 

Held,  tliat  as  the  sujfficiency  of 
the  accounts  was  a  question  for 
the  arbitrator  to  decide,  the 
interdict  must  be  refund,  with 
costs. 


This  was  an  application  upon  notice  of 
action  calling  upon  the  respondent  to 
show  cause  why  he  should  not  be  inter- 
dicted from  continuing  certain  arbitra- 
tion proceedings,  commenced  by  him  on 
the  19th  May  last,  in  respect  of  loss  by 
fiig  on  the  7th  June,  \m. 

From  the  affidavits,  it  appeared  that 
on  the  2nd  June,  1904.  respondent  insur- 
«1  with  the  company  for  £700  his  stock- 
»n-trade,  consisting  of  wicker  chaira  and 
other  Madeira  work,  at  his  store,  129. 
^ree-Btreet,  Cape  Town.  On  the  7th 
June  a  fire  broke  out  on  his  premises, 
and  on  the  17th  June  he  sent  in  a  claim 
to  the  applicant  company  for  £700.  Ar- 
£j  *^"  proceeding*  had  been  commeno- 
*?•  The  ground  of  the  present  applica- 
tion was  the  respondent's  non-compliancc 
with  condition  12  of  the  policy,  inasmuch 
M  no  prooer  books  ancf  vouchers  and 
other  evidence  of  value  had  been  pro- 
duoed. 

Mr.  McGregor  was  for  the  applicant; 
Mr.  Gardiqer  was  lor  the  respondent. 


Having  heard  Mr.  McGregor  in  argu- 
mt'ut, 

Buchanan  (A.C.J.) :  On  the  2nd 
June  last  year  the  respondent 
insured  his  property  with  the 
applicant  company,  and  shortly  after- 
wards a  fire  took  place.  At  this  fire  it 
IS  alleged,  the  whole  of  the  stook,  the 
books,  and  the  papers  were  destroyed. 
There  is  no  all^ation  setting  out  that 
there  was  any  fraud  in  this  matter,  which 
would  vitiate  the  contract,  and  oonse- 
quenrtJy  prevent  the  respondent  from  su- 
ing upon  it,  but  it  is  admitted  thai  if 
certain  conditions  are  complied  with 
the  respondent  would  be  entitled  to  go 
to  arbitraitaon  under  the  conditions  of 
the  policy,  and  have  the  amount  of  his 
loss  assessed  by  the  arbitmtore.  The 
appl]can<t  company  now  wish  to  prevent 
th«  respondent  from  going  to  arbitra- 
tion, because,  they  say,  they  have  not 
been  supolied  with  sufficient  accounts  to 
the  satisiaotion  of  the  directore  under 
the  12th  clause  of  the  conditions  of  the 
policy.  I\h>i8  12th  clause  requires  oert^un 
thinra,  which,  it  might  well  be  apgued, 
on  the  case  of  Hollander,  are  conditions 

Erecedent.  One  is  that  accounts  of  the 
>8s,  as  fully  as  can  be  given,  shall  be 
lodged  within  14  days  of  the  fire.  This 
was  done.  Then  itm  12th  clause  goes 
on  to  say  that  these  accounts  must  be 
sufficient  and  satisfactory  before  the 
claim  for  amount  of  loss  or  damage  is 
payable.  Now,  whether  these  accounts 
which  have  been  furnished  are  sufficient 
and  satisfactory  is  a  question  which  the 
OouPt  which  has  to  try  the  claim  will 
have  to  determine.  As  was  pointed  out 
in  the  case  of  Hollander  v.  the  Royal 
Insurance  Company^  cited  by  Mr.  Mc- 
Gregor, it  is  a  question  which  comes  up 
m  ttie  trial  of  the  case,  and,  as  his  lord- 
ship, the  Chief  Justice  jwiwted  out,  it 
is  a  question  of  fact  and  not  of  law. 
It  is  not  a  condJttion  precedent  in  the 
sen^c  that  it  must  be  complied  with 
before  the  trial  takes  place;  if  accounts 
are  furnished,  whether  iihey  are  sufficient 
or  not,  is  one  of  the  poimts  that  should 
be  heard  at  the  trial.  The  panties  have 
chosen  the  tribunal  which  shall  try  this 
maitter  to  be  a  Court  of  Arbitration, 
and  consequently  the  pereon  who  was 
injured  having  furnished  his  claim  witJi- 
in  the  time  specified,  and  having  furnish- 
ed accounts,  the  present  application  will 
be  refused.  The  application  is  not 
justified,  and,  having  failed,  the  appli- 
cant company  must  pay  the  co«»ts. 


BENEKB  AND  0THEB8  V.  VAN  DEB  VTVER, 

Mr.  Van  Zyl  moved,  as  a  matter  of 
urgency,  for  a  commission  to  take  the 
evidence  of  certain  two  wrtneat^s  at 
Riversdale,  an  apo'ication  being  made 
on  the  petition  of  the  plaintiffs^  aiibt-or- 
nev,  Mr.  J.    S.  de  Villiem. 

Order  granted  as  prayed,  the  R.M.  of 
RivetiBdate  to  be  oommissioqer. 


"CAPE  TIMES"  LAW  REPORTS. 


Jh  re  LAKBnowwE  uovf-z  estate  co  , 

Mr.  P.  S.  T.  Jonee  prv9«ut«d  the  first 
teport  of  the  liijuidatoTi.  and  applied 
for  tlio  >kiual  order. 

U>uiil  order  grutitpd,  putilkatiou  oiint 
in  the  "  GwernmeDit  Gaiette  "  and  oiico 
in  the  "  Cape  Times." 


Thii  wu  an  application  calling  upon 
tho  respondent,  the  curMor  of  the  pro- 
perty oF  the  lunatic,  Heinrich  Bohland. 
to  show  <mu»e  why  he  ghould  not  bi' 
ordered  to  paj  over  to  the  applicant, 
Chri&UBD  Rohtand  fiah  dealer,  Faurt' 
Siding  (father  of  the  luua.tiil,  a  ium  of 
£200  ordered  by  tbia  Court  to  be  raiaed 
on  the  14Ch  March,  1905.  by  mortga^^ 
on  a  Farm  belonging  to  the  «ai(t  He:r. 
rich  Rohland. 

The  affidavit  of  the  ap[ilicant  staled 
that  the  money  had  been  raised  on  mort- 
gage, but  that  Mr.  Sleytler  declined  to 


of 


nby 


ernment  for  ijie  keep 
luwUic.  Petitiorrar  woi  in  reduced 
ciicumatancM.  and  the  money  was  raited 
as  aminiit  ceittain  iiupiovomeati  made 
by  hum  on  hia  flon's  pwrnertj. 

The  answering  affidavit  of  Mr. 
Steytler,  itated  that  he  raised 
no  objection  to  (he  application 
for  the  l>ond.  ao  long  as  his  diflburse- 
menu  in  the  adminiatration  of  the  pro- 
perty were  astiBfied  and  a  pro  Tata 
contribution  vat  made  to  the  Govern- 
ment, Deponent  contended  that,  thia 
farm  being  Che  only  >»et  in  the  e*«.tp. 
he  waa  entitled  to  a  preferent  olaim  on 
the  amount  raised.  He  had  received  a 
claim  Fpoto  the  Cokmial  Government  for 
£353  159-  for  keep  of  the  lunatic. 

The  replying  affidavit  of  the 
applicant  denied  that  he  entered 
into  any  conditions  with  the  re- 
spondent, and  said  that  if  suoh  condi- 
tiona  were  entt^red  into  between  his  lei^ 
representatives  and  Mr,  Sleytler,  it  was 
entirely  wirthoul  hts  knowledge  and  con- 
sen*.  Had  he  known  of  such  conditions 
ho  would  no*  have  proceeded  with  his 
aipplication.  Deponent  went  on  to  say 
•hat  the  Farm  when  oriffinally  granted 
to  his  son  wad  bare  veld,  and  that  he 
[daponcDt]  bad  expended  at  least  £100 
on  the  improvement  of  the  property.  He 
■aid  furthar,  that  his  son  had  been  treait- 
ed  iy  the  t5overnment  as  a  free  patient- 
Counsel  abo  read  an  affidavit  by  the 
applicant's  wife,  who  denied  that  any 
cnndilions  were  Bftreed  to  in  the  inter- 
view with  Mr.  Sitcptler  before  the  ap- 
plication waa  granlfl]  by  the  Court- 
Mr.  Gardiner  tor  applicant;  Mr.  Bur- 
ton for  respondent. 

Mr.  Gardiner  submitted  that  it  wbh 
too  late  for  the  curator  to  come  and 
claim  any  portion  of  thui  money. 


Mr.  Burton  said  he  admitted  thai  bis 
client  should  h»™  appeared  at  the  time 
.    of    the    application,    and    brounht    iheae 
'    (acts  before  the  Court.       He  submitted, 
'    however,   that  Mr.   Steytler   waa  clearly 
i    entitled  to  have  his  diRburfcmciita  sati.- 
:    Bed,    because    those    disburaemeuts    had 
:     been    made    in    order    to    preserve    the 
Farm  to  the  applicant's  estate,  such  as 
tiUe  deeds,  and  so  forth.      Mr.  Steytler 
was  making  no  charge  whatever  for  hia 
own     nork     of     administration.       As  to 
the  charges  of  the  Government,  aection 
69   of   the   Lunacy   Act   clearly   showed 
that   atbhough   tlie   patient   may   be   re- 
ceived as  a  free  patient  at  first,  in  the 
case   of   any   property   accruing   to   the 
lunatic,  tho  Government  could  recover. 

Buchanan  (A.C.J.) :  Tho  curator 
has  rajsed  on  mortgage  a  sum 
of  £200,  the  amount  authorised 
by  the  Court  being  £250.  The 
curator  claims  that  he  hes  been  sub- 
jected to  an  outlay  of  £67  ITs.  Bd.  on 
behalf  of  the  estate.  I  think  it  would 
have  been  far  better  if  the  curator  had 
brought  this  Fact  to  the  notice  of  tbe 
Court  at  the  time  the  original  order 
was  made,  because  it  is  clear  that>  tbe 
original  order  waa  intended  to  be  a 
payment  of  £250  to  the  applicant  in 
satislartion  of  tho  outlay  which  he  had 
incurred  in  improving  the  estate.  The 
reason  why  the  curator  has  only  raised 
£200  is  not  stated,  but  there  certainly 
is.  under  the  previous  order  of  the 
Court.  £50  more  still  to  bo  raiwd,  vrhich 
will  have  to  be  paid  to  the  applicant 
when  raised.  The  curator  now  says  that 
tbere  is  a  claim  sent  in  for  the  main- 
tenance of  this  lunatic  in  the  asylum. 
The  applicant  says  that  for  a  consider- 
able time  he  himself  paid  for  tho  main- 
tenance of  tho  lunatic,  but  as  he  could 

by  the  parties  that  the  lunatic  should 
!>.■  received  as  a  non-paying  patient. 
Under  these  circumstances  there  is  ab- 
solutely no  reason  why  tho  amount  nhieh 
tho  applicant  has  expended  in  improving 
tbe  property  should  not  be  paid  to  him. 
The  curator  will  be  ordered  to  pay  (he 
sum  of  £200  to  the  applicant.  lcs<  his 
outlav  oF  £6T  ITa.  Sd.,  which  he  is 
entitled  to  ilcduct  from  this  amount, 
only  pending  the  realisation  of  the  other 
aeaets  oF  the  estate,  when  the  amount 
a  be  paid  to  the  applicant;  oosts  to 
indent,  N.O. 


be  paid  by  tho  reeponde 


Thia  was  an  application  to  make  ab- 
solute a  rule  «u>  calling  on  the  reopond- 
ent  to  show  cause  why  he  should  not 
be  ordered  to  restore  to  applicant  pos- 
session of  two  shops  at  Diep  River,  and 


R.   de 


genoral   dealer,   and  i 


"CAPE  TIMES"   LAW  REPORTS. 


47.* 


Yilliere  was  for  the  Tcepondonti  Carl 
Dehninf;. 

Mr.  Alexander  said  fihat  the  ^  applica- 
tioD  was  now  narrowed  down  simply  to 
one  of  cost«,  the  respondent  having  re- 
stored powessiou  of  the  shops  and  goods 
to  the  applicant.  Counsel  read  affi- 
davits to  the  effect  that  the  applicant 
was  deprived  of  the  possession  of  the 
shops  by  the  respondent  without  any 
reason,  and  that  nis  assistant  was  eject- 
ed by  the  back  door. 

Mr.  De  Villiers  read  an  affidavit  by 
the  respondent,  who  said  that  he  would 
not  think  of  fetting  his  shops  to  such 
persons  as  applicant  unless  the  rent 
were  paid  in  advance.  Applicant  got 
wto  aneais  with  his  rent  for  April  and 
May,   and   upon   pressing   he   gave   de- 

¥[)Dent  a  cheque,  which  waa  crossed, 
he  bank  refused  pavment  of  the  cheque. 
Deponent  denied  that  he  forcibly  dis- 
possessed the  applicant,  and  said  that  he 
had  kept  the  keys  at  the  disposal  of  the 
B<PI>lioant.  The  keys  had  been  volun- 
™y  given  to  him  by  the  applicant's  as- 
sistant. 

Mr.  Alexander  read  a  replying  affi- 
davit by  the  applicant,  who  denied 
that  be  had  ever  agreed  to  pay  the  rent 
la  advance,  or  that  the  keys  had  been 
lying  at  his  disposal.  The  keys  were 
handed  to  him  by  the  respondent  when 
he  tendered   his   affidavit. 

Counsel  having  been  heard  in  argu- 
iiient,  on  the  facts, 

Buchanan  (A.C.J.)  said  there  was  no 
'»sson  why  the  rent,  not  having  been 
paid,  the  respondent  should  not  be  al- 
lowed to  exercise  his  landlord's  lien. 

The  application  was  dismissed,  with 
costs. 


COOK  V.  COOK. 

This  was  application  upon  notice  of 
motion,  calling  upon  the  respondent, 
Frank  Cook,  to  show  cause  why  he 
»hiMild  not  pay  applicant  a  sum  of  money 
to  enable  her  to  institute  proceedings 
against  him  to  have  a  certain  deed  of 
separation  entered  into  between  the  par- 
ties on  May  13,  made  an  order  of  Court, 
and  to  have  the  allowance  of  £6  a 
month  made  by  him  declared  insufficient, 
and  respondent  ordered  to  pay  to  ap- 
plicant such  sum  as  may  seem  to  the 
Court  to  be  fair  and  reasonable.  Mr. 
Upington  was  for  the  applicant,  Flor- 
ence Emily  Cook;  responoent  appeared 
u  person. 

Mr.  Upington  read  an  affidavit  by  the 
applicant,  who  stated  that  she  desired 
to  sue^  the  respondent  for  a  judicial 
^paration  on  the  ground  of  cruelty. 
She  said  the  present  allowance  was 
whollv  inadequate  for  the  support  of 
herself   and  daughter. 

Respondent  read  an  affidavit,  in  which 
he  said  that  he  was  unable  to  contribute 
to  the  applicant  more  than  £6  a  month, 

U  1 


and  pointed  out  that  he  had  to  provide 
for  the  education  of  his  eon. 

Mr.  Upington  said  that  an  action  was 
instituted  by  the  applicant  over  a  year 
ago.  but  it  was  compromised. 

Buohauan  (A.C.J.)  said  that  there  was 
absolutely  no  ground  shown  on  which 
this  application  oould  be  granted.  It 
would  tnerefore  be  refused. 


INSOLVENT  ESTATE  VINK  V.  NEW  ZEA- 
LAND INSURANCE  COMPANY. 

Mr.  Douglas  Buchanan  moved  for  a 
oommiseion  to  take  the  evidence  of 
Frank  William  Wileon,  of  Cape  Town, 
who  was  aibouit  to  leave  for  Australia. 

Mr.  Alexander,  for  the  respondent, 
oonseoted. 

Commission  granted  by  consent^  Advo- 
oaite  Giddy,  K.C.,  to  be  commissioner. 


VAN  AABDE  Y.  HIND. 

Mr.  Van  Zyl  moved  for  an  order  for 
the  attachment  of  certain  property  at  Ali- 
wal  North  ad  fundandam  jurUdiction- 
m,  and  for  leave  to  sue  by  ediotal  cita- 
tion upon  a  claim  for  £57  10s.  rent.  It 
was  staited  ihait  respondent  left  Aliwal 
North  for  EUurt  London,  and  had  since 
gone  to  Johannesbui^. 

Order  granted,  peti^tioner  to  attac^i  a 
sum  of  £60,  pending  an  action  to  be 
institutod  fortnwiith,  and  leave  granted 
to  sue  by  ediotsil  cita/tion,  to  be  refturn- 
able  on  Augunt  1,  pereonal  service  to  be 
effected. 


PLATE    WALL    SYNDICATE,    LTD.    V. 
CAPE  TIMES,  LTD. 

Summons  —  Service  on    a   non- 
existent company. 

Certalngooih  said  to  he  thepro- 
pe)'ty  of  a  compaivy  (B.)  luul 
been  attached  for  d^ht  A  mUher 
company  (A.)  noiD' a^ked  for 
their  release^  on  the  ground 
that  the  goods  were  their 
property,  aiid  no  summons  had 
ever  been  served  on  them.  It 
appeared  that  the  company  A. 
had,  since  the  summons  was 
served,  chofiged  its  ?iame  to  B., 
and  that  at  thai  very  time  the 
change  was  in  co}item2)lation. 

Held,  that  as  the  tiao  com- 
panies were  virtually  the  same 
and  did  not  appear  to  have  a7iy 
defence  on  the  merits,  leave 
must  be  granted  to  amend  the 


476 


<< 


CAPE  TIMES*'   LAW  REPORTS. 


1 


|,1 


summons  by  the  itiscrtiaft  of  A, 
instead  of  B. 


Thifl  was  an  applioaition  upon  notice 
of  motion  calling  upon  the  respondents 
to  show  cause  why  the  goods  attached 
by  the  Deputy  SheriflF  at  the  suit  of  the 
"Capo  Times,"  Ldmitod,  againat  the 
Plate  Wall  Builders'  and  Supply  Com- 
pany should  not  bo  released,  aa  being  the 
property  of  the  applicants,  the  Plate 
Wail  Syndicate,  Limited.  Mr.  Gardiner 
was  for  the  applicant;  Mr.  M.  Bisect 
was  for  the  respondents. 

Mt.  Gardiner  said  that  the  Plato  Wall 
Syndicate,  Limited  tried  to  form  a  com- 
pany called  the  Plate  Wall  Builders' 
and  Supply  Company,  and  ordered  pro- 
speotuses  to  be  printed  by  the  respon- 
dents. The  respondents  charged  £72 
78.  6d.  The  respondents  sued  the  com- 
pany, which  was  about  to  be  formed, 
for  this  amount,  but  which  was  not,  as 
a  matter  of  faot,  formed,  and  obtained 
judgment  again^  a  non-exie*ent  com- 
pany, viz.,  the  Plate  Wall  Builders'  and 
Supply  Company.  Then  the  respondents 
attached  the  goods  of  the  present  appli- 
cants, the  Plate  Wall  Syndicate,  who 
were  the  people  who  were  godng  to  form 
the  company.  The  Plate  Wall  Syndicate 
were  perfectly  willing  to  pay  the  ac- 
count; no  summons  had  been  served 
upon  them.  They  had  tendered  the 
amount  aoid  wanted  their  goods  released. 

Mr.  M.  Biflset  said  that  the  respon- 
dents had  not  filed  any  affidavits,  but  he 
produced  a  copy  of  the  service,  which 
set  out  that  the  summons  was  served 
upon  Mr.  Von  Witt  personally,  and  not, 
as  had  been  stated  in  the  affidavits  erf 
the  other  side,  upon  a  clerk  in  the 
office. 

Mr.  Gardiner  submitted  that  the  pro- 
ceedingB  taken  by  the  respondents  nad 
been  quite  irregular,  and  that  it  was 
such  a  breach  of  practice  as  f<hould  not 
be  allowed  by  the  Court. 

Without  calling  upon   Mr.   Bisset. 

Buchanan  (A.C.  J.) :  There  us  no 
doubt  in  this  case  that  the 
defendants  owe  the  money,  and 
their  goods  have  been  attached.  They 
have  changed  the  name  of  the  com- 
pany onoe  or  twice.  It  would  have  been 
more  correct  if  the  summons  had  been 
taken  out  against  the  Plate  Wall  Syndi- 
cate, Limited,  and,  as  the  parties  are 
before  the  Court,  the  Court  will  order 
that  the  summons  and  proceedings  there- 
in  bo  amended  by  inserting  the  words, 
**  Plaite  Wall  Syndioaio,"  instead  of 
"  Plat^>  Wall  Builders'  and  Supply  Com- 
pany." The  application  will  be  refused 
with  coffts. 


HALVORSEN  V.  ANDBRftON. 

Mr.  Gardiner  moved  for  the  attach- 
ment of  defendant's  goods  in  the  hands 
of  W.   J    Smith,  ad  fumlandam  juris- 


dictionem,  Peibitioner  aaad  that  ^en- 
tered into  a  contraot  with  the  defen- 
dant, who  was  at  Johannesburg,  in  which 
sihe  undertook  to  ptK&h  and  develop  the 
sale  of  certain  preparations  called  Viavi, 
but  had  suflFered  loss  through  the  failure 
of  the  defendant,  who  was  of  Johannes- 
bui^,  to  supply  her  with  goods.  She 
said  that  she  had  suffered  damages  m 
a  sum  of  more  than  £75.  Coun^l  also 
applied  for  leave  to  sue  by  ediotal  cita- 

Order  granted  attaching  the  g<KKk  of 
defendant  in  the  possession  of  W .  Smith, 
and  giving  leave  to  applicant  to  sue  by 
odictal  citation,  citation  to  be  returnable 
on  the  14th  July,  personal  service  to  be 
effeoted. 


Ex  paHe  STKYN. 

Mr.    De    Waal   moved   for   an    order 
authorising   the   transfer  of  certain   pro 
porty  at  Hopetown  belonging  to  the  i^o- 
titioner,  a  minor.  •        x     u 

Order  granted,   purohase   pr»ce    to   tx> 
paid  in-to  the  Masters  Fund. 


GREENBBBG  V.  MILLIN. 

Mr.  Sutton  was  for  the  applicant,  and 
Mt.  McGregor  was  for  the  respondent. 

Mr  McGregor  applied  for  a  postpone- 
ment to  enable  the  respondent  to  file 
answering  afBdavita.  . 

Mr.  Sutton  opposed  the  application, 
and  moved  for  the  release  of  a  certain 
sum  of  £606  4s.  8d.  attached  by  th© 
Sheriff  by  way  of  security  for  ooste. 
Applicant  said  that  he  had  a  good  de- 
fence to  the  action,  and  that  he  was 
being  prejudiced  by  the  attachment  of 
this  money  and  the  failure  of  the  plain- 
tiff to  go   to   trial. 

Matter  postponed  on  condition  bha*  tne 
respondent  show  cause  on  Thursdav  next 
why  the  respondent  should  not  be  or- 
dered to  go  to  trial  this  term. 


Ex  parte  CARTWRIGHT  AND  CO. 

Mr.  P.  S.  T.  Jones  moved,  as  a  mat- 
ter of  urgency,  for  an  order  to  enable 
the  petitioners  to  protect  their  landlords' 
lien  on  certain  pictures,  the  property  of 
John  L.  Irvin,  a  tenant  of  certain  rooms 
at  the  Mansion  House  Chambere,  pend- 
ing an  action  to  be  forthwith  instituted 
for  rent.  It  was  stated  that  Irvin  now 
owed  the  p^itionore  £67  lOs.  for  rent. 

Rule  nisi  granted,  restraining  the  re- 
moval from  t^e  premises  of  the  goods  in 
question,  until  the  landlord's  lien  be  satis- 
fied, pe-nding  an  action  to  be  instituted 
forthwith. 


"CAPB  TIMES '»  LAW  REPORTS. 


477 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 


MALCOMESS    AND 
CARY. 


CO.    \ 


,     f       1905. 
'  •  <  June  22nd. 
I     „     2Gth. 


Interdict — Creditors — Disposal  of 
property. 

C.*8  eniaU  had  been  placed 
under  Utxpeciian,  certain  dis- 
puted accowiUs  between  M.  and 
himgelf  had  been  referred  to 
arbitration.  It  was  alleged 
that  C.  wcut  disposing  o/*,  or 
pledging  his  pi'0])erty^  in  such 
irise,  that  M.  feared  he  wonld 
he.  uuMe  to  meet  his  liabilities^ 
in  respect  of  any  award  the 
arbitrator  might  give  against 
him.  M.  now  applied  for  an 
interdict^  restraining  him  for 
parting  with^  mortgaging  or 
pledging  his  property. 

Held,  thai  as  the  respondent 
was  neither  a  peregrinus,  ?ior 
one  alleged  to  be  in  contempla- 
tion of  flight,  no  such  interdict 
could  be  granted. 


This  WM  an  application,  upon  notice 
of  motion,  for  an  interdict  restraining 
respondent  from  parting  with  hia  assets, 
pending  the  report  of  the  referee  to 
whom  the  matters  in  dispute  in  the 
actions  have  been  referred.  Mr.  Bur- 
ton appeared  for  the  applicants  (plain- 
tiifs  in  the  actions) ;  Sir  H.  Juta,  K.C., 
was  for  the  respondent. 

Mr.  Burton  moved  for  an  interdict 
restraining  the  respondent,  Thomas 
Borey  Carey,  selling,  transferring, 
mortgaging,  pledging,  or  otherwise 
alienatinar  any  portion  of  his  property, 
and  the  Registrar  of  Deede  from  regis- 
tering any  oeed  or  hypothecations  there- 
of. The  principal  grounds  of  the  ap- 
l^catiop  were  set  out  in  affidavits  by 
one      Mr.       Reimers,       who,  from 

a  Gommiinication  that  he  had 
leoeived  from  Mr.  Bruton,  of  Tarka- 
stad,  said  he  bad  reason  to  believe 
that  respondent  was  disposing  or  pledg- 
ing hia  aaaeta,  and  that  there  was  a 
danger  thai  he  would  not,  unlese  re- 
fitramed.  be  able  to  pay  any  sum  which 
the  referee  in  the  matter  of  the  action 
nuty  poesibly  find  to  be  due  to  plain- 
tiffs. 

Sir  H.  Juta,  K.C.  (with  him  Mr.  Gar- 
diner} appeared  to  oppose. 

Sir  h1    Juta  said   there  had   been  no 
time  to  get  a  replying  affidavit  from  the 


defendant,  stating  that  ho  had  no  in- 
tention of  disposinj?  of  his  property. 

Hopley  (J.)  said  that  he  would  like 
ta  have  authorities  on  the  point  of  whe- 
ther the  Court  could  grant  the  order 
asked  for  in  the  circumstances.  It  was 
unprecedented  in  his  experience. 

Mr.  Burton  asked  that  the  matter 
should  stand  over  until  the  following 
day. 

The  Court  ordered  the  matter  to  stand 
over  accordingly. 

Postea  (June  26). 


[Before  the  Actingr  Chief  Justice,   the 
Hon  Sir  John  Buchanan.] 


For  respondent,  affidavits  were  put  in 
denying  that  he  had  had  any  trans- 
actions, except  such  as  were  in  the 
legitimate  couree  of  his  business.  He 
admitted  that  his  goods  had  been  at- 
tached upon  a  writ,  but  sai$i  that  on  his 
return  to  Tarkastad.  it  was  his  intention 
to  satisfy  the  amount  of  the  writ. 

Mr.  Burton  said  that  the  application 
was  a  somewhat  unusual  one,  and  the 
learned  judge  before  whom  it  came  in 
the  first  instance  gave  leave  for  it  to 
stand  over,  to  look  into  the  authorities. 
Ho  submitted  that  there  was  authority 
for  the  course  which  was  now  taken  by 
the  applicant.  Counsel  quoted  from 
Van  Zvl's  Judicial  Practice  (2nd 
Edition,  p.  168).  from  Voet  (2,  4,  18, 
19),  and  from  Kotse's  translation  of 
Van  Lecuwen's  Roman-Dutch  Law 
(Vol.  2,  Book  5,  cap.  7,  sees.  2  and  6). 

Without  calling  upon  Sir  H.  Juta, 

Buchanan  (A.C.J.)  said  that  in 
special  circumstances  as,  for  in- 
stance, where  it  was  shown  that 
defendant  contemplated  flight,  the 
Court  interfered,  but  no 
special  circumstances  appeared  in 
present  case.  He  could  see  no 
ground  upon  which  this  interdict  should 
bo  granted.  The  application  would, 
therefore,   be  refused,  with  costs. 


such 

tho 

legal 


SUPREME  COURT 


FIRST  DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Maasdobp.] 


DONCAN  V.  DUNCAN.        |  j„^f  fsra. 

This  was  an  action  brought  by  Archi- 
bald Duncan,  railway  shunter.  Cape 
Town,  againsffc  'has  wile,  Christina  Pun- 


478 


K 


OAPB  TIMBS"  LAW  EBPOETS. 


oan  (bom  Daniels),  of  Sali  River,  for 
restitution  of  oonjugal  rigbta,  failing 
-wrhicii  a  decree  of  divorce,  with  division 
of  the  jodot  property  and  forfeiture  of 
the  defendant's  half  share.  Dr.  Greer 
was  for  the  ploiijtiff;  defendant  was  in 
default. 

Wns.  Thomas  Birch,  clerk  in  dbarge 
of  the  marriage  register.  Colonial  Office, 
produced  the  register  of  the  marriage. 

The  plaintiff  said  he  wtas  married  to 
tbe  defendant  at  the  Dutch  Reformed 
Ohurdh,  Woodetook,  on  the  26th  Janu- 
ary 1902.  They  lived  unhappily  to- 
g€^ner  in  consequence  of  a  boarder 
whom  his  wife  received,  one  James 
Guttery.  Witness  had  to  speak  to  his 
wife  regarding  her  relations  with  Gut- 
tery, and  this  led  to  frequent  quarrel- 
ling. On  April  1st,  1905,  he  was  living 
at  44,  Eingsley-Toad,  Salt  River;  his 
wife  came  back  at  ni^ht  from  the 
country  and  ordedred  him  out  of  the 
house  as  she  had  got  "  another  gentle- 
man." WnitnesB  sS^pt  in  the  passage. 
Next  morning  she  toJd  'him  to  clear  out. 
Witness  went  to  hois  work  and  returned 
in  the  evenings,  and  there  was  further 
quarrelling.  He  went  out  about  9 
o'clock  and  returned  home  at  eleven, 
when  he  found  the  door  locked  and  the 
place  in  darkness.  His  wife's  brother 
threatened  to  kill  him  if  he  went  into 
the  house.  His  wife  went  from  the 
house  and  took  all  the  furniture;  she 
was  now  living  with  her  father  and 
James  Guttery. 

By  the  Court:  He  had  not  asked  his 
wife  to  return  to  him.  She  was  living 
with  her  father  at  27,  Kingsley-road. 
Witness  was  now  in  lodgings  in  Loop- 
street,  Cape  Town. 

Dr.  Greer,  in  answer  to  the  Court, 
said  that  he  was  prepared  to  abandon 
the  prayer  (c)  in  the  deolanation  for 
forfeiture  of  the  benefits  of  the  marriage 
in  community. 

Decree  of  restitution  granted,  defen- 
dant to  return  or  receive  the  plaintiff  on 
or  before  the  14th  July,  failing  wiiich 
rule  to  issue  nailing  upon  the  defendant 
to  show  cause  on  the  let  Auguet  why  an 
order  should  not  be  granted  in  terms  of 
the  declaration,  with  the  exception  of 
prayer  (c). 

Postea  (August  1). 
Rule  made  absolute. 


OABIEB  V.  AJAM. 

This  was  an  action  brought  by  Omar 
Abdol  GaJbier,  builder  and  contractor, 
Cape  Town,  against  Gadeja  Ajam, 
widow,  Cape  Town,  for  an  order  requir- 
ing her  to  take  transfer  of  certain  pro- 
perty, or  to  pay  £300  damages  for 
breach  of  contract. 

The  plaintiff,  in  his  declaration,  said 
that  defendant  bought  from  him  a  cer- 
tain piece  of  land  with  buildings  there- 
on, situate  ai,  No.  328,  Hanover-street, 
Cape  Tonnoi,  for  £1400,  transfer  to     be 


taken  immediately,  and  cash  to  be  paid 
against  transfer.  The  said  contract  was 
eanbodicHi  in  a  broker's  note.  Although 
plaintiff  had  carried  out  all  the  condi- 
tdons  of  the  said  agreement  to  be  per- 
formed by  him,  and  had  tendered,  and 
again  hereby  tendered,  transfer  of  the 
said  property  againA  the  fulfilment  of 
the  conditions  of  the  agreement  by  de- 
fendant, defendant  had  failed  to  take 
transfer  or  pay  the  purchase  price.  Plain- 
tiff claimed  an  order  calling  upon  the  de- 
fendant (a)  to  take  transfer  forthwiith  of 
the  said  property  abd  pay  the  purchase 
price,  plomtiff  tendering  transfer,  or,  in 
the  alternative  (b)  the  cancellation  of  the 
said  contract  and  payment  of  £300  as 
damages  for  breacn  l^hereof  (c)  altema- 
«  tive  relief  and  (d)  oo^  of  suit. 

Mr.  Douglas  Buchanan  was  for  the 
plaintiff;   defendant  was  in  default. 

Johannes  Jacobus  Swanepoel,  for- 
merly employed  by  Steyn  and  Serrurier, 
spoke  as  to  the  broker's  note  which  he 
had  drawn  up,  and  to  the  signature  of 
the  defendant  thereon.  The  broker's 
note  was  dated  December  last.  He  first 
beard  about  the  beginning  of  Aprsl  that 
defendant  was  not  going  tx>  oomiplete 
the  sale.  Witness  consi<te(ed  the  value 
of  the  projierty  at  the  present  day  to 
be   £1000  to  £1100. 

By  the  Oourt:  The  defendant  asked 
him  net  to  proceed  with  the  sale  of  the 
property  to  her.  Sihe  proposed  to  make 
an  appncation  to  the  Court  for  leave  to 
montg-age  certain  other  property  of  her- 
self and  children,  but  decided  not  to  pro- 
coed    with    the    application. 

Omar  Abdol  Gaoier  (the  plaintiff), 
gave  evidence  as  to  the  sale  of  the  pro- 
perty to  the  defendant  on  the  21  st  £>e- 
cenmer.  The  property,  he  said,  was 
bonded  to  the  amount  of  £1000.  The 
defendant  made  certain  alterations  in 
the  buildings,  and  then  wanted  to  be  let 
off  tile  sale.  Witness  estimated  the  pre- 
sent value  of  the  house  and  atables  at 
£1000. 

G.  H.  Moller,  sworn  appraiser  said 
that  he  eatimated  the  present  value  of 
the  bouse  at  £750,  and  of  the  staibles  at 
£250.  He  did  not  think  that  the  prx>- 
pertv  would  fetch  above  £1000  in  the 
market   to-day. 

Maasdorp,  J.t  The  property  was  sold 
by  plaintiff  to  the  defendant  for  £1,400, 
and  to  all  appearances  it  was  a  very  good 
bargain.  Plaintiff  is  entitled  to  the 
'  benefit  of  his  bargain,  and  there  is  suffi- 
cient evidence  to  prove  that  he  suf- 
fered £300  damages.  An  order  will  be 
giianted  in  terms  of  prayer  (a)  of  the  de- 
claration, transfer  to  be  taken  by  tiho 
6th  Judy,  or  that  the  contract  be  de- 
clared cancelled,  and  defendant  be 
ordered  to  pay  £300  damages,  with 
coats. 


6B0EXEWALD  V.  ESTATE  BOTHHA. 

Mr.  Olose  (for  the  defendant    in    the 
action)  movod,  upon  nctice  for  a  post- 


"CAPE  TIMES*'   LAW  REPORTS. 


479 


ponement  of  the  hearing  tine  die  in 
consequence  of  the  illnees  of  Mr.  Will- 
mot,  execufcor  in  the  estiute  of  J.  A.  C. 
Boihma.  Mr.  Gardiner  (for  the  plain- 
tiff), opposed  the  applioaition.  The 
nutter  arose  out  of  an  aotion  broug'ht 
by  Groeneiwald  for  transfer  of  certain 
propenty  which  he  said  be  bought  in 
1902  from  the  late  Mr.  Bothma. 

Mr.  Cloee  read  afiBdavita  and  oorro- 
spondence  in  suppozt  of  the  appiioation, 
from  which  it  appeared  tbatt  tno  defen- 
daAi,  who  was  undergoing  treatment  at 
a  farm  in  the  district  of  Prince  Albert 
was  unfift  to  travel.  For  the  applicant  it 
vas  urged  that  sufficient  notice  of  the 
iUness  of  the  dofendantt  and  the  impos* 
sibility  of  his  a/btending  the  hearing  to- 
day, wafi  given  to  the  plaintiff.  Appli- 
caot  asked  for  an  order  for  ooets  of  the 
day  againat  the  vespondcnit. 

Mr.  Gardiner  submitted  that  the  apoll. 
cant  should  be  bound  down  to  a  oay 
for  the  healing,  and  that  the  eas^  should 
be  set  down  for  the  12fih  July.  Plain- 
tiff resided  in  the  diatriot  of  Sutherland, 
about  66  miles  from  Laingaburg  station, 
and  he  oBme  to  Oape  Town  for  the  trial. 
Two  other  witnesses  had  also  come 
down. 

Maasdorp,  J.,  asked  what  the  present 
difficulty  between   the  parties   was  7 

Mr.  G«rdiner  said  that  the  defendant 
admitted  plaintiff^s  right  to  obitain  trans- 
fer, but  said  that  the  dekiy  in  ^ving 
tvanflfer  had  been  oooa»ionea  by  circum- 
stances for  wfaioh  he  (defendant}  was  not 
rpsponaihle.  One  oi  the  points  was 
whether  Greef  and  Walter  were  the 
aiB^ents  eatployed  by  defendant  or  plain- 
tiff. The  present  difficulty,  he  under- 
stood, that  tlus  property  was  registered 
in  the  name  of  lihe  Late  Mr.  Bothma's 
parents,  and  that  transfer  could  not 
pass  from  the  parents  of  the  estate  held 
by  Mr.  Willmct,  without  the  payment  of 
certain  transfer  dutjr,  which  Mr.  Will- 
oMi  had  not  yet  paid. 

Maasdorp,  J. :  It  seems  that 
this  case  was  set  down  on 
the  9th  for  the  23rd  inst.,  and 
that  the  first  formal  communication  that 
passed  between  the  parties,  indicating 
that  there  was  a  desire  to  obtain  a 
pntponemeDft  of  the  case  was  only 
given  on  the  21«iL  If  that  notice  could 
nave  stopped  the  witnesses  frcon  leaving 
to  atteod  at  this  trial,  I  think  it  would 
have  been  the  duty  of  the  respondent 
in  this  case  to  have  seen  that  no  expense 
was  oauaed  in  that  respect.  But  it  ap- 
pean  thait  the  notice  was^  given  too 
late,  and  thaA  when  Abe  notice  was  tele- 
graphed to  the  country  agents  of  the 
plaintiff  the  witnesses  had  already 
idt.  I  think  that  the  expenses  that 
have  been  incurred  through  the  wit- 
nnssQB  being  brought  down  are  due  to 
the  delay  on  the  part  of  the  defendant 
in  giving  notice  that  he  desired  this 
pos^x>nement.  It  is  suggested  that  some 
eonvecsation  bad  {urevnously  taken  place 
beMroen    iiie     panties,    but  the    Court 


should  not  encourage  oommui^oations 
between  panties  passing  by  verbal  means, 
and  ^is  is  an  in^tuioe  showing  the 
awkwardness  of  such  prooeedingB,  be- 
cause we  have  got  a  dispute  as  to  what 
did  take  place  between  the  i>aitie6.  The 
costs  havimg  been  incurred  through  the 
fault  of  the  defendant,  I  think 
that  the  order  must  necessarily 
be  granted  that  the  case  be  postponed, 
but  the  cotfiU  of  the  day  must  be  paid  by 
the  applicant  in  this  matter.  It  may  bo 
possible  to  stop  all  tihe  costs  which  will 
be  incurred  by  going  to  trial;  the  mat- 
ter seems  to  be  one  merely  of  delay, 
and  if  a  postponement  be  granted,  a 
settlement  may  be  arrived  at. 
Afler  hearing  counsei  further, 
Maasdorp,  J.,  ordered  the  case  to 
stand  over  until  the  2ud  August. 


COWLING    V.    ESTATE    OF 
fiTABLEFOBD  AND  OO. 


i9o:>. 

June  23rd. 
July  11th. 

12th. 

17th. 

18th. 


»» 


If 
ft 


Principal  —  Agent  —  Company  — 
Managing  director — Fraud — 
Agent  making  a  profit  at  the 
expense  of  his  principal. 

The  manaffhig  di rector  of  a 
company  having  obtained  for 
the  company  an  option  to  pur- 
chwse  a  house  at  a  certain 
price^  mbsequently  jmrchased 
it  for  himself  at  that  prire^ 
and  resold  and  transferred  it 
to  the  comjxiny  at  a  higher 
price. 

Held,  that  the  company  'wan 
entitled  to  recover  the  excess 
from  the  director. 

The  managing  director  of  a 
comiHiny  being  aware  thai  the 
company  reipiired  for  their 
hxisincss  a  building  adjoining 
their  pi'emises,  bought  the 
building  for  himself  and  re- 
sold and  transferred  it  to  the 
comjHiny  at  a  higher  price. 

Held,  that  the  company  was 
entitled  to  recover  the  excels 
from  the  director. 


This  was  an  action  brought  by  John 
Frederick  Cowling,  of  Cape  Town, 
against  Wm.  Stableford  and  Co.  (in 
liquidation),  for  judgment  upon  a  mort- 
gage bond  for  £750,  with  interest  from 
the  1st  July,  1903. 


480 


(< 


OAPE  TIMES"  LAW  tlEPOfttfl. 


Plainfci£F.  in  bis  declaration,  said  that 
he  claimed  final  judgment  for  £750,  with 
interest  at  8  per  cent.,  from  the  1st 
July,  1903,  upon  a  certain  mortgage 
bond  passed  by  the  defendant  company 
in  favour  of  one  W.  L.  Kidney,  and  by 
him  duly  ceded  to  the  plaintiff  for 
value,  by  cession  dated  the  29th  October, 

1903.  endorsed  upon  the  bond.  On  the 
16th  September  1903,  the  defendant 
company  was  voluntarily  wound  up.  and 
thereafter,  on  the  23rd  June,  1904,  was 
wound  up  by  order  of  this  Honourable 
Court,  Messrs.  J.  E.  P.  Close,  E.  R. 
Syfret.  and  W.  J.  Laite  beinpr  duly 
appointed  official  liquidators.  The  de- 
fendant company  was  i-ndebt<»d  to  the 
plaintiff  in  the  said  sum  of  £750,  due 
and  payable  by  reason  of  tlio  non-pay- 
ment of     interest.       On   the     9th  June, 

1904.  this  Court  granted  provisional  sen- 
tence for  the  said  amount,  with  interest 
and  the  landed  property  was  declared 
executable,  with  taxed  costs  £13  17s. 
The  landed  property  was  tliorcaftor  at- 
tached, but  the  defendant  company  was 
then  wound  up  by  order  of  this  Court, 
and  the  landed  property  Ixjcame  released 
from  attachment. 

Defendants  had  filed  two  pleas.  The 
first  plea  was  as  follows : 

For  a  plea  to  the  plaintiff's  declaration 
defendants   say: 

1  They  admit  paragraphs  1,  2,  5,  and 
6,  thereof,  save  that  they  say  that 
the  property  attached  as  in  paragraph  6 
set  forth  wa.s  movable  and  not  landed 
property;  and  they  admit  that  appear- 
ance was  entered  as  in  paragraph  7  there- 
of set  forth ;  but  save  as  above  and 
aave  as  in  hereinafter  admitrted  they  deny 
the  allegations  in  paragraphs  3,  4  and  7. 

2.  As  to  paragraph  3  thereof,  they 
admit  that  a  bond  of  £750  is  now  held 
by  the  plaintiff,  who  obtained  the  same 
by  an  alleged  cession  from  the  said 
Kidney;,  but  they  put  the  plaintiff  to 
proof  of  the  circumstances  under  which 
the  said  cession  was  made  and  of  the 
value  alleged  to  have  been  given  for 
the  said  bond  by  plaintiff.  The  de- 
fendants say  that  the  said  bond  was  on 
October  29,  1903,  deposited  as  security 
with  plaintiff  by  the  said  Kidney  fov 
a  per:ional  loan  of  £300,  and  was  not 
ceded  to  plaintiff  till  after  March  31, 1904, 
after  disputes  as  to  the  said  bond  had 
arisen  between  the  defendants  and  the 
said  Kidney.  The  writing  of  cession  on 
the  bond  was  at  the  time  of  such  writ- 
ing antedated  to  October  29,  1903.  The 
cession  of  the  bond  was  not  registered 
in  the  Deeds  Office,  nor  was  any  notice 
of  such  cession  given  to  the  company  or 
the  defendants  till  April  7,   1904. 

3.  The  bond  was  passed,  as  is  herein- 
after set  forth,  as  part  of  a 
certain  transaction  fraudulently  and 
collusively  entered  into  l)etween 
the  said  Kidney.  then  secretary 
of  the  said  con:]pany,  and  one  Stableford, 
its  managin((  airector,  in  fraud  of  and 
to  the  prejudice  of   the  aaid  company, 


the  circumstances  of  the  said  transaction 
being  «ucb  that  the  taid  Kidney  is  not 
and  never  has  been  in  law  entitled  to 
sue  the  said  company  or  the  defendants 
on   the  said  bond. 

4.  The  plaintiff  aa  cessionary  of  the 
said  bond  lias  acquired  no  greater  rights 
as  against  the  company  or  the  defend- 
ants than  the  said  Kidney,  and  is  sub- 
ject to  all  the  equi'tiee  of  the  said  bond 
lu  the  hands  of  the  said  Kidney. 

5.  The  aaid  bond  was  passed  on  Janu- 
ary 31,  1903,  and  certain  landed  property 
then  registered  in  the  name  of  the  com- 
pany and  styled  lot  D  and  La.  E.  in 
Strand-street  (and  hereinafter  called  the 
front  property)  was  specially  hypothe- 
cat-ed  thereunder. 

6.  The  said   bond  was   passed      under 
the  following  circumstances :    (a)  On  Au- 
gust 22,   1S02,   the  said  Stableford,   who 
was    then    and    thereafter    at    all    times 
material    to  this   suit   the   managing   di- 
rector of  the  said  company,  purported  iv» 
purchase  from  Messrs.  Hand  and  Honik- 
inan  the  said  front  property  for  £4,500. 
(b)  At  the  fraid  date  the  said  company 
had  already  actiuired,  and  then  held,  the 
iiption   of   purchasing   the  said   property 
for   £4,500,   as   was   well   known  to   Sta- 
bleford and  Kidney,     (c)  On.  October  10, 
1902,    the  «aid   Stableford,    wi-th   the   as- 
sistance and  collusion  of  the  said  Kid- 
ney, sold  the  said  front  property,  with- 
oul   alteration    or    improvement,    to    the 
company  for  £6,500,  the  said  Stableford 
and  Kidney  falsely  and    fraudulently  con- 
cealing from  the  company  the  facts  aa  to 
the  company's  option  and  otherwise   in 
this       paragraph       afore       set      forth. 
(d)  Thereafter  the  said  Stableford  arraag^* 
eJ  for  transfer  from  the  vendors  to  him- 
self :  whereupon  the  vendors  jpointed  out 
that  the  option  to  purchase  the  said  pro- 
perty   was,   and   had   been    held    in    the 
name  of  the  company.      For  the  purpose 
of  obtaining  transfer  of  the  prtiperty    in 
hi?   own   name   the  said  Stableford   pur- 
porting to  act  as  managing  director  and 
doing  so  with  the  connivance.  colhit*iou, 
and  assistance  of  the  skuJ  Kidney  as  aec- 
rctarv,    wrongfully,   unlawfully,      falsely, 
and  fraudulently  caused  the  said  Kidney 
to  write  on  the  20th  November,   1902,  to 
the  vendors  aforesaid  or  their  agents,    a 
letter  pretending  on  behalf  of  the  com- 
pany tnat  the   companv  had  waived    its 
option  and  had  allowed  the  said  Stable- 
ford to  purc7iase  t4ie  property  personalis 
and  had  bought  the  property  from   Sta- 
bleford with  a  full  knowledge  of  all    the 
circumstances ;    and  the    said  Stableford 
thereby  succeeded  in  obtaining  the  con- 
sent of  the  vendors  to  the   transfer   to 
himself  of  the  property  aforesaid,    (e)  On 
January  31,  1903,  the  said  Stableford  took 
tran.%fer    in   his   own    name  of   the   i^aid 
fr(»nt  property    and  on    the     same       day 
transferred  the  pro|¥»rty  to  the  companv. 
payment  of  the  purchase  price  bein^  prcv 
vided  for  mainly  by  means  of  a   loan  of 
£4,000  made  by  the  Master  to  the  com- 
pany on  mortgage;   the   balance  of    th« 


"CAPJ&  TIMES''  LAW  BEPORTS. 


481 


purchase  price  and  the  ezpensee  of  trans- 
ler  and  faionds  purport  to  have  been  met 
hf  raking  a  loan  of  £750  from  the  said 
Kidney  to  the  company  on  mortgage  of 
the  said  property  which  mortgage  ootid 
for  £750  IB  the  bond  now  sued  upon. 

7.  The  said  Kidney  acted  throughout 
in  concert  and  collusion  with  the  said 
Stableford,  and  in  fraud  of  the  said 
company,  whereof  they  were  through- 
out respectively  secretary  and 
managing  director;  and  the  said 
bond  was  by  reason  of  the 
premises  fraudulently  obtained  by  the 
said  Kidney,  and  is  not  and  never  was 
of  any  validity  as  against  the  com- 
pany, either  in  the  hands  of  the  said 
Kidney,  or  of  any  cessionary  thereof 
from  the  said   Kidney. 

Wherefore  the  defendants  pray  the 
plaintifTs  claim  may  be  dismissed  with 

0Q6CS. 

SECOND  PLEA. 

And  should  this  honourable  Court  not 
hold  in  favour  of  the  defendants  on 
the  above  plea  (but  not  otherwise)  the 
defendants  for  a  further  pica  say: 

8.  They  crave  leave  to  refer  to  the 
aforegoing. 

9.  The  transactions  referred  to  in  the 
aforegoing  formed  part  of  a  series  of 
transactions  fraudulently  and  coUusive- 
ly  entered  into  between  the  said  Kid- 
ney and  Stableford  in  their  capacity 
aforesaid,  in  fraud  of  and  to  the  pre- 
judice of  the  said  companv. 

^  10.  On  the  date  on  which  the  said 
Stableford  purported  to  purchase  the 
front  proper tv  as  aforesaid,  to  wit, 
22nd  August,  1902,  the  said  Stableford, 
nominally  in  his  own  name,  purchased 
for  £2,500  from  the  said  Hands  with  a 
view  to  re-selling  the  same  to  the  com- 
pany at  a  profit  certain  other  property 
(hereinafter  called  the  back  proper  tv) 
adjoining  the  front  propertv  aforesaid. 

11.  The  said  Stableford  thereupon  on 
12th  January,  1905,  pased  a  bond  on  the 
back  property  for  £1,500  in  favour  of 
Kidney,  but  the  said  Kidney  has  at  no 
time  actually  advanced  or  undertaken 
liability  for  more  than  the  sum  of  £549 
in  respect  of  the  said  bond.  The  said 
bond  was  passed  by  collusive  arrange- 
ment between  the  said  Stableford  and 
Kidney,  with  a  view  to  the  said  Kid- 
ney getting  payment  of  the  whole  sum 
of  £i,5(X)  on  the  resale  of  the  property 
to  the  company,  in  addition  to  a  share 
of  the  prc^t  to  be  made  out  of  the  whole 
transaction. 

12.  The  said  Kidney  paid  certain 
moneys  in  connection  with  the  front 
property  transaction,  amounting  to  £676 
3a.  6d.  and  no  more,  for  which  he  re- 
ceived as  security  the  bond  for  £750 
now  in  suit 

13.  On  the  17th  March,  1903,  Stable- 
ford, with  the  assistance  and  connivance 
of  Kidney,  sold  the  back  property  to 
the  company  for  £6,5(X),  and,thoreafter. 
passed  transfer  of  tiiia  property  to  Uie 


company.  The  Master  advanced  as  a 
loan  to  the  company,  upon  mortgage  of 
the  said  property,  and  of  the  said  front 
propertv  the  sum  of  £4,5(X),  which  sum 
the  said  Kidney  received  as  secretary 
of  the  company ;  and  out  of  this  loan 
the  said  Kidney  paid  himself  the  full 
sum  of  £1,500,  with  all  interest  thereon 
purporting  to  do  so  in  discharge  of  the 
bond  of  £1,500,  though  he  was  only  en- 
titled to  payment  in  the  sum  of  £549 
aforesaid. 

14.  The  said  Kidney  and  Stableford 
acted  throughout  in  the  matters  set 
forth  in  paragraphs  10,  11,  12,  and  13 
hereof  in  concert  and  in  collusion,  and 
in  fraud  of  the  said  company,  whereof 
they  were  respectively  secretary  and 
managing  director,  and  as  a  result  of 
the  transactions  above  sot  out,  they 
made  a  large  profit,  which  they  agreed 
to  share,  and  did  share,  to  tne  great 
prejudice  of  the  company. 

15.  The  defendant  liquidators  contend 
that  the  purchases  of  the  front  and  back 
properties  on  the  22nd  August,  1902, 
and  the  subsequent  dealing  with  tlio 
properties  by  Kidney  and  Stableford,  as 
regards  the  company  and  themselves, 
form  one  fraudulent  plan  and  transac- 
tion in  prejudice  of  the  company ;  that 
the  said  original  purchases  must  in 
effect  and  in  law  be  taJccn  and  deemed 
to  be  by  reason  of  the  premises  pur- 
chased on  behalf  of  the  company;  that 
the  said  Kidney  is  bound  in  law  to  ac- 
count to  the  defendants  for  any  profits 
made  and  unnecessary  extra  expenses 
incurred  in  the  said  transaction ;  that 
the  payment  to  Kidney  of  the  £1,500, 
with  interest,  as  aforesaid,  must  bo 
taken  and  ueemed  to  be  a  payment  by 
the  company  to  the  said  Kidney,  subject 
to  his  accounting  to  the  company  for 
the  balance  left  over  and  above  the  eum 
of  £549  aforesaid,  which  balance,  to  wit. 
£961,  they  are  entitled  to  take  in  ac- 
count, as  against  the  sum  of  £676  Ss. 
6d.  aforesaid;  and  that  the  said  Kidney 
has  received  from  the  company  such 
payment  more  than  he  had  or  has  in  all 
advanced  to  or  on  behalf  of  the  com- 
pany in  respect  of  the  bonds  aforesaid. 

16.  The  defendants  crave  leave  to  refer 
this  Honourable  Court  to  the  annexuro 
hereto  markM  A  (which  they  pray  may 
be  considered  as  inserted  herein),  as 
setting  forth  the  true  state  of  accounts 
aa  between  the  company  and  Kidney 
upon  the  completion  of  the  transfer  of 
the  back  property  to  the  company— tho 
said  Kidney  being  at  that  date  and  now 
indebted  to  the  company  in  the  sum  of 
o£700  48.  3d. 

17.  The  defendants  further  crave  leave 
to  refer  this  Honourable  Court  to  aii- 
nexure  B  hereto  (praying  it  may  be  con- 
sidered as  inserted  herein),  which  shows 
that,  even  if  moneys  paid  by  Kidney  for 
the  improper  transfers  to  Stableford  be 
allowed  for,  the  said  Kidney  was  at 
the  date  of  the  completion  of  transfer  of 
the  back  property  to  the  company   in- 


482 


"CAPE  TBIES''  LAW  RE^O&TS. 


ilebied   to   the  compaay  in  the  Bum  of 
£5d5  178.  9d. 

18.  By  reason  of  the  premises  there 
was  nob  on  the  29th  October,  1904,  nor 
is  there  now  any  indebtedness  of  the 
company  or  the  defendants  on  the  eaid 
bond  to  the  said  Kidney,  or  to  the  plain- 
tiff or  any  other  person. 

Wherefore  defendants  pray  that  plain- 
tiff^s  claim  may  be  dismissed  with 
costs. 

Plaintiff,  in  his  repliowtion,  said  that, 
in  reg-ard  to  the  first  plea,  the  plaintdn 
knew  nothing  of  the  alleg^ions  as  to 
the  transaotionB  between  Kidney  and 
Stableford,  and  put  the  defendants  to 
proof  thereof,  and  otherwise  joined  issue. 
As  a  replication  to  the  further  plea,  he 
said  that  he  knew  nothing  of  the  allega- 
tions as  to  the  transactions  beitween 
Kidney  and  S>tableford,  and  did  not  ad- 
mit  them,  and  put  defendants  to  proof 
thereof. 

Mr.  Upington  (with  him  Mr.  P.  S. 
T.  Jones)  for  tho  plaintiff.  Mr.  Close 
(with  him  Mr.  Bi.s5ct)  for  rospoudeut. 

In  answer  to  tho  C-oiirt,  coum»el  stated 
thai  StaMeford  had  loft  the  Colony,  but 
that  Kidney  was  in  court. 

Mr.  Upingtoii  submitted  that  prima 
facie  there  was  a  liability  on  the  Dond, 
and  that  the  onuis  was  upon  the  defen- 
dants to  prove  their  allegations  of  fraud 
and  so  on. 

Mr.  Close  submi44.ed  that  the  ordin- 
ary course  should  be  followed,  and  that 
the  plaintiff  should  prove  his  case.  The 
whole  facts  of  the  cession  to  the  plain- 
tiff were  in  dispute. 

Mr.  Upington  having  replied, 

Maasdorp,  J.,  decided  thai  plaintiff 
must  lead  his  evidence  as  to  the  ces- 
sion. 

Mr.  Upington  said  that  he  could  for- 
maUy  prove  the  cession,  but  he  was 
bound  to  admit  that  tho  cession  was 
ante-dated,  as  alleged  by  the  defen- 
dants. 

Gilbert  Percival  Kotze,  attorney,  em- 
pJoyed  by  Messrs.  Van  Zyl  and  Buis- 
sinne,  said  that  t^he  cession  was  writrt^en 
on  the  bond  on  the  7th  April,  1904. 
Kidney V  signature  was  on  the  bond 
at  the  time. 

Cross-examined  by  Mr.  Close  :  Kidney 
came  and  saw  witness  and  asked  him 
whether  he  knew  the  wording  of  a  ces- 
sion of  a  bond.  Witness  filled  in  t^he 
usual  form  of  ces^on.  Wkness  was 
a^out  to  put  on  the  current  date,  but 
Kidney  said  that  he  must  not  pivt  on 
the  current  date,  because  the  cession 
took  place  on  the  29fch  October,  1903, 
and  he  (Kidney)  put  his  signature  on 
the  bond  on  that  date.  Kidney  produced 
a  letter  which  he  had  sent  to  Cowling 
acknowledging  a  loan  of  £300.  The  ces- 
sion was  not  9tan»ped  when  Kidney  took 
■t  away.  It  had  n<it  been  registered. 
Kidney  gave  the  firm  of  Van  Zy4  and 
Buissinne  the  warrant  to  sue  the  tiqui- 
datora  on  the   bond,    the   warrant  was  » 


Mgned   by  Cowling,  but  the  verbal   iu- 
stnxtions  were  gifeix  by  Kidney. 

Mr.  Upington  closed  his  case,  subject 
to  the  right  to  call  rebutting  evidence 
on  the  question  of  fraud. 

Mr.  Close  then  applied  for  absolution 
from  the  instanoe,  on  the  ground  that 
the  plaintiff  claimed  payment  as  out- 
and-out  cessionary,  whereas  he  had  only 
made  out  a  case  of  pledgee. 

Mr.  Uuington  contended  that  the 
plaintiff  had  proved  that  this  mortgage 
bond  was  ceded  as  security,  and  that 
thereafter  the  debtor  handed  over  his 
security  to  tho  creditor  to  realise.  Tho 
rights  under  the  bond  had  been  only 
handed  over  to  C*owling,  and  surely 
Cowling  was  entitled  to  sue  the  mort- 
gagors, reserving  to  them  any  defence 
they  might  have  on  the  merits. 

His  Lordship  held  that  there  was  some 
evidence  that  Kidney  had  parted  with 
his   right   in   this     bond      to     Cowling. 

John  Edwin  Paul  Close,  incorporated 
accountant.  Cape  Town  (one  of  the  offi- 
cial liquidators)  was  then  called  for  the 
defence.  He  said  that  in  1901  he  was 
asked  to  become  a  director  ^jy  certain 
English  shareholders;  the  first  meeting 
of  di>rect<>rs  that  he  attended  was  in  De- 
cember, 1901.  At  the  second  meeting 
witness  discovered  that  Stableford.  the 
managing  director  had  been  buying 
large  uuantities  of  machinery.  Witnees 
insisted  on  Stableford's  powers  being  cut 
down  under  threat  of  withdrawing  from 
the  Board.  Stableford's  powers  were 
curtailed  to  indents  up  to  £350  a  month  ; 
all  expenditure  above  that  amount  to 
be  submitted  to  the  directors  for  ap- 
proval. At  that  time  witness  thought 
the  company  was  involved.  Witness 
was  not  awaro  during  1902  of  the  exis- 
tence of  a  broker's  note  (produced)  for 
lease  of  the  front  portion  ot  the  premises 
with  'the  option  of  a  sale.  Tlie  note  was 
between  Stableford  and  Co.  and  Honik- 
man  and  Hand.  The  business  seemed  at 
that  time  to  be  large  and  increasing. 
Witness  found,  soon  after  he  had  joined 
thi^  Board,  that  Stableford  had  over- 
bought machinery  in  excess  of  capit4i]. 
In  July,  1902.  there  were  overdrafts  to 
be  met,  and  Mr.  Hennessy  (who  was  sec- 
retary at  that  time)  and  witness  gave 
their  guarantees  to  the  bank  for  £5,000. 
On  the  18th  July,  1902,  Mr.  Hennessy 
was  summarily  dismissed  from  the  posi- 
tion of  secretary  by  Stableford,  whom 
witness  considered  to  have  very  arbit- 
rary powers.  Suhwquently  witness  found 
that  Kidney  had  been  am>ointed  sec- 
retary. Up  to  about  April,  1903,  wit- 
ness did  not  suspect  the  bona  fides  of 
either  Stableford  or  Kidney.  In  1903 
ho  was  called  upon  by  Stableford  and 
Kidney  to  report  to  Mr.  Veep,  one  of 
the  largest  creditors  and  the  English  buy- 
er, with  the  object  of  his  putting  the 
finances  of  the  company  on  a  sound 
basis  and  relieving  witnew-rs  and  Mr.  Hen- 
nessy of  their  liability  to  the  bank. 
Witness  made  his  report,  with  the  insult 


"CAPE  TIME»"  LAW  REPORTS. 


488 


(hat  Mr.  Veep  was  thrown  oflF  the  busi- 
0068  entirely,  and  that  witness  suffered 
to  the  extent  of  £2,500,  plus  8  per  oent. 
interei»t,  being  his  share  of  the  liability 
to  the  bank  as  guarantor.    Witness  found 
on  enquiry  at  the  Deeds  Office  that  two 
transfers   relating   to  the  front  property 
occupied    by   the      company     had  goiM) 
through,  one  from  Honikman  and  Hand 
to  Stableford   for  £4,500,  and  the  other 
from    Stableford   to  the      Company    for 
£6,500.  showing  a  difference  of   ^2,000 
in  favour  of  Stableford.    In  April,  190^ 
witness  heard   about  a   lease,    nut     was 
unable  to  obtain  it  from  the  managing 
director    or      seoretary.       In      October, 
1902.   an  extraordinary  general  meeting 
had  been  held,  at  which  it  was  resolved 
(o  purchase  the  front  property  occupied 
by  the  company  for  £6,500.     Stableford 
was  in  the  chair,  bui  he  did  not  disclose 
to  \he   meeting   that   he  was    going    to 
purchase  the   property   and    resell    it  to 
tlie   company.        Witness    proposed    the 
rosoluiions ;    had   he    known    of   Stable- 
ford's  interest  in   the      transaction      ho 
should  certainly  not  have  proposed  such 
a  resolution,    involving  him,   as    it  did, 
in  loss.     He  was  not  aware  at  the  time 
th^'v  decided   to  buy,   that  the  broker's 
note  \m&  in  existence.    He  was  not  aware 
until  later  of  a  letter  dated  20th  Novem- 
ber. 1902.  from  Kidney,  as  secretary   to 
the  company,    to      Messrs.      Roid      and 
Nephew.       There   was  no  notice   given 
of  the  letter  to  the  Board  of  Directors, 
t'p  to  April,  1903,   witness  had  seen  no 
documents  of    the    company.     In    July, 
1903.  tho  company  was  plaoed  under  in- 
spection of  witness,    Mr.   Syfret,       and, 
later  on,  of  Mr.  Laite.       Kidney  com- 
inenced  as  secretary  of  the  company  in 
October.  1902.     Witness   and   Mr.  Laite 
saw  Kidney  and  a^^kcd  him  how  he  came 
to  waive  tho  option  of  the  company  and 
«ll«w  Stableford    to    buy    the    property 
and  sell  it  to  the  company  at  a   profit 
of  £2.000.    Kidney  afterwards  produced 
J  press  copy  of  a   letrtier  which  he  and 
otableford  had  sent  to  Messrs.  Reid  and 
Nephew  containing  the     waiver.      Wit- 
^»  was  unable   to  produce   the    press 
cf'Py  but  could  speak  as  to  the  general 
Pwport  of  the  letter. 

Mr.  Upington  objected  to  verbal  evi- 
J«nce  being  led  if  the  press  copy  could 
•*  produced. 

Mr.  Lambert  Kidney  was  called  and 
Produced  his  press  letter  book.  He  said 
ffttt  he  could  not  find  a  copy  of  the  letter 
">  his  bof>ks. 

His  Lordship  ruled    that    verbal   evi- 
,  ^  could  be  given  as  to  the  contents 

Of  the  letter  from  Kidney  to  Reid  and 

^<'pbew. 

Mr.  Upington  entered  a  formal  objec- 
tion to  the  ruling. 

T^'  J.  E.  P.  Close  (continuing  his 
^vidence)  said  that  he  saw  a  letter  from 
A n  S7  ^**''°^*l'y  abandoning  the  option. 
All  efforts  to  find  the  original  letter  had 
»*«n  uiteucceasful.    Tho  Ifetter  was  signed 


by  Kidney  and,  he  believed,  by  Stable- 
ford, the  managing  director.  On  the 
passing  of  the  transfers  in  question,  a 
second  bond  to  Kidney  for  £250,  now  in 
dispute,  was  passed  on  the  same  date. 
The  documents  were  dated  31st  January, 
1903.  Coming  to  what  was  known  as  the 
back  property,  witness  said  that  he  was 
not  aware  in  August,  1902,  that  Stable- 
ford had  bought  the  back  property  from 
Hand  for  £2.500.  On  the  20th  April, 
1903,  transfer  of  the  back  property  wa.s 
passed  by  Stableford  to  Stableford  and 
Co.  for  £6,500.  This  purported  to  bo 
in  pursuance  of  a  resolution  of  a  direc- 
tor s  meeting  of  the  17th  March.  1903. 
Witness  was  not  pre^ient  at  the  meeting. 
There  were  present,  he  found  from  the 
minutes,  Messrs.  Stableford  (in  tho 
chair).  Pritchard,  Druit  (by  proxy),  and 
Kidney  (secre-tary).  In  tlie  course  of 
their  investigations  in  August  ,  1903, 
witness  went  and  asked  Kidney  how  pro- 
pcrty  could  have  been  bought  by  the 
managing  director  for  £2.500  and  hold 
by  him  to  the  company  for  £6.500.  He 
a.sked  Kidney  what  he  had  done  with 
the  money  from  the  bond  of  £4.500 
which  had  been  passed  in  favour  of  tho 
master.  The  differences  of  prices  thus 
shown  in  favour  of  Stableford  were: 
On  the  front  property.  £2,000;  and  on 
the  back  property,  £4,000.  On  this  pro- 
prty.  l)ond.s  of  £4.000  had  been  passed, 
including  one  of  £1,500  in  favour  of  W. 
L.  Kidney.  When  they  made  their  in- 
tlliiries  they  found  that  the  three  bonds 
had  been  extinguished  and  their  place 
was  taken  by  the  master's  bond  of 
£4,500.  His  position  was  that  the  com- 
pany were  entitled  to  buy  the  property 
at  the  same  price  as  Stableford.  tho 
managing  director,  had  bought  it  for. 
Kidney,  in  replv  to  witness,  said  that 
he  difference  of  £2,000  had  gone  in  re- 
oair.s,  improvomente  and  expenses.  W^it- 
•less  went  in  detail  into  the  relations  of 
Kidney  with  the  company.  A  third 
bond  of  £1,500  was  passew  on 
the  company's  back  property.  Tliere 
was  an  item  of  £700,  of  which  Kidney 
could  give  no  explanation  whatever. 
Witness  received  no  accounts  from  Kid- 
ney until  about  September,  1903.  In 
Kidney's  account  they  noticed  that  a 
bond  of  £750  had  been  credited.  Kid- 
ney commenced  to  claim  interest  on  the 
bond.  Then,  on  the  29th  February,  he 
claimed  payment  of  the  capital,  because 
the  interest  had  not  been  p«aid.  The 
first  intimation  that  the  liquidators  had 
of  any  alleged  cession  to  Cowling 
was  contained  in  a  letter  of  the  7th 
April,  ctdling  up  the  bond  on  account 
of  (*owling. 

Mr.  R.  W.  Clo«e:  I  suppose  that 
Stableford  abandoned  the  profits  from 
tl.ese  transactions? 

Witness :  Tlie  shares  that  he  had,  wo 
knew,  were  valur.lo.ss,  fo  it  was  not  worth 
fighting  o\er  He  had  got  a  large  num- 
ber of  shares  at  the  oeleDrated  meeting 
in  May,  1903.      I  read  a  report  in  the 


484 


<f 


OAt>B  tlMSS"  tAW  EEfORTS. 


41 


Cape  Times  **  the  following  day,  and 
I  wrote  and  asked  whether  the  report 
was  substantially  correct.  I  was  told 
by  Stableford  that  it  was. 

Mr.  R.  W.  Close:  At  that  meeting 
13,000  shares  had  been  voted  to  Stable- 
ford  as  "  graititude  shares "  for  his  ser- 
vices to  the  company  during  the  past 
four  years? 

Witness:  Yes,  although  the  company 
had  only  been  registered  two  years.  Wit- 
ness went  on  to  say  that  it  was  further 
.resolved  at  the  meeting  that  the  pav  to 
Stableford  should  be  increased  from  £600 
to  £1,000,  and  that  it  should  be  retro- 
spective for  six  months.  Furthermore, 
a  dividend  of  100  per  cent,  was  declared. 
The  meeting  vrst^  a  most  extraordinary 
one.  The  shareholders  who  were  present 
did  not  represent  one  per  cent,  of  the 
shares.  Witness  at  that  time  represent- 
ed English  shareholders,  and  he  receiv- 
ed no  notice  of  the  meeting.  A  few 
months  before  witness  had  come  into 
conBict  with  Stableford  and  the  others. 
The  whole  of  the  resolutions  were  passed 
with  the  object  of  getting  fresh  capital ; 
it  was  all  part  and  parcel  of  a  big 
scheme  to  get  a  lot  of  money  into  the 
company.  W^itness  had  found  among 
the  papers  a  letter  by  Kidney,  showing 
that  the  company  wa«  in  a  very  bad 
condition.  Within  six  weeks  of  the 
meeting,  the  company  was  placed  under 
inspection.  At  that  time  it  was  not 
able  to  meet  its  bills.  Stableford  and 
Kidney  resorted  to  various  devices  to 
raise  money  about  that  time, 

Mr.  R.  W.  Close :  Kidney  and  Stable- 
ford were  working  together  to  the  detri- 
ment of  the  company.  I  propose  to  put 
in  letters  that  passed  between  Kidney 
and  Stableford  at  that  time. 

Mr.  Upington  took  exception  to  the  in- 
troduction ^  of  matters  that  did  not  con- 
cern his  client.  Mr.  Cowling  was  abso- 
lutely unconnected  in  every  way  with 
these  property  transactions. 

Maasdorp,  J.,  said  that.,  of  course, 
whore  a  question  of  fraud  was  raicied, 
the  matter  was  one  that  must  be  left 
largely  to  the  discretion  of  oouiieel. 

Mr.  R.  W.  Close :  My  object  was  to 
8how  that  these  two  worked  hand  in 
hand. 

W^itness  gave  evidence  as  to  finding  a 
certain  letter  dated  the  11th  June,  lw)3, 
addressed  by  Kidnev  to  Stableford. 

Cross-examined  by  Mr.  Upington : 
There  was  a  considerable  amount  of 
trouble  towards  the  end  of  Mr.  Hen- 
nessy's  secretaryship  of  the  company. 
Witness  had  no  knowledge  of  how  the 
books  had  been  kept.  Stableford  had 
complained  of  the  way  in  which  the 
books  were  kepit. 

Mr.  Upington :  You  took  Mr.  Hon- 
nessy's  part  very  warmly? 

Witness:  Because  I  thought  he  had 
been  very  unjustly  dealt  with  by  Mr. 
Stableforcl. 

Further  cross-examined :  There  was  a 
meeting  of  the  Board  on  the   18th     of 


July,  1902;  at  which  recriminations  were 
indulged  m.  Hennessy  waa  dismissed 
from  the  secretaryship  by  Stableford, 
under  his  extraordinary  powers  as  man- 
aging director.  Witness  criticised  Sta- 
bleford severelv  in  regard  to  an  inter- 
view that  the  latter  had  had  with  Mr. 
Carmichael,  Mr.  Hennessy*s  clerk,  in  re- 
gard to  the  accounts.  Stableford,  it  was 
found,  had  had  a  shorthand  writer,  tak- 
ing notes.  The  shorthand  writer  was 
concealed,  and  Carmichael  was  not  made 
aware  that  notes  were  being  taken  of 
the  interview.  Witness  told  Stableford 
that  he  thought  it  was  — —  cowardly, 
lie  ako  said  that  such  a  thing  would  not 
be  done  with  a  convict.  Tbe  purchase 
of  the  premises  was  entered  into  while 
Kidney  was  in  England.  The  lease  of 
the  premises  had  been  entered  into  be- 
fore Kidnev  became  secretary  of  the 
company.  Kidney  was  appointed  secre- 
tary by  a  letter  of  July.  1902.  the  ap- 
pointment to  date  from  Novemoer,  1902. 
At  the  time  of  the  purchase  of  the  pre- 
mises, witness  did  not  inquire  who  was 
the  vendor,  because  he  had  no  suspicicMos 
at  that  time. 

Mr.  Upington:  How  do  you  say  tha't 
Kidney  was  a  party  to  any  fraud  in  con- 
nection with  the  purchase  of  the  pro- 
perty by  the  company  from  Stableford? 

Witness :  He  was  an  accessory  after 
the  fact,  and  as  such  lie  is  as  guilty  as 
the  other.  He  signed  a  solemn  waiver 
of  the  option  of  purchase  in  favour  of 
the  company  for  £4,500. 

In   further  cross-examination,  the   wit- 
A.v>«$  said  he  took  up  the  position  that 
Ih'^  three  bonds    should  have  been    the 
ccimpany^s,  and   that  whatever     Kidney 
put   into  repairs  should    have   been       a 
charge  against   the  oompanv.       Kidney 
received    £4,500   from  the  Master,    and 
with  that  he  paid  off  the  three   bond^. 
Ho  got  a  tx>nd  for  £1,500  on  this  pro- 
perty, and  did  not  spend      more    than 
£500.     His  account  of  the  disbursements 
included  the  item  of  £700,  which  witnesA 
regarded  as  fraudulent.       Witness  fcook 
exception  to  a  sum  of  £60,  included    in 
an  account  for   £460,  in  respect   of    re- 
pairs,  this   £60   having   been     paid    by 
cheque  by  the  company  the  same   day. 
Witness   contended   thait  the   bond       for 
£750  was  obtained  by  fraud.      He  accus- 
ed Kidney   in   September,    1903,    in    the 
presence  of  Mr.   oyfret   of  misappropri- 
ating this  amount.       Kidney  wrote    on 
the  7th  January  stating  that     he      had 
pledged  the  bond,   but  witness  toolc   no 
steps  to  find  out  who  it  was  pledged   to. 
In  reply  to  a  deman*!  for  interest,  by  the 
cessionary,      the     company's     attorneys 
wrote  stating  that  the  interest  had   been 
«?t  off  in  account  with  Mr.  Kidney  be- 
fore notice  of  cession  was  given.        Wit- 
ness did  not  think   it  necessary  to   take 
proceedings  to  have  the  bond  eet    aside 
before   Stableford   left  tlie  country.       It 
dii  not  occur     to     him  that  the    bond 
might  be  transferred  to  an  innocent  third 
party. 


••CAPE  TIMES"  LAW  &Et»0ttT8. 


485 


Mr.  Upingtoii  a^ked  witness  whether 
it  was  not  usual  for  brokers,  who  might 
be  secretaries  for  one  or  more  com- 
panies, to  charge  a  commission  on  any 
loans  that  they  might  raise  for  tho.-e 
companies? 

Witness:  I  do  not  know  whether  it  is 
usual  or  not  usual  but  I  consider  that 
it  is  an  improper  thing  to  do. 

Mr.  Upiugton :  Do  you  know  from 
your  business  relations  that  it  is  a  com- 
mon practice? 

Witness:  >2ot  unlesa  it  is  specially  au- 
thorised. 

Further  cross-examined:  He  had  in 
his  account  disallowed  Mr.  Kidney's 
charged  for  commission.  Mr.  Kidney 
had  charged  2^    per  cent. 

Mr.  Upiugton :  In  those  halcyon  days 
of  1902  this  company  was  supposed  to 
be  a  very  good  thing? 

Witness :  Yes ;  we  had  every  hope,  as 
1  said  in  my  examination-in-chief,  that 
it  would  be  a  very  good  thing,  but  they 
had  overbought  stock  and  plant.  1 
thought  there  was  a  very  promising  busi- 
ness. 

1  see  that  you  actually  were  a  director 
Oi  the  company  at  the  time  wiien  they 
recommended  a  dividend  o'  50  per  cent, 
ou  the  ordinary  sharer?- Ves. 

So  you  must  have  thought  then  that 
It  was  a  very  good  thing?— What  date 
was  that? 

1*hifi  is  the  balance-sheet  (produced)  as 
"March  31.  1902,  which  was  passed 
?nd  approved,  and  so  forth,  at  a  meeting 
lu  July?-What  was  the  capital  of  the 
company  then? 

I  don't  know  what  the  capital  was.— 
lou  see  the   capital    was   increased   on 

M  ^^  -^^   £14,000. 

meanwhile  the  business  was  increasing? 

A  ***  increasing. 

answering  further  questions,  witness 
^'d  he  was   present   at   the      meeting 

wre  the  increase  of  the  capital  was 
•uthorised.  He  had  every  justification 
L^^-iOr  supporting  that.  They  had 
nja  Mr.  Syfret's  balance-sheet,  and  the 
Sn*"^  was  well  satisfied  with  the  po- 

M  the  course  of  further  croas-oxamina- 

iwn, 

**•'•  Upiugton  asked  witness  if  he  knew 
^^^  Stableford    was. 
,    "'tnees:     I    may    tell    you    that    we 

j!^®  made  every  inquiry  to  find  him. 

y^  you  make  every  effort  to  get  his 
evidence  taken  on  commission?— We  aid 
not  know  he  was  teaving. 

Iw  you  mean    to    infer   that   we    did 

know? 

M,  no?— Then  why  do  you  repeat  th-it 
question— 

You  didn't  know  he  was  leaving, 
you  «ay?._l  did  not  know  he  was  Icav- 
'ng:  1  have  said  that  twice. 

He  has  loft?— I  do  not  know  Wi.<'ther 
oe  has  left.  I  am  told  he  hd5  lef«>.  I 
am  not  his  keeper. 

Now,  have  you,  in  the  course  of  your 


investigations,  come  across  any  evidence 
of  collusion  between  these  two  men, 
prior  to  the  date  of  signing  that  letter 
of  November  20? — ^There  was  a  certain 
broker's  note,  but  it  is  after  that  date. 

What  was  there  to  arouse  Kidney's 
suspicions  at  the  time  he  was  asked  to 
sign  that  letter? — That  I  cannot  answer. 

Why? — It?  is  clear  to  anybody  else 
that  it  is  useless  for  me  to  attempt  to 
tell  you. 

But  I  want  to  see  as  well?— If  you 
don't  see,   it  is  no  use  my  telling  you. 

Cross-examination  continued :  Kid- 
ney did  not  explain  to  him  how  he 
came  to  write  to  Reid  and  Nephew, 
waiving  the  option  ou  the  back  property. 
Ho  expressed  his  regrets.  Kidney  seem- 
ed to  bv.  very  penitent,  and  he  saw  that 
th>  game  was  up.  Witness  admitted 
that  he  was  not  very  charitable  when 
he  made  such  discoveries  as  this,  bub 
he   denied   that   he  was  vindictive. 

Mr.  Upiugton :  Very  likely  you  are 
misint<>rpreting  what  the  man's  real 
feelings    we''e? 

Witness:  No;  his  regret  was  unmis- 
trakeable. 

His  regret  at  what?- At  what  we  had 
shown  him  up  as  having  done. 

Witness  was  also  cross-examined  in 
regard  to  other  features  of  the  accounts. 

Re-examined:  The  liquidators  had 
given  credit  for  any  amounts  benefici- 
ally expended  for  the  company.  Kidney 
had  actually  charged  2^  per  cent  for 
commission  on  the  advance  of  £750  that 
lie  said  he  had  given  to  the  company. 

Posiea  (July  12th). 

Mr.  Clo^e  intimated  that  the  search 
for  certain  letters  at  the  oflBces  of 
Messrs.  Reid  and  Nepheiw  had  been  suc- 
cessful. The  letter  containing  the  waiver 
of  the  option  in  favour  of  the  company 
III  November,  1902,  had  been  found. 

Further  evidence  was  called  for  the 
defendants. 

Richard  Hugh  Pritchard,  manufactur- 
ers' agent,  Cape  Town,  said  that  he 
joined  the  Board  of  Stableford  and  Co., 
Limited,  in  October,  1902.  He  remem- 
bered attending  a  special  meeting  of 
shareholders  in  October,  1902,  at  which 
a  resolution  was  passed  authorising  the 
purchase  of  the  front  proper ty^.  Mr. 
Stableford,  who  wa«  in  the  chair,  made 
iome  statement,  but  witness  could  not 
remember  exactly  what  it  was.  He 
did  not  remember  Stableford  having 
said  that  he  was  taking  over  an  option 
in  favour  of  the  company,  and  that  ht) 
was  proposing  to  sell  to  the  limited 
company.  Subisequently  a  meeting  was 
held  at  Mr.  J.  E.  P.  Close's  office,  at 
which  the  resolution  was  formally  con- 
firmed. Witness  presided  on  that  occa- 
«sion.  He  signed  certain  documents 
brought  to  him  by  Kidney,  including  a 
declaration  of  purchase  and  a  power  of 
attorney  to  pacfs  the  bond  for  £750  in 
favour  of  Kidney,  now  in  suit.  Wit- 
ness raised  some  objection  at  the  time, 


iS6 


''CAPS  TtMBS**  LAW  REPOETS. 


because  he  wa^  not  familiar  with  the 
position  and  affairs  of  the  companv. 
Kidney  pressed  hinn  to  sign,  and  told 
him  that  it  was  his  duty  as  a  director 
to  sign.  Eventually  witness,  rather  than 
cause  any  friction,  consented  to  sign. 
He  desired  to  save  any  further  trouble 
to  Mr.  Kidnev.  Kidney  told  him  that 
the  money  that  he  (Kidney)  had  ad- 
vanced to  the  company  was  his  own 
ri^k.  Witness  wished  to  explain  to  the 
Court  that  he  was  pressed  to  become  a 
director  by  William  Stableford.  He 
know  nothing  as  to  the  duties  of  a 
director,  but  Stableford  acked  him  to 
represent  Keep  Bros.,  of  Birmingham, 
who  were  the  buying  agents  of  the 
company,  and  who  were  personally 
known  to  witnetis.  He  was  afraid  that 
he  did  not  go  into  the  financial  part 
of  the  conrkpany  as  he  ought  to  have 
done.  AVitness  had  every  faith  in  Mr. 
Kidney  at  that  time.  He  objected  to 
Stableiord  appointing  Kidney  as  secre- 
tary, and  said  that  he  thought  the  ap- 
pointment should  be  made  bv  the  Board, 
but  Stableford  pooh-poohed  the  objec- 
tion. Witness  went  on  to  speak  of  the 
resolutions  adopted  at  the  meeting  on 
the  17th  March,  1903,  in  regard  to  the 
purchase  of  the  back  property.  When 
the  meeting  resolved  to  purohase  the 
property  witness  was  not  aware  that 
Staoleford  had  already  secured  it  for 
£2,500.  Stableford  «aid  that  he  had 
bought  a  paper  called  "  The  Yeld,"  and 
that  he  was  developing  the  businew 
He  made  a  statement  at  the  meeting 
that  rt  was  absolutely  necessary  to  pur- 
chase the  property*  otherwise  some  <^her 
party  who  was  after  the  adjoining  pre- 
mises mif^ht  get  that  property  also. 

Mr.  Upin^on  (interposing)  objected  to 
evidence  being  led  to  vary  the  minutes 
of  a  meeting.  Those  minuter  said  that 
the  purchase  by  Sta'bleford  and  re-sale 
to  the  company  was  disclosed.  The  re- 
solution read  that  a  certain  propertv 
recently  acquired  and  re-built  by  Wil- 
liam Stableford  should  be  purehaised  for 
£6.500. 

Maasdorp,  J.,  said  that  counsel  might 
submit  that  the  minutes  were  better 
evidence,  but  he  did  not  see  how  he 
could  object  to  parole-evidence  bein^r 
p^iven  fM  io  the  proceedings  at  the  meet- 
mg.  He  would,  however,  make  a  note 
of  the  objection. 

Witness  (continuing  his  evidence)  said 
that  the  information  m  the  minutes  as  to 
the  purchase  by  Stableford  for  £2,500 
was  new  to  him.  He  remembered  no 
disclosure  having  been  made  by  Stable- 
ford as  to  his  having  himself  purchased 
the  property  in  the  first  instance.  Wit- 
nesB  saw  two  oases  of  valuable  machinery 
lying  outside  in  the  lane,  and  made  a 
complaint  to  Stableford  that  the  ma- 
chiiR*ry  wa»  suffering  damage.  He 
threatened  to  employ  coolies  on  his  own 
account  unless  the  machinery  were  put 
under  cover.  Later  in  tlie  day  he  found 
that  steps  were  being  taken  to  protect 


the  machinery.  Witness  signed  the  de- 
claration of  the  purchaser  tor  the  back 
property.  It  wafl  not  until  May,  1905, 
that  witness  heard  the  true  hi»toi^  of 
the  property  transactions.  Mr.  Close 
met  him  in  the  street,  and  told  him  a 
few  things  which  opened  his  eyes  con- 
siderably. He  saw  Stableford  frequent- 
ly, but  he  had  lost  all  faith  in  the  man, 
because  he  had  found  him  out  to  be  a 
deliberate  liar.  He  once  saw  Kidney, 
who  told  him  that  Stableford  was  not 
treating  him  fairl^r,  and  that  his  wife 
(Kidney's)  had  said  that  he  would  rue 
the  day  when  he  knew  Stableford. 

Cross-examined  by  Mr.  Upington : 
Stableford  said  that  be  could  have  made 
something  by  the  sale  of  the  property 
if  he  had  been  selling  to  another  party, 
but  that  he  would  make  nothing,  as  he 
was  selling  to  the  company.  When  wit- 
ness signed  the  declaration  of  purchaser, 
he  did  not  notice  that  the  seller  was 
Wm.  Stableford.  He  had  seen  that 
since,  to  his  sorrow.  He  was  not  fami- 
liar with  such  documents.  He  took  it 
that  Stableford  had  been  acting  as  in- 
termediary in  the  purohase  on  behalf  of 
the  company.  He  had  not  seen  a  de- 
claration of  purchaaer  before  he  sigrned 
the  one  in  question.  It  might  be  called 
stupidity,  but  it  was  a  fact. 

Mr.  Upington :  I  don't  call  it  stupid, 
but  ^ou  are  a  busineea  maiK,  you  know? 

Witness:  I  call  myself  stupid  now  in 
the  light  of  later  facts.  I  may  «ay  that 
I  had  not  the  slightest  suspicion  of  the 
character  of  the  man. 

I  will  put  it  to  YOU  that  the  minute  of 
the  meeting  of  the  17th  March,  as  it 
appears  in  the  book,  is  accurate? — I 
don't  think  so. 

W^ill  you  swear  that? — t  am  not  goinj^ 
to  swear  it.  The  matter  is  so  old,  and 
it  has  escaped  my  memory  to  some  ex- 
tent. Sinoe  that  time,  I  have  been  to 
England,  and  have  been  all  over  South 
Africa  twice. 

Further  cross-examined :  He  con- 
sidered that  £6,500  was  a  fair  price  for 
the  property.  &nall  properties  were  at 
that  time  fetching  bigger  prices. 

Joseph  Honikman,  broker  and  estate 
ageivt,  Cape  Town,  said  that  he  passed 
the  broker's  note  for  the  original  lease 
of  the  front  ppoi>erty.  Wm.  Stableford 
cume  to  see  him  in  answer  to  an  adver- 
tisement, and  the  contract  was  made  in 
favour  of  Stableford,  actingon  behalf  of 
the  company.  On  the  22nd  August, 
1902.  communications  took  place  between 
witness  and  Stableford,  acting  on  behalf 
of  the  company,  in  regard  to  the  exercise 
of  the  option  on  the  front  property.  He 
passed  a  broker's  note  on  the  same  date 
for  the  purohase  by  W.  Stableford  person- 
ally of  the  back  property.  Some  delay 
took  place,  and  he  was  subsequently  in- 
formed that  the  transfer  should  go 
through  in  the  name  of  Wm.  Stableford. 
Witness  spoke  to  certain  negotiations 
which  followed  for  the  purpose  of  trans- 
ferring the  front  property  to  Stablefcwd 


"OAPB  TIMES"  LAW  RKP0RT8. 


487 


personally,  at  indemnity  being-  given  by 
the  company.  Transfer  of  the  back  pro- 
perty wafe  given  to  Stableford  on  the 
12th  January,  poe»cssion  having  been 
given  to  him  soaie  time  in  December  to 
enable  him  to  carry  out  certain  alter- 
ations. 

Cro68-examined  by  Mr.  Upington: 
Kidney  said  he  was  informed  that  the 
difficulty  was  that  the  document  waa  in 
the  company's  name,  instead  of  in 
Stablefora*s  name.  Stableford  did  not 
point  out  at  that  time  that  this  was  a 
mistake.  Shortly  after  he  exercised  the 
option,  Stableford  said  it  was  a  mistaJce 
for  the  company's  name  to  appear,  in- 
stead of  hiB  own. 

Re-examined:  Witness  did  not  hear 
of  any  peitK>nal  right  to  the  lease  on 
the  part  of  Stableford  until  after  August 
22.  190e.  As  to  the  giving  of  the 
lease,  the  transaction  was  distinctly 
between  witness  and  the  company. 

By  the  Court:    The  sale  of  the  back 
property  was   to  Stableford  himself. 

Cecil  Hand,  broker.  Cape  Town,  gave 
evidence      substantially      corroborating 
that  of  bis  partner,  Honikman.       Wit- 
ness said  that  he  held  out  for  the  price 
of  £2,500,  as   he   knew   the      company 
would  have  to  buy  the  property.       He 
did  not  regard  Stableford  as     being  in 
Bouriahing         financial      circumstances. 
J^  conii>any  had  to    waive  its    option 
of  purchase  before  it  was   possible  for 
^aosfer  to   be      made  to      Stableford. 
Kidney  was  quite  conversant  with  the 
»ute  of  affairs.        Stabk)ford       offered 
witness  £50  for  the  broker's    note  which 
the  liquidators  were  looking  for,  or  of- 
leivd  him  that  sum  if  he  would  put  the 
"ote  in  a   box  in    the    bank,  each    of 
Jwm  to  have  a  key.      Witness  showed 
nmi  out  of    the      office.         Stableford 
^nce  tried  to    snatch  the  broker's  note 
^"t  of  witness's  hand.        Kidney   tried 
*<*  Pt'rauade  witness  to  give  up  the  note 
to  Stableford. 

Morris  J.  Hopper,  attorney,  deposed 
|hat  Honikman  put  the  matter  of  the 
*JJ"Mfer  of  the  proi)erty  in  his  hands. 
•I here  were  negotiations  between  wit- 
ness and  Kidney  and  Stableford.  Wit- 
nees  gave  Kidney  to  understand  that 
he  would  not  pass  transfer  unless  he 
Jjd  an  indemnity  in  respect  of  Messrs. 
Wand  and  Honikman  from  Stableford 
personally.  Witness  got  a  letter  .  of 
"wemnity. 

.  Alfred  J.  Erxleben,  builder,  said  that 
Jn  December,  1902,  he  was  in  negotia- 
tion with  Stabksford  in  regard  to  the 
•^building  of  the  back  property,  and 
an  agreement  (produced)  was  drawn 
^p.  The  agreement  was  signed  by 
Stableford  as  managing  director,  the 
contract  bein^  with  the  company.  The 
witness  specified  the  alterations,  and 
*jid  he  received  money  on  account  of 
the  work  from  Stableford  and  Kidney. 
Stabk^ford  paid  in  cash;  Kidney  ^ave 
him  cheques.      Altogetner  he  veceiYed 


£660.       Witness  paid  £15     commission 
for  getting  the  job. 

Cross-examined  by  Mr.  Upii»gton :  He 
did  not  know  wHether  he  had  been 
paid  the  whole  amount  due  under  the 
contract.  He  did  not  think  so ;  there 
were,  he  believed,  some  short  pay- 
ments. Witness  did  not  know  who 
drew  up  the  contract.  Stableford  did 
not  tell  him  the  work  was  for  the  com- 
pany; witness  assumed  it  was.  The 
only  person  whom  he  dealt  with  in 
connection  with  the  contracts  was 
Stableford.  He  began  work  in  Decem- 
ber,  1902. 

Wm.  James  Laite,  one  of  the  liqui- 
dators of  the  company,  said  that  he 
went  with  Mr.  Close,  and  interviewed 
Mr.  Kidney  relative  to  the  property 
transactions.  Mr.  Close  questioned 
Kidney  in  reference  to  the  cancellation 
of  the  broker's  note,  and  eventually 
Kidiiev  produced  a  letter,  which  was 
read  by  Mr.  Close,  and  which  stated 
that  the  company  were  prepared  to 
waive  their  option.  Undoubtedly  there 
was  in  the  letter  information  which 
would  lead  one  to  believe  that  ^  the 
company  had  authorised  the  waiving 
of  tneir  right.  Kidney  understood  thnt 
the  thing  was  not  altogether  straight, 
and  he  was  sorry  for  the  position  lie 
was  placed  in.  Witness  was  present 
at  a  subsequent  interview  between  Mr. 
Close  and  Mr.  Kidney  at  Mr.  Syfret's 
office.  There  was  some  straight  tallr, 
and  Mr.  Close  made  use  of  some  strong 
language  in  the  matter.  Kidney  said 
that  he  had  no  idea  that  an  interpreta- 
tion of  that  kind  would  be  put  upon 
his  conduct.  Mr.  Close  rejoined  that, 
in  law,  such  conduct  was  called  by  a 
very  harsh  name.  Kidney  did  not 
defend  himself  in  any  shape  or  form; 
ho  simply  sat  still  and  hung    his  head. 

Cross-examined  by  Mr.  Upington : 
After  the  statements  that  he  had  heard, 
his  first  impression  was  that  Stableford 
was  the  sole  delinquent.  He  would 
not  say  that  Mr.  Close  was,  figura- 
tively speaking,  seeking  Stableford's 
blood.  He  certainly  seemed  sur- 
prised and  indignant  at  the  conduct 
of  Stableford.  At  the  first  interview 
with  Kidney,  Mr.  Close  said  to  him: 
'*  Have  you  any  idea  where  this  thing 
leads  you  to?  '^  Kidney  said :  "I  did 
not.  but  I  do  now,'*  or  words  to  that 
effect.  Kidney,  at  the  interviews,  took 
up  the  position  that  a  wrong  construc- 
tion was  beinsr  put  on  what  he  had 
done.  Kidney  seemed  to  be  very 
much  upset,  and  he  took  no  measures 
to  defend  himself.  Witness  thought 
that  if  he  had  been  attacked  as  Kidney 
was,  he  would  have  protected  himself. 

Further  cross-examined :  Kidney  took 
up  the  position,  in  the  presenoe  of  wift- 
ness,  that,  with  regard  to  the  whole  of 
the  companv's  affairs,  he  had  been  mis- 
led bv  Stableford.  At  first  witness 
thougnt  that  view  was  not  improbable. 

Re-examined:    ^fore   the  first  Inter- 


488 


« 


CAPS  TIMS8"  LAW  BBPOBTA. 


view  be  considered  thai  Kidney  was  a 
tool,  but  afterwards  he  did  not  think  so. 
WitncM  meant  by  "  strong  languitge " 
on  the  part  of  Mr.  Close,  strong  accusa- 
tions of  dishonest  conduct. 

Gerald  Orpen,  acting  as  oo-Uquidator 
nn  behalf  of  Mr.  Syfret,  said  that  he 
had  had  conversations  with  Kidney,  who 
asked  in  regard  to  the  interest  on  his 
bond.  He  eaid  he  wanted  the  interest 
so  as  to  enable  him  to  pay  the  intercut 
on  a  loan  from  a  friend  of  his.  This 
would  be  about  January,  1904.  Kidney 
repeated  thai  the  bond  was  genuine. 
Later  on,  Kidnev  told  him  that  he  had 
pledged  the  bond. 

Oross-examined  by  Mr.  Upington: 
Witness  told  Kidney  that  the  reason 
why  the  liquidators  would  not  pay  the 
interest  was  on  account  of  the  property 
transactions. 

Oliver  Lumb.  in  the  employ  of  Mr. 
J.  E.  P.  Close,  produced  the  company's 
cash-book,  showmg  two  pa.yments  of 
£35  and  £60  to  Erxleben,  for  making 
alterations  to  the  back  property.  Erxle- 
ben was  debited  and  not  Wm.  Stable- 
ford.  They  found  a  lot  of  invoices 
which  had  not  been  entered  up  from 
Erxleben  for  work  done.  These  were 
entered  up  by  the  liquidators. 

Cross-examined  by  Mr.  Upington: 
Erxleben  had  a  runnmg  account  with 
the  company  at  the  time. 

M.  E.  BVederiok  Oettle,  clerk  in  the 
Master's  Office,  gave  evidence  as  to  ap- 
plications having  been  made  for  loans  by 
the  company  on  the  10th  January.  1903, 
for  £4,000.  and  on  the  17th  March. 
1903,  for  i54.500.  The  applications  were 
signed  by  Kidney,  as  secretary  of  Wm. 
Stableford  and  Co.,  Ltd.  The  form  of 
declaration  in  regard  to  the  March  ap- 
plication was  filled  up.  It  stated  that 
the  property  had  boon  re-built  at  a  cost 
of  £1,700. 

John  Edwin  Paul  C^losc  (recalled)  said 
that  the  letter  (produced)  of  the  2pth 
November,  1902,  cancelling  the  option 
in  favour  of  the  company,  coincided  with 
his  recollection  of  the  letter  that  he  saw 
at  the  office  of  Messrs.  Reid  and 
Nephew.  lie  would  not  sav  that  the 
letter  produced  was  the  one  that  he  saw. 

This  concluded   the  evidence. 

Mr.  W.  R,  Close  said  that  he  pro- 
posed to  call  evidence  showing  that 
Kidney  assented  to  the  liquidation  of 
the  company,  and  that  he  was,  there- 
fore, estopped  from  ceding  his  rights  as 
against  the  company. 

Mr.  Upington  said  that  he  miiiit  object 
to  evidence  being  led  upon  a  point  which 
had  not  been  raised  m  the  pleadings. 
The  point  now  taken  apparently  was 
that  Kidney  was  estopped  from  ceding 
the  bond  uoon  the  ground  that  prior  to 
that  he  had  consented  to  the  voluntary 
liquidation  of  the  company.  That  raised 
a  very  interesting  question,  which  he 
was  not  proparedf  to  go  into  at  all.  a 
question  that  had  not  been  raised  in 
pleadings. 


Maasdorp,  J.,  said  that  the  evidence 
might  be  led,  and  be  would  make  a  note 
of  tlie  objection  taken  by  counsel  for  the 
plaintiff. 

Mr.  J.  £.  P.  Close  (recalled)  said  that 
the  company  went  into  liquidation  on 
the  l&th  September,  1903.  Kidney  was 
then  secretary  of  the  company,  and  he 
was  a  creditor  and  shareholder.  The 
reJ!:olution  to  go  into  liquidation  was  sign- 
ed by  Kidney  as  secretary  of  the  com* 
panv. 

This  concluded  the  evidence,  and  coun- 
sel were  heard  in  argument. 

Mr.   Upington.    after   reviewing      the 
evidence  in  the  ca«e,  submitted  ihat  no 
testimony  had  been  adduced   to      show 
what  Kidney  had  done  to  enable      the 
company  to  call  upon  him  to  account  to 
them  for  the  pront  made  by  Stableford 
in  connection  with  the  property  transac- 
tion.     After  all,  that   was   the  bedrock 
and  the  gist  of  the  case.    He   did   not 
think  the  decision  of  theiie  points  would 
be  assisted  bv  any  vague  or  general  al- 
legations of  fraud,  but  they  would  have 
to     be     decided     upcHi    the     facts,     so 
far  as  they  had  been  brought  out  before 
the  Court,    and   bearing   m    mind    that 
after   all    practically   a  criminal    charge 
was   brought  against  both  Kidney  and 
Stableford  in  connection  with  this  mat- 
ter.   All  the  evidence  went  to  show  that 
wh?n  Kidney  was  in  England,  Stableford 
purchased   two  properties,   and   the    at- 
tempt to  prove  that  Kidney  was  aware 
of  that  transaction  had  absolutely  failed. 
There  was  no  evidence  to  connect  Kid- 
ney, either  by  communication  or  other- 
wise with  the  properties  until  they  came 
to  somewhere  m  November.  Counsel  was 
limply  concerned  to  show  that  the  sale 
of  the  front  property  was  concluded  from 
Hand  to  Stableford,    and   Stableford  to 
the  conipany    lx?foro  Kidney   took  over 
his  duities  as  secretary.       It  was  record- 
ed  in   the  minutes  of  the  lOfh    (October 
that   that  purchase  had   been  confirmed 
by  1  meeting  of  shareholders.    Anyone 
approaching  the  case  with  an  unbiassed 
mind    would    see    that   it    did    not    lie 
upon  the  secretary,  who  saw  that  a  sale 
had  lieen  confirmed  in  due  form  of  this 
property  to  the  company,  to  be  diligent 
and     studious     to     go     round     fen^t- 
ting        out        whether        there        was 
not     something    ^   wrong      about        it. 
There  was  not  a  single  word  of  evidence 
to  (Siliow   that    Kidney     ever     saw   the 
broker*8  note,  that  the  contents  of  the 
note  were  ever  explained  to  him,  or  that 
he   was  aware  what  the  purchase  price 
was — all  three  things  absolutely     neces- 
sary to  be  proved  m  order  to  establish 
in   a  charge   of   fraud      against      him. 
To    go    into    vague    generalities     and 
conjectures    was    very    unsafe    in    what 
was  pnactioally  a  criminal  charge.  T^re 
would  have  been  force  in  the  contention 
of  the  liquklators  if  they  had  shown,  be* 
fore  the  letter  deciding  to  purehase  the 
property  was  written,  that  Kidney  had 
seen  the  broker'p  x)otO|  aqd  was  nware 


<( 


GAPE  TIMB8"  LAW  BJEPOBXa 


489 


of  the  option.  Dealin«^  with  the  back 
property,  Mr.  Upington  contetided  that 
it  was  cletir  from  the  minutee  of  the 
meeting  of  Miarch  17  that  Stableford 
waa  disclosed  as  the  seller  of  that  pro- 
perty, and  ur^ed  that  there  was  nothing 
to  prevent  hun  from  making  a  profit 
out  of  t.bat  transaction.  The  resolution 
spoke  of  the  "premises  recently  ac- 
•iuired  and  rebttflt  by  William  Stable- 
ford."  He  submitted  that  the  minutes 
were  the  best  evidence  of  whait  took 
place  at  the  meeting,  the  recollections 
of  Mr.  Pritohand  (one  of  the  direotons) 
notwithstanding.  His  learned  friend,  it 
was  true,  bad  pointed  out  in  the  course 
of  the  case  that  the  minutes  of  the 
meeting  had  not,  according  to  the  re- 
cord, been  confirmed.  That  might  be 
so,  but  if  they  looked  through  the 
minute-ibook  ibej  would  find  that  in 
very  few  ca«es  indeed  was  it  recorded 
that  the  minutes  hod  been  confirmed. 
The  fact  that  Kidney  had  furnished  the 
details  to  the  liquidators  wa«  sure  evi- 
dence of  hvi  bona-fidea  in  the  matter 
The  company  had  retained  both  the 
properties,  and  their  right  waa  at  moat 
limited  to  «be  right  of  -calling  upon  their 
officers  as  agents  to  account  to  them 
for  profits  improperly  obtained.  It  was 
clear  that  there  was  no  liability  on  the 
part  of  Kidney  to  the  company,  but,  on 
the  other  band,  a  liability  of  the  com- 
pany to  him.  Now,  what  profit  did 
Kidney  obtain  from  these  property 
transactions?  On  the  front  property  he 
received  no  profit  whatever.  On  the 
back  nroperiv  there  was  a  profit  repre- 
sented by  700  preferent  shares.  He 
(counsel)  did  not  suppose  those  shares 
had  much  value  to-dav ;  the  evidence, 
»uch  as  it  was,  showed  that  the  shares 
were  valueless.  Mr.  Upington  went  on 
to  bay  that  the  account  prepared  by 
the  liquidators,  which  showed  an  in- 
dobtcdnesB  by  Kidney  to  the  company 
to  the  amount  of  about  £300,  debited 
Kidney  with  the  whole  of  the  profit  on 
both  the  property  transactions.  Kid- 
ney's account  showed  £1,900  indebted- 
ness by  the  company  to  him.  It  was 
(foite  evident  that  tney  must  have  a 
debate  of  these  accounts.  There  were 
ajso  substantial  sums  for  salary,  de- 
bited against  Kidney;  counsel  contend- 
ed that  that  was  an  unfair  course  to 
adopt.  He  submitted  that  the  onus 
reited  upon  the  liquidators  of  showing 
fraud,  and  that  the  evidence,  although 
it  might  raise  a  certain  amount  of  sus- 
picion with  regard  to  one  of  the  aotors» 
did  not  aasociate  Kidney  with  any 
fraud. 

Mr.  Close  argued  that  the  so-called 
cpssion  waa  a  ratification  of  the  pledge, 
and  waa,  in  effect,  therefore  a  pledge. 

Maasdorp,  J.,  said  that  if  it  were  the 
case  that  inie  cession  in  April  was  good, 
the  point  was,  unless  something  took 
place  in  the  meantime  to  alter  the  posi- 
tion of  the  paitiee  what  was  the  plain' 
tif  ei|titled  to  ander  the  oeesion? 


Mr.  doee  aaid  that  the  plaintiff's 
claim  was  based  upon  the  allegations  of 
fraud  and  on  the  accounts.  Proceed- 
ing, counsel  urged  that  it  was  in  the 
mind  of  Stableford  to  deal  with  the  two 
properties  together  for  his  own  benefit 
If  It  were  shown  that  there  was  fraud 
on  the  part  of  Stableford,  that  Stable- 
ford was  dealing  with  these  properties 
as  one  in  a  fraudulent  manner,  and  that 
he  was  assisted  in  that  by  Kidney,  it 
was,  he  contended,  immaterial  whether 
Kidney  was  in  that  traneaction  from  the 
beginning  or  not.  He  submitted 
that  in  the  accounts  Kidnev 
had  not  really  been  debited  with 
the  profits  made  by  Stableford 
on  the  property  transactions.  He  con- 
tended that  Kidney  had  abused  his 
position  of  trust,  and  had  lent  himself 
to  a  fraudulent  scheme,  and  that  what- 
ever consideration  he  might  have  given 
for  the  bond,  that  bond  was  fraudulently 
obtained,  and  the  company  was  not 
liable  on  it.  Whatever  remedy  the 
plaintiff  had  against  Kidnev  himself  was 
purely  a  matter  between  those  two. 

Mr.  Upington  was  heard  in  reply. 

Maasdorp,  J. :  In  order  to  ascertain 
the  facts  upon  which  the  defendants' 
plea  is  contended  to  be  based,  it  irt 
necessary  to  go  into  a  number  of 
transactions  which  preceded  the  exe- 
cution of  this  bond.  It  would  ap- 
pear that  the  company  entered  into  a 
ease  of  the  property  upon  which  this 
Kind  was  subseouently  passed  on  the 
0th  November,  1901,  and  that  one  of  the 
clauses  of  the  lease  gives  the  company 
the  option  of  purchasing  this  property 
within  six  months  of  the  execution  of  the 
lease  for  £4,200;  if  that  option  is  not 
exercised  within  six  months,  then  for 
the  following  six  months  an  option  is 
given  to  the  company  to  purchase  the 
property  at  £4,600.  It  appears  that  at 
the  time  this  lease  was  entered  into  the 
business  of  the  company  was  mainly 
transacted  through  its  manager,  Mr. 
Stableford.  and  the  company  seems  to 
have  had  so  much  confidence  in  him  that 
the  directors  left  the  conduct  of  the 
business  almost  entirely  in  his  hands. 
On  the  22nd  August.  1902,  just  before 
the  twelve  months  had  expired,  it  is 
stated  by  Mr.  Honikman  that  Stable- 
ford exercised  the  option  which  the  com- 
pany was  entitled  to  under  the  lease  in 
favour  of  the  company.  He  has  posi- 
tively said  so,  and  his  statement  is  un- 
contradicted, and  I  take  it,  notwith- 
standing some  lapses  of  memory  in 
minor  respects,  on  the  part  of  Mr.  Hon- 
ikman, as  a  matter  of  fact,  on  August 
22,  the  option  was  exercised  in  favour 
of  the  company  for  the  purohase  of  this 
property  for  £4,500  bv  Stableford.  A 
meeting  was  held  on  10th  October,  1902, 
at  which  the  purchase  of  this  property 
from  the  owner  was  authorised.  A 
question  arose  both  before  and  after 
the  meeting  was  held  as  to  the  declar 
ationa  of  purchaser  and  seller  that  w«rt 


496 


"CAPE  TIMES"   LAW  REPORTS. 


to  be  cxocuted.  When  that  question 
uiofie  Stublfford  iuformcd  the  owners, 
Meeoro.  Iloiiikmaii  and  Hand,  that  he 
roally  exercised  the  (iptiou  iu  his  own 
favour,  and  that  he  pi>rsonaIly  wan  en- 
tilled  to  the  option  and  not  the  com- 
pany, as  appeared  on  the  broker's  note. 
Thereupon,  having  received  oer- 
tain  communicationa  from  Stable- 
ford,  the  owners  consented  to  make 
the  necessary  declarations  for  parsing 
the  transfer  to  Sitableford.  The  trans- 
fer to  SitaMeford  took  pLace  on  Janu- 
ary 31,  1903.  and  upon  the  same  day  a 
transfer  was  also  passed  from  Stable- 
ford  (to  the  company.  Now,  as  far  as 
Siableford  himself  is  concerned,  it  is 
most  dearly  proved  tha/t  the  convpany 
wiBs  entitled  to  purchase  this  property 
for  £4,500,  and  he,  as  a  director,  if  he 
had  done  his  duty,  would  have  pur- 
chased the  property  fgr  that  sum  for 
the  company,  but,  in  disregard  of  his 
duty,  he  alleged  that  such  an  option 
did  not  belong  to  the  company,  and  he 
proceeded  to  oppose  of  the  rignts  of  the 
company  under  the  broker's  note  by 
inducing  the  owners  of  the  property  to 
pass  tram^fer  to  him.  Now,  there  is  not 
the  slightest  doulbt  that  the  whole  of 
this,  so  far  as  Stableford  is  concerned, 
was  a  fraudulent  transaction,  a  fraud 
by  which  he  gained  the  sum  of  £2,500. 
It  was  not  a  case  of  a  director  purchaei- 
ing  a  property  in  his  own  name  and 
9ubse<]uently  selling  at  a  profit  to  his 
company,  but  i»t  is  a  case  m  which  the 
company  were  defrauded  of  a  right 
which  t«ey  themselves  had  of  purchas- 
ing the  property  in  the  first  instance. 
lit  is  necessary  now  also  to  refer  to  the 
transaction  in  respect  to  what  id  called 
the  back  property  before  considering 
what  connection  Kidney  had  with  these 
matters.     It  was  <iuite  clear  in  August, 

1902,  when  the  front  property  was  pur- 
chased, that  the  company  would  also 
require  the  back  property."  It  was  then 
known  to  Stableford,  and  mentioned  by 
him  to  Hand,  who  was  the  owner,  that 
the  conrpany  would  certainly  require 
that  property,  and  they  would  be  oblig- 
ed to  buy  it.  \yith  that  knowledge,  and 
undouflbtedily  with  the  object  of  after- 
wards selling  it  to  the  company.  Stable- 
ford  on  August  22,  1902,  purchased  this 
property  which  wat%  transferred  to  him 
on  January  12.  On  March  17  there  was 
a  meeting  of  the  directors  of  the  com- 
pany, and  it  was  then  decided  to  pur- 
chase this  property.  The  transfer  to 
the   company    took    place  on   April   20, 

1903.  Stalbleford  purchased  the  pro- 
perty for  £2.500,  and  he  sold  it  to  the 
company  for  £6,500.  Here  again  he 
made  a  profi.t  of  £4,000.  Now,  this  is 
a  case  which  in  the  fir.st  instance  the 
company  itself  were  not  entitled  to  buy 
this  property.  It  is  a  case  which  faills 
under  many  oi  the  auithorities  which 
have  been  cited  of  an  agent  whor^e 
duties  it  was  to  secure  for  his  principal 
upon  the  best  terms  certain  properties 


re<mired  by  his  principal,  and  he  bim- 
soil,  knowingly  and^  without  divulging 
the  facts  to  his  principal,  makes  a  profit 
out  of  his  principal.  Mr.  Pritchard 
said  he  rather  looked  upon  Stableford 
as  an  intermediary.  However,  the  main 
point  on  which  this  part  of  the  case 
turns  is  thi^:  Was  the'  company  aware 
that  Sitableford  was  making  a  profit? 
Mr.  Pritchard  tells  us  that  Stabile^ord 
told  him  positively  that  he  was  making 
nothing  out  of  the  transaction.  On  the 
only  point  on  which  he  might  have  set 
himself  right  by  deolarir^  that  he  was 
the  owner,  and  that  he  did  make  a 
profit,  in  which  case  the  company  would 
have  considered  their  position,  on  that 
important  point,  he  concealed  the  truth 
from  the  company.  This  transaction 
also  was  a  transaction  in  fraud  of  the 
company,  but,  as  far  as  Stableford  is 
concerned,  the  whole  of  these  transac- 
tions could  have  been  set  asdde  by  the 
company,  or  the  company  could  have 
demanded  from  Stableford  a  return  of 
all  such  prc^ts  as  he  made  at  the  ex- 
pense of  the  company.  Tlie  question 
arises :  What  connection  bad  Kidney 
with  these  transactions?  It  seems 
that  when  Stableford  made  the 
statement  that  the  option  with 
respect  to  the  first  property  belonged 
to  him,  and  that  he  had  exercised  it 
in  his  own  favour,  and  that  he  him- 
self was  entitled  to  receive  transfer  of 
the  property  as  purchaser,  that  state- 
ment was  <}ueetioned  by  the  sellers,  and 
the  Kellers  intimated  that  as  far  as  they 
were  concerned  they  had  been  dealin;^ 
with  the  company  and  not  with  Sitable- 
ford,  and  they  refused,  in  view  of  the 
option  which  they  had  given  to  the 
company,  to  pass  transfer  to  Stableford. 
unAess  the  company  intimated  to  them 
that  they  no  longer  availed  themselves 
of  their 'right  uniler  the  broker's  note. 
It  was  necessary,  therefore,  to  satitafy 
the  sellers  that  the  companv  had  re- 
nounced their  benefits  under  the  brok- 
er's note,  and  to  do  60  it  was  necessary 
to  obtain  a  document  which,  under  or- 
dinary circumstances,  would  have  to  be 
signed  by  a  director  and  by  the 
secretary.  Without  it.  it  would  not  be 
in  proper  form.  It  Decame  necessary, 
therefore,  to  obtain  the  aissistance  of 
Kidney  to  give  the  necessary  assuivmce 
to  the  seUers.  Now,  Kidney  was  per- 
fect y  well  aiware  what  the  question  was 
whicn  was  raised,  that  there  was  a  dis- 
pute between  the  sellers  and  Stableford, 
that  the  sellers  insisted  that  there  wa«  a 
certain  document  under  which  the  com- 
pany had  certain  rights,  and  they  inti- 
mated to  Kidney  that  tney  had  a  docu- 
ment in  their  possession,  and  that  it 
was  available  for  his  inspection.  Under 
these  circumstances.  Kidney  and  Stable- 
ford -wrate  this  Jertter  to  Reid  and  Ne- 
phew, who  are  the  solicitors  for  the 
sellers. 

Cape  Town,  November  20,  1902.  Gon- 
tIemen,~Trai]8fer,  HoaikmaQ  to  Stiible^ 


ti 


CAPE  TIMES"   LAW  REPORT^ 


m 


ford.    With   reference  to  the  letter  ad- 
dreeeod  to  you  on  13ih  inst.,  and  signed 
by   Mr.   William    Stablcford,    regarding 
the  purchase  of  property  known  ae  57, 
Strand-street,  Cape  Town,   we  beg      to 
state  that  thia  letter  represents  the  cor- 
rect facts.    This  property  was  bought  in 
th")  first  place  by  Mr.  Stableford  for  his 
own  account  and  benefit,  and   the  com- 
peny  has  now  decided  to  purchase     the 
property   from  Mr.  Stableford,   notwith- 
standing  the   wording  of   the     broker's 
note,   which  was  signed     some      twelve 
months  ago.       We     hereby     indemnify 
Messrs.    HoniknMin  and  Hand   from  all 
possible     consequencee     of    transferring 
that  pro^rty  to   Mr.   Wm.    Stabl^ord, 
and  admit  that  we  have  a   full   know- 
ledge of  the  whole  of  the  facts  and  cir- 
cumstances surrounding  the  case.  Please, 
therefore,  arrange   the   necessary  papers 
required  for  the     transfer     as     instruct- 
ed by  Mr.  Stableford  in  his  letter  above 
referred    to.    Yours    faithfully,    W.    L. 
Kidney,  secretary,   Wm.  Stableford  and 
Co.,  Ltd."  (with  seal  of  the  company). 
Here  are  most  positive  statements  made 
by  Kidney  in  conflict     wrth   the   truth. 
Now,  it  has  been  contended  on  behalf 
of  the  plaintiff  in  tk'ie  caee  that  that  let- 
ter was  innooently  written  by  Kidney, 
and   does  not   iinplioate  him  in    fraud. 
We  have  clear  evioence  that  where  state- 
ments are  made  recklessly  and  wrongly 
when  tbe  means  of  arriving  at  the  truth 
are  available,  such  statement  are  proof 
of  gross  neglect,  and  may  even  be  proof 
of  fraud.       Now,   the  statements      here 
made  are  that  Kidney  is  in  full  posses- 
sion of  all  the  facts  of  the  case.     If  that 
is  a  false  statement   it  is   a   fraudulent 
statement    and  if  he  was  in  full  posses- 
sion of  all  the  facts  of  the  ca<«e,  then  he 
must  have  known  without  any  doubt  that 
the  company  had  the  right  to  purchase 
this   property   for  £4,500,  and    that,    in 
writing  this  letter,  he  was  sacrificing  the 
property  of  the  company,  and  the  trans- 
sction  tben  entered  into  was,  under  all 
tbe  circumstances  of  the  case,  a  fraudu- 
lent  representation    to    the  sellers      by 
means  of  which  he  was  enabled  to  bring 
about  a  »ale  to  the  company,  a  result  of 
which  was  tbe  defrauding  of  the   com- 
pany of   the  sum  of   £2,000.    We  have 
the  clear&Bt   evidence    that  Kidney   had 
frequent   interviews  with  the  parties  to 
the  negotiations  that  took  plaoe  during 
November,   and  during  the  negotiations 
i(    was   made  quite   clear   to  him   what 
position  the  sellers  took  up,  and,  in  spite 
of  that,    he  took  upon  himself   to  stat<j 
that  there  was  a  mistake,  and  without 
his   instrumentality       this       transaction 
could  not  have  gone  through.    Before  I 
refer  to  the  bond,  I  would  refer  to  Kid- 
ney'a  c<H>nection  with  the  other  property. 
It  seema  that  at  the  time  when  Stable- 
ford purchased  the  other  property  he  was 
not   m  a   iXMition   to   pay  the   purchase 
price,  and  it  was  necessary  to  enter  into 
more  than  one  bond,  but  one  of  these 
bonds  wafl  made  in  favour  of  Kidney,  in 

1 1 


I  • 


which  it  appears  that  Kidney  did  pay 
certain  expenses,  and  did  make  certain 
advances  in  respect  of  which  he  got  this 
bond  of  £1,500.  But  there  is  an  item 
which  is  to  the  following  effect :  "  In- 
terest agreed  to  be  given  me  in  this  pro- 
perty against  the  sale  of  the  property, 
and  repayment  of  this  bond,  provided 
that  in  the  event  of  such  repayment  at 
least  £700  be  put  into  preference  shares." 
This  item  is  put  at  £700;  consequently, 
Kidney  is  credited  in  this  bond  with 
£700.  not  the  company,  and  it  went 
into  his  pocket,  and  he  \n  to  receive  that 
£700  at  the  time  of  the  rc-«ale  of  the 
property,  and  that  re-sale  was  certainly 
contemplated  by  Stableford  to  be  to  the 
company.  Upon  reference  to  the  evi- 
dence of  Mr.  Pritchard,  we  find  that  he 
said  that  Kidney  told  him  that  it  was 
his  duty  to  sign  as  a  director.  I  refer 
to  this  evidence  to  show  the  interest  that 
Kidney  took  in  both  these  transactions 
ill  order  to  get  them  through,  and  how 
he  was  interested  in  putting  the  com- 
pany in  funds  for  the  purpose  of  getting 
these  transactions  through.  One  effect 
of  these  transactions  going  through 
would  be  that  Kidney  would  be  the 
gainer  by  £700  cither  in  cash  or  in 
shares.  Then  on  the  Slst  January  steps 
were  taken  to  pass  transfer  of  what  was 
called  the  front  property  to  the  com- 
pany. It  then  appeared  that  the  com- 
pany required  some  assistance  to  get  the 
transactions  through,  and  they  obtained 
assistance  from  others,  but  also  from 
Kidney.  Kidney  came  forward  to  facili- 
tate matters  for  the  company.  The  re- 
sult of  his  assistance  was  this,  that  a 
certain  property  would  be  transferred  to 
the  company,  and  the  company  would 
pay  for  it  a  certain  amount  of  money. 
Now,  as  I  have  said  before,  the  sum  that 
the  company  was  going  to  pay  was  the 
result  of  a  fraudulent  transaction  on  the 
part  of  Stableford.  Stableford  was  to 
obtain  from  his  fraud  the  sum  of  £6,500. 
Kidney  comes  forward,  and,  as 
appears  on  the  face  of  the  bond, 
enables  the  company  to  put  in  the  pos- 
session of  Stableford  the  sum  of  £750. 
He  himself  would  be  fully  secured  for 
the  repayment  of  the  money,  and,  on 
the  otnor  hand,  this  money  would  go 
in'to  the  pocket  of  Sd^abloford.  Now, 
when  one  tra<'e6  the  connection  of  Kid- 
ney with  Stableford  in  all  these  trans- 
actions and  the  representations  he  made 
to  the  sellers,  Honikman  and  Hand,  and 
to  Pritchard  (the  direotor),  it  appears 
to  me  that  he  had  full  knowledge  of  all 
the  transactions  that  had  been  entered 
inrfco  by  Stafcleford,  and  with  the  objects 
w«ith  whioh  those  transac*tions  had  been 
entered  into.  Consequently  the  bond 
amounts  in  effect  to  this,  that  by  means 
of  it  the  company  was  enaibled  to  have 
funds  put  into  ils  possession  by  Kidney 
whioh  might  be  appropriated  by  Stable- 
ford, and  the  company  would  in  that 
respect  be  defrauded  of  that  amount. 
Now,  I  cannot  come  to  any  other  con- 


492 


<i 


CAPE  TIMES"  lAW  BEPORT8. 


olufiion   than    ihaii  this  bond    is  simply 
&  paj:*t  of  all  these  unlawful  transactions 
be^iveen   Stableford  and  Kidnev  on  the 
one  part  and  the  compauy  on  tne  other, 
by   which   certain  advantages  would  ac- 
crue  to    Stableford   and    some    indireot 
advantages       would      go      to     Kidney, 
Bfmong  others  the  eubstantial  advaniage 
of  £700.     Then  the  question  is  whether 
any  further   light  is  thrown   upon  Kid- 
ney's  actual    knowledge   of    wnat     wa£ 
bemg  done    by    Siaibleford    by    a  ledrter 
-wihioh  haa  been  put  in,  which  was  writ- 
ten at  the  time  when  Mr.  Close,  having 
become  suspicious  of  the  position  of  the 
parties,  ana  having  discovered  that  the 
company   had  bad  a  right   at   one  time 
wbi^  seemed  to  have  disap^ared  with 
respeot  to  the  purchoee  of  this  property, 
had    begun  to  question  Kidney.      After 
the  interview,  Kidney  writes  to  S^talble- 
ford :   *'  I  had  to  see  Mx.  GHose,  and  on 
the  afternoon  he   said,    *  Where  is  that 
lease;   have  you  found  it?'     I  smoothed 
him  over  as  much  as  I  could,  and  I  left 
him."    The  question  that  was  raised  was 
as  to  the  existence  of  this  broker's  note, 
upon  which  an  option  was  given  to  the 
company.     Kidney  does  not  make   any 
eSori  to  put  Mr.  Close  in  possession  of 
the    facts;    he   "amoothas    him   over" 
and  leaves  him.    He  si^pifies  by  this,  I 
(take  it,  that   he  loft   him  in  the   dark 
as  to  the  real  state  of  the  oase.    He  must 
(have  known  that  the  matter  in  reapeot 
of  which  he  left  him  in  the  dark  was 
a   matter   involving  fraud.       Upon  the 
finding  that  this  bond  is  merely  a  i>art 
of  a  number  of  transactions  which  were 
entered  into  for  the  purpose  of  defraud- 
ing   the  company   of    their   money,    it 
must  necessarily   follow   that  this   bond 
must  be  declared  invailid,   and,  if   it  is 
declared    invalid   uoon  that    ground,    it 
will  be  unnecessary  to  go  further   and 
inquire  whether,    as   a   matter  of   fact, 
there    is  any  sum    of    money   still  due 
upon  a  question  of  account  between  the 
parties.     Whether  Kidney  advanced  the 
£70i0   or   nob  does  not    matter,    because 
the  money  was  advanced   for  a  fraudu- 
lent purpose,  not  to  benefit  the   company, 
from  which  the  bond  was  obtained,  but 
to  benefit  Stableford,  who  was  commit- 
ting the  fraud  upon  the  company.    Upon 
the  second  plea,  the  question  was  raised 
as  to   whether  upon   the  accounts  there 
was  anything   due   by   the   company  to 
Kidney.      Voluminous      accounts     were 
gone    into,    but   the    results   were  not 
clear,  and  I  think  we  may  say  that  even 
in  tbe  mind  of  the  accountant  there  is 
no  certainty  as  to  the  general  state  of 
accounts  between  the  company  and  Kid- 
ney.  Supposing  there  is  an  indebtedness 
on  the  part  of  the  company  to  Kidney 
in   matters  wbioh  are  not  involved   in 
this    fraud,    that   question   wild    remain 
open  as  between  tlie  company  and  Kid- 
ney.     If  the   indebtedness  is  such  that 
it  is  also  affected    by  the  fraud,   then, 
of  course.  Kidney  cannot  take  advantage 
of  it,  but  if  it  18  found  on  the  state  of 


accounts  that  there  are  sums  due  whieb 
have  no  reference  to  this  particular 
transaction,  then  the  question  arises  as 
to  whether  Kidney  is  entitled  to  recover 
the  money  from  the^  company.  Whe- 
ther the  company  will  then  raise  the 
general  question  as  to  their  losses  of 
1)4,000  which  was  the  consequence  of 
Stableford's  oondnict.  aided  by  Kidney, 
is  another  question  which  is  not  now 
to  be  decided.  I  have  only  now  to  deal 
with  the  indetbtedneas  on  the  bond  it- 
self, and  the  validity  of  the  bond,  and 
upon  all  the  circum»tances  of  the  case 
I  come  to  the  conclusion  that  the  bond 
is  invalid,  and  that  consequently  no 
benefipt  can  be  taken  by  Cowling  under 
the  said  <bond.  Judgment  must  be  given 
for  the  defendants,   witli  costs. 

After  hearing  counsel  on  the  question 
of  the  costs  in  the  oro visional  case, 

Maasdorp,  J.,  said  the  order  as  to 
co&rts  must  include  the  costs  incurred  in 
the  provisional  case. 

fPlaintiff's  Attorneys:  Van  Zyi  and 
Buissinn^.  Defendant's :  Tredgold, 
Mclntyre  and  Biseet.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplby.] 


REVIEW. 


BEX  V.  CLOETE. 


{ 


1905. 
June  23rd. 


Hopley,  J.,  said  that  a  case  had 
come  before  him  for  review,  in  which  a 
man  named  Cloete  was  convicted  by  the 
A.R.M.  of  Calvinia  of  stock  theft,  and 
sentenced  to  six  months'  imprisonment. 
He       considered       that       under  all 

the  circumstances  of  the  oase  there 
was  room  for  a  bona-fide  mdstake  on  the 
part  of  the  accused  as  to  the  ownership 
of  the  donkey  he  was  alleged  to  have 
stolen.  Since  the  conviction  the  man 
had  been  in  gaol,  but  the  Court  wouhld 
now  order  that  the  conviction  be  quash- 
ed, and  would  direct  that  a  telegram 
be  sen*  to  CaJvinia  ordering  the  inunv^- 
diate  liberation  of  the  accuc^. 


''CAPE  TIMES"   LAW  REPORTS. 


493 


SUPREME  COURT 


[Before  the  Actiii<r  Chief  Justice  (the 
Hon.  Sir  John  Buchanan),  the 
Hon.  Mr.  Justice  Maasdobp.  and 
the  Hon.  Mr.  Justice  Hopley.] 


FBERMANTLE  V.  PAMA.      {j^^fgW 

Letting  and  hiring  —  Duties    of 
hirer. 

P.  F.  h€ul  hired  certain  wagons 
and  oxen  from  P,  and  others, 
icith  the  object  of  suh-letting 
them  to  the  Militwy.  He 
took  them  up  to  the  front  and 
handed  them  ooer  to  the 
Miliicuy  on  certain  terms.  He 
was  aftenearda  succeeded  hy 
his  brother  F.  F.  as  conductor. 
P.  F.  was  duly  jyaid  for  their 
iMe,  and  in  turn  settled  with  P. 
and  others.  After  some  months 
the  wagotis,  d^c,  were  dis- 
charged hy  the  Militaiy, 
F.  F.  and  P.  F.  faiUd  to 
return  them  to  their  oivners, 
as  they  held  that  their  responsi- 
bility  for  them  ceased  on  tJieir 
discharge.  P.  subsequently 
sued  F.  F.  and  P.  F.  in  the 
Magistraie's  Court  for  their 
return^  or  their  value,  and  for 
damages  for  illegal  detention. 
P.  F.  claimed  in  reconvention 
for  certain  moneys  which  he 
had  disbursed  on  behalf  of  P. 
The  yfagistrate  gave  Judgment 
for  the  defendants  in  conven- 
tion and  for  P.  F.  in  reconvene 
tion.  On  appeal,  the  E.  D. 
Court  reversed  this  judgment 
as  to  F.  F.  and  gave  judgment 
for  P.,  but  upheld  the  claim 
of  P.  F.  Against  that  judg- 
ment  F.  F.  now  appealed. 

Held,  affirming  the  judgment 
of  the  E.  D.  Court,  that  F.  F. 
W€u  bound  to  return  the  wagons 
and  oxen  to  P..  or  pay  value. 


This  was  an  appeal  from  a  judgmeirt 
of  the  Elastern  D^tricts  Court  brought 
by  the  plaintiff,  in  the  original  action, 
in  the  Magistrate's  Court,  Matatiele. 

The  matter  arose  out  of  a  transaction 
in  connection  with  a  wagon,  16  oxon,  and 
gear.  The  defendants  were  Percy  Wm. 
Fieemantle  and  Frederick  Charles  Free- 


mantle.  In  February  the  second  named 
defendant  engaged  transport  wagons  fur 
service  wrth  the  Forces  in  Natal,  and  he. 
goi  one  wagon,  16  oxen,  and  gear  from 
the  plaintiff,  a  native,  named  Maclean 
Pama.  The  wagon  and  so  forth  had 
been  used  by  the  military,  and  had  not 
been  returned  to  the  plaintiff.  He  sued 
the  two  defendantfi  in  the  Magistrate's 
Court,  his  claim  being  made  up  as  fol- 
lows: (1)  For  the  return  of  a  certain 
wagon  and  oxen,  etc.,  or  payment  of  the 
value  thereof,  £373  16s.;  (2)  for  £200. 
being  damages  sustained  by  plaintiff 
through  illegal  detention  of  the  ?aid 
wagon,  etc. ;  and  (3)  for  a  full  and  true 
account  of  all  moneys  received  by  de- 
fendants on  account  of  plaintiff  for  the 
hire  of  the  said  wagon  and  oxen,  and  of 
all  moneys  disbursed  by  them  on  behalf 
of  plaintiff,  supported  by  proper  vou.li- 
ers,  debate  of  such  account,  and  pay- 
ment of  such  sum  of  money  as  shall  be 
found  to  be  due  by  them  to  the  plaintiff 
in  respect  of  this  account.  Defendants, 
in  their  plea,  denied  that  they  were  in 
any  way  responsible  for  the  wagon  after 
it  had  left  the  Government  service. 
Tliey  also  said  that  accounts  wore  ren- 
dered to  the  said  plaintiff  of  all  moneys 
received  and  disbursed  by  them  in  re- 
spect of  the  said  wagon  monthly  as  up 
to  the  end  of  August,  1900,  that  from 
that  date  to  the  date  of  discharge  on 
November  23,  1900,  on  account  of  dis- 
bursements, and  stoppages,  which  will 
appear  on  reference  to  the  account  al- 
ready referred  to,  and  which  defendants 
hereb]^  tender,  no  money  was  due  to  the 
plaintiff,  but  on  the  other  hand  there 
remained  a  balance  of  £90  lis.  6d.,  due 
by  the  said  plaintiff  to  the  said  defend* 
ants.  Defendants  pleaded  not  indebted, 
and  prayed  that  plaintiff's  claim  may  be 
dismissed,  with  costs,  and  in  re- 
convention prayed  that  the  plaintiff 
may  be  adjudged  to  pay  them  the  sum  of 
£90  lis.  6a.,  as  and  being  the  balance 
due  to  them  as  per  account  referred  to, 
and  costs  of  suit. 

The  Magistrate's  judgment  wsis  as 
follows :  In  convention  that  the  Court 
considers  that  the  account  rendered  by 
defendant  is  satisfactory  except  as  far  as 
the  item  of  £9  is  concerned,  which  is 
elaimed  in  reconvention,  otherwise  judg- 
ment is  for  the  defendants.  In  recon- 
vention judgment  is  entered  for  plaintiffs 
in  reconvention  (defendants  in  case)  in 
the  sum  of  £81  lis.  6d.  Absolution 
from  the  instance  being  granted  as  re- 
gards the  £9  above  referred  to.  Eacu 
party  to  pay  their  own  costs. 

The  plaintiff  thereupon  took  the  case 
on  appeal  to  the  Eastern  Districts  Court, 
where  the  appeal  was  allowed,  with 
co^ts.  against  Fred  Preemantle,  the  judg- 
ment of  the  Court  below  was  reversed, 
judgment  was  given  for  plaintiff  for  the 
value  of  16  oxen  at  £16  16s.  each,  with 
costs,   as  against  Fred   Freemawtle,    the 

i'udgment  for  £81  lis.  6d.  in  favour  of 
'ercy  Freemantle  to  stand. 


494 


"CAPB  TIMES"  LAW  BEPOBTS. 


Against  this  iudgmont,  the  defendant, 
Fred  Freemantlo,  now  appealed. 

Mr.  Searle.  K.C.,  with  him  Mr.  P.  S. 
T.  Jones,  was  for  the  appellant;  Mr. 
McGregor  (with  him  Mr.  D.  Buch- 
anan) was  for  the  respondent. 

Mr.  Searle  said  it  would  appear  from 
the  evidence  th&t  the  Freemantles  aoted 
together  in  the  matter,  and  arntnged 
for  a  number  of  wagons  belonging  to 
certain  nutivee  to  go  to  the  front.  Coun- 
sel then  proceeded  to  read  the  terms  of 
ihe  coniraci  under  whiioh  the  wa^n 
went  off,  and  said  it  would  appear  that 
wagons  siaiited  in  February,  1900.  Percy 
Freemantle  went  off  first,  and  then 
Fred  Freemantle  followed.  In  Septem- 
ber and  Ooitorber  certain  oxen  were  sup- 
plied by  the  GoTernment  because  some 
of  these  particular  oxen  d^ed.  Wihere 
the  mdlitary  were  responsible  for  an 
animal  thtat  died,  it  was  the  practice  to 
give  a  certificate  to  the  driver.  When 
the  wagon  arrived  in  Dundee  with*  16 
or  12  oxen,  eight  were  taken  out  at 
Dundee  and  purt  into  a  wagon  of 
MoOanda's.  Th«t  left  either  four  or 
eight,  and  of  the  eigtht  five  came  back 
to  McCanda's  knaal.  The  military  paid 
comipeneation  for  three  oxen,  but  whe- 
ther the  three  were  out  of  McCanda's 
team  was  not  quite  clear.  The  plaintiff 
saw  the  oxen,  but  took  no  action,  and 
MoCanda  sold  them  to  McKenzie.  Free- 
mantle  got  compensaiiion  for  three  of 
the  oxen,  and  handed  it  to  the  plaintiff. 

[Maasdorp,  J. :  The  nine  oxen 
died.  THhey  were  replaced  at  the  ex- 
pense of  Pama,  and  no  compensation 
was  given?] 

Mr.  Searle :  No,  unless  it  be  said  that 
the  three  oxen  were  in  reepeot  of  the 
nine.  Continuin/g,  counsel  said  it  was 
clear  from  the  contract  if  any  oxen  died 
or  beoame  inefficient  the  oontractor  re- 
placed tliem  at  his  own  expense,  and 
no  compensation  would  be  allowed,  un- 
less the  oxen  were  disabled  or  died 
through  the  exigonoios  of  the  war.  TIhe 
K.D.  Court  did  not  hold  the  defendant 
reaponaible  for  bringing  the  oxen  back 
tc  Pama,  and  it  was  clear  there  was 
nothing  in  the  contract  to  that  effect. 
It  was  a  strong  point  in  favour  of  the 
deifendant  thait  the  driver,  who  was  the 
person  who  knew  everything  that  took 
place^  and  who  was  the  important  per- 
son m  the  case,  was  not  called.  The 
only  ground  upon  which  the  E.D.  Court 
found  thaA  Freemantle  was  liable  was 
because  these  things  happened  before 
the  discharge  of  the  wagon,  and  the 
Oourt    took    up    the    position    that    the 

S'ving  of  the  oatitle  to  the  military  ait 
undee  took  place  before  the  discharge 
of  the  wagon,  though  it  was  very  ob- 
.scure,  UfDon  the  evidence,  when  that 
actually  oappened.  By  the  exercise  of 
ordinary  care,  by  remaining  with  the 
wagon,  the  driver  and  leader  could 
have  prevented  the  loss. 
Mr.  MoGregror  was  not  called  upon. 


Buchanan,  A.  J.  C. :    A  native  named 
Maclean  Pama  sued  the  defendant  in  the 
Magistrate's  Court  at     Matatiele  in  an 
action  to  recover  a  wagon,  16    oxen,  and 
gear,  damages  and  an  account.      During 
the    war.    about   February,    1900,       the 
plaintiff  and  a  number  of  other  natives 
were   approached   by      the      defendant, 
Percy  Freemantle,  wnth  the  object     of 
getting  wagons  for  the  use  of  tno  mili- 
tary \v  Natal     Altogether  Percy  Free- 
mantle  acquired  11  wagons  from  differ- 
ent natives,   th-9o  wi-rc  taken  t««  Matai 
by  the  other  defendant,  Frederick  Free- 
mantle,  and  were  by  him  contracted  or 
hired  to  the  Imperial  Government.     The 
contract  entered  into  was  between  Free- 
mantle  and  the  Imperial     Government, 
the  natives  not  appearing  at  all.     In  the 
Magistrate's   Court,      some      difference 
arose,    as    the    contract   was  verbal,    as 
to  the  exact  terms  of  the  contract  be- 
tween  the  natives      and      Freemantles, 
and  the  Magistrace  held  that  the  version 
or  account    given     by  Freemantle     was 
the     more     correct.       The     Magistrate, 
in    his  reasons  for  judgment,   says  that 
the   defendant's   contention,   which      he 
upheld,       was       that   his    responsibility 
should  cease  when  the  wagons  were  dis- 
charged, and  that  he  was  to  get  £3  a 
montn   for    each    wagon    while    so   en- 
gaged, and   that  the   wagon  was  to   be 
entered  on  behalf  of  the  plaintiff  under 
the    military   lorm   of    contract.        The 
Magistrate  says  that  plaintiff's  evidence 
was       not  so  reliable    in    many  details, 
whereas  that  of  defendant's  was  Btraight- 
forward    and    supported   by    documents. 
Part  of  his  version,  it  appeara,  was  thai 
the  brother  of  defendant,  Percy    Free- 
mantle,  went  out  as  the  conductor     of 
these  wagons,  and  afterwards  Fred  Free- 
mantle himself,  and   that  these  wagons 
were  hired  to  the      Imperial      Govern- 
ment, and  were  used  for  some  months. 
During  this  time  the  money  paid  for  the 
hire  of  these  wagons  was  sent  to  Percy 
Freemantle,  who  settled  with  the  natives. 
In  the   action    Percy   Freemantle   made 
out  an  account  against  the  plaintiff,  on 
which  the   Magistrate  gives      judgment 
for  £81   against  the  plaintiff  in  the   ac- 
tion on  a  claim  in  reconvention.        But 
on  the   plaintiff.'8   claim  for  the   wagfon 
and   oxen^    the  Magistrate   gave      judg- 
ment for  the  defendant,  holaing  that  the 
plaintiff    was   not    entitled    to    recover. 
The  main  issue  on  which  the  Magistrate 
found  for  the  defendant  was  that  Free- 
mantle's  responsibility    ceased    for  these 
wagons  and  oxen  aa  soon  as  tlie  wagons 
and  oxen  were  discharged,  and  be  held 
that    Freemantle    could    not    be       held 
responsible    for    any    loss  that    plaintiff 
should  sustain,  and  that  defendant  would 
not  be  responsible  for  losses  which  were 
not  subject  to  compensation.      The  first 
p-irt      of    this  inference  drawn  by    tbe 
Magistrate   seems   to  be   altogether  un- 
'4>  lable.      Freemantle  was  the  conductor 
of  the  wagons  he  took  from  the  natives. 
He  hired  tbem  with  the  Imperial  Gk>T- 


i 


"CAPE  TIMBS"   lAW  REPORTS. 


495 


eriuneni,     and  he  oertainly  w«b  respon- 
siblo  to  account  to  the   owners   of   the 
waf^ons  as  lonsr  as  they  were  hired  by 
him  to  the  GoYemment.       The  Magis- 
trate said  that  when  the   wiigons   were 
i(ischarged.    Freemantle    was  no    longer 
liable.       At   this  stage  I  am  not     pre- 
pared to  differ  from  the  Magistrate,  but 
at  the    time    of    the    discharge    of   the 
^agooe,    it  was  Freemantle's    duty      to 
account  to  the  natives  for  their  wagons 
and  oxen,  and  he  did  not  do  so.      As  a 
fact,    he   did    not  seem  to  know    where 
the  waffons  were.       He  received  notice 
from  Messrs.    Raw   and   Ck).,  on   behalf 
of  the    Govehiment,    that    the    wagons 
were  discharged.     After  he  (Freemantle) 
returned   to   the   Transkei.  the      native 
Daturaliy  inquired  about  his  wagon,  but 
he  could  get  no  information  from  Free- 
mantle,     and    some    considerable   time — 
Dearly   two  years — elapsed   before     any- 
thing     was   done,    aiul   the  native  was 
foro^  into  bringing  his  action     against 
defendant.       The   case  having  been  de- 
cided against   him    in    the    Magistrate's 
Court,  plaintiff  appealed  to  the  Eastern 
Districts  Court,  and  the  Eastern  Districts 
Court  did  not  interfere  with  the  Magis- 
trate's  finding  on  the   ouestion   of    the 
account  nor  as  regards  tne  wagon  itself. 
The      wagon    was    left,    it  appears,    at 
Maritzburg,  and  it  seems  now  that  noti- 
fication was  given  by  Raw  and  Co.  that 
the  wagon  was  there.      Some  two  years 
after  the    wagon    was    left  there,    Raw 
and  Go.    offered   £30  for  it,  but     after- 
wards      it      became       very   much    the 
worse       for       exposure,        and       Raw 
and   Co.  sold    it.     and    they    hold    the 
prcceeds,    amounting  to  £16,  at  the  dis- 
posal of  the  person    who  may  be  found 
to  be  entitlea  to  the  same.    The  Magis- 
trate held  that  when  the  wagon  was  dis- 
charged,  Freemantle  was  no  longer  an- 
swerable   for    it.       The    E.D.    Court,    I 
tUnk,    very   properly    held    that    it  was 
Freemantle's   duty  as  conductor   to    ac- 
count for  the  whole  of  the  property  en- 
trusted to  him.       Ho  has  not  accounted 
for  the  wagon,  and  ho  gave  no  account 
of  the  16  oxen.    I  do  not  say  that  Froo 
mantle   was   absolutely  responsible      for 
these   oxen,   and  ^  had  ^  he   been    able    to 
show,   to  the  satisfaction    of  the  Court, 
that  through  no  fault  of  his,  throufrh  no 
negligence  on  his  part,  and  through  no 
carelessness   at  all,    these  oxen  had   be- 
come absolutely  lost  to  the  plaintiff,   it 
is  quite  possible  that  the  plaintiff  mig[ht 
have   had    no  cause  of   action,   but,    in- 
stead of  that,  Freeinantle  gives  no  ex- 
planation   of   any   kind,    he    knows   no- 
thing   at   all    about   them.       The   E.D. 
Court,  upon  this  evidence,  accepted  the 
finding  of  the  Magitftrate,  and  took  the 
view  of  the  witnesses,  which  the  Magis- 
trate took,   but,  on   Freemantle's      own 
evidence,  the  Court  found  that  Freeman- 
tle had  not  attempted  to  account     for 
these  oxen,   and  oonsequentlv,   as  agent 
of  the  plaintiff,  he  was  liable  for   their 
talue.      Thmo  is  no  cro«-appeal,     and 


thus  the  only  question  we  have  now  to 
decide  is  whether  the  E.D.  Court  was 
correci  in  giving  judgment  for  the  plain- 
tiff for  these  16  oxen.  Mr.  Soarle  has 
argued  the  case  very  fully,  and,  during 
the  course  of  his  argument,  has  remov- 
ed any  doubt.  I  had  in  q^y  mind  as 
to  the  number  of  oxen  to  be  accounted 
for.  In  my  opinion,  the  judgment  of 
the  E.D.  (*ourt  muart  be  sustained,  and 
the  appeal  will,  therefore,  be  dismissed, 
with  costs. 

Maasdorp,  J.,   and  Hopley,  J.,     con- 
curred. 

[Appellant's  attorneys:  Dold  and  Van 
Breda.     Respondent's:     Syfret,    Godlon 
ton,  and  Low.] 


[Before  the  Actinpr  Chief  Justice  (the 
Hon.  Sir  John  Buchanan)  and  the 
Hon.  Mr.  Justice  Hopley.] 


GENERAL      MOTIONS. 

ESTATK  V0B8TER    V.    VAN     f         UK).*). 

DEN  HEEVEK.  j  June  2Gth. 

Mr.  M.  Bissot  moved  on  behalf  of  ap- 
plicant (defendant  in  an  action  brought 
by  the  rtvi]X)ndent  in  respect  of  £Zi2, 
amount  of  a  legacy)  ft^r  leave  to  sign 
judgment  hy  reason  of  the  plaintiff's  do- 
fault  in  filing  her  declaration.  Mr. 
Searlc,  K.C.  (for  the  respondent),  op- 
posed the  application. 

Afi&davits  having  been  read  on  both 
sides, 

Mr.  Searlo  urged  that  the  delay  was 
due  to  one  John  Hamilton  Diepraem, 
an  attorney  of  this  Court,  having  left 
the  Colony.  There  was  no  disputio  as  to 
the  inheritance,  but  the  defendant  plead- 
ed that  there  was  a  set-off. 

Mr.  Birisct  contended  that  the  plain- 
tiff had  been  extremely  negligent 
throughout,  and  she  ought  not  now  to 
bo   allowed    to  remove  bar. 

The  Court  granted  an  order  for  the 
removal  of  bar,  and  directed  plaintiff  to 
file  her  declaration  on  or  before  the 
10th  July,  and  to  go  to  trial  on  15th 
August,  unless  a  further  order  of  Court 
bo  made,  respondent  to  pav  costs  of 
bar  and  removal  of  bar,  ana  of  this  ap- 
plication. 


BLACKER  V.  GARTER. 

Nuisance — Interdict. 

The  cloHp.  proximity  of  a  black- 
smithes  nhop  to  a  family  private 
rcmlence  is  not  per  se  a 
nn»8a7ice. 


Mr.  Searle,  K.C,  moved  on  behalf 
of  \V.  R.  Blacker,  of  Umtata,  for  an 
interdict        restraining    the    respondent, 


1 


49G 


«i 


CAPE  tlMKS"  LAW  ll«l>OlltS. 


Frank  Carter,  from  carrying  on  his  busi- 
ness of  a  farrier  and  blacbimith  in  the 
immediate  neijirhbourhood  of  the  appli- 
cant's house  by  reason  of  the  same  being 
a  nuisance.  Mr.  Gardiner  appeared 
for  the  respondent. 

The  affidavit  of  the  petitioner 
said  that  some  years  ago  he 
acquired  a  property  in  a  quiet  residen- 
tial neighbourhood,  which  he  estimated 
now  to  bo  worbh  £1.700  to  £2,000.  Re- 
spondent formerly  carried  on  his  business 
ill  another  part  of  the  town,  but  on 
the  change  of  ownership  of  that  property 
ho  removed  his  business  to  within  a  few 
yards  of  petitioner's  residence,  on  an 
erf  belonging  to  Mr.  C.  C.  Silberbauer. 
Petitioner  said  that  the  business  of  re- 
spondent was  removed  to  its  present  po- 
sition maliciously,  in  consequence  of 
the  petitioner  having  arranged  to  carry 
on  a  similar  busine.s8  where  respondent 
had  formerly  traded,  the  latter  having 
declined  to  pay  an  increased  rent  which 
had  been  demanded  by  the  new  owner. 
The  petitioner  further  said  that  respond- 
ent, by  his  operations,  rendered  his 
house  almost  uninhabitable  on  account  of 
the  noise  and  smell  from  the  shoeing. 
His  wife's  health  was,  as  a  consequence, 
suffering.  Other  supporting  affidavits 
were  also  read. 

The  answering  affidavit  of  the 
respondent  denied  that  he  was 
actuated  by  malice.  He  said  that  the 
premises  he  now  occupied  were  not  nearer 
dwelling-houses  than  those  that  he  had 
previously  occupied.  Ho  had  done  all 
he  could  to  render  the  carrying  on  of 
his  business  harmless  to  his  neighbours. 
Since  the  completion  of  his  premises  no 
nuisanoe  had  been  caused;  if  any  nuis- 
sanoe  had  been  caused  it  was  only  while 
the  building  was  incomplete,  and  was 
only  temporary.  He  admitted  that  on 
one  occasion  he  had  worked  beyond 
hours,  but  said  that  this  was  necessitat- 
ed by  imperative  reasons.  He  denied 
that  the  notice  in  the  "  Territorial 
News "  was  malicious,  or  was  intended 
to  injure  the  applicant,  and  said  he  was 
obliged  to  insert  the  notice  owing  to 
an  advertisement  by  the  applicant  that 
he  (respondent)  had  left  the  place.  F. 
T.  Qumn,  land  agent,  deposed  that 
Blacker  approached  him  to  purchase  the 
erven  in  question,  and  when  told  that 
Carter  had  obtained  a  lease  asked 
whether  the  lease  could  not  be  cancelled, 
BO  as  "  to  dust  Carter  down."  After- 
wards he  said  he  would  spend  £300  to 
ruin  Carter,  and  drive  him  out  of  the 
town.  Dr.  Robert  Welsh,  district  sur- 
geon, stated  that  he  had  visited  Carter's 
place  while  the  work  was  in  operation, 
and  had  failed  to  notice  any  nuisance 
caused  to  the  applicant.  He  did  not  con- 
sider that  the  smoke  or  the  hammering 
could  be  hurtful,  even  to  a  person  of 
delicate  health.  Other  affidavits  were 
read  to  the  effect  that  there  was  no 
nuisance. 


After  hearing  Mr.  Searle  in  argu- 
ment, 

Buohanan,  A.C.J*,  sadd  that  as 
to  the  law  applicable  to  the 
case  there  was  no  doubt — the 
c|uestion  had  been  fully  thraahed  out 
in  Holland  v.  Scott,  quoted  by  Mr. 
Searle,  and  were  the  facts  established 
there  would  be  no  difficulty  in  giving 
an  order  in  this  case.  But  there  was 
not  one  material  allegation  with  the  ex- 
ception of  the  locality  of  the  smithy's 
shop,  which  was  not  in  dispute,  and  the 
fact  of  the  locality  of  the  shop  was  not 
a  sufficient  ground  upon  which  to  grant 
an  order.  The  applicant  had  alleged 
certain  facts,  but  those  facts  must  bo 
established.  Had  the  allegations  on  af- 
fidavit been  made  by  witnessss,  so  that 
the  Court  could  see  which  set  of  witnesses 
were  speaking  the  truth,  there  would  bo 
no  difficulty  m  granting  an  order.  Un- 
der the  circumstances  no  order  could  be 
made,  and  the  parties  must  go  into 
the  principal  action.  Costs  of  the  ap- 
plication would  abide  the  result. 

Hopley,  J.,  concurred. 


SUPREME  COURT 


[  Before  the  Hon.  Mr.  Justice  Maasdokp.] 


GREEK    AND    WALTER    \ 
DU  PLESSIS. 


•  <  June  27th. 
I     „     28th. 

Surety  and  co-principal  debtor — 
Consideration  —  Conditional 
settlement. 

P.  had  signed  a  promissory 
note  for  £700  as  surely  and 
CO- priucijMil  debtor  in  favour 
of  0.  and  K,  Various  pay- 
ments reduced  this  debt  otrlng 
to  plaiiUiffs  to  £385.  Stibse- 
quently  O,  paid  off  £160. 
Que  D.,  who  owed  £75  to  O. 
and  K.,  ixtid  it  by  special 
agreeriient  to  W,  on  their 
behalf.  A  furlhei'  note  teas 
friveii  for  the  balance  of  £86, 
Plaintiffs  now  sued  defendani 
for  an  ouUtttnding  balance 
alleged  to  be  still  due  on  one 
of  die  notes  given  to  meet  a 
portiofi  of  the  original  note,' 


I 


(• 


CUPJE  TIMEft"  LAW  ftEPORTS. 


49? 


F.  pleaded  toant  of  connidera- 
Hon, 

Held,  Uiat  inasmuch  as  the 
plaintiffs  had  adcanced  the 
money  to  the  principal  debtors 
oa  the  faith  of  F.'s  suretyships 
he  had  received  full  considera- 
tion. 

Held  further,  that  his  obliga- 
tion in  respect  of  the  original 
note  had  been  fully  discharged 
by  the  note  for  £85,  inasmuch 
as  by  that  note  a  provisional 
settlement  teas  effected^  not- 
withstanding  thai  the  respective 
rights  of  K.  and  W.  as  between 
themselves  were  left  undeter- 
fnimd. 


This  was  an  action  brought  by  Greeff 
and  Walter,  formerly  agents  and  auc- 
tioneers, carrying  on  business  at  Laings- 
°^9.  against  Johannes  Fetrus  Francois 
du  Plessis.  farmer,  Sutherland  district, 
and  formerly  of  Laingsburg,  for  judg- 
ment for  £126,  balance  owing  on  a 
promissory  note  for  £500,  with  interest 
at  the  rate  of  8  per  cent,  and  costs  of 
suit 

.  ^'oni  the  pleadings,  it  appeared  that 
the  defendant  had  signed  certain  pro- 
missory notes  as  surety  and  oo-prin- 
c)pal  debtor.  There  were  three  notes 
wgned  by  the  defendant  on  different 
«w«8-  The  first  was  for  £700;  this 
^**  subsequently  renewed  for  an 
amount  of  £385  IOb.,  and  then  a  note 
J^r  »300  was  given  on  the  31&t  Decem- 
ber, 1903. 

Plaintiffs,   in     their   declaration,     said 

wemed  at  due  date,  and  that  they  were 
S^    legal      holders   thereof   for  va'no. 

fiu  ^^  ^*®®°  P*^*^  ^y  ^^  ^°  1  «half 
?nj  tlefendant  sums  amountiaj^  lo 
*;.*[*»  but  the  balance  of  £126  was 
«m  doe  and  owinp  by  defendant  to  the 
plaintiffs.  Notwithstanding  demands 
made  upon  him,  the  defendant  failed 
and  neglected  to  pay  the  sum  of  £126, 
^pepefoPB  plaintiffs  prayed  for  judgment 
^th  costs. 

.Defendant,  in  his  plea,   said  that     he 

«gned  a  note  for  £700  for  Odendal  and 

''^nge.  but  he  intended  to  sign  only  as 

surety,    and       he  was   ignorant  of    the 

meaning     and  effect  of  the  writing  on 

the  document,    and    had    since      ascor- 

tarned  that  he  had  signed  as  surety  and 

M-principal    debtor.         Thereafter,     by 

renewals,  the  note  was  reduced  to  £300, 

and  he  said  that   he  signed   that    noto 

on  the   distinct  agreement    with       the 

plaintiff  Walter  that   ho  should  roceivo 

the  money  from  the  debtors,     Odendal 

•,nd  Krige.      He  received  no  considera- 

tioa  for  gigning  the  note.       Thereafter 


the  debt  was  reduced  to  £85  lOh.  by 
the  debtors.  Defendant  signed  a 
note  for  the  balance  of  £85  10s.,  which 
had  become  null  and  void  on  the  7th 
January,  1904.  He  admitted  having 
refused  to  pay  the  amount  of  the  note, 
and  prayed  that  the  claim  should  be 
dismissed,   with  oosts. 

Plaintiffs,  in  their  replication,  denied 
that  thero  had  been  any  reduction  of 
the  indebtedness  of  £300  beyond  the 
amount  stated  in  their  declaration,  and 
said  that  the  note  of  £85  lOs.  was 
signed  by  the  defendant  as  the  differ- 
ence between  the  note  of  £500  and  the 
amount  of  the  debt  at  that  time  viz., 
£385  10s. 

Mr.  Close  (with  him  Mr.  P.  S.  T. 
Jones)  was  for  the  defendant;  Mr. 
Gardiner  (with  him  Mr.  Bayly)  was  for 
the  plaintiffs. 

Mr.  Close  applied  for  leave  to  amend 
the  plea  by  altering  the  figure  of  £386 
10s.  to  £346  10s. 

Mr.  Gardiner  consented,  and  the 
amendment  of  the  plea  was  allowed  by 
the  Court. 

Mr.  Gardiner  submitted  that  it  lay 
upon  the  defendant  to  open  the  case. 

Mr.  Close  said  that  the  defence  wa« 
that  no  consideration  was  given  to  de- 
fondant  for  signing  the  notes,  and  that 
there  was  now  no  amount  due  thorcon. 

Maasdorp,  J.,  said  that  the  defendant 
should  open   his   case. 

Johannes  Petrus     Franoois  du  Plessis 
(the  defendant)  said  that  in   July,  IQOiS, 
ho  signed  a  promissory  note  for  £700. 
Krige    and  Odendal    came  to    him    and 
asked  him    to    sign  the  note  as   surety, 
saying  that  they  came  from    Greeff  and 
Walter,  that   they  (Krige   and   Odendal) 
wanted  to  buy  sheep      through     Greeff 
and  Walter,  and  that  they  wanted  him 
to  be   surety    and  co-debtor.        Witness 
had       to   sign    as      suretv  to   get    the 
money.        Ho    was   told  tliat   the  three 
together  would  be  sureties,   and  that  ho 
need  not  be  afraid.      Witness  afterwards 
called  at  the  plaintiffs'    office,    and  saw 
Mr.   Walter  and  Mr.   Krige.     He  signed 
the  note  at  the  point     indicated  by  Mr. 
Walter.         Witness   did    not  stay    long 
in  the   oflSoe,  but  just   signed    and      re- 
turned     to  his    butcher's   shojj.         The 
document  was  not  read  out  to  him.    Wit- 
ness  could  not  read   English.        It    was 
not  explained  to  him  that  he  was  sign- 
ing as  surety  and  co-principal      debtor. 
In    August    he   paid  Greeff  and    Walter 
£122  10s.       He     bought  from   Odendal 
and  Krige  some  sheep  at  some  distance 
from    Laingsburg,  and  the  former  asked 
him  to  pay  Mr.   Walt-er  on  his  account. 
Lovonson  gave  him  a  cheque  for   £200 
for  sheep  he   had  bought  from  Odendal 
and   Krige.        On    the  28th    November 
witness  signed  a  further  note  for  £386 
10s..   which  fell  due  on  the  3l8t  Decem- 
ber.      No  explanation  of  the  note   was 
given  to  him.       On  the  31st    December 
Odendal  and  Krige    had   left      Laiogs- 


498 


»'CAPB  TIMES"  iiAW  REtOJlTS. 


burg.  When  the  note  became  due, 
the  local  bank  manager  aaw  witness, 
and  said  that  the  Odendal  and  Krige's 
bill  was  due.  Wituesa  said  that  Oden- 
dal and  Krige  were  not  at  home.  He 
saw  Mr.  Walter,  and  told  him  that  he 
could  not  do  anything  for  the  bill. 
Mr.  Walter  said  that  he  must  make  a 
new  bill  until  Odendal  and  Krige  re- 
turned, when  they  could  either  pay  it 
off  or  make  some  other  arrangement. 
Witness  signed  a  further  note  as  debtor 
for  £300.  Krige  returned  on  the  after- 
noon of  next  day.  and  witness  spoke 
to  him  about  the  note.  He  afterwards 
saw  Odendal.  They  all  wont  on  the 
7th  January,  1904,  to  see  Mr.  Walter, 
to  make  the  thing  right,  either  to  pay 
or  to  adopt  some  other  plan.  Prior 
to  that  time,  he  had  been  to  see  Mr. 
Walter  in  reference  to  a  cheque  to 
Krige  for  £250  from  Mr.  Van  Reenen. 
Krige  asked  witness  to  endorse  the 
cheque,  as  the  manager  of  the  bank 
wanted    another    signature.  Witness 

and  Mr.  Walter  went  to  the  bank;  Mr. 
Walter  told  Krige.  who  was  at  the 
bank,  that  he  would  wire  to  Van  Reenen. 
Mr,  Walter  wanted  Krige  to  pay  off 
the  £385  10s.  On  the  7th  January 
Krige,  Odendal,  Walter,  and  witness 
met  at  Mr.  Walter's  oflBce.  Walter 
spoke  about  the  balance  due  on  the 
bill  that  witness  had  signed.  He  said 
that  Dicker  had  paid  £75.  Odendal 
said  that  if  Krige  would  pay  £75.  he 
(Odendal)  would  pay  £176.  Krige  was 
to  make  his  payment  out  of  the  pro- 
ceeds of  the  Van  Reenen  cheque.  Krige 
consented.  Witness  signed  a  further 
note  for  the  balance  of  £85  lOs.  Oden- 
dal had  arranged  to  obtain  £150  from 
Groenewald.  The  Van  Reenen  cheque 
for  £250  was  taken  over  by  Walter, 
who  gave  back  to  Krige  a  cheque  for 
£175.  As  far  as  witness  knew,  there 
was  nothing  owing  on  the  other  bill. 
Witness  signed  the  final  bill  as  surety 
only;  Krige  also  signed  as  surety. 
Witness  told  Mr.  Walter  that  he  did 
not  know  that  he  had  been  cheated  into 
signing  as  co-principal  debtor,  and  that 
he    would    only    sign    as  surety  on    the 

final  bill.  ,      ^        x       -j 

Mr.  Close  (answering  the  Court)  said 
thafbdendal's  estate  had  been  seques- 
trated. No  demand  had  been  made 
on  defendant  for  the  £85  10s. 

Witness  (continuing  hie  evidence)  wjd 
that  after  the  iniorvicw  on  the  7th  Jan- 
uary they  all  wcjit  to  Groenewald's 
shop.  The  note  for  £385  10s.  was  taken 
across  by  Mr.  Walter,  who  said  that 
the  pavment  of  £150  would  finieh  the 
old  Dill,  because  a  new  bill  had  been 
made  for  £85  10s.  Groenewald  was 
Odendal's  brother-in-law,  and  was  anxi- 
ous to  release  him.  Odendal  received 
the  money  from  Groenewald,  and  paid 
it  over  to  Walter,  and,  the  note  being 
handed  to  hhn,  he  (Odendal)  tore  it  up. 
Witness  did  not  receive  the  note  for 
£300;  *he  le£t  tiiat  part  of  the  country 


in  August,  1904,  and  went  to  di<iriot 
Sutherland,  and  the  note  for  £300  es- 
caped his  notice.  He  aaw  Walter  fre- 
auently  up  to  Augiwt,  but  received  no 
emand  from  bim  for  the  £100  note. 
He  received  lettens  in  December,  1904, 
and  January,  1906,  from  Mr.  V«m  Nie- 
kerk.  The  first  referred  to  an  account 
for  £61,  bat  no  specific  mention  wae 
made  of  the  promissory  note  until  he 
received  a  letter  on  the  18th  January, 
1906.  In  February  he  received  a  sum- 
mons from  the  plaintiffs  for  £300.  no 
allowance  being  made  bringing  ao>wn 
the  claim  to  £126.  Witness  came  down 
to  Cape  Town,  and  went  with  his  attor- 
ney to  the  attorney  on  the  other  side, 
who  said  that  a  mistake  had  been  made, 
and  they  had  made  an  ajllowance  of 
£124.  ivjtncfis  also  disputed  items  on 
the  general  accouint.  Tnis  claim  on  the 
general  account  had  been  seUled  for 
£97. 

Cross-examined    by    Mr.       Gardiner: 
When  he  signed    tiie  note   for   £300  on 
the  31ist  Decemiber,   1903,  he  did  not  re- 
member signing  a  note  tor  £b5  lOs. 

Hendrik  J.  Odendal  said  thatt  in  July, 
1905,  Krige  and  ihe  were  in  partnership 
in   regard  to  certain  sheep  speculations. 
Ihey  were  in  want  of  money,   and  saw 
Mr.   Walter.     The   ladrter  eaid  the  bank 
wanted   anut<her    good  name    as  surety, 
and   told    witness   to   go    and    see     Mr. 
Plessis,  and  to  ask  him  to  act  as  surety. 
He   did  so,    and   Plessis  said  he  -would 
see  about  it.     Mr.  Walter  drew  up  the 
note    produced    for   £700   in    his    offico 
ahortly    afterwards,     and     Krige    subse- 
quently oa«me  to  t4ie  office  with  Pleasis. 
The  latter  asked  how  he  must  aign  the 
note,    and   Walter  directed   him,    sayi:.^ 
he  was   to  sign  as  surety.      Afterwards 
that  note  was   reduced     by     Levoson'ts 
£200  and  by  Plees<ie  paying    £122    lOls. 
Ple»sis  bought  sheep  from  witness,   but 
had  no  i^are  in  their  speculations.  Wit- 
no85   paid  a  furtlier  £50.     On   the  28th 
Noveniiber    the  balance   etood  at   £327, 
and  on  that  date  a  new  note  was  made 
out  for  £385,  which  comprised  the  £327 
10s.  and  interest  charges  and  oommission 
to  the  amount  of   £57  10s.      This  note 
was    made  payable  on  the  3l8t  Decem- 
ber.    In  January,  1904,  Plessis  spoke  to 
witness    about    ti}e  note,   being  anxious 
that  it  should  be   seMled   up.      Witness 
went  on  the  7th    January  with  Plessis 
and  Krige  to  see   Walter.      Krige  aaid 
his  cheque  had  been  stopped,  and   tiiat 
Walter  wanted  him  to  pay  £150  off  the 
note.        He    (Krige)    said  ho  could    not 
do  it,  as  the  money  was  no*  his.  Weaker 
said  iHe  ohe<iue  was  in  Krige's  favour, 
and  that  he  could  pay.      In  the   rcsuJt. 
witness  offered  to  pay  his  half  if  Krige 
paid  hoA,    and  Krige'  thereupon    agreed 
to  pav  £75.     Walter  agreed  to  take  this 
off   tlie    dieque.    and    witness    said    he 
would   pay  £150.     The  promissory  note 
for    £86    10s.    was  drawn   up    on     that. 
occasion.    This  sum  was  arrived  at  after 
I    deducting  from  the  previous  note  £75 


•*CAPE  TIMES"  LAW  tlEPORTS. 


499 


paid  by  Kriffe,  £150  to  be  p&id  by  wit- 
.  neas  acd  £75  paid  by  a  man  named 
Dicker,  in  payment  of  the  purohase 
price  of  certain  sheep.  This  left  £85 
Ite.,  for  wiiioh  a  note  wae  then  drawn 
up.  Witnee3  aaid  ihe  would  take  the 
bftlance  (the  £85^  on  his  own  shoulders, 
and  he  signed  the  note  for  thai  amount, 
Krige  and  Pleasis  signing  as  sureties. 
Witness  went  to  Groenewald's  office  with 
Walter  and  Pleasis.  Groenewald  asked 
"if  Odendal  pays  this  £150,  is  he  finish- 
ed with  this  Bill  (the  bill  for  £385)?" 
and  Walter  replied,  "Yes."  Groene- 
waI4  thereupon  paid  the  money,  and 
Walter  gave  the  note  to  witness.  He 
(witness)  tore  it  up.  On  the  ISth  Jan- 
uary witness  got  a  demand  for  the  £85. 
By  that  time  ihe  had  become  insol* 
▼ent. 

WilHam  George  Dicker,  formerly  a 
general  dealer  at  Laingsburg,  said  that 
in  1903  he  bought  100  sheep  from  Oden- 
dal ai  £1  4fs.  6d.  each,  and  he  made 
payments  amounting  to  £75  to  Walter 
on  the  sheep  account  of  Odendal  and 
Krige.  WaHer  said  that  it  was  on 
account  of  the  bill  of  £700.  Witneeu 
tried  before  his  insolvency  to  get  a  state- 
ment of  his  account  from  Walter,  but 
he  had  not  succeeded. 

Johannes  Stohanus  Krige,  partner  in 
the  sheep  trant^action ;    Jacobus  Groene- 
wald,   of     Laingsburg;    and     Hendrick 
Groenewald  (brother  of  the  previous  wit- 
nee^).    ako   gave   evidence   for    the    de- 
fence. 
Mr.  Close  closed  his  case. 
John    Orlando   Waker,      formerly      a 
member  of  the  firm  of  Greeff  and  Wal- 
ter,   now  dissolved,  was  then  called    by 
Mr.   Gardiner,     lie  said  that  Du  Plessis 
was  fully  aware  when  he  signed  the  bill 
for  £700  that   he  was  signing  as  surety 
and  co-principal  debtor.      Witne«  tran- 
slated the  note  to  Du  Plessis  into  Dutch. 
He  received  cheques  from  Odendal  and 
others  and   then    there    was   a   balance 
owing  of  £385  ICfe.     Defendant  brought 
Krige  and  Odendal  to  his  office  on  the 
28th    Noveanber,    and     he     (defendant) 
signed    a  bill  for  £385   lOs.      That   bill 
fell  due  on  the  Slat  December.    Witness 
received  from  Dicker  a  payment  of  £40 
on    the    14-fh    December    on    account  of 
ishop>o.   but   this    had  nothing  at    all   to 
do  with    the   bill   in  question.      He  was 
aiHhorised  to  place   the   cheque  to  the 
credit   of  Odendal.      The    £40  payment 
sfaottld  not  go  off  against  the  bill.     Mr. 
Pope,  manager  of  the  bank,  took  up  the 
po-ition   that    he    would   not  renew  the 
note    unless   a   substantial  portion  were 
paid    up.        Witness    paid    a    cheque   of 
£385    l(h.  into  the  bank,  and  the  bank 
gave    him   a    creodt  for   £300,   £85  10*. 
thus  being  paid  off  the  bill.     Du  Plessis 
fiad  in   the  meantime  given    a  bill    for 
£300.      As  to  Dicker's  payment  of  £24, 
that  amount  was  credited  as  part  of  the 
£174    allowed   by   plaintiffs  as   a   credit 
a«min^   the  hill  of  £300.     On  the   7th 
January  Groenewald   paid  £150  on  be* 


half  of  Odendal.  This  waa  credited  in 
the  declaration.  As  to  the  Van  Reenen 
cheque  for  £250,  the  oheque  was  de- 
posited in  the  plaintiffs*  account,  with  a 
stipulation  that  it  ehould  not  be  oper- 
ated on  pending  inquiries  to  be  made 
from  Van  Reenen  as  to  whether  this 
was  his  money.  Krige,  to  whom  the 
cheque  was  mnde  payable,  agreed  to 
this.  Van  Reenen  wrote  saymg  that 
the  money  was  his.  Witness  orew  a 
cheque  in  favour  of  Krige  for  £175,  it 
being  understood  that  tne  balance  of 
£75  should  be  held  until  Van  Reenen 
came  up.  Krige  declined  to  let  them 
have  £(5  towards  the  discharge  of  the 
bill.  Van  Reenen  subsequently  came 
and  denrajided  his  money,  and  eventu- 
ally it  was  arranged  that  he  should  lend 
witness  the  amount  of  £75.  W^itness 
gave  Van  Reenen  a  promisory  note 
for  £75.  and  he  then  went  and  told  Du 
Plessis  thait  he  had  had  to  give  Van 
Reenen  a  promissory  note.  Witness 
had  since  paid  the  sum  of  £75  to  Van 
Reenen. 

Mr.  Close  cros«-examined  the  witness 
at  some  length. 

Re-examdned:  lie  said  that  on  the 
note  for  £385  lOs.  there  did  not  appear  a 
sum  of  £75,  as  having  been  paid.  There 
was  only  the  £300  duly  written  off. 

Herbert  J.  R.  Pope,  manager  of  the 
Standard  Bank,  Laingsburg,  put  in  a 
statement  as  to  the  bills  of  Greeff  and 
Walter,  ditficounted  bj  the  Bank.  He 
stated  that  he  explamed  to  Du  Plessis, 
when  he  signed  the  £700  note,  what  his 
liability  would  be.  The  sum  of  £75  re- 
maining in  the  bank  from  the  Van 
Reenen  oheque  to  Krige  for  £250  was 
treated  as  being  in  trust  until  Mr.  Van 
Reenen  came  up  and  gave  directions. 
Witness  gave  Mr.  Van  Reenen  a  guar- 
antee that  the  money  would  be  safe,  and. 
although  standing  in  the  account  of 
Greeff  and  Walter,  would  not  be  oper- 
ated upon. 

John  Adrian  van  Reenen,  of  Laingr- 
burg,  said  that  at  the  beginning  of  1904 
ho  lived  at  Beaufort.  Witness  endorsed 
a  cheque  drawn  by  Moore  in  favour  of 
Krige.  The  cheque  was  sent  to  Krige 
in  order  to  buy  stock,  but  Krige  had  no 
authority  to  use  the  money  to  pay  off 
any  promissory  note.  Witness  advanc- 
ed to  Greeff  and  Walter  the  sum  of  £75, 
which  had  been  left  in  the  bank  to  their 
credit,  as  portion  of  the  cheque.  The 
money  had  been  repaid  to  him.  In  re- 
gard to  the  sum  of  £175,  which  Krige 
drew,  witness  had  since  received  stock 
from  Krige  to  the  value  of  £175. 

Rufus  G.  R.  MacLfCod,  Capo  Town, 
plaintiffs'   attorney,    was  also  called. 

Mr.  Gardiner  closed  his  case,  and  hav- 
ing been  heard  in  argument,  without 
calling  on  Mr.  Close, 

Maasdorp,  J.,  said  there  seem- 
ed to  be  a  good  deal  of  con- 
flict of  evidence  in  this  case,  but  I  have 
come  to  the  conclusion  that  there  is  not 
ao  much  a  oonfiict  of  evidence  upon  the 


BOO 


M 


I      1 


CAPS  TIMS8*'  LAW  RBPORM. 


fact«  as  a  difFerenoe  oF  opinion  on  the 
legal  righi^  of  the  parties.       The  agree- 
ment to  become  surety  and  co-principai 
debtor  endorsed  upon  this  note  of  £700, 
was  signed  by  the  defendant,  and  he  con- 
sefjuentlv  is  liable  both  as  surety  and  oo- 
bnncipHl   debtor.       His   contention  that 
lie  waa  liable  as  surety  and  nothing  more 
k   based  upon   a  mistaken  view  of     his 
responsibility.     Then  there   is  a   further 
detence  set  up,  that  he  received  no  con- 
sideration.      That,  again,   is  a  bona  fide 
Tiew  taken  by  the  dt>fendant  in  the  case, 
but  it  is  not  a  correcTt  legal  view.    There 
is    abundant  consideration    given,      and 
the  fact  that,  upon  his  becoming  surety, 
the  money  was  advanced  by  the  plain- 
tiffs to    the  principal    debtors    wa«  suffi- 
cient consideration  to  the   defendant  in 
this  case.       These      two      defences   are, 
therefore     disposed    t>f.    The    defendant 
further  pleads  that,  whatever  his  indebt- 
edneos  to  the  plaintiff,   it  has  been  fu'ly 
settled.       Her^,   again.   I  think,    on  the 
part  of  the  defennant,    he  has   taken    a 
mistaken  view  of  certain  of  the  transac- 
tions which  took  place  betweei  the  par- 
ties.      The   defence     se^       up     h   that 
on     the       7th     January       the      parties 
to  the  transaction  met  and  a  full  settle- 
ment of  the  indebtedness  took      place. 
Now,    it   would   appear    that   upon    the 
31st  December  a  su.*n  of  £385  was  due 
by    Du    Plessia,    Kiige,     and     Odendal 
as  co-principal  debtors,  each  in  Mlidum 
upon  the  documents  that  passed  between 
them.     That   indebtedness  continued   to 
exist    on    the    7th    January.       For    the 
moment  I  will  leave  out  of  consideration 
the  question  upon  what  particular  docu- 
ment that  is  due.     On  tne  7th  January 
the  parties  met  to  settle  the  indebtedness, 
and  it  is  admitted  that  Odendal  paid  in 
cash  £150  off  that  amount,  and  the  de- 
fendant says  that  at  that  time  they  had 
already,    through   Dicker,     paid   £75  to 
the  plaintiff,  and  that  that  was  treated  as 
a  further   set-off.      As   to  that  amount, 
a  conflict  of  opinion  again  arose.     There 
is   no   doubt   that   the  money   that  was 
paid  by  Dicker  to  the  plaintiffs  was  the 
money  of  Krige  and  Odendal ;  it  was  not 
OdendaKs  money  alone.     It  was  agreed 
that    the    £75,    instead    of    being    paid 
over  to  Krige  and   Odendal,  should  be 
paid    to    Walter.     It.    therefore,    consti- 
tuted a  pavinent  of  the  moneys  of  Krige 
and  Odendlal  into  the  hands  of  Walter. 
I    am   quite  satisfied,   whether      Walter 
knew  it  or  not,  that  Dicker's  instructions 
were   that    it  was   to   go  to   pay   Krige 
and  Odendal's  debts.     That  will  dispose 
of  that  item,  without  charging  either  of 
the  parties  with  having  been   guilty  of 
fraud.       The   monev    was   obtained    by 
Walter,  and  it  should  have  gone  to  the 
account  of  Krige  and  Odendal ;  the  only 
joint  account  they   had    was   upon   this 
promissory  note.     A  sum  of  £75  still  re- 
mains due.     Upon  that  particular  point 
of  the  case  there  may  be  some  difficultv 
in   ascertaining   what  exactly   the   posi- 
tion of  Krige  and  Walter  may  be,  but 


there  is  no  difficulty  in  aaoertaining 
what  the  result  of  their  agreement  was 
u|K>n  the  promissorv  note.  It  appears 
that  Krige  held  a  cheque  for  a  certain 
amount  for  a  special  purpose.  Walter, 
who  at  one  time,  seemed  to  be  under  the 
impression  that  it  was  really  Krige's 
own  money,  thought  he  should  have  it, 
but  Krige  was  unwilling  that  it  should 
go  into  Walter's  hands.  However,  at 
that  meeting,  whatever  the  doubts  in  the 
parties'  minds  may  be,  Walter  did  in- 
sist that  he  ought  to  have  a  portion  of 
that  money,  and  he  seemed  to  prestf 
Krige  to  get  him  to  come  over  to  his 
view,  that  he  might  let  him  have  it,  I 
won't  say  to  defraud  somebody,  but 
really  to  nnd  the  position  of  the  parties. 
Ultimately,  this  arrangement  was  come 
to:  **  This  money  is  standing  in  my  ac- 
count now  in  the  bank ;  let  me  have  it, 
and  if  a  question  afterwards  arises  with 
Van  Reenen  the  Question  will  bo  set 
right."  The  conclusion  I  have  come 
to  is  that  it  was  to  that  extent  a  con- 
ditional settlement  of  the  note  for  that 
amount,  onl^  leaving  open  the  question 
between  Krigo  and  Walter  and  closing 
the  liability  of  all  the  parties  so  far 
as  the  note  is  oonoerneci.  There  was, 
therefore,  a  settlement  made  of  £300, 
leaving  £85  due,  and  a  promissory  note 
was  given  for  that  amount.  There  was 
consequently  a  full  settlement  of  £385 
It  does  not  matter  whether  it  is  upon 
the  £300  note  or  the  £385  note,  to  make 
the  legal  position  quite  clear  that  the 
£300  note  was  simply  given  to  tide  over 
the  period  of  absence,  and  that  the 
bank  properly  insisted  upon  getting 
further  securities  because  the  note  was 
overdue.  The  bank  got  the  £300,  and 
as  far  as  W^alter  was  concerned  it  was 
merely  to  tide  over  the  period  till 
Odendal  and  Krige  returned,  when  the 
£385  would  bo  fully  settled  irrespective 
of  this  additional  security,  and  that  is 
how  the  £300  note  came  into  existence. 
Whatever  view  we  take  of  this  case,  if 
it  be  onoe  held  that  £150  and  two 
amounts  of  £75  were  appropriated  to 
the  payment  of  this  debt  to  Walter  on 
the  7th  January,  the  question  is  disposed 
of  My  finding,  therefore,  upon  the 
plea  of  settlement  is  that  a  settlement 
was  effected  of  this  amount  in  the  way 
contended  for  by  the  defendant  in  this 
case,  and  judgment  will  be  entered  for 
the  defoncfant  with  costs. 
On  the  application  of  Mr.  Close, 
His  Lordship  allowed  the  defendant's 
expenses  as  a  necessary  witne^. 

[PUintiff'fi  Attorney:    R.  G.  McLeod. 
Defendant's:    Wahl  and  Fuller.] 


"CAPE  TIMES »'   LAW  REPORTS. 


501 


SUPREME  COURT 


FIRST    DIVISION. 


[ Before  the  Hon.  Mr.  Justice  M aasdobp.  ] 


COOllER  V.  COOMBR. 


f       VJOo. 
(June  28th. 

This  was  an  action  brought  by  Charles 
James  Coomer,  of  Cape  Town,  against 
his  wife,  Gertrude  Coomer,  of  Wood- 
stock, for  restitution  of  conjugal  rights, 
failing  which  a  divorce  and  forfeiture 
of  the  benefits  under  the  ante-nuptial 
contract,  on  the  ground  of  defendant's 
malicious  desertion.  Mr.  Sutton  was  for 
the  plaintiff;  defendant  had  been  barred 
from  pleading. 

William  Thomas  Birch,  clerk  in 
charge  of  the  Marriage  Register, 
Colonial  Office,  gave  formal  evidence  as 
to  the  registration  of  the  marriage. 

Charles  James  Coomer  (the  plaintiff) 
said  he  was   married  to  the   defendant 
on  the  8th  February,  1905,  at  St.  Mary's 
Church,  Woodstock.     The  marriage  was 
by  antenuptial  contract,  under  which  he 
agreed  to  settle  a  life  policv  upon  de- 
fendant  for   £300.     He   had 'not   ceded 
the  policy.    They  lived  happily  together 
lor  a  month.       Then  a  row  took  place 
over  some  stout  which  his  wife's  mother 
had  sent  down   to  the  house.     Another 
row  took  place  a  fortnight  afterwards. 
His  wife  then   left,   and    had  not  since 
returned  to  him.     She   was  now   living 
with  her  parents,  and  had  declared  to 
witness  that  she  would  not  return  to  him 
although  he  had  asked  her  to  do  so.     He 
had  received    a    letter    from    his   wife's 
attorneys,    Messrs.    W.    K    Moore   and 
Son,  in  which  she  alleged  that  he  had 
treated  her  cruelly,  and  that  she  did  not 
jntend      to   return    to    him.        Witness 
denied  the  charge  of  cruelty.     Witness 
°ad  returned   to  his  wife  her  wedding 
presents. 

Decree  of  restitution  granted,  defen- 
oant  to  return  to  the  plaintiff  on  or 
before  the  15th  July,  failing  which  to 
show  cause  on  the  Ist  August  in  terms 
of  the  declaration. 
Po9tea  (August  1). 
Rule  made  absolute. 


COLONIAL  GOVERNMENT  V.  SILVER. 

Lunatic— Husband's  liability  for 
maintenance  of  wife  in  an 
asyium—Act  1   of  1897,  sec. 

S,  hul  nif(af/f(l  to  juxif  ut  the 
rate  of  4it.  6d.  a  day  for  the 
maitilemnice  of  his  wife  in  a 
lunatic  aayluin^  but  atihse- 
^uefUy  finding  himself  unable 


to  pay  that  sum  he  wished  to 
vary  his  contract  by  ^wy</<^ 
less. 

Held,  that  as  his  contract  was 
not  for  any  definite  lime^  he 
could  not  he  sued  thereon. 

Held  further,  that  by  Sec.  69 
of  Act  1  of  1897,  he  teas 
liable  fw  the  actmd  cost  of  his 
wife's  maintenance. 


This  wie  an  action  brought  by  the 
Colonial  Government  for  the  recovery 
of  the  sum  of  £92  7s.  6d.,  being  the 
maintenance  chargeable  by  the  Valken- 
berg  Asylum  for  the  keep  of  Lizzie 
Silver,  the  wife  of  the  defendant. 

The  declaration  set  out  that  on  May 
31,  1901,  the  defendant  undertook,  in 
cotwiderainon  of  the  admission  of  his 
wife  to  the  asylum,  to  pay  the  sum  of 
4a.  6d.  per  diem.  Defendant  had  made 
certain  payments,  and  a  balance  wac 
left  of  £92  78.  6d.,  for  which  the  Gov- 
ernment now  asked  judgment.  This 
sum  covered  the  payments  due  from 
January  14,  1902,  to  February  28,   1903. 

The  defendant,  in  his  plea,  stated 
that>  he  paid  the  sum  of  48.  6d.  per 
diem  until  January  13,  1902,  on  which 
date  he  notified  the  Government  that 
the  contract  was  terminated,  and  offered 
to  leave  his  wife  in  the  asylum,  if  the 
Government  would  agree  to  accept  her 
at  the  rate  of  Is.  per  diem,  which  wa« 
all  he  could  afford  to  pay.  The  Gov- 
ernment declined  to  accept  the  offer, 
and  kept  his  wife  in  the  asylum  there- 
after without  his  consent,  and  at  their 
owK  risk  and  expense. 
^  Mr.  Nightingale  appeared  for  the 
Government ;  defendant  apfx^ared  in  per- 
son. 

A  olerk  at  the  Valkenberg  Asylum 
deposed  as  to  an  agreement  (produced), 
dated  May  30,  the  terms  of  which  were 
that  defendant  undertook  to  pay  4«.  6d. 
per  diem  for  the  maintenance  of  his 
wife.  The  woman  was  admitted  on 
May  21,  1901,  and  was  there  still,  an 
order  of  Court  having  been  made  cer- 
tifying her  to  be  a  lunatic.  Payments 
were  duly  made  in  terms  of  the  agree- 
ment up  to  November,  1901,  and  a  sura 
of  £10  was  subsequently  paid  in  January, 
1902.  The  contract  had  never  been 
varied,  though  defendant  had  requested 
that  the  sum  should  be  reduced  to  Is. 
per  day.  He  was,  however,  informed 
that  the  rate  must  remain  as  originally 
fixed.  Witness  produced  lettera  to  thia 
effect. 

Mr.  Nightingale  submitted  that  it 
was  for  the  defendant  to  prove  that  the 
agreement  had  been  varied. 

In  cross-examination  by  th^  defendant, 
the  witness  said  he  had  written  a  de- 
mand to  the  defendant,  addressed  to  bis 
P.O.  box,  on  three  occasions  last  year. 


602 


«'CAPB  TIMES"  lAW  &EPOBTB. 


By  Mr.  Nightingale:  The  letters  ad- 
dressed to  the  P.O.  box  were  not  re- 
turned. 

By  the  Court :  Defendant  wrote  asking 
that  the  payment  should  be  reduced  to 
Is.  per  diem.  Witness  was  not  aware 
that  defendant  asked  that  his  wife 
should  be  discharged  if  that  order  was 
not  accepted. 

[Maaadorp,  J. :  Was  her  condition  such 
that  she  could  go  out  at  the  time  de- 
fendant offered  to  pay  the  Is.?  Was 
she  sane  at  that  time?] 

Witness :   No ;  she  was  not  sane. 

Maaadorp.  J.,  said  the  question  was 
whether  the  defendant  had  put  an  end 
to  hifl  contract  or  not.  If  not  the 
Government  were  entitled  to  recover 
the  charges  incurred  in  her  niaintenance. 

The  witness  (recalled)  said  that  the 
sum  of  4s.  6d.  per  day  would  only  just 
cover  the  cost  ot  maintenance. 

Cross-examined  by  defendant:  There 
were  patients  in  the  asylum  who  were 
paying  Is.  per  day.  Defendant  agreed 
to  find  the  woman's  clothing  as  well  as 
to  pay  4s.  6d.  a  day. 

Maasdorp,  J.,  said  the  Government 
could  not  sue  upon  the  contract.  The 
declaration  would  have  to  be  amended 
eo  as  to  moke  the  claim  one  for  ex- 
penses incurred. 

On  the'  application  of  Mr.  Nightingale, 
leave  was  j^iven  to  amend  the  declara- 
tion aocordmgly. 

Maasdorp,  J.,  told  defendant  that  he 
was  liable  for  nis  wife's  maintenance. 

Defendant  stated,  on  oath,  that  at  the 
time  he  agreed  to  pay  4s.  6d.  he  was 
in  prosperous  circumstances,  having 
two  restaurants.  He  had  no  means  at 
present.  He  offered,  of  his  own  free 
will,  to  pay  the  4s.  6d.  per  day  at  tbe 
time  his  wife  was  taken  to  the  asylum, 
and  he  had  kept  up  the  payments  for 
as  long  as  he  was  able.  He  had  to 
maintain  a  child  who  was  being  educat- 
ed in  England.  He  was  not  in  a  posi- 
tion to  pay  more  than  Is.   per  day. 

Cross-examined  by  Mr.  Night- 
ingale :  He  had  owned  large 
properties  in  Gape  Town,  but  at 
present  had  no  means.  He  had  been 
convicted  in  respect  of  the  keeping  of  a 
brothel,  from  which  he  had  received 
rents.  He  was  not  at  present  interested 
in  any  property  in  Cape  Town.  Ho 
was  a  partner  in  the  Caledon -street 
baths,  from  which  he  received  about 
£10  a  month.  He  did  not  own  property 
in  Bloemfontein  or  Johannesburg. 

Maasdorp,  J.,  said  that  the  plaintiff 
sued  upon  a  contract  entered  into  on 
the  31st  May,  1901,  whereby  the  defend- 
ant undertook  to  contribute  towards  the 
niaintenance  of  his  wife  the  sum  of  4s. 
6d.  per  day.  In  his  opinion,  it  was 
quite  within  the  power  of  the  defendant 
to  purt  an  end  to  this  contract,  when  he 
was  no  longer  desirous  of  abiding  by  it, 
because  the  period  during  which  the 
agreement  should  continue  was  not  fixed. 


But  notwithstanding  that  the  obligation 
under  the  contract  ceased  upon  the  de- 
fendant giving  notice  to  terminate  it,  it 
appeared  that  under  section  69  of  Act  1 
of  1897.  it  WBB  provided  that :  *'  When 
any  person  shall  be  detained  under  the 
provisions  of  this  Act  in  any  Asylum,  the 
maintenance  of  such  person  shall  be  de 
frayed  out  of  the  Colonial  revenues, 
provided,  always,  that  the  sum  so  paid 
may  be  recovered  from  any  person  liable 
by  law  to  contribute  to  the  maintenance 
of  such  detained  pereon."  Now,  in  law 
there  was  an  obligation  upon  the  defend- 
ant to  contribute  towards  the  mainten- 
anoe  of  his  wife.  The  expenses  of  her 
maintenance  at  the  asylum  had  been  de- 
fiayed  out  of  the  Colonial  revenues,  and 
the  clerk  had  srtated  in  his  evidence  that 
the  sum  so  defrayed  by  the  Government 
amounted  to  not  less  than  48.  6d.  per  day. 
The  Government  was,  therefore,  entitled 
now  to  recover  this  money  from  the  hus- 
band of  the  lunatic.  The  husband  said 
that  he  was  not  m  a  position  to  pay  that 
amount,  but  that  question  did  not  ariftO 
for  decision  now.  The  money  having 
been  expended,  and  the  defendant  being 
liable,  the  Government  had  the  right  to 
sue  him  for  the  sums  disbursed  by  them. 
The  q^uestion  of  the  defendant's  ability 
to  satisfy  the  judgment  might  arise  at 
a  later  stage,  if  proceedings  were  further 
pressed  against  -him,  but  at  pre- 
sent he  could  only  say  that 
the  Government  was  entitled  to  recover 
from  the  defendant  the  sum 
claimed  in  the  declaration,  which  w^as  at 
the  rate  of  4^.  6d.  per  day  from  the  14tb 
Jpnuary.  1902.  to  the  28th  February. 
1903.  It  seemed  that  subs^^-quently  to 
the  last  mentioned  date,  the  Government 
seeing  a  difiBculty  in  recovering  this 
amount  from  the  defendant,  ceased  for 
the  time  being  to  make  the  charges 
a|?ainst  him,  and  the  question  to  be  de- 
cided now  had  no  reference  to  the  ex- 
penses incurred  after  February,  1903.  In 
his  opinion,  the  Government  was  en- 
titled to  recover  the  amounts  during  tht> 
period  ttated  in  the  declaration.  Judi?- 
ment  must,  therefore,  be  given  for  the 
plaintiff,  with  costs,  upon  the  understand- 
ing that  an  amendment  was  made  in  the 
declaration  to  meet  th©  69th  section  of 
the  Act. 

Addressing  the  defendant.  His  Lord- 
ship remarked :  You  must  make  somo 
effort  to  pay  this. 


H  BR  BON    V.    TORQUE  BLECTRICAL  ENC;i- 
I( EBBING  COMPANY  AND  OTHERS. 

Mr.  Gardiner  moved  for  an  order 
directing  the  manager  of  the  Standard 
Bank  at  Cape  Town  to  produce  copies  of 
be  oka,  accounts,  vouchers,  etc..  relative 
to   accounts  kept   by  the  Torque    Com- 

£any,     Herron     and      Nealo,     Herron, 
imited.       Counsel  mentioned   that  tbe 
matter,  in   a  somewhat  diffexent   form^ 


it 


CAPB  TIMES"  LAW  REPORTS. 


SOS 


had  been  before  his  lordship  in   Oham- 
bere,  when  no  order  was  made. 

Maudorp,  J.,  said  that  the  difficulty 
he  had  when  the  matter  originally  came 
before  him  was  that  inasmuch  as  it  was 
sought  to  go  into  the  accounts  of  certain 
people  at  the  bank,  those  people  should 
bav©  notice  given  them  of  the  applica* 
lion,  so  that  they  should  have  an  op- 
portunity of  stating  to  the  Court  any 
reasons  they  might  have  for  opposing 
this  examination  of  their  accounts. 

Afr.  Gardiner  said  that  the  application 
in  Chambers  was  made  on  behalf  of  the 
plaintiff  in  the  action.  He  (Mr.  Gardi- 
ner) now  applied  on  behalf  of  one  of  the 
defendants,  the  trufiteo  in  the  insolvent 
estate  of  the  Torque  Electrical  Engineer- 
ing Company. 

Maasdorp,  J.,  directed  that  notice  of 
the  application  be  served  on  Herron's 
attorneys,  the  application  to  be  renewed 
to-morrow   (Thursday). 

Pott€a  (June  29). 

Sir  H.  Juta,  K.C.  (with  him  Mr.  Gar- 
diner), moved  upon  notice  toHerron,  for 
an  order  calling  on  the  Standard  Bank  to 
produce  lx>ok8,  accounts,  ^'ouchers,  slips, 
and  other  documents  in  the  possession  of 
the  bank  relating  to  the  accounts  of  the 
plaintiff.  Neil  Herron,  Ltd.,  and  the 
Torque  Oompany. 

Mr.  Alexander  (for  the  plaintiff  in  the 
action)  s&id  that  he  appeared  to  submit 
to  such  an  order  as  the  Court  might  bo 
pleased  to  make. 

His  Lordship  a«ked  counsel  for  the  ap- 
plicant whether  copies  of  the  documents 
would  bo  sufficient  for  the  purposes  of 
the  trial. 

Sir  H.  Juta  acquiesced. 

Order  granted,  calling  upon  the  bank 
to  produce  copies  of  the  accounts  of  Noil 
Herron.  Limited,  Herron  (the  plaintiff), 
and  the  Torque  Company,  with  all  neces- 
sary vouchers,  the  accounts  to  extend 
from  the  1st  September  to  the  10th 
January,   1905. 


PALUEK  V.   CAPE  COLD  STORAGE  AND 
SUPPLY  COMPANY. 

Thb  was  an  action  brought  by  Charles 
Palmer,  cartage  contractor,  of  Observa- 
tory-road,  agamrt  the  Cape  Cold  Storage 
and  Supply  Company,  for  value  of  a 
horse,  damages,  and  costs.  Mr.  Alex- 
ander waa  for  the  plaintiff ;  Mr.  McGre- 
gor was  for  the  defendant  company.  The 
matter  narrowed  itself  down  to  a  ques- 
tion of  costs. 

Mr.  Alexander  said  that  the  plaintiff 
had  already  obtained  judgment  by  de- 
fault, but  smce  then  the  defendant  com- 
pany had  obtained  leave  to  re -open  the 
case. 

Mr.  McGregor  submitted  that  the  mat- 
ter should  now  be  gone  into  de  novo, 
and  that  the  plaintiff  should  prove  his 
cue. 


Maasdorp,  J.,  said  that  the  Court  at 
present  had  nothing  before  it,  and  the 
plaintiff  must  open  his  case. 

Mr.  Alexander  said  that  the  plaintiff 
brought  an  action  for  a  sum  of  £50— 
£40,  value  of  a  horse  illegally  detained 
by  the  defendants,  and  £10  as  damages, 
together  with  costs.  Subsequent  to  the 
filing  of  the  declaration  the  horse  in 
question  was  delivered  up  by  the  com- 
pany to  the  plaintiff  on  the  3rd  Febru- 
ary, and  the  only  question  that  really 
arose  now  was  a  question  of  costs.  The 
company  did  not  tender,  with  the 
delivery  of  the  horse,  the  costs.  The 
companv  took  up  the  position  that  the 
plaintiff  did  not  give  them  a  clear 
proof  of  ownership.  Plaintiff  had 
now  got  the  horse,  and  he  did  not 
press  the  claim  for  damages,  because 
certain  amounts  that  had  already 
been  paid  on  this  agreement  (£9 
lOs.J  by  Robert  Jenkans  to  whom 
plamtiff  sold  the  horse  on  a  hire  pur- 
chase agreement,  were  sufficient  to 
satisfy  his  claim.  The  horse,  a  dark 
bay  mare,  was  sold  to  Jenkins  under  a 
hire  {purchase  agreement,  a  condition 
of  which  was  that  the  sale  was  not  to 
take  effect,  and  property  in  the  said 
horse  was  not  to  pass  until  the  last  in- 
stalment had  been  paid.  Jenkins  paid 
a  deposit  of  £5,  and  three  other  instal- 
ments of  £1  10s.  each,  making  £9  10s. 
in  all.  Jenkins  fell  into  arrear  with 
his  payments,  and  witness  allowed  an 
extension  of  time  subject  to  the  horse 
being  produced  for  his  inspection  each 
week.  Subsequently  it  was  discovered 
that  the  horse  had  been  sold  to  the 
company  by  Jenkins  for  £23. 

Charles  Palmer  (the  plaintiff)  gave 
evidence  as  to  selling  the  mare  to 
Robert  Jenkins  under  a  hire  purchase 
agreement.  On  the  10th  January  he  saw 
Mr.    Crothers,    a   traveller   in  tne  com- 

f)any'8  employ,  in  the  street  driving  the 
iorso.  Witness  told  him  that  the  horse 
was  his,  and  that  he  had  let  Jenkins 
have  it  under  a  hire  purchase  agree- 
ment. Crothers  seemed  to  treat  the 
matter  as  a  joke.  Witness  afterwards 
produced  the  agreement  in  the  presence 
of  Mr.  Mason,  sub-manager  of  the  de- 
fendant company,  who  said  that  it  was 
not  worth  the  paper  it  was  written  on, 
as  it  was  not  stamped.  Witness  replied 
that  he  did  not  know  anything  as  to 
that,  as  ho  was  not  a  lawyer.  Witness 
produced  the  agreement  again  on  the 
following  day,  but  Mr.  Mason  said  that 
the  company  could  not  recognise  it. 
Witness  subsequently  went  to  Wynberg, 
a  question  having  arisen  about  the  de- 
fendants prosecuting  Jenkins.  Witness 
afterwards  went  to  Jenkins's  house  on 
the  Walmer  Estate,  and  made  inquiries. 
He  then  wont  to  the  Cold  Storage  Com- 
pany and  warned  them  that  Jenkins 
was  either  going  to  Buenos  Ay  res  on 
the  Friday  or  Australia  on  Saturday. 
Witness  had  now  been  offered  £35  for 
the  horse. 


3(H 


"CAPE  TIMES"  LAW  REP0BT8. 


Edward  Isaacs  Sydney,  plaintiff's 
attorney,  and  Wni.  M.  Necdham,  until 
recently  clerk  in  the  employ  of  W.  B. 
Shaw,  agent,  also  gave  evidence  in  sup- 
port of  the  plaintiff's  case. 

Harry  Mason,  assistant  manager  of 
defendant  company,  said  that  Jenkins 
brought  the  horse  to  him,  and  produced 
a  note  from  Mr.  Reeco,  the  branch 
manager  at  Wynberg,  for  £23.  He 
made  inquiries  from  Jenkins  as  to  hovi 
long  ho  had  had  the  horse,  and  why  he 
was  selling  it.  Witness  had  to  get  a 
cheque  from  the  secretary  and  one  of  the 
directors.  Jenkins  called  again,  and 
witness  paid  over  to  him  the  £23  by 
cheque.  Witndbs  spoke  as  to  an  inter- 
view that  he  had  with  Palmer,  who  sub- 
sequently produced  the  agreement.  The 
agreement  at  that  time  bore  the  signa- 
tures of  Palmer  and  Jenkins,  but  no 
signatures  of  witnesses. 

Plaintiff  (in  answer  to  the  Court)  said 
that  the  agreement  bore  the  witnesses' 
signatures  when  he  produced  it  for  Mr. 
Mason's  inspection. 

Witness  (Mr.  Mason)  went  on  to  say 
that  he  asked  Palmer  when  he  called  on 
the  Friday  to  see  the  general  manager 
(Mr.  Elliott)  or  the  secretary  of  the  com- 
pany. He  did  not  sec  the  plaintiff 
agam  until  yesterday  (Tuesday)  They 
communicated  with  the  C.I.D.»  who  told 
them  to  retain  the  horse. 

Cross-examined  by  Mr.  Gardiner :  He 
considered  that  £23  was  a  fair  price  for 
the  horse  for  the  purpose  for  which  they 
wanted  it.  At  the  time  of  the  purchase 
he  would  not  have  given  £20  for  the 
animal.  The  value  to-dav  would  be 
about  £25  to  £27.  He  thought  that 
Palmer  '*  had  *'  Jenkins  when  he  sold 
the  horse  to  him  for  £40. 

James  Reece,  manager  of  the  com- 
panv's  branch  at  Wynberg,  said  that 
Jenkins,  in  the  first  instance,  offered  to 
sell  the  horse  to  him  at  Wynberg.  A 
dajr  or  two  afterwards  he  bought  the 
animal  for  £23.  Jenkins  did  not  appear 
to  be  very  anxious  to  sell. 

Cross-examined:  Witness  made  in- 
quiries from  one  Welsted  before  he 
bought  the  mare,  but  the  latter  did  not 
tell  him  anything  as  to  an  agreement 
between  Palmer  and  Jenkins.  He  did 
not  ask  Jenkins  where  ho  had  got  the 
horse  from.  Jenkins  told  him  that  the 
horse  was  his  property. 

James  W.  Crothers,  a  traveller  in  the 
companv's  employ,  and  James  David 
Low,  of  the  firm  of  Thomas  Masterton 
and  Co.j  secretary  of  the  company,  also 
gave  evidence. 

Mr.  McGregor  read  an  affidavit  by 
Harry  Sanders,  attorney,  Graham's 
Town,  formerly  a  clerk  in  the  employ 
of  Syfret,  Godlonton  and  Low,  the 
company's  attorneys  in  Cape  Town. 

This  concluded  the  evidence. 

Mr.   McGregor      submitted      that  the 
plaintiff     had     not     taken     reasonable 
measures  to    avoid   litigation,   but  had 
practically  forced  defendants  into  court. 


Maasdorp,  J.,  eaid  he  was  of  opinion 
that,  if  it  had  been  clearly  shown  that  the 
cost«  in  this  case  could  have  been  avoided 
by  the  plaintiff  by  his  putting  the  de- 
fi  ndaiits  in  possession  of  the  contents 
of  the  document  in  question,  and  if  it 
had  been  shown  that  he  had  unreason- 
ably withheld  the  required  information, 
the' defendants  would  have  been  entitled 
to  costs.  It  was  clear  that  plaintiff 
showed  the  agreement  in  the  first  in- 
stance to  Mr.  Mason,  the  assistant 
manager.  As  to  the  attorneys  of  the 
defendants,  it  w&b  clear  that  if  this 
document  had  been  the  only  thing  that 
thev  (the  attorneys)  wanted,  it  would 
have  been  obtained  through  an  order 
of  discovery  immediately  after  summons 
was  served,  but  it  was  not  asked  for. 
He  was  satisfied,  because  the 
parties  were  perfectly  well  aware 
that  it  would  not  settle  the  case, 
and  also  because  they  knew  pretty  well 
what  the  contents  were.  Under  all  the 
circumstances,  he  had  come  to  the  con- 
clusion that  the  grounds  upon  which 
the  defendants  claimed  that  costs  should 
not  be  awarded  in  favour  of  the  plain- 
tiff had  not  been  established.  Judg- 
ment would  be  given  for  the  plaintiff 
for  all  costs,  except  the  costs  of  the 
day  when  the  case  was  originally  heard. 

[Plaintiffs  Attorney:  E.  I.  Sydney. 
Defendant's:  Syfret,  Godlonton  and 
Low.] 


SUPREME  COURT 


[  Before  the  Hon.  Mr.  Justice  M  aabdorp.] 


ADMISSION. 


f      1905. 
( June  29tb. 

Mr.    Van    Zyl    moved  for  the   admis- 
sion of  Jan  Frederick  du  Plessis  as  an 
attorney  and  notary. 
Application   granted   and   oaths      ad- 
ministered. 


PROVISIONAL  ROLL. 


STUSSER  AND  CO.  V.  UDWIN  BROS. 

Mr.  p.  S.  T.  Jones  moved  for  the 
final  adjudication  of  the  defendants* 
e&tate  as  insolvent.  The  defendants,  it 
appeared,  had  carried  on  business  at 
Komgha.  There  had  been  consider- 
able negotiations  between  petitioners 
and  defendants  in  regard  to  takinsp  over 
the  estate  of   the  insolvents,    and   pro- 


« 


CAPE  TIMES"   LAW  REPORTS. 


606 


oeedingB  had  also  been  taken  ui  the 
R.M/s  Court  »t  Ouditiboorn.  It  was 
staled  in  the  creditors'  petition  thait 
there  wa>  a  deficienc}[  of  £1254  128.  3d., 
and  tha<  it  would  be  in  the  iiKtere^ts  of 
the  creditors  if  the  partnierahip  and 
private  etMtea  of  Udwin  Broe.  were  Be- 
que»traited. 

Mr.  Alexander  opposed  the  applica- 
tion, and  read  an  affidavit  by  Solomon 
Udwin. 

Mr.  Jones  read  a  replying  affidavk. 

Mr.  Alexander  said  that  the  appli- 
cants did  not  seek  to  make  the  defen- 
dantfi  insolvent  under  the  Insolvent  Or- 
dinance, but  under  the  Act  38  of  1884. 
The  Oourt  had  held  that  any  applica- 
tions under  the  Act  of  1884  must  be 
suppoiied  by  the  clearest  proof,  firstly, 
that  the  defendants  were  insolvent,  and, 
secondly,  that  it  would  be  for  the  bene- 
fiit  of  the  creditors  that  the  estate 
should  be  finally  adiudicated.  It  was 
not  sufficient  that  tnere  had  been  ne- 
gotiations for  a  deed  of  assignment. 

Maasdorp,  J. :  In  this  case  the 
applicants  move  to  have  a  provi- 
sional order  of  sequestration  made 
absolute  on  the  ground  that  the 
applioants  have  entered  into  a  deed 
ot  a^sigjiment  with  the  alleged  insol- 
venis.  It  appean  that  the  respondent 
himself,  through  his  breach  of  oontraot, 
has  caused  the  attachment  of  the  very 
property  he  has  assigned,  consequently 
he  IS  not  in  a  position  to  hand  over  the 
propeity  that  he  agrreed  to  hand  over. 
If  the  stock  is  taken  at  the  valuation 
of  £500,  the  estate  is  insolvent,  and 
there  is  abundant  evidence  thait  the 
stock  is  not  worth  more  than  £500. 
Consequently  there  is  proof  that  the 
estate  is  insolvent,  and  the  rule  will  be 
made    absolute. 


BUCHANAN  V.  MILLER. 

Mr.  Douglas  Buohanax^  moved  for 
provisional  sentence  on  a  mortgage 
bond  for  £300,  and  for  £4  12a.  insur- 
ance premium,  with  interest  at  6  per 
cent,  from  1st  July,  1904;  counsel  also 
applied  for  the  property  specially  hy- 
pothecated to   be    declared   eexcutable. 

Order    granted. 


ABDBRNB  V.  DE  HETON. 

Mr.  P.  S.  T.  Jones  moved  for  the 
final  adjudication  of  the  defendants' 
estate  as  insolvent. 

Order    granted. 


COPPENHAGFN  V.  AEEND8E. 

Mr.  Alexander  moved  for  provisional 
sentence  on  four  mortgage  bonds  for 
£100,  £26,  £50,  and  £125  respectively, 
wiih   interest    and    costs,    and  for    the 


property    specially    hypothecated    to    be 
declared   executable. 

Order  granted,  subject    to  an    amend- 
ment of   the  tiummons. 


HIDDINGH  V.  STEVENSON. 

Mr.  P.  S.  T.  Jone6  moved  for  provi- 
sional sentence  on  certain  mortgage 
bonds,  amounting  to  £15,000,  less  £120 
paid  on  aooouut,  for  judgment  for  insur- 
ance premiums  £114  3s.,  and  for  the  pro- 
perty to  be  declared  executable. 

Order  granted. 


ALLAN  AND  bHAW   V.  BENNETT. 

Mr.  Close,  for  the  plaintiff,  moved  for 
a  decree  of  civil  imprisonment  against 
the  defendant,  on  an  unsatisfied  judg- 
ment for  .£254  4«.  7d. 

The  defendant  appeared,  and  offered 
monthly  instalments  of  £5. 

Decree  granted,  with  coerts,  to  be  sus- 
pended upon  payment  by  the  defendant 
of  £5  a  month,  first  payment  to  be  made 
on  the  15th  July. 


I8KAELSOHN  BROS.  V.  MEYEK,  I8ID0BB 
AND  BARNEY  I8BAEL80HN. 

Dr.  Greer  moved  for  the  final  adjudi* 
cation  of  the  defendant's  private  estate. 
Order  granted. 


FEDERAL  SUPPLY  CO.  V.  WITTON  AND 

BIPPEL. 

Dr.  Greer  moved  for  the  final  order  of 
adjudication  of  the  defendant's  estate  as 
insolvent. 

Order  granted. 


CANGO  TOBACCO  CO.  V.  THOMPSON. 

Mr.  Sutton,  for  the  plaintiff,  moved 
to  have  the  provisional  order  of  seques- 
tration against  the  defendant's  estate  dis- 
charged. 

Order  granted. 


GOLPAS  V.  WEDMABCH. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  a  promissory  note 
for  £16  10s.,  with  interest  and  costs. 

Order  granted. 


ILLIQUID    ROLL. 


WARD  AND  FELIX  V.  LEVIN.  {  jj^^^j, 

Mr.   P.   S.   T.  Jones  moved  for  judg- 
ment, under  Rule  329d,  for  £22  148.  5a-i 


506 


"CAPE  TIMES"  LAW  REPORTS. 


goodfl  Bold  and  delivered,  with  interosfc 
and  ooetfl. 
Order  granted. 


B0CHE8TEB  BRICK  CO.  V.  METJB. 

Mr.  Douglas  Buchanan  ndoved,  for 
judgment,  under  Rule  329d,  for  £160, 
goods  sold  and  delivered,  with  intere>st 
and  costs. 

Order  granted. 


ESTATE  FBIBDLANDRB  V.  BOBB. 

Mr.  De  Waal  moved  for  judgment, 
under  Rule  329d,  for  £30,  balance  due 
on  an  account,  with  oo^ta. 

Order  granted. 


BENDHEIH  V.  QOLDBEBO. 

Mr.  Payne  moved  for  judgment,  under 
Rule  329d,  for  £235  19fl.  3d.,  for  goods 
sold  and  delivered,  with  interest  ar.d 
costs. 

Order  granted. 


SCOTT  V.  KOLOKOE. 


Mr.  Sutton  moved  for  judgment,  un- 
der  Rule  329d,  for  £&8  ISs.,  goods  sold 
and  delivered. 

Order  granted. 


BROWN  V.  TOWOEND. 

Mr.  De  Waal  moved  for  judffmcnt,  un- 
der Rule  329d,  for  £63  lOs.,  balance  of 
renc 

Order  granted. 


REHABILITATION. 

Ex  parte  8YRKIN. 

Mr  Alexander  moved  lor  tht»  rchabi.'i- 
tation  of  Max  Sv/kin.  The  apphcativn 
was  made  Griginally  In  June  of  last  year, 
and  the  Court  tlien  granted  leave  to 
have  it  renewed  in  twelve  months. 

Application  granted. 


GENERAL  MOTIONS. 


BOISON  V.  BOISON. 


\  June  29th. 

Mr.  Benjamin  moved  for  a  decree  of 
divoroe,  the  respondent  (the  wife)  having 
failed  to  comply  with  an  order  to  return 
to  the  plaintiff. 

Pecr«e  granM* 


Ex  parte  LIP8CH1TZ  AND  TOOCH. 

Mr.  Se&rle,  K.C ,  moved  for  an  order 
for  the  appointment  of  a  curator  ad 
litem  to  represent  a  minor  in  an  action 
to  be  brought  against  her  for  leave  to 
partition  certain  property  held  in  un- 
divided shares  by  the  applicants  and  the 
minor.  It  was  asked  tnat  Mr.  Gavin 
be  appointed  curator. 

Mr.  McGregor,  for  respondent,  said  his 
client  took  the  position  that  another 
man — a  Mr.  P.  J.  Killer — ^should  be  ap- 
pointed, and  that  his  action  was  pre- 
mature and  unnecessary. 

Maasdorp,  J.,  said  the  opposition  had 
been  forced  upon  by  the  father  of  the 
minor,  and  the  respondent  would,  there- 
fore, have  to  pay  the  costs  of  opposition. 
It  was  necessary  to  have  a  curator  ap- 
pointed, and  the  necessary  costs  would, 
m  any  case,  have  to  be  paid  by  the 
minor.  Mr.  P.  J.  Keller  would  be  ap- 
pointed curator  ad  litem,  and  the  Court 
would  order  the  respondent  minor  to  pay 
the  necessary  cosFts  of  the  unopposed  mo- 
tion, and  respecting  the  costs  incurred 
on  the  respondent's  side,  the  costs  be- 
tween attorney  and  client  would  be  dis- 
allowed  in  taxation  against  the  minor. 


DUNLOP  PNEUMATIC  TYRE  CO.  UNION- 
CASTLE  LINE. 

This  was  an  application  calling  upon 
the  respondents  to  show  cause  why  cer- 
tain i)rooeedings  of  the  Taxing  Officer 
of  this  Court  in  disallowing  certain 
items  in  the  bill  of  costs  of  plaintiffs'  at- 
torneys should  not  be  set  aside. 

Tliis  matter  arose  out  of  an 
action  instituted  by  the  plain- 
tiffs for  damages  in  the  sum  of  £75,  by 
reason  of  the  damaged  condition  in 
which  a  certain  case  containing  motor- 
car framework,  handed  to  the  defendants 
in  New  York  for  transmission  to  Cape 
Town,  was  received  by  the  Harbour 
Board  and  delivered  to  the  plaintiffs. 
The  plaintiffs  filed  their  declaration,  and 
the  defendants,  in  their  plea,  set  up  the 
defence  that  the  caae  was  received  by 
them  in  a  damaged  condition  in  New 
York.  Thereupon,  plaintiffs  proposed  to 
have  certain  evidence  in  New  York 
taken  on  commission,  and,  upon  notice 
being  served  on  the  defendants,  it  was 
arranged  that  the  commission  should  be 
joint  The  plaintiffs'  attorneys^  then 
cabled  certain  directions  with  a  view  to 
having  the  evidence  taken  before  the 
British  Consul  in  New  York,  but,  sub- 
sequently, on  the  30th  May,  plaintiffs' 
attorneys  received  an  intimation  from 
defendants'  attorneys  that  the  plaintiffs* 
claim  would  be  settled,  with  costs. 
These  facts  were  set  out  in  an  affidavit 
by  Mr.  A.  C.  Fuller,  of  the  firm  of 
Messrs.  Silberbauer,  Wahl,  and  Fuller, 
plaintiffs'  attorneys.  The  disallowances 
referred  to  the  charges  in  connection 
with  giving  iDBtructioQB  to  New  Yorl(. 


II 


CAPE  TIMES"   LAW  REPORTS. 


.Vi7 


The  Taxinsr  Officer,  in  his  reoort,  stat- 
ed that  the  items  were  disallowed  on 
the  ground  that,  bein^  incurred  pre- 
vious to  notice  of  trial  having  been 
given,  they  muat  be  considered  ba  pre- 
maiture.  That  had  been  the  constant 
practice,  which  he  did  not  feel  justified 
m  di6tui4>ing{  though,  no  doubt,  at 
times  it  entoiled   hardships. 

Mr.  Barton  was  for  the  applicants; 
there  was  no  appearance  for  the  respon- 
dents. 

Maaadorp,  J. :  Under  the  special  cir- 
cumstances of  this  case,  I  think  it  was 
necessary  thai  the  proceedings  should  be 
taken  in  the  form  in  which  they  were 
taken,  and  the  costs  were  regularly  and 
properly  incurred,  and  consequently  the 
items  disallowed  by  the  Master  in  this 
madter  will  be  allowed,  without  the  or- 
der of  the  Court  being  in  any  way  con- 
sidered to  affect  the  general  rule  which 
seems  to  be  laid  down  in  the  office  of 
the  Taxing  Master.  The  items  will  be 
allowed. 

Mr.  Barton  applied  for  ooets. 

Maaadorp,  J. :  A^^ainst  whom? 

Mr.  Burton :  Against  the  respondents. 
Notice  was  given  of  this  part  of  the 
application. 

Maasdorp,  J.,  said  that  the  items 
would  be  allowed,  with  costs  against 
respondents. 


Ex  parte  TRUSTEE  UNITY  LODGE. 

Mr.  P.  S.  T.  Jones  moved  for  an 
order  on  behalf  of  the  survivinjg  trus- 
tee of  the  Unity  Lodge,  authorising  the 
Regicirar  to  paas  transfer  of  certain 
property.  The  Registrar  of  Deeds,  to 
whom  the  matter  had  been  referred, 
reM>iied  in  favour  of  the  application. 

Order  granted,  in  terms  of  the  Re- 
gistrar's report. 


In  re  BDPKALO  BUPPLV    AND   COLD 
8TOR40I  (IN  LIQUIDATION). 

Mr.  Burton  moved  for  confirmation 
of  the  official  liquidators'  report  in  the 
matter  of  the  Buffalo  Supply  and  Cold 
Storage  Company  and  for  directions  to 
the  liquidaitors  on  certain  points.  In 
his  report,  Mr.  H.  M.  Fleming  (one  of 
the  Uquidaiors)  said  that  he  was  being 
pressed  for  payment  of  the  balance  of 
ceitain  le^al  expenses  incurred  in  con- 
nection with  the  arbitration  proceed- 
ings between  the  Federal  Company  and 
the  Buffalo  Company.  As  the  greater 
pari  of  these  expenses  was  incurred  in 
realising  the  assets  of  the  company,  Mr. 
Fleming  asked  for  directions  as  to 
paying  the  accounts.  The  total  amount 
of  the  costs  so  incurred  would  not  ex- 
ceed £1,000.  The  principal  item  was 
a  balance  of  £520  due  on  an  account 
to  Messrs.  Stone  and  Giddy,  aittorneys. 
East  London.      Their   full   bill  of   costs 


I 


amounted  to  £1,438  Is.  9d..  but  they 
had  received  from  time  to  time  certain 
payments  to  accouot,  leaving  a  balance 
of  £520.  Part  of  the  bill  was  made  up 
of  coflfts  incurred  before  the  voluntary 
liquidation  amounting  to  £157  16s.  4d., 
against  which  a  payment  to  Stone  and 
Giddy  of  £7  Ss.  9cf.  should  be  set  off. 
There  were  also  two  other  bills  in- 
curred previous  to  the  voluntary  liaui- 
dation|  viz.,  Messrs.  Shepstone,  Wyllie 
and  Bmns,  of  Natal,  who  claimed  £200 
and  £300,  and  Messrs.  Norton  and  Co., 
of  Sydney  (Australia),  who  claimed 
about  £7.  Mr.  Fleming  also  swore  ait 
affidavit,  in  which  he  said  that  for  the 

f>ur^sGS  of  the  action  instituted  by  the 
iquidators  against  Mr.  Bergl,  in  Ix>n* 
don,  which  was  preseniily  proceeding, 
it  was  necessary  that  he  snould  visit 
ifder  alia  East  London,  Graham's  Town, 
Durban,  Bloemfontein,  and  Johannes- 
burg, in  order  to  obtain  information. 
He  asked  for  leave  to  draw  from  the 
funds  a  sum  not  exceeding  £80.  The 
liquidators  also  said  that  they  had   ex- 

Snded  sums,  Mr.  Fleming,  of  £75,  and, 
r.  Powell,  of  £56  3s.  5d.,  for  which 
they  cravea  leave  to  reimburse  them* 
iselves. 

[Maasdorp,  J. :  How  does  this  estate 
stand T    Is  it  a  large  company?] 

Mr.  Burton :  Your  lordship  will  see 
from  the  report  that  praotically  every- 
thing depends  upon  the  result  of  cer- 
tain actions  which  the  liquidators  are 
instituting.  If  they  succeed  in  those 
actions  then  there  will  be  prettv  well 
sufficient  to  pay  everybody.  If  they 
don't — -then,  I  am  afraid  they  won't. 
At  any  rate,  there  won't  be  very  much. 

[Maasdorp,  J. :  The  liquidation  will 
take  some  time  still  T] 

Mr.  Burton :   Yes. 

Maasdorp,  J.,  said  that  if  the  attor- 
neys, whose  accounts  had  been  men- 
tioned, had  known  of  the  present  ap- 
plication, they  might  have  aippeared  to 
oppose  any  proposal  to  troait  their 
claims  as  concurrent.^  They  might  claim 
a  preference  on  their  accounts,  though 
he  know  that  it  was  not  likely. 

Mr.  Burton  said  that  that  question 
would  i^till  be  open,  and  that  all  that 
was  asked  for  now  was  a  direotion  for 
the    liquidators'    guidance. 

Maasdorp,  J.,  said  the  Court  would 
grant  the  usual  order,  and  would  direct 
the  liquidators  to  regard  the  debt  due 
to  Stone  and  Giddy,  amounting  to  £150 
12s.  7d.,  merely  as  the  debt  of  a  con- 
current creditor,  and  in  respect  of  the 
balance  of  their  account,  which  was  in- 
curred for  services  rendered  to  the  li- 
quidators, they  were  entitled  to  be  paid 
now  out  of  the  available  funds  of  the 
company;  that  the  bills  of  costs  of 
Norton  and  Co.  and  Shepstone,  Wyllie 
and  Binns  were  to  be  regarded  merely 
as  the  debts  of^  concurrent  creditors  and 
treated  accordingly ;  that  the  liquida- 
tors were  authonsed  to  reimburse  them- 
selves   in    the    swns   qI   £75   and    £56 


508 


"CAPE  TIMES"  LAW  REPORTS. 


3fl.  5d.  expended  by  them,  and  that  they 
were  also  authorised  to  expend  a  sum 
of  £80  in  respect  of  expenses  ha  Bet  out 
in  Mr.   Fleming's   affidavit. 


(jovernment  40  years  after  lua 
or  her  decease. 


Ex  ]}arte  wolfaard  and  others. 

Mr.  McGregor  moved  for  an  order  au- 
thorising the  Registrar  of  Deeds  to  re- 
gister certain  transfers.  The  matter  was 
one  involving  a  question  of  the  payment 
of  transfer  duty.  Oiio  of  the  petitioners 
purchased  from  one  Frederick  J. 
Wolfaard  hia  rights  under  the  will  of  hid 
parents.  F.  J.  Wolfaard  had  become  in- 
solvent. The  transfer  had  not  l^een  made 
from  the  parents'  estate  to  F.  J.  W'ol- 
faard,  ana  the  petitioners  now  sought 
to* have  transfer  made  direct  from  the 
estate  to  the  second  petitioner.  The 
Registrar,  however,  held  that  two  trans- 
fers must  be  effected,  and  duty  paid 
thereon.  Another  point  arose  aa  to 
whether  certain  payments  could  be  ar- 
ranged for  by  bond,  but  the  Registrar 
contended  there  should  be  direct  pay- 
ment. The  Registrar,  in  his  report, 
stated  that  the  property  actually  vested 
in  the  insolvent  at  the  date  of  the  ^ale  to 
petitioner,  and  the  estate  was  liable  for 
duty. 

The  petition  set  forth  that  the  first- 
named  petitioner  was  one  of  the  testators, 
and  had  sold  his  life  interest  in  the  pro- 
perty to  the  second  petitioner,  John 
Abraham  Becker.  The  will  stipulated 
that  upon  the  death  of  one  of  the  tervta- 
tors  and  renunciation  of  the  usufruct  by 
the  survivor,  and  upon  the  legatee  pay- 
ing in  a  sum  of  £700  to  the  estate,  the 
property  should  become  the  legatee's. 
Petitioners  asked  that  there  should  be 
leave  to  make  payment  of  the  £700  by 
a  bond.  Becker  had  bought  the  life  in- 
terest of  the  survivor  and  the  interest  of 
the  legatee. 

In  the  couPfK)  of  counse/s  argument, 

Maasdorp,  J.,  pointed  out  that  there 
were  no  translations  of  certain  documents 
written  in  Dutch,  and  said  that  the  docu- 
ments must  be  translated  for  the  Court. 
When  copies  were  put  in  he  would  deal 
with  the  matter.  The  matter  could  be 
mentioned  again. 


Ux  parte  LEEUW. 

Succeaaion  ah  intestaio — ^Wifo  and 
huaband. 

3i/  the  law  of  this  Cohuy^ 
wife  and  hmlmnd  can  umirr 
no  circumstances  tnicceefl  either 
to  other  ab  intestate.  Failing 
blood  relations  of  the  deceased, 
the     property     reMn     in     the 


Dr.  Greer  moved  for  an  order  author- 
ising the  executor  dative  in  the  estate  of 
Jantje  Leeuw  to  pay  to  the  petitioner  the 
remaining  half-share  of  the  joint  estate, 
of  herself  and  her  deceased  nusband. 

Mr.  Nightingale  appeared  for  the  Gov- 
ernment. 

Dr.  Greer  said  that  the  matter  .waa 
before  the  Court  on  the  8th  July,  when 
the  Acting  Chief  Justice  ordered  that  it 
should  stand  over  in  order -that  notice 
should  be  given  to  the  Govemiiaent. 

It  was  stated  that  the  petitioner  was 
aged,  and  required  the  money  for  her 
maintenance. 

Mr.   Nightingale  fiaid  that  the  Crown 
took  up  the  position  that  the  petitioj^er, 
Ixiing    the  surviving    spouse,    could   npt  . 
take  the  property  as  heir.      She  was  njar- . , 
ried  in  community,  and  was  entitled  only 
to  half  the  estate,  which  she  had  taken  :. 
already.      If  the  woman  could  not  suc- 
ceed her  deceased  spouse  as  heir,      the 
money  must  be  paid  to  the  Master,  the 
man  having  died  without    next-of-kin. 

Dr.  Greer  said  the  application  was  a 
novel  one,  and  there  was  no  direct  au- 
thority on  the  point.  There  would, 
however,  be  certain  grounds  for  con- 
sidering that  the  wife  might  be  entitled 
to  take  as  her  husband's  heir.  Coun- 
sel proceeded  to  quote  from  Burge,  Van 
der  Linden  (book  1,  chap.  10,  section  2, 
sub -section  3),  and  other  authorities,  to 
show  that  in  certain  circumstances  the 
wife  could  succeed  as  heir.  Van  der 
Linden  said  that  a  wife  could  not  suc- 
ceed as  heir  excepting,  as  under  the  law 
of  North  Holland  where  the  next-of-kin 
of  the  intctitate  man  could  not  be  found, 

Mr.  Nightingale  submitted  that,  al- 
though there  was  no  direct  case  on  the 
point,  the  common  IfAv  was  clear,  that 
the  wife  could  not  take  as  heir.  He 
contended  that  the  law  of  South  Holland 
and  not  of  North  Holland,  was  the  law. 
of  inheritance  ah  intesiato  in  this  colony. 

Maasdorp,  J.  :  It  appears  that 
the  husband  of  the  applicant 
died  some  25  years  ago,  and  it 
was  then  found  that  the  joint  estate  was 
worth  £159  IDs.  It  was  duly  liquidated, 
and  half-  that  amount  was  paid  over  to 
the  applicant,  the  marriage  having  been 
in  community  of  property.  Since  that 
date  the  remaining  half  of  this  estate 
seems  to  Iiave  been  in  the  custody  of  an 
executor  dative.  The  applicant  now 
moves  the  Court  for  an  order  upon  the 
executor  dative  to  pay  over  the  money 
to  her  upon  the  ground  that  this  case 
may  be  taken  as  one  in  which  there  is  a 
total  failure  of  blood  relations  to  sucoeed 
her  husband.  In  the  absence  of  such 
blood  relations,  she  takes  up  the  position 
that  this  inheritanoe  should  be  regard- 
ed as  a  vacant  inheritance,  and  that  she 
should  be  entitled  to  euoceed ;  but  there 


f< 


CAPE  TIMES''   LAW  REPORTS. 


509 


ia  clear  aufeliority  and  abundant  authority 
that  in  cases  of  this  kind  the  wife  ib  not 
entitled  to  eucoeed.  Several  authorities 
have  been  quoted  ou  the  law  of  South 
Holland,  which,  with  certain  modifica- 
tions. 16  the  law  of  succeeeion  in  this 
countrv,  where  it  is  very  plainly  held 
that  the  wife  in  these  cases  is  not  en- 
titled to  succeed.  Upon  a  total  failure 
of  blood  relations,  the  Grown  is  entitled 
to  claim  a  vacant  inheritance.  But,  as  it 
is  difficult  to  ascertain  whether  there 
oia^  not  still  be  blood  relations,  a  pro- 
vision is  made  that  this  right  of  the 
Crown  shall  not  be  exercised  for  a  period 
of  40  years.  Even  if  the  Crown  were 
now  disposed  to  waive  any  right  it 
might  have  in  favour  of  the  widow,  it 
would  not  have  the  power  to  do  so,  be- 
cause there  is  as  yet  no  right  vested  in 
the  Crown.  Under  all  the  circumstances 
of  the  case,  I  am  of  opinion  that  the 
Court  has  no  power  to  make  an^  order 
in  favour  of  the  applicant  in  this  case, 
and  the  application  must  be  refused. 


Ex  parte  armester. 

Mr.  Roux  moved,  as  a  matter  of  ur- 
gency, on  the  petition  of  John  James 
Armester.  for  leave  to  sue  Johannes 
Beling,  of  Kroonstad.  Orange  River  Col- 
ony, and  formerly  of  E^st  London,  by 
ediotal  citation,  in  respect  of  a  certain 
debt,  and  for  the  attachment  of  certain 
property  at  East  London,  belonging  to 
the  respondent,  ad  fundandam  jvritdie- 
ti&nem.  Petitioner  stated  that  he  resided 
at  St.  Paurs-road,  East  London,  and 
that  Beling  was  indebted  to  him  in  a 
sum  of  £25  Is. 

Order  granted  as  prayed,  citation  to  be 
served  personally,  and  to  be  returnable 
on  the  1st  August. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Jnstioe,  the 
Hon.  Sir  John  Buchanan.] 


GENERAL  MOTIONS. 

JSv   parte  .TRUSTEE  bea-    f       190.5. 
OUL'8  ESTATE.  '( June  :-:Oth. 

Mr.  Gardiner  moved  for  an  order  to 
examine  certain  witnesses  on  commis- 
sion, under  the  Insolvent  Ordinance,  be- 
fore the  Resident  Magistrate  of  Port 
Elizabeth. 

Ontnted, 


Er  jmrtf  HEYNE8  MATHBWB. 

Mr.  P.  S.  T.  Jones  moved  as  an  ur- 
,crent  motion  for  an  order  restraining 
the  removal  of  anv  goods  from  the 
office  of  Mr.  Abraham  Berlyn,  dentist, 
who  owed  the  petitioners  £170  for  rent 
to  the  end  of  June.  The  respondent 
had  asked  the  petitioners  to  take  over 
the  fixtures  in  settlement  of  the  debt, 
but  there  had  been  an  attachment  order 
of  the  Resident  Magistrate's  Court  al- 
ready grrnted. 

Order  as  prayed. 


STEVENS  V.  6TB YENS. 

Dr.  Greer  said  this  was  an  action  for 
restitution  of  conjuj^al  rights,  failing 
which  a  decree  of  divorce.  At  4  o*o1ock 
yesterday  the  defendant  wrote  that  he 
was  |.repared  to  receive  his  wife  at 
Woodstock,  and  Counsel  was  now  In- 
structed that  the  wife  had  actually  re- 
turned to  the  husband  and  he  had  re- 
ceived her.  Counsel  now  asked  leave  to 
withdraw  the  case. 

Buchanan,  A.C.J. :  It  as  not  often  ju- 
dicial proceedings  in  matrimomal  caAes 
end  so  happily.  The  case  can  be  with- 
drawn. 


ESTATE    BNYMAN,    JUN.    V.    ESTATE 
BNYMAN,  SEN. 

Mr.  J.  E.  R.  de  Villiers  moved  (or 
judgment  against  the  defendant  in 
terms  of  a  consent  paper.  The  action 
was  origniallj  broug[nt  against  the  de- 
fondant  in  his  capacity  as  executor  tes- 
tamentary, and  also  in  his  cajpacity  as 
tutor  of  the  minor  children.  The  claim 
against  him  in  his  capacity  as  tutor  of 
the  minor  children  had  been  withdrawn. 

Judgment  in  terms  of  the  consent 
paper. 

Mr.  Searle  pointed  out  that  only  yes- 
terday the  power  of  attorney  was  with- 
drawn and  put  in  the  hands  of  another 
attorney,  and  that  was  probably  due  to 
further  proceedings  by  the  heirs  inter- 
ested. 

[Buchanan,  A.C.J. :  They  are  not 
bound  by  this  judgment.] 


BAMSON    V.    GAMP*8  BAY  EXTENSION 
ESTATES,  LTD. 

This  was  an  action  for  a  declaration 
of  rights  as  to  a  certain  supply  of  water 
on  building  lots  purchased  by  the  plain- 
tiff from  the  defendants,  and  for  an  or- 
der compelling  the  defendant  company 
to  transfer  the  building  lots  to  him. 

The  declaration  set   forth      that   the 

glaintilf  was  an  architect,  practising  in 
ape  Town,  and  defendants  a  joint  stock 
company  registered  in  the  Cape  Colony. 
On  the  24th  March.  1904,  the  defendant 
company  sold  to  the  plaintiff  certain 
building  lots  at  Llandudno  for  £76.    It 


510 


If 


CAPE  TIMES "  LAW  BEPORTS. 


was  further  a  oondrtion  of  sale  that  the 
defendant  compaiiy  should  give  trans- 
fer of  tho  building  lot^  on  payment  of 
tho  whole  of  the  purchase  price  in  ca^ih 
or,  on  p.'iyinent  of  tho  first  inHtalinunt, 
security  being  given  for  the  balance. 
The  auetioneers  represented,  promised 
and  guaranteed  that  the  defeudajit 
company  would  within  six  months  of 
tho  sale  cau^e  water  to  be  laid  on  to 
all  tho  lots  sold  at  a  rate  not  exceeding 
£2  a  year.  The  plaintiff  was  induoed 
thereby  to  purchase  the  lots.  There- 
after the  defendant  company  confirmed 
in  writing  and  ratified  the  said  terms, 
and  plaintiff  thereupon  paid  the  first 
instalment.  The  company  did  not  cause 
water  to  be  supplied  through  a  4-inch 
main  pipe  within  six  months  of  the  date 
of  sale,  nor  at  all.  On  the  27th  Jan- 
uary plaintiff  paid  the  second  instalment 
under  protest.  The  plaintiff  on  or 
about  the  said  date  called  on  tho  com- 
pany to  pass  transfer,  and  dulv  tendered 
pavment  of  the  balance,  ana  further 
called  on  the  defendant  company  to 
carry  out  its  obligation  by  laying  on  the 
water.  The  defendant  company  failed 
to  pass  transfer  notwithstanding  that 
the  plaintiff  was  willing  to  pay  the 
balance  of  the  purchase  price.  The  de- 
fendants contended  that  they  were  only 
bound  to  supply  water  in  a  1-inch  pipe. 
The  lots  had  gre-atly  deteriorated  in 
value,  and  plaintiff  had  been  prevented 
from  using  the  same  as  building  lots,  and 
had  sustained  damages  in  £400,  and 
c'.dims  an  order  declaring  him  a  pur- 
chaser of  the  lots,  entitled  to  a  supply 
of  water  to  each  of  the  lots  in  a  4-inch 
pipe,  and  compelling  the  company  to 
pass  transfer  to  the  plaintiff  on  his  ten- 
dering the  balance  of  the  purchase 
price,   otherwise  £400  damages. 

The  plea  admitted  the  formal  allega- 
tions, but  with  regard  to  the  conditions 
of  the  said  sale  it  referred  to  the  writ- 
ton  conditions  of  sale  signed  bv  tho 
plaintiff  It  was  denied  that  tne  auo- 
tioiveors  represented  that  4-inch  pipes 
would  be  laid  within  six  months  to 
all  the  lots.  If  the  said  auction- 
eerti  did  so  thej  had  no  authority 
and  tho  defendants  were  not  bound  by 
ojiy  such  representation  or  guarantee 
and  denied  that  any  such  representa- 
tion, promise  or  guarantee  formed  the 
conditions  of  sale.  It  was  also  deuied 
that  tho  plaintiff  was  induced  to  pur- 
chase by  any  such  guarantee.  The  de- 
fondants'  auctioneers  were  authorised 
to  promise  that  a  main  pipe  would  be 
laid  within  six  months  from  tho  date 
of  the  «ale  to  a  poin't  on  the  road  ad- 
joining tho  said  lots,  and  that  wat<>r 
would  Ix^  supplied  at  £2  ix^r  annum.  If 
the  auctioneers  did  purport  to  make 
any  other  promi.se,  the  defendant  was 
not  bound  thereby.  Defendants  re- 
ferred to  clause  8  of  the  conditions  of 
sale :  "In  case  the  auctioneers  make 
any  mistake  in  the  sale  such  ini.stako 
shall  be  of  no  value,  and  not  binding  on 


the  seller  or  purchaser.'*  The  defend- 
ants denied  that  they  ratified  any  such 
Ijfoniise.  It  was  admit t<>d  on  tne  7th 
April.  1904,  the  auctionet»rs  did,  in  writ- 
ing, purport  to  make  such  a  promise, 
but  that  was  without  the  authority  of 
the  defendants,  and  thereafter  the  de- 
fendants repudiated  such  promise.  The 
defendants  caused  a  main  pipe  to  be 
constructed  to  the  road  adjoining  the 
lots,  and  the  plaintiff  on  his  connecting 
could  have  water  at  £2  per  aiimiim. 
The  defendant  denied  any  obligation  to 
lay  water  on  to  tho  lots  sold,  and  had 
tendered  tran:jfcr  to  the  plaintiff  on 
condition  the  balance  of  the  purchase 
price  was  paid,  which  was  refused. 

Mr.  Updngton  for  plaintiff.  Mr. 
Gardiner  (with  him  Mr.  1*.  S.  T.  Jones) 
for  the  defendants. 

George  Gordon  Samson,  plaintiff,  an 
architect,  of  Oape  Town,  said  he  had 
had  mojiy  transactions  in  land  specula- 
tion, and  had  been  successful  in  several 
deals.  In  March,  1904,  he  attended  the 
sale  in  question.  The  water  supply  was 
undoubtedly  an  important  matter  in  that 
district.  When  the  conditions  of  sale 
were  read  out,  witness  and  others  made 
inquiries  fnxn  Mr.  Zoutendyk  as  to  the 
water  supply.  On  the  31st  March  wit- 
ness wrote  to  the  attorney  of  tho  com- 
pany fisking  for  a  confirmation  of  the 
verbal  promise  made  at  the  sale,  and 
he  was  referred  to  the  auctioneers,   who 

{)ut  it  in  writing  that  the  syndicate  would 
ay  water  on  in  a  4-inch  pipe  within  six 
months,  at  a  charge  not  exoeedinp^  £2 
|)or  annum.  Witness  did  not  claim  a 
4-inch  main  to  each  lot.  Witness  would 
not  have  bid  for  the  lots  without  the  un- 
dertaking as  to  the  water ;  otherwise, 
they  would  bo  useless  for  building  pur- 
poses. The  contracts  were  all  signed  in 
blank,  the  auctioneers  being  left  to  put 
in  the  conditions  afterwards.  Witness, 
on  receipt  of  the  undertaking  for  water 
supply,  forwarded  a  cheque  for  one- 
fourth  of  tho  purchase  price.  Lengthy 
correspondence  between  the  parties  was 
then  read,  from  which  it  appeared  that 
plaintiff  on  August  24  wrote  declining 
to  |)ay  the  second  instalment  until  the 
water  was  laid  on  in  erms  of  the  agree- 
ment. On  October  51,  the  secretary  of 
the  company  wrote  saying  that  the 
directors  of  tho  company  had  decided  to 
lay  at  on  early  date  a  service  pii^e  to  a 
}>oi!nt  close  to  tho  ground  sold  the  pre- 
vious March.  On  December  19  the  secre- 
tary of  the  company  wrote  again,  and 
said  that  the  service  pipe  had  been  laid, 
and  the  plaintiff  could  have  it  connect- 
ed with  his  lots  on  pavment  of  expenses. 
Plaintiff  (continuing)  said  tho  pipe  re- 
ferred to  was  a  1-incli  piix*,  400  or  500 
feet  away,  and  that  would  be  totally  in- 
adequate to  supply  water  if  tho  other 
lots  were  built  upon.  Ho  paid  the  second 
instalment  under  protest.  He  had  built 
a  hou^e  upon  the  ground  he  had  bought, 
but  he   was  put    to  great  inoouvenienoo 


"CAPE  TIMES"  LAW  REPORTS. 


51: 


owin^  to  the  dtst&noe  ho  had  to  go  to 
fetch  water.  He  was  entitled  to  have 
the  water  laid  on  in  a  4-inch  main.  As 
ho  had  been  prevented  from  using  the 
property  through  lack  of  water,  the  house 
ne  had  built  was  useless.  Through  the 
same  reason,  ho  considered  he  had  sus- 
tained £400  damages.  He  wanted,  chief- 
ly, however,  a  declaration  of  rights. 

Cross-examined  by  Mr.  Gardiner:  Be- 
fore bidding  for  the  prop'orty  ho  did  not 
go  to  eee  the  intake.  He  wanted  a 
continuous  domestic  supplv  of  200  ^al- 
lon^  per  house  per  day.  The  1-inch  pipe 
would  not  give  him  sufficient  water.  If 
they  had  a  4-inch  pipe  it  would  more 
than  double  the  supply  of  the  present 
time. 

James  Loubser  Petersen,  a  speculator 
in  land,  who  attended  the  sale  at  Llan- 
dudno, stated  he  only  arrived  after  the 
conditions  of  sale  had  been  read.  In  the 
middle  of  the  sale  he  interviewed  Mr. 
Wakelin,  who  assured  him  that  the 
water  would  bo  laid  from  the  mountain 
ia  a  4-inch  pipe.  Witnea?  bought  the 
last  lot  put  up  for  auction.  Witness  sold 
all  the  lots  to  Mr.  Samson,  who  promis- 
ed him  £15  profit     on  the     transaction. 

Cross-examined  by  Mr.  Gardiner: 
Witness  did  not  remember  Mr.  Wakelm 
saying  that  he  would  begin  with  a  4- 
inch  pipe.  * 

Thomas  W.  Cairncross,  M.I.C.E.,  said 
that  a  1-inch  pipe  would  be  quite  in- 
sufficont  to  supply  all  these  lots.  A  4- 
inch  pipe  wouTd  bo  satisfactory.  Wit- 
ness nad  been  obliged  to  abandon  the 
use  of  3-inch  pipes  in  Cape  Town,  ow- 
mg  to  the  amount  of  corrison  which 
took  place   in  the  pipes. 

Cross^xamined  by  Mr.  Gardi- 
ner: The  inch  pipe  would  not 
carry  more  than  about  9,000 
gallons.  Witness  did  not  know  that 
the  Plumstead  and  Diep  River  supply 
was  carried  through  a  finch  pipe.  If 
that  were  bo,  they  would  very  soon  find 
out  their  mistake.  A  2-inch  pipe  would 
carry  about  82,0130  gallons  a  day.  Start- 
ing with  a  4-ineh,  and  continuing  with 
&  3-inch  pipe,  would  not  improve  the 
"  head." 

By  the  Court:  A  plot  of  ground  was 
worthless  without  water. 

Mr.  Upin^ton  closed  his  Oise. 

Mr.   Gardiner  called 

James  Wakelin.  a  director  of  the 
defendant  company,  who  deposed  that 
he  was  present  at  the  sale.  At  that 
time  an  intake  had  been  constructed, 
but  the  pipes  had  not  been  laid.  Wit- 
ness heard  a  question  asked  by  Sam- 
son about  the  water,  and  he  (witness) 
said  they  had  already  commenced  with 
a  4-incH  main,  and  that  the  water 
lea^iing  to  the  ground  would  be  com- 
pleted within  six  months,  at  a  charge  of 
£2.  No  promise  was  made  to  bring  the 
water  to  the  ground  in  a  4-incli  pipe. 
To  the  best  of  his  recollection,  the 
auctioneer  repeated  what  witness  had 
said.       Witness  did  not  remember  hav- 


ing spoken  to  Mr.  Petersen.  Oo 
Wiener's  Day  witness  met  Samson, 
and  they  had  a  conversation.  Samson 
said  he  was  laying  an  inch  galvanised 
pipe,  and  that  he  did  not  care  what  sort 
of  a  pipe  he  had,  so  long  as  he  got 
water.  Witness  explained  that  there 
had  been  delay  on  account  of  the  iU- 
noss  of  the  contractor.  The  inch  pipe 
was  satisfactory.  Mr.  Samson's  house 
was  a  movable  building. 

Cross-examined  by  Mr.  Upington : 
The  method  of  bringing  the  water  down 
had  not  been  determined  at  the  time  of 
the  sale. 

Williana  Thomas  Oliver,  M.I.C.E^  said 
he  considered  the  pipe  was  sufficient 
to  convey  the   water. 

Cross-examined  by  Mr.  Upington:  A 
4-iuch  pipe  was  not  iieooasary.  Uo 
would  not  say  that  in  two  years'  time 
the  present  pipe  would  deliver  i4,0'y0 
gallons   a  day. 

William  Davis  Lynne,  mechanical 
engineer,  said  he  helped  in  the  layinjj 
of  the  1-inch  pipe.  lie  was  at  the  sale, 
but  he  did  not  remember  hearing  :he 
auctioneer  say  anything  about  the 
size  of  the  pipe.  The  pipe  laid  would 
take  all  the  water  recjuired. 

W.  Troutman  said  ho  was  at  the  sale, 
and  bought  some  ground.  The  auc- 
tioneer said  that  water  would  be  brought 
on  to  the  ground,  but  ho  said  nothing 
about  the  size  of   the  pipe. 

Evidence  was  also  given  by  one 
Singh.      contractor. 

Henry  Wrench,  attorney,  said  he 
was  present  on  the  date  of  the  sale,  and 
bought  five  lots.  A  question  was  put 
to  the  auctioneer  about  the  water,  and 
the  auctioneer  replied  that  water  would 
be  laid  on  to  the  property.  There  was 
nothing  said  about  the  size  of  the  pipe. 

Mr.  Gardiner  closed  his  case,  and 
coimsel  were  then  heard  in  argument  on 
the  facts. 

Buchanan,  A.C.J.,  said  it  was 
clear  that,  beyond  the  undertak- 
ings in  the  conditions  of  sale, 
a  further  undertaking  was  given 
at  the  sale  by  the  defendant  compaiy 
to  supply  water  to  the  ground.  Tlie 
plaintiil  asked  for  a  declaration  thns 
tlie  defenda.nt  company  were  bound  to 
lav  a  4-inch  pipe  to  each  of  the  plots  he 
bought.  Well,  he  was  oert»iinIy  Mot 
entitled  to  that;  all  he  was  entitled  to 
was  a  declaration  in  terms  of  the  under- 
taking given  by  the  defendants  through 
the  auctioneer  at  the  sale.  This  under- 
taking was  set  forth  in  a  letter  wrir, 
ten  Dv  the  auctioneer,  which  was  to 
the  efifect  that  the  syndicate  under 'i;jr 
to  lay  a  4-inoh  main  to  the  ground 
sold  within  six  months  from  the  dato  of 
sale,  and  that  water  would  then  be 
available,  at  a  charge  of  not  oxcee.i- 
ing  £2  per  annum.  All  that  the  de- 
fendants undertook,  therefore,  was  tti 
lay  a  4-inoh  main  pipe  to  the  ground, 
and  not  to  each  of  the  lots  sold.  On 
the      claim      for      damages,      ho      did 


512 


If 


CAPE  tUAER"  LAW  ltEH>llt8. 


not  think  any  damages  had 
been  proYed  to  ha^e  been  sus- 
tained oy  reason  of  the  water  being 
taken  to  this  ground  by  a  1-inch,  instead 
of  a  4-inch  pipe.  The  water  nad  been 
taken  there,  and  be  did  not  see  how 
the  plaintiff  had  suffered  any  damage. 
Judgment  would  be  given  for  the  plain- 
tiff, ordering  that,  as  purchaser  of  these 
plots,  he  was  entitled  to  a  decl&ration 
of  rights,   in   terms   of  the  undertaking 

f riven,  with  the  authority  of  the  de- 
endants,  by  the  auctioneer.  As  to  the 
second  prayer,  it  would  be  ordered  that 
the  defendants  forthwith  pass  trans- 
fer, upon  payment  by  the  plaintiff  of  the 
purchase  price.  As  to  the  costs,  the 
tender  being  insufficient,  the  defen- 
dants would  be  ordered  to  pay  the  costs. 
[Plaintiff's  Attorneys:  Fairbridge.  Ar- 
derne  and  Lawton.  Defendant's:  J. 
F.  Wegc.] 


SECOND    DIVISION 


[Before  the  Hon.  Mr.  Juntice  Hopley.] 


GENERAL  MOTIONS. 


OKRENBERG  Y.   MILLIN. 


f        VM\ 
i  June  MUh 

This  was  an  application  upon  notice  of 
motion,  calling  on  the  respondent  to 
show  cause  why  a  certain  sum  of  £505 
4s.  8d..  attached  by  the  Sheriff  ad  fun- 
dan  flam  jurUdictionenit  in  respect  of  an 
award  in  favour  of  Greenberg  should  not 
be  released. 

It  appeared  that  a  dispute  had  arisen 
between  the  parties  in  regard  to  the  sale 
of  certain  mules.  An  arbitration  took 
place,  and  a  sum  of  £37  lOs.  was  award- 
ed to  one  Honikman.  Greenberg  drew 
a  ch:^quc  accordingly,  but  this  was 
stopped  on  account  of  an  alleged  infor- 
mality in  the  arbitration  proceedings. 

Mr.  Sutton  was  for  the  applicant; 
Mr.   McGregor  was  for  the  respondent. 

Counsel  having  been  heard  in  argu- 
ment on   the   facts, 

Plopley.  J.,  remarked  that  the  pro- 
ceeding Kccmed  to  him  to  be  a  silly  one 
altogether.  The  parties  went  to  arbitra- 
tion, and  then,  when  an  award  was 
made  in  favour  of  the  applicant,  he  took 
exception  to  it. 

Mr.  McGregor  said  that  his  client  was 
now  willing  to  withdraw  the  summons, 
and  to  abide  the  arbitration. 

Hopley,  J.,  said  that  he  was  not 
them  for  the  purpose  of  deciding  whe- 
ther the  arbitration  proceedings  could  be 
upheld. 

In  reply  to  his  lordship.  Mr.  Sutton 
«8ni(l  he  was  willing  to  abide  by  the  ar- 
hii  ration  proceedings. 

Hopley,  J.,  said  the  arbitration 
awarcl,  hiving  been  accepted,  Millin 
could   have  no  further  right  to    the  at- 


tachment of  that  money,  aud  that  money 
must,  therefore,  be  released.  As  to  the 
costs  of  the  application,  it  seemed  to  him 
that  Millin  wba  responsible,  and  must 
consequently  pay  the  costs.  The  appli- 
cation was,  therefore,  granted,  with  oosta. 


Ex  parte  RBTATB  0*ORADT. 

This  waa  a  petition  by  Mary 
Elizabeth  O' Grady,  surviving  spouse 
and  executrix  of  the  late  James 
Edward  O'Grady,  Port  Elizabeth. 
Certain  land  was  bequeathed  to  the 
children  subject  to  a  life  interest  in  fa- 
vour of  petitioner.  There  was  already 
existing  a  bond  for  £1.000  for  the  mter- 
efirt,  on  which  a  summons  had  been  is- 
sued by  the  Court.  There  were  other 
debts,  amounting  in  all  to  £450,  and 
petitioner  asked  tor  an  order  authorieing 
her  to  pass  a  further  bond  for  that 
amount. 

On  the  motion  of  Mr.  J.  E.  R.  de 
Villiers, 

Order  granted  to  prayed. 


Ex  parte  INSOLVENT  B8TATE  WALTEU8. 

Mr.  Gutsche  nioved  for  the  appoint- 
ment of  a  commission  to  examine  cer- 
tain witnesses  wit?h  reference  to  the 
settlement  of  the  insolvent  estate  of 
Albert  Walters,  of  the  Paarl. 

I'hie  application  wa6  granted,  Itfie 
Resident  Magiritrate  of  Paarl  being  »p- 
pcdnted  commissioner,  oasis  to  oome 
out    of    the   estate. 


Ex  parte  COLDRBT. 

Mr.  Gutsche  applied  for  leave  to  sue 
for  divorce  by  edictal  citation.  Peti- 
tioner's wife  left  for  England  on  a  six 
months'  visit  on  January  14,  1903,  and 
petitioner  received  a  letter  from  her 
intimating  t>hat  she  would  not  return. 
She  loft  iher  aunt  in  London,  repre- 
rsenting  tihat  she  was  returning  to 
South  Africa,  but  the  last  petitioner 
heard  of  her  was  that  she  was  in  the 
Lake  District. 

Leave    to    sue    granied,     the    reteirn 
day  being  fixed  for  August  31,  personal 
service   to  be    made   if   poseible,   failing 
which   publication    in    "  Gape      Times 
Weekly  and   "Daily  Telegraph." 


Ex  parte  KOCK 

Dr.  Greer  moved  for  leave  to  sue 
by  edictal  citation  in  an  action  for  the 
restitution  of  conjugal  rights,  failing 
which  divorce.  Tlie  parties  were  mar- 
ried in  1892,  and  resided  in  Pripee  Al- 
bert, and  the  respondent,  Caimerine 
Margerita  Kock.  was  supposed  to  be 
in  the  Transvaal.  The  desertion  took 
place  three    years  ago. 


»< 


CAPE  TIMES"  LAW  REPORTS. 


513 


Leave  to  sue  granted,  cit^ion  to  be 
returnable  on  August  31.  Pensonal  ser- 
vice  was  ordered  to  be  made  if  possible, 
and,  failing  that,  publication  twice  in 
'*0n8  Land"  and  '^  De  Trans  vaalcr." 


£x  parte  JOBDAAN. 

Mr.  Swift  moved,  ou  behalf  of  peti- 
tioner, as  executrix  dative  in  the  estate 
of  her  late  parents,  for  an  order  con- 
firming the  sale  by  auction  to  iicr  of 
portion  of  certain  farm  in  the  district 
of  Jansenville. 

Oraer  granted    ae  prayed. 


£»  parte  WIOflBTT. 

Mr.  Benjamin  moved,  on  behalf  of 
the  petitioner,  who  rebidee  at  Oudts- 
hoom.  for  leave  to  sue  his  wife  by 
ediotal  citation  for  restitution  of  con- 
jugal rights,  failing  whidh  divorce.  It 
was  stated  that  Mrs.  W^gett  was  resid- 
ing at  Epsom,   England. 

Leave  to  sue  by  edicted  citation  was 
granted,  citation  to  bo  returnable  Sep- 
tember 30,  and  personal  i»ervice  to  be 
effected. 


jfc'vT  pat'te  JOUBEUT. 

Mr.  J.  E.  R,  dc  Villiers  moved  for 
leave  to  petitioner  to  enter  into  a  pertain 
partition  of  propertv.  Counsel  said  that 
the  matter  had  ocen .  standing  over 
pending  a  report  from,  the  Master,  and 
consent  of  the  major  heir,  w'hich  had 
Qow  been  obtained. 

The  Master's  report  was  favourable. 

Order  granted  aa  prayed. 


Ex  parte  FICK. 

Mr.  Roux  moved,  onbohalf  of  petition- 
er, for  cancellation  of  the  sale  of  certain 
land  for  £800,  in  the  village  of  Piquet- 
berg,  to  Carlton  Miller  Tanner,  late  of 
Cape  To^n,  and  now  of  the  Unit<»d 
^ates.  The  purchaser,  he  said,  had 
paid  £100  as  deposit,  but  had  not  made 
any  further  payment,  and  he  was  found 
to  have  no  property  in  this  colony. 
Notice  had  been  served  upon  the  Rov. 
A.  H.  Atiaway,  of  Cape  Town,  who 
held  Mr.   Taimer's  power  of  aibtorney. 

Rule  nui  granted  calling  upon  the 
Rev.  A.  H.  Attaway  to  show  cause  why 
an  order  should  not  be  made  as  prayed, 
rule  to  be  returnable  on  the  last  day  of 
term. 

Poiiea  (July  14th), 

Mr.  Roux  moved  for  the  rule  nisi  to 
be  made  absolute  calling  upon  the  Rov. 
A.  H.  Attway,  the  defendant'.*?  Rgont 
in  this  country,  to  show  cause  why  a 
certain  sale  of  property  should  not  be 
cancelled. 


Buchanan,  A.  C  J.,  said  that  affi- 
davits had  been  received  to  the  effect 
that  third  parties  had  built  upon  the 
ground.  The  owtter  must  staiid  oyer 
until  the  first  day  of  next  term  to  give 
the  third  parties  an  opportunity  of 
showing  cause. 

Potiea  (August  3rd). 

Mr.  Roux  moved  for  the  csjioollation 
of  the  sale  of  a  certain  piece  of  land 
about  26  nK)rgon  m  extent  in  Xho  village 
of  Piquotborg,  the  price  being  £800,  of 
which  the  balance  of  £700  had  not  boon 
paid. 

Mr.  Gsrdiner,  for  respondent,  who  was 
in  America,  and  was  returning  in  Sep- 
tember, opposed  the  application,  and 
submitted  that  the  respondent  had  made 
out  a  good  oase  for  being  allowed  time 
to  pay  the  balance,  and  that  the  rule 
should  bo  set  aside.  The  balance  was 
tendered  in  January,  1904,  but  transfer 
could  not  be  granted  by  Pick. 

Mr.  Roux  argued  that  it  would  be  a 
groat  injustice  to  applicant  of  the  rule 
was  not  m^de    absolute. 

Buchanan.  A.  C.  J.,  said  he  thought 
it  was  most  probable  that  if  Fiok  had 
sot  out  statements  which  were  now  in 
the  possession  of  the  Court,  he  would 
not  have  got  his  rule,  and  on  the  sole 
ground  that  information  was  suppressed, 
the  rule  must  be  set  aside. 


Eg  parte   SACKS  AND  ANOTHER. 

Marriage  Ordinance — Description 
of  status  of  spouses. 

S.  and  his  wife  had  been  mar- 
ried accordinff  to  Ilehrew 
rites  at  Nervals  Pont  by  the 
Rabbi  of  Bloetnfontein.  S. 
wfiH  domiciled  in  this  Col<yny. 
Ifdviufj  some  doubt  as  to  the 
civil  validity  of  their  marriafjv^ 
they  wished  to  be  re- married 
by  a  Colonial  Magistrate^ 
hut  having  some  scruples  as 
to  desc^'ibing  themselves  as 
^  bachelor  "  attd  "  spinster,^*  in 
view  of  their  previous  mav' 
riage,  they  now  asked  for  an 
order  authorizing  a  Maffistrate 
to  marnj  them  without  their 
so  describing  themselves.  The 
Court  refused  to  mahc  any 
order. 


This  was  an  application  of  the  peti- 
tioners Hermann  Sacks  and  T^one  Hetrz- 
berg,  of  Bellyille,  for  an  order  author- 
ising the  petitioners  to  bo  married  be- 
fore the  Resident  Magistrate,  without 
making  the  special  declaxaition  that  they 


5i4 


(< 


CAPE  TIMBS''  LAW  ttEdPOfttft. 


are  bachelor  and  spinster,  and  author- 
ising a  certain  ante-nuptial  contract  en- 
tered into  by  them  to  be  registered  in 
the  Deeds  Office.  From  the  petition, 
it  appeared  that  the  parties  had  already 
gone  through  a  form  of  marriage,  ac- 
cording to  the  rites  of  the  Jewish 
Church,  before  tue  Rabbi  of  Bloem- 
fontcin,  the  ceremony  being  performed 
at  Norvars  Pont.  There  was  some 
difficulty  about  arranging  for  the  cere- 
mony, owing  to  there  being  no  other 
Jewish  minister  available,  and  then  the 
parties,  in  their  dilemma,  wired  for  the 
Rabbi  from  Bloemfontein.  Since  com- 
ing back  to  the  Cape,  they  had  been 
iiitormed  that  the  marriage  was  not 
valid,  inasmuch  as  the  Rabbi  was  not 
a  marriage  officer  of  the  colonv.  On 
this  point,  however,  they  were  by  no 
means  certain ;  but  in  order  to  put  the 
matter  beyond  doubt,  they  were  pre- 
pared to  go  through  a  form  of  marriage 
by  special  licence  before  the  Magis- 
trate, provided  the  usual  description  of 
bachelor  and  spinster  wore  omitted  from 
the  special  declaration. 

[Hopley,  J. :  Why  did  they  not  send 
for  the  Rabbi  and  let  him  marry  them 
across  the   river ?J 

Dr.  Greer:  1  think  that  the  diffi- 
culty has  been  that  the  marriage,  al- 
though irregular,  might  possibly  be 
hold  to  be  valid.  Religiously,  they  say 
they  are  married,  and  they  cannot  de- 
scribe themselves  as  bachelor  and 
spinster. 

[Hopley,  J. :  When  were  they  mar- 
ried?] 

Dr.  Greer:  On  the  6th  June.  On 
their  return  to  Cape  Town,  they  were 
advised  that  there  was  some  doubt  as 
to  whether  the  marriage  was  valid. 

[Hopley,    J. :        If    they    had    walked 


across  the  bridgSL  there  would  have  been 
no  further  trouble.] 

Dr.  Greer  submitted  that  it  was  quite 
clear  that  the  Rabbi  had  no  authority 
to  marry  in  this  colony. 

[Hopley,  J.:  If  they  are  already 
validly  married,  I  see  no  need  for  them 
to  renrarry,  and  the  Court  ought  not 
to  give  an  order  for  their  remarriage. 
Whv  can't  they  ^  describe  themselves  as 
bacnelor  and  spinster?  There  is  no- 
thing against  the  character  of  these 
people  in  what  they  have  done.] 

Dr.  Greer:  They  have  been  cobabit- 
ing,'  and  thev  don|t  regard  themselves 
as  bachelor  and  spinster. 

[Hopley,  J.,  said  he  thought  that 
the  marriage  had  already  got  validity, 
even  if  it  were  solemnised  by  a  person 
who  was  acting  beyond  the  scope  of  his 
jurisdiction.  He  did  not  feel  altogether 
satisfied  about  making  the  order  asked 
for. 

Dr.  Greer  (answering  his  lordship)  said 
that  before  the  marriage  the  bride 
seemed  to  have  been  living  with  some 
relatives  at  Nerval's  Pont. 

Hopley,  J.,  after  oonsultmg  the 
Marriage  Ordinance,  said  that  be  did 
not  see  his  way  to  make  an  order  on  the 
present  application.  If  the  parties 
found  on  applying  to  the  Magistrate, 
that  he  would  not  act,  in  spite  of  their 
describing  themselves  as  being  civily, 
so  far  as  the  law  was  concerned,  a 
bachelor  and  spinster,  then  they  could 
come  to  the  Court  again,  and  perhaps 
the  C-ourt  would  give  them  relief.  He 
would  advise  them  not  to  be  squeamish, 
and  if,  so  far  as  the  civil  law  was 
concerned,  they  were  ^  bachelor  and 
spinster,  not  to  stand  in  their  own 
light  by  not  putting  that  {act  on  paper. 
No  order  would  be  made  at  present. 


I 


*'Cape  Times"  Law  Reports. 


CASES  DECIDED  IN  THE  SUPEEME  COURT, 


CAPE   COLONY. 


SUPREME  COURT 


[Before  the  Acting  Chief  Justioe  (the 
Hon.  Sir  John  Buchanan),  and  the 
Hon.  Mr.  Justice  Hoplet.J 


OLI VIBB  V .  8CH00MBBB  AND  (        1906. 

0THBB8.  \  July  3rd. 

Will,  joint — Sale  intra  familiam — 
Vesting. 

S.  and  his  tci/e  made  a  joint 
will,  whereby  they  bequeathed 
their  entir^  estate  to  the  survivor 
and  the  children  of  their 
marriage  as  their  sole  heirs. 
By  a  cocUcil  to  thts  will  the 
testators  directed  that  a  certain 
farm  in  their  estate  should  not 
fall  Wider  the  provisions  of  the 
willy  but  should  be  bequeathed 
to  their  five  sons  for  £500  ; 
whidi  amount  was  to  be  paid 
after  the  death  of  the  survivor 
to  the  three  daughters  of  the 
testators.  In  a  special  case 
stated  the  plainUjfs  contended 
thai  no  portion  of  the  inherit- 
ance vested  in  either  of  the 
two  minor  sons  who  predeceased 
the  survivor,  and  that  subject 
to  payment,  pro  rata,  of  their 
share  of  the  £500,  the  plaintiff, 
through  his  wife,  as  a  benifi- 
ciary  untier  the  will,  tras  now 
eniitleil  to  a  share  in  the 
inheritance  of  the  minor  sons 
deceased.  The  defendants 
(h>fiied  that  mi  the  death  of  Uie 
survivor  the  deceased  minors 

1.1 


acquired  any  vested  interest  in 
the  said  farm. 

Held,  in  favour  of  pUUntiff's 
contention. 


Thia  was  a  special  case  stated  in  the 
following  terms: 

1.  The  plaintiff  is  Comeyus  Hermaaus 
Oliyier,  of  Wodehouse^  married  in  com* 
muniiy  of  property  to  Dina  Margaietha 
Olirier  (bom  Beukes)  hereinafter  oatted 
th»  testatrix,  surTiring  spouse  of  the  late 
Andries  Godlieb  Sohoombe,  hereinafter 
called  the  testator. 

2.  The  defendants  are: 

(a)  Jan  Albertus  Behoombe,  also  of 
Wodehouse,  in  his  indiyidual^  capacity 
and  also  aa  the  executor  dative  in  the 
estates  of  the  late  Andries  Albertus 
Schoombe,  Pieter  Hendrik  Sohoombe 
and  Elsie  Jusena  Schoombee. 

(b)  Jacobus  Nicholaa  Schoombee,  at 
present  of  Cape  Town. 

(c)  Hans  Jacob  Schoombee,  of  Wode- 
house. 

(d)  Gideon  Andries  Godlieb  Schoombee, 
married  in  commuity  of  property  to 
Gerbreg  Lerina  Schoombee,  of  Wode- 
house. 

(e)  Christian  Petrus  Naude,  of  Steyns- 
burg,  in  his  individual  capacityj  and 
also  as  the  executor  testamentary  m  the 
estate  of  bis  late  wife  Johanna  Mag- 
dalena  Naude  (born  Schoombee),  and  as 
the  faliher  and  natural  guardian  of  his 
minor  children  Andries  Godlieb  Naude, 
CThristian  Petrus  Naude,  EUie  Petronella, 
Naude  and  Johanna  Magdalena  Naude. 

3.  Prior  to  his  marriage  to  the  testa- 
trix, the  testator  was  married  to  one 
Dorothea  Maria  Elisabeth  Henning,  and 
had  as  issue  of  the  said  marriage  two 
children,  Gerbreg  Levina  and  Johanna 
Magdalena  by  name,  who  are  the  per- 
sons referred  to  in  paragraph  2  (d)  and 
(e)   hereof. 

4.  By  his  marriage  with  the  testatrix 
the   testafof  had  W  children,  'namtly, 


516 


<f 


CAPB  TIMES"  LAW  REPORTS. 


the  first  three  defendants  and  the  said 
late  Andries  Albertus,  Pie  tor  Hcndrik 
<and  Elsie  Juseua,  referred  to  iu  para- 
graph 2  (a)  lieroaftor. 

5.  On  or  about  the  9th  of  May,  1864, 
the  testator  and  testatrix  executed  to- 
gether a  will,  cop^  whereof,  together 
with  a  true  translation,  is  hereunto  an- 
nexed marked  "A,"  whereby  the  testa- 
tor instituted  the  testatrix  (now  t)ie 
wife  of  the  plaintiff)  together  with  'he 
two  children,  issue  as  aforesaad  of  li?s 
pHreviouB  marriage  with  iflie  testatrix 
ae  his  heirs;  whilst  the  testatrix  ap- 
pointed the  testator  and  the  children 
bom  or  to  be  bom  of  their  marriage  as 
her  heirs. 

6.  The  said  will  also  provided  that 
the  survivor  should  remain  in  the  ab- 
solute and  undisturbed  possession  of  the 
estate  in  order  to  be  better  able  to 
educate  and  maintain  the  minor  chil- 
dren until  the  latter  attained  the  age 
of  majority,  married,  or  attained  some 
other  approved  age,  when  each  liad  to 
be  paid  out  his  or  her  share  of  the  in- 
heritance. 

7.  On  or  about  the  6rth  of  June,  1881, 
the  said  testators  executed  a  codicil  to 
the  eaid  will,  copy  whereof  together 
with  a  true  translation  is  hereunto  an- 
nexed marked  "  B,"  whereby  they  de- 
clared to  have  sold  their  farm  Laf- 
krantz,  in  the  district  of  Wodehouse, 
to  their  said  five  sons  for  the  sum  of 
£500,  to  be  paid  to  the  said  Gerbreg 
Levina,  Johanna  Magdalena  and  Elsio 
Jusena  Scboombee  after  the  death  of 
the  survivor. 

8.  The  testator  died  on  the  12th  of 
June,  1881,  leaving  the  said  will  and 
codicil  of  full  force  and  effect  and 
leaving  him  surviving  his  said  spouse, 
the  testatrix  (now  the  wife  of  the  plain- 
tiff), and  all  his  said  children. 

9.  The  testatrix  adiated  under  the  said 
will  and  codicil,  and  has  remained  in 
full  possession  and  enjoyment,  up  to 
the  present,  of  the  eaid  farm  Lafkrantz. 

10.  The  said  sons  of  the  t<»^statore.  An- 
dries Albcrtus  and  Pieter  Hondrik  and 
their  said  daughter  Elsie  J\isena,  died 
intestate  being  minors  and  unmarried, 
on  the  26th  Auguert,  1888,  the  3rd  of 
July,  1888,  and  the  15th  of  July,  1888, 
respectively. 

11.  Thereafter  first  defendant  was 
duly  appointed  executor  dative  in  the 
estates  of  his  said  deceased  brothers 
and  his  said  deceased  sister,  and  letters 
of  administration  were  taken  out  by 
him  in  each  of  the  said  estates  on  the 
15th  of  October.  1904.  No  account  has 
been  filed  yet  by  the  said  executor  in 
any  of  the  said  estates,  but  they  are 
being  administered  by  him. 

12.  On  the  21st  of  June,  1900,  the 
said  Johanna  Magdalen  a  Schoombee, 
who  was  during  her  lifetime  married  in 
community  of  property  to  Christian  Pe- 
trus^  Naudc  (the  5th  defendant),  died, 
leaving  five  children,  issue  of  her  mar- 
page,   whoso    names   are   set   forth    in 


paragraph  2  (e)  hereof,  and  leaving 
also  a  will,  under  which  she  appointed 
her  said  husband  and  their  said  children 
her  heirs,  her  said  husband  was  also  ap- 
pointed executor  testamentary  in  her 
estate  and  he  took  out  letters  of  ad- 
minicrtration  as  such  on  the  13th  ol 
February,  1905. 

The  plaintiff  contends: 

(a)  That  each  of  the  said  two  de- 
ceased sons,  Andries  Albertus  and 
Pieter  Hendrik  had  at  the  dates  of 
their  respective  deaths  a  vested  right 
to  a  one-fifth  share  in  the  said  farm 
Lafkrantz  and  that  their  intestate  es- 
tates, of  which  the  plaintiff  is  tibrough 
his  wife  (the  testatrix)  an  heir,  are 
now  entitled  to  sudh  shares  in  the  said 
farm,  subject  to  their  paying  in  their 
respective  portions  of  the  bequest  price 
of  £5(X)  to  the  three  said  daughters  or 
t>heir  estates. 

(b)  That  the  intesate  estate  of  the 
said  deceased  dauf^hter,  Elsie  Jusena 
Schoombee,  of  which  the  plaintiff  is 
also  an  heir,  is  entitled  to  a  one-third 
share  in  the  said  bequest  price  of  £500. 

The  defendants  contend : 

(a)  That  on  the  death  of  the  testator, 
'his  son  Andries  Albertus  and  Pieter 
Hendrik  did  not  acquire  a  vested  in- 
terest in  anv  share  of  the  said  farm, 
and  that  the  two-fifths  thereof  does 
not  form  part  of  the  esates  of  such  sons 
or  either  of  them ;  and  that  the  said 
estates  are  not  now  entitled  to  such 
shares  in  the  said  farm  as  alleged  in 
(a)  of  plaintiff's  contention. 

(b)  That  the  whole  of  the  eaid  farm 
vests  in  the  three  surviving  sons,  or 
such  ol  them  as  may  survive  the  testa- 
trix, on  her  death,   but  not  before. 

(c)  That  on  the  death  of  the  testa- 
trix, the  sons  surviving  her  will  have 
to  pay  for  the  said  farm  the  sum  of 
£500  into  the  estate  of  teetator  and 
^statrix  for  the  benefit  of  such  daugh- 
ters as  survive  testatrix. 

(d)  That  the  estate  of  the  deceased 
daughter,  Elsie  Jusena  Schoombie,  is 
not  entitled  to  one-hird  share  in  the 
bequest  price  of  £500,  inasmuch  ae  the 
said  daughter  acquired  no  vested  right 
in  the  said  bequest  price  or  any  por- 
tion  thereof. 

To  all  and  every  one  who  shall  see 
this  public  Act  or  hear  it  read,  be  it 
known : 

That  on  the  ninth  day  of  the  month 
of  May  in  the  year  of  our  Lord  One 
thousand  eight  and  sixty  four,  there 
appeared  before  us,  the  undersigned  two 
witnesses  expressly  called  for  the  pur- 
pose, Mr.  Andries  Godliep  Sohoonbe 
and  Mrs.  Dina  Margaretha  Beukes  re- 
siding on  the  farm  Tigerhoek,  Dis- 
trict of  Aliwal  North,  spouses,  known 
to  us.  the  witnesses  sound  in  body,  in 
full  possession  and  use  of  mind,  mem- 
ory and  understanding,  as  appeared  at 
the  pas.sing  of  these  presents. — 

Who  declare  to  be  disposed  and  to 
have  resolved  to  make  disposition  of  tl^e 


"CAPE  TIMES"  LAW  REPORTS. 


517 


property  to  be  relinquieihed  by  them  on 
demise,  00  doing  (as  they,  the  testa- 
ton)  declare  of  their  own  free  "will, 
without  the  advice  or  perBuasioii  of  any 
one  whomsoever,  to  that  end  ainiiilling 
all  testazneut«,  codicils  and  all  other 
testunentary  acts  whicih  they,  either 
jointly  or  severally,  may  have  executed 
and  passed  previous  to  the  date  of  these 
presents,  therefore  not  wishing  or  de- 
siring tnat  all  or  any  of  the  same,  after 
the  passing  of  these  presents,  shall  be 
of  the  least  power  or  value,  but  that  on 
the  contrary  they  shall  be  regarded  as 
if  they  had  never  been  passed. 

And  as  his  universal  heirs  to  nominate 
and  appoint  (1)  'his  wife,  the  testatrix 
herein;  (2)  his  children  begotten  of  his 
first  marriage  with  his  deceased  wife  the 
late  Dorothea  Maria  Elizabeth  Ilenning, 
named 

1.  Gerberg  Levina  and 

2.  Johanna  Magdalena, 

together  with  such  child  or  children  as 
are  already  bom  or  still  to  be  born  of 
this  his  present  marriage,  and  such  to 
all  the  property  to  be  relinquished  by 
iiim  oD  demise,  movable  as  well  as  im- 
movable acts  and  credits,  inheritances 
and  expectancies,  nothing  whatever  ex- 
cepted to  be  assumed  and  possessed  for 
always  as  free  personal  property  by  his 
aforententioned  heirs,  and  in  case  of 
predeceaiie  of  one  or  more  of  them,  the 
lawful  descendants  of  the  same  by  re- 
presentation, 'without  the  contradiction 
of   any  one   whomsoever. 

The  testatrix,  likewise  making  dis- 
position of  the  property  to  be  relin- 
quished by  her  on  demise,  hereby  de- 
clared to  bequeath  to  and  to  nominate 
and  appoint  as  her  universal  heira  (1) 
her  husband,  the  testator  herein,  to- 
gether with  such  child  or  children 
as  are  already  born  or  etill  to  be  bom 
of  this  her  present  marriage,  and  such 
to  all  the  property  to  be  reldquished  by 
her  on  demise,  movable  as  'well  as  im- 
movable, acts  and  credits,  inheritanoies 
and  expectancies,  nothing  whatever  ex- 
cepted, to  be  assumed  and  possessed 
for  always  as  free  personal  property  by 
her  aforementioned  heira,  and  in  case 
of  predecease  of  one  or  more  of  them, 
the  lawful  descendants  of  the  same  by 
representation,  without  the  contradic- 
tion of  ony  one  whomsoever. 

And  in  order  to  be  able  to  ascertain 
the  portions  of  their  heirs,  they  do 
hereby  desire  and  testate  that  six  weeks 
after  the  death  of  one  of  them,  their 
estate  shall  be  inventoried,  and  shall  be 
appraised  by  two  good  and  well  reputed 
men  and  in  that  way  adjusted,  the  sur- 
vivor of  them,  however,  to  remain  in 
full  and  undisturbed  possession  of  the 
estate,  in  order  the  better  to  be  able 
to  bring  up  and  maintain  the  minora  on 
the  usufruct  of  their  portions  until  their 
majority,  marriages  or  other  approved 
states,  at  which  time  there  shall  be  paid 
out  to  each  of  them  their  portions. 

Pnrtl^er,  t}^  testators  declare  to  here- 


by nominate  and  appoint  as  their 
executora  testamentary  administratora  of 
their  e)<tatc  and  guardians  of  their 
minor  heirs  the  survivor  of  them  with 
power  of  assumption,  substitution  and 
surrogation,  and  with  the  express  will 
and  oosire  that  the  said  executors  shall 
not  be  held  and  bound  to  file  with  the 
Master  of  the  Supreme  Court  or  any 
Magistrate  a  statement  and  inventory 
of  their  Estate. 

Finally  the  testatore  declared  ex- 
pressly to  reserve  to  themselves  the 
power  and  right  at  all  times  to  alter 
this  their  final  disposition — (except  the 
appointment  of  heira)  consequently  to 
add  thereto  or  take  therefrom  as  they 
may  be  advised,  either  by  separate  act 
or  at  the  foot  of  this  will, — desiring 
that  all  such  alterations  so  found  and 
under  their  own  signatures  shall  be  re- 
garded as  if  the  same  had  been  literally 
(inserted  herein. 

All  the  aforewritten  having  been  read 
to  the  testatora  word  for  word,  they 
declared  to  have  well  understood  and 
comprehended  the  same,  and  this  to  be 
their  testament  and  final  will,  with  the 
desire  that  in  all  parts  it  may  be  valid 
and  take  effect  as  such,  either  as  a 
solemn  tesstament,  codicil,  donatio  mor- 
tis rnuaa  or  as  may  best  consist  with 
law, — notwitlistanding  any  solemnities 
may  have  been  omitted  which  the  tes- 
tators hereby  regard  as  having  been  in- 
serted, imploring  the  utmost  benefit  un- 
der the  law. 

Thus  testated  and  passed  at  Tiger- 
hoek.   District  of  Aliwal  North 

day  month  and  year  aforesaid. 

Testators : 

(Sgd.)    A.    G.    SCHOOMBEE, 
D.  M.  BEUKES. 

As  Witnesses: 

(Sgd.)  H.  G.  N.  Strydom, 
N.  G.  Human. 


»> 


f< 


B." 


Further  we  the  testatora  declare  that 
we  sell  the  farm  Lafkrantz,  in  the  Dis- 
trict of  Wodehouse,  to  our  five  sons  Jan 
Albertus,  Andries  Albertus,  Jacobus 
Necolas,  Hans  Jaoob  and  Pieter  Hen- 
drik  Schoombie,  for  the  sum  of  five 
hundred  (£500)  pounds  sterling. 

The  abovementioned  five  hundred 
pounds  sterling  shaJl  be  paid  to  Ge- 
brig  Levena  and  Johanna  Magdalena 
Scnoohie  and  Elsie  Susena  Schoonbie 
after  the  death  of  the  survivor. 

Thus  agreed  and  signed  ibefore  the 
two  witnesses,  on  this  sixth  day  of 
June  in  the  year  One  thousand  eight 
hundred   and  eighty  one. 

Witnesses : 

(Sgd.)    C.   J.   Bekker 

P.    H.    de   Villiera 

Tefftatore : 

(Sgd.)    A.  G.  Schoombie 
,,        D.   M.   Beukes. 


618 


"CAPS  TIMES"  LAW  REPORTS. 


Bir.  Burton  for  plaintiflf.  Mr.  Searle, 
K.C.,  for  defendant. 

Ml.  Burton  said  the  question  to  de- 
cide waa  whether,  in  view  of  the  terms 
of  the  codicil,  theae  two  sons  and  the 
daughter  who  died  after  the  testator— 
whether  at  the  death  of  the  testatoi 
there  was  vested  in  them  the  share  of 
the  farm  that  was  sold.  The  question 
was.  whether  the  vesting  of  the  rights 
of  these  children  took  place  at  the  death 
of  the  testator,  or  whether  the  vesting 
was  postponed '  until  the  death  of  the 
survivor.  It  was  dear,  if  the  mother 
had  a  usufruct*  that  the  bequest  vested 
upon  the  death  of  the  testator. 

Mr.  Searle  said  the  caee  was  a  very 
peculiar  one,  because  here  they  had  the 
survivor  of  an  estate  who  wished  to  have 
it  declared  that  she  wss  entitled  to  a 
certain  portion  of  a  farm  that  would  not 
be  divioed  until  her  decease,  and  to 
money  which  would  be  paid  by  those 
who  survived  her.  He  did  not  think 
A  case  could  be  found  that  would  prove 
that  the  survivor  was  entitled  to  money 
that  did  not  come  due  until  her  de- 
mise. 

[Buchanan,  A.  C.  J. :  What  becomes 
of  the  money   then?] 

Mr.  Searle:  It  goes  into  the  estate. 
Continuing,  he  contended  that  no 
authority  could  be  quoted  to  show  that 
she  was  entitled  to  the  money  that  was 
eventually  to  be  paid.  They  held  that 
at  the  death  of  the  testatrix  the  sons 
surviving  would  have  to  pay  into  ^  the 
estate  on  behalf  of  the  surviving 
daughters. 

[Hoplev,  J. :  But  suppose  there  are 
no  daughterB?] 

Then  the  money  will  be  paid  into  the 
estate.  He  contended,  firstly,  that  the 
heirs'  shares  did  not  vest  until  the 
death  of  the  surviving  spouse,  and 
that,  consequently,  the  plain<tiffs  oould 
not  have  any  right  at  all  until  the 
death  of  the  widow ;  and,  second- 
ly, that  even  if  this  were  not 
granted  in  reference  to  the  landed  pro* 
perty,  and  if  it  was  held  to  vest  on  the 
death  of  the  first  dying,  at  any  rate, 
the  share  of  the  £600  belong- 
ing to  the  estate  of  the  daughter 
who  died,  oould  not  be  claimed  by  the 
plainftiffs,  buft  must  be  divided  among 
the  surviving  sirten. 

Buchanan,  A.  C  J. :  The  late  Mr. 
Schoombee  tftnd  his^  wife  now  married 
to  plaintiff,  called  in  the  special  ca^e 
fho  testator  and  testatrix,  made  a  joint 
will,  and  in  this  will  the  testator  bo- 
queathed  his  estate  to  his  wife  end 
the  children  as  his  sole  and  univerc^l 
heirs.  There  was  no  dispute  concern- 
ing this  will,  but  by  a  codicil  the  tes- 
tator and  testatrix  took  out  of  their 
estate  the  farm  in  ouestion,  and  this 
they  beciueathed  to  tneir  five  sons  for 
the  sum  of  £600,  the  amount  to  be 
paid  after  the  death  of  the  survivor  to 
the  three  daughters.  The  fint  ques- 
tion the  Court  hse  to  decide  is  whether 


I 


I 


or  not  this  codicil  gave  the  sons  a 
vested  interest  in  the  property.  On 
the  death  of  the  testator  the  surviving 
widow  adiated,  so  that  she  is  bound  by 
the  bequest.  Though  the  codicil  speaks 
of  a  siale,  it  was  really  a  bequest  of 
the  farm  upon  condition  of  payment 
of  a  certain  sum.  It  is  true  that  this 
payment  was  postponed  until  after  the 
death  of  the  survivor,  but  according 
to  the  current  of  decisions  in  this 
Court  the  bequest  took  eecfft  imme- 
diatelv.  That  waa  in  accordance  with 
the  cladm  made  in  the  previous  action 
between  the  same  parties.  The  Court 
then  heki  that  the  will  and  the  oodioil 
were  such  as  to  give  the  survivor  the 
right  to  the  enjoyment  of  this  pro- 
perty during  her  life.  That  certainly 
cleared  awajr  ajiy  difficulty  that  niigbt 
have  arisen  in  deciding  the  question  of 
veerting.  Taking  it  therefore  that  the 
property  vested  on  the  death  of  the 
testator,  it  is  stated  as  a  fact  that  the 
five  soiirt  were  alive  at  that  tame.  Two 
sons  have  died  since  then,  but  as  the 
property  vested  in  them  it  now  went  to 
their  estate,  subject  to  the  payment  of 
the  purchase  price,  which  was  not  pay- 
able until  after  the  death  of  the  sur- 
vivor. Then  comes  the  question  of  the 
postponement  of  the  daughters.  They, 
too,  were  all  alive  at  the  death 
of  the  testator,  but  since  then  one  had 
died  while  a  minor  and  intestate,  and 
another,  who  was  married  to  one  of  the 
defendant'*,  had  aho  died.  The  ques- 
tion was,  were  theee  two  daughters' 
estates  entitled  to  their  share  of  the 
£600.  It  was  not  an  uncommon  thing 
for  farmers  to  bequeath  land  to  their 
sons  at  a  price  to  be  paid  to  the  daugh- 
ter at  the  testator's  death.  They  thus 
preserved  the  property  to  the  sons,  but 
so  as  not  to 'be  unjust  to  the  daughters 
daughters  they  bequeathed  the  purchase 
money  to  them,  which  was  usually  an 
equivalent  to  what  would  be  the  sfhare 
of  the  daughters  in  the  property;  thus 
putting  the  children  on  an  equal  foot- 
ing. If  the  sons  took  a  vested  interest 
in  the  land  bequeathed,  the  daughters 
ought  in  justice  to  take  a  vested  right 
to  the  money  which  was  to  compensate 
them  for  the  loss  of  their  shares  in  the 
property.  I  am  of  opinion,  therefore, 
that  the  whole  of  the  plaintiff's  conten- 
tion should  be  sustained  and  judgmcMit 
given  accordingly.  The  costs  must  come 
out  of  the  estate. 

[Plaintiff's  Attorneys:  Walker  and 
Jacobsohn ;  Defendants'  Attorneys : 
Fairbridge,  Arderne  and  Lawton.] 


WEST   AKD  ELCOATE  V.   LONDON  ABSU- 
RANCE  CO. 

Mr.  SeaHe,  K.C.,  moved,  on  behalf 
of  the  trustee  in  the  ei^tste  of  West  and 
Elcoa^te,  for  leave  to  take  evidence  on 
conunission.    lie  respondents  consented. 

Gran'ledj  ootfto  to  be  coots  in  the  caae. 


"OAPB  TIMES"  LAW  REPORTS. 


i(19 


RBX  V.  MEIZENHBIMBR. 

This  was  an  appeal  against  a  oonvic- 
iion  and  eentenoee  hj  the  Assistant 
Reflident  Magistrate  of  Cape  Town.  Mr. 
Pymoint  for  the  Government;  Dr. 
Greer  for. the  appellant. 

Mr.  Gardiner  tor  the  Town  Council, 
who  were  called  upon  to  show  cause 
why  they  should  not  be  ordered  to  pay 
costs. 

Dr.  Greer  said  the  appellant  was 
charged  on  ithe  9th  June  uuBt  with  con- 
travening eeotion  212  of  the  Cape  Town 
Munioipal  Regulations,  framed  under 
Act  26  of  1903,  and  on  a  second  count 
he  was  ohajr^ed  with  wrongfully  and 
unlatwfully  hindering  a  certain  police 
sei^eant  in  the  discnarge  of  his  divty. 
Prisoner  was  convicted  on  both  counts, 
and  sentenced,  on  the  firet,  to  pay  a 
fine  of  £2,  or  in  default  to  undergo  14 
days'  imprisonment,  and,  on  the  second, 
to  three  months'  imprisoncnent,  with 
hard  labour,  the  sentences  to  bo  cumu- 
lative. Against  that  conviction  and  sen- 
tence he  no<w  apj[>ealed  on  the  grounds 
that  the  conviotion  was  against  the 
weight  of  evidence,  "that  the  accused 
was  the  wrong  person  in  the  dock,  which 
place  oug'ht  reallv  to  be  occupied  by 
the  police  constable." 

[Buchanan,  A.C.J. :  What  does  that 
mean?] 

Dr.  Greer :  It  means  that  he  alleges 
that  it  was  he  who  was  reallv  assaulted, 
and  that  the  police  oonataible  ought  to 
have  been  in  Uie  dock. 

[Buchanan,  A. C.J. :  It  should  not  be 
put  in  that  way.] 

Dr.  Greer  said  that  a  further  ground 
of  appeal  was  that  "  in  other  respects 
the  verdict  and  sentence  were  vindictive 
and  excessive,  and  not  in  accordance 
with  substantial  justice." 

Counsel  read  tne  evidence.  The  alle- 
gations for  the  prosecution  were  that 
the  defendant,  a  registered  wa^on 
driver,  approached  a  sergeant  of  police, 
and  asked  him  to  remove  another  man 
from  a  position  which  he  alleged  the 
man  had  "jumped."  The  sergeant  hold 
that  the  other  man  was  in  the  right, 
and  thereupon  told  the  defendant  to 
"pull  out"  from  where  he  was.  De- 
fendant refused,  ^  and  the  sergeant  pro- 
ceed to  arrest  him.  Defendant  resist- 
ed, and  struck  the  sergeant  with  his 
whip  and  kicked  him.  The  evidence 
for  the  defence  was  that  the  defendant 
only  used  such  force  as  was  necessary 
to  prevent  his  arrest,  he  being  unwilling 
to  go  to  the  police  station  with  the 
sergeant  unless  he  also  took  the  other 
man.  The  sergeant  took  hold  of  defen- 
dant's foot  and  endeavoured  to  pull  him 
off  the  wagon. 

Dr.  Grreer  contended  there  was  no 
power  given  under  the  regulation  to  the 
police  sergeant  to  arrest  the  defendant 
under  the  circumstances.  Defendant 
was  in  the  act  of  moving  off  when  the 
sergeant  arrested  him.  There  was  a 
certain  amount  of  delay  on  the  part  of 


the  defendant  in  obeying  the  order  of 
the  sergeattit  to  move  on.  Defendant 
was  naturally  irritated,  and  argued  the 
point,  but  all  the  testimony  showed  that 
ho  was  only  once  asked  to  move,  and 
that  he  was  in  fact  leaving  the  stand 
when  the  sergeant  tried  to  arrest  him. 

H<^Iey,  J.,  said  that  the  ser- 
geant had  stated  in  evidence  that  the 
defendant  three  times  refused  to  go,  and 
that  upon  his  (the  sergeant)  going  up  to 
the  wagon  defendant  kicked  him  in  the 
mouth. 

Dr.  Greer  urged  that  the  man  was 
obeying  the  order  when  he  was  arrest- 
ed, and  that  the  sergeant  exceeded  his 
duty.  The  name  and  address  of  the 
man  were  printed  on  both  sides  of  the 
wagon,  and  there  was  no  justification  for 
arresting  him  so  long  as  he  did  not  con- 
tinue the  offence. 

Without  calling  upon  counsel  for  the 
Crown  and  the  Town  Council, 

Buchanan,  A.C.J.,  said  that  on 
the  first  charge  there  was  ample 
evidence  that  the  accused  would 
not  obey  the  orders  of  the  police, 
who  had  the  duty  of  controlling 
the  traffic,  to  reniov^  his  wagon  from 
the  position  in  which  it  stood.  He  re- 
fused several  times,  whereupon  the 
police-sergeant  said  he  would  take  him 
to  the  police  station.  Then  the  accused 
attempted  to  drive  off,  and  when  the 
police-sergeant  tried  to  arrest  him  ho 
was  most  violently  assaulted  by  the  ac- 
cused. The  sergeant  was  kicked,  and 
his  clothes  were  torn,  and  the  evidence 
showed  that  the  accused  acted  in  a  most 
unjustifiable  way.  The  police  had  the 
right  to  arrest  this  man^  and  the  ser- 
geant was  only  performing  his  duty. 
It;  was  said  that  the  penalty  was  a 
severe  one,  but  did  not  think 
so  The  Magistrate  had  not  in- 
flicted an^hing  like  the  maxi- 
mum punishment.  There  was  of 
course  a  conflict  of  evidence,  but  there 
was  plenty  of  corroboration  of  tho 
police-sergeant's  statement.  Tho  Town 
Council  had  received  notice  of  this  ap- 
peal, and  had  been  brought  into  court 
on  notice  calling  upon  them  to  show 
cause  why  the  costs  should  not  be  given 
against  them.  This,  however,  was  not 
a  municipal  prosecution ;  it  was  a  police 
prosecution,  and  there  w^as  absolutely 
no  reason  for  bringing  the  Town  Coun- 
cil into  court.  Iho  appeal  would  be 
dismissed,  and  the  Town  Council  would 
be  declared  entitled  to  their  costs  for 
appearance. 
Hopley,  J.,  conourred. 


REX  v.  NIOHOLLS. 

This  was  an  appeal  from  the  decision 
of  the  Acting  Resident  Magistrate  of 
Cape  Town  convicting  the  appellant  of 
the  crime  of  theft  on  tne  3rd  June  on  the 
charge  that  he  had  stolen  certain  sums 
of  money  amounting  to  £18.    The  ac- 


620 


ti 


CAPE  TIMES"  LAW  REPORTS. 


cused  WB8  found  guilty,  and  sentenced 
to  two  months*  imprisonment  with  hard 
labour.  The  appeal  was  based  on  the 
grounds  that  the  crime  was  not  proved 
by  the  evidence. 

From  the  evidence  taken  before  the 
Magistrate,  it  appeared  that  two  men, 
whilst  drinking  in  a  bar,  made  a  bet  of 
£9  each,  and  gave  the  money  to  ap- 
pellant to  take  to  Mr.  Hodson,  of  the 
City  Hall  Hotel,  to  take  charge  of  un- 
til the  bet  was  decided.  This  appellant 
did,  and  received  a  receipt  from  Hodson 
for  the  amount.  It  was  alleged  that  he 
told  Hodson  the  money  was  his  own 
property.  He  returned  to  the  bar 
where  the  men  who  had  made  the  bet 
were.  He  showed  them  the  receipt. 
During  the  evening  he  returned  to  the 
City  Hall  Hotel  and  got  the  £18  from 
Hodson. 

Appellant,  in  his  defence,  admitted 
that  he  had  received  the  money,  and 
that  he  had  given  it  to  Hodson.  He 
afterwards  got  the  money  back  from 
Hodson,  and  said  that  he  had  never 
been  asked  to  return  it  to  those  who 
had  made  <the  bot. 

Dr.  Greer  appeared  for  appellant, 
and  Mr.   Pyemont  for  the  respondent. 

Dr.  Greer  submitted  that  there  was  no 
proof  of  theft.  These  men  had  been 
drinking  together  during  the  day,  and 
in  a  bar  a  dispute  arose  as  to  the  posi- 
tion "  Friar  "  lield.  When  the  money  was 
put  up  it  was  suggested  that  accused 
should  be  the  stake-holder,  but  it  was 
eventually  agreed  that  Hodson  should 
hold  it.  Appellant's  mind  was  not  very 
clear  on  who  was  to  be  the  stake- 
holder. 

[Buchanan,  A.C.J. :  But  he  should 
not  spend  the  money  entrusted  to  his 
care.] 

Dr.   Greer  contended   that  if  the  ap- 

Eellant  had  'money  to  meet  his  liability 
e  was  entitled  to  spend  a  portion  of  the 
money  as  long  as  ne  could  replace  it. 
The  question  of  false  representation  did 
not  enter  into  the  case.  Accused  was 
arrested  before  the  bet  was  decided, 
and  no  demand  was  made  on  accused  for 
the  money. 

Buchanan.  A.  C.  J. :  The  appellant 
took  the  money  that  ddd  not  belong  to 
him,  and  th€irefore  I  do  not  see  that 
the  Court  can  interfere  with  the  de- 
cision of  the  Magistrate. 

Hopley,  J.,  conourred,  and  said  it  ap- 
peared to  him  that  the  appellant  had 
made  a  false  representation  to  Hobson 
by  making  out  that  the  money  was  his. 


BEX   V.  AH   FOO  AND  OTHERS. 

This  was  an  appeal  from  the  decision 
of  the  Acting  Resident  Magistrate, 
Cape  Town.  Ah  Foo,  Leo  Sam.  and 
others  had  been  charged  with  the 
crime  of  contravening  sub-section  1  of 
section  5  of  Part  II.  of  Act  36  of  1902 
in  that,   upon  or  about  the  26th  June 


last,  they  each,  one  or  more  of  them, 
did  own  and  keep  a  gaming  house,  and 
wore  fined  £100  each,  or  the  alternative 
of  four  months*  imprisonment,  with 
hard  labour. 

Dr.  Greer  appeared  for  appellants, 
and  Mr.  Pyemont  for  the  Crown. 

Dr.  Greer  said  that,  in  connection  with 
this  matter,  there  wore  56  persons  ar- 
rested. Three  were  charged  with  be- 
ing owners,  and  33  with  being  fre- 
(luenters.  The  three  charged  with  be- 
ing owners  were  fined  £100  each^  and 
the  others  were  fined  £5  each.  Under 
the  Act  under  which  they  were  charged, 
an  owner  or  keeper  of  a  gaming  house 
was  liable  for  a  first  offence  to  a  fine  of 
£200,  and  for  a  second  offence  to  a  fine 
of  £500.  According  to  the  interpreta- 
tion clause,  an  owner  or  occupier  was 
deemed  to  mean  or  include  any  owner 
who  was  cognisant  of  the  purposes  for 
which  or  uses  to  which  his  property  was 
used  or  put,  and  also  a  tenant,  occupier, 
lodger,  manager,  banker,  dealer,  crou- 
pier, secretary,  clerk,  messenger,  or  any 
person  employed  in  any  house  or  place 
m  any  capacity  other  than  a  menial  or 
domestic  capacity.  There  were  only 
two  appellants,  as  the  third  man  (Lee 
Sam)  admitted  being  the  owner,  but  the 
other  two  contended  that  they  were 
only  frequenters. 

Counsel  having  been  heard  in  argu- 
ment on   the  facts, 

Buchanan,  A. C.J. :  The  two  appell- 
ants base  their  appeal  upon  the  ground 
that  they  were  not  the  owners  or  keep- 
ers of  the  house,  but  were  merely  fre- 
quenters. The  question  turns  upon 
the  construction  to  be  placed  upon  sec- 
tion 3  of  what  was  commonly  called  the 
Morality  Act.  This  section  makes  the 
owner  or  keeper  of  a  gambling  house  or 
brothel  include  the  owner  of  a  house, 
who  is  cognisant  of  the  uses  to  which 
the  property  is  put,  and  the  tenant  or 
landlord  or  lodger,  or  any  person  em- 
ployed in  any  capacity  other  than  that 
of  a  menial  or  domestic  servant.  Now 
the  two  appellants  were  neither  owners, 
lodgers,  nor  tenants  of  this  house.  They 
were  there  playing  a  certain  game,  and 
on  the  evidence  before  the  Court,  I 
think  it  would  be  difficult  to  hold  that 
they  wore  anvthing  more  than  players 
frequenting  the  house.  I  think  thflt 
the  .section  must  be  taken  to  mean  that 
persons  so  convicted  must  be  either 
owners  or  persons  who  assist  in  run- 
ning the  house  for  the  benefiit  of  the 
owner.  There  is  no  proof  that  these 
two  were  more  than  frequenters,  and 
cannot  be  included  under  the  title  of 
owner  or  keeper.  It  is  quite  consistent 
with  the  evidence  to  say  that  they  were 
only  frequenters,  and  I  think  the  Magi- 
strate has  erred  in  convicting  them  as 
owners  or  keeiwrs,  especially  where  it 
was  so  conclusively  proved  who  was  the 
owner  and  keeper  of  the  house — ^the 
tenant,  who  had  been  punislied.  The 
appeal  must  therefore  be  allowed,   and 


*'CAPB  TIMES"   LAW  REPORTS. 


521 


the    conviotion  against   the   two    appel- 
lants quashed. 
Hopley,  J.,  oonourred. 


KEX  V.  ZUCKEU. 

This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Cape 
Town  fining  the  accused  £2,  or  the 
altem<ative  of  a  month's  imprisonment, 
for  contravening  Act  27  of  1882,  section 
5,  paragraph  29,  as  amended  by  Act  44 
of  1808,  section  2. 

Dr.  Greer  appeared  for  appellant, 
and  Mr.  Pyemont  represented  the  re- 
spondent. 

The  section  of  the  Act  under  which 
the  appellant  was  convicted  held  that 
any  person  guilty  of  being  a  conmion 
prostitute  or  being  a  night-walker  was 
liable  to  a  fine  not  exceeding  £2. 

The  appeal  was  based  on  the  grounds 
that  the  fine  was  excessive,  and  that 
the  conviction  was  contrary  to  law, 
inasmuch  as  the  appellant  was  not  in  the 
street  to  the  annoyance  of  the  public, 
although  that  was  necessary  for  a  con- 
viction. This  woman  was  in  very 
delicate  health,  and  if  ^he  was  im- 
prisoned, it  would  make  her  much 
worse. 

[Buchanan,  A.C.  J. :  That  will  be 
brought  to  the  notice  of  the  gaol  medi- 
cal officer,  who  will  not  give  her  iiaid 
labour.] 

Hopley,  J.,  said  that  any  man  who 
was  accosted  by  a  prostitute  would  be 
annoyed,  although  ho  might  not  give 
evidence  to  that  effect. 

Dr.  Greer  said  he  thought  that  dn 
face  of  the  doctor's  certificate,  the  Oourt 
might  see  their  -^ay  to  order  the  libera- 
tion of  this  woman  from  gaol,  or  the 
modifying  of   the  sentence. 

[Hopley,  J. :  That's  for  the  Gover- 
nor.] 

Buchanan,  AC. J.,  said  it  had  been 
proved  that  the  appellant  was  loitering 
in  the  public  street  to  the  annoyance  of 
the  public,  and  therefore  the  convic- 
tion was  properly  made,  and  would  be 
upheld. 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  Hoplet.] 


HAMAN  V.  HAMAN. 


{ 


1905. 
July  4th. 


This  was  an  action  brought  by  Hcn- 
drik  Josias  Haman,  fisherman  and  bar- 
man, of  Hermanns,  division  of  Caledon, 


asuiDst  hJtt  wife>  Susanna  B.  Hanuin, 
also  of  Hermanus,  for  a  decree  of 
judicial  separation,  an^  custody  of  the 
five  children  of  the  masriage.  Defen- 
dant daimed  in  reconvention  a  judicial 
separation  on  the  ground  of  cruelty, 
and  also  custody  of  the  children.  Dr. 
Greer  was  for  plaintiff;  Mr.  Van  Zyl 
was  for  defendant. 

Dr.  Greer  stated  that  the  parties  were 
married  in   October    1890.      The     only 

auestiion  that  now  remained  was  as  to 
le  maintenance  to  be  jpaid  by  plaintiff 
to  defendant.  He  was  instructea  to  con- 
sent, on  behalf  of  plaintiff,  to  the  child- 
ren being  left  with  defendant,  subject 
to  reasonable  access  being  given  to  him. 
He  proposed  to  call  evidence  as  to  plain- 
tiff's means. 

Plaintiff  then  gave  evidence.  He  said 
that  he  received  £8  a  month  as  barman 
and  drew  £10  a  year  from  his  boat.  He 
had  some  property.  He  consented  to  a 
division  of  the  joint  estate,  and  asked 
that  the  costs  of  the  suit  should  be  borne 
by  the  estate. 

Cross-examined :  The  cause  of  trouble 
between  witness  and  his  wife  was  that 
she  had  been  repeatedly  accusing  him 
of  unfaithfulness.  There  was  no  ground 
for  her  jealousy  whdle  they  were  living 
together.  He  admitted  that  he  had 
given  her  cause  to  complain  since  he 
had  left  her.  He  <was  at  present  living 
with  a  woman  named  Johanna  Dem- 
pers,  in  regard  to  whom  his  wife  had 
previously  complained.  He  admitted 
having  beaten  his  wife  and  having  been 
fined  £2  for  assaulting  her. 

Decree  of  judicial  separation  granted, 
the  joint  estate  to  be  divided  by  Mr. 
Attorney  Krige,  defendant  to  have  cus- 
tody ot  the  children,  with  reasonable 
access  to  plaintiff,  pladntiff  to  contri- 
bute £5  a  month  towards  the  mainten- 
ance of  the  children,  with  leave  to  either 
party  to  ag«in  move  the  Court  on  the 
question  ol  maintenance,  costs  to  be 
paid   by  plaintiff. 


LUBBE  V.  COLONIAL  GOV- 
BBNMENT. 


jjul 


1905. 
July    4th. 

nth. 


Martial  Law — Scab  inspector— 
Refusal     of     facilities      by 
military — Suspension — Salary 
— Estoppel. 

Z.,  a  scab  impector^  was  during 
the  late  Martial  Law  regime^ 
prevented  hy  the  military 
authorities  from  performing 
his  duties^  and  was  notified  hy 
the  Agricultural  Department 
that  the  payment  of  his  salary 
icouUl  be  suspended  until  he 
should  again  be  allowed  to 
perform,    such    duties.       The 


522 


« 


CAPE  TIMES"  LAW  REPORTS. 


Court  foundy  as  a  fact,  that 
the  plaintiff  had  acquiesced  in 
this  arra7igement.  Thereafter 
the  Agricultural  Department 
discovered  that  he  had  been 
deported  by  the  military  as  an 
"  undesirable.'*  No  specific 
offence  was  alleged  against 
him;  but  the  Departmefd 
fievertheless  dismissed  him, 
lie  was  paid  salary  up  to  tlic 
time  that  he  was  deported. 
He  now  claimed  salary  for  the 
entire  period  covered  by  his 
suspension. 

Held,  that  the  plaintiff  was  by 
his  action  estopped  from  claim- 
ing salary  for  the  time  during 
which  he  was  prevented  by  the 
military  from  performing  his 
duties. 


This  was  an  action  brougrht  by  Franz 
Jacobiu  Lubbe,  of  Clanwilliam,  for 
merly  a  aheep  inspector  employed  by  the 
Colonial  Grovemment,  againat  the  Acting 
Secretary  of  Agriculture  for  salary. 

Plaintiff,  in  his  declaration,  said  that 
OQ  February  10,  1901,  defendant's  pre- 
decessor in  office  engaged  his  services 
as  an  inspector  of  sheep  for  wards  1, 
2,  and  6  of  the  Clanwilliam  division,  at 
a  salary  of  £200  a  year.  It  was  agreed 
that  the  said  agreement  of  service  or 
engagement  should  be  terminable  upon 
one  month's  notice.      Plaintiff  had  duly 

SBrformed  his  part  of  the  agreement, 
n  August  25,  1902,  he  received  notice 
from  the  defendant  that  his  services  un- 
der the  agreement  were  terminated.  He 
was  paid  his  aalary  until  September  16. 
1901.  He  claimed  £207  15e.  7d.,  as 
salary  from  September  17,  1901.  to 
September  30,  1902. 

Defendant,  in  his  plea,  denied  para- 
graph 3  of  the  declaration  as  to  the 
performance       of  his       duties      by 

plaintiff.      He      said      that     on      Janu- 
ary      31,         1902,         plaintiff         was 
reported  and  removed  from  Clanwilliam 
to    Matjesfontein,    in    the    district       of 
Worcester,  bv  the  Imperial  military  au- 
thorities,  and   was  detained  until     July 
4  of  the  said  year.       Subsequent  to  the 
said  date  he  remained  in  the  district  of 
Worcester   and  elsewhere,    and   did    not 
return  to  Clanwilliam  district     prior  to 
August   25,    1902.    Bv    reason    of       the 
said    removal    and    absence   of    plaintiff 
from  Clanwilliam,   he  was  totally      un- 
able to  perform  any  of  the  duties  of  his 
said  office.      Defendant  admitted  having 
given   notice  to   plaintiff,  and  said   that 
the    notice   referred    to    was    given       to 
plaintiff  in  consequence  of  his  breach  of 
contract  to  perform  his  saiid  duties.     On 
February  3,  1905,  defendant  tendered  to 


plaintiff  his  salary  from  September  17, 
1901,  to  January  31,  1902,  inclusire;  but 
palintiff  refused  to  accept  that  tender  in 
settlement  of  his  claim.  Defendant  re- 
peated the  tender  (£75),  with  taxed  costs 
to  date  of  tender,  but  said  that  by 
reason  of  plaintiff's  breach  of  contract 
be  was  disentitled  to  claim  any  compen- 
sation. 

Plaintiff,  in  his  replication,,  admitted 
his  deportation  and  detention  from  Jan- 
ary  31,  1902,  to  July  4,  1902,  but  said 
that  he  was  in  no  way  to  blame  for 
such  deportation,  which  was  made  under 
Martial  Law.  He  held  himself  in  readi- 
ness at  all  times  to  perform  the  duties 
of  his  office.  He  said  that  the  con- 
tract remained  in  force  during  the  pe- 
riod of  his  detention.  He  denied  tnab 
the  notice  was  given  to  him  in  conse- 
quence of  his  inability  to  perform  any 
of  the  said  duties,  and  said  that  the 
.notice  was  given  to  him  by  reason  of 
a  sever  accident  occurring  to  him  after 
hi3  release  from  the  said  deportation. 

Mr.  Burton  (with  him  Mr.  D.  Buch- 
anan) for  plaintiff.  Mr.  Searie,  K.C. 
(with  him  Mr.  Evans)  for  the  Govern- 
ment. 

Franz  Jacobus  Lubbe  (plaintiff)  was 
called.  He  said  that  in-  1901  Mait-'al 
Law  was  proclaimed  in  Clanwilliam.  At 
that  time  two  sheep  inspectors  were 
employed  in  the  division,  vix.,  witness 
and  one  Van  Weiiligh  After  tZke 
proclamation  witness  was  not  allowed  to 
go  into  his  district  for  the  first  three 
months— January  to  March.  In  Septem- 
ber he  got  a  pass  to  go  to  his  farm  for 
his  horses.  On  October  3  he  received  a 
letter  from  the  Under-Secretary  of 
Agriculture,  stating  that  where  inspec- 
tors were  unable  to  carry  out  their 
duties  owing  to  the  unsettled  state  of 
the  countrv,  payment  of  their  emolu- 
ment^ would  be  temporarily  suspended, 
and  informing  witness  that  his  salary 
would  be  temporarily  stopped.  He  wm 
only  paid  for  part  of  September,  and 
witness,    m  a  letter   to   the   chief      in- 

SSf^iS*'*  117^1*'"^®^  '""  P«y  ^or  the 
month.  Witness  remained  in  Clanwilliam 
until  January,  1902,  in  readiness  to  take 
up  his  duties.     On  January  31,  he  was 

\l.ntl^  ^y  the  Deputy  Administrator 
that  he,  along  with  others,  were  to  be 
iTf^L^M  Malmesbury  as  undesirables, 
but  he  did  not  know  the  reason.     Wit- 

rslwif^"^-  ^^^  ^"^  *^  Clanwilliam 
Guard  for  six  months.  At  Malmesbury, 
no  one  could  tell  him  the  reason,  sSi 
he  had  not  found  put  yet.  He  was 
taken  to  Matjesfontein,  where  he  was 
released  in  July,  1902.  On  the  day  be 
got  his  pass,  he  met  with  an  accident  in 
getting  out  of  a  train,  and  lost  his 
reft  leg.      In  Jul V    1902.  he  recdved     a 

[t^'*^'' a  *t®  f^*^^  Inspector,  sUting 
that  the  Scab  Act  was      to  be  put  in 

JiS''?^"'J?n^"°'  ^""^  •  telegram  from 
the  Civil  Comnaissioner  asking  him  if  ha 
could  take  up  his  duties  at  oooe.    Wit- 


"CAPES  TIMES*'  LAW  REPOBTa 


62B 


neBB  replied,  asking  to  be  excused  until 
October,  when  the  doctor  thought  he 
would  be  fit  for  duty.  The  C3hief  In- 
spector, in  a  memorandum,  recom- 
mendea  that  a  temporary  assistant  in- 
spector should  be  appointed  until  wit- 
ness was  ready  for  duty.  On  August  25 
he  reoeiYed  a  letter  from  the  Civil  Cocn- 
miflsioDer  regretting  that,  owing  to  his 
incapacity  through  accident,  his  services 
muei  terminate,  and  witness  made  his 
claim.  The  other  inspector  in  the  Clan- 
william  division  was  paid  for  the  whole 
period. 

Gross-examined:  He  understood  that 
be  was  to  be  paid  during  the  war,  and 
although  he  did  not  claim  until  a  year 
ago,  be  intended  all  alon^  to  do  so. 
Van  dor  Merwe's  case  against  the  Gov- 
ernment only  made  it  more  clear  to 
him.  In  October,  November,  and  De- 
cember, he  did  no  scab  inspecting,  in 
consequence  of  the  communication  from 
the  Government.  Witness  was  in  the 
hospital  from  the  4th  July,  1902,  to  the 
Ist  November,  1902,  and  was  unable  to 
do  any  work  during  that  time,  except 
by  sulwtitute.  The  last  work  he  did  for 
the  Government  was  about  the  middle 
of  September,  1901. 

Nicolaas  van  Weilligh  said  that  be 
could  not  obtain  a  pass  from  the  mili- 
tary to  sro  into  the  district  between 
July,  I9OI2  and  August,  1902.  Witness 
remained  m  danwilnam,  and  held  him- 
self in  readiness  to  do  his  work.  He 
did  not  then  make  an  application  to  tiie 
Government  for  salary  during  that 
period,  but  he  had  since  made  a  claim 
and  had  been  paid  by  the  Government 
for   the  whole   period. 

Cross-examined:  Witne«R  did  not 
claim  from  the  Govemmint  until  Sep* 
tember,  1904. 

Mr.  Burton  dosed  his  case. 

Charles  Alfred  Currey,  Under  Secre- 
tary for  Agriculture. '  said  that  no  infor- 
mation was  rcceivea  by  the  department 
as  to  plaintiff's  deportation  until  the 
11th  August,  1904.  Witness  gave  evi- 
dence as  to  certain  of  the  correspond- 
eooe. 

Cross-examined:  He  admitt'^d  that  the 
only  difference  between  Lubbe's  ca»! 
and  Van  Wei  High's  case  was  that  the 
former  had  been  deported.  It  was  re- 
garded by  the  Government  as  a  misde- 
meanour to  merit  deportation.  The 
Civil  C<mimissioner  was  the  officer  ad- 
ministering martial  law  at  Clanwiiliam. 
'Phe  notice  of  dismissal  given  to  plain- 
tiff spoke  of  his  bavins  broken  his  leg 
in  a  severe  accident.  Witness  had  since 
ascertained  that  plaintiff  had  sustained 
ap  accident  on  the  railway.  The  de- 
pMirtment  took  it  for  granted  that  plain- 
tiff was  an  undesirable,  seeing  that  he 
had  been  deported.  They  did  not  inquire 
as  to  the  reasons  for  liis  deportation. 
The  instructions  that  the  plaintiff  was 
to  resume  duty  were  sent  before  witness 
heard  of   the     deportation.       If     wit- 


ness had  written  the  letter,  he  would 
not  have  put  the  dismissal  on  the 
ground  of  the  accident;  he  would  have 
based  it  on  the  ground  that  the  plain- 
tiff had  been  deported.  The  Chief 
Inspector  reported  that,  leaving  alone 
the  undesiraole  character  of  the  nuin,  it 
was  essential  that  he  should  have  able- 
bodied  active  men. 

Re-examined  by  Mr.  Searle:  When 
they  fouixl  other  oases  similar  to  the 
one  in  question,  general  instructions 
were  issued  on  the  25th  August.  He 
had  no  knowledge  at  that  time  of  what 
the  Magistrate  wrote  on  the  21st  August. 
It  would  principalhr  lie  with  the  Chief 
Inspector  to  decioe  as  to  the  man's 
fitness  for  work. 

Hopley,  J. :  He  hold  that  the  dis- 
missal was  on  good  cause,  but  unforun- 
ately  the  wrong  reasons  were  given. 

[Hopley,  J. :  Would  you  think  it  fair 
if.  through  disturbances  in  Oape  Town, 
you  could  not  get  to  your  office  for  six 
months,  the  Government  said :  "  Charles 
Currie,  you  shall  have  no  pay  for  that 
period?"! 

I  should  have  protested. 

I  suppose  that  is  because  you  know 
a  little  oit  more  than  these  people  up- 
country?— I  should  not  Lave  accepted 
the   decision   without  a  protest. 

You  would  not  think  it  perfectly 
fair?— I   should   certainly  protest. 

Allen  Gardiner  Davieon  Chief  In- 
spector of  Shee^  in  the  Colony,  «said 
he  did  not  consider  that  a  man  suf- 
fering from  such  an  accident  as  the 
plaintiff  could  properly  carry  out  his 
duties    in  such  a  mountainoue    district. 

Counsel  having  been  heard  in  argu- 
ment. 

Cur.  Adv.  Vult. 

Pottea  (July  11th). 

Hopley,  J.:  The  plaintiff,  a  farmer, 
resident  in  the  district  of  Clan- 
wiiliam, has  since  the  year  1896 
been  one  of  the  Government 
scab  inspectors  for  certain  wards 
in  that  district,  and  his  most  recent  ap- 
pointment to  that  position  was  dated 
February  10,  1900,  when  he  was  appoint- 
ed inspector  for  Wards  1,  2,  and  6  in 
the  said  district,  at  a  salary  of  £200  per 
annum,  the  engagement  being  ter- 
minable at  a  month's  notice.  This  was 
during  the  continuance  of  the  war,  but 
at  a  time  when  it  was  not  expected  that 
the  district  of  Clanwilliiun  would  be 
directly  involved  in  the  struggle.  An 
invasion  of  this  colony  by  the  enemy 
and  a  rebellion  of  some  of  its  subjects 
took  place  shortly  after,  and  the  district 
in  question,  as  well  as  many  others, 
came  into  the  area  of  hostilities,  so  that 
a  Military  Commandant  was  appointed 
there,  and  eventually,  in  January,  1901, 
martial  law  wsa  proclaimed.  The 
plaintiff,  at  that  time  in  the  town  of 
Clanwiiliam,  was  allowed  to  eo  into  the 
district  only  when  it     suited  tbe  mill- 


534 


«« 


CAI^  Tdltt"  LAW  EEFO&TS. 


tary  ntusiion,  and  then  only  upon  hia 
procuring  a  pass  to  go  forth.  In  thia 
respect  ne  was  in  no  wise  differently 
treated  froni  any  other  of  her  late 
Majesty's  civilian  subjects,  and  no 
biame  is  imputed  to  him  therefor;  but 
the  inevitable  result  was  that  he  could 
only  intermittently  and  at  best  in- 
adequately discharge  the  duties  of  his 
office,  which,  of  course,  had  to  be  per- 
formed among  t^  flooks  throughout 
the  wards  of  the  district  for  which  he 
was  responsible.  Seeing  that  they  were 
getting  in  many  quarten  of  the  coun- 
try no  services  for  the  salaries  they 
were  paying  to  the  scab  inspectors,  the 
Government  officials  in  ctutrge  of  this 
branch  of  administrative  Government, 
with  the  consent  of  the  responsible 
Minister,  issued  a  circular  to  all  in- 
spectors who  were  thus  impeded  by  the 
military  situation,  informing  them  tha.t 
their  emoluments  would  be  temporarily 
stopped.  The  plaintiff  was  one  of  those 
who  received  tnis  circular,  which  was 
in  the  following  terms :  ''  Department  of 
Agriculture,  C^pe  of  Good  Hope,  Cape 
Town,  3rd  October,  1901. — Suspension  of 
Duties. — Sir,— I  am  directed  to  inform 
you  that  the  Government  have  decided 
that,  where  sheep  inspectors  are  unable 
to  carry  out  their  duties  owing  to  the 
disturbed  state  of  the  counry,  pay- 
ment of  their  emoluments  shall  be 
temporarily  stopped.  In  accordance 
with  this  decision,  the  Secretary  for 
Agriculture  ha«  given  instructions  to 
temporaxily  cease  payment  of  your 
salary  and  allowance.  When  you  are 
again  authorised  by  this  department  or 
by  the  Chief  Inpector  of  Sheep  to  as- 
sume duty,  your  emoluments  will  be 
paid  as  heretofore. — I  have  the  honour 
to  be,  your  obedient  servant,  (Signed) 
Charles  Curroy,  Under  Secretary  for 
Agriculture."  It  will  be  seen  that  this 
is  not  a  dismissal  from  office,  or  a 
notice  to  terminate  the  engagement,  but 
merely  an  intimation  that  pay  will  be 
suspended  until  the  department  should 
deem  it  expedient  to  allow  the  inspec- 
tor to  resume  his  duties.  In  the  case 
of  the  plaintiff,  this  was  followed  by  a 
letter  from  the  Chief  Inspector  of 
Sheep,  addressed  to  him,  informing  him 
once  more  of  the  determination  of  the 
Government,  and  telling  him  that  his 
pay  had  been  stopped  from  September 
1,  1901.  This  letter  was  dated  October 
9,  1901.  and  it  concludes:  **  When 
again  authorised  by  this  ofBce  to  resume 
duty,  vour  emoluments  will  be  paid  as 
lieretofore."  Now.  when  the  plaintiff 
received  the  circular  and  this  letter,  it 
seems  to  me  that  he  was  bound  to  elect 
a  course.  It  is  clear  that  he  need  not 
have  acquiesced,  in  which  case  he  should 
have  protested,  and  then  the  Govern- 
ment would  have  been  able  to  dismiss 
him  with  his  pay  to  date  and  a  month's 
pay  in  lieu  of  notice.  In  that  case, 
however,  it  would  be  unlikely  that  he 
would  be  reinstated  when  the  time  of 


unreat  should  be  over.  His  other 
course  was  to  acquiesoe,  and  thus  re- 
tain hia  post  and  the  goodwill  of  the 
department  under  which  he  had  to 
work.  The  correspondence  which  en- 
sued clearly  shows  that  the  jikuntiff 
chose  the  latter  idternative.  All  be 
says  in  his  letters  is,  in  effect,  that  he 
worked  for  sixteen  days  in^  September 
before  he  received  any  notice  to  dis- 
continue, and  that  he  should  be  paid  for 
that  month,  and  eventually  when  Govern- 
ment did  pay  him  lor  the  16  days  in 
September,  hia  only  grievance  was  that 
he  should  have  been  paid  for  the  whole 
of  that  month.  In  his  letter  of  January 
11,  1902,  in  which  he  seta  forth  this 
grievance  (without  claiming  anything  for 
October,  November,  and  December),  he 
signs  himself,  **  F.  J.  Lubbe,  late  aheep 
inapector,  Wards  1,  2,  and  6,  Clanwii- 
liam."  By  adoptmg  this  attitude  he 
created  a  feeling  of  security  in  the  De- 
partment with  which  he  waa  concerned, 
and  led  them  to  think  that  the  propoeal 
they  had  made  had  been  fully  accepted 
by  him,  and  he  is  estopped  from  now 
saying  that  he  never  had  such  intention, 
but  that  he  was  at  all  times  holding 
himself  in  readiness  to  do  his  duties. 
There  is  a  further  phase  in  this  case 
which,  however,  I  do  not  consider  as 
being  of  much  inrportance  after  the  ac- 
ceptance of  the  Government  propoeal  by 
the  plaintiff.  I  refer  to  the  fact  that 
during  January,  1902,  the  plaintiff  was 
by  the  military  authorities,  in  the  exer- 
ci^  of  their  arbitrary  powers  under 
martiaJ  law.  deported  from  his  distric<t 
to  another  ai^tnct  as  "  an  undesirable." 
The  reason  for  thie  has  never  been  ex- 
plained, and  the  plaintiff,  though  he 
applied  to  those  in  authority — ^to  the 
Resident  Magistrate  of  Cionwilliam,  who 
was  deputy  administrator  of  martial  law 
and  to  the  military  oommandant  of  his 
district — haii  never  been  able  to  elicit 
any  reason  for  the  step  taken  against 
him.  The  result,  however,  waa  that  he 
was  not  even  in  his  own  district,  and 
was  consequently  wholly  disabled  from 
ihe  performance  of  any  portion  of  his 
duties.  This,  as  I  have  said,  does  not. 
in  the  circumstances,  seem  to  me  to 
make  any  important  difference.  Had 
he  been  allowed  to  remain  in  Clanwil- 
liam,  it  is  clear  that  even  if  ^e  mili- 
tary authorities  had  been  willing  to  al- 
low him  to  go  about  the  district,  i  e 
would  not  have  done  so  after  his  accept- 
ance of  the  circular  and  letter,  which  en- 
joinea  on  him  inactivity  until  he  received 
definite  instructions  from  the  head  office 
to  resume  duty.  I  do  not  agree  with 
Mr.  Currey  in  thinking  tdiat  t-he  mere 
fact  of  the  deportation  was  sufficient  to 
render  the  plaintiff  liable  to  dismissal 
for  misconduct.  In  the  unfortunate  ci'»> 
cumstances  in  which  this  country  was 
then  placed,  it  waft  possible  for  innocent 
and  harmless  men  to  incur  suspicion, 
and  to  be  deported  from  thetr  districts, 
and  as   to  that  ground  alone   I   think 


If 


Ol?E  ITMBS*'  LAW  KBPOHM. 


Hi6 


4bat  before  •  public  servant  could   bo 
legally  dismiased  an  inquiry  should  eBta- 
blieh  that   he  bad  merited   such  ttv'&t- 
ment.      That    has    never    been     uroved 
in    the    i^aintiff's    oaee.        The    uirth<^r 
bistory       of       hid       case         ie         tihat 
On  July  4,  1902,  he  was  freed  from  mili- 
tary fiurveillanoe     and    detention,     and 
granted  a  free  railway  pass  to  go  home, 
which  ho  immediately  proceeded  to  do; 
but^  most  unfortunately,  ho  met  with  an 
accident  on  the  journey,   which   caused 
him  to  lose  a  leg,  and  to  be  laid  up  for 
6ome  time  in  hospital  at  Touws  Kiver. 
At  the  end  of  July  the  Agn'icultural  De- 
partment, who  were  apparently  quite  ig- 
noraiYt  of  his  deportalaon  and  subsequent 
misfortune,    telegrai)hed   to   Clanwilliam 
to  the  Civil   Conrniissioner     to  get  the 
plaintiff  to  resume  his  duties  aa  scab  in- 
spector.    This  was  forwarded  to  him  in 
hospital,  whence  he  telegraphed  that  he 
would  not  be  able  to  resume  duty  until 
October,  but  would     be  glad   to  be  ex- 
cused until  January.      It  was  then  that 
ou  inquiry,   the  department     discovered 
the   deportation,  and   the   circumstances 
and   nature  of   the  accident,   and  there- 
upon, on  August  25,   1902,   the  plaintiff 
was  dismissed  by  a  let;ter,  which  alleged 
his  incapacity,  owing  to  his  accident,  to 
perform  his  duties  as  the  rca.son  for  the 
termination    of   hifi  appointment.       The 
plaintiff   made  no  move   in    the  matter 
after  this  letter,    until  September,   1904 
when,    as  he  states,  the  clocision  m   the 
case  of  Van  dcr  Mertre  v.  Colonial  Oov- 
emmrnt  (21,  S.C.,  520),  gave  him  grounds 
for  the  opinion  that  ho,  too,  might  ruc- 
ceed  in  a  similar  action.      The  differrnce 
betwe<»n  the  two  cases,   however,  is  that 
Van  der  Merwe  never  received  the  letter 
suspending  him  from  duty,  and  temper 
arilv  stopping  his  pay.     He  consequently 
could  not  be  held  to  have  acquiesced  in 
the  arrangement  made   by  the   Govern- 
ment:  but  as  I  have  already  shown  the 
plaintiff  in  the  present  case  received  thc' 
notifications,  and  elected  to  fall  in  wKh 
the  proposed  arrangement.     His  prcsonr 
claim,  however,  in  for  payment  frum  Sep- 
tember 17,  1901,  to  September  50,   1902 
based   on  the  ground   that  he  was  the 
scab  inspector  during  all  that  timo,  an.l 
consequently  entitled  to  pay  Cor  tho  full 
period.    Ho  certainly  had  never  Li'on  dis- 
missed from  his  poet,  but  he  was  iioldin^ 
hits  position  after  Octol>er,   1901.  on  the 
understanding  that  he  was  to  receive  nc 
pay  until  he  resumed  duty:   and   n?  lie 
never  did  resume  duty  it  sccais   to  mo 
that  his  action  must  fail.      in  tho  plead 
ings  the  defendants    tender  £75,      with 
costM,  to  the  date  when  they   fir»t    made 
such  tender,  viz.,  February  3,  1905.     This 
tender  is  really  for  pay  from  September 
17,  1901,   until  January  31,    1902,   when 
the   plaintiff    was  deported.        In       my 
opinion   tbe  defendants  need    not    have 
made  this  tender,  but  as  they  have  done 
so  they  must  be  held  bound  by  it,  and 
judi^ment  will   accordingly      be  for  the 
plaintiff  for  the  amount  tendered,  with 


*  I 


costs  to  the  date  of  tender,  the  plaintiff 
to  pay  costs  after  that  date. 

[Plaintiff's  Attorneys:  Van  Zyl  and 
Buissinn^ ;  Defendant's  Attorneys : 
Re  id  and  Nephew.] 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting:  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


WOOD  HEAD.  PLANT  AND  CO.  f         UK).*). 

V.  BASSON.  (  Juiy  5th. 

Thiii  was  an  action  brought  by  Wood- 
head,  Plant  and  (>).,  of  Cape  Town, 
against  Johannes  Matthys  Michiel  Bas- 
son,  of  Malmeebury,  to  recover  a  sum 
of  £150,  value  of  certain  furniture, 
glassware,  etc.,  alleged  to  have  been 
purchased  by  defendant  from  plaintifts 
on  or  about  the  7th   April,  1904. 

Plaintiff,  in  his  declaration,  said  that 
the  sale  took  place  at  Malmesbury  of 
the  goods  in  dispute  at  the  Central 
Hotel.  The  goods  were  delivered  to 
defesdant  on  the  7th  Apr:?,  and  defen- 
dant took  possession  of^the  same,  and 
agreed  to  pay  tho  purchase  price,  viz., 
£150.  Defendant  had  not  paid  the  pur- 
chase price. 

Defendant,  in  his  plea,  said  that  about 
the  beginning  of  1904  one  Samuel  Helm 
held  tho  furniture,  having  Obtained  the 
same  from  plaintiffs  on  a  hire  purchase 
agreement.  Thereafter,  in  March  or 
April,  1904,  Helm  surrendered  his  es- 
tate as  insolvent.  Defendant  subse- 
quently bought  at  public  auction  the 
premises  in  question,  together  with  cer- 
tain furniture,  but  he  denied  having 
^ught  the  goods  belonging  to  plaintiffs. 
He  said  that  he  afterwards  let  the  hotel 
to  Holm,  and  that  the  goods  remained 
in  the  possession  of  Helm  during  tho 
whole  time. 

Plaintiffs,  in  their  replication,  ad- 
mitted that  defendant  purchased  the 
hotel,  and  that  Helm  was  now  occupy- 
ing the  premises.  Plaintiffs  repeated 
the  allegation  that  defendant  bought 
the  goods  in  question. 

Mr.  Searle,  K.C.  (with  him  Mr. 
Gutscho),  was  for  plaintiffs ;  Mr.  Bur- 
ton (with  him  Mr.  Struben),  was  for  de- 
fendant. 

Gye^bert  William  Kotze,  secretary  of 
the  Malmesbury  Board  of  Executors, 
and  an  attorney  of  this  court,  said  that 
Samuel    Helm,  senior,  simendered    hh 


5^ 


tt 


OAPB  TnCES'»  LAW  REP0BT8. 


estaite  as  insoJveet  in  February,  1904. 
WitnesB  and  Mr.  Marais  were  trustees. 
Witnefis  wa6  the  managing  trustee,  and 
he  put  Mr.  Staples  m  charge  of  the 
hotel  from  the  23rd  February  until  the 
sale.  The  hotel  was  furnished,  but 
there  was  no  billiard  table  at  that  time. 
Helm  remained  at  the  hotel,  and  told 
witneiss  that  the  furniture  now  claimed 
belonged  to  plaintiffs.  Helm  told  him 
that  none  of  the  instalments  had  been 
paid.  Witness  abandoned  the  furniture 
m  question,  Which  was  set  out  dn  a  list 
supplied  by  plaintiffs.  Witness  received 
instructions  irom  Mr.  Johnson,  who  re- 
presented plaintiffs  at  Malme»bury,  to 
sell  the  furniture.  He  advertised  the 
landed  property  and  Helm's  own  pro- 
perty for  sale.  After  the  landed  pro- 
ne rty  and  a  few  of  the  movables  nad 
been  disposed  of,  witness  pointed  out 
the  furniture  of  the  hotel  to  Mr.  Bas- 
son  and  said  that  the  price  would  be 
£150.  Defendant  agreed  to  take  the 
furniture,  and  said,  "  What  aibout  pay- 
ment." Witness  told  him  that  he  could 
pay  in  December,  and  that  he  would 
nave  to  pay  interest  until  the  purchase 
price  was  paiu.  Witness  saw  defendant, 
who  never  repudiated  the  sale. 

Cross-examined :  Defendant  had  the 
reputation  of  being  *'  long-winded "  as 
regarded  payments. 

Frederick  SaUser  Johnson,  a  commer- 
cial traveller  in  plaintiffs'  employ,  said 
that  he  instructed  Mr.  Kotze  &s  re- 
garded the  sale  of  the  goods.  Witness 
saw  Mr.  Basson  in  the  early  part  of 
April,  some  time  before  the  public  sale. 
Witness  suggeerted  to  Basson  that  he 
should  buy  the  goods,  inasmuch  as  he 
undeziBtood  that  he  would  probably  pur- 
ohase  the  hotel.  Basson  said  that  he 
would  buy  the  furniture.  Subseouently 
Basson  said  that  he  had  bought  the 
goods  at  invoice  price.  Witness  told 
him  that  he  had  got  a  bargain,  because 
he  (Mr.  Johnfion)  had  put  the  furniture 
in  at  a  low  price  to  Mr.  Helm,  and  he 
would  also  save  the  cost  of  carriage  from 
Cape  Town. 

Mr.  Searle  closed  his  case. 

Johannes  M&tthys  Michiel  Basson  (de- 
fendant) said  tha4;  he  let  the  hotel 
and  certain  of  the  furniture 
to  Helm  for  about  £20  for  the  first 
month,  and  £21  per  month  afterwards, 
•having  fixed  a  billiard  table  there.  Helm 
had  been  in  possesbion  of  the  hotel  prac- 
tically ever  since  witness  bought  it.  Wit- 
ness denied  that  he  bought  the  furni- 
ture in  question  from  Mr.  Kotze.  He 
remembered  having  had  a  conversation 
with  Mr.  Kotze  in  regard  to  the  second 
bond  that  he  (witness)  held  on  the  pre- 
mises, but  he  had  not  entered  into  ne- 
gotiations with  Mr.  Kotze  for  the  pur- 
chase of  the  furniture  belonging  to 
plaintiffs.  He  did  not  ascertain  until 
after  he  had  bought  the  hotel  that  the 
furniture  in  question  was  the  property 
of  Woodhead^  Plant  and  Go. 
CroBS-examined :  He  did  not  epeak  to 


I  Mr.  Johnson  about  the  furniture  before 
the  sale.  He  did  not  knqw  before  the 
sale  that  Helm  only  owned  a  little  fur- 
niture. He  had  not  had  an  intention 
of  carrying  on  the  hotel.  After  Mr. 
Plelm  had  asked  him  to  let  the  house 
to  him,  he  said  that  certain  of  the  fur- 
niture belonged  to  Woodhead,  Plant 
and  Co.,  and  that  he  would  try  to  ar- 
range with  Mr.  Johnson  to  secure  the 
gooas  from  Woodhead,  Plant  and  Co. 
[elm  did  not  afterwards  tell  him  whe- 
ther he  had  arranged  with  Johnson. 

Mr.  Searle:  In  other  words,  you  ex- 
pected to  let  an  hotel  fully  furnished 
without  buying  the  furniture? 

Witness:  No.  If  I  had  known  it  was 
necessary  to  buy,  I  could  have  done  it. 

Samuel  Helm,  the  lessee  of  the  Cen- 
tral Hotel,  Malmesbury,  said  that  the 
furniture  in  question  was  not  included 
ih  the  agreement  of  lease  on  which  he 
took  over  the  hotel  from  defendant.  He 
had  never  regarded  the  furnkuie  as  in- 
cluded in  the  agreement.  Witness  had 
made  no  attempt  to  obtain  another  hire 
purchase  agreement  from  Woodhead, 
Plant  and  Oo.  About  two  months  after- 
wards Johnson  told  him  that  Basson  was 
going  to  take  over  the  furniture. 

Cross-examined :  The  furniture  in  dis- 
pute practically  comprised  the  whole 
furniture  of  the  hotel.  Witness  had  fur- 
niture in  his  own  private  rooms.  Plain- 
tiffs' furniture  was  still  at  the  hotel. 

Mr.  Burton  closed  his  case. 

Mr.  Burton  having  been  heard  in 
argument,  without  calling  on  Mr. 
Searle : 

Buchanan,  A.C.J.,  after  reviewing 
the  circumstances  leading  up  to 
the  alleged  sale  and  the  chief  points 
of  tile  evidence,  said  that  had  there 
been  any  conversation  admitted  by  Bas- 
son in  regard  to  this  furniture  there 
might  have  been  some  ground  for  say- 
ing that  Kotze  had  misundezetood  the 
effect  o>f  the  conversation,  but  the  defen- 
dant said  that  he  did  not  remember 
having  had  any  conveisaAion  either  with 
Kotze  or  Johnson  about  this  furniture. 
It  seemed  extraordinary,  if  the  furniture 
Avere  not  sold  with  the  insolvent  estate 
that  there  had  been  a  sale  of  the  hotel 
without  any  sale  of  the  fumrture,  and 
that  nothing  whatever  should  have  been 
done.  Sitting  as  a  juror  in  this  mat- 
tor,  the  weight  of  evidence,  it  seenied 
to  him,  was  conclusively  on  the  side 
of  the  plaintiffs,  and  he  thought  that 
the  plaintiffs  had  established  the  fact 
that  their  furniture,  which  was  in  the 
hotel,  had  been  bought  bv  defendant 
from  Kotze  on  the  7tn  April  last,  and 
defend  jint  must  now  pay  for  it.  Judg- 
ment would  be  given  for  the  plaintiffs 
for  the  amount  claimed,  with  interest  a 
tempore  mora  at  the  rate  of  6  per  oeixi., 
from  date  of  summons,  and  costs  of 
suit. 


''OAPB  TIMES"  LAW  BEPOBTS. 


527 


SECOND  DIVISION. 


[  Before  the  Hon.  Mr.  Justice  M  A  asdorp.] 


HEREON    V.    TORQUE    GO. 
AMD  OTHERS. 


oth. 


IDOo 
July    6 

„       7th. 

Aus.   2nd. 

14th. 


i> 


Joint  Stock  Company  with  limited 
liability — One  man  company 
— Dummy  and  nominee  share- 
holders. 

N.y  having  obtained  certain 
rights  under  a  contract  with  a 
company^  called  the  Trades, 
Markets  and  Exhibitions  Com- 
pany,  for  the  lighting  of  stalls 
at  the  Exhibition,  was  unable, 
through  UKint  offu?ul8,  to  carry 
out  the  contract.  JI,  ivas  pre- 
jxired  to  join  in  the  venture 
and  supply  the  necessary  funds 
if  he  could  limit  his  liability 
in  the  matter  through  the 
instrumentality  of  a  company^ 
with  limited  liability.  Conse- 
quently N.  and  II,,  together 
with  five  other  shareholders, 
formed  a  company,  in  which 
these  Jive  shareholders  held 
only  one  share  each,  the  bulk 
of  the  shares  being  held  by 
N.  and  H.  N.  and  II.,  as 
directors,  maiuiged  the  entire 
business  of  the  company  with- 
out reference  to  the  other  share- 
holders. This  business  con- 
sisted eiUirely  in  carrying  out 
the  contract  abftve  mentioned 
under  agreement  between  the 
company  and  N. 

Held,  that  there  was  nothing 
illegal  in  the  constitution  of 
the  company  ;  and  that  H.  was 
entitled  under  the  law  to  limit 
his  liability  in  respect  of  the 
business  ttatisacted  under  the 
contract  in  th^  manner  adopted. 


This  waa  an  action  brought  by  Goorge 
Frederick  Herron,  an  engineer,  at  pre- 
Beot^  of  Cape  Town,  against  Edmund 
Mf'iJliam  McLachlan  Thomas,  in  his  capa- 
city as  trustee  in  the  insolvent  estate, 
the  British  General  Electrical  Company, 
the  Telegraph  Manufacturing  Company 
(Colonial),  lytd.,  Stewards  and  Lloyds 
(S.A.),  Ltd.,  and  Siemens,  Ltd.,  all  of 
Cape  Town,  to  have  an  order  of  eequee- 


tration  eaperseded  and  discharged 
against  the  plaintiff,  for  a  preferent 
claim  for  £1,000  in  respect  of  two  dyna- 
mos pledged  to  the  plaintiff,  and  £2,500 
damages. 

The  declaration  set  out  that  on  a  peti- 
tion tlie  Torque  Electrical  Company  was 
provisionally  sequestrated,  and  among 
five  partners  the  namo  of  the  plaintiff 
was  included.  On  the  return  of  the 
summons  in  connection  with  the  making 
of  the  order  final,  the  plaintiff  appeared, 
and  filed  a  short  affidavit  denying  he  was 
a  partner  in  the  Torque  Company.  The 
Court  pronounced  final  sequestration 
against  all  the  partners,  but  gave  leave 
to  the  plaintiff  to  bring  an  action  to 
prove  he  was  not  a  partner.  ,The  last 
tour  defendants  maliciously  inftituted 
proceedings  in  insolvency  against  the 
plaintiff  as  a  member  of  the  Torque 
Company,  and  caused  the  plaintiff's 
name  to  be  included  in  the  oraer  of  se- 
questration. The  plaintiff  had  never 
been  a  partner  of  the  Torque  Company, 
and  never  held  himself  out  as  such,  but 
on  the  contrary  he  frequently  represent- 
ed to  the  last  four  defendants  that  he 
was  not  such  a  partner,  and  by  reason 
of  his  name  appearing  he  had  suffered 
damages  in  £2,500.  On  the  10th  No- 
vember, 1904,  the  plaintiff  agreed  with 
the  Torque  Company  to  endorse  a  bill 
for  the  sum  of  £1,000,  the  said  company 
undertaking  to  deliver  three  dynamos  to 
the  plaintiff  as  security.  The  plaintiff 
had  ultimately  to  repay  the  amount  to 
the  bank.  After  the  seouestration  the 
first-named  defendant  took  possession  of 
the  dynamos,  and  the  plaintiff  claimed 
to  rank  as  a  preferent  creditor  to  the 
amount  of  £1,000,  for  an  order  declaring 
the  plaintiff  not  a  partner,  and  supersed- 
ing the  final  order  of  sequestration 
against  him  as  against  the  firart  defend- 
ant, and  as  against  the  last  four  defend- 
ants' judgment  for  the  sum  of  £2,500, 
with  costs. 

The  defendants,  in  their  plea,  ad- 
mitted the  order  of  sequestration,  but 
sitlmitted  that  the  claim  for  damages 
was  bad  in  law  and  disclosed  no  ground 
of  action.  Tlie  proceedings  were  not 
maliciously  taken,  but  were  bona  fide, 
and  taken  on  reasonable  cause.  The 
Torque  Company  conimeuoed  business  in 
Cape  Town  m  September,  1904.  The 
business  was  conducted  by  the  plaintiff 
and  Neale,  b<>th  of  whom  gave  orders  to 
the  Torque  Ck)mpaiiy  for  goods  to  be 
supplied,  and  in  general  the  plaintiff  car- 
ried on  the  business,  and  led  the  defend- 
ants to  believe  that  he  was  a  partner  m 
the  Torque  Company,  which  had  a  con- 
tract to  supply  fight  to  the  Cape  Town 
Exhibition.  The  deff^ndants  did  not 
admit  that  the  plaintiff  paid  the  com- 
pany the  said  money,  or  that  the  com- 
pany delivered  the  dynamos  to  the  plain- 
tiff. The  dofendant«  further  alleged 
that  the  pledfj^e  was  made  when  tlie 
company's  liabilities  exceeded  its  assets, 
and  ait  a  time  when  insolvency    was  con- 


528 


(( 


CAPE  TIMES"   LAW  REPORTS. 


templated,  and  was,  therefore,  unduo 
preference,  under  the  Insolvency  Ordin- 
anoe.  In  reocnvention  they  claimed 
that  the  plcdffo  should  be  set  afcide.  The 
replication  denied  that  the  plaintiff  car- 
ried on  or  conducted  the  business,  or 
that  he  led  the  defendants  to  believe  he 
was  a  partner  in  the  company.  The 
NealeroD  Company  was  formed  to  assist 
the  Torque  Company  with  the  contract. 

Mr.  Alexander  (with  him  Mr.  Lewis) 
for  the  plaintiff;  Sir  H.  Juta,  K.C. 
(with  him  Mr.  Gardiner)  for  defendant. 

Sir  H.  Juta  raised  the  objection  that 
no  claim  could  be  put  in  for  maliciously 
caufiing  the  proceedings  to  be  instituted 
until  the  order  had  been  set  aside. 

Maasdorp,  J.,  said  now  that  the  wit- 
nesses were  here,  it  would  be  better  to 
let  that  case  go  on,  and  the  question 
cculd  be  left  over  for  the  present. 

George  Frederick  Herron,  plaintiff, 
f^tatcd  thait  in  the  early  part  of  last  year 
bo  came  into  contact  with  Neale,  who 
told  witness  that  he  wanted  £2,000  to 
carry  out  a  contract  in  Cape  Town,  and 
asked  witness  to  join  him.  Witness  said 
he  could  join  Neale  without  being  a 
partner,  as  he  wished  to  limit  his  liabil- 
ity, and  after  some  argument  this  was 
agreed  to.  After  sevexul  interviews  it 
was  finally  decided  to  form  a  subsidiary 
company  to  take  over  the  contract  of  the 
Torque  Company  and  finance  the 
Torque  Company.  The  limited  com- 
pany took  the  name  **  Nealcron  "  as  a 
combination  of  witness's  and  Neale's 
names.  W'itness  had  2,000  £1  shares, 
which  he  paid  for.  Under  the  contract 
4.O00  5s.  shares  were  to  be  given  as  con- 
sideration to  Mr.  Neale.  The  nominal 
capital  of  the  company  was  £3,005,  made 
up  as  follows :  2,()05  £1  shares  and  4,000 
5s.  shares.  In  consideration  of  the 
agreement  between  the  Torque  Company 
and  Nealeron,  Ltd.,  the  contractor  was 
to  have  the  4,000  5s.  shares.  Witness 
formed  the  company  in  order  to  limit  hie 
liability  to  £2,000.  Witness  came  out 
to  South  Africa  with  Neale,  partly  to 
look  after  the  contract.  Witness  was 
generally  down  at  the  Exhibition  look- 
mg  after  the  technical  work,  and  any 
accounts  that  came  to  him  he  signed 
"p.p.  Toraue  Electrical  Engineering 
Company. — G.  F.  Herron."  The  names 
of  the  Torque  Electrical  Engineering 
Company  and  that  of  Neale  were  exhibit- 
ed outside  as  well  as  inside  the  stand. 
Nealeron,  Ltd.,  practically  paid  all  the 
money  in  disbursements  on  behalf  of  the 
Torque  Company.  The  contract  was  not 
a  profitable  one,  and  finally  the  Exhibi- 
tion Company  took  it  over.  Witness 
had  a  written  agreement  with  Neale 
with  regard  to  the  pledging  of  the  dy- 
namos for  t&ecurity  on  witness  endorsing 
a  bill  for  £1,000.  Witness  put  a  plate 
on  the  dynamos  bearing  his  name.  He 
told  all  the  representatives  of  the  defend- 
ants that  he  was  not  a  partner.  They 
all  at  different  times  aoked  him  if  he 
-was  a  partner.    The  only  person  witnees 


had  transactions  with  was  Neale,  and 
the  only  transaction  with  Neale  was  in 
ro!*|)ect  of  those  2,000  shares.  When 
the  contract  was  taken  over  bjr  the  Ex- 
hibition people  witnesA  remained  in 
Cape  Town.  He  first  heard  that  he  was 
included  in  the  proceedings  on  the 
morning  of  the  27tn  January,  the  day 
after  summons  was  issued.  Witness 
wont  and  saw  the  summons  on  the  door 
of  the  Torque  office,  and  there  he  saw 
his  name.  He  received  no  intimation  at 
his  address  at  Sea  Point  that  theee  pro- 
ceedings were  being  taken.  No  appli- 
cation was  ever  made  to  him  individu- 
ally for  payments  of  the  debts  of  the 
company.  He  left  Cape  Town  for  Dur- 
ban on  January  27.  Before  leaving  he 
swore  a  <;hort  affidavit.  ^  He  was  not 
hero  while  the  sequestration  proceedings 
wore  on.  On  his  return  he  was  inform- 
ed of  the  order,  and  he  remained  here 
in  order  to  bring  this  action.  He  had 
been  obliged  to  stay  here  for  six  months, 
and  his  wife  also  had  remained.  He 
claimed  £10  a  month  for  exi>enses ;  £200 
for  loss  of  directors'  fees  in  two  com- 
panies in  England;  £100  for  loss  ^  of 
directorship,  owing  to  being  disaualified 
by  reason  of  absence;  £40  for  telegrams 
and  incidental;  and  £750  as  daniages 
for  loss  of  credit  and  injurv  to  business. 
He  had  made  up  a  rough  ertatement, 
showing  that  he  had  sustained  damage 
to  the  amount  of  £1,400.  The  dynamos 
were  of  the  value  of  £1,000,  and  there 
wai  about  £900  in  book  debts.  Mr.  J. 
E.  P.  Close  had  drawn  up  a  balance- 
sheet,  and  made  a  report. 

Cross-examined  by  Sir  H.  Juta: 
The  Nealeron  Company  was  not 
registered  in  this  Colony;  nor 
had  the  company  an  office  here.  Tlie 
liabilities  were  incurred  by  the  Torque 
Company,  and  all  the  money  was  receiv- 
ed by  the  Nealeron  Company.  That 
was  according  to  contract.^  Neale  for- 
merly carried  on  business  in  London  as 
the  Torque  Engrineering  Comi>any.  Wit- 
ness knew  NeaJe  carried  on 
business  here  as  the  Torque  Company. 
There  was  only  one  book — ^the  potty 
cash-book— kept  by  the  Nealeron  Com- 
pany in  Ga>pe  Town.  It  was  difficult  to 
tell  where  the  Nealeron  Company  ended 
and  the  Torque  Company  commenced. 
Neale  got  the  contract  with  fche  Exhibi- 
tion Company  for  himself,  and  witness 
thought  it  was  a  good  thing.  He  was 
willing  to  put  £2,000  into  the  concern, 
so  long  as  he  had  his  share  of  the 
profits,  but  should  not  have  any  more 
Halbility  than  £2,000.  The  floating  of 
the  Nealeron  Company  was  a  means 
towards  limiting  his  liability.  As  le- 
garded  the  position  of  the  Nealeron 
Company,  it  had  nothing  except  three 
calk  of  £1  each.  Ho  had  drawn  upon 
the  Nealeron  Company  for  expenses. 
He  did  not  agree  wit  a  Neale  if  the 
latter  said  he  drew  in  anticipation  of 
future  dividends.  A  box  of  cigars  might 
be  Baid  to  be  expenses.   Whisky,  lunohea. 


''OAPB  TDfES"  LAW  REPORT& 


529 


picnioB,  etc.,  might  abo  be  put  down 
aa  expense«,  although  he  knew  nothing 
about  the  picnic.  He  had  tho 
ordinary  authority  of  a  director  for 
drawing  money  out  of  the  funcfa  of  the 
Nealeron  Company.  It  was  agreed  be- 
fore iher  left  England  that  they  should 
draw  £10  a  month  expenses.  There 
were  meetings  of  the  Nealeron  Company 
in  the  ofBoe  of  Neale's  eolicitor-— Mr. 
Reynolds— l)efore  they  came  out,  but  he 
could  not  say  whether  the  directors  were 
authorised  at  that  meeting  to  come  to 
the  Cape.  He  believed  there  was  au- 
thority given  to  the  directors  a/t  a  meet- 
ing to  draw  money.  He  did  not  remem- 
ber whether  it  was  an  arrangement  be- 
tween Neale  and  hinuelf  that  they 
should  draw  £10  a  month ;  at  any  rate, 
there  were  three  shareholdera  present 
when  the  matter  was  discussed.  He 
could  not  say  whether  it  was  doiie  at 
a  meeting  of  the  company.  He  could 
not  say  that  there  was  a  statutory  meet- 
ing of  the  com{>any  to  authorise  tho 
payment  of  his  wife's  fare  out  to  South 
Africa,  and  also  that  of  Mrs.  Neale. 
The  dynauMs  were  not  only  necessary 
for  supplying  the  electric  light,  but 
they  were  sent  out  as  exhibits.  They 
were  not  used,  however.  Neale  told 
witness  that  they  were  his.  Witness 
put  his  plates  on  at  night  after  the 
lights  had  been  turned  off,  as  he  did 
not  want  anybody  to  know  at  that  time 
that  he  was  taking  the  dynamos  over. 

Re-examined  b^  Mr.  Alexander:  All 
the  money  received  by  the  Nealeron 
Company  was  used  to  pay  off  the  debts 
of  the  Torque  Company. 

William  Hanks  Ra^ord,  clerk  in 
charge  of  the  bill  department  of  the 
^andard,  produced  eintries  from  the 
overdue  bill   account* 

Cross-examined:  The  Nealeron  Com- 
pany bought  a  draft  and  paid  £5  10s.  Id. 
for  it. 

Reexamined :  I:;  was  reallv  the  Bank 
that  bougiht  the  draft,  and  took  Mr. 
Herron's  signature  as  security. 

Edwin  Barron  Lumm,  from  the  office 
of  Mr.  J.  £.  P.  Close,  said  he  had  in- 
spected the  various  accounts  at  the  in- 
stance of  Mr.  Herron,  and  had  drawn 
up  a  report.  He  had  also  drawn  up 
a  balance-sheet  for  the  Nealeron  Com- 
pany, which  showed  that  the  receipts 
from  the  exhibttors,  rent,  and  cash  re- 
ceived from  the  Torque  Company 
amounted  to  £1,015  13s.  The  receipt- 
book  showed  receipts  at  £11,095  8s.,  and 
there  was  an  amount  received  from  the 
Exhibition  for  which  no  receipts  were 
given  amounting  to  £162  17s.  4d.,  nutk- 
ing  a  total  of  £1,258  5s.  4d.,  and  giving 
a  difference  of  £242  12s.  4d.  He  found, 
however,  that  a  sum  of  £295  17s.  6d. 
was  paid  into  the  Torque  Company's 
account,  which  never  reached  the  Neal- 
eron (^mpany,  which  made  the  differ- 
ence £53  5s.  2d.  This  he  could  not  ac- 
count for.  Nothing  has  been  paid  by 
^e  Nealeron  Company  towards  the  pur- 


chase price  of  the  dynamos.  As  regards 
the  draft  for  £1,000,  he  had  found  that 
the  money  had  passed  through  the  ac- 
count. There  was  no  doubt  that  Mr. 
Herron  put  in  £2,000.  The  total  re- 
ceipts of  the  company  amounted  to 
£4,034.  Including  tho  £2,000  in  shares, 
and  making  allowance  for  the  thousand 

gounds,  the  expenditure  of  the  Nealeron 
bm*pany  exceeded  the  income  by  £3,019 
OS.  lOd. 

By  tho  Court :  Tho  Nealeron  Company 
had'the  benefit  of  the  thousand  pounds 
draft,  and  certain  payments  were  made 
to  the  Tor(^ue  Ck)m|)any. 

Examination  continued :  The  money 
was  undoubtedly  used  to  pay  the  Torque 
Company's  creditors. 

Cross-examined  by  Sir  H.  Jpta:  In 
witness's  balance-sheet  the  liabilities  of 
tho  Nealeron  Company  were  shown, 
and  Herron  was  included  as  a  creditor 
for  £1,000,  cash  advanced.  Among  the 
items  was  a  sum  of  £50  paid  for  raising 
capital.  Witness  understood  that  this 
was  commission  on  account  of  the  £2,000 
found   by  Herron. 

The  Sheriff's  Officer,  who  served  the 
summons  on  the  31st  December,  said 
that  Herron's  name  was  not  on  the  sum- 
mons. Witness  was  unable  to  find  the 
other  defendants,  and  affixed  the  sum- 
mons to  the  door  of  the  office.  SiAxie- 
quently  he  h*ad  another  summons  with 
Herron's  name  as  *  partner. 

Edward  G.  C.  Jones,  electrical  and 
mechanical  engin*x^r.  practising  at  Cape 
Town,  said  he  had  examined  one  of  the 
two  dynamos  connected  with  tho  case. 
There  were  two  generators,  which  he 
valued  at  £1,111.  He,  however,  allowed 
10  per  cent,  to  the  maker  for  disposing 
of  it.  so  that  the  net  value  of  the  gener- 
ators would  be  £1,000. 

Cross-examined  by  Sir    Henry  Juta: 
He  had  given  the  English  value  of  the 
generators.      The   South  African  value 
would  be  more. 

Mr.  Searle  closed  his  case. 

Edward  W.  McL.  Thomas,  tthe  trustee 
in  the  insolvent  estate  of  the  Torque 
Company,  said  when  he  took  over  the 
affairs  of  the  company  the  only  book 
he  found  was  a  petty  cash-book.  At 
the  Exhibition,  in  the  space  set  aside 
for  the  Torque  Company,  he  found  two 
dynamos,  one  of  wiiich  he  sold  after 
the  Exhibition  was  over.  He  sold  tho 
dynamo,  which  was  the  smaller  of  the 
two,  for  £160.  He  knew  of  no  proof 
of  debt  put  in  by  Herron.  Thomas. 
Parker  and  Co..  the  manufacturers,  had 
put  in  a  claim  for  the  generators.  The 
total  amount  of  the  claims  put  in  at 
the  several  meetings  amounted  to 
£2,640  5s.  lOd.,  whilst  the  assets  so  far 
had  only  realised  about  £500.  On  the 
10th  November  the  position  of  the  com- 
pany, BO  far  as  could  be  seen  from  the 
books,  was  that  there  was  a  deficiency 
of  £647  15s.  9d.,  but  that  did  not  in- 
clude in  the  assets  the  dynamos  about 
which  there  was  a  dispute. 


530 


tt 


CAFE)  TIMEB"  LAW  REPOBTB. 


CroflB-ezamined  by  Mr.  Alexander: 
He  did  not  remember  reoeiving  the  let- 
ter from  the  plaintiff  warning  him  not 
to  sell  the  dynamos.  Witness  did  not 
expect  the  plaintiff  to  file  a  claim. 
There  was  a  claim  pending  between  the 
Torque  Estate  against  the  Exhibition 
Company.  He  held  that  the  true  value 
of  the  assets  in  the  estate  was  about 
one-tenth  of  the  cost  price.  In  making 
up  the  account,  he  took  "  Nealeron " 
and  the  "Torque"  to  be  one  and  the 
same  thing.  On  the  10th  November,  the 
position -was  that  there  was  £689  5s.  8d. 
to  the  oredit  of  "  Nealeron "  in  the 
Standard  Bank.  The  Torque  would 
have  been  solvent  if  the  goods  were 
taken  at  cost  price;  in  fact,  there  would 
be  a  surplus  on  that  basis. 

Re-examined  by  Sir  H.  Juta:  If  the 
credit  of  the  "Nealeron"  on  the  10th 
November  was  not  taken  in  the  defi- 
ciency would  be  much  greater  in  the 
case  of  the  "Torque."  The  English 
books  showed  an  account  with  the 
"  Nealeron,"  goods  supplied  to  the 
"  Nealeron "  and  moneys  received  from 
the  exhibitors  due  to  the  Torque. 

Frank  Cook,  one  of  the  proprietors  of 
F.  Cook  and  Co.,  Cape  Town,  stated 
that  the  plaintiff  was  introduced  by 
Lee  to  witness  as  one  of  tho  partners 
in  the  Torque  Company.  Witness  heard 
that  the  Torque  Company  had  trouble 
with  another  firm,  and  interviewed  the 
plaintiff,  who  assured  him  that  he  would 
be  paid,  and  the  work  of  building  in  the 
boilers  was  undertaken  by  witness.  The 
plaintiff  again  told  the  witness  that  he 
was  a  partner  in  the  fi^rm*  When  the 
work  was  finished,  plaintiff  repeatedly 
promised  to  pay,  but  failed  to  do  so. 
He  knew  nothing  of  the  "  Nealeron " 
Company. 

Cross-examined  by  Mr.  Alexander: 
Witness  looked  upon  Lee  as  a  clerk  in 
the  firm ;  he  never  saw  Neale.  The 
plaintiff  assured  witness  that  the  Torque 
was  a  well-to-do  company  in  London. 
Lee  wrote  on  behalf  of  the  Torque  Com- 
pany accepting  the  witness's  estimate. 
Witness  addressed  all  his  correspondence 
to  the  company;  it  was  not  necessary 
to  mention  the  plaintiff's  name. 

Archibald  J.  G.  Simpson,  manager  of 
Siemens,  Ltd.,  said  he  had  been  intro- 
duced to  plaintiff  as  "^»ir.  Herron,  of 
the  Toraue  Company."  At  that  time, 
witness  nad  heard  nothing  about  the 
"  Nealeron "  Company.  He  considered 
that  Herron,  from  the  manner  in  which 
he  conducted  himself,  was  a  partner  in 
the  Torque  Company. 

Bv  Mr.  Alexander :  Plaintiff  had  never 
tol(f  him  that  he  was  partner  of  the 
Torque  Company. 

Walter  Lee  said  he  entered  the  Torque 
Company  and  came  out  to  South  Africa 
with  Herron  and  Neale.  An  office  was 
taken  in  Cape  Town,  and  Herron  was 
mostly  in  the  office  and  at  the  office  of 
the  Exhibition.  Witness  kept  the  petty 
cash  book.    He  did  not  know  for  certain 


until  a  week  before  Christma«  that 
there  was  a  registered  oompany  called 
"  Nealeron."  He  considered  Herron  was 
a  person  greatly  interested  in  the  carry- 
ing out  (X  the  contract  at  the  Exhibi- 
tion. The  dynamoea  were  put  down  for 
the  Torque  Uompanv.  He  remembered 
Herron  putting  tne  brass  plate  on  about 
ten  days  before  Christmas. 

Thomas  William  McEwen,  Cape  Col- 
ony manager  oi  the  Telegraph  Manu- 
facturing Company,  said  when  plaintiff 
canM  to  his  office  he  introduced  himself 
as  "Mr.  Herron,  of  the  Torque  Com- 
pany." Plaintiff  wanted  to  see  some 
samples^  with  a  view  to  placing  business 
with  witness's  firm.  Plaintiff  did  not 
explain  his  position  in  the  oompanv,  and 
when  witness  was  dealinc^  witti  the 
plaintiff,  he  looked  upon  him  as  a  part- 
ner in  the  Torque. 

Cross-examined  by  Mr.  Alexander : 
Although  he  was  not  a  partner  in  the 
company,  he  would  describe  himself 
"  of  the  Telegraph  Company."  Before 
supplying  the  goods,  he  made  inquiries 
about  the  Torque  Company's  standing. 
One  of  the  bank  manageie^  informed  him 
that  they  weie  still  awaiting  a  report 
about  tlie  Torque  Company  from  Lon- 
don. The  greater  part  of  the  goods  had 
been  sui^ied  before  he  heard  of 
"  Nealeron."  From  the^  general  con- 
versation with  the  plaintiff,  he  con- 
cluded that  he  was  a  partner. 

Edward  Kitch,  Cape  Town  manager 
to  Clark  and  Co.,  Ltd.,  who  enterod 
into  a  contract  with  the  Torque  Com- 
pany for  Hght,  stated  that  one  cheque 
was  paid  to  "Nealeron"  and  two  to 
"  Torque." 

The  evidence  on  conunission  of  Walter 
Philip,  director  of  the  British  General 
Electno  Company  and  manager  in  Cape 
Town,  set  out  uiat  plaintiff  gave  fadm 
some  orders  for  the  Torque  Company. 
He  was  not  aware  of  the  "Nealeron" 
while  he  was  getting  the  orders.  Wit- 
ness subsequently  told  the  plaintiff  that 
he  believed  the  "Torque"  and  the 
"Nealeron"  were  the  same  company. 
He  knew  of  no  other  way  of  the  Torque 
Company  getting  money  if  the 
stallholders  did  not  pay  for 
the  light.  The  company,  in  his 
opinion,  was  formed  to  swallow  up  the 
proceeds,  and  he  believed  the  "Neale- 
ron "  and  the  "  Torque "  were  one  and 
the  same  thing. 

Cornelius  Johannes  Muller,  of  the  In- 
solvency Branoh,  produced  the  records 
on  which  the  sequestration  was  granted. 

Sir  H.  Juta  closed  his  case. 

Sir  H.  Juta  said  there  was  evidence 
taken  on  commission  of  Neale  which, 
however,  he  did  not  propose  to  put  in. 

Mr.  Alexander  said  that  the  witness 
Neale  was  in  court,  and  he  submitted 
that  either  the  evidence  must  go  in  or 
Neale  called  by  the  defence  as  a  witness. 

Sir  H.  Juta  said  supposing  it  was 
found  aitor  the  evidenoe  was  taken  on 
conmiiasion  that  the  witness  wm  hostile, 


"CAPE  TIMB8"  LAW  BEPOBTS. 


531 


the  defence  oould  not  be  expected  to  call 
him«  and  now  that  he  was  in  court  the 
eyidlence  on  commission  could  not  be 
put  in. 

Maasdorp,  J.,  said  that  under  the  cir- 
cumstances  he  thought  Neale's  evidence 
should  be  put  in. 

Sir  H.  tJuta  said  it  might  be  as  well 
now  that  Neale  was  in  the  court  to  see 
h<yw  he  looked  in  the  box. 

John  Edward  D.  Neale  was  then  call- 
ed, and  in  reply  to  questions  by  Mr. 
Alexander,  stated  that  he  gave  the 
rights  of  the  Exhibition  contract  to  the 
Nealeron  Company.  When  he  first  met 
pIainti£F,  and  spoke  about  the  company, 
witness  suggested  that  Herron  should 
go  into  partnership,  but  Herron  refused 
to  do  that.  Herron  said  he  would  **  go 
in  *'  if  his  liability  was  limited.  Witness, 
when  thev  came  to  Cape  Town,  took  an 
office  in  St.  George's-etreet,  and  Herz^n 
was  often  in  there  looking  after  his  in- 
tecestfi  as  a  shareholder.  Herron  had 
nothing  to  do  with  the  Toraue  Com- 
pany. Herron  had  charge  of  the  techni- 
cal work  at  the  Exhibition. 

Questioned  by  Sir  Henry  Juta,  the 
witness  said  he  knew  a  director  could 
not  appropriate  the  funds  of  a  company 
to  pay  his  own  private  debts.  The  £50 
paid  to  the  broker  for  obtaining  some- 
one to  advance  £2,000,  he  did  not  con- 
sider a  private  debt.  Herron  had  to 
take  instructions  from  witness  with  re- 
gard to  the  work  at  the  Exhibition.  A 
sum  of  £52  lOs.  in  respect  of  the  tuition 
fees  of  a  learner — Rex — was  paid  into 
Mrs.  Neale' s  account.  This  sum  was 
witness's  own  personal  property.  Wit- 
ness had  given  a  bill  in  payment  for  the 
dynamos.  The  bill  had  not  fallen  due 
yet. 

By  Mr.  Alexander :  The  fifty-two 
guineas  paid  by  Rex  was  included  in  a 
sum  subsequently  paid  into  the  account. 

Pottea  (July  7th). 

Sir  H.  Juta  applied  that  the 
order  of  soc^uestration  granted  by  the 
Court  against  the  members  of  the 
Torque  Company  be  discharged  as  against 
Forbes,  Griffiths  and  Billiotti.  He  ap- 
plied on  behalf  of  the  petitioning  credi- 
tors, and  the  three  persons  he  had 
mentioned  were  not,  as  the  evidence 
in  the  case  disclosed,  partners  in  the 
firm,  in  so  far  as  concerned  transactions 
in  South  Africa. 

Maasdorp,  J.,  said  the  order  would 
be  varied  by  striking  out  the  names 
of  Forbes,  Griffiths  and  Billiotti. 

Postea  (August  14th). 

Maasdorp,  J. :  Upon  the  position  of 
the  four  last-named  defendants  in  this 
case,  the  estate  of  the  Torque  Electrical 
Engineering  Company,  of  Cape  Town, 
consisting  of  five  partners,  being  Neale, 
FoHbes,  Griffiths.  Billiotti,  and  the  plain- 
tiff, was  finally  adjudicated  as  insolvent 
on  the  9th  day  of  February,  1906.  When 
the  motion  for  final  adjudication  was 
heard,  the  plaintiff  appeared  to  oppose 
on  the  ground  that  be  was  not  a  partner 

Ml 


in  the  business,  and  he  nrayed  that  the 
provisional  oraer  shoula  be  discharged 
so  far  aa  he  was  concerned.  The  Co'jrt 
confirmed  the  provisional  order  gener- 
ally, leaving  it  to  the  plaintiff  to  have 
his  position  in  the  matter  decided  bj 
action  to  be  by  him  instituted.  This 
action  has  accordingly  been  brought,  and 
the  plaintiff  alleges  in  his  declaration 
that  he  is  not  a  partner  in  the  com- 
pany, and  pravs  that  his  name  may  be 
struck  out  of  the  final  order  of  ad- 
judication. As  against  the  creditors 
who  obtained  the  order  he  claimp  dam- 
ages on  the  ground  that  the  legal  pro- 
ceedings were  as  against  him  instituted 
by  them  maliciously.  He  further  clai.iaa 
to  rank  as  a  preferent  creditor  upon  the 
insolvent  estate  in  respect  of  a  debt  due 
to  him  received  by  the  pledge  of  cer- 
tain machinery.  The  defendants  plead 
that  the  Torque  Company  commenced 
busipess  in  Cape  Town  in  or  about  Sep- 
tember, 1904,  and  opened  an  office  m 
St.  George's-street,  a  business  whicdi  was 
conducted  by  plaintiff  and  the 
said  Neale,  and,  further,  that  the 
|>J  <iictdff  carried  on  the  business  Aud  eon- 
ducted  himself  in  such  a  way  as  to  lead 
the  defendants  to  believe  hona-fide  that 
he  was  a  partner  in  the  said  company. 
They  further  deny  that  the  insolvent 
estate  is  indebted  to  the  plaintiff,  and 
tiiat  the  machinery  was  legally  pledged  to 
him,  anu  they  say  that  if  the  maoninery 
was  pledged,  such  pledge  is  null  ani 
void  under  the  terms  of  sections  83  and 
84  of  Act  No.  6  of  1843.  The  first  point 
the  Court  has  to  decide  is  whether  the 
plaintiff  was  a  partner  in  the  business 
of  the  Torque  Companv,  or  whether 
anything  was  done  by  nim  to  render 
him  liable  to  be  treated  as  a  partner  for 
the  purposes  of  proceedings  in  insol- 
vency. The  question  is  simplified  some- 
what by  the  admission  made  at  the  trial 
on  the  part  of  the  defendants  that  they 
are  now  satisfied  tiiat  Forbes,  Griffiths,, 
and  Billioti  were  not  partners  in  the 
Toraue  Company's  business,  and  only 
Neale  and  the  plaintiff  have  to  be  con- 
sidered in  this  case.  It  appears  that  on 
the  l2th  day  of  February,  1904,  an 
agreement  was  entered  into  between  a 
company  called  the  Trades  Markets  and 
Ex^hibitions,  Limited,  and  John  Edward 
Neale,  carrying  on  business  as  the 
Torque  Electrical  Engineering  Com- 
pany in  London^  the  main  purpose  of 
which  was  to  give  to  the  second  con- 
tracting party  upon  the  terms  stated  the 
right  of  lighting  exhibition  stalls  by 
electricity  in  the  exhibition  buildinigs  at 
Cape  Town  upon  terms  to  be  made  with 
exhibitors.  Neale  was  not  possessed  of 
the  means  to  carrv  out  the  contract, 
and  in  going  round  to  find  the  neces- 
sary funds  he  made  the  acquaintance  of 
the  plaintiff,  whom  he  told  that  he  re- 
(luired  £2,000  for  the  business,  asking 
him  a/t  the  same  time  to  join  him. 
Neale  suggested  that  they  should  go 
into  partnership,   but  the    plaintiff    re- 


532 


"CAPE  TIMES"   LAW  REPORTS. 


fused.        The    i>lBiniaff   was    willing    io 
join  Id  carrying  out  the  contract  li  be 
could        do       BO        without         booom* 
ing        a        partner,         and        if        by 
any  means  no  could  limit  his  liability 
in  the  concern.    It  was   then   sugf^ested 
that  that   purpose   could      be     effected 
through  the  inatrumentality  of  a  limited 
liability  company,  duly  incorporated  and 
registered.    A  company  was  accordingly 
formed,    consii^ting   then,    and    still   oon- 
aierting,    of  seven   shareholders,       whose 
names  appear  in  the  memorandum  of  aa- 
sociation.       One  of  the  objects   of     the 
company,    appearing    in    toe    memoran- 
dum, is  to  enter  into  partnership,  or  in- 
to  any  arrangement  for  sharing  profits 
with  an:^  person  or  oompanjr  engaged  in 
any  business  the  company  is  authorised 
to  engage  in.       Under  the  further  Ar- 
ticles of  Association  No.  5  it  is  provided 
that  the  ooinpany  shall  enter   mto  and 
carr^  into  effect  either  with  or  without 
modification  an  agrreMnent  which  has  al- 
ready been  prepared,  and  is  expressed  to 
be   made   between    the    company       and 
John  Edward  Neale.      The  company  was 
duly  registered  in  England,  and  on  the 
28th  day  of  May,  1904,  the  directors  of 
the  company,  entitled  Nealeron,   Limit- 
ed   and  Neale,  formally  executed      the 
contract  referred  to  in  the  Articles  of  As- 
sociation, and  the  contract  was  duly  filed 
in   the   office  of  the   Registrar  of  joint 
stock   companies.       Under    the  contract 
Neale  obtained  4,000  B  shares,    and   in 
substance  the  agreement  amounts  to  an 
undertaking  on   the  part  of     Nealeron, 
Limited,  to  pay  the  working  expenses  of 
the  Toniue  Company  in  consideration  of 
Neale,   carrying      on      business     as   the 
Torque   Company,    duly    and    regularly 
accounting  to  Noaleron,  Limited,  for  all 
sums  receivable  by  him  under  the  agree- 
ment with  the  Trades,  Markets,  and  Ex- 
hibitions, Limited.     I  may  mention  here 
that   tho  shareholders    in    the   Nealeron 
Company   were    Horron,   tlio   holders   of 
two  thousand  "A"  share's;    Neale,    the 
holdcrr  of    four  thousand    "  B "    shares ; 
Reynolds,    a  solicitor;    Du   Bois,  a  soli- 
citor; Tofts  and  Smith,   both  solicitors' 
clerks,    and    Passmore,    a  solicitor's   ar- 
ticled  clerk.        The   last   five   were    the 
holders  of  one  share  each.       Neale  and 
Herron    were  elected      directors  of   the 
company,  and  they  seem  to  have  trans- 
acted the  business  of  the  company  with- 
out going  through  the  formality  of  hold- 
m^  regular  meetings,  and  reoOTding  the 
minuter  of  their  proceedings.     It      was 
contended   that  for  the  purposes  of   the 
contract  entered  into  between  the  Neal- 
eron Company  and   Neale,    carrying   on 
business  an  the  Torque      Com!>any,    the 
former  company  might   bo    regarded    a 
negligible  quantity,  bcinp  a  mere  sham, 
or   a  scheme  ana  contrivance   to   cover 
the  personality  of  Herron,  and  to  shel- 
ter him  from   responsibilities  legally   re- 
sulting from  the  business  relationship  en- 
tered into  by  him  with  Neale.    It  was 
argued  that  the  constitution  of  the  com- 


pany and  the.  circumstances  under  which 
it  was  formed  were  such  as  to  reveal  the 
company  in  its  true  light  as  a  mere  in- 
genious device,  which  the  law  would  not 
recognise.     It  is  enough  to  say  that  the 
argumente    advanood   in   this  case      are 
similar  to  those  employed  in  the  case  of 
Solomon     v.     Solomon     and     Company, 
Limited  (reported    in    the  Appeal  Cases 
of  1897,  page  22).  In  that  case  the  Court 
of  appeal  held  that  the  formation  of  the 
company  was  a  meie  scheno  to  enable 
Solomon  to  carry  on  business  in  the  name 
of   tiie  company  with   limited      liability 
contrary  to  the  true  intent  and  meaning 
of  the  Companies  Act    If  a  transaction 
of  this     sort     could     be     denominated 
a      scheme       or      device,      then       the 
device  in  the  oase  of  SoloniDn  was  of  a 
far    more    glaring   rjiarac^ter    than  flat 
in   the  present  case.        It   was     irankly 
admitted  in  this  case  that     Herron  was 
djBsirous  of   taking   part  in   the   Torque 
business,  by  contributing  to  its  finances, 
and  sharing  the  profits,   if  be  could  do 
so.  with  limited     liability,  and  for  that 
purpose    he  took  advantage  of  what  he 
considered  were     legal     means  afforded 
by    the    Companies  Act,    by      entermg 
into   the  business   as  one  of  the  share- 
holders of  a  limited  liability     company. 
The  House  of  Lords  .held  that  there  was 
in  law  nothing     objectionable      in   the 
formation  of     Solomons  and  Co.,  Ltd., 
or  in  the  oiroumstaiices  under  which  it 
was  formed,  and  similar    considorations 
lead  me  to    conclude  that  Nealeron  was 
a  properly  and  legally    constituted  com- 
pany, with  limited  liability.      If  Herron 
acted  in  Cape  Town  in  tne  capacity  of 
one  of  the  directors     of     Nealeron,  he 
might     be   answerable  as  such  director, 
or  he  mi^ht  have  to  bear  his  share     of 
responsibility  as  &  shareholder    in  Neal* 
pron.    but   he   incurred       no       personal 
liability.        It   was   suggested  that      the 
position  of  foreign  companies  is  not  well 
(lofinod  in  law.  but  however     question- 
able it  may  be  in  other  respects,  it  was 
definitely  decided  in  the  oase  of  Bate- 
mxin   v.    Service  (5   Appeal   Oases,    386) 
that  in   the  oase  of  a  properly      incor- 
porated foreign    company,  the  liabilities 
of  shareholders  in  England     in  i^espect 
of    business    transacted  there   would  be 
the  sajne  as  in  the  foreign  country.     In 
the  event,    therefore,  of   its   being     de- 
rided   that  in   his    connection   with  the 
Torque    Comnany     Herron  was    acting 
for     the     Nealeron.  he  would  incur  no 
personal     liability.       I  see  no  reason  to 
doubt  the  veracitv  of  either     Herron  or 
Neale  in  the  evidence  they  gave.     They 
soe^niod  to  put  matters     very      frankly, 
even    upon    points    which      might      tell 
a^inst  them.      Now  the  question  arises, 
did     Herron  act  only  in  the  business  as 
director  of     Nealeron,  or  in  a  personal 
and   individual   capacity;   was  his     con- 
nection with  the   Dusinoss  only  through 
Nealeron,  or  was   he  a  partner   in  tne 
business?  ^     There  is  no      necessity   to 
Labour  this   point,   because   it   is      per- 


u 


CAPE  TIMES**  LAW  REPORTS. 


:33 


fectly  clear  that  it  wm  only  possible  to 
connect  him  directly  with  the  Torque 
If  Ne&leron  was  eliminated  as  a 
necessity;  if  Nealeron  stands,  then  his 
conduct  is  consistently  explained.  It 
was  argued  that,  as  the  evidence  sho-vcd 
that  Neale  and  Herron  acted  in  a  very 
irjreguktr  manner  in  doinff  business  with- 
out formal  meetings  of  directors,  avd 
without  minuting  their  proceedings 
they  must  be  taKen  to  have  acted  for 
themselves,  without  reference  to  any 
company;  but  that  was  one  of  the 
features  in  Solomone'  case  relied  on 
without  avail  before  the  House  of 
Lorda.  I  cannot  oome  to  any  other 
conclusion  than  that  Herron  acted  in 
good  faith  throughout  the  whole  busi- 
ness. He  put  in  the  £2,000  promised 
by  him,  and  lent  the  Nealeron  Oona- 
pany  £1,000  more.  There  is  no  eyi- 
denoe  that  he  gained  any  profits  while 
the  business  was  running,  and  in  the 
end  he  wag  a  heavy  loser.  I  oome  to 
the  conclusion  that  the  contract  between 
Nealeron  and  Neale  was  a  valid  ^  con- 
tract, and  neither  directly  nor  in  its 
^gial  results  made  Herron  a  partner 
of  Neale  in  the  Torque  Oompany.  The 
next  question  is  whether  Her- 
lon       conducted  himself       so       as 

to       induce         people       generally      to 
believe  that  he  was  a  i>artner,   and   to 
give  credit  to  the     business      on     the 
strength  of  his   being     a  partner,  with 
the  raault  that  he  is  now  estopped  from 
denying  his  partnership.      I  repeat  that 
his  share  ii*  the  working  of  the  business 
18  explained  by  his  being  largely  inter- 
ested in  it  under  the  Nealeron  contract, 
and  his  position  could  have  been  ascer- 
tained upofj  inquiry.      The  business  was 
described  in  the  contract  with  the  Ex- 
hibition  Company   as  that      of   Neale, 
car  tying  on  business  as  the  Torque  Com- 
pany.   Apart  from  the  existence  of  the 
Nealeron  Company,  there  was  nothing  in 
the  conduct  of  Herron,  or  in  the  manner 
he  carried  on  some  of  the  correspondence, 
to  lead  to  the  necessary  inference  that  he 
was  a  partner.    He  did  not  give  himself 
out  to  the   public  as  a  partner,   and  if 
he  made  statements  to  two  or  three  p(*r 
sons,  which  induced  them  to  think  that 
he  was  a  partner,     whatever     estoppel 
might  in  consequence  arise  in  their  fa- 
vour, Herron  would  not  thereby  become 
a  partner  in  respect  of  creditors  po.ier- 
ally  for  the  purposes  of  sequestration  in 
ineolvency.      In  that  view  of  (he  case  it 
is  unnecessary  to  decide  whether  the  two 
or  three  persons  referred  to  were  justi- 
fied upon  what  Herron  said  to  them  in 
coming  to  the  condueion  that  he  yjt\%  a 
partner  in  so  far  as  to  stop  him  from 
denying  it  aa  against  them.       But.   al- 
thouf^h  I  hold  that  Herron  was  no  part- 
ner in  Torque,   and  do  not  go  into  the 
question  of  estoppel,  still  circumstances 
did  exist  which  led  to  the  reasonable  be- 
lief  in    the   partner   ot    the   four    last- 
mentioned  defendants  that  Herron*s  in- 
terest in  tbe  bqeiDees  was  such  that  he    | 


might  in  law  be  regarded  aa  a  partner, 
and  I  am  of  opinion  that  they  did  not 
act  maliciously  in  the  le^al  proceedings 
taken  by  them.  The  plaintiff  sets  up  a 
claiiU  against  the  insolvent  estate  of  the 
Torque  Companv  for  £1,000,  and  aJso 
claims  a  right  of  pledge  for  this  debt  in 
respect  of  certain  machinery.  But  it 
S€emb  to  me  he  has  mistaken  his  reineily. 
The  machinery  for  provinsr  debts  and  set- 
ttn,^  up  preferent  claims  is  proviued  by 
the  Insolvent  Ordinance,  and  the  plains- 
tiff  must  proceed  in  the  ordinary  way.  But 
I  am  quite  prepared  to  express  ^  opin- 
ion that  the  pledge  was  never  validly 
co'JBtituted.  The  machinery  rei^iaincd 
ill  it'x  possession,  and  under  tho  contn»l 
of  Neale,  and  at  the  time  of  the  alJvpred 
delivery  was  actually  still  in  the  course 
of  erection  for  use  bv  Neale.  Th&  Court 
will  order  that  the  final  order  of  adjudi- 
catK.u  be  varied  by  striking  out  the  riaire 
of  Herron  as  partner  in  the  Torque 
Company.     Defendants  to  pay  the  costs 

[Plaintiff's  Attorneys :  Fairbridge, 
Aideme  and  Lawton ;  Defendant's  At- 
torneys:  Syfret,  Godlonton  and  Low.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting  ('hief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


ADMISSIONS. 


I 


1905. 
July  6th. 

Mr.  P  S.  T.  Jones  moved  for  the  ad- 
mission of  Andrew  Buchanan  George 
McLeod,  as  an  attorney  and  notary. 

Application  granted  and  oaths  admin- 
istered. 

Dr.  Greer  moved  for  the  admission  of 
Frederick  Perl,  aA  an  attorney  and  no- 
tary. 

Application  granted  and  oaths  admin- 
istered. 


PROVISIONAL     ROLL. 

DKLBBIDOE  V.  HABRIS. 

Mr.  J.  E.  R.  de  Villiers  moved  for 
provisional  sentence  on  a  mortgage  bond 
tor  £400,  with  interest,  the  bond  having 
become  due  by  reason  of  notioe  having 
been  given ;  counsel  also  applied  for  the 
property  specially  hypothecated  to  be  de- 
clared executable,  with  costs. 

Order  granted. 


534 


"CAPB  TIMES"  LAW  RBPOETa 


BUNGIMAN  AND  CO.  V.  PEINER. 

Mr.  GuUche  moved  for  a  proyisional 
order  of  sequestration  to  be  made  final. 

Final  order  granted. 

Mr.  Guteohe  afterwards  moved  for 
the  api>ointment  of  a  provisional  trustee 
in  the  insolvent  estate. 

Buchanan,  A.  C.  J.»  said  that  the  ap- 
plication had  not  been  set  down,  and 
could  not,  therefore,  be  heard  now. 


PICTON  V.  PBREINS. 

Mr.  Roux  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as  in- 
solvent. 

Order  granted. 


WHITB,  RYAN  AND  CO.  V.  JACOBS. 

Mr.  Swift  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as  inflol- 
vent. 

Order  granted. 


JONES  V.  UDWIN. 

Mr.  p.  S.  T.  Jonee  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £1,100.  with  premiums  of  insurance, 
etc.,  the  bond  having  become  due  by 
reason  of  the  non-payment  of  interest; 
counsel  also  appli^  for  the  property 
hypothecated  to  be  declared  executable, 
ana  for  the  rents  of  the  property  to  be 
attached  as  they  accrue. 

Order  granted  as  prayed. 


COMMONWEALTH    BOOT    CO.    V.    VAN 
ROOYEN. 

Mr.  McGregor  moved  for  provisional 
fientenoe  on  a  promissory  note  for  £78 
18s.   Id.,   with  interest. 

Order  granted. 


UXIQUID  ROLL. 


QIBBS  V.  HOQGARD. 


{ 


1905. 
Juiy  6th. 

Mr.  MoGiegor  moved  for  judgment 
under  Rule  519  in  default  of  plea  on  a 
declaration  filed  for  £144  Is.  &.y  goods 
and  materials  sold,  work  and  labour 
done,  and  disbuisemonta. 

Mr.  P.  S.  T.  Jones  (for  defeoodant)  said 
that  his  client  had  given  notdoe  of  appli- 
cation to  purge  default.  Counsel  read 
an  affidavit  by  Mr.  A.  W.  Steer,  defen- 
dant's attorney,  in  support  of  the  appli- 
cation, the  ground  hoing  that  there  had 
been  certain  delay  in  preparing  the  plea, 
and  that  it  liad  required  to  be  printed. 

Mr.  McGregor  road  a  replying  affi- 
davit by  Mr.  C.  E.  Price  Hughes  (plain- 


tiff's attorney),  who  said  th«t  the  defen. 
dant  was  not  barred  from  pleading  until 
three  days  after  the  time  had  expired, 
and  that  he  had  given  an  extra  day's 
indulgence,  but  the  plea  was  not  even 
then  tendered.  Counsel  read  a  further 
affidavit  bjr  the  plaintiff,  who  said  that 
he  was  seriously  prejudiced  in  his  busi- 
ness by  the  delay. 

Defendant  was  granted  leave  to  purge 
default,  plea  to  be  filed  within  24  hours, 
and  defendant  to  pay  costs. 


FRIEDIiANDER  AND  DU  TOIT  V.  MTBURO. 

Dr.  Greer  moved  for  Judgment  under 
Rule  329d  lor  £31  7s.  2d.,  balance  of 
account  for  professional  services  iei*- 
dered  and  money  disibuxsed,  with  interest 
a  tempore  morce  and  coste. 

Oroer  granited. 


W.  AND  O.  SCOTT,  LTD.  V,  MKTJB. 

Mr.  Douglas  Buchanan  moved  for 
judfrment  under  Rule  329d  for  £271  ISs. 
8d.,  goods  sold  and  delivered,  interest  a 
tempore  morce ,   and  costs  of  8u>t. 

Order  granited. 


REHABILITATION. 


Mr.  P.  S.  T.  Jones  moved  for  the  le- 
lease  of  the  estate  of  John  Brinton  from 
sequestration. 

Order  of  sequestration  superseded  and 
applicant  reinvested  with  his  estate. 


GENERAL  MOTIONS. 


HARRIS  V.  EXECUTORS  OF   f        1905. 
ESTATE  HARRIS.  \  July  6tb. 

Mr.  Searle,  K.G.,  moved,  as  a  matter 
of  urgenoy,  for  the  appointment  of  a 
commission  to  take  the  evidence  of  plain, 
tiff.  Charlotte  Ann  Harris,  and  Mis. 
Isaibel  Harvey,  who,  it  was  stated,  were 
about  <to  leave  for  England. 

Application  granted,  Mr.  Advocate 
Giddy,  K.O.,  to  be  commissioner,  and 
costs  to  bo  costs  in  the  cause. 


Ex  parte  CREDITORS  IN  estate  db 

LANOE. 

Mr.   Benjamin  moved,   as  a  matter  of 
urgency,  for  the  appointmeaiit  of  Mr.  C. 
M.      van     CoUer,     attomey-»t-law,      as 
trustee   in   the    insolvent  estate  of  Ste- 
phanus  do  Lange,  fanner,  Cathcaxtw 

Order  granted,  Mr.  Van  Coller  to  lie 
provisional  trustee,  with  powers  a9 
prayed. 


"CAt»D  TIMEd"  LAW  REPORTS. 


635 


Ex  parte  bouwbb. 

Mr.  P.  6.  T.  Jones  moved  for  an  or- 
der auihorisiiig  the  Registrar  of  Deeds 
to  pass  transfer  of  a  oertadn  farm  in  the 
dintriot  of  Queen's  Town,  in  the  named 
of  James  A.  Bremner  land  N.  Lionel 
Goldsmld. 

Buchanan,  A.  O.  J.,  said  that  ho  saw 
no  need  for  the  application  to  have  been 
mode,  because  the  debts  must  be  paid. 
An  order  would  be  f^ranted  as  prayed. 
Petitioner  was  obliTOd  to  sell  to  pay  the 
debts,  and  he  woula  have  a  perfect  right 
to  sell. 


Ex  parte  HAKKAY. 

Mr.  P.  S.  T.  Jones  moved  for  an 
order  authorising  petHioneT  to  pass  mort- 
ppage  bond  for  i^300  on  certain  property 
m  the  estate  of  her  first  husband,  Vincent 
Arthur  Hutt.  deceased. 

Order  granted  as  prayed. 


Ex  parte  LAWBEMCE  akd  wife. 

Mr.  P.  S.  T.  Jones  moved  for  leave  to 
execute  «  certain  contract  embodying 
the  provsdons  of  an  ante-nuptial  agree- 
ment as  if  rt  bad  been  an  ante-nuptial 
contract.  «nd  for  an  order  authorising 
the  Registrar  of  Deeds  to  tregisrter  the 
same. 

Leave  granted  to  execute  a  contract 
embodving  the  provisions  of  the  amte- 
nuptial  agreement  between  the  intending 
spouses,  excluding  community  of  proper- 
ty, and  securing  to  the  wife  sole  control 
of  her  own  property,  righte  of  creditors 
before  the  filing  of  such  contract  reserv- 
ed. 


Ew     parte     INSOLVSKT     ESTATE 
MCNAUOHTON. 

Mr.  P.  S.  T.  Jones  moved  for  an  or- 
der authorising  the  provisional  trustee', 
Mr.^  H.  Gibson,  to  proceed  with  the  liqui 
dation  of  the  estate,  the  only  asset  Do- 
ing the  Market  Buildings,  Sir  Lo wry- 
road 

Order  granted     as  prayed. 


/a    re    THE    COLONIAL    A88UBANGE 
COMPANY,  LTD. 

Mr.  P.  8.  T.  Jones  moved  for  confir- 
mation of  the  liquidators'  report. 
Report  confirmed  as  prayed. 


IMPERIAL  TOOL  CO.  V.  GRBEFF  AND 
WALTBB8. 

Mr.  Uping^n  moved  for  an  order 
of  peoonal  attaqhmenfe  against  the  res- 
pondents for  failing  to  obey  an  order  of 
this  Court  to  file  true  and  proper  ac- 
oounto  of  their  dealings  as  agents  of  the 
pleintiffs  in  the  oolleoiion    of      certain 


money.       Defendants     had  carried      oxi 
business  as  law  agents  at  LaiuRsburg. 

Application  refused,  his  lordship  hold- 
ing tnat  there  had  been  no  contempt  on 
the  part  of  the  respondents. 


Ex  parte  EXECUTBIX  ESTATE  KNOESEN. 

Mr.  Watermeyer  moved  for  an  order 
sanctioning  the  sale  of  certain  property 
in  the  district  of  Steytlerville,  and  au- 
thorising the  Registrar  of  Deeds  to  re- 
gister the  transfer. 

Order  granted  as  prayed. 


SNYMAN  AND  OTHERS  V.  EXECUTOR 
ESTATE  SNYMAN. 

Mr.  Searle,  K.C.,  moved  for  an  order 
for  the  removal  of^  respondent,  Karl 
Petrus  Snyman,  junior,  from  his  office  as 
executor  of  the  estate.  Respondent  had 
become  insolvent,  and  petitioners  alleg- 
ed that  since  his  insolvency  he  had  not 
exercised  proper  oare  and  attention  in 
the   management  of   the  estate. 

The  Court  granted  an  order  for  the 
removal  of  the  respondent,  the  Master 
being  directed  to  take  the  necessary 
steps  to  appoint  a  tutor  for  the  minors 
ana  an  executor  dative. 


PLUMER  V.  PLUMER. 

Mr.  Douglas  Buchanan  moved  for 
leave  to  the  applicant  to  sue  in  forma 
pauperis,  and  bv  edictal  citation.  Tho 
applioaint  was  the  wife  of  the  respond- 
ent. 

Mrs.  Plumer  stated  that  her  income 
was  £1  a  week,  with  which  she  main- 
tained herself  and  children. 

A  rule  nisi  was  granted  calling  on  de- 
fendant to  show  cause  why  tho  plainti£f 
should  not  bo  allowed  to  sue  in  forma 
pauperis,  pereonal  service  to  be  made  if 
possible,  rule  to  be  returnable  on  the 
3rd  August. 

Postea  (August  3rd).  Order  grajited 
as  prayed. 


Ex  parte  THE  EXECtTTOR  OF  THE  ESTATE 
OF  TEMLETT. 

Mr.  P.  S.  T.  Jones  moved  for  an  or* 
dor  authorising  the  purchase  and  regis^ 
tration  of  certain  property  sold  to  am 
executor  dative.  The  affidavits  of  the 
vendor  and  the  auctioneer  showed  that 
the  sale  was  well  advertised  and  the 
price  realised  satis£aotory. 

Order  granted. 


VI LANDER  CONCESSION  SYNDICATE  V. 
COLONIAL  GOVERNMENT. 

Mr.  Searle,  K.C.,  moved  for  leave  to 
apiwal  to  the  Privy  Council.  The  appli- 
cation was  not  opposed. 

Leave  was  granted. 


/kl6 


''CAPE  TtMES"   tAW  REPORTS. 


DKLPOBT  V.  COLONIAL  OOVKHMMEKT. 

Dr.  Rainsford  mov€d  for  arbitr&ton' 
award  to  be  made  a  rule  of  Court. 

Mr.  P.  S.  T.  Jones  for  the  Govern- 
ment, oonsented. 

Order  granted. 


Bradley  and  g&ayen  v.  baneb. 

Mr.  Searle,  K4C.,  moved  for  a  com- 
mission de  bene  esse  to  take  the  evidence 
of  certain  witnesses  in  England.  It 
was  asked  that  the  oommission  should  be 
appointed    in    Wakefield. 

Mr.  Burton,  for  the  respondent,  said 
he  did  not  oppose  the  application,  but 
he  would  suggest  that  it  would  be  better 
to  appoint  a  commissioDer  in  London 
It  would  be  difficult  to  know  who  to 
appoint   in   Wakefield. 

The  application  was  granted,  Mr. 
D.  G.  Oliver,  of  London,  to  be  commis- 
sioner. 


Mx  /;a/-<e  BUOLE. 

Mr.  Gutsche  moved  for  an  order  au- 
thorising the  Registrar  of  Deeds  to  pass 
transfer  of  certain  properties.  The  con- 
sent of  the  heirs  had  been  obtained. 

Order  granted. 


APPLE  V.  THE  DEPUTY  SHEUIFF. 

Mr.  Douglas  Buchanan  moved  upon 
notice  calling  upon  respondent  to  bhrw 
C2;use  why  he  should  not  be  restrained 
from  selung  certain  15  honves.  Peti- 
tioner alleged  tha^  the  horses  were  his 
projperty,  and  that  they  had  been  seiz- 
ed m  execution  of  a  judgment  against 
another  person.  He  asked  that  the^  Do- 
put^  Sheriff  should  be  restrained  from 
selling  the  animals  pending  an  action  to 
decide  the  ownership. 

Mr.   Bisset  opposed  the  application. 

Buchanan.  A.C.J. :  The  sale  re 
Apple  is  alleged  to  be  a  fictitious  sale, 
but,  on  tjhe  affidavits,  it  is  impossible 
to  decide  this  question.  The  parties 
mij«it  cadi  their  witnesses,  and  it  must 
be  determined  after  hearing  wit- 
nesses— it  cannot  be  determined  on 
affidavit — ^to  whom  these  horses  belong- 
ed. A  prima  facie  case  has  been  shown 
why  the  sale  of  those  horses  should  be 
restrained,  pending  this  action,  which  is 
to  be  instituted  forthwith.  Leave,  how- 
ever, will  be  reserved  to  the  parties  to 
arrange  for  the  sale  of  these  horses,  on 
condition  that  the  proceeds  be  paid  into 
court,  to  abide  the  result  of  the  action, 
costs  to  abide  result  of  the  action. 


RPIKBS  AND  CO.  V.  INSOLVENT  ESTATE 
I.  AND  J.  HBBHANN. 

Mr.   Upington  moved   (1^  for  leave  to 
sign  judgment  against  the  plaintiffs  for 


not  proceeding  with  the  action  wunin 
the  time  fixed  by  rules  of  Court ;  (2)  for 
the  rule  nm  to  be  set  aside;  (3)  for  the 
sum  of  £120  deposited  in  court  on  be- 
half of  the  estate  I.  and  J.  Hermann 
to  be  paid  over ;  and  (4)  for  costs  to  be 
paid  by  plaintiffis. 

Order  granted,  giving  leave  to  appli- 
cants to  sign  judgment  for  the  £120 
paid  into  court  to  oe  returned,  and  for 
the  rule  nisi  to  (be  discharged. 


STONE  AND  GIDDY  V.  8ATIBKY. 

Mr.  Douglas  BucbanAn  moved  for  an 
order  to  aid  the  jurisdiction  of  the  East- 
em  Districts  Court  in  diirecting  a  certain 
writ  against  the  goods  of  Max  Satisky, 
who  was  now  at  Willowmore,  and  W46 
formerly  at  East  London. 

Order  granted  as  prayed. 


In  re  DUSSEAU  AND  CO. 

Mr.  Douglas  Buchanan  moved  for  con- 
firmation of  the  official   liquidators'    re 
port. 

Order  granted,  ordering  tliai  all  clainis 
agaiiirt  the  company  be  filed  within  six 
weeks  from  th»  date,  that  the  name  of 
Mr.  Hoogendoorn  be  placed  on  the  List 
of  bharoholdens  for  50  shares  only,  and 
that  the  list  of  shareholders  so  amended 
be  settled  as  the  lii^t  of  oontributories ; 
that  calls  on  shares  not  fully  paid  up  be 
paid  on  or  before  the  1st  August,  and 
that  the  remuneration  of  liquidatore  be 
fixed  at  5  per  cent,  of  the  amount  re- 
ceived by  them. 


Ex  parte    tbusteb.    the  Zulu    and 

KAFIU  WAB  SUFFEKEB8'  BELIEF  FUND. 

Mr.  Douglas  Buchanan  moved,  on  the 
petition  of  the  Hon.  Alfred  Ebden  and 
the  Rev.  Rice  Thomas,  as  surviving  trus- 
tee and  hon.  secretary  respectively  of  this 
fund,  for  a  certain  order.  The  petition- 
ens  said  that  wbout  the  month  of  Janu- 
ary. 1879,  a  committee  was  formed  in 
Cape  Town  to  collect  and  administer 
funds  for  the  relief  of  sufferers  bv  the 
Zulu  War,  the  money  so  collected  and 
adminintercd  being  afterwards  styled  the 
Zulu  and  Ksfir  War  Sufferers'  Relief 
Fund.  Sums  amounting  to  £9,066  were 
collected  in  this  colony  and  in  England 
on  behalf  of  the  said  fund.  The  whole 
amount  of  the  moneys  had  been  dii>- 
bur^cd  in  relief  of  the  sufferers,  with  the 
exception  of  £1,000,  which  had  been  in- 
vested by  the  executive  committee  in 
Government  4^  perpetual  stock  on  behalf 
of  the  fund,  and  a  further  sum  of  about 
£136  now  standing  to  tlie  credit  of  tthe 
fund  in  the  Standard  Bank  in  Cape 
Town.  The  Venerable  Archdeacon 
Lightfoot  and  the  finat-named  petitioner 
were  appointed  trustees  for  the  said  in- 


"OAPB  TIMB8"   LAW  REPORTS. 


587 


V€0tiiuedafc  of  £1,000.  Tiie  Venerable 
Arobdeaoon  Ligbtfoot  -was  now  deceased. 
The  suffereiBi  for  wiiom  tbe  £1,000  wa« 
invested,  and  who  annually  i>doeived  pay- 
mentA  from  the  interest,  were  nearly  all 
deoeaeed.  In  para^rraph  7  of  the  peti- 
tion the  i>etitionera  suggested  that  the 
£1,000  invested  as  aforesaid  be  retained 
08  a  nucleus  ol  a  fund  for  any  similar 
emergency  iu  the  future,  and  that  the 
annual  interest  therefrom  be  diefbursed 
ajs  follows:  (a)  The  sum  of  £18  per  an- 
num to  the  present  annuitant;  (b)  the 
balance,  after  deducting  administrative 
charges,  to  be  equally  divided  among 
certain  six  widows  of  soldiens  killed  in 
the  Zulu  War  of  1879,  whose  names  were 
set  forth  in  the  annexed  memorandum 
marked  '*  a,"  and  who  were  now  residing 
in  this  colony,  to  supplement  a  small 
grant  which  they  received  from  another 
fund.  In  paragraph  8  the  petitioners 
further  suggested  that  any  money  which 
may  from  time  to  time  accrue,  by  reason 
of  the  decease  of  the  said  widows  or  any 
of  them,  be  paid  to  the  general  fund  of 
the  New  Somerset  Hospital,  Cape  Town. 
The  petitiotnere  were  desirous  of  being 
relieved  of  their  responsibility  under  the 
said  trutft  fund,  and  6Ugge(9ted  that  the 
South  African  Association  for  the  Ad- 
ministration and  Settlement  of  Estates  be 
appointed  trustees  of  the  said  fund.  The 
association  were  willing  to  accept  this 
truist.  The  petitioners  prayed  for  an 
order  (a)  releasing  them  from  the  trust, 
and  (b)  appointing  the  South  African 
Association  as  trustees  of  the  relief  fund, 
with  full  power  to  such  association  to  re- 
tain the  ooipital  of  the  fund,  consisting 
of  the  £1,000  invested  as  aforesaid  and 
the  amount  standing*  to  the  credit  of  the 
fund  in  the  Standard  Bank  for  any  simi- 
lar emei^gency  as  referred  to  in  para- 
graph 7  of  the  petition,  and  to  pay  the 
annual  interest  derived  therefrom  in 
manner  as  set  forth  in  paragraphs  7 
and  a 

Buobanan,  A.  C.  J. :  This  is  an  old 
matter  iu  which  the  public  are  mare 
or  less  interested,  and  some  notice 
ought  to  be  given  to  the  public. 
You  may  take  a  rule  nin  calling 
upon  all  persons  interested  to  show 
cause  on  the  3rd  August  why  (a)  peti- 
tioners should  not  be  relieved  of  their ^ 
tnwt ;  ^)  the  South  African  Association 
should  not  be  appointed  trustees  of  the 
balance  of  the  fund ;  (o)  the  interest  de- 
rived from  the  said  balance  should  not 
be  dwtributed  as  recommended  in  the 
peti:tioin;  and  (d)  payment  of  costs  of  the 
application  should  not  come  out  of  the 
fund,  rule  to  be  published  once  in  the 
*'Cape  Times"  and  once  in  "Ons 
Land/' 

Pottea  (August  3rd).    Rule  made  ab- 
solute. 


SUPREME  COURl 


FIRST    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maasoorp.  J 


TABLB  BAY  UABBOUB  BOARD  f       1905. 
V,  CITY  LINB,  LTD.  (July  7th. 

Sir  H.  Juta.  K.C.,  for  the  defendants, 
applied  for  a  postponement  of  the  trial 
and  for  a  commission  to  take  certain  evi- 
dence. Counsel  said  that,  while  the 
City  of  Perth  was  being  taken  out  of 
the  Cape  Town  Harbour  under  com- 
pulsory pilotage,  it  struck  and  damaged 
one  of  the  quays.  The  Harbour  Board 
supplied  the  compulsory  pilot,  and  the 
Board  relied  upon  two  regulations.  The 
first  regulation  was  that  tne  employment 
of  a  pilot  was  compulsory  when  a 
vessel  left  the  docks,  and  that  the  Board 
was  not  responsible  for  the  failing  of  any 
such  pilot,  and  the  second  regulation  was 
that  the  masters  and  owners  of  a  vessel 
should  bo  liable  for  any  damage  to  quay  .s 
fittings,  etc.,  whether  suoh  damago  was 
done  directly  or  indifectly  by  the  ship. 
The  defendants  pleaded  that  the  ship 
was  under  the  control  of  the  pilot  sup- 
plied by  the  Board,  without  which  tno 
ship  could  not  leave  the  docks.  The 
defendants  did  not  admit  that  the  pilot 
was  competent,  and  the  pilot  was  sus- 
pended shortly  after  the  accident  had  oc- 
curred. Defendants  further  pleaded 
that  the  regulations  wore  unreasonable 
and  tiJtra  vires ^  and  it  clearly  became 
necessary  to  obtain  the  evidence  of  the 
master  and  offioens  of  the  ship,  which 
would  be  in  Glasgow  at  the  end  of  Sep- 
tember. 

Mr.  Searle  thought  the  evidence  would 
show  that  there  might  have  been  an 
error  of  judgment  on  the  part  of  the 
pilot. 

Maasdorp,  J.,  ordered  that  the  oaAo 
be  postponed  siiie  dicy  and  that  a  com- 
mission bo  appointed  to  take  evidence  of 
the  nuwter  and  officers  of  the  City  of 
Perth  at  Glasgow,  the  costs  to  bo  costs 
in  tho  cause. 

Subsequently  Sir  H.  Juta  asked  that 
Mr.  Robert  Scott  Browne,  advocate,  of 
Edinburgh,  be  appointed   oommissioner. 

The  Oourt  made  an  order  accordingly. 


SECOND  DIVISION. 


CHANNING   V.  CHANNINO.    |    y    i^ifi, 

This  was  an  action  brought  by  Janet 
Channing,  of  Woodstock,  against  her 
husband,  Matthew  Chaining,  whose 
whereabouts  are  unknown,  for  resti- 
tution of  conjugal  rights,  failingwhioh, 
a  decree  of  divorce.  Mr.  Douglas 
Buchanan  was  for  plaintiff;  defendant 
did  not  appear. 


638 


« 


OAfE  TIMB8"  LAW  BflPOBTS. 


Hopley,  J.,  esdd  that  there  appeared 
to  have  been  some  irregularity  in  the 
matter  of  publioaion,  because  the  rule 
wa«  not  published  in  the  '*  Gassetto  *'  at 
least  one  calendar  month  before  the 
return  day,  as  required  by  the  rule  of 
Ck>urt. 

Mr.  Buohftnan  aaid  that  some  delay 
had  been  occasioned  by  correspondenoe 
wrth  the  railway  authorities  m  Natal 
and  the  War  Office  in  Capo  Town,  in 
order,  if  pofisible,  to  effect  personal  ser- 
vice on  defendant.  He  su omitted  that 
the  irregularity  waa  purely  technical, 
and  that  it  would  not  be  likely  to  make 
any  practical  difference^  since  the  de- 
fendant had  not  been  heard  of  for  five 
years,  having  been  a  member  of  the 
Kailway  Pioneers. 

Hopley,  J.,  said  he  was  sorry  that 
another  delay  must  occur,  but  he  had 
no  alternative  but  to  decline  to  hoar 
the  case  at  present.  The  return  dav 
would  be  extended  until  the  15tfi 
August,  rule  to  be  published  once  again 
in  the  **  Gazette." 


Ex  parte  R08E. 

Mr.  Roux  moved,  on  the  petiton  of 
Marcus  Rose,  general  dealer,  Pricska, 
for  a  temporary  interdict  restraining  the 
Registrar  of  Deeds  from  passing  trans- 
fer of  erf  No.  120,  situate  in  the  village 
of  Prieska,  from  Walter  Percy  Bhutte 
and  Sidney  Richard  Shutte,  trading  as 
Shutte  Bros.,  to  one  Leopold  Rose,  un- 
til recently  trading  in  partnenship  with 
the  petitioner  as  Rose  and  Rose,  pending 
an  action  to  be  instttuted  as  to  the  le- 
gality of  the  sale  of  the  erf  to  Leopold 
Rose. 

Interdict  granted  as  prayed,  pending 
result  of  an  action  to  oe  forthwith  in- 
stituted by  petitioner  against  Shubte 
Bros.,  Or  any  other  parties  whom  pe- 
titioner may  be  advised  to  sue. 


r      190.3. 
\A  July     7 


GREENWOOD  V.  DE  VILLIEBB.<  July      7tb. 

20th. 

Sale    and    purchase  —  Broker  — 
Identity  of  property  sold. 

This  was  an  action  brought  by  James 
Henry  Greenwood,  builder,  Observatory- 
road,  against  Frances  E.  de  Villiers, 
wife  of  Daniel  J.  de  Villiers,  of  182, 
Lower  Main-road,  Observatory -road,  for 
an  order  requiring  her  to  take  transfer 
of  certain  property. 

Plaintiff,  in  his  declaartion,  said  that 
defendant  was  married  without  com- 
munity of  property  to  Daniel  Johannes 
de  Villiers,  and  was  by  him  duly  as- 
sisted in  this  action.  In  January,  1905, 
plaintiff  was  owner  of  certain  land  and 
four  houses  situate  tliereon  in  Lower 
Main -road,  Observatory.  On  or  about 
the    13th  January,    1905,   plaintiff   sold 


and  defendant  bought  a  portion  of  land, 
with  house  thereon,  No.  188,  Lower 
Main-road,  for  £500.  the  terms  being 
£100  in  cash  and  balance  in  two  mort- 
gage bonds,  a  first  bond  of  £200  and  a 
second  bond  of  £200,  defendant  agree- 
ing to  pay  off  the  bonds  in  monthly  in- 
stalments. Thereafter,  on  the  2Dth 
January,  the  parties  agreed  to  substitute 
for  the  house  and  land  defendant  had 
bought  other  land  and  house,  being  No. 
182.  Lower  Main-road.  Defendant  had 
paid  £100  on  account,  but  refused  to 
take  transfer  of  the  land  and  house 
No.  182,  which  she  had  bought.  Plain- 
tiff tendered  transfer  of  the  property 
against  passing  of  mortgaj^e  bonds.  He 
claimed  an  order  requiring  defendant 
to  take  tcanefer  of  the  property  No. 
182,  Lower  Main-road,  ahd  to  pass 
mortgage  bonds  for  the  balance,  or,  in 
the  alternative,  cancellation  of  the  sale, 
£100   damages,   and  costs. 

Defendant,  in  her  plea,  denied  that 
she  bought  the  property  No.  188,  Lower 
Main-road,  but  said  that  she  bought 
No.  182,  including  the  portion  on  the 
diagram  albove  the  black  line  marked 
"E"  and  '^L*/  bounded  by  the  red 
dotted  line,  which  showed  the  position 
of  the  fence  at  the  back.  She  denied 
the  alleged  substitution  of  the  proper- 
ties set  out  in  paragraph  2  of  the  de- 
claration. She  admitted  having  paid 
£100,  and  also  that  she  refused  to 
take  transfer  of  the  property,  but  she 
said  that  she  bad  tencicred  for  and  was 
willing  to  take  transfer  of  the  property 
actually  sold  <to  her  bv  plaintiff.  She 
had  tendered  to  complete  her  part  of 
the  purchase.  She  prayed  that  the 
claim  mi^ht  be  dismissed  with  costs. 
For  a  claim  in  reconvention  she  sadd 
that  she  had  been  put  to  considerable 
trouble  and  expense  by  the  failure  of 
the  plaintiff  to  transfer  to  her  the  pro- 
perty she  had  actually  bought,  and  she 
claimed  damages  in  the  6um  of  £100 
and  costs. 

Plaintiff,  in  his  replication,  denied 
that  he  sold  the  property  No.  182,  in 
the  first  instance,  and  be  also  denied 
that  Ihe  sold  to  defendant  the  portion  of 
ground  on  No.  182,  which  she  alleged 
she  had  purchased. 

Mr.  Gardiner  (with  him  Mr.  Barly) 
-was  for  the  pUuntiff;  Mr.  Burton  (with 
him  Mr.  De  Waal)  was  for  defendant. 

Mr.  Gardiner  said  thai  the  issue,  brief- 
ly, seemed  to  be  that  plaintiff  said  there 
was  to  be  the  common  passage  shown 
on  the  diagram,  while  she  denied  ihat, 
and  said  that  she  bought  from  plaintiff 
the  land  forming  the  passage.  The  whole 
question  was  whether  or  not  plaintiff 
sold  to  defendant  the  piece  of  ground 
mentioned. 

Thomas  Sloan,  broker,  Capo  Town, 
Baid  that  in  January  this  year  Mr. 
Givonwood  placed  with  him  for  sale  the 
property  known  as  188^  Lower  Main- 
road,  Observatory.  Witness  saw  Mrs. 
De  Villiera,  who  w«a  then  Miss  Kotie. 


"CA1»B  TIMES"  LAW  REPORTS. 


6d9 


Witness's  wife  went  wiih  Mrs.  De  Vil- 
liers  to  look  at  the  property.  Subse- 
quently witness  drew  up  a  broker's  note, 
and  thiB  was  signed  and  accepted.  About 
a  fortnight  afterwards  defendant  said 
she  would  like  to  exchange  for  the  house 
occupied  by  Mr.  Greenwood,  who,  she 
understood,  was  prepared  to  move  out 
of  No.  182.  Witness  explained  to  her 
that  on  account  of  the  municipal  regula- 
tions the  fence  of  the  yard  might  have 
to  be  set  back  to  the  hno  of  the  house, 
in  order  to  provide  a  sanitary  passage. 
The  defendant  understood  that  tne  land 
she  wiok>  buying  was  in  a  line  with  the 
house.  Dofendant  agreed  to  buy  No. 
182  on  these  terms.  Defendant  came 
and  occupied  No.  184  until  Mr.  Green- 
wood could  move  out  of  No.  182,  and 
she  subsequently  went  into  occupation 
of  No.  182,  and  waci  now  residing  there. 
Witness  had  a  conversation  with  de- 
fendant after  the  sale,  and  she  then 
raised  no  objection  to  the  property. 

Cross-examined :  Ho  was  not  aware 
that  objection  was  raised  to  the  alleged 
encroacnraent  ehown  on  her  property 
immediately  the  diagram  was  sent  to 
her.  He  was  not  aware  that  her  attor- 
neys wrote  on  the  10th  April 
stating  that  the  common  passage  marked 
on  the  diagram  not  only  took  away  a 
portion  of  ner  jjroperty  at  the  back  en- 
closed in  the  zinc  fence,  but  the  line 
or  pa^saffe  was  against  the  wall  and  win- 
dows ofrMHT  bouse.  Witness  would  swear 
that  he  asked  his  wife  to  ^o  and  show 
defendant  and  Mr.  De  Villiere  the  pro- 
perty No.  188,  Lower  Main-road.  He 
admitted  that  defendant  was  shown 
through  No.  182,  which  was  a  similar 
house  to  No.  188. 

Mrs.  Sloan  (wife  of  the  last  witness) 
said  that  in  January  Mr.  Sloan  had 
for  sale  188,  186,  and  184.  Lower  Main- 
road,  and  that  they  showed  to  would-be 
customers  No.  182  as  a  sample  house. 
Mr.  Sloan  offered  an  option  of  any  oif 
the  three  first  houses  at  that  time,  and 
told  defendant  that  if  she  wished  she 
could  have  No.  182  afterwards.  Wit- 
ness told  her  that  No.  182  was  not  for 
sale  at  that  time,  but  might  be  after- 
wards when  Mr.  Greenwood  va- 
cated. Witness  told  her  of  the 
possibility  of  the  fence  hav- 
ing to  be  set  back.  There  was  fome 
question  of  plaintiff  buying  No.  182  be- 
fore the  broker's  note  was  made,  and 
witness  told  her  that  she  would  have  to 
wait  for  it,  but  plaintiff  was  in  a  hurry 
to  get  things  settled  up. 

James  Henry  Greenwood  (plaintiff) 
said  that  Mr.  Sloan  was  instructed  to 
cell  No.  184,  186  and  188,  and  when  he 
had  sold  these  he  could  sell  No.  182. 
Witness  consented  to  the  exchange  of 
182  for  188,  and  he  consented  to  Mrs. 
De  Villiers  occupying  184  in  the  mean- 
while. Witness  &aw  Mrs.  De  Villiers 
about  the  fence,  and  she  gave  him  an 
open  letter  to  take  to  her  attorneys, 
stating  that  she  fully   uuderatood     the 


position.  Defendant  read  that  letter  to 
him.  Defendant  was  afterwards  in- 
formed that  if  she  refused  to  take  trans- 
fer, witness  was  prepared  to  cancel  the 
sale,  and  return  the  £100,  less  an  ac- 
count for  £25  for  rent,  fees,  etc.  He 
had  been  required  by  the  Municipality 
to  set  back  the  fence. 

Cross-examined :  He  told  Mrs.  De  Vil- 
liers that  if  the  Municipality  allowed  the 
fence  to  remain,  ho  was  quite  willing. 
He  did  not  remember  having  met  Mrs. 
Do  Villiers,  or  her  brother-in-law,  Mr. 
Do  Villiers,  of  Durbanville.  Witness  got 
a  notice  from  the  Municipality  on  the 
18ih  May  to  remove  back  the  fence.  Ho 
had  not  spoken  to  Mrs.  Do  Villiers  in 
June.  He  had  a  conversation  with  Mr. 
De  Villiers,  in  which  he  told  the  latter 
that  he  thoujf^ht  the  Municipality  would 
be  satisfied  if  the  fenoo  wore  bet  back 
one  foot.  The  passage,  he  had  always 
taken  it,  was  to  be  a  common  pa<>sage 
for  the  block  of  four  houses. 

By  the  Court :  The  Municipality  insist- 
ed upon  a  3  ft.  passage  all  round  the 
property  for  sanitary  purposes. 

Peter  Majkcw,  Government  land  sur- 
veyor, Crpe  Town,  gave  evidence  as  to 
preporing  diagi-am<^  of  the  property  un- 
der instructions  from  Mr.  Sloan. 

Cro«*s-eximined :  Sloan  instructed  him 
that  there  was  a  common  passage,  th<^ 
other  houses  having  a  servitude  over  the 
lane  adjoining  No.  1F2. 

John  Edward  Jones,  building  inspec 
tor,  employed  by  the  Woodstock  Mu.ii- 
r  ipality,  said  that  plaintiff,  in  his  ^ri^inal 
plans,  showed  a  13  ft.  passage,  or  lane, 
but  afterwards  reduced  this  to  a  widtii 
of  6  iret.  The  practice  of  the  Munici- 
pality was  to  obtain  a  3-foot  passage  lor 
each  property,  when  there  was  only  one 
ownership,  but  if  the  owneri^hip  were 
separate,  then  they  demanded  a  3-foot 
passage  for  each  house. 

Cross-examined  :  If  the  block  of  houses 
had  remained  in  one  ownership,  the 
Council  would  not  have  insisted  upon  a 
passage  of  more  than  3  feet  for  tho  pro- 
perty. 

By  the  Court:  If  plaintiff  had  chosen 
t  >  alter  the  10-foot  lane  shown  on  his 
original  plan  to  3  feet,  the  Council  could 
not  have  objected. 

Mr.  Gardiner  closed   his  case. 

Daniel  Johannes  de  Villiers  (husband 
of  defendant),  said  that  he  was  engaged 
to  be  marrfed  to  Mis»^  Kotze  in  January 
last.  Witness  spoke  of  the  inspection 
which  he  made  of  No.  182,  Lower  Main- 
road,  under  the  guidance  of  Mrs.  Sloan. 
Witnesi-  said  that  he  would  buy  tho  pro- 
perty if  he  could  arrange  to  get  £100 
from  his  brother.  Not  a  word  had 
l^eeii  said  about  the  purchase  of  No.  188, 
Lower  Main-road.  Witness  and  his 
brother  subsequently  went  to  look  at  No. 
182  and  saw  5flr.  Greenwood,  who  point- 
ed out  a  peg  at  the  back,  and  said  that 
a  width  of  3  feet  remained  behind,  and 
at.  the  side.  Witness  swore  positively 
that  not  a  word  was  said  about  buying 


TyiO 


<( 


CAPB  TIME8"  LAW  REPORTS. 


No.  188.  Witnefls  had  a  oonvenBatiou 
subsequently  with  Mr.  Greenwood,  who 
said  he  though*:  all  trouble  and.  expense 
would  be  saved  if  he  gave  one  foot  off 
tho  lane. 

Crosds-examined :  Witness  had  only 
siKned  one  broker's  note;  he  had  not 
seen  a  broker's  note  in  the  posseseion  0*" 
his  wife.  Witness  did  not  read  the  bro- 
ker's note  before  he  signed  it;  Mr. 
8 Joan  read  the  document  over,  and  wit- 
ness took  it  that  it  would  be  all  right. 
Mr.  Sloan  d.'d  not  read  out  No.  138, 
Lower  Main-road.  Witnos^  had  never 
thought  of  buying  No.  188.  The  i)eg 
that  v/itness  saw  was  at  the  back  of  No. 
183.  Mr.  Greer  wood  took  him  to  the 
back  of  No.  188,  and  ehowod  hfm  the 
peg,  saying  that  all  the  hniees  had  a 
3-ft.  passage  along  there 

Mr.  Gardiner:  You  only  claim  the 
5  fc'.t  wht-ro  your  jard  conies  out.  Why 
don't  you  ?Iaim  3  feet  right  to  the  front, 
alongside  your  house? 

Witness:  We  claim  a  3-foot  pa^eage 
right  round  the  house. 

By  the  Court :  When  they  bought  No. 
182  ihero  vnu*  no  other  house  on  the  Salt 
River  &ide. 

Frunoea  £.  de  Villiers  (defendant)  said 
that  she  specially  fancied  No.  182,  be- 
caui«c  of  the  open  space,  where  the  win- 
dows faced.  Other  houses  had  bocn 
bu*U  on  that  side  since.  Nothing  wa« 
»a'd  to  her  about  a  common  passage  be- 
side the  fence.  AVitness  had  no  other 
intention  at  that  time  than  to  buy  No. 
182  She  did  not  remember  her  husband 
.sii^ning  the  broker's  note.  It  was  some 
dttVft  after  the  note  was  signed  that  No. 
188  was  mentioned,  and  she  said  sin? 
would  have  No.  182,  or  she  did  not  want 
hny  property  at  all. 

Cross-examined :  She  would  pay  the 
co0ts  of  this  action  if  she  lost  it.  With 
regard  to  the  letter  given  to  Mr.  Green- 
wood to  give  to  her  attorneys,  stating 
that  she  understood  the  position  regard- 
in*^  the  fence,  and  that  they  might  take 
transfer,  the  letter  waa  drafted  by  Mr. 
Greenwood,  as  she  did  not  know  much 
about  business,  and  she  copied  it. 

By  the  Court :  After  she  had  consult- 
ed her  attorney  she  withdrew  her  instruc- 
tion. 

Comelis  de  Villiers  (brother-in-law  of 
defendant)  said  he  considered  that  if  the 
fence  round  the  yard  were  moved  back 
in  a  line  with  the  wall  of  the  house,  it 
would  reduce  the  value  of  the  property 
by  £50.  f    t-    ^ 

Mr.  Sloan  (re-called  by  his  lordship) 
said  that  the  number  m  the  broker's 
tK)te  had,  he  thought,  originally  been 
186,  but  it  had  been  amended  to  188. 
Afterwards,  number  182  was,  at  the  re- 
ouest  of  defendant,  entered  at  the  side. 
A  copy  was  given  to  defendant,  and  it 
was  unfortunate  that  she  could  not  pro- 
duce it.  Witness  always  made  out  his 
broker's  notes  in  duplicate,  and  handed 
a  copy  to  the  purohaeer. 

Mr.   Sloan  (m  r^ly  to  Mr.   Buitofn) 


stated  that  only^  recently  he  adopted  tho 
system  of  keeping  a  counterfoil.  He 
was  perfectly  clear  that  he  had  used 
three  sheets  out  of  the  book  produced. 
The  defendants  were  handed  a  stamped 
copy  on  the  day  the  traneaotion  went 
through. 

I  By  Mr.  Gardiner:  A  clean  copy  of 
tho  broker's  note  was  handed  to  Mr. 
Gie. 

This  concluded  the  evidence,  and 
counsel  were  heard  in  argument  on  tho 
facts. 

Cur,   Adv.   Vult. 

Postea  (July  20). 

Hopley,  J. :    The  plaintiff  is  a  builder, 
who  had.  before  January,  1905,  aoqiiired 
a  piece  of  ground  at  Observatory  Koad, 
with  a  frontage  on  Lower  Main  Koad  in 
that  suburb,  which,  in  1904,  he  had  divid- 
ed into  equal  portions ;  and  on  the  south- 
ern half  he  had  built  four  houses  which 
have  since  been  numbered  188,  186,   184 
and     182     Lower     Main     Road.       This 
southern    half    he   had    mortgaged,   and 
had    caused    to    be    deducted   from    his 
diagram   for    mortgage   purposes.      The 
dividing   line   had  been   pegged  out   by 
the  land  surveyor,  and  the  four  houses 
placed  thereon  were  so  located  that  the 
most  northerly  of  them,  now  known  as 
182,   stood   al)out   three   feet   from   this 
boundary  line.     In  subm.itting  his  plans 
to  the  municipal  authorities  he  had,   it 
is  said,  shown  a  three-foot  passage  on 
the  north  side,  as  apparently  was  com- 
pulsory   under    the    Municipal    Regula- 
tions.    When  the  cottages,   which  were 
built  in   a  continuous  block  with  com- 
mon  party-walls,    were    completed,    the 
plaintiff  got  tenants  for  the  other  three, 
pending    a  sale,    and    himself   occupied 
No.   182,   which  he  intended  to  inhabit 
until   he     had     completed   a   somewhat 
similar  block  on  the  other  moiety  of  the 
ground.     In   December,    1904,    or  early 
in  January,   1905,   he  had  placed  those 
cottages  in  the  hands  of  a  broker  named 
Sloan  for  sale.     It  would  have  been  in- 
structive to  see  the  letter,  or  any  corre- 
spondence, whereby  this  was  done;  but 
none    has   been   produced    corroborative 
of  the  statement  that  he  nlaced  at  first 
only  188,  186  and  184  in  Sloan's  hands, 
ana   for  the    time   being   withheld    182. 
That,  however,  is  what  the  plaintiff  and 
Sloan  state  to  have  been  the  position  of 
affairs  in  January,   1905,  when  the  de- 
fendant,   who  was  then   Miss  Kotse,    a 
spinster,  about  to  be  married,   and  her 
present  husband,  Mr.  De  Villiers,  were 
looking  out  for  a  house  to  live  in.    At- 
tracted by  one  of  Sloan's  advertisements 
they     applied   at   his   office,   and   some- 
where about  January  13  they  were  con- 
ducted by  Mrs.   Sloan,   who  assists  her 
husband  in  business,   to  these  cottages. 
They  were   taken  to  182.   and  they  in- 
spected that  and  only  that.     This,   the 
Sloans  explain,  was  done  in  order  not 
to  disturb  or  annoy  the  tenants  of  the 
other  three   cottages,    who  might  take 
umbage  at  auoh  intruBioiiB ;  whereas  the 


"CAi^B  tiMM"  LAW  REPORTS. 


541 


plaixvtiff,  who  wished  to  sell,  would  put 
up  with  the  inconvenienoe.  Mrs.  Sloan 
says  she  explained  that  182  was  shown 
merely  as  a  specimen  of  the  rest,  while 
Mr.  De  Villiers  and  the  defendant  say 
that  it  was,  as  they  und<>rstood,  shown 
them  as  the  house  they  might  buy.  Be 
that  as  it  may,  they  thoroughly  in- 
spected and  liked  the  place ;  and.  inter 
aliot  they  inspected  the  back  yard,  on 
the  size  and  convenience  of  which  Mrs. 
Sloan  expatiated.  Now  as  the  back- 
yard is  the  cause  of  the  present  suit,  it 
would  be  well  to  state  at  once  what  the 
plaintiff  had  done  there.  In  it  he  had 
placed  an  iron  shed,  and  as  to  the  ex- 
tent of  the  yard  itself  he  had  en- 
croached on  the  three-foot  reserve  on 
the  northern  side;  so  that  the  yard  in- 
stead of  running  in  the  same  straight 
line  as  the  northern  boundary  of  the 
house  jutted  out  into  the  three-foot  re- 
serve, practically  ovcrlappinj?  the  whdle 
of  such  reserve  from  where  the  yard 
started  to  the  back,  or  western,  bound- 
ary of  the  lot.  At  the  time  the  de- 
fendant inspected,  however,  there  was 
nothing  to  call  atten^tion  to  this,  because 
to  the  north,  where  the  encroachment 
was,  all  beyond  the  fence  of  the  yard 
and  wall  of  the  house  was  open  neld. 
After  the  inspection,  Mr.  Do  Villiers 
went  to*  Sloan's  office  and  told  him 
that  if  he  could  get  his  brother,  who 
lives  at  Durbanvillc,  to  advance  him 
the  £100  (a  cash  payment  of  such 
amount  being  one  of  the  conditions  of 
a  sale)  he  would  buy  the  ground.  This 
was  about,  or  on,  the  13th  of  January, 
and  Sloan,  who  was  apparently  very 
anxious  to  push  the  transfer  through,  at 
once  drew  up  a  broker's  note,  in  which 
he  treated  Mr.  De  Villiers  as  the 
buyer,  and  in  which  the  property  sold 
was  described  as  "  No.  188  Lower  Main 
Road."  According  to  Sloan,  De  Vil- 
liers signed  the  bought  note  then  and 
there,  and,  for  some  reason  which  has 
not  been  given,  a  press  copy  was  im- 
mediately, or  soon  after,  taken  of  the 
manuscript  portion  of  the  note  as  it 
then  stood.  This  copy  was  produced  in 
Court  at  the  end  of  the  case,  so  that 
not  much  evidence  was  elicited  about 
it  The  note  must  then  have  run  as 
follows :  — 

"  January  13,  1906. — Bougrht  on  ac- 
count of  Mr.  D.  J.  de  Villiers,  from 
Mr.  J.  H.  Greenwood,  certain  piece  of 
land,  with  house  and  buildings  erected 
thereon,  bemg  No.  188,  Lower  Main 
Road.  Observatory »  for  the  sum  of  five 
hundred  pounds  sterling  (£500).  Buyer 
pays  transfer  and  survey  fees  and  bond 
charges.  Payment  £100  cash  by  Janu- 
ary 20,  1905.  Balance  £200  on  fir^t 
mortgage,  and  balance  repayable  in 
monthly  instalments  of,  say,  five  pounds 
sterling  on  second  mortgage ;  first  in- 
stalment payable  1st  April,  1905.  In- 
terest, 1st  and  2nd  bonas,  to  be  at  the 
rate  of  aiz  per  cent,  per  annum. 

"SLOAN  AND  00." 


Sloan  alleges  that  this  note  was 
signed  by  De  Villiers  on  January  13, 
and  if  so  that  would  be  evidence  of  ft 
completed  contract  of  sale  on  that  date 
of  No.  188  between  plaintiff  and  De 
Villiers;  but  I  find  it  impossible  to  be- 
lieve that  De  Villiers  did  sign  the  note 
on  that  date.  Besides,  the  fact  that 
there  is  no  impression  of  his  signature 
in  the  press  copy,  which  might  be  ex- 
plained by  his  having  used  ordinary 
and  not  copying  ink,  there  is  the  ex- 
treme improbability  of  a  man  like  De 
Villiers  concluding  such  a  contract  when 
he  had  never  actually  seen  the  property. 
Ho  had  seen  182 ;  and  Sloan  wishes  the 
Court  to  believe  that  he  thereupon  and 
without  further  inquiry  or  inspection 
signed  a  note  proving  that  he  had  pur- 
chased .188 ;  and  Sloan's  case  is  that  De 
Villiers  knew  quite  well  what  he  was 
doing,  and  that  he  was  purchasing  not 
the  place  ho  had  inspected,  but  that  at 
the  other  end  of  the  block  of  cottages. 
Besides  the  improbability  of  such  con- 
duct, there  is  a  further  feature  in  the 
circumstances  which  would  make  such 
conduct  almost  impossible  since  De  Vil- 
liers admittedly  could  not  have  bought 
without  an  advance  by  his  brother  of 
£100,  and  his  brother  had  at  that  date 
not  yet  agreed  to  provide  that  sum. 

I  am  inclined  to  think  that  at  that 
stage  there  was  a  misunderstanding  be- 
tween Sloan  and  De  Villiers,  that  the 
laftter  had  gone  to  Sloan's  office  and  told 
him  that  it  he  could  get  his  brother  to 
advance  the  £100  he  would  purchase 
the  house  at  the  end  of  the  block,  or 
words  to  that  effect,  that  Sloan  had 
thereupon  concluded  that  the  house 
meant  by  him  was  188,  and  that  ho 
drew  up  the  note  in  anticipation  of  the 
final  settlement.  After  that,  Mr.  Cor- 
nelius de  Villiers,  the  brother  in  ques- 
tion, came  in  to  inspect  the  property. 
He  says  he  came  in  on  the  13th,  but  I 
think  that  he  came  in  only  on  the  16th, 
the  date  when  the  bargain  was  admit- 
tedly completed ;  but  whether  he  came 
in.  twice  or  only  once  it  is  useful  and 
instructive  to  observe  what  he  actually 
did  look  at  and  inspect.  He  was  not 
taken  to,  nor  did  he  inspect,  188,  but 
ho  did  look  carefully  at  l&Z,  after  which 
he  agreed  to  advance  the  money,  and 
accompanied  his  brother  and  Miss  Kotze 
to  Sloan's  office.  Ho  also  took  his  at- 
torney, Mr.  Gie.  Now  it  seems  clear 
to  me  that  the  two  Messrs.  Do  Villiers 
and  Miss  Kotze  all  thought  that  they 
were  about  to  complete  a  purcha.se  of 
182.  It  is  inconceivable  that  thoy  would 
have  acted  as  they  did  if  they  had 
thought  that  thoy  were  purchasing  188. 
In  that  case  they  certainly  would  have 
at  least  entered  it  to  see  if  the  internal 
arrangements  were  the  same,  if  the 
rooms  were  equally  conveniently  situ- 
ated and  in  equally  good  condition,  and 
generally  to  satisfy  themselves  that  it 
was  an  equally  desirable  property  to 
purchase.    As  a  matter  of  fact,  I  under* 


542 


« 


CAPE  TIMES'*  LAW  IUSMBM. 


fftand  tbsfe  182  and  188  are  not  con- 
strue tod  on  exactly  the  same  lines,  and 
that  they  vary  internally  in  not  unim- 
portant particulars,  and  this  is  a  ma- 
terial i>oint  for  consideration,  because 
if  the  intention  of  Mr.  or  Mrs.  Sloan 
WQ8  to  sell  188  they  should  at  least  have 
insisted  on  an  inspection  of  that  pro- 
perty before  the  contract  was  concluded. 
At  the  meeting  in  Sloan's  ofBoe  on 
January  16  it  is  quite  possible  that  no 
great  attention  was  paid  to  the  actual 
number  inserted  in  the  note,  as  the 
buyers  were  prepossessed  with  the  idea 
that  they  were  purchasing  182,  and  pro- 
bably concluded  that  that  number  nad 
been  properly  placed  there  by  the 
broker.  Now  the  bought  note,  as  it 
finally  appears  in  the  broker's  so-called 
'*  record-book  " — which  is  merely  a 
scrap  book  into  which  he  pastes  bought 
or  sold  notes  of  transactions  concluded 
by  him — has  been  considerably  changed 
from  what  it  was  on  January  13.  The 
name  of  the  buyer,  Mr.  D.  J.  de  Vil- 
liers,  has  been  creased,  a  pen  having 
been  run  throug*h  it,  and  that  of  Miss 
Frances  Elizabeth  Kotze  substituted. 
The  number  188  has  also  undergone  a 
change.  According  to  the  press  copy 
the  final  8  was  originally  a  perfectly 
clear  figure;  but  in  the  note  it  is  by 
no  means  a  clear  figure.  It  still  re- 
sembles an  8  more  than  anything  else, 
but  it  is  blurred,  and  evidently 
has  cloaTlv  been  changed  from  what 
it  originally  was  by  something  done 
with  pen  and  ink,  causing  it  to  be 
by  no  means  clear  and  indisputable,  as 
it  originally  was.  Opposite  it  in  the 
margin  of  the  scrap-book  is  written 
without  comment  of  any  kind  the  num- 
ber 182.  The  monthly  instalment  of 
five  pounds  has  been  changed  to  four 
pounds,  the  word  "  five "  having  been 
scratched  out  and  the  word  "  four " 
written  above  it  Then  comes  the  rest 
of  the  note  as  quoted  above.  .'^^'^ 
above  the  signature  of  D.  J.  de  Villiers 
come  the  following  words,  crowded  in, 
"  Shed  to^  be  erected  same  as  on  No. 
182  within  one  month  from  date." 
(Tliis  182  was  clearly  originally  180). 
Then  comes  the  signature  of  De  Villiers 
scratched  out  with  pen  strokes.  Then 
evidently  after  this  signature  had 
ceased  to  be  operative  and  pft^jtly  writ- 
ten over  it  came  the  words,  "  The  wall 
between  188  and  No.  186  is  a  i>arty 
wall."  Then  in  defendant's  writing 
comes  her  signature  thus,  ''Miss  Frances 
Elizabeth  Kotze."  Attempts  have  been 
made  to  explain  all  these  alterations; 
but  there  is  a  serious  and  direct  con- 
flict of  evidence  with  regard  to  some  of 
them.  There  is  no  great  conflict  as  to 
the  change  of  names.  Apparently  De 
Villiers  thought  he  was  to  be  the  pur- 
chaser, and  signed  the  note  at  first,  but 
it  had  been  arranged  that  the  property 
was  to  be  settled  by  ante-nuptial  con- 
tract on  Miss  Kotze,  and  to  effect  that 
simply  it  was  decided  that  it  should  be 


purchased  in  her  name,  and  so  the 
changes  were  made.  With  regard 
to  &G  other  changes,  however,  the 
two  Messrs.  De  villiers  and  Miss 
Kotse  all  swear  positively  that  they 
saw,  or  thought  they  saw,  182  on 
the  note,  and  that  Sloan,  who  read  the 
note,  read  *'  182  "—and  they  swear  most 
positively  that  they  know  nothing  about 
the  provisions  as  to  the  erection  of  a 
shed,  or  as  to  the  party  walls.  Mr.  Gie, 
it  is  said,  can  throw  no  light  on  the 
maiter  as  he  was  mainly  interested  on 
behalf  of  hie  client  in  the  portion  of 
the  note  arranging  the  terms  of  pay- 
ment. Sloan,  however,  swears  that  the 
purchasers  knew  quite  well  that  they 
were  buying  188— that  they  stipulated 
for  a  shed  such  as  they  had  seen  at  182, 
and  for  the  provision  about  party  walls. 
He  swore  most  positively  also^  that  he 
'had  written  the  contract  out  in  dupli- 
cate on  two  broker's  notes,  and  that  he 
had  delivered  the  second  copy  (which  I 
suppose  would  be  the  old  note)  to  Mr. 
Gie  or  the  defendant.  As  to  the  latter 
point  Sloan  was  undoubtcMlly  very  much 
surprised  on  the  second  dav  of  the  trial, 
when  he  was  re-called,  by  having  it 
pointed  out  to  him  that  he  had,  in  his 
*' record  book,"  but  eight  pages  further 
back,  this  second  copy  of  the 'contract 
in  the  form  of  a  sold  note.  As  to  that 
note,  it  was  clearly  the  original  dupli- 
cate, when  Mr.  De  Villiers  was  ex- 
pcc'od  to  be  the  purchaser,  for  his  name 
ap^o^irs  thereon  as  purchaser.  It  has 
been  erased  by  pen  stroke  and  that  of 
Miss  Kotze  substituted.  In  it  "188"  is 
clearlv  written,  the  instalment  origin- 
ally nve  pounds  has  been  changed  to 
four  pounds,  and  for  the  rest  it  is  a 
clean  copy  of  the  other  note  without, 
however,  any  reference  to  De  Villiers's 
erased  signature.  The  whole  is  in 
Sloan's  writing,  and  ends  thus :  "(Signed 
Frances  Elizabeth  Kotze),  Sloan  and 
Co."  It  therefore,  though  in  form  a 
sold  note,  purports  to  be  a  copy  of  the 
bought  note,  at  all  events  as  to  Miss 
Kotze's  signature;  and  I  am  convinced 
that  this  was  the  second  copy  made  by 
Sloan,  of  which  he  speaks  an  his  evi- 
dence. He  was  therefore  guilty  of  an 
inaccuracy  when  he  swore  most  posi- 
tively that  he  had  given  that  document 
to  the  defendant  or  Mr.  Gie.  I  was 
somewhat  impressed  by  the  fact  of  the 
stipulation  about  the  party  walls  be- 
tween 188  and  186  which  sloan  swore 
was  inserted  at  defendant's  or  Mr.  Gie's 
instigation  until  I  found,  by  looking 
through  his  record  book,  that  it  was 
apparently  an  invariable  stipulation  in- 
troduced hj  Sloan  into  all  sales  of 
similar  semi-detached  cottages,  and  that 
he  had  inserted  it  in  broker's  notes  be- 
fore January  13.  Now  if  the  changes  in 
the  notes  were  made  subsequent  U>  the 
completion  of  the  contract  on  January 
16,  I  could  readily  construct  a  plausible 
theory  for  what  reasons  such  changes 
might  have  been  nuide;    but  I  pruer 


"OAPB  TIMBB"  LAW  BBPOBTB. 


643 


not  to  expiees  myself  in  that  sense.  All 
I  am  disposed  to  say  as  to  this  branch 
of  the  case  is  that  when  brokers,  who 
are  business  men  expected  to  keep  accu- 
rate documentary  evidenoe  of  their 
transactions^  wish  the  Court  to  rely  im- 
plicitly upon  their  business  documents 
they  should  produce  them  in  such  a 
state  as  to  be  practically  unimpeachable 
'ptT  8€.  They  generally  have  to  deal 
with  people  less  skilful  and  experienced 
in  such  matters  than  thomselves,  and  it 
is  their  duty  not  only  to  have  dear 
documents  but  also  to  deliver  them  to 
the  parties  to  whom  they  relate  in  such 
a  manner  and  in  such  condition  ihat 
there  should  be  no  possibility,  or  hardly 
any  possibility,  of  a  dispute  about  the 
matters  involved.  In  the  present  case 
the  documents  are  in  such  a  srtate  that 
thoy  can  be  attacked,  and  they  are  most 
strongly  impugned  by  the  sworn  testi- 
mony of  the  contracting  parties  on  the 
one  aide ;  and  a  close  study  and  anxious 
oonsiderivtion  of  them,  and  of  the  evi- 
dence given  in  regard  to  them,  have 
left  me  in  a  state  of  perplexity  as  to 
how  they  were  completed,  and  when  the 
changes   and   additions    which    are    ap- 

farent  upon  them  were  actually  made, 
am  also  satisfied  that  for  some  reason 
or  other  no  note,  copy  or  duplicate,  of 
any  writing  embodying  the  contract  was 
at  the  time  delivered  either  to  the  pur- 
chaser or  to  anyone  on  her  behalf.  Now 
the  onus  of  proving  his  claim  is  on  the 
plain tifip,  and  ho  wishes  to  rely  on 
these  so-called  broker's  notes,  but  they 
are  so  unsatisfactory  that  I  can  place  no 
reliance  upon  them,  and  the  case  must 
be  decided  as  though  they  were  non- 
exietent.  In  view  of  what  subsequently 
happened  the  exact  terms  of  the  broker  s 
notes,  in  so  far  as  they  set  forth  the 
number  of  the  house  sold,  are  not  of 
primary  importance,  as  I  shall  presently 
explain;  but  I  have  felt  obliged  to 
enter  somewhat  fully  into  that  portion 
of  the  case,  as  it  seems  to  me  to  deter- 
mine the  credibility  of  the  witnesses  and 
the  proper  weight  to  be  given  to  the 
conflicting  parol  evidence  as  to  the  later 
stages  of  tnc  case.  As  to  the  original 
contract,  I  am  satisfied  that  the  two 
Messieurs  De  Villiers  and  Miss  Kotze 
clearly  thought  that  they  were  purchas- 
ing 182,  and  that  Sloan,  if  he  thought 
on  January  13  that  the  property  in- 
tended was  188,  found  out  his  mistake 
very  shortly  afterwards:  but  that  he 
pushed  the  sale  through  nevertheless, 
either  hoping  to  persuade  the  purchas- 
ers to  be  satisfied  with  188,  or  to  induce 
the  seller  to  vacate  182.  Now  as  to 
what  happened  afterwards,  Sloan  states 
that  Miss  Kotze  came  to  him  about  a 
fortnight  later  saying  that  she  had 
heard  that  plaintiff  was  going  to  leave 
his  house  (182),  and  asking  whether  she 
could  not  have  that  instead  of  188.  He 
does  not  explain  how  Miss  Kotze  could 
have  heard  such  a  rumour — which  ap- 
parently   was    unfounded— but    he   says 


that  (he  got  plaintiff's  consent  to  the 
exchange.  The  defendant's  version, 
however,  which  seems  to  me  much  mors 
likely,  is  that  shortly  after  tho  contract 
Mrs.  Sloan  approached  her  saying  that 
the  plaintiff  wished  to  remain  somewhat 
longer  in  182,  and  asked  her  whether 
she  would  not  exchange  to  the  other 
corner  lot  of  the  block  (188).  She  states 
that  thereupon  she  went  with  Mrs. 
Sloan,  that  she  inspected  188  then  for 
the  first  time,  that  she  at  once  and  un> 
hesitatingly  refused  to  make  the  ex- 
change, and  that  she  heard  no  more  of 
the  matter  until  she  received  a  letter 
from  Sloan  on  January  28  which  is  pro- 
duced and  which  states  that  he  nad 
arranged  that  she  should  occupy  184  un- 
til the  plaintiff  should  vacate  lo2,  which 
he  expected  would  be  in  about  six 
weeks  time.  Here  again  it  seems  to 
me  that  all  the  probabilities  are  on  the 
side  of  the  defendant's  version,  and  I 
am  cdhvinced  that,  whether  a  mistake 
was  or  was  not  originally  made  by 
Sloan  or  his  wife  in  selling  182,  they 
got  the  plaintiff  to  acquiesce,  as  in- 
deed it  was  in  his  own  interest  to  do. 
As  I  find,  then,  that  the  original  and 
only  contract  was  the  sale  of  182,  the 
one  point  for  consideration  that  remains 
is  wnothor  there  was  any  condition  at- 
tached to  the  sale  as  regards  the  fence 
on  the  back-yard  of  that  lot.  Now  on 
the  Sloans'  own  evidence  it  would  be 
very  unlikely  that  there  was  anything 
of  the  kind.  The  plaintiff  had  not,  so 
they  say  and  so  he  says,  on  January 
13,  or  on  January  16^  given  them  thai 
property  to  sell ;  it  is  therefore  emin- 
ently improbable  that  he  had  then  given 
them  any  instructions  about  its  yard, 
and  Mrs.  Sloan,  when  she  showed  them 
the  premises,  on  January  13,  must  there- 
fore have  been  in  ignorance  that  there 
was  any  encroachment  on  the  three- 
foot  space  reserved  for  sanitary  pur- 
poses. No  demarcation  of  the  lines  of 
the  adjoining  block  had  then  taken 
place,  and  there  was  nothing  to  indicate 
in  the  adjoining  open  field  where  the 
next  block  of  houses  would  be  placed, 
the  defendant  and  her  witnesses  is  the 
I  think,  therefore,  that  the  version  of 
correct  one,  and  that  they  must  be  held 
to  have  bought  the  property  as  it  etood 
and  as  they  saw  it ;  for  it  should  be 
remembered  that  at  that  time  there 
were  no  diagrams  in  existence  either  of 
the  lot  being  sold  or  of  the  adjacent 
lots,  about  to  be  built  upon,  and  the 
property  was  admittedly  not  sold  to 
diagram  or  plan.  At  that  stage  the  only 
diagram  in  existence  was  that  of  the 
plaintiff's  entire  block  from  which  had 
been  deducted  one-half  for  mortgage 
purposes-  but  the  sub-division  of  this 
latter  half  into  its  various  lots  and  the 
demarcation  and  creation  of  the  divid- 
ing passage  between  it  and  the  other 
half  were  not  begun  until  February, 
when  the  Surveyor,  Mr.  Maskew,  sur- 
veyed the  respeoiive  Uooks;  and  as  far 


544 


(( 


CAPE  TIMES"  LAW  REPORTS. 


as  I  can  judge  from  tho  dates  upon  the 
diagrams    the    work    as    nob    completed 
a!id  passed  through  the  Surveyor-Gouc- 
ral'h  OflBice   until   March.     To   revert   to 
tho   written   documents,    there   is   not   a 
word  in  any  of  them  showing  anv  con- 
ditions    or     restrictions   or  stipulations 
anent  the  yard  fence.     It  may  be  said 
that   as,    according   to   the    Sloans,    the 
sale  was  of   188  tliere  was  no  need   to 
insert      such      conditions,    which    could 
affect  only  182;   but  that  would  not  ex- 
plain why  when    according  to  them,  the 
exchange    was   effected    nothing   of    the 
kind    was    put    into    writing.      All    this 
part  of   the   plaintiff's  case  rests  on   al- 
leged conversations  between  'the  Sloans 
and    the    defendant,     which    the    latter 
denies,    and   which    from   the    nature  of 
the  case  are  extremely  unlikely  to  have 
taken  place,  until  long  after  the  contract 
was   concluded.     No   doubt   afterwards, 
when  tho  surveyor     had     remonstrated 
that   the  encroachment  on   the   passage 
was  somewhat  iserious,  and  when  trans- 
fers   had   to    be    arranged    the   plaintiff 
and  Sloan  became  alive  to  this  phase  of 
the  matter,  and  then  conversations  took 
place,    and    endeavours    to    adjust    the 
matter  were  made;  but  the  defendant, 
having  bought,   as  I   hold,  without  no- 
tice of   any  objection   to  set   back   the 
fence  or  of  any  servitude  over  a  portion 
of  the  backyard  which  she  bought,  was 
not  bound  to  take  transfer  in  derogation 
of  her  rights  under  the  contract  without 
compensation    for   so    doing.      No   such 
compensation  was  ever  tendered  to  her, 
but  an  offer  to  cancel  the  sale  was  made 
on  condition  that  she  should  pay  certain 
costs  and  damages  to  the  plaintiff.       I 
have  not  lost  sight  of  the  letter  which 
tho  defendant  wrote  to  her  attorney  on 
April    11.    in    which   she    told    him    that 
she    quite    understood    that    she    would 
have   to   move    the    fence    if    necessary, 
and  authorising  him  to  take  transfer  on 
that    condition.      That  document,    how- 
ever, was  obtained  by  the  plaintiff  from 
the   defendant   at   a   personal    interview 
after    the    matter    had   been    placed    by 
her    in    her    attorney's    hands.      It    was 
drafted  by   plaintiff  and   simply   copied 
by  her,  and  m  the  circumstances  cannot 
be  approved   of  or  supported,    nor  can 
any  weight  be  attached  to  it  as  evidence 
since  she  was  entirely  without  legal   or 
marital    assistance    when    she    was    in- 
duced to  write  it.    Her  attorney,  on  her 
behalf,    repudiated   the  action,  and   she 
withdrew  the  instruction  which  she  says 
was  obtained  by  undue   personal    influ- 
ence   and    pressure.      The   Municipality 
exercising   authority   in   the   locality   in 
question   have  now  given   the  plaintiff, 
who  is  still  the  registered  owner  of  the 
passage  upon  which  the  yard  encroaches, 
notice  to  move  back   the  fence  to  the 
line   of  the    house  on    defendant's    pro- 
perty, and  it  is  plain  that  the  plaintiff 
cannot  give  the  defendant  the  absolute 
and  unrestricted  ownership  of  the  whole 
of  her  yard.     When  Mr.   Maskew  had 


completed  his  survey  the  plaintiff  made 
his  declaration  of  seller,  in  which  he 
dt'clarcd  that  he  had  t^cAd  to  the  de- 
fondant  Block  D,  as  shown  by  the  said 
survey.  That  would  embrace  all  the 
ground  to  the  middle  of  the  passage 
which  has  been  left  between  the  de- 
fendant's house  and  the  new  houses  to 
the  north  of  it ;  and  though  she  cannot 
be  held  to  have  actually  bought  that 
portion  of  the  passage  between  the 
street  and  the  yard,  still  it  will  be  in 
the  interest  of  all  parties  and  of  the 
public  that  the  plaintiff  should  be  held 
to  his  declaration  as  to  the  extent, 
while  the  defendant  should  receive  some 
compensation  for  the  servitude  of  com- 
mon passage  to  which  she  will  have  to 
submit,  and  for  the  loss  of  a  portion  of 
the  yard  which  she  purchased.  The 
Court  therefore  orders  that  the  plain- 
tiff do  give,  and  that  the  defendant  do 
accept,  transfer  of  Lot  D  of  the  sub- 
divisional  lots  as  shown  by  the  diagram, 
being  Exhibit  5  in  the  present  ijrooeed- 
ings,  upon  the  terms  and  conditions  set 
forth  in  the  deed  of  transfer,  being 
Exhibit  20  in  the  present  proceedings; 
that  the  defendant  do  allow  the  plain- 
tiff to  set  back  such  portion  of  the 
fence  of  her  yard  as  encroaches  upon 
the  common  passage  of  5  feet  4  inches, 
shown  in  the  said  diagrani,  as  required 
by  the  municipal  authorities;  that  the 
plaintiff  do  pay  to  the  defendant  the 
sum  of  fifteen  pounds  as  damages ;  that 
the  defendant  do  fulfil  all  the  terms  of 
•the  contract  as  to  payment  of  tho 
balance  of  the  purchase  price ;  and  that 
the  plaintiff  do  pay  the  costs  of  the 
action. 

[Plaintiff's  Attorneys:  Mooire  and 
Son.  Defendant's  Attorneys:  Ilerold 
and  Oie.] 


SUPREME   COURT 


FIRST  DIVISION. 


[Before  the  Acting  Chief  Justice  (the 
Hon.  Sir  John  Buchanan),  the 
Hon.  Mr.  Jastice  Eotzb,  and  the 
Hon.  Mr.  Justice  Maasdorp,] 


WRIGHT  V.  ASHTON. 


f       1905. 
1  July  10th. 

Game,  property  in — Animals /era? 
fta  iura — Trespass. 

A.^  hehig  laxrfulhj  oi\  the  f am 
of  W.,  8hot  thereon  certain 
game,    although    W.    had    hy 


"CAPE  TIlfES"  LAW  REPORTS. 


645 


public  notice  expressly  pro- 
hibiied  the  shooting  of  game 
on  his  farm.  Thereupon  W. 
summoned  A,  in  the  R.M. 
Court  for  damages  for  the 
game  killed  and  removed  by 
him.  The  i?.J/,  gave  judg- 
ment for  the  plaintiff.  On 
appeal,  the  High  Court  held 
that  the  Magistraie  should 
have  dismissed  the  case. 

Held  on  appeal,  that  as  there 
can  be  no  property  in  ammals^ 
fer©  natune,  W.  was  iiot 
entitled  to  damages  for  the 
killing  of  game  on  his  farm. 
Semble  :  ^uU  as  a  person  who 
enters  upon  land  for  one 
express  purpose  with  the  con- 
sent of  the  oxnier  attd  tahes 
advantage  of  that  consent  to  do 
something  which  the  owner  has 
never  sanctioned,  thereby  be- 
comes a  trespasser :  W.  might 
have  recovered  damages  from 
A.  for  trespass. 


Thia  was  an  appeal  brought  by  the 
plaintiff  in  the  original  action,  which 
was  beard  in  the  R.M/s  Court,  at  Mafe- 
king,  from  a  judgment  given  on  appeal 
to  the  Hi^h  Court  of  Griqualand. 

The  Resident  Magistrate  s  Court  sum- 
mons was  as  follows:  — 

Summon  Henry  P.  Ashton.  Govern- 
ment Land  Surveyor  (hereinarter  styled 
the  defendant),  th^i/t  he  appear  before  the 
Court  of  the  Resident  Magistrart»  of  this 
District  to  be  holden  at  Mafeking  on 
Friday,  the  3rd  day  of  February,  1906, 
at  10  o'clock  in  the  forenoon  with  his 
witnesses  (if  any)  to  show  why  he  hath 
not  paid  to  Richard  Wright  of  Mafeking 
aforesaid  (hereinafter  styled  the  i>lain- 
tiff),  the  sum  of  £20,  which  the  plaintiff 
complains  that  defendant  owes  him  as 
and  for  damages. 

And  thereupon  plaintiff  complains  and 
says  tihat  heretofore,  to  wit,  in  May, 
1904,  defendant  did  without  the  consent 
or  authority  of  plaintiff,  and  notwith- 
standing notices  to  the  contrary  in  the 
"Mafeking  Mail,"  a  newspaper  pub- 
lished daily  in  Mafeking,  pursue,  snoot 
and  kill  certain  game,  to  wit,  certain 
three  stembok  and  five  guinea  fowl,  on 
the  farm  "  Neverset,"  in  the  District  of 
Mafeking,  the  property  of  plaintiff,  and 
did  convert  to  his  own  use  the  said  game, 
by  reason  whereof  the  plaintiff  has  sus- 
tained damage  to  the  extent  of  £20, 
which  sum  though  demanded  the  defen- 
dant neglects  to  pay,  wherefore  the 
plaintiff  prays  that  he  may  be  adjudged 
1x>  pay  the  same  with  costs  of  suit. 


The  Magistrate  gave  judgmient  for 
plaintiff  for  £3  5s.,  with  costs. 
His  reasons  were  as  follows :  — 
In  this  case  I  found  defendant  did 
destroy  the  game  alleged  in  the  sum- 
mons, on  the  property  of  plaintiff  and 
aftor  he  had  given  due  notice  in  ac- 
cordance with  Section  7,  Act  36  of  1886, 
in  a  locally  published  paper,  prohibiting 
this  being  done ;  that  m  addition  to  the 
penalties  he  might  have  been  entitled  to, 
under  the  section  of  Act  above  quoted, 
had  criminal  proceedings  been  taken,  he 
was  entitled  to  be  compensated  for  the 
value  of  the  game  destroyed  on  his 
property,  I  came  to  this  conclusion, 
otherwise,  the  penalty  in  the  Act  being 
limited  to  £5,  for  first  offence,  a  pecrson 
might  with  impunity  shoot  considerably 
more  than  £5  worth  of  game  ajid  so  bo 
be  indifferent  to  any  action  which  might 
bo  taken  against  him;  that  I  assessed  the 
value  of  the  game  at  15s.  per  buck,  and 

t\^^  8"»n«a  fowl,  making  in  all  a  tofcai 
hability  of  £3  5s. 

From  this  judgment  the  defendant  ap. 
pealed  to  the  High  Court.    That  Court 
upheld  the  appeal, 
^e  Judge's  reasons  are  as  follows:  — 
1  he  defendant  in  the  original    action 
was  admittedlv  not  a  trespasscdr  on  plain- 
tiff s   farm   when   he  shot   the   game  in 
question.     It  appears  that  he  was  tem- 
porarily residing  on  the  farm  with  plain- 
tiff s  consent  while  engaged  in  surveying 
the  sites  of  certain  graves  on  behalf  of 
the  Government.    The  action  was  there- 
fore not  founded  on  trespass  but  merely 
claimed  dama^res  for  the  loss  of  the  game 
shot  bv    defendant,   which   consisted  of 
stembok  and  guinea  fowl,  animals     un- 
^oubiedlj  ferae   naturae   and  in   which 
the  plaintiff  had  no  ownership  in   law. 
Ihis  Court  therefore  held  that  the  Resi- 
dent  Magistrate  should   have  dismissed 
the  plaintiff  s  claim  on  the  authority  of 

fv  i  *^L'%'  T^-  ^"^  ^y^  «"^  Another 
(tord.  S.C.  Reports  1880.   p.  77),  which 

was  quoted  in  argument  before  him.  For 
these  reasons  the  appeal  was  upheld  and 
the  Resident  Magistrate's  judgment 
altered  to  one  for  the  defendant  with 
costs.  It  was  pointed  out  by  the  CoMzt 
that  the  plaintiff  was  not  remediless  be- 
cause if  he  had  proceeded  criminally 
against  the  defendant  under  the  Game 
Law  Amendment  Act  36  of  1886  as  he 
might  have  done,  he  would  undoubtedly 
under  section  7  have  recovered  the  whole 
of  *he  fine  imposed  by  the  Magistrate, 
which  would  probably  have  exceeded  the 
value  of  the  ^ame  as  assessed  in  the  case. 
,  Against  this  judgment  the  respondent 
m  the  Court  below  (the  original  plaintiff) 
now  appealed. 

Sir  H.  Juta,  K.C.  (with  him  Mr.  Sut- 
ton) for  appellant.  Mr.  Searle,  K.C. 
(with  him  Mr.  P.  S.  T.  Jones),  for  re- 
spondent. 

Sir  H.  Juta:  If  a  man  is  allowed  to 
go  on  land  on  certain  terms,  he  is  no 
trespasser   as   long   «6    he   conforms  to 


5i6 


it 


CAPS  TIMES"  LAW  IfflPO&TB. 


tJiose  terms,  but  *?ho  moment  he  vio- 
latoa  them  ho  beoomee  a  trospaseor. 
Here  tlM3  respondent  wae  allowed  on 
the  appellant'tt  farm  to  make  a  survey. 
The  moment  he  shot  game  he  became 
a  trespasser.  There  is  suoh  «  thing  as 
an  action  for  shooting  game  without 
the  leave  of  the  owner  of  the  property. 
De  VUlien  v.  Van  Zyl  (Foorde  77),  and 
Voet  (41—1—4),  even  although  animals 
ferae  naturce.  are  primi  rapientU. 

In  this  case,  the  main  question  m,  are 
the  terms  of  the  eummons  suffioiently 
wide  to  cover  the  case?  The  Court 
will  not  insist  on  too  much  nicety  in 
Magistrate's  Court  pleadings.  It  may 
be  true  that  a  man  cannot  claim  the 
game  which  another  baa  shot  on  his 
ground,  but  he  can  claim  damages. 
I  need  hardly  pursue  the  point  that 
in  such  cases  an  actio  injuriarum  lies, 
Breda  and  Others  v.  Midler  and  Otken 
(1  Menz,  425).  There  the  word  '*  tres- 
pam  "  was  used,  but  it  is  not  necessary 
to  use  the  very  word  if  acts  constitut- 
ing trespaas  are  set  out. 

[Kotz^,  J. :  In  that  case  the  Court 
held  that  the  defendant  was  liable  for 
trespass.] 

No  doubt  the  consideration  of  tres- 
pass did  enter  largely  into  that  case, 
out  here  the  essence  of  the  whole  case 
is  the  shooting  of  the  game.  The  re- 
spondent had  a  right  to  be  on  this 
farm,  but  not  to  shoot  game  there. 
By  shooting  the  game  he  was  guilty 
of  "  injury  *'  The  shooting  of  game  on 
a  man's  land  without  his  permission  is 
a  trespass.  People  may  not  surround 
a  man  s  land  and  shoot  his  game  from 
outside.  A  person  may  be  a  tres- 
passer anywhere,  even  on  a  public  road 
the  moment  he  exceeds  his  rights  there. 

[Maasdorp,  J.  :  Suppose  a  man  comes 
on  to  my  farm  with  my  permission, 
and  while  walking  across  it  fires  his 
gun  in  the  air;  would  he  be  liable 
in  an  actio  injrriarum?] 

No,  but  see  Harrison  v.  The  Duke  of 
Rutland  (1  Q.B.  142).  and  Queen  v. 
Pratt   (4  Bl.  and  HI.  860). 

[Maasdorp,  J. :  In  such  a  case  of 
trespass  should  the  trespasser  bo  sued 
civiflv  or  prosecuted  criminally?  Who 
can  bring  the  action?] 

The  owner  of  the  soil. 

[Kotz6,  J. :  The  gaiue  on  your  land 
is   not  yours.] 

No,  but  I  have  a  right  to  prevent 
anybodjy  else  from  shooting  it,  see 
Act   38   of    1891,  section    3. 

rBuch|inan,  ,A.  O.  J[):  There  m 
noUiing  there  about  the  ownership  of 
the  game.] 

No,  but  the  legislature  recognises  an 
exclusive  right  of  shooting.  See  Act  36 
of  1886,   Sec.   7. 

fK()tz6,  J. :  The  Magistrate  does  not 
find    that  Aahton    was  a  trespasser.] 

No,  but  the  whole  case  shows  that  he 
was  Hued  on  nothing  else.  He  was  not 
sifed  for  the  value  of  the  game.    As  to 


shooting  rights,  see  O'Brien  v.  Hansen 
and  Schrader  (10  E.D.C.  153). 

[Kotz6.  J. :  The  shooting  of  game  ou 
a  man's  land  is  a  very  di£ferent  tbing 
from  going  on  a  man's  land  to  shoot 
game.] 

If  a  man  has  a  right  of  shooting, 
that  right  must  be  protected  by  a 
remedjT.  That  remedy  is  damages,  and 
these  it  was  that  the  plaintiff  claimed 
in    his   summons. 

Mr.  Se&rle  was  not  oalled  upon. 

Buchanan,  A.  O.  J. :  The  respondent 
in  this  oase — a  Government  land  sur- 
veyor— was  on  the  land  of  the  appellant 
in  the  exercise  of  ihis  functions  as  sur- 
veyor. While  there,  and  when  he  was 
goin^  to  do  his  work,  he  says  he  «bot 
certain  game.  Upon  this  the  appellant 
brought  an  action  against  him. 
Now,  if  this  action  htid  been 
founded  upon  trespass,  the  wboka 
of  the  argument  learned  counsel 
addressed  to  the  Court  would  be 
very  strongly  in  favour  of  our  holding 
that  there  would  be  a  ground  of  action 
for  damages  for  trespass,  although  the 
respondent  was  on  the  farm  lawfi3ly  for 
another  purpote.  I  think  that  Sir  Henry 
Juta  is  right  in  arguing  that  when  a 
man  goes  to  a  farm  for  one  purpose^ 
which  he  has  a  right  to  do,  the  fact  of 
his  being  there  does  not  give  him  the 
ri^ht  to  do  something  else  which  other- 
wise he  would  have  no  rij^ht  to  do.  but 
the  fallacy  all  through  this  oase  is*  that 
the  action  is  not  one  of  trespass.  It 
is  not  BO  brought,  and  the  whole  of  the 
argument  addressed  to  us  to-day  is  there- 
fore outside  tho  case.  The  appellant 
does  not  allege  trespass  when  he  sends 
his  letter  of  demand,  and  in  the  sum- 
mons his  allegation  is  that  the  defen- 
dant "  did  pursue,  shoot,  and  kill  cer- 
tain game,  the  propertv  of  the  plain- 
tiff, and  did  convert  to  his  own  use  the 
said  game."  Then  the  plain(i£f,  in  his 
evidence  before  the  Magistrate,  says: 
"  I  consider  £20  a  fair  value  for  the 
game  shot,  because  I  am  trying  to  pre- 
serve the  game.  I  don't  actually  claim 
for  value  of  the  game  destroyed,  but  I 
want  an  amount  paid  to  prevent  my 
game  being  killed."  Then  he  goes  on 
to  say :  **  Respondent  was  not  a  tres- 
passer; he  was  not  charged  as  such; 
this  £20  damages  is  in  no  respect  to 
trespassing."  In  face  of  that,  I  do  not 
see  now  it  is  possible  for  the  Court  to 
hold  that  this  is  an  action  for  trespass. 
It  is  an  action  simply  for  value  of  the 
game  shot  by  the  respondent.  The 
Magistrate,  in  his  reasons,  stated  that 
the  action  was  one  for  £20  damages  for 
killing  the  game,  that  he  found 
the  respondent  had  destroyed  the 
game,       and       that       plaintiff  was 

entitled  to  be  oompcnsated  for  the  value 
of  the  game  destroyed  on  his  property. 
Well,  tnere  is  no  ownership  in  game 
which  is  running  wild.  Of  course,  if 
the  game  were  reduced  into  possession 
by  an  enclosure  or  otherwise,  it  woul<i| 


"CAPB  THIBS'*  law  RBP0BT8. 


547 


be  diflPeront,  bui  wbea  flrame  U  runmiig 
wild,  there  oaai  be  do  cwnerahip.  Th& 
eaaenoe  of  the  action  which  might  have 
been  brought  is  treapafls,  but  9m  the  ac- 
tion, has  been  limited  to  one  for  shoot- 
ing things  whieh  Me  wild  by  nature, 
there  can  be  no  damages  in  respect  of 
the  shooting  of  them.  That  is  the 
view  taken  by  the  High  Oourt  of 
Griqualand,  and  I  think  it  is  the  correct 
one.  I  think  thst  the  previous  deci- 
sions of  the  Oourt  show  that  there  is  no 
property  in  such  pame.  In  the  case 
which  has  been  cited  of  De  Villiert  v. 
Van  Zylt  a  distinction  is  clearly  drawn 
between  the  shooting  of  things  in  the 
nature  of  animals  and  an  Mtion  for 
trespass,  by  whioAi  damage  is  done. 
Had  this  been  an  action  for  trespass,  I 
think  the  eTidenoe  would  hsTe  disclosed 
a  good  ground  of  action,  but  no  dam- 
age can  oe  held  to  be  suffered  by  a 
person  by  the  destruction  of  property 
which  is  not  his  according  to  our  knr. 
On  these  grounds,  the  appeal  must  be 
dismissed. 

MsAsdorp,       and    Kots^,    J.J.,    con- 
curied. 

[Appellant's      Attorney:     G.    TroUip. 
Respondent's:    Findlay  and  Tait.] 


[Before  the  Actintr  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


BEX  ▼.  FLETCHEB. 


I 


1905. 
July  10th. 


Cape  Town  Municipal  regulatioiiB, 
No.  143— Fine. 

Buchenan,  A.  C.  J.,  said  thai  this 
case,  in  which  the  defendant  was 
cfaftrged  with  contravening  No.  143  of 
the  Gape  Town  MunicnpaT  Regulations, 
had  come  up  for  review  in  Cnambera. 
The  regulation  in  question  had  reference 
to  the  obstruction  of  drainage  pipes. 
The  Magistrate  convicted  the  accused, 
and  he  (the  Acting  Ohief  Justice)  thought 
the  evidence  justified  the  conviction, 
but  fined  him  £10.  Now,  tiie  regula- 
tion under  which  the  accused  was 
charged  provided  for  a  penalty  of  not 
exceeding  £5.  It  was  true  the  same 
regulation  went  on  to  say  that  a  further 
penelty  might  be  incurred  by  a  person 
of  £2  a  day  for  every  dey  during  which 
the  obstruction  was  not  removed,  and 
the  sentence  might  have  been  justified 
if  there  had  been  an  additional  charge 
under  wliich  the  additional  penalty 
could  be  imposed.  But  t/he  Magistrate 
had  taken  the  evidence  led  and  not 
confined  his  sentence  to  the  charge  laid. 
l%e  fine  must  be  reduced  to  one  of  £5, 
When  so  amended,  the  conviction  would 
be  confirmed* 

Nl 


REX  V.  BBRNDT. 

Act  28  of  1888— Prescription— 
Servitude. 

This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  King  Wil- 
liam's Town. 

The  appellant  was  oharfled  with  coo- 
traveninc[  regulation  2,  framed  under 
the  provisions  of  the  Forests  Act  (Act 
28  of  1888),  in  that,  on  the  6th  April, 
1906,  in  undemaroated  Crown  forest 
land  he  cut  and  removed  certain  three 
reserved  trees  without  the  permit  or 
licence  required  by  law.  He  was  sen- 
tenced to  pay  a  fiuie  of  10s.  The  evi- 
dence disclosed  that  there  was  a  dis- 
pute between  the  local  Board  and  the 
Government  as  to  the  right  of  cutting 
trees  in  the  forest.  The  Board  claimed 
control,  and  had  given  a  permit  to  the 
defendant  to  cut  t£e  trees,  the  defendant 
having  paid  7s.  bd.  for  suoh  permission. 
It  was  claimed  that  the  Board  had  ac- 
quired a  right  by  prescription.  It 
was  contended  on  behalf  of  the  defen- 
dant that  the  title  to  property  being  in 
Question,  the  Magistrate  had  no  juris- 
aiotion.  A  furtner  giound  of  appeal 
was  that  the  charge  was  invalioated 
hj  reason  of  the  fact  that  the  charge 
did  not  state  that  the  defendant  had  a 
servitude;  while  it  was  also  contended 
that  the  regulation  was  vUra  vire*t  in 
that  the  Act  did  not  give  power  to  fix 
a  penalty  of  the  amount  named  in  this 
regulation.  Other  grounds  of  appeal 
were  that  it  had  not  been  shown  that 
this  was  undeuMurcated  forest,  in  that 
the  trees  were  dead,  and  were  not 
"growing,"  and  that  the  Village  Man- 
agement jBoard  were  the  proper  parties 
to  be  enlarged,  and  not  the  defendant, 
who  had  no  criminal  intention. 

Mr.  Douglas  Buchanan  appeared  for 
the  appellant;  Mr.  Pyemont  for  the 
Crown. 

Buchanan,  A.  C.  J.,  said  that  fliis 
seemed  a  very  cumbersome  wav  of 
settling  a  dispute  between  the  Village 
Management  Board  and  the  Government 
— to  fine  a  man  who  cut  wood  in  this 
way.  Another  point  which  the  Court 
would  have  to  consider  was  whether, 
the  Government  having  given  their  con- 
sent to  regulations  by  the  Village  Man- 
agement  Board,  which  vested  in  the 
Board  the  right  to  grant  licences  to 
cut  wood  on  the  commonage,  that  would 
not  debar  the  Government  from  pro- 
secuting anyone  who  cut  wood  under  a 
licence. 

Counsel  having  been  heard  in  argu- 
ment, 

Buc^ianan,  A.  C  J. :  The  appellant 
in  this  oase  was  charged  with  contra- 
vening reguktCion  2  fmmed  under 
the  Forest  Act.  No.  28,  of  1888. 
in  that  he  did  cut,  take,  ana 
remove  certain  three  trees  specified  as 
reserved  trees  in  the  X  schedule  to 
the  Act.    Tb^  evidence  shgwB  tM  l^hiq 


543 


"CAPE  TIMBS"  LAW  REPORTS. 


case  really  arises  out  of  a  dispute  be- 
tween the  Government  ajid  the  Village 
Management  Board  of  Frankfort.  The 
dispute  is  one  of  long  standing,  and 
baa  been  before  tho  Court  on  a  previous 
occasion.  During  the  course  of  the 
cose  in  the  Court  below  the  case  of 
Queen  v.  Schidtze  (6  C.T.R.  211)  was  re- 
ferred to,  in  which  another  inhabitant 
in  tlie  village  of  Frankfort  ilpad  been 
charged  with  cutting  wood  on  the  com- 
monage, in  contravention  of  the  Forest 
Act.  It  was  there  shown  that  the  sec- 
tion of  the  Act  under  which  the  ac- 
cused had  been  prosecuted  was  not  ap- 
pIica*blo  to  the  case,  and  it  was  said  that 
if  any  crime  at  aJl  bad  been  oommitted, 
it  was  punishable  only  under  regula- 
tions which  might  be  framed  under 
section  8  of  Act  28  of  1888,  which 
dealt  with  Crown  property  on  which  a 
servitude  existed.  It  was  there 
shown  that  a  servitude  had  for  a  lon^ 
time  existed  in  favour  of  the  inhabi- 
tants of  Fmankfozt  to  cut  timber  on 
the  village  commonage,  and  His  Lord- 
ship, in  deciding  that  case,  distinctly 
saia :  "In  my  opinion,  the  ownere  of 
the  aJlotments  in  Frankfort  have  suoh 
a  servitude  by  prescription.  The  Vil- 
lage Man9,gement  Board  have  passed 
certain  regulations,  to  which  the  assent 
of  the  Government  has  been  gtiven, 
regulating  the  culHhg  of  wood  on  the 
commonage.  One  of  these  eays  that  no 
pereon  shall  be  allowed  to  chop  wood  of 
any  description  on  the  commonage  with- 
out the  consent  of  the  Village  Manage- 
ment Board,  and  that  any  inhabitant 
wishing  to  cut  suoh  wood  shall  obtain 
from  tno  board  a  licence,  the  money  for 
which  must  be  paid  to  the  Board.  In 
this  case  tho  Village  Management  Board 
gave  authority  to  cut  down  certain 
three  trees  on  the  commonage,  which 
trees  were  dead.  Tlic  appellant  paid 
7s.  6d.  for  his  licence.  Hero  we  have 
then  an  act  done  under  a  regulation 
which  ha.s  Ixx^n  ratified  by  the  Govern- 
ment, but  which  is  in  this  case  repu- 
diated by  the  Government.  It  is  now 
said  tliat  in  cutting  those  trees  the  ap- 
pellant contravened  the  regulation 
which  luid  been  issued  under  the 
Forest  Act.  Section  2  of  the  regula- 
tion in  quei^ion  refers  to  land  over 
which  public  bodies  or  persons  have  a 
servituae  or  right  to  cut  wood,  and  it 
says  that  on  these  lands  no  person  shall 
cut  any  reserved  tree  specified  in  the 
schedule  to  the  Act.  Section  8  states 
tliait    regulations  may    be  made    to   re- 

fulate  the  uae  of  forest  trees  and  pro- 
uoo,  and  that  such  regulation  may 
specify  tho  species  of  wood  which  may 
be  cut,  the  season  for  cutting  and  the 
quantity  to  be  cut.  But  the  regula- 
tions which  have  beorb  framed  do  not 
attempt  to  regiilate  the  use  of  the  wood 
i-y  whidh  tho  inhabitants  are  by  their 
servitude  entitled .  On  the  contrary 
they  prohibit  the  cutting  of  any  wood 
specified     as     reserved     trees     in     tho 


schedule  to  the  Act.  Whea  I 
look  a  the  sobedule  it  embodies 
every  tree  which  may  l)e  called 
a  forest  tree,  and  in  effect  prohibits  the 
cutting  of  every  such  tree.  It  may  well 
bo  argued  that  such  regulations  are 
unreasonable  and  uUra  vires,  but  I  will 
express  no  oninion  on  that  point  now. 
The  regulation  issued  by  the  Village 
Management  Board  of  Frankfort  and 
confirmed  by  the  Government  is  now  to 
be  limited  to  brushwood  for  the  use  of 
the  inhabitants  as  firewood.  Whether 
the  r^ulation  is  ttltra  vires  or  not  has 
been  raised  in  this  case.  It  may  be  that 
the  regulation  is  ultra  rires^  but,  aa  was 
remarked  by  the  Chief  Justice  in  the 
case  of  Queen  v.  Matthys  Amoldus, 
which  was  also  a  charge  of  cutting  wood 
by  inhabitants  of  a  town,  who  claimed 
a  right  of  servditude  on  Grown  land — '*  If 
the  Court  decided  to  confirm  the  con- 
viction they  would  be  deciding  that 
these  pe^T^le  had  no  right  to  cut  wood 
on  the  land;  on  t.ie  other  hand  by 
quashing  the  conviction  that  would  only 
leave  tne  question  to  be  decided  here- 
after." His  Lordship  said  that  (he  ques- 
tion must  be  left  for  a  test  case  in  which 
all  possible  evidence  should  be  brought. 
In  this  case  the  rights  of  the  whole  of 
the  inhabitants  of  the  village  of  Frank- 
fort are  inyoilved.  The  Government  are 
now  *at  issue  with  uie  Management 
Board  as  to  the  extent  of  their  rights. 
The  accused  in  this  case  has  acted  as 
an  innocent  agent  who  had  obtained  a 
licence  from  the  local. authoci ties  w^hich 
under  their  municipal  regulations  they 
claimed  they  had  jthe  right  to  grant. 
On  this  ground  I  think  it  is  only  right 
to  quash  the  conviction  and  fcrflow  the 
course  indicated  by  his  lordship  in  this 
case  just  referred  to,  and  where  there  is 
so  much  in  dispute  as  to  the  rights  of 
public  bodies  to  leave  the  questions  to 
DC  decided  by  a  case  raised  for  that 
purpose.  Takm^  one  individual  in  this 
way  and  convicting  him  of  a  quasi 
criminal  offence  for  the  purpose  of  test- 
ing that  right  is  rather  a  stretch  of 
procedure  that  should  not  be  encour- 
aged. The  question  whether  these  peo- 
ple have  a  right  to  cut  timber  on  the 
commonage  or  not  will  be  left  open  for  a 
decision  hereafter.  The  Uppcail  will  be 
allowed,  and  the  conviction  quashed. 

Maasdorp  and  Kotz^,  J.  J.,  con- 
cuTped. 

[Appellant's  Attorneys:  Syfret.  God- 
Icnton  and  Low.] 


RKX  V.  LLOYD. 

Contempt  of  Court. 

■This  was  an  appeal  from  a  judgment 
of  the  Resident  Magri'strwte  of  Mac- 
Lear,  who  had  convicted  the  appel- 
lant of  contempt  of  Court. 

Accused  ha<i  been  convicted  under 
section  54  of  the  Resident  Ma^i^tralte** 


"QAPE  TDCBS"  LAW  BEPOBTB. 


549 


Court  Act  (No.  20,  of  1856)  of  oonrfcempi 
of  Court,  in  that  on  The  22Dd  June  fie 
appeared  in  the  witnees-box  in  a  civil 
action  tirou^ht  against  him  and  gave 
evidence  while  in  a  state  cff  intoxioation. 
He  vras  fined  £3,  or  in  defauH  two 
dayji*    imprisonment. 

The  Magifftrate  stated  that  he  in- 
formed defendant  on  the  day  in  qi.ce- 
tion  that  he  would  be  committea  for 
contemptt.  and  ordered  him  to  appesr 
on  4ihe  following  day  for  sentence. 

Mr.  P.  S.  T.  Jonee  was  for  the  appel- 
lant ;  Mr.  Pyemoint  was  for  the  Crown. 

Mr.  Jones  submitted  that  the  moment 
the  accused  oommrtted  such  acts  ae 
would  render  him  liai>le  to  be  prosecuted 
under  section  54,  the  Magietrate  should 
have  dealt  with  the  matter  instantevt 
and  should  not  have  allowed  defendant 
to  go  away  and  ask  him  to  come 
baok  on  a  subsequent  day.  The  section 
a^arn  did  not  reier  to  persons  who  were 
taking  part  in  the  j>roceeding«  before 
the  Gount  The  Magistraifce,  he  oonta.'id- 
ed,  should  not  have  allowed  the  mau 
to  continue  his  evidence;  he  really  in- 
vited tftns  contempt  by  allowing  the 
man  to  give  evidence. 

Without  calling  upon  Mr.  Pyemont. 

Buchanan,  A.  C.  J. :  Hie  Magistrate's 
Court  is  a  Court  of  Record,  and  hiaa 
also  special  statutotry  authority  given  to 
it  to  punish  persons  guilty  of  contempt. 
Punisnment  for  contempt  of  Court  is 
not  a  ix)wer  which  personally  I  am  very 
much  in  favour  of  exercising,  but  the 
power  is  vested  in^  the  Court,  and  cir- 
cumstances may  arise  which  may  ren- 
der it  necessary  to  exercise  that  power. 
Tliree  objections  have  been  raised  to 
the  conviction  in  this  case.  The  first  is 
that  the  Magistrate  did  not  pass  sen- 
tence on  the  day  the  contempt  was  com- 
mitted. Out  of  consideration  for  the 
aroused,  the  Maguitrate  postponed  judg- 
ment until  next  morning,  and  I  do  not 
see  how  the  accused  was  placed  in  a 
worse  position  by  the  consideration  of 
tlio  Magistrate.  I  ^  do  not  think  the 
Magistrate's  postponing  it  until  next 
morning  was  vital  to  the  conviction. 
The  next  objection  was  based  on  the 
fact  of  accused  being  a  party  to  the 
case.  The  only  authorities  cited  apply 
to  cases  in  which  the  prisoner  in  the 
dock  created  a  disturbance,  and  it  was 
in  those  cases  held  that  prisoners  under 
arrest  could  not  be  punished  un- 
der the  54th  seotion  of  the  Act 
for  contempt.  That  does  not  apply  to 
a  person  in  the  position  of  ^accused. 
The  third  objection  was  that  the  Magis- 
trate induced  the  contempt,  but  the  im- 
proper conduct  of  the  accused  was  due 
to  his  voluntary  intoxication,  not  to  his 
bein^  called  as  a  witness.  It  is  not 
showing  proper  respect  to  the  Court 
that  a  person  should  go  into  Court  in 
a  state  of  intoxication.  There  was  con- 
teni{>t  on  the  part  of  the  aippellant.  ^  I 
do  not  see  any   ground  for  interfering 


with  the  conviction  in  this  case,  and  the 
sentence  is  not  an  excessive  one^  The 
appeal  must  be  dismissed. 


BEX  y.  VBRWET. 

Magistrat  )'8  finding  on  facts. 

This  was  an  appeal  from  a  judgment 
of  the  Acting  Resident  Magistrate  of 
Aberdeen  convicting  the  appellant  upon 
two  counts  of  contravening  Act  36,  of 
1886. 

Appellant  was  charged  on  the  first 
count  with  contravenJDg  section  4  of 
Act  36  of  1886,  tn  that  on  the  23rd 
April,  at  or  near  Wallacedale,  in  the 
Aberdeen  district,  he  did  kill,  catch, 
capture,  pursue,  hunt,  or  shoot  spring- 
buck without  having  fint  provided  him- 
self with  the  necessary  licence,  as  pro- 
vided iby  section  4  of  the  said  Act.  He 
was  further  charged  with  oontraveninff 
section  7  of  the  Act.  He  was  found 
guilty  and  sentenced  to  a  fine  of  £1,  or 
l4  days'  imprisonment,  with  hard  la- 
bour, on  the  first  count,  and  £3,  or  one 
month's  imprieonment,  with  hard  la- 
bour, on  the  second  count. 

Mr.  Swift  was  for  the  appellant;  Mr. 
Pyemont  was  for  the  Crown. 

Mr.  Siwift  submitted  that  the  convic- 
tion was  against  the  weight  of  evidence, 
and  that  tne  charges  should  have  been 
dismisseil. 

Mr.  Pyemont  having  been  heard  in 
regard  to  the  conviction  on  the  second 
count, 

Buchanan,  A.  C.J. :  In  this  cose  the 
accused  is  charged,  firstly,  with  contra- 
vening the  game  law  in  hunting  or  shoot- 
ing at  a  buck  without  a  lioenoe.  This 
charge  is  clearly  proved.  On  the  second 
count,  under  which  the  charge  is  laid 
under  the  7th  section,  the  offence 
consists  of  shooting  over  private 
property  without  the  consent  of  the 
owner,  who  had  advertised  under 
that  section  tliat  he  wished  to 
preserve  hu  game.  The  Magistrate  has 
also  convioted  on  this  charge,  but  I 
must  say,  looking  at  the  evidence,  that 
the  evidence  does  not  establish  the 
charge^  What  appears  from  the  evi- 
dence is  that  the  accused  was  not  on  the 
private  property  when  he  fired  this 
shot.  He  was  on  the  outspan,  or  on 
Mr.  Humdall's  ground,  adjoining.  The 
fence,  which  I  take  to  be  the  boundarv 
fence  of  oomplainaint's  farm,  was  200 
yards  or  more  from  where  the  accused 
was  seen  when  he  fired  the  shot,  and 
the  accused  had  only  a  single-barreled 
shot  gun  which  would  not  carry  to  any- 
where near  the  complainant's  land. 
I  do  not  think  therefore  that  the  evi- 
dence is  sufficient  to  justify  the  con- 
viction on  this  count.  The  appeal  will 
be  allowed,  and  the  conviction  quashed 
on  the  second  count.  On  the  first  count 
the  appeal  wiM  h%  dismissed  and  the  ooii< 
viction  sustained. 


660 


<i 


CAPB  TIMES"   LAW  REPORTS. 


BEX  ▼.  WALAZA  AUD  FUNDAKUBI, 

Malicious  injury  to  property. 

M.  and  F,  had  killed  a  certain 
ox,  the  jmjperiy  of  complain- 
ant. The  ox  iras  sick,  com- 
plainant  toas  absent,  and  the 
accused  told  complainanCs  son 
that  they  hilled  the  ox  to  avoid 
quarantine. 

Held  on  appeal,  thai  this 
statement  negatived  any  pre- 
sumption of  malice. 


This  wafl  an  appeal  from  a  judgment 
of  the  A.R.M.  of  Teomo.  who  had  con- 
victed the  appellants  (two  natives),  of 
malioioufl  injury  to  property. 

Acoiwed  had  been  charged,  firstly, 
with  cattle  theft  in  contravening  section 
198  of  the  Penal  Code,  and,  alternative- 
ly with  the  crime  of  malicious  injury  to 
property.  Both  had  been  found  guilty 
of  malioioufl  injury  to  property,  and  fined 
£5,  or,  in  default,  impriBonment,  with 
hard  labour,  for  one  month. 

Mr.  Upington  waa  for  the  appellants; 
Mr.  x-'yemont  waa  for  the  Crown. 

Mr.  Upington  said  thait  the  ground  of 
appeal  wae  that  the  conviction  was  con- 
trary to  law,  and  was  not  supported  by 
the  evidence.  It  was  alleged  that  the 
accused  killed  a  certain  ox  belonging  to 
a  man  who  oame  from  Whittlesea,  in 
the  district  of  Queen's  Town,  and  who 
was  travelling  in  the  Territories.  The 
ox  wa«  sick,  and  ppoeecutor  obtained 
medicine  for  it.  He  alleged  that  the  ac- 
cused killed  the  animal  without  his  per- 
mifision,  and  that  they  ate  portions  of 
the  moat.  They,  on  their  part,  denied 
that  they  killed  the  animal,  and  said 
thai  they  did  nothing  more  than  assist 
the  prosecutor  to  kill  the  ox  because  it 
was  sick.  The  Magistrate,  in  his  rea- 
sons, said  he  did  not  think  the  defence 
was  to  be  relied  upon,  and  he  believed 
perjury  to  have  been  committed.  He 
nad  committed  the  defendants  on  a 
charge  of  perjury. 

Mr.  Upington  contended  that  upon  the 
evidence  of  the  prosecution  itself^  it  was 
dear  that  no  malicious  intention  was 
shown:  that  any  presumptioo  of  malice 
that  might  arise  from  the  nature  of  the 
act  was  rebutted  by  the  evidence  of  the 
Crown  witnesses  themselves. 

Mr.  Pyemont  submitted  that  if  there 
were  anything  in  the  evidence  of  the 
Crown  witnesses  to  rebut  the  presump- 
tion of  malice,  such  presumption  was 
more  than  re-establLshea  by  the  evidence 
for  the  defence.  Malice,  he  contended, 
was     the    doing    of  a  cruel  thing  need- 

lesslv. 

Buchanan,  A.C.J. :  The  appellants  in 
this  oase  were  charged  with  contravening 
section  198  of  the  Native  Territories 
Penal  Code,  in  that  they  wrongfully  and 


unlawfully  killed  a  certain  ox  with  in- 
tent to  steal  the  carcase  or  part  theiwf. 
They  were  charged  in   the     alternative 
with  malicious  injury  to  property.     The 
Magistrate  acquitted  them  of  the  former 
chargfs  but  convicted  them  of  malicious 
injury  to  property.     From  the  evidence 
it  is  clear  that  the  ox   which   belonged 
to  the  complainant  was  sick  and  unable 
to   be   used    in   travelling.       The    com- 
plainant stated  that  he  went  to  get  medi- 
cine for  the  ox,   and  that  while  he  was 
away  the  ox  was  killed  by  the  prisoners. 
The  persons  present  at  the  killing  of  the 
amnuil  were     according  to  hs  account, 
his  wife  and   grandson.    The   graadson 
is  oalled ;    the  wife  is  not  called.    The 
Magistmte  found  that  the  prisoners  were 
not  guilty  of  killing  this  ox  with  intent 
tD   steal    the    carcase  or  portion  thereof, 
but  convicted  them  of  malicious  injury 
to  property.    The  essence  of  this  charge 
consists  in  the  nutlicious  motive.    Gener- 
ally the  motive  has  to  be  gathered  from 
the  aot  done,  but  in  this  case  the  motive 
was  expressly  stated.    The  boy  who  was 
present  savs  that  the  accused  announced 
that  they  mtended  to  kill  the  ox  in  order 
to  save  nim  from  being  put  into  quaran- 
tine.   It  is  not  clear  what  disease  the  ox 
was  suffering  from,  whether  it  was  red- 
water,     as    some   of    the    witnesses   say, 
which  is  highly  infectious,  or  whether  it 
was  gall  sickness,   as  others  say,  which 
is  not  infectious.       But  here   we    have 
the   fact  that   the   acused   stated      their 
object  in  killing  the  ox.       This    object 
may    not   have    justified    them    in    kill- 
ing    it,     but     I     think     this     negatives 
the  allegation    of    malice,    especially  as 
the  Magistrate  has  found  the   prisoners 
not  guilty  of  killing  the  ox  with  intent 
to  steal  the  carcase.      I  think  there  was 
no  malioe,  and  that  the  priaoneiB  ought 
to  have  been   acquitted    of   the    second 
charge.      There  may  be  civil  liability  on 
the   part  of  the  prisoners  to  the  com- 
plainant, but  I  do  not  think  thev  should 
bo  punished  as  criminals.       Uncler  these 
cii-cumstanoes,    the   ap^al   must   be   al- 
lowed, and  the  conviction  quashed. 

[Appellant's  Attorneys:       Walker  and 
Jaoobsohn.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplky.] 


^Ex  parte  BOTTOMLEY.       {  j„/y^oth. 

Mr.  Benjamin  moved  as  a  matter  of 
urgency  for  an  order  restraining  James 
Pa.trick  Boyle  from  parting  with  a  dia- 
mond ring  and  using  a  certain  season* 
ticket  on  the  railway.  Petitioner  was 
agent  for  Bottomley  and  Co.,  of  Brad- 
ford, and  early  in  the  year  he  entered 
into  partnership  with  Boyle,  under 
the  s^le  of  Bottomley  and  Uo^oarry- 
ing  on  business  at  Cape  Town,  timber- 


"OA^B  TlMB»"  LAW  REPORTS. 


561 


ley.  and  East  London.  A  diamond  ring 
of  the  value  of  £85,  the  property  of 
James  Bottomloy,  of  Bradford,  was 
sent  out  to  him  to  aell,  and  petitioner 
handed  it  to  Boyle  to  dispose  of  in  the 
counse  of  his  travelling;  The  reflpon- 
dent  was  also  in  possession  of  a  railway 
season-ticket,  valued  at  £75.  Peti- 
tioner and  respondent  dissolved  part- 
nership on  June  30.  and  petitioner  con- 
tinued to  trade  under  the  style  of  Bot- 
tomley  and  Co.  Boyle  refused  to  re- 
turn the  di among  ring  or  the  ticket, 
which  petitioner  believed  he  was  using 
for  his  own  business. 

A  rule  nisi  was  granted,  returnable 
on  July  14,  calling  on  respondent  to 
show  cause  why  he  should  not  deliver  up 
the  ring  and  the  ticket,  the  rule  to 
operate  as  an  interim  interdict,  with 
leave  to  serve  a  copy  on  the  Railway 
DepartmeAt. 


AXECUTOKS   OF   VAN  BKEDA  f  y    i'^?,*-, 
V,  SXECUTOBS  VAN  BRBDA<  •'"^^   JiJP- 


AND  OTHERS. 


J      „       12th. 

VAupr.    2nd. 


Will — Construction  —  Failure  of 
conditional  legacy — Impossi- 
bility of  performance  of 
condition — Adiatioii — Family 
arrangement  —  Authorization 
nunc  ftro  tune. 

A  husband  and  wife,  married 
in  community^  owned  certain 
farms^  over  16fl00  morgen  in 
extent^  in  a  contiguous  block. 
By  a  joint  will  made  in  I860, 
they  divided  the  land  into  two 
nearly  equal  portions,  and 
bequeathed  the  more  valuable 
half  to  their  eldest  son  31.  for 
his  life,  at  the  price  of  10s.  per 
morgen,  with  strict  prohibition 
against  bonding  or  in  any  way 
alienating  any  portion  thereof, 
the  said  property  to  pass  after 
M.'s  death  to  his  eldest  son  for 
his  lifetime  for  68.  per  morgen. 
and  after  his  death  to  his 
brothers  in  succession,  and  on 
the  decease  of  the  last  of  these 
them  to  his  eldest  and  other 
sons  in  succession,  and  on  the 
demise  of  the  last  of  such  great- 
grandsons  of  the  testator,  the 
property  was  to  be  sold,  but 
only  among  the  direct  male 
descendaiits  of  the  testator,  and 
the  money  divided  among  the 
descettdants  of  M.  per  stirpes. 
They  bequeathed  the  less  valua- 
ble half  similarly^  but  at  a 


less   price,   to  three  of   their 
other  sons  and  their  male  de- 
scendants with  similar  restric- 
tions.     As    to    the   residuary 
estate,    the  survivor  and    the 
children    were    appointed    the 
hei7'8  of  the  first  dying,  and  the 
survivor  was  appointed  execu- 
tor.    The  testator  died  in  1869, 
leaving  his  widow  and  eleven 
children   surviving,   of   whom 
M.  atid  two  others,  not  immedi- 
ately concerned  in  the  land, 
were  then  majors.     The  farms 
had  been  mortgaged  for  £5,100 
by  the  testator  in  his  lifetime, 
and  these  mortgages  still  sub- 
sisted at  his  death.     M.  was 
wholly    unable     to    pay     the 
bequest  price  of  £4,000  for  his 
land,  and  the  other  three  sons, 
at  that  time  minors^  had  no 
2)i'ospect    of    being     able    at 
majmity    to   pay   the   £2,000 
necessary  to  procure  their  life 
estate.     The  estate,  unless  the 
land  v:as  realised,  iras  unable 
to   meet   its    liabilities.      The 
widow  thereupon  dcicr mined  in 
1870  to  take  over  the  land  at 
a  fair  valuation,  and  she  liqui- 
dated the  testator's  estate  on 
that  basis,   but  never  got  the 
sanction  of  the  Court  to  such 
an  arrangement,   nor  did  she 
ever  get  transjer  of  the  land 
into  her  own  name.     She,  how- 
ever, paid  out  all  the  heirs  of 
her  husband  as  they  came  of 
age,  and  resided  and  farmed 
on  the  land,  treating  it  in  all 
respects  as  her  sole  property. 
No  protests  from  any  quarter 
were  ever  made  to  this  family 
arrangemefit.       The     testatrix 
died  in  1004,  having  made  a 
will,    disposing   of  the    land 
among    her    sons,     but    in    a 
different  manner  from  that  laid 
down  in  the  tciU  of  1860.     In 
an  action  brought  by  the  execu- 
tors    against     the     executors 
dative  of  her  husband's  estate 
and    against    the    curator  ad 
litem  for  a  minor  grandson  of 
the  testator, 

Held,  that  the  arrangement 
made  by  the  widow  in  1870, 
and  acquiesced  in  by  all  parties 


652 


i( 


CAPB  TIMES"  LAW  REPORTS. 


since  that  date,  must  he  Held 
goody  and  that  it  should  be 
sanctioned  nunc  pro  tune  ;  ajtd 
that  transfer  of  the  land  should 
be  given  to  the  plaintiffs,  so 
that  th^y  might  dUal  v ith  it  in 
terms  of  the  icill  of  the  sur- 


vivor. 


Also  held,  that  the  tridotr  had 
not  by  her  conduct  adiated  or 
accepted  benefits  umler  the 
joint  will,  so  as  to  debar  her 
from  treatiiig  the  land  in  a 
different  manner  from  tfiat 
laid  d-owf^  in  the  joint  mil. 

Ferreira  v.  Otto  (3  Juta,  193) 
follotced. 


This  was  an  action  for  a  transfer  of 
certain  property  and  a  declaration  of 
rightB,  brought  by  Henry  Hamilton 
van  Breda,  executor  in  his  mother's 
estate,  against  the  executors  dative  in 
the  estate  of  his  father,  M.  J.  van 
Breda,  of  Bredasdorp.  The  plaintiff 
was  third  surviving  ^oti  of  Michael 
van  Breda  and  Elsie  van  Breda,  -who 
executed  a  joint  will  in  1860,  and  the 
action  arose  out  of  a  further  will,  made 
in  1902  by  Mrs.  Van  Breda,  who  survived 
her  husband.  Under  the  first  will  pro- 
vision was  made  for  certain  of  Mr. 
Breda's  sons  and  thei^  sons,  on  condition 
that  they  should  pay  a  certain  amount  of 
money  into  the  estate,  which,  howevor, 
they  were  unable  to  do.  It  was  also 
a  condition  of  the  will  that  the  land 
could  not  be  mortgaged  or  disposed  of. 
All  the  landed  property,  excepting  cer- 
tain parts,  was  bequeathed  under  the 
mother's  will  to  Henry  Hamilton 
Breda,  and  before  executing  that  will, 
she  filed  a  liquidation  account,  and  by 
virtue  of  the     community  of  marriage, 

Eaid  the  heirs  their  shares  out  of  one- 
aJf  of  the  joint  estate,  and  reduced  cer- 
tain debts  on  the  estate.  Plaintiff  sued 
for  a  declaration  of  rights  and  transfer 
of  the  property,  as  the  legatees  had 
not  complied  with  the  conditions  of  the 
first  will,  and  must  be  taken  to  have 
repudiated  their  title,  or,  in  the  alter- 
native, for  a  declaration  as  regards 
one-half  of  the  property,  which  the 
surviving  spouse  was  entitled  to  deal 
with.  The  first  defendants,  in  their 
plea,  denied  any  knowledge  of  the 
material  facts  alleged  in  the  declara- 
tion, or  that  the  provisions  ^of  the  will 
were  generiJly  stated.  Subject  to  cer- 
tain statements  being  accepted,  they 
submitted  to  the  judgment  of  the  Court. 
The  plea  put  in  by  the  curator  was 
somewhat  similar  in  effect,  but  further 
denied  that  the  heirs  were  paid,  and 
claimed  in  reconvention  for  a  declara- 
tion of  rights  on    behalf   of  the   minor 


child,   and   any    posaible    children    that 
might  he.  born. 

Mr.  Searle,  K.C.  (with  him  Mr.  Jou- 
bert),  was  for  the  plaintiffs;  Sir  H. 
Juta,  K.C.,  was  for  the  executors  dative 
in  the  estate  of  M.  J.  van  Breda,  and 
Mr.  Gardiner  appeared  as  curator  ad 
litem  for  a  oertam  minor  child. 

Henry  Hamilton  van  Breda,  third  sur- 
viving son  of  the  late  Michael  and 
Elsie  van  1  roda,  sbk!  the  only  male 
heir  of  the  next  generation  waa  bis  son. 
His  father  was  particularly  energetic 
and  industrious.  He  had  considerable 
property  at  Bredasdorp.  A  couple  of 
years  before  his  death  he  was  attacked 
with  rheumatic  fever,  and  was  forced 
to  dispose  of  property  at  CaJedon,  which 
was  just  about  to  become  remunerative. 
His  mother  took  over  the  estate  on  the 
death  of  his  father,  and  became  sole 
executrix.  Witness  left  school  to  asiiist 
his  eldest  brother  and  his  mother  on  the 
tarm.  A    valuation    of   the    property 

was  made  by  his  uncles,  one  of  whom 
wa«<  a  swum  appraiser.  The  property 
was  bonded  for  £5.100.  The  bond 
was  almost  paid  off  in  four  years  by 
his  nK>ther,  who  also  got  about  £1,500 
from  her  parents.  Witness  was  away 
from  1873  to  1892,  when  Michael,  the 
oldest  iion.  became  insolvent,  and  Dr. 
Albertyn  (his  brother-in-law)  leased  the 
farm.  Witness  took  the  property  over 
on  the  same  conditions  as  Dr.  Albertyn 
for  ten  years.  Witness  had  no  means 
to  take  over  the  property  on  the  condi- 
tions specified,  and  ho  was  satisfied 
with  his  mother's  arrangement. 
No  objection  was  raised  by  any  of 
the  heirs  to  the  arrangement  made  by 
hifi  mother. 

Cross-examined  by  Sir  H.  Juta :  Wib- 
no&s  was  executor  in  his  mother's  estate, 
the  moveables  of  which  were  valued  at 
£1,500.  At  present  between  £6,000  or 
£7,000  was  a  fair  valuation  for  the  landed 
property.  Witness  was  suing  the  executor 
dative  to  pass  transfer  of  the  property 
to  his  mother's  estate.  Witness  was 
prepared  to  give  the  money  to  cancel 
his  father's  bond  before  he  got  transfer. 
As  executrix  in  his  father's  estate,  his 
mother  sold  certain  morgen  at  Agulhas 
to  the  Government  and  a  pieoe  of  land 
to  the  English  Church.  The  arrange- 
ment was  that  his  mother  should  con- 
trol the  farm  until  the  heirs  were  in  a 
poisition  to   take  over  the  property. 

Re-examined  by  Mr.  Gardiner:  His 
son  was  thirteen  years  of  age. 

Dr.  Frederick  Albertyn  stated  that  he 
had  lived  in  the  Bredasdorp  district 
since  1869,  and  knew  the  late  Mr.  Breda. 
Witness  married  the  third  daughter. 
Witness's  wife  was  paid  by  Mrs.  Breda, 
and  of  his  own  knowledge  another 
daughter  was  paid.  W^itness  never  heard 
of  any  objection  to  the  arrangement 
made  by   Rirs.  Breda. 

Cross-examined  by  Sir  H.  Juta :  Ex- 
cept that  he  paid  the  rent  he  had 
nothing  to  do  with  old  Mr.  Breda's  will. 


"CAPE  TIMES"  LAW  REPORTS. 


563 


Pieter  JohamiM  Albertus  Breda, 
youngeat  eon  buf^  one  of  Michael  Breda, 
said  be  was  paid  bis  share  by  hie  mother 
about  1886  or  1887. 

Michael  Dirk  Breda,  eldest  son  of  the 
late  Mra  Breda,  st^artod  that  he  was 
now  62  years  of  age,  and  was  of  age 
when  hte  fafhor  died.  Witness  paid  all 
the  heirs  their  share  of  inhoritancx\ 
The  bonds  on  the  farms  were  reduood 
by  his  mother's  inheritance  from  her 
father's  estate.  Witness  had  never  been 
rehabilitated. 

Cross-examined  by  Sir  H.  Juta :  While 
lie  was  working  on  the  estate  the  bond 
was  reduced  year  by  year.  He  h^d  the 
management  of  the  property.  The  bond 
was  reduced  down  to  a  couple  of  hundred 
pounds.  A  fresh  bond  was  raised  by  his 
mother.  Witness  could  have  raised 
enough  money  on  bond  to  have  paid 
the  amount  into  his  father's  estate. 
He  never  agreed  to  his  mother  deal- 
ing with  the  property  as  her  own. 
Ho  always  told  her  it  was  not  hers. 
Witness  paid  his  brothers  and  sisters 
£155  and  took  £155  for  kimself. 
This,  witness  calculated  was  the  proper 
share  in  the  move&bles.  When  he  went 
insolvent  in  1889  the  property  was 
brought  up  in  the  schedules,  witness  re- 
garding it  as  his. 

Re-examined  by  Mr.  Searle:  He  told 
his  mother  he  was  going  to  take  over 
the  projpcrty,  but  she  said  that  there 
were  mmoirs  concerned,  and  thait  the 
bond  would  have  to  be  paid  off.  Witness 
had  never  been  In  a  position  to  x>&y  the 
£4,000  bond.  He  thought  he  could  raise 
it  on   bond. 

[Hopley,  J. :  But  would  you  find 
anyone  to  advance  you  t/his  money  on 
your  interest?] 

The  witness  said  he  ^ad  not  ascer- 
tained whether  anyone  would  do  bo. 

[Hopley,  J. :  Do  you  advance  any 
claims  under  this  will  of  your  father's? 
I  don't  suppose  jrou  have  any  idea  of 
taking  your  life  interest  over  for  the 
£4,000? 

Witness :  If  I  could  raise  the  money, 
I  should  like  to  take  it  over. 

[Hopley,  J. ;  You  don't  suppose  that 
any  money-lender  would  advance  a  con- 
8iaercd>Ie  sum  of  money  on  a  security 
like  that,  do  you?] 

Witness:   No,  I  suppose  not. 

[Hopley,  J. :  Well,  are  you  a  con- 
senting party  to  your  brother  taking  it 
over  on  paying  the  money?] 

Witness :  W^ell,  I  .suppose  if  my  bro- 
ther has  the  money,  I  ought  to  waive 
my  right  to  him. 

You  would  rather  him  have  it  than 
some  outside  party?— Yes. 

Sir  H.  JutA  said  it  might  bo  thought 
the  witness  would  get  more  if  the  pro- 
perty were  realised. 

Hopley,  J.,  said  it  was  nob  clear 
whether  the  witness  would  or  would  not 
gain  by  allowing  his  mother's  will  to 
stand. 


Carl  F.  F.  Juritz.  accountant  at  the 
Colonial  Orphan  Cham.ber,  agents  for 
Dr.  Carl  Aibertyn,  gave  evidence  as  to 
the  bonds  held  by  Dr.  Albertvn.  There 
were  four  bonds,  for  £2,000.  £500,  £300, 
and  £200  respectively.  Dr.  Albertyn 
took  over  the  bonds  in  May,  1895,  from 
Mrs.  E.  C.  van  Breda,  who  obtained 
ceseio-n  from  the  Board  of  Executors  in 
1882.  The  total  amount  of  the'  present 
bonds  on  the  estate  held  by  Dr.  Albertyn 
was  £2,800.  There  was  a  bond  on  other 
property   of   £800. 

R.  de  Waal  Steyn  clerk  in  the  Mas- 
ter's Office,  produced  certain  books  from 
the  Master's  Office. 

Thos.  Chas.  van  Breda,  youngest  son 
of  the  testatrix,  said  he  thoroughly 
understood  the  proceedings.  Ho  had 
received  his  share  of  the  estate.  The 
only  objection  he  had  was  that  the 
inheritance  under  his  mother's  will 
could  not  be  sold  except  to  his  brothers 
or  their  issue.  He  was  quite  willing 
to  abide  by  the  decision  of  the  Supreme 
Court. 

Henry  Robert  du  Proez,  law  agent, 
Brodasdorp,  who  acted  as  local  agent 
for  the  plaintiff  in  the  case,  stated  that 
ho  communicated  with  aJl  of  the  heirs, 
and   got  the  certificates  from  them., 

Chas.       Willoughby  Herald,    the    aot- 
iug    attorney    in   the    case,   stated    that 
he  had   seen  Mrs.      Backhouse,  one   of 
the  heirs  in  the  estate,   and     fully  ex 
plained  the  matter  to  her. 

This  ooncludod  the  evidence,  and 
counsel  having  been  heard  in  argu- 
ment. 
Cur.  Adv.  Vult. 
Postea  (August  2nd). 
Hopley,  J. :  In  or  about  the  year  1840 
the  late  Mr.  Michael  Jacob  van  Breda, 
then  a  young  man  of  about  23  years  of 
age,  married  Miss  EUsie  Gatharina 
Smalberger,  in  community  of  pro- 
perty, and  the  couple  thereafter  re- 
sidea  chiefly  at  Zoetensdalsvallei,  in 
the  division  of  Bredasdorp,  where 
they  owned  a  contiguous  block  of 
land  over  16,000  morgen  in  extent,  made 
up  of  the  farms  Zoetendalsvallei.  Klip- 
fontein.  Langerug,  Waschplaats,  Papen- 
kuilsfontein,  Brakkefontein,  and  Rhonos- 
terkop,  on  tlie  security  of  which  proper- 
ties Mr.  Van  Breda  oorrowed  in^  1857 
and  1862  sums  of  money  amounting  in 
the   aggregate  to   £5,100,  for  which  he 

?:ave  mortgage  bonds  over  the  said 
arms.  On  October  13,  1860,  when  the 
children  of  the  marriage  numbered 
eleven,  Mr.  'and  Mrs.  v.  Breda  made 
their  will,  in  which,  after  the  revocation 
of  all  previous  testamentSrnr  acts,  the 
above  landed  property  was  dealt  with  in 
two  elaborate  clauses,  and  a  codicil 
bearing  the  same  date.  I  think,  in 
view  of  the  contentions  that  have  been 
raised  in  this  case  that  it  would  be  well 
to  state  the  terms  and  effect  of  these 
claiu^s  (the  original  will  being  in  Dutch) 
as  I  understand  them.  Clause  I  is  as 
[    follows:   (1)  And  now  disposing     atiew, 


6fi4 


"CAPB  TIMEB'*  LAW  RBPORta 


and.  in  the  fint  place,  the  (eetaior  who 
declares  that  he  bequeathed  to  hus  eldest 
son  Michael  Dirk  van  Breda,  hia  (the 
testator's)  farm,  named  Zoetendals  Val- 
ley, in  its  entire  extent,  as  also  the 
farms  Klipfontein,  Waschplaats,  and 
Langperug,  and  aU  other  lands  situate 
within  the  enclosure  as  at  preeent  exist- 
ing, having  the  Honing  Nest  River,  the 
sea,  and  tne  valley  as  boundaries  on  the 
north-east  and  west  sides,  and  such  for 
the  sum  of  ten  shillings  per  morgen, 
with  this  understanding,  however,  that 
the  said  Michael  Dirk  v.  Breda  shall  not 
be  empoweivMl  to  take  possession  of  these 
farms  and  lands  until  after  he  shall  have 
attained  his  maiority  or  some  other  pre- 
viously approvea  state,  at  which  time  he 
will  be  obliged  to  satisfy  and  pay  to  the 
estate  of  him  (the  testator)  the  bequest 
value  of  these  farms  and  lands,  the  testa- 
trix, however,  during  the  minority  of 
the  said  Michael  Dirk  v.  Breda  being 
entitled  to  all  the  income  and  profits  ol 
the  said  farms  and  lands  provided  that 
she  applies  the  same  to  the  education, 
maintenance,  and  support  of  the  said 
Michael  Dirk  v.  Breda,  and  if 
necessary  to  her  own  support  and  main- 
tenance. Every t?hing,  however,  with 
this  express  condition,  understanding, 
and  provision,  thai  the  said  fanm  and 
lands,  or  any  part  thereof,  shall  never 
at  any  time  oe  mortgaged,  sold,  or 
alienated,  nor  shall  any  disposrtion  ct 
them  be  ma<ie  in  any  way  whaksoev3r, 
either  by  will  or  inter  vivo*,  bv  the  tes- 
tator's said  son  (or  by  his  m^ie  descen- 
dants in  the  cases  ^hereinafter  set  forth), 
but  that  the  eaid  farms  and  lands  after 
the  death  of  the  said  Michael  Dirk  v. 
Breda  shall  pass  over  to  end  devolve 
upon  his  eldEeert  son  undivided  and  in 
their  full  exftent  under  the  same  condi- 
tion, undeqrstanding,  and  provision  (but 
only  a<t  a  reduced  price  of  five  shillings 
per  morgen  to  ilhe  estate  of  the  said 
Michael  Dirk  v.  Boreda),  and  after  the 
death  of  the  said  eddeet  son  to  his  next 
eldest  brother,  and  to  continue  in  this 
way  to  the  laet  son  of  the  testator's 
said  son,  Michael  Dirk  v.  Breda,  and 
when  all  these  sons  are  dead  the  said 
farm  and  lands  shall  pass  over  to  and 
devolve  upon  the  oldest  son  of  the  test<i- 
tor's  grandson,  who  was  last  in  pos- 
session, under  the  same  condition,  under- 
standing, and  provision  as  aforesaid, 
without,  however,  any  further  pecuniary 
compensation  or  payment,  and  after  the 
deatn  of  this  eloest  great-grandson  of 
the  tesbvtor,  to  his  next  eldest  brother, 
and  to  continue  in  such  wise  to  the  last 
great-grandson  of  the  testator,  and  on 
the  death  of  all  these  great-grandson« 
the  said  farm  and  kinds  shall  be  sold 
entire  aoid  undivided  and  turned  into 
monev,  yet  only  and  exclusively  amongst 
and  between  ^e  male  descendants  of 
him,  the  testaitor,  w'ho  bear  the  name  of 
Van  Breda,  and  then  the  proceeds 
thereof  shall  be  divided  amongst  the 
then  livhig  descendants  of  the  testator's 


said  son,  Michael  Dirk  t.  Breda,  per 
sUrpe*,  Should,  however,  the  testator's 
said  son,  Michael  Dirk  v.  Breda,  die 
before  majority  or  (**  en  ")  without  male 
descendants,  it  is  the  testator's  express 
will  and  desire  that  the  said  farm  and 
lands  shall  pass  to  and  devolve  on  his 
next  eldest  brother,  and  hie  male  de- 
scendants, in  the  same  way  as  herein-, 
before  set  fortli,  for  the  same  price  of 
ten  shillings,  and  sobjeot  to  all  the 
aforesaid  more  fully  defined  express  con- 
ditions, provisions,  and  understanding 
about  never  at  all  bein^  able  to  bind, 
mortgage,  or  alienate  the  said  farm  or 
lands  or  any  portion  thereof  until  they 
shall  have  to  be  sold  and  turned  into 
money  in  manner  prescribed  after  the 
deafth  of  the  testator's  great-grandsons. 
Moreover,  the  testator  declared  that  he 
prohibits  and  forbids  his  aforesaid  son, 

J  grandsons,  and  great-grandsons  from 
emanding  the  Trebellian  or  anjr  other 
portions  known  to  the  Vaw,  it  being  the 
testator's  express  will  and  desire  that 
the  said  farms  and  lands  are  to  be  oc- 
cupied, lor  the  entire  time  and  periods 
prescribed,  free  and  unencumbered,  and 
undivided,  without  contradiction  of  any- 
one in  tne  world.  In  clause  2  of  the 
will  the  testator  made  the  same  elabor- 
ate disposition  in  almost  the  same  terms 
with  regard  to  the  farms  Papeirkuilc- 
fontein,  Rhenoster  Kop  and  Brakke- 
fontein.  Complicated  however,  by  the 
fact  that  they  were  oequeathed  in  the 
first  instance  jointly  to  his  sons,  John 
Wilhelm  and  Hendrik  Hamilton,  who 
were  not  to  be  allowed  to  take  posses- 
sion until  they  were  both  respectively 
of  age,  at  which  date  they  were  to  pay 
the  price,  which  was  to  be  five  shil- 
lings per  morgen,  with  further  devolu- 
tion at  their  death  to  their  "  respective 
eldest  son,"  but  witihout  further  pay- 
ment, and  so  on,  as  in  tlie  case  aeart 
with  in  the  fir^t  clause,  with  the  same 
instructions  as  to  alienation,  etc.,  and 
evontual         sale.  Failing         J  oh  an 

and  Hendrik  and  any  descendants 
through  males  issuing  from  them, 
these  properties  were  to  pass  to 
the  sons  Dirk  and  Pieter  and  their  male 
line  in  the  same  way.  These  farms 
were  eventuallv,  by  a  codicil,  made  in 
November,  I806,  left  jointly  to  the 
three  brothers  Hendrik,  Pieter^  and 
Thomas,  the  last-named  having  been 
born  in  1863.  Various  other  elaborate 
provisions  were  made,  all  with  the  ob- 
ject of  keeping  the  properties  in  the 
male  line  descended  from  the  testator, 
with  express  prohibition  of  alienation 
to  strangers;  and  these  it  is  not  neces- 
sary^ here  to  set  out  more  fully.  The  in- 
tention ,  however,  was  again  set  forth  and 
emphasised  in  a  codicU  executed  by  the 
testator  and  testatrix  on  the  same  da^, 
but  after  the  execution  of  the  will,  in 
which  the  testator  declared  it  to  be  his 
will  and  desire  that  the  farin  iSoetendal's 
Vlei  and  the  adjoining  farms,  after 
they  shall  have  been  sold,  on  the  death 


*'bAPB  TIMES"  LAW  BEPOBTS. 


555 


of  the  last  surriving  greai-graiidson  in 
temiB  of  the  will,  shall  never  be  allowed 
to  be  sold  to  strangers,  but  only 
amongst  the  male  descendants  of  Michael 
Diric  van  Breda,  and  in  default  of 
such,  then  to  male  descendants  of 
Johan,  Dirk,  and  Pieter,  or  any  other 
son  or  sons  of  the  testator,  and  in  the 
same  way  he  limited  the  sale  of  Papen- 
kuilsfontein,  Rhenoster  Kop,  and  Brak- 
kefontein  to  the  male  descendants  of 
Johan,  Hendrik,  Dirk,  and  Pieter,  and 
in  default  of  such,  to  male  descendants 
of  Michael  Dirk,  or  of  any  other  son  or 
sons  begotten  by  the  testator—^every- 
thing,  however,  with  the  understanding 
that  such  male  descendants  shall  bear 
the  name  oi  Van  Breda.  The  will 
having  thus  dealt  with  the  land  in 
question  proceeded  in  clause  3  thereof 
to  deal  with  the  estate  generallv,  and 
the  testators  therein  nominated  and 
appointed  each  other  reciprocally,  the 
first  dying  appointing  the  survivor,  to- 
gether with  the  children  of  the  mar- 
riage, to  be  the  sole  and  universal 
heirs  of  all  the  goods  left  hj  the  first 
dying,  of  whatsoever  description,  on 
the  understanding,  inter  cUia^  that, 
should  the  testatrix  be  the  survivor, 
she  should  be  bound  and  obliged  to 
have  the  joint  estate  (with  excep- 
tion of  the  aforesaid  bequeathed  farms 
and  lands)  valued  by  two  impartial  per- 
sons, who  were  to  be  appraisers  of 
immovable  property  in  the  division  of 
Bredasdorp,  in  order,  by  so  doing,  to 
ascertain  and  decide  the  respective  por- 
tions of  the  testator's  heirs,  she,  how- 
ever, having  the  enjoyment  of  the  in- 
come arising  therefrom  durinjof  the 
minority  of  the  children  for  their  edu- 
cation and  for  their  and  her  own  main- 
tenance and  support.  In  the  case  of 
the   survival   of    the   testatrix,    she,   to- 

S»iher  with  the  testator's  brother, 
irk  Gysbert  van  Breda  and  Mr. 
Hendrik  Willem  van  Breda  were  ap- 
pointed executors.  Such  are  the  material 
portions  of  this  will.  After  its  execution 
another  child,  Thomas  Charles,  was  born, 
in  1863,  and  in  July,  1869,  the  testator, 
Michael  Jacob  van  Breda,  died,  leaving 
his  widow  and  eleven  children  surviving 
(his  son  Johan  Wilhelm  having  pre- 
deceased him).  Of  these  children  only 
three  were  then  majors,  via.,  Maria,  who 
was  then  married  to  Mr.  Bayues;  Mi- 
chael Dirk  then  in  his  26th  year;  and 
Dirk,  who  was  a  barrister-at-law,  a  year 
or  two  younger ;  and  the  widow,  who  was 
the  sole  executrix,  the  other  two  having 
declined  to  act,  was  face  to  face  with  the 
problem  of  suitably  maintaining,  educat- 
ing, and  providing  for  this  large  family. 
In  due  time,  she  caused  an  inventory  of 
the  assets  of  the  estate  to  be  made,  and 
found  that,  exclusive  of  the  land  fifDeci- 
ally  devised,  their  value  was  about 
£5,902:  and  she  found  that  the  estate 
owed  moneys  to  the  extent  of  about 
£9,000,  of  which  £5,100  was  represented 
by  morigagw  on  the  wd  land.    Without 


the  land,  therefore,  the  jodnt  estate  would 
bo  insolvent.  Now,  the  land  had  by 
the  will  been  divided  into  two  almost 
equal  extents,  each  somewhat  exoeedinp^ 
8,000  morgen,  and,  consequently,  if  Mi- 
chael Dirk  had  been  willing  and  ready 
to  pay  as  he  had  the  right  to  do  10s.  per 
morgen  for  the  life  interest  of  the  farms 
devised  to  him  a  sum  of  £4,000,  and 
over,  would  have  been  immediately 
available  to  pay  off  the  larger  portion  of 
the  mortgages  and  to  place  the  estate 
in  a  solvent  condition.  But  Michael 
Dirk  was  a  young  man  of  no  means, 
totally  unable  to  make  any  such  pay- 
ment, and  he  consequently  did  not  take 
up  the  farms  at  the  beq^uest  price.  He 
states  that  he  did  ask  his  mother  to  let 
him  take  over  the  farms,  I  presume, 
without  any  cash  payment:  but  she 
very  naturally  answered  him  that  she 
had  the  minors  to  think  of,  and  refused 
to  let  him  have  them  without  tlie  neces- 
sary payment  Whatever  way  I  look  at 
the  matter  I  can  see  no  possible  mode 
by  which  Michael  Dirk  could,  in  the  cir- 
cumstances, have  become  the  owner,  that 
is  the  owner  for  life  of  these  farms  be- 
queathed to  him.  He  says  now  that 
he  might  have  borrowed  the  £4,000 
b^  mortgaging  the  farms,  but  it  is  ob- 
vious that  no  money-lender  would  have 
advanced  such  a  sum  on  such  a  securitv 
to  a  tenant  for  life  hedg[ed  around  with 
a  complicated  set  of  entails  and  stringent 
prohibitions  against  alienation.  To  the 
executrix  then  it  must  have  become 
clear  that  Michael  Dirk  could  never  ful- 
fil the  necessarv  conditions  to  enable 
him  to  take  up  tne  bequest  in  his  favour, 
and  when  she  turned  to  the  case  of 
the  other  farms,  which  were  oituated  in 
the  Downs  and  not  so  valuable  as  the 
Zoetendal  Vlei  group,  and  which  there- 
fore had  been  bequeathed  at  5e.  per 
morgen  (with  no  subsequent  payments 
by  the  remoter  heirs),  it  must  have  ap- 
peared equally  clear  to  her  that  her 
three  penniless  boys,  Hendrik  (then  18), 
Pieter  (then  12),  and  Thomas  (then  6 
years  old)  would  never,  on  attaining 
their  majority,  be  able  to  produce  the 
£2,000  which  would  be  neoessaij  be- 
fore they  could  ^et  possession  for  life 
of  these  farms.  Now,  I  do  not  think  that 
the  true  meaning  of  the  will  is  that 
the  ownership  of  the  properties  should 
be  kept  in  abeyance  for  an  indefinite 
time  to  ascertain  whether  either  the  im- 
mediate legatees,  or  some  future  per- 
sons claiming  through  them,  would,  at 
some  period  more  or  less  remote,  make 
up  their  minds  to  pav  the  heavy  price 
exacted  bv  the  will  for  the  somewhat 
doubtful  benefits  conferred.  I  think 
that  the  testators  had  in  their  mind  the 
children  not  benefited  by  the  bequest  of 
tho  land,  and  that  they  intended  that 
those  who  obtained  the  land  should 
forthwith  contribute  towards  their  edu- 
cation, support,  and  maintenance,  and 
to  the  eventual  portiona  to  be  inherited 


556 


tt 


CAPE  TIMES*'  LAW  REPORTS. 


by     thorn.      Tho     will      statee      clear- 
ly     enough      that      those      who    were 
indicated     by     the     will     should      take 
the     land     aa   soon   as     they      attained 
majority,   and   that   they   should      then 
pay  in   the  bequest  price  to  the     testa- 
tor's estate.       I  thinlc  that  the     devises 
of  the  lands  in  both  cases  were  doomed 
to  failure,  on  account  of  the  impossibility 
of  the  performance  of  what  was  by  the 
will   exacted    and  demanded  from      the 
loffatees    as   a   condition    precedent      to 
their  obtaining   possession    of  the  land, 
and  the  widow  seems  to  have  made  up 
hor  mind,     shortly  after  letters  of      ad- 
ministration were    granted  to  her.    that 
these  bequests  must  fail.       Her  position 
then  was  that  she  was  by  virtue  of  the 
community       of    property    which    had 
existed    between   her  and   the     testator 
entitled   to  one-half  of  the  joint  estate, 
and  by  virtue  of  the  testator's  will,  she 
>yas   aUo  entitled   to  a  one-twelfth    por- 
tion  of  tire  testator's  half  (see  Smith  v. 
Sayrr*s     ?Jxicutor»—FooTd     p.      66).    In 
view  of  the  state  of  her  family     and  of 
the  somewhat  embarrassed    condition  of 
the   estate,   and  havinf^  regard  to      the 
inability  of  Michael  Dirk    v.    Breda    to 
pay   £4.000   for  his  life   interest   in    the 
farms    becjueathed   to   him,    and    of    the 
certainty    that    Hondrik,    Pieter,        and 
Thonias  would,  for  similar     reasons,   be 
likewise  unable  to  obtain  theif  Ife      in- 
terest in  the  farms  bequeathed  to  them 
when  they     respectively  attained     their 
majority.  I  am  of  opinion  that  had  she 
petitioned  this  Court  at  that  time,     she 
would   have  obtained   leave   to      realise 
the  farms  free   of  any      restrictions     or 
encumbering  conditions.        She,       how- 
ever,   did  not  take    that,  course;       but 
taking  into      consideration   the      impos- 
sibility of  the  situation     created  by  the 
will,  and  the    necessity   of    keeping      a 
home  in  which  to  bring  up  her  family, 
she  seems  to  have  decided  to    disregard 
that  portion  of  the  will  dealing  with  the 
land,  and  to   take  upon   herself   the   re- 
sponsibility of  the  land  with  the  burdena 
upon  it.      She  caused     the  land  to     be 
valued  in  May.  1870.  by  three  qualified 
appraisers,  who      valued  all  the     farms 
together  at  £7,000,  and  she     determined 
to  take  them  over  at  that  price,  and  to 
liquidate   her  late  husband's     estate  on 
that  basis.       This  was  an   arrangement 
which.  I  feel  sure,  this  Court,  if  applied  " 
to.    would  have  sanctioned    as  being    in 
tho  best   interests   of   the   family  as      a 
whole ;   but  unfortunately  the    executrix 
made  no  such  application.        She,    how- 
ever, sent  in   a  liquidation      account   to 
the    Master   of   the  Supremo  Court      in 
February,   1871.  in  whidh  she  indicated 
clearly  the  position-  she  had  decided   to 
take  up.     In  that  account  she  stated  that 
she  hsid   taken  over  the    farms   for  the 
sum    of    £7,000,    and    she    placed    that 
sum  to   the   rrr»dit  of  tho  estate,    while 
among    the    liabilities   she    included    an 
amount  of  £175  due  to  her  as  executrix 
by  way  of  oommiseion  on  the  realisation 
o!  these  farms.       By  taking   this  rtep 


she  showed  a  credit  balance  on  the 
whole  joint  estate  of  herself  and  the  de- 
ceased of  £3,775,  of  which  amount  she 
assigned  to  herself  one-half  by  virtue 
of  the  community,  and  one-twelfth  as 
an  heir  under  the  testator's  will.  The 
residue,  amounting  to  £1,730  4s.  2d.,  she 
assigned  to  the  11  children  in  equal 
portions  of  £157  5s.  lOd.,  of  which  they 
were  to  receive,  after  payment  of  suc- 
cession duty,  £155  14s.  4d.  net.  Such 
sum  was  immediately  paid  to  each  of 
the  three  majors,  and  thereafter  to 
each  child  in  succession,  when  ahe  or  ho 
became  of  age,  or  as  soon  thereafter  as 
their  mother  had  funds  in  hand  for  the 
purpose.  It  will  thus  be  seen  that  the 
testator  did  not  abide  by  the  terms  of 
the  will,  in  so  far  as  the  landed  property 
specially  bequeathed  was  concerned,  and 
that  fchc  awarded  and  paid  out  to  the 
heirs,  from  time  to  time,  sums  of  money 
which  could  not  have  been  in  the  estate 
for  distribution,  but  for  the  sale  either 
to  herself  or  some  stranger  of  the  said 
immovable  property.  These  sums  of 
money  were  in  turn  accepted  by  all  the 
heirs  on  their  attainment  of  majority, 
the  widow  meanwhile  managing  the 
whole  of  what  had  been  the  joint  estate 
and  farming  on  the  whole  of  the  proper- 
ties in  question.  She  farmed  with  con- 
siderable success,  for  besides  maintain- 
ing and  educating  the  children,  and  pay- 
ing them  their  paternal  inheritances,  she 
managed  to  reduce  the  mortgages,  and 
eventually  to  practically  pay  oflF  all  the 
debts  secured  by  bonds  upon  these 
farms,  and  apparently  to  free  them 
from  any  claims  by  strangers  for  a  short 
time.  In  this  result,  however,  she  was 
aided  by  inheriting,  in  the  course  of 
1872       and       1873,       about  £1,460 

from  her  parents,  which  she  de- 
voted to  the  extinction  of  these  debts, 
but  the  larger  portion  of  the  debts  on 
the  estate  must  have  been  paid  for  by 
tho  profits  made  by  her  out  of  the  oar^ 
ful  and  successful  management  of  the 
farms.  The  mortgage  bonds  in  question 
were  originally  given  to  tha  Master  of 
the  Supreme  Court,  N.O.,  for  trust 
funds  in  his  hands  advanced  to  Mr. 
Michael  Jacob  v.  Breda,  one  bond  for 
£3,600,  dating  from  1857.  and  another 
for  £1,500  from  1862.  tn  1873,  the 
Master  had  ceded  these  bonds  to  the 
Board  of  Executors,  and  the  widow. 
Mts.  V.  Breda,  had  paid  them  off  by 
1882.  Now,  I  have  no  doubt  that  if  the 
farms  had  been  transferred  into  her 
name  she  would  have  caused  these  bonds 
to  be  cancelled  at  that  date ;  but  as  they 
still  were  registered  in  the  name  of  her 
deceased  husband,  she,  no  doubt,  in  or- 
der  to  have  some  security  for  herself, 
simplv  took  a  cession  of  tho  bonds  to 
herself  individually  from  the  tlien  hold- 
ers, the  Board  of  Executors.  These  ces- 
sions were  made  on  April  18,  1882. 
Shortly  after  that  date  the  widow  took 
a  step  which  adds  to  the  difficulties  of 
the  present  case.    It  is  possible  that  she 


"CAPE  TIMES"  LAW  BEPOBTS. 


667 


may   have   then  reoeived    some  advico, 
or  she  may  have  been  moved  by  other 
considerations,  of  which  there  is  no  evi- 
dence;   but,  whatever  her  motive    may 
have  been,  what  ehe  did  was  to  send  in 
a  so-called  amended  liquidation  account 
of  the  estate  which  she   had  been    ad- 
ministering since  September,  1869.    This 
account  is  dated  June  1,     1882,    and  it 
omits    all     dealing      with      the      land, 
but      is       in      other     respects     simply 
a     repetition      of      the       account       of 
1871    the  result  of  the  change  being  to 
show  the  joint  estate  to  have  a  deficit 
of  £3,049  17s.,  which  was,  in  the  words 
of  the    account,    **  to  be    found  against 
the  land."    This  was,  however,  the  sole 
step    in   apparent    contradiction   to    her 
previous  conduct,   w'hich   «he   took,    and 
no  one  seems  to  have  taken  any  notice 
of  i't,  nor  does  she  herself  seem  to  have 
treated  it  seriously  or  made  any  change 
in   the  course  of   affairs,    because   of   it. 
She   went    on   living,    managing,       and 
farming  as  before  upon  the   properties, 
still    treating    them    apparently   as    her 
own.    and  eventually,    as  will    hereafter 
bo  shown,    she   tre«uted  them     in      her 
separate   will  a«  though   they  were   her 
sole    property,     a>nd    actually    spoke    of 
them  as  registered  in  her  name.     It  is 
also  noteworthy,  in  this  connection,  that 
in  1884  a^he  paid  out  his  inheritance  of 
£155  14s.  4d.  to  her  son  Thomas,   who 
in  ihatt  year  attained  his  majority,  thus 
proving  th»t    though  she   had    sent    in 
the   **  amended  account,"    she    was   still 
acting  on    the  principle    and  figures    ol 
t4)e  original  liquidation  account  of  1871, 
the  basis  of  which  was  the  taking  over 
by   herself  of    the    immovable  property 
for    £7,000.      After    she  had    held    the 
bonds   as    cessionary    for     about    eight 
months,    she    ceded   them    by    Notarial 
Act   to  Dr.    Abraham   Albertyii   for    en 
advance  of    £2,000.       Thev  have    since 
passed  by  cession  to  Dr.  Carl  Albertyn 
who    made    furt^her  advances    on    them, 
and    finally    took   cession    on    them    on 
May  4,  1893.  for  £2,800,  such  being  by 
th<it  date  the  full  amount  advanced  by 
him,  and  the  conisideration  whereby  he 
became  the  legal  holder  of  those  securi- 
ties.     Of    the   moneys   so    advanced  by 
the  Doctors  Albertyn,   there  is  no  rea- 
son to    suppose   th<a>t    any   was  used   by 
Mrs.   V-an  Breda,  save   m   the  interests 
of   the   family,    w'hich  had  then    grown 
uj),    and   w«8    more  expensive  to   main- 
tain,   as   is    stated    in    his   evidence   by 
Mr.    Michael    Dirk    v.    Breda,   who  ad- 
mits   tha;t    his    mother  so   applied    thf 
amounts  borrowed  by  her.    With  regara 
to  the  land  itself,   it  appears  that  since 
1886   Mr*.    V,    Breda    has   ceased    farm- 
ing the  estate  personally,  she  leased   it 
from     1886    to     1892     to     her    son-in- 
law.      Dr.      Frederick     Albertyn,      and 
from         1892        onwards       until         the 
the  present  time  the  property  has  been 
lea^^  and  worked  by  Mr.  Hendrik  Ham- 
ilton y.  Breda,  the  second  eldest  of  her 
surviving  eons,  but   the  rents   have  ap- 
parently always  been  treated  by  Mrs.  V. 


Breda,  as  accrumg  for  and  due  to  herself 
personally,  and  she  has,  since  the  debts 
were  incurred,  always  paid  the  interest 
o'l  the  bonds  to  the  successive  holders 
thereof.  It  is  clear,  therefore,  that  but 
for  the  isolated  act  of  sending  in  the 
"amended  account"  in  1882,  Mre.  V. 
Breda  acted  consistently  throughout  her 
life,  which  lasted  until  January,  1904, 
oa  the  basis  of  the  arrangement  made  by 
her  in  1870,  when  she  took  over  the 
farms  as  stated  by  her  m  the  account 
rendered  in  1871.  For  over  a  third  part 
of  a  century,  she  remained  on  the  farms 
as  their  owner,  treating  and  using  them 
m  all  respects  as  though  they  were  her 
sole  property,  and  during  all  that  time 
there  was  never  a  single  protest  raised 
hy  .anyone  against  the  arrangement 
which  she  had  thought  it  in  the  best 
mterests  of  her  family  to  make.  The 
youngest  of  her  children.  Mr.  Thomas  v. 
Breda,  attained  his  majority  in  the  year 
1884,  and  all  the  daughters  have  been 
married  ;  but  no  one  ever  questioned  the 
arrangement,  and  none  of  the  sons  ever 
niade  any  lender  of  the  bequest-value  of 
the  farms  or  asked  to  be  put  into  posscs- 

^^r^'loPc*®""*  ^^  ^^^^  ^^'''  or  of  the  codicil 
of  1866,  nor  do  they,  even  at  the  pre- 
sent time,  advance  any  such  claim, 
upon  such  a  eitate  of  facts  1  can  see  no 
J"«^  or.  equitable  pronouncement,  save 
that  tho  arrangement  made  by  the  late 
Mrs.  V.  Breda  in  1870,  as  shown  by  her 
^count  of  1871,  whereby  she  took  over 
the  lands  belonginig  to  herself  and  her 
deceased  husband  for  the  sum  of  £7,000 
was  in  the  best  interests  of  all  concern- 
ed, that  it  was  acquiesced  in  by  all  par- 
ties,   and   that   it  continued   until      the 

?S?i^  ?^^?'l-  ^  ^^«^*'  '"^  January, 
1904,  of  full  force  and  effect.      It  is  an 

arrangement  which  the  Court  would 
have  sanctioned  in  1870,  and  I  am  of 
opinion  that  on  the  same  equitable  prin- 
ciples as  were  applied  by  the  Court  in 
the  case  of  Fcrreira  v.  Otto  (3  J.  193), 
it  should  be  sanctioned  nunc  pro  tunc, 
and  that  the  necessary  transfers  should 
be  given  of  tho  farms  to  the  executors 
of  her  estate  to  enable  them  to  deal 
with  the  farms  in  terms  of  her  will 
Now  It  was  argued  that  she  had  no 
power  to  make  a  will,  at  all  events,  t^ 
garding  these  lands,  for  two  reasons— 
fipt»  because  there  had  been  a  massing 
of  that  portion  ol  the  estate;  and 
secondly,  because  she  had  adiated  under 
the  will  of  her  husband  and  accepted 
|x?nefits  under  it,  and  that,  consequent- 
ly, she  could  not  change  the  elaborate 
devieos  created  by  the  will.  But  there 
clearly  was  no  massing  of  these  joint 
assets.  There  was  no  clear  disposition 
of  the  farms  after  the  death  of  the 
survivor  to  which  she  had  as.sented. 
bhe  had  as.sented  to  nothing  more  than 
an  elaborate  conditional  disposition  of 
the  land,  which  was  to  become  effectual 
during  her  lifetime,  and  under  which 
she  would  have  benefited  in  a  pecuniary 
sense  if  it  had  been  carried  out;     nor 


558 


"CAPE  TlMEft"  LAW  REt>otit8. 


had   she  adiated      or    accepted  benefits 
under  the  will,  in  so  far  as  it  dealt  with 
the  farms.     Instead  of  living   under  the 
terms  of  the   will,  she     distinctly      and 
radically  departed  from  them;  and  even 
if  she  had  not  taken  over  the  farms   in 
1870,    I  know  of    nothing  which     could 
have    prevented       her    ^om   making    a 
will  dealing  with  her  half-share  and     a 
child's      portion      of    the   farms  at    her 
death.     But  as  I  have  already  stated,  I 
am  of  opinion  that  owing  to  the  steps 
she   took    and   the  arrangement      which 
was    acquiesced   in    by    all   parties,    she 
was  entitled  to  deal   with  the  whole  of 
the  farms,  as  her  own,  by  her  will.    She 
executed  her  last  will  in  May,  1902,  and 
bequeathed  thereby  all    the  said  landed 
property    to   her    son,   Henry  Hamilton 
van  Breda,  for  the  sum  of  £4,800,   with 
the  exception   of   three  defined    lots   of 
fifty  morgen  each  at  Struy's  Bav,    part 
of   Papenicuilsfontein,  which,   with      the 
houses  and  buildings  thereon,      she  be- 
queathed respectively  to  her  three  sons, 
Michael   Dirk,   Pieter,   and    Thomas,   in 
each  case  for      the  sum  of   £200;     and 
those    properties   carry    with   them   cer- 
tain  grazing  rights  over   the  remainder 
of  Papenkuilsfontein,  but  the  alienation 
of     these  portions  and   rights,   save     to 
their  brothers  or  their  male     issue,     is 
distinctly   prohibited.        After   disposing 
of   individual   portions    of   her   property 
leaving  all  her  movable  property  to  her 
son  Henry  Hamilton),  she  appoints     all 
her  children  jointly     as     heirs     of     her 
residuary   estate.        This   disposition    of 
the   landed   estate    seems    to   me   to   be 
carrying  out  as  well  aa  the  fortunes  and 
circumstances  of  the  family   will  i>ermit, 
and  as  far  as   possible   the  wishes     and 
intentions  of    tne  testator  Mr.    Michael 
Jacob  van  Br<Mia ;  since  the  land,  which 
he  so  muoh  prized,  and   which  he  tried 
BO  hard  to  keep  in  his   family,   will  re- 
main   for   this   generation    at  least      in 
the    possession  of  his  direct    male     off- 
spring; moreover,  the  three  of  his  sons 
who  so  far  have  no  male  issue  are  pro- 
hibited from     alienating     the     portions 
which  have  been  left  to  them  except  to 
the  members    of  the  direct   male  lines 
bearing  the  name  of  Van  Breda;     and 
the  son  Mr.  Henry  Hamilton  v.  Breda, 
who  is  to  get  the  main  bulk  of  the  pro- 
perty and   the   residence  at    Zoetendals 
Valley,  is  the  only  son  who  hitherto  has 
had  male  issue.    He  has  one  son,  named 
Michael    Jacob  y.    Breda,   who     in     all 
probability  may  in     his     turn     become 
possessed   of    the   lands,    the    continued 
possession  of  which    by  his  descendants 
was  the  object  so  close   to  the  heart  of 
his  grandfather,   whose  naniesake  he  is. 
It  will  be  in  the  power  of  his  father  and 
himself   if    they  be    so  minded  to  keep 
this   land    in   the   family      for      further 
generations,    and   as    far   as   I   can   see 
uiat  is  the   course  which    contains   the 
only  chance   of   the     testator's      desires 
with  regard   to   the   devolution   of    this 
land  being  fulfilled.      The  Court  thera- 


fore  declares  that  the  farms  in  question 
were  at  the  time  of  her  death  the  sole 
property  of  the  testatrix,  and  that  they 
should  be  dealt  with  in  terms  of  her 
will,  and  orders  that  the  first-named 
defendants  do  give  transfer,  and  that 
the  Registrar  of  Deeds  be  empowered 
to  pass  transfer  to  the  plaintiffs  as 
executors  of  the  estate  of  the  said 
testatrix,  and  that  the  plaintiffs  in  their 
said  capacity  should  thereafter  deal 
with  the  said  land  in  terms  of  the  will 
of  the  testatrix.  With  regard  to  the 
claim  in  reconvention  made  by  the 
second-named  defendant  the  Court 
orders  that  it  be  dismissed.  With  re- 
gard to  the  costs  it  is  clear  that  they 
should  come  out  of  the  estate  of  the 
testatrix,  as  it  was  owing  to  her  default 
that  she  did  not  obtain  transfer  of  the 
property  during  her  own  lifetime;  but 
it  appears  to  n^e  inequitable  to  make 
the  heirs  generally  responsible  for  these 
costs  as  the  ownership  of  the  land  was 
the  sole  matter  whico  was  in  dispute, 
and  they  as  a  bod^r  did  not  add  to  the 
difficulties  of  the  situation,  nor  did  an^ 
of  them  individually  make  an^  opposi- 
tion. The  persons  mainly  interested 
were  Mr.  Henry  y.  Breda  and  his  minor 
son,  and  the  result  of  the  action  cer- 
tainly is  of  considerable  pecuniary 
advantage  to  the  former,  who  obtains 
full  property  in  the  farms  at  a  figure 
much  below  their  market  value.  Had 
the  testatrix  in  her  lifetime  made  good 
her  title  it  is  clear  that  she  would  nave 
had  to  pay  the  costs  of  the  proceedings, 
and  in  that  case  her  moyable  property 
would  have  been  diminished.  I  think 
therefore,  that  the  costs  should  be  met 
in  the  first  instance  by  the  movable  pro- 
perty left  by  the  testatrix,  and  in  case 
of  their  insunicienoy  then  by  the  general 
assets  of  her  estate.  This  order  as  to 
costs  applies^  to  the  costs  of  all  the 
parties  to  this  suit 

[Plaintiff's  Attorneys :  Herold  and  Gie. 
Defendant's  Attorneys:  Van  Zyl  and 
Buissinn^.] 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Hon. Mr.  Just icf-  Maasdobp.] 


]9a5. 


g 


JSx  2)arte   BAMJUTTUM     f 

BABOOLACB.  )  July  12bh. 

Mr.  Lewis  moyed,  as  a  matter  of  ur* 
ency,  on  the  petition  of  Ramjuttum 
aboolaoe,   shopkeeper,  of  Sussex-road, 


i 


*'CAPB  TIMBS"  LAW  REPORTS. 


559 


Wynberg.  for  an  order  rontrainingr  his 
wife  from  remoying  the  child  of  the 
marriage,  aged  nine  years,  beyond  the 
jurisdiction  of  the  Court.  Fetitioner 
understood  that  his  wife  was  leaving  the 
Colony  for  Mauritius  that  day,  and  that 
she  had  no  intention  of  returning.  She 
intended  to  take  the  child  with  her. 
Petitioner  was  instituting  an  action  for 
divoroe  against  his  wife.  There  had 
been  considerable  delay  in  the  proceed- 
ings owing  to  difficulties  in  obtaining  a 
copv  of  the  marriage  certificate. 

Maasdorp,  J.,  saia  that  it  was  no  use 
giving  a  futile  order  interdicting  a  per- 
son who  was  about  to  leave  the  coun- 
try. An  order  would  be  granted  plac- 
ing the  child  in  the  custody  of  the  ap- 
glicaiit,  pending  a  further  order  of 
'ourt,  the  Sheriff  to  execute  the  order. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplet  ] 


KORNOLUM  y.  HIOHMAN 


■  I 


1905. 
July  12th. 

This  was  an  action  for  damages  for 
malicious  arrest. 

Mr.  Alexander  (for  the  defendant)  put 
in  a  letter  from  the  plaintiff's  attorneya 
stating  that  they  had  withdrawn  from 
the  ease. 

Upon  the  plaintiff's  name  being 
called,  there  was  no  appearance,  and 
the  Court  granted  absolution  from  the 
instance. 


SUPREME  COURT 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


ADMISSIONS. 


f      I90r>. 
JJuly  13th. 

Bfr.  Sutton  moved  for  the  admission 
of  Henry  Alfred  Ready  Clark,  as  an 
attorney  and  notary.  Cfounsel  said  that 
the  application  was  made  under  section 
17,  Act  27,  1883,  applicant  being  a  B.A., 
of  Oxford. 

Ordered  to  stand  over  for  production 
of  authorities. 

Later  in  the  day  Mr.  Sutton  referred 
to  ex  parte  Scanlon  as  an  authority  for 
the  application. 


Buchanan,  A.C.J.,  in  granting  the  ap- 
plication, said  that  at  the  time  the  pre- 
vious application  of  a  similar  nature 
was  maoo,  it  was  pointed  out  that, 
through  what  was  no  doubt  an  over- 
eight  m  the  Act,  applicants  could  obtain 
admission  without  having  passed  a  law 
certificate  examination.  The  defect  was 
one  that  should  be  remedied^  and,  in 
fact,  he  had  been  under  the  impression 
that  it  had  been  remedied,  but  counsel 
assured  him  that  that  was  not  so.  How- 
ever, as  long  as  the  statute  stood  as  at 
present,  the  applicant  was  entitled  to  bo 
admitted.  Leave  would  be  given,  as 
asked,  to  t^ke  the  oaths  before  the 
R.M.  of  Idutywa. 

Dr.  Greer  moved  for  the  admission  of 
Wm.  Tell  Pasohoud  Hutchinson,  as  an 
attorney  and  notary. 

Application  granted,  oaths  to  be  taken 
before  the  R.M.  of  Port  Elizabeth. 

Mr.  Benjamin  moved  for  the  admis- 
sion of  John  Brand  Ross  as  an  attor- 
ney, notary,  and  conveyancer. 

Application  granted,  and  oaths  admin- 
istered. 


PROVISIONAL   ROLL. 


SHEAR  AND  RYAN  V.  NORTJE. 

Dr.  Greer  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £200, 
with  interest  at  the  rate  of  10  per  cent., 
the  bond  having  become  due  by  reason 
of  the  non-payment  of  interest;  counsel 
also  applied  for  the  property  specially 
hyjpothecated  to  be  declared  executable. 

Order  granted. 


8HEPPARD  y.  MCINTOSH  AND  STEBB. 

Mr.  Burton  moved  for  the  final  ad- 
judication of  the  defendants'  estate  as 
insolvent. 

Mr.  Benjamin  appeared  for  the  de- 
fondant. 

Mr.  Burton  said  that  the  defendants 
had  filed  affidavits  objecting  to  the  final 
adjudication.  He  (counsel)  was  instruct- 
ed that  an  arrangement  had  now  been 
entered  into  between  the  parties,  by 
which  the  plaintiff  was  prepared  to  ac- 
cept a  certain  settlement  for  his  debt. 
Upon  this  settlement  being  confirmed 
by  the  Court,  the  plaintiff  waa  prepared 
to   withdraw  his   application. 

By  consent,  the  order  oiE  provisional 
sequestration  was  discharged  upon  the 
conditions  set  out  in  the  consent  paper 
filed. 


DUNCAN  V    SHAW. 


Mr.  Ronx  moved,  on  behalf  of  the 
plaintiff,  for  a  provisional  order  of  se- 
questration, to  be  suspended. 

Provisional  order  discharged' 


5eo 


II 


CAPB  TIliES"  LAW  BBFOBTO- 


DONELLAN  V.  ESTATE  CAROLUS. 

Dr.  Greer  moved  for  provkional  sen- 
tence on  a  mortgage  bond  for  £200,  with 
interest,  the  Ixjnd  having  become  due  by 
reason  of  the  non-payment  of  interest; 
counsel  also  applied  for  the  property 
specially  hypothecated,  to  be  declared 
ezecatable. 

Order  g^ranted. 


PAUL  V.  BAUMGARTEN. 

Mr.  J.  E.  R,  de  Villiera  moved  for  a 
decree  of  civil  imprisonment,  upon  a 
judgment  of  this  Court  for  £11  146.  5d. 

Defendant,  who  waa  stated  to  reside 
at  De  Aar,  did  not  appear. 

Decree  gri'anted. 


ZAGKON  V.  ENGELBRECHT. 

Mr.  Roux  moved  for  provisional  sen- 
tence upon  promissory  not<«  for  £&0  and 
£73  10s.  4d.,  respectively. 

Order  granted. 


8.  A.  BREWERIES  V.  8TBVEMS0N. 

Mr.  Watermeyer  moved  for  provi- 
sional sentence  for  £220,  balance  ut  pro- 
missonr  note,  and  for  judgment,  under 
Rule  329d. 

Order  granted. 


WALKER  V.  TORMAN. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  mortgage  boncl  for  £500,  with 
interest,  the  bond  having  become  due 
by  reason  of  the  non-payment  of  inter- 
est; counsel  also  appliecl  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable. 

Order  granted. 


FIELD  AND  CO.  V.  SOLOMON. 

Mr.    Bailey  moved   for  the  di^harge 
of  a  provisional  order  of  sequestration. 
Provisional  order  superseded. 


PAINTER  V.  WESTWOOD. 

Dr.     Greer    moved    for    a   provisional 
order  of  sequestration  to  be  made  final. 
Final  order  granted. 


MARAIS  V.  BARNARD. 

Mr.  Rowfion  moved  for  provisional 
sentence  on  a  promissory  note  for 
£360.  less  £54  paid  on  account. 

Order  granted. 


GILL  V.  AUGOOD. 

Mr.  Benjamin  moved  for  provisional 
sentence  on  a  mortg<age  for  £5,000,  with 
interest,  the  bond  having  become  due 
by  reason  of  tlie  non-payment  of  in- 
terest. Counsel  also  applied  for  t-he 
property  specially  hypotnecated  to  be 
declared  executable.  Mr.  Benjamin 
also  moved  for  provisional  sentence  on 
a  lease  for  £38,  rent  due,  and  judg- 
ment under  Rule  329d  for  ejectment 
from  certain  two  houses,  3  and  4,  Wes- 
ton Villas,  Sea  Point.  Counsel  said  he 
understood  that  a  consent  paper  had 
been  filed. 

Buchanan,  A.C.J. ,  said  that  an  order 
would  be  made  in  terms  of  consent 
paper. 

Mr.  Benjamin  said  thtA  the  consent 
pap^r  did  not  provide  for  the  property 
being  declared  executable,  and  he  would 
prefer  that  the  order  be  given  in  tenns 
of  the  summons. 

Buchanan,  A.C.J. ,  said  thwt  counsel 
had  elected  to  acept  the  consent  paper. 

The  matter  was  ordered  to  stand  over. 

Later  in  the  day  Mr.  Benjamin  said 
that  the  defendant  consented  to  judg- 
ment in  terms  of  the  summons. 

Final  judgment  was  given. 


THORN E  AND  8TRUBEN  V.  GELB. 

Mr.  Struben  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Mr.  Close  apposed  the  application, 
and  read  an  affidavit  by  Woolf  Gelb 
(the  defendant).  He  denied  thait  it 
would  be  for  the  benefit  of  the  credi- 
tors that  the  estate  should  be  sques- 
trated.  He  stated  that  it  would  be 
possible  to  liquidate  the  estate  under 
the  deed  of  assignment,  which  had 
been  entered  into.  Affidavits  by  other 
creditors  were  put  in  to  a  similar  eflfect. 

The  matter  was  ordered  to  stand  over 
until  the  IM  August  to  enaible  the  plam- 
tiflFs  to   file  answering   affidavits. 


ILLIQUID  ROLL. 


UOARB  AND  00.  V.  CARROLL,  j  j^j,y   jj^jj 

Mr.  Douglas  Buchanan  moved  for 
judgment  under  Rule  329d  for  £59  10s., 
balance  of  account  for  work  and  labour 
done,  with  interest  a  tempore  morae  and 
costs  of  suitw 

Order  grarabed. 


ZEBDERBERG  AND  DUNCAN  V.  LEVEN80N. 

Mr.  Douglas  Buchanan  moved  for 
judgment  unde.*  Rule  329d  for  £32  19s. 
lOd.,  balance  of  account  for  goods  sold 
and  delivered,  with  interest  a  tempore 
morae   and   cost   of  suit  . 

Order  granlted, 


u 


OAPB  TIMBS"  LAW  REPORTS. 


661 


IMPRBIAL  GOLD  STORAGE  V.  KLAAB. 

Mr.  Wabermoyer  moved  for  judgment 
under  Rule  329d  for  £373,  goods  sold 
and  delivered,  wkh  interest  a  tempore 
morae   and  costs   of   suit. 

Ordor   graixted. 


CAPB  TIMSS,  LTD.   V.  YBOMANB  AND  CO. 

Mr.  Sutton  moved  for  judgment  under 
Rule  329d  for  £33  h.,  advertising 
charges,  wJrh  interest  a  tempore  morae 
and  ooste  of  suit. 

Order   granted. 


W.  AND  G.  SCOTT,  LTD.  V.  CLAIN. 

Mr.  M.  Biasot  moved  for  judgment 
under  Rule  329d  for  £20  14b.  dd.,  goods 
sold  and  delivered,  with  interest  a  tem- 
pore morae  and  coste  of  suit. 

Order  granted. 


SWIFT  V.  COHBN. 

Dr.  Greer  moved  for  a  judgment  under 
Rulo  329d  for  £29  2s.  S^d.,  half-share 
of  promissory  norte,  with  intereet  a  tem- 
pore morae  and  ooets  of  suH. 

Order  graotod. 


BANK  OF  AFRICA  V.  DREYER. 

Dr.  Greer  moved  for  judgment  un- 
der Rule  329d  for  £37  Is.  7d.,  cash  lent 
and  advanced  by  way  of  overdraft,  in- 
terest, and  costs  of  suit. 

Order   granted. 


BISHOP  V.  BARNETT. 

Mr.  Ruasell  moved  for  judgment  un- 
der Rule  329d  for  £41  Ss.,  twdance  of 
purchase    price    of   certain    shares 

Order   granted. 


GENERAL  MOTIONS. 

RAUBENHEIMBR  V.  RAUBEN-  f       190.5. 

HEIMER.  ]  .July  13th. 

Mr.  P.  S.  T.  Jones  moved  for  a  de- 
cree of  divorce,  with  custody  of  the 
minor  child,  in  default  of  the  wife's  com- 
pliance widh  an  order  of  restitution  of 
conjugal  rights.  An  affidavit  of  ser- 
vice was  produced. 

Defendant  appeared,  and  said  that  she 
did  not  intend  to  return  to  her  hus- 
band. 

Decree  of  divorce  granted  as  prayed, 
defendant  to  have  access  at  all  reason 
able  times  to  the  child. 


Ex  parte  MABUYA. 

Mr.  Van  Zyl  moved  for  a  rule  «m 
under  the  Derelict  Lands  Act  to  be  made 
absolute. 

Rule  made  aljsolute. 


Ex  parte  ISAACS. 

Mr.  Bailey  moved  for  a  irule  nisi 
under  the  Derelict  Lands  Act  to  be  made 
absolute 

Rule '  made  absolute. 


BRILL  y.  MUTUAL  LIFE  INSURANCE  CO 

This  was  an  application  upon  notice  of 
motion,  calling  upon  the  respondent  com- 
pany to  show  cau»Q  why  they  should 
not  be  ordered  to  discover  certain  docu- 
ments to  the  attorneys  of  the  plaintiff 
in  the  action. 

Mr.  Burton  was  for  applicant,  Walter 
William  Brill,  of  East  London;  Sir  H. 
Juta,  K.C.  (with  him  Mr.  Upington),  was 
for  respondent,  the  General  Manager  for 
the  Mutual  Company  in  South  Africa. 

From  the  affidavits  it  appeared  that 
the  applicant  asked  for  an  order  on  the 
respondent  to  allow  his  attorneys  to  in- 
spect certain  papers,  documents,  and 
writinpfs  set  out  m  a  schedule  attached. 
Plaintiff  was  the  cessionary  for  value  of 
a  certain  life  policy  for  the  sum  of  £600 
effected  by  one  Edward  Richard  Camies, 
of  East  London,  with  the  Mutual  Insur- 
ance Company,  of  New  York.  The  as- 
sured had  since  died.  Plaintiff  was 
now  claiming  payment  of  the  proceeds 
of  the  policy,  together  with  any  other 
moneys  which  might  have  accrued.  He 
claimed  a  rijrht  of  inspection  by  his 
attorneys  of  certain  documents  in  pos- 
session of  the  company,  pertaining  to 
the  p<4licy  in  question.  This,  respondent 
refused  on  the  ground  that  an  inspection 
was  demanded  of  documents  which  were 
of  a  confidential  nature,  and,  being  iu- 
ter-departmental,  were  privileged. 

Sir  H.  Juta  said  that  a  number  of  the 
letters  referred  to  by  applicant  contained 
the  evidence  collected  with  a  view  to  the 
defence  of  the  case,  being  privileged  com- 
munications between  defendants  and 
their  attorney,  Mr.  Drake.  The  appli- 
cant did  not  state  which  letters  he 
wanted  and  to  what  thev  referred,  and 
th'*  defendants  wanted  further  particu- 
lars. His  (counsel's)  inquiry  went  to 
show  that,  although  a  party  was  en- 
titled to  facts,  he  was  not?  entitled  to 
disclosure  of  the  evidence  which  the 
other  party  had  got  for  the  purpose  of 
proving  those  facts.  Counsel  added 
that  before  the  case  would  come  to 
trial  it  would  bo  necessary  to  send 
a  commiissiofn  to  England,  because  one 
of  the  issues  in  the  case  would  be  the 
condition   of    the    assured    in    London, 


662 


"GAPS  TIMX8"  LAW  RBP0BT8. 


and  medical  testimony  would  be  called. 
Counsel  further  stated  that  defendants 
would  raise  no  obiection  to  immediaipe 
discovery  of  a  number  of  the  documents 
except  such  as  he  had  mentioned.  As 
to  the  others,  it  would  be  necessary  to 
decide  whether  khey  were  privileged. 

The  matter  was  eventually  ordered  to 
stand  over  until  August  1,  respondents 
undertaking  to  disclose  the  documents 
in  schedule  (b),  which  he  had  no  ob- 
jection to  do,  within  three  days. 


ESTATE    DE    KOCK    V.    MALMK8BUBY 
BOARD  OF  KXBCDTOBS. 

This  was  an  application  for  an  order 
declaring  the  applicant  entitled  to  ad- 
minister the  funds  belonging  to  the 
estate  of  her  late  husband,  now  in  the 
hands  of  the  Board,  at  her  discretion,  and 
for  the  beet  interests  of  the  estate,  and 
for  a  further  order  directing  the  Board 
to  pay  the  applicant  the  sum  of  £2,314 
12s.  dd.,  and  nand  over  all^  mortgage 
bonds  and  securities  beloniiring  to  the 
estate.  The  affidavit  of  the  applicant 
set  out  that  a  mutual  will  was  executed 
between  her  late  husband,  to  whom  she 
was  married  in  community  of  property, 
and  herself,  by  which  the  deponent,  as 
surviving  spouse,  was  appointed  sole 
heir  and  executrix,  bv  by  a  codicil,  which 
she  stated  she  signed  and  did  not  read, 
all  the  moneys  and  securities  were  to  be 
paid  into  the  respondent  Board,  which 
was  done.  The  deponent  had  requested 
the  Board  to  hand  over  the  moneys  and 
securities,  but  they  refused  to  do  so.  On 
the  £2,314  only  4^  per  cent,  interest  was 
allowed,  although  the  ruling  rate  of 
interest  on  first-clsss  securities  was  6 
per  cent.  It  was  a  stipulation  of  the 
will  that  the  survivor  was  to  be  sole 
and  universal  heir,  to  support  the  chil- 
dren untnl  such  times  as  they  reached 
the  age  of  majority,  and  pay  to  the 
children  such  sums  of  money  as  the 
survivor  was  able  to  pay  and  the  posi- 
tion of  the  estate  justified. 

The  answering  affidavit  of  the  secre- 
tary of  the  respondent  Board,  set  out 
that  the  applicant  never  acted  as  ad- 
ministratrix of  her  ^  husband's  estate. 
The  money  was  put  into  the  company 
from  time  to  time.  In  face  of  the  co- 
dicil, he  did  not  feel  justified  in  hand- 
ing over  the  money.  The  money  was 
invested  on  fixed  deposit,^  and  the  usual 
interest  was  regularly  naid. 

Mr.  Burton  for  applicant;  Mr.  Searle, 
K.C.,  for  respondent. 

Ai>plication  granted,  the  respondents 
ordez^  to  hand  over  the  assets  and 
securities  of  the  estate,  the  moneys  on 
fixed  deposit  to  be  paid  over  when  the 
deposits  fell  due,  the  costs  to  come  out 
pf  Itie  estate. 


INSOLVENT  ESTATE  VAN  DEM  HESTER 
V.  VAN  DEN  HEEVER 

Mr.  GrardfBuer  moved  on  behalf  of  the 
trmstee  in  the  insolvent  estate  for  an 
order  expunging  a  certain  claim  for 
£220,  which  had  been  proved  in  the 
estttte  by  the  respondent,  wife  of  the 
iiMolvent,  to  whom  she  was  married  out 
of  community  of  property,  and,  fur- 
ther, that  the  a{>plicant  be  allowed  fur- 
ther time  in  which  to  file  the  liquida- 
tion and  distribution  accounts,  owing 
to  the  delay  caused  by  liquidation  pend- 

inflT* 

Order  granted  expunging^  the  debts 
with  costs,  extension  of  tune  of  five 
monlihs  given  to  the  trustee. 


THE  MASTER  V.  WALTER. 

Mr.  Morgan  Evans  moved  for  an  or- 
der calling  on  the  respondent  to  file 
a  liquidation  account. 

Granted. 


VAN  ZYL  V.  OOHBSBO. 

This  was  tan  application  to  liave  a 
rule  restraining  the  respondent  from  di- 
verting certain  water  on  to  the  property 
of  the  applicant  made  absolute.  From 
the  applicant's  affidavit  it  appeared  that 
he  was  the  owner  of  certain  premises 
on  the  High  Level-road,  at  Sea 
Point.  During  the  heavy  rains  the  re- 
spondent, who  was  building  at  the  back 
of  applicants  premises,  diverted  certain 
storm-wMter  on  to  the  applicant's  pro- 
perty. The  garden  was  seriously  dana- 
aged,.  and  applicant  had  to  keep  his 
gardener  and  two  Kafirs  busy  endea- 
vouring to  minimise  the  damage. 

The  answering  affidavit  of  the  respon- 
dent stated  thwt  the  applicant  agreed  to 
withdraw  the  matter  if  the  respondent 
cut  out  certain  trenches.  Before  the 
work  was  completed  the  applicant  set 
down  the  motion.  Respondent  denied 
that  he  caused  any  storm-water  to  flow 
on  to  the  apphoant's  ground,  but  asid 
that  it  was  due  to  the  exceptionally 
heavy  rains  between  let  June  and  15th 
June,  and  the  situation  of  the  appli- 
cant's property.  Affidavits  adducing 
expert  evidenoe  set  out  that  the  erec- 
tion of  the  houses  Which  the  respondent 
was  building  would  reduce  the  natural 
flow  of  storm-water  on  to  the  appU- 
oant'e  land. 

The  replying  affidavit  of  the  apwi 
cant  stated  that  he  adhered  to  every- 
thing stated  in  the  first  affidavit,  and, 
further,  that  the  work  of  cutting  the 
trenches  was  not  carried  out  as  agreed 
upon.  It  was  merely  airreed  to  post- 
pone the  matter,  not  withdraw  it,  and 
during  the  week's  postponement  the  re- 
spondent did  pntoticaUy  notbins* 


"OAFE  Tnm*'  LAW  REPORTS. 


M3 


[Buchanan,  A.  C.  J. :  There  will  have 
to  be  an  action  in  aoT  oasew^  The  only 
question  is,  who  is  to  oring  it?] 

Mr.  Upington  was  for  the  applicant 
and  Mr.  Alexander  for  the  respon- 
dent. 

Mr.  Updngton  submitted  that  the  re- 
spondent himself  admitted  that  he  had 
diverted  water. 

Mr.  Alexander  submitted  that  every- 
thing was  in  dispute.  If  the  rule  was 
made  absolute,  it  would  prejudice  the 
respondent's  case,  by  implying  that  he 
haa  diverted  water  on  to  {he  applicant's 
ground. 

Rule  made  absolute,  pending  any 
proceedings  taken  by  the  respondent  in 
action  to  nave  it  set  aside,  with  leave 
to  recover  the  costs  of  the  motion  on  an 
action  being  brought,  costs  limited  to 
the  costs  of  opposition. 


Ex  parte  ESTATE  WAIT. 

Dr.  Greer  moved,  on  behalf  of  the 
executrix  testamentary,  for  an  order 
authorising  the  partition  of  a  certain 
farm  in  the  division  of  Humahsdorp, 
and  the  raising  of  a  fresh  bond ;  cer- 
tain minors  were  interested  in  the  es- 
tate. 

Order  granted  as  prayed,  l^r.  Attor- 
ney Goeahak  to  be  curator  ad  litem  to 
the  minors. 


J5»  parte  8TRTDOM. 

Mr.  P.  S.  T.  Jones  nK>ved  on  behalf 
of  petitioner,  who  resided  at  OiiJt«fhi)Oi-n. 
for  leave  to  sue  4n  forma  pavperit  for 
divorce. 

The  matter  was  referred  to  the  Cir- 
cuit Court. 


Ex  parte  OORTHUIZEN. 

Mr.  Joubert  moved  for  an  order  au- 
thorising the  Registrar  of  Deeds  to 
resristcr    certain    transfer. 

Order  granted  as  prayed. 


Eat  parte  LADAM. 

Mr.  M.  Biaset  moved  for  an  order 
authorising  the  Registrar  of  Deeds  to 
register  certain  transfer  of  property  in 
the  district  of  Umzimkulu.  Petitioner 
was  the  eldest  son  of  a  Chief,  who  had 
died  intestate.  The  Chief  was  married 
according  to  native  custom,  and  the 
petitioner  now  prayed  for  transfer  of 
bis  property. 

Rule  nin  granted,  to  be  returnable 
on_the  31st  August ;  rule  to  be  published 
once  in  the  "Kokstad  Advertiser"  and 
"  Imvo." 

Pottea  (August  Slst).  Rule  made  ab- 
solute. 


Ifl  re  IMSOLVEMT  ESTATE   VAN   D£R 
MERWE. 

Mr.  Benjamin  moved  for  leave  to  ex- 
tend time  m  which  to  lile  an  account. 

Extension  rrranted  for  three  months, 
as  prayed. 


In  rt    INSOLVENT   ESTATE  f        1905. 

MORAN.  (July    ISth. 

Insolvency,    foreign — Process    in 
aid — Comity. 

J/.,  trho  had  certain  immovable 
j)roperty  in  Uiis  Colony ^  had 
been  declared  innolveiit  in  tiie 
Trantnaal^  where  he  watt  domi- 
ciled. The  tnistees  in  thh 
Colony  now  applied  for  leave 
to  administer  the  e$tate  as  far 
as  the  property  within  this 
Colony  was  concerned.  The 
Court  granted  a  rule  nisi, 
calling  upon  all  j}ersons  inter- 
ested to  show  cause  why  the 
appointment  of  trMstees  by  the 
Transvaal  Court  should  not  he 
recognized  within  this  Colony, 


Mr.  Alexander  moved,  on  behalf  of 
the  trustees  in  insolvency,  for  leave  to 
administer  this  estate  so  far  as  cer- 
tain property  in  the  Peninsula  was  con- 
cerned. The  insolvency  had  taken  place 
in  the  Transvaal,  and  the  trustees  were 
appointed  in  the  Transvaal.  Counsel 
quoted  Stegmann  v.  Cohen  (1  C.T.R.,  82) 
in  support  of  the  application,  and  said 
that  the  order  would  not  prejudice  the 
rights  of  Cape  creditors,  who  ranked 
concurrently. 

Buchanan,  A.  C.  J.,  said  that  if  there 
had  been  a  request  from  the  Transvaal 
Court,  under  the  Imperial  Act,  the  Court 
would  have  complied  with  the  request, 
but  as  this  was  an  adjoining  British 
colony,  and  as  the  Transvaal  recognised 
the  judgment  of  this  Court  and  the 
orders  of  this  Court  in  insolvency,  any 
comity  which  would  obtain  even  between 
foreign  nations  should  certainly  apply 
as  between  the  two  Courts  ot^  these 
ooiioniee.  The  system  of  administra- 
tion in  insolvency  in  Uie  Transvaal 
was  almost  identical  with  the  system 
of  administration  here^  The  Trans- 
vaal Court  had(  in  the  case  of 
Stegmann,  recognised  the  power  of 
trustees  appointed  by  this  Court  to  ad- 
minister property  in  the  Transvaal,  and 
he  thought  this  Court  should  recipro- 
cate that  oomity,  and  gr^ant  an 
order  authorising  the  Transvaal  trustee 
in  this  case  to  administer  the  pro- 
perty of  the  insolvent  in  this 
colony.  That  procedure  had  been 
followed  in  the  Transvaal  and  was  he 
(the  Acting     Chief  Justioe)   tfhought   t^ 


564 


«< 


CAPS  TIMES"  LAW  BEPOBTO. 


good  procedure.  A  rule  nisi  would  be 
granted  calling  on  all  peraons  interosted 
to  ehow  cause  why  the  appointment  of 
the  applicants  as  trusteee  in  this  in- 
solvent estate  should  not  be  recog- 
nised in  this  Colony,  but,  of  course,  it 
would  be  on  condition  that  the  rights  of 
ciediiozB  in  this  colony  would  noi  be 
prejudiced;  the  rule  to  be  published 
once  in  the  "  Gk)vemment  U-azette  " 
and  once  in  the  "Cape  Times,"  and 
would  be  returnable  on  24th  August 
next. 


Ex  parte  estate  leibbrandt. 

Mr.  De  Waal  moYed  for  leave  to  raise 
a  loan. 
Order  granted. 


£ie  parte  estate  van  rensbubo. 

Mr.  De  Waal  moved  for  an  order  au- 
thorising the  Registjrar  of  Deeds  to  re- 
gister a  certain  transfer.  Counsel  stat- 
ed that  all  the  parties  interested  co<n- 
sented  to  the  order. 

Order  granted. 


WALKER  AND  JACOBSOHN  V.  MARAIS. 

Mr.  Gardiner  moved  for  leave  to  at- 
tach certain  land  at  &t.  James's  ad 
fundandam  jurisdictionem,  and  for  leave 
to  sue  by  ediotal  citation. 

Order  granted,  the  citation  being  made 
returnable  on  the  20th  August,  leave 
•being  granted  to  serve  intendit  with  no- 
tice of  trial,  personal  service  to  "be 
effected. 


Ex  parte  WKHR  AND  MARTIN. 

Mr.  Gardiner  moved  for  the  amend- 
ment of  a  certain  marriage  register,  and 
ante-nuptial  contract.  The  petition  set 
forth  that  the  firet^named  petitioner's 
real  name  was  Walton,  but  that  he  sub- 
sequently changed  hia  name,  being  at 
the  time  in  poor  circumstances— 
without  employment— and  thinking  that 
the  change  of  name  would  lead  to  bet- 
ter fortune.  He  married  the  second 
petitioner  imder  the  changed  name^  and 
now  applied  that  the  register  should  be 
amended  by  substituting  his  proper 
name.  Affidavits  were  read,  in  whicli 
the  deponents  stated  tha*  they  were  con- 
vinced that  the  change  of  name  was  bona 
fide  made,  and  that  the  first  petitioner 
adopted  the  new  name,  under  the  im- 
pression, in  his  depressed  state,  that  it 
would  bring  him  bctt<>r  fortune.  The 
Registrar  reported  in  favour  of  the 
petition. 

Order  granted. 


///   ir  ESTATE  NIIiSON. 

Mr.  M.  Biflset  moved  for  an  order  con- 
firming the  appointment  of  a  curator 
bonis  to  the  estate. 

Granted. 


£x  parte  coetzbe. 

Mr.  Sutton  moved  for  leave  to  enter 
into  a  certain  perpetual  servitude  on  be- 
half of  an  estate  in  which  minors  were 
interested.  The  Master's  report  was 
favourable. 

Leave  granted. 


WILLIAMSON  V.  BBROL. 

Mr.  Gardiner  moved  for  the  appoint- 
ment of  a  commission  de  bene  esse.  The 
affidavits  in  support  of  the  application 
set  forth  that  it  was  desired  to  take  the 
evidence  of  the  defendant  Bergl  on  com- 
mission in  London.  He  was  now  tra- 
velling on  behalf  of  a  company  in  Eur- 
ope, and  his  engagemervts  would  not  per- 
mit of  his  returning  to  the  Colony  be- 
fore the  trial. 

Mr.  Upington^  for  the  respondent 
(Williamson,  plaintiff  in  the  action),  read 
an  affidavit  by  the  respondent's  attor- 
neys, stating  that  the  taking  of  Bergl's 
evidence  in  London  would  be  expensive 
and  unnecessary,  and  that,  there  being 
direct  oonflict  of  tesitimony  between  the 
plaintiff  and  defendant,  it  was  essential 
t^at  the  defendant  should  give  evidence 
to  the  Court  in  person. 

The  Court  granted  the  application,  the 
evidence  of  the  defendant  to  be  taken 
before  the  Ist  October  in  London,  Mr. 
Oliver  being  appointed  commissioner, 
costs  to  be  costs  m  the  cause. 


LIN  LEY   V.  LIN  LEY. 

Divorce — Domicile. 


f      VJOr>. 
iJuly   13th. 


Where  a  wife^  irho  had  come 
to  this  Coloni/y  Hou(/ht  to  sue 
her  husband  for  reMUutum  of 
^conjugal  righla ;  the  husband 
having  promised  to  follow  her 
to  the  Colony^  but  never  having 
done  so :  the  Court  refused  to 
assume  jurisdiction. 


Mr.  dose  moved  on  behalf  of  the 
wife  for  leave  to  sue  by  ediotal  citation. 
Petitioner  alleged  that  she  came  out 
here  to  start  business  in  1898.  It  was 
arranged  that  the  respondent  should  fol- 
low her  to  this  country,  but  he  failed  to 
do  so,  and  hi<5  present  whereabouts  were 
unknown.  Petitioner  intended  to  sue 
her  husband  for  restitution  of  conjugal 
rights,  failing  which,  for  a  decree  of 
divorce  on  the  ground  of  desertion, 


"OAPB  TIMES'*  LAW  REPORTS. 


665 


Buchanan,  A.  C  J.,  said  he  did  not 
think  the  Court  had  jurisdiction.  There 
was  no  evidence  that  the  defendant 
changed  his  dcMuioile. 

Mr.  Cloee  said  he  Aubmitted  that  there 
was  proof  of  the  intention  of  the  hus- 
band to  ohangi^  his  domicile.  He  sent 
his  wife  out  heito,  and  told  her  be  would 
follow  her. 

Buchanan,  A.  C.  J.,  said  he  did  not 
think  this  was  a  case  in  which  the  Court 
could  assume  jurisdiction.  The  domicile 
of  the  parties  at  the  date  of  the  marriage 
waa  not  this  colony.  The  nmrriage  had 
not  bean  solemnized  in  the  colony  and 
the  defendant  had  never  been  in  this 
colonv.  It  was  trao  he  told  his  wife  he 
would  follow  her  here,  but  he  did  not  do 
so.  He  was  last  hea^rd  of  in  England. 
He  (the  Acting  Chief  Justice)  thought 
that,  m  matrimonial  procedure  especiMly, 
a  decree  of  the  Court,  even  if  granted, 
would  not  be  one  which  would  command 
respect  elsewhere.  He  did  not  think 
that  an  order  should  be  granted,  much 
as  one  would  like  to  assist  the  applicant. 


JSx  parts  E8TATK  VAN  DBR  WALT. 

Mr.  Van  Zyl  moved  for  leave  to 
amend  a  certain  order  of  Court  so  as 
to  authorise  the  purchase  of  property 
elsewhere  than  in  the  district  named  in 
the  original  petition. 

Leave  was  granted,  subject  to  the  ap- 
proval of  the  Master. 


JBx  parte  INSOLVENT  estate  ellis. 

Mr.  Roux  moved  for  the  appointment 
of  a  commission  to  take  evidence  at  Um- 
tata.  The  evidence  related  to  an  action, 
in  which  undue  preference  was  alleged. 

Order  granted,  the  R.M.  of  Umtata 
being  appointed  commissioner. 


Ex  parte  estate  scholtz. 

Mr.  Benjamin  moved,  on  the 
petition  oi  Agnes  Scholtz,  as  executrix 
in  the  estarte  of  the  late  Dr.  SohoHs, 
for  tile  aifctachment  of  certain  property 
ad  fundandam  jurudictionem,  and  for 
lewe  to  sue  the  Princess  Radziwill  by 
ediotal  citation.  From  the  pelition,  it 
appeared  that  the  Princess  had  nledged 
oeiiain  jewellery  with  Dr.  Schoitz  dur- 
ing his  lifetime,  and  thai  an  application 
had  been  made  for  payment  of  the 
amount  against  the  return  of  the  ^ro- 
peity.  After  some  time  a  communica- 
tion was  received,  requesting  that  the 
pledged  propeity  should  be  sent  to  Lon- 
don, with  instructions  to  hand  the  same 
over  to  the  Princess  against  payment 
of  a  sum  of  £160.  The  jewels  were  sent 
to  Messrs.  Vauxhall  and  Vauxhall,  sol- 
icitoTs,  London,  and  by  them  handed 
over  to  Mr.  Charles  Otto,  representing 
%\^  r^pondieiYt.     {n  Noveinber,  1904.   a 


letter  was  received  by  applicant  from 
Mr.  Otto  statdng  that  the  jewels  were 
in  his  custody,  and  that  he  was  without 
instructions  as  to  how  they  should  be 
disposed  of.  The  pledged  property  had 
since  been  returned  to  Cape  Town,  and 
was  now  in  the  custody  of  Messrs.  Van 
Zyl  and  Buissinne,  applicant's  attor- 
neys. Applicant  intended  to  inartitute 
an  action  against  the  Princess  for  £160, 
the  amount  represented  by  the  pledge, 
and  she  desired  that  the  jewellery 
should  be  declared  executable  for  such 
judgment  as  she  might  obtain.  The 
res{K>ndent  was  not  residing  within  the 
jurisdiction  of  the  Court,  and  her 
whereabouts  were  to  the  petitioner  un- 
known. 

Buchanan,  A.CL  J.,  asked  counsel  how 
it  was  proposed  to  effect  service  of  the 
citation   upon   the  respondent. 

Mr.  Benjamin  said  that  he  supposed 
sidMtituited  service  would  probably  have 
to  be  made,  as  respondent's  movements 
in  Europe  were  not  known. 

Buchanan,  A.  C.  J.,  said  that  the  Prin- 
cess seemed  to  spend  a  good  deal  of  her 
time  in  Paris,  and  if  the  citation  were 
publiiftied  in  one  oi  the  leading  Parisian 
newspafwrs  it  might  possibly  come  to 
her  notice. 

Leave  was  granted  to  attach  the  pro- 
perty ad  funaandam  juriidictionem  and 
to  sue  by  ediotal  citation,  citation  to 
be  returnable  on  the  1st  November,  per- 
sonal service  to  be  effected,  failing 
wUch  service  on  Mr.  Charles  Otto,  of 
London,  and  one  publication  in  Le 
Tem-ps"    (Paris). 

Po$tea  (September  26).  Leiave  was 
granted,  in  Chambers  to  set  down  this 
case  for  hearing  on  November  9. 

Pottea  (November  Wf,  Mr.  Benjamin 
moved  for  judgment  under  Rule  319,  the 
defendant  having  been  barred  for  de- 
fault of   plea. 

The  Court  granted  judgment  as 
prayed. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maasdorp.] 


PROVISIONAL  ROLL. 


BOHERVEL  BROS.  V.  BELDON  f       1905. 

AND  ANOTHER.  |  July  14th. 

Mr.  Watermeyer  moved  for  provisional 
sentence  on  certain  five  promissory  notes 
for  £543,  with  exchange  and  costs  of 
suit. 

Order  granted, 


666 


f< 


CAPE  TIBCEB"  LAW  REPORTS. 


LAWRENCE  AND  CO.  AND  ANOTHBB  V. 
LBVBN80HN. 

Mr.  Bailey  moved  for  the  final  adjudica- 
tion of  the  defendant's  estate  as  insol- 
vent. 

Order  granted. 


PURCELL,  YALLOP  AND  EVERETT  V. 
MBTJE. 

Dr.  Greer  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as  m 
solvent. 

Order  gnantcd. 


ILLIQUID  ROLL. 


KEEP  BROS.  v.  BDOH. 

Mr.  Bailey  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as 
insolvent. 

Order  granted. 


BULL  V.  WALSH. 

Mr.  Watermeyer  ^  moved  for  the  dis- 
charge of  the  provisional  order  and  re- 
lease of  the  defendant's  estate  from 
sequestration. 

Provisional  order  discharged. 


FLETCHER'S  WHOLESALE  V.  ROSSOUW. 

Mr.  Swift  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as  in- 
solvent. 

Order  granted. 


BNYHAN    V.    EXECUTORS  ESTATE  ESTER- 

HUY8EN. 

Mr.  Bailey  moved  for  provisional  sen- 
tence for  £5,000  on  certain  conditions  of 
sale,  with  interest  and  costs,  and  for 
judgment  on  certain  deed  of  suretyship. 

Provisional  sentence  granted,  sub- 
ject to  production  of  usual  certificate. 


PERL  AND  CO.  Y.  MCKENDRICK. 

Mr.  Swift  moved  for  a  decree  of  civil 
imprisonment  upon  an  unsatisfied  judg- 
ment of  this  Court  for  £6  26.  7d.,  and 
taxed  costs. 

Decree  granted. 


S.  A.  PRODUCE,  WINE  AND  BRANDY  CO. 
V.  DU  TOIT. 

Mr.  Benjamin  moved  for  provisional 
sentence  for  £112  136.  4d.,  price  of  goods 
sold  and  delivered  for  which  defendant 
had  promised  to  pay  in  brandy. 

Order  granted. 


f       1905. 
DEVISTON  V.  HILDEBRANDT.  j  j^j      j^j^ 

Mr.  Alexander  moved  for  judgment 
under  Rule  329d  for  transfer  and  con- 
veyance of  certain  land,  and,  alternative- 
ly, cancellation  of  sale  and  refund  of 
£140  paid,  and  costs.  Plaintiff  had 
paid  full  purchase  price  and  transfer 
expenses. 

Judgment  as  prayed,  transfer  to  be 
effected  by  August  1,  failing  which  sale 
to  be  cancelled,  and  purchase  price  and 
transfer  expenses  to   be  refunded. 


MCIYOB  V.  DB  BRUTN8. 

Mr.  Watermeyer  moved  for  judg- 
ment under  Rule  329d  for  £138  2s.  Id., 
less  £130  paid  on  account,  goods  sold 
and  delivered. 

Order  granted. 


VAN  NIEKERK  V.  FABEB. 

Mr.  Gardiner  moved  for  judgment  un- 
der Rule  329d.  Counsel  said  that  this 
was  an  action  by  ediotai  citation,  and 
that  the  notice  in  the  *'  Gazette "  was 
not  published  until  June  29,  so  Uiat 
thf)  reauisite  month  had  not  elapsed.  He 
had,  therefore,  to  apply  for  an  exten- 
sion of  the  return  day. 

The  return  day  was  extended  until  Au- 
gust 24. 


GENERAL  MOTIONS. 

Ex  parte  jeffbry. 

Mr.  Sutton  moved  for  a  rule  nm 
under  the  Derelict  Lands  Act  to  be  made 
absolute. 

Rule    made    absolute. 


lUx  parte  wo  LP  A  A  rd  and  others. 

In  this  matter  a  son  (one  of  the  heirs 
of  certain  testators)  had  become  insol- 
vent. His  interest  in  the  estate  was  sold 
by  his  trustee  to  one  Becker  who  now 
desired  to  take  transfer  on  pay- 
ment of  transfer  duty  on  the  trans- 
fer from  the  trustee  to  himself. 
Becker  could  only  have  purchased  this 
property  subject  to  the  onus  of  paying 
a  certain  sum  into  the  joint  estate  be- 
queat.hed  to  the  heirs.  This  sum  he  pro- 
posed to  raise  on  a  mori«af:e  on  the 
property  bequeathed  and  sold  to  him. 
The  Registrar  of  Deeds  reported  that  in 
his  opinion  such  mortgage  oould  not  be 
raised  consistently  with  the  terms  of  the 
will  of  the  original   testatoirs,  and  that 


**OA»»B  TtMES"  LAW  BEPCmTS. 


567 


as  the  bequest  had  vested  in  the  in- 
solvent prior  to  his  insolvency,  bis  es- 
tate was  bound  to  pay  transfer  and  suc- 
cession duty. 

The  Master  recommended  that  the 
prayer  of  the  petition  be  granted  on 
condition  that  ^e  double  transfer  duty 
and  the  succession  duty  be  paid. 

Postca  (August  3).  The  Court  granted 
an  order  in  terms  of  the  Master's  report. 


MCMULLEN  V.  TRUSTEES,  SOUTH  APRICaN 
HEBREW  DIVIDING  BENEFIT  SOCIETY. 

Mr.  P.  8.  T.  Jones  moved  to  make  ab- 
solute a  rule  nisi  calling  upon  the  re- 
spondents to  show  cause  why  funds 
standing  to  their  credit  in  the  Gape  of 
Good  Hope  Savings  Bank  should  not  be 
declared  executable  to  a  provisional 
judgment;  obtained  by  applicant  in  the 
Magistrate's  Court. 

Barnard  Israel,  one  of  the  rospoiidents, 
appeared  in  person.  Ho  denied  that  they 
had  had  notice  of  the  summons  in  the 
Lower  Court,  and  said  that  the  plaintiff, 
Dr.  McMullen  had  refused  payment  of 
his  accounts.  Replying  to  the  Court, 
Israel  said  that  the  plaintiff  claimed  £11 
Ifls,  6d.,  and  the  funds  in  the  bank 
amounted  to  £10.  Respondents  said 
that  they  only  owed  him  £9  ITs.  6d. 

Rule  made  absolute,  with  costs. 


•Fjt  imrte  POTGIETEE  (MTNOHj. 

Mr.  Benjamin  moved  for  an  order  au- 
thorising the  Master  to  pay  out  certain 
sum  of  £800,  to  enable  Petitioner  to  ac- 
quire a  property,  so  as  to  continue  his 
farmm^;  operations  in  the  Oudtshoom 
district. 

An  order  was  granted,  authorising 
the  Master  to  advance  the  minor's  share, 
the  whole  transaction,  including  the  paes- 
mg  of  the  bond,  to  be  subject  to  the 
approval  of  the  Master. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 

TWEEDIE    TRADING    CO.    V.  f        1905 
•GARDINER  AND  BASTON.      (July    14th. 

This  was  an  action  for  -debt  incurred 
by  the  pkintiffs  on  behalf  of  the  defend- 
ants, in  connection  with  the  return  of 
certain  West  Indian  cattlemen,  who  had 
mutined  on  the  barque  Nordkin  in 
September  last. 

The  claim  was  based  on  an  agreement 
Bsder  which  the  plaintiffs  had  victualled 


the  oatUemen^  and  had  paid  the  ex- 
penses of  their  return  to  an  Amerioan 
port,  the  defendants  agreeing  to  relieve 
them  of  all  responsibilities  and  expenses 
in  Cape  Town.  From  the  pleadings  it 
appeared  that  it  was  the  duty  of  the  de- 
fondants  to  pay  the  expenses  in  connec- 
tion with  their  netum  to  Barbadoes. 
The  posponsibility  was  on  the  ship  to 
prevent  the  men  escaping,  and  take 
them  somewhere,  as  they  could  not  land 

I  "^^  x^5^®^  *^®  immigration  laws.  The 
plaintiff  company  emploved  police  to 
watch  the  men  on  boaid.  The  oattle- 
™n  y«re  sent  back  by  another  barque. 
Mid  £100  was  ^aid  for  their  passage. 
For  viotuallmg,  it  cost  the  plaintiffs  £6 
IDs.,  police  protection  £6  10s.  6d.  and 
for  removing  the  fittings,  which'  was 
the  duty  of  the  defendants  under  the 
charter  party,   £14  17s.  6d. 

The  defendants  in  their  plea  sot  out 
that  the  plaintiffs  agreed  to  return 
the  men  to  a  United  States  port,  and 
they  (defendants)  were  only  liable  for 
any  expenses  incurred  in  Cape  Town. 
As  the  men  had  never  been  landed,  the 
defendants  submitted  that  no  expenses 
had  been  incurred  in  Capo  Town,  and 
they  denied  all  liability.  Defendants 
further  claimed  that  the  cattle  had 
lx?en  detained  for  24  hours  in  an  un- 
suitable enclosure  at  the  Docks,  and 
they  claimed  in  reconvention  £107  lOs. 
for  damages. 

T^^^^1  H.^  Juta.  K.C.  (with  him  Mr. 
Douglas  Buchanan),  was  for  the  piain- 
}^ff ;  and  Mr.  Close  (with  him  Mr. 
uutsche)    was    for  the  defendants. 

James  Matthew  Keene,  representative 
of  the  African  Shipping  Co.,  who  acted 
as  agents  for  the  plaintiffs,  stated  that 
the  vessel  was  berthed  on  the  22nd  Sep- 
tember. The  cattle  were  discharged 
m  the  usual  kraal  at  the  South  Arm. 
Ihe  discharge  was  finished  on  the  24th 
bepteraber,  and  within  a  day  or  so  she 
went  into  the  hay.  The  cattle  were 
detained  because  the  defendants  had 
not  paid  the  freight  until  the  28th 
>optember.  .  It  was  not  until  the  30th 
beptember  he  got  the  bills  of  lading  3 
to  11.  the  remaining  three  bein«  un- 
inaportantw  On  the  29th  Mr.  Plant  told 
witnws  be  paid  the  deposit  of  £170 
into  the  Supreme  Court,  and  promised 
to  hand  over  the  biUs  of  lading  and 
witness  allowed  him  to  have  the  cattle, 
ihe  bills  of  ladin«r  were  not  forthcom- 
iiig  until  the  following  day.  The  con- 
signees looked  after  the  watering  and 
feeding  of  the  cattle.  The  cattle 
were  not  m  a  good  condation  on  ar- 
rival; a  large  percentage  died  on  the 
voyage.  When  the  vessel  went  into 
the  Bay,  Mr.  Plant  said  it  would  be 
cheaper  to  get  the  cattlemen  to  re- 
move the  fittmgs.  The  cattlemen  not 
only  removed  the  fittings,  but  they 
cleaned  the  ship.  Under  the  immi- 
gration laws  of  the  Colony,  the  cattle- 
men could,  not  land.  Witness  em- 
ployed pohoe  to  watch  the     ten  West 


568 


<c 


CAPE  TIMES"  LAW  REPORTS. 


Indians  on  boajxl.  The  sum  of  £6  10b. 
was  paid  by  witness  for  police  super- 
viaion.  £14  ITa.  6d.  was  paid  to  the 
white  cattlemen  for  removing  the  fit- 
tinge.  Witness  subeeauently  paid  £100 
to  another  ahip  to  taJce  tKe  West  In- 
diatifi  back,  witness  had  to  victtuJ 
the  ten  coloured  noen,  which  cost  him 
£6  15s.  On  the  27th  September  wit- 
ness drew  the  defendants'  attention  to 
the  insufficieat  food  given  to  the  ani- 
mals at  the  Dooks. 

Cross-examined  by  Mr.  Close:  It 
would  be  the  ocptain's  duty  to  make  a 
protest  at  Barbados.  The  captain,  in 
his  protest,  stated  that  he  put  into 
Barbados,  not  only  on  account  of  the 
mutiny,  but  on  account  of  being  short 
of  coal  and  water.  The  protest  was 
extended  to  Cape  Town.  Witness 
knew  nothing  of  uie  cattlemen  mutiny- 
ing through  the  bad  food  supplied. 
On  the  ZiSrd,  witness  withdrew  the 
claim  for  freight  on  the  dead  aninoals, 
but  that  was  not  the  oause  of  the  de- 
fendants delaying  the  |>ayment  of  the 
freight.  Witness  detained  sufficient 
oatue  to  cover  the  freight  charges.  It 
was  on  the  23rd  thait  the  claim  for 
freight  on  the  dead  animals  was 
abandoned.  On  the  25th,  notices  were 
sent  to  the  defendants  aJbout  insuffi- 
cient feeding.  Defendants  took  ac- 
tion in  the  Supreme  Court.  aiKl  an 
order  was  made  for  the  delivery  of  the 
cattle  OQ  payment  of  £170.  Witness 
did  not  know  that  the  defendants  ap- 
plied for  the  delivery  on  that  day,  and 
nad  been  refused.  As  soon  as  Mr. 
Plant  showed  witness  the  deposit,  a 
telephonic      communication     was      des- 

{>atched  to  the  Harbour  Board  to  re- 
ease  the  stock,  Mr.  Plant  pro- 
mising witness  to  let  nim 
have  the  bills  of  lading  that  day. 
Witness  did  not  make  any  arrangements 
with  Mr.  Gardiner,  as  Mr.  Plant  had 
given  all  the  instructions.  The  de- 
fendants, in  a  letter,  denied  all  liability 
for  the  return  of  the  men  to  America, 
and  on  October  8  a  further  letter  denied 
liability  for  the  other  items  claimed. 

Re-examined  by  Sir  H.  Juta:  It  was 
untrue  that  Messrs.  Gardiner  and  Plant 
handed  witness  all  the  bills  of  lading 
on  the  29th. 

John  Joseph  Holland,  in  the  employ 
of  the  Harbour  Board,  said  that  the 
mules,  etc.,  landed  on  the  occasion  in 
question  were  landed  in  the  usual  place, 
and  that  the  usual  precautions  were 
taken.  The  Harbour  Board  had  nothing 
to  do  with  the  feeding. 

John  Bellam,  accountant  for  the  New 
Zealand  Shipjjing  Company,  produced 
accounts,  showing  payments  maoe  to  the 
caltlemen.  It  was  m  coneec|uence  of 
instructions  from  the  captain  of  the 
Nordkin,  and  after  coUaooration  with 
him,  that  the  amounts  had  been  appor- 
tioned. 

Cross-examined  by  Mr.  Close:  He 
paid  Cook  and  Son  for  the  men  to    re-   | 


turn  to  New  York.  That  was  via  Eng- 
land. 

Sir  H.  Juta  closed  his  case. 

Gwendoline  Gardiner,  sister  of  the  de- 
fendant Gardiner,  said  that  she  came  on 
board  the  ship,  with  her  brother,  at 
New  Orleans.  A  short  way  out  some  of 
the  men  mutinied.  She  beard  the  cap- 
tain say  that  the  grumbling  was  about 
the  food,  coal,  and  water.  She  was 
at  the  office  when  the  agreeooent  was 
drawn  up. 

Sir  H.  Juta  objected  to  evidence  as 
to  what  passed  at  the  making  of  the 
agreement. 

[Hopley,  J. :  The  agreement  is  quite 
clear  ^  at  all  events,  it  was  not  for  Miss 
Gardiner  to  agree.J 

Mr.  Close  submitted  that  tlie  agree- 
ment was  an  ambiguous  one,  and  he  was 
entitled  to  ask  the  witness  what  her 
impression    of  it  was. 

Hopley,  J.,  said  he  could  not  see 
any  ambiguity  in  the  contract,  and  at 
counsel's  request,  noted  that  the  evi- 
dence was  tendered  to  explain  the  mean- 
ing the  parties  attachea  to  the  words 
"  Cape  Town." 

Charles  Gardiner,  partner  in  the  de- 
fendant firn),  said  tne  firm's  business 
consisted  chiefly  of  exporting  live-stock 
from  North  and  South  America.  Wit- 
ness was  at  New  Orleans  when  the  cattle 
were  shipped.  The  ship  put  into  Barfoa- 
docs,  and  ten  new  cattlemen  were  en- 
gaged. Four  days  after  thejr  left  the 
mutiny  oommenced,  and  witness  and 
the  captain  wrote  each  other  letters  on 
the  ship. 

Witness  further  stated  that  he  wrote 
to  the  captain  protesting  against  the 
ship  calling  at  Barbadoes  for  bunkering, 
and  drawing  attention  to  the  unsatisfac- 
tory  food  given  to  the  cattlemen,  and 
warning  him  that  the  ship  would  be 
held  responsible. 

Mr.  Close  said  he  would  formally  ten- 
der the  evidence  as  to  the  interpretation 
of   the  contract. 

PEIopley,  J.:  Same  ruling  as  in  the 
case  of  the  last  witness.    I  will  note  it] 

Examination  continued :  He  never  de- 
via^ted  from  the  pQ»ition  he  took  up  in 
the  correspondence.  He  repudiated  the 
liability  aKo^ether.  Under  the  charter 
party  the  ship  wa«  liable. 

John  E.  McOullum,  deliverv  clerk  in 
the  employ  of  the  Harbour  Board,  de- 
posed that  he  signed  the  deliverv  tickets 
produced.  The  last  delivery — 160  mules 
— iwas  made  on  the  morning  of  the  1st 
October.  The  daifces  upon  which  the 
lighters  went  out  with  the  corpses  of 
cattle  were  maaked  on  the  tickets.  Three 
mules,  tneo  donkeys,  and  four  horses 
were  taken  oui  on  September  30. 

By  the  Court:  There  waA  nothing 
aibout  the  kraal  likely  to  kill  anv  oattle. 

Mr.  Gardiner  (recalled)  stated  that  he 
had  paid  the  expenses  of  the  men  who 
had  to  return  from  Barbadoes,  and  had 
also  paid  the  firoig'ht  on  the  animals  in 


"OAPE  TlMfiJa"  LAW  REPOtlTS. 


569 


Chtpe  Town.  Afier  the  order  of  Court 
on  September  29,  wHneas  went  with  Mr. 
Plant  to  the  Sitendard  Bank,  and  had 
the  draft  honoured.  They  were  inform- 
ed by  Mr.  King,  an  official  of  the  bank, 
that  tihe  billfl  would  be  ready  in  an 
bourns  time.  Later  in  the  dav  Flant  told 
witnees  tJiat  he  had  the  bilLs,  and  wit- 
ness unde(r9tood  that  he  (Plani)  was  go- 
in^  down  at  onoe.  Witness  went  at 
nudnight  to  get  the  animals,  but  was 
told  tboy  were  not  released,  and  h  was 
not  until  the  following  night  that  he 
got  podseasion  of  the  animals,  and  took 
them  <to  has  place  at  Mowbray,  where 
two  of  the  muJes  subeequently  died.  Wit- 
ness kept  a  watchman  at  the  Docks  dur- 
ing the  whole  time  (the  caMle  were  there. 
At  that  time  the  enclosure  was  unsult- 
aMo  on  account  of  building  operationei 
which  were  going  on.  He  considered 
that  the  fact  that  only  two  of  the  mules 
died  w«fl  proof  th<at  the  general  health 
of  the  consignment  was  good. 

Cross-examined  by  Sir  H.  Juta.:     He 
did  not  contend  that  he  could  get  the 
cattle  before    paying  the  freight^       He 
maintained   that  he  could  get  his  con- 
signment   from    a    ship     without     the 
bills    of     lading:      that     was,     as     an 
act    of    grace;     legally,  he  supposed,  he 
could  not.    He  contended  that  the  cattle 
were    i)l legally    detained   from    the   29th 
until  the  30th,  because  the  bilk  of  lad- 
ing were  produced  on  the  29th,and  there 
should  have  been  delivery  that  day.  He 
could  not  say  when  the  cattlemen  were 
last  paid — that  was  Mr.  Plant's  business 
—nor  ooukl  he  say  up  to  what  date  they 
were  paid.     Some  of  the  men  were  paid 
for  the  trip;  others  by  the  month. 

Re-examined  by  Mr.  Close:  He  paid 
his  last  instalment  on  the  freight  on  the 
28th. 

Mr.  Close  closed  his  case,  and  counsel 
were  then  heard  in  argument  on  the 
facts. 

Hoplcy,   J.,    said   be       thought      the 
agreement   clearly   meant   that  the    de- 
fendants  undertook  to  return   the   men 
to  Barbadoes,  and  to  pay  the  expenses 
of     the     men     here     after     the     ship 
had      completed   *  the      discharge     and 
the    other    expenses    claimed    for.      He 
therefore  found  for  the  plaintiff  in  con- 
vention for   £125,  with  coets.      On  the 
claim  in  reconvention  he  did  not  think 
that  there  was  any  illegal  detention,  or, 
even  if  there  were  detention,   that  any 
cattle  had  died  as  a  result.     He  there- 
fore gave  judgement  for  the  defendanito 
in  reconvention  (plaintiffs  in  convention) 
on  the  claim   in    reconvention. 

[Plaintiff*s  Attorneys :  Van  Zyl  and 
Buissinn^.  Defendant's :  Silberbauer, 
Wahl  and  Fuller.] 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  Ma  asdobp.  ] 


BEX  V.  BE  A  BIGHT  AND  CO. 


f       1905. 
iJuly  18th. 

This  was  a  motion  to  make  absolute 
a  rule  nisij  calling  upon  Messrs.  James 
Searight  and  Co.,  a^  agents  of  the 
wrecked  steamer  Clan  Monroe,  to  show 
cause  why  they  should  not  be  ordered  to 
remove  certadn  dynamite  and  gun-cotton 
from  the  Clan  MoDiroo  by  Thursday 
nwming,  and,  upon  their  failing  to  do 
so.  wh^  the  Grovermnent  should  not  be 
authorised  to  remove  the  same  at  their 
expense,  and  why  they  should  not  be 
ordered  to  pay  the  costs  of  these  pro- 
ceedings. 

The  affidavit  of  Mr.  H.  Hawkins, 
manager  of  Messrs.  James  Sea- 
right  and  Co.,  Ltd.,  stated  that  he 
had  perused  a  copy  of  the  affidavit  made 
by  tne  Chief  Inspector  of  Explosives 
(Mr.  Foakes).  Immediately  after  the 
wreck  of  the  Clan  Monroe  had  been 
communicated  to  him  (Mr.  Hawkins),  he 
put  himself  in  communioation,  b^  cable, 
with  the  owners  of  the  steamer  m  Glas- 
gow, and  asked  for  instructiions.  On 
Saturday  evening,  the  8th  July,  he  re- 
ceived a  reply,  and  on  Monday,  the  10th 
July,  he  advertised  for  tenders  on  the 
"no  cure,  no  pay"  principle  for  salving 
the  cargo.  In  response  to  the  adver- 
tisement five  tenders  were  xecedved,  and 
after  referring  them  he  received  cabled 
instructions  on  Wednesday  evening,  the 
12th  inst.,  to  accept  the  tender  of  the 
(7ape  Town  Stevedoring  Co.  On  Thurs- 
day he  communicated  wdth  the  successful 
tenderers.  In  the  meantime  he  airranged 
for  immediate  steps  to  be  taken  for  the 
commencement  of  the  salving.  On 
Thursday  morning  the  second  and  third 
officers  of  the  Clan  Monroe  went  out  to 
Kommetje,  but  they  came  back  in  the 
evening,  and  reported  that  the  sea  was 
too  rough  to  go  off  in  a  boat  to  the 
wreck.  On  Friday,  the  14th  inst,  tihe 
successful  tenderers  went  out  to  the  spot, 
and  made  an  endeavour  to  reach  the 
ship,  but  found  it  impossible,  owing  to 
the  sea  that  was  runnmg.  On  Thursday 
witness  received  a  notification  that  an 
application  was  to  be  made  to  the  Court 
by  the  Government  on  the  following 
day,  but  that  applacation  was  not  pro- 
ceeded with.  He  was  surprised  now  to 
learn  of  the  applicaifaion  made  to  the 
Court  on  Monday.  On  Saturday,  de- 
ponent went  to  the  scene  of  the  wreck 
m  company  with  Mr.  Wilshere,  of  the 
Customs,  and  Mr.  Foakes,  when  it  was 
found  to  be  impossible  to  reach  the 
wreck,  as  the  sea  was  Inoaking  over 
her.  On  Sunday  the  weather  had  mod- 
erated somewhat,  but  it  wss  not  possi- 
ble for  a  boat  to  put  off  to  the  wrecked 
YeaeeL      On  Monday  the  weather    was 


670 


«f 


CAI'B  TtMXS"  LAW  UVPOUt^ 


Atill  moderaiing,  and  if  it  continued  the 
tenderen  hoped  to  get  off  in  a  boat 
and  to  commence  active  operations.  A 
considerable  part  of  the  gear  reauired 
for  the  salving  operations  was  aboard 
the  wreck,  and  lines  would  have  to  be 
passed  from  the  vessel  to  the  shore, 
which  could  only  be  done  when  the 
eca  had  moderated  sufficiently  to  allow 
a  boat  to  get  alongside.  He  submitted 
that  the  applioataon  was  unnecessary 
and  premature.  He  protested  against 
the  suggestion  that  the  Government 
should  now  interfere  in  the  salving,  and 
repudiate  any  kability  for  loss  or 
damage  that  might  result  from  inter- 
fering in  such  operations. 

The  replying  affidavit  of  Mr.  Foakes 
stated  that  be  visited  the  wreck  on 
Sunday  and  agpain  on  Monday,  and 
that  it  was  possible  on  both  days  to 
get  on  board  and  commence  opera- 
tions. CouIlf^el  also  read  an  affi- 
davit bv  Mr.  H.  W.  Carotin  (of 
Messrs.  Reid  and  Nephew,  Government 
attornevs),  stating  that  he  called  at  the 
respondent's  office  on  Monday  morning, 
and  informed  Mr.  Alex.  Phillips  'bhat 
an  application  would  be  made  to  the 
Supreme  Court  that  morning. 

Mr.  Evans  moved.  Mr.  Benjamin  ap- 
peared to  show  cause. 

Mr.  Benjamin  submitted  that  the 
right  to  salve  the  cargo  was  purely  one 
v<»3ted  m  the  owners,  who  were  doing 
everything  they  possibly  could, 

Maasdorp,  J.,  said  that  was  a  general 
question.  The  real  question  was  that 
there  was  danger  to  the  pubUo  in  the 
vicinity  of  the  wreck,  and  that  danger 
must  be  removed. 

Mr.  Benjamin :  They  are  doing  all 
they  can  to  avoid  danger. 

[Maasdorp,  J. :  And  have  the  in- 
habitants been  informed  of  the  danger?] 
I  cannot  say  they  have. 
fMaasdorp,  J. :  It  would  be  well  for 
those  responsible  to  make  sure.  Then 
anybody  who  remains  in  the  neighbour- 
hood w^ill  know  the  risks.] 

Mr.  Benjamin  said  he  understood  that 
the  Govenmdent  had  arranged  to  have 
police  guards  to  keep  the  puolic  away. 

[Maasdorp,  J. :  People  go  there  at 
their  own  risk.  I  am  thinking  of  the 
inhabitants  within  the  danger  zone.] 

Mr.  Benjamin  said  the  great  anxiety 
of  the  owners  was  to  salve  the  cargo, 
not  so  much  for  the  value  of  the  cargo, 
but  on  account  of  the  danger.  Counsel 
commented  upon  the  absence  in  our 
ports  of  the  apparatus  necessary  for 
salving  operations,  and  said  that  the 
Civil  Commissioner,  as  the  harbour  au- 
thority of  the  district,  could  have  taken 
charge  o?  the  wreck. 

Mr.  Evans  submitted  that  the  respon- 
dents had  not  exercised  due  despatch 
in  the  preparations  for  carrying  out  the 
salving  operaitions,  and  pointed  out  that 
they  had  it  on  affidavit  that  the  weather 
haa  been  fit  to  take  out  a  boat  from 
the  shore  to  the  vessel. 


Maasdorp,   J. :     VHieii  •  nuisance  ia 
proved   to    this   Court,    the   Court   has 
jurisdiction  to  order  those  who  are  re- 
sponsible    for     the     nuisance     to     re- 
move    it    or     authoidse      others      who 
are  willing  to  remove  it  to  do  so.    Now, 
it  is  admitted  that  the  existence  of  the 
wreck    there,    with    the    explosives    on 
board,  is  a  source  of  danger,  and  it  is 
quite    certain    that    this    Court    would 
have    the    jurisdiction   to    interfere    to 
order  the  removal  of  the  dan^r  there 
oxi.^ti  ng.         The    question    ansea    now 
whether  circumstances  have  arisen  call- 
ing   upon    the  Court    to    exercise    that 
jurisdiotion.    There  ^  ia^  conflict    of    evi- 
dence upon   the  principal   facts  in  the 
case,   and  that  is  as  to  the  endeavours 
on  the  part  of  those  responsible  for  the 
nuisance  to  remove  it,  and  their  power, 
or  that  of  any  other  person,   in  taking 
means  for  its  removal.       Now,   in  that 
conflict   of  evidence,    I    am    not       now 
sati.<»fied  that  it  was  possible  for  the  re- 
spondents to  have  done  more  than  they 
end  do.    I  may  say  I  am  not  satisfied 
upon   that  point,   though   there  are  cir- 
cumstances of  suspicion  that  they  might 
have  done  more  than  they  have  done. 
The   respondents   will    have   to   bear   in 
mind   that  if   any   serious   consequences 
arise   through    any   neglect   which    may 
hercaher  be  proved,   they  may   be  re- 
spr>iisiblo  for  the  consequences,   if  it   is 
injury  to  property  or  life,   in  more  re- 
8f.ecte  than  one,    but,   on   the  whole,    I 
have    come    to  the    concluaiou    that    no 
ca^e   has   yet   been    made  out   for   this 
Court  to  interfere.    On  the  one   hand, 
the  applicants  have   produced   evidence 
stating  that   it  would  be  quite  possible 
to  do  more  than  the  respondents  have 
done.      The    respondents     have     given 
etiually  s€ix>ng  evidence  that  they  have 
made   every    effort    that    lay    in.    their 
power.      The    Court     would,  therefore, 
give  a  futile  order  unless  it  were  con- 
vinced   that    it   gave    an   order   which 
could  be  carried  out.    If  the  Court  were 
now  to  give  ao  order  on  the  respond- 
ents to  effect  a  work  which  they  could 
not  possibly  do,  it  would  give  an  order 
which  could  not  be  of  any  value.    The 
applicant  has  come  forward  in  the  in- 
terest of  the  public  and,  for  that  reason, 
although   I  consider  that  the  Court  is 
not  now  in  a  position  to  make  any  or- 
der,  the  Court  is  not  in  a  position  to 
say  that  he  was  not  justified,  with  his 
knowledge  of  the  circumstances,  in  mov- 
ing  in   the   mat;ter.    When   the   Court, 
therefore,  refuses  this  order,  it  makes  no 
order  as   to  the  costs  in   this  case.    I 
may  also  point  out  that  it  haa  now  been 
suggested  that  if  the  Government  wish 
t>  undertake  the  woiic   themselves,   no 
opposition  will  be  offered.    If  that  is  so, 
the  Court  need  not  interfere.    But  the 
suggestion    ia    made    that    the       Court 
should   now   express  an   opinion    as   to 
what  the   respective  rights   and   liabili- 
ties of^  the  parties  will  oe  in  oaee  these 
operations  are  carried  out    A  case  has 


"CABE  TIMES"  LAW  BEP0RT8. 


671 


been  cited  very  much  in  point,  bui  it 
Bmoimte  to  this,  that  the  -work  was  first 
done,  and  then  the  Court  was  asked  to 
decide  as  to  the  liabilities  of  the  parties, 
and  oonsequently,  I  give  no  exiK^ssion 
of  opinion  at  all  as  to  what  the  legal 
consequences  will  be  if  the  GoTernment 
undertake  the  work.  If  the  liability  is 
laid  down  in  any  sfeatiHe  or  in  any 
common  law  rules  on  the  subject,  the 
parties  must  consult  the  law  m  order 
to  be  guided  dn  their  action.  No  order 
will  be  made  on  the  application,  and  no 
order  as  to  costs  will  be  given. 


[Before  the  Hon.  Mr.  Justice  Hoplky.1 


RBX     V.     MCCOMA     AND      S         19(J*). 

ANOTHER.  (July    18th. 

Hoplcy.  J.,  reviewed  the  facts  in  the. 
case  of  Ilex  v.  John  M*Coma  and  Willem 
MaiffaSy  on  a  charge  of  destroying  a 
koodoo  at  Steytlervillo,  and  held,  as  the 
first  prisoner  pleaded  guilty  and  was 
called  to  give  evidence  before  he  was 
sentenced  against  the  second  man,  the 
conviction  must  be  quashed. 


A>  jMrte  NOHLAJI. 

Mr.  Roux  moved  for  an  order  on  tho 
Registrar  of  Deeds  to  pass  transfer  from 
the  original  grantee  to  the  eldest  son. 

A  rule  was  granted,  calling  upon  all 
persons  concerned  to  show  cause  on  the 
31st  August,  1905,  why  an  order  should 
not  be  granted  as  prayed,  the  rule  to  be 
served  personally  on  Edward,  Richard, 
Ura,  and  Samson  Nohlaji,  to  be  advertis- 
ed once  in  the  "  Eokstad  Advertiser." 

Postea  (September  1).  Rule  made  ab- 
solute. 


GENERAL  MOTIONS. 

Ke  parte  badenhorst. 

Mr.  Benjamin  moved,  on  behalf  of  the 
petitioner,  for  orders:  (a)  interdicting 
and  restraining  the  respondent,  Rudolf 
Badenhorst,  from  alienating  any  goods 
or  rights  belonging  to  the  farm  Raasf on- 
tein ;  (b)  for  the  attachment  of  all 
moveable  assets  of  the  said  Rudolph 
Badenhorst ;  (c)  restraining  the  Stan- 
dard Bank  of  S.A.  (Colesberg)  and  Jo- 
hannes Jacobus  Nerval,  and  the  firm  of 
Schuti  and  De  Jager  from  parting  with 
any  of  the  funds  or  assets  of  Baden- 
horst; (d)  compelling  Rudolph  Baden- 
horst to  furnish  the  applicant  with  sufii- 
cient  funds  to  enable  her  to  prosecute 
her  action  for  divorce  and  costs. 

Order  granted  in  terms  of  a,  b,  and  c, 
of  the  application  to  operate  as  an  in- 
terim interdict.  As  io  (d),  a  rule  nut 
granted  calling  upon  Badenhorst  to  fur- 


nish the  t)etitioner  with  £40  to  enable 
her  to  institute  her  action.  Order  to  be 
served  personally,  and,  if  neoessary,  to 
be  telegraphed,  rule  returnable  Septem- 
ber 12. 


REX  V.  ZIMMERMAN  AND  OTHERS. 

This  was  an  application  to.  have  the 
accused,  who  were  at  present  confined 
in  Ualedon  Gaol,  on  a  charge  of  murder, 
released  on  bail.  The  matter  had  pre- 
viously been  before  the  Acting  Chief 
Justice,  when  he  ordered  further 
evidence  to  be  taken,  and  counsel 
citing  the  evidence,  submitted  that  there 
was  every  reason  to  assume  the  priciou- 
crs'  innocence  while  they  were  in 
gaol,  and  that  they  would  bo  greatly 
prejudiced  in  their  defence. 

Mr.  Burton  for  applicants ;  Mr.  Evans 
for  the  Crown. 

Hopley,  J.,  said  that  tho  application, 
though  formally  opposed,  was  not 
streimously  omjosed  by  the  Attorncy- 
General's  Office,  and  he  thought, 
under  all  the  circumstances,  it 
would  be  right  to  admit  the  ac- 
cused to  bail.  Zimmerman's  case 
was  on  a  somewhat  different  basis  to 
the  others,  and  bail  in  his  case  should 
be  somewhat  heavier.  The  other  appli- 
cants would  be  admitted  to  bail,  them- 
selves in  £200  and  sureties  to  the  satis- 
faction of  the  Magistrate  in  a  like  sum. 
In  regard  to  Zimmerman.  the  bail 
would  be  fixed  at  £500  in  the  accused 
himself  and  £500  in  sureties  to  the 
satisfaction  of  the   Resident   Magistrate. 


Ejc  parte  LOUW  AND  OTHERS. 

Mr.  Benjamin  moved  for  leave  to 
transfer  certain  property  in  the  estate 
of  tho  first-named  petitioner  and  his 
deceased  spouse.  The  first-named  peti- 
tioner was  94  years  of  age.  Consent 
papers  were  filed. 

Order    granted. 


Ex  parte  MARAIB. 

Mr.  De  Waal  moved  for  the  appoint- 
ment of  a  curator  ad  litems  to  represent 
certain  minors  in  the  partition  of  pro- 
perty. 

Order  granted,  Mr.  H.  J.  Swanepool 
being  appointed  curator,  costs  to  come 
out  of  the  minors'  inheritance. 


Ex  parte  KEMP. 

Mr.  Benjamin  moved  for  authority  to 
sell  and  transfer  certain  property. 
The  petition  set  forth  that  the  petitioner 
owned  certain  property  which  he  wish- 
ed now  to  transfer  to  his  children,  in 
lieu  of  other  property  bequeathed  to 
them.       There  was  a  provision  in    the 


672 


If 


CAPE  hmeb"  law  itEPoiiTs. 


will  that  the  property  bequeathed  should 
not  be  alienated  by  the  heirs.  It  was 
stated  that  the  property  belonging  to 
the  children  was  overrun  with  prickly 
pear,  and  the  petitioner  had  no  means 
to  rid  the  land  of  the  ix»8t.  The  pro- 
perty which  he  sought  to  transfer  was 
more  valuable.  The  Master  recom- 
mended that  the  annlication  should  be 
granted,  subject  to  the  same  restriction 
being  placed  on  the  projxjrty  to  bo 
transferred   to   the    minors. 

Leave  was  granted  to  the  petitioner 
to  sell  his  ana  his  wife's  portion  in  the 
farm  and  to  transfer  it,  on  condition 
that  he  transfer  to  his  children,  born 
and  to  be  born  of  his  marriage,  free  and 
unencumbered,  the  property  set  forth  in 
the  petition. 


Ex  parte  VAN  ZYL. 

Mr.  Russell  moved  for  confirmation 
of  the  sale  of  certain  property  purchased 
by  the  petitioner  from  her  husband's 
estate,  of  which  she  is  executrix.  The 
sale  was  by  public  auction,  and  the  sum 
paid  was  stated  to  be  of  fair  value. 

Order  granted. 


Ejt  parte  PAPEBT. 

Mr.  Alexander  moved  for  leave  to 
register  a  certain  contract  after  mar- 
riage, having  the  effect  of  an  ante-nup- 
tiaf  contract.  It  was  stated  in  the 
petition  that  the  petitioner  and  his 
wife  fully  intended  to  be  married  out  of 
community  at  the  time  of  the  marriage. 
Thejy  were  married  before  the  Acting 
Resident  Magistrate  of  Cape  Town,  but 
did  not  understand  at  the  time  that 
they  were  being  married,  believing  that 
they  were  only  going  through  a  form  of 
registration.  Last  Sunday  they  went 
through  the  religious  ceremony,  which 
they  had  understood  to  be  required  to 
complete   their  marriage. 

Leave  granted. 


SUPREME  COURT 


Before  the  Hon.  Mr.  Justice  Maasdorp.] 


PROVISIONAL  TRUSTEE. 


In  re  INSOLVENT  estatb 


I 


mr,. 


McLBOD.  <  July    1 9th. 

Mr,  Benjamin  moved,  on  the  peti-tion 
of  Blaine  and  Company  and  other 
creditoriB.  for  the  appointment  of  a  pro- 
visional trustee  in   the  insolvent  esta/te 


of  John  Moliood,  trading  as  a  grooer 
and  provision  merchant  under  the  style 
of  Ford  and  MoLeod  at  Port  E/licabeth. 
C^ounsel  said  that  he  understood  that 
the  estate  was  voluntarily  Burrendered 
yesterday  (Tueed&y),  and  thai  the  sur- 
render was  accepted  by  a  Judge  in 
Ohambers.  Peititioners  sug^sted  that 
Mr.  Charles  Anderson,  of  Port  Eliza- 
beth, was  a  fit  and  proper  penson  to 
be  appointed  trustee  until  such  time  as 
a  trustee  wa^  elected,  and  prayed  that 
he  should  be  appointed  and  be  vented 
with  power  forthwith  to  endorse  cheques 
payable  to  the  estate,  and  to  pay  the 
t»ame  into  the  bank  for  collection,  and 
also  to  dispose  of  the  perishable  assets 
and  receive  the  proceede  thereof.  Coun- 
sel added  that  his  learned  friend,  Mr. 
Roux,  he  understood,  had  an  applica- 
tion to  make,  but  he  was  not  sure  that 
it  was  in  the  same  estate. 

Maasdorp,    J.,   said       that    cm   order 
would  be  granted  as  prayed. 

Mr.  Roux  inunediat-ely  afterwards  roee 
und  moved,  on  the  petition  of  Mr. 
James  McLagan,  manager  for  Forbes 
and  Caulfield,  merchants,  Port  Eliza- 
beth, for  his  appointment  as  provisional 
trustee  in  the  insolvent  estate  of  John 
MoLcod.  The  petitioner  stated  that  his 
firm  were  creditors  to  the  amount  of 
£2,975  186..  while  the  total  liabilHiee 
— according  to  the  schedules  which  had 
been  filed— were  £5,259. 

Maasdorp,  J.,  said  that  it  was  strajige 
tha^t  they  should  now  have  this  applica- 
tion in  view  of  the  order  just  made. 

Mr.  Benjamin  explainea  that  he  had 
been  led  to  believe  that  his  learned 
friend  was  moving  in  quite  a  different 
estate. 

Maiasdorp,  J.,  asked  whether  Forbea 
and  Caulfieid  wore  secured  creditors? 

I  understand  that  they  are  secured  by 
bond. 

Maasdorp.  J.,  eaid  that  no  order  would 
be  m>ade  on  this  application,  in  view  of 
the  order  already  made. 

Mr.  Roux  applied  for  costs  againet  the 
insolvent  estate. 

[Maasdorp,  J. :  There  seems  to  be  a 
rush  for  the  appointment  of  provisional 
trustee.  The  applicant  in  this  master 
applies  for  his  own  sake  merely.  No 
order  will  be  made.] 


DOUGLAS  v.  FISHER. 

This  was  an  action  brought  by  John 
F.  Doug'lae,  briok^yer.  Yzerplaats,  Cape 
Division,  against  Thomas  Fisher,  of 
Maitland,  to  recover  a  sum  of  £50  in 
respect  of  an   alleged   saJo  of  ground. 

The  declaration  set  out  that  on  the 
29th  June,  1904,  defendant  lent  to  plain- 
tiff A  sum  of  £15  sterling.  In  or  about 
September,  1904,  plaintiff  and  defendant 
en/tered  into  a  verbal  contract  by  which 
it  was  agreed  that  plaintiff  should  sail 
and  defeodojit  should  buy  for  £66  oer- 


"CAPE  TiBlEft"  LAW  REt>OBtd. 


67:^ 


tain  portion  of  redeemed  uuitreni  land. 
It  was  further  agreed  between  the 
parties  that  the  i$um  of  £15  referred  to 
should  be  taken  in  part  |>aynient  of  the 
purchase  price.  Plaintiff  had  at  all 
times  been  willing  to  pass  transfer 
against  payment  of  the  balance  of 
purchase  price,  and  had  tendered  and 
hereby  again  tendered  transfer.  Ho 
prayed  for  judgment  for  £50,  with  in 
terest  a  tempore  morae^  alternative  re- 
li€»f,  and  costs  of  suit. 

Defendant,  in  his  plea,  denied  that 
he  had  purohased  from  plain<tiff  land  at 
Yzerplaats  or  elsewhere.  He  instructed 
his  agent,  Mr.  Martin,  to  inspect  the 
plaintiff's  title  deeds,  but  no  agreement 
of  sale  was  ever  entered  into  between 
pjlaintiff  and  defendant.  In  re-conven- 
tion defendant  claimed  judgment  for 
£15,  money  lent  to  plaintiff  on  the 
29th    June,    1904. 

Mr.  Gutsche  was  for  plaintiff;  Dr. 
Greer  was  for  defendant. 

Mr.  Gutsche  asked  for  leave  to 
amend  the  declanation  by  subbtitutiug 
for  "in  or  about  September,  1904,"  the 
words  "at  the  same  time." 

Dr.  Greer  objected  to  the  proposed 
amendment,  and  said  that  if  allowed, 
it  woirid  set  up  a  totally  different  case 
from  the  one  they  had  now  come  to 
Court   to  meet. 

Mfuisdoip,  J.,  said  that  the  amend- 
ment would  be  allowed,  and  the  ques- 
tion mentioned  by  Dr.  Greer  could  be 
raised  afterwards  if  necessary. 

John  F.  Douglas,  bricklayer,  Yzer- 
plaats. said  that  he. applied  to  defen- 
dant in  June  of  last  year  for  a  loan  of 
£15.  Defendant  asked  him  if  he 
would  let  him  have  the  land  for  £65, 
and  take  the  £15  in  part  payment.  Wit- 
ness agreed  to  do  so.  It  was  arranged 
in  September  that  Fisher  should  give 
him  £30  more  before  he  passed  trans- 
fer. There  was  nothing  settled  in 
June  about  passing  transfer.  Mr. 
Rosen  at  that  time  held  the  deeds  as 
security  for  a  debt.  Fisher  never  asked 
him  for  the  return  of  the  £15.  Wit- 
ness took  no  steps  in  the  matter  until 
the  end  d  the  year.  Mr.  Carmiohael, 
Mr.  Rosen's  agent,  then  told  him  that 
Mr.  Fisher  had  not  paid  up,  and  wit- 
ness entered  into  an  agreement  to  pay 
off  his  (Douf|[las*8)   debt. 

Cross-examined:  On  the  27th  April 
witness  received  a  summons  at  the  in- 
stance of  the  defendant,  claiming  pay- 
ment of  the  sum  of  £15.  Witness  then 
issued  in  self-defence  a  summons  for 
pajment  of  the  balance  of  purchase 
price. 

James  Carmichael,  manager  for  Mr. 
Rosen,  furniture  dealer,  said  that  his 
firm  took  the  deeds  from  plaintiff  as 
security  for  a  debt  of  about  £50.  Plain- 
tiff came  in  Septeniber  for  the  deeds, 
and  witness  went  with  him  to  see  Mr. 
Martin.  Witness  could  not  wait,  and 
he  a^peed  to  leave  the  deeds  with  Mr. 
Martui,  upon  the   latter  giving  him  a 


receipt.  He  had  since  pressed  Martin 
for  payment  of  the  money  or  return 
of  the  deeds.  Witness  had  treated 
the  transaction  throughout  as  a  sale  to 
Fisher. 

Mr.  Gutsche  closed  his  oase. 

Thamaji  Fisher,  the  defendant,  said 
the  plaintiff  had  been  in  his  em- 
ployment as  foreman  bricklayer.  In 
June  last  plaintiff  came  to  him  and 
said  he  was  "  in  a  bit  of  a  hole,"  hav- 
ing no  money  wherewith  to  pay  in- 
terest on  a  mortgage.  Witness  lent 
him  £15,  but  got  no  receipt.  x\t  that 
interview  nothing  was  said  about  the 
purchase  of  property.  Witness  was 
told  by  his  foreman  (Potter)  at  the  end 
of  August  that  Douglas  had  some 
plots  for  sale.  W^itness  asked  Douglas 
one  morning  for  the  money,  and  Doug- 
las asked  him  to  buy  two  plots,  and  to 
allow  the  £15  to  be  retained  as  part 
payment.  He  said  witness  could  pay 
the  balance  when  he  pleased.  Witness 
said  he  would  think  over  it.  Later  on 
he  asked  Douglas  to  take  the  title- 
deeds  to  Mr.  Martin  in  Strand-street ; 
that  gentleman  was  auditing  witness's 
books  at  the  time.  It  was  not  until 
Martin  told  him  that  witness  knew 
the  deeds  were  held  by  Mr.  Rosen. 
Witness  told  Martin  to  send  the  deeds 
back,  as  he  had  not  the  £30  to  pay  at 
that  time.  Witness  wanted  to  get 
hold  of  the  property  as  security  for  the 
£15  he  had  lent  Douglas,  and  he  ex- 
pressed his  willingness  to  pay  £15,  and 
the  rest  in  three  months.  Martin  told 
him  that  this  was  not  accepted.  Wit- 
ness did  not  agree  at  any  time  to  a 
sale.  Witness  did  not  agree  to  give 
a  post-dated  cheque.  Martin  said  he 
had  suggested  giving  a  post-dated 
cheoue,  conditionally  upon  witness 
ratifying  it.  He  sued  Douglas  in  the 
Magistrate's    Court    for    the    £15. 

Cross-examined  by  Mr.  Gutsche. 
It  was  arranged  in  the  first  place  that 
the  £15  should  be  deducted  from 
Doufi[las*s  wages,  and  witness  instruct- 
ed his  foreman  accordingly,  but  it  was 
not  done.  Witness's  only  connection 
with  Martin  was  that  he  employ- 
ed the  latter  to  audit  his  boolcs. 
He  understood  that  Douglas  had  the 
title-deeds  in  his  possession.  He  had 
not  seen  or  given  instructions  to  Martin 
before  Douglas  took  the  title-deeds  to 
his  office. 

George  G.  Martin,  accountant,  said 
his  first  knowledge  of  the  matter  was 
upon  Douglas  coming  to  his  office  with 
the  title-deeds.  Witness  made  out  a 
receipt,  the  terms  of  which  were  sug- 
fi:ested  by  Carmichael.  Witness  acted 
in  the  bona  fide  belief  that  there  had 
been  a  sale  from  Douglas  to  Fisher.  He 
had  had  no  instructions  Irata  Fisher 
on  the  matt'er.  When  witness  told 
Fisher  that  there  was  a  debt  of  £30 
against  the  deeds.  Fisher  was  surprised, 
and  said  it  would  be  better  to  return 
the  title-deeda.       Witness  suggested  to 


574 


"OAPB  TIMES"  LAW  REPORTO. 


him  that  it  would  be  better  to  try  to 
arrange  terms,  in  order  to  secure  the 
£15  lent  to  Douglas.  Witness  tried  to 
make  arrangements  with  Rosen.  Fisher 
would  not  agree  to  give  a  post-dated 
cheque. 

Edward  Potter,  carpenter,  in  the  em- 
ploy of  the  defendant,  said  he  paid  the 
men's  wages,  and  Fisher  instructed  him 
to  deduct  so  much  a  week  from  Doug- 
las's wages  to  pay  off  the  £15,  but  wit- 
ness did  not  do  so,  as  Douglas  said  he 
was  in   a  **  tight   corner." 

Tlie  plaintiff  (recalled)  said  Potter 
never  tried  to  stop  any  part  of  his 
wages. 

Dr.  Greer  closed  his  case,  and  counsel 
heaving  been  heard  in  argument  on  the 
facts. 

Maasdorp,  J.:  The  plaintiff's  case  is 
that  in  Juno  he  desired  to  obtain  a 
loan  of  £15  from  the  defendant,  but 
that  the  defendant,  who  had  heard 
that  the  plaintiff  had  land  for  sale, 
suggested  instead  of  the  loan  going 
through  tlioy  should  come  to  some  ar- 
rangement for  the  purchase  of  the 
land,  and  tlien  he  would  let  him 
have  £15  as  part  payment  of  the  pur- 
chase price.  He  agreed  to  the  pro- 
position made  by  the  defendant,  and  a 
contract  was  entered  into  by  which  the 
land  was  sold  for  the  sum  of  £65.  £15 
was  paid  on  the  spot,  and  £50  remained 
due.  The  defendant  denies  the  pur- 
chase of  this  property,  and  says  that  the 
only  thing  that  happened  was  the  lend- 
ing of  the  £15  to  the  plaintiff,  which  was 
to  be  repaid  by  stoppages  of  part  pay- 
ment of  his  salary.  If  the  ease  rested 
there  it  would  certainly  be  very  diffi- 
cult to  decide  the  issue,  but  the  ques- 
tion arises  whether  there  are  other  cir- 
cumstances which  throw  light  upon  this 
case,  and  whether  the  Court  can 
gather  from  anything  that  was  said  or 
wrijtten  by  either  of  the  parties,  that 
which  would  go  to  corroborate  the  state- 
ment made  by  the  plaintiff.  After  re- 
viewing the  evidence,  His  Lordship 
gave  judgment  for  the  plaintiff  for  £50 
upon  the  plaintiff  tendering  to  the  de- 
fendant the  necessai-y  documents  to  pass 
transfer  of  the  land,  the  defendant  to 
pay  costs. 

[Plaintiff's  Attorney:  G.  Trollip. 
Defendant's :     G.   J.   O'Reilly.] 


bank  in  Belfast,  and  that  respondent  had 
removed  the  tobacco  to  the  farm,  Noo- 
dcosfontein,  Aliwal  North  district. 

Interdict  granted,  with  leave  to  all 
parties  interested  to  move  to  have  it  set 
aside. 


APPEALS. 


jEiT  parte  VILJOKN. 

Mr.  Burton  moved  as  a  matter  of 
urgency  for  an  interdict  retraining  Fer- 
dinand Wm.  Roberts,  of  Lady .  Grey, 
district  of  Aliwal  North,  from  removing 
from  a  certain  farm  in  the  district  of 
Aliwal  North  a  quantity  of  tobacco  ob- 
tained from  petitioner,  who  resided  at 
Belfast,  district  of  Lydenburg,  Trans- 
vaal. Petitioner  said  that  the  respondent 
obtained  from  him  1,221  lb.  of  uncut  tobac- 
co, valued  at  £45  15s.,  on  a  fradulent  rc- 
presentatioD  that  he  had  funds  at  the 


WATSON  AND  MALCOLM  V.  WILLIAMS. 

This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Middel- 
berg,  in  an  action  brought  by  the  pre- 
sent respondent  against  the  appellants 
for  9s.,  balance  of  wages,  alleged  to  be 
due. 

It  appeared  from  the  record  that  the 
respondent  had  been  cmi^oyed  by  the 
appellants  as  a  carpenter,  at  Is.  lO^d. 
an  hour.  He  was  entitled  to  £11  8s. 
9d.  wages,  but  the  appellants  only  paid 
him  £10  19s.  9d.,  withholding  the  bal- 
ance, as  -er  agreement,  for  quarters 
provided  for  the  respondent.  The 
Magistrate  gave  judgment  for  the  plain- 
tiff, with  costs,  and  held  that  the  agree- 
ment was  unwarrantable  and  inequit- 
able. 

Mr.  Burton  was  for  appellants ;  rc- 
sf>ondont  in   default. 

Counsel  submitted  that  the  agreement 
was  clearly  proved,  and  that  the  Magis- 
trate erred  in  his  judgment.  The  Mag- 
istrate himself  found  that  such  an  ar- 
rangement had  been  entered  into  be- 
tween the  parties. 

Maasdorp,  J. :  'Plaintiff  consented  to 
forego  so  much  of  the  wages  in  respect 
of  tne  quarters  which  were  at  his  dis- 
posal. He  did  not  actuallv  oooupy  them, 
but  he  agreed  to  forego  t^ose  wages  for 
the  right  he  would  have  to  occupy  those 
buildings.  This  agreement  was  clearly 
proved  before  the  Magistrate,  but  the 
Magistrate  held  that  it  was  an  unreason- 
able thing.  That  is  a  ground  upon 
which,  I  think,  the  Magistrate's  judg- 
ment should  not  have  proceeded.  Plain- 
tiff is  not  entitled  to  recover  this  alleged 
balance  of  wages.  The  Magistrate's 
judgment  must  be  reversed  to  judgment 
for  the  defendants,  with  oosts  in  tiiis 
Court  and  the  Court  below. 


KRUOBB  V.  DU  PISANI. 

Magistrate's    jurisdiction — Coun- 
ter-claim. 

Where  a  counter-claim  in  excess 
of  the  jurisdiction  is  brought 
in  a  Magistrate's  Court^  the 
Magistrate  must  take  evidence 
as  to  dy,  bona  fides  of  the 
cminter-cliiim. 


This  was  an  appeal  from  a  judgment 
of   the  Resident  Magistrate  of  Willow- 


« 


OAPB  TIMB8''  LAW  REPOBTO. 


570 


more  in  ao  actiou  brought  by  the  re- 
Bpnondent  against  the  appellant  for  £50, 
with  interest  a  tempore  morae,  for  rent 
alleged  to  be  due  by  virtue  of  a  lease. 
Mr.  P.  S.  T.  Jones  was  for  appellant; 
there  was  no  appearance  for  Teepondent. 

Mr.  Jones  said  that  the  defendant  had 
a  oouuter-olaicn  for  work  and  labour  done 
amounting  to  £49  13s.  9d.,  which  was 
beyond  the  Magistrate's  jurisdiction,  and 
hn  submitted  that  the  Magistrate  erred 
in  not  taking  evidence  as  to  whether  the 
counter-claim  was  bona  fide.  He  sub^ 
mitted  that  the  case  should  be  remitted 
to  the  Magistrate  to  take  evidence  on 
the  counter-claim. 

Maasdorp,  J. :  The  oaiie  will  be  sent 
back  to  the  Magistrate  in  order  to  a£- 
certain  whether  this  is  a  bona  fide  claim 
that  the  defendant  sets  up,  and,  if  he 
comes  to  the  conclusion  that  it  is,  then 
he  will  be  unable  to  proceed  further  in 
trying  the  ease.  The  parties  may  then 
proceed  to  their  remedy  in  a  court  of 
higher  ju-^sdiction.  The  respondent 
must  pav  oosts  of  appeal,  costs  in  the 
court  below  to  remain  in  the  discretion 
of  the  Magistrate.  For  the  present  the 
judgment  of  the  Magistrate  is  reversed, 
with  costs. 


HEYDEHBTCH  V.  ABDUBHAM. 

This  waB  an  appeal  from  a  judgment 
of  the  Assistant  Kesident  Magistrate  of 
Gape  Town  in  an  action,  in  which  the 
appellant  sued  the  respondent  upon  a 
promissory  note  for  £110. 

From  the  record  it  appeared  that  the 
note  in  question  was  dated  the  17th 
August,  1903,  and  was  sigrned  by  the 
defendant,  promising  to  pay  a  sum 
of  £110  on  the  6th  Novem.ber, 
1903,  to  Abdol  Gaffoor,  of  25,  Pope- 
street,  Salt  River.  The  note  was  en- 
dorsed by  Gafifoor,  and  appellant  sued  as 
the  legal  holder  thereof.  The  defence 
was  that  the  amount  due  under  the  note 
had  been  extinguished  bv  payment  in 
account  with  Abdol  Gaffoor.  Defend- 
ant further  said  that  the  note  was  sign- 
ed by  him  in  blank,  and  that  it  was 
fraudulently  filled  in  as  £110;  the  cor- 
rect amount  being  £10. 

The  plaintiff  had  taken  over  the  note 
from  Gaffoor,  who  had  borrowed  a  sum 
of  £1,000  from  him,  for  which  Gaffoor 
bad  been  charged  interest  at  the  rate  of 
5  per  cent,  ixr  month.  The  Magistrate, 
in  his  reasons,  stated  that  the  allegation 
of  fraud,  as  to  which  he  expressed  no 
opinion,  did  not  affect  the  validity  of  the 
plaintiff's  claim,  and  the  main  question 
was  whether  the  plaintiff  was  beyond  all 
reasonable  doubt  still  the  bona  fide 
holder  of  the  note  at  the  time  the  action 
was  instituted.  lie  (the  Magistrate) 
came  to  the  conclusion,  for  various  rea- 
sons, tiiat  he  was  n>t.  while  recognising 
the  presumption  frr^m  the  holding  of  the 
note  in  his  favour.  The  Magistrate  re- 
viewed the  oircumx'Anoes  at  length,  and 


said  it  was  clear  thit  tlie  plaintiff  treat- 
ed this  note  as  diso barged,  and  released 
the  defendant  from  liability  on  the  pass- 
in;^  of  the  bond. 

Mr.  Burton  was  for  appellant;  Mr. 
Gardiner  was  for  respondent. 

Maasdorp,  J.^  «saia  that  the  question 
arose  whether  it  had  been  proved  that 
the  note  had  been  settled  with  the 
plaintiff.  The  Magistrate  came  to 
the  conclusion  that  upon  the  whole 
of  the  case  it  was  impossible  for 
him  to  ascertain  the  exact  state  of  ac- 
counts between  Gaffoor  and  Heydenrioh, 
that  certain  settlements  took  place,  but 
that  it  was  impossib'a  for  him  to  ascer- 
tain whether  such  a  full  settlement  had 
taken  place  tiB  to  di5X>se  of  this  promis- 
sory note.  His  Lordship  Teviewed  the 
evidence,  and  said  that  payments  had 
not  been  proved  witV.  respect  to  the  pro- 
missory not«  As  to  the  further  defence 
of  fraud.  His  Lordihip  saw  no  neces- 
sity, on  the  authorities  cited,  for  send- 
ing the  matter  back  to  the  Magistrate. 
Judgment  would  be  for  the  plaintiff  for 
£130,  with  interest,  irom  the  January  6, 
1904,  the  defendant  ro  pay  the  costs  in 
this  court  and  in  the  court  below. 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  Hoplet.] 


C      1905. 


GRASSICK  V.  B.B.A.  ASPHALT  1  July   20th. 
CO.  j      „       2lBt. 

t    „      24th. 

Contract,  fraudulent  and  immoral. 

This  was  an  actioi  brought  by  Alex- 
ander Grassick  contractor,  Cape  Town, 
again&t  the  B.».A.  Asphalt  and  Manu- 
facturing Co.,  of  62,  Strand-street,  Gape 
Town,  to  recover  a  sum  of  £162  ds.  6d.. 
balance  alleged  to  be  due  for  work  and 
labour  done. 

The  declaration  set  out  that  on  or 
about  the  30th  March,  1904,  the  defen- 
dant company  entered  into  a  contract 
with  the  Cape  Town  Council,  by  which 
the  company  ag^reed  to  do  and  carry 
out  certain  tar-paving  of  a  portion  of 
the  Early  Morning  Market  grounds  at 
Sir  Lowry-road.  In  June,  1904,  plain- 
tiff agreed  with  the  company  to  carry 
out  the  work  of  laying  the  said  tar- 
pavinflT,  defendants  undertaking  to  sup- 
ply all  plant  and  materials  neoeMary  lor 


576 


If 


CAPE  TIMES"  LAW  REPORTS. 


the  due  carrying'  out  of  th«  luud  work. 
The  terms  a^n^eed  upon  were  that  plain- 
tiff should  be  paid  at  ;he  rate  of  2s.  3d. 
per  Auporficial  yard  ^i  the  paving  that 
he  laid,  that  weekly  payments  should 
be  made  to  him  Oii  an  approximate 
oeiimate  of  the  work  ddne,  leaving  the 
exact  amount  to  be  determined  by  the 
measurements  of  the  City  Engmeer. 
Plaintiff  thereupon  proceeded  to  do  and 
carry  out  the  work  of  laying  the  tar- 
paving,  and  continued  to  do  so  until  the 
14th  September,  1904,  when  he  waa  re- 
quired by  the  defendant  company  to 
cease  ooaitinuing  to  do  eo.  On  or 
about  that  date  he  had  duly  completed 
3,023^  superficial  yards.  He  haa  also 
done  2,07d  superficial  yards,  which, 
while  not  completed,  were  advanced  to 
the  sta^e  known  as  seconds,  for  which 
plaintiff  was  entitled  to  charge  Is.  6d. 
per  yard,  making  £207  19s.  6d.  He 
had  also  advanced  411  yards  to  the 
sta^e  known  as  thirds,  for  which  he 
charged  at  the  rate  of  Is.  per  yard, 
m-akmg  £20  lis.  6d.  He  said  that  the 
charges  of  Is.  6d.  and  Is.  for  seconds 
and  thirds  respectively  were  fair  and 
reasonable.  The  defendant  conipany 
had  paid  to  plaintiff  a  sum  of  £368  14s. 
for  work  done.  The  total  amount  to 
which  plaintiff  was  entitled  for  labour 
which  he  had  done  was  £530  ITs.  6d., 
leaving  a  balance  owing  of  £162  3s.  6d., 
for  which  judgment  was  prayed,  with 
interest  and  costs. 

Defendants,  in  their  plea,  admitted 
paragraphs  1,  2.  3,  4,  and  5  of  the  de- 
claration, save  thai  they  said  that  plain- 
tiff undertook  to  carry  out  the  work 
properly  and  skilfully,  and  in  accordance 
with  the  terms  of  the  specification  and 
contract,  and  to  the  satisfaction  of  the 
City  Engineer.  The  defendant  com- 
pany admitted  that  plaintiff  proceeded 
with  the  said  work  until  the  14th  Sep- 
tember, but  said  that  he  did  not  carry 
out  the  work  properlv  and  skilfully,  or 
in  accordance  with  toe  terms  ot  the 
specification  and  contract  in^  regard  to 
paragraph  2,  or  to  the  satisfaction  of 
the  City  Engineer,  and  accordingly  he 
was  given  notice  to  discontinue.  By 
reason  of  plaintiff's  breach  of  con- 
tract, defendejits  were  compelled  to  re- 
place and  re-execute  a  large  portion 
of  the  work  at  a  cost  of  £231  128.  5d., 
which  said  sum  the  defendant  com- 
pany were  now  entitled  to  claim  from 
plaintiff.  Defendants  claimed  as  a  set- 
off £231  12b.  5d.  ag'ainst  the  plaintiff's 
claim,  so  far  ae  may  be  necessary  to 
extinguish  the  same.  In  reconven- 
tion, the  defendant  company  claimed 
judgment  for  £231  126.  5d,  additional 
expenses  incurred  as  aforesaid. 

Plaintiff,  in  his  replication,  said  that 
he  did  not  underi;ake  to  carry  out  the 
work  to  the  satisfaction  of  the  Oity 
Engineer,  and  that,  so  far  as  he  was 
concerned,  he  had  always  been  ready 
and  willing-  to  oarr?r  out  the  work  ac- 
cording to  the  specifioationB.  If  the 
work  bad  not  beep  Mtisfaotorily   earned 


out.  it  was  owin^  to  the  failure  of  the 
defendant  company  to  supply  him  with 
proper  plant  and  materials,  and  their 
failure  to  give  him  proper  facilities  for 
doing  the  work.  He  prayed  that  the 
claim  in  reconvention  should  be  dis- 
mifl^ted,  with  costs. 

Mr.  Gardiner  (with  him  Mr.  P.  S.  T. 
Jones)  for  plaintiff.  Mr.  Upington  (with 
him  Mr.  Struben)  for  defendants. 

Alexander  Grassick  (the  i^aintiflH  was 
called.  In  the  course  of  nis  evidence, 
he  said  that  he  was  told  by  Mr.  Allan 
the  manager  for  the  company,  whose 
instructions  he  was  to  taxe  while  he 
was  executing  the  sub-contract,  that— 

Mr.  Upington  objected  ^  to  this,  on 
the  ground  that  it  was  evidence  vary- 
ing the  agreement,  as  set  out  in  para- 
graph 3  of  the  declaration,  and  that  a 
written  agreement  had  been  proved, 
dated  6th  June,  1904,  whereby  the 
plaintiff  agreed  to  carry  out  the  work 
acoordinff  to  the  City  Engineer's  specifi- 
cation, which  provided  that  the  work  was 
to  be  carried  out  under  his  supervision. 

Mr.  Gardiner  submitted  that  the  Oity 
Engineer's  supervision  applied  to  the 
contract,  and  that  the  City  Enfirineer 
had  no  supervision  over  tne  sub-eon- 
tnact 

Hopley,  J.,  ruled  that  the  evidence 
should  be  admitted. 

Witness  (continuing  his  evidence)  said 
that  Mr.  Allan  told  him  that  he  must 
take  ine^ucbions  from  him,  and  wit- 
ness drem?  his  aittention  to  the  clause 
in  the  specifioatdon  regarding  the  Gitv 
Engineers  supervision  Mr.  Allan  said, 
"never  mind,  I  will  arrange  with  the 
City  Engineer."  Witness's  first  tender 
was  3s.  a  yard ;  he  afterwiards  made  a 
tender  of  2s.  a  yard,  but  he  never  agreed 
to  satisfy  the  dStv  Engineer  at  th»t 
figure.  He  was  told  not  to  bother  about 
the  specifications.  Wotness  considered 
that  the  B.8.A.  Oodrapany,  as  the  oon- 
tracitora,  never  atten^pied  to  approach 
the  conditions  set  out  in  the  Oouncirs 
speoifioation.  The  materials  with  which 
he  was  suppJied  did  not  come  up  to 
the  specification.  The  roller  with  which 
he  was  supplied  was  too  light  for  the 
work  that  was  to  be  done.  No  proper 
covering  wai$  provided  for  the  engine. 
The  site  of  the  works  was  too  low,  and 
could  not  be  kept  dry.  Witness  went  on 
to  speak  of  the  defects  ol  the  plant  fur- 
nished to  him.  Witness  said  tnat  more 
than  once  he  pointed  out  to  Mr.  Allan 
thait^  he  wias  not  complying  with  the 
specifications,  and  that  Mr.  Cook  might 
pass  and  make  a  oomj>laint.  but  Mr. 
Allan  said,  '*  Never  mind ;  I  will  ar- 
range with  Mr.  Cook."  A  good  deal 
of  the  material  was  put  down  during 
the  wet  weather,  although  the  specifica- 
tion said  that  it  must  only  be  laid  in 
dry  weatJier.  Afterwards,  al)out  the 
14th  or  20th  September,  the  CUty  En- 
gineer came  on  the  scene,  and  com- 
plained aibout  the  way  in  which  the 
work  wa3  bein^r  done,  and  stopped  opor- 


"OAPB  TIMES"  LAW  REPORTS. 


677 


a<tiona.  Witnefls  weni  to  the  B.6.A. 
Asphalte  Company's  offices  and  saw 
the  manager  and  secreftary,  who  said 
th»t  it  was  hifi  fault,  through  mixiing 
the  material  while  it  was  wet.  At  thart; 
time  he  claimed  on  his  approximate 
meaBuremenAs  thait  a  6um  of  about  £55 
was  due  to  him.  Surbseiiueiitly  he  had 
an  offer  of  £25  from  the  company,  and 
a  proposal  that  he  should  recommence 
the  woric,  defendants  promising  that 
such  sum  as  was  found  to  bo  due  to  him 
u|X)n  the  measurements  of  the  City  En- 
gineer should  be  paid.  The  oompany 
aliio  required  him  to  wiithdraw  the  ac- 
tion that  he  had  comimenoed. 

Cross-examined :  He  had  not  laid 
maoadHun  in  this  country  before  he  took 
thib  contract,  but  he  had  laid  consider- 
aible  maoadam  in  Australia.  He  had 
laid  tar  paving  in  Johannesburg  on 
the  Geldenhuis  Estate.  This  was  the 
firsi  contract  for  tar  paving  he  had 
taken  in  this  ooumtry.  The  letter  whioh 
he  signed  for  2s.  a  yard  was  a  facsimile 
of  tl^  letter  he  had  had  sent  for  3s.  a 
yard,  except  as  to  the  figure.  Witne% 
told  Mr.  Allan  that  he  could  not  carry 
out  the  specifioaAion  at  2s.  per  yara. 
Mr.  Allan  said,  **  Grassiok,  ^ou  can  do 
it ;  never  mind  the  speoifioation — tihat  i^ 
my  business."  Witness  heard  that  a 
letter  had  been  received  from  the  City 
Engineer  stating  that  the  work  was  be- 
ing done  in  a  slovenly  manner,  but  it 
was  impossible  to  do  it  otherwise  than 
slowly  at  that  time  owing  to  the  terribly 
wot  weather. 

The  tar-pavtng  h^  had  laid  woa  still 
there.  The  "  bottoming ''  was  laid  on  an 
uneven  surface,  consisting  of  "  loose 
stones,  boulders,  and  brick-bats,"  as  the 
City  Engineer  described,  material  sup- 
plied to  him  by  the  defendants.  Witness 
tried  to  make  the  surface  even.  He  at- 
tended a  meeting  of  the  company's 
directors  on  the  30th   October. 

Mr.  Upington  asked  witness  whethei 
it  was  correct,  as  set  out  in  the  com- 
pany's minute-book,  that  "  the  foreman, 
Grassick,  then  attended  the  meeting, 
and,  alter  some  discussion,  it  was  re- 
solved that  the  sum  of  £25  be  paid  to 
him  on  account  of  the  balance  of  his 
measurements.  This  payment  was  made 
entirely  without  prejudioe  to  the  com- 
pany's position,  Grassick  agreeing  to  let 
the  matter  stand  over  pending  the  City 
Engineer's  further  contract." 

Witness  replied  that  the  record  was 
incorrect,  because  he  was  told  at  the 
meeting  that  it  would  be  settled  at 
once. 

Mr.  Upington  asked  witness  if  he 
understood  that  the  terms,  "  without 
prejudioe  to  the  company's  position," 
referred  to  the  company's  right  to 
make  him  responsible  for  any  improper 
workmanship? 

Witness  said  that  he  did  not  under- 
stand the  terras  in  that  sense.  In  fur- 
ther cross-examination,  witness  said  that 
be  received  a  payment  of    ^25  on  the 


Ist  November.  During  subsequent  nego 
tiatioiis,  witness  agreed  to  allow  the 
c<inn>auy  £5  in  respect  of  a  small  [>orbion 
of  tne  paving,  if  he  were  allowed  to 
complete  the  work.  Witness  claimed  a 
balance  of  £30  10s.  6d.,  and  he  took  up 
the  ixisition  that,  if  th  it  balance  were 
imid  to  him,  he  would  bo  prepared  to 
go  on  with  the  work.  W^itncjs  thought 
that  the  company  wer^  charging  him 
too  much  in  tne  claim  in  reconvention. 
Witness  had  had  experience  of  estimat- 
ing for  tar-paving  in  Australia.  He  had 
had  experience  of  estimating  at  the 
Early  Morning  Market.  He  agreed  to 
try    the  contract  at  2s.  per  yard. 

Mr.  Upington:  You  did  not  tender 
to  carry  out  the  specification  of  the  City 
Elngineer  ? — No. 

You  tendered  for  a  cheap  and  nasty 
job  at  a  very  low  price.  L>  that  so  ? — No, 
that  is  not  so.    1  tendered  at  Ss.  a  yard. 

What  did  you  tender  to  do  for  2s.? — 
I  agreed  to  do  the  work  in  a  most  sloven- 
ly manner  to  the  satisfaction  of  the 
B.S.A.  Company,  and  not  to  the  satis- 
faction  of  the  City  Engineer. 

Re-examined  by  Mr.  Gardiner:  Allen 
threatened  to  dear  witness  off  the  work 
if  he  did  not  continue  to  lay  the  maca- 
dam in  wet  weather.  In  the  early  stage 
of  the  work  witness  asked  for  a  heavv 
roller,  but  his  request  was  not  met  with 
when  he  was  filling  in  the  foundation. 
It  was  a  great  mistake  to  put  on  a  steam 
roller  when  the  asphalt  was  laid,  as  it 
crushed  the  tar  through  the  clay.  He 
found  fault  with  the  charges  made  by 
the  Asphalt  Company  for  wages  and 
labour. 

By  Hopley,  J. :  Allen  told  witness 
that  he  (witness)  was  taking  the  contract 
too  seriously.  W^itness  understood  that 
Mien  was  going  to  put  the  specification 
to  one  side,  and  carry  it  out  to  hia  own 
idea.  Allen  said  he  would  make  the 
matter  all  right  with  Mr.  Cook.  Wit- 
neea  quite  undemtood,  as  he  laid  down 
every  yard  of  stuff  that  the  corporation 
were  not  getting  what  thoy  specified  for. 

W^illiam  P.  Turner,  Superintendent  of 
Roads,  in  the  City  Engineer's  Depart- 
ment, stated  ho  had  under  his  super- 
vision all  the  tar  paving  under  the  Cor- 
poration, lie  had  other  work  on  at  the 
same  time  as  that  at  the  Early  Morn- 
ing Market,  so  that  he  could  not  give  it 
his  undivided  attention.  He  knew  of 
the  work  going  on  in  wet  weather.  Dur- 
ing process  of  mixing  some  of  the  sub- 
stance got  on  to  dirty  ground.  The 
cover  wnich  was  necessary  at  the  matur- 
ing stage  was  insufficient.  Thoro  was 
not  sufficient  stacking  to  make  the  quan- 
tity of  tar  for  the  area  to  be  covered. 

Cross-examined  by  Mr.  Upington : 
Witness  might  have  vi^ted  the  place 
three  times  a  week.  He  might  not  have 
l)een  on  the  spot  when  the  clay  shale  ar- 
rived. The  nlueertone  could  be  obtained 
without  any  clay  shale.  From  time  to 
time  he  noticed  that  the  stuff  was  Ixung 
properly   mixed,  and  reported    that,   m 


578 


"GAPB  TDlBB"  L^iW  BEPOBTB. 


he  also  did  the  work  taking  plaoe  in  wet 
weather.  The  accommodation  for  the 
preparation  of  the  stuff  was  uoouitable. 

By  Hopley,  J. :  Witness  left  it  to 
his  chief  after  reporting  the  defendants 
to  stop  the  bad  work. 

John  C<x)k,  Oity  Enginee^r,  who  had 
under  him  the  paving  in  question,  said 
the  oontract  provided  there  should  be  no 
sub-letting,  and  be  never  heard  of  the 
arrangement  between  the  plaintiff  and 
the  defendants  until  the  present  trouble 
bMBgan.  Witness  ai ways  understood  the 
plaintiff  to  he  foreman  in  the  employ  of 
the  B.B.A.A.  0>mpanj.  The  site  was 
sufficiently  large  for  tne  making  of  the 
tarred  macadam,  but  there  ou^ht  to  have 
been  more  room  for  matunnjg^,  which 
could  only  have  been  done  with  con- 
siderable delay.  Witness  drew  defend- 
ants' attention  on  July  14  to  the  unsatis- 
factory way  in  which  the  work  was  being 
carried  out,  &nd  they  replied  they  would 
pay  attention  to  witness's  requirements. 
It  was  improper  to  mix  and  lay  the  ma- 
terial as  faet  as  it  came  from  tbe  crusher, 
and  witness  did  not  know  of  any  in- 
structions being  given  to  the  defendants 
to  do  that.  When  witness  drew  atten- 
tion to  the  cartload  of  wet  stones,  de- 
fendants replied  that  their  "  foreman  " 
was  very  careful,  but  sometimes  the  or- 
dinary workman  was  careless.  On  the 
6th  September  he  gave  defendants  no- 
tice to  stop  the  work  until  such  time  as 
the  Council  met.  when  he  would  advise 
the  cancellation  of  the  contract.  If 
there  was  manure  deposited  he  would  be 
glad  to  have  the  asphalt  dug  up  if  the 
spot  was  pointed  out.  On  the  17th  Sep- 
tember the  defendants  asked  for  a  recon- 
sideration of  witness's  decision,  pointing 
out  that  there  had  evidently  been  a 
misunderstanding  between  them,  de- 
fondants  thinking  that  it  was  the  wish 
of  the  Corporation  that  the  work  should 
bo  pushed  on  as  quickly  as  possible.  In 
the  corres^ndenoe  or  m  any  interviews 
between  witness  and  the  defendants, 
there  was  no  room  for  anv  such  misun- 
(lorstanding.  It  was  only  last  week  that 
he  finally  passed  the  work,  and  not  the 
17th  Anril,  as  set  out  by  Mr.  Davis  in 
his  affidavit. 

Cross-examined  by  Mr.  Upington :  On 
the  17th  April  the  first  payment  on  ac- 
count was  made.  The  material  was 
quite  good  enough  if  there  had  been 
proper  consolidation.  Outside  the 
Corporation  Quarries  there  was  a  gen 
eral  attempt  to  mix  the  bluestone  with 
a  certain  amount  of  clay  shale. 

Mr.  Upington :  Generally,  I  take  it 
that  your  objection  was  to  the  manner 
m  which  the  actual  work  was  carried 
out,  more  than  to  the  materiaJls  that 
were  employed  ? 

Witness :  It  was  to  both. 

Mr.  Upington :  Your  objection  was 
rather  to  the  way  in  which  it  was  car- 
ried out? 

Witness:  It  was  carried  out  in  wet 
weather. 


Further  cross-examined:  He  had 
sworn  an  affidavit  in  which  be  said  that 
his  chief  reason  for  condemning  the 
work  was  because  of  the  use  of  wet  and 
dirty  materials,  the  materials  not  be- 
ing matured,  and  having  been  laid  in 
wet  weather.  The  c<Mnpan.Y  afterwards 
took  the  whole  of  the  toppings  off  the 
portion  that  witness  had  com^ained  of, 
and  alkrwed  the  material  to  dry,  and 
re-toppings  were  afterwards  placed  in 
that  part.  He  had  reported  to  the 
C^itv  Council  that  the  work  was  fairly 
satisfactory.  The  woik  had  been  ac- 
cepted, but  it  was  a  question  whether 
the  pavememt  would  carry  the  traffic, 
and  that  time  alone  could  decide.  The 
Corporation  desired  that  the  work 
should  be  pushed  on  reasonably  and 
early  after  the  contract  had  been  signed, 
but  tbey^  did  not  want  the  materials 
to  be  mixed  in  the  rain  or  to  be  laid 
in  the  vain. 

By  the  Court:  It  was  not  chiefly 
because  of  the  quality  of  the  stone  thi^ 
he  condemned  the  work  that  was 
partly  the  reason,  but  1^  stone  had 
Deen  brought  from  the  Barracks  site 
and  was  dirtv,  and  the  tar  would  not 
adhere.  All  the  stuff  thai  had  been 
put  down  was  still  there.  The  toppings 
had  since  been  chipped  off  about  fm 
inch  down,  so  as  to  expose  the  seconds 
and  bottocnings  to  the  atmosphers. 
There  were  three  causes  of  the  trouble 
— unmatured  materials,  wet  weather, 
and  dirty  stones.  The  bottoming^  and 
mtermeaiate  layer  were  faulty,  and 
bad  to  be  dried  by     the  air,  but  the 

i'ob  was  not  now  as  good  as  it  would 
Lave  been  if  it  had  been  oanried  out 
according  to  specification.  Witness 
could  not  from  meuHMry  sa^  how  much 
of  the  work  done  by  Gfrassick  was  satis- 
factoT]^. 

David  John  Clarke,  stonemason, 
Henry  F.  W.  Rohr,  manager  for  Jen- 
kins and  Co.,  ajid  John  H.  Gibbe,  iron- 
founder,  also  gave  evidence  for  the 
plaintiff. 

Mr.  Gardiner  closed  his  case. 

George  Alkn,  manager  for  the  defen- 
dant company,  said  that  he  did  not  tell 
the  plaintiff  that  he  was  to  take  no 
notice  of  the  specification  to  the  con- 
tract, and  that  he  was  only  to  listen  to 
witness.  The  site  for  the  mixing  ma- 
terials was  above  the  level  of  the  gutter. 
Grarsick  never  ooraf^ained  about  the  un- 
suitability  of  the  mixing  site,  nor  did 
he  complain  about  the  drying  table. 
Plaintiff  was  fully  authorised  to  turn 
away  bad  stuff,  and  did  actually  turn 
away  certain  stones.  Witness  had  not 
told  plaintiff  to  work  in  wet  weather. 
The  company  got  several  crushers  for 
the  plaintiff.  Plaintiff  found  fault  with 
the  first,  and  he  selected  the  second  one 
himself,  and  it  was  erected  under  his 
supervision.  The  company  afterwards 
got  him  a  third  crusher.  Witness  did 
not  think  that  the  stone  was  wrong. 
The  company  paid  a  good  price  for  ti)« 


"GAPE  TIMBS'*  LAW  REPDaTB. 


579 


best  fitone  they  could  get  in  the  district. 
They  obtained  blue  stone  from  the 
Mount  Prospect  Quarries,  and  ako  from 
the  Barracks.  He  believed  the  cost  of 
the  ctone  obtained  from  the  quarries  was 
about  Ts.  6d.  a  cubic  yard.  He  hod  not 
told  plaintiff  to  do  the  work  in  a 
aloveniy  manner,  but  on  several  occa- 
sions be  dreiw  plaintiff's  attention  to  the 
terms  of  the  specification.  He  com- 
plained to  plaintiff  aibout  the  way  in 
which  he  was  doing  the  work.  Plaintiff 
was  putting  too  much  tar  into  the  stuff, 
^th  the  result  that  the  finished  surface 
was  too  soft.  Plaintiff's  brother  was 
employed  on  the  job  for  some  time,  and- 
the  City  Engineer  found  fauH  with  hie 
work.  Witness  called  Grassick'e  aitten- 
tion  to  the  need  of  dispensing  with  the 
services  of  nis  brother.  When  the  work 
had  been  stopped  the  City  Engineer  did 
not  make  any  complaint  about  the  ma- 
terials which  had  been  used.  He  com- 
plained rather  of  the  way  in  which  the 
work  was  done,  the  surface  being  soft 
and  uneven.  Witness's  intentions  all  the 
way  through  was  to  make  a  first-class 
job  of  the  contract;  that  was  why  he 
wanted  to  fix  the  responsibility  on  the 
man  who  was  putting  down  the  pav- 
ing. 

[Hopley,  J. ;  Why  didn't  you  put  a 
olerk  of  works  on,  because  Grassick 
seemed  to  be  putting  down  some  very 
bad  work?] 

Witness:  I  did  not  notice  anything 
very  bad  until  he  oame  to  the  surface. 
Wmn  you  stood  on  the  material  vou 
sank  down.  The  surface  was  all  hol- 
lows. Witness  (continuing  his  evidence) 
said  that  he  wae  not  aware  that  the 
plaintiff  was  using  damp  stones ;  he  had 
always  been  under  the  impression  that 
Grassick  was  using  dry  stones.  Grassick 
had  a  good  fire  burnincr  all  the  time  so 
as  to  enable  him  to  dry  anv  wet  stones. 
Witness  did  not  see  an^  leak  in  the  roof 
of  the  drying  and  mixing  shed.  In  re 
gard  to  the  claim  in  reconvention,  wit- 
ness said  that  the  amount  of  £213  udd 
represented  actual  expenditure.  Plaintit! 
was  in  error  in  stating  that  a  cart  load 
of  stones  went  to  one  yard  of  paving; 
^ree  loads  would  be  equal  to  two  yards. 
Witness  did  not  denv  that  if  the  plain- 
tiff bad  done  the  work  properly  ho  would 
have  been  entitled  to  the  amount  that 
he  dainoed.  but  plaintiff  was  indebted  to 
the  company  for  the  wastage  caused  by 
having  to  re-execute  the  work.  They 
did  not  claim  anvthing  against  plaintiff 
for  the  rest  of  the  contract  that  they 
had  executed.  On  the  whole  job,  the 
company  would  make  a  lose. 

[Hopley,  J. :  There  ought  not  to  have 
been  a  loss  at  that  price  of  2s.  a  yard?] 

Witness :  There  should  not  have  been, 
but  the  way  we  have  been  humbugged 
about  has  caused  us  to  make  a  loss. 

Cross-examined  by  Mr.  Gardiner: 
They  came  to  the  conclusion  that  Gras- 
sick was  not  satisfactory  when  the  City 
EEgineer  complained.      He  bad  no  idea 

?X 


I 


that  Gras&Lok  was  laving  the  paving  in 
wet  weather,  until  tne  City  Engineer 
drew  his  attention  to  the  matter  some 
time  in  July  and  August.  Witness  went 
to  the  job  ever^  day,  but  he  did  not 
see  Grassick  laying  the  paving  in  wet 
weather.  Witness  admitted  having  writ- 
ten on  the  30th  August  to  the  City  En- 
gineer, saying:  "Our  foreman  exer- 
cises all  the  care  possible."  He  meant 
by  that  that  Grassick  had  promised  to  be 
as  careful  as  possible. 

Mr.  Gardiner:  Did  you  mean  what 
you  said,  that  he  did  exercise  all  the 
care  possible. 

Witness:  While  I  was  there,  he  cer- 
tainly did. 

Mr.  Gardiner:  Tet,  you  tell  us  you 
had  to  complain  to  him  on  several  occa- 
sions that  he  was  not  carrying  out  the 
speoificaition.  I  suppose  you  meant  to 
tell  the  truth  when  you  wrote  to  the  City 
Engineer? 

Witness :  I  always  tell  the  truth  as  far 
as    I  know. 

Cross-examination  continued :  Grassick 
first  tendered  at  3s.  per  yard  for  the  la- 
bour. Witness  told  him  that  the  figure 
was  too  mucih,  and  Grassick  went  and 
looked  into  the  matter  Again,  and  ten- 
dered for  2b.  a  yard.  The  defendants 
did  not  ask  the  consent  of  the  Corpor- 
ation when  they  gave  this  work  to  Gras- 
sick. He  did  not  consider  that  they  had 
sub-let  the  contract,  and  thus  broken 
their  undertaking  witk  the  Council.  He 
did  not  think  it  was  necessary  to  obtain 
tlie  consent  of  the  Corporation  to  sub-let 
piece  work.  He  wa«  wixious  to  fix  the 
responsibility  for  doing  the  work  upon 
the  man  on  the  job.  Dirty  stone  was 
not  used  on  the  job.  Only  the  clean 
stone  in  the  company's  yard  was  intend- 
ed for  the  job.  Witness  never  intended 
that  the  materials  should  not  be  matur- 
ed. When  he  said  in  his  letter  to  plain- 
tiff that  the  material  should  be  used  as 
fa.st  as  it  came  from  the  crusher,  he  did 
not  mean  that  it  must  be  immediately 
laid,  but  tliat  it  should  be  used  at  the 
same  rate  as  it  came  from  the  crusher. 
They  could  have  done  with  more  space 
for  maturing,  but  he  did  not  think  that 
Grassick  was  hampered  by  want  of  sufii- 
cient  space.  He  denied  that  they  had  a 
miciunaerstonding  with  the  City  En- 
gineer as  to  the  kind  of  weather  when 
they  should  lay  down  the  paving.  It 
was  not  correct  that  the  City  Engineer 
took  one  view  as  to  the  weather  when 
the  work  should  go  on,  and  that  the 
company  took  another.  Witness  was 
not  a  ware  that  the  defendants  offered 
Grassick  6d.  a  yard  if  he  would  do  the 
re-topping. 

Alexander  Allan,  brother  of  the  last 
witness,  said  the  time-sheets  produced 
pa.sscd  through  his  hands,  and  the  stuff 
that  was  used  for  the  re- topping  was 
entered  in  his  books,  and  made  up  the 
do  fond  ants'   counter-claim. 

H.  Davis,  secretary  of  the  defendant 
company,   gave  evidence  as  to  the     de- 


580 


i< 


CAPB  TIMES**  LAW  BEPOBTS. 


fendants'  outlay  for  wages  on  th«  time- 
sheots  and  other  expenses. 

Mr.  UpingtoQ  closed  bis  case. 

Mr.  Gardiner  was  hetad  in  argument 
on  the  facts. 

Without  oalling  ii^on,  Mr.   Struben, 

Hople^,  J. :    In  this  case  the  plaintiff 
entered  into  ft  oontraot  with  the  defend- 
ant ootiipany  to  do  a  certain    piece   of 
work  in  a  certain  way.    The  defendants 
had  entered    into  a  contract    with    the 
Town  Council  to  do  certain   tar^paving 
at  the  Barly  Morning  Market  according 
to      certain      carefully      drawn     specifi- 
cations,     to     the     satisfaction     of     the 
City     Engineer.         This     contract     the 
defendants       employed      the       plaintiff 
to    carry    out;     he   agreeing    to    do  it 
at  2s.    a  yajrd.       Now   in    making   thftt 
agreement  he  signed  a  document  vr'bich 
clearly  sets  forth  that  he  undertook  to  do 
the  work  at  the  price   stated  in   terms 
of  the  specifications,  a  oopy  of  which  he 
had  received ;   but  he  now  says  that  it  was 
understocd  from  the  start  and  before  he 
signed  that  document  that  no  attention 
should     be    paid    to    the   specifications, 
and  that  the  work  should  be  scamped; 
that  he  should  do  cheap  cuid  bad  work, 
and  cover  it  over  rapidly  and  that  the 
defendant's      manager    should    in   some 
way  or  other  satisfjr  the  City  Engineer. 
This  seenM  to  me,  if  true,  to  amount  to 
a    dishonest   and   immoral    contract   be- 
tween the  plaintiff  and  the  defendants; 
but   it  wiaa    the    only   line   the   plaintiff 
could    take    up,    as    he    was    forced    to 
admit  that  he  did  do  bad  work,  nowhere 
approaching  the  specifications.     When  he 
made    out  such    a    case    I  listened  to  it 
with  considerable  impatience  land  repug- 
nance for  it  amounts  to    nothing  short 
of   a   combination  between  the   plaintiff 
and   the  defendants  to  swindle  the  rate- 
payers of  Cape  Town,  who  were  under 
the  contract  with  the  defendants  paying 
a  handsome  price   for   the    work    whioh 
they      might      therefore     expect  to   be 
thoroughly   well    done.     If    such    a   con- 
tract iMid  in  fact  been  made,  it  seenis  to 
me   that  no    Court  should    assist   either 
of   the   parties   to   recover   under   it.    If 
the    plaintiff's    evidence    on    this    point 
is   true,  it  seems  to  me  that  be  should 
fail  in  his  action   by  reason  of  the  im- 
morality and  dishonesty  of  the  contract. 
The  defendants,  however,  entirely  deny 
the  plaintiff's  version  and   say  that  the 
contr^act    was    honestly   entered    into    as 
set  forth   in   the  written  document,  and 
that  the  plaintiff  should  have  perfornied 
the  work  in  terms  of  the  specifications. 
Now    this   seems    to    me  a  much   more 
likely   version.        The  defendants   are   a 

largo  paving  company,  and  it  would  be 
little  short  of  suicidal  on  their  part  to 
do  such  work  for  such  a  customer  as 
the  Town  Council  in  the  city  where  they 
hoped  to  do  a  lar^fe  business:  and  in 
any  case  I  feel  inclined  to  hold  that  the 
contract  was  the  honest  thing  which  the 

written       document    states   it   to   have 


been,  and  not  the  fraudulent  arrange- 
ment which  the  plaintiff  endeavours  to 
set  up.  Plaintiff  was  entitled  to 
recover  the  sum  of  £162  38.  6d. 
that  he  claimed  for  the  work  that 
ho  did.  A  lot  of  the  work  that  he  did 
had  to  be  picked  up  again,  the  sur- 
face had  to  be  exposed  so  a«  to  let  the 
^lir  reach  the  parts  underneath,  and  a 
fresh  topping  had  to  be  put  on.  The 
amount  claimed  in  reconvention  by  the 
defendants  was  £213  odd.      It  had  been 

(Iniittcd  that  15  per  cent,  was  in- 
cluded   in    the   claim  for   profit.        He 

ho  learned  judge)  did  not  think  that 
defendants  should  be  allowed  any  profit, 
and  judgment  would  be  given  for  the 
claim  in  reconvention,  less  profit.  The 
judgment  of  the  Court  would  be  for 
the  plaintiff  in  convention  for  £162.  and 
for  the  defendants  (now  plaintiffs|  on 
the       c4aim    in    reconvention  for   £l72, 

■•>'ing  a  balance  due  to  defendants  of 
£10,  plainiff  to  pay  costs  of  suit. 

[Plaintiff's  Attorneys:  C.  E.  P. 
Hughes.  Defendant's:  Van  Zyl  and 
Buiseinn^.] 


BABOOLALLAND    V.    BABOO- f       ^905. 

LALLAMD.  (July  20th. 

This  was  an  application  on  notice  call- 
ing on  the  respondent  to  show  oause  why 
a  certain  order  of  Court  should  not  be 
reviewed  and  rescinded.  On  the  12th 
July  the  pre^nt  respondent  made  an 
ox  papte  applicaition  to  the  Court,  and 
o/btaiued  an  order  giving  him  the  cus- 
tody of  the  child  of  the  marriage  of  the 
then  respondent  and  himself,  pending 
further  order  of  Oourt.  The  wife  now 
applied  to  have  the  order  rescinded,  and 
the  child  restored  to  her  custody,  and 
for  an  order  upon  the  respondent  to  pay 
the  sum  of  £8  per  month  towards  the 
maintenance  of  the  applicant  and  the 
did  Id. 

In  an  affidavit  made  by  the  present 
rcr»pondent  on  the  occasion  of  the  pro- 
ceedings in  July,  he  stated  that  he  was 
married  to  the  respondent  in  1897  at 
Mauritius.  He  alleged  that  his  wife 
had  deserted  him,  and  was  living  with 
another  man  named  Pandy,  and  thatt 
she  intended  to  leave  the  Colony  and 
to  take  with  her  the  child. 

In  support  of  the  present  application, 
the  wife  deposed  on  affidavit  that  her 
husband  had  ill^od  her,  and  had  de- 
sorted  her,  leaving  her  and  the  child 
dosititutc  a  few  months  after  her  arrival 
hero  in  1898.  She  denied  the  allega- 
tions of  desertion  and  of  living  with 
another  man  for  other  than  moral  pur- 
poses. Her  husband  had  been*  sentenced 
to  three  years'  imprisonment  for  wound- 
ing another  man  with  a  knife.  She  was 
af/radd  of  the  respondent,  and  so  kept 
aiway   from  him-       She   further  alleged 


"CAPE  TIMES"  LAW  REPORTS. 


581 


tb»t  the  pe9poDdeni  w<a8  living  with 
another  woman.  He  had  endeavoured  to 
take  the  child  fordWy  from  her.  She 
had  intended  to  visit  her  parents  at 
MauritiiM,  but  it  was  her  inteataon  to 
return  to  the  Oolony. 

The  replying  affidavit  of  the  reapond- 
ent  said  be  intended  to  sue  his  wife  for 
divorce.    He  admitted  the  aentenoe  re- 
ferred   to,    but   said    that   he   had    dis- 
covered   criminal    interoouifie    between 
his  wife  and  the  man  he  assaulted.     He 
denied  the  aHegalions  of  adultery.    The 
child  n^ade  an  affidavit  in  support  of  the 
allegiationa  of  adultery  against  the  wife, 
and    stated    that    he   wished  to   remain 
wkh  his  father.     In  a  replying  affidavit, 
the   wife    aaked   tha^  the   child    should 
be  brougiit  before  the  Court. 

Mr.  Gardiner  moved.  Mr.  Button  for 
reepondenK 

The  child,  a  boy  of  nine  years,  was 
called,  and  interrogated  in  Dutch  by  His 
Lordship.  He  said  that  he  had  lived 
with  bis  mother  in  the  house  of  one 
Pandy,  at  Worcester.  His  mother  and 
Pandy  oocuoied  the  same  room.  His 
father  lived  in  the  same  room  as  another 
woman. 

[Hopley,  J. :  Who  would  you  like  to 
liTa  with—your  father  or  your  mother?] 

The  Boy :   Both. 

Later  on,  his  lordship  repeated  the 
question,  and  the  lad  said  that  if  he  had 
to  chose,  he  would  prefer  to  live  with 
his  mother. 

Hopley.  J.,  asked  Mr.  Gardiner  whe- 
ther his  client  would  agree  to  remain 
here  pending  the  action  to  be  brought 
by  the  husband. 

Mr.  Gardiner  said  his  client  ^otild  re- 
main if  she  were  given  the  custody  of 
th'»  child  in  the  meantime. 

Mr.  Burton  urged  that  the  father 
ahould  have  the  custody. 

The  wife,  examined  on  oath,  said  she 
would  stay  here  until  the  action. 

Replying  to  Mr.  Burton,  she  said 
Pancfy  was  on  the  ship  by  which  she  had 
arranged  to  go  to  Mauritius,  but  ha  did 
not  intend  to  accompany  her.  He  wa^ 
going  as  far  as  East  London  on  business. 
She  kept  house  for  Pandy  at  Worcester, 
but  they  did  not  occupy  the  same  room. 

By  the  Court:  The  boy  was  taken 
from  her  on  the  ship,  and  she  did  not. 
therefore,  go  to  M!auritius;  nor  did 
Pandy  go  to  East  London.  She  asked 
him  to  look   after  her  luggage. 

Hopley,  J.,  said  that  it  appeared  that 
the  child  had  neryer  been  away  from 
his  mother,  and  it  was  quite  natural 
that  his  genuine  feelings  were  as  he 
stated  to  the  Court:  that  if  he  had 
to  choose  between  his  parents,  although 
he  would  rather  see  them  re-unit^, 
be  would  prefer  to  live  with  his 
mother,  of  whom  he  appeared  to  be  very  . 
fond.  He  (the  learned  Judge)  did  not 
think  there  was  anything  underhand 
or  clandestine  about  the  departure 
of  the  mother  for  Mauritius,  which  was 
pnly  natural  in  the  circi^mstances,  as  she 


wanted  to  visit  her  mother.    But     the 
father  of   the   child  came  before       the 
Court   and  on  an  ex-parte  statement  got 
an  order  giving  him  the  custody  of  the 
child  pending  further  order  of  the  Court. 
He  (Mr.  Justice  HopJey)  took  it  that  if 
the  learned  Judge  had  then  bad  all  be- 
fore him  that  he  (Mr.    Justice  Hopley) 
had  that  day,  he  would  have  hesitated 
about  giving  the  father  the   custody  of 
the  child.       Putting   aside  the  question 
of  the  morality  or  immorality  of  either 
of  the  parents— a  matter  with  which  the 
Court  at  present  had  very  little  to  do, 
because  it  was  a  question  which   would 
have  to  be  tried  very  shortly— one  had 
to   look  at    the  general  features  of  the 
case,  and  on  that  basis  alone  one  found 
that  the  father   had   been   convicted  of 
very  violent  behaviour,  that  he  had  been 
in  prison,   and    that  tor  a  number      of 
years   he   had   had   nothing  to  do  with 
the  support  of  this  child.      He  had  been 
out  of  gaol  for  a  couple  of  vears  now, 
and  hadf  apparently  bad   nothing  to  do 
with  the  mother  or  the  child.     If  he  were 
aware  of  the  immorality  of  his  wife,  he 
did  nothing   to  make   the  Court   think 
that  he  oared  about  having  either     his 
wife  or  the  child  back.       He  took   no 
eteps  until,   at  a  verv  inconvenient  mo- 
ment  for   his   wife,    he    cane   before    a 
Judge  in  Chambers,  to  stop  her  going  to 
Mauritius.        He   (Mr.    Justice   Hopley) 
thought   that    if   the    learned   Judge  m 
Chambers  had  known  of  these  facts,  he 
would  have  taken  into  consideration  the 
conduct  of  the  man,  his  past  history,  and 
that  probablv  he  would  have  held  that 
ho     was    only     doing     this     to     annoy 
his      wife,      and      would      not      have 
given  him  the  temporary  custody  of  the 
child.      The  final  issues  of  the  case  and 
the  ultimate  custody  of  the  child   could 
be  settled  very  shortly  by  action,  but  at 
present  his  (Mr.  Justice  Hopley's)  feeling 
was  that  the  child's  own  feelings  should 
bo  respected.       ITie     child    had  always 
lived  with  his  mother,   and  it  was  very 
natural  that  he  ahould  prefer  to  remain 
with  her.       He     (the     learned     Judge) 
thought  that   during  the      short      time 
which  would  elapse  before  the  action  he 
should    continue   to    remain    with       his 
mother,  who  had  apparently  looked  after 
him  well  during  all  these  years,  wKich 
was  more  than  one  could  sav  about  the 
father.     The  Court  would  order  that  the 
child  be  restored  to  the  custody  of  the 
mother.    The  matter  of  costs  could   be 
decided  at  the  trial. 


BBNTA   V.  MAGUOWANA  AND  0THKB8. 

Mr.  Burton  moved  for  an  order  on 
the  respondents  to  restore  certain  stock, 
alleged  to  have  been  unlawfully  seized 
from  the  applicant  at  a  location  in  the 
district  of  Butterworth. 

Order  granted,  leave  being  granted  to 
either  of  the  parties  to  bring  an  action 


682 


ff 


CAFE  TIMB8"  LAW  BEPOBTB. 


aa  to  the  final  riffhte.  A  rule  rUii  waa 
also  ieisued  calling  on  tlio  respondente  to 
show  cause  why  they^  should  not  pay  the 
costs  of  the  prooeedings. 


SUPREME  COURT 


[Before  the  Hon  Mr.  Juiticc  Hopley.] 


GOBNEY  V.  BHAW. 


«       1906. 
iJuly  24th. 


Mr.  Alexander  moved  for  a  oommis- 
sion  to  take  the  evidence  of  Alexander 
Robert  Smith,  who  was  about  to  pro- 
ceed to  Johannesburg.  Ittie  case  was 
sot  down  for  the  16th  August.  Counsel 
read  an  affidavit  bv  ^applicant's  attorney. 

Mr.  P.  S.  T.  Jones  read  a  replying 
affidavit  by  the  attorney  for  respondent 
(plaintiff  in  the  action),  who  said  that 
the  applicant  shouild  bear  the  costs  of 
the  application. 

Oommiasion  granted,  Mr.  Advocate 
Giddy,  K.C.,  to  be  commissioner.  Costs 
to  be  costs  in  the  cause. 


RBX  V.  HABBIS. 

Undesirable  alien— Act  47  of  1902 
— Deportation. 

Ajt  47  of  1002  mal'fi.^  no  pro- 
vision for  Uie  deportation  of 
an  uiideairahlc  alien  who 
having  been  permitted  to  enter 
this  Colony  and  having  been 
naturalized  therein  has  not 
subsequently  acquired  any 
domicile  of  choice  elsewhere. 


This  was  an  application  as  a  matter 
of  urgency  calling  upon  the  Attorney- 
General  to  show  cause  why  one  Max 
Harris,  a  rmturalizod  British  subject, 
who  had  been  arrested,  and  whom  it  was 
proposed  to  deport  at  onoe  should  not 
be  set  at  liberty. 

The  applicant's  affidavit  was  ^  as  fol- 
lowF :  **I  am  a  naturalised  British  sub- 
ject in  pursuance  of  letters  of  natural- 
isation granted  to  me  whilst  rcsidini?  in 
this  colony  on  the  7th  August,  1903,  a 
certificate  of  which  I  have  in  my  posses- 
sion at  the  present  time,  and  can  pro- 
duce to  the  Court.  I  have  lived  in  the 
Gape  Colony  for  a  period  of  seven  years, 
and  tile  same  is  my  permanent  homo  and 
residenoe.    I  have  no  other.    I  have  al- 


ways intended  to  stay  hero  and  recog- 
nise same  as  my  permaneot  abode.      I 
am   a   tinsmith   and   plumber   by  trade, 
and   have  carried  on    business   aa  such 
here,  and  acquired  landed  property.      I 
have  been  duly  qualified  to  vote  for  toe 
Municipal  Council  of  Cape  Town,  and 
its  Parliamentary  division,  and  aoquiied 
all  the  necessary  qualifications  to  entitle 
me  to  the  position  of  a  British  eubieot, 
duly  and  properly   domicsJed  in      Cape 
Town  to  the  best  of  my  knowledge  and 
belief.       About  the  7th  July,  1904,    at 
Cape  Town,    I  was  sentenced  to      two 
years'   imprisonment,  with  hard   labour. 
On  tihe  18th  April,  1905,  I  was  dieoharg- 
ed  from  gaol.    At  the  time  of  my  dis- 
charge I  obtaoned  a  oertdficate  tiberieof, 
of  which  the  following  is  a  cc^y :   *'  This 
IS  to  certify  that  number  H  3,646,  Max 
Harris,  was  tried  at  Cape  Town  on  the 
7th  Juno,   1904,  and  sentenced  to     two 
years*    imprisonment   with  hard    labour, 
end,  having  a  mitigation  of  sentenoe  for 
good  conduct  from   His  Excellency  the 
Governor,   is      discharged      accordingly. 
Given  under  my  hand,  18th  April,  1905, 
at  Tokai  C^onvict  Station."    (Signed)  H. 
W.    A.   Coly,  Assistant-Superintendent." 
The  affidavit  proceeded:'*!  am  not  aware 
of   any  terms   or  conditions  relative   to 
my  release  and   discharge,    and,   so   far 
as  I  know,  the  same  was  unconditional, 
and  I   bound  myself  to   no  promise   or 
consideration  to  leave  this  colony,  either 
before  or   after   my   release.       Immedi- 
ately  after   my  release,    under  the   ad- 
vice of  my  agent,  Mr.   Shaw,  I,  at  my 
own   expense,   obtained   a  return   tidcefc 
for  Durban,  Natal,  and  left  Cape  Town 
by    boat   on  or  about  19th   April,   1905, 
for    a  short    rest,    and    I    left   only   on 
account   of    my    health,    and    not    with 
any  intention  of  quitting  South  Africa, 
or  acquiring  a  now  domicile.    On  my  ar- 
rival at  Port  Elizabeth  I  felt  too  ill  to 
proceed   further,   and  I    landed  at   that 
port,    and   roturnod   to   Cape  Town  the 
same  day,  when  1  immediately  went  to 
my    house    in    Cannon-street,    where    I 
have  lived  ever  since.    I  left  Cape  Town 
on  the  19bh  April  and  wa£  back  on  the 
24th   April,    1905.      On   Thureday,    20th 
July,    1905,    two   detectives,  one  named 
Grant,   and   another,    came  to  where   I 
was  living  in  Oannon-street,  Capo  Town, 
and   requested  me   to   accompany    them 
to  the  office  of  the  Immigration  Offices 
in   Burg-9tro<>t,   which  I   did,   and   from 
that   office   I  ac^^ompanied   them  to   the 
office   of  Mr.  Broers,    the   Acting   R.M. 
of  Capo  Town,  who  ordered   my  deten- 
tion ponding  my  dep<)rtation  from   this 
colony    as    an   undesirable.       Since   my 
ro-looao   from   gaol   I  have   made   no  at- 
tempt to  conceal  myself,  but  gone  about 
my    business    as    usual,     and    Detective 
Grant,  who  escorted  me  to  the  gaol  on 
the  20th   inst.,  knew  of   my  residing  in 
Cannon-street   some   months  previously, 
as  he   came  there  and  saw  me.  and   at 
his    request    I  produced    the    letters  of 
nia;turali6ation  granted   to   me  9fi  aforo- 


'*GAt']B  tImKS"  law  reports. 


58^ 


said.  I  am  now  wrongfully  and  unlaw- 
fully detained,  I  dubmit,  in  gaol,  and 
I  claim  to  be  released  on  the  ground 
that  among»t  other  things  I  am  a  British 
subject,  properly  domiciled  in  South 
Africa  Application  has  been  made  to 
the  said  Aotmg  Resident  Magistrate  for 
bail  on  my  behalf,  pending  this  appli- 
cation,   but   refused. 

The  answering  affidavit  of  Henry  Ben- 
jamin Shawe,  Acting  Under^Colonial 
Secretary,  set  out  that  the  applicant  ob- 
tained the  letters  of  naturalisation  by 
fraudulent  misrepreecntat^ioD,  and  the^ 
were  therefore  null  and  void.  The  appli- 
cant had  never  acquired  a  domicile  in 
this  colonv,  and  if  any  was  acquired  it 
was  abandoned  on  the  Idth  April,  1905, 
when  he  left  the  Colony,  and  his  domicile 
of  origin  (Russia)  thereupon  revived.  The 
applicant  was  released  from  gaol  on  the 
understanding  that  he  would  leave  the 
Colony  for  ever.  On  the  19th  July, 
1905,  deponent  was  officially  informed 
by  the  hon.  the  Attorney-General  that, 
in  pursuance  of  section  2,  sub-section  F 
of  Act  47  of  1902,  the  applicant  was  an 
undesirable  immigrant,  and  should  be 
excluded  from  the  Colony. 

An  affidavit  by  Sir  John  J.  Graham, 
Secretary  of  the  Law  Department,  called 
attention  to  a  petition  received  from  the 
applicant  while  he  was  in  gaol,  and  to 
a  letter  received  from  hie  law  agent, 
Mr.  W.  B.  Shaw.  . 

The  applicant,  in  his  petition  for  release, 
drew  attention  to  the  fact  that  during 
the  period  covered  in  ^  the  indictment 
upon  which  he  was  convicted  in  June,  ho 
was  some  three  months  previously  con- 
victed under  another  section  of  the 
Act,  and  sentenced  to  pay  a  fine  of 
£160.  which  he  duly  paid.  At  the  time 
of  the  first  prosecution,  which  was  for 
keeping  a  gambling  house,  it  must  have 
been  well  known  to  the  police  that  he 
was  also  liable  to  prosecution  under  the 
latter  clause  of  the  Act,  for  the  con- 
travention of  which  he  had  been  tried 
and  convicted.^  If  both  charges  had 
been  brought  simultaneously,  as  he  sub- 
mitted they  ought  to  have  been,  his 
sentence,  ii  convicted  of  both  offences, 
could  not  have  been  greater  than  that 
passed  upon  him  for  the  single  charge 
of  contravening  section  33  oi  the  Act. 
He  humbly  begged  for  leniency  also  on 
the  grounds  revealed  in  the  subsequent 
prosecution  against  the  police  officers. 
He  took  the  course  of  giving  evidence 
simply  in  the  interests  of  justice  gen- 
erally on  the  advice  of  his  law  agent. 
He  yentured  to  submit  that  he  had  ren- 
dered some  service  to  the  State  that 
would  tend  to  prevent  crime  in  the 
future,  and  which  was  worthy  of  some 
consideration.  What  he  had  done  had 
naturally  ostracised  him  from  those  who 
had  been  his  friends  and  associates  in 
the  past.  He  was  a  ruined  man  in 
every  aeose  of  the  word,  and  it  was  his 
intention  to  go  awar  to  some  new 
country,  -frhero,  by  a  life  of  future  rec- 


titude, he  might  in  some  measure  re- 
deem the  past.  The  petitioner's  law 
agent,  Mr.  W.  B.  Shaw,  in  applying  for 
a  consideration  of  the  accused's  case, 
pointed  out  that  the  information  given 
by  Harris  was  true  and  correct,  and  had 
been  of  great  service  to  tlio  Crown. 
The  accused  had  spent  his  time  and 
money  in  getting  that  information,^  and 
further  his  health  was  such  that  his  re- 
lease would  bo  a  general  advantage. 
In  the  event  of  the  Crown  being  willing 
to  grant  him  a  reprieve,  he  (Mr.  Shaw) 
wa«  prepared,  if  so  desired,  to  arrange 
for   him   to   at   once   leave   the   Colony. 

Dr.  Greer  for  applicant.  Mr.  Evans 
for  the  Crown. 

Mr.  Greer  said  that  under  the  circum- 
stances of  both  these  affidavits  the  police 
authorities  had  taken  a  course  that 
was  altogether  uUra  vires.  They  had 
done  a  thing  that  they  had  got  no  pos- 
sible right  to  do.  They  were  proceeding 
under  section  8  of  Act  No.  47,  of  1902, 
and  that  dealt  directly  with  x>eople  im- 
migrating into  this  colony,  not  with 
people  living  in  the  Colony,  who  had 
acquired  domicile  here.  The  sub-sec- 
tion (f)  of  section  3  distinctly  exempted 
from  the  operation  of  this  Act  persons 
domiciled  in  South  Africa.  As  to  the 
question  of  the  applicant's  domicile  in 
South  Africa,  that  seemed  to  be  perfect- 
ly clear.  He  was  naturalised  on  Au- 
gust 7,  1903,  having  then  been  some 
time  in  this  colony.  It  was  said  now 
that  letters  of  nataralieation  were  ob- 
tained by  fraudulent  misrepresentation. 
But,  of  course,  that  was  not  a  thing 
that  Mr.  Shawe  could  pronounce  upon ; 
that  was  a  matter  for  the  Court ;  it  was 
not  a  matter  that  any  official  oouHd  pro- 
nounce upon. 

[Hopley,  J.  (interposing):  If  that  is 
so  how  can  the  letters  be  withdrawn?] 

It  must  be  done  by  proper  authority. 
It  cannot  be  done  by  an  official  of  the 
Colony. 

[Ilopley,  J. :  What  is  the  procodu're 
for  cancelling  letters  of  naturalisation?] 

Dr.  Greer:  I  take  it  that  it  would  be 
by  application  to  the  Court  for  cancel- 
lation, and  on  cause  shown  that  there 
had  been  fraudulent  misrepresentation. 
Continuing,  counsel  said  that  so  long  as 
these  letters  of  naturalisation  remained. 
Max  Harris  remained  a  citizen  of  this 
country.  He  had  not  shown  any  inten- 
tion to  leave  here ;  be  had  lived  with  his 
wife  and  family,  and  had  acquired  pro- 
perty here.  Before  he  was  convicted  of 
this  charge  under  the  Gambling  and  Bet- 
ting Act  he  had  acquired  the  ri^^ht  to 
vote  both  at  municipal  and  Parliamen- 
tary elections.  Tliero  could  be  no  clear- 
er case  of  the  domicile.  Harris  was 
clearly  excluded  from  the  operation  of 
this  Act.  Mr.  Shawe  had  further  said 
that  if  Harris  had  acquired  a  dcnnioile 
ho  had  lost  it  by  leaving  Cape  Town  on 
the  19th  April  last.  But,  as  a  matter 
of  fact,  he  was  never  outside  the  Col- 
ony; he  was  never  outeide  the  Colonial 


584 


II 


CAPE  TIMES'*  LAW  REPOBTS. 


waters.    He  said  himself  that  he  did  not 
intend  to  stay  away  from  Cape  Town. 

[Hopley,    J. :    He  had  taken  a  ticket 
to  Durban.] 

Dr.  Greer:  Yes,  a  return  ticket,  mv 
h^rd,  intending  to  come  back.  Proceed- 
ing, counsel  said  thait  it  had  been  at- 
tempted to  set  up  an  undertaking  by 
Harris  that  he  would  leave  the  Colony 
altogether.  That  was  a  position  that  was 
not  supported  by  practically  any  evi- 
dence whatever.  Harris  said  distinctly 
that  no  such  condition  was  made,  and 
that  he  received  his  good  conduct  dis- 
charge, without  any  oondition  whatever 
endorsed  upon  it.  Then  it  was  attempt- 
ed to  bind  him  by  some  proposal  in  the 
petition  made  by  him  v  n  the  7th  'l^ulv, 
1904.  He  said  then  that  he  was  sick, 
and  the  whole  thing  was  in  such  a  posi- 
tion In  Cape  Town  in  reference  to  his 
a8iH>ciates  that  he  would  probably  clear 
out  altogether.  But  there  was  no  under- 
taking to  do  that.  His  law  agent  used 
the  words  "if  so  desired,"  but  that  was 
n'.ore  than  fix  months  before  Harris  was 
released.  Where  was  the  evidence  that 
the  Government  ever  asked  Harris  to 
leave?  He  (oouiisel)  submitted  that, 
upon  all  the  points,  the  case  attempted 
to  be  set  up  by  the  Government  had 
broken  down,  and  that  their  attempt  to 
extend  unduly  the  scope  of  the  Immi- 
gration Act,  which  vrats  never  Intended 
to  apply  to  a  case  of  this  kind,  had  failed. 
It  was  intended  to  apply,  as  the  dth  sec- 
tion distinctly  said,  only  to  people  com- 
ing into  the  Colony  for  fhe  first  time. 
Counsel  submitted  under  the  circum- 
stances that  the  Court  would  grant  the 
applicant  the  relief  asked   for. 

Mr.  Evans  on  behalf  of  the  Crown, 
said  that  this  case  was  one  of  vetry 
great  importance  from  a  constitutional 
point  of  view,  and  tilso,  he  thought, 
from  a  criminal  point  of  view.  It 
was  one  of  the  first  duties  of 
the  Ebcecutive  to  see  that  crime  was 
prevented  as  far  as  poi^sible,  and  if  they 
found  coming  into  the  Colony  a  man 
whose  character  they  knew  to  be  bad, 
and  who  had  been  living  on  the  earnings 
of  prostitution,  it  was  the  duty  of  the 
Executive  to  do  all  in  their  power  to 
keep  that  man  out,  and  if  there  were 
any  statutory  enactment  in  their  favour, 
ihey  should  take  advantage  of  it.  In 
this  case  his  learned  friend  presumed 
that  they  were  acting  under  the  Immi- 
gration Act.  They  did  not  by  any 
means  bind  themselves  down  to  the  Im- 
migration Act.  It  had  bc*en  hold  that  it 
was  within  the  prerogative  of  the 
Executive  to  keep  out  an  undesirable 
alien.  That  power  of  excluding  aliens 
was  one  that  was  not  exercised  arbi- 
trarily. In  the  case  of  Jlaner  v.  Colonial 
Secretary  (14  C.T.R.,  247).  the  Executive 
had  an  i&chnation  thab  this  man  was  an 
undesirable.  They  found  that  he  was 
not  a  British  subject,  and  exercised  the 
prerogative  of  the  Crown,  and  shut  him 
out. 


[Hopley,  J. :    What  was  Raner?] 

He  was  a  Polish  Jew. 

Hopley,  J.,  put  it  to  oounael  whether 
there  was  not  a  difference  between  the 
two  cases,  seeing  that  Harris  was  al- 
ready in  the  country,  and  that  the  Gov- 
ernment were  trying  to  turn  him  out. 

Mr.  Evans:  Raner  was  also  in  the 
country. 

[Hopley,  J.:  How  had  he  got  in? 
He  had  never  got  in  as  a  matter  of 
right.] 

Mr.  Evans:  He  was  in  Gape  Town. 
Counsel  went  on  to  argue  that  the  pre- 
rogative of  the  Crown  also  applied  to 
expulsion. 

[Hopley,  J.:  That's  just  it  Where 
are  your  powers  of  transportation  and 
expuUioof] 

Mr.  Evans:  That  is  the  prerogative 
of  the  Crown.  It  is  one  of  the  few 
remaining  prerogatives  of  the  Crown ; 
it  still  exists,  and  may  still  be  exer- 
cised. Its  exercise,  as  a  matter  of 
fact,  is  subject  to  a  certain  amount  of 
control  by  precedent  and  practice. 
Counsel  went  on  to  refer  to  the  Immigra- 
tion Act.  and  said  it  was  clear  that  ths 
Act  applied  to  ail  British  subjects. 
It  was  not  a  defence  to  any  prosecu- 
tion under  the  Act  that  a  man  was  a 
British  subject,  but  it  did  not  apply  to 
certain  classes  of  British  subjects,  and 
one  of  these  classes  was  all  p«<raons 
domiciled  in  South  Africa.  So  far 
thore  had  been  no  decision  on  the  mean- 
ing of  that  expression,  "persons  domi- 
ciled in  Souitn  Africa."  It  looked  as 
if  the  Legislatutre  used  the  expres- 
sion "  domicile,"  not  in  its  ordinary 
k)ga]  sense,  because  in  law  a  person 
must  have  a  domicile  in  a  country, 
whether  it  were  England.  Scotland.  Ire- 
land, Cape  Colony,  Orange  River 
Colony,  or  the  Transvaal  but  he  could 
not  hive  a  domicile  in  South  Africa  anv 
m(]rc  than  a  man  could  have  a  domicile 
in   Great  Britain. 

[Hopley,  J. :  What  the  Act  obviously 
means  is  a  man  who  is  domiciled  in 
any  of  the  States  of  British  South 
Africa.] 

Mr.  Evans  went  on  to  urge  that  the 
intention  of  the  Legislature  wa«  to  ex- 
clude a  certain  kind  of  person.  He  did 
not  think  that  the  Legislature  had 
used  the  word  *'  domicile "  in  its  strict 
legal  meaning,  but  rather  in  its  wide 
signification.  He  thought  they  meant 
persons  whose  domicile  of  origin  was 
South  Africa,  and  that  they  did  no4 
wish  to  exclude  persons  who  had  always 
lived  in  South  Africa. 

[Hopley,  J. :  Oh,  no.  It  is  no  use 
arguing  that  point;  if  you  argue  here 
till  night,  you  will  not  convince  me  of 
that.] 

Mr.  Evans  (proceeding)  submitted  that 
it  was  for  Mr.  Harris  to  satisfy  the 
Court  that  his  domicile  was  in  o<»uth 
Africa.  Clearly,  from  his  own  affi- 
davit, his  domicile  of  origin  was  Russia. 
They  all  knew  that  in  law  it  was  very 


"CAPE  TIMES'*  LAW  REPORTS. 


685 


difficult  to  get  rid  of  one's  domicile  of 
origin.  It  was  for  a  peiBon  who  as- 
serted the  acquisition  of  a  domicile  or 
choice  to  show  that  he  had  acquired  it, 
because  the  Court  would  always  re- 
gard a  person's  domicile  as  the  domicile 
of  origin,  unless  satisfied  by  evidence 
that  he  had  acquired  a  new  domicile. 
The  burden  of  the  proof  was  on  the 
person  who  assorted  a  new  domicile, 
as  had  been  decided  in  a  number  of 
cases.  The  Court  had  no  evidence, 
except  the  applicant's  own  words,  that 
in  coming  to  this  colony  he  ever  gave 
up  his  Russian  domicile. 

[Hopley,  J. :  There  oould  be  no- 
thmg  stronger  than  the  fact  that  he 
has  actually'  got  letters  of  naturalisation, 
signed  by  the  Governor  of  thds  colony.] 

No,  that  is  not  so;  natunJisation  is 
not  essential  proof. 

fHopley,  J. :  Surely  it  is  not  for 
the  country  that  has  granted  him  let- 
tors  of  naturalisation  to  now  come  and 
say  that  he  has  not  lost  his  domicile 
of  origin?] 

It  is  not  conclusive  evidence  of  domi- 
cile. 

[Hopley,  J. :  Take  that  in  conjunc- 
tion with  other  circumstances?] 

If  a  man  comes  to  this  country  with 
the  bona  fide  intention  of  remaining, 
then  that  is  evidence. 

[Hopley,  J. :  I  wish  I  saw  some 
prospect  of  some  of  these  people  who 
do  come  to  this  country  wishing  to  leave 
it.1 

Mr.  Evans  submitted  that  the  appli- 
cant by  his  subsequent  conduct  showed 
what  his  intentions  were.  He  had  r.o 
intention  of  8ta.ying  here,  and  subject- 
ing himself  to  the  laws  of  this  colony. 

Hopley,  J. :  He  has  subjected  him- 
self to  the  law  of  this  country;  he  has 
had  a  taste  of  it  already.] 

Mr.  Evans  submitted  that  the  very 
mode  of  the  man's  life  showed  that  he 
did  not  intend  to  live  here  permanently. 
He  began  his  career  b^  shebeening,  and 
after  that  he  was  convicted  of  living  on 
the  proceeds  of  prostitution.  Surely  he 
could  not  intend  to  live  ^permanently  in 
a  country  the  law  of  which  he  contra- 
vened every  day. 

Hopley,  J. :  If  your  argument  is 
worth  anything  at  all,  nobody  born  in 
this  couDtrv,  and  who  has  a  domicile 
of  origin  nere,  would  engage  in  the 
ilUcit  diamond  trade  or  live  on  the 
proceeds  of  proartitution.  There  are  a 
great  many  people  born  here  who  do 
break  the  law  in   that  respect. 

There  10  nothing  at  present  to  show 
that  he  ever  acquired  a  domicile  here. 

[Hopley,  J. :  I  think  there  is  every- 
thing to  show  it.  Of  course,  you  may 
show  me  how  he  lost  it.] 

Mr.  Evans  said  that  the  applicant  ar- 
rsved  here  from  RuasBa.  and  no  doubt, 
like  othens^  he  was  forced  to  leave  that 
country. 

[Hopley,  J.,  said  that  coune^  should 


not  assume  that  the  applicant  was  forced 
to  leave  Russia. 

We  do  know  a  number  of  caees  of 
iromi^ants  who  have  left  Russia  be- 
cause they  were  forced.  Proceeding, 
he  said  that  the  applicant  must  show 
that  he  mtended  to  permanently  reside 
in  this  colony.  He  (counsel)  should  be 
able  to  show  that,  as  a  matter  of  fact, 
he  did  not  reside  all  this  time  in  the 
Capo  Colony. 

Dr.  Greer  (interposing) :  There  is 
nothing  of  this  in  the  affidavits. 

Mr.  Evans  said  that  the  affidavits 
had  been  hurriedly  prepared,  as  the  Law 
Department  only  got  notice  about  half- 
IJOAt  eleven  of  the  appl.ication. 

Hopley,  J.,  put  it  to  counsel  whe- 
ther he  was  supposed  to  go  behind  the 
letters  of  naturalisation  granted  by  His 
Excellency  the  Governor. 

Mr.  Evans  said  that  if  there  were  any 
false  e^tements  in  the  declarations, 
then  the  letters  of  naturalisation  were 
void.  If  there  were  not  absolute  fraud 
in  this  matter,  there  was  tuppressio 
veri.  At  the  very  titme  Harris  applied 
for  his  letters,  and  declared  that  he  was 
a  respectable  man,  he  was  living  on  the 
proceeds  of  prostitution,  according  to 
his  own  evidence  in  the  Charterks  case. 

[Hopley,  J. :  Is  not  that  rather  a 
matter  to  be  determined  by  a  trial.] 

Mr.  Evans  said  that  there  was  no 
need  to  declare  the  letters  null  and 
void,  because  if  they  were  obtained  by 
false  representations  the^  were  void. 

Hopley,  J.,  said  that  tt  was  perhaps 
the  intention  of  the  applicant,  when  he 
petitioned  for  release,  to  leave  the  Col- 
ony, and  set  up  a  home  elsewhere.  It 
was  not  fair  to  assume  now  that  that 
was  a  deception  practised  by  him  to  get 
a  remission  of  sentence. 

Mr.  Evans  pointed  out  that  in  his 
letters  the  applicant  said  that  he  intend- 
ed to  leave  tne  Colony  if  released.  His 
agent  also  said  so.  It  was  upon  the 
belief  that  what  the  applicant  said  was 
true  thiut  he  was  released. 

[Hopley,  J. :  You  know  yourself 
how  a  man's  intentions  may  change 
from  time  to  time.  Had  you  made  a 
contract  with  him  that  he  should  be 
bound  to  leave,  it  might  have  been  dif- 
ferent.   Did  you  make  any  condition?] 

Mr.  Evans  said  that  the  Governor 
could  not  attach  any  condition  to  the 
discharge. 

[HopVej,  J. :  Very  well,  then ;  it 
would  have  been  uUra  viret.] 

Mr.  Evans  said  that  the  (rovernor 
could  not  attach  such  a  condition,  but 
they  were  satisfied  that  it  was  the 
man's  intention  to  leave  the  country. 

[Hopley,  J. :  It  shows  you  how  dan- 
gerous it  is  to  believe  tliose  people.] 

Mr.  Evans  went  on  to  argue  that  the 
applicant  had  lost  his  domicile  by  leav- 
ing the  country  in  April  last. 

[Hopley,  J. :  He  only  goes  from  one 
post  to  another;  from  one  South  Afri- 
can port  to  Another.] 


^ 


<« 


OAI^  TIMES*'  lAW  fiBMBTft. 


Mr.  EYans  contended  that  qa  soon  as 
the  applicant  put  hia  foot  on  board  the 
fthip  and  proceeded  beyond  the  terri- 
torial waters  of  the  Colony,  he  left  the 
Cape  Colony  and  hia  domiodle  of  origin 
revived,  and  he  would  have  no  other 
domicile.  It  dfld  not  matter  whether 
he  intended  to  vnake  any  other  domi- 
cile. 

fHople^r,  J.:  Still,  he  is  a  natura- 
lised British  subject.  Even  if  he  had 
gone  back  to  Russia,  he  would  have 
been  a  naturalised  British  subject,  if 
he  had  been  naturalised  in  London  that 
would  have  carried   him   anywhere.] 

He  was  not  naturalised  an  London, 
my  lord,   but  in  Cape  Town. 

[Hopley,  J. :    That  is  just  the  point.] 

A  Colonial  Lejyislature  has  no  power 
to  grant  any  oentificate  which  is  opera- 
tive outside  the  territorial  limits  o*  the 
Colony. 

[Hopley,  J. :  Still,  we  are  in  this 
colony  now.] 

But  Harris  went  out  of  it. 

[Hopley,  J.  :  Never  mind,  you  let 
him  in  again.] 

He  sn«iked  in.  He  came  in  in  con- 
travention of  our  Immigration  Law. 
I  submit  that  he  has  faaled  to  satisfy 
the  Court  that  he  is  domiciled  in 
South  Africa.  He  cannot  show  continu- 
ous residence  here,  and  that  he  came 
here  as  a  law-abidin}?  subject. 

[Hopley,  J. :  Assuming  for  a  mo- 
ment that  these  letters  should  l)e  de- 
clared null  and  void,  then  how  do  you 
shut  him  out?] 

Then  he  is  deported  under  preroga- 
tive. 

[Hopley,  J. :    Where  do  you  get  that 

from?] 

Mr.  Evans:  That  was  upheld  in  the 
case  of  Rainer. 

[Hopley,  J. :  Have  you  any  power  to 
expel  one  of  your  own  subjects?] 

Mr.  Evans:  I  think  we  have  under 
statute. 

[Hopley,  J.:    Which?] 

Mr.  Evans  (after  a  pause) :  No ;  I 
think  we  have  not. 

Proceeding,  counsel  submitted  that  the 
letters  of  naturalisation  were  null  and 
void  ipno  faeto.  Those  letters  of  natur- 
alisation could  only  have  effect  within 
certain  limits.  This  man  was  not  an 
international   law   British    subject. 

[Hoj)ley,  J. :  He  has  every  right  of 
a  British  subject  in  this  colony.] 

No;  because  a  Brdtish  subject  has  a 
right  to  be  a  British  subject  all  round 
the  world.  The  rights  Harris  has  are 
clearly  rights  of  a  certain  kind ;  they 
are  not  international  law  rights. 

[Hopley,  J. :  You  seem  to  think 
that  one  of  these  Colonial-made  British 
subjects,  when  he  goes  outside  the  three- 
mile  limit,  is  no  longer  a  British  sub- 
ject.] 

He  lis  not  an  international  law  Brrtish 
subject. 

In  further  argument,  counsel  said  that 
when  Harris  waa  released  the  Law  De- 


partnient  had  no  reason  to  disbelieve 
him  when  be  said  he  would  leave  the 
Colony. 

[Hopley,  J. :  You  see  to-day  why  you 
should  have  disbelieved   him.  I 

Not  neoeesarily.  I  honestly  believe 
that  at  the  time  he  sent  in  that  peti- 
tion he  intended  to  leave  the  Colony. 
I  do  not  believe  that  he  had  and  idea 
of  defrauding  the  Govenunent. 

Mr.  Evans  proceeded  to  read  from  the 
applicant's  petition  for  release,  and  said 
it  was  from  a  man  down  on  his  luck; 
in  fact,  it  was  like  a  dying   deposition. 

[Hopley,  J. :  Quite  enough  to  de- 
ceive the  Abtorney-Generars  Depart- 
nieiit  apparently.  Surely  all  that  cant- 
ing nonsense  did  not  take  the  department 
in?] 

He  said  he  would  leave  Cape  Town. 
Why  should  he  remain  hiding  like  a 
rat  an  a  hole?  Was  his  oonduct  con- 
sistent with  the  case  which  he  wished 
to  make  out  to  the  Court  now  that  it 
waa  bona  fide? 

[HoplojT,  J. :  He  might  bo  afraid  of 
having  his  neck  broken  by  some  of  the 
people  he  gave  evidence  against.] 

Mr.  Evans  urged  that  the  applicant 
should  be  put  in  the  box  in  order  to 
undergo  a  cross-examination  as  to  his 
whereabouts  since  he  arrived  in  South 
Africa. 

JHapley,  J. :  How  do  you  know  he 
left  at  Port  Elizabeth?] 

He  landed  as  a  passenger  on  the  way 
to  Durban. 

[Hopkdy,  J. :  If  you  had  been  a  little 
*bit  more  prudent,  you  might  have  ex- 
cluded him  from  doing  that.] 

We  mdght  have;  but  we  did  not 
know  he  was  going  to  land. 

[Hopley,  J. :  .^^ou  are  singularly 
trusting  m  tlie  Criminal  Department.] 

Mr.  Evans  said  there  was  every 
reason  to  believe  Harris  that  he  would 
^uit  the  country.  Counsel  said  he  be- 
lieved that  Mr.  Shaw,  the  agent,  be- 
lieved in  Harris's  bona  fidei, 

[Hopley,  J. :  I  suppose  your  intention 
is  to  deport  him.  How  will  you  get  rid 
of  him?) 

Wo  will  get  rid  of  him  at  five  o'clock. 

[Hopley,  J. :    By  a  ship?] 

Yes. 

[Hopley.  J. :  Supposing  he  remains 
in  this  colony,  are  you  going  to  bring 
any  further   criminal    action?] 

I  don't  think  so. 

Dr.  Greer  was  not  called  upon  in 
reply. 

Hopley,  J. :  In  this  case,  k.  appears 
that  the  applicant,  Max  Harris,  was  m 
the  course  of  1904  sentenced  by  the  Re- 
sident Magistrate  of  Cape  Town,  under 
the  Morality  Law,  to  a  sentence  of  two 
years'  imtvisonment  with  hard  labour, 
and  to  a  certain  number  of  lashes.  I 
can  ,take  it,  therefore,  ah  initio^  in  this 
application  that  Harris  was  proved  in 
1904  to  be  a  most  undesirable  pefBon 
t)  have  in  this  oountrr.  A  man  who 
not      only  oontFavened      the    Morality 


*'CAPB  TiMBd''  iiAW  HEt^OltTS. 


587 


Laws,  bat  contravened  them  in  such  a 
way  that  the  Magistrate  would  f^o  al- 
most to  the  extreme  ol  his  jurisdiction, 
which  is  very  extensive  in  these  cases, 
and  inflict  such  a  punishment  must  in 
the  Magistrate's  opmion  have  offended 
against  those  laws  in  a  very  gross 
manner.  We  also  have  it  stated  that 
Harris  followed  a  career  of  svstematic 
crime  in  this  country.  While  Harris 
wad  undergoing  the  punishment  which 
the  law  had  awarded  him  for  immoral 
conduct,  the  Government  made  use  of 
him  as  a  Crown  witness,  and  he  was 
instrumental,  apparently,  in  furthering 
the  ends  of  justice  by  getting  other 
malefactors  convicted.  Now,  whether 
it  was  in  consideration  of  that  conduct 
or  in  consideration  of  general  good 
conduct,  it  appears  that  there  was  a 
considerable  mitigation  of  the  sentence 
gtiven,  and  a  pardon  was  issued  hy  the 
Governor,  no  doubt  with  the  advice  of 
the  Executive  Council.  I  think  it  was 
ill  April  last  that  the  rest  of  the  sen- 
tence was  remitted,  and  the  ground 
there  stated  is  simply  one  genorally  of 
good  conduct.  It  will  be  observed  there 
was  absolutely  no  condition  attached  to 
this  mitigation  of  sentence  by  His 
Excellency  or  by  the  departmeut  which 
had  to  do  with  this  matter  making  it 
obligatory  on  this  man  to  leave  the 
country.  But  it  is  said  that  fhe  At- 
tomey-Generars  Department  thought 
that  the  petitioner,  as  ho  then  was, 
was  quite  sincere  dn  his  expressed  in- 
tention to  go  to  a  new  country  and 
live  a  new  life,  and  so  redeem  the 
errors  of  his  past,  and  that  acting  upon 
that  assumption,  which  they  thought 
must  be  sincere,  coming  from  such  a 
source,  at  such  a  time,  they  advised 
His  Excellency  the  Governor  to  grant 
this  RUtigation  of  sentence.  All  I  can 
say  is  that  they  proceeded  on  very 
slight  grounds  if  they  were  taken  in  by 
words  of  that  sort.  In  this  particular 
case  there  was  abundant  opportunity 
of  knowing  the  character  of  the  mail 
they  had  to  deal  with.  A  man 
of  honour  mi^hfc  consider  that  hav- 
ing obtained  his  release,  he  should  at 
once  leave  the  country,  but  in  this  case 
they  were  not  dealing  with  a  man  of 
honour.  The  very  fact  of  the  man's 
career,  so  far  as  it  had  been  exposed, 
ought  to  have  shown  that  there  was  not 
a  shred  of  honour  in  him.  Having  got 
his  release,  it  seems  to  me  he  might 
have  gone  about  the  streets  of  Capo 
Town  or  about  this  colony  generally 
without  anybody  being  empowered  to 
get  rid  of  him.  But  it  is  contended 
that,  because,  shortly  after  his  release, 
he  took  a  return  ticket  from  Cape  Town 
to  Durban,  he  became  once  more  an 
alien.  I  should  remark  that,  while  he 
was  residing  here,  and  in  the  year  1903, 
he  had  obtained  letters  of  naturalisa- 
tion from  His  Excellency  the  Governor, 
which  letters  are  now  produced  in 
court,  and  are  still  apparently  of     full 


force  and  effect.    According  to  them  on 
the  drd   June.   1903,    Max   Harris,   was, 
under    Has    Excellency's    hand,  granted 
a      certificate      of      naturalisation      as 
a     British     subject,     giving     him     all 
the     privileges     and     rights     and     sub- 
jecting     him     to      the      laws      of      a 
natural-boni    British    subject    in        this 
colony.        It   tioems    to    moj    as  I    have 
said,   that  when  he  got  his     release  on 
the  ground  of  good   conduct    he    coulu 
have     gone  about  wherever  no  wished, 
and  he  need  never  have  left  this  coun- 
try,  there  being  nothing  at  all  making 
it   obligatory    on    him    to    do    so.     The 
fact    that    he   took  a   return    ticket     to 
another  colony  in   South  Africa  is  very 
material   in    the    present    circumstances, 
and  in  view  of  the  contention  that  has 
been  raised  against  him  by  the  Crown, 
because  one  has  to  judge  his     intentions 
by  his   acts.        One   would  say  that   his 
intention  when   he  left  for   Natal      was 
to   return  again  to     Cape  Town   within 
three  months,  which  I  believo  to  be  the 
I     time  for  which  such  return    tickets  are 
j     available.        We    have  the   further   fact 
I     that    he    has     a     house    here     at     the 
•.rosent    time,    and    that  he   has  a    wife 
;     iivinf^   in    that   house.        As  far  as   one 
can   judge  from   his  acts,    it  seems   that 
!     when  he  expressed  his    intention  to    go 
away  to  a  new  country,   he  did  not  in- 
tend   to  fulfil    that   intention,    although 
apparently    the    department    which    had 
to    do   with    this    matter    thought   they 
might    trust    him   to    carry  it  out.    Mr. 
Evans  has  argued  this  niatter  as  though 
it    were    a   case    of    losing   domicile   of 
choice.      Harris   had   cloarly  obtained    a 
domicile   of   choice   and    that   in    South 
Africa.        Has  ho  lost  that  by  anything; 
ho     has  done?      Mr.  Evans  is  forced  to 
I     eo       so       far       as        to       say       that 
'     Harris       when      he      left      Capo    Town 
'     with      the        return       ticket       in        hi:s 
pocket,  and  went  on  board  a  British  ship 
,     bound  from  one  British  port  to  another, 
j     as  soon  as  he  went  beyond   the   three- 
:     mile  Umit,   ceased  to  be  a  British  sub- 
ject as  far  as  this  colony  was  concerned. 
I   do   not   think   that  any  case  has  ever 
gone    anywhere  within    measurable   dis- 
tance of  such  a  proposition  tm  that,  and 
it  would  be  impossible  to  hold  that  that 
it  is  founded  on  good  law.    It  is  quite 
possible   that   if   the   Attorney-General's 
Department    had    been    very    suspicious 
ana  very  vigilant,  and  had  telegraphed 
to  every  intermediate  port  bctwee-n  this 
and    Durban,    it   might   in   the   circum- 
stances have  prevented  his  landing     fft 
any  such  port,   but  whether  it  was  on 
account    of    his    illness    or    whether    it 
was  by  subterfuge  or  stratagem,  he  got 
i     back    nere  again.     What    the    man    did 
was    to    get    off    at    Port    Elizabeth— I 
think  he  said  he  was  too  ill  to  proceed — 
and  then  he  took  train,  and  came  back 
to   Cape   Town      almost      immeddately, 
where  it  is  said  he  has  been  living  ever 
since.    Now,    it  is  stated   on   behalf  of 
the  Government,  that  he  is  a  most  un- 


M 


« 


CAPS  TDCSB**  lAW  BEt*QiETa. 


detirable  man,  who  should  be  goi  rid 
of,  and  he  certainly  is  one  of  whom  I 
wish  the  Colony  could  be  rid.  The 
Under-Colonial  Secretary  says  that  ap- 
plicant is  to  be  deported  from  this 
colony  under  tub-section  (f)  or  section  2 
of  the  Immigration  Act  (No.  47  of. 
1902).  That  section,  however,  is  aimp'- 
a  defining  section.  Sub-section  di 
simply  dennes  a  prohibited  immigrant. 
The  fourth  section  of  the  Act  aays 
that  subject  to  the  provisions  of  this 
Act  it  shall  be  unlawful  for  a  prohibited 
immigrant  to  enter  this  colony  either 
by  sea  or  by  land.  All  that  is  very 
well  when  a  person  is  seeking  to  set 
foot  in  thoa  colony  and  for  a  case  such 
as  that  of  Ranor.  The  Attorney-Gene- 
ral knew  what  sort  if  man  this  Harris 
was,  and  he  could  certainly  have  jpro- 
hibited  him  from  landing  in  this  ooK>ny 
if  sub-section  (f)  of  section  2  cKf  the 
Act  could  be  made  to  apply.  But  H 
was  stated  at  the  beginning  of  the 
case  that  an  important  constitutional 
pfjint  was  involved,  and,  however  much 
ono  may  wish  to  get  rid  of  undesir- 
al)lc  people,  the  Court  must  always  be 
guided  m  the  first  instance  by  great 
constitutional  principles  and  be  careful 
not  to  infringe  upon  the  rights  and 
liberties  of  any  of  His  Majesty's  sub- 
jects, or  any  other  human  beings,  bo 
far  as  they  have  rights  and  likwrties. 
Is  there  anything  in  this  Immigration 
Act  which  authorises  the  Government 
of  this  colony,  if  they  think  a  man  a 
British  subject,  is  an  undesirable  person 
t(>  have  in  this  colony,  to  get  rid  of 
him?  I  see  nothing  at  all  in  this 
Immigration  Act  which  enables  the 
Government,  of  a  man  is  living 
here,  and  especially  if  he  has  taken 
out  letters  of  naturalisation,  even 
though  he  may  be  an  undesirable,  to  de- 
port him  to  some  foreign  country.  Un- 
der the  Act  a  person  who  is  undesirable 
would  not  be  allowed  to  land  here,  but, 
still,  through  some  oversight  or  other, 
or  because  it  was  done  in  ignorance, 
Harris  has  been  allowed  to  land  in  this 
country,  he  has  been  allowed  to  be 
naturalised  as  a  British  subject,  and  it  ifi 
impossible  now  to  get  rid  of  him  on  such 
grounds  as  are  now  relied  upon  by  the 
rospondents,  thouf^h  they  may  possibly 
discover  some  legttimate  way  of  doing 
so  It  eeems  to  me,  therefore,  that  the 
application  must  succeed. 

Ho^ley,  J.,  said  he  regret^d,  under 
the  circumstances,  because  he  knew 
something  of  the  character  of  this  man, 
that  such  an  order  must  be  given,  but 
it  seemed  to  him,  as  a  matter  of  law,  that 
applicant  should  be  released  from  cus- 
tody as  prayed.  An  order  would  l>e 
granted  accordingly. 

[Applicant's  Attorney:    O.  Brady.] 


SUPREME  COURT 


[Before  the  Acting  Chief  Justice  (the 
Hon.  Sir  John  BtcHANAN),  and  the 
Hon.  Mr.  Justice  Maabdorp.] 


aUASSICK  V.  B.8.A.  ASPHALT  f        19U5. 

CM>.  I  July  31a|. 

Mr.  Struben,  on  behalf  of  the  defen- 
dants in  the  action,  moved  for  an  order 
for  the  return  of  a  sum  of  £l^  paid 
into  court  by  defendants  as  security,  ir 
order  to  purge  default.  The  action  had 
resulted  in  a  judgment  for  the  defen- 
dant company  for  a  net  sum  of  £10. 

Order  granted  as  prayed. 


STEEB  ¥.  KALK  BAY  MUMCIPALITT. 

This  was  an  argument  upon  an  ex- 
ception taken  by  the  defendant  muni- 
cipality to  the  cleclaration  of  the  plain- 
tiff, an  auctioneer  and  conveyancer,  re- 
siding art    Sea  Podnt. 

From  the  pleadings,  it  appeared  that 
the  plaintiflf  in  1903  entered  into  an 
agreement  to  lease  for  a  period  of  three 
years  from  the  Venerable  Archdeacon 
Li^htfoot,  since  deceased,  certain  pre- 
mises at  Kalk  Bay,  known  as  Douglas 
Cottage.  In  October,  1904,  the  pre- 
n.ises  were  purchased  by  defendants, 
und  plaintiff  was  accepted  as  tenant 
under  the  agreement  of  lease.  In  his 
declaration  plaintiff  said  that  the  lease 
provided  that  the  lessee  should,  durmg 
nis  tenancjr.  keep  in  repair  the  interior 
of  the  buildings,  so  let,  and  that  he 
should  at  i^ne  expiration  of  the  lease 
deliver  over  the  premises  in  the  like 
order  and  condition  as  he  should  have 
received  them,  reasonable  wear  and  tear 
only  excepted.  There  was  no  clause 
m  the  agreement  relating  to  the  repair 
of  the  exterior  of  the  building.  Plain- 
tiff said  that  defendants  had  allowed 
the  exterior  to  become  extremely  dila- 
pidated, and  had  refused  to  put  the 
same  in  repair.  In  paragraph  7  of  his 
declaration,  plaintiff  said  that  by  clause 
D  of  the  said  lease  it  was  provided  that 
the  I^see  should  have  the  right  to  sub- 
let the  prooerty  or  any  portion  thereof, 
and  the  plaintiff  had  been  orevented, 
by  reason  of  the  premises,  for  a  long 
period  from  sub-letting  the  property  or 
from  having  the  use  and  occupation 
thereof,  and  had  sustained  damages  in 
tne  6um  of  £100.  He  claimed  (a)  an 
order  requiring  defendants  to  put  the 
pxlerior  in  due  repair,  or,  in  the  alter- 
native, to  pay  him  £56  Ss.  6d.,  which 
amount   it  was  estimated    would    be  re- 

SK^'^rvi?  ?^*^®  ^^^  premises  in  repair ; 
|b)  £200  damages,  as  set  out  in  par*- 
graph  7;  (c)  alternative  relief;  (d)  costs 
of  suit. 

The  defendant^  municipality  excepted 
to    the    declaration,    and   especially   to 


II 


CAPB  TIMB8"  lAW  REPORTS. 


589 


paragraph  7  thereof,  and  said  that  it 
was  vague  and  embarrassing,  and  did 
not  set  forth  a  cause  of  action.  The 
excipientfi  prayed  that  paragraph  7  and 
prayer  (b)  of  the  declaration  may  be 
struck  out,    with   costs. 

Mr.  Russel  was  for  the  excipients  and 
defenda.its ;  Mr.  U^inp^ton  was  for  the 
respondent   and   plaintiff. 

Mr.  Russell :  The  exception  is  taken 
to  paragraph  7  of  the  declaration  on 
the  ground  that  it  is  vague  and  em- 
barrassing and  does  not  sot  forth  a 
good  cause  of  action.  The  plaintiff 
does  not  aJlego  knowledge  on  our  part 
of  any  defect  in  the  premises. 

[Buchanan,  A.  C.  J. :  Do  the  prem- 
ises belong  to  you?] 

Yes. 

fBuchanan,  A.  C.  J. :  Surely  you 
know  the  condition  of  your  own 
promises.] 

But  our  knowledge  is  not  alleged. 

[Buchanan^  A.  C.  J. :  Paragraph  6  of 
the  declaration  covers  that.] 

The  cause  of  action  must  be  stated 
ill  the  declaration.  Here  the  respond- 
ents cladm  £100  as  damages,  and  yet 
we  have  been  owners  for  only  six 
months  and  they  could  only  bo  pre- 
judiced by  any  action  of  ours  to  the 
extent  of  £5  a  month. 

fBucbanan,  A.  C.  J. :  In  paragraph 
6  the  allegatioQ  meets  your  exception.] 

The  words  used  there  are  de  preaenti. 
But  the  declaration  was  filed  alter  the 
damage  was  alleged  to  have  been  sus- 
tained, and  it  does  not  say  that  we 
knew  anything  about  the  alleged  defect 
anterior  to  that  date.  I  submit  that  the 
plaintiff  has  not  set  oirt  any  cause  of 
action  to  which  the  defendant  can 
plead. 

Mr.  Upington  was  not  called  upon. 

[Buchanan,  A.  C.  J. :  The  plaintiff  is 
the  lessee  of  certain  premises  now  be- 
longing to  the  defendants,  and  sues  the 
defendants  for  a  breach  of  the  contract 
of  lease,  the  alleged  breach  being  the 
want  of  repairing  by  the  landlord  of  the 
exterior  of  the  premises  leased.  To  the 
declaration  a  general  exception  is  taken, 
stating  that  it  does  not  set  forth  a  cause 
of  action,  and  in  argument  leaned  coun- 
sel has  stated  the  grounds  of  his  excep- 
tion to  be  firstly,  that  there  is  no  alle- 
gation that  the  defendants  knew  of  the 
defects  in  the  repairs  to  the  premises; 
and.  secondlv,  that  the  damage  claimed 
for  occurred  before  such  knowledge 
was  brought  home  to  the  landlord.  I 
see  in  paragraph  6  of  the  declaration 
an  allegation  that  a  demand  was  duly 
made  upon  the  landlord  to  execute  the 
repairs,  and  that  he  refused  to  do  so. 
That  is  a  distinct  allegation  of  know- 
ledge in  Uie  declaration.  As  to  the 
second  ground  of  exception  it  is  true 
that  the  declaration  does  not  go  on  to 
say  that  the  notice  was  given  before 
the  damage  occurred.  That  is  a  matter 
of  eridenoe  and  the  evidence  may  or 
may  not  prore  defendant's  liabiUty.    I 


think  there  is  not  sufficient  ground 
upon  which  to  take  exception  to  the 
declaration.  The  exception  must  be 
over-ruled,  with  oosts. 


UOULDER  BK08.  V.  COLONIAL  f        19U5. 

OOVEBMMENT.  (July  3lBt. 

Pleading  —  Exception  —  Demur- 
rage— Consignee. 

//.  Bro9.  contracted  under  a 
C.I.F.  contract  to  aupjAy  ter- 
tain  coal  to  tfie  Cape  Govern- 
ment. The  Government  agreed 
to  pay  demurrage  to  the  owners 
of  ive  vessels  conveying  the 
coal  at  certain  rates.  Plain- 
tiffs alleged  in  their  declaration 
that  this  contract  had  subse- 
quently heen  vaned  by  a 
certain  letter  wiiiten  by  them 
to  the  AgeiU  General  foi'  the 
Colony^  but  this  amendment 
was  not  specially  plecKled. 

Held  on  argument  on  ex- 
ceptions, that  the  declaration 
loas  irrelevant^  embarrassing 
and  bad  in  law. 


This  was  an  argument  upon  an  ex- 
ception taken  by  the  plaintiffs  to  the 
defendant's  plea  in  an  action  for  de- 
murrage. 

Plaintiff's  declaration  alleged  that  in 
the  month  of  August,  1901,  and  in 
London,  there  was  an  agreement  made 
between  the  parties  in  regard  to 
the  supply  of  certain  ooaL  Plain- 
tiffs had  to  supply  certain  coal, 
send  it  from  England,  and  deliver  it  in 
this  colony.  They  alleged  that  it  was 
agreed  between  the  parties  that  the  de- 
livery should  be  taken  at  a  certain  rate, 
or  that  the  Government  was  to  be 
liable  for  demurrage  at  the  rate  of  4d. 
per  net  registered  ton  per  day  for  sail- 
ing vessels  and  6d.  per  net  registered 
ton  per  day  for  steamers.  The  de- 
livery had  to  be  at  the  rate  of  120  tons 
per  day  for  sailing  vessels,  and  250  tons 
^er  day  for  steamers.  The  plaintiffs 
said  that  the  defendants  neglected  and 
failed  to  take  delivery  as  agreed  upon, 
and  that  they  thereupon  became  liable 
in  demurrage  at  the  rate  agreed  upon. 
In  the  alternative,  plaintiffs  said  that, 
bv  reason  of  the  failure  and  neglect  of 
the  Cape  Government  to  take  delivery, 
the  steamers  were  unduly  and  impro- 
perly detained  in  Table  Bay,  and  plain- 
tiffs suffered  loss  and  damage,  which 
loss  and  damage  the  Government  had 
paid,  with  the  exception  of  a  certain 
amount  now  daimed. 


MO 


M 


GAPE  TIMBB**  LAW  tOPCibm. 


The  defendanU  in  their  plea  said  that 
the  temu  of  the  agroement  referred 
to  in  the  said  paragraph  were  contained 
in  a  certain  letter  addreaaed  by  the 
plaintiffs  on  the  7th  August  to  the 
Agent-General  for  the  Cape  of  Good 
Hope,  and  for  greater  certainty,  prayed 
leave  to  refer  to  that  leMcr. 

Sir  H.  Juta.  K.C.  (with  him  Mr. 
Struberi),    was  for   the   exeipienta      and 

Slaintiffs;    Mr.  Searle,  K.C.  (With  him 
tr.   Burton),  waa     for  the  reepoodents 
and  defendants. 

Bir  U.  Juta  said  that  the  defend- 
ants, in  that  plea,  did  not  sot  up  the 
point  which  was  now  before  the  Court, 
but  they  received  leave  to  amend  their 
plea,  and  they  put  this  particular  plea 
m  paragraph  7.  Sub-section  (a)  aaid 
that  the  ships  referred  to  in  paragri4>h 
4  of  the  declaration  were  all  of  them 
ships  chartered  by  the  plaintiffs,  and 
the  rates  of  discharge  and  demurrage 
stipulated  for  in  the  charter  parties 
were  different  from  those  mentioned  in 
the  said  letter  of  August  7,  1901,  which 
constituted  the  ccmtract  between  the 
partie?.  The  liabilitios  of  the  defen- 
dants, if  any,  were  to  the  owners  of  the 
said  ships  respectivelv.  and  not  to  the 
plaintiffs,  and  were  for  amounts  which 
depended  upon  the  terms  of  the  bills  of 
lading  for  the  cargoes  transferred  by 
the  plaintiffs  to  the  defendants,  and 
not  otherwise.  In  sub-section  (b),  de- 
fendants said  that  if  the  plaintiffs  suf- 
fered any  loss  or  damage  by  reason  of 
the  alleged  detention  <»  the  said  ships, 
the  amount  of  such  loss  or  damage,  if 
any,  was  in  respect  of  the  liabilities  of 
the  said  plaintiffs  under  the  said  charter 
parties  and  no  particulars  had  been 
supplied  to  defendants  of  any  such  loss 
or  damage.  To  this  plea  the  plaintiffs 
excepted,  in  that,  according  to  the  true 
intent  and  construction  olthe  annexed 
letter  (of  the  7th  August),  the  Cape 
Government  contracted  liability  direct 
to  the  plaintiffs,  and  not  to  the  owners 
of  the  said  ships,  with  whom  the  said 
Government  had  2no  priopty  of  con- 
tract. As  to  paragraph  7  (b),  by  the 
agreement  in  the  said  letter,  the  said 
Government  undertook  to  pay  de- 
murrage at  a  specific  rate,  and  were 
liable  to  damages  for  detention  of  the 
said  ships  without  any  reference  what- 
ever to  the  liabilities,  if  any,  that  the 
plaintiffs  had  or  may  have  in  respect 
of  the  said  charter  parties.  By  reason 
thereof,  the  said  paragraphs  were  irre- 
levant, embarrassing,  and  bad  in  law, 
and  the  excipionts  prayed  that  the  said 
paragraphs  might  be  ordered  to  be 
struck  out  of  the  tfaid  plea,  with 
coftts.  Counsel      argued      that      the 

reason  why  the  exception  was  taken  was 
that,  should  the  plea  be  allowed,  there 
would  have  to  be  a  commission  ap- 
pointed to  go  to  Kngland  in  order  to 
ascertain  what  the  meaning  was  of  the 
Tarious  charter  parties,  and  in  order  to 
obviate  any  unnecessary    coits,  the    ex- 


ception bad  been  taken.  Tlie  exoipi- 
ents  said  that  the  contract  was  between 
themselves  and   the  Government. 

Mr.  Searle  said  this  must  be  con- 
sidered as  a  C.I.F.  contract,  and  not 
an  F.O.B.  contract.  That  was  set  out 
in  the  deolaration.  The  freight  and  in- 
surance had  to  be  paid  out  here  by 
the  shipowner  and  tne  consignee,  and 
the  cost  had  to  be  paid  to  the  consignor. 
It  was  quite  clear  thai  under  a  con- 
tract of  this  kind  Moulders  took  up  a 
ship  to  deliver  this  coal,  and  the  Grov- 
ernment  who  took  part  in  that  were 
liable  to  the^  8hipo>wners  for  demurrage. 
They  were  liable  under  the  C.I.F.  con- 
tract. The  meaning  of  this  contract 
was  that  the  Government  could  not 
make  Houldera  liable  for  more  than 
four^nce  per  ton  per  day,  and  if  they 
jTot  it  for  less  the  Government  would 
>enefit.  The  Government  could  not  be 
iable  to  two  people,  and  they  were 
iable  to  the  snip.  An  action  had  al- 
ready been  entered  in  England  with  re- 
garci  to  this  case,  and  many  of  the 
documents  were  at  present  there.  Has 
point  was  that  under  a  '*  C.I.F." 
contract  the  consignee  had  to  be- 
come definitely  liable  to  the  ship- 
owner, and  a  contract  sprang  up 
between  the  two  parties,  and  there 
could  not  be  a  contract  with  a 
third  party.  The  meaning  of  the  letter 
written  to  the  Colonial  Government  by 
Houlder  Bros,  was  that  in  chartering  a 
ship  they  were  not  to  incur  nx>re  lia- 
bility for  the  (jrovernn^ent  than  four- 
pence  per  ton  per  day  as  demurrage. 
He  submitted  that  this  was  not  a 
matter  that  could  be  disposed  of  on 
exception.  It  was  a  matter  that  should 
form  portion  of  the  evidence  given  at 
the  trial  to  show  exactly  what  happened. 
They  wantK)d  the  charter  parties,  the 
bilk  of  lading,  and  the  whole  amounts 
paid  before  them.  He  really  thought 
it  was  impossible  to  settle  this  point 
without  going  into  the  whole  of 
the  contract.  The  exception  had 
been  raised  because  it  wafi  thought  that 
that  would  do  away  with  the  coat  of  a 
oommoesion,  but  evidence  on  commit 
sion  was  absolutely  necessary,  especially 
the  evidence  of  a  gentleman  in  the 
A[^ent- General's  office,  and  without  that 
evidence  he  did  not  see  that  the  Court 
could  give  judgment  in  this  case. 

Sir  H.  Juta,  in  reply,  said  he  did 
not  see  how  any  gpntlcman  in  the  Agent- 
Generaris  office  in  London  had  any- 
thing to  do  with  the  delay  in  the  vessels 
arriving  here.  Under  a  C.I.F.  contract 
the  man  in  Ruroj^e  sold  for  &  lump 
sum.  and  if  the  freightage  in  the  me&n- 
tync  went  up  that  was  his  look-out 
He  fiubmitted  that  this  contract  was  per- 
fectly clear,  the  terms  were  perfecMy 
clear,  and  consequently  they  were  liable 
to  his  clients  for  the  amount.  The  point 
the  Court  had  to  decide  about  the  de- 
murrage was  whether  it  was  fourpence 
or  sixpence  per  ton  per  day.  They  had 
not  to  decide  the  amount  due. 


M 


GAF8  TIMI8'*  lAW  BBPOBTS. 


001 


Id  reply  io  Buohanan,  A.  C.  J., 
Sir  H.  Juta  6aid  the  exception  tbey 
raised  was  that  the  defendants  wished 
to  set  up  under  paragraph  7a  some  lia- 
bility inconsistent  with  the  contract 
which  they  themselves  entered  into. 

Sir  H.  Juta  applied  for  leave  to  with- 
draw his  alternative  claim. 

The  application  was  granted. 

Buchanan^  A.  CL  J.>  said  the  plaintiffs 
in  this  action  (Messrs.  Houlder  Bros.) 
entered  into  a  contract  with  the  Ca|pe 
Government  for  the  supply  of  certam 
coal  on  terms  stated  in  a  letter  of 
August  7,  1901.  In  this  letter  provision 
was  made  for  shipping  the  coal  to  Table 
Bay  and  Port  Elizabeth  at  a  certain  rate 
corering  all  charges — a  C.I.F.  contract. 
The  agreement  went  on  to  say  that  if 
there  was  any  delay  in  discharging  the 
ships  carrying  the  coal  the  Grovemment 
was  to  pay  a  fixed  amount  of  demur- 
rage at  the  rate  of  fourpence  per  ton 
per  day  for  sailers  and  sixpence  per 
ton  per  day  for  steamers.  The 
contract  was  entered  into  during  the 
late  war  and  from  the  condition  of  the 
port  of  discharge,  demurrage  became 
payable,  as  no  dJbubi  both  parties  to  the 
contract  anticipated  it  would.  The 
Government,  to  obtain  delivery  of  the 
coal  from  the  various  vessels,  paid  them 
a  certain  amount  of  demurrage,  leav- 
ing a  balance  now  claimed  by  the 
plaintiffs  of  some  £10,000.  The  defen- 
dants pleaded  the  letter  of  August  7, 
which  set  forth  the  terms  of  the  con- 
tract, and  then  two  paragraphs  of  a 
plea,  to  which  exception  wae  taken  to 
as  being  inconsistent  with  that  letter. 
One  of  the  clauses — clause  7  (a) — ^statod 
that  '*the  ships  referred  to  in  paragraph 
4  of  the  declaration  were  all  of  them 
ships  chartered  by  the  plaintiffs.  The 
rates  of  discharge  and  the  rates  of  de- 
murrage stipuUt<'d  for  in  the  charters 
of  these  veasels  were  different  from 
those  mentioned  in  the  letter  of 
August  7.  The  liabilities  of  the 
Oape  Government  were  to  the 
owners  of  the  flh^ps  respectively,  and 
not  to  the  plaintiffs,  and  were  ifor  a- 
mounts  which  depenaed  upon  the  terms 
of  the  bills  of  lading  for  the  cargoes 
transferred  by  the  plaintiffs  to  the  Cape 
Government,  and  not  otherwise."  Now, 
he  thought  that  the  exception  that  this 
paragraph  was  in(>onsistent  with  the  let- 
ter of  August  7  was  a  good  one.  The 
letter  of  tne  7th  August  was  the  basis 
of  the  contract  between  the  parties, 
and  if  there  was  any  subtioquent  con- 
tract whioh  rendered  the  Cape  Govern- 
ment liable  for  an<»ther  scale  of  charges 
that  should  have  been  set  forth.  There 
was  no  allegation  of  any  subsequent 
contract  in  between  the  parties  depart- 
ing from  the  original  terms.  In  the 
absenoe  of  any  clear  assertion  of  that 
kind,  the  plea  was  inconeistent  wdth  the 
letter  and  would  have  to  be  amended. 
If  the  Government  could  show  any 
specific    subsequent  contract,  then  that 


should  be  specifioally  pleaded  so  that  the 
plaintiffs  would  know  what  they  had 
to  meet.  If  there  was  anv  such  con- 
tract to  be  found  in  the  bills  of  lading, 
it  was  not  sufficient  merely  to  have  a 
casual  reference  dn  the  pica  to  these 
bills  and  not  to  set  out  the  new  agree- 
ment whatever  it  might  be.  rara- 
graph  7b  had  also  been  excepted  to.  It 
would  be  very  difficult  to  say  that  It 
was  bad,  in  view  of  the  fact  that 
Sir  H.  Juta  had  applied  for  leave  to 
withdraw  the  alternative  claim.  This 
withdrawal  of  the  declaration  would 
necessitate  the  akeration  of  the  plea. 
The  question  as  to  whether  a  commis- 
sion should  be  appointed  would  have  to 
stand  over  a  little  until  they  had  the 
pleadings  before  the  Court.  On  those 
grounds  the  exception  would  have  to  be 
allowed,  and  costs  would  be  costs  in  the 
cause. 

Sir  H.  Juta  said  that  as  the  excep- 
tion had  been  upheld  he  thought  costs 
should  bo  griven  against  the  defendants. 

Mr.  Searle  said  that  as  the  plaintiffs 
were  withdrawing  portion  of  their  case, 
he  thought  the  costs  should  be  costs  in 
the  cause.  It  would  necessitate  his 
clients  amending  their  plea. 

An  order  was  made  allowing  the  plain- 
ti  thffe  costs  of  the  exception,  but  the 
plaintiff  would  have  to  pay  any  costs 
necessitated  by  the  amendment  of  the 
declaration. 


OBOBBEULAB  V.  COLONIAL  GOTBBNMBNT. 

This  was  an  argument  upon  an  ex- 
ception taken  b^  the  plaintiff  to  the  de- 
fondants'  plea  in  an  action  instituted 
for  £204  lOs.,  salary  alleged  to  be  due 
to  the  plaintiff  as  sheep  inspector  in 
the  employ  of  the  Government. 

The  declaration  net  out  that  the  plain- 
tiff was  a  sheep  inspector  residing  at 
Murraysburg,  and  the  defendant  was  the 
Ministor  for  Agriculture.  On  the  9th 
Novemhor,  1900,  d<>fendant  employed 
plaintiff  as  inspector  of  sheep  under  the 
provisions  of  section  10,  Act  28  of  1899, 
for  Field-cornetcies  5  and  6,  division  of 
Murraysburg,  at  a  salary  of  £175  per 
annum,  the  employment  to  be  terminable 
at  one  month's  notice.  Ho  had  at  all 
times  matorial  been  ready  and  willing 
to  perform  and  had  performed  the  duties 
of  his  office.  Defendant  duly  paid  to 
the  plaintiff  salary  in  respect  of  the  said 
employment  up  to  and  including  the  6tb 
Jufv,  1901,  and  from  the  1st  August, 
190^,  to  the  25th  August,  1902,  upon 
which  lattor  date  the  defendant  purport- 
ed to  summarily  dismiss  the  plaintiff,  and 
terminated  the  said  employment.  There 
was  now  due  and  owing  to  the  plaintiff 
a  sum  of  £204  lOs.,  as  and  for  salary 
aforesaid  from  the  6th  July,  1901,  up  to 
and  including  the  Slst  July,  1902. 

Defendant  in  his  plea,   admitted     the 
formal  allegations,  and  admitted  that  tl|e 


«« 


CAPE  TIMES"  LAW  BEPCttTB. 


plaintiff  duly  ontered  upon  the  said  em- 
ploynient,  but  he  dcuieci  tbo  other  h\le- 
(Rations  in  paragraph  4,  and  said  that  on 
the  12th  August,  1901,  plaintiff  was  de- 
ported from  Murrayaburg  by  the  Im- 
perial military  auioonties,  and  continued 
to  be  80  deported,  and  waa  wholly  unable 
to  perform,  and  did  not  perform  the 
duties  of  his  employinent  irom  the  fhid 
date  until  the  3l9t  July,  1902.  Defend- 
ant had  tendered  to  the  plaiiUiff  salary 
due  to  him  up  to  ttie  12th  August, 
1901.  He  denied  that  the  sum  of  £204 
10s.  was  due  to  plaintiff  from  the  6th 
JuW,  1901,  to  the  3l8t  July.  1902.  and 
said  plaintiff  was  entitled  to  daim  for 
the  period  6th  July.  1901,  to  12th  Au- 
gust, 1901.  Defendant  prated  that  the 
claim  may  be  dismissed,  with  costs. 

Plaintiff  excepted  to  the  plea  as  bad 
in  law,  and  disclosing  no  defence  to  the 
plamtiff*s  claim,  and  said  more  parti- 
cularly that  the  allegations  contained  in 
paragraph  3  thereof,  even  if  proved, 
afforded  no  answer  m*  defence  in  law  to 
the  said  claim. 

Mr.  Upington  was  for  the  excipient 
and  plaintiff;  Sir  H.  Juia,  K.C.,  was 
for  ttie  respondents  and  defendants. 

Mr.  Upington  e^d  that  their  lordships 
would  recollect  that  the  liability  of  the 
Government  in  regard  to  the  salaries  of 
sheep  inspectors,  and  other  Government 
contrgctors,  who  had  been  nnablo  to  per- 
form their  duties,  owing  to  the  existence 
of  martial  law,  had  been  before  the 
Court  in  .several  cases.  The  first  rase 
was  that  of  a  postal  contractor.  Mtdler 
V.  Colonial  Goremment  (12  C.T.R.  946) 
Then  there  was  the  case  of  Van  der 
Menee  y.  Colonial  Oovemmeni  (14 
C.T.R.  732)  and  recently  there  had 
been  the  case  of  lAtthe  v.  Colonial 
Government  (15  C.T.R.  521)  Lubbe's  ease 
was  one  of  deportation,  but  the  judg- 
ment <tid  not  go  upon  that  podnt.  His 
(counsel's)  submission  in  tne  present 
case  would  l)e  that  a  sheep  inspector, 
who  was  engaged  on  a  contract  termin- 
able at  one  month's  notice,  and  who 
was  prevented  from  performing  his  dut- 
ies ^  owing  to  the  intervention  of  the 
nailitary  authorities,  acting  under  mar- 
tial law,  was  entitled  to  recover  salary, 
unless  the  Government  took  the  oounae 
which  was  open  to  them  of  terminating 
the  contract;  in  other  words,  the  Gov- 
ernment could  not  continue  their  con- 
tract with  their  official  and  have  the 
right  to  call  upon  him  at  any  time  to 
perform  his  duties,  and  at  the  same 
time  refuse  to  pay  him  salary.  Coun- 
sel went  on  to  quote  at  length  from  the 
judgment  of  Mr.  Justice  Maasdorp  in 
the  case  of  Van  der  Mertre  v.  Colonial 
Government  (21  Supreme  Court  Reports, 
320.  and  14  C.T.R.,  732).  He 
stated  that  the  only  difference  be- 
tween Van  der  Merwe's  case  and  the 
present  plaintiff's  was  that  the  former 
was  not  actually  deported  from  the  scene 
of  his  duties,  but  was  kept  in  Aberdeen 
apd   refused  a  pass  by  the  military  au- 


thorities, while  the  present  plaintiff  wat 
deported. 

Without  hearing  8ir  H.  Juta, 
Buchanan,  A.  C.  J. :  The  matter  for 
decision  now  is  purely  a  (question  of 
pleadings.  The  plaintiff,  m  his  de- 
claration, alleges  toat  in  pursuaDce  of 
his  oontraot  with  the  Government  he 
duly  entered  upon  his  employment,  and 
that  he  was  at  all  times  ready  and 
willing  to  perform  and  did  perform  all 
the  duties  of  his  said  emplojDient.  In 
answer  to  this  allegation,  the  defendant 
in  his  plea  denies  that  the  plaintiff 
was  at  all  tomes  ready  and  willing  to 
perform,  or  that  he  did  perform  the 
duties  of  his  employment;  and  fur- 
ther alleges  facts  to  show  that  the 
plaintiff  could  not  and  did  not  per- 
form his  employment,  and  said  that,  at 
the  very  time  he  was  claiming  for, 
plaintiff  had  been  deported  by  the  mili- 
tary. An  exception  is  now  taken  that 
the  plea  does  not  disclose  a  defence  to 
the  claim.  Well,  it  is  a  defence  when 
a  man  alleges  that  he  did  perform  his 
duties,  to  say  that  be  did  not  perform 
his  duties.  In  the  replication  plaintiff 
pleaded  over  and  admitted  thai  he  was 
deported,  but  said  that  he  was  de- 
ported without  default  on  his  part 
Well,  these  are  questions  which  may 
very  well  be  dealt  with  at  the  trial.  1 
do  not  wish  to  say  anything  that  may 
prejudge  the  case,  especially  in  view 
of  the  cases  which  have  already  been 
decided.  I  think  it  is  rather  a  question 
of  evidence  than  of  pleadinfr.  The  ex- 
ception will  be  overruled,  with  costs. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Actinir  Chief  Justice,   the 
Hon.  Sir  John  Buchanan.] 


ADMISSIONS. 


Ex  parte  CLARK.  | 


190ft. 
Aq^-.  I  at. 


Attorney — Admission — Sec.  17  of 
Act  27  of  1883— Sec.  1  of 
Act  11  of  1903-~Withdrawal 
of  admission. 

C.  had  been  admitted  an  an 
attorney  in  Julyy  1905,  under 
Sec.   17  of  Act  ^7  of  1883, 


'<OAFE  TIMES"  lAW  BEPOBTB. 


698 


On  its  heittg  discovered  that 
this  section  kcul  been  repealed 
by  Sec,  1  of  Act  11  of  1903, 
toe  admission  teas  withdrawn. 

Held,  that  as  the  applicant 
ttas  not  articled  prior  to  the 
date  of  the  passing  of  the 
former  Act,  he  was  not  entitled 
to  admission. 


Mr.  Sutton  moved  for  tbe  admisflion 
of  Henry  Alfred  Ready  Clark,  of  Iduty- 
wa,  as  an  attorney  and  notary.  Counsel 
said  that  the  matter  had  already  been 
before  the  Court  (15  C.T.R.,  559), 
mod  Mr.  Clark,  who  was  an 
Oxford  M.A.,  wae  admitted,  but 
Bubeequently,  on  its  coming  to  the  notice 
of  the  Court  that  the  17th  section  of  the 
Act  27  of  1883,  under  which  Mr.  Clark 
ai^ied^  had  been  repealed,  the  order 
was  withdrawn.  Counsel  contended 
that  the  repeal  of  the  17th  section 
brought  into  effect  14th  seotion  and  that 
the  oii«e  of  such  applicants  as  Mr.  Clark 
was  therefore  safeguarded,  inasmuch  as 
be  had  been  articled  prior  to  tbe  repeal 
of  tbe  section 

Tbe  14th  seotion  of  Aot  27  of  1883 
provided  that  nothing  contained  in  that 
Act  should  apply  to  the  admission  of 
any  person  wno  had  been  articled  pre- 
vious to  the  taking  effect  of  that  Act. 
So  likewise  Act  11  of  1903  was  not  re- 
trospective. Mr.  Clark  had  actually 
completed  his  sorvice  of  articles  before 
that  Act  was  passed,  and  it  would  be  a 
^reat  hardship  upon  him  if  after  having 
in  all  good  faith  served  his  articles, 
be  now  found  his  admission  barred  by 
an  Act  which  was  not  in  existence 
during  his  term  of  servdoo,  and  which 
in  view  of  ex  parte  Scanlen  (7  C.T.R., 
209)  he  could  not  have  anticipated. 

Buchanan,  A.  C.  J. :  Before  the  Act 
of  1883,  which  now  regulates  the  ad- 
mission of  attorneys,  it  was  not  com- 
pulsory on  any  candidate  to  pass  a  law 
examination.  That  Aot  made  such  an 
examination  oompulsoiy,  but  dn  the  17th 
section  exempted  persona  who  came  un- 
der the  10th  seotion  of  .the  English 
SolicitoFB*  Act.  One  admission  was 
made  under  the  exemption  pro- 
vided by  the  17th  seotion,  but 
the  circumstances  there  disclosed 
showed  that  there  had  boeii  an 
oversight  in  authorising  exemption  in 
the  terms  stated.  Afterwards  the  Legis- 
lature repealed  the  17th  section  abso- 
lutely, without  any  saving  olauae.  When 
the  Aot  of  1883  was  pasied  a  proviso 
was  put  in  that  notning  an  the  Act 
should  apply  to  any  person  who  should 
have  been  articled  previous  to  tbe 
taking  effect  of  the  Act.  When  the 
Legislature  repealed  the  17th  section, 
they  made  no  such  proviso.  Noiw,  some 
yean  after  the   passing   of  the  section 


of  the  Aot  of  1883,  the  applicant 
to  come  in  and  take  the  benefit  of  a 
clause  which  has  already  been  repealed. 
It  may  be  a  hardship  on  the  applicant, 
but  at  the  same  time  I  cannot  make  an 
exception  in  his  case.  No  order  will  be 
made  at  present. 

Mr.  Gutsche  moved  for  the  admission 
of  Ernest  H.  Solomon  as  an  attorney  and 
notary. 

Application  granted,  oaths  to  be  taken 
before  the  Registrar  of  the  High  Court, 
Kimberley. 

Blr.  J.  E.  R.  de  Villieri  moved  for  the 
admission  of  Ockert  Jacobus  Oosthuisen 
ss  an  attorney  and  notary. 

AppUoation  granted  and  oaths  admin- 
istered. 

Mr.  Benjamin  moved  for  the  admis- 
sion of  Sidney  S.  Saayman  as  an  attor- 
ney and  notary. 

Application  granted^  oaths  to  be  taken 
before  the  R.M.  of  Riversdale^ 

Mr.  P.  S.  T.  Jones  moved  for  the  ad- 
mission of  Walter  Reid  as  a  convey- 
ancer. 

Application  granted  and  oaths  admin- 
istered. 

Mr.  Bailey  moved  for  the  admission 
of  Vivian  Lionel  K.  Murray,  as  a  con- 
vevancer,  and  for  leave  to  applicant  to 
take  the  oaths  before  tbe  R.M.  of  East 
London. 

Buchanan,  A.  C.  J.,  said  it  appeared 
that  the  applicant  applied  to  be  admitted 
as  a  conveyancer  of  British  Kaffraria, 
to  which  he  was  entitled  as  the  Statute 
stood.  Hero  again  he  (the  learned 
Ji.dgc)  would  point  out  that  a  different 
examination,  a  more  searching  examin- 
ation, was  required  for  conveyancers  ad- 
mitted in  the  Registry  of  Deeds  of  this 
Court  than  in  British  Kaffraria.  It  had 
been  repeatedly  pointed  out  that  it  was 
a  question  that  the  Government  should 
consider  whether  all  the  Registries  should 
not  be  cc^nAolidated.  Applicant  would 
be  admitted  as  praved,  oaths  to  be 
taken  before  the  K.M.  of  East  London. 


PROVISIONAL  ROLL. 


MOCHAMBON  V.  NEL. 


1 


1906. 
Aug.  Ist. 


Mr.  Benjamin  moved  for  provisional 
sentence  for  £150,  upon  a  promissory 
note.  The  action  was  originally  heard 
in  the  R.M.'s  Court  at  Calitzdorp,  and 
was  removed,  at  the  request  of  the  de- 
fendant, to  this  Court.  The  question 
to  be  decided  was  as  to  the  genuineness 
of  the  signature  on  the  note. 

Mr.  Burton  (for  defendant)  said  that 
his  client's  position  was  that  the  signa- 
ture was  a  forgery. 

Buchanan,  A.  U.  J.,  directed  that  the 
case  should  be  removed  to  the  next 
Circuit  Court,  at  Oudts|ioon),  for  deter- 


SH 


"CAFS  TIMB8"  LAW  BBPO&TB. 


mination  of  all  queationB,  including 
costs,  both  in  the  Magistrate's  Court 
and  the  Supreme  Ck)urt. 


KBIMAN  y.  NBIMA17. 

Mr.  RoQx  moved  for  the  discharge  of 
the  applicant^  who  was  in  custody,  un- 
der  a  writ  of  arrest 

There  was  no  appearance  for  respond- 
ent. 

The  applicant  wss  discharged. 


NATIONAL  BANK  V.  HARBIS. 

Mr.  Watermeyer  moved  for  provi- 
sional sentence  for  £600  upon  a  pro- 
missory note,  and  costs. 

Order  granted. 


DE  WAHL  V.  DE  ROUE  A IX. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  two  mortgage  bonds  for 
£800  and  £100  respectively,  due  by 
reason  of  the  non-payment  of  interest, 
and  for  the  property  specially  hypothe- 
cated to  be  declared  executable. 

Order   granted. 


HIOOB  v.  KROnSE. 

Dr.  Greer  moved  for  provasional 
sentence  on  two  mortgage  bonds  for 
£400  and  £100  respectively,  due  by 
reason  of  the  non-payment  of  interest, 
and  for  the  property  speciallv  hypothe- 
cated to  be  aeclared  executable. 

Order  granted. 


TRILL  V.  BOYCR. 

Mr.  Sutton  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £2,000, 
and  for  £2  9s.  insurance  premiums, 
the  bond  having  beconio  due  by  reason 
of  the  non-payment  of  interest;  counsel 
also  applied  for  the  proiX5rty  specially 
hypothecated  to  be  declared  executable, 
and  for  the  rents  duo  to  be  declared 
executable.  Ck)unsel  said  that  notice 
had  not  been  given  to  defendant  of 
the  application,  so  far  as  rent  was  con- 
cerned. 

Order  granted  as  prayed,  His  Lord- 
ship remarking  that  in  future  these 
applications  must  be  put  in  order,  ajid 
proper  notice  given  to  the  parties  con- 
cerned. He  hoped  that  tnere  would 
be  less  laxity  in  the  practice  of  the 
Court. 


DAY  V.  MOEZELANY. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £1,600, 
du0  by   reason  of  the  non-payment  of 


interest;    counsel  also   applied    for    the 
property    specially    hypothecated    to   be 
aeclared  executable. 
Order  granted. 


THORNV  AND  BTBUBEN  V.  OBLB. 

Mr.  Struben  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent.  The  petitioners.  Sir  Wm. 
Thorne  snd  Mr.  H.  W.  Struben,  said 
that  Clelb  was  indebted  to  them  in  the 
sums  of  £6,600  and  £1,600  respectively 
for  money  lent  and  advanced  upon  bond. 
The  estate  had  been  assigned,  but, 
under  all  the  circumstances,  the  Peti- 
tioners said  that  they  did  not  think 
the  estate  benefioially  liquidated  by  the 
assignees  any  longer. 

The  affidavit  of  defendant  stated  that 
nothing  had  happened  to  justify  the 
assignees  in  sequestrating  his  estate.  He 
had  been,  and  was  still  willing  to  ren- 
der the  assignees  all  the  assistance  tin  his 
power  in  connection  with  the  liquida- 
tion. He  pointed  out,  further,  that  the 
petitioners  put  the  value  of  their 
claims  at  the  full  amount  of  the  bonds. 
Affidavits  of  P.  J.  Bosman  and  other 
creditors,  said  they  thought  it  would  be 
to  the  benefit  of  all  the  creditors  if  t-he 
estate  continued  to  be  liquidated  under 
the  assignment. 

The  affidavit  of  Mr.  G.  W.  Bteytler, 
joint  assignee  of  the  estate,  confirmed 
tho  allegations  and  statements  contaiined 
in  the  petition.  He  said  that  there  was 
an  annual  loss  of  not  less  than  £220, 
and  he  gave  particulars  showing  bow 
the  losses  occurred.  Instead  of  the  lia- 
bilities bein^  liquidated,  they  were,  he 
said,  being  increased. 

The  affidavit  of  Mr.  E.  R.  Syfret,  oo- 
assignee  of  the  estate^  confirmed  the  al- 
legations in  Mr.  Steytler's  affidavit. 
The  answeiring  affidavit  of  defendant  re- 
peated that  it  was  perfectly  possible  to 
Deneficiallv    continue  the    liquidation. 

The  replying  affidavit  of  Mr.  Steytler 
stated  that  the  statoment  of  the  receipts 
and  disbursements  made  by  Gelb  was 
misleading,  and  repeated  that  there  was 
an  annual  deficiency  as  he  had  alleged. 

Mr.  Close  for  defendant. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Buchanan,  A.  C.  J. :  There  is  no 
allegation  of  fraud  or  concealment  on 
the  part  of  the  debtor;  there  has  been 
no  act  of  insolvency  by  the  debtor  and 
there  is  no  allegation  of  misconduct  since 
th-i  assignment,  and  no  ground  is  shown 
for  this  application,  except  the  bare 
fact  thai  tho  assi  penmen  t  is  not 
working  out  so  besneficially  to  the  credi- 
tors as  it  is  thought  that  sequestration 
would  work  out.  Because  the  estate 
does  not  now  work  out  so  well  as  thev 
thought  it  would,  they  want  to  go  back 
upon  their  previous  decision.  The  pro- 
visional order  for  sequestration  must  be 
set  aside,  with  coeU* 


it 


CAPE  TIMES"   LAW  REPORTS. 


rm 


KAITSLIT  V.  BABBR. 

Mr.  p.  S.  T.  Jones  moved  for  a 
provisional  order  of  sequestration  to  be 
made  final. 

Final  order  granted. 


YAN  DBB  BTL  ASID  GO.   AKD  OTHEBS   V. 

DAWOOD. 

Mr.  M.  Biflsci  moved  for  the  final 
adjudioation  of  the  defendant*6  estate 
as  insolvent. 

FitMil  order  granted. 


OHLBSON'S  GAPE  BEEWERIE8  V.  EASTOM. 

Mr.  Gutsohe  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Final  order  granted. 


ABBLN  V.  BUEOHARTH. 

Mr.  Sutton  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
msolvent. 

Final  order  grantod. 


POSTER  v.  SOLOMON. 

Mr.  Sutton  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Final  order  granted. 


MALMUBURY  BOARD  OF  EXECUTORS    V. 

SMUTS. 

Mr.  J.  E.  R.  de  Villiers  moved  for 
provisional  sentence  on  a  mortgage  bond 
lor  £1,500,  due  by  reason  of  the  non- 
payment of  interest,  less  £79  paid  on 
acoouat  of  interest.  Counsel  also  ap- 
plied for  the  property  specially  hypot-he- 
oated  to  be  declared  executable. 

Order  granted. 


GIBBS  y.  FISK. 

Dr.  Rainsford  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £600,  with  interest,  the  bond  having 
become  due  by  reason  of  the  non-pay- 
ment of  interest;  counsel  also  applied 
for  the  property  specially  hypothecated 
to  be  declared  execirtable. 

Defendant  said  that  he  had  paid  £28 
for  the  rents  to  the  plaintiff's  agent,  Mr. 
Steer. 

Order  granted. 


MARSH  V.  FISK. 

Mr.  Russell  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £700, 
with  interest,  the  bond  having  become 

<*1 


due  by   reason   of   the  non-pavment  of 
interest.      Counsel  also   applied  for   the 

Sroperty   specially    hypothecated    to    be 
eclared  executable. 

Defendant  said  that  he  had  paid  £10 
to  the  agent,  Mr.  Steer. 
Order  granted. 


TREOIDOA  AND  M0680P  V.  OOODftON. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £60,  and  also  £1  premium  of  insur- 
ance, thiB  bond  having  been  become  due 
by  reason  of  the  non-payment  of  in- 
terest. Counsel  aLso  applied  for  the 
propertv  specially  hypothecated  to  be 
declarea  executable. 

Order  granted. 


ALBOW  V.  SANDLER  AND  OTHERS. 

Dr.  Greer  moved  for  the  final  adjudi- 
cation of  the  defendants'  estate  as  in- 
solvent. 

Final  order  granted. 


WHITE,  RYAN  AND  GO    ANO  ANOTHER 
V.  ASHLEY. 

Mr.  Payne  moved  for  provisional  sen- 
tence upon  a  promissory  note  for  £146 
lis.  6d.,  with  interest  and  costs,  and 
for  judgment  under  Rule  329d  for  £18 
lis.,  balance  of  account  for  goods  sold 
and  delivered. 

Buchanan,  A.  C.  J.,  said  that  the 
power  of  attornev  granted  by  defend- 
ant, which  had  been  put  in,  was  not 
stamped.  An  order  would  be  granted  as 
prayed,  subject  to  the  stamping  of  the 
power  of  attorney. 


LAWRENCE  V.  MELEKOW. 

Mr.  Swift  moved  for  provisional  sen- 
tcncp  on  a  mortgage  bond  for  £1,500, 
with  interest,  the  bond  having  become 
due  by  reason  of  the  non-payment  of 
interest.  Counsel  also  applied  for  the 
property  specially  hypotheoated  to  be 
declarea  executable. 

Order  granted. 


MEYER  v.  BOTHA. 

Mr.  Van  Zyl  moved  for  the  final  ad- 
in  judication  of  the  defendant's  estate  as 
insolvent. 

Order  granted. 


8AACH8,   GBIATT   AND   ANOTHER  Y. 
FRANKEL. 

Dr.    Greer   moved  for   the   final   ad- 
i    judication  of   the  defendant's  estate  as 
insolvent. 
Final  order  granted. 


596 


4f 


CAPE  TIMES*'  LAW  llEPOfttS. 


ZOUTENDTK  AND  CO.  V.  TBUTER- 

Mr.  P.  S.  T.  Jooefl  moved  for  provi- 
eional  sentence  on  a  promissory  note  for 
£356  28..  1«ss  £116  16s.  8d.«  credit  griven 
by  plaintiffs  to  defendant  in  the  siim- 
mons. 

Order  granted. 


ILLIQUID  ROLL. 

CAPK  TIMES,  LTD.  V.  TERRA-  f       1905. 
BONA  TBA  CO.,  LTD.  {  Au^.  Ist. 

Mr.  Douglas  Buchanan  moved  for  judg- 
ment, under  Rule  329d,  for  £42  48.,  ad- 
vertising charges,  with  interest  a  lem- 
pcre  morae  andf  costs. 

Order  granted. 


60EKER  V.  ASSIZ. 

Mr.  Van  Zyl  moved  for  judgment, 
under  Rule  329d.  for  £50,  leas  £8  paid, 
due  upon  an  exchange  of  horses. 

Order  granted. 


BUB8ELL  AND  CO    Y.  KOTZE. 

Mr.  De  Waal  moved  for  judgment, 
under  Rule  329d.  for  £181  9s.  5d.,  bal- 
ance of  account. 

Order  granted. 


FBIPP  v.  BARNBTT. 

Mr.  Douglas     Buchanan     moved     for 

i'udgment,    under    Rule  329d.    for   £35, 
balance  of  rent  due,  with  interest  a  tem- 
pore morae  and  costs. 
.  Order  granted. 


E6TATE  VAN  DBR  HEKVBR  V.  VAN  DBR 

HEBVER. 

Mr.  Gardiner  moved  for  judgment, 
under  Rule  329d,  for  a  refund  of  £60, 
amount  wrongfully  and  unlawfullsr  ac- 
quired by  defendant  from  a  certain  in- 
solvent, or,  alternatively,  for  delivery  of 
two  horses. 

Order  granted  for  the  amount  claimed. 


HAIR  V.  UAIR. 


Mr.  &truben  moved   for  judgment  in 
terms  of  declaration  in  default  of  plea. 
Order  granted. 


PVRCELL,  TALLOP  AND  IVERBTT  V. 
PORTXJIN. 

Mr.  Close  moved  for  judgment,  under 
Rule  329d,  for  £21  36.  lOd.,  goods  sup- 
plied, with  interest  and  costs. 

Order  granted. 


8TEVBNB  V.  THOMAS. 

Mr.  RusGclI  moved  for  judgment,  un- 
der Rule  329d,  for  (1)  transfer  of  a  cer- 
tain lot  of  ground  sold  by  defendant  to 
f)laintiff.  or  alternatively,  for  (2)  cancel- 
ation of  sale,  and  repayment  of  amount 
paid. 

•  Judgment  under  prayer  (1),  transfer 
to  be  given  on  or  before  the  1st  Septem- 
ber, failing  which.-  judgment  under 
prayer  (2)  as  prayed. 


LEWIS  V.  ROBINSON  AND  CO. 

Mr.  Rusvell  mnvcd  for  judgmont,  un- 
der Rule  329d,  for  £110,  rent  due,  in- 
terest and  costs. 

Order  grantcfl. 


APPEL  AND  ANOTHER  V.  APPBL. 

Mr.  Searle,  K.C.,  «noved  for  judg- 
ntent  in  terms  of  consent  paper,  in  terms 
of  the  plaintiffs'  declaration,  ^^ave  and 
except  subsection  (a),  under  which  an 
order  of  ejectment  was  claimed 

Judgment  as  prayed. 


REHABILITATIONS. 


Mr.  Upington  moved  for  the  rehabili- 
tation of  W.  F.  Blignaut. 
Granted. 

Mr.  Benjamin  moved  for  the  rehabili- 
tation of  Isidore  Bakst. 
Granted. 


GENERAL  MOTIONS. 


Ex  parte    THE    DUTCH    RE- 


{ 


1905. 


FORMED  CHURCH,  PRINCE<     *«!- T  4. 
ALBERT.  )   ^"?-  *«*• 

Mr.  De  Waal  moved  for  a  rule  niw 
under  the  Derelict  Lands  Act  to  be 
made  absolute. 

Rule  made  absolute. 


Be  jHirte  TIDBURT. 


Mr.  Lewis  moved  for 
under  the  Derelict  Lands 
made  absolute. 

Rule  made  absolute. 


a  rule  rUH 
Act  to   be 


Ex  parte  POTGIETEB. 

Mr.  Watermeyer  moved  for  a  rule 
nisi  under  the  Derelict  Lands  Act  to 
be  made  absolute. 

Rule  made  absolute. 


"CAi»B  TtMES*'  LAW  REPOtlTd. 


b^ 


In  re  THB  LANSDOWNS    HOUSE    B8TATB 
00.  (IN  LIQUIDATION). 

Mr.  P.  8.  T.  Jones  mov«d  for  oon- 
firmation  of  the  first  report  of  the  offi- 
cial  liquidators. 

Report  confirmed. 


HEYDENBTCH  V.  FRAME. 

Mr.  Burton  moved  for  leave  to  issue 
writ  of  execution  upon  a  judgment 
Riven  by  this  Court  for  £48  and  costs, 
the  defendant  having  given  notice  of 
appeal. 

Order  granted. 


£x  parte  THE  red  trading  stamp  CO. 

This  was  a  petition  for  an  order  call- 
ing upon  the  Ke^istrar  of  Deeds  to  hoar 
an  application  by  petitioners  for  regiii- 
tration  of  a  certain  trade   mark. 

The  Registrar  of  Deeds,  in  his  report, 
said  that  the  obiection  to  the  registra- 
tion of  this  mark  was  raised  bv  the 
Trading  Stamp  Co..  on  the  ground  tlmt 
it  bore  a  close  resemblance  to  the  objec- 
tors' mark,  and  was  therefore  calculated 
to  deceive.  It  was  not  necessary,  he 
thouf^ht,  to  decide  that  point,  seeing 
that  it  transpired,  in  the  course  of  the 
iiKluiry  he  held,  that  the  so-called  mark 
was  not  in  realitv  used  as  a  mark  at 
all.  He  found  that  the  so-called  mark 
was  really  used  for  a  system  of  coupons 
used  in  the  course  of  trade.  These 
tickets  or  coupons  were  issued  by 
dealers  to  their  customers;  those  tickets 
represented  a  certain  money  value,  and 
entitled  the  holders  to  excoange  them 
for  goods  from  the  applicants.  Under 
the  oircumstanoes,  be  exercised  his 
discretion,  and  decided  that  the  appli- 
cation was  one  that  he  need  not  deter- 
mine. 

Mr.  Grardiner  was  for  the  petifcionersy 
the  Red  Stamp  Co.,  merchants^  Joihan- 
nesburg;  Mr.  dose  opposed  on  behalf 
of  the  Trading  Stamp  Company,  of 
Cape  Town. 

Mr.  Gardiner  submitted  that  the 
Registrar  of  Deeds  waa  wrong  in  the 
position  he  had  bakeo  up.  Tlie  first 
Act  of  1877  did  not  actually  Uy  down 
what  a  trade  was.  The  next  Act,  No. 
12  of  1885,  did  not  sjpecifv  what  the 
use  of  a  trade-mark  should  be,  but  it 
did.  by  section  2,  specify  what  it  should 
consist  of.  The  Registrar,  in  his  re- 
port, said:  ''The  function,  I  take  it, 
of  a  trade-mark  is  to  give  an  indica- 
tion as  to  the  manufacture  or  quality 
of  goods,  and  to  induce  the  public  to 
purchase  those  identified  with  such 
niark.'*  The  petitioners  said  that  they 
intended  to  have  the  representation 
blown  into  the  jrlass  goods  they  sold, 
and  printed  on  the  wrappers  they  used. 
The  applioants,  he  contended,  had 
shown  thi^  they  intended  to  use  this 
mark  in  oomnection  with  goode. 


Mr.  Close  said  that  the  application 
originally  was  for  the  registration  of 
coupons,  and  thus  for  a  mark  which 
would  not  be  affixed  to  goods  at  all. 
The  application  now  made  was  quite 
different.  The  applicants  now  said 
they  were  going  to  have  the  mark 
burned  into  crockery  and  affixed  to 
various  goods. 

The  matter  was  referred  back  to  the 
Registrar  of  Deeds,  to  hear  the  applica- 
tion for  a  trade-mark  in  regard  to  cer- 
tain goods  specified  in  the  application, 
no  order  as  to  costs ;  notice  to  oe  given 
to  respondents  of  the  hearing  before 
the  Registrar. 


JSa  parte  THE  estates  b.  t.  chaddock 
and  r.  j.  chaddock. 

Dr.  Rainsford  moved  to  make  absolute 
a  rule  nUi  to  assume  death,  granted 
May  11th,  1905  (15  C.T.R..  373).  The 
(/haddocks  were  supposed  to  have  been 
drowned  at  sea  some  years  ago. 

Rule    made    absolute. 


schuttb  v.  tukmbr. 

This  was  an  application  to  make 
absolute  a  rule  nin  authorising  the  at- 
taichment,  in  part  satisfaction  of  a 
judgment  of  certain  moneys  be  paid  to 
the  Resident  Magistrate  of  Wynberg, 
and  to  be  handed  to  the  respondent 
from  the  War  Losses  Compensation 
Cknnmission.  Mr.  P.  S.  T.  Jones  was 
for  applicant;  Mr.  M.  Bisset  was  for 
respondent. 

Owing  to  certain  affidavits  of  the  re- 
spondents not  being  available. 

The  matter  wae  ordered  to  stand  over. 


LEY  V.  JOHNSON. 

Mr.  Close  moved  to  make  absolute  a 
rule  nisi,  calling  upon  the  respondent  to 
show  cause  why  certain  moneys  should 
not  be  declared  executable. 

Rule  made  absolute. 


Ex  parte  IBSTEB. 

Mr.  Watermeyer  moved  for  leave  to 
petitioner  to  sue  her  hu^^band  in  forma 
pauperis  by  edictal  citation.  Counsel 
having  certified. 

Rule  ni»i  was  granted,  returnable  on 
the  17th  August,  to  be  served  personally, 
failing  which  one  publication  in  the 
"  Cape  Times." 

Poatca  (August  24 tb).  Rule  made  ab- 
solute. 


Ejt  parte  THE  OBAAFF-BEINET  BOABP 
OF  EXECUTORS. 

Mr.  De  Waal  applied  for  the  attach- 
ment of  property  ad  fwidandam  juris- 
dietionem. 


r/X) 


tt 


CAPE  TIMEB"  LAW  REPORTS. 


to  submit  himself  to  a  medical  examina- 
tion 

[Buchanan,  A.  C.  J. :  And  has  he 
done  6oT] 

Mr.  Uping^ton :  Yee.  ray  lord.  Con- 
tinuing, couns<»l  sta4ed  that  Mr.  Walker 
had  been  crose-examincd  by  Sir  Victor 
Horsley  and  Dr.  {"erreira.  two  very  emi- 
nent epeciaJists.  Thev  stated  in  their 
affidavit  that  they  had  visited  and  pro- 
fesdionally  examined  Mr.  Walker  in  re- 
ference to  the  state  of  his  health  and 
ability  to  undertake  a  voyaxe  to  Cape 
Town  to  undergo  the  ordeal  of  a  trial 
in  a  court  of  law.  They  were  of  opinion 
that  he  waa  not  unfit  to  undertake  t«he 
voyage.  Mr.  Walker  was  well  advanced 
in  years,  and  was  of  gouty  habits.  Con- 
tinuing, Mr.  Upington  said  that  if  Mr. 
Walker's  evidence  was  taken  on  com- 
mission it  would  entail  considerable  ex- 
pense and  great  delay  in  the  winding 
up  of  the  affairs  of  the  company,  as 
many  of  the  books  reouired  dauv  would 
have  to  go  from  Cape  Town  to  Emgland. 

[Buchanan,  A.  C.  J.:  Is  it  necessary 
to  have  Walker's  evidence  to  go  to 
trial?] 

Mr.  Russell :   He  thinks  so.^ 

[Buchanan,  A.  C.  J. :  He  is  only  one 
of  the  firm  connected  with  the  case. 
The  others  probably  know  as  much  as 
he  does.] 

Mr.  Russell :  Cameron  Walker  his  son, 
does  not.  He  has  made  an  affidavit  to 
that  effect. 

Counsel  having  been  heard  in  argu- 
ment. 

Juagment  was  roserved  until  Thursday 
morning. 

Pottea  (August  3).  Application  for 
commission  retused  with  costs. 

The  action  to  be  proceeded  with  with- 
in the  first  we^  in  October  term. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Hon.  Mr.  Justice  Ma  asdobp.] 


VEDASZ  V.  VBDASZ. 


{ 


1905. 
Aug.  2nd. 


This  was  an  action  heard  in  which 
Lajos  Yadasz,  a  commercial  traveller, 
residing  at  Long-street,  Cape  Town, 
sought  a  dissolution  of  his  marriage 
with  his  wife,  Florence  Merry  Vadasz, 
of  276,  Lower  Main -road.  Observatory, 
by  reason  of  her  adultery  with  ^  one 
Sydney  Morrell,  of  Maitland.  Plaintiff 
also  claimed  the  custody  of  the  children 


I  1 


of  the  marriage,  and  that  the  defendant 
bn  declared  to  nave  forfeited  half  share 
of  the  property  held  in  community  be- 
tween them.  He  also  claimed  £500 
damages  from  the  co-defendant. 

The  plaintiff's  declaration  set  forth 
that  he  was  married  to  the  first  defend- 
ant in  community  of  property  at  Hack- 
ney, England,  on  June  1,  1^.  There 
were  two  girls,  aged  respectively  9  and  3 
years,  ifsue  of  the  marriage.  During  the 
yeara  1898-1905,  the  first  defendant  com- 
mitted adultery  with  the  second  defend- 
ant, but  more  particularly  on  the  9th, 
10th.  and  11th  May,  1905,  at  276,  Lower 
Main -road.  Observatory. 

The  defendants'  plea  denied  all  the  al- 
legations. 

For  a  claim  in  reconvention,  the  first 
defendant  applied  for  an  order  of  judi- 
cial separation  a  mensa  et  thoro  cus- 
tody of  the  children,  and  payment  of 
the  sum  of  £12  per  month  for  the  main- 
tenance of  henself  and  children.  She 
alleged  that  the  plaintiff  assaulted  her  on 
divers  occasions,  from  which  she  had  suf- 
fered severe  injuries,  and,  in  conse- 
quence, had  been  obliged  on  more  than 
one  occasion  to  summon  medical  attend- 
ants. 

A«  a  replication  to  defendant's  plea, 
the  plaintiff  stated  that  he  never  ill- 
treated  or  assaulted  defendant,  but  that 
on  the  14  th  and  15th  May  last,  whilst 
endeavouring  to  possess  himself  of  cer- 
tain correspondence  material  to  the  is- 
sue of  the  suit,  the  defendant  closed  with 
him.  and  during  the  struggle  they  both 
fell  to  the  ground.  He  denied  that  she 
had  suffered  severe  or  any  injuries  in 
consequence  of  any  action  of  his. 

Dr.  Greer  appeared  for  plaintiff,  and 
Mr.  Burton  (with  him  Mr.  P.  Jones), 
for  the  dofendants. 

After  evidence  had  been  led  and  coun- 
sel heard  in  argument  on  the  facts: 

Postea  (August  4). 

Maa.sdorp,  J. :  I  don't  think  it  will  be 
necessary  for  me  to  go  into  great  detail 
ill  the  evidence  which  has  been  adduced. 
I  think  I  shall  bo  able  to  base  my  de- 
cision on  some  of  the  monB  outstanding 
portions  of  the  evidence  which  will  really 
establish  the  relationship  which  exi»t4?d 
between  the  parties.  The  main  qustion 
i«,  what  was  the  chajracter  of  the  visits 
that  were  paid  by  the  co-defendant  to 
the  defendaiit  on  the  9th,  10th,  and 
lUh  May  last?  The  plaintiff  alleges 
that  on  these  occasions  adultery  was 
committed.  The  attitude  taken  up  bv 
the  defendaoit  and  the  co-defendant  with 
respect  to  i^hese  visits  is  this,  that  they 
w<»Te  the  ordinary  visits  of  a  friend  who 
had  no  reason  to  consider  that  he  would 
be  an  unwelcome  guest.  If  that  posi- 
tion was  true — if  I  were  satisfied  that 
up  to  that  time  the  co-defendant  was  not 
unacceptable  in  that  house— the  case 
would  bear  one  aspect.  But  it  would 
be  quite  different  if  it  is  proved  that 
previous  to  that  the  relationship  tual 
existed      lK»tween       them   was  to  their 


<l 


CAPE  TIMES"   LAW  REPORTS. 


(;oi 


knowledge     renrarded  with   suspicion  by 
the    husband.       Now,   it  was    suggested 
by  the  defendant  wJien  Osberg  reported 
these  visits   to  the    husband   that   these 
visits  were  made  at  the  invitation  of  the 
husband  and  she  said  as  much  and   all 
through  the  position  is  taken  up  that  the 
husband  was  on  friendly  terms  with  the 
co-defendant,   and    there  was   no   reason 
why  he  should  not  occasionally  call  on 
il)6  wife  at  the  house.    Now,  to  establish 
that    positioin,    it  must    be  ^hown    that 
what  IS   said   to   have   occurred  on  the 
4th — whaX  is  said  by  the  plaintiff  to  have 
occurred    on    the    4-th — is    not    correct. 
The    plaintiff    makes    a    statement,   the 
result  of  which  would  go  to  prove  that 
on    the    4th    certain    occurrences    took 
place,  which  brought  matters  to  a  head, 
and    which   revealed  his   feelings  in  re- 
spect to  tho  co-defendant  in   this    case. 
Now,  the  defendant  says  that  up  to  the 
10th  she  w«s  not  aware  that  the  plaintiff 
regarded  the  co-defendant  with  suspicion. 
As  a  matter  of  fact,  we  find  it  proved 
that  on   the  5th — the  day  after   the  hot 
altercation  between  plaintiff  and  his  wile, 
the    plaintiff    went  to    Osberg  and  made 
a  statement  with  reference  to  his  wife, 
and  he  directly  ooonectdd  her  name  with 
that  of  Morreil,  amd  he  pLaoed  the  case 
in  the  handa  of  Osberg  for  the  purpose 
of  discovering  the  relationehip  he  com- 
plained of  between  Morreil  and  his  wife. 
I   think  that  proves  that  on  the  5th  it 
was  Morreil   who  was  suspected,  and  it 
was  Morreil   who  was  regarded  on  the 
5th  by  the  plaintiff  as  the  man  whom  he 
would  not  nave  in  his  hout^o.     Now,   if 
that  were  so,  why  should  he  on  the  4th, 
when  he  gave  expression  to  his  indigna- 
tion, have  kept  that  secret  from  his  wife. 
She   says  he  stated  to  her :       "I  don't 
believe  it  is  Morreil — meaning     to  sug- 
gest,  if  it  is  Morreil,   I   have   no  objec- 
tion— I  want  to  find  someone  else."       I 
am   convinced    that  is  not  true.        The 
plaintiff   went    directly   to   Osberg       as 
against  Morreil,  and  1  am   positive     be 
mentioned   the  name  of  Morreil   to   his 
wife,    and    be   charged   his    wife       with 
having   intercourse    with    Morreil.        If 
this   is  established,   then  the   wife  knew 
Morreil  was  the  person  who  was    not  a 
welcome  guest  in   the   hou.<:e,  and  when 
she  pretended  that  the  visits  on  the  9th. 
10th.  and  11th   Mav  took  place. on  the 
invitation    of    her    husband,    she       said 
what  was  absolutely  untrue.      Now.  the 
question  arises     as  to     what     relation- 
ship had  sprung  up  between  Morreil  and 
the  defendant   before  that.        It  is   not 
necessary  to  go  back  to  what  happened 
two   or   three  years  before.        On   those 
occasions,    as  far   as  Mrs.      Vedasz  and 
Morreil     are    concerned,     no    suspicion 
is  attached  to   anything  that  had  taken 
place  between  them  until  lately,  when  we 
find   that    the  husband    was  away      for 
some    days    before   the  4th    May,    and 
upon  his  arrival  he  finds  that  some  gen- 
tleman had  been  to  his  house,  and  had 
dinner   with  h»  ^'^^^f        Well,    he  was 


iMtturally  displeased,    and  he    had      his 
suspicions.        However,  that  throws  no 
]i-?ht  upon  the  question  as  to    whether 
adultery    had    been    committed        with 
Morreil.      Subsequently,  upon  the  nieht 
of   that  day,  the  plaintiff  aays  he     ais- 
covered  a  letter,  and  that  letter  has  an 
important   bearing  on   the  case,  and    it 
is  necessary  to  find  whether  that  letter 
was  written  or  not.       We  must  contrast 
the  evidence  of   the  plaintiff  with   that 
of  his  wife.      Is  the  wife  a     truthful 
witness?       In  this  case  she  i^     brought 
into    conflict    with   the    plaintiff's     evi- 
dence,  and  that  of  Bouker   and  of  Os- 
berg.      As  to  the  incidents  referred  to 
by  Bouker  and  Osberg.  I  believe  both  of 
them,  and  I  disbelieve  the  wife.    Bouker 
says  she   came  to  the  house   after     she 
left,    and    she  removed   certain      letters 
from  the  fireplace.      She  denies  that.     I 
believe  that  the  bundle  removed  was  a 
bundle  of   letters,  and  I  don't  see   any 
reason    why      Bouker,   who  showed  her 
some  kindness,   should  have   given  false 
evidence  against  her,  and  as  I  believe  his 
evidence,   I  must  reject  the  evidence  of 
Mrs.   Vedasz.        I  believe  Osberg's     ac- 
count of  the  struggle  over  the  telegram. 
Now  the   question   arises,    what  is    the 
conclusion  to  be  arrived  at  with  regard 
to   the  letter   which    the  plaintiff     says 
he   saw   in    her  possession,    which      she 
denies?      The  letter  was  written  in  the 
most  warm  and  endearing  terms  to  some 
person,  and   the  improper     feelings   ex- 
pressed showed       some    sort  of      illicit 
relationship    between    her  and   someone 
else,    and   the    question    is,    who       that 
someone  else  is?  The  only  person  proved 
to  have  been  in  communication  with  her 
at   that  time   is  Morreil.     If    she  wrote 
that  letter  to    Morrel,  and    Morreil  did 
not   at    once    repudiate    his    relationship 
with    her,    he    puts    himself    in    a    com- 
promising position.    This  warm  relation- 
ship  was  existing     between      plaintiff's 
wife   and    Morreil,    we  find    these   visits 
paid  by  him   at    night  at   a  time  when 
the    co-defendant    was    well    aware   that 
the  plaintiff  was  away,  because  the  plain- 
tiff   bade  .him    farewell    at   the   station, 
and  immediately  afterwards  we  find  these 
twb  vi.sits  paid.    While  he  was  actually 
charged  with   having  illicit   relationship 
with    the    wife    of   this  man,    she   says 
she   goes   to   him   as   a   friend    to    take 
advice,   because   her  husband   'had  been 
cruel  to  her.     It  is  quite  possible  under 
such      circumstances   a   wcnnan      might 
seek  consoktion    from  a  good,   honour- 
able  friend,   but    here  she    goes  to  the 
very  man  who  is     charged     with  com- 
mitting an  improper      act.       According 
to     Osberg     in     one     of     these     visits, 
a     man     was     closeted     with     her     for 
a  considerable   time,   and   when    a  sum- 
mons appears  at  the  door,  which,  under 
the  ordinary  circumstances  would   have 
been  responded  to,  and  which  must  have 
been  heard,  there  is  no  answer.    What 
were  they   engaged   in   that     prevented 
them   from  opening  the   door?    He  re- 


602 


(I 


CAPE  TIMES  ♦•   LAW  HEPORTS. 


maioa  with  ihis  woman  from  nine  o*olock 
to  about  11  o*clook,  and  under  all  the 
circumstances  previously  existin^r  I 
think  it  is  not  only  an  act  of  impru- 
dence, but  it  shows  a  tendency  to  some 
illicit  relationship,  and  I  have  no  doubt 
they  carried  out  their  intentions.  I  be- 
li€ve  Osberg  when  he  says  the  co-de- 
fendant admitted  he  had  been  there  the 
night  before.  I  come  to  the  conclusion, 
under  all  the  circumstances,  that  adul- 
tery was  committed,  and  that  the  plain- 
tiff is  entitled  to  a  aecree  of  divorce.  He 
makes  a  further  claim  against  the  co- 
defendant  for  damages,  but  although 
there  is  no  actual  evidencr^  of  unpleasant 
life  between  the  plaintiff  and  his  wife, 
the  damages  must  be  based  upon  a  con- 
sideration of  the  loss  whi(^  the  husband 
suffers  through  losing  the  society  of  his 
wife  and  the  happiness  of  his  home  that 
had  been  destroyed.  There  is  no  posi- 
tive evidence  that  thev  lived  unhappily 
together  but  on  the  letters  I  come  to 
the  conclusion,  as  far  as  her  feelings  to- 
wards him  were  concerned,  they  could 
not  have  been  those  of  sincere  affection, 
and  in  losing  the  society  of  a  woman 
who  made  these  virulent  and  abusive 
attacks  upon  him,  it  is  not  such  a  loss 
as  to  call  for  heav^  damages  against  the 
co-defendant.  It  is  necessary  in  an  ac- 
tion like  this  that  the  Court  should  see 
that  the  plaintiff  does  not  suffer  any 
actual  loss  through  the  conduct  of  the 
co-defendant,  and  I  think  he  is  entitled 
to  some  damages.  There  is  always  in 
these  oases  certain  costs  that  cannot  be 
recovered  as  taxed  costs,  and  the  Court 
should    see  that  no  loss  falls  upon   the 

Slaintiff  in  that  respect.  I  think  if  the 
amages  are  assessed  at  £30  it  will  cover 
these  costs.  I  find,  under  the  circum- 
stances, that  there  is  no  evidence  to 
show  that  the  plaintiff  is  not  entitled 
to  the  custody  of  the  children.  With 
respect  to  the  property  transferred  to 
the  wife  formed  one  of  tne  considerations 
received  by  her  only  in  respect  of  this 
marriage,  and  she  nas  forfeited  that 
benefit  A  decree  of  divorce  will  be 
granted,  the  plaintiff  ordered  to  have 
custody  of  the  children,  the  wife  de- 
clared to  have  forfeited  the  benefits  ac- 
cruing to  her  through  the  marriage,  and 
is  oroered  to  transfer  the  land  to  the 
plaintiff,  and  the  co-defendant  is  ordered 
to  pay  the  damages  in  the  sum  of  £30 
and  costs. 

Mr.  Burton:    I  suppose  Mrs.  Vedasz 
will  be  (allowed  access  to  her  children. 

[Maasdorp,  J. :    Oh,  yes.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplet.] 


OBPP  V    GEPP. 


j       1SI06. 
(  Aug.  2nd. 

Mr.  Burton  moved  for  a  decree  of 
divorce  on  the  ground  of  malicious  de- 
sertion. He  said  thait  the  matter  was 
before  the  Court  some  time  ago,  when 
evidence  was  taken,  but  tbe  case  was 
ordered  to  stand  over  pending  produc- 
tion of  the  marriage  certificate.  The 
parties  belonged  to  Somerset  W'eat  and 
Woodstock  respectively.  The  certificate, 
he  understood,  had  now  been  lodged  with 
the  Registrar. 

Decree  of  divorce  granted;  no  order 
as  to  costs. 


TUTT  V.  TUTT. 

This  was  an  action  brought  by  Wm. 
Benjamin  Tutt,  tailor,  Kimberley, 
against  hie  wife,  Jane  Dinah  Tutt,  of 
^Lst  London,  for  restitution  of  con- 
jugal rights,  failing  which,  a  decree  of 
divorce,  on  the  ground  of  the  defen- 
dant's malicious  desertion.  Mr.  Lewis 
was  for  the  plaintiff;  defendant  did  not 
&ppetLT. 

Hopley,  J.,  said  that  no  notice  of 
set  down  appeared  to  have  been  served 
on  the  defendant. 

Mr.  Lewis  said  that  he  would  call 
evidence  to  show  that  notice  of  the 
trial  had  been   given. 

Reginald  Metcalfe,  attorney,  in  the 
office  of  Silberbauer,  Wahl  and  Fuller, 
said  that  his  firm  hod  represented  the 
defendant.  Upon  the  plaintiff  tigiee- 
ing  to  waive  the  claim  for  division  of 
property,  it  was  arranged  that  they 
should  withdraw  from  tne  case,  and  to 
save  expense  of  serving  declanation  on 
the  defendant  personally,  his  firm  ac- 
cepted service   in  due  course. 

Hopley.  J.,  said  that  he  would, 
under  the  circumstances,  allow  the  case 
to  proceed,  but  oit  the  same  time  it 
must  be  understood  that  proper  notice 
in  these  cases  must  be  pven  of  the  set- 
down,  in  accordance  wrth  the  practice 
of  the  Court. 

Wm.  Thomas  Birch,  clerk  in  charge 
of  the  marriage  registry,  gave  formal 
evidence  as  to  the  registration  of  the 
marriage. 

Plaintiff  said  that  he  was  married  to 
defendant  at  the  Metropolitan  Church, 
Gape  Town,  in  April,  1886.  Two  years 
afterwards  they  went  to  reside  at  Kim- 
berley. About  five  years  ago  unhappi- 
nesB  commenced,  because  witness  had 
cause  to  complain  of  his  wife's  infidelity. 
She  admitted  the  accusation,  but  wit- 
ness forgave  her,  on  the  «Pound  of 
saying  that  the  boy  who  'had  oeen  born 
was  niegitimaite.  In  1903  his  wife  left 
the  house  without  his  consent,  and  went 


(I 


CAt>E  TIMES*'  LAW  REPORTS. 


606 


to  reside  at  East  London.  H«  bad 
esk«d  her  to  return,  but  she  bad  re- 
fuaed. 

Decree  of  restitution  granted,  defen- 
dant to  return  to  plaintiff  on  or  before 
the  1st  September,  failing  which,  to 
show  cause  on  the  12th  September  why 
a  decree  of  divorce  should  not  be 
granted,  pereonal  service  to  be  effected. 


BAIN  V.  UAHMBR6LET-HEENAN. 

Defamation — Privilege — Express 
malice — Becklessness. 

This  was  an  action  to  recover  £1,000 
damages  for  alleged  defamation. 

Pl&intiff,  in  his  declaration,  said  that 
in  the  year  1902  olainiiff  was  employed 
by  the  Harbour  Board  as  diief  claims 
clerk,  but  in  or  about  December,  1902, 
defendant,  unlawfully,  maliciously,  and 
with  intent  to  injure  the  plaintiff,  wrote 
and  publie^hed  to  the  members  of  the 
Boara  the  following  false  and  defama- 
tor;]^  words  of  and  concerning  the  plain- 
tiff^: "He  (Mr.  Bam]  is  incompetent  for 
the  position  he  holds,  and  has  not  the 
necessary  qualifications  for  the  office." 
In  consequence,  the  plaintiff  was  in  Jan- 
uary^ 1903,  superaeaed  in  his  post  of 
chief  claims  clerk,  and  in  or  about  April, 
1903,  he  was  altogether  dismissed  from 
tbe  employ  of  the  said  Harbour  Board, 
and  bad  suffered  grievous  injury  and 
had  sustained  damages  in  the  sum  of 
£1^000,  which  amount  he  claimed. 

The  defendant,  in  his  plea,  admitted 
that  be  wrote  and  published  the  words 
set  forth^  but  said  t^bat  he  did  not  do 
so  maliciously  or  with  iz^ent  to  injure 
the  plaintiff.  He  denied  that  the  said 
words  were  false  or  defamatory,  but 
said  that  the  said  words  were  written 
by  him  without  malice  and  in  the  belief 
that  tbev  were  true  and  correct,  and  in 
such  oircumstanoes  as  to  make  it  a 
privileged  occasion,  being  contained  in 
a  memorandum  sent  by  him  to  ths 
Board  in  the  course  of  his  duty  as  man- 
ager. As  an  alternative,  in  case  the 
plea  of  privilege  failed,  defendant  plead- 
ed that  the  words  were  true  in  substance 
and  in  fact,  and  that  the  publication  to 
the  said  Board  was  made  wifhout  malice 
and  for  the  fiublio  benefit.  He  admitted 
tiiat  the  plaintiff  was  in  January,  1903, 
removed  from  nis  post  as  ohier  claims 
clerk,  and  that  in  April  he  was  aVto- 
gether  dismissed  from  the  employ  of 
the  Board,  but  denied  that  this  was  in 
consequence  of  the  aforesaid  statements. 
He  said,  further,  that  prior  to  the  issue 
of  summons  more  than  one  year  iiad 
eknred  since  the  words  were  written  and 
published. 

Mr.  J.  K  R.  de  Villiers  was  for  the 
plaintiff;  Mr.  Gardiner  (with  him  Mr. 
M.  Bisset)  was  for  the  defendant. 

Mr.  De  Villiers  said  that  the  words 
complained  of  did  not  come  to  the  know- 
ledge   of   the    plaintiff    vntil    the    13th 


Mavj  1904,  and  the  summons  wss  issued 
witnin  one  year  of  that  date. 

Mr.  Gardiner  said  that  his  client  ad- 
mitted having  said  that  the  plaintiff 
had  not  the  necessary  qualifications  for 
the  post,  and  that,  after  considering  his 
report,  the  Board  sanctioned  his  dis- 
missal. 

Kenneth  Alexander  Bain  (the  plain- 
tiff) was  called.  He  said  that  previous 
to  October,  1901,  he  was  employed  by 
A.  R.  McKensie  and  Co.,  dock  agents, 
as  chief  claims  clerk.  In  October,  1901, 
the  Harbour  Board  took  over  the  de- 
livery of  all  cargo  at  the  docks ;  he  was 
appointed  by  the  Harbour  Board  to 
organise  the  claims  department.  He 
was  afterwards  appointed  permanently 
chief  claims  clerk  as  from  January, 
1902.  at  a  salary  of  £250  a  year.  Wit- 
iieiss  had  to  insbruot  a  staff  and  to  in- 
vestigate all  claims  brought  against  the 
Harbour  Board.  From  Decenibor,  1901, 
the  department  wais  divided,  aiid  Mr. 
Grave  was  apf>oiiyted  to  look  after  the 
current  claims,  w'hile  witness  had  to 
look  after  the  claims  up   to   December, 

1901.  Witness  objected  to  this  arrange- 
ment. Mr.  Grave  had  a  totally  separate 
office  and  staff  from  witness.  This  con- 
tinued till  the  19th  July,  1902.    In  May, 

1902,  Mr.  Grave  had  got  in  arrear  with 
his  claims ;  he  was  unable  to  cope  with 
the  claims  from  the  beginning.  About 
the  end  of  May  the  arrear  claims  were 
sent  to  Mr.  Close,  accountant,  for  ad. 
jufcitment.  Witness  had  nothing  what- 
ever to  do  with  those  claims.  Mr. 
Grave  received  a  salary  of  £30  a  month. 
About  30  or  40  of  witness's  claims  were 
also  sent  to  Mr.  Close :  these  had  been 
partially  investigated  oy  witness.  In 
July,  1902,  Grave  had  again  fallen  into 
arr.  *:•.  W^itnees  had  finished  the  old 
claims.  He  was  offered  an  appointment 
under  Mr.  Grave,  but  declined,  and 
eventually  the  two  staffs  were  combined, 
arwi  witness  was  put  in  full  charge,  while 
Mr.  Grave  was  put  in  the  accountants' 
dp.>ariment.  Witness  took  over  oon- 
eiderably  over  1,000  old  claims  from  Mr. 
Grave.  Witness  continued  in  charge 
until  the  end  of  1C02.  The  claims  con- 
tinued to  come  in  at  a  great  rate.  Wit- 
ness and  his  staff  coped  with  nil  the 
claims  that  were  received.  In  Decem- 
ber, 1902.  witness  wa«  superseded,  and 
Mr.  Girdwood  Who  had  been  freight 
clerk  in  the  Union -Castle  Company's 
offioe  was  appointed  chief  claims  clerk, 
at  a  salary  of  £600  a  year.  Witness's 
salary  was  not  reduced.  Witness  worked 
in  the  office  for  four  months  longer  on 
the  old  claims.  On  February  12,  1903, 
Mr.  Girdwood  gjt  leave  of  absence,  and 
was  away  for  four  or  five  weeks.  Dur- 
ing that  time  witness  dealt  with  the 
whole  of  the  current  claims,  except  a 
bundle  left  by  Mr.  Girdwood  bearing 
a  note  asking  him  to  look  into  those. 
Witness  did  not  investigate  those  claims. 
Witness  put  the  bundle  back.  On  the 
30th  April,  1903,  witness  received  a  let- 
ter from  Captain  Leigh,  dispensing  with 
his  serrioes  as  from  the  31st  May,  and 


00} 


f< 


OAPB  TDIEB*'  LAW  REPORTS. 


Bayinjir  that  in  vi«w  of  the  Uto  koun  be 
had  worked  he  (Captain  Leigh)  had  re- 
cominciided  tlat  he  shouli  receive  a 
bonus.  Subsequently,  he  received  an- 
other letter  from  Captain  Leigh  saying 
that  he  wa^  advised  that  ba  he  (Bain)  had 
received  three  months'  salary  m  lieu  of 
one  month's  notice,  the  General  Man- 
ager could  not  recommend  that  he 
should  be  paid  a  bonus  of  £100.  Witness 
coiuiderod  that  he  was  on  the  fixed  es- 
tablishment, and  that  he  was  under  a 
yearly  appointment.  Witnoes  after- 
wards saw  Mr.  Pyott,  M.L.C.,  with  a 
view  of  having  his  case  brought  before 
Parliament.  Mr.  Pyott  made  verbal  in- 
quiries from  the  General  Manager  of  the 
Harbour  Board,  and.  in  Tesponse  re- 
ceived a  letter  from  the  General  Man- 
ager, in  which  he  said :  '*  Mr.  Bain  was 
placed  in  charge  of  the  claims  depart- 
ment by  Mr.  Underwood,  but  he  proved 
unfitted  for  the  position,  for.  although 
a  zealous  and  painstaking  officer,  his 
manner  with  the  public  wa«  not  such  as 
would  conduce  to  amicable  working, 
and  he  seemed  unable  to  get  the  amount 
of  the  work  out  of  his  staff,  which  was 
necessary  to  enable  him  to  keep  pace 
with  the  claims."  Mr.  Heenan  went  on 
to  say  that  these  drawbacks,  added  to 
the  incompetency  of  the  outdoor  staff, 
had  led  to  the  arrears  of  current  claims, 
and  to  certain  of  them  being  sent  to 
Mr.  Close.  Mr.  Heenan  also  said : 
'*  Mr.  Bain's  honesty,  integrity,  and  ca- 
pacity for  work  the  Board  had  every 
reason  to  be  satisfied  with,  but  he  was 
quite  unfitted  for  the  position  to  which 
ho  had  been  appointea."  Witness  did 
not  want  to  go  to  law,  and  he  then 
wrote  to  the  Treasupcr-ueneral,  asking 
him  if  he  could  re-open  the  case,  in 
view  of  the  information  which  had  come 
to  his  knowledge.  The  Treasurer-Gen- 
eral, however,  Aaid  that  he  could  not 
re-open  the  case.  Nine  months  after  he 
left  the  Board  he  got  a  temporary  sit«i 
ation  with  McKenzie  and  Co.,  and  re- 
mained there  until  they  failed.  He 
was  dispensed  with  in  November  last. 
ITo  was  paid  £2  lOs.  a  week  by  Mc- 
Kenzie and  Co  Witness  was  afterwards 
out  of  employment  for  about  five 
months,  and  he  had  since  been  in  his 
prceent  employ  at  Messrs.  Murray  and 
Stewart's  at  £5  a  week.  Witness  had  a 
wife  and  six  children.  Nobody  knew 
how  he  had  suffered  both  in  body  and 
mind  since  he  had  had  to  leave  the 
Board's  service. 

Cross-examined :  Witness  was  paid  his 
salary  by  the  Board  by  the  month.  He 
thought  it  was  Mr.  Heenan's  duty  to 
speak  to  him  if  he  had  any  fault  to  find. 
He  was  inclined  to  think  that  Mr.  Heen- 
an was  animated  by  pergonal  spite.  He 
thought  Mr.  Heenan  did  not  believe 
what  he  wrote.  Mr.  Heenan  ^rarely  met 
witness.  Mr.  Heenan  had  always  ac- 
knowledged in  the  correspondence  that 
witness  had  worked  hard  and  zealously 
in  the  interests  of  the  Board.       He  did 


not  know  that  Mr.  Heenan  had  endorsed 
Mr.  Robh's  recommendation  that  witness 
should  receive  a  bonus  of  £1(X).  He  did 
nut  think  that  Mr.  Gird  wood  was  half  as 
competent  as  himself.  Mr.  Gird  wood 
was  appointed  in  the  intorots  of  the 
shipping  rniii.  He  thought  Mr.  Heenan 
was  working  in  the  interests  of  the  ship- 
ping ring. 

Mr.  Gardiner:  Tou  have  no  found- 
ation for  that  statement? 

Witness :   Common  report. 

That  is  your  only  foundation?— No,  not 
my  only  foundation.  Claims  have  been 
passed  by  Mr.  Girdwood  which  ought 
not  to  have  been  paid  by  the  Harbour 
Board. 

Further  cross-exsmined :  Witness  was 
not  at  the  office  when  these  claims  were 

Kassed.  He  was  speaking  from  what  he 
ad  heard.  He  knew  the  way  Mr.  Gird- 
wood was  working  when  he  was  at  the 
B<>ard.  He  pointed  out  what  was  taking 
place  to  Mr.  Robb.  Mr.  Heenan  wanted 
tj  get  rid  of  witness  and  his  chief  clerk 
for  the  sole  reason  that  he  wanted  to 
get  a  man  in  from  the  shipping  ring, 
witness  did  not  repudiate  a  certain 
ckim.  which  Mr.  Girdwood  had  ordered 
to  be  paid  with  the  result  that  the 
Board  were  summoned,  and  he  never 
lieard  any  complaints  about  his  attitude 
to  the  public  until  Tuesday. 

Captain  R.  A.  Leigh  said  he  was 
Dock  Superintendent  for  the  Harbour 
Board  in  1902,  and  ho  was  now  aaeistant 
superintendent.  Witness  was  Mr.  Bain's 
direct  superior  officer.  Tlie  staff  Mr. 
Bain  had  was  almost  the  same  as  now, 
and  wa«  quite  competent  Mr.  Bain 
worked  nights,  holiaays,  and  Sundays, 
but  witness  did  not  think  he  had  gocd 
rc«Bults  from  his  labour. 

Cross-examined:  Witness  hiid  no 
reason  whatever  to  believe  that  Mr. 
Hammersley-Heenan  had  any  personal 
spite  against  plaintiff,  and  he  could  not 
understand  the  suggestion  that  Mr. 
Heenan  was  working  in  the  interests  of 
the  shipping  ring. 

Frank  Robb,  Assistant  General  Man- 
ager of  the  Harbour  Board,  said  it  was 
impossible  for  any  mortal  man  in  the 
bci^inning  of  1902  to  cope  with  all  the 
claims.  From  about  Mav,  1902.  how- 
ever, an  improvement  snould  have 
lieen  apparent,  as  the  conditions  were 
better.  Witness  made  the  statement 
that  on  the  whole,  Mr.  Bain  got  good 
results  from  a  financial  point  of  view, 
and  the  General  Manager  agreed  with 
him. 

By  the  Court:  In  the  circumstances, 
he  would  have  dispensed  with  Mr.  Bain's 
>ervice8.  as  the  General  Manager 
had  done.  He  did  not  remember  dis- 
approving of  Mr.  Bain's  dismissal,  but 
he  disapproved  of  Mr.  Girdwood's  ap- 
pointment. 

Cross-examined:  Mr.  Bain  was  not 
the  man  he  would  have  selected  for  the 
l>ost.  but  he^  worked  under  the  very 
worst   conditions,    and    never    l^ad       % 


"CAPE  TIMES"   LAW  REPORTS. 


6or> 


cbance  of  showing  what  he  was  oapablo 
of.      He  was  on  the  monthly  staff. 

Frank  William  Oliver  said  he  was  in 
the  employ  of  the  Harbour  Board 
about  the  same  time  as  Mr.  Bain,  as 
assistant  clerk  in  the  Claims  Depart- 
ment. He  never  heard  anything 
about  Mr.  Bain  disobeying  the  orders 
of  Mr.  Girdwoodf  or  complaints  by  the 
public  against  Mr.  Bain.  The  whole 
office  ataif  worked  well  under  Mr. 
Bain. 

Mr.  De  Villiers  closed  his  case. 

Mr.  Gardiner  said  that  he  had  thought 
of  applying  for  absolutiou  from  the 
instance,  but  he  thought  it  would  be 
better  to  call  evidence  in  order  to  ob- 
tain judgment. 

Rooert  Henry  Hammersley-Heenan 
(defendant)  said  that  he  had  to  oast 
about  to  get  a  good  man,  because  there 
were  claims  outstanding  at  that  time 
to  the  tune  of  about  £32,000.  He  ulti- 
mately found  a  man  in  Mr.  Girdwood. 
Tiain  was  not  competent  for  the  posi- 
ion:  he  had  not  got  the  capacity  to 
do  toe  work,  in  witness's  opinion.  Bain 
failed  in  administrative  and  organising 
ability.  Witness  had  invariably  testi- 
fied that  Bain  was  a  hard  and  zealous 
worker.  There  were  complaints  froa 
the  public.  Witness's  life  was  a  perfect 
burden,  owing  to  the  oomplaiivts  he  re- 
ceived from  the  Chamber  of  Commerce, 
and  merchants,  and  everybody  else,  that 
tbeir  claims  were  not  settled.  Bain 
was  not  a  tactful  man.^  Witness  had 
no  personal  malice  against  Bain;  on 
the  contrary,  he  did  all  he  could  to 
assist  Bain  into  a  situation  in  another 
department.  Witness  considered  that 
he  had  no  alternative  but  to  do  as  he 
did  in  the  discharge  of  his  duty. 

[Hojpley,  J. :  Is  there  any  founda- 
tion tor  the  suggestion  that  you  ^ot 
Girdwood  in  in  the  interests  of  the  ship- 
ping ring,  or  any  interest  but  the  Har- 
bour Board's?] 

Witness :    Absolutely  none. 

Cross-examined :  The  very  fact  of 
Bain  trying  to  sc^ueeze  down  the  mer- 
chants and  to  drive  unnecessarily  hard 
bargains  wasted  his  time,  and  he 
exerted  his  energies  on  that,  instead 
of  on  the  general  administration  of  his 
department.  Mr.  Robb  had  described 
Bain  as  **  too  much  of  a  ferret  and  too 
little  of  an  administrator.'*  Witness 
thought  that  that  just  touched  ^ho 
point.  Bain  had  not  got  the  width  of 
mind  to  grasp  big  questions.  Witness 
found  that  the  relations  between  Giro 
wood  and  Bain  had  become  very 
strained,  and  of  the  two  men,  he  had 
no  hesitation  as  to  which  he  snould  re- 
tain. He  was  satisfied  that  the  action 
ho  took  in  dismissing  Bain  was  the 
rigVt  and  only  thing  no  could  do.  He 
had  satii^fied  himself,  before  he  dis- 
missed Bain,  that  the  position  between 
him  and  Girdwood  was  an  impossible 
one.  He  admitted  that  Bam  had 
worked     nights,  Sundays,  and  holidays, 


and  had  saved  money  for  the  Board, 
but  he  considered  that  Bain's  energies 
wore  misdirected.  Witness  had  not 
said  t  K.'  w^rds  that  "  Bain  was  incom- 
ixjtent,"  but  he  admitted  having  said 
that  Bain  "had  not  the  necessary 
(|ualificatioiis  for  the  post." 

At  this  stage  the  plea  was  amended 
to  read  that  defendant  denied  having 
said  that  the  plaintiff  was  incompetent, 
but  admitted  having  said  that  he  had 
not  the  necessary  qualifications  for  the 
post 

Cross-examination  continued :  Wit- 
ness dismissed  Bain  from  the  Board's 
service,  and  afterwards  reported  what 
he  had  done  to  the  Board.  Witness 
found  that  Bain  was  not  acceptable  to 
the  public.  The  complaints  ne  had 
referred  to  were  not  against  Bain  per- 
sonally, but  against  the  results  in  the 
Claims  Department.  Witness  admitted 
that  the  conditions  at  the  Docks  were 
bad  when  Bain  was  employed  on  the 
clainus,  but  he  did  not  think  that  he 
rose  to  the  occasion. 

Mr.  Gardiner  closed  his  case. 

Mr.  Do  Villiers  having  been  heard  in 
argument  on  the  facts. 

Hopley,  J. :  One  cannot  help  feeling 
a  certain  amount  of  sympathy  with  the 
plaintiff,  and  one  cannot  help  also 
regretting  that  he  should  have  been 
advised,  or  that  he  should  have  in- 
sisted, on  coming  into  tliis  Court 
in  order  to  try  and  right  his 
imaginary  or  real  wrongs  in  the 
circumstances  in  which  he  finds  himself 
placed.  He  has  a  very  hard  and  up- 
hill fight  to  sustain  an  action  of  this 
sort.  He  has  first  to  prove  that  the 
words,  as  having  been  made  use  of  by  a 
man  in  the  position  of  Mr.  Hamnriers- 
ley-Heenan,  were  false,  and  malicious, 
and  defamatory,  and  then  he  has  to 
prove  that  if  in  the  circumstances  those 
words  were  privileged,  thoy  wore  used 
with  express  malice  on  the  part  of  the 
defendant,  so  as  to  destroy  the  benefit 
of  the  privilege,  ^ye  all  have  some  idea 
of  the  state  of  things  at  the  Docks  at 
the  time  that  plaintiff  was  engaged, 
and  when  he  was  carrying  on  his  work. 
There  must  have  been  a  sbate  of  great 
confusion  and  a  large  accumulation  of 
claims  against  the  Harbour  Board :  but 
then  it  is  often  said  that  the  presence  of 
such  a  state  of  things  will  bring  out  the 
best  points  in  a  good  man.  Plaintiff  had 
a  fair  trial.  There  is  no  doubt  from  the 
evidence  before  me  that  he  was  a  most 
zealous  and  most  industrious  man,  and 
most  zealous  in  more  than  one  direction. 
Besides  working  whenever  he  oould 
possibly  be  expected  to  work,  he  showed 
his  zeal  in  another  direction,  by  trying 
to  cut  down,  as  far  os  ho  could,  the 
merchants*  claims,  and  in  other  ways 
to  save  money  for  the  department  in 
\vhich  he  was  engaged.  All  this  zeal 
is  very  well  in  its  way,  but  it  does  not 
follow  that  a  man  who  shows  those 
qualifications  haip  really  got  the  qualifica- 


606 


"CAPE  TIMES"  LAW  BEl>OftT6. 


tioofl  neooflsary  for  the  post  he  holds, 
any  more  than  a  head  gardener,  for 
insrtance,  doee  if  he  persiste  in  spend- 
ing his  time  in  digging.  As  to  the 
question  of  what  effect  the  words  com- 
plained of  had,  it  does  not  appear  that 
the  publication  procured  the  plaintiff's 
dismissal,  because,  as  a  matter  of  fact, 
he  had  l>eon  dismissed  by  the  General 
Manager  before  the  worda  complained 
of  had  been  written.  But  it  may  be 
that  the  words  had,  or  must  be  held  to 
have  liad  some  effect  in  procuring  the 
Board's  confirmation  of  the  defendant's 
action,  and  I  must  consider  them  in  the 
state  of  t.he  pleuidings  as  having  been 
written  before  the  nnai  dismissal  took 
place.  Now,  when  a  General  Manager 
makes  a  report  like  this,  he  writes  it  on 
a  privileged  oooasion,  and  all  I  have  now 
to  consider  is  whether  the  plaintiff  has 
succeeded  in  showing  that  there  was  ex- 
press malice  actuating  the  defendant 
when  he  wrote  the  words  in  question, 
and  as  to  that  I  confess  that  throughout 
the  whole  of  this  case  I  have  not  been 
able  to  find  one  shred  of  evidence  which 
will  show  the  slightest  scintilla  of  malice 
against  the  plaintiff  on  the  part  of  the 
defendant.  Every  written  document 
that  there  is  has  shown  that  he  was 
treated  with  great  regard  and  that  his 
good  services  were  always  eulogized. 
The  defendant  has  made  use  of  no  ex- 
pression indicating  malice  on  his  part, 
and  none  of  his  conduct  points  to  a 
malicious  state  of  mind ;  but  it  has  been 
argued  that  he  was  reckless  in  making 
the  charge  he  did.  I  can  see  nothing 
to  substantiate  this.  He  acted  on  the 
best  information  at  his  disposal,  ajid  on 
the  reports  of  the  officers  subordinate 
to  himself  who  had  to  deal  with  the 
plaintiff;  and  he  lalso  had  had  personal 
complaints  from  members  of  the  public 
of  plaintiff's  want  of  tact  in  his  position. 
Under  all  the  circumstances,  the  plain- 
tiff must  fail,  and  judgment  must  be 
given  for  the  defendant.  One  cannot 
help  having  some  sympathy  for  the 
plaintiff,  but  that  sympathy  is,  I  must 
say,  to  a  great  extent  removed  by  tlie 
fart  that  he  himself  has  not  scrupled, 
when  in  the  witness-box,  to  make  a 
very  grave  and  unfounded  choirge  against 
the  defendant  and  others  responsible 
for  the  appointment  of  Mr.  Girdwood, 
which  was  virtually  a  charge  of  cor- 
ruption on  the  part  of  the  defendant 
and  others  associated  with  him.  There 
is  not  the  slightest  evidence  to  support 
these  charges.  It  is  an  improper  thing 
for  the  plaintiff  to  take  advantage  of 
the  privilege  of  the  witness-box  to  make 
accusations  of  that  sort,  which  he 
cannot  bring  any  evidence  to  support. 
Judgment  will  be  given  for  the  defend- 
ant with  coetB. 

[Plaintiff's  Attorney :  F.  W.  Foley ; 
Defendant's  Attorneys :  Reid  and  Nep- 
hew.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting  Chief  Justice,  the 
Hon.  8ir  John  Bughana.k.] 


REVIEW. 


REX   V.  MEITJE  8WABTZ 


•  I 


1905. 
Au^r.  3rd. 

Concealment  of  birth — Ordinance 
10  of  1845. 

By  Ordinance  10  of  1846,  con- 
cealment  of  birth  is  not 
punishable  loith  a  fine. 


Buchanan,  A.  C.  J.:  The  case  ni 
Meitje  Swartz  came  before  me  as  Judge 
of  the  week,  in  which  the  accused  was 
charged  with  contravening  Ordinance  10 
of  1845  by  concealing  the  birth  of  a 
child  was  Laid  lagainst  the  accused.  The 
case  was  remitted  under  Act  43 
of  1885,  and  the  Magistrate  sen- 
tenced accused  tx)  a  fine  of  £25,  or. 
in  default,  to  imprisonment,  with  hard 
labour,  for  six  months.  The  Conceal- 
ment of  Birth  Ordinance  gives  no  op- 
tion of  payment  of  a  fine,  so  the  option 
of  a  fine  is  struck  out  of  the  sentence. 
The  sentence  of  imprisonment  will  stand, 
and  the  sentence  as  so  amended  will  be 
confirmed. 


PROVISIONAL   ROLL. 


MACLEOD  v.  EGBER8. 

Mr.  Sutiton  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £500.  duo 
by  reason  of  the  non-payment  of  inter- 
est ;  counsel  also  applied  for  the  property 
6X>ocially  hypothecated  to  be  declared 
executable 

Order  granted. 


LARMER  V.  PERELMAN. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £1,200. 
with  interest,  less  £25  paid  on  account, 
and  for  £2  \2&.  6d.,  premiums  of  insur- 
ance, the  bond  having  become  due  by 
reason  of  the  non-payment  of  interest; 
counsel  also  applied  for  the  property 
special Iv  hypothecated  to  be  declared 
executable. 

Order  granted. 


"CAPE  TIMES"  LAW  REPORTS. 


(507 


J0HK80K  AKD  CO.  V.  BUBRILL. 

Mr.  Van  Zyl  moyed  for  a  decree  of 
civil  impriflonnieDt  againat  the  defend- 
aDt.  Woen  the  matter  was  last  before 
the  Court  (15  C.T.R.,  414),  defendant 
aaid  that  he  would  make  an  offer,  but 
he  bad  failed  to  do  so. 

Decree  granted. 


B0BBBT80N  V.  BIB8  AND  GO. 

Mr.^  Alexander  moved  for  the  final 
adjudication  of  the  defendant's  estate  as 
insolvent. 

Defendant  said  that  had  he  been  left 
alone  by  the  petitioning  creditor  he 
would  have  been  able  to  carry  his  busi- 
ness through,  with  the  assistance  of 
English  creditors.  Plaintiff  would  not 
allow  him  time,  otherwise  he  would 
have  been  able  to  arrange  all. 

Buchanan,  A.  C.  J.  (to  defendant): 
I  am  afraid  that  the  man  has  his 
remedy;  he  has  the  whip  hand  of  you, 
and  I  am  sorry  for  you.  Final  order 
granted. 

Mr.  Alexander  moved,  as  a  matter  of 
urgency,  for  the  appointment  of  a  pro- 
visional trustee,  on  the  petition  of  Mr. 
Sherwood.  It  was  stated  that  the  busi- 
ness  wss  that  of  a  tin  and  heet  metal 
worker,  and  was  the  only  one  of  its 
kind  in  the  Peninsula.  Counsel  add-d 
that  it  was  only  fair  to  say  that  in  1905, 
Mr.  Robertson  advanced  £1,100  to  de- 
fendant, and  had  not  recotved  a  single 
sixpence. 

Mr.  A.  N.  Foot  was  appointed  pro- 
visional trustee  of  the  estate. 


LETTER8TEDT  V.   WENTZBL. 

Mr.  Russell  moved  for  provisional 
s«>ntcncc  for  £556  on  certain  conditions 
of  sale,  plaintiff  tendering  transfer  of 
the  property. 

Defendant  put  in  an  affidavit  saying 
that  there  had  been  some  difficulty 
about   obtaining  securities. 

Order  granted. 


ILLIQUID  ROLL. 

DUBANT  v.  UAABHOFF. 

Mr.  M.  Bisset  moved  for  judgment, 
under  Rule  529d,  for  £67  7s.,  goods 
sold  and  delivered,  with  interest  and 
costs. 

Order  granted. 


GENERAL   MOTIONS. 

TI7BNBT7LL  V.  THBNBULL.    j    ^^^J-^j 

Mr.   Lewis  moved    for  a    decree      of 
divorce  on  the  petition  of  the  wife,  in 


default   of  compliance  by       the    defen- 
dant with  an   order  for  restitution      of 
c^)nju;?al  rights. 
Rule  made  absolute. 


MBYEB  y.  MBYEB. 

Mr.  M.  Bisset  nK>yed  for  a  decree  of 
divorce  on  the  petition  of  the  husband, 
in  default  of  compliance  by  the  defen- 
dant with  an  order  for  restitution  of 
conjugal  rights. 

Rule  made  absolute. 


NATIONAL   MUTUAL    LIKE    ASSOCIATION 
V.  ESTATE  TILNBY. 

This  was  an  application,  upon  notice 
of  motion,  calling  upon  the  respondent 
to  show  cause  why  he  should  not  fur- 
nish security  in  the  sum  of  £600,  in 
order  to  meet  the  costs  of  defending 
an  action  instituted  against  the  ap- 
plicant compajiy.  and  further,  why  he 
should  not  do  debarred  from  proceed 
ing  further  with  the  suit  until  he 
should  have  furnished  such  security  due 
from  him  owing  to  his  want  of  domi- 
cile in  this  colony. 

From  the  affidavits,  it  appeared  that 
the  late  Mr.  Tilney  insured  with  the 
applicant  company  for  a  sum  of  £1,000, 
and  that  he  died  at  King  William's 
Town  in  July,  1902,  about  eight  or  nino 
months  afterwards.  Mr.  Boweii  was 
appointed  executor,  and  he  proceeded 
to  take  out  letters  of  administration  in 
Rhodesia.  He  had  applied  to  the 
company  for  payment  of  the  proceeds 
of  the  policy,  but  they  declined  to  pay 
the  money,  and  the  executor  had  com- 
menced an  action.  The  only  asset  in 
the  estate  was  the  insur.ince  policy. 
The  ground  of  the  present  application 
was  that  Mr.  Bowen  was  domiciled  in 
another  jurisdiction,  that  largo  ex- 
pen^se  would  be  involved  in  a  commis- 
sion which  had  already  sat  in  Cape 
Town  and  other  commissions  that  it 
was  proposed  should  .sit  in  other  parts 
of  the  country,  and  that  applicants  were 
entitled  to  some  security  for  their  costs. 
The  Master  of  this  Court  further  took 
up  the  pojiition  that  the  letters  of  ad- 
ministration should  have  been  taken 
out  in  this  Colony.  The  company, 
in  thoir  plea,  set  out  two  de- 
fences: (1)  That  the  deceased  com- 
mitted suicide  to  get  the  proceeds  of 
the  policy  for  the  benefit  or  a  friend; 
»nd  (2\  that  he  made  false  representa- 
tion at  the  time  the  policy  was  issued, 
as  he  was  at  that  time  intemperate,  and 
he  had  already  expressed  an  intention 
of  committing  suicide. 

Mr.  Searle,  K.C.  (with  him  Mr.  Ben- 
jamin) for  applicants.  Mr.  Upington 
(with  him  Mr,  Swift)  for  responaent. 

[Buchanan,  A.  C.  J.  (to  counsel): 
That  question  might  have  been  decided 
on  exception.] 


eo8 


i> 


(jAP£  TIMES"   LAW  REPOllTd. 


Mr.  Soarle:  I  was  ffoing  to  sugveat 
whether  it  would  not  be  worth  while 
now  to  consider  whether  that  point 
could  not  bo  decided.  Mr.  Searle  went 
on  to  arpTUo  that  his  clients  were  en- 
titled to  their  order  for  security  for 
costs,  eeoinjr  that,  althou^^h  the  decoaaed 
was  domiciled  in  this  colony  at  the  time 
of  his  death,  ndministration  had  been 
taken  out  in  Rhodesia,  where  the  exe- 
cutor resided.  He  added  that  it  mif^ht 
be  necessary  to  take  certain  evidence 
in  KinfT  William's  Town,  connected  with 
the  inquest  proceeding's. 

Mr.  Upin^ton  said  that  if  the  appli- 
cation were  granted  it  would  have  the 
effect  of  ahriolutcly  stopping  the  pro- 
ceedings. It  was  not  a  question  of  the 
estate  lx?ing  unwilling,  because  they 
wore  willing  to  do  everything  in  their 
power  to  take  up  their  domicile,  which 
they  had  never  lost,  m  this  colon v 
The  objection  now  taken  was  a  '.  urelj 
technical  ojie.  He  submitted  that  it 
was  inequitable  that  the  re8pon<l«»  \t 
should  now  be  called  upon  to  furnish 
6*yurity  in  the  enormous  sum  of  £J5C0 
to  enable  defendants  to  substantiate  a 
ridiculous  charge  that  deceased  entered 
into  this  life  policv  to  commit  suicide 
for  the  purpose  of  l)enefitinp'  a  friend. 

Buchanan,  A.  C  J.,  said  that  the  re- 
spondent's attorney  had  already  entered 
into  a  i^ersonal  guarantee  for  the  pay- 
ment of  costs  up  to  what  was  called  the 
exception  stage  when  the  applicants  were 
given  leave  to  amend  their  plea.  There 
was  now  no  undertaking  for  the  ooets 
since  then.  The  Court  would  order  that 
the  proceedings  in  the  matter  be  stayed 
until  further  security  for  costs  was  given. 
Ho  (the  learned  Judge)  thought  it  would 
bo  sufficient  if,  in  addition  to  the  attor- 
ney's personal  guarantee  security  for  a 
further  sum  of  £250  w«s  furnished,  costs 
of  the  application  to  be  costs  in  the 
cause,  failing  such  security  being  given, 
costs  to  be  paid  by  the  respondent. 


GAFKOOB    V.     HIGH    SHERIFF     AND 
HETDENRYCH. 

This  was  an  application  upon  notice 
of  motion  cahiug  upon  the  reepondenta 
to  show  cause  why  an  order  should  not 
be  granted  discharging  from  attach- 
ment certain  goods  in  the  applicant's 
shop  at  the  corner  of  Campbell-street 
and  Polo-road,  Observatory- road,  which 
had  been  attached  by  virtue  of  a  writ 
direoted  against  the  goods  of  one  Gadje 
Abduraman. 

Tlie  applicant's  affidavit  stated  the 
goods  were  his  bona -fide  property,  and 
denied  that  the  shop  belonged  to  Ab- 
duraman. or  was  in  any  way  connected 
with  Abduraman.  Other  affidavits  were 
read  from  merchants  in  Cape  Town 
stating  that  they  had  supplied  appli- 
cant with  goods. 


The  answering  affidavit  of  William  D. 
Herbert  stated  that  he  had  proceeded 
to  the  shop  of  Abduraman,  at  the  cor- 
ner of  Cooke-street  and  Polo-road,  to 
levy  execution,  and  had  found  that  it 
contained  no  goods.  He  had  reason  to 
believe  that  the  businesses  in  Cooke- 
street  and  Campbell-street  were  com- 
bined, and  he  found  in  the  former  shop 
handbills  advertising  the  business  in 
Campbell -street.  I>&ponent  added  that 
he  had  had  great  experience  in  attach- 
ing the  goods  of  Indians,  and  his  ex- 
perience was  that  Indians  would  adopt 
almost  any  course  to  prevent  their  goods 
being  attached.  Supporting  affidavits 
by  B.  G.  Heydenrych  and  the  land- 
lord of  the  shop  at  the  corner  of  Camp- 
bell-street, stated  that  up  to  March  of 
this  year  Abduraman  had  paid  the  rent, 
and  that  he  (the  kindlord)  still  looked  to 
Abduraman  for  payment  of  the  rent 
Replying  to  the  Court,  Mr.  Molteno 
stated  that  the  amount  of  the  iudgment 
was  £100,  and  the  value  of  toe  goods 
attached  was  about  £75. 

The  replying  affidavit  of  api^icant 
stated  that  the  reason  why  his  shop 
was  advertised  on  the  handbill  of  Ab- 
duraman was  because  of  the  saying  in 
cost  of  printing.  He  had  received 
goods  in  the  name  of  Abduraman,  but 
it  was  only  because  he  had  been  made 
to  obtain  goods  on  his  own  credit, 
and  had  used  Abduraman's  name  as 
security.  Counsel  aJso  read  other  re- 
plying affidavits. 

Mr.  Close  for  applicant.  Mr.  Molteno 
for  respondents. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts. 

Buchanan,  A.  C.  J.,  said  it  was  im- 
possible to  decide  the  ownership  of  the 
goods  on  affidavit,  and  an  action  would 
have  to  be  instituted.  On  the  docu- 
ments before  him,  however,  it  was  clear 
that  the  goods  for  Gaffoor  went  to 
Gaifoor's  stiop,  and  the  goods  for  Ah- 
duraman  to  Abduraman's  shop,  and 
it  would  be  an  injustice  to  the  mer- 
chants who  supplied  Gaflfoor  to  al- 
low goods  the|y  had  supplied  to  him  to 
be  attached  m  order  to  pay  Abdura- 
man's debts.  If  ih&  creditor  wanted 
to  show  th<a/t  these  goods  were  execut- 
able under  liis  writ  he  could  bring  an 
action,  but  meanwhile  the  attachment 
on  the  goods  must  be  set  aside.  co:$t.^ 
to  be  cosis  in  the  cause,  or,  failing  an 
action,  respondents  must  pay  the  costs. 


SHUTTE  V.  TURNER. 

Mr.  P.  S.  T.  Jones  moved  for  a 
lule  Jiisi  to  be  made  absolute,  ciJlirg 
upon  the  respondent,  Daniel  Turner,  of 
Constantia.  to  show  cause  why  a  certain 
sum  of  £50,  to  be  awarded  him  by 
the  War  Losses  Compensation  Commis- 
sion, pnd  paid  to  the  R.M.  -^t  Wynborg, 
on  his  behalf,  should  not  bo  attached  io 


i 


''tAPE  TtMES"  LAW  llEl^OllTB. 


609 


pmri  satififaction  of  a  judgipont  o{  -  the 
K.Ll.  s  Court,   at  Prieska. 

Mr.  M.  Bu»ct,  on  beh&lf  of  respon- 
dent, opposed  the  application,  an  J  r«*ad 
an  affidavit  by  Turner,  stating  that  th€ 
award  referred  to  certain  animals  hand- 
ed over  to  the  military  for  protection 
while  he  was  at  Upington  duiini;^  the 
late  war.  and  that  respondent  was  only 
entitled  to  iwo-tetiths  of  the  amount  of 
the  awaid,  a«  the  owner  of  only  two  of 
the  animals.  DepDnen-t  added  that  he 
had  lost  all  his  propertv  through  the  war, 
and  was  now  practically  penmle^.  Affi- 
davits swor.i  by  respondent's  eons  were 
aJfio  read  to  the  effect  that  certain  of 
the  animaU  were  their  properly.  Re- 
spondent did  not  oppose  the  application 
so  far  as  £10  of  the  award  of  £!50  made 
by  the  Co-nmission  was  concerned. 

Mr.  Jones  read  replying  affidavits  to 
the  fffect  that  the  applicant  had  good 
reason  to  believe  that  Turner  owned  the 
animals,  and  that  Turner,  as  a  matter 
of  fact,  put  in  the  claim  to  the  Ck>mmJ3- 
siou  in  hifi  own  name  as  owner  of  the 
arimab. 

Counsel  having  been  heard  in  argu- 
ment, 

The  rule  was  made  absolute  to  the  ex- 
tent of  £10,  respondent  to  pay  costs  of 
application. 


GOOBKN   v.  GY8ELAAR. 

Mr.  M.  Bisset  moved  for  leave  to  sign 
judgment  against  the  plaintiff,  who  had 
failed  to  file  hie  declaration. 

Order  granted  as  prayed. 


EdB  parte  ESTATE  M08TEBT. 

Mr.  Gardiner  moved  for  leave  to  pass 
transfer  of  certain  property,  at  Obser- 
vatory, «n  the  estate  of  the  late  Adrian 
Mostert,  and  his  subsequently  deceased 
spouse.  It  appeared  that  the  matter 
was  ootnplicated  by  the  fact  that  the  late 
Mr.  Mo«Ptert  some  time  in  the  '60*6  sur- 
rendered his  estate. 

Ordered  to  stand  over  for  further  in- 
formation. 


CLACK  T.  CLACK. 

Mr.  M.  Bisset  (on  behalf  of  plaintiff) 
moved  for  the  removal  of  trial  to  the 
Eastern  Districts  Court. 

Application  granted,  costs  to  be  costs 
i:i  the  cause. 


ESTATE  HOFFMAN  V.  GOTTLIEB. 

'  This  was  an  application  upon  notice 
of  .motion,  calling  upon  th^  respondent 
to  show  cause  why  he  should  not  be  or- 
dered to  disclose  and  deliver  up  to  ap- 
pbcants,  the  trustees  in  the  insolvent  es- 
tate, Wm.  Hoffman,  all  suob  books  of 
account)  documents,  and  vouchers,  as  are 


ia  his  possession,  and  control,  relating 
to  the  business  of  the  insolvent  prior  to 
his  insolvency  in  connection  with  the 
Dominion  Tobacco  Company,  which  busi- 
ness had  been  taken  over  and  continued 
by  respondent.  Mr.  Benjamin  was  for 
applicant;  Mr.  Upington  was  for  respon- 
dent. The  ground  of  application  was 
that  the  books  and  documents  were  re- 
quired for  the  liquidation  of  the  insol- 
vent estate. 
Affidavits  having  been  read, 
Mr.  Upington  said  that  his  client  was 
prepared  to  hand  over  i)he  vouchers  and 
documents  of  Hoffman,  but  that  it  was 
most  inconvenient  to  hand  over  the 
books  of  account,  because  ho  was  using 
them  in  the  business.  He  had  not,  how- 
ever, any  objection  to  allowing  the  ap- 
plicant reasonable  access  to  the  books  of 
account. 

Mr.  Benjamin  said  that  Gottlieb  had 
taken  part  in  a  very  suspicious  transac-. 
tion,  and  it  was  only  right  that  the 
trustee  should  h-ave  facilities  for  investi- 
gating the  affairs  of  the  businosa.  The 
sale  of  the  business  from  Hoffman  to 
Gottlieb  took  place  less  than  six  months 

SeWous  to  the  insolvency  of  Hoffman, 
c  submitted  that,  at  the  very  least, 
the  applicants  were  entitled  to  the  fuU- 
etd  inspection  of  the  books.  When  the 
re.sponaent  was  asked  for  an  inspection 
of  the  books,  he  replied,  "  What  do  you 
want  to  see  them  lor?  " 

Buchanan,  A.  C.  J.,  said  that  there 
was  absolutely  no  necessity  for  the  appli- 
cants to  come  to  the  Court.  The  ap- 
plication would  be  refused,  with  costs, 
it  being  understood  that  the  books  were 
open  k>  the  applicants  for  inspection 
at  all  reasonable  times. 


£jp  parte  FROBAUT. 

Mr.  M.  Bissot  moved,  on  behalf  of 
the  petitioner,  for  &n  order  on  the 
executors  for  payment  of  a  sum  of 
£150  at  present  from  the  ioint  estate 
of  her  deceased  husband  and  her- 
self, and  also  for  such  other  sums  ats 
may  be  required  by  her  from  time  to 
time  up  to  her  one-half  share. 

Buchanan,  A.  C.  J.,  said  that  the  ap- 
plication was  very  much  like  asking  the 
Court  to  give  an  opinion  on  a  will.  In- 
stead of  a  barrister  giving  an  opinion, 
an  ex  parte  application  was  brought  for 
the  purpose  of  asking  the  oipinion  of  the 
Bench.  The  difficulty,  to  his  mind,  was 
how  he  was  to  make  an  order.  Why 
didn't  the  executors  pay  the  money? 

Mr.  Bdfiset  said  that  the  executors 
were  not  prepared  to  take  the  responsi- 
bility. 

[Buoharvan,  A.  C.  J. :  The  Court  is 
not  here  to  advise  executors  on  these 
questions.     Why  not  bring  an  action?] 

Mr.  Bisset  said  that  the  reason,  lie 
thought,  was  on  account  of  the  expense. 
The  maUer  oould   be  settled  in   a  few 


610 


(I 


CAPE  TIMES"  LAW  BEPORTS. 


zninuies   if  bis  lordcfaip  would   look   at 
the  will. 

Buchanan,  A.  C.  J. :  I, am  not  here  to 
give  opinions.  The  petitioner  may  take 
the  opinion  of  counsel,  or  bring  an 
action.  There  will  be  no  order  on  the 
present  application. 


LAW  BOCIETT  Y.  O'BBIKir. 

Mr.  Benjamin  moved  ^  for  direotione 
as  to  service  in  an  applicwtion  for  the 
removal  of  respondent  from  the  roll  of 
attorneys.  O'Brien  had  been  in  prac- 
tice in  Cape  Town,  but  hie  present 
whereabouts  could  not  be  traced. 

Notice  of  motion  was  ordered  to  be 
given  by  publication,  once  in  the  "  Gov- 
ernment Gaxette,"  '*  Cape  Times," 
**  Cape  Argus,"  and  *'  South  African 
News." 


SMITH  V.  BSTATB  GB088  AND  SMITH  BB06. 

Mr.  Roux  moved  for  a  commission  de 
bene  ease  to  take  certain  evidence  in 
Johannesburg. 

Mr.  Upington  aaid  that  the  respon- 
dent raved  no  objection  to  tiie  application 
so  far  as  two  of  tne  three  witnesses  were 
concerned.  The  action  involved  a  ques- 
tion as  to  an  alleged  fraudulent  trans- 
action between  David  Smith  (the  plain- 
tiff) and  Joseph  Smith  (one  of  the  in- 
solvents), and  it  was  desirable  that  one 
of  the  v.'tneeseft — Joseph  Smith — should 
give  his  evidence  in  the  witness-box. 

Mr.  Roux  read  an  affidavit  by  David 
Smith,  who  said  that  he  was  a  i>oor 
man,  and  it  would  be  very  convenient 
if  the  evidence  of  the  three  witnesses 
could  be  taken  in  Johannesburg. 

Further  affidavits  haying  been  read 
on  both  sides,  and  counsel  having  been 
ho/ird  in  argument, 

Buchanan,  A.  C.  J.,  said  that  a 
commission  would  be  granted  to  ex- 
amine two  of  the  witnesses,  Nathan 
Cliarnas  and  Jacob  ^  Sohwanek,  Mr. 
Krause  to  be  commissioner. 


DAVIDS  V.  DAVIDS. 

Mr.  Roux  moved,  on  behalf  of  Mag- 
dalona  Davids,  a  Griqua,  of  Kokstaa, 
for  the  appointment  of  a  commission 
to  take  t'^ie  evidence  of  petitioner  and 
hor    witnesses    at  Kokstad. 

Application  granted,  the  R-M.  of 
Kokstad  to  be  commissioner,  failing  him 
the  ARM. 


SUPREME  COURT 


FIRST    DIVISION. 


[  Before  the  Hon.  Mr.  Juatioe  Maasdobp.  ] 


BILBT  V.  BILET. 


{ 


1905. 
Aug.  4th. 


This  was  an  action  brought  by  Martha 
Johanna  Jaooba  Riley,  a  nurse,  resid- 
ing at  Nelson  Villa,  Maitland,  for  a 
decree  of  divorce  against  her  husband 
James  Riley,  an  employee  on  the  C.G.R., 
on  account   of  his   adultery. 

The  plaintiff's  declaration  stated  that 
she  and  defendant  were  married  in 
community  of  property  at  St.  Mary's 
Church,  Woodstock,  in  December,  1897. 
There  was  no  issue  of  the  marriage. 
During  the  early  part  of  the  year  1906 
the  defendant  committed  adultery  with 
women  at  Cape  Town  and  Claremont, 
and  in  consequence  contracted  a  ven- 
ereal disease. 

Dr.  Greer  for  plaintiff.  Defendant  in 
default 

William  Thoa.  Birch  produced  the 
register  containing  the  marriage  of  the 
parties. 

The  plaintiff  stated  she  was  married 
in  1897.  She  was  a  nurse  by  profes- 
sion. Since  marriage  she  had  lived  in 
Cape  Town  and  Hex  River.  She  had 
been  very  unhappy  in  her  married  life. 
Three  weeks  after  marriage  her  husband 
assaulted  her  whilst  under  the  influence 
of  drink.  He  was  a  joiner  by  trade, 
but  was  now  an  engine-driver.  The 
cruelty  was  mainly  due  to  his  drinking. 
In  November  last  he  threatened  to 
shoot  witness  whilst  under  the  influ- 
ence of  drink.  Witness  identified  cer- 
tain letters,  in  which  the  defendant  ad- 
mitted adultery  on  several  occasions. 

Dr.  Greer:  We  aak  for  a  division  of 
property,  but  there  is  none  to  divide. 

A  decree  of  divorce  was  granted. 


OBAY  AND  SON  V.  DBN  DAUW. 

This  was  an  action  brought  by  W^.  H. 
Gray  and  Son  of  Cape  Town,  against 
Ellen  Prescilla  den  Dauw.  to  compel 
her  to  return  to  them  a  bond  for  £Mn. 

The  plaintiffs'  decls ration  was  as  fol- 
lows : 

1.  The  plaintiffs  are  William  Harrison 
Gray  and  John  William  Gray,  carrying 
on  business  in  Qape  Town  as  broxers 
and  otherwise,  under  the  style  or  firm 
of  W.  H.  Gray  and  Son.  Tlie  defen- 
dant is  Ellen  Prisoilla  den  Dauw,  now 
or  lately  of  Cape  Town,  who  is  sued 
as  duly  assi^d  by  her  husband  John 
Leonard  Constant  den  Dauw  to  whom 
at  some  date  subsequent  to  1887  she 
was  married  in  England  according  to 
the  laws  of  England. 


n 


CAPE  TIMES"   LAW  REPORTS. 


611 


2.  On  or  about  25th  June,     1903,  the 

Elaintiffs.  at  the  request  of  defendant's 
usband.  J.  L.  O.  den  Dauw,  and  for 
his  accommodation,  endorsed  a  pro- 
missory note  for  £SkX)  made  by  J.  L.  C. 
4fn  Dauw  in  favour  of  H.  M.  Arderne, 
upon  the  express  condition  agreed  to  by 
the  said  J.  L  C.  den  Diauw  that  the 
plaintiffs  ehould,  in  return  therefor  as 
security,  receive  cession  of  a  certain 
second  mortgage  bond  for  £200,  then 
to  be  psssed  by  Lewis  Levin  in 
favour  of  J.  L.  O.  den  Dauw,  hypothe- 
cating in  favour  of  J.  L.  C.  den  Dauw 
oertam  propertv  (to  wit.  Lot  74  of 
original  Lot  No.  8,  Woodstock,  trans- 
feired  to  the  late  J.  M.  Wentzel  on 
20th  April.  1841),  purchased  from  him 
by  the  said  Levin  in  or  about  June, 
1903. 

3.  On  the  12th  August  the  said  second 
Ixmd  was  passed,  but  for  the  sum  of 
£300  instead  of  £200,  and  in  favour  of 
defendant  instead  of  her  husbaod.  The 
plaiDtiffs  agreed  to  the  said  alter ations 
on  condhion  that  plaimtiffs'  daim  to  re- 
ceive cession  of  tne  said  second  bond 
should  not  be  affected,  and  the  defen 
dant  and  her  husband  duly  agreed  there 
to. 

4.  In  or  about  October,  1903,  the  de- 
fendant, assisted  hj  her  husband,  duly 
endorsed  on  the  said  bond  a  cession  oif 
all  'her  right^  thereifi  in  favour  of  plain- 
tiffs as  security,  as  aforesaid,  and  plain- 
tiffs duly  dbtamed  possession  of  the  said 
bood. 

5.  The  defendant's  husband  failed  to 
meet  hJB  obligations  on  the  promissory 
note  aforesaid,  and  phintaffs  bad  to 
pay  the  full  amount  thereof,  with  in- 
terest, amounting  in  all  to  £216. 

6.  Subsequently  the  defendant  beoanie 
indebted  to  plaintiffs  in  farther  suras 
adranoed  by  them  to  her  from  time  to 
time,  amounting  in  all  to  £106  lOs.  3d. 

7.  In  or  abcMit  Seiptember,  1904,  the 
defendant  agreed  to  take  over  the  lia- 
bility ol  her  said  husband  to  plaintiffs, 
as  aforesaid,  and  to  make  a  complete 
and  absolute  cession  of  the  bond  in  fav- 
our of  plaintiffis  in  disobarge  of  the  in- 
debtednes<i  of  horself  and  her  husband 
to  plaintiffs  to  the  extent  of  the  anoount 
of  the  aforesaid  bond,  and  the  bond  was 
delivered  by  plaintiffs  to  defendant  for 
the  purpose  of  signing  the  necessary  en- 
dorsements of  cession  in  plaintiffs'  fav- 
our. 

8.  The  plaintiffs  repeatedly  endeavour- 
ed to  obtain  the  return  of  the  bond 
from  defendants,  but  were  unable  to  do 
so,  and  on  or  about  iihe  17th  October, 
1904,  the  defendant  and  her  husband 
left  this  colony  without  the  previous 
knowledge  of  plisintiffs,  and  the  pAaxn- 
tiffis  have  not  since  then  obtained  pos- 
session  of  the  said  bond. 

9.  The  plaintiffs  have  not  received  pay- 
ment of  any  portion  of  the  sums  of 
£216  and  iSl05  IQs.  3d.,  aforosaid, 
amounting  in  all  to  £321  lOs.  3d. 

Wheiefore    iHaAntiffs    claim:    (a)    An 


order  callin-g  upon  defendant  to  restore 
to  plaintiffs  forthwith  the  second  bond 
for  £300,  as  aforesaid;  (b)  an  order  call- 
ing upon  deleaidant  forthwith  to  take  all 
steps  necessary  to  effect  the  oompleiion 
in  writing  of  the  abrolute  cession  of  the 
said  bond  to  defendants  as  aforesaidi 
and  of  the  registration  thereof.  and, 
failing  compliance  therewith,  the  plain- 
tiffs pray  that  this  Honourable  Court 
will  make  such  order  as  it  shall  deem 
fit  to  enable  plaintiffs  to  secure  and  re- 
gister their  rights  in  respect  of  the  said 
second  bond;  (c)  payment  of  £321  198. 
3d.,  moneys  paid  by  plaintiffs  to,  or  on 
behalf  of,  defendant,  and  ait  her  special 
instance  and  request,  or  for  which  she 
has  taken  over  liability,  as  aforesaid, 
less  the  sum  of  £300  (the  amount  of  the 
said  bond),  to  be  deducted  as  from  the 
date  of  registration  of  the  said  bond  in 
plaintiffs*  favour;  (d)  interest  a  tempore 
morae\  (e)  alternative  relief;  (f)  costs. 
The  defendant's  plea  was  as  follows 

1.  The  defendai«i  admits  paragraph  1 
of  the  intendit  save  that  she  says  that 
she  was  married  in  December,  1887. 

2.  As  to  paragraph  2  she  admits  that 
the  plainti£t8  ait  the  request  of  her  hus- 
band and  for  bis  accommodation  en- 
dorsed the  said  promassory  note;  but 
she  does  not  admit  that^  her  said  husband 
agreed  that  the  plaintiffs  should  in  re- 
turn as  security  receive  cession  of  a  cer- 
tain second  mortgage  bond  for  £200 
then  to  be  passed  rv  Lewis  Levin  nor 
does  she  admit  that  the  plaintiffs  endors- 
ed the  said  note  upon  any  such  condi- 
tion. She  says  that  it  was  always  in- 
tended that  the  said  bond  should  be 
passed  in  her  favour,  and  it  was  never 
intended  that  it  should  be  passed  in  fa- 
vour of  her  husband.  If  ner  husband 
did  agree  that  the  said  bond  should  be 
ceded  to  the  plaintiffs  she  was  no  party 
to  the  said  agreement  and  is  not  bound 
thereby. 

3.  Save  that  she  admits  that  the  said 
Levin  did  on  the  12th  August,  1903,  pass 
a  second  bond  in  her  favour  for  £300, 
instead  of  £200,  she  denies  the  allega- 
tions in  paragraph  3. 

4.  As  to  paragrraph  4  the  defendant 
denies  that  in  October,  1903,  or  at  any 
time  she  endorsed  on  the  said  bond  a 
cession  to  the  plaintiffs  or  that  she  ever 
agreed  to  cede  the  said  bond  to  the 
plaintiffs  as  security  or  otherwise.  She 
admits  that  on  the  said  bond  there  ap- 
pears what  purports  to  be  a  cession 
above  the  names  of  herself  and  her  said 
husband,  but  she  says  that  what  purport 
to  be  the  signatures  of  herself  and  her 
husband  are  forgeries  and  were  not 
written  by  herself  and  her  husband  re- 
spectively. 

5.  She  admits  that  the  said  bond  came 
into  the  possession  of  the  plaintiffs,  but 
says  that  this  was  in  or  about  September, 
1903.  In  or  about  the  said  month  the 
defendant  delivered  the  said  bond  to  the 
plaintiffs  in  order  that  they  might  lodge 
it  with  the  Bank  of  Africa  and  thereby 


612 


tt 


CAPE  TIMES"   LAW  REPORTS. 


obtain  moneys  from  the  said  Imuk  for 
her  husband.  She  denies  that  she  de- 
Uverod  it  to  the  plaintiffs  as  security  for 
any  notoneys  then  owinff  to  them. 

6.  As  to  paragraph  5  she  admits  that 
her  husband  was  unable  to  meert  his  ob- 
lig^ations  on  the  said  note,  but  she  has 
no  knowledge  as  to  the  other  allegations 
in  the  said  parsgraph. 

7.  Afi  to  paragraph  6  she  denies  that 
she  is  or  ever  was  indebted  to  the  plain- 
tiffs in  the  sum  of  £105  ISs.  3d.  or  in 
anv  sum. 

8.  Save  that  she  admits  that  the  plain- 
tiffs returned  the  said  bond  to  her.  she 
denies  each  and  all  the  allegations  in 
paragraph  7. 

9.  She  says  further  that  on  the  17th 
December,  1903,  in  her  capacity  as  agent 
for  her  husband  who  was  then  absent 
from  this  colony  she  passed  in  favour  of 
the  plaintiffs  a  certain  first  mortgage 
bond  for  the  sum  of  £803  hypothecating 
certain  land  with  buildings  thereon  situ- 
ate at  Green  Point  the  property  of  her 
said  husband.  The  said  last-mentioned 
Dond  was  passed  as  security  for  all 
moneys  owmg  by  her  said  nusband  to 
the  plaintiffs  and  is  still  of  full  force 
and  effect. 

10.  She  admits  that  on  or  about  the 
17th  October,  1904,  she  and  her  hufband 
left  the  Colony  and  that  she  has  posses- 
sion of  the  aforesaid  second  bond  ^  and 
has  refused  and  refuses  to  deliver  it  to 
the  plaintiffs,  but  otherwise  denies  the 
alleviations  in  paragraph  8. 

11.  As  to  paragraph  9  she  admits  that 
she  has  not  paid  any  portion  of  the  sums 
of  £216  and  £105  198.  3d.  claimed  by 
the  plaintiffs,  but  denies  that  she  is 
liable  therefor.  Further  with  regard  to 
th3^  sum  of  £216  she  refers  to  the  alle- 
gations in  paragraph  9  hereof.  Whore- 
tore  she  prays  that  the  plaintiffs*  claim 
may  be  dismissed  with  costs.  And  for 
a  further  plea,  in  case  this  Honourable 
Court  should  hold  that  ai  any  time  she 
agreed  to  cede  the  aforesaid  second  bond 
to  the  plaintiffs  as  security  for  any  debt 
due  by  her  husband,  she  says  as  follows : 

12.  St »  !d  not  bound  by  any  agree- 
ment to  be  surety  for  her  husband  or 
to  cede  the  said  bond  as  security  Inas- 
much as  she  has  not  renounced  the 
benefits  of  the  Senaitu  consultum  Tel- 
leianum  or  of  the  Authentica  si  qua 
mulier. 

Wherefore  she  prajs  that  the  plaintiffs* 
claim  may  be  dismissed   with  coe^. 

Mr.  Close  (with  him  Mr.  Gutsche)  for 
plaintiff  Mr.  Gardiner  (with  him  Mr. 
P.  S.  T.  Jones)  for  defendant. 

The  plaintiff,  examined,  stated  that 
on  the  25th  June,  at  the  request  of  de- 
fendant's husband,  be  endorsed  a  pro- 
missory note  for  £200  for  him  in  favour 
o€  H.  M.  Ardeme,  upon  the  express 
condition  that  the  plauitiffs  should  in 
return  as  security  receive  cession  of  a 
second  mortgage  bond  for  £200  then 
to  be  passed  by  Lewis  Levin  in  favour 
of  Den  Dauw.     At  this  ti-me  witness  did 


not  know  that  there  wai>  a  second  bond 
ori    the   property.  Mr.     Den    Dauw 

did  not  tell  witness  of  the  second  bond. 
Witness  wanted  the  transfer  deeds,  and 
wenit  to  the  creeds  office  to  get  them. 
There  he  found  that  there  was  a  bond 
to  Mr.  Ardeme  for  £600.  Witness  ask- 
ed Don  Dauw  why  he  did  not  tell  him 
about  the  bond.  Den  Dauw  said  he 
had  not  done  so.  They  went  to  Mr. 
Ardeme  together,  where  Den  Dauw  ad- 
mitted the  second  bond.  An  arrange- 
ment was  arriyed  at  by  which  Mr.  Ar- 
deme agreed  to  take  off  his  seccm.i 
bond  on  the  Argyle-street  property  and 
take  a  third  bona  on  the  Green  Point 
property  for  £500.  on  condition  that 
wrtneas  signed  a  promissory  note  for 
£200  as  collateral  security.  Mrs.  Den 
Dauw  was  waiting  in  witness's  chambers 
to  know  the  result  of  the  interview  with 
Mr.  Ardeme.  Witness  told  Den  Dauw 
that  he  would  not  sign  any  promissory 
note  unless  he  had  a  cession  of  the 
property  to  be  transferred  to  Levin. 
This  was  agreed  to,  and  the  note  was 
signed.  The  bond  was  passed  by  Mr. 
Levin  on  August  12,  1903.  The  note 
was  for  four  months.  It  was  torn  up 
when  subsequent  ones  were  substituted. 
It  was  accepted  by  Den  Dauw  and  en- 
doreed  by  witness.  On  the  lath  August 
the  second  bond  came.  Finding  it  kn- 
possible  to  get  a  bond  for  £1, WO,  they 
had  to  take  £900  and  raise  a  second 
bond  for  £300.  It  w««  arranged  that 
the  bonds  on  the  Argyle-street  and 
Green  Point  properties  were  to  be  in 
defendant's  name.  The  reason  this  was 
done  was  to  protect  the  property,  as 
the  husband  was  going  through  the 
mone^  rapidly.  Witness  only  aaid  that 
oentain  papers  connected  with  the  case 
bad  difc>a.ppeared  from  his  office. 

[Maasdorp,  J. :  Where  were  these 
papers  kept  ?1 — In  the  files  of  papers  in 
mv  private   office. 

[Maasdorp,  J. :  When  did  they  dis- 
appear?^)— I  did  not  miss  it  until  after 
this  action  commenced. 

[Maasdorp,  J. :  You  nude  full  search 
in  your  office?] — ^Yes.  Mrs.  Den  Dauw 
was  in  your  office  as  an  assistant  clerk 
for  some  months,  and  she  had  full  acoess 
to  these  papers.  Of  course,  I  do  not 
mean  to  say  that  she  took  them. 

Mr.  Gardiner  submitted  that  th«i  was 
no  proof  of  the  disappearance  of  the 
papers. 

Continuing,  witness  said  that  the 
agreement  about  ohanging  the  owner- 
ship of  the  property  would  not  affect 
their  rights.  Witness  got  possession 
of  the  bond  after  it  was  paired.  Mrs. 
Den  Dauw  knew  witness  had  it.  Wit- 
ness kept  the  bond  m  the  office  some 
time.  One  day  Mr.  Den  Dauw  was  in 
the  office,  when  Mrs.  Den  Dauw  also 
entered.  Witness  told  them  they  had 
better  aign  the  cession.  They  signed, 
and  it  was  witnessed  by  "J.  W.  Gray 
and  C.  le  Roux."  At  that  date  therp 
were  no  stamps  or  hho  document,     Wjt- 


u 


CAPE  TIMES"   LAW  REPORTS. 


niB 


neas  had  &i  thai  time  opened  an  ao- 
coiuit  -with  the  AIB.O.  Bank.  Witness 
deposited  the  bond  with  the  bank  as 
security  for  an  overdraffc.  Mr.  Smiih, 
the  mana|rer,  said  the  bank  were  not 
aaitnsfied  with  the  signatures  to  the  bond, 
and  wanted  a  cession  form  filled  up. 
S.e  wanted  Mrs.  Den  Dauw'e  signa/turo 
to  it.  The  signature  '*B.  P.  Den 
Dauw"  to  it  was  in  defendant's  hand- 
writing. WiifcneaB  oha^nged  his  account 
to  the  Bank  of  Africa  in  July,  1904 
Shortly  afterwards  wHness  got  defendant 
to  cancel  the  stamps  on  the  bond.  It 
beoame  necessary  for  Mrs.  Den  Dauw 
to  sign  the  document,  and  at  the  de- 
fendant's requesft  witness  allowed  her  to 
take  the  document  home  on  a  Saturday 
to  get  it  signed,  and  she  promised  to 
return  it  on  Monday.  On  Monday  she 
did  not  turn  up,  and  witness  sent  to 
inquire  about  the  bond.  S'he  sent  back 
wora  to  say  she  was  sick.  As  the  bond 
was  not  returned,  witness  wrote  to  de- 
fendant Atating  that  as  the  bond  was 
held  by  the  bank  as  security  for  an 
overdraft,  that  if  it  was  not  returned 
he  would  have  to  realise  on  hie  pro- 
perty to  meet  the  overdraft.  He  was 
very  anxious  to  get  the  bond  hack.  Wit- 
ness went  to  see  Mrs.  Den  Dauw  about 
the  bond.  She  wae  in  bed.  Witness 
asked  her  about  the  bond,  and  she  said 
she  had  left  it  with  a  lawyer.  Witness 
said  'he  wanted  it  back,  and  she  replied 
that  as  soon  as  she  could  get  out  she 
would  take  it  back.  Wijtness  went  away 
then.  He  repeatedly  sent  for  the  bond, 
and  the  reply  was  always  that  Mrs.^  Den 
Dauw  was  too  ill  to  attend  to  business. 
Mrs.  Den  Dauw  left  for  England  a  little 
later  on.  She  wrote  to  witness  the  day 
before  she  sailed,  but  witness  did  not 
get  the  letter  until  six  days  had  elapsed. 
She  said  noting  in  the  letter  about 
the  bond.  The  defendant  did  not  com- 
municate with  witness  during^  her  ab- 
sence. Witness  swore  to  the  signatuares 
on  the  bond.    They  were  not  forged. 

In  crosB-examinetion  by  Mr.  Gardiner, 
the  witness  stated  he  purchased  the 
Green  Point  property  for  £1,400.  He 
got  nothing  on  his  bond  which  he  held 
over  that  pax>pei^y.  Mrs.  Den  Dauw 
consented  in  March,  1904,  to  make  an 
absolute  cession  of  the  bond.  Witness 
releafied  Mr.  Den  Dauw  w'hen  the  wife 
became  security.  Witness  was  posiiivo 
that  Mrs.  Den  Dauw  ^gned  the  docu- 
ments produced  bearing  her  name.  He 
emphatically  deeiied  that  he  signed  then> 
for   her. 

Maasdorp,  J.,  at  this  stage  said  he 
really  thoug^ht  both  parties  should  c>.u- 
sider  their  position. 

Mr.  Gardiner  said  he  would  consider 
it. 

Mr.  Gardiner  said  his  client  took  up 
the  position  now  that  while  she  had  no 
recollection  of  putting  her  signature  to 
the  document,  she  did  not  feel  justified 
in  insisting  on  the  charge  of  forgery. 


[Maasdorp,  J. :  I  think  she  could  not 
liave  done  otherwise,  knowing  the  signa- 
ture was  supported  by  two  or  three  wit- 
nesses.] 

William  Gray,  in  roplv  to  Mr.  Gar- 
diner, said  he  infomiod  tne  defendant  in 
March,  1904,  lie  must  have  an  absolute 
cession  of  the  bond.  He  did  not  know 
that  the  bank  manager  had  put  on  a 
cession  as  security.  Sometime  in  Sep- 
tember he  wanted  the  defendant  to 
strike  out  the  words  "  as  ^eourity,"  and 
make  it  as  a  complete  cession,  and  sign 
it  along  with  her  husband.  The  bond 
was  to  be  ceded  as  security  for  Mr.  Ar- 
derne's  promisaoij  note.  He  would  not 
have  advanced  Mr.  Den  Dauw  a  single 
penny,  except  through  his  wife,  who 
guaranteed  it.  Mr.  Den  Dauw  was  to 
go  to  Belgium  to  get  some  money  left 
to  him  by  his  mother,  and  witness  be- 
lieved him  when  he  advanced  the 
money  to  Mrs.  Den  Dauw  for  his  pass- 
age. The  advance  made  to  Mrs.  Den 
Dauw  on  the  Ashtead-road  property  was 
a  personal  matter,  and  not  to  her  m  her 
capacity  as  holder  of  her  husband's 
power  of  attorney.  The  cash  payments 
were  not  made  to  Mrs.  Den  Dauw  on 
behalf  of  her  salary  as  a  clerk  in  wit- 
ness's office,  where  she  received  £5  a 
month,  and  her  tram  fares.  The  £800 
bond  had  nothing  to  do  with  the  lia- 
bility in  respect  of  Ardeme's  promis- 
sory note. 

Re-examined  by  Mr.  C4oee:  He  did 
not  know  at  the  time  that  there  was  a 
second  bond  in  favour  of  Mr.  Arderne ; 
Mr.  Den  Dauw  led  him  to  believe  there 
was  not.  He  lent  the  money  to  Mrs. 
Den  Dauw  to  give  to  her  husband  in 
order  that  he  might  go  to  Belgiiun. 

John  Gray,  son  of  the  last  witness, 
stated  he  wais  present  when  the  arrange- 
ment w«6  made  about  the  passing  of  the 
bond  which  was  given  as  cession  to  his 
father.  There  was  no  question  of  an 
advance  of  money  to  her  husband  after 
the  Belgium  incident.  It  wa6  fully 
understood  that  the  bond  was  to  be  sn 
out  and  out  cession  when  the  money  was 
advanced.  Mrs.  Den  Dauw  never  raised 
the  defonce  that  she  raised  now  that 
plaintiff  had  no  right  to  the  bond  as 
against  the  promissory  note. 

Orcss-examined    by    Mr.     Gardiner: 
He  was  present  when  the  memorandum 
was  drawn  up,  and  it  was  at  that  time 
the  question  came  up  about  putting  the 
Green  Point  property  in  her  name.     In 
suing  by  edictal  citation,  it  said  that  :* 
was  suggested  to  the  defendant  to  cede 
the  bond  in   September,  1904,   but  wi' 
ness  thought  the  suggestion  was    mfdo 
in  December,  1903,  or  March,  1904.     He 
told  the  bank  manager  that  the  cession 
of  the  bond  was  an   absolute   one,    and 
not    as  security.      While  he  knew    that 
Mrs.  Den   Danw   was  holding  her  hue- 
band's   power  of  attorney   the  advances 
were   made  to  her  personally,  and    not 
in  her  other  oapaHty. 


614 


•*CAPE  TIMES"  LAW  REPORTS. 


Fi«derick  William  Brooke,  maaagur 
of  the  Bwnk  of  Afxioa,  Cape  Town,  saut- 
ed tha*  in  July,  1904,  he  wa«  at  the 
market  branch  when  some  aeoiuritidfl 
were  deposdied  by  Grays  with  him.  He 
wanted  to  get  the  oefleion  registered, 
and  on  the  16th  September  the  Deeds 
Office  thiew  it  out  on  account  of  the 
worda  "  as  aeourity "  appearing  on  the 
bond. 

OrooB-examined  by  Mr.  Gardiner :  Wit- 
neaa  told  Mr.  Qraj  thait  he  would  have 
to  have  another  cenion. 

Lfewis  Lerin,  a  proapeotive  purchaser 
of  the  property,  said  tbat  the  broker's 
note  showed  tluit  txie  purabaae  was  to  be 
from   Mr.   Den  Dauw^ 

Mr.  Close  closed  hia  case. 

Mrs.  Den  Dauw  (defendant)  stated 
0he  was  married  in  Enffland.  She  came 
to  the  Cape  in  1887  and  had  some  £500. 
Her  husband  ihad  between  £300  and 
£400  of  her  money,  w^bioh  was  ueed  for 
the  ipurohaee  of  eeitain  ground.  She 
never  perouaded  her  hu;»band  to  put  the 
bond  m  her  naooe  because  he  was  a 
spendthrift;  it  was  sim-ply  on  account 
GK  her  money  advanced.  In  September, 
1903,  her  husband  wanted  more  money, 
and  it  was  arranged  that  Gray  should 
deposit  some  other  securities  along  with 
the  bond,  and  get  an  overdraft.  Wit- 
ness did  not  affree  to  be  responsible 
for  her  husband  s  passage  money.  One 
of  the  conditions  was  if  she  passed  the 
bond  for  £800  her  bond  would  be  re- 
turned. It  was  never  understood,  al- 
though Mr.  Gray  had  repeatedly  asked 
her  to  do  so,  fanat  it  was  an  absolute 
cession.  She  was  not  prepared  to  say 
that  the  signature  on  the  bond  wns  a 
forgery,  but  she  did  not  remembeir  sign- 
ing it.  When  she  left  the  country  it  waa 
with  no  intention  of  evading  any  lia- 
bility; she  simply  left  on  aooount  of 
her  health.  She  never  agreed  to  take 
over  her  husband's  liabilities.  She  had 
no  knowledge  where  her  husband  had 
gone  to.  When  she  went  to  Europe  Bh.9 
left  her  husband  here,  and  on  her  re- 
turn he  left  the  address  of  P.O.,  Kim- 
berley,  but  the  letters  had  been  ro- 
tuTned. 

Cross-examined  by  Mr.  Close:  She 
had  not  a  banking  aooount,  and  that 
was  the  reason  she  iMissed  the  bond 
through  Mr.  Gray.  The  bond  at  length 
got  into  her  possession,  and  she  was  not 
satisfied  with  certain  signatures'  on  it. 
Gray  asked  for  it,  but  as  she  had  not 
signed  it  she  refused  to  hand  it  over. 
Wihen  she  left  for  England  she  left 
her  addiress  with  Mr.  Steer.  She  left 
the  bond  with  a  Mr.  Kerr  in  case  of  t- 
sale.  She  could  not  say  why  Steer  or 
Kerr  refused  to  answer  the  letters  to 
Gray*s  attorneys.  She  never  took  .*wdv 
ifbe  bond  for  her  husband  to  sign  it. 

Alfred  S.  Kerr,  with  whom  the  defen- 
dant and  her  husband  lived  for  a  time, 
stated  that  when  Mrs.  Den  Dauw  we  it 
to  England  the  bond  was  left  with  him. 


Both  of  the  G-rays  oame  to  him  and 
asked  him  for  the  bond,  which  he  le- 
fuwd  to  give  up  pending  an  order  of 
the  Court.  He  did  not  give  Ber  address 
because  the  Grm  knew  the  address  of 
her  family  in  Eaigland. 

Cross-examined:  He  was  positive  that 
the  Grays  knew  where  the  defendant 
was. 

Mr.  Gardiner  closed  his  case. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts. 

Maasdorp,  J.,  said  that  in  order  to 
determine     the     (questions  at  issue  be- 
tween     the      parties   it    was   necessary 
to      determine     what     took      place     in 
June,   1905.    when      the      property  waa 
sold  by  Mr.   Den  Dauw   to  Mr.    Levin. 
It  was  said  on  the  part  of  the  plaintiff 
that  when  the  sale  of  the  property   in 
question  took  place  between  Den  Dauw 
and  Levin  it  was  found  that  some  diffi- 
culty would  stand  in  the  way  of  passing 
transfer,    because  there  was  a  bond   on 
the  property  in  favour  of  Mr.  Ardeme. 
It  became  therefore  necessary  to  obtain 
the  consent  of  Mr.  Ardeme  to  the  trans- 
fer taking  place,  but  he  refused  to  give 
his  consent   unless   his  liability  was    re- 
duced or  secured  to  the  extent  of  £200. 
In  order  to  overcome   that   difficulty  it 
was  quite  olear.  there  being  no  contra- 
diction,    that      Mr.    Gray   consented   to 
become   a  partv    to   a  promissory   note 
made  by  Mr.   Den  Dauw   in  favour  of 
Mr.    Arderne.    The  liability   was    taken 
by  himself  for  the  purpose  of  facilitating 
transfer.       It    was   natural    to   suppose 
that  he  would  require  sonie  security  for 
suoh   liability,    and    it  waa  agreed   that 
the  bond   to  be  passed  by  Levin  should 
be  handed  to  him  as  security  for  the  lia- 
bility  he  undertook.     Up  to   this   point 
thore   was  no  dispute  as  to     the     facts. 
Then  Mr.   Gray  said  the  question  aro*»e 
as  to  whether  the  bond  should  be  made 
infavourof  Mr.  otMfs.  Den  Dauw.  Mr«». 
Den   Dauw  wished  to  protect  both  herself 
nnd  her  husband,  because  of  the  latter's 
spendthrift  habits,  by  getting  the  bond 
out      of      her      husband's      possession, 
and    having  it   in  her  own    name.     Mr. 
Gray  said  he  was  a  consenting  t>artv  to 
that  as  long  as  it  was  handed   over  to 
him  as  security  for  the  £200.     TTie  con- 
flict on   this    ix)int   was   th^it   raised    by 
Mrs.  Den  Dauw,  who  said  that  no  ques- 
tion   arose  as   to   securing   herself  with 
respect  to  the  retention  of     the     bond 
in  her  own  name,  and  that  she  secured 
tho  bond  by  a  debt  that  was  due  to  her- 
?olf.     Ho  quite  agreed    that  if  that  waa 
so  then  an  important  question  would  be 
raised    as   to  the  liability  of   Mrs,    Den 
Dauw  with  regard  to  her  suretyship  for 
her  husbsnd,  for  which  she  received  no 
hon^^fit.     It  was   therefore  important   to 
decide  the  facts  upon  this  point.    Tliere 
was  this  conflict  between  Mr.   Gray  and 
Mrs.  Den  Dauw.  and  it  was  very  nece«- 
^arvtosee  what  position  Mrs.  Den  Dauw 
had  taken  up  in  this  case,   in  order  to 


<f 


GAPS  TIMES*'  LAW  EEP0&T8. 


€15 


decide  whether  her  evidence   was  quite 
reliable  in  the  matter.     The  first  defence 
raided  in  the  case  waa  that  her  alleged 
signature  waa  a  forgery.    That  bad  been 
withdrawn  with     an      explanation,  that 
even  now  she  was   not  satisfied  that  it 
wae   hers.        He  would    go   no  further. 
He  was  satisfied  that  it  was  hers,  and 
that  the  signature  was  made  in  such  a 
way  that  she  could  not  have  forgotten 
it.     The  signature  was  supposed  to  have 
been   made   in  August,    1903..        It   was 
quite   possible  that   if  that    was  all,    it 
might  liave  escaped  her  memory,  because 
it    was  a  signature  in   blank,    but  they 
found   that  in  August,  1904,  the  matter 
was  conspicuously  brought  to  her  mind, 
because   she  was  called  upon  to   cancel 
stamps  on  a  document  containing  a  full 
cession   of    the   bond   as  security.    That 
was  a  circumstance  that  could  not  have 
escaped   her  memory.       Then  there  was 
another  point.       It  was  undoubtedly  a 
fact     that      this  document  wus  handed 
to    her    to    submit    to    her   husband    to 
obtain  his    signature  for  a  full  cession. 
She  got  the  document  out  of  Mr.  Gray's 
hands  and  took   it  away,   and  she  now 
said  that  she  thought  she  bad  a  perfect 
right   to   do    as   she   liked  with   it.   and 
she  cancelled  the  cession  and  struoK  out 
her  own  signature  and  that  of  her  hus- 
band.      That  was   most    improper  con- 
duct.      That  being  so,  the  question  was 
whether   Mr.    Gray   had   not    given    his 
evidence  in    such   a  manner    now  as  io 
raise   a  likelihood   or   an  absolute    con- 
viction  that   it  was   correct.    He   found 
that  althou?h    the  bond    was    plaoed  in 
favour    of   Mn.    Den    Dauw's   name,    it 
was  simply  for  the  purpose  of  securing 
both   her  and  her   husband,  and  it  was 
reaUy  her     usband's  property   that  was 
given  at  that  time  as  security  for  debt 
due  by   the  husband  to  Mr.  Gray.    Up 
to  this  point  it  appears  that  a  oontraot 
was   entered    into    between    the    parties 
for  giving   the  bond   as  security.       Hie 
plaintiff    alleged   that   the  position   was 
subsequently  altered,  and  that  a  furtny.- 
contract  w*at>  made    to    the    effeot    tiiat 
an   absolute    cession   should    be    passed. 
The  plaintiff  stated   that   this   occurred 
in  March.     Now,   ho  (his  lordship)  was 
rather  doubtful  at  one  time  wdiether  ^he 
question   ol    absolute    cession  had  been 
raised,  until  the  bank  appeared   on  the 
scene,  but  Mrs.  Den  Dauw  admitted  that 
the  question  was    raised,    and    that  she 
woula  not  consent  to  it.    He  was  satis- 
fied   thai  if   it  was   raised    it    wafi  con- 
sented  to,    beoause    the    defendant   was 
in  some     diffioult^r  and  required  subse- 
quent   assistance    in    financial    matters, 
siltef   her    husband  left    for    Europe    in 
a  business   in  which   she   and   her   1-us- 
band  were      interested.       Therefore   the 
Court  *had   to  accept  Mr.   Gray's  state- 
ment  that   it  was  agreed   in  Septem'oor 
to   pass  an  absolute  cession.    The  ques- 
tion was  raised  as  to  whether  there  was 
power  under  the      English     law  in  the 


,  wife  to  bind  herself,  but  counfiel  had 
admitted  that  under  the  circumstafnces 
during  the  absence  of  her  husband  she 
had  a  perfect  rigiht  to  enter  into  such 
a  contract.  The  contract  was  a  bona 
fide  one,  and  it  amounted  to  this.  She 
agreed,  instead  of  giving  this  booid 
simply  as  security  for  the  payment  of 
£1200,  to  give  absolute  cession  of  it  as 
payment  for  £210  due  on  the  promissory 

I     note,  and    further   payment  of    moneys 
advanced  amounting  to  nearly  £300.     It 

I  had  been  said  that  at  the  time  the 
agreement  took  place  the  liability  did 
not  amount  to  i>300,  and  that  conse- 
quently it  was  unlikely  that  a  cession 
would  be  agreed  upon  for  the  pa^rmeni 
of  a  debt  of  that  amount,  when  it  did 
not  exist)  but  from  the  aocounts  he  was 
satisfied  that  the  debt  was  very  nearly 
£300.  There  was  no  doubt  that  it  was 
agreed  that  the  cession  should  be 
out  and  out.  It  seemed  t^at  in 
September,  1904,  this  bond  was 
handed  to  Mrs.  Den  Dauw  for  the 
purpose  of  carrying  out  the  subsequent 
agreement.  &tte  received  possession  of 
tms  document,  and  kept  it.  She  struck 
out  the  cession  as  security.  The  docu- 
ment was  tiherefotre  in  suoh  a  condition 
that  in  order  to  vestoie  the  rights  to  the 
plaintiffs  it  would  be  necessary  to  have 
a  proper  cession  ezeouted^  and  the  plain- 
tiffs were  entitled  to  speoifio  peifonnanoe 
o(f  their  agreement  by  full  cession  of  the 
bond.  An  order  would  therefore  be 
given  in  terms  of  prayeos  (a)  and  (b) 
of  the  declaration.  It  appeared  that 
the  full  debt  now  dtie  to  toe  plaintiffs 
amounted  to  321  lOs.  3d.  The  Court 
would  therefore  give  judgment  in  favoar 
of  the  plaintiffs  for  that  amount. 

Mr,  Gardiner  said  he  undentood  the 
plaintiff  only  claimed  the  £300. 
Mr.  Close :  That  is  so. 
Maasdorp,  J. :  Then  judgment  on 
those  terms  will  be  given.  The  bond 
will  now  be  handed  to  the  Begistraf, 
and  from  him -to  the  plaintiff,  and  de- 
fendant is  to  give  full  cession  of  ihe 
bond  to  the  plaintiff  by  noon  to-monoiv. 
The  defendimt  is  to  pay  all  costs. 

[Plaintiff's  Attorneys:  Fairbridge,  Ar- 
deme  and  Lawton.  Defendant's  Attor- 
ney:   J.  (yReilly.] 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplbt.] 


8TERK  AND  CO.  V.  HABRI8.  |  ^  J^'^jj 

This  wss  an  action  brought  by  Stc/m 
and  Co..  of  Upmgton.  against  Harry 
Harris,  of  Capo  Town,  to  recover  dam- 
ages in  the  sum  of  £2,000  for  an  alleged 
breach  of  agreement  arising  out  of  the 
purchase   by    the    plaintiff   firm    of  the 


616 


"CAl'E  TIMES''  LAW  EKPORTS. 


businebs  formerly  oarried  on   by  defen- 
dejit  at  UpinfftoD    under  the   style     of 
Harris  Broe. 
Plaintiffs'  declaration  was  as  follows: 

1.  The  pkintiffe  are  William  Btern 
a^nd  Leopold  Nussbaum,  trading  together 
in  partnership  at  Upington  uuder  the 
style   of  W.  Stem    and    Co. 

2.  The  defendant  Harry  Harris  now 
resides  in  Cape  Town,  but  heretofore, 
before  the  16th  day  of  July,  1900.  he 
carried  on  business  at  Upington,  under 
the    style    of    Harris    Brothers. 

3.  On  the  16th  day  of  July,  1900,  the 
parties  entered  into  the  agreement  in 
writing,  whereof  a  correct  copy  is  here- 
unto annexed,  to  which  the  plaintiffs 
crave  leave  to  refer  as  though  tne  same 
were  here  set  forth  in  full. 

4.  By  the  said  agreement  the  plain- 
tiffs purchased,  inter  alia,  for  £1,500, 
the  different  forms  of  business,  with  the 
goodwill  thereof,  carried  on  by  the  de- 
fendant, and  the  defendant,  by  clause 
5,  specially  undertook  not  to  start,  open, 
or  support  any  business  such  as  store, 
shop,  bar,  liquor,  produce,  etc.,  within 
fifty  miles  of  Upington.  in  opposition 
to  the  plaintiffs. 

5.  In  connection  with  and  as  part  of 
the  business  heretofore  carried  on  by 
the  defendant  and  purchased  by  the 
plaintiffs,  he  was  aocustooied  to  con- 
tract for  the  supply  to  the  Colonial 
Government  of  such  produce,  mealies, 
oats,  oathay.  and  the  like,  as  was  re- 
quired from  time  to  time  and  year  to 
year,  for  the  public  service  in  connec- 
tion with  the  gaol  and  in  connection 
with  the  police  engaged  in  the  town  of 
Upington,  the  district  of  Gordonia  and 
neighbouring  localities,  and  it  was  the 
duty  of  de^ndant,  in  conformity  with 
his  said  agreement,  neither  personally 
iK>r  as  a  member  or  partner  of  any  firm 
to  tender  or  offer  to  contract  for  the 
supply  of  such  produce  at  or  from  the 
town  of  Upington,  or  within  the  radius 
of  fifty  miles  from  the  said   town. 

6.  In  breach  of  his  duty  and  acting  in 
concert  or  partnership  with  anothet  or 
others  and  using  the  style  of  Harris 
Brothers,  the  defendant  wrongfully 
and  unlawfully  in  1903  tendered  for  and 
obtained  the  contract  with  the  Colonial 
Government  for  the  supply  of  such  pro- 
duce to  the  police  throughout  the  dis- 
trict of  Gordonia  for  the  year  1903  to 
1904,  and  thereafter  in  1904,  m  like 
manner,  acting  with  another  or  others, 
and  again  using  as  aforesaid  the  stylo 
of  Harris  Brothers,  the  defendant  in 
breach  of  his  duty  wrongfully  and  un- 
lawfully tendered  for  and  obtained  the 
contract  for  the  like  supplies  for  the 
town  of  Upington,  the  plaintiffs  on  this 
occasion  being  also  tenderers,  and  be- 
ing successful  in  obtaining  the  contract 
for  such  supplies  for  the  ueighbounna 
field-oometcies,  but  not  for  the  town  of 
Upington. 

7.  During  the  year  of  the  contract  foi 
police  supplies  for  1903  to  1904,  the  d<r 
fendant  by  his  agents  used  the  town  of 


Upington  em  a  base  or  central  place  oJ 
business  for  the  distribution  of  the  re. 
quired  produce,  and  both  during  that 
year  and  since  that  contract  expired  h« 
has  wrongfully  and  unlawfully  started, 
opened,  and  supported  a  business  .*«.* 
merchant  or  ourveyor  of  produce  withm 
the  town  and  within  the  radius  of  filty 
miles  from  the  town  of  Upington. 

8.  The  plaintiffs  have  sustained  senom 
injury  in  their  business  and  the  good- 
will thereof  by  reason  of  the  wrongful 
and  unlawful  acts  of  the  defendant  com- 
mitted as  hereinbefore  set  forth  in  op- 
position to  them,  and  the  defendant  to 
the  detriment  of  the  plaintiffs  has  made 
great  profits  in  business  out  of  the  con- 
tracts aioresaid,  which  he  has  wrong- 
fully and  unlawfully  obtained  in  .vifj^" 
tion  of  his  agreement  with  the  plaintiffs, 
and  the  plaintiffs  estimate  their  dam- 
age in  the  sum  of  £2,000,  and  claim 
accordingly. 

Wherefore  the  plaintiffs  pray  for  judg- 
ment for  the  sum  of  £2,000  sterling,  or 
for  other  relief  and  costs  of  suit. 

Clause  5  of  the  agreement  was  in  the 
following  terms :  The  said  Harris  Bros. 
and  the  said  Harris  undertake  not  to 
start,  open,  or  support  any  business 
such  as  store,  shop.  bar.  liquor,  produce, 
etc..  within  50  (fifty)  miles  of  Upmgton, 
in  opposition  to  the  said  Wm.  Stem  and 
Co. 

Defendant,  in  his  plea,  said  that 
plaintiffs  did  not  now  and  had  not  for 
some  considerable  time  traded  at  Uping- 
ton, or  within  fifty  miles  thereof.  In 
January,  1900,  his  (defendants*)  business 
premises  were  bunst  down,  and  he  car- 
ried on  no  business  thereafter  at  Uping- 
ton, and  in  July  he  entered  into  the 
said  agreement.  He  had  theretofore 
tendered  for  the  supply  to  Govemnient 
of  produce,  etc.,  as  might  be  required 
for  the  public  service  in  connection  with 
the  gaol  and  police  engaged  at  Uping- 
ton, and  the  neighbourhood  and  such 
tenders  were  sometimes  accepted,  but 
the  defendant  said  that  when  the  said 
agre^nent  was  entered  into  he  had  no 
contract  with  the  Government.  He  ad- 
mitted that  in  1903  the  firm  of  Harris 
Bros.,  of  which  he  was  a  member,  and 
which  carried  on  business  jn  Cape 
Town,  sent  in  a  tender  to  the  Colonial 
Government  for  the  supply  of  produce  to 
the  police  throughout  the  district  of 
Gordonia  for  tlie  year  1903  to  1904,  which 
tender  was  accepted  by  the  said  Gov- 
ernment, and  thereafter  the  said  firm, 
as  aforesaid,  trading  in  Cape  Town, 
sent  in  a  tender  for  the  like  supplies  for 
the  town  of  Upington,  which  tender  was 
accented  by  tlie  Colonial  Government. 
He  oenied  that  that  was  a  breacii  of  the 
agreement  that  h«  entered  into  with  the 
pTaii.tiffs,  or  that  it  was  wrongful  or  un- 
lawful. He  said  that  plaintiffs  did  not 
tender  for  the  said  supply  to  the  said 
police  m  1903  for  the  year  1903-4.  Dur- 
mjf  the  said  contract  for  police  sujyplies 
the   aforesaid  firm  of  Harries  Bros,   sent 


II 


CAl»B  TIMES"  LAW  llEPOllTS. 


M 


thti  said  required  and  ordered  supplies 
under  tbe  said  contract  with  the  Govern- 
ment, by  rail  and  otherwise,  to  Uping- 
ton,  from  whence  their  ag«nt,  for  tha;t 
purpose  oiily,  setit  the  yarious  buppiies, 
which  anived  at  Upington  to  the  out- 
lying stutions.  Defendant  said  than  nei- 
tWr  of  the  contracts  for  the  supphes  for 
the  police  in  Gordonia  and  the  town  of 
Upington  was  a  breach  of  the  agxeemenl 
with  the  plaintiffs.  He,  therefore,  pray- 
ed that  the  claim  may  be  dismissed,  with 
costs. 

PiaintifilB,  in  their  replication,  admitted 
that  on  the  1st  September,  1904,  they 
sold  their  business,  but  said  they  con- 
tinued to  can^y  on  business  at 
Upington,  especially  in  the  way 
of  purchasing  produce  and  other  requi- 
sites, to  be  supplied  under  contract  with 
the  Colonial  Government,  and  the  Gov- 
ernment of  German  South-west  Africa. 
They  said  that  the  tendering  and  con- 
tracting to  supply  produce  was  part  of 
the  defendants  business,  which  they 
purchaeed.  They  admitted  that  they 
did  not  tender  for  the  supplies  for  1903- 
4,  but  said  that  they  did  not  see  any 
notices  calling  for  tenders  for  such  con- 
tracts. They  admitted  that  defendant 
carried  op  business  at  Cape  Town,  but 
said  specially  that  he  had  carried  on 
biisinees  at  Upington  in  respect  of  the 
matters  oomplamed  of  in  this  suit,  both 
personally  and  by  agents,  and  had  not 
only  distributed  produce,  but  had  pur- 
chased supplies  in  the  neighbourhood  of 
Upington. 

upon  this  issue  was  joined. 

Mr.  Searle,  K.C.  (with  him  Mr.  Rus- 
6<-ll)  for  plaintiffs.  Sir  H.  Juta,  K.C. 
(with  him  Mr.  Burton)  for  defendant. 

Mr.  Searle  said  that  since  the  plead- 
ings were  filed,  the  plaintiffs  had  dis- 
covered, he  believed  only  yesterday 
(Thursday),  that  not  only  did  the  de- 
fendants tender  for  the  1903-4  contract, 
but  also  for  the  1902-3  contract,  and  he 
applied  for  an  amendment  of  the  declar- 
it  ion  accordingly. 

Sir  H.  Juta  objected  to  the  amend- 
ment asked  for,  and  said  that  it  would 
raise  a  point  that  he  had  no  evidence  at 
present  to  meet.  Ho  added  that  if  it 
were  merely  a  question  of  whether  the 
contract  with  the  Government  was  a 
breach  of^  the  agreement,  then  that 
could  be  discussed  without  any  evidence. 
That  point  would  decide  contracts  for 
1902-3-4,   or  any  other  years. 

[Hopley.  J. :  It  almost  seems  to  me 
that,  unleas  there  be  a  considerable  dis- 
pute on  the  facts,  the  matter  might  have 
been  settled  by  a  special  case.] 

Sir  H.  Juta  fiaid  that  he  did  not  know 
why  an  exception  was  not  taken  to  thfi 
plea. 

Mr.  Searle  urg<>d  that  the  amondmont 
to  the  declaration  should  bo  allowed. 

Hopley,  J.,  said  that  the  amend- 
ment would  not  be  allowed  at  present, 
but  it  would  be  open  to  him  to  allow 
the  amendment  at  a   later  sftagc  if   he 


thought   no   prejudice   would   accrue  to 
the  defendant. 

William  Stem  (one  of  the  plaintiffs) 
was  called,  and  gave  evidence  in  sup- 
port of  the  case  set  out  in  the  declara- 
tion. He  spoke  of  t^he  way  in  which 
the  prices  of  produce  were  forced  up  in 
1903  by  reason  of  the  way  in  whicti 
liaoobson  bought  up  the  local  produce 
Witness  had  as  a  consequence  to  send 
to  Port  Elizabeth  for  mealies  atnd  bed- 
ding, lui  1904-5  goods  came  in  direct 
to  the  police  camp.  Witness  ooid  Us 
bufiiiic6s  in  September,  1904,  to  take 
effect  from  November.  Boo-ason  and 
Hugo  came  into  possession  m  liovem- 
rer,  1904.  Witness  had  prepared  a  sclie- 
dule  showing  how  his  Janja^^os  were 
made  up.  Ooi  the  1903  contract  he  esti- 
mated he  lost  in  his  tradztig  i<bout 
£1,000,  on  account  of  farmers  whom 
they  would  have  bought  mealies  iTnm 
not  having  traded  at  his  stores. 

[Hopley,  J. :  Why  didn't  you  throw 
a  sprat  to  catch  a  herring,  and  bid 
higher  than  Jacobson?] 

it  would  have  been  too  big  a  loss  on 
the  other  side.  He  tendered  for  for- 
age in  1903  at  45s.  per  100  lb.  Hie 
cost  would  have  been  30s.,  so  that 
if  he  had  got  the  contract  he  would  have 
made  158.  a  bag.  The  profit  on  1,000 
bags  would  have  been  ±;793  16s.  The 
bags  were  reckoned  at  15()  lb.  each. 

By  the  Court:  He  could  not  say  that 
if  Harris  had  not  got  the  contract  he 
(witne:«)  would  have  got  it.  Nobody 
else  seemed  to  know  about  it.  The 
contract  was  let  at  60s. 

[Hopley,  J. :  Do  you  suggest  a  police 
scandal  commission?] — If  there  were  no 
notices  and  no  other  tenders  were  called, 
the  Government  should  oertainly  inquire. 

Sir  H.  Juta  said  that,  on  behalf  of 
the  Government,  he  might  say  that  the 
contract  was  advertised. 

Mr.  Searle  said  that  the  contract  was 
not  advertised  in  the  **  Victoria  West 
Messenger,"  which  was  the  recognised 
organ  for  Government  notices  in  the 
uistrict  o£  Gordonia. 

Witness,  replying  to  the  Court,  said 
that  he  could  not  have  tendered  for  the 
contraots  in  1903.  He  tendered  to  the 
Kimberley  police  district  later  on.  As 
regarded  the  contract  for  1904-5,  he 
obtained  the  contract  for  the  out-^ta- 
tions  but  Harris  obtained  the  contract 
for  Upington.  Witness  tendered  for  both 
Upington  and  the  out-stations  at  the 
same  figures,  viz..  24e.  6d.  for  oats,  24e. 
for  oathay,  21s.  for  mealies,  Ss.  for 
bedding,  24«.  for  bran,  per  100  lb.  in 
oaoh  case.  The  margin  of  profit  was 
very  much  smaller  on  the  out-station 
contracts  than  on  the  Upington  con- 
tract in  consequence  of  the  cost  of 
transport  riding.  Witness  estimated  has 
damages  on  the  Upington  contract  at 
£759  153.,  being  the  difference  between 
the  tender  prices  that  he  sent  in  and 
the  cost  of  the  produce  landed  in  Up- 
ington.     In   addition,    he  daimed  dam- 


618 


(< 


CAPE  TIMES"   LAW  REPORTS. 


a9«0  beoaufle  he  oould  have  bought  the 
meftldea  «nd  oathay  required  m  Uping- 
toQ,  and  would  have  done  trade  with  tho 
larmen  which  he  estimated  at  £450, 
yielding  a  profit  of  £150.  The  profit 
on  the  out-9tation  coiitracta  would  have 
been  very  small.  He  aJeo  olaimed  that 
he  had  loet  in  Upington  on  the  first 
oontraot  £1,000  worth  of  trade,  oo  which 
he  eetiuiaited  the  profit  a/t  £333. 

Oro^-examined :  He  had  sold  the 
goodwill  for  the  contraoting,  general 
stores  and  bofttle  stores  for  £250.  He 
denied  that  he  assumed  that  Govern- 
meni  contracting  was  not  included  in 
his  contraot  witn  Harris.  He  did  not 
look  at  the  "  Cxoverninent  Gazetite "  at 
the  time  of  the  1904  contract,  and  he 
did  not  ask  the  Magistrate  or  the  Quar 
ternufiter.  That  was  not  because  he 
knew  tha^t  contracting  was  not  included 
in  the  contract  between  himself  and 
Harris.  Henry  Harris  was  not  several 
times  at  witness's  store  trying  to  buy 
ohaff  for  this  verv  contract. 
Re-examined :  Harry  Harris  and  Hen- 

S  Harris  were  different  persons.  Henry 
arris  was  brother  of  Wolf  Harris. 
Henry  Harris  never  told  witness  that 
Harry  Harris  was  in  the  contract. 

Thomas  Jacobeon  said  he  had  carried 
on  business  at  Upington  for  five  years 
as  a  general  dealer.  He  knew  Harris 
Bros.  He  entered  into  a  sub-oontract 
with  them  in  March,  1903,  to  supply 
produce  to  the  police. 

Hopley,  J.,  said  that  he  proposed  to 
allow  the  amendtnent  in  the  declara- 
tion asked  for  by  Mr.  Searle,  and  at 
the  conclusion  of  that  day's  hearing  ad- 
iourn  the  case  till  Tuesday,  thus  ena- 
bling defendant  to  prepare  to  meet  any 
new  points. 

Sir  H.  Juta  protested,  and  said  that, 
as  he  had  already  pointed  out,  if  the 
tenderinfif  and  contracting  in  1903-4  were 
a  breach  of  the  agreement,  then  it 
would  make  no  difference  to  the  main 
issue  whether  there  had  been  this  con- 
tract in  1902-3. 

Hopley,  J.,  said  that  he  would  not 
allow  the  amendment  at  present,  under 
the  circumstances. 

The  witness  Jaoobson  said  his  first 
agreement  with  Harris  Bros.,  was  that 
he  should  supply  at  45s.  per  100,  Harris 
Bros.,  to  take  the  difference  between 
that  figure  and  the  contract  price.  Wit- 
ness afterwards  had  an  agreement 
with  Harris  to  suply  at  40s.  per 
100.  These  agreements  lasted  six 
months,  at  the  end  of  which  time 
ho  became  an  agent  of  Harris  Bros,  at 
Ss.  6d.  per  100  for  transport  for  tho  first 
three  months,  rising  to  9s.  in  tho  fol- 
lowing three  months.  In  March.  1904, 
Henry  Harris  came  to  Upington,  and 
hired  witness's  store  at  £10  a  month. 
W^itness  had  then  ceased  t^  be  agent  of 
Harris  Bros.  Witness  had  sold  bedding 
for  the  police  contract  to  both  Harry 
and  Henry   Harris.     Witness  did      not 


tender  for  the  contract  in  1903,  because 
he  did  not  see  any  notices.  He  had 
tendered  for  the  contract  in  1904,  and 
also  in  1905.  but  had  not  got  the  con- 
tracts. 

Cross-examined:  He  discussed  this 
police  contiact  with  Stern  in  1903, 
when  the  goods  were  arriving  at  his 
store.  Witness  and  Stern  had  shops 
opposite  each  other.  He  was  oertcun 
that  Stern  knew  in  1903  that  Harris 
Bros,  had  ^ot  the  oontract,  and  that 
Harry  Hams  was  Harris  Bros. 

Hendrik  Pieter  Steyn,  farmer,  ^P^^' 
ton.  said  that  in  the  winter  of  1903 
Jacobson  came  and  told  him  that  he 
would  give  2b.  a  bag  more  than  any 
other  shopkeeper  for  mealies  that  he 
wanted  for  mr.  Harris,  who  had  to 
supply  the  police  at  Kenhardt  and  Up- 
ington. Jaoobson  said  that  he  could 
teU  the  other  farmers  of  this  offer. 
Jacobson  purchased  nearly  all  the 
mealies  grown  that  season.  It  was 
usual  for  the  fanner  to  deal  with  the 
shopkeeper  who  bought  his  produce. 

Cfross-examined :  In  the  year  1903  he 
did  not  sell  his  mealies  to  Jacobson, 
but  to  his  own  children.  H^  charged 
his  children  £2  a  bag. 

Jacob  Jaoobus  Hugo,  of  the  firm  of 
Robinson  and  Hugo,  general  dealers, 
Upington,  said  that  he  entered  into  an 
agreement  with  Stern  that  they  should 
join  equally  in  the  proceeds  of  any  con- 
tract tney  entered  into. 

Oross-exsmined :  This  arrangement  did 
not  refer  to  the  police  oontract  that  his 
firm  had  taken  over  from  Stem. 

Certain  Cape  Town  witnesses  remained 
to  be  called  for  the  plaintiffs. 

Maior  F.  A.  Elliott,  C.M.P.,  called 
for  the  defendant,  said  that  in  1902  he 
was  Acting  Conmiissiooer  for  Cape 
Police,  District  No.  2,  at  Kimberley. 
He  also  occupied  that  position  in  1903. 
It  was  customary  to  send  notices  to  the 
various  districts  for  supplies.  In  1903 
a  tender  by  Harris  Bros,  for  supplies  to 
Gordouia  was  accepted.  He  did  not 
remember  a  tender  having  been  sent  in 
by  Stern.  The  notice  was  inserted 
in  the  "  Government  Gazette."  He 
thought  the  notice  might  not  have  been 
inserted  in  the  local  paper  owing  to  an 
oversight.  When  the  tender  of  Harris 
Bros,  was  accepted,  he  did  not  know 
anything  of  Harry  Harris;  he  simply 
looked  to  Harris  Bros.  He  remem- 
bered having  seen  Wolf  Harris. 

Cross-examined:  All  the  tenders  in 
1902  were  rejected,  because  they  were 
too  high.  He  did  not  know  bow  many 
tenders  were  received.  Harris  Bros. 
afterwards  sent  in  a  tender  for  £902  3s. 
He  thought  thafc  tender  was  lower  than 
those  that  had  boon  received.  Thet 
looked  to  tlio  surety  attached  to  tix> 
tender.  He  thought  the  rejected 
tenders  of  1902  would  be  obtainab**^ 
from  the  office  of  the  Quartermaster  of 
the  C.M.P. 


«< 


CAPE  thies"  law  reports. 


619 


Re-examined :  After  the  oontracte  haa 
been  let.  the  police  at  Upingtou  weit. 
advised  who  the  tenderers  were. 

Hoplev,  J.,  on  Mr.  Saarle*s  applica- 
tion, allowed  the  amendment  of  thr 
declaration  already  mentioned. 

[The  oaae  waa  settled  out  of  Court.] 


SUPREME  COURT 


FIRST  DIVISION. 


■ 

[Before  the  Actinsr  Chief  Justice  (the 
Hon.  Sir  John  Buchanan)  and  the 
Hon.  Mr.  Justioe  Hopley.] 


OOmilSSIONBB  OF  TAXB8  V.  (       1905. 
DB  BBEB8  00N80LIDATED<  Aug.     7th. 


MIHE8. 


»i 


21 8t. 


Income  tax — Share  of  profits  made 
hj  a  foreign  syndicate  on 
diamonds  found  in  this 
Colony— Sec.  42  of  Act  36 
of  1904. 

The  D,B.  Diamotui  Mining 
Company^  carrying  on  busi- 
ness in  this  Colony^  had 
arranged  to  sell  their  diammids 
to  a  London  syndicate^  07i  con- 
dition, inter  alia,  that  they 
should  receive  a  certain  per- 
centage of  the  profits  made  by 
the  syndicate.  Upon  this  per- 
centage the  Colonial  Com- 
missioner of  Taxes  now  claimed 
income  tax  under  Act  36  of 
1904, 

Held  on  appeal  from  the 
Court  of  Review,  that  as  tlie 
company*s  share  of  the  profits 
Tfiade  by  the  syiixdicate  was 
derived  from  diamonds  found 
in  this  Colony^  Sec.  42  nf  Act 
36  of  1904  ivas  wide  enough  to 
cover  this,  and  that  it  wa^, 
therefore,  subject  to  income  tnx. 


This  was  virtually  an  api^eal  (in  the 
form  of  a  speciaJ  case  stated)  from  a 
deoisioD  of  the  Court  of  Review  on 
questions  of  Income-tax  as  to  the  Iva- 
bility  of  the  De  Beer's  Consolidated 
Mines  to  pay     Income-tax  on  a  certain 


share  of  profits  derived  by  them  from 
the  operations  of  a  certain  London 
Syndicate. 

The  case  was  stated  in  the  following 
terms: 

1.  The  De  Beers  Consolidated  Mines, 
hereinafter  called  the  company,  carries 
on,  inter  alia,  the  business  of  mining  in 
thk  colony. 

2.  The  companv  was  assessed  by  the 
Commissioner  of  Taxes  (hereinafter 
called  the  Commissioner)  under  Act  36 
of  1904  for  income  tax  purposes  on  its 
general  sources  of  income  lor  the  year 
ending  30th  June,   1904. 

3.  Tne  comipaiiy  objected  under  sec- 
tion 72  of  the  said  Act  to  the  Commis- 
sioner's assessment  of  £8,135  98.  as  in- 
come tax  in  respect  of  a  certain  sum  of 
£162,709,  this  latter  sum  being  an 
amount  recedved  by  the  company  as  its 
share  of  profits  on  certain  dealings  in 
diamonde  hereinafter  referred  to.  The 
objection  -was  made  on  the  ground  that 
these  profits  were  made  in  London,  and 
not  tn  this  colony.  The  company  did 
not  object  to  the  remainder  of  the  as- 
sessment by  the  Comnaiesioner  in  re 
spect  of  the  reort  of  its  income,  and  haj 
paid  income  tax  thereon. 

4.  The  compcmy  appealed  against  the 
assessment,  and  on  the  6th  and  7th 
March,  1905,  the  a))peal  was  heard  at 
Kimberley  by  the  Court  of  Review,  con- 
stituted under  Act  34  of  1904.  The  ap- 
peal was  allowed. 

5.  The  Commissioner,  being  diasaitis 
fied  with  the  decision  of  the  Court  of 
Review,  has,  under  section  74  of  Act 
36  of  1904,  requested  that  a  case  be 
stated  for  the  decision  of  the  Hon.  the 
Supreme  Court  on  the  question  of  law 
involved  in  the  decision  given  by  the 
Court  of   Review. 

6.  On  the  2nd  December,  1901,  certain 
persons  (hereinafter  called  the  syndi- 
cate) entered  into  an  agreement  with 
the  company  rdative  to  the  disposal  of 
the  company's  diamond  output. 

7.  Clause  1  of  the  agreement  provides 
as  to  the  purchase  of  the  output  for  a 
period  enaing  February,  1902.  Clause 
12  gdves  an  option  to  continue  the  agree- 
ment as  to  the  output  for  the  period 
ending  June,  1902 ;  while  clauses  15  and 
16  ffive  further  options  for  periods  ex- 
tenaing  finally  to  30th  June,  1906. 

8.  The  agreement  was  during  the  year 
ending  30th  June,  1904,  of  full  fegal 
force  and  effect  between  the  company 
and  the  syndicate,  in  terms  of,  and  to 
the  extent  covered  by  clause  20  thereof, 
the  right  of  election  and  option  under 
clause  16  aforesaid  having  been  regular- 
ly and  d'uly  exercised. 

9.  Some  of  the  members  of  the  syndi- 
cate, with  large  interests  therein,  also 
hold  a  large  number  of  shares  in  the 
company.  Some  are  directors  in,  the 
company.  Mr.  Hirschhom,  who  is  an 
alternate  director  of  tho  company  with 
Mr.  Beit  (who  is  largely  interested  in 
the  syndicate),  is  the  valuator,  who,  act- 


620 


i< 


CAPE  THIBS"   LAW  REPORTS. 


iiig  on  beh&lf  of  the  syndicate,  fixes  -mth 
Mr.  Brink  {tuoting  for  the  company)  the 
valuation  at  which  the  company  aolually 
takes  over  th«  diamcMidB  which  it  pur- 
chases. 

10.  Some  of  the  members  of  the 
syndicate  were  not  shareholders  of  the 
company. 

11.  The  quantity  of  diamonds  pur- 
chased by  the  syndicate  during  th? 
year  of  asse^mcnt  largely  exceeded 
the  minimum  provided  for  under  the 
agreement. 

12.  The  price  of  the  diainond»  pur- 
chased by  the  syndicate  under  the 
agreement  was,  during  th«  year  in 
question,  arrived  at  under  clause  13 
of  the  agreement.  The  price  was  an 
adjustable  one,  and  the  adjustment  was 
made  every  siz  months  for  the  ensuing 
six   months. 

15.  In  practice  the  actual  value  of 
and  amount  to  be  paid  for  each  parcel 
of  diamonds  bought  by  the  syndicate 
under  the  agreement  was  determined 
by  two  valuators,  one  acting  for  the 
syndicate  and  one  for  the  company. 
There  is  nothing  to  show  that  such 
price  was  not  the  fair  market  price  in 
the  Colony. 

14.  The  syndicate  purchased  the  dia- 
monds as  »rough  diamonds  at  Kimbor- 
ley,  and  the  price  to  be  paid  for  any 
parcel  of  diamonds  having  beon  ascer- 
tained and  defined  at  Kimbcrley  by 
agreement  between  the  valuators  as 
aoove  mentioned,  the  syndricate  took  de- 
livery at  Kimberley  from  the  company, 
makni^  payment  there  at  the  price  fixed 
80  against  the  delivery  of  the  diamonds, 
and  the  syndfcate's  insurance  of  the 
diamonds  took  effect  on  such  deliverer. 

15.  No  further  business  in  connection 
wilh  the  ddamonde  was  done  in  the 
Colony.  Tlie  syndicate  would  forward 
the  rough  diamonds  to  London,  there 
re-sort  them  for  the  various  markete  of 
the  world,  and  sell  the  diamonds  still 
as  rough  diamonds,  save  that  ocoasion- 
ally  an  exoepiional  stone  would  be  cut. 

16.  The  entire  con-tract  for  the  dealing 
in  the  diamonds  after  delivery  to  the 
syndicate  was  in  the  hands  of  the  syn- 
dicate, and  the  company  had  no  control 
of  such   dealings. 

17.  Tho  company,  however,  had,  un- 
der clauses  10  and  11  of  the  agreement, 
in  addition  to  the  payments  made  for 
♦he  diamonds  as  aforesaid,  a*  right  to 
a  share  in  the  profits  made  in  the  deal- 
ings of  the  syndicate  with  the  diamond** 
after  it  received  delivery  thereof.  The 
company  was  also  bound  to  share  'n 
the  losses   incurred  in  such   dealings. 

18.  Tho  company,  in  its  books,  kept 
two  sepurat**  accounts  im  connection 
with  those  diamonds.  One  account  was 
for  tho  dealings  in  Kimberley.  the  other 
was  for  tho  share  of  the  profits  receive<l 
from  the  syndicate  thereafter.  In  this 
latter  account,  tho  company  would  en- 
ter for  each  half-year  the  amount  of 
prafit  received   for  such    half-year,    but 


there  was  nothing  to  ear-mark  the 
profits  earned  in  the  half-year  as  being 
lor  the  diamonds  bought  by  the  syndi- 
cate in  such  half-year. 

19.  In  its  annual  published  profit  and 
loss  acoounA,  the  amounta  reeived  on 
both  aooounts  are  brought  up  under  one 
heading,  to  wit,  the  **  diamond  ac- 
count,'' sUnding  at  £4,918,567  18s.  5d. 

20.  The  amount  received  by  the  com 
pany  from  the  syndicate  as  its  share  of 
the  profits  for  the  year  of  a8sessmei]i> 
(the  year  ending  30th  June,  1904),  and 
included  in  the  sum  mentioned  in  the 
preceding  paragraph,  was  £162,709 — the 
sum  on  which  the  incom-tax  assess- 
ment now  in  dispute  was  made,  as  set 
out  in  paragraph  2   hereof. 

21.  The  Commia&ioner  contends:  (a) 
That  in  iits  own  accounts  the  company 
treats  the  amount  receired  from  the 
svndicat^  as  part  of  the  proceeds  of 
the  diamonds  produced  in  the  Colony 
during  the  year;  (b)  that,  alt^bough  the 
sale  in  Kimberley  to  the  syndicate  ss 
an  out-and-out  one,  the  price  to  be  paid 
to  the  company  is  not  finally  fixed  until 
the  diamonds  nave  been  disposed  of  by 
the  syndicate;  (c)  (that  the  wording  of 
clause  10  of  the  agreement  shows  con- 
clusively that  the  additional  payments 
made  axe  portion  of  the  purchase-price 
for  which  the  company  disposes  of  the 
diamonds  to  the  syndica;te,  and  there- 
fore thait  the  whole  amount  received  i>y 
the  company  is  income  derived'  from 
the  production  and  disposal  of  diamonds 
in  this  colony,  and  is  liable  to  taxa- 
tdon. 

22.  The  company  contends:  (a)  That 
the  agreement  (annexuro  "b")  is  -n 
two  parts-;-ono  an  agreement  as  to  the 
dealings  in  Kimberley,  the  other  an 
agreement  in  which  the  compajiy  and 
the  syndicate  are  partners  in  the  deal- 
ings in  London ;  (b)  as  to  the  dealings 
in  Kimberley,  as  soon  as  each  parcel  of 
diamonds  ds  definitely  taken  over,  and 
the  fixed,  agrecr  on  price  paid,  and  de- 
livery of  the  parcel  taken,  a  complete 
out-and-out  sale  is  effected  under  the 
agreement,  and  tlie  transaction  in  the 
Colony  is  finally  concluded,  the  com- 
pany, as  miners,  are  the  sellers,  and 
nave  no  further  control  over  the  deal- 
ings;  (c)  the  profits  made  abroad  are  on 
a  distinct  tranaacttioni.  and  form  no  part 
of  the  purchase  price,  and  in  law  c«ji- 
not  be  part  of  the  purchase  price,  as 
the  price  cannot  be  left  open  to  be  de- 
termined at  indefinite  timee,  and  by  in- 
definite persons;  (d)  tho  dealings  in 
Ijondon  are  mai;ter.s  only  for  partner- 
ship between  coni-pany  and  .syndicate, 
and  are  not  taxable  in  tln^  Colony. 

23.  It  was  admitted  for  the  Commis- 
^ione^  that  if  profits  also  on  tho  dealings 
abroad  are  not  to  l)o  treated  as  deferred 
payments  on  ac^connt  of  the  purchase  bv 
the  syndicate  in  the  Colony,  such  profits 
arc  not  taxable,  as  the  dealings  would 
then  be  part  of  the  business  carried  on 
outside  the   Colony. 


CAPE  TIMES*'  LAW  tl£P0&T8. 


621 


24.  The  company  did  not  dispute  the 
correctness  of  the  figures  set  forth  m 
paragraph  2  hereof. 

25.  The  Court  of  Review  held  that  the 
dealings  with  the  diamonds  by  the  syn- 
dicate in  London  must  be  treated  as 
distinct  from  the  transactions  in  Kiui 
berley,  that  the  profits  received  in  con- 
nection with  the  syndicate's  traiisac- 
tions  abroad  formed  no  part  of  the  pur- 
chase price,  the  full  amount  of  which,  the 
Court  held,  was  the  amount  paid  at 
Kimberley,  and  that  the  oompajiy  was 
not  liable  to  pay  income-tax  on  &uch 
profits. 

Mr.  Searle,  K.C.  (with  him  Mr. 
Nightingale)  for  the  Commissioner  of 
Taxes.  Sir  H.  Juta,  K.C.  (with  him 
Mr.  Phear),  for  De  Beens  Company. 

Mr.  Searle  said  that  this  matter  came 
before  the  Court  by  way  of  a  special 
case,  stated  under  section  74  of  the  In- 
come-tax Act,  No.  36,  of  1904.  The  only 
exception  taken  by  the  company  was 
as  to  ithe  amount  of  £162,709,  ^ing  por- 
tion of  a  larger  sum  of  £4,918,567,  and 
upon  which  amount  of  £162,709  the  in- 
come-tax assessed  by  the  Commifsioner 
was  £8,135.  The  «jnount  of  £162,709 
in  question  was  received  in  connection 
with  a  certain  contract  entered  into  at 
Kimberley  between  De  Beers  Company 
and  a  certain  syndioaite.  The  agree- 
ment was  that  ei^ht  firms  of  diamond 
buyers  contracted  with  De  Beers  Com- 
paoiy  to  purchase  the  diamonds  produced 
up  to  a  certain  pomt.  The  syndicate 
of  buyers  had  the  option  to  take  all  the 
diamonds  produced,  but  they  only  bound 
themselves  to  take  the  diamonds  up  to 
a  certain  quantity.  De  Beers  could 
not  sell  to  anyone  else  without  giving " 
the  syndicate  the  option  first  upon  the 
same  terms  upon  which  anyone  else 
was  willing  to  purchase  them,  so  that 
the  syndicate  got  the  ri^ht  to  the 
whole  quantity.  They  paid  when  the 
agreement  started  at  a  certain  fixed  price 
for  certain  classes  of  stone.  This 
agreement  had  been  ca>rried  on  from 
year  to  year.  The  important  clause  of 
the  agreement  was  the  following :  10.  In 
addition  to  the  payment  to  be  m'ade  by 
the  syndicate  to  company  pursuant  to 
the  preceding  clauses,  the  syndipate  shall 
account  for  and  pi^  to  the  company  one- 
half  of  all  net  profits  that  may  be  laa/de 
by  the  syndicate  on  realisadrioii,  or  deal- 
ing with  the  said  diamonds  under  this 
contract  as  appearing  from  the  said  ac- 
counts. All  Tiskei  in  the  realisation  or 
dealing  with  the  diamonds  under  the 
contract  shall  be  on  joint  acouunt,  and 
borne  by  the  company  and  the  syndi- 
cate in  equal  shares,  and  the  syndicate, 
whenever  it  covotb  any  risk,  shall  cover 
it  on  joiirt  account,  but  the  provisions 
of  this  clause  arc  subject  t<>  tne  stipu- 
lations in  the  following  clautf^e. 
Counsel  went  on  to  say  ithAt  the  sole 
point  in  the  case  was  whether  the  in- 
come-tax Court  was  right,  and  whether 
they  could  possibly  distinguish  between 


the  two  amounts  due  under  this  contract. 
This  was  not  an  out-and-out  agreement. 
De  Eeers  would  never  have  entered 
into  this  agreement  with  the  syndicate 
unless  they  were  going  to  get  these 
{yrofits  afterwards.  They  entered  into 
the  agreement  with  the  syndicate  in 
order  to  keep  up  the  price  of  diamonds. 
Ihey  got  a  certain  payment  down,  and 
they  luid  a  certain  payonenit  in  the  fu- 
ture. There  was  12  per  cent,  deducted 
to  bo  put  into  the  account  later  on. 
It  was  merely  a  six  months'  adjustment. 
It  could  not  for  a  moment  be  urged 
that  the  payment  down  was  the  full 
amount.  The  whole  arrangement  show- 
ed that  this  was  merely  a  provisional 
payment  down  of  what  would  be  certain 
to  come  afterwards,  and  they  said  that 
the  rest  would  come  in  at  the  end  of 
»ix  months.  If  (that  full  amount  did 
not  come  under  the  Act,  then  it  was 
really  difficult  to  see  how  companies 
could  be  ^t  at.  It  would  be  a 
whoUv  unfair  assessment  otherwise.  It 
woula  bo  unfair  to  both  parties.  To 
my  thart  only  the  amount  paid  down 
should  bear  income-tax,  ana  not  the 
full  amount,  would  be  contrary  to 
the  .spirit  of  the  Income-tax  Act,  which 
was  intended  to  tax  sources  of  wealth 
in  the  Colony.  Mr.  Searle  went  on  to 
put  the  case  of  an  ostrich  farmer  who 
might  send  all  his  featheis  for  disposal 
on  the  London  market. 

[Hop ley,  J. :  How  would  you  treat  a 
wool  farmer  who  shipped  all  his  wool 
to  London  and  had  it  sold  there?] 

I  submit  that  ho  could  not,  by  ship- 
ping all  ithe  valuable  clip  to  London, 
get  out  of  this  tax  by  the  selling  of  the 
wool  in  England.  Counsel  went  on  to 
say  that  thas  agreement  between  De 
Beers  and  the  syndicate  only  oonti'iuod 
until  1906.  If  at  -the  end  of  that  time 
they  had  enhipped  all  their  diamonds  to 
England,  as  thev  did  formerly,  and 
sold  the  whole  of  the  diamonds  in  Eng- 
land, was  it  to  be  said  that  the  whole 
])roduce  of  the  diamonds  would  go  free 
of  tax  because  they  were  sold  in  Eng- 
land? Surely  such  an  argument  would 
not  hold  water.  The  object  of  the  Act 
was  to  tax  the  wealth  produced  in  this 
country. 

[Hopley,  J. :  You  say  it  is  income 
arising  out  of  trade  or  business  carried 
oil  in  this  colony,  whether  they  sell  the 
produce  of  that  trade  in  London  or  any- 
where  else.] 

That  IS  so.  Counsel  went  on  to  quote 
from  Dowell  on  income-tax  laws  in 
reference  to  what  was  called  the  ar€^a 
of  chargo.  He  submitted  that  the  Eng- 
lish cases  of  Oolqubowi  v.  Brooks  (14 
appeal  cases,  493)  and  SuUy  v.  Atiorney- 
Oeneral  (5  Erskine  and  Norman.  511), 
were  not  parallel  with  the  present  case, 
because  here  they  were  dealing  solely 
with  one  business,  and  the  income  from 
that  business.  Counsel  proceeded  to 
refer  to  the  cases  of  the  San  Paulo 
Railway    Company   v.    Carter    (1895    ap- 


622 


CAPE  tlMES*"   LAW  REPORTS. 


peal  caatitt,  Q.B.D.,  580),  and  Denver 
Hotel  Company  v.  Andrews  (11  "  Time6  " 
Law  Roports,  238).  In  those  cases  it  was 
held  that  where  a  business  wae  partly 
carried  on  in  England  income-tax  was 
payable  on  the  whole  of  the  income. 
The  case  of  Kodak  v.  Clarke  (vol.  2, 
1902,  Law  Reports.  K.B.D.,  450).  re- 
ferred to  in  tne  Court  below,  did  not, 
counsel  submitted,  bear  on  the  present 
case.  Ho  submitted  that  none  of  the 
Enp^lish  cases  laid  down  any  principle 
which  could  be  said  to  help  the  respon- 
dents. The  matter  was  clear  under  our 
own  Act,  and,  he  submitted,  should  bo 
decided  under  our  own  Act. 

Sir  H.  Juta  said  that  this  was  a 
special  case  under  our  Acts.  What  his 
learned  friend  had  been  arguing  was 
not  a  special  case  at  all.  The  ca^^e  put 
before  their  lordships  by  the  commis- 
sioner was  this,  that  there  "was  an  out 
and  out  sale  of  ihese  diamonds  at  Kim- 
berley,  and  it  was  admitted  by  the 
Crovemment — and  it  was  pajrt  of  this 
case — ^thot  unless  the  share  of  the 
profits  obtained  in  England  should  be 
deemed  to  be  part  of  the  purchase  price 
of  the  sale  here  in  the  Colony  the 
Government  had  no  case.  So  that  their 
lordships  had  not  to  enter  into  these 
new  questions  which  his  learned  friend 
had  raiffed  upon  the  Income  Tax  Act; 
the;jr  had  only  to  deal  with  the  case 
which  had'  been  submitted  by  the 
commissioineFs  upon  the  admissions  of  the 
Government,  and  he  submitted  that  by 
the  case  which  had  been  stated  and  by 
the  admissions  the  Cburt  would  be 
bound.  It  was  found,  first  of  all,  by  the 
commissionere,  that  there  was  an  out- 
and-out  sale.  It  was  admitted  by  t^he 
Govemmemt,  although  the  sale  in  Kim- 
berley  to  the  syndicate  was  an  out-and- 
out  sale,  the  price  to  be  padd  to  the  com- 
pany was  not  finally  fixed  until  the  dia- 
monds had  been  finally  disposed  of  by 
the  syndicate,  and  his  simple  submission 
to  their  lordships  was  going  to  be  this, 
that  if  there  were  an  out-and-out  sale  at 
Kimberley,  bv  our  law  the  price  must  be 
fixed.  They  could  not  have  an  out-and- 
out  sale,  tiie  price  of  which  was  to  be 
determined  Heaven  only  knew  when, 
by  something  which  was  going  to  hap- 
pen hereafter,  it  might  be  months  and 
months  afterwardki.  As  far  as  the  trans*- 
aotion  in  England  was  concerned,  there 
w«s  a  partnership  It  was  impossible 
to  conceive  a  dearer  partnership.  The 
parties  were  to  share  in  the  profits  and 
the  losses,  and  no  better  criterion  of 
what  a  partnership  could  be  could  be 
brought  forward.  If  there  was  this  part- 
nership in  Englaiid  between  De  Beens 
and  the  syndicate,  then  the  sale  to  the 
syndicate  could  only  be  a  sale  in  Kim- 
berley, and  could  not  be  a  transaction 
that  took  place  in  England,  which  was  a 
partnership  transaction  between  two 
parties.  How  else  could  there  be  an  out- 
and-out  <9ale  to  the  syndicate  in  Kimber- 
ley.  That  was  what  the  case  was  found- 


ed on,  and  that  was  the  admdssion.  It 
was  impossible  to  say  that  the  partner- 
ship sMe  in  England  constituted  portion 
of  the  sale  in  Kimberley.  Supposing 
that  the  sale  to  the  syndicate  was 
whatever  was  obtained  from  the  dia- 
monds over  and  above  the  valuation 
placed  on  them  in  Kimberley.  If  that 
was  so,  then  where  did  the  partnership 
transaction  come  in  by  which  De  Beers 
had  a  share  in  the  losses.  His  learned 
friend  had  not  explained  what  became 
of  that  portion  of  the  agreement  by 
which  De  Beers  became  the  partners  of 
the  syndicate.  Supi^osing  that  the  two 
persons  shared  in  the  profits,  and  in  the 
losses  a  very  inconvenient  state  of  affairs 
would  arise.  Supposing  that  in  the 
year  1904  a  certain  number  of  diamonds 
were  purchased  by  the  syndicate,  and 
disposed  of  in  England  at  a  {Hrofit,  ac- 
coiding  to  his  learned  friend,  De  Beers 
would  have  to  pi^  on  that.  Supposing 
the  realisation  of  these  diamonds  did 
not  take  place  for  18  months,  and  there 
was  a  heavy  loss  on  the  surplus,  how 
would  that  be  adjusted  with  the  Gov- 
ernment. That  loss  would  be  a  loss  on 
the  trading  of  1905.  In  1904,  there 
was  a  sale.  If  that  was  a  trading  un- 
der the  terms  of  the  Act,  then  if  that 
sale  had  a  profit,  De  Beers  would  have 
to  pay  for  it.  It  could  not  be  ascer- 
tained until  1906  whether  there  was  a 
profit  or  loss  on   that  transaction. 

[Buchanan,  A.C.J. :  Do  you  say  that 
this  £160,000  is  on  the  trading  of  1904?! 

Sir  H.  Juta:  No.  Continuing,  he  said 
that  what  he  held  was  that  until  19(M^ 
they  could  not  tell  whether  there  was  a 

grofit  or  a  loss  on  the  whoile  transaction, 
upposing  that  during  1904  portion  of 
these  diamonds  were  sold  at  a  profit, 
De  Beers  had  to  pay  income  tax  on 
them,  and  supposing  that  in  1906  it  was 
found  that  on  the  whole  thing  there 
was  a  loss  the  (jrovemment  would  not 
pay  back  to  Do  Beers  what  had  been 
paid.  They  held  that  there  was  an  out- 
and-out  sale  of  diamonds  a,t  Kimberley. 
His  argument  of  the  sale  was  that  it 
was  finished  and  agreed  upon  in  Kim- 
berley, and  that  it  did  not  go  further. 
There  was  a  sale  to  the  syndicate  in  t^ 
colony,  arid  if  De  Beers  went  into  part- 
nership with  somebody  in  Eln^land,  wit^ 
regard  to  that  they  had  nothm^  to  par. 
According  to  the  agreement  the  syncu- 
cate  had  the  full  control  of  everything 
that  had  to  be  done  with  regard  to  the 
diamonds  in  England.  If  there  was  a 
sale  to  this  syndicate,  and  there  -wva  an- 
other persona  which  dealt  with  these  diar 
monds  in  England,  the  Conunissioner  of 
Taxes  who  knew  his  business  exceeding^ 
ly  well,  knew  tliat  they  would  not  be 
entitled  to  claim  on  these  diamonds  sold 
in   England. 

rBuciiaiian,  A.C.J.  :  All  through  the 
point  that  recurs  to  my  mind  is,  is  not 
this  pwut-  of  the  sale  price  in  Kimberley? 
If  the  De  Beers  Companv  had  absolute- 
ly nothing  to  do  with   tine  profits   real- 


(( 


CAPE  TIMES"   LAW  REPORTS. 


628 


ised  from  the  sale  of  diamonds,  of 
couzBe,  the  syndicate  that  bought  the 
diamonds  in  Kimberley  would  not  be 
liable  to  income-tax  here.] 

The  j^sona  who  dealt  with  the  dia- 
monds in  London  was  not  the  same 
persona  as  the  one  in  Kimberley.  The 
one  persona  was  De  Beers,  and  the 
other  was  the  syndicate,  whei^eas  the 
sales  which  were  made  in  England  were 
made  on  behalf  of  a  persona  consisting 
of  De  Been  and  the  syndicate.  The 
sale  took  place  in  London  by  an  en- 
tirely different  persona.  If  this  was  only 
one  transaction,  and  the  transaction  in 
England  was  part  of  the  trading  in  this 
colony,  then  the  syndicate  must  be 
liable  for  income-tax.  But  there  was  no 
machinery  for  such  a  state  of  affairs, 
and  the  want  of  machinery  was  pointed' 
out  in  one  of  the  cases  to  which  ne  had 
referred  as  showing  that  the  Act  oould 
not  be  int^ded  to  apply  to  sucb  a  state 
of  affairs  in  this  country.  There  was 
no  means  by  whieh  we  miade  the  syndi- 
cate liable  to  income-tax  in  this  ooun- 
try.  The  only  person  who  could  fix  the 
price  of  diamonds  was  the  syndicate, 
and  the  vendor  was,  so  far  as  London 
was  concerned,  absolutely  helpleeo  aa  to 
the  fixin47  of  the  price.  It  was  a  fluctu- 
ating price  at  the  will  of  the  purchaser. 
Counsel  went  on  to  refer  to  the  cose  of 
the  Bariolemy  Breinng  Co.  (1893, 
Q.B.D.,  vol.  2),  and,  in  closing,  sub- 
mitted that  the  sale  was  one  aib  Khn- 
berlev,  and  the  onljr  price  at  which  their 
lordsnips  could  arrive  at  was  the  price 
there  fixed  upon  and  determined. 

Mr.  Searle,  in  replying,  said  that  the 
case  of  Bartolomy  had  clearly  been  over- 
ruled. The  principle  which  was  con- 
tended for  by  De  Beers  was  eubsersive 
of  the  whole  Act,  and  they  would  be 
able  to  say  if  that  principle  were  cor- 
rect they  could  drive  a  coach  and  six 
through  the  Act.  It  would  deprive  the 
Government  of  a  large  part  of  its  re- 
venue if  a  firm  could  use  a  device  such 
as  was  contended  for  in  this  case.  He 
did  not  say  that  this  was  a  device  by 
De  Beers  to  evade  payment  of  income- 
tax,  because  the  arrangement  was  enter- 
ed into  long  before  tlra  Incom^tax  was 
passed.  He  pointed  out  that  the  Col- 
onial Act  was  wider  than  the  English 
Act.  There  was  no  section  in  the  fing- 
li«h  Act  exactlv  the  same  as  sub-sec- 
tions 3  and  4  of  section  50  of  the  Col- 
onial Act.  He  submitted  that  this  was 
merely  a  deferred  payment  under  the 
contract,  as  contended  for  by  the  C>>m- 
mdssioner.  It  was  impossible  to  distin- 
guish between  the  two  amounts  in  Kim- 
berky  and  London.  On  the  ground  of 
trading,  according  to  the  principles  of 
the  English  cases,  the  company  would 
be  liable  to  tax  on  this  amount  of 
£8,000  odd.  He  add^  that  it  did  not 
seem  to  him  that  the  case  of  De  Beers 
V.  Surveyor  of  Taxes,  recently  decided 
in   England,   had  any  bearing    on    the 


present  case.    He  also  quoted  from  Mur- 
ray and  Garter's  Income-tax  guide. 

Hopley,  J.,  remarked  that  by  the  re- 
cent case  decnded  in  England  the  un- 
fortunate De  Beer  shareholders  who  re- 
sided in  the  Cape  Colony  had  got  to  pay 
income-tax  twice. 

Sir  H.  Juta:  On  the  bulk.  We  are 
trying  to  save  a  small  portion  of  it. 

Cur.  Adv.    Vult. 

Postea  (August  21). 

Buchanan,   A.   C.  J. :    This  is  in  the 
nature  of  an    appeal    from  the   decision 
of  the      Court      of      Review   appointed 
under     the     provisions     of     the      Addi- 
tional    Taxation      Act,      No.   36,    1904. 
The     Commissioner     of  Taxes   had  as- 
sessed    the     respondent  company,  inter 
alia  in  the  sum  of  £8,135  9s.,  as  inoonie 
tax      payable      in     respect      of   certain 
£162,709  received  by  them  as  their  share 
of    profits   on    certain    dealings    in   dia- 
monds in   London.    The   Court  of    Re- 
view discharged  this  assessment,    where- 
upon the    Commissioner  applied,    under 
tne  74th  section  of  the  Act,  to  have  a 
case  submitted    for  the  decision  of   the 
Supreme     Court.       All      material  facts 
have  been  clearly  set  forth  in  the  state- 
ment of  case  which  has  been  filed,  and 
in      the     documents      annexed  thereto. 
From  these  it  appears  that  the  respon- 
dent company  carry  on  the  business  of 
diamond-minmg      within     the     Colony. 
The      report  and   balance-sheets   of  the 
company   showed    the    amount    realised 
on    their    diamond   account    during    the 
period   covered   by  the   assessment,    the 
whode  of  the  receipts   being  lumped  in 
one  item,  and    in  this  amount  was   in- 
cluded  the  £162,709   in   question.       No 
objection  was  taken  to  the  rest  of  the 
aasessment,   but  exemption  was   claimed 
for  this  £162,709  on  the  ground  that  it 
had  been  received  from  a  certain  syn- 
dicate    as  the  company's  share  of  the 
profits   niade    by  the  syndicate  on   cer- 
tain dealings  in  London.       It  was  con- 
tended  that  these  were    not   gains    de- 
rived in  the  Colony,  and  therefore  were 
not   taxable  here.     The  company   relied 
upon      the   written  agreement   annexed 
to     the     statement  of  case,   which  had 
been  entered  into  in  London  between  the 
company  and  a    syndicate    of  diamond 
merchants.        The     agreement    was     a 
lengthy  one.    The  first  clause  indicated 
the  object    of  the  contract    as    it   com- 
mences    by     saying  that  the  company 
shall  sell,   and  the  syndicate  shall   pur- 
chase, the  output  of  rough  diamonds  as 
it  is  produced  by  the  (Jompany.       The 
agreement  dealt  with  a  number  of  sub- 
jects,    such     as      the  classification  and 
valuation  of  these  diamonds,    the  mini- 
mum    quantity     the  syndicate   was  re- 
quired iK>  take  monthly,  the  proportions 
of  stones  to  be  taken  from  one  or  other 
of    the    company's    mines,    and    similar 
matters    which    do  not   enter   into   this 
case,  and  need  not  be   further  referred 


624 


"CAPE  TIMES"   LAW  REPORTS. 


to.  The  4th  clause  stipulated  that  de- 
livery of  the  diamonds  ehould  be  made 
at  Kimberley  against  cash,  and  sub- 
sequent clauses  provided  for  the  man- 
ner in  which  wnat  is  called  the  pur- 
chase price  was  to  bo  determined,  llio 
9th  clause  required  the  syndicate  to 
keep  in  London  proper  booKs  and  ac- 
counts of  all  their  transactions  relating 
t:>  the  diamonds  purchased  from  the 
company,  which  books  and  accounts 
were  to  be  open  to  the  inspection  of  the 
auditors  of  the  company.  Then  came 
the  10th  clause,  upon  wnteh  the  oonten- 
tion  of  the  company  was  mainly  based. 
It  reads  as  follows:  '*  In  addition  to 
the  payments  to  be  made  by  the  syn- 
dicate to  the  company  pursuant  to  the 
preceding  clauses,  the  syndicate  shall 
account  for  and  pay  to  the  oompany 
one-half  of  all  net  profits  that  may  be 
made  by  the  syndicate  on  realisation 
or  dealing  with  the  said  diamonds 
under  this  contract,  as  appearing  from 
tho  said  accounts.  All  rtsla  in  the  real-  I 
isation  or  dealing  with  the  diamonds 
under  the  contract  shall  be  on  joint  ac- 
count, and  borne  by  the  company  and 
the  syndicate,  in  equal  shares,  and 
the  syndicate,  whenever  it  covers  any 
risk,  shall  cover  it  on  joint  account." 
The  contract  then  provided  how 
the  accounts  were  to  be  kept,  and 
what  charges  were  to  be  allowed  before 
profits  were  taken.  Subsequent  clauses 
gave  the  syndicate  the  right  of  pre- 
emption over  the  whole  output  of  the 
company.  Upon  these  provisions  it  was 
argued  for  the  company  that  the  agree- 
ment should  be  read  as  containing  two 
separate  contracts,  the  first  for  an  out- 
and-out  sale  of  the  diamonds  when  de- 
livered at  Kimberley  and  the  price  paid ; 
and  the  second  a  contract  of  partner- 
ship between  the  company  and  the 
syndicate  to  carrjr  on  a  venture  in  Lon- 
don in  dealing  with  these  diamonds,  as 
distinct  from  the  company's  business  in 
this  Colony  as  miners;  and  this  view 
was  taken  by  the  Court  of  Review.  A 
clause  in  the  statement  of  case  was  much 
relied  upon  in  arg^ument  as  being  an 
admission  on  the  part  of  the  Commis- 
sioner, that  if  the  profits  on  the  deal- 
ings abroad  were  not  to  be  treated  as 
deferred  payments  on  account  of  the 
purchases  by  the  syndicate,  such  profits 
were  not  taxable,  as  they  would  then 
be  derived  and  form  part  of  a  business 
carried  on  outside  the  Colony.  While 
recognising  that  the  decision  of  the 
Court  must  be  restricted  to  the  issues 
raised  in  the  special  case,  it  may  be 
pointed  out  that  this  clause  does  not 
contain  any  statement  of  fact,  but 
rather  a  conclusion  of  law  drawn 
from  the  facts  of  the  case  by  the  Com- 
missioner, it  stands  much  in  the  same 
position  as  the  paragraph  which  contains 
the  contentions  of  the  Commissioner, 
and  which  was  also  relied  upon 
as  admitting  that  the  transaction 
\n     kimberley  constituted  a  completed 


sale  and  purchase.  True,  the  Commis- 
sioner in  this  paragraph,  setting  forth 
his  contention,  speaks  of  an  "out-ond- 
out  sale,"  but  he  goes  on  to  say  that 
the  price  to  be  paid  was  not  finally  fixed 
until  the  diamonds  had  been  dis- 
posed of  by  the  syndicate.  Neither 
of  these  paragraphs  of  the  state- 
ment of  case,  in  my  opinion, 
preclude  us  from  drawing  our  own  oonolu- 
sion  from  the  facts  put  before  the  Court. 
On  the  partnership  question,  it  was  ar- 
gued that  the  company  which  carried  on 
the  mining  business  m  the  Colony  was 
a  distinct  perfona  from  the  confedera- 
tion of  diamond  dealers  in  London,  the 
pergona  of  which  was  the  syndicate  i^us 
the  company.  I  fail,  however,  to  find 
sufficient  ground  in  the  contract  to 
justify  the  finding  that  the  company 
and  the  syndicate  ever  intended  or  de- 
sired at  any  time  to  amalgamate  them- 
selves into  one  body.  On  the  contrary, 
I  think  that  all  through  the  agreement 
the  company  and  the  syndicate  intended 
to  keep  themselves,  and  did  keep  them- 
selves distinct.  The  elaborate  document 
begins  by  calling  itself  a  memorandum 
of  agreement  between  the  Do  Beers 
C'onsolidated  Mines,  Limited,  called 
"  the  company,"  of  the  first  part,  and  a 
number  of  merchants  who  are  named, 
called  **  the  syndicate,"  of  the  second 
part;  and  then  goes  on  to  say  that  it 
19  agreed  between  these  respective  par- 
tieSf  the  one  to  sell,  and  the  other  to 
purchase  the  property  in  question. 
There  is  nowhere  any  expression  of  an 
intention  to  create  a  jjartnershipi  On 
the  contrary,  it  is  significant  of  the  ab- 
sence of  any  such  intention  that  provi- 
sion is  made,  in  case  of  a  European  war, 
t'.iat  tlie  syndicate  should  no  longer  be 
bound  to  continue  its  purchases,  but 
that  it  might  act  as  the  agent  of  the 
company  to  sell  the  diamonds  on  com- 
mission. Neither  do  the  usual  conse- 
quences of  a  partnership  result  from  the 
contract.  If,  as  is  contended,  there  was 
an  absolute  sale,  and  the  property  in 
the  diamonds  passed  to  the  syndicate 
upon  the  delivery  and  payment  of  the 
price  determined  by  the  valuators  at 
Kimberely,  there  was  no  subsequent  con- 
tribution by  the  company  to  the  common 
stock  of  either  property  or  of  services. 
The  svndicate  was  given  the  sole  con- 
trol of  the  realisation  of  tlie  diamonds, 
the  company  having  no  eay  therein. 
The  oompany  could  not  as  a  partner 
bind  the  syndioato  in  any  way.  Indeed, 
if  this  agreement  was  anyuung  more 
than  a  contract  of  sale  and  purchaae.  it 
might  better  be  argued  thai  it  created 
the  relationship  of  factor  and  principal 
rather  than  that  of  co-partners.  It 
was  contended  that  the  agreement 
could  not  be  held  to  be  only  a  contract 
of  sale,  because  no  definite  prioe  was 
fixed  for  the  diamonda  sold.  Our  law 
undoubtedly  requires  in  a  oontnct  o^ 
sale  that  the  prioe  should  be  eertvM, 
but  this  requirement  of  definiteness  ma^ 


"CAPE  TIMES''  LAW  REPORTS. 


62r) 


be  either  per  se,or  by  relfition  to  some 
condition  by  which  a  definite  price  was 
ascertainable.     The   clauses   to   which    I 
have  referred  provide  the  means  of  de- 
termining the  price  to  be  paid  for  the 
property  sold.     A   portion    of  the   price 
wafi  to  be  ascertained  by  valuation,  and, 
as  the  10th   clause  provides,   "  in  addi- 
tion" to  the  valuation  the  balance  was 
to  be  ascertained  from  the  result  of  the 
dealings  of  the  syndicate.     On  the  re- 
sale in  the  diamond  market  the  adjust- 
ment of  the  price  to  be  paid  for  the  dia- 
monds     became      a      simple      matter 
of      account.       Taken      as      a       whole 
I    think    it    is    clear    that    the    object 
of  the  contract  was  the    realisation    of 
the  diamonds   won  by  the  company   to 
the    best    advantage.     The    busmess    of 
diamond -mining  was  one  of  a  very  spe- 
cial  character,  and  required   special   ar- 
rangements   to  be   made    to  realise   tho 
property     acquired.       This      realisation 
could  probably  best  De  effected  with  the 
assistance  of  others.     But,  however,  the 
legal    relationship  of    the    parties   miijht 
be  described  as    far  as    the    liability    to 
taxation      was    concerned,    part  of   the 
proceeds    received  by   the   company   for 
their   property  was  th<»  share,  of  profits 
accruing     from     the     retail  of  the  dia- 
monds   to    smaller    dealerB.     These   pro- 
fits were  directly  derived  from  the  dia- 
monds produced  in   this  colony.      These 
profits  wore  remitted  to  the  company  m 
this    colony,    and  were   taken    into  the 
general    aooount    upon   which    the    com- 
pany ascertained  the  result  of  its  trans- 
actions and  declared  the  dividends  pay- 
able  to  its  shareholders.      If  instead  of 
a    profit   tiie    realisation    resulted    in    a 
loss,  it    would    proportionately  decrease 
any     amount     available     for  dividends. 
Now     the  50th  section  of  the  Act  No. 
36,   1904,   imposes    a    graduated    tax    in 
sub-section  (1)    upon    income  arising   or 
accruing  to  any  person  (and  by  the  in- 
terpretation     clause      a      "  person "   in- 
cludes     a     company)      wheresoever    re 
Biding,    from    any   trade    of    whatsoever 
nature      carried      on      in  this      colony, 
whether  the  some  be  carried  on  by  such 
person   or    on  his   behalf  wholly   or    in 
part  by  any  other  person;  and  in  sub- 
secticm       (4)    upon    income    derived    by 
any  person   from    aiiy    source  whatever 
within  this  colony.    By  section  42  "  in- 
como "      is   defined    as    meaning    *'  any 
gains  or  profits  derived   or  received  by 
any  company  or  persons  in  any  year  or 
by  any  m<>ans   from    any  source    within 
the  Colon v,"   and  includes   "  all   profits 
derived      from      mining  or   quarrying." 
The  English  decisions  to  which  we  have 
been      referred      cannot,    unfortunately, 
afford   much   assistance    in    determining 
the  question   before  us,    owing    to    the 
different  phraseology    of   our    Act    and 
of  the      English      Statute.       While  our 
l*w  limits  taxable  income  to  gains  fronr. 
a  source   within  the  Colony,    16   and  17 
Vic.       0.    34,    schedule    D,    extends  the 
English     tax     to     gains      accruing     to 


residents       from       property       or      em- 
ployment      whether      in    the     United 
Kingdom     or     elsewhere.       Admitting 
that      in       a      taxmg      measure       like 
the    Act    before    us,    it    must    be  clear 
that   a  charge   is   imposed    on   the   tax- 
payer by  the  language  of  the  statute,  I 
think  the  intention  of  the  legislature  to 
render     liable   to  duty  such  receipts  as 
are  in  question  in  this  case,  is  sufficiently 
expressed.       These  receipts  are  part  of 
the  compiny's  income,   derived   from    a 
source  within  this  Colony,  and  to  realise 
that  income,  it  is  immaterial  whether  or 
not    the    business    of    the    company    be 
wholly   or    in    part   carried    on    by   any 
other  person    than    the   company   itself. 
I      am     of      opinion,      therefore,      that 
decision  of  the  Court  of  Review  cannot 
be  supported,    and  that  the  assessment, 
an  originally  made  by  the  Commissioner, 
must  be  sustained.     As  to  costs,  I  think 
that   as   far   as  the  proceedings   in   this 
Court   are    oonoerned,    they   are   in   the 
discretion  of  the  Court.     The  73rd  Sec- 
tion   of   the  Act   provides  that  the  Re- 
view Court  may  only  make  an  order  as 
to  costs  when  the  cfaim  of  the  Commis- 
sioner shall  be  held  to  be  unreasonable, 
or  the    grounds  of  appeal  (herefrom  to 
be  frivolous.     The  issue  in  this  case  was 
a  fair   one   to  be   argued,   and  we  may 
well   follow   the    line   indicated   by    this 
section,  and  make  no  order  as  to  costs. 
Hopley,  J. :      For  the  purpose  of  the 
matter    with    which    this   Court  has   to 
d€«d,   the  facts  are  sufficiently  set  forth 
in    the    first   twenty   psiragraphs   of    the 
special  case  submitted  by  the  President 
of  the  Court  of    Review.      That     Court 
decided    that    the    agreement    of    1901, 
and       the      practice      of      the      parties 
thereto,     constituted  two  separate  busi- 
nesses, or  divisible  sets  of  transactions, 
of  which  the  one  was  purely  a  sale  and 
purchase  in  this  Colony  of  the  company's 
output    of  diamonds   in   such   quantities 
as   they  had   won  month  by  month,  or 
week   by   week,    which    transaction   w^as 
completed  when  the  diamonds  were  de- 
livered   to  the  syndicate   at  Kimberley, 
and   when   the   syndicate    had   paid   the 
price  fixed  by  the  valuators  at  Kimber- 
ley,     which     price  was  determined  and 
fixed  for   each  parcel,   according  to   the 
qualities  of  the  stones    of  which  it  was 
made  up  on  the  lines  laid    down  in  the 
agreement.        Upon  such    conclusion   of 
the    first    portion    of    the    bargain,    the 
Court  held  that  the  parties  then  entered 
upon  its  second  branch,       which  was  a 
partnership  carried  on  abroad  for  the  re- 
sale of   these  same  diamonds:    and  the 
Court     held   that    the    profits  made,   or 
the  losses  incurred  in  the  course  of  such 
branch  of  the  business,   did  not  proceed 
from  any  source  within  this  Colony,  and 
were   consequently   not  liable  to   assess- 
ment as  income  in  terms  of  Act  36, 1904. 
Now,    the  contract  between  the    parties 
is^  complete   and   binding   when   on   the 
stipulated  date,  which  I   take  to  be  the 
I  20th    of   June,   or  of  Decenaber,    dqring 


626 


(f 


CAPE  TMES**   LAW  REPORTS. 


the  continuance  of  the  oontract,  the 
•yndicate  sigTiify  that  they  have  elected 
to  continue  it  for  another  six  months. 
At  such  time  they  contract  to  purchase 
from  the  company,  who  are  bound  un- 
der the  agreement  to  soil  to  them,  the 
whole  of  the  production  of  diamonds 
for  the  enduing  six  months.  When  the 
rontract  is  thus  concluded  the  exact 
thing  bought  has  not  yet  been  diii- 
dosed  or  ascertained ;  but  it  is  certain 
in  the  ordinary  course  of  events  to  be 
ascertained ;  and  the  exact  price  to  be 
paid,  which  cannct  possibly  be  stated 
when  the  oontract  is  made,  will,  by  fol- 
lowing the  directions  and  methods  laid 
down  in  the  agreement,  also  become 
certain  in  an  inevitable  way.  The  pro- 
cedure is  that  experts  separate  each 
parcel  of  diamonds  as  it  is  produced 
from  the  mines  into  the  various  classes 
known  to  the  trade  and  place  upon 
them,  class  by  class,  their  values  as 
directed  b^  clause  13  of  the  agreement. 
When  this  process  had  been  gone 
througli)  as  prescribed,  the  diamonds 
are  in  terms  of  the  agreement  handed 
over  in  Kimberley  to  the  syndicate,  who 
thereupon  hand  over  the  amount  of 
money  arrived  at  by  the  valuation  made 
as  abiove  stated.  It  is,  however,  quite 
clear,  that  when  the  company  so  part 
with  their  diamonds,  the^  have  not  then 
received  the  final  pecuniary  settlement 
which  they  expect,  and  which  their  con- 
tract exacts  in  respeot  of  the  goods  so 
handed  over  by  them.  The  agreement 
distinctly  sets  forth  that  the  price  paid 
in  Kimberley  is  not  the  final  reckoning 
in  the  matter.  At  that  stage  the  com- 
pany have  parted  with  the  possession, 
and  with  the  control  as  to  the  disposal 
of  the  diamonds;  but  their  rights  in 
respeot  thereof  are  by  no  noeans  extinct, 
ana  do  not  eixpire  until  the  goods  aje 
realised  and  until  the  annual  audit  and 
adjustment  of  accounts  disclose  how 
the  syndicate  have  fared  in  their 
dealings  therewith  and  until  payments 
of  the  amounts  so  shewn  to  be  due 
have  been  made.  If  a  profit  is  dis- 
closed one  half  thereof  is  to  be  paid 
over  to  the  company  **  in  addHion  to 
the  payments "  theretofore  made  in 
Kimberley.  Should  there  be  no  profit 
or  one  not  amounting  to  5  per  cent, 
then  no  additional  payments  pre  to  ho 
made;  and  in  the  unlikely  but  still 
conceivable  event  of  a  loss  in  any  year 
then  the  company  is  to  bear  half  there- 
of. The  entire  contract  seems  1o  mo 
indivisible,  and  m  whatever  way  I  view 
the  matter  it  appears  to  amount  to  no 
more  and  no  lees  than  a  contract^  of 
purchase  and  sale.  The  whole  object 
of  the  company  is  to  sell  their  dia- 
monds, and  of  the  syndicate  to  buy 
tbom.  In  order  to  effect  this  as  equit- 
ably and  as  profitably  as  possible  a  cer- 
tain element  of  risk  is  undertaken  by 
both  parties ;  but  when  all  the  risks  are 
past   and    all  the   transactions  and  ex- 


penses incidental  to  realisation  are  ac- 
counted for,  the  final  sum  of  money 
whioh  reaches  the  company's  coffers — 
being  the  money  paid  in  Kimberley 
either  added  to  by  subsecjuent  profits 
or  diminished  b^  losses — still  seems  to 
me  to  be  the  prioe  for  whidh  the  com- 
pany agree  to  part  with  the  ownershin 
of  their  diamonds  and  which  ^  the  syn- 
dicate agree  to  pav  for  obtaining  them. 
The  dealings  for  the  year  under  review 
in  the  prefient  cane  showed  a  large  pro- 
fit to  tne  Syndicate,  and  in  terms  of 
the  agreement  £169,709  were  paid  over 
to  the  comfxany  in  addition  to  the  pay- 
ments previously  made  in  Kimberley, 
which  amount  the  company  in  their 
annual  statement  of  accounts  properly 
included  in  the  total  sum  of  money  re- 
ceived by  them  on  account  of  their 
sales  of  diamonds.  Whatever  inter- 
mediate steps  there  may  have  been, 
such  a  sum  of  mon^  when  received  is 
clearly  a  portion  of  the  profits  made 
by  the  company  from  mining  in  this 
colony,  it  comes  from  a  source  and 
flows  out  of  a  business  carried  ^  on  in 
this  colony,  and  is  assessable^  as  income 
within  the  true  scope  and  intendment 
of  Act  36,  1904.  I  am,  therefore,  of 
opinion  that  the  contention  of  the  Com- 
missioner of  Taxes  should  prevail,  and 
that  our  judgment  should  be  in  his 
favour. 

[Appellants'  Attorneys :  Reid  and  Nep- 
hew; Respondents*  AttorneyB:  Syfret, 
Godlonton  and  Low.] 


SECOND    DIVISION. 


[  Before  the  Hon.  Mr.  Jnatice  M A asdobp.  ] 


INSOLVENT  ESTATE  PLEBN 


•f 


1904. 
AafT,  7th. 


Mr.  Gutsche  moved  on  behalf  of  the 
trustee  in  the  insolvent  estate  of  Plehn 
for  a  commission  de  bene  esse  to  take  the 
evidence  of  one  Meyer  Stepney,  a  ma- 
terial witness  in  the  case,  who  had  ac- 
cepted a  position  up-country^  p nd  would 
lose  it  if  ^  detained  as  a  witness  in  the 
action  instituted  by  the  trustee,  in  the 
esrtate. 

Application^  granted,  Mr.  Lewis  to 
act  as  commissioner,  costs  to  be  oosts 
in  the  oause. 


!• 


CAPE  TIMES"  LAW  BEPORTS. 


627 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maasdobp.  ] 


ESTATE  YAH  NIEKEBK    V.    f        1905. 

SANDILANDB.  )   Aug.  8th. 

Sheep  lease — Pledge — Insolvency 
—  Preferent  and  concurrent 
claims. 

This  was  an  action  brought  by  Abra- 
ham Pieter  de  Villiere,  of  Richmond, 
as  sole  trustee  in  the  insolvent  estate  of 
Gilham  van  Niekerk,  against  Wm. 
Sandilands.  farmer,  late  of  Rietvlei,  in 
the  division  of  Richmond,  to  have  cer- 
tain proof  of  debt  amended  and  de- 
clarea  concurrent. 

Plaintiff,  in  hia  declaration,  said  that 
in  the  month  of  August,  1904,  insol- 
vent entered  into  an  agreement  with 
the  defendant,  whereunder  the  defen- 
dant agreed  to  receive  and  to  keep  upon 
his  f<arm  300  ewes,  the  property  of  the 
insolvent,  on  condition  that  the  wool 
and  increase  of  the  same  should  be 
divided  in  equal  shares  between  insol- 
vent and  defendant,  the  agreement  to 
last  for  three  years.  There  were  ac- 
tually delivered  by  the  insolvent  to 
defendant  291  ewes.  Defendant  ad- 
vanced certain  sums  of  money  to 
plaintiff.  Insolvent  subsequently  sur- 
rendered his  estate,  and  defendant  there- 
upon set  up  a  preferent  claim  in  re- 
spect of  the  said  stock,  and  claimed 
for  £342  10s.  preferently  in  the  in- 
solvent estate,  alleging  that  he  held  the 
stock  and  their  increase  as  security  for 
the  said  claim.  Thereafter  the  defen- 
dant delivered  up  the  said  stock  without 
Srejudice  to  his  claim  to  a  preference, 
'he  trustee  moved  this  Honourable 
Court  to  have  the  defendant's  claim, 
which  had  been  admitted  as  preferent 
by  the  Magistrate,  reduced  to  a  con- 
current claim,  on  the  ground  that  de- 
fendant had  no  pledge  of  the  said  stock, 
but  this  Court  refused  such  application, 
applicant  to  proceed  by  action  if  so  ad- 
vised. Plaintiff  claimed  (a)  that  the 
defendant's  proof  of  debt  be  reduced  to 
a  sum  of  £320.  and  be  declared  to  be 
a  concurrent  claim ;  (b)  that  the  defen- 
dant be  declared  to  have  no  pledge 
over  the  said  stock,  but  that  the  plain- 
tiff be  declared  entitled  to  sell  the 
same  for  the  benefit  of  the  general 
body  of  creditors;  (c)  alternative  re- 
lief: and  (d)  costs  of  suit.  As  an 
alternative  to  the  foregoing,  plaintiff 
said  that  the  alleged  pledge  should  be 
set  aside,  inasmuch  as  at  the  date  of 
the  pledge  the  insolvent  contemplated 
insolvency,  and  by  the  said  pledge  in- 
tended to  prefer  defendant  over  and 
above  his  other  creditors. 

si 


Defendant,  in  his  plea,  said  that  the 
stock  remained  in  his  possession, 
pledged^  as  security  under  an  agreement, 
in  coriaiderAtion  of  the  defendant  lend- 
ing to  the  plaintiff  a  sum  of  £300  until 
March,  1905,  defendant  further  to  pay 
a  sum  of  £22  10s.  interest.  He  also 
lent  insolvent  a  sum  of  £22.  Alterna- 
tively, he  denied  that  at  the  time  of  the 
said  pledging  of  the  stock  insolvent 
contemplated  m.solvencv  or  intended  to 
prefer  him,  and  epecially  said  that  the 
pledge  was  duly  and  lawfully  effected, 
and  was  banajlde  and  for  valuable  con- 
sideration. He  prayed  that  the  claim 
should   be    dismissed,   with   costs. 

Plaintiff's   replication    was  general. 

Mr.  Close  (with  him  Mr.  Douglas 
Buchanan)  was  for  the  plaintiff;  Mr. 
McGregor   was    for  defendant. 

Mr.  Close  said  that  the  plaintiff's 
position  was  that  the  money  was  ad- 
vanced to  insolvent  as  a  loan  out  and 
out,  and  that  the  reason  why  the  sheep 
came  into  the  possession  of  the  defen- 
dant on  a  sheep  lease  was  that,  about 
the  same  time,  they  were  negotiating 
for  a  loan.  Insolvent  gave  defendant 
an  acknowledgment  of  indebtedness  for 
£300.  The  plaintiff  was  prepared  to 
admit  that  the  anK>unt  of  indebtedness 
was  £342  10s.,  aa  stated  by  defendant, 
instead  of  £322  10s..  as  set  out  in  the 
declaration. 

Gilham  van  Niekerk  (tihe  insdvenc) 
said  that  in  July,  Auguat,  wad  Septem- 
ber. 1904,  he  had  tranflaotiona  witn  the 
defendant  about  sheep,  goa^s,  and 
money.  WHtness  had  a  farm  on  leaae, 
and  had  900  sheep.  He  was  a  apecukvtor. 
In  July,  1904,  he  had  a  transaction  with 
one  Jacobs,  and  alter  that  Sandilands 
came  to  see  him  about  his  sheep,  ask- 
ing him  if  he  would  bring  him  eiheep 
and  goats.  He  let  Jacobs  have  600 
goats  on  the  '*  halves."  He  had  receiv- 
ed £400  from  Jacobs  on  loan.  He  also 
gave  Jacobs  a  promissory  note  £or  £420 
09-  £450.  Witness  had  paid  off  £100 
of  the  loan.  Sandilande  wanted  to 
make  a  similar  arrangement  with  him, 
offering  to  lend  him  £300,  on  condition 
that  witnees  let  him  have  50  sheep  and 
250  goats  on  the  *'  halves."  The  agree- 
ment was  made  in  July  or  August,  1904. 
About  eight  day»  after  the  delivery  of 
the  sheep  he  received  £100  from  Sandi- 
lande; about  a  fortnight  later  he  de- 
livered 250  goats  to  the  defendant,  and 
signed  a  document  (produced).  He  re- 
ceived £200  from  oandilands  between 
a  fortnight  and  a  month  afterwards, 
signing  a  promissory  note  subsequently. 
On  the  22nd  November,  1904,  he  drew 
up  his  schedules  for  the  surrender  of  his 
estate  as  insolvent,  final  sequeetration 
being  granted  on  the  10th  December, 
1904.  In  his  arrangements  with  Mr. 
Sanddlands  he  at  no  time  promised  to 
give  him  the  stock  as  security  for  the 
loan.  Witness  first  heard  that  Sandi- 
lands wanted  the  stock  as  security  about 


628 


(( 


CAPE  TIMES'*  LAW  EEP0ET8. 


a  month  «fier  he  had  surrendered  hu 
estate.  S»ndilande  said  that  he  must 
not  allow  him  to  suffer  because  he  had 
surrendered  hia  estate,  and  that  he  must 
say  he  handed  over  fcne  stock  to  him  as 
security.  Witness  did  not  intend  Sandi- 
lands  to  suffer.  He  bt?iieved  that  the 
actual  number  of  goats  and  sheop  hand- 
ed OTvr  to  Sancblands  was  about  285. 

Mr.  Close  (in  answer  to  Hig  Lordship) 
said  that  about  300  head  of  stock  had 
since  been  handed  back  to  the  trustee 
ttnd  sold. 

Maasdorp,  J.,  said  that  if  the  docu- 
ment signed  by  the  iiisolvent  was  an 
agreement  to  let  Sandilands  have  the 
stock  on  the  "  halves,"  he  would  be  en- 
titled to  retain  some  of  the  stock.  ^  The 
document  produced  did  not  contain  all 
the  conditions  of  an  ordinaj'y  sheep 
case. 

Witness  (in  further  evidence)  said  that 
he  never  sold  the  stock  to  Sandilands. 
He  -had  some  doubt  about  bringiTig  up 
the  300  head  of  stock  in  his  schedules; 
he  went  to  see  Mr.  Paul  to  ask  him 
if  he  would  be  allowed  to  bring  up 
the  Bheei>  in  his  schedules,  because  he 
was  afraid  that  he  might  get  into 
trouble.  He  had  given  over  the  stock 
on  the  "  halves "  for  a  period  of  three 
years,  and  he  was  in  some  doubt  whe- 
ther he  could  have  them  back  in  a 
shorter  time.  Aibout  March,  1905,  San- 
dilands and  his  brother  oame  to  see 
witness  about  the  proceedings  which 
were  pending.  David  Sandilands  said 
that  he  must  not  allow  hnm  to  suffer 
a«ny  loss,  and  he  must  say  that  he  had 
pledged  the  stock  with  dcyfendant. 

[Maasdorp,   J. :     When  was  the    lease 
up?! 
Mr.  Close :  It  is  not  up  yet. 

[ISf  aasdorp,  J. :  Then  what  right  has 
plaintiff  to  take  these  sheep  away?] 

Mr.  Close:  The  position  is  that 
defendants  may  claim  possession  of  the 
sheep  in  one  of  two  ways.  He  may 
claim  under  the  contract  possession  as 
lessee.  According  to  his  own  account, 
which  we  deny,  he  is  entitled  to  claim 
as  pledgee.  He  elects  to  claim  as 
pledgee,  and  that  is  the  case  we  are 
now  meeting. 

Witness  (continuing  his  evidence)  said 
that  the  document  (produced)  showing 
his  affairs  in  August  and  September, 
1904.  was  correct.  If  he  had  been  sued 
at  bhe  time  he  made  the  arrangement 
with  Sandilands  he  would  not  have  been 
able  to  pay. 

Abraham  P.  de  Vinions  (the  plaintiff) 
said  that  he  knew  nothing  about  any 
pledge  with  Sandilands  at  the  time  in- 
solvent surrendered  his  estate.  The  so- 
oalled  pledge  was  fint  brought  under 
his  notice  by  the  proof  of  debt  handed 
in  b^  Sandiland<<'  atix>mcy  at  the  second 
meeting.  The  stock  was  recovered  from 
the  defendant  and  sold  by  auction,  rea- 
Ksing,  lees  expenses,  £136. 


By  the  Court :  He  sold  the  stock  with 

the  consent  of  the  defendant. 

Johannes  H.  Vifljoen,  clerk  in  the 
plaintiff's  office,  said  that  in  March  last 
dofend-ant  stopped  him  and  said  that  he 
had  taken  the  goats  from  the  plaintiff, 
and  that  they  were  on  the  ''halves." 

Barend  Jacobus  B-urgera,  farmer, 
Richmond,  said  that  Sandilands,  after 
he  had  brought  the  goats  on  the  farm, 
admitted  to  him  that  he  had  got  the 
goats  and  sheep  on  the  **  halves."  San- 
dilands first  told  him  that  he  had  bought 
the  goats^  and  that  he  had  lent  Van 
Niekerk  £300.  Sandilands  did  not  men- 
tion anything  about  the  stock  having 
been  pledged  to  him. 

William  Sandilands  (the  defendant) 
said  that  he  bought  52  Cape  sheep  from 
insolvent,  and  paid  him  25s.  each  for 
them,  making  £65.  He  eave  Van  Nie- 
kerk £100  about  a  month  after  he  had 
bought  bhe  stock.  Van  Niekerk  was  to 
bring  him  goats  for  the  balance  of  £36 ; 
he  had  to  bring  witness  300  goats.  In- 
solvent later  on  brought  him  252  goats, 
for  which  lie  agreed  to  give  him  prices 
which  oame  out  to  close  upon  £230. 
Witness  gave  Van  Niekerk  £200  for  the 
second  lot  of  goats.  When  he  com- 
menced shearing  he  noticed  that  the 
goats  were  in  bad  oondition.  He  called 
Van  Niekerk's  attention  to  the  goats, 
and  it  was  agreed  that  the  sale  should 
be  cancelled,  and  that  Van  Niekerk 
sliould  brinff  him  better  goats  in  the 
month  of  March,  and  that  the  money 
should  be  returned  in  that  month. 
A  contract  for  the  sheep  and  an  acknow- 
ledsrment  of  debt  for  £322  10s.  were 
written  out  by  witness's  sister-iri-Iaw, 
and  signed  by  Van  Niekerk.  Witness 
asked  Van  Niekerk  what  about  a  surety. 
Van  Niekerk  said.  "  Aren*t  the  goats 
good  enough?"  Witness  said  that  they 
were.  He  denied  that  he  had  told  the 
witnesses  for  the  plaintiff  that  he  had 
not  got  the  stock  as  a  pledge. 

Cross-examined :  He  did  not  have  the 
security  of  the  sheep  set  out  in  writing, 
because  he  did  not  think  it  was  neces- 
sary, and  he  thought  he  was  dealing 
with  a  honest  man. 

Johanna  Jacoba  Sandilands,  wife  of 
David  Sandilands  (defendant's  brother), 
said  that  she  wrote  out  the  contract  at 
Van  Niekerk's  dictation.  She  also  wrote 
out  the  acknowledgment  of  debt  on  the 
same  afternoon. 

David  Petrus  Sandilands  (brother  of 
the  defendant)  said  that,  after  the  sale 
of  the  animals  had  been  cancelled,  it 
was  arranged  that  the  defendant  should 
keep  the  goats  on  the  "  halves "  until 
March,  when  Van  Niekerk  was  to  take 
back  the  old  goate  and  replace  them 
with  young  and  better  goats  that  de- 
fendant was  to  retain  for  a  period  of 
three  years. 

By  the  Court:  Van  Niekerk  said  that 
he  would  leave  the  goats  there  as  secur- 
ity until  he  got  fresh  goats  for  defend- 
ant in  Marofa. 


<( 


CAPE  TIMES"  LAW  REPORTS. 


(529 


Carl  Lodewicus  Paul,    attorney,    prac- 
tinng  at  Richmond,  also  gave  eyidenoe. 
Mr.  McGregor  eloeed  his  case. 

Mr.  Close  (in  answer  to  his  lordship) 
said  the  insolvent  <^ted  that  he  agreed 
to  pay  £22  10^.  interest  ev(»ry  six  monthj) 
upon  the  loan  of  £300,  working  out  at 
15  per  cent,  per  annum. 

Mr.  Mcdregor  having  l>een  heard  in 
argument   on  the   facts. 

IVlaasdorp.   J.,  said   that      Sandilands, 
having  set  up  an  express  contract  under 
which   he    claimed   a   preference   for  his 
debt    of  £342  lOs.,   the  burden   of  proof 
feU    upon    him     to    establish    that    con- 
tract,   and   if  he    failed   to   do   so,   then 
the      Court  would  have    to   hold      that 
the    pledge    did    not    exist.      He     (tfie 
leaxned    Judge)      must   admit   that  this 
case  was  not  free   from  difficuhy  in  re- 
spect  of    the    facts    which       had       been 
brought  out  in  the  evidence,  and  if,  in 
the  difficulty  created,  any  doubt  existed 
in  his  mind  as  to  whether  thi^  contract 
of   pledge   was  ever  entered   into,    then 
necessarily  Sandilands,  upon     whom  the 
burden  of  proof  fell,  must  fail.       In  re- 
viewing' the  evidence  his   lord»hip      re- 
marked that  the  first  doubt  which  cross- 
ed his  mind  in  connection  with  the  testi- 
mony  of  Sandilands,    was  in  respect  of 
the  alleged  payment  of  £300  aa  the  pur- 
chase price  of  stock  not  valued  at  £300. 
Again,   be    did   not    believe   that  a  sale 
which    was   said   to   have   been    entered 
into    would    have   been     so    readily    set 
aside,    as   it    was   alleged    to   have    been 
afterwards  when  it  was  found  that  cer- 
tain  of    the  goats   were    old    and    poor. 
Under  all  the  circumstances,  he  was  in- 
clined to  accept  Van  Niekerk's  evidence 
that  from   the    very  first  it   was  a  loan, 
and  that  from   the  first  the  goats  were 
handed    to    Sandilands   on    lease.        The 
whole    evidence   of   a    pledge    given    by 
Sandilands  ronsisbed  of  some  e<isual  re- 
marks   which    pa.«sed    between    him    and 
Van  Niekerk.     He  had  come  to  the  con- 
clusion that  a  sale  had  not  been  proved, 
and   as   the  evidence   of   Sandilands   was 
not    reliable    on   the   other   matters,    he 
could  not   acc***^*;  it   with   respect  to  the 
nledge.     He  liad  como  to  the  conclusion 
that    this   pledge   had    not   In^en    proved. 
In     regard    to     the  alternative  claim,  it 
was     not      necessary      really     to      deal 
with     it     now,     but     in     view     of     any 
questions     which     might     possibly    arise 
hereafter,     he    found     that     there     was 
no     contemplation      of     insolvency     on 
the  part  of  Van   Niekerk      when      the 
transaction    took   plaoe.     ^  The       Court 
would   declare   that   Sandilands  was  en- 
titled to  prove   for   the   amount   of   his 
claim  as  a  concurrent  claim,  but  not  as 
a  prcferent  claim.      One  must,  he  added, 
symoathise   with    Mr.    Sandilands   upon 
the  loss  of  his  money,  but  he  entered  in- 
to a  foolish  arrangement  with  Van  Nie- 
kerk.     Defendant  must  pay  costs  of  the 
action,   and  proceedings  on  motion,   the 


trustee  to  be  allowed   his  expenses  as  a 
necessary  witness. 

[Plaintiff's  Attorney :  .  P.  De  Villiers ; 
Defendant's  Attorneys:  Fairbridge,  Ar- 
domo  and  Lawton.J 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplby.] 


RBX  V.  IBBAEL  COHEV 


•  { 


1905. 
Aug.  8th. 


Act  10  of  1895,  Sec.  ^—Smelting 
pot. 

To  be  in  possetmion  of  any 
implement  capable  of  being 
used  for  melting  or  defacing 
metahy  irithotit  permission  rn 
writing  from  the  R.M.y  exposes 
any  person  to  a  conviction 
under  Sec,  3  of  Act  10  of  1895, 
provided  there  is  reasonable 
evidence  that  the  implemeyit 
wa>s  used  for  such  purposes. 


This  was  an  appeal  from  a  decision 
of  the  A.A.R.M.,  of  Cape  Town,  by 
which  the  appellant,  a  second-hand 
goods  dealer,  was  sentenced,  under  sec- 
tion 3,  of  Act  10,  of  1895.  to  three 
months'  imprisonment,  with  hard  la- 
bour, for  keeping  on  his  premises  with- 
out a  permit  from  the  Magistrate  a 
smelting  pot  for  defacing  gold,  silver, 
and  other  metak.  Mr.  Alexander  was 
for  the  appellant,  and  Mr.  Nightingale 
was  for  the  Grown.  The  appeal  was 
instituted  on  the  ground  that  the  convic- 
tion was  not  supported  by  the  evidence, 
and  not  in  acoc)rdanoe  with  real  and 
substantial  justice.  Counsel  having 
been  heard  m  argument, 

Hopley,  J. :  In  this  case  the  ap- 
pellant is  charged  with  contravening 
the  3rd  section  of  the  Second -Hand 
Goods  Dealers'  Act  of  1895;  in  that 
he  kept,  ^  or  knowingly  permitted  to 
be  on  his^  premises  without  a  per- 
mit in  writing  from  the  Magistrate 
a  smelting  pot  or  implement  for  altering 
or  melting  gold,  silver,  lead,  or  other 
metals.  Now,  it  is  argued  that  I  must 
restrict  the  interpretation  of  that  section 
to  a  smelting  pot  and  nothing  else,  but 
it  does  not  seem  to  me  that  the  section 
is  so  narrow  in  its  meaning  or 
operation.  I  think  that  if  a  per- 
son uses  or  keeps  a  smelting  pot, 
or  has  any  other  implement  for 
melting  or  altering  or  defacing  these 
metals,  he  would  be  contravening  this 
section,  and  that  is  what  the  Crown  says 
the  appellant  was  possessed  of.      He  had 


690 


i< 


CAPE  TIMES'*  LAW  REPORTS. 


a  thing  which  is  not  very  unoommon,  an 
old  oil  drum,  ventilated  with  wholes,  and 
BO  out  as  to  make  it  capable  of  oeing 
used  as  a  atove/with  a  strong  draft,  and 
the  Crown  aays  that  he  used  it  for  the 
purpose  of  melting  lead  or  other  metals. 
That  it  was  actually  used  for  the  pur- 
pose of  changing  metals  is  amplv  proved, 
ai  he  was  actually  seen  to  be  doing 
something  of  the  sort.  He  had  a  fire, 
and  was  holding  a  tin  over  it,  which  he 
said  he  was  cleaning.  There  was  a  fire, 
and  it  was  not  alleged  that  he  was  cook- 
ing anything,  and  it  is  further  proved 
there  was  metallic  wire  and  molten  lead 
in  this  stove  or  implement.  Therefore, 
the  Magistrate  came  to  the  conclusion 
that  he  Kept  the  implement  for  melting 
lead  or  otner  metals,  and  I  cannot  say 
that  the  Magistrate  was  wrong,  and  the 
sentence  must  be  confirmed  and  the 
appeal   dismissed. 


BBX  V.  riNDLAT. 


r        19( 
<  Aug. 


1905. 
8th. 

2l8t. 


Landlord — Agent  with  power  of 
attorney — Divisional  Council 
— Sanitation — Nuisance — Act 
23  of  1897,  Sec.  50. 

One  A.  had  built  some  20 
cottages  on  his  property,  xvkich 
was  flat  within  a  municipal 
boundary,  for  none  of  which 
he  had  provided  sanitary 
accommodation.  He  was  not 
resident  within  the  Colony, 
but  had  left  his  power  of 
attorney  with  F,  F.  having 
been  summoned  in  the  H,M, 
Court  at  the  ifistance  of  the 
Divisional  Council  of  W,  under 
Sees,  50  and  51  of  Act  23  of 
1897,  was  ordered  to  provide 
the  accommodation  required. 

Held  on  appeal,  that  a^  the 
DivisioTUil  Council,  as  the  local 
authority,  had  a  locus  standi 
in  judicio,  and  that  as  the 
absence  of  the  sayiitary  a^corn- 
modation  demanded  led  directly 
to  a  common  nuisance,  the 
appellant  was  bound  to  can'y 
out  ths  order  of  the  Court 
below. 


The  appeal  was  from  a  decision  of 
the  A.K.M.,  Wynberg,  by  which  the 
appellant  was  fined  in  one  shilling  for 
failing  to  comirfy  with  a  notice  from 
the  Divisional  Council  to  abate  a  cer- 
tain nuisance  on  his  property  at  Diep 
River. 


Mr.  P.  S.  T.  Jones  was  for  the  ap- 
pellant, and  Sir  H.  Juta,  K.C.,  was  for 
the  Grown. 

Counsel  for  the  appellant  said,  although 
technical  objections  could  be  taken  to 
the  summons,  he  would  refrain  from  do- 
ing so,  as  his  client  wished  to  have  the 
whole  matter  thrashed  out.  His  client 
held  a  qualified  power  of  attorney  over 
a  certain  oottw^e  at  Diep  River,  outside 
the  Wynberg  Municipality,  and  had  re- 
ceived notice  from  the  Divisional  Coun- 
cil to  have  twenty-four  proper  sanitary 
closets  with  cement  floors  erected  within 
forty  days.  The  appellant,  holding  a 
qualified  power  of  attorney  from  the 
owners,  in  Johannesburg,  had  no  author- 
ity to  effect  the  repairs.  An  exception 
had  been  taken  that  the  Divisional 
Council  was  not  the  local  authority  for 
the  purposes  of  the  section  under  which 
the  appellant  was  summoned,  and  the 
fine  of  one  shilling  was  imposed  in  order 
that  the  defendant  might  appeal.  Coun- 
sel submitted  that  Mr.  Findlay  had  no 
authority  to  effect  repairs.  He  was  not 
the  person^  who  should  have  been  pro- 
ceeded against. 

Sir  H.  Juta,  in  reply,  said  the  point 
was  whether  the  Divisional  Council  was 
a  local  authority,  and  whether  his  learn- 
ed friend  was  right  in  saying  that  the 
Divisional  Council  had  no  right  under 
Act  26  of  1897.  He  submitted  that  he 
was  not  correct.  While,  with  regard  to 
the  other  point  raised  he  thought  there 
was  no  doubt  but  that  Mr.  Findlay  was 
liable. 

Cur.  Adv.  Vult. 

Poitea  (August  21). 

In  this  case  the  facts  are  that  the 
appellant  is  the  agent  for  the 
aosentee  landlord  of  oertain  pro- 
perty at  Diep  River  in  the  Cape 
Division,  situated  beyond  the  boundaries 
of  any  municipality  or  other  urban  au- 
thority. On  the  land  in  question  there 
are  twenty  cottages  inhabited  by  about 
130  people.  These  cottages  are  let  by 
the  appellant  for  his  principals,  and  he 
remits  the  rents  to  them.  By  his  power 
of  attorney  he  has  the  fullest  powers  of 
manaj^ement  over  the  said  property,  and 
no  point  is  made  in  the  present  case  of 
the  fact  that  he  has  appointed  as  his 
substitute  or  sub-agent  a  gentleman  in 
his  office,  it  being  admitted  that  he  still 
has  the  power  to  interfere  and  remedy 
any  evils  upon  the  property  in  question. 
For  none  of  ^  these  cottages  have  any 
closets  or  sanitary  conveniences  of  an^ 
kind  been  provided,  and  all  the  inhabi- 
tants use  the  land  surrounding  their  cot- 
tages, especially  such  parts  thereof  as 
are  screened  by  trees  or  bushes,  for  their 
purposes,^  with  the  result  that  such  land 
IS  extensively  littered  with  human  ex- 
creta. These  excreta  are  chiefly  on  the 
western  side  of  the  property,  and  the 
slope  of  the  land  is  such  that  any  drain- 
age fr<Hn  where  these  deposits  are  made 


J 


•CAPE  TIMES"  LAW  BEPOBTS. 


681 


would  find  its  wav  into  the  Diep  River, 
whence  the  inhabitants  of  these  cot- 
tages draw  their  water  supply,  and 
whence  other  people  lower  down  no 
doubt  also  get  water  to  drink.  I  am 
stftisfied  that  such  a  state  of  things  con- 
stitutes a  danger  to  public  health  for  the 
reasons  stated  in  his  evidence  by  Dr. 
Murray,  and  that  it  ifi  a  nuiaance  at 
commoci  law.  I  am  also  satisfied  that  it 
is  a  nuisance  for  which  the  appellant  is 
responsible  in  that  by  not  supplying  any 
conveniences  to  his  tenants  he  had  nuuie 
it  impossible  for  them  to  behave  in  any 
other  way  than  the  one  they  have  adopt- 
ed, and  it  must,  therefore,  be  taken  to 
be  a  nuisance  arising  or  continuing 
through  his  default  or  sufferance.  In 
these  circumstances  the  Cape  Divisional 
Ck)uncil  as  the  local  authonty  concerned 
set  proceedings  in  motion  under  section 
50  of  Act  23,  1897,  requiring  appellant 
to  abate  the  nuisance  and  to  provide  a 
proper  closet  for  every  cottage.  The 
appellant  having  failed  to  take  any  steps 
the  Divisional  Council  proceeded  to  com- 
plain against  the  appellant  before  the 
Resident  Magistrate  of  Wynberg,  who 
theieupon  issued  a  summons  in  accord- 
ance with  th^  procedure  laid  down  in 
section  51  of  the  said  Act.  The  Magis- 
trate found  the  charge  proved,  and  im- 
posed a  nominal  fine,  and  issued  an 
order  that  proper  closets  should  bE>  pro- 
vided. For  the  appellant  it  was  argued 
that  the  action  of  the  Divisional  Council 
was  ultra  vires;  that  they  were  not  tlie 
local  authority  intended  to  deal  with 
such  a  matter,  which  should  have  been 
legulated  by  proper  proceedings,  as  laid 
down  by  section  13  of  the  Act ;  and  that 
as  there  had  been  no  proclamation  mak- 
ing such  acts,  or  such  a  state  of  things 
as  were  here  complained  of,  illegal,  the 
Council  could  not  interfere.  I  am,  how- 
ever, of  opinion  that  no  proclamation 
was  necessary  to  make  such  a  mis-use  of 
proprietary  rights  illegal  wherever  it 
was  found  to  exi^.  A  danger  to  the 
public  health  was  thereby  set  up  amount- 
ing to  a  nuisance  at  common  law.  As 
soon  as  such  a  nuisanoe  is  found  to  exist 
the  local  authority  must  stop  it:  and  it 
seems  to  me  quite  clear  on  the  proper 
construction  of  section  35  of  the  Act  and 
on  the  authority  of  Hex  v.  Joom  (15 
C.T.R.  272)  that  the  Divisional  Coun- 
cil of  the  Cape,  in  whose  juris- 
diction the  land  lies,  is  the  only 
and  proper  local  authority  to  act 
in  the  matter.  The  part  of  the  case 
which  has  given  me  some  trouble  is  the 
order  that  closets  should  bo  built  for  all 
these  cottages.  This,  in  view  of  the 
tact  that  the  Divisional  Council  admitted- 
ly has  no  existing  machinery  for  dealing 
with  sanitary  mattens  of  this  description, 
might  not  have  the  effect  of  doing  away 
with  the  nuisance ;  for  it  is  obvious  that 
merely  building  and  fitting  up  the  closets 
will  not  put  a  stop  to  the  cause  of  com- 
plaint,    ft  is,    however,  clear  that  with- 


out such  closets  no  improvement  can 
take  place,  and  it  must  be  left  to  the 
Councrl  to  see  that  the  closets,  when 
built,  are  properly  and  decently  used  and 
cleaned.  The  duty  of  the  appellant, 
however,  is  to  see  thait  his  houses  are  so 
constructed  that  ordinary  rules  of  de- 
cency cleanliness,  and  health  can  be  ob- 
served, and  that  will  be  done  by  his 
carrying  out  the  order  made.  The  ap- 
peal  must  be  dismissed. 

[Appellant's   Attorneys:     Findlay   and 
Tait.] 


£a!  parte  LOUBSKB 

Mr.  Alexander  applied  as  a  matter  of 
urgency  for  the  transfer  of  certain  pro* 
perty  at  Somerset  West  Strand,  in  the 
estate  of  the  petitioner's  late  mother. 
The  urgency  arose  from  the  fact  that 
there  were  creditors  to  the  extent  of 
£12,000,  who  were  pressing.  The  Mas- 
ter had  reported  favourably,  and  the 
Resristrar  of  Deeds,  who  reported  as 
well  as  the  Master,  stated  that  an  order 
of  Court  was  necessary.  The  property, 
consisting  of  an  hotel  and  four  cottages, 
was  left  to  the  petitioner  and  his  bro- 
thers, and  by  a  notarial  document  per,!* 
tioner  was  taking  it  over  at  a  valuati^^n 
of  £12,000,  and  paying  the  debts  of  the 
estate. 

The  petition  was  granted,  the  Regis- 
trar of  Deeds  being  authorised  to  pa^s 
transfer. 


SUPREME  COURT 


FIRST   DIVISION. 


[  Before  the  Hon.  Mr.  Justioe  Maabdosp.  ] 


BENEKB  AND  OTHBBS  V 
VAN  DBB  VTVBR  AND 
OTHERS. 


Will,  joint — Massing — ^Debts  due 
to  estate. 

By  a  joint  wiW,  F.  and  his  wife 
bequeathed  to  their  daughter 
A,  a  life  interest  in  £1,000, 
with  fidei  oommissnm  to  their 
other  five  children  and  the 
legitimate  issue  of  these  per 


6,12 


(I 


CAPE  TIMES**   LAW  ftEPOBTS. 


siirpeB.  Tliey  also  bequeathed 
to  these  Jive  children  certain 
land,  the  survivor  of  the  testa- 
tors to  enjoy  a  life  usufruct 
thereof.  After  the  death  of 
the  survicor,  each  of  these  heirs 
teas  to  mortgage  his  portion 
for  £200  to  the  said  A.,  the 
interest  to  he  paid  to  her  half- 
yearly.  The  testator  and  testa- 
trix instituted  each  other 
inutual/y,  together  with  their 
children,  as  heirs  of  the  residue 
of  the  joint  estate.  Mrs,  V. 
predeceased  her  husband,  who 
adiated  under  the  icill,  and 
subsequently  made  a  will  con- 
firming the  bequest  of  land  to 
his  children,  but  imposing 
certain  conditions  not  embodied 
in  the  original  will.  There 
was  a  bond  on  the  laml  be- 
queaOied,  and  it  was  contended 
for  the  plaintiffs  that  this 
represt'nieil  a  debt  on  the  joint 
ejttale.  The  defendants  con^ 
tended  that  it  represented  the 
accumulated  debts  of  the  plain- 
tiffs. 

Heldf  that  as  these  debts  had 
been  taken  over  by  the  testator 
previous  to  the  death  of  his 
wife,  the  mortgage  must  be 
regarded  as  a  burden  on  the 
joint  estate,  and  that  the 
legatees  were  entitled  to  the 
foMfns  free  of  mortgage. 

Held  further,  that  a  debt 
incurred  in  respect  of  a  sum 
of  money  paid  for  stock  for 
one  of  the  sous  must  he  regarded 
as  an  asset  of  the  joint  estate  ; 
and  that  the  executrix  must 
pay  costs. 


This  wafi  an  aotion  brought  bv  Jo- 
hanna Louisa  Petronella  Beneke,  Maria 
Gertruida  van  der  Vyver,  Jan  Abra- 
ham van  der  Yyver,  and  laaao  Johannes 
van  der  Vyver,  all  children  of  the  late 
Isaac  Johannc6  van  der  Vyver,  of  Rivers- 
dale  and  hk  predeoeasod  spouae,  against 
Jodina  Frederika  Petronella  van  der  Vy- 
ver. individually,  and  in  her  capacity  as 
executrix  testamentary  of  the  estate  of 
the  late  Isaac  Johannes  van  der  Vyver 
and  Jacobus  ITredorik  Badenhorst,  in  hiii 
capacity  as  executor  dative  in  the  estate 
of  the  late  AjMia  Christina  van  der  Vy- 
ver, predeoeased  apouee  of  the  said 
Isaac  Johannes.  Plaintiffs  claimed  an 
account  of  th«  joint  estate  of  Isaac  Jo- 


hannes  van    der  Vyver  and    iiis  prede- 
ceased spouse.     The  first  defendant  wa« 
second  wile  of  Isaac  Johaimes  van  der 
Vyver. 
Plaintiffs  declaration  was  as  follows: 

1.  The  plaintiffs  are  children  of  the 
late  Isaac  uuiiannes  van  der  Vyver,  of 
Riversdale,  and  his  predeceased  spouse, 
Anna  CimoCina  van  der  Vyver,  herein- 
after called  the  testators.  The  defen- 
dants are  the  widow  (second  wife)  of 
the  said  (testator,  in  her  individual  ca- 
pacity and  as  executrix  testamentary  of 
his  estate,  and  oacobus  Fredenk  Baden- 
horst in  his  capacity  as  executor  dative 
of  tho  testatrix'  estate, 

2.  On  the  18th  of  November,  1882, 
the  testators,  wno  were  married  dn  com- 
munity, duly  executed  a  joint  will,  by 
which,  before  appointing  theirs^  the 
testators  bequ^atned  to  their  children, 
the  plaintiffs,  and  one  Marta  B&rendiua 
van  der  Vyver,  after  the  death  of  the 
first-dyin^,  their  landed  property,  Klein 
Kivier,  Annex  Klein  Rivier,  Wegwysers 
Rivier,  and  Groot,  alias  Zwartjongeos 
i^ontein,  situated  in  the  district  of 
Riversdale  (and  in  case  of  predeceaee 
of  one  or  more  of  them,  then  their  law- 
ful descendants  by  representation),  with 
this  provision  that  the  survivor  should 
remam  for  life  in  the  full  and  undis- 
turbed possession  and  usufnict  ot  the 
said  land,  and  that  transfer  was  not  to 
be  given  to  tiie  said  children  until  after 
the  death  of  the  survivor.  The  testaitor 
appointed  his  wife  and  ohdidren  by  ^^^ 
nuurriage  his  heii«,  and  the  testatrix 
appointed  the  testator  and  the  said 
children  as  her  heirs  in  all  the  estate 
movable  and  immovable  (save  the  afore- 
said legiacies)  left  at  the  death  of  the 
first  dying.  They  also  declared  that  it 
was  thedr  wish  that  their  whole  joint 
estate  should  recnain  in  possession  of 
the  survivor  until  his  or  her  death.  The 
rest  of  the  will  is  not  material  to  this 
case. 

3.  The  testatrix  died  in  May^  1884, 
without  having  revoked  tho  said  will, 
leaving  six  children — namely,  the  plain- 
tiffs, Anna  Christina,  an  imbecile,  and 
Marta  Barendina,  who  was  married  in 
oomniunitv  to  Isaac  Frederik  Johannes 
van  der  Vyver,  and  died  on  th.e  29th 
January,  1885,    without   leaving  issue. 

4.  At  the  death  of  the  testatrix  the 
ioint  estate,  apart  from  tlie  praele^ated 
land,  consisted  of  bonds  and  promaasory 
notes  due  to  the  estate  of  the  value  ap- 
proximately of  £1.450  (in  which  are  in- 
cluded' certain  debts  due  to  the  estato 
hereinafter  mentioned,  in  amount 
£1,125),  of  movables  and  live-stock  of 
the  value  of  £1.400.  and  of  an  erf,  No. 
4,  Block  K,  in  Riversdale.  The  liabili- 
ties of  the  r^aid  joint  estate  amounted 
approximately  to  £717  10s. 

5.  In  order  not  to  disturb  the  assets 
of  tlie  joint  et^tate,  and  for  the  purpose* 
of  paying  the  said  debts,  it  was  a^eed 
between  the  testator  said  the  plamtiffa 
thwt   they   should    consent   to  the   land 


"CAi*E  TIMES"   LAW  REl>OttTS. 


6S3 


£717  10a.,  and  that  the  testator  would 
thereafter  pay  otf  the  said  mortgage, 
and  thereupon  the  testator,  with  the 
CM>neont  of  the  plaintiffs,  mortgaged  the 
said  land  for  £717  lOs.  by  three  bonds 
of  £413,  107  lOs.,  and  £197.  The  two 
latter  bonds  have  been  paid  off  by  the 
testator,  but  the  bond  of  £415  has  not 
bsen  paad  off,  and  still  remains. 

6.  The  testator  adiated  under  the  said 
will,  accepted  the  benefits  thereunder, 
and  remained  in  pos&eseion  of  tho  joint 
ck^tate  until  his  deaith  on  the  25th 
August,  1904. 

7.  (a)  On  the  9th  of  January,  1886,  the 
plaintiff  J.  A.  van  der  Vyver  and  oJie 
J.  A.  0.  van  der  Vyver  passed  a  bond  in 
favour  of  the  testator  of  £500,  which 
was  canoelled  on  the  23rd  Sopt(>mber, 
1903,  and  on  tho  swine  day  the  proiwrty 
hypothccaUni  was  transferred  to  tho 
testator  for  £500,  but  no  money  was 
paid. 

(c)  On  the  31st  December,  1885,  the 
paintiff  Isaao  J.  van  der  Vyver  passed 
a  bond  for  £300  in  favour  of  the  testa- 
tor, which  was  cancelled  on  the  5th  of 
August,  1899,  on  payment  (thereof  to  the 
testator. 

(d)  On  the  2Sth  January,  1887,  M.  L. 
Saaiman  paraod  a  bond  for  £50  in  favour 
of  the  testator,  which  was  cancelled  on 
the  16th  of  October,  1899,  on  payment 
thereof   to   tho  testator. 

8.  The  amounts  of  £500,  £275,  £300, 
and  £50,  in  the  preceding  paragraph 
mentioned,  were  all  debts  due  to  tne 
joint  estate,  and  not  to  the  testator 
alone,  and  formed  part  thereof.  The 
land  so  transferred  or  land  received  in 
lieu  thereof  is  still  registered  in  the 
testator's  name. 

9.  With  the  moneys  belonging  to  the 
joint  estate  the  testaitor,  after  tne  deatli 
of  the  testatrix,  bought  ecrtain  land 
called  Wegwyser»hook,  for  part  of 
which  he  subsequently  obtained  other 
land. 

10.  The  testator  married  the  first- 
named  defendant  in  community  of  pro- 
perty, and  on  the  8th  of  July,  1892,  they 
exeouted  a  joint  will,  and  thereafter 
certain  codicils.  By  the  said  will  and 
oodieils  tho  testator  purports  to  confirm 
the  praelegacy  of  the  joint  will  of  No- 
vember, 1882,  on  condation  that  ih^ 
legatees  pay  the  mortgage  thereon,  and 
the  testators  purport  to  bequeath  th» 
aforesaid  erf  No.  4,  Block  K,  and  the 
land  transferred  as  set  out  in  paragraph 
7,  su-b-ws-ctioiiB  (a)  and  (b).  and  the  land 
called  Wogwyzershoek  and  the  land  ob- 
tained for  part  thereof,  to  their  childrer 
by  the  second  marriage  and  to  oertai'i 
grandchildren,  and  the  testator  ap- 
pointed em  his  heirs  the  testatrix  and 
hi^  children  by  has  first  and  ham  second 
tnarriages.  and  the  t-^tatrix  appoin^o  1 
as  her  heirs  the  te,«?tator  and  her  chil- 
dren by  a  former  and  by  this  marriage. 
By    the    codicils    also    certain    interests 


have    been   bequeathed   to  the  plaiutifiiB 
or  some  of    them. 

11.  The  testator  at  no  time  has  paid 
or  accounted  to  the  plaintiffs  for  tnedr 
shares  or  any  part  thereof  in  the  oaid 
joint  estate  as  the  heire  of  their 
mother. 

12.  The  plaintiffs  have  elected  to  abide 
by  the  terms  of  the  joint  will  of  No- 
vember, 1882,  and  have  repudiated  and 
gdven  up  aid  surrendered,  as  they  here- 
by again  do,  all  right,  title,  or  inter'3si 
under  the  joint  will  and  codicils  of  thei'- 
father  and  his  second  wife  of  the  Sili 
July,   1892,  and  of  subsequent  dates. 

Id.  The  plaintiffs  contend  that  by  vir- 
tue of  the  joint  will  of  their  parents 
and  the  adiation  and  acceptance  of  bene- 
fits thereunder  by  the  testator,  the  lat 
ter  could  not  make  another  will  alter- 
ing or  revoking  the  provisions  of  tlte 
said  joint  will  so  far  as  the  eaid  prae^ 
legacies  of  the  landed  property  are  con- 
ccriied ;  that  the  debts  of  the  jodnt  es- 
tate—to wit,  £717  lOs.-^-wePB  payable  out 
of  tho  assets  of  the  joint  estaite  and 
were  not  legally  payable  by  the  plain- 
tiffs, and  that  the  bond  of  £413  snould 
be  paid  out  of  the  said  asseta  or  out  of 
the  assets  belonging  to  the  testator; 
that  the  joint  estate  of  their  pareoitB  as 
it  existed  at  the  death  of  the  testatrix 
should  bo  ascertained  and  valued,  and 
that  after  payment  of  the  debts  due  by 
the  joint  estate,  one-half  thereof  should 
be  divided  between  the  testator  and  the 
children  of  the  testators,  that  in  the 
valuation  of  the  said  joint  estate  the 
debt  due  thereto,  as  set  out  in  para- 
graph 7,  and  the  land  transferred  to  the 
testator  in  settlement  thereof  shall  be 
taken  into  account,  and  further  that  the 
land  Wogwyzershoek  and  the  Land  An- 
nex Klein  Kivier,  exchanged  for  a  part 
thereof,  shall  also  be  taken  into  ac- 
count, and  that  the  Erf  No.  4,  Block 
K,  also  forms  part  of  the  joint  estate. 

Wlierefore  the  plaintiffs  claim: 

(a)  An  account  of  the  joint  estate  (ex- 
cluding the  landed  property  praelegated 
of  the  testators  as  it  existed  at  the 
death  of  their  mother  on  the  30th  of 
May.  1884.  and  that  in  the  said  account 
the  Erf  No.  4,  Block  K,  be  included, 
and  that  the  landed  property  transferred 
to  the  testator  on  tne  23rd  September, 
1903,  and  2Srd  March,  1887,  as  afore- 
said, and  the  land  received  io  lieu 
thereof,  and  the  two  sums  of  £300  and 
£50  received  by  the  testator,  as  alleged 
in  paragraph  7  of  the  declaration,  be  in- 
cluded therein,  and  that  all  property, 
movable  and  immovable,  and  the  pro> 
ceeds  thereof,  in  partaoular  the  property 
Wegwyzershoek  and  the  land  obtained 
by  the  testator  for  part  of  tho  said  pro- 
perty bo  included  in  such  account. 

(h)  That  the  bond  of  £413  shall  be 
paid  off  out  of  the  assets  of  the  said 
joint  estate  or  out  of  the  assets  of  the 
testator.  • 

(c)  That  the  amount  of  the  bonds  paid 
off— namely,    £197,    £107    10s.— ehalf  be 


634 


f< 


CAPS  TIMES*'  LAW  BEPOBTO. 


t&koii  into  account  as  a  debt  of  tho  said 
joint  eatwte. 

(d)  That  after  deduction  of  the  debts 
due  bv  the  said  estate  the  baJanoo 
thereof  shall  be  distributed  in  te>rm6  of 
the  said  joint  will  of  November,  1882 — 
namely,  one-half  to  be  divided  into 
seven  parte,  and  each  of  the  plaintiffs 
to  be  paid  one  such  part. 

(e)  That  the  land  specially  praelegated 
to  the  plaintiffs  bv  the  said  joint  will 
shall  be  transferred  to  them  in  terms  of 
the  said  joint  will  and  without  any  en- 
cumbranoee  or  burdens  other  than  those 
imposed  by  the  said  will. 

(f)  Alternative  relief. 

(g)  Costs  out  of  the  estate  af  the  late 
Isaac  Johannes  van  cter  Vyver,  the  tes- 
tator. 

To      this      declaration    ihe     plaintiff 
pleaded  in  the  following  terms : 
Before   pleading    to     the     merits     of 

Slaintiffs'   claim    the    first-named   defen- 
ant  pileads  in  abatement  as  follows: 

1.  Certain  parties  mentioned  in  para- 
graph 3  of  the  declaration,  to  wit, 
Anna  Christina  van  der  Vyver,  an  im- 
becile, and  Isaac  Frederik  Johaimes  van 
der  Vyver,  formerly  married  to  Marta 
Barendina  (now  deceased),  are  inter- 
ested in  this  suit  and  should  be  before 
the  Court. 

2.  One  Joseph  Johannes  van  der 
Vyver,  minor  son  of  the  late  Isaac  Jo- 
hannes van  der  Vjver  (the  testator)  by 
his  second  marraig^e  with  the  first- 
named  defendant,  18  also  interested  in 
this  suit,  and  should  be  joined  in  the 
said   action. 

Wherefore  the  defendant  prays  that 
the  said  parties  be  joined  by  themselves 
or  by  a  curator  ad  litem  or  c^ardian,  as 
the  case  may  be,  or  that  the  said  suit 
be  dismissed   with  costs. 

As  for  a  plea  to  the  declaration  in 
case  the  above  plea  be  overruled,  but 
not  otherwise,    the  defendants  say : 

1.  She  admits  paragraphs  1,  2,  and  3 
thereof,  save  that  she  says  there  was 
no  *•  massing "  of  the  whole  of  the 
joint  estate,  and  save  that  she  craves 
leave  to  refer  to  the  will  when  pro- 
duced  for  the  terms  thereof. 

2.  As  to  paragraph  4  thereof,  she  ad- 
mits that  after  the  testatrix's  death 
there  were  in  the  joint  estate  bonds  and 

,  promissory  notes  due  to  the  said  estate, 
and  that  there  was  also  movable  pro- 
perty, but  she  does  not  admit  that  the 
values  thereof  were  £1,450  and  £1,4(X). 
as  alleged:  The  Erf  No.  4,  Block  *' B  " 
in  Riveradale,  was  not  specially  bo- 
ciuoathed  by  the  said  will :  the  amount 
of  £717  lOr*.  ronresonted  the  liability  of 
certain  of  the  neirs  to  tho  testator,  on 
account  of  tho  debts  of  the  said  hoirs 
taJcen  over  by  hdm. 

5.  As  to  para^ra{>h  6  thereof  the  de- 
fendant says  that  in  order  to  pay  the 
said  debts,  the  plaintiffs  agreed  to  the 
testator  mortgaging  t!ie  land  praelegated 
as  aforesaid,   for  the  said   sum  of   £717 


lOs.  by  three  bonds  of  £413^  £107  10b., 
and  £197:  the  testator  dunng  his  life- 
time paid  out  his  half -share  of  the  joint 
estate  and  child's  portion  bequeathed 
to  him  and  out  of  the  usufruct  so  be- 
queathed, the  sums  of  £167  10s.  and 
£197:  but  the  said  sum  of  £413  was  not 
paid  by  him  and  remains  a  liability  of 
the  legatees. 

6.  She  admits  paragraphs  6  and  7 
thereof,  subject  to  what  was  stated  above 
as  to  there  being  no  **  massing  "of  the 
whole  joint  estate:  under  the  siid  will 
the  testator  was  entitled  to  one-half  of 
the  joint  estate  and  to  a  child's  por- 
tion. 

7.  As  to  paragraph  8  th^of,  she  de- 
nies that  the  sums  therein  mentioned 
(save  the  c^um  of  £275)  were  delfts  due 
to  the  joint  estate  or  formed  part 
thereof:  the  land  acquired  by  the  tes- 
tator and  referred  to  in  paragraph  7 
thereof  was  acquired  by  him  subsequent 
to  the  testatrix's  death  and  not  out  of 
any  assets  belonging  to  plaintaffs,  and 
the  plaintiffs  have  no  claim  thereto:  she 
admits  that  the  land  is  still  registered 
in  the  tet^tator'8  name^  and  says  that  he 
was  entitled  fto  deal  with  it  as  he  did  by 
his  second  will. 

8.  She  denies  panagrapih  9  thereof, 
and  says  that  tuie  testator  raised  the 
money  to  pay  the  purchase  price  of  the 
s«aid  land  (Wogwyzcrshoek)  to  Gkjvern- 
ment,  and  thereafter  repaid  it  out  of 
his  share  of  the  joint  estate. 

9.  She  admits  paragraph  10  thereof, 
save  that  she  craves  leave  to  refer  to 
the  will  and  codicils  for  the  terms  there- 
of. 

10.  As  to  paragraph  11  thereof,  she 
says  that  the  testator  in  or  about  July 
31st,  1885.  did  frame  and  file  with  the 
Master  of  this  Honourable  Court  a  liqui> 
dation  account,  to  which  she  craves 
leave  to  refer: — The  said  account  was 
never  disputed  by  the  heirs  or  legatees 
under  the  will,  and  in  or  about  February 
1st,  1889,  the  le^;aitees  consented  to  the 
testator  mortgaging  the  property  for  the 
payment  of  the  aforesaid  debts,  and  the 
detendant  submits  that  the  plaintiffs 
are  not  now  entitled  to  dispute  the  said 
account. 

11.  As  to  paragraph  12  thereof,  she 
says  that  no  formal  deed  of  repudiation 
has  to  her  knowledge  'been  entered  into 
by  the  plaintiffs,  and  she  has  had  no 
notice  of  the  same. 

12.  As  to  paragraph  13  theireof,  she 
says  that  the  testator  has  iiot  by  sub- 
sequent testamcnitary  disposition  altered 
or  revoked  the  first  will,  so  far  as  the 
said  proelogacios  are  concerned.  The 
sum  of  £717  10s.,  whoroof  tho  amount 
of  £413  mentioned  is  a  part,  was  and 
is  a  debt  of  the  jila  in  tiffs;  tho  said  f-^um 
of  £717  lOs.  having  been  reduced  by  pay- 
ments of  £304  10s.  made  by  tho  testator 
for  the  account  of  the  plaintiffs,  leav- 
ing a  sum, of  £413  still  to  be  paid  by 
the  legatees,  as  provided  in  the  second 
will,  to  which  detendant  craves  leave  to 


«f 


CAPS  TIMES"  LAW  REPORTS. 


635 


refer:     Save  aa  above,  she  denies  para^ 
graphs  11,  12,  and  13. 

Wherefore  she  prays  that  pIain)tifF»' 
cladms  may  be  diamiaeed  with  oosta. 

Sir  H.  Juta,  K.G.  (with  him  Mr. 
Roux-,  for  plaintiffs.  Mr.  Scarle,  K.C. 
(with  him  Mr.  Van  Z^l),  for  the  first 
defendant.  Mr.  Du  Toit  for  the  second 
defendant. 

Sir    H.    Juta    applied    for    leave    to 
amend  the  declaration. 
This  was  granted. 

Mr.  Du  Toit  intimated  that,  on  be- 
half of  the  second  defendant,  his  in- 
structions were  not  to  participate  in  the 
proceedings,  but  to  abide  the  j'udgment 
of  the  Court. 

Jan  Abraham  Chiistiaan  van  der  Vy- 
ver  (one  of  the  plaintiffs)  said  that  he 
was  nwrried  in  1868  to  one  of  the 
daughters  of  old  Mr.  Van  der  Vyver. 
His  niother-in-law  died  in  1884.  At 
that  time  there  were  seventy  cattle  in 
the  joint  estate.  Cattle  were  then  sell- 
ing at  £6  each.  There  were  600  full- 
grown  sheep  and  150  small  sheep.  Full- 
grown  sheep  were  making  ISs.  on  the 
average;  the  lambs  6s.  or  7s.  There 
were  also  40  goats,  the  average  price  of 
which  would  be  10b.  Mr.  Van  der 
Vyver  also  had  ostriches.  Ostriches  were 
then  dear,  and  were  "booming."  He 
had  60  ostriches,  20  chicks,  and  two 
pairs  of  breeding  birds.  Chicks 
a  month  old  were  then  fetching 
£10  or  £11.  His  father-in-law  sold 
chickens  to  Van  Wyks  at  £10.  A  pludc- 
ing  of  three  cock  birds  at  that  time 
made  about  105.  He  estimated  the  value 
of  the  60  ostriches  at  that  time  at  £30 
each.  As  to  the  breeding  birds,  his 
father-in-law  would  not  ihave  sold  them 
at  £100.  He  had  heard  of  breeding 
birds  making  £500  the  pair.  Witness 
would  have  given  £200  for  "Old  Sol 
and  his  wife^  and  £150  for  the  other 
pair.  There  were  six  horses — three 
DMires  worth  £7  lOs.  each  and  three 
horses  worth  £20.  There  were  also 
oarts  and  wagons  and  other  movables. 

Cross-examined  b;^  Mr.  Searle:  For 
seven  years  after  his  first  wife's  death 
the  testator  carried  on  farming  opera- 
tions suooesfifidiy.  In  1880.  however, 
things  were  not  ^oing  so  well.  The  tes- 
tator wa0  a  particular^  man  in  his  busi- 
ness transactions  relating  to  promissory 
notes  and  so  forth. 

Willem  van  Wyk,  examined,  stated  that 
until  about  10  years  ago  he  lived  at  Kleyn 
River.  Witness  was  well  acquainted 
with  old  Mr.  Van  der  Vyver  and  his 
wife,  and  knew  his  stock  fairly  well. 
Witnes.s  agreed  with  the  evidence  given 
by  the  Van  der  Vyvors  on  that  point. 
Witness  remembered  when  Mrs.  Van  der 
Vyver  died.  He  owed  the  estate  money 
for  ostriches.  He  paid  the  amount  duo 
(£100)  shortly  after  the  death  of  Mrs. 
Van  der  Vyver.  Witness  gave  eight 
oxen,  four  cows  and  a  horse  in  settle- 
ment of  the  account. 


In  cross-examination  by  Mr.  Searle, 
witness  said  he  counted  Mr.  Van  der 
Vyver's  stock,  because  he  used  to  shear 
for  him.  Witness  could  not  give  the 
exact  number  of  stock  on  the  farm  for 
any  specific  year,  but  there  were  gener- 
ally about  6()0  sheep.  The  stock  owned 
by  the  sons  used  to  run  with  that  owned 
by  the  father;  but  the  sons  each  had 
separate  kraals.  The  sons  had  no  small 
stock.  There  were  three  sons  living  on 
the  farm.  They  all  had  cattle.  The 
cattle  and  horses  were  taken  in  settle- 
ment of  the  account  for  the  ostriches, 
because  witness  had  not  the  ready 
money. 

Re-examined  by  Sir  H.  Juta:  The 
stock  belonging  ito  the  whole  family  ran 
together  during  the  day,  but  when 
kraaled  each  lot  was  separate. 

Isaac  Frederick  van  der  Vyver,  farmer, 
stated  that  he  married  a  daughter  of 
Mr.  Van  der  Vyver  in  August,  1884.  Be- 
fore witness  married  he  lived  at  Kleyn 
River.  Witness  went  to  live  with  his 
father-in-law  after  the  marriage.  Wit- 
ness agreed  with  the  evidence  given  by 
the  other  Van  der  Vyvers.  When  Mrs. 
Van  der  Vyver  died  witness  owed  the 
estate  nothing.  W^itness's  wife  died  in 
January,  1895.  The  father-in-law  paid 
the  doctor's  fees.  Witness  recollected 
in  1889  his  father-in-law  wanted  to  mort- 
gage a  portion  of  the  farm,  and  asked 
the  sanction  of  the  children  to  such  a 
course.  He  said  he  did  not  want  to 
sell  his  stock,  although  there  was  plenty 
on  the  land.  The  house  on  the  place 
mortfjraged  was  worth  about  £100.  A 
farmer  named  Simon  was  also  indebted 
to  the  estate.  Ho  knew  this  because 
Simon  told  him  so,  and  gave  him  money 
to  pay  the  interest. 

Cross-examined  by  Mr.  Searle:  The 
amount  Simon  gave  witness  to  hand  to 
his  father-in-law  was  £50.  Mrs.  Van 
der  Vyver  was  at  that  time  quite  well. 
Mr.  Van  der  Vyver  paid  a  bill  of 
£33  for  witness.  Witness  never  paid 
it  back. 

Sir  H.  Juta  closed  his  case. 

For  the  defence,  Mr.  Reitz,  of  the  firm 
of  Reitz  and  Versfeld,  stated  he  knew 
old  Mr.  Van  der  Vyver.  In  1889  Mr. 
Van  der  Vyver  waa  unable  to  meet  some 
bills  which  he  owed  himself,  and  some 
for  which  he  went  security  for  his  family. 
Witness  told  him  the  accounts  had  to 
be  paid,  and  advised  him  to  mortgage 
the  property,  and  pay  what  was  owing 
to  the  estate.  That  was  agreed  to.  The 
li(luidation  account  of  that  time  ap- 
peared to  be  erroneous.  Witness  pointed 
out  to  Mr.  Van  dor  Vyver  that  there 
would  have  to  be  a  settlement  with 
the  estate.  They  did  not  take  up  the 
position  that  they  had  settled  because 
of  the  bond  they  had  passed.  W^itness 
made  it  clear  to  the  parties  that  by 
signing  the  consent  they  were  settling 
their  own  debts. 


636 


"CAPE  TIMES"   LAW  AePORTS. 


In  cross -examination  witno^ft  saiti  .  it 
was  difficult  to  remember  a  conversation 
that   occurred    21   years   ago. 

Josina  Fredrika  Petronclia  van  der 
Vyver,  tbo  principal  defendant  and  the 
executrix  testamentary  of  the  es- 
tate of  the  late  Isaac  Johannes  van 
der  Vyver,  stated  when  she  was  married 
there  were  about  450  sheep,  40  head 
of  mixed  cattle,  5  horses,  and  about  50 
ostriches  on  the  farm.  There  were 
also  cattle  belonging  to  the  children  on 
the  farm.  Witness  knew  nothing  of 
the  liquidation  account  of  Mr.  Van  der 
Vyver's  first  wife.  After  witness  mar- 
ried the  farming  was  continued,  but  it 
wcn't  back  during  the  following  years. 
Her  husband  was  getting  feeble,  and 
his  eyesight  was  beginning  to  fail  him. 
He  was  an  old  man.  He  never  sold 
any  large  quantities  of  stock.  Witness 
remembered  her  husband  making  the  co- 
dicil to  his  will  shortly  before  he  died. 
The  two  **  Johns  "  were  consulted  as  to 
how  the  estate  should  be  divided.  Wit- 
ness took  an  inventory  of  the  things 
i:i  the  second  estate.  The  furniture  bo- 
longed  to  witnees.  All  the  things  were 
sold  except  75  sheep,  2  cows  and  calves, 
a  cart  and  horses,  and  the  furniture,  all 
of  which  was  bequeathed  to  witness. 

In  cross-examination  witness  said  al- 
though things  went  bad  on  the  farm,  her 
husband  was  able  to  pay  his  way  by 
selling  wool  and  ostrich  feathers.  SSomc 
of  the  stock  died  of  old  age.  He  sold 
none. 

Mr.  Searle  clneed  his  case. 

PoiUa  (September  1st).  Counsel  hav- 
ing been   heard   in   argument: 

Cur.  Adv.    Vult. 

PotUa  (September  4th). 

Maasdorp,  J. :  On  the  18th  day 
of  November,  1882,  Issiao  van  dc^r 
V^ver  and  his  wife  made  a  joint 
will  by  which  they  bequeathed  to  their 
daughter  Anna  the  sum  of  £1,000  after 
the  death  of  the  survivor.  Of  this  she 
was  only  to  enjoy  the  interest  during 
her  lifetime  and  after  her  death  the 
said  sum  of  £1,000  was  to  devolve  on 
their  five  children  or  their  la/wful 
descendants  by  representation  per 
stirpes.  They  bequeathed,  after  the 
death  of  the  first  dying,  to  their  five 
children  certain  land,  Ujjon  this  under- 
standing :  thait  the  survivor  shall  remain 
in  possession  and  enijo^y  the  usufruct 
for  his  or  her  life,  and  the  said  children 
shall  only  receive  transfer  after  the 
divath  of  the  survivor.  And  it  was 
daroc't<»d  that  whoii  that  time  arrived 
tho  land  should  l)e  placcni  undor  mort- 
gapo.  Each  of  the  five  heirs  was  to 
mortgage  his  or  her  share  to  the  said 
Anna  for  the  sum  of  £200,  to  bear  in- 
t.er<>et  at  6  p<»r  cent.,  which  was  to  ho 
pe^id  Iialf-yo«irly  to  her.  Tliern  the  tes- 
tator apiX)ints  as  his  heirs  the  testatrix 
'o-jether  with  their  children,  and  the 
testatrix  appoints  as  her   heirs  the   tes- 


lutot  together  with  the  children.  Ihe 
testatrix  died  and  the  testator  married 
again.  He  subsequently  m«de  a  will 
confirming  the  bequest  ot  the  land,  but 
imposing  certain  ooinditions  not  appear- 
ing in  the  eariior  will.  It  is  admitted 
tlMtt  in  the  case  of  the  £1,000  be- 
queathed to  Anna  there  is  such  a  mak- 
ing of  t.ie  fund  that  the  testator  after 
adiation  could  not  alter  the  disposition, 
but  it  is  contended  that  it  is  not  so  in 
respect  of  k^ie  land  bequeathed  to  the 
children,  majnly  on  the  ground  thai  by 
the  terms  of  me  will  the  latter  bequest 
takes  effect  u^n  the  death  of  the  first 
dying,  and  not  upon  tlie  death  of  the 
survivor.  But,  in  my  opinion,  the  will 
must  be  construed  as  a  whole,  and  not 
with  regard  to  any  single  clause  there- 
of, and  if  that  is  done,  it  seems  clear 
that  the  intention  of  Ihe  testators  with 
respect  to  the  £1,000  cannot  be  carried 
into  effect  without  taking  the  laud  as 
consolidated  for  the  purposes  mentioned 
in  the  will.  It  is  clear  that  it  was  the 
intention  of  the  testators  that  the  be- 
quest of  all  the  land  should  take  effect 
after  the  death  of  the  survivor,  when 
transfer  should  be  given,  and  the  neces- 
sary mortgages^  should  be  executed.  In 
my  opinion,  all  the  conditions  exist 
which  are  necessary  to  prevent  the 
testator,  after  adiation,  from  altering 
by  subsequent  will  the  bequest  of  this 
property.  As  to  the  rest  of  the  pro- 
perty, tnere  was  no  massing  of  the  joint 
estate,  but  it  was  provided  that  during 
the  lifetime  of  the  testator  he  was  to 
enjov  the  usufruct  thereof.  Uipon  his 
deatn  the  heirs  of  the  joint  estate  be- 
oame  entitled  to  half  the  property  be- 
longing thereto.  The  Court  has  now 
to  ascertain  what  that  half  consists  of. 
Upon  the  death  of  his  first  wife,  the 
testator  lodged  an  inventory  of  the 
property,  which  is  so  obviously  and  ad- 
mittedly insufficient  and  incorrect  that 
it  must  be  set  aside  at  once,  as  of  no 
assistance  in  arriving  at  the  condition 
of  the  estate  at  the  time  it  was  made. 
It  was  argued  at  the  trial  that  the 
conduct  of  the  testator  in  framing  this 
inventory  was  such  that  he  beoame  liable 
to  the  penalties  provided  under  section 
15  of  Ordinance  104  of  1833,  but  that 
issue  is  not  raised  in  the  pleadings,  and 
a  question  of  forfeiture  cannot  be  raised 
in  this  incidental  manner.  Fc^  the  pur- 
|.ose  of  making  up  an  account  of  tiio 
joint  estate  of  the  testator  and  his  first 
wife,  certain  questions  on  disputed 
facts  have  Ix^n  raised  for  the  decision 
of  the  Court  in  regard  to  certain  speci- 
fied items.  The  largest  item  is  that  of 
a  bond  on  the  bequeathed  land.  On 
the  one  hand,  it  is  said  to  be  a  dobt 
of  the  joint  e>tate ;  and  on  the  other, 
to  be  the  accumulated  debts  of  the  plain- 
tiffs in  this  rase.  The  evidence  of 
Reitz  and  Versveld  u{X)n  this  point  is 
by  no  means  conclusive.  It  may  be 
that  at  some  time  the  debt  may  liave 
been  spoken  of  as    dobta     of  the    heirs, 


•CAPE  TIMES''  LAW  REPOftTS. 


637 


because  no  doubt  the  heirs  did 
at  one  time  owe  certain  amounts, 
but  these  debts  were  taken  over  by  the 
testator  before  the  death  of  his  wife, 
and  there  is  evidence  of  settlements 
made  by  the  heirs  from  time  bo  time, 
leaving  the  debts  as  a  burden  on  the 
estate.  The  settlementa  by  the  heirs 
are  matters  to  be  considered  when  their 
respective  debts  are  dealt  with.  The 
importance  of  the  power  oi  attorney 
and  con«ei>t  paper  for  raising  the  mort- 
gages which  were  execibted  by  the  heira 
are  very  great  in  deciding  the  point 
raised  in  respect  of  the  bond  for  £413. 
They  were  executed  before  Mr.  Vers- 
veld,  and  in  them  the  debt  is  described 
as  a  debt  of  the  joint  egtate,  and  u^n 
the  evidence  in  the  case  I  oome  to  the 
conclusion  that  t^  debt  must  be  paid 
o£f  out  of  the  funds  of  the  joint  estate 
before  a  division  can  take  place.  It 
is  admitted  that  the  sum  oi  £275  is  an 
asset  of  the  joint  estate.  The  plaintiffs 
further  claim  that  three  amounts  of 
£500,  £300,  and  £50  should  be  brought 
up  as  aasets  of  the  estate.  It  is  alleged 
that  the  sum  of  £500  waa  a  debt  due 
to  the  estate  by  J.  A.  and  J.  A.  C.  van 
der  Vyver,  and  that  it  was  settled  by 
land  transferred  to  the  teetaitor  by 
them.  It  is  quite  olear  that  the  greater 
portion  of  the  £500  was  owang  in 
respect  of  debts  taken  over  by  their 
father  which  they  owed  to  others,  and 
formed  part  of  the  indebtedness  of  the 
heirs  spoken  of  by  Reitz  and  Vensveld. 
Only  with  regard  to  £191  is  it  clear 
that  it  waa  due  to  the  estaite  for  os- 
triches purchased  by  J.  A.  C.  van  der 
Vyver.  That  sum  of  £191  muat  be 
brought  up  as  an  asset  in  the  estate. 
With  regard  to  ihe  deibte  of  J.  A.  and 
J.  A.  C.  van  der  Vyver,  I  find  that 
they  were  duly  settled,  although  it  ap- 
pears that  some  promiesory  notes  of 
theirs  are  BtiW  amongst  the  papers  of 
the  estate.  As  to  the  £300  debt  of 
Isaac,  which  was  also  paid,  the  evi- 
dence is  not  olear  whether  this  was* 
owing  to  the  estate,  for  consideration 
reoeived  frqai  the  estate,  or  for  moneys 
paid  by  the  testator  on  behalf  of  Isaac, 
and  it  cannot  be  declsired  to  be  an  asset 
in  the  jorint  estate.  Coming  now  to 
the  value  oi  the  movables  in  the 
estate,  it  appears  that  they  con- 
sisted, at  the  death  of  the  testator's 
wife,  of  etock,  voi.-.lcs,  and  furniture. 
It  is  quite  clear  upon  the  authorities 
cited  at  the  bar,  that  the  testator  as 
usufructiiry  was  bound  to  keep  up  the 
number  of  the  flocks  and  herds  out  of 
the  increase  yielded  from  time  to  timci 
It  is  only  m  respect  of  the  ostriches  that 
any  difficulty  arises  on  this  score,  as 
regards  the  remainder  of  the  stock 
from  which  any  increase  could  be  ex- 
pect<»d,  I  am  iK)t  satisfied  that  any  great 
diminution  has  taken  place.  And  as 
to  the  ostriches,  no  practical  benefit  can 
arise  from  going  very  narrowly  into 
the  matter,  considering     the     condition 


of  the  estate.  There  is  no  doubt  that 
the  value  of  the  articles  should  be 
taken  at  what  it  stood  on  the  death  of 
the  testator,  and  not  at  the  time  when 
his  wife  died.  The  goods  sold  in  the 
estate  of  the  testator  realised  about 
iX),  and  upon  the  evidence,  I  am 
prepared  to  take  it  that  such  was 
about  the  value  of  the  joint  estate  at 
the  time  of  his  wife's  death.  And 
practically  it  cannot  benefit  the  plain- 
tiffs to  place  it  higher.  The  evidence 
on  this  part  of  the  case  is  so  vague  that 
no  precise  result  can  be  arrived  at.  I 
may  mention  that  two  of  the  three 
bonds  over  the  bequeathed  property 
were  paid  off  by  the  testator,  but  they 
were  paid  out  ol  money  payable  by  him 
to  the  heirs,  as  the  purchase  price  of 
the  opstal,  and  cannot  be  brought  up 
to  the  credit  of  the  testator's  separate 
estate.  The  result  is  that  it  is  declared 
that  the  legatees  are  entitled  to  the 
farms  free  of  all  mortgages,  and  the 
bond  of  £413  must  be  paid  out  of  the 
joint  estate.  The  sums  above  men- 
tioned of  £275  and  £191  must  be  ac- 
counted fur  by  the  testator's  separate 
estate  to  the  joint  estate.  For  the 
purposes  of  an  account,  the  movables  in 
the  joint  estate  are  declared  to  be  of  the 
value  of  £766.  The  defendants  are 
ordered  in  bringing  up  their  accounts  to 
adopt  the  findings  of  the  Court  upon 
the  above  points.  I  may  mention  that 
I  have  found  that  two  bonds  were  paid 
off  out  of  the  purchase  price  of  the 
opstaJ,  in  the  event  of  the  heirs  being 
unable  to  fulfil  their  part  of  the  agree- 
ment, they  would  be  liable  to  account 
to  the  testator's  estate  for  the  amount 
of  the  bonds.  But  while  I  give  that 
as  my  opinion,  I  cannot  give  a  decision 
upon  the  point,  because  the  question  is 
not  specifically  rai.sed.  The  first  defen 
dant,  in  her  capacity  as  executrix,  is 
ordered  to  pay  the  costs  of  the  plaintiffs. 
No  order  is  made  as  to  the  costs  of  th* 
second   defendant. 

[Plaintiffs'  Attorneys,  Michpu  and  De 
Villiers:  Defendants'  Attorneys.  Tred- 
gold,  Mclntyro  and  Bisset.] 


SECOND   DIVISION. 


[Before  the  Hon.  Mr.  JuHtice  Hoplet.] 


STONE  y.  MCKENZIE. 


f       1905. 
i  Aug.  9th. 


Brick-making  machinerv  —  Mis- 
representation — Article  sup- 
plied for  a  special  purpose. 

8.  had  «vj)pUtd  certain  hrick- 
making     machinery    to     i/., 


638 


»4 


CAP£  TIMES''   lAW  REPORTS. 


guaranteed  to  be  capable  of 
doing  certain  work.  M,  tented 
the  mach'nie,  but  found  that  it 
could  not  do  the  work  guaraii' 
teed.  Plaintiff  now  sticd  for 
the  jn'tce  of  the  machinery  and 
cost  of  its  erection. 

Held,  that  he  loas  not  ei titled 
to  recover. 


This  was  an  action  brought  by  Wil- 
liam Stoiie,  of  Cape  Town,  again^it  A. 
R.  McKeuzie.  of  Cape  Town,  to  recover 
£350  in  respect  of  certain  brick- 
making  macninery  supplied  to  the  de- 
fendant, and  £20  for  erecting  it. 

The  declaration  set  out  that  about 
19th  May,  1904  the  plaintiff  entered  into 
a  contract  of  sale  with  the  defendant, 
by  which  the  defendant  was  to  pay  to 
the  plaintiff  £200  for  certain  brick- 
making  machinery,  and  £20  for  erect- 
ing it  on  its  being  tested  to  work  ac- 
cording to  the  repreaentations  of  the 
plaintiff  on  the  defendant's  field,  and  a 
further  £150  after  a  seaaon'a  satisfactory 
work.  If  the  machine  was  not  a  sue- 
ce^,  the  plaintiff  was  to  remove  it  at 
his  own  expense.  The  machinery  had 
been  duly  erected,  tested,  and  found 
to  work  satisfactorily  during  the  season, 
and  plaintiff  claimed  £350  and  £20  for 
erectmg   it,    with  costs. 

The  plea  admitted  the  erection  of  the 
machinery,  but  denied  that  the 
machinery  was  tested  and  found  to  work 
satisfactorily,  or  proved  itself  to  be 
what  the  plaintiff  represented  it  to  bo 
during  one  season's  work.  The  plamtiff 
well  knew  the  nature  of  the  clay  on  the 
defendant's  field,  and  represented  the 
machine  to  be  capable  o!  turning  out 
from  ten  to  fifteen  thousand  g<Jod 
bricks  per  diem,  but  it  was  only  capable 
of  turning  out  eisrht  thousand  indif- 
ferent bricks  per  diem.  The  machinery 
could  not  properly  crush  the  clay,  and 
the  wire-cut  bricks  were  bad.  The 
machinery  frequently  broke  down.  Sub- 
ject to  the  claim  in  reconvention,  the 
defendant  admitted  that  the  plain^iff 
was  entitled  to  claim  the  sum  of  £20. 
In  reconvention.  £96  was  claimed  for 
money  advanced,  and  £39  6s.  6d.,  being 
expenses  incurred  in  connection  with 
the  ma£Jhinery.  Defendant  further 
claimed  an  order  compelling  the  plain- 
tiff to  remove  the  said  machinery  at  his 
own  expense?  and  risk,  and  a  cancella- 
tion of  the  agreement. 

The  plaintiff  in  his  replication  ad- 
mitted that  the  machine  was  not  n 
crushing  machine,  and  said  that  the  de- 
fendant was  well  awaro  of  this.  Ho 
tendered  certain  items  for  work  and  la- 
bour done  claimed  by  the  defendant,  to 
be  set  off   against  his  claim. 

Mr.  Upington  for  plaintiff.  Mr. 
Grutsobe  far  defendant. 


Wm.  Stone,  plaintiff  in  the  case,  said 
he  had  twelve  years'  experience  of 
practical  bridunalcing,  which  he  was 
carrying  on  a  littl©  before  April,  1904. 
For  the  purpose  of  that  business,  be 
imported  a  "  Murray's  Patent  No.  1 
Machine,"  and  had  purchased  from  the 
Harbour  Board  one  of  their  traction- 
engines  to  work  the  machine.  He  had 
to  give  up  the  work  at  Mount  Prospect 
on  account  of  the  difficulty  in  getting 
coal  up,  and  he  was  anxious  to  dispose 
of  the  machinery.  He  paid  for  the 
machine  £160.  it  cost  him  £25  to  get  it 
erected,  and  £200  cash  for  the^  engine. 
The  machine  worked  satisfactorily  while 
he  had  it — about  three  months.  Wit- 
ness told  McKenzio  the  machine  would 
turn  out  from  ten  to  fifteen  thousand 
bricks  per  diem  on  his  brickfield.  The 
defendant  sent  a  couple  of  bags  of  clay 
up  to  the  machine  at  Mount  Prospect, 
and  the  rough  brick.s  which  were  turned 
out  from  the  rough  clav  were  not  ob- 
jected to  by  the  defendant.  Through 
the  carelessness  of  the  driver,  the  cog- 
wheel broke,  and  the  defendant  ordered 
a  new  one,  but  there  was  never  any 
question  of  the  plaintiff  paying  for  it. 
The  defendant  paid  the  foundry  for  the 
cog-wheels.  Witness      erected      the 

machine,  and  put  it  in  good  working 
order.  Complaint  was  made  to  him 
about  the  roughness  of  the  bricks,  but 
not  about  the  shape.  The  roughness 
was  the  result  of  the  rough  clay,  and 
it  w*8  pointed  out  that  a  crushing  pan 
would  obviate  that.  When  8,000  bncks 
a  day  weie  turned  out,  it  was  when 
the  defendant  was  burning  dust;  but 
when  the  fuel  was  good.  12,000  were 
turned  out.  The  machine  had  often 
to  be  stopped  on  account  of  a  shortage 
of  labour.  At  the  time  of  the  agree- 
ment with  the  defendant,  there  were 
other  offers  for  the  machine.  On 
several  occasions  he  asked  the  defendant 
for  the  money,  and  in  May  he  issued 
summons.  Witness  had  nothung  to  do 
with  the  erection  of  a  Scotch  Kim  on 
the  defendant's  field.  The  kiln  was 
for  burning  the  bricks  that  the  defendant 

disposed  of.  ,         /-.        l        tt 

Cross-examined  by  Mr.  Gut^che:  lie 
thoroughly  knew  the  nature  of  the  clay 
on  the  defendant's  field.  The  brick 
turned  out  by  the  machine  was  a  good 
brick ;  the  roughness  was  due  to  the 
clay.  Tlie  defendant  was  told  if  he 
wanted  to  have  a  fine  brick  he  would 
have  to  purchase  a  pan.  The  cogwheel 
was  ordered  by  witness  for  the  defend- 
ant. He  denied  that  he  was  told  that 
the  bricks  wore  unsatisfactory.  He  was 
not  stopped     in  December. 

Re-examined  by  Mr.  Upington :  Mr. 
McKenzie's  men  inspected  the  traction 
engine. 

it  would  have  been  futile  for  him  to 
have  used  his  own  clay  aii'Stead  of  Mc- 
KtMizio's  in  the  test,  as  the  materials 
wore  very  different,  and  ©acfily  recognis- 
able. 


«( 


OAPB  TIMES"  LAW  REPORTS. 


039 


John  Peanon,  manager  of  the  Kloof 
Pottery  Works,  said,  ne  had  a  life  ex- 
perience of  fanckmaking  machinery.  He 
knew  the  machine  in  question,  and  in 
his  opinion  there  was  not  a  better  ma- 
chine as  a  briokmaking  machine  on  the 
market.  Some  eighteen  months  ago 
witnees  was  desirous  of  purchasing  the 
machine,  but  the  plaintiff  had  already 
entered  into  an  agreement  with  the  de- 
fendant. Witness  would  have  been  pre- 
pared to  give  £350  for  the  machine  and 
en^^ine.  There  were  about  200,000 
bnoks  on  the  defendants'  farm,  and  as 
to  the  quality,  ho  put  them  down  as  a 
first-class  second.  The  rough  brick  took 
the  plaster  better  than  the  smooth 
brick.  Witness  had  also  inspected  the 
machine,  and  the  traction  engine,  and 
by  putting  a  cogwheel  in  the  machinery 
would  be  in  working  order. 

Cross-examined :  The  clay  on  McKen- 
zie's  field  would  make  a  good  brick  if 
well  crushed. 

Samuel  Holt,  a  brickmaker,  of  35 
years'  experience,  said  that  the  Murray 
machine  was  the  best  machine  on  the 
market.  On  March  4  he  saw  the  ma- 
chine in  question  working  on  MoKen- 
zie's  field.  He  stayed  there  15  minutes, 
and  during  that  time  it  made  1,500 
bricks.  It  was  then  stopped,  because 
there  were  not  enoug'h  people  to  take 
the  bricks  away.  The  bncks  made  were 
like  the  one  produced,  which  was  a  ffood 
"  second."  He  had  managed  a  place 
where  the  bricks  made  had  been  too 
smooth,  and  for  that  reason  had  been 
rejected,  as  they  would  not  take  the 
planter.  To  make  a  smooth  brick  in 
this  clay,  a  orushin|r  appliance  was 
neoessary.  Any  brickmaker  would  know 
that  such  was  necessary.  There  was  no 
machine  in  existence  that  could  make  a 
smooth  brick  from  the  clay  to  be  found 
at  McKenzie's  field 

Mr.  Upin^ton  closed  hie  case. 

Andrew  Ritchie  McKenzie,  the  defend- 
ant said  that  in  March  last  the  plaintiff 
told  him  that  he  was  anxious  to  dispose 
of  the  machine.  The  i>laintiff  showed 
him  &  photo  of  it,  and  witness  said  that 
he  thought  the  machfne  would  not  be 
suitable  fo/  his  field.  The  machine  was 
a  perfect  one,  and  the  plaintiff  said  that 
the  rollers  of  his  machine  would  deal 
with  the  rotten  stone  on  witness's  field. 
Witness  sent  him  to  his  field  to  get  a 
load  of  clay  through  the  mill^  and  then 
to  report  to  him  if  the  machine  worked 
well,  but  witness  was  not  satisfied,  and 
told  plaintiff  to  take  the  mill  up  to  his 
(witness's)  field.  Witness  said  that  he 
would  pay  plaimtiff  £20  for  erecting  the 
machine,  and  if  it  had  proved  latisfao- 
tory,  witness  would  have  bought  it.  The 
bricks  were  "  filthy,  soft  seoonds,"  not 
fit  for  cottages,  and  the  majority  of  them 
were  "slop  bricks."  If  witness  had 
100,000  bricks  like  the  one  produced  he 
could  sell  them.  ^  Witiiees  had  never  ex- 
pressed satisfaction  with  the  machine. 
The  machine  had  not  come  up  to  the  re- 


presentations made  by  the  plaintiff. 
Knowing  that  the  plaintiff  had  no  means 
witness  voluntary  gave  £20  to  the  plain- 
tiff in  order  to  erect  the  machine.  The 
plaintiff  bad  bought  the  cheap  cog- 
wheel on  his  own  responsibility ;  witncs3 
had  guaranteed  the  payment  for  the 
wheel.  With  regard  to  the  payment  of 
30s.  a  week  to  Stone,  witness  had  made 
thsUi  out  of  kindness,  because  his  foreman 
had  told  him  that  Stone  was  starving. 
Witness  had  also  given  the  plaintiff  sums 
of  £3  and  £5,  for  which  he  had  not  claim- 
ed, to  send  to  his  (plaintiff's)  wife,  who, 
plaintiff  had  told  him,  was  starving. 

By  Hopley.  J.j  The  Scotch  kiln 
was  put  up  at  the  request  of  the  plain- 
tiff. Warner  had  brought  the  matter 
forward. 

Mr.  Upingtou :  I  object. 

By  Hopley,  J. :  Warner  had  a  judg- 
ment against  the  machine,  and  had  writ- 
ten to  the  effect  that  he  wanted  to  exe- 
cute judgment  on  the  field. 

Cross-examined :  He  had  been  mak- 
ing bricks  for  35  years.  He  was  simple 
ei'ough  to  believe  that  the  machine  could 
deal  with  his  claim.  He  could  turn 
oivt  bettor  bricks  than  the  plaintiff 
had  at  Mount  Prospect.  He  would  not 
have  entertained  the  idea  of  buying  the 
machine  if  he  had  been  told  a  crushing 
pan  was  neoessary.  He  was  getting  for 
the  £350  the  machine,  and  an  old  "  pet " 
of  his.  Early  in  1906  witness  told  the 
plaintiff  he  could  go  and  take  his  ma- 
chine with  him.  The  plaintiff  had  never 
been  in  his  employ. 

Mr.  Upington :  Will  you  produce  your 
pay-sheets  7 

[Hopley,  J. :  He  has  been  using  your 
clav  and  labour  all  this  time?] 

'i^'es. 

[Hopley.  J. :  Then  why  did  you  keep 
him  on  after  his  machine  was  found  to 
be  no  good?] 

Now  you've  come  to  the  crux. 

[Hopley,  J. :  I  know  I  have,  thai'* 
why  I'm  here.] 

Each  time  I  spoke  to  him  abo'it 
the  matter  he  had  some  plausible 
tale  about  what  he  could  do  if  he  had  a 
Scotch  kiln  or  a  pan,  and  each  of  these 
operations  took  six  or  more  weeks. 

Mr.  Upington  :  Whose  handwriting 
is  this?  It  IS  in  pencil,  and  says  "Ad- 
vanced to  Mr.  Stone"? — I  cannot  say; 
I  cannot  see  it,  my  eyesight  is  fail- 
ing. Ho  had  used  15,000  of  the 
bncks  made  by  the  plaintiff  for 
building  some  cottages.  With  all  his 
experience,  he  did  not  know  that  it  was 
impossible  to  make  a  machine-made 
brick  from  the  class  of  clay  found  in 
his  field  without  rollers.  He  did  not 
know  that  machine-made  bricks  could 
not  be  made  with  the  clay  on  his  field 
without  a  crusher.  The  plaintiff  never 
asked  for  a  crusher,  which  would  cost 
between   £500  and  £600. 

Witness:  You  have  asked  me  a  good 
many  questions,  let  me  ask  you  one. 
If  you  went  to  a  tailor's  shop  and  asked 


640 


<i 


CAPE  TIMES"   LAW  REPORTS. 


for  a  suit  of  clothes,  and  they  gave  you 
tho  trousers  and  told  you  to  go  to 
another  shop  and  get  a  coat,  would  you 

Mr.  Upiiigton:  He  did  not  contract 
to  supply  you  with    a  crusher. 

Witness:  Ho  contracted  to  make 
bricks  with   the  machine. 

Mr.  Upingtoii:  He  assumed  you  were 
a  man  oi  common  sense,  and  knew  that 
bricks  could  not  be  made  out  of  your 
clay  without  a  crusher. 

Proceeding,  witness  said  he  could 
prove  that  the  working  of  the  machine 
cost  him  between  £300  and  £400,  and 
the  production  of  the  bricks,  of  whic  i 
he  had  now  some  200,000  on  his  field. 
The  machine  was  to  be  tested  between 
August,  1904,  to  the  middle  of  May, 
1906.  The  Scotch  kiln  was  a  permanent 
thing.  He  had  disposed  of  some  of  the 
bricks  out  of  that  kiln.  When  he  claim- 
ed for  that  expense,  he  never  intended 
to  take  judgment  against  the  plaintiff; 
it  was  merely  put  in  to  show  the 
amount  of  expense  that  defendant  went 
to.  The  machine  had  turned  out  bricks, 
but  it  was  constantly  going  wrong. 
Some  time  in  December  the  plaintiff 
was  told  to  take  the  machine  away, 
and  at  hia  request  the  Scotch  kiln  was 
built,   to  give  him  another  chance. 

Re-examined  by  Mr.  Gutsche:  The 
plaintiff  was  given  30s.  a  week  as  an  ad- 
vance, and  not  as  wages.  The  pwintitt 
assured  him  that  the  rollers  would  finish 
what  the  knives  had  missed. 

Theodore  McKay,  manager  m  Mc- 
Kenzie's  brickfields,  stated  that  in 
March  or  April  the  plaintiff  went  to 
him  and  said  he  had  a  wire-cutting 
brick-making  machine  for  sale.  Witn^s 
advised  him  to  see  Mr.  McKensie.  He 
did  so,  and  Mr.  McKenzie  showed  him 
the  land  he  wanted  clearing,  and  Stone 
replied  that  his  machine  would  crush 
anvthing.  By  agreement,  four  or  five 
bags  of  clay  were  sent  to  the  machine, 
but  when  they  got  there,  the  machine 
would  not  work,  and  it  was  agreed  to 
postpone  the  trial.  Subsequently,  Stone 
told  witness  the  clay  would  make  good 
bricks.  Portion  of  the  machinery  was 
moved  down.  Mr.  McKenzie  sent  for 
the  traction  engine,  but  the  cog-wheel 
broke.  Stone  then  ordered  another  cog- 
wheel. Witness  took  it  up  in  a  cart, 
and  had  it  fixed  on.  That  also  broke. 
Another  wheel  wa«  obtained,  for 
the  payment  of  which  witness 
had  to  go  security,  and  that  was 
fixed  on,  and  the  engine  was  taken 
down  to  the  field.  It  was  decided  to 
allow  the  plaintiff  30s.  a  week  for  board 
and  lodging,  pending  the  trial  of  the 
machine.  Witness  kept  an  account  of 
the  payments  made.  In  December,  wit 
ness  found  that  the  bricks,  after  they 
had  been  burned  were  unsatisfactory. 
Witness  told  the  plaintiff  that  the  bricks 
were  useless,  and  he  suggested  making  a 
Scotch  kiln.  As  this  would  co«t  a  good 
deal  of  money,   witness   consulted  with 


Mr.  McKenzie,  and  it  was  erected  un- 
der tho  supervision  of  jdaintiff.  The 
bricks  thus  produced  were  unsatisfac- 
tory. 

[Hopley,  J. :  Buit  the  kiln  was  a  pcr- 
maneiit  building,  and  would  do  for  other 
bricks.] 

Oh,  no.  If  you  do  not  make  bncke 
with  a  wiT^cuitrng  moohine,  it  is  no 
good. 

rHoplcy,vJ. :   Why?] 
You  don't  burn  hand-made  bnclm  m  it. 
[Hopley,  J. :      Is  there   any  ocientifio 
reason  for  it?] 

Not  that  I  know  of.  No  tally  of 
the  bricks  made  was  kept,  but  he 
thought  there  were  about  300,000,  of 
which  150,000  had  been  sold.  There 
were  about  170,000  left.  The  defendants 
had  a  contract  with  a  man  named  Ber- 
ger  to  supply  machine-made  bricks. 
They  had  been  unable  to  complete  the 
contract,  because  he  would  not  take  the 
bricks  made  by  the  machine  but  took 
the  balance  in  hand-made  bncks.  If 
all  the  bricks  were  like  the  ones  pro- 
duced by  the  plaintiff,  witness  would 
rot  grunible.  The  bricks  produced  were 
picked  out  of  the  lot  made.  The  bricks 
produced  by  the  defendant  were  fwr 
samples  of  the  produce  of  the  machine. 
Witness  handed  in  the  cost  incurred  m 
making  the  bricks  by  the  machine. 

Cross-examined  by  Mr.  Upmgton: 
The  bricks  produced  by  the  defendant 
had  been  taken  from  the  balance  left 
on  the  field.  The  original  material  used 
tended  to  make  or  not  to  make  a  good 
"red  hard."  Good  mixing  was  also  re- 
quired, and  burning  also  had  something 
to  do  with  it.  The  defendant  supphed 
all  the  labour,  etc.,  for  the  burning. 
The  bricks  used  by  defendant  had  been 
charged  for  by  the  defendant  against 
himself  at  cost  price. 

Mr.  Upington:  Hia  (plaintiff's)  clay 
is  better  than  McKenzie's?— Yes;  it  is 
clean  clay,  and  has  no  shale  in  it. 

And  he  can  make  better  bricks  than 
the  defendant  with  that  clay?— I  don't 
know;  if  he  did,  I  don't  know  why  he 
could  not  sell  them. 
Did  you  sell  any  for  him?— Yes. 
How  much  did  you  get  for  them?— 
£1  per  l.OOO 

£1  per  1,000  1  Who  did  you  sell  them 
to— a  friend  of  yours?— No,  to  Smith  and 
Schultze. 

And  who  carted  them?— Smith  and 
Schultze. 

Ah!  £1  per  1,000  at  the  brickfields. 
That's  a  different  thing?— Yes;  and  they 
said  they  were  sorry  they  ever  bought 
them.  He  had  no  prior  experience  of 
brick-making  machinery.  There  was  no 
entry  in  the  defendant's  book  showing 
the  price  at  which  the  105,000  bricks  used 
by  the  defendant  for  his  buildings  has 
been  charged. 

A.  R.  McKenzie  (recalled)  said  that  he 

had  valued  the  bricks  ai  ISs.  per  1,000 

1    on  the  field.     He  would  not  have  given 


"CAPE  TIMES"  LAW  REPORTS. 


641 


18«.   for  them   if  he    had   been   buying 
them. 

John  Denton,  a  foreman  in  the  em- 
ploy of  the  defendant,  and  Thomas 
Wilters,  an  engine-driver  in  the  same 
employ,  aJao  gave  evidence  of  a  corro- 
borative nature. 

Mr.  Gutsche  closed  his  case,  and 
council  for  the  plaintiff  havinsr  been 
heard  in  argument  on  the  facts, 

Hopley,  J.,  eaid  that  in  thi<«  case  the 
plaintiiff  oame  into  Court  on  a  deolara- 
tiou,  stating  that  he  ^  sold  to  the 
defendant,  under  certain  conditions, 
a  pug  mill  and  a  traction  en^ne 
for  the  purposes  of  brick-making, 
and  he  produced  a  letter  which 
the  defendant  wrote  to  him  on 
May  19,  as  setting  forth  the  terms  of  the 
contract.  Now,  it  reeted  on  the  plaint- 
iff to  show  that  the  terms  of  the  con- 
tract as  set  forth  in  the  letter  had  been 
fulfilled  by  him,  and  that  ^  everything 
had  happened  to  enable  him  to  make 
good  his  claim  against  the  defendant. 
It  appeared  that  the  letter  was  not  the 
first  thing  that  had  passed  between  the 
plaintiff  and  the  defendant  with  re- 
gard to  this  matter.  The  plaintiff  was 
the  owner  of  a  pug  mill  and  a  traotion 
engine,  and  he  was  anxious  to  abandon 
brick-making  work,  at  which  he  had 
been  engaged.  Under  these  circum- 
stances he  approached  the  defendant, 
who  was  a  man  of  mean8.  and  also  in 
the  brick-making  line.  The  defendant 
had  at  that  time  a  large  brick-field,  in 
which  the  best  of  the  clay  had  apparent- 
ly been  worked  out,  and  what  was  left 
was  an  earthy  deposit  of  a  more  diffi- 
cult nature  to  treat  than  soft  clay.  The 
defendant's  wish  was  to  clear  that  field 
as  much  as  possible,  to  turn  what  he 
could  into  bricks,  and  clear  the  reet  so 
as  to  build  on  it.  TThere  was  room  in 
the  letter  for  a  conflict  of  evidence,  be- 
cause the  question  might  arise  as  to  the 
work  the  plaintiff  guaranteed  the  ma- 
chine to  do,  and  consequently  the  de- 
fendant has  nleaded  that  the  plaintiff 
raisrepiresented  its  capacity.  It  would 
appear  that  the  plaintiff  did  represent 
that  it  was  capable  of  doing  th^^  work 
in  a  satisfactory  manner,  and  it  is  said 
hv  the  defendant  that  the  <^plaintiff 
soeciallv  guaranteed  that  it  could*  treat 
the  shale  on  the  ground  and  turn  it  into 
boricks  <^  a  firood  class.  This  is  denied 
by  the  pladntiff,  but  whatever  the  renre- 
sentations  mav  have  been,  it  seeme  clear 
that  the  defendant  wba  not  satisfied 
with  them  alone.  He  sent  up  some  of 
his  ground  to  where  the  machine  was 
then  ittandinflf.  with  a  view  to  a  test. 
Now,  this  was  very  significant,  because 
if  had  been  argued  -throughout  by  th" 
plaintiff  that  anybody  purchasing  suoh 
a  machine  could  not  get  a  machine  to 
do  this  work  without  a  crusher.  The 
mere  fact  that  defendant  sent  up  a 
quantity  of  cl«v  to  be  tried  proved  that 
he  intended  the  ies>t  to  be  made  without 
t^      crusher      attachedl      to     tihe     ma- 


chine. After  the  clay  had  been  oper- 
ated on  the  defendant  did  not  seem 
quite  satisfied,  because  he  wrote  to  the 
plainitiff,  stating  that  if  the  machine  was 
satisfactory  after  a  season's  trial  he 
would  take  it.  and  limiUnl  his  liability 
for  the  time  being  to  £20,  the  amount 
charged  by  t»he  plaintiff  for  erecting  the 
machine.  It  did  not  seem  ito  him  that 
there  was  anv  wish  on  defendant's  prairt 
to  get  out  of  the  contract  or  to  import 
anything  into  it  which  the  evidence 
do<^  not  justify.  It  seemed  that 
he  was  perfectly  willing  to  admit 
the  virtues  of  the  machine,  but  he 
said  the  machine  was  not  capable  of 
doing  the  necessary  work  on  the  clay. 
Bricks  had  been  produced  in  Court,  and 
it  was  admittea  that  if  the  quality 
of  all  the  bricks  were  the  same  as  the 
quality  of  one  of  those,  then  the  bricks 
turned  out  by  the  machine  would  be 
acceptable;  but  that  was  not  so.  The 
season's  working  apparently  produced 
«ome  50.000  good  bricks,  and  105.000 
bricks  which  were  called  "seconds" — 
bricks  good  enough  to  build  cottages 
with,  and  there  were  left  about  170,000 
bricks  which  were  either  worthless  or 
of  very  liitle  value.  Now,  that 
could  not  be  looked  upon  as  a  satisfac- 
tory season's  working,  because  it  was 
obvious  that  that  would  not  pay  for 
the  amount  of  money  spent  in  producing 
tht*  bricks.  It  was  impossible  for  the 
Court  to  say  that  the  defendant  should 
b;  satisfied  with  the  way  in  which  the 
machine  had  done  its  work.  It  had 
been  argued  for  the  plaintiff  that  the 
defendant's  opinion  should  have  been 
notified  sooner.  That  was  not  feasible, 
because  the  machine  was  on  a  season's 
trial,  and  if  the  defendant  had  con- 
demned the  machine  the  plaintiff  might 
have  contended  that  the  machine 
was  on  a  season'e^  trial,  and 
that  he  should  get  a  further  chance 
All  those  things  made  him  feel  that  the 
defendant  had  very  good  grounds  for 
saying  that  he  was  not  satisfied  with 
the  machine,  and  that  the  plaintiff  had 
not  carried  out  his  portion  of  the  con- 
tract, and  therefore  judgment  would  be 
given  for  the  defendant.  On  the  claim 
ill  reconvention,  judgment  would  be 
given  for  the  plaintiff  for  £40.  and 
against  him  for  £20,  the  amount  due 
to  plaintiff  for  erecting  the  machine. 
Plaintiff  would  have  to  pay  all  costs  of 
the  suit. 


[Plaintiff's  Attorneys; 
Arderne  and  Lawton ; 
Attornevs:  Silberbauer, 
Fuller.]' 


Fairbridge, 
Defendant's 
Wahl      and 


642 


(f 


OAPB  TIMEB"  lAW  RBSP<ttT8. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Jastioe,  the 
Hon.  Sir  John  Buchanan.] 


ADMISSION. 


f       1906. 
i  AvLS,  10th. 

Mr.  Russell  moved  for  the  Admission 
of  Jacob  Rudolph  de  Yilliers  as  an  at- 
torney and  notary. 

Application  f^rantcd  and  oaths  admin- 
istered. 


PROVISIONAL    ROLL. 

HODGES  AND  CO.  V  PUTTKROILL  AND 
HEFFOBD. 

Mr.  Benjamin  moved  for  the  final 
adjudication  of  the  defendant's  estate 
as  insolvent. 

Final  order   granted. 


JONES  V.  MITCHELL. 

Mr.  Benjamin  moved  for  provisional 
sentence  on  a  judgment  of  the  Court 
of  the  Resident  Magistrate  at  Wynberg 
for  £8. 

Buchanan,  A.O.J.,  said  he  did  not  see 
why  the  defendant  should  have  been 
brought  into  this  court.  He  did  not 
think  this  Court  should  be  turned  into 
an  engine  of  oppression. 

The  matter  was  ordered  to  stand  over 
for  a  week,  his  Lordship  adding  that 
he  was  not  inclined  to  g^>  out  of  his 
way  to  assist  the  plaintiff.  If  the 
plaintiff's  object  was  to  get  a  longer 
term  of  imprisonment  for  the  defendant, 
the  Court  would  not  help  him. 


KANNEMBTER  V.  SHAW. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  promissory  note  for  £23 
lis.   lOd.,  with  interest. 

Order  granted. 


FBASBS  AND  SON.  LTD.  V.  SHAW. 

Mr.    Gutsche    moved   for    provisional 
sentence  on  a  promissory  note. 
Order  granted. 


B^TATB  YOUNG  V.  HEYN8. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £800, 
due  by  reason  of  the  non-payment  of 
interest;    counsel  also    applied  for    the 


property  specially    hypothecated   to    be 
deolared  executable. 
Order  granted. 


GINSBEBO  V.  BOTHA  AND  BOTHA. 

Mr.  M.  Bissei  moved  for  provisional 
sentence  on  a  mortgage  bona  for  £400, 
with  interest,  the  bond  having  become 
due  by  reason  of  the  non-payment  )f 
interest;  counsel  also  applied  for  tie 
property  specially  hypotnecated  to  be 
declared  executable. 

Order  granted. 


E8TATB  WOBDON  V.  EVANS. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  antortgage  bond  tor  £1,000, 
due  by  reason  of  three  months'  notice 
having  been  given;  counsel  also  ap- 
plied for  the  property  specially  hypothe- 
cated to  be  aeclared  executable. 

Order  {^ranted,  subject  to  stamping 
of  affidavit  put  in. 


FLBTCHEB  V.  BABTLBTT. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  an  unsatisfied  judgment 
of  the  Resident  Magistrate's  Court  it 
Cathcart  for  £103  odd. 

Order  granted. 


VAN  WYK  V.  LLOYD. 

Mr  Burton  moved  for  a  provisional 
sentence  on  a  promissory  note  for  £18 
Is.  8d. 

Order  granted. 


ILLIQUID  ROLL. 


WBGE  V.  MEIBING. 


J        1905. 
I  Aug.  10th. 

Mr.  De  Waal  moved  for  judgment 
under  Rule  329d  for  £11  18s.  5d.,  for 
professional  services  rendered  and 
moneys  disbursed,  with  interest  a  tem- 
pore morae  and  costs  of  suit. 

Order  gnanted. 


SMITH  V.  KBEYBB. 

Mr.  Russell  moved,  under  Rule  319. 
for  judgment  in  terms  of  declaration 
in  default  of  plea. 

Order  gnanted. 


BTARKB  AND  CO.  V.  8TBVBN80N. 

Mr.  Bailey  moved  for  judgment,  under 
Rule  329d,  for  £57  7e.,  rent  due. 
Order  gnanted. 


'<CAPB  TDISB''  LAW  BEP0BT8. 


6t3 


VRBBMAH  ▼.  BBOWNB. 

Mr.  B«ilej  moved  for  iudgment,  undor 
Kole  329d.  for  £140,  Ulaooe  of  pur- 
chMe  prioe  of  oerUdQ  four  lot*  of 
ground  ai  Muisenberg,  pUintiff  icndf^r- 
iDff  tmntler. 

Older  gmnted. 


CAPE  TIMtt,  LTD.  V.  IRYINE, 

Mr.  Sutton  moved  for  judflrment  under 
Rule  3e9d  for  £34  lis.  6d.,  advertiaing 
ch^rgee,  with  intereat,  a  tempore 
wwrae  and  ooaia. 

Order  gmnted. 


BPItHAVB  AND  00.  Y.  HABPEB. 

Mr.  W«tenneyer  moved  for  iudgment, 
under  Rule  229d,  for  £168  4a,  8d.,  bal- 
anoe  of  aooount  for  gooda  aold  and  de« 
livored. 

Older  gmnted. 


RESHABnJTATION. 

Mr.  De  Waatl  moved  for  the  dia- 
charge  from  inaolvenoy  of  Jan  Albert 
van  der  Weilt. 

Granted. 


GiBNEIRAL     MOTIONS. 


BAILET  y.  DBUMMOND. 


I 


190S. 
Aug.  10th. 


Mr.  P.  S.  T.  Jones  moved  aa  a  mat- 
ter of  urgency  for  an  interdict  reetrain- 
inpr  the  reapondent  from  removing  cer- 
tain furniture  from  the  Villa  Mara- 
bella,  Claremont.  It  waa  atated  that 
an  action  wae  pending  in  wbioh  appli- 
cant iraa  auing  reaponaent  lor  rent. 

Interdict  granted  pending  reauk  of 
action  to  be  inatHuted  by  applicant  for 
recovery  ci  tent  due. 


OAPB  9LE0TEI0  TBAlf  WATS  Y.  COLONIAL 
OOVBENlfEHT. 

Thia  waa  an  application  for  an  inter- 
dict reatraintng  the  Colonial  Govern- 
ment from  continuang  in  poaseasion  of 
certain  property  knonvn  aa  the  Sea 
Point  Railway.  Mr.  Burton  waa  for  the 
appHcanta;  Mr.  Morgan  Evans  waa  for 
respondent. 

Mr.  Morgan  Evana  aaid  that  this  case 
waa  one  of  conaideraible  importance,  and 
the  Government  were  anxious  that  Mr. 
Searle  should  appear  in  the  matter. 
Hia  learned  friend  waa,  however,  en- 
gaged in  another  court,  and  the  matter 
atood  ao  low  down  in  the  list  that  it 
aeeaned  impoaaible  for  it  to  be  reached 
thai  day. 


[Buchanan,  A.C.J. :  I  think  it  ia  very 
likely  that  it  will  be.  Do  you  wish  to 
apply  for  a  postponement  T] 

Mr.   Evana  eaia  that  waa  ao. 

Mr.  Burton  aaid  that  his  clients  were 
prepared  to  go  on  with  the  maiter, 
which  was  aomewhai  urgent.  However, 
aeeing  that  the  Government  wished  Mr. 
Searle  to  take  the  oaae,  he  did  not  ob> 
ject  to  a  poatponement. 

The  matter  waa  ordered  to  atand  over 
until  next  motion  day,  the  17th  irn^t. 


LEWIS  V.  BEPBTOVE  AND  0TREB8. 

Mr.  Swift  moved,  aa  a  matter  of  ur- 
gency, for  an  order  of  ejectment  in 
Teference  to  certain  property  in  Jarvia- 
streat.   Cape  Town. 

O'rder  granted.  d«lfendant  to  qu|it 
within  24  hours,  failing  which  writ  of 
ejectment  to  iaaue. 


BBILL  v.  NEW  TOBK  M UTCJAL  f       1 905. 

INBUBANOE  00.  lAuR.lOth. 

Inspeotion  of  doomnenta — ^Attor- 
ney and  client — ^Privilege. 

B,  applied  for  aii  order  to 
inspect  certain  letters  which 
had  passed  between  one  D,  and 
the  New  York  Mutual  Ittsur- 
once  Co.  D,  wcks  both  agent 
for  the  Company  and  also  their 
local  attorney. 

Held,  that  as  cei^tain  of  these 
letters  were  written  by  D.  as 
attorney  to  the  Company  and 
contained  statements  as  to 
evidence  to  be  produced  on 
their  behalf  in  a  pending 
action^  the  applicant  was  not 
entitled  to  iiispect  swih  letters. 


This  waa  an  application  by  the  plain- 
tiff in  action  for  an  order  calling  upon 
the  manager  in  Sou:bh  Africa  of  the  re- 
apondent company  to  allow  plaintiff  or 
his  attorneys  inepeotion  of  certain  pap- 
ers, documenia.  and  writings  enumer- 
ated in  the  acnedule  (b)  of  the  defen- 
danta'  affidavit.  Mr.  Burton  was  for 
applicant;  Mr.  Upington  waa  for  re- 
apondents. 

Mr.  Burton  aaid  thai  the  matter  had 
previiously  been  before  the  Court,  and 
had  been  ordered  to  atand  over.  Ttie 
case  waa  one  in  which  a  cessionary  of 
a  policy  of  life^  inauiance  claimed  pay- 
ment ol  the  poUcv.  The  pleadinga  had 
been  closed,  and  plaintiff  now  aaked 
that  he  should  be  allowed  to  inepect 
certain  documenta.  The  defendant  set 
forth  two  aohedulea.  ^  He  aaid  he  would 
not  mind  the  plaintiff  seeing  one  sci^^- 


644 


€« 


CAPS  TIMB8"  LAW  BEPOBTa 


dule,  but'  he  objected  M  regard^  the 
other,  And  said  it  w«8  of  a  departmental 
and  oonfidential  nature. 

Mr.  Uplngton  said  that  respondent 
had  given  discovery  and  inspection  of  all 
documents,  except  certain  docuineiits, 
which  -were  set  out  in  an  affidavit.  It 
was  now  objected  to  produce  certain 
letters  on  the  ground  that  they  contained 
the  evidence  procurwi  for  the  purposes 
of  the  case,  or  in  view  of  penoing  liti- 
gation. 

Mr.  Burton  said  that  the  applicant 
now  moved  for  leave  to  inspect  certain 
further  documented,  and  also  for  an  or- 
der upon  respondent  to  pay  costs.  Coun- 
sel said  that  the  position  was  somewhat 
complicated  bv  reason  of  the  fact  that 
Mr.  Drake,  of  Ekiat  London  was  both 
attorney  and  local  insurance  agent  of 
the  respondent  company.  He  submitted 
that  appilicant  woa  entitled  to  inspect 
all  letters  up  to  the  ^nd  November, 
1904,  relating  to  the  health  of  the  as- 
sured, and  BO  forth.  They  did  not 
want  to  6ee  the  papers  that  passed  be 
tween  the  company  and  their  le^l  ad- 
visers, but  they  claimed  the  ng'ht  to 
see  the  statements  made  bv  Drake,-  in 
his  capacity  of  agent  to  toe  company, 
and  ioA  statements  oi  persons  who  haa 
seen  the  deceased  prior  to  hm  death. 
These  etatements,  he  contended,  were 
in  no  wise  privileged. 

Mr.  Upington  held  that  the  question 
as  to  wnether  Mr.  Drake  waa  an  at- 
torne.y  or  not  did  not  seem  to  be  very 
material  to  this  case.  It  would  be 
contrary  to  the  whole  principle  which 
underlies  discovery  if  a  person  who  pro- 
cured information  for  the  purpose  of 
defending  himself  in  case  of  a  claim 
being  made  against  him,  was  to  be  com- 
pelled to  allow  an  inspection  of  such  in- 
formation. He  submitted  that  the  plain- 
tiff waa  not  entitled  to  inspect  these 
papers,  as  it  would  be  contrary  to  the 
course  of  justice  for  him  to  do  so. 

Mr.  Burton  contended  that,  even  if 
the  plaintiff  should  lose  his  case,  that 
the  defendant  should  pay  the  costs  of 
the  application. 

Mr.  Upington  (in  reply)  held  that  his 
clients  had  given  all  pod.sible  assistance 
to  the  plaintiff,  and  therefore  they 
should  not  be  asked  to  pay  the  costs. 

Mr.  Burton  said  they  had  to  come 
into  court,  because  they  did  not  know 
what  letters  they  were  to  get.  This 
application  was  rendered  necessary 
only  because  of  the  respondent's  un- 
justifiable   refusal. 

Buchanan,  A.C.J. :  The  application 
waa  for  an  order  to  allow  the  plaintiff 
or  his  attorneys  inspection  of  certain 
papers  and  documents  in  the  cuatody 
or  control  of  the  defendants.  In  answer 
to  this,  the  man-agor  or  principal  officer 
in  the  di'fondant  company  has  filed  an 
affidavit  containing  two  schedules,  and 
with  reference  to  those,  he  said  they 
were  willing  to  produce  the  documents 
specified    in   achedule      (a),      but     they 


ircfuse  to  allow  inspection  at  the 
documents  in  schedule  (b),  on  the 
ground  that  they  were  of  a  confidential 
nature.  The  documenta  for  which  the 
privilege  waa  claimed  were  letters 
whioh  had  passed  between  the  solici- 
tor and  the  company  and  the  local 
manager  and  the  head  office  in  New 
York.  These  letters  contained  state- 
ments of  evidence  which  had  been  col- 
lected for  the  purpose  of  proving  the 
defence  in  the  case.  No  doubt,  if  an 
attorney  acted  in  several  capacntje.-,  ho 
could  not  always  claim  the  priviJogcs 
of  an  attcwney  in  every  branch  of  nh 
work.  In  this  case  the  attorney  was  the 
agent  at  Ea«t  London  for  the  defendant 
company,  and  any  communications 
which  passed  in  thait  capacity  relative 
to  the  contract  with  tlie  plaintiff  would 
probably  not  be  privileged.  But  the 
communication  that  pa^^yed  between  him 
and  the  office  from  witiiefses.  in  view 
of  the  pending  litigation,  he  had  a  right 
to  refuse  to  disclose..  On  no  principle 
of  justice  was  a  party  entitled  to  force 
another's  hand  to  disclose  what  h's  wit- 
ne»iea  had  to  say.  He  knew  of 
no  case  which  justified  the  ap- 
knew  of  no  case  which  justified  the  ap* 
plioant  in  this  case  having  authority  to 
see  these  documents.  The  only  other 
matter  was  that  of  costs.  It  bad  been 
admitted  that  the  affidavit  of  disclosure 
did  not  give  sufficient  information  to 
the  applicant,  and  he  thought  justice 
would  l>e  met  by  making  the  costs  in- 
curred in  the  case  costs  in  the  cause. 


Ex  parte  THE  hex  river  school. 

School — Sale    of    former    public 
school  buildings. 

This  was  an  application  by  the 
commititee  of  the  Hex  River  School 
for  the  confinrmatdon  of  a  aale.  The 
school  was  established  in  1865, 
and  from  the  transfer  it  seemed 
that  the  property,  the  land  and  school 
buildings,  were  transferred  to  the  com- 
mittee for  the  time  being.  The  peti- 
tioners were  duly  elected  as  memDcrs 
of  the  School  Committee  at  a  meeting 
of  those  interested  in  the  school,  held 
on  October  17,  1904.  The  school  had 
ceased  to  exist  as  a  public  school  for 
the  past  25  years,  the  requirements  of 
the  public  haying  been  met  bj  other 
schools  established  in  the  neighbour- 
hood. Since  the  school  ceased  to 
exist,  the  buildings  and  land  had  been 
looked  after  by  George  William  Gee, 
and  there  was  no  prospect  of  the  de- 
sirability of  establisning  a  school  there. 
A  meeting  of  the  guarantors,  etc.,  of 
the  school  was  called,  whereat  the  peti- 
tioners were  elected,  and  acting  on  the 
instructions  of  the  meeting,  after  real- 
ising that  it  would  be  impossible  to 
sell    the  place   by   public  auction,     had 


'<OAPB  TIMES"  LAW  BEPOBTB. 


646 


disposed  of  it  to  Mr.  G«oi^e  William 
Gee  for  £570.  They  now  -wished  to 
pass  transfer  of  the  property. 

Mr.    Burton  moved. 

[Buchanan,  A.C.J. :  What  do  they 
propose  to  do  with  the  proceeds?] 

Mr.  Burton :  To  distribute  it  amongst 
other  educittional  establishments  in  the 
DMgbbourhood. 

[BociMyian,  A.C.  J. :  What  schools  are 
l^ere  in  tl»  neighbourhood?] 

I  cannot  fgiYe  your  loidship  the 
list,  but  there  are  eeveral  schools 
in  the  neighbourhood.  Continuing, 
counsel  said  the  application  was 
rendered  necessary  because  the  Regis- 
trar refused  to  pass  transfer  without 
the  order  of  the  Court.  It  was  in- 
tended, if  there^  was  any  trouble  with 
regard  to  the  distribution  of  the  funds, 
that  the  decision  of  the  minister  of  the 
Dutch  Reformed  Church  should  decide 
the  matter. 

Mr.  Nightingale,  who  opposed  the 
apolioation  on  behalf  of  the  Superinten- 
dent-General of  Education,  read  the 
afiidavit  of  Mr.  Murray.  Acting  Super- 
intendent, drawing  attention  to  the 
fact  that,  although  the  Goyemment  did 
not  contribute  towards  the  purchase  of 
the  school  buildings,  yet  tne  actual 
teaching  of  the  school  was  dependent 
on  the  Uovernment  prant.  He  did  not 
oppose  the  application  if  the  distribu- 
tion of  the  proceeds  was  left  to  the 
committee,  in  consultation  with  the 
Superintendent-General    of    Education. 

Mr.  Burton  said  the  whole  point  of 
the  case  was  that  the  Superintendent- 
General  of  Education  claimed  the 
rii^ht  to  veto  the  wishes  of  the  local 
oonmuttee  in  regard  to  the  distribution 
of  the  money.  If  the  committee  wished 
to  devoie  the  ntoney  to  something  other 
than  education,  then  the  action  of  the 
Superintendent-General  could  be  under- 
stood. 

Buchanan,  A.C.J. ,  said  that,  as  the 
Government  had  contributed  to  the 
school,  thev  should  have  something  to 
say  as  to  the  distribution  of  the  money. 
He  thought  it  would  be  adviaable  to  pay 
the  money  into  the  hands  of  the  regis- 
trar of  the  Court. 

Mr.  Burton  said  that  what  he  would 
■pggest  was  that  the  sale  be  sanc- 
tioned.^ and  tlMTt  the  committee  make 
its  decision  with  regard  to  the  money, 
and  submit  it  to  the  Superintendent- 
General  of  Education,  ana  if  he  ap- 
proved, the  matter  need  not  come  into 
the  court. 

Mr.  Nightingale  said  this  suggestion 
wse  quite  acceptable  to  the  Superinten- 
dent-General of  Education.  The  dis- 
tribution of  this  money  was  already  at 
sixes  and  sevens,  and  the  Superinten- 
dent-General was  the  best  person  to 
cx>nsult  on  the  matter. 

Iklr.  Burton  said^  the  committee  did 
not  recognise  the  right  ^  of  the  Eduoar 
iion  Department  having  anything  to 
9%,j  to  the  disposal     of  this     building. 


The  Government  had  no  more  right  in 
this  property  than  they  had  in  a  farm- 
er's private  schoc^,  to  which  they  con- 
tributed. 

BuchanAn,  A.C.J.,  said  the  school  in 
question  hsd  been  established  some 
years  «go,  but  it  was  no  longer  re- 
quired, and  the  School  Committee,  which 
had  been  elected  under  Government 
regulations,  decided  to  dispose  of  it.  The 
Superintendent-General  of  Education 
raised  no  objection  to  this,  but  he 
wished  to  see  the  proceeds  of  the  sale 
properly  applied  to  the  purpose  to 
which  it  was  poposed  to  devote  it 
The  Court  would  order  the  Registar  of 
Deeds  to  transfer  the  property^  to  Mr. 
Geo.  William  Gee,  on  condition  that 
the  proceeds  of  the  sale,  after  the  ex- 
penses had  been  paid,  should  be  disposed 
of  in  a  manner  agreed  upon  between 
the  committee  and  the  Superintendent- 
General  of  Education,  and,  failing  that, 
the  Court  would  determine  the  matter. 
He  hoped  the  puties  would  be  reason- 
able in  the  matter.  He  saw  no  reason 
why  they  should  not. 


Ew  parte  KBMM. 

Mr.  Douglas  Buchanan  moved  on  be- 
half of  Mrs.  Kemm  as  a  matter  of 
urgency,  for  an  interdict  restrain- 
ing her  husband  (Robert  Kemm,  of 
Wynbcrg)  firom  disposing  of  or  alien- 
ating the  moveable  and  immoveable 
property  in  the  joint  estate,  pending  an 
action  to  be  instituted  by  petitioner  for 
judicial  separation  and  payment  of  ali- 
mony, on  the  flrround  of  the  respondent's 
gross  cruelty   towards  her. 

Rule  nut  granted,  to^  operate  as  a 
temporary  interdict,  restraining  defendant 
from  alienating  or  mortgaging  the 
landed  property  in  ouestion,  the  rule 
to  be  returnable  on  tne  11th  inst. 


Ejs  parte  VAN  MIEEBBK. 

Mr.   P.    S.   T.   Jones      moved  for  an 
order  authorising  the  transfer  of  certain 

Eroperty,    further    information   required 
y  the  Court  at  the  6rst  hearing  being 
now  supplied. 
Order  granted. 


WALKBB  y.  BBCEIVBB8  GBAKD  JUNCTION 

BAILWAT. 

Mr.  Russell  moved,  under  section  50 
of  the  Charter  of  Justice,  for  leave  to 
appeal  to  the  Privy  Council  from  an 
order  of  this  Court  reusing  to  grant  a 
Commission  to  take  the  evidence  of  the 
applicant  in  London.  Mr.  Upington  was 
for  the    respondents. 

Buchanan,  A.C.J. ,  said  that  tihe  order 
given  hj  the  Court  was  an  interlocu- 
tory or 


t>y  1 
der. 


646 


tt 


CAPE  TIMES"  LAW  REPORTS. 


Mr.  Russell  submitted  that  the  order, 
although  interlocutory,  had  the  effect 
of  a  nnal  or  definite  sentence,  as  set 
out  in  the  section. 

Buchanan,  A.C.J. ,  said  tha«t  the  order 
was  given  on  what  was  purely  a  niatter 
of  procedure.  The  question  decided  was 
whether  a  party  to  a  suit  should  be  rc- 
(luircd  to  appear  at  the  trial  and  give 
cvidonco  in  jx^rson,  or  whether  ho 
should  be  examined  on  commission 
de  bene  esse  before  the  trial  The  Court 
was  not  satisfied  there  wf*rc  suflBricnt 
grounds  for  excusing  the  attendance  of 
the  witnoss.  It  could  not  be  called  a 
final  or  definite  sentence.  The  applica- 
tion would  bo  refused,   with   costs. 


Ux  parte  estatk  BOTHA. 

Mr.  Benjamin  moved  for  a  tempor- 
ary interdict  restraining  the  trustee  in 
the  insolvent  estate  of  the  late  J. 
Nicolaas  Botha  from  passing  transfer  of 
certain  landed  property  at  Oudtsboorn, 
pending  an  action  to  be  brought  by  the 
petitioner,  executrix  in  the  estate  of  her 
late  husband.  It  was  alleged  that  there 
had  been  a  sale  by  the  trustee,  which 
was  not  of  a  hona-fide  character. 

Rule  nUi  granted,  to  operate  as  an 
interim  interdict,  and  to  be  returnable 
on  tlie  24th  inst. 

Postea  (August  24th).  Rule  made  ab- 
solute. 


Ejt  parte  VENTER. 

Mr.  P.  S.  T.  Jones  moved  for  regis- 
tration of  transfer  of  certain  property 
in  the  division  of  Britstown.  the  mat- 
ter having  stood  over  for  further  in- 
formation, whirh  was  now  furnished. 

Tlio  p*»titioncr  was  one  of  two  tutors 
tet^tamontary  to  certain  minors.  The 
father  had  advanced  money  to  him  on 
condition  of  his  pa8.<nng  a  bond  in 
favour  of  the  minors.  There  was  an  en- 
dorsement for  oauoellation  on  the  bond, 
but  no  consideration  seemed  to  have 
passed.  The  Master  Tecoramended  that 
the  petitioners  l>e  authoris€>d  to  pur- 
chase certain  sheep  for  certain  of  the 
minors  and  to  pass  a  new  bond  m 
favour  of  the  othens,  and  that  upon  their 
doing  this  they  should  bo  allowed  to 
cancel    tlie    original    bond. 

Order  granted  in  terms  of  the  Mas- 
ter's report. 


Ex  parte  cabolus. 

Mr.    Swift    moved   for   leave   to   raise 
certain  money  on  mortgage. 
Order  granted. 


[Before  the  Hon.  Mr.  Justice  Hoplby.] 


MALCOMKSS    AND    CO.     AMD/ 

TRUST  BR    INSOLVENT     ES-)        1906. 
TATE  H.  B.  GARY  V.  T.    B.  J  Aug.  lOth. 
CABY.  i, 

Mr.  Burton  moved  for  leave  to  sign 
judgment  for  the  plaintiffs  in  terms  of  the 
•  referee's  report.  The  referee  (Mr.  May- 
nard  Naah)  reported  in  favour  of  plain- 
tiffs for  the  sum  of  £1,052  4b.  ;  viz.,  £414 
2s.  in  the  first  action  and  £638  28.  in  the 
second  action.  Counsel  added  that  he 
waA  instructed  to  ask  the  Court  to 
certify  witness's  exj>ensQ6  for  Mr.  Reim- 
ers,  and  also  witnesses*  expenses  to  those 
witnesses  examined  before  the  referee. 

Mr.  Gardiner  moved  upon  notice 
to  applicants  for  the  rcooening 
of  the  case  on  the  point  as  to  whether 
a  settlement  was  entered  into  between 
the  parties  in  regard  to  whiat  was  known 
as  the  Conrad  settlement.  Counsel  read 
an  affidavit  by  Mr.  Watermeyer  (Tom 
Cary's  attorney)  stating  that  the  appli- 
cants ditsolosed  books  and  documents, 
but  not  specifically,  and  now  liince  the 
Court  had  given  judgmeut  in  xeJAtioo 
to  the  (question  of  the  Conrad  settle- 
ment distmet  evidence  had  come  to  light 
of  payment  of  a  certain  cheque  for  £20 
to  T.  B.  Cary.  Counsel  argued  that 
there  were  precedents  for  the  applica- 
tion, because  the  judgment  already  de- 
livered by  his  lordship  w«6  in  the  nature 
only  an  interlocutory  judgment,  and  evi- 
dence on  a  material  point  had  since 
come  to  light  bearing  on  the  question 
of  the  Conrad  settlement. 

Hopley,  J.,  said  that  he  had  al- 
ready decided  that  there  was  a  Con- 
rad settlement  up  to  a  certain 
point,  but  that  it  was  afterwards 
sot  a^ide.  He  did  not  feel  at  all  in- 
clined to  reopen  the  case  upon  the 
point  now  raised.  There  was  oftly  the 
slightest  ground  shown  for  the  appli- 
cation. Tne  Court  would  give  judgment 
in  terms  of  the  referee's  report,  with 
costcj  against  defendant  and  Mr.  Reim- 
ers  l>e  declared  a  necessary  witness,  as 
well  as  witner>eis  called  before  tl»e  re- 
feree, defendant  to  |»ay  costs  of  the  pre- 
sent  application. 


BENYA  v.  HAOCGWANA. 

Mr.  Benjamin,  on  behalf  of  Magug- 
wana,  moved,  as  a  matter  of  urgency, 
for  the  suspension  of  an  order  for  tho 
restoration  forthwith  of  certain  cattle. 
He  said  that  the  cattle  had  been  distri- 
bute under  an  order  from  the  Magis- 
trate at  Butterwonh.  He  contended 
that  if  the  Court  had  known  in  the  first 
iu8it.ance  the  real  facts  of  the  case,  the 
order  in  que*ition  would  not  have  been 
granted. 

Hopley,  J.,  said  that,  had  he  known 
the  fuU  facts  at  the  time  of  the  opigiQal 


"CAPB  TlMSS''  LAW  BEPORTa 


64? 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maasdorp.] 


H0PKI2VS  AND  CO.  V.    COLO- 
NIAL GOVERNMENT. 


f        ^' 
<AVLg. 


IDOo. 
lltb. 
14th. 


Railway  Department  —  Contract 
— "  Coastwards." 

Plcuntiffa  had  contracted  with 
the  (ktite  Govemrnetit  Eailionys 
for  the  carriage  of  certain 
stone  from  Queen^8  Tov:n  to 
Cape  Totrn.  The  rate  siteci- 
Jied  hy  the  Department  was 
1  Jrf.  per  ton  for  stone  count  gned 
inland,  and  ^d.  jjer  ton  for 
stone  consigned  coastwards. 
The  Department  claimed  at 
the  higher  rate  on  carnage 
from  Queen^s  Town  to  Storm- 
berg  J  inasmuch  as  that  portion 
of  Uie  journey  teas  '"'' inland^ 
Held,  t}Mt  Uie  Bftilway  Depart- 
ment were  bound  under  their 
tariff  to  carry  the  said  stone 
through  to  Cape  Town  at  the 
lower  rate. 


Thifi  was  an  action  brought  by 
Arthur  Hopkins  and  Co.,  building 
contractors,  of  Cape  Town,  who  ten- 
dered successfully  for  the  build- 
ing  in  connection  with  the  extension  of 
the  8. A.  College,  to  recover  the  amount 
of   £233   from  the  Government,   which 


application,  he  would  probably  have 
niade  a  somewhat  different  order.  An 
order  would  now  be  granted  that  the 
ttpplicQRts,  Magugiwana  and  others,  who 
were  originally  respondent,  be  directed 
either  to  return  the  said  stock  or  to 
give  security  for  the  safe  custody  and 
eventual  production  of  the  said  stock, 
pending  an  action  for  a  declaration  cf 
rightti  as  to  their  proper  ownership  to 
be  forthwith  institufted  by  the  said 
Magiigwana  and  othens  who  took  them 
away,  reApondetrts  to  abide  result  of 
the  action,  security  to  be  given,  should 
the  stock  not  be  returned,  to  the  satis- 
faction of  the  R.M.  of  Butterworth. 


was  paid  as  nn  over-charge  by  the  plain- 
tiffs to  the  defendants  for  the  carriage  of 
certain   stone   from  Queen's   Town. 

The  declaration  sot  out  that  during 
the  months  of  Fobruarv  to  October  last 
the  Government  agreed  with  the  plain- 
tiffs to  cariY  certain  stone  which  was  re- 
quired by  the  plaintiffs  from  Queen's 
Town  to  Cape  Town.  Before  entering 
iirto  the  agreement  the  plaintiffs  en- 
quired from  the  officials  as  to  the  carri- 
age rate,  and  were  told  it  was  328.  9d. 
On  that  information  they  based  their 
calculations  for  the  tenders  to  the  S.A. 
College  Council,  which  ws  accepted.  In 
April  the  Government  claimed  that  tba 
tariff  rate  was  38s.  4d.  The  plaintiffs 
were  in  urgent  need  of  the  stone,  and 
the  sum  of  £233  wu  overpaid  to  the 
Railway  Department  under  protest.  The 
stone  was  carried  at  the  lower  rate  for 
some  months  before  the  Government 
demanded  the  overcharge.  In  April 
the  Government  refused  to  deliver  the 
stone  unless  the  higher  rate  was  paid, 
and  thereafter  the  higher  rate  was  paid 
for  the  later  consignments. 
.  The  plea  set  out  that  the  defendants 
had  no  knowledge  of  any  tender  on  the 
part  of  the  plaintiffs.  It  was  admitted 
that  it  was  agreed  to  carry  the  stone  in 
February  and  March  at  the  lower  rate, 
but  it  was  denied  that  the  department 
had  any  knowledge  for  what  purpose  the 
stone  was  required.  The  plamtiffg  were 
charged  in  error  during  the  months  of 
February  and  March,  and  in  April  the 
plaintiffs  were  advised  that  the  legal 
tariff  was  38s.  4d.,  and  the  extra  charge 
was  paid  without  pretest. 

Mr.  Searle,  K.Cf.  (wi*h,  him  Mr.  Sut- 
ton), was  for  the  plaintiffs,  and  Mr. 
Benjamin  (with  him  Mr.  Nightingale) 
was  for  the  Government. 

Mr.  Searle  said  ^hat  the  questions  for 
the  Court  to  decide  would  be  what  the 
rate  was.  whether  the  rate  was  the 
proper  one  according  to  the  tariff  book, 
what  was  the  construction  of  the  tariff 
book,  was  it  32s.  9d.  or  38s.  4d.,  and  if 
it  be  32s.  9d.  then  was  the  payment  of 
the  plaintiffs  an  involuntary  one  and 
under  such  circumstances  as  to  prohibit 
the  plaintiffs  from  recovering  it? 

Mr.  Benjamin:  If  it  be  hold  to  be  the 
lower  rate  then  we  contend  it  is  a  volun- 
tary payment   and  cannot  be  recovered. 

[Maasdorp,  J. :  A  rather  cuirious  posi- 
tion for  the  Government  to  take  up.  If 
the  Government  charged  these  people 
more  you  may  have  the  legal  ri^ht  to  it, 
hut  it  is  certainly  a  curious  position  for 
the  Government  to  take  up.] 

Mr.  Benjamin :  Your  lordship  may 
hold  that  it  is  the  lower  rate,  out  the 
Government  take  up  the  position  that 
the  rate  always  intended  was  the  higher 
rate,  and  the  higher  rate  should  always 
have  been  charged 

Mr.  Searle :  After  this  correspondence 
the  Government  sued  us  in  this  court 
to  recover  at  the  higher  rate,  and  we  de- 
fended the  action,   and   the     pleadings 


648 


"CAi^S  TtMlte"  LAW  ABPGk'A 


were  closed,  whereupon  the  Government 
withdrew  tne  case  and  paid  our  coets. 
We  claimed  it  wae  the  proper  rate  and 
alternatiyeiy  for  damagee.  Subsequently 
the  same  construction  as  we  put  on  the 
tariff  book  was  accepted  by  tne  Govern- 
ment, and  notices  to  that  effect  appeared 
in  the  papers. 

Mr.  Benjamin :  I  object  to  my  learned 
friend  leadmg  evidence  on  that  point.  It 
took  place  subsequently,  and  it  is  irre- 
levant to  the  present  issue  what  the 
Government  suDsequently  did. 

[Maaedorp,  J. :  That  contains  the  con- 
tract with  the  public.  Can  any  official 
charge  more  than  that.] 

Perhaps  not. 

[Maasdorp,  J. :  You  almost  admit  you 
have  taken  more  than  you  are  entitled 
to.] 

My  contention  is  that  ithe  term  in  the 
tariff  book  "  coastwards  "  is  not  a  very 
definite  term. 

[Maasdorp,  J. :  Supposing  it  is  definite, 
can  any  official  charge  more  than  speci- 
fied?] 

Thoy  might  posMbly  ei>ter  into  a  par- 
ticular arrangement.  Whsit  we  contend 
for  now  is  the  construction  that  -has  al- 
ways been  put  upon  the  tariff  book  by 
the  General  Manager,  and  for  that 
reason  the  Government  resist  any  re- 
fund in  this  case. 

Mr.  Searle:  There  was  a  little  dis- 
pute between  two  departments  of  the 
railway — the  goods  department  wanted 
one  rate  and  the  financial  department 
another.  The  rate  was  made  up  from 
the  tariff  book,  the  conditions  of  which 
then  in  force  read  that  when  stone  in 
the  rough  is  consigned  "  coastwards " 
in  truck  loads  of  not  less  than  5  tons 
then  a  particular  rate  is  given,  which 
works  out  at  id.  per  ton,  and  the  whoie 
question  is  what  is  the  meaning  of  stone 
in  the  rough  consigned  "coastwards." 
The  Government  take  up  the  position 
that  because  during  a  portion  of  the 
journey  the  train  was  going  in  a  nor- 
therly direction,  it  wae  not  then  going 
**  coastwards,"     that  was  when   it     was 

foing  from  Queen's  Town  to  Storm-berg, 
'hey  did  not  take  up  the  position  that 
Naauwpoort  to  De  Aar  is  not  "  coast- 
wards," and  it  was  only  from  Queen's 
Town  to  Stormberg  they  charged  the 
higher  rate. 

Mr.  Benjamin :  Our  contention  is  that 
traffic  going  from  Queen's  Town  to 
Stormberg  was  inland.  The  reason  for 
the  higher  charge  was  that  traffic  to 
Stormberg  re<|uircd   special   haulage. 

Mr.    Searle:    My  contention  is      that 
when  the   goods    are  consigned  "  coast- 
wards" then  the  higher  rate  cannot  ap- 
ply- 
Arthur  Hopkins,  managing  director  o4 

the  plaintiff  company,  stated  that  about 
Jenuary,  1904,  he  was  engaged  making 
up  a  tender  for  the  extension  of  the  S.A. 
College,  and  ft  had  to  ba  ooi^tnicted 
with  Que«p's  Town  etone.  Before  send- 
ing in  his  tender  he  approached  the  Rail' 


way  Department  as  to  the  tariff  rate  of 
the  stone  from  Queen'e  Town.  He  saw 
ai  official  in  the  Inland  Office  in  the 
goods  yard,  where  be  had  been  directed, 
and  thiePB  he  was  told  by  a  clerk  that 
the  rate  was  32s.  9d.  a  ton,  and  upon 
that  information  he  Aent  in  his  tender, 
which  was  accepted.  About  tlie  15th 
February  he  conunenced  to  get  the 
Queen's  Town  stone  from  a  contractor. 
All  the  payments  for  the  first  couple  of 
months  were  at  the  328.  9d.  rate.  The 
first  intimation  he  had  from  the  depart- 
ment about  the  increased  rate  was  in 
April,  when  an  official  came  with  a  long 
list  of  undercharges.  As  the  tanff-book 
said  the  rate  was  32s.  9d.,  the  official  ia 
question  said  he  thoaght  the  rate  was 
correct,  and  witness  refused  to  pay.  A 
letter  was  then  sent  to  the  department 
pointing  out  thai  the  rate  of  52a.  9d., 
which  was  tendered  to  them,  seemed  to 
be  correct  according  to  the  tariff-book. 
There  was  a  difficulty  about  getting  the 
goods  from  the  department,  and  there 
was  a  certain  amount  of  delay. ^  A  let- 
ter was  subsequently  sent  enclosing  the 
cheque  for  the  overcharges,  in  order  to 
release  five  trucks,  but  it  was  pmnted 
out  that  the  payment  wafi  made  without 
prejudice.  In  June  he  made  an  effort 
to  send  the  consignments  by  sea,  but 
there  were  great  difficulties  in  the  way, 
and  he  had  to  fall  back  on  the  railway. 

Cross-examined  by  Mr.  Benjamin :  He 
was  not  very  well  acquainted  with  the 
offices  of  the  railway  station,  but  he 
knew  the  offices  in  the  Goods  Depart- 
ment. He  was  not  told  that  the  Rates 
Branch  Offioe  was  the  proper  place  to 
make  inuuiries.  He  could  not  say  who 
the  gentleman  was  that  he  saw  at  the 
railway  office.  The  trucks  were  detain- 
ed in  April  until  the  higKer  rate  was 
paid,  but  he  did  not  know  that  of  his 
own   knowledge 

Henry  Wm.  Clark,  who,  at  the  time 
of  the  dispute  was  with  Hopkins  and 
Co.,  stated  he  had  written  a  good  many 
of  the  letters  in  conjunction  with  Mr. 
Hopkins.  Mr.  Wilson,  the  cartage  con- 
tractor, reported  to  him  there  was  some 
difficulty  with  the  Railway  Department 
between  15th  and  19th  April,  and  wit- 
ness discussed  the  matter  with  Mr.  Ball, 
the  Goodfi  Superintendent,  who  said  he 
thought  his  department  was  correct  in 
charging  32s.  9d.,  but  that  another  de- 
partment had  come  down  on  them,  and 
386.  4d.  would  have  to  be  paid.  Mr. 
Ball  would  not  allow  witness  to  unload 
the  trucks  on  that  day  until  the  higher 
rate  was  paid.  On  witness's  promise  the 
trucks  were  released.  Mr.  Ball  took  up 
the  position  that  unless  witness  paid  for 
the  stone  he  could  not  have  it. 

Cross-examined  by  Mr.  Benjamin: 
Mr.  Ball  gave  him  to  understand  the 
trucks  would  not  be  released  until  the 
higher  rate  was  P^id. 

Robert  Henry  Wilson  said  ho  was  cart- 
age contractor  for  plaintiffs  laat  year. 
On  one  day  in  AprO,   witness  aent  five 


'*cAra  tniJSB**  law  AepoAts. 


m 


carta  down  for  stone,  &nd  they  were  «ent 
back  empty. ^  Witness  saw  Xfr.  Clark, 
and  drove  him  down  to  see  Mr.  Ball. 
There  was  a  delay  of  one  or  two  days 
before  he  could  get  the  !?tone. 

Mr.   Searle  closed  his  case. 

Herbert  S.  Ball,  Goods  Superinten- 
dent, said  he  was  the  penson  to  authorise 
tho  detention  of  ||^oods.  In  respect  of 
none  of  these  consignments  of  plHintiflP's 
did  he  give  any  'order  for  detention,  un- 
til the  higher  rate  was  paid.  He  did 
not  tell  Mr.  Clark  that  th^y  would  be  de- 
tained until  the  higher  rate  was  paid, 
but  as  a  matter  of  iturt,  they  would  have 
been  detained  until  the  higher  rate  was 
paid.  By  an  error  made  by  a  clerk, 
the  lower  ra«te  was  at  first  charged. 

George  Anderson  said  in  April  of  last 
year  he  was  chief  clerk  in  the  Inwards 
Inquiry  Office.  The  charge  he  made 
was  32s.  9d.  per  ton,  and  that  was  the 
charge  made  in  February  and  March, 
but  instructions  came  from  the  General 
Manager's  office  that  the  rate  was  38s. 
4d.  He  would  not  have  given  the  in- 
formation as  to  rates  to  Mr.  Hopkins. 

[Maasdorp,  J. :  The  question  is.  does 
the  consignment  note  constitute  tlie  basis 
of  the  tariff?] 

Mr.  Searle :  The  consignment  note  is 
always  made  out  on  the  basis  of  tho 
tariff. 

Cross-examined  by  Mr.  Searle :  Advice 
notes  would  not  be  made  out  before  the 
goods  arrived.  An  invoice  was  always 
sent  with  the  goods  to  enable  tho  advice 
notes  to  be  mad(«  out. 

Mr.  Searle  said  that  in  this  ca^e  they 
got  no  advice  note. 

Continuing,  witness  said  he  took  up 
the  position  that  the  rate  to  be  charged 
was  32s.  9d.  Witness  received  instruc- 
tions to  charge  38s.  4d.,  and  did  so  up  to 
that  time.  Witness  thought  32s.  9d.  the 
proper  rate.  Witness  did  not  send  in 
the  account  for  back  rates.  As  a  fact, 
witness  had  nothing  to  do  with  the  mak- 
ing up  of  that  account.  Witness  had 
no  recollection  of  telling  Mr.  Wilson 
that  he  could  not  take  the  goods  away 
until  the  account  was  settled.  When 
witness  endeavoured  to  collect  the  ac- 
count for  the  trucks  which  arrived  on 
April  13  tlien  the  question  of  the  extra 
charge  was  raised.  Witness  wa<»  placed 
in  another  office  at  that  time. 

fMaasdorp.  J.:  Do  you  M\  stick  to 
your  own  opinion?] 

He  was  superseded  by  Mr.  Hall.  A 
n»n  named  Hill  made  out  some  of  the 
returns,  but  he  had  since  left  the  Gov- 
ernment  service. 

Mr.  Searle:  Was  it  because  of  this 
matter  he  left?— I  cannot  say  that  it 
was. 

Re-examined  by  Mr.  Benjamin:  Wit- 
ness denied  that  he  told  Wilson  that 
the  goods  could  not  be  removed  until 
the  acoount  was  paid. 

Harry  Aspinall  stated  the  tariff-book 
was  compiled  in  his  office.  The  rate 
WHS  fixed  at  388.  4d.  in  the  case  under 


dispute.  This  was  because  the  stone 
had  to  go  to  Stormberg,  which  was  in- 
land, and  charged  at  l|d.  per  ton  per 
mile,  and  then  it  had  to  come  to  Cape 
Town,  which  was  coastwards  and  the 
rate  was  ^d.  per  ton  per  mile.  The 
reason  the  inland  rate  was  so  high  was 
because  it  was  against  a  gradient,  and 
it  cost  considerably  more  to  do  it. 
The  witness  was  closely  examined  as 
to  tho  method  of  calculating  the  rates, 
and  explained  that  it  was  a  matter 
both  of  naulage  and  empty  trucks.  The 
advertisement  which  appeared  in  the 
papers  with  regard  to  the  rates  on 
^tone  from  Queen's  Town  to  Cape  Town 
had  nothing  to  do  with  this  contract, 
the  reason  being  that  the  Commissioner 
wished  to  put  Queen's  Town  stone 
and  stone  from  other  inland  places  in 
a  favourable  position  to  compete  with 
imported  stone. 

Cross-examined :  The  line  between 
Rosmead  and  Naauwpoort  was  in  a 
more  northerly  direction  than  that  be* 
tween  Queen's  Town  and  Stormberg, 
but  they  gave  their  customers  the  bene* 
fit  of  that. 

Walter  Craig  Gallen,  clerk  in  the 
Inwards  Inquiry  Office  of  the  Goods 
Yard,  said  nobody  in  that  department 
would  have  given  Mr.  Hopkins  the  in- 
formation   he  wanted  about  the  rate. 

This  closed  his  case,  and  counsel  for 
plaintiff  having  been  partly  heard  in 
argument,  the  further  hearing  of  the 
case  was  adjourned  until  Monday. 

Counsel  having  been  heard  in  argu- 
ment, 

Maasdorp,  J.,  said  it  appeared  in  this 
ca«o  that  in  February,  1904,  plaintiff 
commenced  to  receive  consignments  of 
truck-loads  of  stone  in  the  rough  from 
Queen's  Town.  The  stone  was  carried 
by  the  Railway  Department  in  their 
trucks,  and  the  charge  was  made  at  tho 
rate  of  id.  per  ton  per  mile  for 
the  whole  of  the  journey.  In  April 
it  seemed  the  Railway  Department  were 
under  the  impression  that  they  had  dis- 
covered a  mistake  in  the  charge.  They 
thought  that  the  charge  should  have 
been  made  at  a  different  rote  from  that 
which  had  been  made  up  to  that  time. 
They  consequently  refused  to  deliver 
to  the  plaintiff  five  trucks  of  stone 
which  arrived  in  April.  The  conten- 
tion which  they  then  put  up  was  that, 
instead  of  328.  9d.  for  the  journey  from 
Queen's  Town  to  Cape  Town,  they  were 
entitled  to  and  bound  to  charge  under 
tho  tariff  388.  4d.  per  ton.  The  plain- 
tiff disputed  in  April  the  claim  made 
by  the  defendants,  and  the  plaintiff 
said  that  the  defendants'  servants  re- 
fused to  deliver  up  the  five  trucks  of 
stone  which  had  arrived,  unless  the 
higher  charge  of  38s,  4d.  was  paid.  Now 
before  the  Court  entered  into  the  con- 
struction of  the  contract,  he  would  like 
to  dispose  of  the  question  of  fact.  The 
legal  position  of  the  parties  might  be 
different,  according  as  it  wm     decided 


«5f 


"(^APH  TtMiSB"  LAW  bS^ittS. 


tionod  aa  prayed,  mutual  transfers  to 
be  passed  oy  the  various  owners,  in  the 
case  of  the  abeence  of  one  or  niore  of 
the  said  owners,  the  Hifj^h  Sheriff  to 
paM  and  receive  the  necessary  trans- 
fer for  such  absentee  or  absentees ;  Mr. 
Julius  Robert  Jaokaon,  of  Nelspoort, 
to  be  ajppointed  to  effect  the  said  parti- 
tion, all  parties  concerned  to  be  or- 
dered at  once  to  do  all  things  necessary 
to  enable  the  said  J.  R.  Jackson  to 
carry  out  his  said  duty;  that  all 
parties  concerned  pay  the  costs  of 
partition  pro  rata,  and  that  the  defen- 
aants  pay  the  costs  of  this  suit,  each 
to  bear  one-eighth  share. 


HEYDENRYCH  V.  STBEB. 

Mr.  Burton  (with  him  Mr.  De  Waal) 
was  for  plaintiff;  Mr.  Gardiner  (with 
him  Mr.  Russell)   was   for   defendant. 

Mr.  Burton  said  that  this  case  had 
been  settled,  and  he  had  to  move  for 
judgment  in  terms  of  consent  paper, 
which  was  as  follows:  Judgment  for 
plaintiff  for  (a)  the  sum  of  £1(X),  with 
mterest  at  the  rate  of  2^  per  cent,  per 
month  from  the  1st  August,  1903;  (b) 
the  sum  of  £150,  with  interest  a  tem- 
pore morae;  (c)  the  sum  of  £360  3s.  2d., 
as  and  for  damages,  and  that  defendant's 
claim  in  reconvention  be  dismissed,  with 
costs. 

Judgment  entered  in  terms  of  consent 
paper. 


GENERAL   MOTIONS. 


jE(v  parte  mckbnzie.       [^^^   j^j^ 

Mr.  J.  E.  R.  de  Villiers  moved,  upon 
notice  to  the  Master,  for  leave  to  pre- 
sume the  death  of  William  Ditty 
Streahorn,  and  for  directions  for  the 
appointment  of  an  executor  dative  in 
the  estate.  The  deceased  was  believed 
to  have  been  drowned  at  Three  Anchor 
Bay  on  the  18th  November,  1900.  He 
had  gone  to  Three  Anchor  Bay  to 
bathe,  his  clothes  were  found  on  the 
beach',  and  a  few  davs  later  a  body, 
which  it  was  impossible  to  identify, 
was  washed  ashore.  Counsel  read  the 
record  of  evidence  given  at  the  in- 
quest. Tlie  verdict  was  *'  Wa.«»hed 
ashore,  probably  drowned,"  the  Magis- 
trate adding  that  he  was  of  opinion  t  lat 
the  identity  of  the  deceased  had  not 
been  established.  Streahorn  left  cer- 
tain shares,  a  life  policy,  and  other 
assets. 

Leave  granted  to  presume  death,  and 
the  Master  authorised  to  take  steps 
to  appoint  an  €>xecutor  dative. 


Ex  parte  bcholtz 

Mr.  Bailey  moved  for  an  order  author- 
ising the  Master  to  pay  out  to  peti- 
tioner certain  moneys,  due  to  the 
minor  children  of  petitioner. 

The    Master    reported    favourably. 

Order  granted  in  terms  of  Master's 
report. 


Ex  parte  GURYUNG. 

Mr.  J.  E.  R.  de  Villiera  moved  for 
the  appointment  of  ^  a  curator  ad  litem 
to  represent  petitioner's  wife  in  an 
application  for  an  order  to  declare  her 
of  unsound  mind,  and  to  appoint  a 
curator  bonU  of  ner  property.  Peti- 
tioner's wife  was  at  present  confined  in 
the  Graham's  Town  Asylum,  but  peti- 
tioner resided  in  the  Orange  River 
Colony. 

Ordered  to  stand  over  for  further  in- 
formation, a  question  being  raised  as  to 
whether  this  was  the  proper  court  in 
which  to  proceed. 


KEATING  V.  NANNUCCI. 

This  was  an  application,  upon  notice 
calling  upon  the  respondent  to  show 
cause  why  a  certain  sum  of  £200,  now 
in  the  hands  of  the  Registrar  of  the 
Supreme  Court,  should  not  be  paid  oyer 
to  the  applicant,  less  £62  14b.,  which 
said  amount  applicant  owed,  and  had 
only  tendered  to  the  respondent  on  the 
20th  February.  1905.  in  settlement  of  a 
dispute  which  existed  between  the 
parties,  failing  acceptance  whereof,  why 
the  Court  should  not  order  the  said  mat- 
ter to  be  tried  before  an  official  arbi- 
trator, or,  as  a  further  alternative,  why 
respondent  should  not  be  ordered  forth- 
with to  proceed  with  an  action,  and  to 
show  cause  why  he  should  not  be  ordered 
to  pav  costs  of  the  application.  The 
respondent  had  given  notice  of  a  cross- 
application,  calling  upon  Waiting 
to  show  cause  why  he  should  be 
ordered  ito  proceed  by  action. 

The  matter,  it  appeared,  arose  out  of 
a  building  contract  that  Keating  enter- 
ed into  with  the  Mother  Superior  of  the 
Nazareth  House  for  the  erectaon  of  a 
laundry  block,  Keating  being  financed 
by  Nannuoci,  and  authorising  the 
Mother  Superior  to  make  payments  on 
account  of  the  contract  to  Nannuoci. 
Disputes  took  place  between  Keating 
and  Nannucci,  and  upon  motion  for  an 
interdict  the  Court  directed  any  moneys 
payable  under  the  contract  to  be  paid 
into  the  hands  of  the  Registrar  pending 
a  further  order  of  Court.  (15  C.T.R.. 
283.) 

Mr.  Struben  for  applicant.  Mr.  Close 
for  respondent. 

Mr.  Cloae  contended  that  »t  rested 
upon  Keating  to  bring  an  action  to  de- 
termine the  rights  of  the  parties  to  the 


"OAPA  TtBfES"  LAW  ttEPOElB. 


668 


money  in  court.  Hk  client  said  that 
Keating  owed  him  considerably  more 
than  £62  14e. 

Mr.  Struben  eaid  that  his  olient  was 
in  the  position  of  a  defendant  or  a 
debtor,  and  it  lay  upon  the  respondent 
to  bring  an  action  or  go  to  arbitM- 
tion. 

Hopley,  J.,  afiked  Mr.  Close  why 
he  objected  to  Roing  to  arbitartion. 

Mr.  Qoee  said  that  there  were  a  good 
many  people  who  preferred  a  court  of 
latw  to  arbitration. 

[Hopley,  J. :  It  depends  which  way 
the  Tesult  goes.] 

Mr.  Close  rejoined  that  people  who 
had  had  experience  of  both  preferred 
io  lose  at  the  Court  rather  than  at  the 
hands   of    an    arbitrator. 

An  order  was  granted  directing  the  re- 
spondent (Xannucci)  to  forthwith  bring 
an  action  to  establish  his  right  to  the 
sum  of  £200,  or  any  part  thereof,  costs 
of  application  to  stand  over. 

Hopley,  J.,  remarked  that  he  was 
sorry  that  tl^  parties,  instead  of  going 
to  the  additional  expense  of  an  action, 
could  not  have  referred  the  matter  to 
some  competent  person  to  decide  the 
disputes  between  them. 


Ex  parte  VAN  DEB  WE8THUYSEN. 

Mr.  P.  8.  T.  Jones  moved  for  leave 
to  pass  transfer  of  certain  land  situate 
in  the  district  of  Beaufort  West. 

The  property  had  been  bequeathed 
to  petitioner  and  the  children  of  her 
marriage.  These  were  all  now  majors, 
and  coneented  to  the  transfer;  but  in 
'wiefw  of  the  possibility  of  her  having 
further  issue,  the  Registrar  of  Deeds  re- 
fused to  pass  transfer  without  an  order 
of  Court. 

Order  granted  as  prayed. 


Ex  parte  LOMBARD. 

Mr.  Gardiner  moved,  on  behalf  of  the 
executrix  testamentary  in  her  late  hus- 
band's estate,  for  leave  to  raise  a  loan 
of  £1,000  on  certain  property  at  Cra- 
dock,  in  order  to  pav  for  property  pur- 
chased on  behalf  of  the  estate  in  the 
Transvaal. 

Order  granted  as  prayed. 


SANER  V.  BBADLBY  AND  CRAVEN. 

Mr.  Burton  moved  for  a  commission 
to  take  the  evidence  of  Mr.  H.  F.  Reply 
in  Cape  Town  and  two  witnesses  in  Jo- 
hannesburg. 

Mr.  Gutsche  (for  Bradley  and  Craven) 
consented,  subject  to  the  inclusion  of  a 
witness  to  be  examined  on  behalf  of 
his  clients  in  Johannesburg  or  Cape 
Town. 


Commission  granted  to  examine  the 
four  witnesses  named,  Mr.  Van  Zyl  to 
be  commissioner  in  Gape  Town  and  Mr. 
Saul  Solomon  in  Johannesburg,  costs  to 
be  costs  in  the  cause. 


Ex  parte  TBE  NEW  CAPE  COLLIERIES,  LTD. 

Mr.  Struben  moved  for  the  registra- 
tion of  certain  servitude  of  a  railway 
line  in  the  division  of  Albert.  The  farm 
ov«er  which  the  railway  passed  had  been 
bequeathed  subject  to  the  condition  that 
it  was  not  to  be  sold  until  the  dearth  of 
all  the  testator's  children.  In  violation 
of  this  condition  a  portion  had  been 
sold  to  a  railwav  company. 

Order  granted,  empowering  the  Re- 
gistrar of  Deeds  to  register  the  servi- 
tude, upon  the  sum  of  £700  being  de- 
posited with  a  trust  company  to  the 
satisfaction  of  the  Registrar,  to  abide 
the  final  distribution  of  the  proceeds 
of  the  land  in  terms  of  the  will. 


SUPREME  COURT 


FIRST  DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Ma  asdorp.] 


REX  V,  KINSLEY. 


{ 


1905. 
Aug.  14th. 

This  was  an  appeal  from  the  decision 
of  the  Assistant  Kesideut  Magistrate  at 
Cape  Town  in  a  case  in  which  the  ap- 
pellant was  charged  with  the  theft  of  10s. 
by  means  of  embezzlement  and  of  4s.  6d. 
fiom  the  Table  Bay  Fish  Company,  in 
which  he  wafi  employed.  Appellant  was 
convicted.  The  appeal  was  on  the 
ground  that  the  decision  was  not  sup- 
ported by  the  weight  of  evidence. 

Mr.  Van  Zyl  appeared  for  the  appel- 
lant, and  Mr.  Nightingale  for  the 
Crown. 

Mr.  Van  Zyl  said  there  was  very  little 
evidence  to  support  the  first  charge  of 
theft  by  embezzlement  of  lOs.  There 
must  be  felonious  intent,  and  there  was 
no  felonious  intent  here,  the  accused 
rightly  or  wrongly  assuming  that  it  was 
his  own  property.  If  there  was  a  ground 
for  complaint  then  the  proper  remedy 
was  a  civil  action.    As  to  the  48.  6d.,  all 


6U 


"CAPtt  rmm**  law  reportb. 


tbe  evid«uoe  dhuwcd  thuro  was  no  theft 
committed.  The  buaiiieaB  of  tbe  com- 
plainant Steer  aj^ieared  to  have  been 
carried  on  in  a  Tery  lax  way,  and  a  Tery 
ugly  foaturo  of  the  case  was  Steer's  de- 
sire to  come  to  a  settlement  for  £18  for 
stock  he  said  he  had  lost.  Taking  all 
the  circumstances  into  consideration,  ho 
submitted  there  was  no  ground  for  con- 
viction. 

Maasdorp,  J.,  without  calling  upon 
Mr.  Nightingale,  said  the  Magis- 
trate oame  to  the  conclusion  that 
there  was  a  criminal  intention,  and 
he  though  there  was  abuiidaut  evi- 
dence to  support  the  contention  of  the 
Magistrate.  As  to  the  charge  of  theft  of 
4«.  6d.,  the  Magistrate  oame  to  tbe  con- 
clusion that  the  theft  was  proved,  and 
tbe  Court  would  not  interfere  with  that 
decision. 

The  appeal  wae  therefore  dismissed. 


HEX  V.  ZELO. 


This  was  an  appeal  from  the  Resident 
Magistrate,  Umtata,  sentencing  the  ap- 
pellant to  nine  months'  imprisonment  for 
contravening  Act  35  of  1893,  amended 
by  Proclamation  109  of  1900,  in  that  on 
the  25th  June  last  he  wrongfully  and 
unlawfully  stole  a  goat  the  property  of 
one  Siekete.  The  appellant  pleaded  not 
guilty.  The  a.ppeal  was  based  on  the 
grounds  that  the  decision  was  contrary 
to  the  weig'ht  of  evidence. 

From  the  evidence  for  tbe  prosecution, 
it  seemed  that  a  goat  was  stolen  from 
Siekete's  kraal,  and  about  the  same  time 
the  appellant  sold  the  skin  of  a  goat  to 
a  local  dealer.  The  skin  was  identified 
by  Siekete.  For  the  defence  the  rela- 
tives of  the  appellant  were  examined, 
and  they  stated  that  the  goat  had  been 
reared  by  bim. 

Mr.  Benjamin  appeared  for  appellant, 
and  Mr.  Nightingale  represented  the 
Crown. 

Mr.  Benjamin  contended  that  as  the 
balance  of  evidence  was  in  favour  of  the 
appellant,  he  was  entitled  to  succeed  in 
the  present  case. 

Mr.  Nightingale  contended  that  the 
evidence  brougnt  forward  for  the  defence 
at  the  magisterial  investigation  was  not 
very  reliable,  as  the  appellant  and  his 
principal  witness  had  been  undergoing 
imprisonment  for  theft. 

Maasdorp,  J. :  There  was  a  great 
conflict  of  evidence  on  some  ma- 
terial points  which  the  Magistrate 
seemed  to  have  given  against  the 
accused.  The  whole  quesrtion  was: 
Could  the  varacity  of  the  accused  be 
relied  upon?  The  evidence  for  the  de- 
fence on  two  important  points  waa  found 
to  be  false,  and  the  Magistrate,  taking 
that  into  consideration,  was  quite  right 
in  finding  that  the  goat  belonged  to  Sie- 
kete.   Tne  appeal  would  be  dismissed. 


HEX   V.  EZDUOWBKl. 

Act  47  of  1902,  Sec.  11— Sec.  3  (c). 

E.  had  faUfly  represented 
he.rm^lf  to  the  JnimujrcUion 
ojjicer  as  a  married  woman ^ 
whose  httsbaml  teas  resident  in 
S,  Ajrica,  Three  treeks  after 
landing  she  teas  married^  and 
then  reffresented  herself  as  a 
spinster. 

Held  on  appeal,  that  she  had 
been  rightly  convicted  under 
Sec.  11  of  Act  47  of  1902, 


This  was  an  appeal  from  the  deci<»ion 
of  the  R.M.  of  Cape  Town,  sentencing 
the  appellant  to  pay  a  fine  of  £10,  or 
the  alternative  to  undergo  two  months' 
imprisonment,  with  hard  labour,  for  con- 
travening section  11,  part  2,  of  Act  47 
of  1902,  in  making  a  false  declaration 
under  t-ho  Immigration  Act.  She  was 
tried  before  the  Assistant  Resident 
Ma^ifttrate,  who  held  a  preliminary  in- 
vestigation, and  committed  appelant 
for  trial,  but  the  case  was  remitted 
by   the   Attorney-General. 

The  appeal  was  based  on  the  grounds 
that  the  Immigration  Act  did  not  apply 
to  her,  she  bein?  exempted  therefrom 
under  section  3  of  the  Act. 

From  the  evidence  it  appeared  that  the 
appellant  gained  admission  to  the  Colony 
by  telling  the  Immigration  Officer  that 
sne  was  a  married  woman,  and  was  pro- 
ceeding to  Johannesburg  to  join  her 
husband,  whereas,  three  weeks  after 
landing,  she  was  married  at  the  Registry 
Office,   Wynberg. 

Dr.  Greer,  for  the  appelant,  con- 
tended that,  as  she  had!  become  domi- 
ciled in  the  Colony  by  reason  of  her 
marriage  wdth  a  naturalised  British  sub- 
ject prior  to  the  proeocution  being  in- 
stituted, that  she  was  entitied  to  suc- 
ceed  in  her  appeal. 

Mr.  Nightingale  submitted  that  the 
present  case  was  one  that  the  Act  in 
ciuestion  w;ae  intended  to  meet.  By  say- 
ing she  was  a  married  woman,  she  en- 
dcavourod  to  establish  her  respectability, 
and  by  that  moans  succeeded  in  gaining 
admission  to  the  Colony,  which  she 
otherwise  could  not  have  done. 

Maasdorp,  J.,  said  that  the  ap- 
pellant in  this  case  made  a  false 
statement,  in  order  to  obtain  a 
certificate  for  the  purposes  of  the  Ac*.. 
Now  it  appeared  that  the  certificate 
which  it  was  necessary  for  her  to  obtain 
was  that  from  the  officer  appointed  to 
examine  into  these  matters,  in  order  to 
gain  permission  to  land  in  this  coun- 
try. In  order  to  obtain  such  permis- 
sion, she  stated  to  the  officer  that  ulie 
was  a  married  woman,  and  that  her 
husband  resided  in  Johannesburg.     That 


"CAPE  TIMBS"  LAW  REPORTS. 


665 


satisfied  the  officer  that  she  was  a 
married  woman,  and  upon  refereuoe  to 
the  Act.  it  seemed  that  he  was  satisfied 
to  proceed  no  further  in  his  examina- 
tion into  her  circumstances,  because  it 
appeared  that  under  section  3  of  ihe 
Act.  sub-section  D,  the  wife  of  a  jx^r- 
son  who  was  allowed  to  come  into  the 
country  should  bo  allowed  to  enter 
the  country.  As  soon  as  the  offi- 
cer found  that  she  was  exempted 
from  these  disabilities,  he  allowed 
her  to  iand.  He  stated  that  what 
satisfied  him  was  the  statement  mnde 
by  her,  and  that  it  was  in  consequciioo 
of  this  statement  that  he  gavo  tho 
necessary  permission.  Now  this  itato- 
ment  was  a  false  statement.  She  male 
this  statement  on  April  6,  and  it  ^as 
only  disooTered  to  be  false  when  she 
applied  to  the  Magistrate  for  a  licence 
in  June,  she  being  then  called  upon  to 
make  a  declaration  as  to  her  condition, 
and  she  described  herself  as  a  spinster. 
Upon  that  inquiry  was  made,  and  it 
was  found  that  she  oontrayened  the  Act 
on  the  6th  April  It  had  been  argiit^d 
by  Dr.  Greer  on  her  behalf  that  she 
was  exempted  from  prosecution,  be- 
cause she  now  came  under  the  descrip- 
tion g[iven  under  section  3,  being  now 
the  wife  of  a  person  exempted  in  this 
colony.  It  waa  clear  that  the  offence 
she  committed  was  not  excused  by  any 
subsequent  change  of  condition.  The 
offence  was  committed  in  April,  and 
her  subsequent  marriage  only  took  place 
in  June.  It  was  quite  clear  that  there 
was  a  contravention  of  the  section  in 
April,  and  under  these  circumstances 
the  appeal  would  be  dismissed,  with 
costs. 


had  passed  md  of  defejidanfs 
control. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 


MCKILLOP  V.  ZUCKEBHAN.  I  j^^i    jith. 

Sale  and  purchase — Dominium  — 
Fraad. 

One  S.  had  ohtnined  certain 
goods  from  K.  by  means  of 
fraudulent  misrepresentations. 
S.  thereafter  sold  them  to  Z  ^ 
from  whom  K.  iww  claimed 
them. 

Held,  that  as  the  dominium  of 
the  grtods  had  never  vested  in 
S,y  K.  tras  eiditled  to  vindicate 
his  goods  and  to  rerover 
images  for  such  of  them  as 


This  was  an  action  brought  by  J.  R. 
McKillop,  tile  and  marble  merchant. 
Cape  Town,  against  Joseph  Zuckerman, 
carrying  on  business  in  Cape  Town  a^ 
the  Colonial  Cabinet  Factory,  for  re- 
storation of  100  marble  table  tops  or 
slabs,  or,  in  default,  payment  of  their 
value  of  £59  16s. 

Plaintiff,  in  his  declaration,  said  that 
on  the  12th  May  last  he  had  in  his  pos< 
session  124  marble  tops,  of  the  value  of 
£73.  On  that  date  defendant,  without 
the  knowledge  or  consent  of  the  plain- 
tiff, obtained  possession  of  100  of  the 
said  marble  tops,  of  the  value  of  £56 
16s.,  and  wrongifully  and  unlawfully  de- 
tained the  same,  and  although  called 
upon  to  do  so,  refused  to  restore  the 
same  to  plaintiff. 

Defendant,  in  hia  plea,  said  that  ha 
was  not  aware  that  plaintiff  was  the  own- 
er of  any  marble  table  to^s  in  his  (de- 
fendant's) poesession,  and  that  he  nad 
purchased  100  marble  table  tops  from 
one  O.  R.  Smith,  of  Main  road,  Clare- 
mont.  Tlie  said  Smith  was  the  true  and 
lawful  owner  of  and  was  entitled  to  sell 
the  same.  Defendant  prayed  that  the 
claim  might  be  dismissed  with  costs. 
Plaintiff,  in  his  replication,  denied  that 
Smith  was  at  any  time  the  true  and  law- 
ful owner  of  the  said  table  tops,  or  that 
he  had  at  any  time  the  rignt  to  sell 
the  said  table  tops.  Smith  obtained  the 
said  table  tops  on  condition  that  he  paid 
to  the  plaintiff  forthwith  a  sum  of  £45. 
Smith  did  not  then,  and  had  not  since, 
paid  the  said  sum  of  £45,  or  any  part 
thereof.  Defendant  said  further  that  if 
the  said  sale  did  take  plaoe  it  waa  in- 
effectual in  law,  and  defendant  could 
not  claim  any  property  in  the  said  table 
tops.  As  an  alternative,  plaintiff  said 
that  Smith  obtained  po»<w)saion  of  tlH> 
goods  by  fraud,  representing  that  a 
cheque  for  £45,  which  he  had  handed  to 
plaintiff,  was  good  and  valid,  and  that 
there  were  funds  to  meet  it.  The  said 
cheque  was  dishonoured  by  the  ba'«k  for 
want  of  funda. 

Defendant,  in  his  rejoinder,  said  that 
he  had  no  knowledge  of  the  allegations 
as  to  transactions  between  plaintiff  and 
Smith,  and  as  to  the  dishonoured 
cheque. 

Mr.  M.  Biflset  (with  him  Mr.  Douglas 
Buchanan)  wa«  for  plaintiff;  Mr.  P.  S. 
T.  Jonos  was  for  defendant. 

Mr.  Jones  applied  for  leave  to  amend 
the  plea,  inasmuch  as  the  defendant  had 
bona  fide  disposed  of  a  number  of  the 
marble  tops  to  third  parties.  Defendant 
had  in  his  possession  28  large  table  tops 
and  56  small  ones,  and  counsel  applied 
to  amend  the  plea  accordingly. 

Mr.  Bisset  objected  to  such  an  amend- 
ment. 


656 


«« 


OAPB  TIMB8"  LAW  BBS>OBTB. 


Hopley,    J.,    decUned    to    allow    the    I 
amendment  at  this  stage.  ' 

Joeeph  Robinson  McKillop  (the  plain- 
tiff) said  that  he  carried  on  busineas  in 
Hout-«treet  as  a  tile  and  marble  mer- 
chant. He  recollected  the  sale  on  the 
12tb  May  last  of  the  table  tops  in  ques- 
tion to  Mr.  Smith.  Mr.  Stevenson 
acted  on  behalf  of  witness.  Smith,  he 
understood,  bought  124  marble  table 
tops  for  £73,  and  g-ave  him  a  cheque  for 
£45.  Witness  would  not  have  allowed 
the  goods  to  go  out  of  his  possession  had 
the  cheque  not  been  handed  over  forth- 
with, ile  had  had  small  cash  transac- 
tions with  Smith  previously.  The 
cheque  was  drawn  on  tne  Standard  Bank 
and  was  dishonoured.  Witness  claimed 
100  marble  slabs  from  Mr.  Zuckerman, 
24  having  been  traced  to  the  possession 
of  another  merchant.  Criminal  pro- 
ceedings were  instituted  in  regard  to 
Smtth,  and  certain  affidavits  had  been 
filed,  but  Smith  had  not  been  arrested, 
having  abc^conded. 

Herbert  Garland  Stevenson,  an  assist- 
ant in  plaintiff's  employ,  said  that  on 
the  12tn  May,  Smith  said  that  he 
had  obtained  an  order  for  100  suites 
of  furniture  from  Gar'ick's,  and  that 
he  wanted  the  marble  tops.  Smith 
went  awav  ostensibly  to  show  a  sample 
to  Garlick  a,  and  then  r^iturned  and  said 
that  he  would  take  124  of  the  elabs.  the 
small  ones  to  be  lis.  each,  and  the  large 
ones  at  15s.  Witness  knew  at  that  time 
that  Smith  was  a  cabinetuiaber  at  Olare- 
mont.  Smith  said  that  he  would  let  him 
have  £45  on  account,  and  that  he  would 

S've  him  the  balance  on  the  following 
'onday.  Smith  gave  him  a  cheque  !oi 
£45.  Witness  then  delivered  the  goodi 
over  to  Smith,  who  said  that  he  was  tak- 
ing the  goods  to  his  shop.  Witness  in- 
quired at  Garlick's,  and  found  that  thoy 
had  not  given  Smith  an  order  for  furni- 
ture, but  had  bought  24  marble  topi! 
from  him.  Smith  had^  bought  tab^e 
tops  preiriously  from  plaintiff,  but  had 
alwavs  paid  cash,  the  transactions  being 
small.  Th')  oroodf  were  put  on  two 
wagons  after  delivery  had  been  given  to 
Smith.  Witness  afterwards  saw  the 
driver  of  the  wagons  (Cohen),  who  told 
him  that  he  had  taken  the  marble  tops 
to  Zuckerman's  store.  Witness  found 
that  all  the  table  tops  sold  by  Smith 
to  Garlick's  were  small. 

Cross-examined  :  Witness  did  not  know 
at  the  time  of  the  transaction  that  Smith 
was  in  difficulties 

Plaintiff  (recaUed)  said  that,  as  near 
an  he  could  calcula:te,  the  cost  of  the 
table  tops  landed  at  his  shop  would  be 
8s.  for  small  tops  and  lOs.  6a.  for  large 
ones. 

Isaac  Cohen,  a  wa^on-driver.  said  that 
in  May  laert  a  man  came  to  him  and 
ordered  him  to  load  up  his  wagon  at 
McE[illop's  store  with  marble  tops.  He 
took  a  load  and  a  half  to  Zuckerman's 
tftore  and  a  haflf-load  to  Garlick's.  Smith 
accompanied  witness  on  the  wagon. 


Willoughby  Seymour,  clerk  in  tha 
Standard  Bank,  Claremont,  said  that  a 
man  named  George  Reginald  South 
opened  an  account  on  the  3rd  May  last, 
and  deposited  £20.  On  the  12trh  May 
last  Smith  had  5s.  to  his  credit.  The 
cheque  for  £45  was  nreeented  and  dis- 
honoured for  want  of  funds. 

Jos€>ph  Charles  Mitchell,  manager  of 
the  turiiiture  department,  Garlidc's 
stores,  said  that  he  agreed  to  purchase 
24  slabs  from  Smith  upon  a  sample 
that  the  laitter  producca.  That  was 
the  only  trannictaon  Garlick's  had  had 
with  Smith.  They  had  not  given  an 
order  for  100  suites  of  furniture. 

Cross-examined :  They  could  import 
similar  slabs  at  6s.  6d.  '^^^  bought 
tihe  slabs  from  Smith  sA  6s.  Thev  were 
short  of  the  slabs  at  the  time,  ana  were 
awaiting  delivery  of  similar  goods  from 
Europe  at  their  stores  at  6s.  6d. 

Mr.    Bisset  closed  his  case. 

The  defendant.  Jcsepih  Zuckerman, 
Colonial  Cabinet  Manufacturing  Com- 
pany,  said  that  he  had  had  some  diffi- 
cult v  about  obtaining  slabs  from  Eng- 
land, and  had  had  to  borrow  from  local 
firms.  He  was  short  of  slabs  when 
Smith  offered  him  the  goods  in  ques- 
tion. He  knew  Smith,  but  he  had  had 
no  previous  dealings  with  him.  He 
understood  thst  Smith  got  the  goods 
from  the  Docks.  The  goods  arrived 
without  crates,  and  witness  commented 
on  this  fact,  whereupon  Smith  said  that 
he  had  unpacked  the  slabs  at  the  Docks 
for  the  purposes  of  selling  in  different 
lots.  Wrtness  agreed  to  pay  Smith  6i. 
each  for  60  small  slabs,  and  8s.  6d. 
each  for  40  larger  ones,  except  four 
which  had  been  damaged,  and  upon 
which  Smith  made  an  allowance.  Wit- 
ness agreed  to  pay  £33  6s.,  less  5  per 
cent,  for  cash,  his  payments  being  £20 
and  £11  13e.,  making  a  total  of  £31  13s. 
Before  Mr.  McKillop's  i:epre6entative 
and  a  detective  called  at  his  place  on 
the  following  Tuesday  he  had  used  12 
of  the  large  slabs,  and  had  delivered 
six  back  to  the  Louvre.  He  had  than 
84  slabs  in  his  poeseesion.  The  white 
slabs  were  chea*>er  than  the  coloured 
slabs. 

Cross-examined  bv  Mr.  Bisset:  He 
suggested  to  take  tne  detective  round 
and  show  him  the  slabs.  He  told 
McKillop's  representative  that  if  he  had 
authority  from  the  Court  he  would  show 
him  the  elabs.  It  did  not  strike  him 
as  strange  that  the  man  ibould  go  round 
selling  slabs  in  a  large  quantity.  Wit- 
ness took  it  that  he  was  an  importer 
The  explanation  given  of  the  slaos  be 
ing  loose  was  that  the  goods  had  been 
unpacked  with  a  view  to  their  disposij 
in  different  quanitities.  He  never  had 
anjr  suspicions  with  regard  to  this  trans- 
action. The  driver  told  witness  that  the 
goods  oame  from  a  Btore,  but  it  did  not 
occur  to  him  to  ask  where  the  store 
was.     With  regard  to  the  price  of  tb^ 


"CAFE  TIMSS"  LAW  BBPORT& 


667 


goods,  be  considered  that   be  paid  full 
value  for  tbem. 
Mr.  Jones  closed  hi^  ease. 
Counsel  baving  been    heard    in  argu- 
ment on  tbe  f&otfi, 

Hopley,  J. :    If  I  had  had  any  doubt 
as  to  tbe  way  in  which    my    judgment 
should   go  in   this  case,   I    should   have 
taken  time  to  formulate  the  judgment, 
and   to   (go    into     all     the     authorities, 
in     view     of    the    somewhat     interest- 
ing   circumstances    of    this    ca.se,     and 
of       the     way      in     which     the     points 
have     been     argued.        But     it     seems 
to  me  that,  after   all,    the   case  may  be 
reduced  to  very  simple  limits,  and  there 
ought  to  be  no  doubt,  as  our    law  stands, 
as  to   the  way   in    which  the  judgment 
in  this  case  should  go.     On  Friday,  May 
12,   Smith  went  to  the  plaintiff's  shop, 
and  represented  that  be  had  obtained  a 
considerable  order  for  furniture      from 
Garlick*8,  and  that  he  would  retiuire  about 
100  slabs-  for   the  purposes   ot  this   con- 
tract.     He  got  two  specimens,  and  went 
away,  and  afterwards  returned     and  or- 
dered  124  of  these  slabs.        They   were 
not  given  to  him  on  credit,  and,  m  fact, 
I    have  no  reason   to   douot   Mr.      Mc- 
Killop  and  his  clerk  when  they  say  that 
the  matter  was  a  sale  for  cash,   as   all 
previous  transactions  had    been.        But 
instead  of  paying  in  cash.  Smith  wrote 
out  a  cheque,  representing  that  he  had 
the  money  in  a  bank  at  Claremont,  and 
he  gave  MoKillop  a  cheque  for  £45  in 
part      payment  of    the    whole   amount, 
which  was  £73,  and  he  also  received  a 
promise    from    Smith    that     he      would 
briikg  tbe  balance  of  the  money  on  the 
Monday.     Smith   took   the  slabs   away, 
and  sold  them  at  prices     much     under 
those  which  he  had   just  contracted   to 
pay  for   them.        AH     Smith's     actions 
showed  that  he  was  committing  a  fraud. 
Ho   had   never   received  an  order  from 
Grarlick's  for  this  oontract  that  he  spoke 
about,  and   he  had  no  mom*y     in     the 
bank  at  Claremont  to  meet  tne  cheque. 
It  is  a  perfectly  clear  case  of    swindling 
McKillop  out  of  his  goods  by  means  of 
false  pretences,  or  what  we    should  call 
in  the  Criminal  Courts  a  case  of  obtain 
ing  ^oods  bv  means  of  false  pretences,  a 
species  of  fraud  which   has  been      con- 
stantly dealt  with  by  our     Courts     in 
exactly  similar  circumstanc««,  and  treat- 
ed   as  a  species  of  <theft.     It   has   been 
argued  that,  because  MoKillop  took  this 
cheque,  and  because  he  agreed  to  wait 
until   Monday  for   the   balance   of  £28, 
the  transaction  was  a  sale  by  credit,  or 
partly    for    credit    and    partly  for  cash, 
and    that    accordingly    MoKillop    must 
be    taken    to    have    parted     with     his 
dominium      in     these     goods.         It      is 
quite     possible,      if     the     matter     had 
stood  simply  there,  and  there  had  been 
no  fraud  in  this  matter — if  this  cheque 
had   not  been  a  fraudulent  one,   and   if 
there  had   been  no     fraudulent     repre- 
sentations— ^I  might  have  held  that  under 
the  circumstances  dominium  passed  from 


tbe  plaintiff  to  Smiih.  I  quite  agree 
that  the  doctrine  of  law  in  this  colony, 
wh«reby  a  person  can  reclaim  from  a 
third  party  who  has  obtained  botia  fide 
ad  id  for  valuable  consideration  any  goods 
sold  for  cash  if  they  have  not  been  paid 
for  is  one  that  should  not  be  extended. 
That  d!octrine  applies  where  the  sale  in 
the  first  instance  was  bona  fide.  But 
here  is  a  case  in  which  the  goods  were 
practically  stolen,  and  I  cannot  hold 
that  plaintiff  passed  dominium  in  the 
property  to  a  thief  like  Smith,  who 
was  tricking  him  out  of  these  goods, 
and  Smitth  could  not  pass  to  the  defen" 
dant  any  fpreater  rights  in  the  property 
than  he  hinuself  ipossesaed.  It  is  un- 
doubtedly a  hard  case  for  the  defendant, 
but  wo  must  administer  the  law 
as  it  stands,  and  |udgmenit  must 
be  for  the  plaintiff  m  this  case.  It 
is  said  that  gome  few  of  the  slabs  had 
been  parted  with  by  the  defendant,  but 
I  do  not  think  that  that  can  be  on  the 
presc.n.t       pleadings    any    defence.  I 

think  that  Mr.  Bissot  was  perfectly 
right  in  objecting  to  any  amendment  of 
the  pleadings.  Judgment  will  be  given 
for  the  plaintiff  for  the  return  of  such 
of  the  goods  belonging  to  him  as  defen- 
dant still  has  in  his  possession,  or  others 
of  similar  quality,  to  make  up  the  full 
quantity,  and  in  ree^pect  of  any  that  he 
cannot  so  return  he  must  pay  the  plain- 
tiff at  the  rate  of  10a.  for  earh  lanrge 
slab  and  7s.  6d.  for  each  small  slab. 
Defendant  must  pay  the  costs  of  suit. 

[Plaintiff^s  Attorneys :  Reid  and  Nep- 
hew ;  Defendant's  Attorneys :  Silber- 
bauer,  Wahl  and  Fuller.] 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 


CARB  AMD  CO.    V.    LENDERS  f        1905. 


AND  CO. 


Auj?.  loth. 


Contract,    verbal — Breach — Mea 
sure  of  damages. 

Thie  was  an  action  brought  by  Carr 
and  Co.,  tea  and  ooffee  merchants,  Cape 
Town,  against  F.  H.  Lenders  and  Co., 
of  Cape  Town,  and  elsewhere,  to  re- 
cover a  sum  of  £66  lOs.,  as  and  for  dam- 
ages   for   breach  of  contract. 

The  declaration  stated  thai  in  Novem- 
ber, 1903,  the  plaintiffs  entered  into  a 
contract  to  purohaae  100  ba^  of  coffee 


(558 


"CAPE  TIMES"  LAW  REPORTS. 


from  the  defendants,  50  ban  to  be  of  th« 
quality  known  aa  *'  peg-uTars,"  and  the 
reat  to  bo  of  the  quality  known  as 
"  fourths."  The  price«  were  to  bo  26s. 
9.1.  per  100  lb.  for  "  regulan,"  hui 
22b.  6d.  per  100  lb.  for  -  fourthi^,"  both 
to  be  c.  and  f.  Defendants  neglected  to 
carry  out  the  contract,  and  subsequently 
repudiated  it.  Plaintiffs  had  to  purchase 
coffee  elsewhere,  and  they  now  claimed 
damages  at  the  rate  of  lOs.  per  100  lb. 
on  both  qualities,  each  ba^  actually  con- 
taining about  130  lb.  Plamtiffs  said  that 
the  market  for  coffee  had  since  the  said 
sale  risen  greatly,  and  thev  prayed  for 
judgment  for  £66  lOte.,  with  coste. 

Defendants,  in  their  plea,  denied  that, 
as  alleged  in  the  declaration,  they  were 
registered  aa  a  joiivt  stock  company  in 
this  colony,  and  said  that  their  head 
office  was  in  Johannesburg.  They  ad- 
mitted that  the  Cape  Town  branch  took 
tho  order  from  the  plaintiffs,  but  said 
that  H  was  agreed  between  the  parties 
that  such  order  ahculd  be  taken,  subject 
to  confirmation  bv  the  defendants*  head 
office  in  Johanneeourg.  On  the  day  fol- 
lowing the  taking  of  the  said  order  the 
head  office  of  the  defendant  company 
refused  to  confirm  the  same.  They  de- 
nied that  the  plaintiffs  had  suffered  any 
damages. 

Mr.  Benjamin  was  for  plaintiffs;  Mr. 
J.  E.  R.  de  Villiers  (with  him  Mr. 
Douglas  Buchanan),  was  for  defendants. 

Jerome  Washington  Donovan  (a  mem- 
ber of  the  plaintiff  firm)  said  that  he 
had  had  six  or  seven  transactions  with 
the  defendants.  He  met  Mr.  Joy  (de- 
fendanta'  manager)  in  Ohursh-square  in 
November.  1903,  when  Mr.  Joy  told  him 
they  could  make  him  a  good  offer  of 
coffee.  A  few  days  later  witness,  from 
his  office,  rang  up  the  defendants  on  the 
telephone  in  order  to  speak  to  one  of 
their  employees,  Mr.  Ericson.  Mr.  Joy 
answered  the  telephone,  and  told  him 
that  he  had  got  the  prices  of  coffee.  Wit- 
ness eventually  told  him  that  if  he 
bought  he  would  take  fifty  bags  of  each 
quality,  and  that  he  would  waJk  over  to 
defendants'  office.  The  tomrw  were  to 
be  c.  and  f.  26o.  9d.  per  100  lb.  for  "  re- 
gulars" and  22s.  6d.  per  100  lb.  for 
"  fourths."  He  went  over,  and  saw^  Mr. 
Ericson,  who  produced  a  copy  containing 
the  terms  that  Mr.  Jo^  had  given  him 
over  tho  telephone.  Erioson  pointed  out 
a  mistake  on  the  paper,  which  ^ave  the 
terms  as  c.i.f.  He  said  that  this  would 
have  to  be  altered,  and  witness  agreed 
to  take  50  bags  of  each  kind  of  coffee 
at  the  prioes  named,  but  c.  and  f.  Wit- 
ness subsequently  saw  Mr.  Joy,  who  said 
that  he  had  made  a  mistake  in  regard  to 
the  c.i.f.  terms.  Witness  rejoined, 
*'  That's  all  right ;  send  the  coffee 
along."  The  usual  weight  of  a  bag  of 
Rio  de  Janeiro  coffee  such  as  they  were 
dealing  in  waA  130  lb.  It  was  usual  to 
allow  three  months  for  delivery  of  Rio 
coffee.       No  mention  was  mode  during 


the  negotiations  about  the  ootitract  being 
subject  to  confirmation  from  the  Johan- 
nesburg office.  Two  or  three  days  after 
the  contract  had  been  entered  into  Joy 
rang  witness  up  on  the  telephone,  and 
said  that  the  coffee  would  be  3d.  per  100 
lb.  more  than  he  had  stated,  witness 
said  th-at  he  would  not  pay  any  such 
sum,  and  that  he  would  keep  the  de- 
fendants to  their  bargain.  About  three 
montho  later  Mr.  Joy,  when  spoken  to 
by  witness,  denied  that  he  had  entered 
into  any  contract  of  sale.  Witness  had 
never  purchased  coffee  from  defendants 
subiect  to  confirmation  by  the  Johan- 
nesDurg  office.  He  had  since  had  io 
purchase  coffee  from  Brussels  and  Ant- 
werp in  consequence  of  the  failure  of 
the  defendants  to  supply  them  with  the 
**  fourths  "  ordered.  Tliat  coffee,  ho 
calculated,  cost  them  about  15  per  cent, 
more  than  the  terms  arranged  with  the 
defendants  They  also  bought  **  regu 
lars  "  from  Mr.  Van  der  ByT  from  4Ss. 
to  486.  per  100  lb.  The  market  was  go* 
ing  up  all  the  time. 

Cross-examined:  At  the  time  of  the 
contract  he  did  not  know  that  the  de- 
fendants' head  office  was  in  Johannei- 
burg.  All  the  commimications  leading 
up  to  the  contract  were  verbal.  Wit- 
nees's  firm  were  coffee  roasters  and  tea 
blenders,  and  carried  on  a  wholesale 
business.  Defendants  carried  on  busi- 
ness on  quite  &  different  scale  fi'um  wit- 
ness's firm.  W'itness  often  bought  50 
bags  of  coffee  by  word  of  mouth.  Wit- 
ness did  not  thmk  there  was  anything 
unusual  about  there  being  no  documents 
embodying  the  contract  between  witness 
and  Joy.  Witness  did  not  know  why 
no  questions  concerning  the  third  tele- 
phonic communications  between  witness 
and  Mr.  Joy  were  put  to  the  latter, 
when  he  gave  his  evidence  on  commission 
in  London.  When  Joy  told  him  that 
he  must  pay  3d.  per  100  lb.  more  wit- 
ness thought  Joy  was  simply  trying  to 
pet  a  little  more  out  of  him. 

Joseph  L.  O'Brien  (another  member 
of  the  plaintiff  firm)  said  he  gave  the 
telephonic  message  about  the  coffee 
from  defendants  to  Mr.  Donovan.  In 
the  letter  he  wrote  to  defendants  in 
February,  the  mark  c.i.f.  was  a  mis- 
take on  his  part. 

By  the  Court:  He  made  no  entry  of 
the  contract  in  any  of  the  books. 

J.  W.  Donovan  (recalled)  said  he 
took  a  note  of  the  prices  when  they  were 
questioned  bv  Mr.  Joy. 

James  William  Bam  (manager  of 
Van  der  Byl  and  Co.'s  grocery  depart- 
ment) said  the  price  of  coffee  in  Febru- 
ary. 1904,  was  45s.  to  48s.,  having 
risen  from  333.  in  November.  That 
was   the  price  of  "regulars." 

Mr.  Benjamin  cloeeo  his  case. 

For  the  defence,  counsel  read  the 
evidence  taken  on  commission  in  Lon- 
don of  William  Frederick  Joy,  who  was 
manager  of  the  Ci^w  Town   branol)  qf 


"OAPB  TIMES'*  LAW  REPORTS. 


659 


the  defendant  company  at  the  time  of 
the  alleged  contract.  Witness  stated 
that  he  told  Mr.  Donoyan  that  the 
prices  quoted  included  freight,  but  not 
insurance,  and  he  accepted  the  order, 
subject  to  confirmation  next  morning 
from  the  head  office  at  Johannesburg. 
He  was  perfectly  certain  of  that.  Next 
nooming  he  rang  up  Mr.  Donovan, 
and  said  he  could  not  let  him  have  the 
coffee  at  those  prices.  Witness  gave 
evidence  in  regard  to  certain  corre- 
spondence. He  went  on  to  say  that 
Donovan  was  well  aware  that  he  only 
took  orders  subject  to  confirmation. 
Donovan  had^  previously  given  him  an 
order  on  similar  terms.  In  cross-exam- 
ination, witness  said  that  if  Erioson  told 
Donovan  that  he  had  left  a  paper  giv- 
ing the  prices,  he  was  mistaken.  When 
witness  told  Donovan  that  he  must  ask 
an  increased  price,  the  latter  did  not 
accept,  giving  as  his  reason  that  he  had 
bought  on  the  previous  day.  Witness 
never  authorisecl  Ericson  to  confirm  a 
oontraot  with  Donovan,  and  Ericson 
would  have  had  no  authority  to  confirm 
a  contract  in  witness's  absence. 

Counsel  having  been  heard  in  argu- 
ment, 

Hopley,  J. :  Tlie  only  question 
which  arises  in  this  case  is  whether 
the  contract  was  finally  concluded 
or     not.  The     plaintiff    says     that 

there  was  a  firmly-accepted  con- 
tract, and  that  there  was  a  perfect  con- 
sensus on  both  sides  between  him  and 
one  Joy,  who  was  the  authorised  re- 
presentative of  the  defendant  company 
m  this  town.  Joy  does  not  deny  that 
such  a  contract  was  made,  but  hie  says 
that  it  was  made  subject  to  the  confirma- 
tion of  the  head  office  of  the  defen- 
dants, which  he  (Joy)  says  was  in  Jo- 
hannesburg, but  of  which  there  is  no 
evidence  to  prove  that  plaintiff  knew 
at  that  time.  It  is  a  question  of  the 
evidence  of  Mr.  Jov*  against  that  of 
Mr.  Donovan.  I  nave  had  the  ad- 
vantage of  seeing  Donovan  himself; 
I  have  not  had  the  advantage  of  seeing 
Joy.  Donovan  seems  to  tell  a  per- 
fectly straightforward  story,  and  wtien 
we  look  at  the  telegrams  which  passed 
between  Joy  and  the  company  m  Jo- 
hannesburg, they  seem  to  me  to  sup- 
port most  strongly  and  almost  abso- 
lutely the  version  given  by  Mr.  Dono- 
van. The  first  telegram  that  he  sent 
was  the  telegram  of  a  man  who  had 
concluded  a  final  agreement  without 
any  stipulation  as  to  any  confirmation. 
The  impression  made  by  that  telegram 
is  confianned  bv  the  terms  of  the  second 
telegram  sent  by  him  on  the  same  day. 
both  of  which  ^int  to  an  out  and  out 
sale  without  stipulation.  Joy  after- 
wards discovered  tha^t  he  had  made 
a  miistake  in  regard  to  the  latent 
prices  of  coffee  at  Rio  de  Janeiro, 
and  it  might  then  have  become 
his  policy  to  get  out  of  ithis  con- 
tract as  well  as  be  oould.      I  have  come 

vl 


to  the  conclusion  that  the  contract  was 
completed,  as  alleged  by  the  plaintiff, 
on  tbe  27th  November.  1903.  In  the 
first  instance,  the  loss  was  only  of  a  few 
pounds,  but  it  was  a  rising  market, 
and,  as  time  went  on,  the  loss  become 
much  greater,  and  what  might  have 
been  settled  for  a  few  pouaids  in  the  first 
instance  grew  eventually  into  a  oonsid- 
orablo  loss;  and  Joy  seems  to  have 
thought  that  ae  no  brokor's  note  had 
passed  he  might  bo  ablo  to  repudiate 
the  contract:  but  he  did  nothing  di- 
rected to  that  end  until  he  and  Dono- 
van met  in  the  street  about  lOih  Febru- 
ary, 1904,  -when  he  for  the  first  time 
definitely  repudiated  the  sale.  lliat 
date,  therefore,  must  be  taken  in  order 
to  fix  ihe>  moasuFo  of  damages.  IMie 
plaintiffs  were  then  forced  to  purcha.«)e 
other  coffee  to  take  the  place  of  what 
they  had  purchased  from  the  defen- 
dants; and  the  differenco  in  the  prions 
in  the  amount  they  are  ei>titled  to  re- 
cover in  this  actdon.  The  amount 
claimed  seems  to  me  somewhat  less  th^n 
Mich  difference,  and  judgmemt  will  be 
for  the  plaintiffs  for  the  amount  olaimed 
by  them,   with  costs. 

[Plaintiffs'  Attorneys:  Tredgold,  Mc- 
Intyre  and  Bisaet ;  Defendants'  Attor- 
neys :  Reid  and  Nephew.] 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplet.] 


BALL  y.  BALL. 


190"). 

Auir.  l()th. 


This  was  an  aotion  for  divorce  brought 
by  Mrs.  Ball  against  her  husband  by 
reason  of  his  adultery  with  one  Amy 
Scott. 

The  plaintiff's  declaration  stated  that 
the  defendant  deserted  her  and  went 
with  Amy  Scott  to  reside  at  East  Lon- 
don. Plaintiff  followed  him,  and  lived 
with  him  again  for  a  couple  of  weeks. 

Mr.  Swift  appeared  for  the  plaintiff, 
and   the  defendant  was  in   default. 

Hopley,  J.,  said  that  that  action 
practically  amounted  to  a  condonation. 

Mr.  Swift  said  he  had  only  heard  of 
the  condona4;iion  too  late  to  bring  evi- 
dence of  subsequent  adultery  from  Bast 
London.  It  was  because  she  found  de- 
fendant continuing  to  live  with  Amy 
Scott  that  she  brought  this  action, 


660 


"CAPE  TIMES"  LAW  REPO&TB. 


The  plaintiff.  Christina  Ball,  etated 
Bfae  was  maTriea  to  defendant  in  1894, 
and  lived  happily  with  him  until  1901, 
Wthen  he  beoame  intimate  with  Amy 
Soott,  and  finally  went  to  live  with  her 
at  Woodstock,  and  afterwards  at  Sea 
Point.  Defendant  and  Scott  then  went 
to  live  at  East  London,  but  witness, 
having  heard  that  it  watt  all  right,  found 
her  husband  at  East  London,  and  lived 
with  -him  for  a  fortnight,  wlMsn  ahe  saw 
him  arm  in  arm  with  Scott.  He  then 
broke  up  the  home,  and  forced  witness 
to  leave.  There  were  three  children 
issue  of  the  marriage,  which  she  had 
since  had  to  support. 

The  application  waa  granted,  with  the 
custody  of  the  children. 


ESTATE  PLEHN  T.  BUAUMD. 

This  was  an  action  to  have  a  Bale  of 
certain  property  by  an  insolvent  declar- 
ed null  and  void. 

The  plaintiff's  declaration  stated  that 
the  estate  of  one  Plehn  was  seques- 
trated on  April  24,  1906.  shortly  after  he 
had  sold  his  shop  and  gcxxls  to  Braund 
for  £700.  Plaintiff  claimed  that  the  sale 
was  a  fraudulent  one  at  the  expense  of 
the  insolvent's  creditors,  and  that  the  de- 
fendant was  privy  to  the  faot  that  the 
estate  was  insolvent  at  the  time. 

Defendant's  plea  contended  that  the 
sale  was  a  bona-fide  one. 

Mr.  Close  (with  him  Mr.  Gutsche)  ap- 

Ered  for  the  plaintiff,  and  Sir  H.  Juta 
th  him  Mr.  Benjamin)  for  the  de- 
dant. 
Samuel  J.  Lamey  Plehn,  brother 
of  the  insolvent,  said  that  £887 
Os.  9d.  'had  been  proved  againat 
the  estate,  and  there  were  no 
assets  whatever.  The  insolvent  former- 
ly carried  on  business  at  the  Paarl.  A 
special  order  had  been  made  to  at- 
tach the  goods  in  the  shop,  but  the 
shop  was  found  to  be  in  the  posses 
sion  of  Braund.  Witness  had  not  been 
able  to  locate  the  insolvent,  who  had 
absconded.  There  were  no  means  of 
obtaining  the  books.  The  accounts 
proved  snowed  that  ithey  were  contracted 
more  t^an  two  months  before  the  sale 
to  defendant  Witness  had  seen  the 
deed  of  sale,  which  purported  to  pass 
the  shop  and  goods,  but  nothing  was 
said  about  the  goodwill.  The  goods 
were  valued  at  £623.  and  if  they  were 
brought  into  the  estate  they  would  be 
the  only  cueets  that  could  be  claimed  at 
all. 

Cross-examined :  He  did  not  know 
that  the  goods  were  in  defendant's  own 
sliop,  not  in  the  one  purchased  from 
Plenn.  No  request  had  been  made  to 
have  a  look  at  the  goods  or  to  have 
them  valued. 

Thomas  B.  Hunter,  traveller  for 
Messrs.  We*bster  and  Co.,  said  he  had 
business  transactions  with  Plehn  and 
his     brother   Bernard     for     about  ten 


months.  At  length  the  limit  of  credit 
wa6  reached,  and  as  the  shop  was  stodL- 
ed  with  goods  on  aU  the  ahelves,  wit- 
ness liad  a  conversation  with  Bernard 
Plehn  on  February  9.  Witness  had 
made  repeated  calls  inquiring  for  Her- 
man Plenn,  and  because  of  tne  evasive 
replies  concluded  that  he  had  abscond- 
ed. On  March  8,  Bernard  Plehn  wss 
still  in  charge,  and  had  a  power  of 
attorney  to  collect  debts  ana  conduct 
other  business  on  his  behalf.  It  waa  then 
that  witne»  heard  that  Braund  had 
purchased  the  store.  By  this  time  tbere 
was  a  nkarked  decrease  in  the  stock. 
Shelves  that  had  been  packed  a  month 
before  were  then    empty. 

Cross-examined:  The  deed  of  sale 
had  been  signed  on  February  27.  No 
questions  had  been  asked  about  the 
goods  being  taken  to  Braund's  shop. 

Davis  H.  Tumbull,  a  traveller  in 
the  employment  of  Buimeister's,  also 
stated  he  was  anxious  with  regard  to 
the  whereabouts  of  Plehn,  whom  he 
last  saw  in  January.  In  March  wit- 
ness saw  Bernard  Plehn,  but  not  a 
word  was  said  about  Braund.  It  was 
only  after  the  provisional  order  that 
Bernard  mentioned  the  sale  to  Braund. 

C.  W.  Cousins,  of  the  Immigration 
Department,  stated  Herman  Plehn 
landed  in  Cape  Town  in  April,  1904, 
his  financial  position  being  represented 
by  a  cheque  sijp^ned  by  S.  Vogelman, 
of  the  Paarl,  for  £20,  and  a  signed 
agreement  to  work  for  him  and  Braund. 

Sydney  Arohbell,  manager  of  the 
Paarl  branch  of  the  Bank  of  Africa, 
said  that  Vogelman  was  Plehn's  bro- 
ther-in-law. Both  had  accounts  with 
the  bank.  Plehn's  position  was  always 
weak,  and  he  did  not  know  who  was 
keeping  him  going. 

Albert  Paulse  said  Plehn  had  told 
him  that  the  stock  belonged  to  Vogel- 
man. 

James  McDonnell,  private  inquiry 
agent,  who  had  had  the  estate  under 
observation  on  behalf  of  the  creditors, 
gave  evidence  as  to  the  closing  of 
Flehn's  and  Braund's  shops  after  the 
provisional  order  had  been  issued.  Wit- 
ness had  traced  Plohn  outside  the 
Colony. 

This  closed  the  evidence  for  the  plain- 
tiff. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Hopley.  J. :  If  it  had  been  proved 
that  there  had  been  a  fraud  to  which 
the  defendant  had  been  privy,  the  Court 
would  be  bound  to  set  aside  the  sale. 
But  a  party  alleging  fraud  should  be 
prepared  to  prove  it  conclusively.  The 
most  important  piece  of  evidence  that 
has  been  produced  in  this  oaee  was  a 
deed  of  sale  of  the  goods  in  question, 
being  apparentlv  all  the  goods  in  the 
»hop  of  the  defendant.  That  document 
was  drawn  up  and  executed  in  the  office 
of  an  attorney  of  this  Court  of  good  re- 
pute,   and   was   witpessed   by   witnesses 


''OAPE  TIMES"  LAW  REPORTS. 


661 


•ppsTBDtly  in  tbfti  offiod.  A>1  tlie  goodt 
iv«pe  clearly  invieiDioried,  «od  prioea 
■eem  to  have  been  fairly  placed  against 
them  «U.  Now,  it  is  clear  that  the  man 
Plehn.  who  haa  since  been  made  insol- 
vent, has  run  awaj  wi-tbout  satisfying 
his  creditors:  bni  it  is  not  proved  that 
defendant  was  «  party  to  his  abscond- 
ing. The  ciroumstances  are  undoubted- 
ly suspicious,  but  it  should  be  borne  in 
mind  that  the  defendant  is  Tirtually  ac- 
cused of  a  crime,  and  all  that 
is  adduced  in  evidence  against 
him  is  only  sufficient  to  raise  a 
suspicion.  Tliere  would  not  be  suffi- 
cient evidence  to  send  the  defendant  for 
trial  before  a  jury  on  a  criminal  charge, 
and  this  Court  should  follow  the  ordi- 
nary prfnoiples  of  law  and  assume  in- 
nocence until  guilt  is  prima  ftieie  estab- 
lished. That  mi^ht  possibly  have  been 
done  if  the  plaintiff  had  availed  him- 
self of  the  machinery  of  the  Insolvent 
Laws,  and  elicited  all  the  facts  by 
means  of  a  commission,  where  the  mat- 
ter could  have  been  thoroughly  sifted 
by  examination  of  all  parties  who  had 
anything  to  do  with  the  impugned 
transaction.  The  plaintiff  has,  how- 
ever, elected  to  come  to  this  Court  with 
insufficient  evidence,  and  there  must  be 
absolution  from  the  instance  with  costs. 

[Plaintiff's  Attorneys:  Dold  and  Van 
Breda:  Defendant's  Attorneys:  Faure, 
Van  Kyk  and  Moore.] 


SUPREME  COURT 


FIRST   DIVISION. 


[  Before  the  Hon.  M  r.  Justice  Ma  abdobp.  ] 


!1906. 
^^'  Jfith' 
"      17th* 
"     18th 
2l8t; 


»i 


« 


Tillage  Commonage — Ord.  9   of 
1836— Act  45  of  1882. 

In  1856  the  farm  B.  was 
tranrferred  to  the  Kerheraady 
far  iAtf  time  being,  of  the 
D,R,  Church  of  Aberdeen. 
The  Kerkeraad  sold  various 
erven  under  condiiio%Sj  whereby 
the  vendors  reserved  their 
Tight  to  seU  more  erven  and  io 


impose  suck  regulations  on  the 
purchasers  as  might  from  time 
to  time  be  made  either  by  the 
Kerkeraad  or  other  local 
authority  which  might  succeed 
them  for  the  management  of 
the  township.  The  Munici- 
pality subsequently  acquired 
some  SftOO  morgen  as  addi- 
tional grazing  land^  and  iww 
complained  thai  the  Kerkeraad 
were  selling  portions  of  the 
commonctge  as  erven^  and 
thereby  restricting  their  grazing 
rights y  and  claimed  a  declara- 
tion that  the  defendants  shoidd 
not  be  entitled  to  sell  further 
erven .  Th  ey  furth  er  asked  for 
a  declaration  that  the  Town 
Commonage  was  under  their 
exclusive  control. 

Held,  that  (1)  the  grazing 
rights  of  the  owners  of  erven 
extend  over  the  farm  subject 
to  any  rights  which  the  Kerke- 
raad may  possess.  (2)  That 
as  the  original  lande  of  D. 
were  insufficient  to  depasture 
all  the  catihy  the  inhabitants 
tcere  entitled  to  place  thereon  : 
the  defendants  were  not  entitled 
to  sell  such  portion  of  the 
commonage  as  would  apprecia- 
bly affect  the  plaintifs^  rights. 
(3)  That  Ord.  9  if  1836  and 
Act  45  of  1882  did  not  apply 
io  the  commonage  in  this  case, 
inasmuch  as  the  inhabitants 
had  acquired  ordy  a  common 
right  to  the  servitude  of 
grazing  stock  on  thecommonagcj 
but  not  to  the  solum  thereof. 


This  was  an  action  an  which  the  plain- 
tiffs sued  for  a  declaration  of  rights  in 
respect  of  the  town  conunonage  of 
Aberdeen  and  the  user  thereof. 

The  plaintiffs'  declaration  was  as  fol- 
lows: 

1.  The  plaintiffs  are  the  Municipality 
of  Aberdeen,  duly  constituted  bv  a  pro- 
clamation ol  His  Excellency  the  then 
Governor,  in  Council,  No.  283  of  1903, 
dated  the  11th  da.j  of  September,  1903, 
in  terms  of  the  Municipal  Act  of  1882; 
and  are  a  Corporation  entitled  by  law 
to  sue.  To  the  said  Corporation  apper- 
tain, and  in  the  same  are  yested,  ail 
rights  and  privileges  that  anpeartained 
to,  or  were  vested  in,  the  Commission- 
ers of  the  Muooioipality  of  Aberdeen 
pmevious  to  the  passing  of  the  said  Act. 


(I 


CAPE  TIMB8**  LAW  RfiPOBTB. 


2.  The  defendants  are  the  Kerkeraad 
or  Consifitory  of  the  Dutch  Refonned 
Church  at  Aberdeen  aforesaid,  and  are 
sued  in  their  oapacity  as  such. 

3.  The  town  of  Aoerdeeu  was  estab- 
lished in  the  year  one  thousand  eight 
hundred  and  fifty-six,  by  the  then 
Kerkeraad  or  Consistory  of  the  said 
church  on  oertain  land  belonging  to  the 
same,  in  extent  three  thousand  morgen. 
**  Water-erven,"  formdng  part  of  suoh 
town,  were  sold  by  them  on  the  19th 
day  of  September,  1856,  and  "dry- 
erven,"  oJso  forming  part  of  (such  town, 
were  sold  by  thonii  at  the  same  time  or 
not  long  thereafter. 

4.  In  the  conditiooiB  of  aale  under 
which  the  said  water-erven  were  sold 
the  right  was  reserved  to  the  Kerkeraad 
or  Consistory  for  the  time  being  of  the 
said  ohuroh  to  effect  further  sales  of 
erven.  Clauses  11  and  12  of  the  said 
conditions  provided  that  no  purchaser  or 
owner  of  erven  should  bo  entitled  to 
keep  on  the  public  commonage  within 
the  limits  of  the  said  land  more  than  a 
certain  number  of  homed  cattle, 
slaughiter  sheep  asad  goats,  and  horses, 
unless  by  direction  of  the  Kerkeraad  or 
Consistory  aforesaid  or  some  person 
authorised  by  them.  In  the  conditions 
of  sale  of  drv-erven  a  eimilar  right  was 
reserved',  and  clausee  10  and  11  thereof 
make  similarprovisione  relative  to  graz- 
ing rights.  Tne  plaimtiffs  crave  leave  to 
refer  to  the  said  conditions  of  sale  when 
produced  ait   the  trial. 

5.  The  true  intent  and  meaning  uf 
the  said  clauses  are  that  the  purchas'^rs 
or  owners  of  erven  should  be  entitled  to 
suflicieni  paeturage  on  the  said  common- 
age for  the  num-ber  of  cattle  therein 
mentioned ;  and  the  sellers  of  the  said 
erven  were  and  are  not  entited  to  sell 
further  erven  with  the  grazing  rights 
thereunto  atta^hin>g  to  such  an  extent 
as  to  render  the  said  pasturage  insutn- 
cient  for  the  said  number  of  cattle  be- 
longing to  the  said  purchasers  and  own- 
er*? respectively. 

6.  Prior  to  September,  1904.  the 
Kerkeraad  or  Consistory  aforesaid  had 
effected  aales  and  transfers  of  erven  to 
such  an  extent  that  the  said  commonage 
was  and  is  already  more  than  fully 
stocked  with  the  cattle  belonging  to 
purchasers  and  owners  of  such  erven, 
and  grazed  by  them  in  accordance  with 
the  said  clausee  of  the  conditions  of 
sale;  and  any  further  sales  of  erven,  if 
effected,  would  be  effected  to  the  preju- 
dice and  in  diminution  of  the  grazing 
rights  of  such  purchasers  and  owners, 
atnd  in  curtailment  of  the  extent  of 
ground  available  for  pasturage  for  their 
cattle. 

7.  On  or  aboirt  the  17th  day  of  Sep- 
tember, 1904,  the  Kerkeraad  or  Con- 
sistory aforesaid  advertised  as  for  sale 
by  public  auction  on  that  date  certain 
erven  adjoining  those  previously  sold, 
and,  notwithstanding  the  written  pro- 
tests of  the  plaintiffs,     duly    communi- 


cated to  th«m  b<<Qr9  Buek  pfojeoted 
sale,  actually  did  sell  tbejn  on  that  date ; 
and  they  claim  the  right  to  «eli  aa  nuoiy 
erven  as  to  them  may  aeem  fit.  The 
plaintiffs  contend  that  the  sales  of  the 
said  erven  were  unlawful,  as  being  to 
the  prejudiod  of  the  rigj^bls  of  erf -holders 
in  xespect  of  their  grazing  rights  on  the 
said  commonage. 

8.  The  plaintiffs,  as  representing  the 
inhabitants  of  the  town  of  Aberdeen 
generally,  and  the  aforesaid  purchasers 
and  owners  of  erven  in  particular,  are 
by  reason  of  the  premises  entitled  to 
an  interdict  to  restrain  the  defendants 
from  transferring  the  erven  then  sold, 
and  from  effectmg  any  sales  or  trans- 
fers in  future  of  a<nv  moro  erven. 

9.  Municipal  regumtions  foF  the  town 
of  Aberdeen  were  framed  in  accordance 
with  the  Statutes  thereto  relating,  and 
were  confirmed  on  the  17th  day  of  Sep- 
tember, 1857,  by  His  Exoellencv  tlie  then 
Governor,  and  have  been  in  force  ever 
since,  with  such  amendments  as  hsuvo 
from  time  to  time  been  lawfully  u>ade. 

10.  The  plaintiffs  have  had  the  con- 
trol and  administration  of  the  said  com- 
monage  from  the  time  such  regulations 
were  framed  aind  for  a  period  of  more 
than  thirty  years  until  the  time  of  the 
occurrences  nereinafter  oomplaitted  of; 
and  under  the  said  Act  45  of  18^,  and 
regulations  lawfully  made  thereunder, 
the  said  commonage  is  vested  in  the 
plaintiffs  for  the  benefit  of  the  inhabi- 
tants of  the  said  Municipality. 

11.  In  the  year  1904  the  plaintiffs 
grajited  to  certain  auctioneers  at  Aber- 
deen the  right  to  erect  certain  kraals 
which  were  necessarily  required  for 
sfdos  of  cattle,  as  they  lawfully  might 
do. 

12.  On  the  19th  day  of  September, 
1964.  thereafter  the  defendants,  untratv 
rantly  seeking  to  interfere  with  the  said 
lawful  control  and  administration  of  the 
said  commoauige  b^  the  plaintiffs,  de- 
manded and  required  the  removal  of 
the  said  kraals,  which  demand  has  not 
been  complied  with,  and  claim  the  right 
and  have  threatened  to  eject  the  said 
auctioneers. 

13.  Some  time  previous  to  February. 
1904.  the  plaintiffs  gave  permission  to  a 
certain  -golf  club  at  Aberdeen  to  make 
use  of  a  certain  portion  of  the  said 
commonagie  &a  golf  links,  as  they  law- 
full^  might  do. 

14.  On  the  16th  day  of  February,  1904, 
the  defendants,  unwarrantably  seeking 
to  interfere  as  aforesaid,  gave  notice  to 
the  plaintiffs  that  they  required  the 
plaintiffs  to  apply  to  them  for  permis- 
sion to  allow  such  us9  of  the  common- 
age; which  plaintiffs  have  refused  to 
do,  and  the  defendants  claim  the  right 
and  have  threatened  to  eject  the  mem- 
bers of  the  said  club. 

15.  By  T^on  of  the  premises  a^  in 
the  foregoing  paragraphs  numbered  9 
to  14  in  this  declartion  contained  the 
plaintiffs   are  entitled   to  a  declaration 


"CAM  TIMES"  LAW  REPORTS. 


663 


of    rights  afl     hereinafter     more     fully 
prayeid  for. 

Wherefore  the  plaintiffs  daim : 

(a)  A  declaration  of  their  rights  re- 
garding tho  tovrn  oonunonage  or  village 
Und  of  Aberdeen  aforesaid. 

(b)  A  dodaraiion  that  the  owners  of 
ervon  or  lots  in  the  said  village  are  en- 
titled to  depasture  and  graze  upon  the 
said  town  commonage  or  village  land 
such  number  of  cattle,  sheep,  goats, 
horses,  mules,  and  other  stock  as  are 
now  or  may  hereafter  from  time  to  time 
ho  fixed  by  regulation  or  regulations  of 
the  plaintiffs. 

(c)  A  declaration  that  tlie  defendants 
are  not  entitled  to  sell  either  publicly 
or  privately  or  to  transfer  in  pursuance 
of  such  sales  any  further  pc>rtio«  or  por- 
tions whatever  of  the  said  town  com- 
monage or  village  land ;  6Uoh  being  to 
the  prejudice  of  and  in  diminution  of 
the  gracing  rights  of  existing  erf- 
holders. 

(d)  A  declaration  that  the  said  town 
commona*go  or  vilage  alnd  is  under  the 
exclusive  control  and  management  of  the 
plaintiffs. 

(e)  A  declaration  4 hat  the  defendants 
are  not  entitled  to  interfere  with  the 
plaintiffs  in  the  granting  of  lieenoes  or 
permission  to  use  portions  of  the  said 
town  commonage  or  village  lands,  for 
purposes  for  the  benefit  of  the  inhabi- 
tanUj  of  the  said  Municipality  generally. 

(f)  An  interdict  perpetually  restrain- 
ing the  defendant«  from  selling  and 
transferring  erven  or  lots  as  aforesaid 
and  from  mterfering  with  the  exercise 
of  the  rights  of  plaintiffs  as  claimed 
above. 

(g)  Alternative   relief;    and 
(h)   Costs  of  suit. 

To  thin  declaration  the  plaintiffs 
pleaded  as  follows : 

1.  The  defendants  admit  paragranhs 
1,  2.  and  3  of  the  declaration,  save  that 
as  to  paragraph  3  they  further  say  that 
transfer  of  tho  said  land  had  been 
theret<yfore  passed  to  the  Board  of 
Churchwardens  of  the  said  church  at 
the  then  newly-projected  town  of  Aber- 
deen, and  the  defendants  are  now  tho 
registered  owners  of  the  whole  of  such 
extent  of  the  said  land  as  has  not  been 
heretofore  transferred  by  them  toothers ; 
and  they  crave  leave  to  refer  to  their 
deedls  of  transfer  at  the  trial.  The 
limits  of  the  Municipality  are  oo-ter- 
minous  with  the  boundaries  of  the  land 
transferred  to  the  said  Eoard  of  Church- 
wardens  in    1856. 

2.  As  to  paragraph  4,  the  defendants 
crave  leave  to  refer  to  the  said  condi- 
tions of  sale  when  produced  at  the 
trial.  In  the  conditions  of  sale  under 
which  water  erven,  and  likewise  in 
those  tinder  which  dry  erven  were 
©old,  the  right  was  reserved  to 
the  Kerkraad  or  Oonsisstory  for 
the  time  bcin^  to  sell  further 
erven     whenever     they     should     deem 


meet.  The  respective  conditions  oiore- 
said  were  registered  with  the  title  deeds 
of  the  said  erven.  Clauses  11  and  12  of 
tho  conditions  of  sale  of  water  erven, 
and  also  Clauses  10  and  11  of  the  con- 
ditions of  sale  of  dry  erven,  provided 
that  the  purchaser  or  owner  of  any  erf 
should  in  no  ca^e  be  entitled  to  graze 
on  the  public  pasturage  more  than  a 
span  of  10  oxen,  3  oows,  or  13  head  of 
homed  cattle  in  all),  25  slaughter  sheep 
and  goats,  and  2  horses;  that  all  cattle 
or  horses  above  the  said  number  should 
be  impounded,  and  that  no  one  should 
graze  or  allow  any  cattle  to  run,  unless 
by  direction  of  the  Kerkcraad  or  some 
person  thereto  authorised.  The  land  re- 
ferred to  as  public  pasturage  in  the  said 
conditions  (11-12  and  10-11  respectively) 
and  as  public  commonage  in  the  declara- 
tion (and  hereinafter  termed  the  pas- 
turage) is  included  in  that  portion  of  tho 
said  land  registered  in  the  name  of  tho 
defendants  which  has  not  yet  been  cut 
ufi  into  ervon  or  disposed  of  as  afore- 
said. Save  as  above,  they  deny  para- 
graph 4. 

3.  The  defendants  deny  that  the  true 
intent  and  meaning  of  the  said  claases 
are  as  set  forth  in  paragraph  5  of  the 
declaration.  They  adm-it  that  the  pur- 
chasers or  owners  of  orven  sold  sub- 
ject to  the  aforesaid  conditions  of  sale 
are  in  no  ca.«*c  entitled  to  graze  more 
than  the  number  of  cattle,  sheep,  goats 
and  horhcs  set  forth  in  paragraph  2 
hereof,  but  they  deny  that  such  pur- 
chasers or  owners  are  eiytitled  as  of 
right  to  graze  the  full  number  of 
animals  therein  set  forth,  and  deny  that 
thoy  (the  defendants)  were  not  or  are 
not  now  entitled  to  sell  further  erven. 
They  say  that  if  by  reason  of  the  sale 
of  further  erven  the  pasturage  has  be- 
come or  in  the  future  mav  become  in- 
sufllicient  for  the  grazing  dv  each  pur- 
chaser or  owner  of  the  full  number  of 
animals  ect  fortth  above,  the  number 
which  each  purchaser  or  owner  may 
graze  should  and  can  be  abated,  so  cs 
to  allow  each  purchaser  or  owner  of 
tho  several  erven  sold  subject  to  the 
aforesaid  conditions  of  sale  by  the  de- 
lendants  an  equal  share  dn  the  grazing 
for  which  the  pasture  may  suffice. 

4.  With  fu-rtner  reference  to  para- 
graph 5,  they  say  that  Clause  18  of  the 
Conditions  of  Sale  of  water  erven  (17 
of  dry  erven)  provides  that  each  pur- 
chaser or  owner  of  any  erf  shall  obey 
all  such  regulations  as  from  time  to 
time  ~nay  bo  made  by  the  Kerkeraad 
or  such  other  local  administration  as 
may  succeed  the   Kerkeraad. 

£.  As  to  paragraph  6  of  the  declara- 
tion : 

(a)  They  admit  that  prior  to  Septem- 
ber, 1904,  they  had  effected  sales  and 
transfers  of  erven,  as  they  lawfully 
might  do,  but  deny  that  in  conse- 
quence of  ftueh  sales  or  by  any  act  of 
tnedrs  or  in  any  way  tho  pasturage  hati 
become    overstocked'.    If   the   pasturage 


G64 


'<CAPE  TIliES"  LAW  taPOAn. 


has  beoome  oventooked,  they  say  that 
this  is  due  to  the  acts  or  defaults  of  the 
plain4aff8. 

(b)  The  pUuiytiffs  have  unhiwfully  per- 
mitted persons,  who  are  not  entitled  to 
graze  catitle,  sheep,  goats  or  bonses  on 
the  pasturage,  to  graae  such  animals, 
and  permitted  persons  who  are  entitled 
to  graze  oattle,  sheep,  goats  and  horses 
on  the  pasturage,  under  the  ^foresaid 
CoiKiitioDs  of  Sale  to  graze  suoh 
animals  in  excess  of  the  mazdmupi  pro- 
vided  by   the  said   conditions. 

(c)  Save  as  above,  the  defendants 
deny  the  allegations  in   paragraph   6. 

6.  They  admit  paragraph  7  of  the 
declaration  down  to  the  word  "date  *'  in 
Hne  5  thereof,  aaid  say  that  they  are  still 
entitled  to  sell  erven  as  they  may  deem 
meot.  They  deny  that  the  sales  of  the 
said  erven  were  unlawful,  or  that  they 
were  to  the  prejudice  of  any  rights 
which  the  crf-hoIder;»  might  have  in 
respect  of  grazing. 

7.  As  to  paoiagraph  8  of  the  declara- 
tion, defendants  deny  that  the  plaintiffs 
are  entitled  to  the  interdict  claimed 
or  to  any  other  order  against  them 
herein. 

8.  As  to  paragraph  9,  they  admit 
that  Municipal  Regulations  for  the  town 
of  Aberdeen  havo  bee»  framed  and 
from  time  to  time  amended.  As  to  the 
legality  of  such  regulations,  they  refer 
to  the  terms  of  the  said  rogula/tions  and 
of  the  Statutes  under  which  they  pur- 
port to  have  been  framed. 

9.  As  to  paragraph  10,  they  deny  that 
the  plaintiffs  now  have  or  at  any  time 
havo  had  the  control  or  administration 
of  the  pasturage.  They  deny  that  the 
said  pasturage  is  vested  in  the  plaintiffs. 

10.  As  to  paragraph  11,  they  admit 
that  in  1904  the  plaintiffs  purported  to 
grant  to  certain  auctioneers  the  right  to 
erect  certain  kraals  on  the  pasturage, 
but  they  dcnv  that  the  plaintiffs  were 
entitled  to  effect  such  grant,  and  say 
that  they  acted  illegally  in  so  purport- 
ing to  isffect  such  grant.  They  deny 
that  such  kraals  were  necessarily  re- 
quired. 

11.  As  to  paragraph  12,  they  admit 
that  in  September,  1904,  they  demanded 
and  required  the  removal  of  the  said 
kraals,  and  that  the  demand  has  not 
been  complied  with,  and  that  they  claim 
the  right  and  have  threatened  to  eject 
the  said  auctioneers,  but  they  deny  that 
.they  have  acted  or  are  acting  illegally 
or   unwarrantably. 

12.  They  admit  that  the  plaintiffs  pur- 
ported to  give  the  permission  set  forth 
m  paragraph  13,  but  they  deny  that  the 
plaintiffs  were  entitled  to  give  the  said 
permission. 

13.  Thc*y  admit  paragraph  14,  save 
that  they  deny  that  they  acted  illegally 
or  unwarrantably. 

14.  They  deny  the  allegation  in  para- 
graph 15. 

Wherefore  they  pray  that  the  plain- 
tiffis'  claim  may  be  dismissed  with  costs. 


i 


And  for  a  claim  in  reoonvention,  the 
defendants  (now  plaintiffs)  say: 

1.  They  repeat  the  allegations  in  the 
plea  set  forth. 

2.  The  plaintiffs  (now  defendants) 
wrongfully  and  unlawfully   claim: 

(a)  That  they  are  entitled  to  dig  and 
carry  away  clay  and  sand,  to  quarry 
and  carry  away  stones  from  the  pas- 
turage, and  to  grant  permission  to  other 
persons  so  to  dig,  quarry,  or  carry 
away. 

(b)  That  they  are  entitled  to  erect 
lime,  brick,  and  charcoal  kilns,  and  to 
erect  huts,  kraals,  and  other  buildings 
and  enclosures  on  the  pasturage,  and  to 
grant  permission  to  other  persons  so  to 
erect. 

(c)  That  they  are  entitled  to  grant 
permission  to  persons,  other  than  the 
purchasers  or  owners  of  erven  aforesaid, 
to  graze  cattle,  sheep,  goats  and  horses 
on  the  pasturage,  and  to  grant  per- 
mission to  persons  being  such  pur- 
chasers or  owners,  to  graze  cattle,  sheep, 
g^ats  and  horses  on  the  pasturage  in  ex- 
cess of  the  number  provided  for  in  the 
aforesaid  conditions  of  sale. 

The  defendants  deny  the  several 
claims  above  in  (a),  (b),  and  (c)  set 
forth. 

3.  In  pursuance  of  their  said  claims, 
the  plaintiffs  have  framed  regulations, 
numbered  37,  55,  56,  57,  58.  and  59  in 
the  amended  regulations  for  the  Muiiici- 
palitv  of  Aberdeen  published  in  19(X),  to 
which  the  defendants  crave  leave  to  re- 
fer when  produced  at  the  trial. 

4.  The  plaintiffs  have  at  various  times 
wrongfully  and  unlawfully  done  the  sev- 
eral acts  the  nature  of  which  is  set  out 
and    the    lawfulness    thereof   denied    in 

Paragraph  2  hereof,  and  the  defendants 
ave  been  damnified  and  prejudiced 
therebv,  and  have  suffered  loss  in  the 
sum  of  £1(X). 

5.  The  plaintiffs  further  claim  that 
they  are  entitled  to  bore  for  water  on 
the  pasturage,  which  claim  the  defend- 
ants denv. 

Wherefore   the   defendants   claim : 

(a)  A  declaration  of  their  rights  in 
respect  of  the  pa^urage  and  otber  lands 
within  the  limrts  of  the  plaintiff  muni- 
cipality registered  in  the  name  of  the 
defendants. 

(b)  A  declaration  that  the  plaintiffs 
are  not  entitled  to  dig  or  carry  awav 
clay  or  sand,  to  <^uarry  or  carry  away 
stones,  to  erect  lime,  brick,  or  char- 
coal kilns,  huts,  kraals,  or  other  build- 
ings or  enclosures  in  or  upon  the  said 
pasturage,  or  to  grant  permission  to 
other  persons  to  do  any  of  the  afore- 
said acts. 

(c)  A  deolaration  that  the  plaintiffs 
are  not  entitled  to  grani  penmssion 
to  graae  oaAtle,  ^heep,  goaU  or  horses 
on  the  pasturage  to  perscns  who  are 
not  piu^asers  or  owners  ol  the  erven 
aforesaid,  or  to  grant  permission  to  per- 
sons, being  such  purohaaere  or  ownera. 
to  gra»  ofttUe,  sheep,   goato  or  horses 


"OAPB  TIMES"  LAW  tlEPOftTB. 


665 


an  excess  of   tibe  number   provided  for 
on  the  aiores&id  coiiditions  of  sale. 

(d)  A  deol&ration  that  the  Regular 
tione  37,  55,  56,  57,  58  and  59  in  the 
edition  of  the  amended  regulaitions  for 
the  Municipality  of  Aberdeen  are  in- 
valid. 

(e)  A  doolaration  that  the  plaintiffs 
are  not  entitled  to  bore  for  Tivtater  od 
the  pasturage. 

(f)  A  declaration  that  tihe  defendants 
are  entitled  to  sell  and  transfer  fur- 
ther portions  of  the  fMisturage  and  un- 
sold erven  registered  m  their  name. 

(g)  £100  damages, 
(h)  Alternative  lerief. 
(i)   Costs  of  suit. 

The  plaintiffs'  replication  and  plea  to 
claim  in  re-conventiOn,  were  as  follows : 

For  a  replication  to  the  defendants' 
plea,  the  plaintiffs  say: 

1.  They  admit  the  reservation  in 
the  oonaitiions  of  sale  to  sell  further 
erven,  referred  to  in  paragraph  2  there- 
of, but  say  that  the  true  meaning  and 
interpretation  thereof,  and  of  the  6aid 
conditions  of  sale,  is  that  the  defend- 
ants are  only  entitled  to  sell  further 
erven,  with  grazing  and  other  rights, 
up  to  mich  a  number  as  will  not  pre- 
judice the  existing  rights  of  erf  holders 
wiho  purchased,  or  whose  predecessors 
lin  title  purchased,  under  the  said  condi- 
tions. The  defendants  have  at  no  time 
exercdsed  any  right  under  the  said  con- 
ditioos.  as  to  grousing  or  otherwise, 
since  tihe  establishment  of  the  Munici- 
pality of  Aberdeen  in  1857,  and  in 
terms  of  and  within  the  meaning  of 
condition  No.  18  of  water-erven,  and 
No.  17  of  dry-erven,  the  plaintiffs  have 
now  succeeded  to  the  control  formerly 
exercised  by  the  predeoessora  in  title 
of  the  defendants. 

2.  As  to  paragraph  3  thereof,  the 
Municipal  Commissioners  have  for  a 
period  far  longer  than  the  period  of 
proscription,  to  wit,  since  tlie  year  1857 
or  1858,  lawfully  exercised  the  control 
over  the  saic)  commonage,  and  the  de- 
fendants and  their  predecessors  in  title 
have   therein    acquiesced. 

3.  As  to  paragraph  5  thereof,  the 
plaon tiffs  denv  tlwt  all  the  sales  of 
erven  up  to  September,  1904,  were  law- 
ful, inasmiuch,  aa  prior  to  that  date, 
existing  erf'holders  were  prejudiced  in 
their  grazing  rights  by  such  sales; 
and  the  plaintiffs  say  that  the  present 
over-stocking  of  the  commonage  is  due 
to  the  unlawful  acts  of  the  defendants. 
The  plaintiffs  deny  that  they  acted  un- 
lawful! v  as  alleged,  and  say  that  they 
have  obtained  additional  ground  as  town 

Sasturage,   in  extent  5,159  morgen   and 
^3  SQuare  roods 

4.  They  denv  the  right  of  the  de- 
fendants to  sell  further  erven,  as  set 
forth  in  paragraph  6  thereof. 

5.  Aa  to  panigraph  8  thereof,  they 
saj  that  iflie  saia  reguiaAaoaB  have  been 


duly  framed,  and  from  time  to  time 
amended,  and  have  been  lawfully  pro- 
mulgated and  acted  upon,  and  are  valid. 

6.  As  to  paragraph  9  thereof,  they  eay 
that  ever  suioe  the  year  1858  they  have 
■held  and  exercised  lawfully  the  exclu- 
sive control  and  administration  of  the 
pasturage,  and  that  the  same  is  vested 
in  them,  and  they  crave  leave  to  refer 
to  Schotion  45  of  Ordinance  9,  1836,  and 
Section  159  of  Act  45,  1882. 

7.  They  say  that  the  auction  kraals 
are  necessary,  reasonable  and  proper  for 
the  due  administration  of  the  munici- 
pality, that  the  defendants  acquiesced 
m  and  were  parties  to  their  eertablish- 
ment,  assisted  in  fixing  the  site,  and 
have  been  receiving  payment  in  re- 
spect of  the  same. 

8.  As  to  paragraph  12  thereof,  they 
say  that  they  have  acquired  the  ri^ht 
bj'  prescription  to  g^rant  the  permission 
referred  to,  even  if  the  said  ri^prht  be 
not  otherwise  veated  in  them,  for  the 
reasons  pleaded  in  this  suit. 

9.  Save  as  above,  end  save  in  so  far 
as  the  plea  admits  any  of  the  allega- 
tions in  the  declaration,  they  deny  all 
and  singular  the  allegations  of  fact 
and  conclusions  of  law  in  the  said 
plea  set  forth,  and  join  issue  there- 
upon, and  again  pray  for  judgment 
w^ith   costs  o^  suit. 

And  for  a  plea  to  the  claim  in  re- 
ooiwoution  the  plaintiffs,  now  the  de- 
fendants, in  re-convention  say : 

10.  They  crave  leave  to  refer  to  the 
matters  pleaded  above  and  in  the  de- 
claration in  this  suit 

11.  They  contend  that  they  are  en- 
titled to  exercise  tlie  rights  and  per- 
form the  acts  referred  to  in  c^  b  and  o 
of  paragraph  2  of  the  said  claim :  that 
there  is  nothing  in  the  conditions  of 
sale  referred  to  which  prohibits  the  ex- 
ercise of  such  rights:  that  in  any  case 
they  have  actually  exercieed  sudh  rights, 
continuously  and  uninterruptedly  for  a 
period  far  longer  than  the  period  of 
proscription,  during  which  tnoy  have 
held  and  exercised  the  sole  and  ex- 
clusive control  and  administration  of 
the  pasturage  or  commonage  without 
lot  or  hindrance  on  the  part  of  the 
plaintiffs  in  re-convention  or  their  pre- 
decessors in  title. 

12.  Ajs  to  paragraph  3  thereof  the 
regulations  tiherein  referred  to  and  un- 
der which  the  defendants  in  re-con- 
vention have  exeroised  their  rights,  and 
claim  to  be  entitled  to  perform  the 
several  acts  referred  to  have  been  in 
force  and  published  and  have  been 
acted   upon  since  the  year  1858. 

13.  As  to  paragraph  5  thereof  they 
say  that  they  are  entitled  to  bore  for 
water,  for  tlie  reasons  above  set  forth 
and  that  tihe  same  as  in  the  public  in- 
terests of  the  inhabitants :  that  neither 
the  plaintiffs  in  re-convention  nor  their 
predeoessors  in  title  ever  protested 
against  the  said  vrork,  but  on  the  con- 
traiy  wero  privy  thereto  and  fully  ao- 


G66 


If 


CAJ?E  TIMES*'  lAW  REPOfetS. 


(luieeoed  therein,  bv  tbedr  minister  act- 
ing on  their  benalf. 

14.  Save  aa  above  they  deny  aJl  and 
singular  the  allegations  of  fact  and  oon- 
clmions  of  law  in  the  aaid  claim  and 
join  id9ue  thereupon  and  <again  pray 
that  tihe  aaid  clami  may  be  dismissed 
-with  ooats. 

For  Plaintiffs:  Mr.  McGregor  (with 
him  Mr.  Gardiner).  For  Defendants: 
Mr.  Searle,  K.C.  (with  him  Mr,  Bur- 
ton). 

Mr.  McGregor  said  that  it  was  the  in- 
tention of  his  clients  not  to  sell  erven 
in  future  with  grazing  rights  to  the 
commonage. 

Mr.  Searle  said  that  such  an  altera- 
tion in  tho  pleadings  would  make  the 
defendants'  plea  an  inconsistent  one. 
Considerable  argument  followed,  and  at 
length  Maasdorp,  J.,  ordered  that  t?ho 
plea  be  amended  so  as  to  remove  tho 
inoon&is^teucy. 

A.  M.  Melville,  a  Government  land 
(surveyor,  said  that  the  church  acquired 
certain  property  in  Aberdeen  in  iaob. 
lie  had  recently  surveyed  certain  iK)r 
tione  of  tho  commonage  for  the  munici- 
pality, and  there  was  approximately 
2,743  morgen  of  comraonago  unused. 
Cattle  could  graze  on  the  golf  ground. 
The  eastern  portion  of  llic  original  com- 
monage up  to  a  certain  road  was  reserv- 
ed for  tho  grazhig  of  sheep,  and  tho 
western  portion  for  larger  cattle.  To 
his  knowledge  the  location  had  been  in 
exlHt^nce  for  many  years. 

Cross-cxriLmined  by  Mr.  McGregor: 
The  original  farm  consiisted  of  3,000  mor- 
gen. Ho  could  not  say  under  wliat  ^nant 
the  municifjality  got  the  5,159  adjoining 
morgen.  Of  that  4,000  was  a  free  grant 
as  commonage  for  tho  inhabitants  of 
Aberdeen,  and  the  remainder  was  grant- 
ed in  consideration  of  the  payment  of 
£231  to  the  Government. 

Jacobus  Swat,  overseer  to  the  Aber- 
deen Municipality,  stated  that  since  1875 
he  had  been  connected  with  the  muni- 
cipality ;  his  father  had  been  in  the  em- 
ploy of  the  municipality  from  1868,  and 
his  graiiilfather  had  also  been  in  the 
service  of  the  town.  Ho  could  remem- 
ber the  town  from  1860.  When  he  was 
twelve  years  old  he  asfiisted  his  grand- 
father in  getting  the  stock  in  from  the 
commonagt^.  That  was  the  work  of  the 
municipality,  who  always  had  control 
of  tho  commonage.  Permits  were  re- 
quired from  the  municipality  to  make 
bricks,  cjinrrv.  and  for  grazing  rights 
on  tlio  commonage.  Until  the  year  1890 
he  connnued  as  overseer,  and  resumed 
as  ovrrseer  in  1899.  Tho  first  question 
raised  by  the  church  was  al)Out  tlio  re- 
creation ground,  whidh  had  been  set 
aeido  by  the  municipality,  and  enclosed 
by  Uio  club,  but  he  oould  not  say  how 
long  tiiat  was  ago.  Prior  to  that  there 
was  no  question  as  to  the  municipality's 
control  of  the  commonage.  There  had 
been  no  interference  with  the  mmiici- 
pality  in   connection  with  the   location. 


The  commona^  at  present  was  over- 
stocked, and  if  more  erven  was  sold 
with  grazing  rights  ii  would  interfere 
with  the  rights  of  the  present  holders. 
The  municipality  had  also  regulsjtions 
AS  to  the  number  of  stock  to  be  grazed 
and  the  church  had  never  interfered 
in  this  connection.  The  munioipality 
laist  year  endeavoured  to  bore  for  water, 
and  the  members  of  the  consistory  rais- 
ed no  objection.  In  his  opinion,  it 
was  necessary  tha^  the  municfpcdity 
should  make  furtner  experiments  for 
water. 

Cross-examined:  Aberdeen  was  flour- 
ishing. The  inhabitants  were  increasing 
in  number,  and  the  district  was  a  good 
one.  He  hoped  that  one  day  tho  rail- 
way would  reach  there.  In  1873  and 
1882  certain  buildings  were  erected  on 
1  tho  oommonage  by  tho  Municipality,  but 
I  whether  the  consent  of  -the  Kerkeraad 
was  obtained  or  not  he  could  not  say. 
In  the  latter  year  the  Municipality  gave 
permission  for  a  tennis  club  to  have  a 
ground  on  the  commonage,  and  the 
Kerkerasd  informed  the  Municipality 
that  the  permission  of  the  Kerkeraad  had 
not  been  sought.  Witness  could  not  say 
if  the  Municipality  withdrew  bhe  permis- 
sion it  had  granted  on  receipt  of  the 
protest.  Witness  had  seen  as  many  as 
13,000  cattle  being  sold  by  auction  en 
the  commonage.  A  sale  of  that  kind 
would  last  several  days. 

[Maasdarp,  J. :  But  that  would  l>e  of 
groat  bonelit  to  the  town,  and  there 
must  bo  a  little  give  and  take.] 

Cross-examination  continued :  There 
were  a  good  many  donkeys  in  Aberdeen. 
The  last  time  the  commonage  was  clean- 
ed, 606  donkeys  and  cattle  were  found 
grazing  there.  There  were  also  about 
300  head  of  small  stock. 

What  would  be  tho  average  number 
grazing  there? — I  should  say  between 
600   and   700. 

Do  you  speak  of  ca title  for  which  peo- 
ple had  permits? — No  answer. 

In  1903,  when  cattle  were  being  pur- 
chased in  tho  O.R.C.,  there  was  a  great 
drain  on  the  veld? — ^That  is  so. 

And  it  has  had  no  rest  since? — No; 
none. 

I  must  come  back  to  the  donkeys 
again.  I  believe  the  majority  of  the 
large  stock  in  Aberdeen  is  composed  of 
donkeys? — Yes.  And  they  are  good 
feeders? — They'll  e&b  almost  anything. 

And  they  do  it  well?— Yes. 

In  cross-examination  with  regard  to  the 
native  location,  witness  said  he  remem- 
bered it  from  about  1863.  When  wHness 
was  a  boy  the  natives  were  not  allowed 
to  run  cattle  on  the  commonage. 

[Maasdorp.  J. :  Do  they  now  ?J 

Yes,   my    lord. 

Mr.  McGregor:  And  there  has  been 
some  trouble  over  that?— I  believe  so. 

Continuing,  witness  said  thait  at  a 
Municipal  Council  meeting  during  the 
present  year  the  natives  were  restricted 


*'CAPE  TIMES '»  LAW  REPORTS. 


667 


to  a  certain  area.  The  Municipal  Clerk 
would  know  all  about  that  The  brick 
and  stone  quarries  would  not  do  any 
harm  to  the  commonage.  The  donkeys 
at  present  grazing  were  not  owned  by 
members  of  the  Kerkeraad.  but  he  did 
nob  know  all  the  members.  There  was 
no  other  place  for  cattle  than  the  com- 
monage unless  each  party  passing 
through  were  to  make  arrangements  with 
privftie  people.  The  natives  were  graz- 
mg  about  20  donkeys  at  present. 

Mr.  Scarle  here  pointed  out  that 
these  natives  were  not  purchasers  of 
erven,  and  the  Municipality  had  claimed 
to  give  grazing  rights  to  purchasers  of 
erven. 

Witness  said  that  the  natives  only 
had  about  30  sheep  grazing  now.  The 
first  permits  given  to  natives  were  given 
in  1884.  Since  the  action  began  there 
had  been  a  resolution  that  natives  liv- 
ing in  the  locMion  should  have  regular 
permits — the  permits  previously  grant- 
ed were  temporary  or  monthly.  There 
were  300  to  400  natives  in  the  location. 
None  of  the  quarries  seriously  interfered 
with  the  pseturage. 

Phihpus  Arnoldiis  Marais  said  that  he 
remembered  Aberdeen  from  the  earliest 
times.  His  father  was  one  of  the  firstt 
Commissioners  of  the  Municipality.  He 
had  been  living  in  Aberdeen  almost  con- 
tinuously trince  1866.  During  all  this 
time  the  Municipality  had  the  control 
of  the  commonage — witness  had  been 
auditor  for  the  Municipality,  and  knew 
that  fees  were  regularly  collected  for 
permits  for  brick-making.  quarrying, 
etc.  The  Kerkeraad  first  raised  a  claim 
after  the  recreation  ground  was  enclos- 
ed, about  six  years  afterwards.  The 
mere  selling  of  an  erf  would  encroach 
on  the  grazing  rights  of  the  present  erf- 
holders,  and  in  his  opinion  there  was 
not  sufficient  grazing  now. 

Cross-examined  bv  Mr.  Gardiner: 
Witness's  father  had  brickfields  before 
the  Municipality  came  into  existence. 
Witness  did  not  know  that  in 
1882  the  Municipality  had  with- 
drawn it<s  permit  for  the  tennis  court, 
nor  that  the  cricket  ground  was 
granted  subject  to  the  approval  of  the 
ICerkeraad.  It  was  really  the  travellers 
who  had  to  be  provided  for  who  caused 
the  over-stocking. 

James  Ablett,  master  builder,  said  that 
he  had  lived  in  Aberdeen  since  1858.  He 
had  then  been  employed  ae  carpenter  in 
tb«  building  of  the  D.R.  Church.     The 

SrmvtA  for  wood  were  given  by  the 
unicipaJity.  As  far  as  he  knew,  all  the 
permits  for  stone  and  bricks  were  given 
by  the  Municipality;  the  first  time  he 
heard  of  any  objection  by  the  Consis- 
tory of  the  D.R.  Church  was  in  1893  in 
reference  to  the  tennis  court. 

Jame«  Philip  Daniel,  who  had  resided 
in  Aberdeen  smoe  1861,  remembered  the 
building  of  the  D.R.  Church,  and  had 
had  four  houeoA  built  on  his  own   behalf 


in  addition  to  houses  for  other  people. 
All  the  necesAarv  permits  were  obtained 
at  the  Town  Hall.  He  had  been  an  erf- 
holder,  and  always  received  the  permits 
for  grazing  from  the  Town  Hall.  He 
first  heard  of  the  Kerkeraad's  claim  in 
1893. 

By  Mr.  Gardiner:  His  signature  on 
the  petition  produced  was  given  to  the 
man  who  was  carrying  it  about  without 
any  idea  of  its  bearing  on  the  question 
of  rights.  Witness  did  not  think  that  it 
would  be  a  verv  serious  thing  for  the 
Municipality  if  the  Kerkeraad  sold  more 
erven  without  raising  the  price.  The 
general  objection  of  the  ratepayers  was 
to  the  selling  of  the  land.  Witness  sign- 
ed a  petition  at^ainst  a  raoccour^. 

In  reply  to  Mr.  Searle,  witness  said  he 
might  nave  also  signed  one  for  it. 

Gabriel  de  Vos  gave  corroborative 
evidence. 

Francis  John  Nelson  Trutcr,  Mayor 
of  Aberdeen,  stated  he  came  to  Aber- 
deen in  June.  1884.  On  several  occa- 
sions he  had  been  a  commissioner  of  the 
Municipality.  Since  his  residence  there 
the  commonage  had  been  controlled 
and  administered  by  the  Municipality, 
which  collected  the  foes  for  the  several 
permits.  There  were  no  charges  made 
for  removing  sand  or  clay  or  collect- 
ing wood,  but  permission  had  to  be 
obtained  from  the  MunioipaJity.  In 
August,  1887,  the  Municipality  granted 
permi:«siou,  and  the  lawn  tennis  ground 
was  enclosed.  It  was  not  until  1893  that 
there  was  any  question  as  to  the  use  of 
the  ground.  The  Consistory  had  not, 
to  witness's  knowledge,  interfered  with 
the  cricket  ground.  In  1897  witness, 
who  was  an  auctioneer,  sought  Dermis- 
sion  from  the  Council  to  establish  an 
auction  kraal  on  the  commonage.  His 
request  was  granted.  Even  if  the  Kerke- 
raad sold  no  erven  in  future  with  graz- 
ing  rights  attached,  present  holders  of 
erven  would  be    incommoded. 

Mr.  Searle  proceeded  to  ask  the  wit- 
ness what  the  possibilities  of  Aberdeen 
were, 

[Maasdorp,  J. :  Aberdeen  will  never 
be  a  big  city,  you  can  rest  assured 
of  that.  If  there  were  a  big  river,  or 
a  good  water  supply  there,  it  might, 
but  as  there  is  not,  Aberdeen  won't  be  a 
big  city.] 

The  Witness:  But,  my  lord,  we,  the 
Municipality,  have  sunk  some  boreholes 
recently. 

Continuing,  witness  said  that  the 
Municipality  had  expended  £226  on  the 
boring  works,  and  tne  Kerkeraad  never 
offered  any  objection.  ITie  Rev.^  Mr. 
Cillio  had  asked  witness  to  use  his  in- 
fluence to  got  the  boreholes  sunk.  The 
Municipality  had  eradicated  a  consider- 
able amount  of  prickly  pear  on  the 
commonage  at  the  cost  of  the  rate- 
payers. 

Mr.  McGregor  proceeded  to  cross- 
examine  the  witness  on  the  doings  of 
the  Municipality  in  the  pa&t,  whereupon 


668 


"CAPS  TIMB8"  LAW  REPOBTO. 


his  lordship  pointed  oot  the  need     of 

bieTity  in  the  caee.  He  was  of 
opinion  that  the  commonage  -was 
vested  in  the  municipality.  Witness 
had  petitioned  the  Kerkeraad  not  to 
have  the  recreation  ffround  so  near  the 
graveyard.  He  did  that  because  he 
thought  that  the  graveyard  was  not  big 
enough  for  the  pr.rpt^ses  it  waa  intended 
for. 

Schalk  Johannes  Hugo,  examined  by 
Mr  Burton,  said  that  he  was  a  Com- 
missioner of  the  Municipality  of  Aber- 
deen. He  had  lived  for  many  years  in 
Aberdeen,  and  the  Municipality  had 
always  issued  permits  with  regard  to 
the  commonage.  Witness  narrated  the 
circumstances  surrounding  the  water 
boring  in  1904.  The  Rev.  Mr.  Cillio 
was  interested  in  the  boring.  The  in- 
creased supply  had  been  of  nvaterial 
benefit  to  the  inhabitants,  but  it  was 
still  necessary  to  obtain  a  further  sup- 
ply- 

Cross-examined      by     Mr.    Gardiner: 

When  Mr.  Cillie  went  with  witness  to 
look  at  the  water,  he  was  very  anxious 
to  have  an  increased  supply.  He  did 
not  hear  Mr.  Cillie  say  that  permis- 
sion would  have  to  oe  had  from  the 
Consistory. 

P.  W.  Rubidge,  stock  farmer  in  the 
Aberdeen  district  and  a  holder  of  two 
water  erven,  stated  his  gardens  had 
in  the  past  suffered  considerably  from 
want  of  water.  There  was  no  other 
means  of  obtaining  an  adequate  supply, 
except  through  boring.  As  a  famier, 
he  would  say  that  tM  pasturage  was 
substantially  overstocked. 

Cross-examined  by  Mr.  McGregor: 
He  was  guided  in  his  opinion  by  the 
appearance  of  the  pasturage. 

Andries  Kuyterr  a  commissioner  at 
Aberdeen  since  1898,  stated  he  was 
present  with  Mr.  Cillio  at  the  water 
finding.  He  agreed  with  Mr.  Hugo 
as  to  what  took  place. 

Cross-examined  by  Mr.  Gardiner:  He 
would  contradict  Mr.  Cillie  if  he  stated 
that  it  was  remarked  at  the  time  that 
permission  to  bore  would  have  to  be 
granted  by  the  Consistory. 

Robert  Logie,  who  had  lived  at  Aber- 
deen  since  1877.  and  been  a  member  of 
the  Consistory  in  '93  and  '94.  stated  that 
about  eighteen  months  ago  he  was  a 
commissioner  of  the  municipality.  As 
far  OS  he  knew  the  Municipality  exeroii;- 
ed  control  all  through.  From  the 
church  books  they  never  claimed  any  fees 
in  respect  of  the  commonage.  He  en- 
doned  what  the  other  witnesses  said 
with  regard  to  the  water  supply. 

Cross-examined  by  Mr.  McGregor: 
The  oontractor  who  supplied  the  stone 
obtained  it  from  the  oonmionage  quarry 
in  the  usual  way. 

Christian  Jacobus  Rabie,  stock  farmer, 
with  fifteen  years  experience  of  Aber- 
deen, agreed  that  the  commonage  was 
orezvtooKed  at  present 


Willem  Jura,  Town  Clerk  of  the 
Municipalitjr,  said  that  the  first  meeting 
of  the  Municipality  was  in  1857.  From 
the  earliest  times  the  Municipality  had 
collected  revenue  from  the  rommonaje 
for  iKTinits  aii<l  licences  bVcs  were  col- 
lected for  grazing,  quarring,  ard  mak- 
ing bricks  The  Church  had  never  at 
any  time  interfered  with  these  right h  of 
the  Municipality.  In  the  sixties  there 
had  beon  boring  for  water  near  tiie 
fountain,  and  not  until  last  year  was  it 
resumed,  the  Municipality  had  paid  over 
£200  for  the  water  boring  and  £115  for 
fencing  in  the  commonage  from  a  pri- 
vate farm  adjoining.  Nearly  £200  was 
spent  on  the  original  commonage.  There 
was  no  objection  raised  to  the^e  improve- 
ments. Temporary  permits  were  issued 
to  people  passing  through  Aberdeen 
with  their  stock.  The  Church  never 
took  any  exception  to  the  site  selected 
for  the  location.  To  pay  for  grazing 
would  be  illegal,  but  they  paid  for  the 
permits.  That  Consistory  had  never 
questioned  the  right  of  the  Municipality 
to  collect  the  hut  tax. 

This  closed  the  oral  evidence  for  the 
plaintiff,  and  Mr.  Searle,  having  put 
m  certain  documentary  evidence,  closed 
his  case. 

Mr.  McGregor  called. 

Leslie  Franks,  draughtsman,  of  Cape 
Town,  who  produced  a  plan  of  the  lots 
sold  and  unsold,  specifying  the  lots  that 
had  been  sold  sinoe  1885.  His  plan  was 
a  reproduction  of  the  Deede  Office  plan. 

Ooas-examined :  According  to  the 
Deeds  Office  plan  there  were  lots  in  the 
centre  of  the  town  unsold. 

Paulus  Jaoobus  Joubert,  born  in  1828, 
said  he  was  living  in  the  district  when 
the  town  of  Aberdeen  was  formed.  His 
recollection  of  what  took  place  was  very 
hazy,  as  he  never  actually  lived  in  the 
town. 

Cornelius  van  Heerden,  member  of 
the  Kerkeraad.  said  he  remembered  the 
time  when  the  Municipality  was  formed. 
When  the  racecourse  was  established  the 
Kerkeraad  objected  to  it  on  account  of 
the  liquor  sold  there.  On  whose  au- 
thority the  first  brickfield  was  selected 
he  could  not  say.  He  remembered  Mr. 
Cillie  telling  the  plaintiffs  they  would 
have  to  get  the  Kerkeraad's  ooivent  to 
water  boring.  There  were  a  number  of 
donkeys  on  the  commonage,  and  they 
were  very  destructive  to  grazing. 

Cross-examined :  He  was  getting  stone 
at  present  from  the  new  quarry,  and 
his  man  might  have  had  a  permit  from 
the  Municipality.  W*itnes8  had  had  a 
permit  from  the  Municipality  for  the 
grazing. 

Mr.  J.  J.  van  Heerden  said  he  knew 
nothing  of  the  circumstances  under 
which  the  church  was  built.  He  and 
his  brother,  however,  had  delivered  the 
first  load  of  stones  from  the  quarries. 
He  did  not  know  that  one  of  toe  condi- 
tions of  the  erven  was  that  liquor  was 


"CApb  timbs"  law  ttEPbilta 


669 


not  to  be  sold,  but  he  knew  that  there 
vae  a  condition  a  fetir  years  ago  that 
fiquoT  was  not  to  be  sold  on  the  re- 
creation grounds,  The  commonage  waa 
not  overstocked.  The  Kerkeraad,  of 
which  be  was  a  member,  was  not  tr^ng 
CO  manage  the  affsdrs  of  the  town.  The 
conditions  of  sale  were  that  the  buyer 
had  to  obey  and  conform  to  the  rules  or 
regfulations  of  the  Kerkeraad,  or  any 
body  that  might  succeed  it. 

Stephanua  J.  Naude^  who  Hved  at 
Aberdeen  since  1868,  said  at  that  time 
there  were  three  quarries  in  and  about 
the  town.  Subsequently  more  quarries 
were  opened. 

By  Mr.  Searie :  He  had  no  objection 
to  "Lee's"  quarry,  for  good  stone 
was  obtained  there. 

S.  J.  de  Villiers,  a  Commissioner  of 
the  Municipality  and  member  of  the 
Kerkeraad,  stated  that  in  1898  he  had 
to  approach  the  Kerkeraad  for  a  trans- 
fer of  39  erven.  He  had  no  objection 
to  the  selling  of  erven  around  the 
town. 

By  Mr.  Searie:  The  owners  of  dry 
erven  helped  themselves  to  water  for 
domestic  purposes  out  of  the  furrow. 

The  Rev.  Mr.  Cillie,  minister  of  the 
Dutch  Reformed  Church,  said  he  bad 
been  minister  since  1885.  He  had  never 
had  authority  to  agree  to  the  boring. 
It  was  his  opinion,  and  he  told  Mr. 
Kuyter,  that  the  Municipality  had  ,  to 
a.pply  to  the  Kerkeraad  for  permission 
to  Dore. 

B]^  Mr.  Searie:  The  boring  would  be 
an  improvement  to  the  town,  and  he 
was   anxious  it  should   be   donA. 

This  concluded  the  evidence,  and 
counsel  having  been  heard  in  argument, 

Cur.  Adv,    Tult. 

Po9tea  (August  2l8t.) 

Maasdorp,  J. :  In  the  year  1856 
the  farm  Brakkefontein  was  trans- 
ferred to  a  number  of  persons 
mentioned  in  the  deed  of  transfer 
of  the  property,  and  described 
therein  as  comprising  the  Board  of 
Churchwardens  of  the  Dutch  Reformed 
Church  of  the  newly  projected  town 
called  **  Aberdeen  "  on  the  farm  Brake- 
kefontein,  and  to  the  churohwardene  for 
the  time  being  of  the  Dutch  Reformed 
Church.  The  township  of  Aberdeen 
was  therefore  laid  out  in  Iota  consist- 
ing of  dry  and  water  erven,  a  aale  of 
which  by  [>ublio  auction  took  place 
iinder  conditions  attached  to  the  deed 
of  transfer  of  the  erven  which  were  sub- 
sequently executed.  A  question  arose 
at  the  trial  whether  these  conditions 
were  properly  registered  against  the 
remainmg  extent  of  the  farm,  but  both 
parties  to  the  suit  agreed  that  the  con- 
ditions were  binding  upon  them,  thus 
obviating  the  necessity  of  carrying  the 
enquiry  on  that  point  an^  further.  In 
the  preamble  to  the  conditions  the  sel- 
lers reserve  to  themselves  the  right  to 


sell  thereafter  more  erven  than  thoee 
at  that  time  put  up  for  sale  in  case  they 
shall  deem  fit.  In  the  condiitions  pro- 
visions are  made  for  the  management 
and  good  government  of  the  township 
by  the  churchwardens,  and  it  is  also 
provided  that  the  purchaser  or  owner 
of  any  erf  shall  be  obliged  to  submit  to 
all  such  regulations  as  shall  from  time 
to  time  be  made  by  the  Kerkeraad,  or 
other  local  authority  that  may  succeed 
them.  Beisides  the  bare  ownership  of 
the  erven,  their  owners,  while  subject 
to  certain  obligaitions,  acquired  certain 
rights  in  the  streets,  water  furrows  and 
dams,  and  the  owners  of  the  water 
erven  acquired  a  right  to  share  in  the 
water  of  a  stream  mentioned  in  the  con- 
ditions. No  question  now  arises  in  re- 
spect of  those  rights  and  obligations. 
The  main  issues  in  this  case  are  in  re- 
apect  of  the  rights  of  the  parties  over 
the  remaining  exrtent  of  the  farm  lying 
outside  the  town.  The  whole  extent  of 
the  farm  is  about  three  thousand 
morgen.  and  the  town  of  Aberdeen  it- 
self covers  about  one  hundred  and  fif- 
teen morgen.  The  conditions  of  sale 
whicn  are  of  importance  in  thii$  connec- 
tion are  ttie  following:  No.  11.  The 
purchaser  or  owner  of  any  erf  shall  in 
no  case  graze  more  cattle  on  the  public 
grazing  land  than  one  span  of  ten  oxen, 
three  cows  (or  thirteen  head  of  honiea 
cattle  altogether),  twenty-five  slaughiter 
i$heep  and  goats,  and  two  norses.  No. 
12.  All  the  cattle  or  horaos  kept  above 
the  abovementioned  number  shall  be 
impounded,  and  no  one  ahall 
graze  or  allow  caAtle  to  run 
except  by  direction  of  the  Kerkeraden  or 
some  one  authorised  thereto.  We  have, 
therefore,  the  erf  holders  on  the  one 
hand  enjoying  the  full  dominium  of 
their  erven,  while,  on  the  other,  the  rest 
of  the  farm  remains  the  property  of  the 
churchwardens,  subject  to  a  servitude 
in  favour  of  the  erfholders.  Whatever 
may  originally  have  been  the  intention 
of  the  parties  under  the  condition  pro- 
viding that  no  erf  holder  shall  graze  or 
allow  cattle  to  run  except  by  direction 
of  the  Kerkeraden,  it  is  clear  that  sinde 
1856  the  whole  of  the  farm  Brakkefon- 
fontein  outaide  the  town  has  been  re- 
garded by  all  parties  as  the  public 
grazing  land,  and  has  been  so  used  as 
of  ri^ht  by  the  crfholdem,  the  only  re- 
striction being  with  regard  to  the  locali- 
ties allotted  to  large  and  small  stock 
respectively;.  I  am  of  opinion  that  the 
grazing  rights  of  the  owners  of 
erven  extend  over  the  farm,  sub- 
ject to  such  iright  as  to  the  whole 
of  the  remaining  extent  of  the 
churchwardens  may  possess  under  the 
Iiower  reserved  by  them  to  sell  more 
erven  in  case  they  shall  deem  fit.  I  am 
of  opinion  that  upon  the  correct  inter- 
pretation of  the  two  clauses  of  the  con- 
ditions above-mentioned  the  erfhoiders 
acquired  a  right  to  depasture  the  full 
number     of  animals  mentiooed  on  the 


6t0 


<i 


OAPB  TIMES-  Law  REt»0ttt8. 


Eublio  grazing  land  without  let  or 
indranoe  on  the  part  of  the  church- 
wardens, and  that  such  right  cannot 
be  diminished  by  any  action  on  the  part 
of  the  churchwardens,  except  in  so  far 
as  the  conditions  of  sale  justify  such 
action.  In  order  to  ascertain  whether 
the  public  grazing  laud  on  the  farm 
Brakkefonftoin  is  capable  of  carrying 
more  stock  thin  the  present  erf  holders 
are  entitled  to  put  on  to  it,  or  do 
actually  put  on  it,  under  their  servitude, 
it  is  necessary  to  mention  that  the 
Municipality  has  acquired  by  purchase 
for  the  purposes  of  a  commonage  addi- 
tional land  to  the  extent  of  five  thou- 
sand morgen.  The  nature  of  the  coun- 
try in  this  neighbourhood  is  such  that 
iae  land  in  the  opiiuou  of  some  of  the 
witnesses  cannot  carry  more  than  one 
head  of  oattle  to  every  twenty  morgen 
and  one  sh^ep  to  every  two  morgen. 
Even  if  it  be  taken  that  the  land  can 
carry  somewhat  more  than  this  num- 
ber of  stock  it  will  be  seen  by  a  glance 
at  the  list  of  stock  actually  k€^^t  on  the 
commonage  during  the  last  tew  years 
that  the  capacity  of  the  ground  is  laxed 
tj  its  full  extent,  and  that  the  three 
thousand  morgen  of  Brakkefontein  is 
incapable  of  gn^asing  the  full  number  of 
stock,  which  the  inhabitants  are  en- 
titled under  the  conditions  of  sale  to 
put  on  to  it.  Under  the  circumstances 
the  plaintiffs  complain  that  the  de- 
fendants are  selling  more  erven  under 
conditions  which  seriously  injure  their 
rights  to  pasturage  for  their  stock  both 
by  allowing  more  stock  to  be  brought 
in,  and  by  reducing  the  extent  of  the 
oommonajre,  and  they  claim  a  declara- 
tion thait  the  r'of(>ndantB  are  not  entitled 
to  Boll  more  erven.  The  defendants  in 
their  plea  claimed  the  rig^iit  to  sell 
furthei  erven  with  grazing  rights  there- 
unto attaching  witnoirt  regard  to  the 
effect  of  such  sales  upon  toe  rights  to 
pasturage  in  the  plaintiffs,  but  at  the 
trial  they  abandoned  this  position  and 
pleaded  that  they  have  not  recently 
sold  erven  with  grazing  rights,  and  they 
do  not  claim  the  right  to  do  so  ;n 
future.  This  dii»posee  of  one  of  the  mo0t 
important  issues  in  the  case  and  only 
leaves  upon  this  part  of  the  case  the 
question  whether  by  the  sale  of  erven 
tne  area  of  the  commmonage  is  en- 
croached upon  to  such  an  extent  as  ma- 
terially to  affect  the  rights  of  the  in- 
habitants. The  defendants  have  re- 
served to  themselves  the  riarht  to  sell 
more  erven,  and  if  that  right  is  exer- 
cised with  due  regard  to  the  concurrent 
rights  of  the  erfholders  the  latter  would 
have  no  ground  of  complaint.  If  the 
defendants  under  pretence  of  selling 
erven  were  to  dispose  of  large  portions 
of  the  commonage  they  would  certainly 
exceed  their  rights,  but  hitherto  they 
have  not  done  so,  nor  do  they  claim 
the  right  to  do  eo.  The  past  sales  of 
additional  erven  have  had  no  appre- 
ciable   effect    in    the    extent    of    the 


commonage,  and  if  they  proceed  at  the 
same  rate  they  will  not  have  any  ap- 
preciable effect  for  some  time  to 
come.  If  the  township  were  to  double 
in  size,  and  of  this  there  is  no  prospect, 
the  riffhts  of  all  the  inhabitants  joint- 
ly will  be  affected  upon  the  estimate 
made  bj*  the  plaintiffs  own  witnesses, 
to  the  extent  of  about  three  head  of 
cattle  and  about  tliirty  sheen.  As  this 
will  not  appreciably  affect  tneir  rights, 
and  tlie  defendants  never  contemplated 
or  threatened  to  go  as  far  as  this,  no 
case  has  arisen  for  a  definite  declaration 
of  rights  upon  this  head.  The  further 
clainis  sot  up  by  the  plaintiffs  are  met 
so  directly  by  the  counterclaim  of  the 
defendants  that  under  the  circumstanoeK 
it  will  be  more  convenient  to  approach 
them  from  the  point  of  view  of  the 
defendants.  The  issues  raised  in  this 
respect  are  important  but  present  no 
real  difliculty  from  a  legal  pomt  of  view, 
and  may  be  briefly  dealt  with  upon 
principlo6  established  in  the  cases  cited 
at  the  bar.  The  defendants  complain 
that  the  plaintiffs  have  from  time  to 
time  dug  and  carried  away  sand,  quar- 
ried stone,  erected  brick  kilns,  made 
huts  and  kraals  upon  the  public  grazing 
lands,  and  they  claim  a  declaration  that 
the  plaintiffs  are  not  entitled  to  com- 
mit these  acts ;  and  they  also  ask  for  a 
declaration  that  the  plaintiffs  are  not 
entitled  to  bore  for  water  on  the  pas- 
turage. Until  recently  it  seems  the 
Municipality  recognised  in  many 
respects  the  rights  of  the  churchwar- 
dens as, owners  of  the  soil  of  the  com- 
monage, but  latelv  the  idea  seems  to 
have  grown  up  tnat  under  the  Muni- 
cipal Ordinance  No.  9  of  1836  and  Act 
No.  45  of  1882  the  rights  of  the  Muni 
cipality  have  been  enlarged  at  the  ex- 
pense of  the  Church,  so  much  so  thai, 
they  have  actually  advanced  a  claim  that 
the  property  in  the  commonage  should  be 
transferred  to  the  Munioi^ity.  This 
right  was  supposed  to  be  created  by 
Section  45  of  the  Ordinance  and  Section 
159  of  the  Act.  These  sections  provide 
that  the  property  in  all  lands  to  which 
the  inhabitants  of  any  Municijiality 
shall  at  any  time  have  or  acquire  a 
common  right  shall  be  vested  in  the 
Council  Off  such  Municipality.  Now  it 
is  quite  clear  that  these  sections  do  not 
apply  to  the  commonage  in  this  case, 
to  the  property  in  which  the  inhabi- 
tants have  not  acquired  a  common  right. 
The  inhabitants  or  erfowners  of 
Maclear  have  only  acquired  a  common 
right  in  the  servitude  of  grazing 
stock  upon  the  commonage.  Then 
the  plaintiffs  fall  back  upon  the  piY>- 
visions  of  section  39  of  the  Ordinance 
and  section  109  of  the  Act,  wherebv 
powers  are  conferred  upon  the  Munici- 
pality to  regulate  in  certain  respects 
the  enjoyment  of  certain  rights  by  the 
inhabitants.  Here  again  it  is  quite 
clear  that  reference  is  made  to  the  pr&- 
perty  of  the  Municipality,  or  commoo 


<<CAPB  TIMES"  LAW  KBPO&T& 


671 


property   of   the   inbabitanta,   and   sub- 
section 23  of  section  109  of  the  Act  ex- 
preasl^  guards  the  righto  and   property 
of  third  persons.    Under  the  conditions 
of    sale  the   inhabitants   have   no  com- 
mon right  to  dig  for  aand,  quarry  stone, 
erect      lime      kilns,      huts      or    kraals 
upon  the  commonage,  and  it  is  only  in 
respect  of  the  kilns    and   quarrieB   that 
there  is  any  pretence  that  the  ri^ht  to 
them  has  been  acquired  by  prescription. 
It  is  quite  clear  that  &  servitude  may 
exist  in  respect  of  the  rights  to  (juarr^ 
and  to  take  sand  and  clay,   but  in  this 
case  there  is  no  grant  of  such  servitude, 
end  I  may  say  at  once  that  eithough  it 
seems  that  from  time  to  time  the  resi- 
dents of  Aberdeen  did  take  sand,   clay 
and  fftones  from  the  commonage,  there 
is    no  satisfactory    evidence   of    an    ad* 
verse,  continuous  user  as  of  right,  such 
as     to  constiitute   a    servitude  by    pTi^ 
scription,    nor   does  the    16th  condition 
of      sale   confer  upon   the   municipalitf 
power  to   interfere    with    vested  rights. 
Upon   these  considerations  I  come      to 
the   conclusion    that  the    only    common 
right  the  erfhoiders  of   Aberdeen  have 
on  the  commonage  is  the  right  of  pas- 
turage,  and    thev  are   not   entitled     to 
rights  in  the  soil.     It  follows  from  this 
tbart     they  have   no   right  to     bore   for 
water  on  the   commonage.     It  must  be 
taken   that  the  commonage  referred   to 
thrDus^hout  the  judgment  ie  that  pontioii 
of  k  which   is  on  the   farm   Brakkefon- 
tein,    the   property  of    the    defendants. 
And  in  this  connection  I  may  mention 
that  pnayer  "  d  "  of  the  claim  in  recon- 
vention  is  much   too   wide  seeing   that 
the  regulations    are     not     confined     to 
Brakk^ontoin,    but     cover    the     whole 
commonage,      the     larger     portion     of 
whicii   is    the    property    of   tne  munici- 
paliity.       A  declaration     on     the     otho-r 
iSAues     will     fully    indicate     what     the 
powers  of  the  municipality  arc  as  to  regu- 
lations for   the   Brakkefontoin   common- 
age.      Upon    the    plaintiffs'     claim    the 
Court   declares    upon    the    pleadings    as 
now  amended,  that  the   defendants   are 
not  entitled  to  sell   further  erven  upon 
conditions  conferring   grazing   rights  en 
the   commonage  to   purchaser».       Upon 
the   claim    in    reconvention    the   Court 
makes  declarations  in  terms  of  prayers 
"  b,"  "  c  "  and  "  e."     In  each  case  with 
the     addition  of     the     words   "  -without 
consent  of  the  defendants."    It  must  be 
understood    that   I    express    no   opinion 
with  regard  to  the  rights  of  the  parties 
aa  to  the  bore-holes  now  in  existence, 
which  were  made  with  the  acquiescence 
of  the  defendants  and  at  great  expense 
to  the  plaintiffs.     Both  parties   seem  to 
have  mistaken  their  rights  and  claimed 
too  much,  and  under  tne  circumstances 
no  order  will  be  made  as  to  costs,  but 
each    party    will  be    left    to    pay    their 
own  costs. 

[Plaintiffs'  Attorneys:  Mostert  and 
Son;  Defendant's  Attorneys:  Michau 
aod  Do  Yilliers.] 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplby.] 


▲DMISSIONR. 


{ 


190f>. 
Aug.  17  th. 


Mr.  Sutton  moved  for  the  adiuiasiou 
of  Nicholas  Jacobus  Ackermann  as  an 
attorney  and  notary. 

Application  granted  and  oaths  adminia- 
wrod. 

Mr.  Bailey  moved  for  the  admission 
q{  Petrus  Malan  Juubert  as  an  attorney 
and  notary. 

Application  granted  and  oaths  admin- 
isters. 

Dr.  Rainsford  moved  for  the  admis- 
lion  of  Milton  E  O.  Fenuell  as  an  at- 
V}rney   and   notary. 

Application  granted,  oaths  to  be  ad- 
Vurustered  before  the  R.M.  of  Butter- 
worth. 

Dr.  Greer  moved  for  the  admission  of 
George  Hammond  Uussey  as  an  attor* 
ney. 

Application  granted  and  oaths  admin- 
istered. 


PROVISIONAL  ROLL. 


ZOEB  V.  GINSBERG. 

Mr.  De  Waal  moved  for  provisional 
jeiitence  on  a  mortgage  bond  for  £2,650, 
with  interest  at  6  per  cent,  from  July  1, 
.904,  less  £24  paid  <m  account,  and  that 
the  property  specially  hypothecated  bo 
declared  executable,  with  costs. 

Granted. 


STIGANT  AND  CO.  V.  GAFFOOB. 

Mr.  P.  S.  T.  Jones  moved  for  the  final 
adjudication  of  the  defendant's  estate  as 
insolvent. 

Granted. 


CARTER  V.  PARRT. 


Mr.  Russell,  for  the  plaintiff,  moved 
that  the  provisional  order  of  sequestra- 
tion again£t  the  defendant's  estate  be 
discharged. 

Granted. 


BLAINE  V.  HEYDENRICH. 

Mr.  Struben  moved  that  the  provi- 
sional order  of  sequestration  be  discharg- 
ed. 

Granted. 


C72 


"CAPE  TmES"*  LAW  BXPOBTB. 


JOVB8  ▼.  MITCHn«L 

Mr.  Benjamin  moTed  for  a  decree  of 
ciTil  imprkonmeni  againrt  the  defend- 
ant, who  had  put  in  a  oonaent  paper  to 
the  order  tubiect  to  its  being  aiMpended 
on  bia  paying  £1  per  month. 

Granted. 


ADUn  AVD  KRAKK  V.  EHOELBBECHT. 

Mr.  Watermeyer  mored  for  proTtBion- 
al  sentence  on  a  promiisory  note  for  £96 
10».,   for  value  received. 

Granted. 


TONKnrOTON  V.  HUMPHEBTB 

Mr.  Long  moved  for  provisional  sen- 
tence on  a  promiMory  note  for  £25,  with 
interest  and  costs. 

Granted. 


FREDERICKS  T.  BORLAND. 

Mr.  P.  S.  T.  Jones  moved  for  provi- 
sional sentence  on  a  mortgage  bond  for 
£500,  with  interest,  less  £25  paid  on 
account,  and  that  the  property  specially 
hypothecated   be  declared  executable. 

Granted. 


NBL  y.  MOLBFB. 

Mr.  Sutton  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Granted. 


BEARIOHT  AND  CO.  T.  BALIB. 

Mr.  Sutton,  for  plaintiff,  moved  for 
the  discharge  <^  a  provisional  order  of 
aequestratnon. 

Granted. 


JUMKBB  V.  KARROO. 

Mr.  D.  Buchanan  moved  for  provi- 
sional sentence  on  a  mortgage  bond  for 
£300,  with  interest  and  costs,  and  that 
the  property  specially  hypothecated  be 
declared  executable. 

Granted. 


B8TATB  OOLDBCHMIDT  V.  DAVIS  AND 

KATZ. 

Mr.  D.  Buchanan  moved  for  provision- 
al sentence  on  a  mortgage  bond  for 
£4,500.  with  interest  and  costs,  less  £65, 
paid  on  account,  and  that  the  property 
specially  hypothecated  be  declared  exe- 
cutable. 

Granted. 


BOARD  OP  KXBO0TORS  ▼.  ROBB. 

Mr.  WateimeyBT  moved  for  P^o^jj^ 
sentence  on  a  mortgage  bond  tor  £Z,(«I. 
witb  interest  and  eorts,  and  that  the  pro- 
perty  be  declared  executable. 

Granted. 


MACLBOD  ▼.  TAB  BIBKBBK. 

Mr.  Bailey  moved  for  provisional  sen- 
tence on  a  mortgage  bond,  with  interest 
and  costs,  and  that  the  property  spe- 
cially hypothecated  be  declared  execu- 
table. 

Granted. 


HBTDEBRTOH  V.  FRAMB. 

Mr.  Roaz,  for  the  plaintiff,  moved  fot 
a  decree  of  civil  imprisonment  on  an 
nnsstisfied  Judgment  of  the  8uP>«» 
Court  for  £48.  with  mteiest  and  taxed 
coats,  amounting  to  £58  Is. 

The  defendant  appealed  in  pfiooa,  and 
tiid  that  he  bad  lodged  an  appeal  a^nsi 
hie  lordship's  judgment,  but  unfortun- 
ately be  was  not  in  court  when  tne  wnt 
was  issued.  He  had  to  communicate 
wHh  his  father's  trustee  in  Glasgow  be- 
fore  proceeding  with  the  appeal,  and  he 
would   not  hear   from  them  untd   four 

weeks  or  so.  ,    ^      ■.• 

Hopley,  J.,  said  «t  seemed  to  him 
that  It  would  do  no  harm  to  fnn*  » 
decree,  to  be  suspended  until  5th  Septem- 
ber, and  if  the  appeal  should  be 
brought  to  be  suspended  until  the  appeal 
had  been  heard. 


FRIBDM AN  V.  UTS. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  for  £255  7«.  7d.,  on  an  acknow- 
ledgment of  debt,  with  interest  and 
costs. 

Granted. 


SMITH  V.  VAK  8TRAATBN. 

Mr.  J.  B.  R.  de  Villiera  moved  fo» 
provisional  sentence  against  the  de> 
fendant  on  a  broker**  note  sigped  by  the 
defendant  for  the  sale  of  oertam  shares  at 
three  months  for  £300,  with  interest 
Plaintiff  offered  and  tendered  the  trans- 
fer of  the  shares  to  the  defendant. 

Granted. 


ILLIQUID  ROLL. 

NATIONAL  BANK    T.    ABBA- C        1906. 
HAMS,  ALIAS  BRAHAM.       (  AjOLg.  17th. 

Mr.  Benjamin  moved  for  provisional 
sentence  on  two  dishonoured  cheques 
for  £1,705  and  £1,896,  made  hj  the  d^ 
fant. 

Qrantedf 


"CAPE  TIMES"  LAW  REPORTS. 


673 


UOUBOD  V.  HULLBB  AlKD  OTHEBS. 

Mr.  Waterme^er  Baid  that  tho  matter 
was  on  the  motion  roll,  and  asked  that 
it  be  taken  later  on. 

Mr.  Benjamin  asked  that  the  defen- 
dants be  put  to  terms  to  file  their  plea. 

It  -nras  ordered  that  the  matter  stand 
over  one  week  from  the  date  of  the 
serving  of  a  discovery  order.  The 
bar  would  be  removed^  costs  to  bo  costs 
in  the  cause. 


MABTIN  V.  VAN  RENSBURG. 

Dr.  Rainsford  applied  for  judgment 
for  £79  3s.,  for  professional  services 
rendered,  with  interest. 

Granted. 


HABPER  AND  FLOYD  V.  WORTH. 

Mr.  Lewis  asked  for  judgrment  for  £7 
7s.  for  dental  operations,  with  interest 
and  costa  of  suit. 

Granted. 


LBNNON.  LTD.  V.  6CUAPKR0. 

Mr.  Close  asked  for  judgment  for  iJ72 
less  £15  paid  on  account,  with  interest 
and  costs. 

Granted. 


FRIEDLANDBR    AND     DU    TOIT    V. 
KORNBLUN. 

Dr.  Gi^eer  moved  judgrment  for 
£47  14s.  lid.,  for  professional  services, 
with  interest  and  costs  of  suit. 

Granted. 


ESTATE  THE  RON  V.  THBRON. 

Dr.  Greer  applied,  under  Rule  319, 
in  default  of  plea,  for  judgment  for 
£500,  with  interest  and  costs  of  suit. 
Personal   service   had    been   effected. 

Granted. 


VAN  DYK  V.  KILFOIL. 

Mr.  D.  Buchanan  applied  for  judg- 
ment for  £10,  with  interest  and  costs  of 
suit. 

Granted. 


GENERAL      MOTIONS. 

-Kj?  parte  HEYDBNBych.     {  Auff^^l7th 

Mr.  Molteno  made  an  urgent  applica- 
tion for  the  arrest  of  Obi  Dolla,  against 
whom  judgment  had  been  given.  An 
affidavit  was  read  to  tho  effect  that 
Dolla  was  intending  to  visit  India.  Dolla 
had  sold  his  shop,  and  had  informed  his 
barber  that  he  was  bound  to  India 
withiQ  a   few   days,    probably  by      the 


steamer  which  had  been  delayed  by  the 
British  Association. 

Ordered  that  application  be  made    to 
the  Registrar  under  8th  rule  of  Court. 


JSx  parte  mabais. 

Mr.  Guteche  applied  for  a  rule  nisi 
under  the  Derelict  Lands  Act  to  be 
nuide  absolute. 

Granted. 


Hx  parte  COBTBBB. 

Mr.   Guteche  applied  for  a  rule    nisi 
to  he  made  absolute. 
.Granted. 


LONDON  AND  LANCABHIBE  FIBE  ASSUB- 
ANCE  go.  V.  IMPERIAL  COLD  STORAGE 
AND  SUPPLY  CO.,  LTD. 

Arbitration — Interdict. 

Where  one  company  attempted 
to  force  arhiii'ation  proceed- 
htgs  upon  another  company  in 
a  case  m  which  there  appeared 
to  he  no  subject  matter  for 
arbitration^  Qie  Court  inter- 
dicted the  former  company 
from  taking  any  proceedings 
in  the  nature  of  arbitration. 


Sir  H.  Juta  for  plaintiffs,  asked  for 
cause  to  be  shown  why  an  order  i»- 
straining  respondent  from  entering  into 
certain  arbitration  proceedings  should 
not  be  granted.  Sir  Henry  said  that 
there  was  no  difference  of  opinion  as  to 
the  amount  due  to  the  reepondenit,  and. 
that  being  the  case,  there  was  no  need 
to  go  to  the  expense  of  arbitration  pro- 
ceedings. 

Mr,  Benjamin  proceeded  to  argue 
contra  at  some  Jen^h,  but 

Hopley,  J.,  aaid  be  oould  not  under- 
stand why  the  resjpondents  were  trying 
to  force  arbitration  on  the  plaintif 
Mr.  Benjamin  had  not  given  a  single 
good  reason  why  arbitration  should  be 
forced  upon  the  insurance  company,  and 
he  (Mr.  Benjamin)  had  better  consult 
his  clients  during  tho  adjournment.  It 
was  a  foolish  thing  for  such  a  big  com- 
pany to  come  into  court  with  suoh  a 
case. 

Mr.  Benjamin,  on  the  Court  lesum- 
ing,  contended  that  the  applioaftion  was 
an  unwarrantable  one.  It  mi^ht  be 
that  the  respondents'  advisen  had  mis- 
construed the  arbitration  olaivse,  but 
that  would  not  entitle  the  applicants  to 
come  to  Court  for  an  intercfict. 

Hopley,  J. :  In  view  of  tibe  fact  that 
the  partoes  have  agreed  that  the  loes  by 
fire  amounits  to  £1,950,  tibere  Beema  to 
be  nothing  to  arbitrate  upoo  in  tenp* 


674 


CAPS  TIMES"  LAW  EEP0BT8. 


of  the  oondition  c£  the  policy  relating 
to  arbitration,  and  the  respondents 
make  that  a  reason  for  resisting  the 
present  applioatioa  which  they  say  is 
wholly  unneocHisary.  That  ds  an  argu- 
ment which  comes  strangely  from  the 
reepondents,  vvtho  have  been  insisting  on 
forcing  on  arbitration  proceedings  in 
spite  of  the  applicants'  clearly  express- 
ed position  that  there  was  nothing  to 
arbitrate  upon.  The  respondents  have 
gone  eo  far  as  to  appoant  their  arbi- 
trator and  to  give  notice  to  applicants 
that  unless  thoy  take  a  similar  step  on 
tiled r  side  the  arbitration  will  be  con- 
ducted in  their  absence,  an  laid  down 
in  the  contract.  In  theso  circumstances 
the  applicants  feel  themselves  to  bo 
threatened  with  something  of  the  ul- 
timate effect  of  whioh  they  are  appre- 
hensive. It  IB  now  said  for  the  re- 
spondents that  such  proceedings  could 
nrii  bind  the  applicants,  and  that  the 
latter  might  ignore  them;  but  in  view 
of  the  correspondence  it  de  clear  that  the 
respondents  intend  them  to  be  binding 
on  the  applicants,  and  I  think  that  the 
latter  are  entitled  to  relief  at  the 
hands  of  this  Court. 

The  order  of  the  Court  would  be  that 
the  defendant  company  be  restrained 
from  going  into  any  proceedings  in  the 
nature  of  orbitratdon,  which  were  in- 
tended to  bind  the  applicant  company, 
and  he  thought  the  applicants  snould 
have  their  oo^ts  in  this  motion. 


COLONIAL  GOVEBKMENT  V.  DE  WET. 

Sir  H.  Juta  moved,  on  behalf  oi  the 
defendants,  to  have  this  case  removed 
from  the  list  on  the  23rd  August,  on  the 
ground  that  the  defendant  was  institut- 
ing an  action  against  the  Gk>vernmcnt  on 
similar  lines  as  that  brought  by  the 
latter.  The  Government  were  suing  for 
an  interdict  restraining  the  defendant 
from  proceeding  with  certain  works  at 
the  Hex  River,  and  the  defendant  would 
also  bring  a  like  action  against  the  Gov- 
ernment. It  was  imperative  that  both 
cases  should  be  heard  together,  and  it 
would  take  at  least  one  month  to 
work  up  the  case.  Counsel  moved  to 
have  the  case  sot   down   for  next  term. 

Mr.  Nightinfirale  said  although  there 
were  others  jomcd  with  the  defendants 
against  the  Government,  there  was  no- 
thing in  the  shape  of  damages  or  an 
interdict  claimed  again«rt  them.  The 
work  of  the  defendants  caused  the  floods 
to  flow  towards  the  railway  embankment 
and  the  whole  thing  might  be 
carried  away.  The  Railway  Depart- 
ment were  in  a  state  of  trepidation.  The 
engineers  on  the  railway  took  a  most 
serious  view  of  the  case. 

(Hoploy,  J. :  All  I  can  say  is,  if  it 
is  so  dangerous  put  a  host  of  watchmen 
there  to  stop  trains.] 

Mr.  Nightmgale :  A  host  of  special 
watchmen  would  be  washed   away. 


[Hopley,  J. :  Put  them  «  little  further 

up.] 

Mr.  Nightmgale:  They  would  not  be 
much  use  then. 

Uopley,  J.,  said  the  only  thing  he 
could  do  waa  to  give  the  earliest  possible 
date,  as  the  defendant  could  not  be 
forced  into  Court  before  his  defence  and 
counter-claim  were  ready.  However, 
dangerous  it  might  be,  justice  would  have 
to  be  done  in  the  case.  The  Railway 
Department,  if  they  anticipated  any 
danger  would  have  to  avoid  it  by  extra 
vigilance.  The  application  to  remove 
the  case  would  be  granted,  and  the 
case  put  down  for  some  day  next  term 
to  be  agreed  to  by  the  parties,  costa  to  be 
costs  in  the  cause. 


SUPREME   COURT 


FIRST    DIVISION. 


[Beforethe  Hon.  Mr.  Justice  Maasdorp.] 


{1905. 
Aug.  18th. 
„      2l8t. 

Principal  and  agent—Cattle. 

This  was  an  action  brought  by  Jo- 
hannes Petrus  Basson.  a  speculator,  of 
Plaatekhp,  Paarl,  claiming  £3.270,  tho 
price  of  a  certain  number  <3  cattle,  pur- 
chased on  behalf  of  the  defendant  Gerrit 
Peter  Jacobus  Thompson,  abo  of  the 
Paarl,   and   £218  commission. 

The  plaintiff's  declaration  stated  that 
in  March  last  the  defendant,  who  was 
at  that  time  making;  large  purchases  of 
oxen,  requested  plamtiff  to  proceed  to 
Kenhardt,  for  the  purpose  of  inter- 
viewing one  Brussel  there,  with  a  view 
to  purchasing  200  oxen  or  thereabouts 
for  him.  It  was  agreed  between  the 
parties  that  the  plaintiff  should  pur- 
chase the  said  oxen  on  the  defendant's 
behalf,  if  Bmasel  would  fix  a  price 
acceptable  to  the  defendant,  and  that 
defendant  would  take  possession  of  the 
cattle  at  Victoria  West-road.  The  de- 
fendant at  the  same  time  agreed  to  pay 
plaintiff  a  commission  of  £l  for  every 
ox  which  he  might  purchase.  There- 
after the  plaintiff  proceeded  to  Ken- 
hardt, where  he  entered  into  negotia- 
tions with  Brussel,  in  accordance  with 
the  agreement,  and  eventually,  upon 
receipt  of  information  fi^m  the  defen* 
dant  to  the  effect  that  he  would  be 
prepared  to  give  £15  a-head.  the  plain- 
tiff purchased  from     Bn^ssel   218   oxen 


"  CAPE.  TIMES  "  LAW  REPORTS. 


67;-) 


at  th«fc   price   on  behalf   of  defendant 
Plaintiff   disclosed    his       principal        to 
iSrussel    before       ooiicludiug    the      pur- 
chase^ but   Brusael      declined   to  accept 
the   defendant   as      purchaser,  and     re- 
fused to  sell  the  oxen  unless  the  plain- 
tiff held  himself  personally     liable  and 
responsible  as    the    purchaser  for      the 
purchase  price.        Whereupon     plaintiff 
agreed  to  undertake  the     responsibility, 
and  the  plaintiff     had  accordingly      in- 
curred liability    to      Brussel    in  respect 
of    the   purchase  price   which  he       bad 
already  denoanded  from  plaintiff.  Plain- 
tiff thereupon  took   the  oxen   to      Vic- 
toria   West-roadj    where   the   defendant 
met  him  on  April  2 ;  and  on  the  follow- 
ing day  defendant  took  delivery  of  the 
oxen,  and  after  disposing  of  26  of  them, 
sent    the   remainder  to     his   farm   Sny- 
dam.       Defendant  refused  to  pay  plain- 
tiff  the  purchase   price,    or  any  portion 
of  it. 

The    defendant's    plea  stated   that  in 
March    last   the  defendant   was      under 
contract  with   the  Grerman   Government 
to  supply     oxen  of  a  certain      condition 
and       weight,   the   last  of    which    oxen 
were      to    be    delivered    at    the   Docks, 
Ca^  Town,   on   April   5,    all    of  which 
plaintiff    knew    well.         It   was    agreed 
that    if   the    plaintiff   could     deliver   to 
the    defendant   100  oxen   of  the    weight 
of  700  lb.   when  dressed  at     Wellington 
Station,  on  or  before  April  3,   in  order 
that  the  defendant  could  fulfil  his  con- 
tract     with   the    German    Government, 
the  defendant  would  buy  them  at  £15  an 
ox.        The    defendant   denied    that      he 
requested    plaintiff  to    procr^d   to   Ken- 
hardt  to  purchase  200  oxen.     The  defend- 
ant denied  that  the  plaintiff  entered  in- 
to arrangements  with  Brussel  on  his  (de- 
fendant's) behalf.     On  March  20  plaintiff 
sent  a   telegram   to   defendait      stating 
that  he  would  be  at  Hutchinson      with 
oxen  on  April  3.     It  was  impossible  for 
any   of   the  oxen   to  be   delivered   from 
there   in    accordance  with    the   contract 
with  the     German     Government,     and, 
therefore,  defendant  bought  other  cattle 
to    fulfil    his   contract.       Defendant    ad- 
mitted  that  he  was  at  Hutchinson     on 
April  2,  but  denied  that  it  was  in  con- 
nection  with    the    plaintiff^s   oxen,    and 
he  denied  that  he  took  delivery  of  any 
of  the  oxen  which  were  not  in  accord- 
ance with  the  agreement  as  to  condition 
and    weight,   and  were  wholly  unfit  for 
fulfilling    defendant's  contract   with    the 
German   Government,    but   that    at    the 
request    of      the   defendant   he  allowed 
them  to  graze,  and  tried  to  sell  them  for 
plaintiff    upon  plaintiff   allowing  him   a 
tail  and  reasonable  commission  nn  each 
ox   sold,   and   the  defendant  sold   oxen 
for  him  to  the  amount  of  £339  18s.  9d., 
which  sum  less  £6  10s.  commission,  the 
defendant  was  entitled  to.  and  £11  §9. 
3d.,  being  moneys  paid  by  him  for  rail- 
way and  auction  dues.      The  defendant 
tendered  this  amount  to  plaintiff  before 
the  action  waa  brought, 

w  I 


The  plaintiff,   in  his  replication,      de- 
nied that  he  knew  the  conditions  of  the 
agreement   between   defendant   and    the 
German  Government,  and  he  also  denied 
that  the  defendant  made  arrangement  for 
the  delivery  of  the  cattle  at  Wellington. 
The  plaintiff  never  at  anv  time  had  any 
notice  of  the  purchase  of  other  oxen  by 
the  defendant.     The  plaintiff  also  denied 
the   arrangement   about   the  grazing  or 
selling  of  the  oxen  on  his  behalf,  and  he 
denied  that  the  defendant  had  ever  ten- 
dered him  money  in  respect  of  the  oxen, 
sold.     The  oum   now   offered    was    alto- 
gether    inadequate.       He     denied     his 
liability   for    railway    rates      or      com- 
mission,   and    he    held   that    the    oxen 
were  sold  by  the  defendant  for  his    own 
account 

Mr.  Burton  (with  him  Mr.  Lewis)  for 
plaintiff;  Sir  H.  Juta  (with  him  Mr. 
Russell)  for  defendant. 

An  aged  coloured  man  stated  he  saw 
Mr.  Thompson  selling  some  oxen  to  the 
butcher— Mr.  Robus— at  Victoria  West. 
They  consisted  of  both  old  and  young 
oxen,  but  none  of  them  were  in  a  bad 
condition. 

Cross-examined  by  Sir  H.  Juta:  But 
they  were  in  a  bad  condition. 

The  witness  contended  that  they  were 
rot  too  poor  for  the  butcher.  Witness 
did  not  consider  them  of  poor  condition, 
although  he  had  had  some  experience  of 
cattle. 

Ignatius  Viljoen,  a  butcher,  residing 
at  Victoria  West,  stated  he  saw  Thomp- 
son in  Victoria  West  in  April  la^t.  Wit- 
ness and  Robus  had  given  him  orders 
for  a  couple  of  oxen.  Witness  saw 
Thompson  and  Robus  at  the  lalter's 
place.  They  drove  two  oxen  out  of  the 
yard.  In  conversation  either  Robus  or 
witness  asked  Thompson  to  reduce  the 
price  from  £2  lOs.  per  100  lb.  dead- 
weight. The  oxen  were  about  six  miles 
out  from  Victoria  West,  grazing  in 
charge  of  Basson.  Witness  selected  two 
of  the  oxen,  and  Robus  selected  ten,  and 
Thompson  took  .sixteen.  Basson  asked 
witnes6  to  take  one  of  the  oxen,  which 
was  footsore.  W^itness  was  under  the 
impression  that  Thompson  owned  the 
oxen.  The  condition  of  the  cattle  was 
fairly  good. 

In  cross-examination,  witness  said  the 
average  weight  of  tha  oxen  he  purchased 
was  nearly  600  lb.  each.  He  paid  £28 
9<.  for  the  two,  and  purchased  them  at 
503.  per  100  lb.  The  oxen  were  full 
grown,  and  there  were  a  few  young 
ones. 

To  the  Court:  Oxen  of  700  lb.  dead- 
weight would  be  exceptionally  fine. 

Johannes  de  Kock,  in  the  employment 
of  plaintiff,  stated  that  in  the 
beginning  of  April  he  met  Mr. 
G.  Thompson.  The  latter  told 
witness  that  there  were  200  oxen  of 
his  coming  along  the  road.  Witness 
told  him  the  veld  was  good.  The  oxen 
arrived  in  due  course,    and  ran   on  th^ 


676 


if 


CAPE  TIMES*'   LAW  REPORTS. 


veld  for  some  time.  Some  of  the  oxen 
were  in  good  condition,  a  few  were 
young,  and  some  of  them  were  poor. 

Cross-examined :  Mr.  Bassou  had  been 
helping  at  the  farm  and  looking  after 
the  oxen;  he  had  wanted  them,  and  said 
that  they  were  in  good  condition.  Some 
of  the  oxen  were  old,  but  tliere  were 
only  about  20  or  30  in  poor  condition. 
There  were  about  50  that  were  fat  and 
about  20   young. 

Sir  Henry  Juta  added  these  up,  and 
then  asked  what  became  of  the  other 
100. 

Witness  said  he  should  call  them  fair. 

Cornelius  Franz  Barnard,  a  farmer, 
had  met  Mr.  Thompson  on  the  farm 
BicBJes  Dam  at  the  time  of  the  sale 
in  April.  Witness  spoke  to  him  about 
the  oxen,  asking  him  to  send  them  back 
to  the  Kenbardt  district.  Thompson  said 
that  they  had  onlv  been  there  a  fort- 
night, and  that  tney  would  then  be 
brought  on  to  the  P&arl.  Mr.  Thomp- 
son spoke  about  the  oxen  as  "my  oxe'i/' 
and  tnere  was  no  mention  of  such  a  njun 
as  Basson.  Witness  allowed  the  oattle 
to  graze  on  his  farm,  but  that  was  be- 
cause they  were  Thompson's,  and 
Thompson  was  his  friend. 

The  plaintiff,  Johannes  Petrus  Basson, 
a  farmer  and  speculator,  said  that  in 
March  last  he  received  a  let  tor  about 
some  oxen  at  Kenhardt,  and  he  r.howed 
the  letter  to  Mr.  Thompson,  at  the 
Paarl.  Thompson  asked  witness  to  wire 
to  Brussel  asking  the  price,  and  on  re- 
ceipt of  a  reply,  witness  took  it  to 
Thompson.  Thompson  said  that  he 
would  require  the  oxen  immediately — 
that  was,  after  Brussel  had  sent  a  fur- 
ther telegram  offering  the  lot  at  £16  10s. 
a  head.  Witness  arranged  to  go  at 
once,  on  an  agreement  that  Thompson 
would  pay  him  £l  a  head  for  getting  the 
cattle.  Witness  was  to  deliver  the  oxen 
by  April  3,  at  Victoria  West.  Witness 
arrived  at  Kenhardt  on  March  24,  and 
saw  Brussel.  Witness  then  sent  a  tele- 
gram to  Thompson  that  Brussel  had  a 
buyer  at  £17.  Thompson  repiiiMl  that 
he  could  not  give  more  tlian  £15,  and 
witness  subsequently  bought  at  that 
price.  A  telegram  was  then  sent  by 
Brussel  that  delivery  would  he  made  at 
Hutchinson,  on  April  3. 

Sir  Henrv  Juta  drew  attention  to  the 
fact  that  the  sending  of  this  telegram 
was  denied  in  the  pleadings  by  the 
plaintiff. 

Witness  (proceeding)  said  that  he  went 
to  Victoria  West  with  the  cattle,  and 
there  met  Thompson,  at  Verster's,  on 
April  2.  Defendant  remarked  that  there 
were  a  good  many  heavy  oxen.  There 
was  some  trouble  about  getting  men  to 
take  the  oxen  to  his  (Thompson's)  farm, 
that  being  necessary  because  there  were 
too  many  oxen  at  that  time  at  the 
Paarl.^  As  regarded  the  sales  to  Robus 
and  V^iljoen,  witness  had  nothing  to  do 
with    them,    except  that  Mr.   Thompson 


asked     witness  to  point  out  those   that 
were  footsore. 

Mr.  Burton  here  read  a  letter  from 
Thompson  to  witness  giving  the  result 
of  an  attempt  to  aell  some  of  the  oxen, 
but  as  two  of  them  had  died  on  the 
road,  it  had  been  found  impossible  to 
sell  the  remainder  at  a  profit.  Thomp- 
son advised  witness  to  take  them  to  tlio 
German  Border,  to  be  sold  to  the  Ger- 
mans. 

Witness  immediately  went  to  the 
Paarl  to  see  defendant,  and  told  him 
that  he  (witness)  could  not  keep  the 
oxen,  because  he  was  a  poor  man. 
Thompson  gave  him  a  letter  to  the  Ger- 
man C*onsul,  which  witness  took  to 
Baron  Von  Nettelbladt.  Nothing  came 
of  this.  Subsequent  communications  had 
been  through  the  attorneys. 

Cross-examined :  When  witness  wont 
to  Thompson  at  the  Paarl,  he  (Thomp- 
son) got  angry.  Witness  denied  that  he 
had  gone  to  Baron  Nettelbladt  about 
the  sale  of  the  oxen.  The  Baron  asked 
witness  where  his  oxen  were,  and  he 
replied  that  he  had  no  oxen. 

Sir  H.  Juta  here  read  t^he  evidence 
of  the  German  Consul,  which  witness 
said  was  not  a  correct  account  of  the 
conversation.  Witness  had  only  asked 
him  for  the  conductorship  of  certain 
wagons. 

Piroceeding  under  cross-examination, 
witness  said  he  did  not  know  the  con- 
tents of  the  letrter  Thompson  had  given 
him.  Witness  knew  that  Thompson  had 
bo  buy  oxen  for  the  German  Govern- 
ment. Witness  had  endeavoured  in 
February  last  'to  get  Thompson  to  buy 
more  donkeys  for  the  German  Govern- 
ment. Witn>:^ss  did  not  hear  from 
TViompson  that  his  contract  with  t-he 
German  Consul  was  to  supply  an  average 
of  700  lb.  weight.  Thompson  had  not 
even  told  h*m  that  it  was  slaughter  oxen 
that  were  *"equired.  and  there  were  no 
conditions  as  to  weight. 

He  knew  nothing  about  the  price 
obtained  for  the  oxen  by  defen- 
dant. He  received  a  letter  from 
the  defendant  in  April  with  reference  to 
some  oxen.  There  was  a  bull  among 
the  oxen,  but  witness  denied  that  he  ex- 
changed it  with  Thompson.  He  had  no 
authority  to  do  so,  because  they  were  not 
his.  On  May  9  defendant  wired  that  he 
wotild  not  take  the  oxen  back. 

But  you  asked  him  to  do  t!K>?—  I  did 
not. 

Well,  why  should  he  wire  to  you  to 
that  effect? — I  wrote  to  him  about  the 
oxen  after  they  had  been  to  Cape  Town. 

Continuing,  witness  denied  that  it  was 
an  arrangememt  with  Brussel  that  wit- 
ness should  try  and  sell  the  oxen. 

What  did  Brua?el  mean  by  writing  to 
you.  and  asking  you  what  you  were  pay- 
ing pound  money  for?— I  ^on't  know." 

what  did  you  reprly  to  that? — Nothing. 

Didn't  the  oxen  trespass  on  Piet  CIaa«. 
son's  farm  at  Amsterdam,  and  hadn't 
you  to  pay  £1  fine?— Yes. 


J 


"CAPE  TIMES"   LAW  REPORTS. 


077 


And  you  have  not  claiiiicd  for  thaf 
yet? — I  intend  to  do  so. 

Witness  (continuing)  denied  that  he 
paid  Jan  Glaassens  £1  for  water  for  tlio 
cattle.  Witness  intended  to  send  in  hi^j 
claim  for  all  expenses  later  on. 

I  believe  you  wanted  one  of  the  herds 
discharged  ? — No. 

I  put  it  to  you  that  you  a^ked  Willie 
Thompson  to  pay  the  herd  off,  and  you 
would  settle  with  him  afterwards? — No; 
I  did  not. 

Witness  said  he  refused  to  go  to  Puff- 
adder  without  being  hired  for  that  jour- 
ixey. 

In  re-examination,  witness  said  he  had 
given  Brussel  a  note  to  the  effect  ths  t  he 
would  be  responsible  for  the  money.  Wit- 
ness explained  to  Brussel  that  he  was 
buying  the  cattle  for  Thompson,  and 
Brussel  agreed  to  sell  them  if  ^iLiie^a 
Heiit  security. 

Mr.  Burton  explained  that  Brussell 
bad  been  subpoenaed,  but  at  the  last 
moment  he  wrote  stating  that  he  was 
too  ill  to  oome  down.  The  defendant's 
point  was  not  that  he  did  not  agree  to 
receive  the  oxen,  but  that  the  plaintiff 
failed  in  his  contract. 

Maasdorp,  J.,  said  he  thought  Brus- 
selPa  evidence  was  necessary  on  the 
question  of  credibility. 

Mr.  Burton  said  that  if  it  was  neces- 
sary he  would  apply  for  a  commission 
to  take  Bruflsell's  evidence. 

Comeilus  Neileon  ranker  on  the 
municipal  ground.  Victoria  West,  said 
that  in  April  last  Thompson  went  to 
him  and  asked  nim  to  rent  some  veldt 
for  the  oattle  in  question.  Witness  did 
so,  and  Thompson  then  wont  to  Basson 
and  informed  him  that  he  had  got  a 
place  for  the  cattle  to  run.  Basson  jMiid 
the  amount  due,  but  the  receipt  was 
made  out  in  the  name  of  Thompson. 
Witness  had  been  subpcenaed  by  the 
defendant  in  thifs  case. 

Cross-examined :  Witness  denied  that 
he  had  asked  Thompson  16s.  for  the 
night's   gi>azing. 

Charles  Steen,  chief  Traffic  inspector. 
Cape  Town  Station,  stated  it  took  from 
33  to  48  hours  to  carry  ea-ttle  from 
Hutchinson  to  Cape  Town.  It  would 
take  the  best  pant  of  a  forenoon  to  truck 
218  cattle.  The  usual  cattle  train  left 
Hutchinson  at  1.40  a.m.,  and  arrived 
at  1.5  p.m.  the  next  day 

Cross-examined  by  Sir  H.  Juta, 

I  suppose  thai  h  the  ideal  time? — 
It  is  the  time  laid  down  in  our  working 
books. 

It  would  be  cutting  matters  short  to 
bring  the  cattle  down  in  time  for  April 
5? — It  could  be  done. 

But  are  there  alwajrs  35  trucks  avail- 
able at  Hutchinson? — They  can  easily 
be  got. 

I  suppose  you  mean  to  suggest  that 
the  Railway  Department  is  so  ideal  that 
nobody  is  ever  delayed? — There  is  no 
reason  'why  there  should  be  anv  long  de- 
lay.   There  is  seldom  any  delay  to  the 


live-stock  train,  because  it  is  always  ex- 
pedited. 

Mr.    Burton   olosed    his   case. 

Gert  Peter  Jacobus  Thompson,  the 
defendant,  stated  that  he  was  a  specu- 
lator, and  had  farnks  at  the  Paarl  and 
Carnarvon.  Early  in  the  present  year 
witness  had  a  contract  to  supply  the 
German  Government  with  200  oxen.  He 
was  in  partnership  with  one  Malherbe, 
and  they  agreed  to  BUpplv  100  oxen  each. 
Thev  liid  to  supply  slaugntcr  oxen,  1,100 
lb.  live  weight,  and  got  £15  5s.  each. 
They  were  to  receive  £10  for  everv 
1,000  lb.  weight  above  that  amount.  It 
was  by  the  latter  clau^ie  that  the  profit 
was  made.  The  particulars  of  the  con- 
traict  were  conveved  to  Basson.  The 
cattle  had  to  be  delivered  at  the  Docks 
at  eight  o'clock  on  the  morning  of  April 
5.  They  had  to  be  examined  by 
a  veterinary  surgeon  at  Wellington.  In 
March  the  plaintiff  went  to  defendant 
and  asked  him  if  he  was  still  buying 
oxen.  W^itness  replied  that  he  had  a 
contract  for  100  slaughter  oxen,  and 
plaintiff  asked  witness  to  allow  him  to 
Duy  them.  Witness  sadd  tiiat  as  long 
as  the  oxen  were  good  he  did  not  mind 
whcm  he  bought  them  from.  Plaintiff 
then  said  he  could  get  140  oxen  wrhioh 
would  be  about  700  lb.  dressed  weight, 
and  witness  said  he  would  be  glaa  to 
give  £15  a-head  for  them.  Basson  then 
went  away  and  returned  next  day,  and 
said  he  had  had  a  wire  from  Brussel 
stating  that  he  had  oxen  for  sale,  but 
that  ho  wanted  to  receive  an  offer.  Wit 
ness  then  explained  to  Basson  that  if 
he  bought  oattle  he  would  have  to  de- 
liver them  at  Wellington  on  April  ?. 
Basjton  then  left  for  Kenhardt.  Witness 
denied  that  he  communicated  with  plain- 
tiff. From  the  14th  March  there  was 
no  communioation  from  the  plaintiff  till 
March  20.  The  next  communication  was 
such  that  it  would  not  enable  him  to 
fulfil  his  ooivtract.  So  on  March  21  wit- 
ness closed  with  another  offer  W^itness 
did  not  therefore  reply  immediately  to 
plaintiff 't«  wire  to  meet  him  at  Hutchin- 
son. Witnp«s  had  a  sale  on  at  one  of 
his  farm^.  and  it  was  on  that  account, 
not  because  he  wished  to  meet  Basson, 
that  he  went  to  Victoria  West.  Whilst 
witness  was  there  Basson  arrived  with 
the  cattle.  Basson  said  :  **  Here  are  your 
oxen,"  and  witness  replied:  "What  do 
you  mean ;  you  know  you  are  too  late, 
and  you  have  too  many."  Plaintiff 
said  that  "  the  Jew  would  ruin  him," 
and  that  he  -had  lost  five  oxen  on  the 
road.  Plaintiff  asked  witness  to  try  and 
put  the  oxen  through  for  him,  and  wit- 
ness said  he  would  do  what  he  could,  but 
that  he  would  probably  lose  a  lot  of 
money  on  them.  It  was  agreed  that 
witness  would  help  with  the  grazing 
arrangements  and  the  getting  of  herds. 
Witness  sent  some  of  the  oxen  to  Wor- 
cester and  the  renutinder  back  to  Lien- 
kalk.  Had  they  been  his  own,  witness 
would  have  sold  some  of  them  at     the 


678 


"CAPB  TIMES"   LAW  REPORT& 


sale  OD  tb«  farm  Besgesdam.  Affain,  if 
the  cattle  belonged  to  witness,  witness 
would  have  been  able  to  look  after  them 
without  the  assistance  of  Basson.  Wit- 
ness had  nothing  to  do  with  Brussel. 
The  sales  to  the  looal  butchers  were  with 
the  object  of  reducing  the  number  of 
th^  cattle.  Witness  made  a  deal  with 
plaintiff  in  reference  to  a  young  bull 
among  the  cattle,  and  there  were  four 
people  present.  Witness  endeavoured  to 
arrange  for  the  disposal  of  the  cattle 
through  the  German  Consul,  but  was 
unsuccessful.  When  witness  found  that 
defendant  was  taking  up  his  present  atti- 
tude, witness  impounded  tlie  cattle;  but 
subsequently  an  arrangement  was  made 
that  the  cattle  be  attended  to  in  the 
meantime,  so  that  neither  would  suffer 
unnecessary  loss.  These  cattle  were  a 
poor,  mixed  lot — slaughter  and  trek, 
young  and  old.  They  would  be  absolute- 
ly no  good  as  far  as  the  German  Gov- 
ernment was  concerned. 

Cross-examined:  There  was  not  a 
scrap  of  writing  to  confirm  the  arrange- 
ment between  witness  and  the  German 
Consul.  A  special  train  could  have  been 
arranged  for  the  cattle  in  question.  The 
rule  was  that  the  veterinary  surgeon 
examined  the  cattle  prior  to  their  being 
trucked.  Witness  had  agreed  to  give 
£15  for  oxen  of  1,300  to  1,400  lb.  live 
weight.  Witness  had  absolutely  nothing 
to  do  with  Brussel.  The  telegram  from 
plaintiff  to  *'  meet  me  at  Victoria  West 
on  the  third,"  might  have  meant  that 
plaintiff  wished  witness  to   buy. 

Mr.  Burton :  Do  you  really  mean  to 
ask  the  Court  to  believe  that? 

Witness:  I  do  not  to  the  present  day 
understand  the  telegram.  If  it  had  been 
100  oxen,  and  if  it  had  been  at  an  ear- 
lier date,  I  would  have  understood  that 
they  were  for  me.  Witness  (continuing) 
said  that  it  was  that  telegram  which 
decided  him  not  to  buy  plaintiff's  cattle; 
but  he  had  not  communicated  the  fact 
that  he  intended  to  *'  break  "  with 
plaintiff,  nor  had  he  endeavoured  to 
hurry  him  up.  It  was  on  March  2  that 
witness  heard  of  the  outbreak  of  rinder- 
pest and  the  stoppage  of  consignments 
of  oattle   to  German  South-W^est  Africa. 

Mr.  Burton  here  produced  an  account 
from  Robus  in  whioh  certain  of  the 
cattle  were  allowed  for,  and  the  private 
purchases  of  witness  credited.  All  the 
accounts  for  railage  were  in  witness's 
name,  witness  explaining  that  he  was 
at  the  time  acting  as  agent  for  the 
plaintiff. 

Proceeding,  witness  said  that  on  March 
20  he  had  140  trek  oxen  at  the  Paarl 
and  about  220  on  delivery  to  the  Ger- 
mans at  Hauptman's  Hoff.  He  was  in 
treaty  only  with  Basson  and  Boltman. 
Witness  liad  a  contract  for  107  trek 
oxen,  which  expired  on  March  27.  Wit- 
ness's partner  was  in  treaty  for  100  oxen 
with  a  Mr.  Lam  plough,  at  £15,  deliver- 
ed at  Wellington,  and  they  weighed  over 
1,200  lb.     Tnese  came  from    Bloemfon- 


tein.  Nettclblat  bad  no  share  in  wit* 
ness's  profits.  Nettelblat  got  the  con- 
tract froin  the  Government  and  passed 
it  on  to  witness. 

To  the  Court:  The  entries  in  the 
book  (produced)  were  entered  immedi- 
ately witness  returned  to  the  Paarl. 
Witness  made  these  entries  before  he 
wrote  to  Basson. 

William  Boltman,  dealer  in  live-stock, 
stated  that  in  March  last  he  was  in  the 
Paarl.  He  had  a  conversation  with 
Thompson  with  re|;;ard  to  the  oxen  Bas- 
son was  after.  Witness  was  to  get  an 
option  on  100  oxen  and  deliver  them 
at  Wellington  Station,  on  April  3.  The 
agreement  between  witness  and  defen- 
dant was  fixed  about  March  20.  Witness 
sent  down  the  oxen,  and  Mr.  Malherbe, 
the  defendant's  jurtner,  received  them. 

In  cross-exammation,  witness  denied 
having  had  anv  conversation  with  a 
Mr.  Barnard  about  the  cattle  in  Ques- 
tion. He  did  not  remember  tFavelling 
with  him  at  all. 

Did  you  travel  with  him  from  Paarl 
to  Hutchinson  on  April  9?— I  did. 

Did  you  tell  Barnard  that  Thompson 
had  sent  Basson  to  get  a  couple  of  hun- 
dred cattle  for  him,  and  that  Thomi> 
son  was  going  to  burn  his  fingers  over 
it? — I  do  not  remember  iL 

Would  you  contradict  such  a  state- 
ment?— I  would  not 

John  A.  Robus,  butcher,  of  Victoria 
West,  stated  that  he  recollected  a  lot 
of  oxen  arriving  in  the  village  on 
April  2.  Witness  offered  to  buy  some, 
and  m-ade  a  certain  offer.  Witness  be- 
lieved he  was  buying  the  cattle  from 
Basson.  The  general  condition  of  about 
40  or  50  of  the  oxen  was  good,  but  the 
others  were  poor.  Some  of  the  oxen 
were  very  old,  and  others  very  young. 
Witness  considered  he  had  the  pick  of 
the  oxen  in  what  he  got. 

Cross-examined  by  Mr.  Burton:  Wit- 
ness did  not  know  why  Viljoen  should 
think  the  o«en  belonged  to  Thompson. 
Witness  wrote  to  Thompson  in  May, 
sending  the  weights  of  the  cattle,  in 
reply    to   a    request   from    Thompson. 

Mr.  VerstTer,  in  examination,  detailed 
the  conversation  that  took  place  be- 
tween Thompson  and  Basson  when  they 
met  at  Victoria  West.  Thompson  in- 
formed Basson  that  aa  he  had  not  de- 
livered the  catt^le  in  time  he  could 
not  take  them  but  as  he  was  sorry  for 
him  he  would  do  his  best  to  help  him  to 
dispose  ot  them,  and  offered  to  let  them 
go  to  his  farm.  The  condition  of  the 
cattle   was   only  very   poor. 

In  cross-examination,  witness  said  he 
was  standing  close  to  Basson  and  Thomp- 
son when  they  were  speaking.  Wit- 
ness signed  the  receipt  produced.  He 
received  the  money  for  the  oxen  on 
Thompson's  behalf.  Basson  and  Thomp- 
son went  to  the  "  Veldwachter."  Wit- 
ness was  the  bosom  friend  of  Thompson ; 
in   fact,  he  was  tbe  friend  of  all  people. 


II 


CAPE  TIMES »»  LAW  REPOftTS. 


679 


To  His  Lordship:  WitneBB  never  saw 
Bamon  before  the  Sunday  in  queation. 

Johannes  Moller,  a  farmer,  stated 
that  in  April  last  he  was  on  Thompson's 
farm.  Basson  was  there.  Thompson 
and  Basson  changed  an  ox   for  a  bull. 

In  cross-examination,  witness  said  the 
exchange  occurred  on  April  8. 

William  Thompson,  son  of  the  defend- 
ant, stated  he  was  on  the  farm  Leeuw- 
kalK  when  the  cattle  were  taken  there 
b^  Basson.  They  had  some  trouble 
with  the  herds,  and  Basson  wanted  to 
dismiss  one,  but  he  declined  to  do  so 
as  he  would  want  him  to  take  the  cat- 
tle to  Cape  Town,  as  he  intended  selling 
them  to  Von  Nettleblat.  Witness  paid 
th'^  herd  for  him  as  he  was  short  of 
cash. 

In  cross-examination,  witness  said  the 
veld  on  the  farm  was  not  very  good 
just  at  that  time. 

To  the  Court:  The  cattle  had  been 
taken  back  to  Brussell's  farm  by  con- 
sent. 

The  evidence  of  Baron  Von  Nettle- 
blat, which  was  taken  on  commission, 
was  read.  He  stated  that  he  believed 
tho  cattle  belonged  to  Basson. 

Sir.  H.  Juta  closed  his  case,  and 
counsel  were  heard  in  argument  on  the 
facts. 

Maasdorp,  J. :  The  plaintiff's  case 
was  that  he  was  employed  by 
the  defendant  to  proceed  to  Ken- 
hardt  and  purchase  for  him  about 
200  oxen  at  a  price  to  be  agreed 
upon  after  he  arrived  at  Kenhardt, 
through  correspondence  by  wire,  and 
that  he  was  to  receive  remuneration  at 
the  rate  of  £1  per  ox.  On  the  other 
hand    the   defendant    said   that   in    ne- 

fotiations  with  the  plaintiff  he  informed 
im  fully  that  he  had  entered  into  a 
contract  with  the  German  Government 
to  supply  them  with  oxen  at  the  price 
of  £15  5e.  each,  and  that  he  would  be 
prepai^d  to  pay  the  plaintiff  £15  each 
for  the  same  quality  of  ox  as  he  was 
to  deliver  to  the  German  Government. 
If  the  Court  had  to  depend  merely  on 
the  evidence  in  the  case,  it  would  nave 
a  very  difficult  task,  but  fortunately- 
there  was  a  good  deal  of  documentary 
evidence,  which  threw  a  good  deal  <» 
light  on  the  circumstances.  In  the 
first  place  he  would  turn  to  the  tele- 
gram that  was  sent  on  March  14  by 
plaintiff  to  defendant,  and  see  whether 
ir  supported  plaintiff's  or  defendant's 
statement.  The  plaintiff  wired  that 
Brussel  had  an  offer  of  £17,  and  would 
ho  take  as  many  good  oxen  as  he  could 
get  at  £16  10s.  Now,  that  telegram 
proved  conclusively  that  there  was  no 
such  contract  tm  that  alleged  by  the  de- 
fendant, because  how  could  Basson  ex- 
pect Thompson  to  pay  £16  10s.  for  cat- 
tl«)  for  which  he  would  only  receive  £15 
58.  Such  a  telegram  could  not  have 
been  sent  unless  the  question  of  price 
of  the  oxen  was  still  open.      Defendant 


wired  back  that  he  could  not  pay  more 
than  £15.  Defendant  told  the  Court 
that  very  soon  after  he  gob  the  tele- 
gram from  plaintiff  he  considered  that 
hi*  negotiations  with  Basson  were  con- 
concluded,  and  that  he  set  about  pur- 
chasing elsewhere.  He  may  have  done 
so.  but  all  the  time  he  was  under  contract 
with  Basson.  On  March  20  plaintiff 
sent  defendant  a  telegram  to  the  effect 
that  he  would  arrive  at  Victoria  West 
at  a  certain  time,  and  asked  him  to  be 
there.  He  did  so,  and  seemed  satisfied 
with  the  cattle.  The  defendant  said 
he  was  not.  The  Court  was  expected 
to  believe  that  the  plaintiff  quietly 
subsided,  and  said :  *'  What  is  to  become 
of  me?"  The  Court  did  not  believe 
the  plaintiff  would  have  been  so  easily 
satisned.  In  the  face  of  all  the  evi- 
dence it  was  impossible  to  arrive  at  any 
other  conclusion  than  that  the  defendant 
told  several  persons  that  the  oxen  were 
his,  and  how  did  he  deal  with  them? 
H'3  sent  them  to  his  farm  to  stop  there, 
and  also  sold  them  without  consulting 
the  plaintiff.  Under  all  the  circum- 
stances the  claim  of  the  plaintiff  for 
the  price  of  the  cattle  would  have  to  be 
allowed,  and  albo  the  commission,  and 
judgment  would  be  given  as  prayed, 
with  costs. 

[Plaintiff's  Attorneys :  Faure,  Van 
Eyk  and  Moore ;  Defendant's  Attor- 
neys:   W.   E.   Moore  and   Son.] 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 
GENERAL  MOTION. 


8MELLBRKAMP  V.  RICBTER. 


f        190.5. 
(Aug.  18th. 

Mr.  P.  S.  T.  Jones  moved,  as  a  mat- 
ter of  urgency,  for  an  order  compelling 
thi  respondent,  Ernest  Richter,  against 
whom  an  interdict  and  an  order  of  eject- 
ment had  been  granted  in  the  Magis- 
trate's Court,  to  transfer  the  licence  of 
th*»  International  Hotel,  Durbanville,  of 
which  he  was  the  lessee  and  failed  to 
pay  the  rent  to  the  lessor  of  the  pre- 
mises, Mr.  Smellekemp,  who  had  nomi- 
nated  another  lessee. 

A  similar  order  to  that  in  the  case 
of  Ohlsson's  Breweries  v.  Kerr's  Trustee 
was    granted. 


TRIAL  CAUSES. 

ESTATE  VORSTER  V.  PRET0RID8. 

Mt.  M.  Bifiset  moved  for  judgment 
for  plaintiff  for  £361,  with  taxed  costs, 
in  terms  of     consent  paper. 

Judgment  in  terms  of  the  consent 
paper. 


6S0 


(« 


CAPE  TIMES"  LAW  REPORIS. 


mao  V.  oEuicKE. 


(       1905. 
<  kVifr.   18th. 
I     „      25th. 


Sale   and    purchase — Conditional 
sale. 

This  was  an  action  to  recover  certain 
instalments  due  on  the  purchase  price 
of  certain   land. 

The  declaration  set  out  that  the  plaint- 
iff was  the  owner  of  a  farm  called  Bon- 
nicvale  in  the  district  of  Swellendam. 
About  April,  1903,  the  plaintiff,  through 
his  agent  sold  to  the  defendant,  and  the 
defendant  purchased,  certain  eight  lots 
on  the  farm  at  a  price  of  £34  10s.  per 
acre,  which  was  to  be  paid  in  two  in- 
stalments of  £146  98.  on  May  1,  1903, 
and  May  1,  1904.  The  defendant  failed 
to  pay  the  instalments,  and  plaintiff 
claimed   £292   18s.,    wibh  costs. 

The  defendant  in  his  plea  set  out  that 
after  inspecting  'the  lota  he  told  the 
agent  that  it  was  too  late  for  him  to  satis- 
fy himself  as  to  the  efficiency  of  the  fur- 
row, and  said  that  he  would  look  at  the 
furrow  at  another  time.  Tlie  agent  got 
him  to  sign  a  paper  in  case  he  was 
satisfied  as  to  which  lots  he  would  pick, 
but  on  that  paper  there  were  no  condi- 
tions of  sale.  He  also  told  the  agent 
that  he  was  a  poor  man,  and  unless  he 
goi  some  money  from  the  military  autho- 
rities he  could  not  ^^urchase. 

Mr.  Sutton  was  for  the  plaintiff,  and 
Mr.  J.  E.  K.  de  Villiers  was  for  the 
defendant. 

Piet  Johannes  Laurens,  who  acted 
as  agent  for  the  plaintiff,  in 
1903,  said  the  plaintiff  had  built 
a  water  furrow  from  Breede 
River.  When  the  defendant  oame  to 
the  farm  the  conditions  of  sale  were 
discussed,  and  witness  told  him  he  would 
have  tn  pay  the  purchase  price  in  seven 
instalments.  T<be  defendant  read  the 
conditions  of  sale  before  he  signed. 

Witness  had  the  right  of  letting  cer- 
tain rooms  on  the  property,  and  of 
these  defendant  hired  four.  The  defen 
dant  signed  the  **  koep  brief "  on  the 
spot  in  lead  ixsncil.  Witness  took  tlic 
clefeiidani  to  the  house  of  tlie  plaintiff. 
Some  time  aftcrwardti  Messrs.  Schoc- 
man,  Swartz,  and  Meyer,  who  had  pur- 
chased plots,  visited  the  property,  and 
Mr.  Meyer  said  that  he  could  foresee  a 
difficulty  with  regard  to  a  wooden  aque- 
duct running  round  a  kraantz.  Meyer 
went  on  to  plead  poverty,  and  that  he 
had  been  told  bv  Mr.  Calitz  that  £1,000 
would  have  to  bo  expended  in  buying 
iron  pipes.  Such  being  the  case,  ho 
thonglit  that  the  sale  should  be  con- 
sidered to  have  fallen  through.  Later 
in  the  day  the  defendant  told  witness 
that  his  brother  Franz  could  not  ad- 
vance him  the  money,  and  that  he 
Gericke)  like  Meyer,  could  foresee  diffi- 
culties. Defendant  went  on  to  ask  wit- 
ness to  cancel  the  sale,  but  this  witness 
said  that  he  was  not  in  a  position  to  do. 


Defendant  subsequently  wrote  a  letter 
to  the  dBfeot  that  the  agreement  had 
not  been  kept,  inasmuch  as  the  furrow 
was  eighteen  and  not  seven  miles  long. 
Furthermore,  he  had  not  been  paid  out 
by  the  military,  and.  being  a  poor  man. 
he  could  not  possibly  purchase  the  plots. 
Witness  had  not  misrepresented  the  ad- 
vantages and  disadvantages  of  the  land 
to  defendant.  Witness  in  reply  to  the 
letter  pointed  out  that  other  people  had 
wanted  to  buy  the  land,  but  witness  was 
not  given  to  selling  one  piece  of  land 
twice.  A  hesitating  purcnaser  bv  the 
name  of  De  Jager  had  thought  better 
of  his  diffident  attitude,  and  had  bought 
the  plots  assigned  him,  but  would  have 
to  pay  £100  as  ccists  for  the  manner  in 
which  he  had  dallied.  As  witness  would 
be  grieved  to  see  a  poor  man  like  Ger- 
icke in  a  similar  plight  to  that  of  De 
Jiager,  he  (witness)  counselled  Gericke 
to  pay  up.  There  was  no  conditional 
purchase  about  the   matter. 

Cross-examined:  Witness  was  paid 
for  his  efforts  by  what  he  could  make. 
A  certain  price  was  fixed,  and  if  wit- 
ness could  get  a  bid  beyond  that 
amount  witness  pocketed  the  difference. 
If  defendant  sold  eight  of  the  plots, 
witness  would  give  him  one  as  a  pre- 
sent. Witness  did  not  tell  other  wit- 
nesses that  if  the  defendant  approved  of 
the  furrow  he  would  purchase  the  lots. 
The  defendant  told  him  about  camping 
a  farm  for  the  military,  but  while  the 
defendant  spoke  of  go ttmg  money  either 
from  his  brother  or  the  military  he  did 
not  say  unless  he  got  that  money  he 
could  not  purchase  the  lots,  furrow  or 
no  furrow.  The  defendant  protested 
very  strongly  against  the  declaration 
being  sent  to  him.  The  day  after  the 
first  visit  of  the  defendant  witness 
showed  Mr.  Honeyball,  who  picked  cer- 
tain lots,  over  the  ground.  Witness  did 
not  say  that  the  lots  would  not  be  pur- 
chased unless  the  defendant  approved 
of  the  furrow  and  got  compensation 
from  the  military. 

Mr.  De  Villiers:  You  have  a  c^at 
capacity  for  denying,  Mr.  Law^renoe? 

Continuing,  witness,  in  explanation 
of  the  conversation  with  Honeyball, 
said  that  the  latter  was  only  in  posi- 
position  to  buy  a  small  lot 
The  defendant  did  not  say  in  the  pre- 
sence of  witneaees  that  he  would  not  buy 
any  lots  near  such  a  rotten  furrow,  nor 
did  he  repeat  that  he  refused  to  pur- 
chase anything  on  the  same  evening  in 
th('  presence  of  the  same  witnesses. 

The  plaintiff  in  the  course  of  his  evi- 
dence produced  a  diary  in  support  of 
h;s  contention,  despite  the  protest  of 
Mr.  De  Villiers,  who  said  that  the  book 
had  not  been  **  discovered." 

Hopley,  J.,  in  glancing  through  the 
volume,  said  to  the  witness :  "  What's 
this  thnig  occurring  every  day? 

Witness:  That  means  no  water  in  the 
sluit,  my  lord. 


"CAPE  ttMBs*'  Law  reports. 


681 


Mr.  Sutton  (to  witness) :  But  that 
means  the  water  was  there,  but  not  run- 
ning. 

Witness:  Yes,  my  lord. 

Carl  Petrus  van  Wyk  stated  that  he 
heard  the  defendant  eay  that  he  had 
bought  the  ground. 

Cross-examined  by  Mr.  De  Villiers: 
Witness  did  not  start  to  write  out  con- 
ditions of  sale  instead  of  a  guarantc^e 
about  the  water. 

Mr.  Sutton  oloeed  his  oase. 

Jan  Gerike,  defendant  in  the  case, 
stated  that  he  fenced  in  hia  brother's 
farm  as  a  protection  camp  for  the  mdli- 
tary.  In  April.  1903,  he  visited  Bonnie- 
vale,  and  put  up  at  Mr.  Loureus' 
house.  Lourens  eaid  he  had  purchased 
the  farm  from  Rigg  to  sell  out  in  erven 
i'l  order  to  give  the  poor  people  a 
chance.  After  witness  had  inquired 
about  the  distance  of  the  furrow, 
Lourens  said  the  terms  were  so  reason- 
able that  almost  any  man  could  pay  the 
instalments  out  of  the  ground.  Lourens 
on  that  occasion  said  it  was  too  late  to 
see  the  furrow.  Witness  denied  havinj? 
said  in  the  presence  of  Van  Wyk  that  ne 
had  bought  ground,  and  was  going  to 
live  there.  Witness  admired  the  ground. 
but  regretted  that  he  could  not  see  the 
position  of  the  furrow.  The  paper  that 
witness  signed  did  not  contain  any  con- 
ditions of  f!«le.  The  plaintiff  said  if  he 
did  not  get  sufficient  purchasers  there 
would  be  no  sale.  It  was  only  a  condi- 
tional paper  that  witness  signed. 

Cross-examined  by  Mr.  Sutton :  He 
knew  that  Oudtshoorn  ground  was  the 
best  in  the  country,  and  he  thought  the 

ground  in  question  was  like  that  of 
tudtshooni.  Mr.  Lourens  was  not  a  re- 
liable man.  He  said  he  bought  the 
ground  from  Mr.  Rigg  for  £17,000.  If 
o  (witness)  might  drop  down  dead, 
Lourens  never  showed  him  the  conditions 
of  sale. 

[Hopley,  J. :  Never  mind  telling  us 
about  dropping  down  dead   here.] 

Continuing,  witness  said  that  Lourens 
always  had  his  son-in-law  present  to  hear 
cvidenoe. 

[Hopley,  J. :  Does  he  keep  a  son-in- 
law  on  'Uie  premises  for  that  purpose?} 

WitiM»9 :  Tea. 

Conttnuinff,  witness,  in  reply  to  Mr. 
Sutton,  saia  he  never  bad  the  Keep 
brief  in  his  hand.  When  he  signed  the 
paper  there  was  nothing  on  it  but  the 
names. 

[Hopley,  J. :  He  was  trying  to  in- 
duce people  to  purchase  under  false  re- 
presentations from  the  first?] 

W^itness:  Tes. 

[Hopley,  J. :  Was  it  part  of  his 
swindle  to  keep  you  from  going  to  the 
sluitr] 

Yes. 

Susannah  Gericke,  who  was  with  her 
husband  at  Lourens'  house,  said  that  in 
her  presence  no  conditions  of  sale  wore 
read  out.  Her  husband  said  nothing 
about  purohasiiig  the  land.    Witness  cor- 


roborated her  husband  as  to  what  took 
place  at  the  farm  and  in  other  material 
facts. 

Cross-examined  by  Mr.  Sutton :  She 
assisted  her  husband,  who  had  a  lot  to 
do.  She  did  the  writing  part  of  the 
business. 

Piet  Lourens,  recalled,  said  that  it  wad 
the  intention  of  the  plaintiff  to  make  a 
dorp  out  of  the  farm.  There  were  many 
people  OTi  the  ground  now  with  many 
ostriches  and  a  considerable  amount  of 
land  under  Income. 

Mr.  Honiball  said  Rigg  did  not  speak 
to  the  defendant  in  witness's  presence. 
When  witness  was  looking  for  a  small 
plot  Lourens  said  -there  was  still  a 
chance  for  him  as  Gericke  bad  iKTt 
actually   purchased. 

Philip  Rudolph  iSchocman  said  on 
the  Isl  June,  1903,  he,  in  company 
with  others,  visited  the  ^pot  at 
the  reuuest  of  Mr.  Lourens.  He  heard 
the  defendant  say  to  Lourens  that  he 
(Lourens)  had  not  adhered  to  his  agree- 
ment. Gericke  told  Lourens  that  the 
demand  for  the  instalment  was  contrarjjr 
to  the  agreement  which  was  if  the  mili- 
tary paid  and  the  furrow  suited  him  he 
could  have  paid  £50.  Lourens  then 
said  the  demand  was  a  mistake  on  the 
part  of  Teubes.  Witness  had  sold  plots 
provisionally. 

Antonio  Meyer,  who  wa«  in  the  com- 
panjjr  of  the  plaintiff  and  defendant, 
testified  to  the  defendant  repudiating 
the  agreement  of  sale  to  "the  plaintiff. 
Lourens  attributed  the  letter  of  demand 
to  a  misunderstanding  on  the  part  of 
Teubes.  Next  morning  he  heard  the 
defendant  say  to  Lourens  that  he  would 
not  purchase  ground  near  such  a  rotten 
furrow. 

Cross-examined  by  Mr.  Sutton :  Wit- 
ness became  secretary  of  the  committee 
established  for  the  sale  of  the  land. 

Mr.   De  Villiers  closed  his  case. 

Pdstea  (August  28th).  Counsel  hav- 
ing been  heard  in  argument  on  the 
facts. 

Hopley,  J. :  The  plaintiff  alleges  in 
his  declaration  that  in  the  month 
of  April,  1903,  he  sold,  through 
his  agent,  one  Louwrcns,  certain  eight 
lots  of  ground  on  his  farm,  Bonnie 
Vale,  in  the  district  of  Swellendam,  for 
the  sum  of  £1,009,  payable  in  seven  in- 
stalments, falling  due  on  the  Ist  of 
May  in  each  year,  together  with  interest 
at  the  rate  of  6  per  cent,  per  annum, 
and  in  the  present  suit  he  claims  pay- 
ment of  the  first  two  instalments.  Ho 
alleges  th<it  the  defendant  signed  a 
written  contract  of  sale,  and  in  the 
course  of  the  hearing  a  document  of  a 
peculiar  nature  in  more  respects  than 
one  was  produced,  bearing  among  other 
names  of^  alleged  purchasers  that  of  the 
defendant  written  in  lead-pencii,  to- 
gether with  the  numbens  of  certain  of 
the  allotments.  Such  name  is  admitted 
by  the  defendant  to  be  his  genuioc  sig- 
nature,   and    the    numben    were      also 


e^ 


"CAt>E  TIMES'*   LAW   tlEl»OltTg. 


written  by  him,  but  he  pleads  that  he 
was  induced  to  eign  his  name  on  the 
representation  of  Ix)uwrens  that  he  watS 
entering  into  a  merely  provisional  agree- 
ment, w'hich  would  become  final  and 
binding  only  if,  after  inspection  of  a 
certain  aqueduct  or  furrow,  he  was  satis- 
fied therewith,  and  if  ne  were  paid 
certain  moneys  wuxc^  were  owed  to  him. 
And  he  says  that  on  a  subsequent  in 
spectiou  he  was  dissatisfied  with  the 
aqueduct,  and  that  he  then  at  once  de- 
clared that  he  would  not  conclude  the 
bargain.  These  are  the  issues  raised  bj 
the  pleadings,  and  the  matter  has  prov- 
ed to  be  one  of  some  difficult v  and  of 
a  painful  nature,  since  it  is  clear  that 
some,  if  not  all,  of  the  witnesses  on 
one  side  or  other — all  aooarently  respect- 
able and  decent  people — must  be  com- 
mitting deliberate  perjury.  The  facts, 
which  are  beyond  doubt,  are  that  the 
plaintiff,  in  the  vear  1901,  purchased 
the  farm  Bonnie  Vale,  which  seems  to 
have  consideraoie  ajg^ricultural  poesibili 
ties,  and  to  which  his  predecessor  had 
made  an  aqueduct  and  water  furrow 
from  the  Breede  River  from  an  intake 
about  nine  or  ten  miles  away.  A  por- 
tion of  thia  farm  plaintiff  caused  to  be 
cut  up  into  agricultural  allotments  irrig- 
able by  means  of  this  water-leading,  and 
he  advertised  what  he  calleo  his  colon- 
isation scheme,  offering  such  allotments 
to  the  public.  Nothing  much  secme  to 
have  come  of  his  original  offer,  and  it 
appears  that  by  1903  he  had  put  the 
whole  mfvtter  into  the  hands  of  Louwrens 
— who  lives  upon  the  property — with 
whom  he  agreed  that  Louwrens  might 
sell  all  the  allotments  for  about  £16,500, 
and  that  any  surplus  above  that  amour t 
which  he  could  obtain  would  belong  to 
Louwrens  himself.  Whether  this  was 
the  exact  contract  between  plaintiff  and 
Louwrens  or  noi,  it  is  clear  that  some- 
thing of  the  sort  had  been  agreed  upon, 
and  that  Louwrens  in  subsequent  trans- 
a'xtions  with  third  parti^^  took  the 
active  part  in  concluding  or  attempting 
to  conclude  contracts,  and  it  is  also 
clear  that  he  had  a  direct  and  sub 
stantiil  interest  in  getting  rid  of  tho 
land  aj  expeditiously  and  advantageously 
as  possible.  Early  in  1903  Iiouwrerns 
seems  to  have  drawn  up  and  the  plaintiff 
to  have  typewritten  the  document  which  1 
have  described  as  peculiar  in  some  re 
speots.  It  is  written  in  type  on  a  single 
leaf  of  foolscap  paper,  and  there  arc 
certain  uninitiaUed  interlineations.  It 
is  to  the  following  effect  (the  original 
being  in  somewhat  illJterate  Dutch) : 
*'  We,  the  undersigned,  have  hereby 
agreed  and  bind  ourselves  to  have  pur- 
chased a  certain  share  or  portion,  accord- 
ing to  wliat  is  set  after  each  name  (in 
extent),  in  the  farm  Bonnie  Vale,  for  the 
price  of  £34  10s.  per  acre,  of  the 
ground  below  the  water-furrow,  together 
with  an  undivided  free  right  in  the  out 
lying  veld  and  an  equal  right  to  the  half 
of  the   water  furrow.       Each  purchaser 


will  be  bound  to  pav  the  sum  of  £5  for 
eaoh  acre  which  he  naa  purchaaed  before 
or  on  the  1st  of  Mav  (1903),  and  so  paid 
yearly  on  the  1st  of  May,  until  the  en- 
tire sum  is  paid  with  interest  at  the  rate 
of  6  per  cent,  (on  payment  of  the  first 
instalment  transfer  will  be  given  pari 
patnt  to  the  purchasers).  If  any  person 
w^i^hes  to  obtain  transfer  he  is  bound  to 
pay  two-thirds  of  his  (individual)  pur- 
ciiase  price,  and  the  balance  which  he 
etill  owes  may.  remain  on  first  mortgage 
at  5  per  cent.  Finally,  this  agreement 
j  is  of  force  only  in  case  M.  J.  Louwrens 
procures  enough  purohasers  for  all  the 
,  ground  below  i^  turrow.  Seller  (signed) 
I  M.  J.  Louwrens,  q.q. ;  (signed)  M.  J. 
Louwrens.  Date  ;  purchasers ;  extent  of 
giound."  Such  was  the  document  the 
parts  included  by  me  in  rectangular 
brackets  being  the  unitialled  maniiseript 
interlineations  referred  to  across  the 
I  margin  is  the  following  manuscript  ad- 
dition in  Louwrens's  writing.  (EUu!h 
i  purchaser  is  entitled  to  one  unirrigated 
I  allotment  for  each  lot  which  he  takes. 
!  (Signed)  M.  J.  Louwrens.)  By  the  25th 
i  March  eleven  people  had  signed  on  the 
leaf  on  which  the  agreement  was  written. 
I  and  the  signatures  then  go  on  on  a  sec- 
I  ond  leaf  under  :iimilar  three  headings 
of  Date,  Purchasers,  and  Extent.  This 
leaf  was  affixed  by  an  ordinaxj  pin  to 
'  the  first  one,  and  it  is  plain  from  the 
numerous  pin-holes  in  the  two  ebeets 
that  they  have  been  very  frequently  de- 
tached and  again  united  b]^  this  method. 
I  Nearly  half  way  down  this  second  leaf 
is  the  defendant's  signature  in  pencil. 
Now.  the  defendant  who  is  a  resident 
of  Mossel  Bay,  had  been  told  of  the 
Bonnie  Vale  scheme  in  that  town  by  one 
Schoeman,  a  relative  and  sub-agent  of 
Louwrens's,  and  he  had  intended  to 
visit  the  place  specially  with  a  view  to 
purchasing  some  of  these  lote  if  he  ap- 
proved of  the  proposition  after  inspec- 
tion ;  but  having  occasion  towards  the 
end  of  April,  1903.  to  go  to  Montagu 
for  another  reason,  he  on  April  29  hired 
a  cart  in  that  town,  and  drove  to  the 
place  accompanied  by  his  wife,  the  dri- 
ver being  an  intelligent  coloured  man 
named  Stoffel  Abrahams.  They  reach- 
ed  Louwrens's  house,  and  it  is  said  by 
Louwrens  that  defendant,  after  some 
talk  on  the  subject,  there  and  then  prac- 
tically agreed  to  purchase  the  lots  in 
question,  and  this  before  he  had  inspect, 
ed  the  ground,  in  corroboration  of  which 
he  produces  his  stepson,  Van  Wyk,  who 
says  that  defendant  told  him  before  he 
had  been  on  the  ground,  that  he  had 
purchased  14  morgen  there.  This  I  am 
unable  to  believe,  as  the  defendant  is  a 
poor  man  with  a  large  family,  and  the 
amount  of  over  £1,0()0  was  a  very  large 
liability  for  him  to  undertake.  More- 
<ver  even  if  he  had  been  a  rich  man, 
I  caoinot  believe  thait  he  would  purchase 
ground  without  going^  to  examine  the 
nature,  and  exact  position  of  it,  and  in 
the  care  of  irrigable  arable  land,  which 


It 


CAt»E  TtMEB"  LAW  ftKPOftTS. 


683 


this  was,   sfttisfying   himsel/   as  to      its 
slopes  and  other  facilities.    80  that,  setr 
ting   apart  the  fact  thait  there   was   ad- 
mittedly no  water  running  in  the  furrow 
owing   to  a  breakdown   of   the   wood^'U 
aqueduct  somewhere  higher  up     in    its 
course,  and  the  unlikelihood  that  a  man 
would     buy     without    seeing    the     run 
of        the         water,         I         find         the 
greatest  difficultr  in  believing  that  any 
man  like  the  defendant  oouid    so  readily 
commit  himself  to     a     concluded     bar- 
gain  about  a  thin^   he     had  not  seen, 
although  It  was  lym^  only  a  short  dis- 
tance off,   read^  for  inspection.       Here, 
then,    IS    the  first  doubt    raised    in  my 
mind    as   to   the  trustworthiness   of  the 
plaintiff's    witnesses.        However,    it     is 
clear    that    after      some      conversation, 
Lou  wrens  and  defendant  walked  to     tho 
ground  and  inspected  the  lots     in  ques- 
tion.     They  were  followed  by  the  hired 
csrt,  in  which  Mrs.    Gericke'and  a  Miss 
Van  Wvk  (Louwren's  stepdaughter,  since 
marned  to  one   Esterhuizen)   were  driv- 
»n^-     It   is    clear    that    Louwrens    took 
w»th  him   a  diagram   showing   the   sub- 
division  and    position   of   the    lots,    and 
he  also  had  with  him  the  document  on 
which  defendant  signed  his  name,     but 
whether   he  had     both      leaves  or  only 
the    second    leaf       thereof   is   a    matter 
about  which  there  is  a  considerable  con- 
flict of    evidence,  which,  however,  I  d<» 
not  think  to  be  of  very  groat     import- 
ance,  save    as    a   test   of    accuracy       of 
testimony,  as  it  seems  to  me  that     thc> 
present    controversy    might    in       either 
case  have  arisen.       There   in  the   veld, 
and      with   a   lead     pencil  produced  by 
Louwrens,  defendant  signed  the      docu- 
ment or  placed  his    name  on  the  second 
leaf  thereof;    and   it   is  sought   to   hold 
him  to  the  purchase  chiefly     by  reason 
of  that  fact;  but     Louwrens  is  alone  in 
swearing    that       this    was   an    uncondi- 
tional and  final   acceptance  of   the   con- 
tract of  sale.        He  is  directly     contra 
dieted    by    the       defendant,    by       Mr*. 
Gericke,    and   by   the   driver,   who  says 
that  he   had  a  special  reason  for     pay-' 
ing  close  attention  to  the    conversation, 
as  he,  and  some  of  his  friends  in  Mon- 
tague of  the  well-to-do     coloured  class, 
had  an  ide^  of  purchasing   some  of  these 
lots,  and  were  anxious  to  know  the  con- 
ditions.        The:^       three    witnesses    all 
swear    positively    and       circumstantially 
that     Louwrens    induced  defendant     to 
sign  by     assuring     him  that  the  whole 
matter   was   provisional,    and  that      de- 
fendant would  not  be  bound,  unless  after 
inspection  of  the  furrow  he  were    satis- 
fied therewith,  and      unless  further      he 
found    that   he     could  make    the    neces- 
sary    financial     arrangements     to  meet 
the  first    instalments  by  bein^  paid  some 
money  which  he  said  was  owing  to  him. 
It  is  admitted  that  another    matter  was 
also       spoken    about,    viz.,    a   block    of 
about  55  morgen  of  this  ground,  of  which 
iuHt   then   one  Scheepers    had    the      re- 
fusal,  but  of  which   it  was      suggested 


that  Gericke  might  have   the   disposal, 
in  case  Scheepeis  threw  up  his     option, 
and   it  waa  pointed  out  by      Louwrens 
that  be  would  be  willing  to  pay  a  com- 
mission of  £10  per  morgen  to  Gericke, 
who  might  thus  pay  off  the  greater    por- 
tion of  the      £1,000  he    would   have  to 
pay  for  his  own  lots.       After  the     de- 
fendant had  signed     his  name,  his  party 
drove  to    Montagu,     and  Louwrens  and 
Miss      Van   Wyk   walked  back   to  their 
house.        It  is  alleged    by  the    plaintiff 
himself   that    he  met  the      defendant's 
cart  at  the  farm  boundary,  and  that  de- 
fendant then  told  him  he  had  taken  up 
14   morgen  of    the   ground.         On    this 
point,    however,    Rigg    is      contradicted 
by  four  witnesses,   viz.,  Mr.  and     Mrs. 
Gericke,  Stoffel  Abrahams,  and  the  wit- 
iie.Hs  Honiball,   who  all   swear   that    the 
two  men  did  not  speak  at  all,  and  that 
they  were  on  different  roads,   and  onlv 
close   enough  to  wave  a  salute    to  each 
other.      The  entry  in  his  diary,  on  which 
Rijror  relies  to  corroborate  him,  does  not 
really  do  so.      It  is    simplv  to  the  effect 
that  Mr.  and  Mrs.     GcricKe     had  come 
and  taken     14  morgen.       It  does  not  say 
"  spoke   to    Gericke,    who   told    mo    he 
had        bought,       etc.,"       and       it        is 
clear     that,      as     the     entry        stands, 
it  might  have  been  made  on  Louwren's 
report,  while  at  this  distance  of  time  its 
presence  in  his   diarv  may  have    misled 
Kigg  into  thinking  that  he  remembers  a 
conversation  to  the  effect  ho  has  record- 
ed.    On  May   1,   or  two  days  after     his 
departure,    the   defendant   again    visited 
the  place,  and  this  expedition  is  utilised 
by   tne  plaintiff   and   nis    witnesses      to 
prove    further  that  he,  at  that  time,  con- 
sidered    himself  finally  bound  by      the 
contract ;   for    the^  swear  that  he  came 
out  for  the  conditions  of  sale,   which  he 
said  he  had  been  twitted  by  his  brother- 
in-law  in  Montagu  with  not   having  ob- 
tained.    But   it  is  odd,  to  say  the  least 
of  it,   that,   if  that   was    the  sole   object 
of  his  journey,   he   went  away   without 
obtaining      a  copy      of  the    document, 
though,  according  to  the  evidence.  Van 
Wyk  was  actually     engaged  in  writing 
him  a  copy;  nor  does  tne  reason    given 
by    Rig^   and   Louwrens    for    his   going 
bftck    without    the    only    thing    he    had 
come  for  (viz.,  that  it  was  a  joint  and  not 
a  separate   agreement   of  sale)   seem    to 
me  at  all   satisfactory.     The  defendant, 
however,    gives   a    totally    different   ver- 
sion.   He  says   that  he  went  out  partly 
to  inspect    the    furrow,   but   that  it  was 
said  by  Louwrens  that    no   horses  were 
that  day  available   for  tho  purpose,    and 
partlv  to  get  some  written  guarantee  as 
to   the  capacity  of  the   furrow  and     tlie 
water-supply,  which  he  might  exhibit  to 
people  to  whom  he  might  try  to  sell  the 
55  morgen,  in  case  they  should  be  aban- 
doned     by    Scheepers.      This    is,    at   all 
events,    a   plausible    explanation   of   this 
visit — at    least,   as   likely   to    be   true,    it 
seems    to  me.   as  the    one  given  by  the 
plaintifTs    witnesses.         Defendant    says 


DO* 


"CAt^B  ttMISB"  LAW  tOSPOktB. 


that  Louwrens  refused  to  give  him  any 
guarantee  in  writing  about  the  water- 
supply,  but  that  he  spoke  most  enthusi- 
astically about  its  abundance,  and  that 
be  stated  that  defendant  and  all  pur- 
chasers would  have  an  opportunity  of 
inspecting  the  furrow  before  tlie  contract 
waa  finally  concluded.  In  view  of  the 
provisional  nature  of  the  clause  with 
which  the  document  concludes,  which 
states  clearly  that  Uie  sales  would  be 
binding  (Nily  if  Louwrens  could  get 
enough  purchasers  for  the  whole  of  the 
irrigable  land,  I  think  it  not  at  oil 
unlikely  that,  at  the  stage  at  whirh 
matters  stood  on  the  1st  of  May,  Louw- 
rens would  then  say  that  matters  were 
provisional,  and  that  all  parties  could 
satisfv  themselves  at  a  later  date.  Early 
on  May  2  defendant  left  by  train,  and 
returned  to  Mossel  Bay,  and  shortly 
aftM*  that  date,  on  May  7.  a  telegram 
was  Font  to  him  telling  him  that  he 
might  have  Scheepers's  land  for  dis- 
posal. This,  however,  has  como  to 
nothing,  and  we  are  only  concerned  with 
the  lots  defendant  is  said  to  have  per- 
sonally bought.  On  May  18.  a  letter 
was  sent  by  plaintiff's  agent,  Teubes, 
to  defendant,  demanding  the  first  instal- 
ment, and  enclosing  what  he  called  a 
declaration  of  purchaser,  for  signature 
before  a  J.P.  This  declaration  is  in 
reality  so  drawn  that  it  would  amount  to 
a  written  contract  of  sale,  and  if  defen- 
dant had  signed  it,  as  requested,  he 
would  undouotedly  have  destroyed  any 
chance  of  defending  such  an  action  as 
the  present;  but  he  did  not  sign  it.  and 
he  swears  that  he  posted  a  reiny  to 
Louwrens  pointing  out  that  the  matter 
was  not  concluded,  as  he  had  not  in- 
spected the  furrow  yet.  and  moreover, 
that  he  had  been  asked  for  the  whole  of 
tho  first  instalment,  whereas  Louwrens 
had  agreed,  in  case  of  a  sale,  to  take 
£50  in  cash  and  a  promissory  note  for 
the  balance.  Very  shortly  after  this 
Schoeman  seems  to  have  got  up 
a  party  of  buyers  or  possible 
buyers  to  proceed  to  an  iaspection  of 
the  place,  and  defendant  joined  them. 
They  all  arrived  ait  the  farm  on  June  2, 
and  defendant  says  that  he  almost  at 
once  accused  Louwrens  of  a  breach  of 
faith  in  trying  to  fix  him  as  a  pur- 
chaser before  he  had  approved  of  the 
furrow,  and  in  asking  for  the  full 
amount  of  the  first  instalment  and  he 
swears  that  all  Louwrens  had  to  say 
was  that  it  wa«  a  mistake  of  Teubes's. 
Louwrens  admits  a  complaint  by  defen- 
dant, but  states  that  it  was  only  about 
the  demand  for  the  whole  of  the  first 
inetalment,  and  he  admits  that  he  said 
that  that  was  a  mistake  of  Teubes 's.  But 
here  again  defendant  is  directly  corro- 
borated by  independent  witnesses,  who 
swear  that  he  impressed  upon  Liouwrens 
^at  the  contract  was  conditional  on  his 
inspecftion  of  the  furrow.  The  party  in- 
spected the  furrow,  which  was  not  in 
a  satisfaotory  staite.     There  waa  no  river 


Wftter  in  it,  a  oooMderable  length  of 
the  wooden  aqueduct  along  the  face  of  a 
krantz  had  fallen  down,  and  it  was 
clear  that  a  large  sum  of  money  would 
have  to  be  spent  in  putting  it  into  work- 
ing order.  Of  these  defects  and  troubktf 
Louwrens  spoke  in  an  optimistic  spirit, 
pointing  out  that  by  co-operation  a  satis- 
factory state  of  things  could  be  brought 
about  without  very  heavy  expense  to 
any  individual;  but  the  oefendant 
swears  that  on  his  return  he  said  plain- 
ly,  and  more  than  once,  in  the  hearing 
of  all  the  party,  that  he  would  not  buy 
with  such  a  dcMteotive  furrow.  Louwrens 
bays  that  defendant  said  nothing  at  all 
publicly,  but  that  privately  he  asked  him 
to  rescind  the  contract,  as  he  could  not 
afford  to  carry  it  out.  The  other  wit- 
nesses, however,  again  corroborate  de- 
fendant, and  contradict  Louwrens  on  the 
point,  and  it  is  difficult  to  see  what  in- 
terest they  can  have  in  giving  false  evi- 
dence in  this  particular.  It  is  clear  that 
the  defendant  has  never  done  any  act  in 
any  way  showing  or  tending  to  show 
that  he  consider^  himself  the  owner  of 
the  laud.  He  did  not  go  upon  it  or  try 
to  diispose  of  it.  and  tor  some  time  he 
seems  to  have  been  left  in  peace;  but 
in  August.  1903,  another  demand  was 
made  upon  him,  and  he  wrote  repudiat- 
ing liability-  Subsequent  attempts  in 
October,   1903,  and  in  1904,  all  failed  to 

?:ot  any  acknowledgment  or  settlement 
rom  him,  though  he  was  threatened  by 
Louwrens  with  law  suits,  bankruptcy, 
and  imprisonment.  Taking  the  evi- 
dence as  a  whole,  I  am  not  satisfied  that 
the  plskintiff's  case  has  been  established; 
the  possibilities  seem  to  me  to  be  on 
tho  side  of  the  defendant,  as  also  does 
the  preponderance  of  the  evidence,  and 
I  am  of  opinion  that  there  should  be 
judgment  for  the  defendant,  with  costs. 

[Plaintiff's  Attorney:  G.  TroHip:  De- 
fendant's Attorneys:  Michau  and  De 
Villiers.] 


SUPREME  CQURT 

FIRST    DIVISION. 


LBefore  the  Acting  Chief  Justice  (the 
"on.  Sir  John  Buchanan),  and  the 
Hon.  Mr.  Justice  Hopley.] 


M      1905. 
*|Aujr.  21 8t 


INSOLVENT      ESTATE      VIN 
V.  NEW   ZKALANT)  INSUR 
ANCE  CO. 

Fire     insurance— Conditions     of 
policy. 

r.    hud   insured   against  fire 
icith  the  y.Z.  Co.y  and  subse- 


"CAPE  TlMEB"  LAW  REPORTS. 


68S 


querUly  his  premises  were 
burned.  By  the  conditions  of 
his  policy  he  loas  bouftd  (1)  to 
give  notice  to  the  company  of  the 
fire  forthwith  /  and  (2)  tcithin 
15  days  to  furnish  them  xdth 
an  accurate  and  particular 
account  of  his  louses,  (J)  It 
was  further  provided  that  no 
action  shotUa  be  sustainable 
against  the  compatty  unless 
brought  within  six  months  after 
the  loss  or  damage.  V.  had 
not  complied  with  the  second 
cattdition,  and  more  than  18 
months  after  his  fire  his  tnis- 
tee  in  insolvency  brought  an 
actian  to  recover  the  insurance 
from  the  company. 

Held,  that  as  these  conditions 
were  fair  ami  reasonable  and 
had  been  duly  brought  to  V.'s 
notice ^  judgment  must  be  given 
for  the  defendants  with  costs. 


This  waa  an  action  brought  by  Ed- 
ward Ridge  Syfret  in  his  capacity  aa  aole 
tnistee  in  tM  insolvent  estate  of  Jo- 
hannes AJbertua  Vink  against  the  New 
Zealand  Insurance  Company  to  recover 
certain  sums  of  money  upon  two  policies 
of  fire  insurance. 

Plaintiff,   in  his  declaration,   said  that 
he    was  the   trustee    duly  appointed    in 
ihe   insolvent    estate   of    J.    H.    Vink, 
whose  estate  was  finally  adjudicated  on 
the  12tb  March,  1904.    On  the  18th  De- 
cember, 190S,  Vink,  who  was  then  carry- 
ing on   business  a£  a  general  dealer  at 
Philadelpijia,    Koeberg,    Cape  Division, 
effected  a  policy  of  insurance  for  £1,800, 
for  which  the  premium  was  duly  paid, 
on    his   merchandise,   shop,    stock,    and 
furniture,  there   situated,   with   the  de- 
fendant company,   through   their  agent, 
duly   appointed,   at    Koeberg.       On  the 
22nd  December,   1903,  he  effected  a  fur- 
ther Dolicy  of  insurance  against  fire  with 
the  defendant  company  to  the  extent  of 
£1,800,  made  up  thus :  £650  on  a  certain 
iron    shed,    £1,000    on   certain    oathay, 
and    £150  on    certain   timber    and    two 
reaping  machines.     On  the  25th  Decem- 
ber,   1903,  a   fire  occurred   on    his   pre- 
mises whereby  the  bui^fiings,   furniture, 
and  stock  were  destroyed.    Notice  of  the 
occurrence   of   the    fire   was  duly   given 
to  the  defendant   company  on   the  fol- 
lowing day.       The    defendant  company 
refused   to  satisfy  the   claim   under   the 
policy.     Thereafter,   on   the  13th   Janu- 
ray,  1904.  an  inquest  was  held  into  the 
circumstances  of   the  said   fire.      On   or 
about    the    18th  January    criminal    pro- 
ceedings for   arson  were    instituted  and 
prosecuted   against  the   said   Vink    and 


one  Charles  Albert  Haupt  and  others. 
The  said  Vink  and  Haupt  were  duly 
tried  and  acquitted  of  the  said  charge. 
Plaintiff  prayed  for  judgment  for  3w 
said  sums  ot  £1,800,  £650,  £600,  and 
£150. 
The  oefendADt's  plea  wa£: 

1.  Defendant  admits  paragraphs  1  and 
2  of  plaintiff's  declaration. 

2.  The  said  Vink  made  two  proposals 
to   the  defendant   company's    agent  for 
insurance    by    the    defendant    company 
fgwnet  fire.    One  on  the  18th  December, 
1905,  for  £1,800  on   merchandi^,  shop, 
stock,    and   furniture,    and    one   on    the 
22nd  December,  1903,  for  £1,800,  on  iron 
store  (£650),  oathay  (£1,000),  timber  and 
two    reaping   machines,    all   situated    at 
Philadelphia,    and,   having   paid   respec 
tively  the  sums  of  £18  9s.  and  £13  19s. 
on  account  of  the  respective  premiums 
receipts,    in   form  similar   to  that   here 
unto  annexed  marked  "  A  "  were  issued 
bv  the  said  agent  to  the  said  Vink  an*! 
accepted    by  him.         The    said  receipt*, 
constitute  the  contracts  of  insurance  Dt- 
tween  the  said  Vink  and  the  defendant 
company,    and    they    were    in   force    as 
such  on  the  25th  December  when  a  fire 
took   place    which  destroyed  certain    of 

1?  P^^  ^^^  buiWings  insured,  of 
which  fire  due  notice  was  given. 

3.  By  the  said  receipts  it  is  agreed 
that  the  said  buildings  and  goods  are 
insured  subject  -to  the  terms  and  condi- 
tions of  the  defendant  company's  policy. 
By  the  15th  and  21st  conditions  of  the 
defendant  company's  said  policies  incor- 
porated as  aforesaid  as  conditions  of  the 
said  contracts  between  *he  said  Vink  and 
the  defendant  company,  of  which  both 
the  said  Vink  and  the  plaintiff  had 
notice  and  knowledge,  it  \&  provided  re- 
spectively, viz.,   by  the   13th  condition: 

That  the  insured  sustaining  any  lo«s» 
or  damage  by  fire  shall  forthwith  give 
notice  in  writing  to  the  directors  or 
manager  or  other  neareet  agent  of  the 
company,  and  shall  within  fifteen  days 
after  such  fire  shall  have  happened,  c(e- 
liver  to  the  said  directors,  their  man- 
ager, or  agent,  as  accurate  and  particu- 
lar account,  in  detail,  of  their  loss  or 
damage  respectively,  as  the  nature  and 
circumstance  of  the  case  will  admit,  with 
full  particulars  of  any  other  insurance 
upon  the  property,  and  shall  verify  the 
same  by  solemn  declaration  or  affirma- 
tion before  a  Jiiistioe  of  the  Peace,  and 
shall  produce  at  the  office  of  the  com- 
pany his  books  of  account,  vouchers,  and 
such  other  evidence  as  the  directors, 
their  manager,  or  agent  may  reasonably 
recjuire;  and  no  claim  whatever  under 
thw  policy  shall  be  payable  or  recover- 
able unless  the  terms  of  this  condition 
have  been  complied  with.  No  profit  of 
any  kind  is  to  be  included  in  such 
claini,  and  if  there  appear  to  be  any 
fraud,  overcharge,  imposition,  or  any 
misrepreeentotion.  or  if  the  fire  shall 
have  happened  by  the  procurement  or 
wilful  act,  means,  or  connivance  of  the 
insured,    claimant,    or  claimants,    they 


686 


11 


CAPE  TIMES"   LAW  REPORTS. 


shall  be  excluded  from  all  benefit  under 
this  policy."  And  by  the  Zlst  condi- 
tion it  is  cxprcesiy  provided :  **  That 
no  8uit  or  action  of  any  kind  aga.inst 
the  said  company  for  tlio  recovery  of 
anj  claim  upon,  under,  or  bv  virtue  of 
thici  policy,  i«hall  be  9U»t-ainablo  in  any 
court  of  law  or  etiuity  uiilesb  such  suit 
or  action  shall  be  commenced  within 
the  term  of  six  months  next  after  any 
loss  or  damage  shall  occur,  and  in  case 
any  such  suit  or  action  siiall  be  com- 
menced against  the  said  company  after 
the  expiration  of  six  months  next  after 
euch  loss  or  damage  r»hall  liavo  occurred, 
the  lapse  of  time  shall  bo  taken  and 
deemed  as  conclusive  evidence  againet 
the  validity  of  the  claim  thereby  so  at- 
tempted to  be  enforced."  The  said  Vink 
and  also  the  olaintiflF  have  wholly  failed 
and  neglectea  to  comply  with  and  fulfil 
the  said  conditions,  ancl  did  not  within 
the  aforesaid  fifteen  days,  or  at  any 
time,  deliver  U)  the  said  directors,  their 
manager,  or  agent,  any  account  a-t  all 
in  accordance  with  the  above  condition. 
Furthermore,  the  defendant  stater  that 
the  action  waas  only  instituted  on  March 
11,  1906,  wheroacs  the  fire  occurred  on 
December  25,  1903. 

4.  The  defendant  company  admits  that 
the  said  Vink  was  at  the  date  of  the 
said  fire  interested  in  the  building*?  and 
goods  insured,  but  it  does  not  admit 
the  alleged  extent  of  such  intere-it  or 
the  amount  of  damage  alleged,  and  de- 
fendant puts  plaintiff  to  the  proof  of 
his  claim. 

5.  As  rcgardfi  paragraph  7,  the  defen- 
dant company  states  that  the  proisecutiou 
wan  a  public  prosecution  at  the  suit  of 
the  Crown,  and  not  a  priva.te  prosecu- 
tion, and  that  it  only  adrnits  that  Haupt 
and  Vink  were  acquitted. 

6.  Save  as  aforesaid,  defendant  denies 
paragraphs  3,  4.  5,  6,  8,  and  9,  save  that 
it  refuses  to  pay  the  sums  claimed,  and 
says  that  by  virtue  of  the  premiscis  it  is 
not  liable  to  pay  any  sum  to  the  plain- 
tiff.^ 

Wherefore  defendant  prays  that  plain- 
tiff V  claim  may  be  dismissed  with  costs. 

The  annexure  to  the  plea  was  headed, 
South  African  Branch,  New  Ze-aland 
In.suranco  Co..  and  read  as  follows:  Koe- 
berg  Agency,  Deocmlx'r  18,  1903.  Mr. 
Johannes  Albertus  Vink  having  this  day 
made  a  proposal  to  the  above  company, 
for  tin  msurance  of  £1.800  (eigntoen 
hundred  nounds  sterling)  on  merchandise, 
shop  stock,  and  furniture,  situated  Phila- 
delphia, and  having  paid  the  sum  of 
£18  9s.  a<i  a  deposit  on  account  of  the 
premium,  the  same  ifi  hereby  held  insur- 
ed, subject  tx>  the  terms  and  conditions 
of  the  company's  policies  for  thirty  da.ys 
from  date  hereof,  unless  the  manager  in 
Cape  Town  previously  determines  t^  de- 
cline the  risK,  of  which  due  notice  will 
be  given.  (Signed)  J.  van  Renen, 
agent.  Note. — The  a£«ured  is  particu- 
larly requested  to  take  notice  that  this 
receipt  will  only  remain  in  force  thirty     | 


days  from  the  date  hweof*  and  in  the 
event  of  a  policy  not  being  delivered 
within  that  time,  the  fact  should  be  re- 
ported to  the   manager   in  Oape  Town. 

Plaintiff,  in  his  replication,  denied  that 
the  alleged  conditions  set  forth  in  para- 
graph 3  of  the  plea  were  material  condi- 
tions or  were  incorporated  as  couditious 
of  the  terms  of  insurance,  sued  upon  in 
this  action,  or  that  he  or  the  said  Vink 
had  due  or  legal  notice  thereof.  He  de- 
nied that  the  said  company  were  en- 
titled to  rely  on  the  said  conditions  as 
a  defence  to  the  claim. 

Mr.  Upington  (with  hira  Mr.  Alexan- 
der) for  plaintiff,  Mr.  D.  Buchanan 
for    defendant. 

Cornelius  J.  Muller,  clerk  in  the  Mas- 
ter's Office,  produced  the  records  in  the 
incK>lvent  estate. 

Alfred  Newton  Foot  said  he  was  a 
partner  of  Mr.  Syfret,  who  was  the  trus- 
tee of  the  insolvent  estate.  Witness  had 
had  control  of  the  whole  matter.  He 
had  received  four  books  from  the  insol- 
vent— two  day-books,  and  two  sundry 
debtors'  books.  There  was  not  a  com- 
plete set  of  books,  in  fact,  there  was 
nothing  from  which  he  could  make  up  an 
account  of  the  material  destroyed.  Wit- 
ness was  only  able  to  make  up  a  very 
approximate  account  from  the  proofs  of 
debts  and  so  forth.  W'iiness  applied  to 
the  defendants  for  payment  of  the  poli- 
cies, and  in  reply  was  referred  to  the  de- 
fendants' attorneys.  On  the  12th  Au- 
gust, witness's  firm  wrote  to  the  com- 
pany, setting  out  the  circumstances  of 
the  fire  and  insolvency,  and  claiming 
payment  of  the  insurance.  They  did 
not  file  a  claim  at  that  time,  because 
they  had  not  satisfactory  dertails.  and 
also  in  view  of  the  fact  that  criminal  pro- 
ceedings for  arson  were  pending  aganist 
the  insolvent.  Further  correspondence 
ensued,  in  which  the  defendants  ^^aid 
that  they  were  under  the  impression  that 
any  intention  to  claim  the  insurance  had 
been  abandoned,  and  that  under  all  the 
circumstances  they  could  not  com^Jv 
with  the  demand  of  '  the  trustee. 
Amongst  the  claims  proved  against  th^ 
estate  were  claims  for  merchandise  t.) 
the  amount  of  £1.510. 

Mr.  Buchanan  submitted  thai  this  was 
not  good  evidence  as  to  the  stock  in  tlie 
insolvent's  premises. 

Buchanan,  A.C.J.,  said  thut  if 
the  question  of  the  amount  was  to  be 
gone  into,  it  would  be  referred  to  a  re- 
feree. The  evidence  at  present  being 
led  in  regard  to  the  value  of  the  stoclc 
yvai  inadmissible. 

Mr.  Upington  said  that  in  that  case 
Mr.  Foot  would  be  unable  to  assist  the 
Court  any  further. 

Witness,  in  answer  to  the  Court,  said 
that  he  could  not,  from  the  books,  give 
a  statement  as  to  the  actual  position  of 
tho  estate  at  the  time  of  the  fire.  He 
thought  that  Vink  was  just  about  sol- 
vent at  the  time.  Tho  debts  proved 
were  £2,070.    The  weets  realised  £570» 


«f 


CAPE  TIMES"   LAW  EEPORTS. 


687 


£500  was  lecMTed  from  the  Guardian 
Insurance  Co.»  the  movables  realised  £5 
odd,  and  the  outstanding  debts  were 
£193  6s.  8d. 

The  Court:  But  for  the  land,  which, 
would  not  bum  everything  in  the  estate 
waa  destroyed? 

Witness:  Ail  except  some  horses  and 
carts,  which  were  pledjB^ed. 

Johannes  Albertus  Vink,  now  of  Ach- 
ter  Paarl,  said  that  he  was  at 
present  travelling  for  life  insurance, 
in  November,  1903,  a  man  named  Van 
Renen,  who  was  agent  of  the  defend- 
ant company,  came  to  him.  Witness  was 
then  carrying  on  a  general  dealer'^  busi- 
ness at  Philadelphia.  He  agreed  with 
Van  Renen  to  msure  his  merchandise, 
shop,  and  furniture  for  the  sum  of 
£l,oOO.  Witness  paid  the  premium.  He 
waa  not  made  acquainted  with  the  con- 
ditions of  the  company's  policy.  Wit- 
nesa  asked  Van  Renen  what  the  condi- 
tions were,  and  the  latter  said  that  he 
did  not  know.  Witness  was  not  aware 
at  that  time  of  the  13th  and  21st  condi- 
tions. On  the  22nd  December  he  made 
a  further  proposal  on  the  oathay,  the 
iron  shed,  and  two  reaping  machines. 
Witness  was  given  a  receipt  for  the  pre- 
mium. Van  Renen  inspected  the  build- 
ing's and  stock  which  had  been  insured. 
Witness  did  not  road  through  the  pro- 
posal form.  Van  Renen  aaked  him  ques- 
tions, and  wrote  down  the  answers  he 
gave,  after  which  witness  signed  the 
form.  Witness  was  unable,  after  the  fire, 
to  make  up  a  particular  account  of  his 
stock.  He  had  Wt  his  books,  stock  lists, 
and  papers  by  the  fire.  The  day  after 
the  fire  witness  telegraphed  to  the  com- 
pany saying  that  his  place  had  been  des- 
troyed by  fire.  The  fire  took  place  on 
the  evening  of  the  25th  December,  1903. 
Oi:  the  6tn  January,  Mr.  Wilson,  the 
company's  manager,  came  out,  and,  after 
looking  over  the  premises,  gave  witness 
a  certain  form,  and  told  him  that  he 
must  specify  his  losses  in  legard  to  the 
merchandise.  Mr.  Wilson  also  gave 
him  a  copy  of  the  company's  policy. 
Witness  told  him  that  he  could  not  make 
up  the  list,  and  Wilsop  then  said  he 
mi. St  consult  his  solicitor. 

Cross-examined :  He  had  a  conversa- 
tion with  the  agent  about  the  condi- 
tions. Within  ten  days  of  the  fire  Mr. 
Wilson  showed  him  "the  form  of  the 
conditions.  At  the  time  the  fire  took 
place  witness,  Van  Renen,  and  othere 
were  trying  to  get  a  contract  for  forage, 
and  the  forage  in  the  store  would  have 
gone  to  the  Harbour  Board. 

John  Fredrick  van  Renen  stated  that 
at  the  latter  end  of  1903  he  was  agent 
at  Philadelphia  for  the  New  Zealand 
Company.  In  December  of  that  year 
he  was  agent  for  the  company.  Witness 
approached  Vink  about  insuring  the 
stock.  At  first  Vink  was  not  anxious 
to  insure,  but  witness  subsequently  got 
him  to  sign  the  proposal  forms.  Wit- 
ness filled  in  the  text  of  the  proposal. 


and  also  the  valuation.  The  iron  shed 
waa  practically  destroyed   after  the  fire. 

Cross-examined  by  Mr.  Buchanan : 
Witnti*  was  a  partner  with  Vink  in  the 
farming  lino,  and  lie  had  an  interest 
with  him  and  others  in  the  contract 
with  the  Harbour  Board.  He  knew 
Viuk  wanted  to  insure,  but  he  did  not 
know  that  he  wanted  to  insure  with  the 
New  Zealand  Company. 

Mr.  Upington  closed  his  case. 

Mr.  Buchanan  read  the  evidence — 
taken  on  conuniesion — of  Frank  William 
Wilson,  manager  of  the  defendant  com- 
pany, which  set  out  (that  the  first  ho 
heard  of  the  matter  was  a  telegram 
from  Vink  on  the  26th  December  1903. 
He  sent  a  Mr.  Harley  to  Philadelphia 
on  the  29th  December.  Subsequently 
witness  wont  to  the  farm  and  said  that 
no  policy  had  been  ic^ued,  and  that 
Vink  had  better  take  the  form  with  the 
conditions  to  his  solicitor,  who  would 
tell  him  what  to  do.  Deponent  re- 
marked that  the  circumstances  of  the 
fire  appeared  to  be  rather  extraordinary, 
arid  advised  an  inquiry,  which  was  de- 
clined. In  hici  opinion,  he  certainly  did 
not  think  there  nad  been  a  large  stock 
on  the  premises.  Vink  never  sent  in  a 
claim  to  the  company ;  the  first  they 
heard  of  it  was  when  the  trustee's  solici- 
tors event  a  letter  of  demand. 

Mr.   Budianan  closed  his  case. 

Mr.  Upington:  The  case  of  condi- 
tions inscribed  on  a  railway  ticket  is 
very  different  from  that  of  conditions 
embodied  in  a  life  policy.  No  doubt 
there  are  cases  in  which  a  person  who 
takes  a  ticket  is  bound  by  the  condi- 
tions printed  thereon.  But  this  is  quite 
a  different  case.  Here  neither  the  agent 
nor  the  client  knows  what  the  condi- 
tions are. 

[Hopley,  F. :  The  agent  says  he  knows 
that  there  are  conditions.] 
1  But  for  a  binding  oontract  the  agent 
ana  the  insurer  must  both  know  what 
the  conditions  are.  See  Porter  on  In- 
surance (3rd  edit.  p.  27).  My  client  had 
no  opportunity  ot  knowing  what  the 
conditions  were.  In  the  case  of  Queen 
Insurance  Comjifiny  v.  Parsons  (7  Ap.  Ca. 
96,  125)  the  question  of  reference  to  the 
conditions  was  not  raised.  Here  the 
Company  say  that  they  will  not  issue  a 
policy  until  tliey  are  satisfied  as  to  cer- 
tain particulars,  but  they  will  insure.  I 
would  urge  (1)  that  the  conditions  of 
this  policy  wore  not  understood  by  both 
parties  to  the  contract.  (2)  That  even 
assuming  they  were  there  is  no  proof 
of  this.  (3)  That  no  further  statement  of 
account  was  produced ;  and  (4)  that  the 
criminal  trial  took  place  as  long  ago  as 
August  last,  when  Vink  was  acquitted. 

Mr.  D.  Buc.ianaii :  The  word  **  Insur- 
ance" of  itself  means  little  or  nothing. 
I  refer  to  Qvecn  v.  JRymell  (10  Q.B.  178). 
This  is  not  a  simple  contract.  See  also 
Woodgate  v.  S.W.  Railway  Company 
(51  L.T.,   826),   Burtse  v.   Q.W,  RaUway 


688 


"CAPE  TIMES"   LAW  REPORTS. 


Company  (5  C.P.,  1).  The  ome  of 
Quetn  Inturance  Co.  v.  Faraoiu  shows 
that  a  man  is  bound  by  the  conditions 
of  proposal  forms  and  receipto  as  to  the 
notioe  within  15  days,  there  is  nothing 
to  show  that  that  was  a  condition  pre- 
cedent. See  Stewart  ▼.  Siehel  and  Othera 
(4  Juta  436).  Here  there  is  no  question 
of  waiver. 

[Hopley,  J. :  His  case  is  that  there 
was   no  contnact] 

Then  they  have  no  case  at  all.  Our 
conditions  are  only  the  ordinary  condi- 
tions and  we  never  attempted  to  obscure 
them. 

[Hopley,  J. :  Then  you  say  that  there 
is  no  contract  before  the  Court  7] 

Yes,  and  the  plaintiff  is  estopped  from 
leading  evidence  as  to  waiver.  The 
conditons  on  the  proposal  form  are  con- 
ditions precedent. 

Mr.  Upington  in  Tep4y. 

Buchanan,  J. :    I  think  the  first  ques- 
tion  is    whether  the    conditions   of   the 
policy  are   binding    upon  Vink.       They 
were  brought  to  his  notice  when  he  pro- 
posed the  msu ranee.     They  were  agreed 
to  b^  him  in  the  written  proposal  which 
he  signed,    and   they  were  specially  re- 
ferred  to   in  the  receipts   which  he  ob- 
tained.     I    think,   uncfer   these    circum- 
stances,   there    is   no  ground    justifying 
the  Court  in   coming  to   the  conclusion 
that  Vink   can  be  exempted  from  these 
conditions.     The   next  question    is,   have 
the  conditions  on  the  contract  been  com- 
plied with?     The  fir«t  condition,  No.  13, 
requires  that  after  a  fire  tokes  place  the 
insured    shall    give    notioe   of    the   firo 
forthwith,  and    within    fifteen    days   de- 
liver to   the  company  an  accuraite   and 
particular  account   in  detail   of  his   loss 
or  damage,   as  the  nature  and   circum- 
stance of  the  case  will  admit.    This  con- 
dition in  substance  is  a  common  condi- 
tion in  all  policies  of  fire  insurance.     It 
is  clear   from  the  case  of  Hollander  v. 
Jioyal  Insurance  Companjf  that  we  must 
hold    that   it    is   a    condition    precedent 
which    must    be    complied    with    before 
action  can  be  brought.     Up  to  the  pre- 
sent time  that   condition   has    not  t^n 
complied   with.     It  is  not  a  question  of 
the  sufficiency  of  the  information  given, 
but  that   no    information  whatever    was 
supplied.     ,Then     there     is     the      fur- 
ther    condition,     No.     21,     which     says 
"  that     no    suit     of    any    kind     against 
the  said    company    for   the  recovery   of 
any  claim  upon,  under,  or  by  virtue  of 
this   policy  shall   be  susbainable    in  any 
court  of  raw  or  equity,   unless  such  ac- 
tion or  suit  shall  be  commenced  within 
the  term  of  six   months  next  after   any 
loe»  or  damage  shall  occur. *'     The  loss 
or  damage  occurred  in  December,  1903, 
and    yet    no  action    was  instituted  until 
March,  1905.     Even  if  that  Court  should 
say  that  the   prosecution  for  arson  sus- 
pended the  operation   of   this  condition 
until  after    the   other   action    had  been 
decided,  then  the  prosecution  took  place 
in    August  laat,    and   more    than     six 


months  elapsed  afiter  the  conclusion  of 
this  prosecution  before  any  proceedings 
took  place  in  this  oa«e.  Both  conditions 
are  rcaciouable  conditions,  in  my  opin- 
ion, especially  in  fire  insurance.  Vink 
was  bound  by  these  conditions  and  the 
trustee  of  his  insolvent  estate  has  no 
greater  rights  than  ho  had  against  the 
insurance  company.  On  both  these 
grounds,  the  plaintiff  cannot  succeed  in 
this  action.  There  is  no  use  in  giving 
absolution  from  the  instance.  Seeing 
that  the  21st  condition  has  not  been  com- 
plied with,  which  makes  no  action  sus- 
tainable after  a  period  of  six  months.  I 
think  the  proper  judgment  in  this  case 
ought  to  be  judgment  for  the  defendants, 
with  costs.  Judgment  will  bo  entered 
accordingly. 
Hopley,  J.,   concurred. 

[Plaintiff's  Attorneys:  Berrange  and 
Son.  Defendant's:  Fairbridge,  Ar- 
derne  and   Lawton.] 


[Before  the  Actinjr  Chief  Justice,   the 
Hon  Sir  John  Buchanan.] 


GENERAL  MOTIONS. 

/>  parte  E8TATC  MUI'^''=Y.|^^^^jg^ 

Mr.  Roux  moved  for  leave  to  mort- 
gage  certain  property  in  the  d^trict  of 
East  GriqualariH.  The  Master's  report 
was  favourable. 

Order   granted   as   prayed. 


R8TATF  GABVIB  V.    B.8  A.  ABPHALTE  CO. 

Mr.  Alexander  moved  for  an  award  of 
arbitrator  to  be  made  a  Rule  of  Court. 
A  certain  matter  in  dispute  had  been 
before  Mr.  James  Appleton.  as  umpire, 
who  found  that  the  comj)any  should 
pay  £269  6s.  lOd.  to  the  joint  trustees 
of  the  estate  of  James  Garvie,  together 
with  a  sum  of  £11  ISs.  6d.,  half  the  costs 
to  be  paid  by  the  applicant. 

Award  maae  Rule  of  Court ;  costs  of 
application  to  be  shared  by  the  particMF. 


DE  BRUIN  V.    DB  BBUIN. 

Mr.  Roux  moved  for  an  order  requir- 
ing the  respondent  (husband  of  the  ap- 
plicant) to  pay  to  her  a  certain  sum  to 
enable  her  to  institute  an  action  for  resti- 
tution of  conjugal  rights,  failing  which 
divorce,  and  also  a  certain  sum,  by  way 
of  alimony,  pending  the  suit.  Respon- 
dent wa^  a  Griqualieadman,  residing  at 
Kokstad,  and  was  a  pensioner  of  the 
Government. 

Order  granted,  requiring  respondent  to 
pay  to  the  applicant's  attorneys  £20 
within  14  davs  after  demand,  applicant 
to  institute  ner  action  forthwith  in  the 
Circuit  Court  at  Kokstad. 


tt 


CAPE  TIMES"   LAW  REPORXa 


689 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Jantioe,  the 
Hon.  Sir  John  Buchanan.] 


SMITH  V.  INSOLVENT  ESTATE  |       1905. 
GROSS  AND  SMITH  BEOS.      (  Aug. 22nd. 

This  was  an  action  brought  by  David 
Smith,  of  Cape  Town,  against  the  in- 
flolyont  estate  of  D.  Gross  and  Smith 
Bros,  to  recover  certain  property  al- 
leged to  have  been  unlawfully  attached, 
or  the  value  thereof  (£120),  and  £50 
damages. 

From  the  declaration,  it  appeared  thut 
the  plaintiff  in  the  latter  part  of  1904 
resided  on  a  farm  at  Malagas,  district 
of  Swellendam,  and  along  with  bis  wife 
and  child  occupied  two  rooms.  He  said 
that  he  had  certain  wearing  apparel, 
crockery,  and  furniture  of  the  value  of 
£65 ;  a  cart  which  he  had  purohaaed 
from  one  of  the  Smiths,  of  the  value 
of  £15,  and  two  mares  which  he  had 
also  purchased  from  one  of  the  Smiiths, 
of  the  value  of  £40.  After  the  com- 
pulsory sequestration  of  the  estate  of 
Gross  and  Smith  Bros.,  the  foregoing 
goods  and  property  were  attached,  and 
the  defendants  refused  or  neglected  to 
release  the  same  from  attachment.  He 
claimed  the  release  of  the  goods  and 
property,  or  in  default  payment  of  their 
value  (£120),  and  damages  in  the  sum 
of  £50. 

Defendants,  in  their  plea,  put  the 
plaintiff  to  proof  that  the  goods  belong- 
ed to  him,  and,  as  to  the  alleged  pur- 
chases of  the  cart  and  mares  in  October 
la«:t.  said  that  at  that  time  the  liabilities 
of  the  firm,  fairly  calculated,  exceeded 
their  assots,  fairly  valued,  and  that  the 
alleged  transaction  was  an  alienation 
in  fraud  of  the  firm's  creditors,  and  was 
not  for  just  and  valuable  consideration. 
They  sadd  that  plaintiff  had  furnished 
no  satisfactory  proof  of  ownership  of  the 
other  goods.  They  also  denied  that 
plaintiff  had  suritained  any  damage  by 
roiason  of  their  acts,  and  prayed  that  the 
claim  might  be  dismissed,  with  costs. 

Plaintiff,  in  his  replication,  denied  the 
alleged  alienation  in  fraud  of  the  firm's 
creditors,  and  said  that  the  purchases 
made  were  bona- fide f  and  were  for  just 
and    valuable  consideration. 

Mr.  Roux  was  for  plaintiff;  Mr.  Up- 
ington  (with  him  Mr.  Swift)  was  for  de- 
fendants. 

Mr.  Roux  submitted  that  the  onus 
was  upon  the  defendants  to  prove  that 
the  property  was  not  plaintifrs. 

Buchanan,  A.  C.  J.,  ruled  that  plain- 
tiff must  open  his  case. 

David  Smith  (the  plaintiff)  said  that 
he  had  worked  in  Cape  Town  as  a  brick- 
layer.   He  went  to  Sfalagas  once  before 


last  Passover,  thaifc  was  in  April,  1904. 
He  Sfsked  if  he  could  be  allowed  to  stay 
there,  as  times  were  bad  in  Cape  Town. 
He  w^i3  given  permission,  and  he  sent 
his  goods  to  the  farm.  He  had  about 
£220  or  £225  when  he  went  to  Malagas. 
He  was  working  about  four  years  as  a 
bricklayer  in  Cape  Town,  and  had  been 
paid  at  the  rate  of  £4  for  five  days' 
work.  Witness  w^it  on  to  testify  as  to 
his  ownership  of  the  property  in  ques- 
tion, and  was  subjected  to  a  lengthy 
cro^-exami nation  by  Mr.  U^ngton.  He 
denied  that  the  receipts  which  he  held 
from  the  Smiths  were  made  out  con- 
siderably after  the  ckites  that  they 
bore. 

Joseph  Smith,  [lartner  in  the  firm  of 
D.  Gross  and  Smith  Bros.,  said  he  re- 
membered when  his  brother  came  to 
South  Africa.  Work  was  very  plentiful 
then,  and  the  building  trade  was  brisk. 
Witness's  brother  earned  £4  a  week,  and 
saved  some  money.  He  sold  two  noises 
to  his  brother  David  for  £40,  which  was 
paid  in  cash.  The  money  was  put  in 
the  safe.  Witness  dealt  in  horses.  That 
con^ituted  a  portion  of  the  business 
of  the  firm.  At  the  time  witness  sold 
the  two  mares  he  had  seven  horses  be- 
sides. The  mares  were  sent  away  be- 
cause they  were   in  foal.  n 

In  cross-examination  by  Mr.  Upington, 
witness  admitted  that  a  judgment  was 
given  against  his  firm,  and  a  meeting 
of  creditors  was  called,  and  an  endeavour 
wa>9  made  to  assign  their  estate  Bar- 
nett  Smith  was  at  present  in  Johannes- 
burg. Witness  sold  the  cart  and  honses 
on  behalf  of  the  firm,  and  received  the 
monev.  Witness  told  Gross  thait  he  had 
sold  ttiem,  but  he  did  not  know  whether 
the  sale  was  entered  in  the  books,  as  he 
could  not  write.  Witness  could  not 
recollect  the  da'te  of  the  sale.  W^itness 
did  not  remember  having  claimed  a 
number  of  things  in  the  house  as  be- 
longing to  the  firm.  The  firm  had  a 
bar  in  addition  to  the  shop. 

By  the  Court :  They  did  not  touch 
any  of  the  attached  property. 

[Buchanan,  A.  C.  J. :  But  your  pro- 
perty   was    all    attached.] 

Mr.  Upington :  These  things  had  never 
been  given  up  to  the  messenger. 

Cros^-examination  continued :  Witness 
knew  of  nothing  being  hidden  on  the 
farm. 

Pierre  F.  de  Villiers  (called  for  the  de- 
fence) said  he  had  formerlv  been  in  the 
employ  of  the  insolvent  firm  as  book- 
kef^per.  On  Saturday  mornings  it  was 
necessary  for  witness  to  pass  through 
the  house,  and  he  then  saw  a  large  mir- 
ror, a  sofa,  dining-room,  table,  etc.  Wit- 
ness had  binoe  seen  the  mirror  at  Mr. 
Du  Preez's  house.  The  fAace  was  fairly 
well  furnished.  Witness  did  not  know 
whether  the  cart  and  horses  were  sold  or 
not.  The  cart  was  there  when  witness 
entered  the  employment  of  the  firm.  W^it- 
ness  saw  the  horses  grazing  on  the  farm 
on  the  afternoon  of  the  messenger's  ar- 


fl90 


u 


CAPE  TIMES"   LAW  REF0BT8. 


rival,  but  they  were  Rone  next  day.  The 
messenger  arnved  at  o  o'clock  that  even- 
in;;.  but  did  not  attach  the  property  un- 
til next  morning.  The  entry  on  the 
ca&h-bo<,k  of  £40  was  made  by  witness 
at  Mr.  Gloss's  request  on  the  evening 
the  messenger  f-rrived.  The  reoeiprs  for 
the  purchase  price  of  the  horses  were 
made  out  the  same  evening,  and  ante- 
dated at  the  instruction  of  Joseph 
Smith. 

In  cross-examination,  witness  said  that 
when  D.  Smith  arrived  with  his  wife 
and  child  they  did  noi  bring  any  furni- 
ture with  them.  Subsequently  some  par- 
cels arrived.  The  house  was  well  fur- 
nished  after  Gross  left. 

Mr.  Roux  having  been  heard  in  argu- 
ment on  the  facts. 

Buchanan,  A.  C.  J.,  said  be  found 
that  the  receipts  held  by  the  plaintiff 
for  the  carts  and  mares  were  not 
given  when  they  purported  to  have 
been,  but  some  time  afterwards.  The 
plaintiff's  case  rested  solely  upon  his 
evidence  and  the  documents,  snd,  hav- 
ing regard  to  the  suspicion  that  attached 
to  the  documents,  and  the  conduct  of  the 
plaintiff,  he  (the  learned  Judge)  oould 
not  find  that  the  plaintiff  ever  bought 
the  mares  and  cart  frona  the  insolvents, 
and  paid  tor  them.  With  regard  to  the 
weanng  apparel,  crockery,  and  furniture, 
he  thought  it  possible  that  one  or  two 
thinf^s  placed  upon  the  list  by  the 
Sheriff's  oflBoer  did  belong  to  the  plain- 
tiff, but  when  a  person  acted  in  the  way 
plaintiff  did,  snd  attempted  to  defraud 
the  creditors  of  the  estate  by  removing 
a  quantity  of  property  belong  to  the  es- 
tate, and  mixed  up  his  own  things  with 
them,  he  must  take  the  consequences  of 
this  amalgamation,  and  if  'he  lost  things 
thereby  it  mu^t  be  taken  as  one  of  the 
consequences.  Plaintiff  attempted  to 
remove  things  belonging  to  the  firm,  and 
in  so  doing  he  attempted  to  defraud  the 
creditors.  He  might  have  lost  a  few 
things,  but  tJie  plaintiff  had  not  proved 
that  any  of  the  things  belonging  to  him 
were  attached.  The  judgment  of  the 
Court  would  be  absolution  from  the  in- 
stanoe,  with  costs. 


SECOND  DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Ma  apdorp.] 


TRIAL  CAUSES. 


CHANNING  V.  CHANNING.    Wt,i^22nd 

Thi«j  was  an  action  for  an  order  of 
restitution  of  conjugal  rin-hts,  failing 
which  a  decree  of  divorce,  witti  the 
custody  of  the  children.  The  parties 
were  married  in  community  of  property 


in  Cape  Town,  on  August  3,  188&,  and 
there  was  one  child  as  issue  of  the 
marriage.  In  February,  1900,  the  de- 
fendant malicioinly  deserted  the  plain- 
tiff, and  had  failed  to  contribute  to  her 
support. 

Mr.  D.  Buchanan  was  for  the  plaintiff 
and  the  defendant  was  in  default. 

The  plaintiff  identified  her  marriage 
certificate  with  the  defendant,  who  had 
been  a  ship's  carpenter  at  the  Docks.  Tbm 
defendant  went  to  Durban  when  the 
war  broke  out,  and  witness  followed  him. 
Witness  returned  to  her  mother,  and 
since  February,  1900,  she  had  heard  no- 
thing about  him.  She  had  information 
that  the  defendant  had  joined  one  of  the 
corps  during  the  war,  and  had  gone  to 
the  front. 

[Maasdorp.  J. :  Why  do  you  think  he 
deserted  you?] 

Because  he  has  nerer  aent  a  line  since. 

fMaaadorp,  J. :     He  mav  be  dead  ?] 

Yes. 

[Maasdorp,  J. :  Was  there  any  un- 
pleasantness at  the  time?] — Yes,  he  sent 
me  back  to  my  mother  after  some  un- 
pleasantness. 

Decree  of  restitution  granted,  to  be 
complied  with  on  12th  September,  or 
caive  to  be  shown  by  the  16th  October 
why  a  decree  of  divoroe  should  not  be 
granted,  and  why  the  plaintiff  should 
not  have  custody  of  the  child. 

Postea  (Augrust  24). 

Maasdorp,  J. :  In  the  case  of  Chan- 
ninff  V.  Channingt  I  notice  that  the  de- 
fendant is  not  resident  in  tihis  country, 
and  there  will  have  to  be  service  ac- 
cording to  the  process  by  edictal  cita- 
tion, and  more  time  consequently  is 
allowed.  In  the  judgment  yester- 
day the  time  given  is  too  short,  but  the 
circumntanoes  were  not  brou«rht  to  mv 
notice.  A  decree  of  restitution  will  be 
granted,  to  be  complied  bv  with  by  the 
30th  October,  and  not  12th  Senteinber, 
and  cause  to  be  shown  on  the  14th  No- 
vember. Dersonal  service  to  b«  effected, 
or  in  default  a  substituted  service  as 
before. 

Postea  (November  14) 

Rule  made  absolute. 


MOGRBOOR  V.  MCQREOOR. 

This  was   an    action  for  a    decree   of 
divorce    brought    by    Jessie   MoGregor 
against  her  husband  on  the  ground  of  his 
cruelty  and  misconduct,  and  for  custody 
of  six   minor  children^   and  payment  of 
£5   per   month  maintenance   for     each 
child.      Dr.   Greer  was  for  the  plaintiff, 
and  the  defendant  was  in  default. 
Evidence    having  been  given, 
[Maafidorp.  J. :     ITie  only  question  is 
about  the  maintenance.     How  is  a  man 
to  contribute  so  many  hundreds  a  year 
when  he  is  out  of  employment?] 


"CAPE  TIMES"   LAW  REPORTS. 


601 


Dr.  Greer:  I  feel  I  am  entirely  in 
the  hands  of  the  Court  in  that  matter. 
Perhaps  your  lordship  would  make  an 
order  for  a  smaller  amount,  and  give 
ua  leave  to  apply  a^ain. 

Maaadorp,  J.,  said  he  would  gprant  a 
decree  of  divorce,  the  plaintiff  to  have 
custody  of  the  minor  children,  main- 
tenance of  £4  per  month  to  be  i>aid  for 
each  child  until  suoh  child  attains  the 
aee  of  sixteen  years,  with  leave  to  the 
plaintiff  to  move  again  in  re&pect  of 
increased  maintenance. 


DU  PLBBBIB    AND    ANOTHER 
V.  VAN  OS. 


Will,  matnai — Massing — Sale  by 
survivor. 

K.  and  his  voift  made  a  mutual 
will^  imtituting  as  heirs  the 
survivor  awl  their  daughter 
(the  first  plaintiff  J  and  her 
children  :  the  survivor  to  ettjoy 
a  life  wsu/rtict  of  the  whole 
estate,  K.  survived  his  wife 
a7td  adiated.  Thereafter  AT. 
sold  three,  en^en^  part  of  the 
joint  estate.  Plainiiffx  note 
claimed  that  the  sale  be  de- 
claretl  invalid  as  to  half  of  the 
three  erven  atid  that  defendant 
be  ordered  to  pay  the  price  of 
the  other  half  which  they  said 
he  had  not  paid.  Or  in  the 
alternative  that  he  be  ordered 
to  pay  the  full  price  of  the 
erven^  if  the  sale  could  not'  be 
set  aside,  either  wholly  or  in 
part.  Tfie  fact  of  the  nale 
having  taken  place  was  dis- 
puted^ but  the  Court  found,  as 
afact^  that  it  had  gone  through. 
The  Court  also  found  that  no 
part  of  the  purchase  pi'ice  had 
been  paid. 

The  defendant  was  ordered  to 
pay  the  full  amount  of  the 
purchase  price  (£600)  :  or  in 
the  alternative  to  pay  £200, 
with  interest,  for  hcdf  the  erven 
and  to  re-transfer  the  remain- 
ing half  free  and  uneticum- 
hered. 


This  was  an  action  brought  by  Mrs.  Du 
Plestns.  who  was  a  daughter  of  the  late 
Mr.  Kotie.  of  Pearston,  and  her  hus- 
band, who  was  executor  in  the   estate 


to    recover    transfer    of    certain    erven 
which    the    defendant,    it    was   alleged, 
got  transfer  of  from  the  testator  under 
undue  influence.  In  May,  1889,   the  late 
Mr.  Kotze  and  his  wife  made  a  mutual 
will,  by  which  they  effected   a  mossing 
of  the  joint  estates.    In  the  joint  estate 
there  was  seven  erven  in  Pearston,  and 
in    respect    of   these    erven    the   action 
was  brought.      The  testator's  wife  died 
in  1889,  and  the  survivor     adiated  and 
remained    in    possession    of   the      joint 
estate.       In     190J    the    testator     was 
over  eighty-four  years  of  age,  was  neai  • 
ly  blind  and   infirm  in  body  and  mmd. 
The    defendant    was    his    legal    adviser. 
In   May    1903,  the   defendant,   knowing 
the  tenor   of  the  will,    wrongfullv     and 
fraudulently  exercised    undue    influence 
and  persuaded  the  testator  to  agree  to 
sell  to  him  the  erven,  which  were  worth 
£1,000,  for   £600,   promising  to  pay  uit 
certain  bonds  on   another  tarm  belong- 
ing  to   the    testator.       The    JefeiidanM 
wrongfully    obtained   transfer     of      the 
erven  on  the  16th  June,  1903,  and  there 
after    mortgaged    the  same    in  sums  of 
JbiSO   and  £400.      The   tesUtor  died   in 
July,     1903,     and    plaintiff    now    urged 
that  the  sale  and  transfer  was  null  and 
void,    thft't   the  plaintiff  was  entitled  to 
have    the   sale   and   transfer   set    aside, 
and    that    the   defendant,    haying    paid 
no  money  for  the  erven  or  paid  '.ff  the 
bonds   as  promised,  was  obliged  to  pay 
off  the  bonds  of  £350  and  £400  to  ie- 
loasc  the  erven.      In  the   alternative,  it 
was  claimed  that  the  second  plaintiff,  in 
his  capacity  as  executor  dative,  was  en 
titled  to  judgment  against  the  defendant 
for  the  sum  of  £1,000,  being  the  value 
yy{  the  erven,  and,  failing  that,  that  the 
second  plaintiff   was  entitled    to   obtain 
the  purchase  price  of  £600,   which  had 
not  been  paid. 

The  plea  admitted  the  age  of  Mr. 
Kotze  at  the  time  of  the  sale,  out  denied 
the  other  allegations  as  to  his  infirmity. 
The  sale,  it  set  out.  was  a  perfectly  hotia- 
fide  one.  At  the  time  of  the  sale  the 
(defendant  was  not  aware  of  the  mutual 
will ;  he  only  knew  of  two  wills,  in  which 
the  testator  excluded  the  erven  from 
the  operation  thereof.  The  defendant 
denied  that  he  acted  fraudulently,  or 
that  he  exercised  any  undue  influence, 
or  that  he  made  any  agreement  to  pay 
off  the  bonds  on  the  other  farm.  The 
sum  of  £600  was  duly  paid,  and  the 
testator  or  his  estate  had  the  benefit  of 
it.  The  defendant  admitted  that  under 
the  provisions  of  the  mutual  will  the 
testator  was  not  entitled  to  dispose  of 
more  than  one-half  of  the  erven,  and 
as  to  one-half,  he  admitted  that  the 
transfer  was  null  and  void,  but  as  to 
the  other  half  he  contended  that  the 
sale  was  good.  He  was  willing  to  trans- 
fer the  one-half  of  the  erven  to  the 
plaintiff,  free  of  any  burden,  on  com- 
pensation  for  improvements  being  paid 
to  him  in  the  sum  of  £350.  and  in  the 
alternative    if    the    transfer    was    con- 


692 


"CAPE  TIMES"   LAW  BBPOBTS. 


»idered  unneceMary  be  offered  to  pay  to 
the  plaintiff  £300,  the  value  of  one 
lialf  of  the  erven,  and  to  pay  the  taxed 
costs  of  the  plaintiff  to  date.  For  a 
claim  in  reconvention  he  stated  that  he 
paid  to  the  testator  £500  in  ignorance 
of  any  mutual  will,  and  that  the  tes- 
tator or  hit)  estate  had  the  full  benefit 
of  the  money,  and  he  claimed  from  tihe 
separate  estate  of  the  testator  the  sum 
of    iJiOO. 

Sir  H.  Juta,  K.C.  (with  him  Mr. 
McGregor)  was  for  the  plaintiff,  and 
Mr.  Burton  (with  him  Mr.  Gardiner) 
was  for  the  defendant 

Samuel  John  Annoar,  estate  agent,  of 
Somerset  East,  who  knew  the  late  Mr. 
Kotze,  and  was  administering  agent  in 
the  estate,  said  that  the  assets  in  the  sep- 
arate estate  of  Kotse  were  hardly  worth 
speaking  of.  Witness  was  well  acquaint- 
ed with  the  testator's  signature,  which 
was  peculiar  for  the  accent  over  the 
*'e"  in  "Kotse."  Witness,  examining 
the  alleged  declaration  of  sale  purporting 
to  be  signed  by  the  testator,  said  that 
he  wouH  never  take  the  signature  pro- 
duced for  that  of  Mr.  Koize.  Quite 
apart  from  the  spelling  of  the  name 
"Coetaee,"  he  would  not  accept  the 
writing  for  that  of  Mr.  Kotze.  In  1902 
the  testator  was  almost  blind.  If  any- 
one had  offered  him  the  document  with 
the  signature  produced  ovi?r  the  alleged 
sale,  witness  would  not  have  accepted  it. 
Mr.  Kotze  could  not  have  written  so 
clearly  in  May,  1903. 

Cross-examined  by  Mr.  Burton;  The 
commission  on  movables  disposed  of  by 
auction  was  5  per  cent.,  and  generally 
2^  on  valuation.  When  witness  knew 
Mr.  Kotze  in  1902,  his  sight  was  very 
bad ;  one  eye  in  particular.  He  did  not 
recognise  the  signature  on  the  receipt  or 
declaration  of  sale.  Witness  would 
never  have  taken  the  signature  to  be 
that  of  Mr.  Kotze.  A  man  o/  the  jears 
of  the  deceased  would  never  have  signed 
his  name  as  Coetzee  when  for  yoars  and 
years  he  had  signed  it  as  Kotze. 

Carel  Froolicn,  Mayor  of  Pearston, 
said  that  the  defendant  was  the  Town 
Clerk.  In  1903  the  deceased  had  to  be 
led  about,  and  he  could  not  divtinguish 
between  half  a  sovereign  and  a  sixpence. 
The  signatures  put  in  were  not  those  of 
the  deceased.  In  the  year,  1903.  the  de- 
fendant did  not  appear  to  be  a  man  of 
means;  he  was  living  with  his  father- 
in-law,  looking  after  the  sheep. 

Cross-examined  by  Mr.  Burton :  He 
thought  £600  was  about  the  value  of  the 
erven  in  1903.  The  defendant  had  built 
a  house  on  one  of  the  erven,  and  made 
some  other  little  improvements.  ^Wit- 
ness could  not  say  whether  Mr.  Kotze, 
looking  through  his  glass,  could  distin- 
guish half  a  sovereign  from  a  sixpence. 
There  was  nothing  "  mixed  "  about  the 
old  man's  intellect.  For  his  ago  Mr. 
Kotze  was  a  hale,  hearty  old  man.  Wit- 
ness was  not  used  to  the  iestntor  signing 
bis  name  as  "  Coetzee.'*       The  defend- 


ant had  a  counter  account  against  wit- 
ness. 

Re-examined  by  Sir  H.  Juta:  W^ituess 
would  not  give  more  than  £850  fur  the 
property,  as  it  stood  now. 

By  Maasdorp,  J. :  The  property  would 
have  been  worth  more  in  1903  when 
times  were  better  than  they  were  now. 
Without  the  house  £600  would  be  a  fair 
price  for  the  erven  now. 

Walter  Hancock  Humphrey  stated  that 
ho  was  a  law  agent  in  Pearston  until 
June.  1903.  A  few  months  before  he 
left  the  defendant  settled  down  in 
Pearston.  The  late  Mr.  Kotxe  ho  knew 
very  well,  having  transacted  a  good  deal 
of  his  business.  In  May  and  June  Mr. 
Kotze  was  getting  very  weak,  and  his 
eyesight  was  very  bad.  W^itness  should 
almost  call  him  nearly  blind,  as  Mr. 
Kotze  had  to  feel  with  a  stick  to  get  to 
the  office  door.  Mr.  Kotze  never  could 
write  with  ease ;  he  had  very  great  diffi- 
culty in  writing  at  all.  *'K(itz^/'  with 
the  accent  over  the  "e,"  was  the  usual 
signature.  The  defendant  asked  witness 
to  go  with  him  as  a  J. P.  to  witne«<s 
some  business  with  Mr.  Kotze,  and  wit- 
ness said  he  had  not  the  time,  but  said 
that  he  had  heard  that  the  eld  man  had 
sold. the  property  to  the  defendant,  and 
if  the  defendant  got  the  signature,  which 
witness  knew  very  well,  and  swore  that 
Mr.  Kotze  knew  what  he  was  doing,  he 
(witness)  would  attest  it.  In  the  TOgin- 
ning  of  May  the  deceased  was  not  in  a 
fit  condition  to  write  like  the  signaturea 
produced.  At  times  Kotze  could  not 
see  at  all,  and  it  was  necessary  to  guide 
his  hand,  and  to  tell  him  when  and 
where  to  leave  off  when  signing  his 
name.  Witness  did  not  recollect  having 
seen  old  Kotzee  in  Van  Os's  office  re- 
garding these  papers. 

Johannes  Kotze  will  say  that  you 
went  with  old  Kotze  to  Van  Os's  office, 
and  there  was  some  discussion  as  to 
whether  he  should  sign  Kotae  or  Coet- 
zee. Is  that  so?— No.  I  deny  that  the 
old  man  was  there  at  all. 

Did  a  conversation  between  you  and 
Kotze  take  place?— I  won't  deny  that 
it  did. 

Johannes  Stephanus  Lombard,  a  fester 
child  of  the  testator,  said  that  when 
Kotze  died  he  was  surprii^  to  bear 
that  there  was  a  bond  on  some  of  the 
testa>tor'6  land.  In  May  and  June  the 
old  man  was  very  sioklv,  and  hits  eye- 
sight was  very  poor.  He  was  84  years 
of  age,  and  was  ver^  shaky. 

In  cross-examination,  witness  said 
there  was  a  bond  on  the  farm,  and  one 
on  an  erf  in  the  village. 

Albertus  Petrus  Myburg,  law-«gent  at 
Somerset  East,  t^tated  he  knew  old  Mr. 
Kotze.  Prior  to  his  death  Mr.  Du 
Plessis  consulted  witness  about  him,  and 
witnoivs  went  to  see  him.  He  was  very 
weak.  Witness  took  him  a  power  of 
attorney  to  sign,  but  he  was  not  in  a 
fit  state  to  do  it.  If  a  le^ubject  was 
brought  to    his    memory    he    might    be 


fl 


CAP£  TIMES"  LAW   REPORTa 


C03 


able  to  speak  about  it,  bat  if  it  was 
dropped  for  a  few  rmiiutes  he  would 
not  remember  it.  Witness  and  Du 
Pleasis  went  to  Van  Os  to  ai»certaiu  if 
he  could  trace  wh&t  amount  of  money 
he  had  paid  to  Kotze.  Witness  informed 
Tan  Oa  that  the  monev  could  not  be 
traced,  and  inquired  if  he  had  paid 
him  in  cash  or  by  chcKiue,  and  he  re- 
plied ^at  he  had  paia  him  in  notes 
and  gold.  Witness  asked  him  if  he  liad 
the  numbers  of  the  notes,  and  be  re- 
plied in  t^he  negative.  Witness  then 
suggested  that  it  might  be  possible  to 
get  them  from  the  bank,  and  he  gaye 
an  affirmaiive  answer.  Mr.  Du  Flessis 
then  asked  him  how  he  could  buy  pro 
perty  from  a  man  in  such  a  weak  men- 
tal condition,  and  he  replied  that  Kotce 
was  all  right.  Van  Os  jocularly  asked 
Du  Plessis  if  he  suspected  him.  Du 
Plessis  made  some  answer,  but  witness 
could  not  remember  it.  Witness  in- 
formed Van  Os  that  search  haa  been 
made  for  the  money,  but  that  it  could 
not  be  found,  and  he  said  he  gave  it  to 
Kotze.  Su(^  an  anoount  h<ad  not  been 
drawn  from  Van  Os's  banking  account. 
Van  (h  said  no  witnesses  were  present 
when  he  |)aid  Kotse.  On  the  same 
occasion  witness  asked  him  if  he  had 
any  doc^iments  of  Kotze's  and  he  re- 
plied in  the  negative.  Witness  as-ked 
nim  where  the  will  was,  and  he  said 
it  had  been  aejit  to  Cape  Town.  Wit- 
ness asked  him  if  he  nad  receipts  for 
the  money,  and  he  replied  that  he  had. 
In  reply  to  a  reauest  to  show  thena  Van 
Os  said  he  haa  not  got  them  in  his 
office.  He  never  showed  witness  the 
receipts  during  Kotze's  lifetime.  AVit- 
ness  made  inquiries  in  Cape  Town  about 
the  will,  but  could  hear^  nothing  about 
it  W'itness  again  mentioned  the  will, 
And  Van  Os  said  he  had  forgotten  it, 
but  that  ft  was  then  in  Cape  Town. 

Was  that  after  Kotze's  death? — I 
would  not  be  sure. 

Cross-exaniined  by  Mr.   Burton, 

Do  you  wish  the  Court  to  understand 
that  after  you  firet  spoke  to  Van  Oa 
about  the  will  that  you  wrote  to  Cape 
Town?— Yes. 

You  went  to  get  the  will  before  Mr. 
Kotze's  death?— Yes. 

Because  you  were  anxious  to  destroy 
ft  ? — No. 

What  did  you  want  with  it?  Remem- 
ber. Kotze  was  still  alive. — Mr.  Du 
Plessis  wanted  to  inquire  into  his  cir- 
cmnstances. 

Was  Da  Plessis  quite  sober  on  that 
occasion  ? — ^Yes. 

Is  he  babituallY  sober? — ^I  would  not 
aay  that  he  was  habitually  drunk. 

Witness  concluded  that  Van  0&  got 
tiie  notes  and  gold^  from  the  bank. 

Kotzes  have  their  shop  on  the  same 
premises  bs  Van  Os?    Yes. 

When  you  asked  him  for  the  receipts 
didn't  he  say  I  have  not  got  them, 
but  I  can  get  them? — I  would  not  deny 
that. 


And  you  left  Pearston  the  next  day? 
—Yes. 

The  power  of  attorney  which  you 
eay  Kotze  was  too  ill  to  sign  was  sub- 
sequently signed? — Yes. 

In  rp  examination,  witness  said  he 
heard  nothing  abouA  an  accident  to  Mr. 
Kotze.  Witness  asked  Van  Oa  how  he 
paid  the  money  to  Kotze,  because  there 
were  rumours  afloat  to  the  effect  that 
he  had  not  done  so.  Witness  adminis- 
tered the  estate,  but  could  find  no  trace 
of  the  £600.  nor  did  he  find  that  the 
money  had  been  spent  in  any  way. 

To  the  Court:  There  was  a  bank  at 
Pearston  at  that  time.  Witness  made 
inquiries  about  the  money  from  the 
bank  manager. 

David  Jacobus  du  Plessis  stated  that 
he  was  a  son-in-law  of  Mr.  Kotze.  He 
knew  of  the  mutual  will.  Mr.  Kotze 
lived  in  the  town  of  Pearston,  and  was 
looked  after  by  Miss  Victor.  Witness 
lived  in  the  district  oi  Somerset.  In 
June  he  went  to  see  Mr.  Kotze.  He 
was  accompanied  by  Mvburgh.  They 
had  a  conversation  witn  Mr.  Kotze. 
He  was  very  weak.  Witness  gave  cor- 
roborative evidence  of  the  interview 
between  My  burgh  and  Van  Os.  After 
Van  Os  was  seen  the  house  was  search- 
ed  for  the  money. 

Elsie  Jacoba  Katrina  du  Plessis, 
daughter  of  the  testator,  said  that  she 
was  married  out  of  communitv  of  pro- 
perty to  the  plaintiff.  In  19(w  ner  father 
was  in  a  very  weak  condition,  and  could 
only  see  with  one  eye.  About  that  time 
he  told  her  some  ludicrous  stories,  such 
as  he  was  to  share  in  the  sale  of  a 
bottle  for  £1,000,000.  and  that  she  was 
to  take  care  of  his  mother's  cat.  which 
had  been  in  the  possession  of  the  family 
since  1836.  When  the  testator  died  wit- 
ness could  only  find  sixpence  in  the 
house. 

Cornelia  Victor,  a  spinster,  said  that 
from  1001  she  looked  after  the  testator. 
She   corroborated   the    evidence    of    the 

f)revious  witness.  She  never  saw  a 
arge  amount  of  money  in  the  house. 

CrosR-Pxamined :  On  one  occasion  the 
tei?tator  strayed  away  from  the  house 
and  fell  exhausted  on  the  veldt, 

An4fre\v  Stegman,  an  attorney,  of 
Somerset  East,  said  that  the  matter  was 
handed  to  him  in  October,  1903.  He 
then  found  that  the  oase  had  been  stated 
in  the  previous  August. 

Davin  du  Plessis,  examined  by  the 
Court,  said  that  he  did  not  know  where 
the  testator  kept  his  money. 

Sir  H.  Juta  closed  his  case. 

Robert  Broom,  a  medioal  practitioner, 
and  professor  at  the  Victoria  College, 
Stellenbosch.  said  that  he  was  district 
surgeon  at  Pearston  in  1903.  He  saw 
Kotze  professionally  every  month  up  to 
the  time  of  his  death.  When  witness 
first  met  Kotze  'he  was  blind  in  one  eye, 
and  in  1902  the  other  became  affected 
with  cataract.  Shortly  afterwards  he 
became   practically  blind.     On   the   ad- 


696 


"CAPE  TIMES"   Law  ftEPOttTS. 


contended  Uiat  this  waa  not  a  case  where 
the   burden  of  proof  reisted  on   the  de- 
fendant,  becaiase    the   matter   was   gone 
through,    and    some    time    had    elapoed 
since   the  transfer  of  the  property    but 
it  remained  in  the  position  of  a  sale,  of 
which  there  were  doubts  as  to  the  pay- 
ment  of  the  price,   and  the   burden  o^ 
proof  still  rested  on  the  person  alleging 
such    payment.       It  was  said  that   the 
burden   was  removed   by   reason  of  two 
receipts  having  been  put  in.     The  value 
of  those  receipts  the  Court  would  refer 
to  later  on,  only  remarking  that  if  these 
receipts     were    proved    to    have     been 
given  by  the  old  man,   it  would  largely 
dispose  of  this  case.      He  would   rather 
approach    these    receipts    from    another 
point  of  view.      The  defendant  alleged 
payment    of    a    large    sum     of    monev 
at  a  time  when  he  was  in    a  very  small 
way   of    business,   and    the    question   at 
once   arose,   ''  where   did    he  ^et      that 
money  f^"     It  was  sometimes  difficult  for 
a  man  to  trace  the  source  of  small  sums 
of  mone]r  that  had  accumulated,  but  here 
it  was  given  as  evidence  that  it  had  ac- 
cumulated ni  a  very  short  space  of  time. 
He  said  he  sold  his  stock  of  furniture. 
The  defendant  went  into  details,  but  it 
was  i^ainfully  evident  that  he  could  not 
lay  his  finger  on  anything  of  great  value 
that  he  had  sold.      The  impression  left 
on  the  mind  of  the  Court  waa  that  al- 
though he  might  have  some  property,  it 
was  not  of  very  great  value.       Then  he 
said  that  although  he  had  a  banking  ao- 
oount,   he  carried  all  this  money  about 
in  his  pocket.       That  was  not  an  extra- 
ordinary thing,  but  it  certainly  was  un- 
usual.     The  usual  course  for  a  man  was 
to  pay  when  be  got  his  title  deeds,  but 
here  the  money  was  paid  before  he  ob- 
tained anything,   and  it  was  paid   with- 
out any  witnesses  being  present,  which 
any  man  paying    suoh     a  large  -amount 
would    have   taxen   care   were   there    to 
substantiate  and     secure      him.       Then, 
again,  there  was  no  arrangement     made 
that  the  money  should  be  paid,  but  the 
defendant  walked  down  the  street  to  his 
office    with  this  jE)600  in  his  pocket,  and, 
meeting  Kotze,  paid  him.       It  was  said 
that  the  money  was  paid,  and  could  not 
be    traced.        If   the  money   was    m  die 
house  it  must  have  been  found  when  the 
place  was  renovated.     Regarding  the  rc- 
ccifitfi,  his  lordship  said  that  a  man  of 
business   like    the  defendant   would     be 
expected    to  see  that    he   got   all       his 
papers,  and  receipts  before  handing  over 
suoh  a  large  amount,  and  have  had  wit- 
nesses.    Considering  the  condition  of  the 
old  man,  he  was  mentally  and  physically 
feeble,  and  he  required  advice  an'd  pro- 
tection, and  any  man  who  had  a  dealing 
of  this  kind  with  him  should  have  seen 
that  he  had   this  advice,   and  not  have 
done  things  secretly.     The  Court  was  of 
opinion  that  the  signature  on  the  receipt 
was  not  that  of  the   old      man.       The 
Court  came  to  the   conclusion   that  the 
sale  did  take  place,  and   ^hat  the  pur- 


chase amount,  £600,  was  expected  to  b^ 
paid  in  settlement  of  the  bond,  and  was 
not  paid,  and  oonsequently  remaiDed 
He  tnought  it  would  be  to  the  advan- 
tage of  those  interested  if  £600,  which 
was  a  fair  value  of  the  property,  oould 
be  paid  into  court.  The  onler  of  the 
Court  would  be  for  the  plaintiff  for  £600, 
to  be  paid  bv  September  15.  Upon  fail- 
ure to  do  this,  to  re-transfer  half  the 
undivided  property  free  of  mortgage  to 
the  plaintiff,  and  to  pay  the  sum  of 
£200.  with  interest  on  £600,  from  the 
25th  July,  1903.  The  defendadit  to  pay 
ooets. 

[Plaintiff's  Attorneys:  Fairhridge,  Ar- 
derne  and  Lawton;  Defendant's  Attor- 
neys: Van  der  Byi  and  De  Villiers.] 


SUPREME  COURT 


FIRST  DIVISION. 


[Before  the  Acting  t  hie?  Justice,  the 
Hon.  Sir  John  Buchanan.] 


VOGEL  V.  VOGEL. 


I        1905. 
(  Aug.  23zd. 

This  was  an  action  br>ugh^  by  H<*u- 
riette  Charlotte  Mathilde  Vogel,  of  Cape 
Icwn.  against  her  husband.  Riid^^lf  Al- 
bert Vogel,  of  Paris.  France,  for  resti- 
tution of  conjugal  rights,  failing  which 
a  decree  of  divorce. 

The  action  had  been  brought  by 
edictal  citation,  the  citation  having  been 
served  on  defendant  in  Paris  and  on  his 
father  in  Holland. 

Plaintiff,  in  her  declaration,  said  that 
she  was  married  to  defendant  in  Holland 
in  August,  1901.  They  came  to  Cape 
Town  m  May,  1903.  In  April,  1904,  de- 
fendant maliciously  deserted  the  plain- 
tiff, and  refused  and  atill  neglected  to 
support  her. 

Mr.  P.  8.  T.  Jones  was  for  plaintiff; 
defendant  did  not  appear. 

Plaintiff,  in  her  evidence,  said  that 
after  their  marriage  they  lived  for  a 
while  in  Paris.  Her  husband  subse- 
quently became  the  representative  of  a 
certain  firm  in  Soitth  Africa,  but  he  re- 
turned about  five  months  later.  They 
then  Uved  for  about  three  montlv  in 
Antwerp.  IJey  bath  left  Antwerp 
about  May,  1905.  and  came  to  live  in 
SMJuth  Africa.  He  entered  into  partner- 
ship wrth  one  Deckers  aa  importers  and 
general  agents.  Witness  and  his  hus- 
band lived  at  Three  Anchor  Bay.  Deckers 
went  to  Antwerp,  and  her  busband  next 


*'CAi*B  TililEfl"  tiAW  HEPOitTB. 


697 


entered  into  partnerohip  with  one  Steg- 
man,  and  remained  with  him  un4il  April, 
1904.  Her  husband  then  went  back  to 
Holland  for  the  purpoee  of  floating  the 
company,  telling  ner  before  he  left  that 
be  intended  to  re''um  in  about  two  and 
a  half  or  three  icionths.  He  had  not 
returned.  She  had  received  letters  from 
defendant  since  he  had  left  the  Cape. 
He  said  he  was  unable  to  return  owinjg 
to  financial  difficulties.  Witness  had 
since  supported  heraelf  by  taking  a 
position  ss  a  lady  demonstrator. 

Mr.  Jones  read  a  letter  from  defen- 
dant, in  which  he  said  that  it  was  im- 
possible, for  financial  reasons,  for  him 
to  return  to  South  Africa,  and  that  he 
was  willing  that  a  divorce  should  be  pro- 
nounced against  him.  That  would,  he 
added,  make  two  lives  possible  again. 

[Buchanan,  A.  C.  J.  (to  witness):  Had 
you  any  quarrel  before  he  left?] 

Witness :  We  certainly  were  not  very 
bappy. 

[Buchanan,  A.  C.  J. :  Owing  to 
what?}— Owing  to  his  fierce  character. 
He  was  certainly  very  ill  tempered. 

Degree  of  restitution  granted,  defen- 
dant to  return  to  or  receive  plainti£F 
on  or  before  the  31^  October,  failing 
which  to  show  cause  on  the  14th  No- 
vember why  a  decree  of  divorce  should 
not  be  granted;  service,  as  on  the  pre- 
vious occasion,  on  defendant  and  his 
father. 


JACOBS  V.  SHAW. 

This  was  an  action  brought  by  Barney 
Jacobs,  general  dealer,  Cape  Tow.i, 
against  William  Bunting  Shaw,  law 
agent,  also  of  Oape  Town,  for  damages 
for  breach  of  lease.  Mr.  Alexander 
was  for  plaintiff;  Dr.  Rainsford  was 
for   defendant. 

Dr.  Rainsford,  at  the  outset,  said  be 
understood  that  a  petition  for  the  com- 
pulsory sequestration  of  the  defendant's 
estate  had  come  before  the  Court.  If 
that  petition  were  granted  it  would  put 
a  stop  to  the  present  proceedings. 

Buchanan,  A.  C.  J.,  said  that  such  a 
petition  had  not  yet  come  before  him, 
although  he  was  Judge  of  the  week. 
If  the  petition  came  before  him,  and  it 
were  granted,  then  these  proceedings 
-would  nave  to  stop. 

Plaintiff,  in  his  declaration,  said  that 
on  the  20th  May,  1904,  plaintiff  and 
defendant  entered  into  an  agreement 
for  the  letting  and  hiring  of  a  certain 
iiouse,  No.  26,  Plein-street,  Woodstock, 
at  a  rental  of  £7  3s.  per  month,  in- 
cluding sanitary  charges,  for  a  period  of 
twelve  months,  to  be  used  as  a  boarding- 
house,  rent  to  be  paid  monthly  in  ad- 
vance. Thereafter  defendant  entered 
into  occupation  of  the  said  premises, 
and  ooDtinued  in  ocoupwtion  by  himself 
and  his  tenants  until  tne  montn  of  Sep- 
tember. He  S[aye  notice  on  the  9th 
September  of  bis  intention  at   the  end 


of  the  said  month  to  vacate  the  premises 
in  breach  of  the  agreement.  Plaintiff 
claimed  damages  in  the  sum  of  £30, 
being  loss  of  three  months'  rent,  10s. 
a  month  difference  between  the  rental 
received  and  the  rental  specified  in  the 
agreement,  broken  windows,  advertising 
charges,  etc. 

Defendant,  in  his  plea,  said  that  he 
entered  into  the  agreement  subject  to 
the  conditions  that  the  said  premises 
were  to  be  sublet  bv  defendant  as  a 
boarding-house,  ana  that  the  plaintiff 
would  execute  certain  repaiiis  thereto, 
more  especially  to  the  yard  and  bath- 
room, and  that  plaintiff  would  give  him 
beneficial  occupation  thereof.  Plaintiff 
had  refused  to  execute  the  said  repairs 
in  breach  of  the  said  lease.  Defendant 
denied  that  he  broke  the  lease,  or  that 
plaintiff  had  suffered  any  damages  for 
which  he  (defendant)  was  liable.  In  rc- 
ccnvention  lie  claimed  an  order  declar- 
ing that  he  was  entitled  to  cancellation 
of  the  said  lease. 

Plaintiff,  in  his  replication,  said  that 
the  alleged  conditions  set  out  in  the  de- 
fendant's plea  were  bad  in  law,  and  ir- 
relevant, and  he  prayed  that  the  same 
should  be  expunged. 

Mr.  Alexander  said  that  he  did  not 
know  whether  this  was  a  point  that 
should  first  be  dealt  with. 

[Buchanan,  A.  C.  J. :  It  is  a  trum- 
pery case  altogether;  you  might  as  well 
go  through  with  it  at  once.] 

Plaintiff  gaye  evidence.  He  denied 
that  Mr.  Shaw  said  anything  to  him 
about  having  the  back  yard  and  w.c. 
fixed  up. 

By  the  Court :  He  entered  into  no  con- 
ditions with  defendant  except  those  that 
appeared  in  the  lease. 

In  cross-examination,  he  said  that  Mr. 
Shaw  did  not,  just  beiore  he  signed  the 
lease,  say  anything  about  certain  repairs 
being  carried  out  to  the  property.  Dur- 
ing the  tenancy  he  did  not  frequently 
receive  ooraplamts  about  the  condition 
of  the  house.  The  first  mention  that 
he  had  of  any  complaints  was  in  Septem- 
ber. Witness  knew  very  little  about 
the  house,  the  matter  being  in  the  hands 
of  his  brother. 

Abraham  M.  Jacobs  (plaintiff's  bro- 
ther) said  that  he  had  had  a  number  of 
alterations  and  repairs  carried  out  at  the 
house  in  June  at  the  reuuest  of  Mrs. 
Se<<d  (the  tenant).  He  aid  everything 
to  the  house  that  she  asked  should  be 
done.  Certain  alterations  were  carried 
out  at  the  request  of  the  Municipality 
in  September.  Mrs.  Seed  said  that  she 
was  leaving  the  house,  because  it  was  too 
far  from  the  Mission  Hall.  An  action 
was  brought  by  plaintiff  in  the  Magis- 
trate's Court  for  rent,  and  an  exception 
was  taken  on  the  ^^round  that  there  was 
an  action  pending  m  the  Supreme  Court. 
That  exception  was  upheld.  Witness 
let  the  house  again  as  from  the  Ist  Janu- 
ary of  this  year  at  a  rental  of  £6  138. 
per  month.      This  rental  continued  for 


698 


"CAPE  TIMES"  LAW  EEl>0tlT8. 


January.  February,  and  March.  Dam- 
ages had  been  auartained  through  the 
Endows  being  broken.  Certain  deduc- 
tions had  to  be  made  from  the  claim, 
bringing  the  amount  down  to  £24  13e. 

Cross-examined :  He  did  not  know 
that  one  of  the  bedrooms  had  been  con- 
demned as  unfit  for  occupation^  The 
bath-room  was  always  used  during  the 
time  of  the  tenancy.  It  was  absohrtely 
false  to  say  that  the  bathroom  could  not 
be  ufied.  Witness  had  to  look  after  21 
houses,  and  he  agreed  that  if  the  bath- 
room door  could  not  be  closed  it  was 
impossible  to  use  the  bath  for  the  pur- 
poses of  a  boarding-house. 

Alfred  Raphael,  mspector  of  the  Wood- 
stock Municipality,  and  Wm.  Mathew 
Dawson,  a  former  tenant  of  the  house, 
also  ^ave  evidence  on  behalf  of  the 
plaintiff. 

Mr.  Alexander  closed  his  case. 

Dr.  Rainsford  called. 

Elizabeth  Mary  Seed  (who  hired  the 
house  from  the  defendant),  who  said  that 
the  bathroom  and  yard  required  putting 
in  order,  while  in  one  of  the  rooms  there 
was  no  ventilation.  She  complained,  at? 
the  boarders  threatened  to  leave  if  the 
bathroom  was  not  put  in  order,  and,  the 
landlord  refusing  to  make  the  neoeasary 
repairs,  she  gave  up  the  house. 

Joseph  Hall  and  John  Rutter.  two 
boarders  of  the  last  witness,  also  testified 
to  the  dilapidated  condition  of  the  bath- 
room and   the  need  for  other  repairs. 

Francis  Lily  Fuller  and  Joseph  Rob- 
son  corroborwted. 

The  defendant,  W.  B.  Shaw,  eaid  that 
when  he  took  the  house  for  a  client  the 
plaintiff  promised  to  put  the  house  in 
order.  Witness  would  never  have  at- 
tempted to  take  the  house  with  the  bath- 
room in  that  condition. 

Dr.  Rainsford  also  read  the  evidence 
taken  on  commission  of  Henry  Hyman, 
importer,  Cape  Town,  who  was  a  wit- 
nees  of  the  signatures  to  the  lease ;  and 
Alexander  Robert  Smith,  formerly  a 
cashier  and  bookkeeper  in  defendant's 
employ,  who  testified  that  on  more  than 
one  occasion  Mrs.  Seed  complained  about 
the  bathroom  and  other  places  when  she 
called  with  the  rent. 

Dr.  Rainsford,  having  been  heard  m 
argument, 

Buchanan,  A.  C.  J.,  said  that  tlie 
onus  was  upon  the  defendant  to  prove 
that  the  conditions  were  agreed  to 
when  he  entered  into  the  lease.  In 
the  face  of  the  written  documents,  he 
was  inclined  to  think  that  the  defend- 
ant had  not  discharged  that  onus.  He 
also  believed  that  plaintiff  had  done 
everything  that  was  required  of  him  in 
the  matter  of  repairs.  Defendant  had 
given  up  the  place  because,  he  said,  the 
sub- tenant  could  not  close  the  bathroom 
door,  and  dirty  water  ran  from  the  kit- 
chen into  the  yard.  The  repairs  were 
of  so  trivial  a  nature  that  they  should 
not  have  been  brought  forward  as  a  rea- 
son for  breaking  the  lease.     Defendant 


had  broken   his  contract,  and  he  must 

Eay  damages.  Plaintiff  had  shown  that 
e  had  suffered  at  least  £25  damages, 
and  judgment  would  be  given  for  plain- 
tiff for  that  amount,  with  costs. 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Ma  asdobp.] 


Mr.  Struben  moved,  as  a  matter  of 
urgency,  for  an  interdict  to  restrain  the 
Bank  of  Africa  from  paying*  over  to  the 
applicant's  wife  the  sum  of  £105,  lodged 
by  him  to  her  credit  pending  an  action 
for  the  recovery  of  the  same. 

The  applicant's  affidavit  stated  that 
ho  had  been  married  over  14  years,  and 
during  that  time  he  had  lodged  the 
amount  mentioned  to  the  credit  of  his 
wife.  She  had  informed  him  that  as 
she  had  got  all  she  could  out  of  him 
she  intended  leavinj^r  him,  and  he  wanted 
to  restrain  her  from  drawing  the  money. 

An  order  was  made  as  prayed,  pending 
an  action  being  brought  for  the  recovery 
of  the  amounts,  with  leave  to  the  re- 
spondent to  move  to  set  aside  the  order. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting  Chief  Jastice,  the 
Hon.  Sir  John  Buchanan.] 


ADMISSION. 


{ 


1905. 
Ang.  24th. 

Mr.  P.  S.  T.  Jones  moved  for  the 
admission  of  Harold  Christie  as  an 
attorney  and  notary. 

Application  granted,  oaths  to  be  taken 
before  the  Registrar  of  the  High  Court 
at  Kimberley. 


PROVlSIONAIi      ROLL. 

MCLEOD  V.  VAN  RKNSBURO. 

Mr.  P.  S.  T.  Jones  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £100,  the  bond  having  become  due 
by  reason  of  the  non-payment  of  in- 
terest.     Counsel    also    applied   for  the 


CAM  TIMES"  LAW  ftEl>0tlT8. 


property   »peoiallT   hypothecated    to    be 
declared  executable. 


Order  granted. 


rOURIE  V.  STRTDOM. 

Mr.  Sitruben  moved  for  provieional 
•entence  on  a  niortgage  bond  for  £750, 
the  bond  having  become  due  by  reason 
of  the  non-payment  of  interest.  Ck>un- 
eel  also  applied  for  the  property  spe- 
cially hypothecated  to  be  declared  eze* 
cuta<ble 

Order  granted. 


QREEFP  V.  DKLUORE. 

Mr.  Payne  moved  for  provisional  sen- 
tence upon  a  mortgage  bond  for  £1,000, 
less  £285  paid  on  account,  and  for  the 
property  specially  hypothecated  to  be 
declared  executable. 

Order  granted. 


WE6B  T.  HART. 

Mr.  Douglas  Buchanan  moved  for 
provisional  sentence  on  a  mortgage  bond 
tor  £60,  and  for  the  property  specially 
hypothecated  to  be  declared  execut- 
able. 

Order  granted. 


WBGB  V.  HART  AMD  OTHERS. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £100,  the  bond  having  become  due 
by  reason  of  the  non-oayment  of  m 
terest.  Counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable^ 

Order  granted 


MORTON  y.  RICHARDS. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond  for  a 
balance  of  £100  and  for  £2  8s.  insur- 
ance premiums.  Counsel  also  applied  for 
the  property  specially  hypothecated  to 
be  oeclared  executable. 

Order  granted. 


BOAEKARA.  V.  PALMER. 

Dr.  Greer  moved  for  provieiotial  sen- 
tence on  a  certain  acknowledgment  of 
debt  for  £100,  with  interest  a  tempore 
mcrae  and   costs. 

Order  granted. 


THOMPSON  V.  BEZUIDEMHOUT. 

Mr.    Struben   moved    for    provisional 
sentence  on  a  promissory  note  for  £261, 


payable  ^at  King  William's  Town,   with 
mterest   from   March    1,    1906. 
Order  gitanted. 


PILLANB  y.  BDOKTOM. 

Mr.  De  Waal  nK>ved  for  provisional 
fientence  on  a  mortgage  bond  for  £9, 
less  £4  ICs.  paid  on  account,  being  one 
year's    interest    and   courts. 

Order  gitanted. 


EATON,  ROBINS  AND  CO.  V.  BARWIN 
AND  ANOTHER. 

Mr.  Sutton  nK>ved  for  the  final  ad- 
judication of  the  private  ap/  partner- 
ship estates  of  the   defendants. 

l<inal  order  granted. 


LOMBARD  V.  MYBUKOH. 

Mr.  De  Waal  moved  for  a  provision- 
al order  of  sequestration  to  be  nHule 
final. 

Final   order    granted. 


WIGGSTT  y.  PIRNAAR. 

Mr.  Struben  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
msolveni. 

Final   order    granted. 


DEMPBRS  y.  yAN  ALMBLO. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £600, 
with  interest,  due  by  reason  of  the  non* 
payment  of  interest.  Counsel  also  ap- 
plied for  the  property  specially  hypothe- 
cated to  be  declared  executable. 

Order  granted. 


HARE  y.  HARTING. 

Mr.  M.  Bisset  moved  for  provisional 
sentence  on  a  cheque  for  £123  2s.  9d. 
and  costs  of  suit. 

Order  granted. 


TILES,  LTD.  y.  FISHER. 

Mr.  Van  Zyl  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
rasolvent. 

Order  granted. 


THOMPSON  y.  HALU 

Mr.  M.  Bisset  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £700, 
and  for  the  property  speoiallv  hypothe- 
cated to  be  declared  executable. 

Order  granted. 


700 


"CAPE  TIMES"  LAW  EEPOfttd. 


MCLKOD  V.  WEBTU. 

Mr.  Bailey  moved  for  provUional  sen- 
tenoe  on  a  morteago  bond  for  £500, 
due  by  roaaon  of  the  non-payment  of  in- 
terest. Couneol  alfio  applied  for  the  pro- 
perty hypothecated  to  be  declared  exe- 
cutaole. 

Order  granted. 


ILLIQUID    ROLL. 


MALAN  V.  CARLSON. 


Mr.    Van 


I 


11K)5. 
Auf?.  24th. 

moved    for    judgment 

for  £54   4«.   5d.,    less 

£20    paid  on    account,    for   goods    eold 

and    delivered,    with   interest  a   tempore 

tnorae  and  eoets. 

Order  granted. 


Zyl 
under    Rule  529d 


FRIEDLANDER  AND  DU  TOIT    V.    P8IAKI 

BROB. 

Dr.  Greer  moved  for  iudgmeut  under 
Rale  329d  for  £21  14s.  bd..  professional 
services  and  money  disbursed,  with  in- 
terest a  tempore  morae  and  ooats  of 
suit. 

Order  granted. 


LINTON  V.  LIKBBNBEBU. 

Mr.  De  Waal  moved  for  judgment 
under  Rule  329d  for  £30,  professional 
attendance,  medicine  supplied,  etc..  to 
defendant's  son. 

Order  granted. 


GENERAL  MOTIONS. 


Ex  vartt'  FINKBLSTKIN. 

Mr.  M.  Bisset  moved,  as  a  matter  of 
urgency,  for  au  order  restraining  Piiilip 
Finkelsteiu,  A.son,  of  Oudtshoorii,  from 
disposing  of  or  alienating  certain  bills 
and  books  of  account  in  the  partner- 
chip  business  lately  carried  on  by  the 
parties  as  dealers  in  ostrich  feathers. 

Rule  nisi  granted  calling  upon  the 
respondent  to  show  cause  why  an  inter- 
dict should  not  bo  granted  restraining 
respondent  from  dealmg  with  or  negoti- 
ating the  bills  in  question,  and  why  he 
should  not  deliver  up  the  books  to  ap- 
plicant, rule  to  be  returnable  at  the 
ensuing  Circuit  Court  at  Oudtshoorn. 
costcs  to  abide  the  result,  and  rule  to 
operate   as  a  temporary  interdict. 


ANNENBBRQ  V.  FOURIB. 

Mr.  P.  S.  T.  Jones  moved,  in  terms 
of  consent  paper,  for  the  removal  of 
trial  to  the  ensuing  Circuit  Court  at 
Oudtshoorn. 


Mr.  Upington  (for  raspoudeutj  ac- 
quiesced. 

Order  granted  m  terms  of  consent 
paper,  oosts  to  be  costs  in  the  cause. 


EsB  parte  UBRMAN. 

Mr.  J.  E  R.  de  YilUerB  moved  for 
leave  to  register  a  certain  ante-nupiial 
contract  entered  into  in  the  Transvaal. 

Oixler  granted,  saving  all  just  rights 
of  creditors. 


UEYDBNRYCH  V.  FITZGERALD. 

Mr.  Van  Zyl  moved,  as  a  matter  of 
urgency,  for  the  removal  of  trial  to 
the  next  Circuit  Court  at  Aliwal  North. 

Removal  of  trial  ordered,  oosts  to 
abide  result. 


Ex  parte  B6TATB  MIDDLBTON. 

Mr.  Benjamin  moved,  on  behalf  of  the 
executrix  testamentary,  for  leave  to  paas 
bond  on  certain  landed  property  at  Port 
Elisabeth. 

Order   granted. 


COLONIAL  GOVERNMENT  V.  JlCKENZIE 

AND  CO. 

Mr.  P.  S.  T.  Jones  moved  for  certain 
award  of  arbitrator  to  be  made  a  Rule  of 
Court.  He  said  that  the  arbitrator  had 
found  in  favour  of  the  Government  for 
£341,  and  had  directed  respondents  to 
pay  ooets. 

Order  granted  as  prayed. 


Ec  parte  DU   PLESSIB  AND  OTHERS. 

Mr.  Molteno  moved  for  leave  to  sell 
certain  property  in  the  district  of  Coles- 
berg.  Counsel  said  that  the  matter  had 
stood  over  pending  a  report  of  the  Mas- 
tor,  such  report  being  now  read.  The 
Master  said  that  the  proposal  of  tlie 
petition  was  in  direct  conflict  with  th<* 
will.  The  testatrix  had  directed  that 
the  farm  should  not  be  sold  or  let  to 
anyone  except  the  three  branches  of  the 
family  named  up  to  the  third  gener- 
ation. The  farm  would  not  support 
the  three  families,  and  two  had  gone 
away.  The  parties  could  buy  out  the 
property.  "Hie  parties  concerned  wore 
really  poor  whites,  and  unless  they  were 
allowea  to  sell  as  now  prayed  toe  pro- 
perty would  simply  remam  a  "  white  ele- 
phant." Counsel  cited  the  case  of  ex 
Earte  Qroentcald  (12,  "Cape  Times" 
aw  Reports,  849). 

Buchanan,  A.  C.  J.,  said  that  he  did 
not  see  how  it  would  be  possible  for  the 
Court  to  step  in  and  alter  the  will  of 
the  testatrix.  No  order  would  be 
granted. 


'*CA1»S  111IS8"  LAW  ttEt^OftTd. 


ro\ 


JBw  parte  BOHBLTBMA. 

Mr.  M.  Bisset  moyed  for  oonfirmation 
of  sale  of  certain  property  in  an  estate 
of  which  petitioner  is  executor,  and 
payment  of  certain  moneys  standing  to 
the  credit  of  minors. 

Ordei*  granted  in  terms  of  the  Master's 
report. 


KLCIN  V.  8TBYN. 

Mr.  Lewis  moved  for  the  return  day 
in  this  action,  which  was  for  the  seques- 
tration of  the  defendant's  estate,  to  be 
extended  from  August  10  to  the  present 
date.  By  a  mistake  the  case  was  not  set 
down  on  the  right  date. 

Buchanan,  A.  C.  J.,  said  t.iat  possi- 
bly the  defendant  was  present  in  Court 
on  the  old  return  day,  and  that  he  had 
no  notioe  of  this  appilioation,  and 
might  waoi  to  oppose  it. 

Mr.  Lewis  saia  the  defendant  had  sig- 
nified his  intention  of  not   defending. 

The  application  was  granted.  The  re- 
turn day  was  fixed  for  August  31. 

Later  in  the  day  Mr.  Lewis  said  he 
understood  that  the  defendant  had  left 
the  Colony,  the  allegation  being  that  he 
had  gone  to  German  South-west  Africa. 
He  applied,  therefore,  for  leave  to  effect 
substituted  service. 

Leave  was  given  to  effect  substituted 
service  by  one  publication  in  the  *'  Cape 
Times." 


SWEENEY  V.  BWEBNEY. 

Mr.  P.  S.  T.  Jones,  who  appeared  for 
the  a{^licant,  asked  to  have  the  case 
postponed,  as  allegations  were  made  in 
the  respondent's  affidavit,  which  the  ap- 
plicant, who  was  very  ill,  was  not  yet 
able  to  answer. 

Mr.  Lewie,  who  appeared  for  respon- 
dent, consented,  but  asked  to  have  the 
costs  of  the  day  allowed. 

The  application  was  postponed  until 
next  Thursday.  The  question  of  costs  to 
stand  over  until  then. 


Kx  parte  HLIKIHLA. 

Mr.   J.   E.  R.   de   Villiers  moved   for 
leave  to  transfer  certain  property. 
The  application  was  granted. 


LEPBR8EN   V.  BRUNT. 

Mr.  Alexander  moved  on  behalf  of 
applicant  to  have  a  certain  interdict  set 
aaide. 

Mr.  Van'  Zyl  opposed  the  application. 

The  property  concerned  was  a  billiard 
table,  which  the  applicant  bought  from 
one  Daviee,  who  purchased  it  from  one 
Goldstein  on  July  15,  and  whose  pro- 
perty shortly  after  the  sale  was  placed 
under  interdict.    The  billiard  table  was 


removed  on  July  31  from  Goldstein's  pre- 
mises to  Lepereen's.  The  applicant  was 
not  told  until  August  3  that  an  inter- 
dict was  granted  giving  the  sub-Sheriff 
power  to  follow  up  the  property  of  the 
estate,  and  the  billiard  table  was  then 
placed  under  the  interdict. 

The  respondent's  affidavit  stated  that 
the  interdiot  was  served  on  the  appli- 
cant about  9.30  a.m.  on  July  31.  On 
August  1  respondent  was  informed  that 
two  ^ads  of  furniture  had  been  removed 
from  the  house,  and  he  obtained  another 
order  from  the  Court.  On  August  5  be 
went  to  4,  Sir  Lowry-road,  to  remove 
the  furniture,  and  he  was  informed  that 
there  was  no  furniture  there  belonging 
to  Goldstein. 

A  considerable  number  of  affidavits 
was  read  on  both  sides. 

Mr.  Alexander  having  been  heard  in 
argument, 

Buchanan,  A.  C.  J. :  An  application 
was  made  by  the  respondent  Brunt  to  a 
Judge  in  Chambers  on  an  affidavit 
setting  forth  the  fact  that  one  Gold- 
stein was  a  tenant  of  his  and  that  he 
was  under  an  agreement  to  pay 
rent  for  the  premises  montnlv 
in  advance.  The  rent,  he  alleged, 
had  been  paid  up  to  the  end  of  June; 
the  rent  for  July,  which  was  payable  in 
advance  on  or  before  the  1st  Julv, 
had  not  been  paid,  though  freauently 
demanded,  and  there  was  rent  due  for 
the  month  of  August.  These  facts  were 
disclosed  to  the  Judge,  who  granted   a 

S'ovisional  order.  The  respondent 
runt  said  he  saw  that  all  the  movable 
property  in  the  premises  wtaa  advertised 
for  sale  on  the  31stj  and  he  applied 
for  an  order  restraining  the  sale  until 
the  rent  (£44)  had  been  paid.  The 
learned  Judge  who  bad  the  application 
before  him  made  the  provisional  order 
and  reet rained  the  sale.  After  service  of 
this  order,  on  the  morning  of  the  31st 
July,  Goldstein  allowed  certain  jpro* 
pcrty.  which  had  been  restrained  irom 
removal,  and  which  had  been  attached 
by  the  order,  to  be  taken  away  from 
the  premiseii.  Thereupon  Brunt  natur- 
ailv  applied  to  the  Court,  and  got  an 
oruer  authorising  the  Sheriff  to  follow 
up  any  property  which  had  been  re- 
moved in  disobedience  to  the  order  of 
the  Court,  and  restore  it  to  the  pre- 
mises. Now,  one  Lepersen  applies  to 
set  aside  the  order  on  the  ground  that 
a  certain  billiard  table  which  he  had  re- 
moved after  the  service  upon  Goldstein 
of  the  order  attaching  the  same  for  the 
rent,  was  his  property.  From  the  affi- 
davits, as  far  as  they  disclose  the  facttj, 
it  is  clear  that  this  billiard  table  was  re- 
moved after  the  service  of  the  order  of 
Court.  When  the  billiard  table  was  fol- 
lowed up  by  the  Sheriff,  it  was  found 
to  be  concealed  in  a  suspicious  mannor. 
But  wliether  or  not  the  billiard  table 
belonjB^ed  to  Leperson,  it  'vas  on  the 
prenuses  and  was  attached  for  unpaid 
rent      The     applicant,     Lepersen,     has 


702 


It 


CAPB  TIMES"  LAW  REPOtltd. 


shown  no  ground  for  removing  thai  aV 
tachment  and  the  application  will  be  re- 
fiisedf  with  costs. 


camp's  bat  extension  estates  CO. 

V.   SAMSON. 

Mr.  p.  S.  T.  Jones  moved,  upon 
notice  of  motion,  for  an  amendment  of 
the  order  given  by  the  Court  in  the 
recent  trial  so  as  to  avoid  future  dis- 
putes. A  consent  paper  had  now  been 
filed  for  an  amendment  of  the  order. 

Order  granted  in  termfi  of  consent 
paper,  applicant  to  pay  costs. 


Ex  parte  ESTATE  CAMPBBLL. 

Mr.  Molt<cno  moved,  on  behalf  of  the 
executrix  testamentary,  widow  of  the 
deceased,  for  leave  to  posb  a  bond  for 
£200  on  certain  pix)perty  in  the  district 
of  Cradock.  Counsel  staled  that  the 
matter  had  cau^d  a  good  deal  of  corre- 
spondence, and  that  he  was  now  pre- 
pared to  accept  an  order  in  terms  of 
the  Master's  report 

Order  granted  in  terms  of  the  Master's 
report. 


A>  parte  estate  Mcorath. 

Mr.  Sutton  moved  for  an  order  au- 
thorising the  Muster  to  pay  out  from 
the  guardians'  fund  to  the  tutor  dative 
certam  money  for  the  maontenance  and 
upkeep  of  the  minor  children. 

Order  granted  in  terms  of  Master's 
report. 


Uj-  parte  INSOLVENT  estate  villet. 

Mr.  Douglas  Buchanan  moved,  on  l>o- 
half  of  the  trustee,  for  leave  to  sue 
by  edictal  citation  one  James  Collins, 
said  to  be  of  Cannon-street.  London, 
England,  for  a  debt  of  £2,349  Is.,  al- 
leged to  be  owing  to  the  estate,  and  for 
the  attachment  of  certain  property  ad 
fundandam  jurisdirtionem.  The  affidavit 
of  Mr.  Hazell  (the  trustee)  i^aid  that 
he  had  reason  to  believe  tlMt  Collins  was 
a  bogus  penion.  and  that  the  property 
registered  in  his  name  was  for  msoi- 
vents'  account,  jointly  with  Kaiser 
Bros. 

Buchanan,  A.  C.  J.,  remarked  that  it 
was  a  very  extraordinary  proceeding  to 
sue  a  defendant  who  was  believed  to  be 
a  bogus  person. 

Mr.  Buchanan  said  he  thought  this 
was  the  only  way  of  reaching  the  pro- 
perty. 

Order  granted  attachin^^  the  property, 
and  giving  leave  to  applicant  to  sue  by 
edictal  citation,  citatdon  to  be  return- 
able on  November  30,  personal  service, 
failing  which  one  publication  in  the 
"Government  Gazetto"  and  one  pub- 
lication in  the  "Daily  Telegnraph,"  Lon- 
don. 


MYERS  BROB.  V.  MORGAN  AND  ANOTHER. 

Mr.  Lewis  n[K>ved,  on  behalf  of  Myers 
Bros.,  jewellers.  Cape  Town,  for  an 
order  authorising  the  gaoler  to  pay  over 
certain  moneys.  The  respondents  had 
been  convicted  of  a  charge  of  stealing 
a  diamond  bracelet,  the  property  of  the 
applicants,  and  had  been  sent  to  gaol. 
C-ertain  suzn«  of  money  had  been  found 
in  their  possession  by  the  prison  authori- 
ties, and  applicants  applied  for  the 
same  to  be  attached,  pending  an  action 
which  they  proposed  to  bring  against 
re9pondents  to  recover  the  value  of  the 
missing  bracelet. 

Order  granted  as  prayed. 


BABOOLALLAND  V.  BABOOLALLAND. 

Mr.  P.  S.  T  Jones  moved,  on  behalf 
of  Mrs.  BaboolaJland,  for  an  order  re- 
quinng  respondent  to  pay  costs  of  ap- 
plication which  he  had  brought  for  cus- 
tody of  the  child  of  the  marriage,  io 
default  of  his  proceeding  with  the  action. 

Order  granted,  with  leave  to  respon- 
dent to  recover  costs  in  any  action  which 
may  be  instituted. 


Ex  parte  the   insolvent  estate 

fiTBFHAN  AND  OTHERS. 

Mr.  Gutsche  moved  for  the  appoint- 
ment of  a  curator  of  the  property  and 
effects  of  one  Ashley  Cooper  Partridge, 
more  particularly  in  respect  of  a  certain 
property  at  Rosebank.  The  property, 
it  was  stated,  had  been  sold  by  public 
auction  to  Ashley  Cooper  Partridge  for 
£3,166,  and  it  was  desired  to  complete 
the  transaction.  An  affidavit  by  a  mem- 
ber of  the  firm  of  Silberbauer,  WahU 
and  Fuller  stated  that  no  reason  could 
be  assigned  for  Partridge's  disappear- 
ance. 

Buchanan,  A.  C.  J.,  said  that  he  had 
never  heard  of  such  an  application  in 
that  Court  before.  He  did  not  see  how 
tliey  could  deprive  Partridge  of  his 
estate;  he  was  not  before  the  Court.  It 
was  not  proposed  to  presume  his  death, 
nor  was  it  proposed  to  sequestrate  his 
estate.  The  only  suggestion  that  he  (the 
learned  Judge)  could  make  was  that  the 
estate  should  be  sequestrated  on  the 
ground  that  Partridge  was  absent  from 
the  Colony  and  was  delaying  his  credi- 
tors. There  would  be  no  order  at  pre- 
sent. 


HENDRIKS  V.   CAPE  TOWN  TRAMWAYS 
AND  CAPE  DIVISIONAL  GOUNCIL. 

Dr.   Greer  moved  for  leave     to     sue 
in  forma  pauperit. 

The    petition    was     referred    to    Dp 
Greer  for  report. 

Dr.    Greer   certified    forthwith    in    fa- 
vour of  the  applioafcion. 


••CAPE  TIMES"   LAW  REPORTS. 


703 


Rule  mtf  granted,  to  be  returnable  on 
the  12th  September. 

Dr.  Gereer  added  that  the  plaintiff  was 
no  longer  proceeding  against  the  Divi- 
sional Counoil. 


Ex  parte  THE  INSOLVENT  ESTATE  LATE 

PRINCE 

Mr.  Close  moyed  on  behalf  of  Mr.  J. 
E.  P.  Close,  as  sole  trustee  in  the  insol- 
vent esta'/e,  for  an  amendment  of  trans- 
fer deed  of  a  mission  hall,  erected  by 
insolvent  at  Claremoat  for  the  African 
Methodist  Episcopal  Church  and  other 
purposes. 

Rule  ni»i  grarted,  calling  upon  the 
persons  in  whoso  namo  the  property  is 
registered  to  show  oauso  why  the  trans- 
fer deed  should  not  be  amended  as 
grayed,  with  costs,  and  the  pastor  of  the 
'huremont  branch  of  the  A.M.E.  Church 
to  disclose  the  names  of  trustees  of  the 
branch,  and  restraining  Mr.  Attorney 
Peters  from  disposing  of  the  property, 
rules  to  be  returnable  on  the  12th  De- 
cember. 


PL0TT8L  V.  HERMAN. 

Mr.  De  Waal  nK>ved  for  an  order  re- 
moving the  respondent  from  executor- 
ship ox  the  estate  of  petitioner's  brother, 
Hyman  Plottel,  late  of  Philip's  Town. 

Rule  nut  granted,  calling  upon  the 
respondent  to  show  cause  why  an  order 
should  not  be  granted  as  prayed,  rule  to 
be  returnable  on   the  16th  October. 


DE  JAGER  V.  DE  JAOBR. 

Mr.  Roux  (for  plaintiff)  moyed  for  the 
removal  of  trial  to  the  ensuing  Circuit 
C'durt,    at   Uniondale 

Order  granted,  coerts  to  be  costs  in  the 
cause. 


COLONIAL  GOVBRNMENE  V.  LA6ENBY. 

Mr.  Nightingale  moved,  on  behalf  of 
the  Assistant  Treasurer,  for  leave  to  sue 
the  respondent  by  edictal  citation  for 
£142  17s.  6d.,  quitrent  and  stamp  duty 
due  in  respect  of  a  farm  in  the  Vryburg 
distzdct.  Lasenby  was  now  said  to  be  in 
Johannesburg,  but  his  exact  address  was 
unknown. 

Order  granted,  attaching  the  property 
and  granting  leave  to  sue,  citation  to 
be  returnable  on  the  16th  October,  per- 
sonal service,  failing  which  one  publica- 
tion in  the  "Government  Gazette"  and 
one  in  the  *'  Star." 


COLONIAL  GOVERNMENT  V.  CONRADIE. 

This  wias  a  similar  e^>plioation  to  the 
previous  one,  defendant  b^ing  at  Ger- 
miston,  Transvaal. 


A  similar  order  was  granted  to  that  in 
the  previous  case. 


Ex  parte  Louw  and  marais. 

Mr.  Gardiner  moved  for  an  order 
empowering  petitioners  to  sell  certain 
shares. 

His  Lordship  said  that  he  did  not  see 
any  need  to  make  an  order  at  present. 
The  trustees  should  first  make  an  at- 
tempt to  sell  the  shares. 


Ex  parti'  WEIDEMAN. 

Mr.  P.  S.  T.  Jones  moved  for  an 
order  authorising  the  transfer  to  peti- 
tioner of  certain  property  at  Britetown. 
Petitioner  who  was  a  trustee  in  the 
estate  had  bought  the  property  at  public 
auction. 

Order  granted. 


Ex  parte  ESTATE  LOXTON. 

Mr.  Benjamin  mov€»d  for  the  appoint- 
ment of  a  curator  dative,  etc. 

His  Lordship  said  he  did  not  think 
that  the  application  should  have  come 
before  the  Court.  There  would  be  no 
order.  The  matter  was  one  that  might 
properly  come  before  a  judge  in  Cham- 
bers. 


Ex  parte  estate  mostert. 

Mr.  Gardiner  moved  for  leave  to 
transfer  certain  property  at  Observa- 
tory. Counsel  now  furnished  certain 
additional  information  as  required  by  the 
Court. 

The  matter  was  ordered  to  stand  over 
pending  notice  to  the  trustee  and  certain 
further  information. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Actinjr  ('hief  Justice  (the 
Hon.  ^ir  John  Bdcfcanan)  and  the 
Hon.  Mr.  Jus' ice  Hoplky.] 


BEIRA     COLD     STORAGE     V.  f         11K).5. 
RHODESIA  COLD  STORAGE.   \  AutT-   25th. 

Mr.  Searle,  K.C,  moved  as  a  matter 
of  urgency  for  an  extension  of  time 
in  order  to  prosecute  an  appeal  from 
the  High  Court  of  Rhodesia,  in  the  mat- 


704 


If 


CAPE  TIMES"  LAW  RBPORTS. 


ier  between  the  Beira  Cold  &tonge  Co. 
and  the  Rhodesia  Cold  Storage,  in 
which  £11,000  damages  had  been  given 
against  the  defendant  company,  and 
an  order  for  the  delivery  of  certain 
shares  to  the  value  of  £22,000.  The  re- 
spondent, counsel  said,  conaented  to  the 
application.  According  to  the  rules  of 
ot  Court,  the  appeal  should  have  been 
prosecuted  this  term,  but  the  record  was 
a  most  voluminous  one,  and  the  difficulty 
was  to  have  the  record  printed  within 
the    time. 

[Buchanan,  A.  C.  J. :  I  suppose  it  is 
a  genuine  appeal.] 

Mr.  Burton:  My  learned  friend  says 
it  is. 

Buchanan,  A.  C.  J.,  said  that  under 
the  circumstances  the  case  would  be  set 
down  for  October  23. 


TABLE  BAY  HARBOUR  BOARD  J  a  ngTaBth 
v.  THE  CITY  LINE.  \^^^     ^^j^ 

Harbour  Board  Begulntions — 
Compulaory  pilotage — Acts  8 
of  1879  and  36  of  1896— 
English  Act  17  and  18  Vict., 
C.  104. 

(h\e  of  the  defemlants^  vessels, 
while  leaving  Cape  Toirn  Dtjcks 
under  the  pilotwje  of  a  pilot 
selected  by  the  Harbour  Board, 
irhom  the  Company  were  under 
the  Board's  regulatiojis  com- 
pelled to  employ,  struck  and 
damaged  one  of  the  d4)rk  qunys. 
It  was  admitted  that  this 
dam/fge  was  -  not  due  to  any 
negligence  on  the  p(trt  of  the 
Lonqxiny's  servants,  but  to  an 
eiror  of  judgment  o»  the  part 
of  the  pilot. 

Held,  that  so  far  as  the 
Harbour  Board  regulatiotis 
gave  the  Board  a  right  of 
action  for  damage  resulting 
from  the  misfeasances  of  their 
own  servants,  they  were  incon- 
sistent ivith  t/te  provisions  of 
British  Merchant  Shij)ping 
law  as  set  forth  in  Act  17  aitd 
18  Vict.,  C.  104.  which  is  by 
Sec.  1  of  Act  8  of  1879  also 
the  law  of  this  Colony,  and 
icere  ultra  vires. 
Table  Bay  Harbour  Board  v. 
Bucknall  Co.  (14C.T.R.  361) 
distinguished. 


This   wsB    an    action    brought   by   the 
Table  Bay  Harbour   Board  against  the 


City  Line,  who  were  sued  through  their 
Cape  Town  agents,  Messrs.  Mitchell 
Cotts  and  Co.,  to  recover  £2,590  dam- 
ages. 

Mr.  Searle,  K.C.  (with  him  Mr.  Bis- 
set)  was  for  the  plaintiffs  and  Sir  H. 
Juta,  K.C.  (with  hitn  Mr.  Benjamin), 
was  for  the  defendants. 

Mr.    Searle    said    that    although    that 
amount  was  claimed  in  the  original  de- 
claration  on    account   of  certain   admis- 
sions    between  the  parties,  the  question 
would  now  be  chiefly  one  of  law  for  the 
Court.      It    was     agreed     between     the 
parties      if      the      Court      gave      judg- 
ment   on    the    admission    between    the 
parties      the      matteir      might     be      re- 
ferred   to    Mr.    Stewart,    the    Engineer, 
to   assess   the   damages.       The  question 
was  mainlv  one  of  law.  It  arose  through 
damages  done  to  one  of  the  quays  of  the 
Docks  by  the  screw  steamer  City      of 
Perth,  belonging  to  the  defendant  com- 
pany, which  occurred  on  March  18  last. 
The  vessel  was  leaving  the  Docks  for  the 
purpose  of  proceeding    on   her   voyage, 
when  she  struck  a  portion  of  the  quay 
at   the  South  Arm,   and   did   a     }»rg^ 
amount  of  damage,  which  the  plaintiffs 
sot  out  at  £2,590.       The   vessel  at  the 
time  was  in  charge  of  a  pilot,  duly  li- 
censed and  appointed  under  the   terms 
of    and    subject   to    the    regulations   of 
the    Board.       The   plea  did    not   admit 
that  a  large  amount  of  damage  was  done, 
and  set  out  that  when  she  struck  the  vessel 
was  in  charge  of  a  pilot  supplied      by 
the  plaintiffs.      The  defendants  had     no 
voice   in   appointing   him,    and    had   no 
control  over  the   pilot,  and  the  defend- 
ants did   not  admit  that  the   pilot   was 
competent.  After  the  accident  the  plaint- 
iff.*; suspended  the  pilot.       The  accident 
was  caused  by  an  omission  on  the  part 
of  the   pilot.       The   replication   set  out 
that   the    Board  exercised^  all   due  care 
and   control   in   the   licensing    of   pilots. 
The  vessel    could     not    have     left    the 
Docks  without  such  pilot  being  employ- 
ed.     Counsel   said    the  point  would    be 
whether    the    defendant    company     was 
liable  under  the  Harbour  Boaird  regula- 
tions,   after    the    Board    had    exercised 
due  caution   in    the  appointment  when 
they  had  a  oomi>ulsory  pilot  on  board. 
He  would  call  evidence  as  to  the  pilot's 
character. 

William  Stephen,  Port  Captain^  at 
Cape  Town,  stated  as  regards  the  licens^ 
ing  of  pilots,  the  Harbour  Board  granted 
them  a  licence.  The  pilots  were  ex- 
amined by  two  competent  men,  and 
witness  and  Captain  Spence  gave^  this 
pilot  in  question  a  certificate  of  efficiency. 
Up  to  the  time  of  this  accident  the  pilot 
had  taken  over  200  vessels  in 
and  out  of  the  Docks.  He  was  perfect- 
ly sober  and  trustworthy,  and  he  held 
the  highest  certificate  the  Board  of  Trade 
oould  grant.  In  the  case  of  a  new 
pilot   he  served  on  probation  for  three 


•CAPB  TIMES"  LAW  IIEP0RT3. 


705 


moDtlM.  The  master  of  a  ship  very 
often  selected  hia  own  particular  pilot. 

Crow-examioed  by  Sir  H.  Juta :  Pend- 
inf^  the  inquiry  into  the  circumfitancefl, 
witness  suspended  the  pilot.  It  was 
chiefly  on  account  of  that  accident  that 
witness  wrote  that  the  pilot  seemed  to 
lack  sufficient  judgment  in  handling  ves- 
sels in  narrow  water,  such  as  a  dock. 
The  pilot  did  not  turn  out  so  "  brilliant  " 
as  witness  expected. 

This  was  all  the  evidence,  and  counsel 
having  been  heard  in  argument, 

Car,  Adv.   Vult. 

Pottea  (September  4). 

^  BocUmnan^  A.  C.  J.:  The  plaintiffs 
in  this  action  claim  that  the  sum  of 
£2,500  is  payable  to  them  for  damages 
done  by  the  defendant  company's 
steamer  City  of  Perth,  on  the  18th 
March  last,  to  one  of  the  quays 
of  the  Table  Bay  Docks,  which  are 
under  the  management  and  control  of 
the  plaintiff  Board.  If  the  defendant 
company  is  found  to  be  liable  at  all,  the 
parties  have  agreed  that  the  actual 
amount  to  be  paid  by  them  shall  be 
assessed  by  Mr.  Stewart.  The  Oourt  is 
further  relieved  of  the  necessity  of  it- 
self finding  the  actual  facts  by  the 
admissions  made  by  the  plaintiffs.  It 
is  common  cau.«)e  that  the  City  of 
Perth,  while  leaving  the  Docks  for  the 
purpose  of  proceeding  on  her  voyage, 
struck  one  of  the  quays,  and  did  con- 
siderable damage  thereto.  The  plain- 
tiffs admit  that  this  damage  was  not  in 
any  way  due  to  any  act  of  negligence 
on  the  part  of  the  defendant  company's 
employees,  but  that  it  was  due  to  an 
error  of  judgment  on  the  part  of  the 
pilot  in  charge  of  the  vessel,  and  that 
the  vessel  was,  at  the  time,  under  the 
absolute  control  of  the  pilot,  who  had 
been  licensed  as  such  by  the  plaintiffs. 
The  plaintiffs  themselves  plead  that,  by 
the  Hai4K>ur  Board  Regulation  No.  5, 
section  10,  the  employment  of  a  licensed 
pilot  U  compulsory  on  all  vessels  enter- 
ing or  leaving  the  Docks,  or  shifting 
berth  therein,  and  counsel  on  both  sides 
are  in  accord  on  the  point  that,  as  this  is 
a  question  relating  to  maritime  and 
shipping  law,  by  the  General  Law 
Amendment  Act  of  1879,  the  law  gov- 
erning this  case  is  that  of  England,  so 
far  36  the  same  is  not  inconsistent  with 
any  Colonial  Statute.  Counsel  also 
a^ree  that  the  law  of  England  is  cor- 
rectly set  forth  in  the  388tn  section  of 
the  Merchant  Shipping  Act,  17  and  18 
Vic,  c.  104,  viz.,  that  no  owner  or 
master  of  any  ship  shall  be  answerable 
to  any  person  whatever  for  any  loss  or 
damage  occasioned  by  the  fault  or  in- 
capacity of  any  qualified  pilot  acting 
in  charge  of  such  ship  within  any  dis- 
trict where  the  employment  of  such 
pilot  is  compulsory  dv  law.  But  the 
plaintiffs  contend  that  this  case  is 
taken  out  of  the  operation  of  this  gen- 


eral rule  of  law  by  the  provisions  of 
the  Board's  Regulation  No.  4,  section 
6,  which  makes  the  masters  and  owners 
of  vessels  liable  to  pay  for  all  damage 
done  to  any  quays  or  other  property 
belonging  to  the  Board,  "  whether  sucn 
damage  shall  be  done  directly  or  in- 
directly by  their  vessel  or  by  them- 
selves or  any  of  them,  or  by  the  sailors, 
or  servants,  or  other  persons  whatsoever 
belonging  to  such  vessels,  or  engaged 
or  assisting  in  bringing  them  into  or 
taking  them  out  of  dock  or  basins,  or 
in  executing  repairs  or  other  works 
thereon,  or  in  putting  on  board  or  dis- 
charging their  cargoes,  or  connected 
therewith  in  any  other  way  whatever." 
The  defendants  contend  that  if  this  re- 
gulation was  intended  to  give  the  Har- 
bour Board  a  right  of  action  for 
damages  caused  by  the  default  of  their 
pilot,  then  it  is  not  only  unreasonable, 
but  it  is  also  ultra  viresj  as  altering  the 
general  law  relating  to  compulsory 
pilotage  without  legislative  enactment. 
The  regulations  in  question  were  framed 
under  the  powers  conferred  on  the  Har- 
bour Board  by  the  Slst  section  of  Act 
No  36,  1896.  That  Act  assimilated  and 
amended  the  law  relating  to  the  con- 
trol and  managemant  of  the  three  har- 
bours of  Table  Bay.  Port  Elizabeth, 
snd  East  London.  Of  these  three  har- 
boiirs  the  87th  section  of  the  Act  de- 
clared only  East  London  to  be  a  com- 
pulsory pilotage  harbour.  It  is,  how- 
ever, "not  disputed  that  the  Table  Bay 
Harbour  Board  had  authority  to  make 
pilotage  compulsory  within  this  port. 
It  may  be  noticed  that  this  87th  section, 
while  making  pilotage  compulsory  at 
East  London,  at  the  same  time  provides 
that  the  Harbour  Board  of  that  port 
"  shall  not  be  responsible  for  any  loss, 
damage,  or  accident  that  may  occur 
through  the  act,  omission,  or  default  of 
any  pilot  though  such  pilot  may  be  for 
tlK5  sake  of  convenience  a  servant  of  the 
Harbour  Board."  In  like  manner  the 
Table  Bay  Harbour  Board  regulation 
No.  5,  section  10,  while  making  pilotage 
compulsory  within  the  Docks,  disclaims 
any  liability  on  the  part  of  the  Harbour 
Board  for  the  acts  of  the  pilot.  It 
might  well  follow  that  under  these  pro- 
visions no  action  would  lie  against 
either  Board  for  any  damage  resulting 
from  the  default  of  tno  pilot.  That  view 
is  supported  by  the  deei«on  of  this 
Court  in  the  case  of  Table  Bay  Har- 
bour Board  v.  Bwknall  Steamship  Linet 
(21.  S.C.  Rep.,  220),  where  similar  pro- 
visions in  another  regulation  exempt  the 
Board  from  liability  for  damage  done 
by  their  tugs  employed  in  towing  a  ves- 
sel out  of  harbour  were  held  valid.  This 
decision  was  in  argument  greatly  relied 
upon  for  the  plaintiffs.  In  that  rase, 
however,  the  use  of  the  tugs  was  neither 
compulsory  nor  neoeesary,  and  the  bye- 
law  there  in  question  expressly  provided 
that  while  so  employed  the  master  and 
crew  of  the  tugs  were  to  be  deemed  to 


706 


(I 


CAPE  TIMES'*   LAW  REPORTS. 


be  the  senraofta  of  the  cyimer  or  master 
or  pdlot  of  the  veflsel,  and  were  to  act 
unoer  their  instructions.  The  terms  of 
the  r^^lation  being  known  to  the  mas- 
ter of  the  ship  when  he  hired  the  tug, 
the  conditions  of  the  regulation  were 
held  to  be  part  of  the  contract,  and  in 
suoh  a  contract  these  ooDditions  were 
not,  on  the  face  of  them,  so  unreasonable 
that  the  Court  could  declare  them 
ultra  vireM.  But  all  through  the  argu- 
ment in  that  case  a  distinction  was 
drawn  between  a  voluntarr  contract,  by 
which  the  tug  was  plaoea  under  the 
orders  of  the  master  of  the  vessel,  and 
a  case  of  compulsory  pilotage,  where  the 
pilot  was  not  under  the  control  of  the 
master,  but  himself  directed  tlie  manage- 
ment of  the  vessel,  of  which,  by  the 
Board's  regulations,  he  was  placed  in 
charge.  Here  not  only  wss  pilotage 
compulsory,  but  the  only  pilot 
whom  the  Harbour  Board  allowed  the 
master  to  take,  was  one  examined  and 
licensed  by  the  Board  itself.  The 
pilot  in  question  had  been  examined 
and  licensed  in  1904,  and  had  had  con- 
siderable experience  since  then  in  tak- 
ing vessels  in  and  out  of  dock.  When 
this  accident  happened,  the  pilot  was 
suspended  by  the  Harbour  Board  author- 
ities, and  the  Harbourmsster  stated  he 
w«a  glad  the  pilot  had  thereupon  re- 
signed, as  though  not  incompetent,  he 
was  not  so  skilful  as  were  the  other 
pilots.  'Hie  defendant  company  had 
no  special  knowledge  of  the  relative 
skill  of  the  Harbour  Board  pilots,  and 
as  a  matter  of  fact,  bad  no  opportunity 
of  selecting  any  particular  pilot,  «s  the 
practice  was  for  all  the  pilots  to  take 
their  turns  in  taking  charge  of  vessels 
going  into  dock.  It  will  be  noticed 
that  this  Regulation  No.  4  is  not,  in 
terms  at  all  events,  an  abrogation  of 
the  rule  of  law  as  to  compulsory  pilot- 
age. It  makes  no  express  reference  to 
the  compulsory  pilot,  and  if  it  is  read 
as  rendering  a  snip  liable  for  damage 
done  by  any  person  over  whom  the 
master  has  any  control,  it  will  be  in 
accord  with  the  decision  in  BucknaJPs 
case.  Putting  such  a  construction  on 
it,  on  the  face  of  it,  it  will  not  bo  ultra 
Tire*  of  the  Act.  But  though  the 
Harbour  Board  has  protected  itself 
from  liability  for  the  default  of  the 
pilot,  different  considerations  come 
into  force,  when  the  Harbour  Board 
seek  to  found  a  right  of  action  on  such 
default.  The  principle  ordinarily 
underlying  liability  for  such  damage  as 
is  here  sued  for  is,  that  there  has  been 
cuipa  on  the  part  of  the  person  sought 
to  be  made  liable,  or  on  the  part  of  his 
servants  or  other  persons  under  his  con- 
trol. Here  we  have  the  Harbour 
Board  deoreeinpg  that  there  shall  be 
convpulsory  pilotage  within  the  area 
of  their  docks,  and  they  examine  and 
licence  the  only  persona  who  may  cn- 
ga^  in  such  pilotage.  The  damage  was 
oaused  through  the  default  of  the  per-     I 


son  whom  the  Harbour  Board  put  in 
absolute  control  of  the  vessel.  There 
is  no  default  of  any  kind  on  the  part 
of  the  master  or  of  the  crew  or 
other  persons  under  his  orders. 
Where  there  is  no  negligence  or  fault 
on  the  part  of  the  employees  of  the 
owners,  the  law  of  England  exempts 
them  from  liabdit^  for  the  default  of 
the  pilot  where  pilotage  is  compulsory. 
As  regards  the  Table  Bay  Docks,  there 
has  been  no  direct  legislative  limitation 
of  the  exemption  conferred  by  the  law; 
and,  in  my  opinion,  the  Board's  regu- 
lation does  not  contain  any  such  altera- 
tion of  the  general  rule  which  the  par- 
ties agree  would  otherwise  bar  this  ac- 
tion. Under  suoh  circumstances,  it  can- 
not be  said  that  there  is  any  statutory 
enactment  or  any  exprees  or  implied  con- 
tract taking  the  vessel  out  of  the  protec- 
tion afforded  by  the  law  governing  com- 
pulsory pilotage.  Considering  the  area 
covered  by  the  regulations  the  position 
of  the  pilot  would  seem  very  similar  tu 
that  of  the  Harbour  Master  or  other  offi- 
cials to  whom  is  entrusted  the  control  of 
vessels  whilst  within  the  Docks.  If  by 
any  bye-law  the  Harbour  Board  should 
attempt  to  gave  themselves  a  right  of 
action  founded  on  the  default  or  their 
own  servants,  an  important  aue«tion 
would  arise  whether  such  a  bye-law 
would  ever  be  sanctioned,  and  if  it 
should  be,  whether  it  would  not  be  held 
to  be  unreasonable  and  ultra  riret  of  the 
Harbour  Board  Act.  The  construction  I 
put  on  the  existing  bye-law  renders  it 
unnecessary  now  to  discuss  that  ques- 
tion. As  the  case  stands,  I  fail  to  find 
in  any  principle  of  law  or  equity  firm 
ground  for  holding  the  vessel  liable  for 
the  damage  now  sued  for.  Judgment 
must,  therefore,  in  my  opinion,  be  given 
for  the  defendants,  with  costs. 

Mr.  Justice  Hopley,  in  concurring, 
said:  In  this  ease  tRe  plaintiffs  claim 
damages  for  injurr  done  to  one  of  the 
quays  of  the  Docks  by  the  defendants' 
steamer  City  of  Perth  on  March  18. 
1905.  The  facts  of  the  case  on  which 
the  claim  is  founded  are  admitted,  and 
n:  ay  be  briefly  stated  as  follows :  The 
City  of  Perth  was  on  the  said  date 
leaving  the  Docks  to  proceed  on  her 
voyage,  and  she  was  at  the  time  in 
charge  of  a  pilot  duly  licensed  by  the 
t^laintiffa,  in  pursuance  of  their  statu- 
tory powers.  By  an  **  error  of  judg- 
ment^' on  the  part  of  the  pilot,  the 
ship  was  brought  into  collision  with  the 
quay,  and  damage  to  a  considerable  ex- 
t^'nt  was  done.  The  pilotage  was,  by 
virtue  of  one  of  the  plaintiffs'  bye- 
laws,  compulsory;  and  thei«  was  no 
negligence  of  any  kind  on  the  part  of 
the  master  or  any  of  the  crew.  The 
st<»amer  was  left  entirely  in  charge  of 
the  pilot,  and  the  collision^  and  result- 
ing damage  were  due  entirely  to  his 
mismanagement  of  her.  The  plaintiffs 
do  not  found  their  claim  on  any  allega- 
tion of  negligence  on  the  part  of  the 


(I 


CAPS  TIMES"  LAW  BSPOBTB. 


707 


defendants,  but  tbey  claim  to  be  re- 
iiuburaed  for  the  damage  douc,  bv 
virtue  of  one  of  their  bye-laws,  to  which 
I  shall  at  a  later  atage  more  fully  re- 
fer; aud  tlie  defendants  reply  that, 
as  there  was  no  negligence  on  their 
part,  they  aire  not  liable  for  what  haa 
occurred.  The  plaintiffs  exercise  juris- 
diclion  and  control  over  the  Harbour 
and  Docks  by  virtue  of  Act  36  of  1896, 
and  by  section  31  of  that  Act,  they 
have  the  power  to  make  reasonable  re- 
gulations ifUer  alia  for  the  proper  man- 
agement of  the  harbour  iwd  for  the 
preservation  from  injury  of  any  of  their 
works,  and  also  for  the  proper  control 
of  all  vefiaels  entering  any  docks  and 
coming  alongside  any  jetties  or 
wharves  (see  sub-sections  3  and  6).  By 
virtue  of  the  powers  vested  in  them, 
they  have  maae  certain  bye-laws,  which 
have  been  promulgated,  and  two  of 
these,  upon  which  the  plaintiffs  rely,  are 
annexed  to  the  declaration,  their  material 
portions  being  as  follows:  Section  VI., 
Regulation  4—"  The  naaater  and  owners 
of  vessels  shall  be  liable,  conjointly  and 
severally,  for  the  payment  of  all  dam- 
age done  to  any  of  the  quays,  piers, 
bridges,  or  other  harbour  works.  .  .  . 
whether  such  damage  shall  be  done 
directly  or  indirectly  by  their  vessel 
or  by  themselves  or  any  of  them,  or  by 
the  sailors  or  servants  or  other  per- 
sons whatsoever  belonging  to  such  ves- 
sels or  engaged  or  aaaistinv  in  bringing 
them  into  or  taking  them  out  of  Docks 
or  Basins  or  in  executing  repairs  or 
other  works  thereon  or  in  putting  on 
board  or  discharging  their  cargoes  or 
connected  therewith  in  any  way  what- 
soever .  .  ."  Section  X,  regulation 
5 :  •'  The  employment  of  a  licensed  pilot 
is  compulson/  on  all  vessels  entering  or 
leaving  the  Docks  or  Baiiins  or  shifting 
therein  ....  but  the  Harbour 
Board  shall  not  be  reeponsi'ble  for  any 
loss,  damage,  or  accident  that  may 
occur  througn  the  aot,  omission,  or  de- 
fault d  any  such  pdlot."  It  is  clear 
that  under  the  letter  of  these  bye-laws 
it  has  been  made  compuUory  for  ves- 
seb  in  the  docks  to  employ  one  of  the 
p£)ote  licensed  by  the  plaintiffs,  and 
the  qucfiition  that  arises  m  this  case  is 
M  to  the  liabtlity  of  a  ship  for  damage 
done  by  it  when  so  in  charge  of  a  pilot, 
when  the  pilot  alone  is  to  olame  there- 
for. By  Aot  8  of  1879,  section  1,  it 
was  enacted  that  in  all  quesiions  re- 
lating to  Mauitime  Shipping  Law  in 
lespMt  of  which  the  Supreme  Court 
has  concurrent  jurisdiction  with  the 
Yice-Adrndraky  Oourt,  the  law  of  this 
Colony  shall  hereafter  be  the  same  as 
the  titm  of  England  in  so  far  as  the 
Law  of  Englaend  shall  not  be  repugnant 
(o  or  inconsistent  with  any  Ordinance, 
Act  of  Parliament,  <^  other  Statute 
having  force  of  law  in  this  Colony.*' 
Now  by  the  Lww  of  England  it  is  clear 
that  when  a  compulsory  pilot  is  in 
charge    oi   a   vessel  the   owner    is   not 

Tl 


liable  for  damage  done  by  his  ship  en- 
tirely through  the  negligeuce  or  de- 
fault of  such  pilot.  That  seemti  to  be 
part  of  the  Common  Law  of  England ; 
but  it  is  placed  beyond  doubt  by  section 
388  of  the  Statute  17  and  18  Vict.,  c. 
104,  which  enacts  thiit  **  No  owner  or 
master  of  any  ship  shaU  be  answerable 
to  any  person  whatever  for  any  loss  or 
damage  occasioned  by  the  fault  or  in- 
capacity of  any  oualined  pilot  acting  in 
chiarge  of  such  ship  within  any  district 
where  the  eniplojrment  oi  such  pilot  is 
compulsory  by  law."  That  was  the 
English  law  in  force  when  our  Act  of 
1879  was  ^ssed,  and  oonseciuently  by 
virtue  of  its  provisions  which  I  nave 
quoted  a  shjp.  while  under  compul- 
sory pilotage  within  the  jurisdiction  of 
this  Court  would  be  aimiiarly  exempt 
from  Liability  unless  there '  be  some 
Statute  in  force  at  the  place  when  the 
dankage  is  done  to  deprive  the  owners 
of  6ucn  ship  of  the  benefits  of  such  ex- 
emption. The  plaintiffs  claim  that  by 
virtue  <^  their  bye-laiw  aibove  quoted 
such  a  change  in  the  law  has  been 
effected  in  the  Docks  and  harbour  of 
Table  Bay  in  the  case  of  any  damage 
done  to  any  property  belonging  to 
themselves.  It  is  a  somewhat  start- 
ling proposition  that  a  bye-law 
can  change  the  general  principles  of  the 
law  of  the  land,  and  the  ouestion  is  dis- 
tinctly raised  in  the  pleadings  as  to 
whether,  if  such  be  the  meaning  of  the 
bye-law  in  so  far  as  the  liability  of  a 
ship  under  compulsory  pilotage  is  con- 
cerned it  is,  quoad  hoc,  intra  or  vltra 
vireff.  It  is  a  well-known  principle,  set- 
tled by  many  cases,  that  bye-laws,  to  be 
valid,  must  not  exceed  the  statutory 
powers  by  which  they  are  authorised, 
and  that  they  must  not  be  in  conflict 
with  the  general  principles  of  law. 
The  statute  under  which  the  plaintiffs 
have  framed  their  bye-laws  gives  them 
the  right  to  make  reasonable  regulations 
for  the  proper  management  of  their 
Docks,  and  for  the  preservation  of  their 
works  from  injury,  and  also  for  the 
proper  control  of  vessels  using  their 
Docks;  but  it  nowhere  gives  them  the 
express  or  implied  ijower  to  alter  the 
law  of  the  land,  and  it  is  quite  clear  that 
they  might  frame  such  regulations  to  at- 
tain such  objects  without  in  any  way 
infringing  upon  or  changing  the  general 
principles  of  our  maritime  shipping  law. 
The  bye- law  in  question  seems  to  me 
more  or  less  declaratory  of  the  common 
law,  and  perfectly  reasonable  if  intend- 
ed to  apply  to  the  ordinary  persons  in 
charge  of  and  enaployed  upon  any  vessel. 
It  is  right  that  ii  damage  is  occasioned 
by  any  of  them  to  the  plaintiffs'  pro- 
perty, the  ship  and  its  owners  should 
be  liable  therefor.  But  the  plaintiffs 
contend  that  the  bye-law  goes  further, 
and  renders^  the  ship  and  owners  liable 
for  the  negligence  or  default  of  a  com- 
pulsory pilot.  For  such  an  interpreta- 
tion of  tne  bye-law,  one  paust  read  into 


im 


"  CAPB  TIMES  '•  LAW  RBP0RT8. 


it  fiomethtng:  subversive  of  the  ezistinfr 
law^  which  is  not  necessarily  coiitainea 
in  lis  terms.  Bui  bye-laws  should  bo 
read,  if  possible,  as  bieing  in  accordance 
with,  and  not  repugnant  to  the  law,  and 
I  am  consequently  clear  thai  this  bye- 
law  waa  not  intended  to  embrace  the 
case  of  damage  occasioned  b^  the  act 
or  default  of  a  compulsory  pilot,  anil  I 
am  also  clearly  of  opinion  that  ^  if  it 
could  ^  be  read  to  bear  such  an  inter- 
iMretaiion,  it  would,  in  such  respect, 
be  ultra  vires  and  invalid.     Such  inter- 

{)retation  as  I  have  given  to  this  bve- 
aw  seems  to  have  the  authority  of  a 
decided  caae  to  support  it — a  oase  to 
which  I  have  not  had  aocess,  but  which 
I  find  quoted  in  Marsden  on  Collisions 
at  Sea  (p.  232,  3rd  Edition),  where  the 
author  eays :  **  "Bj  the  Thames  Conser- 
vancy Act,  1857,  it  is  enacted  that  own- 
ers of  vessels  navigartang  the  Thames 
shall  be  liable  for  damage  to  property 
of  the^  Conservators  caused  by  {wrsons 
belonging  to  or  employed  in  their  ves- 
sels. It  haa  been  held  that  this  Act 
does  not  affect  section  388  of  the  Mer- 
chant Shipping  Act,  1854,  and  that  the 
owners  of  a  vessel  in  the  Tliames  in 
charge  of  a  compulsory  pilot  are  not 
liable  for  damage  done  by  the  fault  of 
the  pilot  to  a  vessel  or  other  property 
belonging  to  the  Conservatom.  {Con- 
servators of  the  River  Thames  v.  Hall— 
3  Mar.  Law,  Cas.  O.S.,  p.  73.).**  If 
this  be  a  correct  summary  of  the  case,  as 
I  have  no  doubt  that  it  is,  it  appears  that 
not  even  a  Statute  containing  a  pro- 
vision in  favour  of  the  Conservators 
oould  in  ithe  opinion  of  Che  Court  re- 
ceive the  interpretation  or  haye  the  force 
which  the  plaintiffs  claim  for  their  bye- 
law,  which  is  practically  to  the  same  ef- 
fect, and  in  pari  materia.  For  these 
reasons  I  am  of  opinion  thapt  tlie  plain- 
tiffs' clase  mu6t  fail,  and  that  there 
should  be  jud^eut  for  the  defendants, 
with  costs.  Since  writing  the  above,  I 
havo  found  the  case  of  the  Conner rators 
of  the  TJmmes  v.  HaV  reported  in  L.R., 
3,  C.P.,  415,  and  though  I  have  not 
time  to  refer  more  fully  to  it,  I  find 
that  it  entirely  covers  the  present  case, 
and  bears  out  the  decision  to  which  this 
Court  has  come. 

[Plaintiff's      Attorneys:       Reid       and 
Nephew.  Defendant's         Attorneys : 

Findlay  and  Tait.] 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Justice  Ma asdobp.  J 


OIBBS  V.  HOGOABD. 


f       1905. 
(Auir.  25th. 

This  was  an  action  in  which  John 
Gibbe  sued  Charles  \Vm.  Hogprard  of 
Observatory,    for   payment    of   £144    Is. 


3d.,  wnth  interest  a  tempore  morae.  for  a 
pumping  apparatus  suppliedf.  Ttie  de- 
fendant in  nis  pica  alleged  that  the  ap- 
paratus was  totally  defective,  and  the 
sum  of  £37  claimed  was  expended  by 
the  plaintiff  in  repairing  the  machinery. 
In  reconvention  defendant  claimed  £60. 

Mr.  McGregor,  with  him  Mr  Lewis, 
was  for  the  plaintiff,  whilst  tlie  defend- 
ant was  in  default. 

John  Henry  Gibbs  produced  his  books, 
showing  the  defendants  receipts  for  the 
goods  supplied. 

Judgment  as  prayed,  with  costs,  was 
granted. 


GENERAL  MOTIONS. 

S0HKKPEB8  V.  FOSTKB. 

Attorney — Lien     on     documents 
entrusted  to  him. 

An  aitorfiey  has  no  lien  for 
costs  on  documents  entrusted  to 
hiniy  unless  he  has  drafted^  or 
done  work  on  those  documetUs. 


This  was  an  application  for  an  order 
compelling  the  respcMident  to  hand  over 
certain  papers,   titfe  deeds,  eta 

The  applicant's  affidavit  atttted  that 
she  was  widow  of  the  late  Johannes 
Scheepers,  of  Oudtshoom,  on  the  19th 
October.  1900.  Uoon  the  death  of  her 
husband  she  placed  scene  of  the  docu- 
ments, papers,  and  title  deeds  connect- 
ed with  the  immovable  estatte  of  the  de- 
ceased in  the  hands  of  the  respondent, 
who  was  an  attorney,  and  resided  at 
Oudtshoom,  as  it  was  incumbent  <mi 
her  to  do  under  the  will  of  the  deceased 
to  enable  her  to  take  out  letters  of 
administration.  She  had  applied  to  him 
for  the  return  of  the  papers,  but  he  re- 
fused t^)  give  them  up. 

The  affidavit  of  James  Alexander  Fos- 
ter stated  that  at  the  time  of  the  death 
of  the  husband  of  applicant  most  of  the 
title  deeds,  etc.,  were  !n  his  hands.  There 
were  considerable  liabilities  due  bv  the 
estate,  and  it  was  witih  great  difficulty 
that  the  estate  was  realised.  The  ap- 
plicant owed  him  £379  ISs.  4d.  in  all. 
and  he  submitted  that  he  was  quite  right 
in  retaining  the  papers  in  question. 

Mr.   Benjamin  moved. 

Mr.  Close  for  respondents 

Mr.  Benjamin  submitted  that  the  re- 
spondent yrafi  not  an  executor,  and  there- 
fore could  lay  no  claim  to  the  docu- 
ments, and  held  no  pledge  for  them. 

Mr.  Close  argued  on  behalf  of  the  re- 
spondent that  an  attorney  was  entitled  to 
his  out-of-pocket  expenses  in  transferring 
deeds,  ,eto.,  besides  receiving  hi^  6s.  8d. 
for  vrriting  each  one. 

Maasdorp,  J.,  said  it  seemed  that  the 
respondent  in  this  case  rendered  certain 
professional  services  to  the  applicant  in 


"CAPE  TIMES"  LAW  REPORTS. 


709 


re«pect  of  the  adminiatration  of  an  eetate 
in  which  she  was  executrix.  He  had 
now  in  his  posaession  certain  documents 
which  oame  into  his  possession  in  his 
professional  capacity,  theee  appeared  to 
DO  the  deeds  of  transfer  of  property  be- 
longing to  this  estate.  He  claimed  to 
retain  these  documents  by  virtue  of  a 
right  of  retention  existing  in  respect  of 
the  debt  due  for  the  work  done  bv  him. 
A  large  number  of  items  of  mdebted- 
neas  had  been  referred  to  which  clearly 
had  nothing  to  do  with  the  administra- 
tion of  the  estate.  Then  there  were 
items  which  were  for  work  done  in  re- 
apect  of  the  general  administration  of  the 
estate,  but  there  was  not  a  single  item 
for  the  drafting  or  execution  of  the  docu- 
ments in  question.  Now,  no  authority 
had  been  cited  for  the  doctrine  that 
such  documents  could  be  retained  for 
work  specially  done  in  respect  of  these 
documents.  He  was  of  opinion  that 
the  respondent  was  not  entitled  to  retain 
these  title  deeds  for  the  work  he  did  for 
the  applicant  in  the  administration  of 
the  estate.  There  had  been  a  statement 
that  in  respect  of  one  ftem  there  was  an 
expressed  arrangement  that  the  docu- 
ments oould  be  retained.  In  considering 
the  whole  of  the  case,  and  the  fact  that 
this  alleged  pledge  was  in  respect  of 
only  one  item,  and  in  respect  of  that 
item  such  an  expressed  pledge  was  de- 
nied, the  Court  arrived  at  the  conclusion 
that  it  had  not  been  proved,  and  under 
the  circumstances^  the  Court  ordered  the 
respondent  to  deliver  up  the  title  deeds 
of  the  property  in  his  possession  and  to 
pay  the  costs  of  the  application* 


£x   parte    THE    GRAND    JUNCTION 
RAILWAY. 

Mr.  Russell  moved  for  leave  to  file  a 
certain   affidavit. 

Mr.  Upington  opposed  the  motion  on 
behalf  of  the  Receiver  (Mr.  E.  R. 
Syfret). 

Mr.  Russell  read  the  affidavit  of  John 
Walker,  managing  nartner  in  the  joint 
venture,  and  who  in  that  capacity  was 
being  sued.  He  stated  on  the  12th 
December,  1904,  the  respondents  pre- 
sented to  the  Court  a  list  of  claims, 
and  on  the  27th  January  the  petitioner 
made  an  affidavit  setting  forth  his  ob- 
jection to  certain  claims.  Before  the 
report  of  tne  respondents  was  confirmed 
the  affidavit  was  sent  to  Cape  Town  to 
be  filed,  but  owing  to  the  applicant 
finding  it  necessary  to  change  his  attor- 
neys m  Cape  Town,  some  time  was 
lost,  and  in  the  interim  the  report  was 
confirmed  by  the  Court.  Petitioner  had 
been  awaiting  an  action  to  be  taken  on 
the  report,  and  consequently  had  de- 
layed in  bringing  this  motion. 

The  affidavit  of  E.  R.  Syfret,  one  of 
the  Receivers  in  the  estate,  stated  that 
ample  time  was  allowed  by  the  Court 
fpf  the  filing  of  the  affidavit  before  the 


report  was  confirmed.  The  report  was 
presented  on  the  23rd  Decenvber,  when 
an  order  was  made  for  it  to  be  allowed 
to  renuiin  open  for  inspection  until  Feb- 
ruary 14.  Copies  of  it  were  also  pub- 
lished, amongst  other  papers,  in  the 
London  *'  Times  '*  and  the  Cape  Town 
papers.  The  affidavit  which  tne  app>li- 
oant  wished  to  file  contained  many  mis- 
leading statements,  which  might  pre- 
judice the  Court  in  othef  cases  now 
proceeding. 

Maasdorp,  J.,  said  the  applicant  in 
this  naatter  movea  to  have  an  affidavit 
filed  in  a  matter  which  had  already 
been  disposed  of  by  order  of  the  Court. 
It  seemed  that  the  Receivers  for  the 
Grand  Junction  Railway  had  brought 
up  their  report  after  making  full 
inquiry,  in  so  far  as  it  Uy  in 
their  power.  The  applicant  now  stat- 
ed he  was  in  possession  of  certain  in- 
formation, which  he  could  have  put 
before  the  Court,  but  was  prevented 
from  doing  bo  owing  to  certain  circum- 
stances that  arose.  If  the  applicant 
wished  to  reopen  the  report  of  the  Re- 
ceivers, he  could  do  so,  and  put  the 
necessary  evidence  before  the  Cburt  for 
so  doing,  but  the  application  in  its  pre- 
sent form  would  have  to  be  refused,  and 
the  applicant  would  have  to  pay  the 
costs. 


CHBIST  V.  CHRIST. 

This  was  an  application  for  an  order 
for  the  personal  attachment  of  the  re- 
spondent, John  Christ,  for  contempt  of 
Court,  by  reason  of  his  failing  and  re- 
fusing to  comply  with  the  terms  of  an 
order  of  Court  of  the  19th  April  last, 
ordering  the  respondent  to  deliver  up 
to  the  applicant  all  her  jewellery  and 
personal  effects. 

The  affidavit  of  Margarita  Elisabeth 
Christ,  the  applicant,  stated  that  on 
the  19th  April  last  she  obtained  a 
decree  of  judicial  separation  against 
the  respondent.  In  terms  of  the  order 
of  Court,  the  respondent  should  have 
delivered  to  her  her  jewellery  and  per- 
sonal belongings.  The  latter  consisfted 
of,  amongHt  other  things,  three  dress- 
lengths,  three  pairs  of  shoes,  one  opera 
cloak,  one  dress-stand,  stockings  and 
handkerchiefs,  a  trinket  sot,  the  jewellery 
consisted  of  a  gold  watch  and  chain, 
bracelet,  brooch,  diamond  ring,  and  pair 
of  ear-rings.  At  the  time  she  left 
home  all  of  these  articles  were  in  good 
condition.  The  respondent  delivered 
up  all  the  jewellery  through  her  at- 
torneys, but  they  were  in  a  much  dam- 
aged state,  and  she  had  to  have  them 
repaired,  at  a  cost  of  £3  or  £4,  and 
she  believed  that  her  husband  inten- 
tionally and  maHcioosly  damaged  game, 
so  as  to  make  them  useless.  Of  her 
personal  belongings,  she  only  received 
the  dress-stana  and  a  few  old  hand- 
kerchiefs,    and   she  believed   that     the 


710 


"CAPE  TIMES"   LAW  REPORTS. 


respondent       maliciously    withheld   the 
other  articles. 

A  supporting  affidavit  was  made  by 
Dortha  Christ)  daughter  of  the  appli- 
cant. 

The  affidavit  of  Herman  Wel- 
ters, watchmaker,  stated  that  he  ex- 
amined the  watch  referred  to  by  appli- 
cant, and  he  came  to  the  conclusion 
that  it  had  been  broken  in  such  a 
manner  as  could  only  be  done  by  some- 
body deliberately  forcing   up  the  works. 

The  affidavit  of  John  Christ  (the  re- 
spondent) stated  that  he  had  handed 
over  to  the  applicant  all  the  personal 
belongings  for  which  she  had  applied 
that  he  was  awaire  of.  The  dress  lengths, 
shoes,  opera  cloak,  stockings,  hand- 
kerchiefs, and  trinket  set  he  had  abso- 
lutely no  knowledge  of.  They  were  not 
in  his  possession,  nor  had  he  any  use 
for  them.  With  regard  to  the  jewel- 
lery :  when  it  was  handed  over,  it  was 
carefully  examined  by  applicant's  at- 
torney, but  no  remark  whatever  was 
made  as  to  its  state.  He  emphatically 
denied  that  he  had  tampered  with  or 
injurcKl  in  any  way  same. 

A  supporting  affidavit  was  filed  by 
Charleys  Christ,  son  of  the  respondent. 

The  replying  affidavit  of  the  appli- 
cant denied  that  the  respondent  had 
handed  up  to  her  all  personal  belong- 
ings. When  she  left  home,  the  re- 
spondent took  possession  of  all  lier 
jewellery,  and  when  she  received  the 
watch,  it  was  in  a  most  damaged  con- 
dition. 

Dr.  Greer  for  the  applicant.  Mr.  Ben- 
jamin for  the  respondent. 

Maasdorp,  J.,  said  that  the  parties 
in  this  case  seemed  to  be  persons  of  some 
considerable  means.  A  judicial  separa- 
tion was  obtained  by  the  wife  against 
the  husband  in  April  last,  and  the  divi- 
sion of  the  property  waa  proceeding. 
At  the  time  that  the  order  was  made 
for  such  division,  the  Court  also  ordered 
the  husband  to  give  up  to  the  wife  cer- 
tain jowellery  and  clothing  which  re- 
mained in  the  house  after  the  wife  left. 
She  now  applied  for  personal  attach- 
ment against  him  for  failing  to  comply 
with  that  order  of  Court.  She  stated 
that  the  jewellery  was  h&nded  up,  but 
that  it  had  been  wilfully  damaged,  and 
that  some  articles  of  clothing  had  been 
retained  altogether.  It  seemed  that 
when  she  left  the  house,  she  must  have 
taken  away  the  bulk  of  her  possessions, 
and  what  she  left  behind  seemed  to 
have  been  a  few  small  pieces  of  jewel- 
lery and  a  few  trifling  articles  of 
clothing,  apparently  of  little  value  com- 
pared with  the  means  of  these  people. 
She  stated  that  the  jewellery  had  been 
delivered  up,  but  in  a  condition  show- 
inflf  that  it  had  been  wilfully  damaged. 
Now.  he  was  not  satisfied  that  it  wrs 
wilfully  damaged.  There  had  been  a 
statement  put  in  by  a  jeweller  that  the 
works  of  tne  watch  seemed  to  have  been 
forced.       That  was  only  the  opinion  of 


the  jeweller,  and  the  Court  could  not 
take  the  mere  opinion  of  the  watch- 
maker as  conclusive  on  thai  point, 
especially  when  they  had  the  denial 
of  the  respondent  that  he  did 
do  so.  Then  they  had  the  state- 
ment of  the  respondent  that  the 
articles  of  clothini;  were  not  in 
tlie  house  at  all.  These  articles  appeared 
to  bo  of  very  trifling  value,  and  her 
mere  statement  that  she  left  these  articles 
behind  had  not  proved  that  the  respon- 
dent had  these  articles  in  his  possession, 
and  wilfully  withheld  them.  In  the 
opinion  of  the  Court,  this  was  an  un- 
necessary application.  It  was  quite  clear 
that  when  the  Court  made  the  order  for 
the  delivery  of  the  jewels  and  clothing 
the  impression  was  that  they  were  arti- 
cles of  great  value.  They  appeared  to 
be  trifles,  and  there  was  no  proof,  to 
his  satisfaction,  that  anything  was  done 
by  the  respondent  to  justify  the  applica- 
tion being  brought  into  court.  The 
application  would  be  refused,  with  costs. 
It  was  a  very  strong  measure  for  a 
wife  to  take,  to  make  an  attempt  to  put 
her  husband  in  gaol. 


APPEAL. 


FOWLBB   V.  JOUBERT. 

Magistrate's  jurisdiction — Judg- 
ment to  pay  debt  by  instal- 
ments. 

This  was  an  appeal  from  the  decieioo 
of  the  Resident  Magistrate  of  Montagu, 
ordering  that  the  oner  of  5s.  in  the  £ 
made  by  the  defendant,  Frederick 
Jacobus  Joubert,  be  paid  at  once,  and 
the  balance  within  one  year  from  date, 
to  carry   interest    at  6  per  cent. 

The  reasons  given  by  the  Magistrate 
for  his  decision  were  as  follows :  *"  I 
deemed  the  offer  of  an  immediate  pay- 
ment of  5s.  in  the  £  and  the  balance 
in  a  year's  time  to  be  a  fair  offer,  in 
view  of  the  circumstances  of  the 
defendant,  which  were  those  of  a 
struggling  farmer,  who  has  been 
only  two  years  on  the  farm,  which 
he  works  on  shares,  and  that  about  six 
of  his  creditors  being  business  firms  and 
others  in  this  village,  had  agreed  to 
these  terms,  the  plaintiff  alone  holding 
out.  The  defendant,  if  judgment  had 
been  given  for  the  full  amount,  would 
have  been  forced  to  surrender,  and  the 
plaintiff,  besides  having  to  wait  for  the 
distribution,  would  finally  not  get  as 
much  as  the  present  judgment  has^  se- 
cured hini.  The  defendant  has  consider- 
able liabilities,  approaching  £400.  and 
depends  on  his  brandy  crop  to  assist  in 
meeting  them,  and  he  is  thus  only  able 
to  promise  payment  of  ttie  balance  in 
a  vear's  time.  The  Court  deems  the 
judgment  to  be  in  the  interests  of  all 
parties,    and       accepted    the    voluntary 


II 


CAPE  TIMES"   LAW  tlEt»ORTS. 


711 


statements  made,  not  deeming  it  neces- 
sary to   oall   for  evidence." 

Mr.  Russell  appeared  for  appellant., 
who  was  plaintiff  in  the  Court  below. 
The  respondent  was  not  represented. 

Mr.  Russell  contended  that  the  Magis- 
trate fthonld  have  called  evidence  be- 
fore making  the  order. 

His  Lordship  said  the  Magistrate 
seemed  to  have  tried  to  do  what  he 
considered  equitable  and  fair,  but  he 
had  no  power  to  do  so.  The  appeal 
would  be  allowed,  and  the  judgment 
would  be  altered  into  judgment  for  the 
plaintiff  for  the  amount  claimed  with 
costs. 


SUPREME  COURl 


FIRST    DIVISION. 


[Beforo  the  Actinpr  Chief  Justice,   the 
Hon.  Sir  John  Buchanan.] 


8MUT6  V.  ACKERIIAN 


\        11W5. 
(Aujr.  28tb. 

It  appeared  froni  the  pleadings  that 
this  was  an  action  for  damages  for 
wrongful  impounding  arising  out  of  an 
action  for  slander  brought  by  the  plain- 
tiff in  the  Supreme  Court  for  £500  dam- 
age, against  the  defendant,  who  claimed 
in  reconvention  £20  damages  for  seizing 
and  impounding  certain  cattle.  The 
plaintiff  withdrew  his  summons  in  the 
Supreme  Court,  and  sued  in  the  Magis- 
trate's Court  for  £20  damages  for  slan- 
der, and  the  Magistrate  refused  to  go 
into  the  case,  while  his  case  was  still 
pending  in  the  Supreme  Court. 

Mr.  Burton  for  plaintiff ;  Mr.  J.  E.  R. 
de  Villiers  for   defendant. 

Nicholaas  Smuts,  dairyman,  at  Malt- 
land,  stated  in  December  last  year  his 
cows  were  impounded  by  the  defendant. 
In  a  conversation  a  Mr.  Blankenberg 
said  that  the  defendant's  cows  had  been 
iiopounded.  Witness  said  it  was  a  very 
good  thing,  and  then  the  defendant 
went  away,  and  impounded  those  be- 
longing to  witness.  The  defendant  tro?if  • 
ed  the  cows  very  badly,  beating  them 
with  a  horse-whip. 

Cross-examined  by  Mr.  De  Villiers: 
The  poundmaster  was  wrong  in  saying 
that  the  cows  had  only  a  few  dust 
marks.  He  had  only  paid  B&.  9d.  for 
the  impounding  of  the  cattle ;  there  was 
no  doctoring  of  the  cows. 

Harry  Sherer,  dairyman,  at  Maitland, 
said  be  heard  the  defendant  say  he  would 


send  the  plaintiff's  cows  to  the  pound, 
because  Smuts  said  it  was  a  good  thing 
the  defendant's  cows  had  been  impounii- 
ed. 

Christoffel  van  Dyk  also  gave  evi- 
dence as  to  the  impounding. 

The  defendant  6aid  the  plaintiff's  cows 
had  frequently  troubled  him,  as  the  boys 
did  not  look  after  them.  He  chased 
them  away  three  times  that  morning 
from  his  property.  He  onlv  gave  two 
or  three  cuts  to  one  cow.  witness  had 
no  spite  against  the  plaintiff,  and  did 
not  drive  his  cows  in  to  get  his  own 
back. 

By  Mr.  Burton :  Witness  was  fined  by 
the  Court  for  assaulting  one  of  the  in- 
spectors. Blankenberg  sent  him  a  chal- 
lenge to  come  and  have  a  fight 

All  the  witnesses  for  the  plaintiff 
were  lying.  The  poundmaster,  whose 
son  was  married  to  witness's  sister, 
would  tell  the  truth  to  the  Court. 

The  Poundmaster  of  Maitland  said 
the  oows  were  not  being  whipped  when 
h'-i  saw  them  approaching  the  pound. 
The  oows  were  in  good  condition,  only 
one  of  the  oattle  having  a  couple  of 
whip  marks.  The  cattle  were  not  vio- 
lently treated.  W'itness  had  occasionally 
to  use  a  whip  to  get  other  people's  cat- 
tle into  the  pounof. 

Other  witnesses  gave  evidence  of  the 
trespass,  and  denied  any  unnecessary 
crueHy  to  the  plaintiff's  cows. 

Buchanan,  A.C.J. :  The  plaintiff, 
Ackerman,  sued  the  defendant  Smuts  in 
this  court  for  defamation  of  character, 
and  £20  damages.  His  declaration  was 
pleaded  to  by  the  defendants,  who  filed 
a  claim  in  reconvention  for  alleged  mal- 
treating and  illegal  impounding  of  cer- 
tain cattle  belonging  to  defendant. 
When  the  case  had  gone  so  far  as  this 
the  plaintiff's  attorney  agreed  to  pay 
the  whole  of  the  defendant's  costs,  and 
ho  wished  to  withdraw  the  case  in  the 
Supreme  Court.  Unfortunately  for  his 
client,  he  did  not  withdraw  the  case,  he 
only  withdrew  the  summons,  and  took 
out  a  fresh  sumons  in  the  Magistrate's 
Court,  and  he  was  non-suited  in  the 
Magistrate's  Court,  on  the  ground  that 
the  same  cause  of  action  was  ponding  in 
the  Supreme  Court.  The  defendant 
Smuts,  who  is  plaintiff  in  reconvention, 
says  he  would  not  have  instituted  any 
action  at  all  but  for  the  action  brought 
by  the  plaintiff,  and  I  must  say  he  w^as 
very  badly  advised  when  the  other 
party  withdrew  his  case  and  paid  the 
costs  in  full  in  insisting  upon  going  on 
in  this  Court.  His  lordship,  after  re- 
viewing the  evidence  as  to  the  impound- 
ing and  the  maltreating  of  the  cattle, 
held  that  there  was  no  damage  suffered 
by  the  defendant  as  to  the  maltreat- 
ment, but  as  to  the  impounding,  accord- 
ing to  the  Pound  Act,  the  plaintiff  was 
liable  to  pay  to  the  owner  all  damages, 
costs  and  charges  arising  out  of  such 
proceedings,  together  with  two  shillings 


712 


"CAPE  TIMES"   LAW  REPORTS. 


for  every  animal  impounded.  The  plain- 
tiff has  paid  Sa.  9d.  to  release  her  cattle 
and  he  is  entitled  to  judgment  in  that 
sum.  together  with  28.  per  head  for  the 
cattle,  making  in  all  ISa.  9d.  Judgment 
will  be  for  the  plaintiff  in  reconvention 
for  18s.  9d.,  with  Magistrate's  Court 
costs. 


[Before  the  Actingr  Chief  Justice  (the 
Hon.  bir  JoHH  BUCHANAN)  and  the 
Hon.  Mr.  Justice  Hopley.J 


CAPE  ELECTRIC  TEAM  CO.  V.  {        1905. 
COLONIAL  OOYEBNMKNT.      |  AU(r.  28th. 

This  was  an  aplication  by  the  Capo 
Electric  Tramway  Co.  to  restrain  the 
Colonial  Government  from  trespassing 
on  the  Sea  Point  line.  A  consewt  paper 
recognising  the  rights  of  the  applicants 
was  made  a  Rule  of  Court. 

Sir  H.  Juta  said  he  had  submitted  the 
following  paper  to  Mr.  Searle :  '*  Thait 
the  apjMioants,  without  prejudice  to 
their  n^hts,  consent  to  the  Government 
taking  immediate  possession  of  the  line 
of  railway,  known  as  the  Sea  Poini  Rail- 
way, and  that  the  compensation  to  be 
paid  to  the  applicants  therefor  be  settled 
Dy  arbitration  in  terms  of  the  Lands  and 
Arbi-tration  Clauses  Act  of  1882,  such 
arbitration  to  be  held  over  pending  an 
action  to  be  brought  for  a  declaration 
that  the  applicants  wore  the  purchasers 
of  the  said  railway  as  a  going  couoern, 
and  are  entitled  to  compensation  upon 
the  basis  of  the  value  of  the  said  rail- 
way as  a  going  concern."  Counsel  said 
his  learned  friend  (Mr.  Searle)  had  sug- 
gested the  insertion  of  the  words :  '*  Un- 
der the  Act  44  of  1905  "  after  *'  and  that 
compensation  to  be  paid."  Counsel  had 
asked  his  learned  friend  not  to  insist 
upon  these  words,  because  that  would 
really  be  determined  by  the  action. 

Mr.  Searle  said  the  Act  of  1906  was 
really  the  only  Act  under  which  these 
proceedings  oould  be  taken.  It  must  be 
clearly  understood  that  this  arbitration 
is  talong  place  under  this  particular  Act. 

[Hopley,  J. :  You  could  not  be 
in  court  only  for  that  Act.  There  is 
no  necessity  for  iiuserting  it  in  this 
paper.  Everyone  will  understand  that 
this  is  the  basis  of  the  whole  thing.] 

Sir  H.  Juta,  on  the  question  of  costs, 
i^ged  that  his  client^  were  entitled  to 
costs,  as  thev  were  forced  into  court  by 
the  untenable  position  taken  up  by  the 
Government,  who  took  up  a  dififcrcnt 
position  in  court  from  4ibe  original  one 
of  refusing  any  compensation. 

Mr.  Searle  said  that  the  proper  pro- 
cedure for  the  other  side  was  to  go  to 
arbitration  under  th^  deed  a<nd  not  to 
apply  for  an  interdict  restraining  the 
Government    from    taking    possession. 

Buchanan,  A.C.J. :  The  Act  44  of  1905 
authorises  the  Government  to  take  over 


a  line  of  railwav  known  as  the  "  Metro- 
politan and  Suburban  Railway "  at  a 
cost  to  be  settled  failing  agreement  by 
arbitration.  Under  the  Arbitration  Act 
of  1882  the  Government,  without  giving 
any  specific  notice  to  the  applicants,  who 
wore  the  owners  of  the  line  and  were 
in  possession,  entered  upon  the  property 
and  took  possession  thereof,  and  the 
Grovernmeut,  under  the  letters  which 
were  written  by  their  attorneys 
and  the  affidavit  filed  by  the  (*oiJimis- 
sioner,  distinctly  repudiated  and  denied 
the  title  of  the  applicants  to  the  pro- 
perty. They  were  forced  into  court,  as 
the  Government  ignored  them  entirely. 
Counsel  for  the  Government  admits 
that  this  position  was  not  tenable,  but 
wishes  to  raise  the  question  whether  or 
not  the  applicants,  though  owners  of  the 
railway  line,  could  exercise  running 
powers  over  it.  This  and  the  other 
points  raised  will  have  to  be  considered 
when  the  amount  to  be  paid  as  compen- 
sation for  expropriation  is  under  con- 
sideration. As  the  matter  stood  when 
the  application  was  brought  into  Court, 
the  Government  denied  that  the  appli- 
cants were  owners  of  the  line  or  had  any 
right  thereto.  The  applicants  have 
shown  that  they  are  the  concessionaires 
of  the  previous  owners,  and  are  in  pos- 
session, and  this  possession  is  most  ma- 
terial to  the  claim  of  the  applicants.  I 
tl'ink  the  Court  would  have  granted  an 
interdict  restraining  the  Government  if 
they  had  not  admitted  the  rights  of  the 
owners  .  Fortunately,  however,  the 
parties  have  come  to  an  agreement,  the 
Government  to  take  possession  of  this 
property  in  terms  of  a  consent  paper  put 
m,  and  in  this  consent  paper  the  ques- 
tion of  the  extent  of  ownership  will 
have  to  be  decided  in  an  action  to  be 
tried  hereafter.  In  tbaking  this  consent 
paper  an  order  of  Court,  the  Court  w^ill 
do  so,  with  costs,  as  it  is  clear  but  for 
the  action  of  the  Government  this  appli- 
cation never  would  have  been  made. 

Hopley,  J.,  coucurred. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  MAAaDOBP.] 


WK0T  AND  ELCOATE  V.  LON-  /        1905. 

DON   AB8U BANGS  CO.  (  Aug.  28th. 

This  was  an  action  by  the  assignee 
in  the  assigned  estate  of  West  ana  £1- 
coate  to  recover  the  amount  of  an  in- 
surance policy. 

The  amount  involved  was  £1,579, 
the  value  of  certHtin  merchandise 
and  stock  in  a  store  occupied  by  West 
and  Elooate  at  Salt  River,  destroyed  by 
fire  in  January  la£t. 


"OAPE  TtBlES"  LAW  ttBt'OttTS. 


7i3 


Tile  plaiDtiff.  Garl  Friedrich  \V.  Beck- 
er,    in      his     declaration,     stated      he 
was      the      duly      appointed      aasiffnee 
of      the      assigned      estate    of   Robert 
Turnbull       West    and      Bertram  Wea- 
therly    Elooate.    tradinsr    as    the    firm 
of  West  and  Elooate.    On  the  30th  De- 
cem-ber    last  the    finn   entered    into    a 
contract  of  insurance    against   fire   with 
the   defendant,  by  which   the  defendant 
agreed  that  in  consideration  of  the  pay- 
ment of  the  sum  of  £10  8s.,  which  the 
firm  duly    paid    to  the    defendant,   the 
laitter  would,  if  a  fire  occurred  and  the 
Btock  was  destroyed,  have  to  pay  £1,500. 
At  that  date  the  goods  insured  were  the 
property  of  the  firm.    On  or  about  13th 
January   the  premises  were   burnt,   and 
the  goods  were  totally  destroyed  bv  fire. 
saTe  as  to  certain  goods  of  tne  value  of 
£21,  and  at  that  Skte  the  contract  was 
of  full  force  and  effect.     The  defendant 
firm  had    refused    to    pay   the    amount, 
wherefore  the   plaintiff  claimed   £1,679, 
with  interact  a  tempore  morae  and  costs. 

The  defendant  company,  in  their  plea, 
admitted  insuring  the  property,  but  stat- 
ed that  in  the  proposal  form  for  the 
policy  of  insurance,  which  was  written 
out  by  the  agent  of  the  defendant  com- 
pany at  the  request  and  dictation  of 
West,  the  said  West  and  Elcoate  repre- 
sented that  the  risk  had  never  been  de- 
clined by  any  office  of  insurance.  This 
atatement  was  wholly  incorrect  and  un- 
true, inasmuch  as  the  said  West  and 
Elcoate  had  made  proposals  for  insur- 
ance to  several  ot;her  companies  with 
regard  to  ^e  stock  and  firtures,  but  the 
companies  had  declined  to  accept  the 
same  or  to  insure  the  stock  or  fixtures. 
By  reason  of  the  said  misrepresentation 
the  policy  of  insurance  effected  with  the 
defendant  company  and  sued  upon  was 
null  and  void.  The  defendant  company 
would  not  have  accepted  the  risk  had 
not  the  material  facts  been  concealed. 
The  defendant  prayed  thai  the  case  be 
dismissed  with  costs. 

Sir  H.  JuU,  K.C.  (with  him  Mr.  Ben- 
jamin), was  for  the  plaintiffs,  and  Mr. 
W.  M.  Searle,  K.C.  (with  him  Mr. 
Swift),  was  for  the  defendant  company. 

Robert  Turnbull  West,  a  partner  in  the 
assigned  estate  of  West  and  Elcoate, 
saia  that  the  estate  had  been  assigned 
to  a  Mr.  Carl  Becker  since  a  Bre  had 
oocumed  at  the  premises  in  January  last. 
An  agent  of  the  defendant  company 
vMitecT  the  premises  in  December  last, 
and  was  shown  all  over  the  place.  Wit- 
ness told  him  that  he  had  tried  to  get 
the  place  insured,  and  ethowed  him 
letters  from  other  companies  that  had 
declined  the  risk  owing  to  lack  of  fire 
brigades.  One  company  had  refused 
witness's  proposal  because  the  billiard 
room  was  Kept  open  late,  end  went  on 
to^  say  that  some  other  con>pany  less 
critically  disposed  might  accept  the  risk, 
and  if  wetness  desired  any  assistance  in 
Hhe  maitter  he  was  to  let  the  company 
know.   Some  d  ihe  proposak  were  made 


verbally  and  others  in  writing.  Witnces 
could  not  have  shown  them  to  the  agent, 
because  t^hey  were  not  in  the  possession 
of  the  firm.  Witness  asked  the  agent 
what  he  thought  of  the  letters  he  had 
seen,  and  the  agent  replied  that  the 
companies  were  apparently  afraid  to 
accept  beoaiue  of  the  number  of  fires 
there  had  been  in  the  suburbs.  Witnesb 
told  the  agent  that  he  (witness)  con- 
aidered  the  letters  to  be  refusals,  and 
told  him  that  it  was  due  to  the  bond- 
holders, Messrs.  J.  H.  Sturk  and  Co., 
pressing  the  firm,  that  it  was  so  anxious 
to  insure.  The  agent  said  that  he  would 
fix  the  firm  up,  and,  producing  a  pro- 
posal form,  proceedea  to  fill  it  up. 
witness  dictated  nothing  to  the  agent, 
but  gave  him  a  balance-aheet  for  per- 
usal. Witness  was  scrviing  several  cus- 
tomers whilst  the  agent  filled  in  the 
form.  The  agent  had  wanted  to  make 
the  policy  £2,000.  and  witness  thought 
that  £1,200  would  be  sufficient,  out 
after  a  while  thev  split  the  difference 
and  made  it  £1,600. 

Cross-exan>ined :  Witness  did  not  read 
the  proposal  form  before  he  signed  it. 
He  had  filled  in  no  forms  before,  neither 
had  he  signed  any.  Hie  partner  had. 
The  day  previously  Elcoate  made  a  pro- 
posal to  the  Commercial  Companv.  Wit- 
ness never  satisfied  himself  that  the 
particulars  stated  in  the  proposal  form 
were  correct.  Witness  haa  not  the  time 
to  read  it.  >yitne8s  called  at  the 
'*  Union.''  He  did  not  see  the  proposal 
form. 

I  put  it  to  yoa  that  you  'irged  Mr. 
Shawe  to  take  up  this  insurance? — I 
asked  him  to  do  so. 

All  the  propotuil  forms  state  that  you 
had  never  been  declined  by  any  other 
company? — I  didn't  know  it,  but  I  do 
now. 

Elcoate  says  that  this  was  inadvertent- 
ly put  in? — ^I  know  nothing  about  't. 

'There  was  considerable  difficulty  about 
getting  this  insurance? — Yes. 

Can  you  explain  why  in  all  the  pro- 
posal forms  put  in  it  is  stated  that  you 
were  not  refused  by  any  other  company? 
— I  didn't  fill  them  in ;  Elcoate  did. 

You  had  a  conversation  with  Mr. 
Mowitt  after  the  fire,  and  told  him  that 
Elcoate  had  not  tried  other  companies 
and  been  declined? — I  did  not 

Mr.  Searle  explained  that  the  fire  took 
place  a  few  davs  after  the  insurance  was 
effected.  In  further  cross-examination, 
witness  admitted  telling  Mr.  Jowitt  that 
ho  had  insured  in  another  company  be- 
fore he  took  Elcoate  in  as  partner. 

You  told  him  that  vou  allowed  the 
policy  to  lapse  ? — I  don  t  remember  do- 
inff  so. 

He  also  savs  you  told  him  that  the 
company  would  not  renew? — I  may  have 
done  so^ 

Did  you  mention  anything  about  mak- 
ing a  proposal  to  the  Commercial  ?— I  be- 
lieve I  told  him  that  Mr.  Elooate  had 
been  there. 


714 


*'CAt>B  TtMes**  LAW  RSfOftTB. 


In  re-examinatioD,  witness  said  ibe 
actual  refusal  from  the  Ck>mmercial  did 
not  come  until  the  day  before  the  fire. 

Bertram  W.  Elooate  was  next  exam- 
ined. He  stated  he  was  in  partnership 
with  the  lai-t  witness.  They  were  anxious 
to  effect  an  insuranco  on  their  property. 
He  remembered  the  a^ent  from  the  de- 
fendant company  waitmg  on  him  with 
regard  to  an  insurance.  The  agent  was 
shown  over  the  place  by  Mr.  West.  West 
asked  witness  for  the  correspondence 
from  the  other  insurance  companies. 
Witness  got  it  for  him,  and  handed  it  to 
the  agent  W'itness  took  no  further  part 
in  the  insurance  of  the  property. 

Cross-examined:  Witness  knew  Mr. 
Wilson,  the  manager  of  the  "  New  Zea- 
land." They  were  both  Australians.  In 
September,  witness  applied  to  Mr.  Wil- 
son for  an  increase  to  £2,000  on  his  pro- 
perty. Wilson  gave  what  he  called  a 
**  cover,"  and  went  out  to  inspect  the 
place.  The  policy  was  cancel  led  by  Mr. 
Wilson  in  October.  They  remained  un- 
insured. Witness  did  not  remember  Mr. 
WMlson  telling  him  that  if  he  tried  to  in- 
sure again  he  would  be  asked  if  he  was 
declined  or  refueled  by  another  company, 
and  he  would  have  to  explain  what  had 
been  done. 

Didn't  he  tell  you  to  refer  them  to 
him,  and  he  would  tell  them  the  reasons 
for  cancelling,  and  that  it  wa«  not  be- 
cause he  had  anything  against  you? — 
No. 

Mr.  Wilson  goes  on  to  say  that  you 
met  him  and  told  him  that  the  defend- 
ant company  refused  to  pay,  and  that 
vou  had  inadvertently  stated  that  you 
Kad  not  been  refused  by  another  com- 
pany 7 — No. 

Didn't  he  tell  you  that  you  had  done 
exactly  what  he  told  you  not  to? — No. 

You  signed  several  of  these  proposal 
forms  ? — Yes. 

But  you  state  in  them  that  you  had 
not  been  refused  by  any  other  company? 
— Neither  had  I. 

But  the  New  2iealaiid  refused  you? — 
I  didn't  take  it  as  a  refusal. 

But  Mr.  Wilson  wrote  to  you  cancel- 
ling the  in/sur&iice.  Do  you  mean  to  say 
that  was  not  a  refusal.  Do  you  contend 
that  you  were  justified  in  your  answer 
to  the  inquiries? — Yes. 

Surely,  you  knew  it  was  an  important 
thing  to  sta/te  that  you  had  been  refus- 
ed?—No. 

But  you  are  acquainted  with  the  gen- 
eral tenor  of  a  proposal  form? — Yes. 

So  that  you  know  one  of  the  questions 
would  be  as  to  whether  you  were  de- 
clined or  refused? — I  don't  know  that. 

It  is  a  question  sometimes  put? — Yes. 

And  knowing  that  do  you  tell  us  that 
you  did  not  read  this  proposal  through? 
—Yes. 

Mr.  Bird,  of  the  Commercial,  says  he 
asked  you  every  question  carefully? — I 
don't  remember. 

And  you  may  have  said  that  you  were 
not  previously  refused? — Yes. 


Is  your  position  that  you  attach  no 
importance  to  the  question  ?— Yea.  I 
think  it  did  not  matter  much. 

You  saw  Mr.  Mowitt  after  the  fire?— 
Yes. 

Did  West  tell  him  in  your  presence 
that  he  had  never  been  declined  ? — No. 

James  Block  stated  that  in  December 
last  he  was  in  the  employment  of  the 
plaintiffs.  He  remembered  the  agent 
Deing  shown  round  the  shop  by  West. 
Witness  heard  W^est  telling  Elcoate  to 
bring  the  correspondence  from  the  other 
companies.     He  did  so. 

Cross-examined :  Witness  took  no  part 
i.i  tho  insurance  business.  A  good  many 
agents  went  out  to  the  business  about 
that  time. 

Sir  H.  Juta  closed  his  case. 

John  Harold  Cllover,  examined  for  the 
defence,  stated  he  had  been  about  6^ 
years  in  the  employment  of  the  defend- 
ant company.  In  consequence  of  what 
a  friend  of  his  told  him,  witness  went 
out  to  see  W^est  and  Elcoate.  They  went 
over  the  premises  together.  West  put 
a  value  on  the  articles.  After 
they  had  been  over  the  premises, 
witness  brought  out  the  proposal 
form,  and  began  to  fill  it  up.  West 
W86  called  away,  and  witness  filled  jp 
some  of  the  qjyiestions  in  his  absence, 
and  left  others  which  he  could  not  fill 
until  he  returned.  Amongst  the  ques- 
tions witness  asked  him  were  ii  he 
had  been  declined  or  refused  by  any 
other  company,  and  he  replied,  "  No.  ' 
It  wa«  erroneous  to  state  that  West  ask- 
ed Elcoate  to  hand  witness  the  corre- 
spondence  from  other  offices.  Witness 
made  the  usual  inquiries  for  refermices, 
and  as  they  were  satisfactory  the  risk 
was  taken.  v\  itness  did  not  recollect 
having  seen  Elcoate  on  that  occasion. 

Crobs-examined :  The  rt^ferences  must 
have  been  good,  because  you  quoted 
lower  than  other  offices?  I  quoted  the 
usual  rates — 12s.  6d.  per  cent. 

How  are  you  paid? — By  salary  and 
commission. 

Did  you  discuss  nothing  with  West 
as  to  other  companies  being  afraid  to 
take  on  insurance  because  €>t  suburbao 
fires? — ^No. 

Wetrt  has  assigned  his  estate,  and  haa 
no  interest  in  this  case,  and  can  you 
say  why  he  should  perjure  himself?  You 
know  you  will   suffer? — No. 

[Maasdorp,  J. :  Do  you  know  bow  you 
will  suffer?] 

The  company  I  work  for  would  not 
give  me  the  "  sack "  for  an  insurance 
like  this.  If  I  t.ook  the  risk,  knowing 
that  other  companies  had  refused  them, 
I  would  deserve  to  be  dismissed  on  the 
spot. 

Srr  H.  Juta:  Then  there  is  no  truth 
in  West's  statement  about  thia  oonvei- 
sation? — As  far  as  I  am  concerned,  it  it 
all  fabrication. 

[Maasdorp,  J.:  The  policy  haa  not 
been  put  in  yet?J 


II 


CAt>E  TIMEB"  LAW  KEPOftTS. 


715 


Mr.  Seark:  The  fire  ooourred  before 
the  poiicj  WM  iwned,  but  in  the  mean- 
time wee  covered. 

Vernon  G.  Mowitt,  fire  MsesBor,  stuted 
thai  at  the  inetance  of  the  defendant 
company  he  went  out  to  see  the  pre- 
mises. On  January  14  witneas  saw  West 
and  Elcoaie  in  Jus  office.  Witness  took 
a  note  of  wiiat  wae  said.  West  said  they 
had  not  received  the  policy,  but  they 
had  a  receipt,  wiuch  tney  had  eent  to 
their  solicitors.  They  proposed  to  the 
London  Ineunanoe  Company  on  the 
30th  December,  and  they  paid  the 
premium  on  th»t  insurance.  West  said 
thai  ui>  to  February,  1904  he  owned 
the  business,  but  then  took  Elcoaie  into 
partnership.  He  was  then  insured  in 
some  company,  but  the  policy  lapsed 
in  April.  He  was  not  sure  whether  he 
or  the  company  cancelled  the  policy. 
West  said  he  had  never  been  declined 
by  a  company.  Elcoate  said  he  had 
called  at  the  Central  Company,  but  did 
not  fill  up  a  proposal  form,  as  that 
company  informed  him  they  were  not 
taking  suburban  risksl  In  consequence 
of  that  and  what  witness  saw  m  the 
cash-books,  he  made  certain  inquiries. 

In  that  examination  witness  said  it 
was  the  ubual  thing  to  ask  a  person 
who  was  claiming  insurance  if  they  had 
been  refused  by  any  other  company. 
Witness  know  the  plaint iftt  had  been 
refused.  His  object  was  to  find  out 
how  many  companies  they  had  been 
to. 

Harry  Benson,  in  the  employ  of  Bullen 
Bros.,  the  agent  of  the  defendant  com- 
pany, said  that  in  1904  he  was  in 
entire  charge  of  the  fire  department. 
He  went  through  West  and  Elcoate^s 
proposal  W'ith  the  agent,  and  if  he  had 
known  tha*  they  had  been  declined  by 
obher  compani^  he  would  have  refused 
their  application.  Witness  isbued  a  pro 
tection  receipt. 

William  W.  Bird,  of  the  Commercial 
Union  Company,  said  tltat  West  and 
Elcoaie  had  made  a  proposal  to  bis  com- 
pany prior  to  the  date  of  the  interview 
between  West  and  the  insurance  agent. 

Francis  A^lsop,  <A  Searight  and  Co., 
agents  for  the  Northern  Assurance  Com- 
pany, £aid  that  in  December  last  *  pro- 
posal wa«  made  to  the  Northern  Com- 
pany by  the  firm,  and  witness  went 
to  Salt  River  and  saw  the  place.  On 
December  15  witness  wrote  that  the 
Northern  could  not  consider  the  risk 
unless  the  firm  guaranteed  to  close  by 
11  p.m.  The  firm  replied  that  they 
would  close  at  that  hour,  but  the  North- 
ern verbally  refused  to  entertain  the 
proposal. 

lliomas  Shaw,  of  the  Union  Company, 
told  how  West  and  Elcoate  had  made  a 
proposal  to  his  company,  and  had  been 
refused. 

Bernard  Walshe,  insurance  broker, 
stated  he  filled  up  one  of  the  proposals 
— the  one  to  the  Union  Company  for 
Elcoate.  and  took  down  his  replies. 


1 


Alfred  George  McLeod,  branch  man- 
ager of  the  Central  Company,  stated  a 
proposal  to  insure  the  premises  in  ques- 
tion was  taken  to  his  office.  W^itness 
went  out  and  saw  them,  but  he  did  not 
think  a  policy  on  it  would  be  available. 

[MaasGorp^  J. :  I  don't  see  what  that 
has  to  do  with  the  case.] 

Mr.  Searle:  I  wish  to  show  that  a 
number  of  managers,  and  others  went 
out  to  see  the  place,  and  declined  the 
risk. 

Robert  Ruston,  acting  branch  man- 
ager of  the  Commercial  Union  Com- 
pany, said  West  and  Elcoate  made  a 
proposal  for  insurance,  but  his  firm  de- 
clined to  accept  it. 

Sir  H.  Juta:  That  is  quite  irrelevant 
to  this  caae,  as  the  letter  was  written 
after  the  insurance  was  accepted  by  the 
defendant  company. 

The  evidence  of  Frank  W.  Wilson, 
manager  of  the  New  Zealand  Company, 
taken  on  c«>mmi8sion.  was  read.  He 
stated  his  company  had  the  place  insur- 
ed. On  an  application  from  Wee^  and 
Elcoate  to  increase  the  amount  of  the 
insurance,  witness  refused  to  do  so.  as 
some  of  the  goods  were  under  bonds, 
and  it  was  not  the  custom  of  his  com- 
pany to  insure  such  goods.  The  msur- 
ance  was  cancelled. 

Mr.  8earle  closed  his  case. 

C-ounsel  for  the  plaintiff  havmg  uecu 
heard   in  argument, 

Maasdorp,  J.,  said  that  there  wan  no 
need  for  him  to  hear  Mr.  Searle,  and  in 
giving  judgment  said  that  the  plaintiff 
had  sued  the  defendant  for  the  recovery 
of  a  sum  of  money  due  under  what  was 
d^«cribed  in  the  declaration  aa  a  con- 
tract of  insurance  against  fire,  and  in 
which  contract  it  was  stated  that  the  de- 
fendant agreed  to  pay  a  sum  of  £1.600 
in  the  case  of  any  injury  to  the  plain- 
tiff's stock-in-trade  by  fire,  in  consider- 
sAion  of  the  payment  of  a  premium  of 
£10  8t>.  He  was  convinced  that  the 
question  as  to  whether  proposals  by  West 
and  Elcoate  had  been  refused  by  other 
companies  was  a  material  point,  and  he 
believed  Mr.  Glover  when  he  said  that 
had  he  known  that  the  plaintiffs  had 
been  refused,  he  would  not  have  accept- 
ed their  proposal.  It  was  a  material 
point  upon  which  the  defendant  should 
nave  been  informed,  and  the  uon-dis- 
clofrure  of  it  rendered  the  action  one  of 
misrepresentation.  With  regard  to  the 
point  raised  that  the  question  a^  to  the 
refusal  of  the  risk  by  any  other  office 
did  not  strike  them  as  material.  If  the 
Court  believed  Mr.  Wilson,  then  West 
and  Elcoate  were  wrong  in  saying  so, 
because  Mr.  Wilson,  in  his  evi<&nce, 
stated  that  at  the  time  when  be  can- 
celled the  policy,  he  told  them  that  they 
^liould  state  the  circuuMtancCft,  becauM 
if  they  did  not  it  might  put  them  m  an 
awkward  position.  It  wa«  oleaily 
brouf^ht  to  their  knowledge  that  their 
position  would  be  a  difficuH  one  to  get 
out  of,  because  it  was  a  matter  of  groat 


716 


«< 


CAPE  TtBCSS"  LAW  ftSPC^tt. 


impoii«noe  to  give  the  oorreot  mforma- 
tioir.  However,  a  number  of  other  pro- 
poAals  had  been  put  before  the  (Jourt, 
and  it  was  found  that  after  the  cancel- 
lation by  the  New  Zealand  Company, 
they  made  proposals  in  which  it  was 
clearly  their  dutv  to  state  that  this  risk 
had  previously  been  refused,  and  on 
three  or  four  occasions  they  made  the 
positive  statement  that  that  risk  had  not 
been  rcfuM^d.  Now  these  statements 
were  false,  and  they  were  false  to  the 
knowledge  of  West  and  Elcoate,  and 
there  was  no  evidence  that  they  were 
milled  by  any  agent  of  the  company. 
They  made  these  statements  after  they 
had  been  warned  that  the  statement 
would  be  a  matter  of  some  importance. 
It  seemed  that  after  the  New  Zicaland 
Company  had  cancelled  their  policy  the 
partneiB  were  very  anxious  to  get  an- 
other Insurance  of  the  place,  and  Elcoate 
must  have  been  aware  of  what  West 
did,  and  West  must  have  been  aware  of 
what  Elcoate  did.  In  that  case  the  Court 
was  not  willing  to  accept  their  state- 
ments. Both  of  the  partners  must  have 
Ijeeu  aware  that  on  several  occasions  the 
risk  was  refused  by  other  companies, 
and  if  the  Court  accepted  that  view  in 
the  present  case  they  must  arrive  at  the 
conclusion  that  the  partners  made  false 
£rtatenicnt3  on  several  occasions.  The 
Court  was  driven  to  the  conclusion 
that  in  other  respects  the  partners  had 
stated  what  was  not  true.  Mr.  Mowitt 
stated  that  when  he  spoke  to  them  they 
deliberately  made  the  statement  that 
their  offer  had  never  been  declined.  If 
this  statement  stood  alone,  it  might  not 
be  of  much  importance,  but  Mr.  Wilson 
gave  his  statement,  ana  here  again  the 
Court  was  prepared  to  accept  his  state- 
ment :  and  then,  again,  they  had  the 
written  evidence  of  documents  signed  by 
cither  West  (»  Elcoate.  The  conclusion 
arrived  at  was  that  they  had  made 
statements  that  were  not  correct.  Then, 
if  their  statements  were  brought  face  to 
face  with  that  of  Mr.  Glover,  the  Court 
was  forced  to  the  same  conclusion.  If 
Mr.  Glover  had  had  before  him  that 
correspondence,  he  must  have  come  to 
the  conclusion  that  there  had  been  a  re- 
fusal. It  was  impossible  to  construe 
that  correspondence  otherwise  than  as  a 
refusal.  The  partners  could  not  conceal 
themselves  behind  that  correspondence, 
l)ecause  there  was  a  good  deal  more. 
However,  if  Mr.  Glover  had  seen  that 
correspondence,  he  must  have  come  to 
the  conclusion  that  there  had  been  a 
refusal,  and  it  was  impossible  for  the 
(.*ourt  to  understand  why,  under  these 
cirrumstances,  he  should  have  put  a  false 
statement  into  the  mouth  of  W^est  with 
regard  to  this  material  inquiry.  It  very 
often  happened  that  an  agent  got  a 
small  commission  in  those  matters,  and 
it  might  be  said  that  he  got  a  small 
inducement,  but  the  question  was,  would 
Glover  consider  this?  One  had  to  in- 
quire into  the  partners*   previous  trans- 


actions in  matters  of  this  kind.  The 
Court  was  forced  to  the  conclusion  that 
tlieir  evidence  could  not  be  accepte<L 
He  found  that  the  representation  was 
made,  and  it  was  material  that  it  voided 
the  contract.  Judgment  would  be  given 
for  the  defendants  with  costa 

[Plaintiff's  Attorneys:  Moore  and 
Son;  Defendant's  Attorney  :s  Syfret^ 
Godlonton   and   Low.] 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


BEX    V.     UEYNRS.    UATHEWf        1905. 

AND  CO.  i  An  '.  28tih. 

Chemist  and  druggist — Greneral 
dealer — Licence — Acts  15  of 
1877  and  38  of  1887. 

A  licence  to  deal  as  a  chemist 
and  druggist  does  not  under 
Act  38  of  1887  include  the 
right  to  deal  in  any  articles 
fH)t  directly  connected  mith  the 
business  "a«  such^ 
Semble  :  A  chemist  and  drug- 
gist may  under  his  licence  sell 
photographic  ^'^  films  "  or  other 
articles  to  the  preparatiofi  of 
which  a  chemical  process  is 
essentiid. 


This  was  an  appeal  brought  by  John 
Alfred  Mathew,  Alfred  Harfield  Matbew 
and  Frank  Carleton  Mathew,  trading  as 
Messrs.  Heynes,  Mathew  and  Co.,  of 
Cape  Town,  against  a  conviction  of^the 
Acting  ^Resident  Magistrate  of  Cape 
Town,  for  trading  in  a  general  dealer's 
business  without  taking  out  the  neces- 
sary licence  as  required  by  the  Act  38 
of  1887.  Mr.  Russell  was  for  the  appli- 
cants, and  Mr.  Nightingale  appeared  for 
the  Crown.  The  appellants  had  so. v.  a 
photographic  film  in  contravention  of 
the  Act,  and  were  fined  Is. 

Mr.  Russell  contended  that  the  ap- 
|)cllants  were  entitled  to  sell  any  article 
included  in  a  retail  shopkeeper's  licence 
under  the  Act  of  1877,  and  that  the 
subsequent  Act  of  1877  did  not  repeal 
that  power,  and  the  fact  that  retail 
6hopkee|)erB'  lioenoes  did  not  now  exist 
did  not  prevent  the  chemists  from  sell- 
ing such  goods. 

Buchanan.  A.C.J. ,  said  that  if  Mr. 
Russoll's  contention  was  sound,  it  meant 
that  a  chemist  could  sell  anything  that 
A  retail  shopkeeper  could  sdl  before 
1887,  such  as  tea,  sugar,  coffee,  iron- 
mongery, etc. 

Mr.  Russell  said  the  chemist  paid 
nearly  double  the  lioenoe  of  a  general 
dealer. 


"CA1>E  T1MEB'»  LAW  REPORTS. 


717 


Buchanan,  A.C.J.,  pointed  out  that 
the  chemists  could  hardly  claim  a  pre- 
scriptive right  to  sell  these  goods. 

Mr.  Russell  :  Unfortunately  not,  my 
lord.  Counsel,  proceeding,  said  it  was 
quite  evident  that  for  eighteen  years 
the  construction  now  attempted  had 
never  been  put  upon  this  Act. 

[Buchanan,  A.C.J.  :  I  could  see  a 
great  deal  of  force  in  your  argument 
if  you  limit  yourself  to  the  film,  which 
is  a  chemical  production,  but  in  the  case 
of  i^aying  cards  and  tobacco  there  is  a 
very  great  distinction,  and  you  want  to 
go  as  far  as  that.] 

Mr.  Russell  :  Oh,  yes  ;  we  want  to  go 
further  than  the  film. 

[Buchanan,  A.C.J.  :  He  bad  a 
chemist'^  and  druggist's  licence,  and  be- 
fore 1887  he  had  oil  the  privileges  of  a 
retail  shopkeeper's  licence,  but  that 
retail  licence  has  now  been  taken  away 
from  him.] 

Mr.  Russell  contended  that  a  chemist 
never  required  the  retoil  licence.  Sec- 
tion 4  gave  him  aH  the  powers  without 
t^ing  out  a  general  dealer's  licence — it 
gave  him  all  the  powers  he  had  under 
the  Act  of  1877,  and  he  submitted  the 
defence  set  up  was  a  perfectly  good  one, 
and  that  the  conviction  was  wrong. 

Mr.  Nightingale,  quoting  other  li- 
cences, contended  if  a  chemist  was  not 
confined  to  his  business  *'  as  such "  a 
butcher  could  trade  as  a  baker  and  a 
baker  as  an  ostrich  feather  dealer.  It 
was  perfectly  clear  that  the  legitimate 
business  of  tho  chemist  and  druggist 
was  connected  either  intimately  with 
the  science  of  chemistry  or  ^  with  the 
science  of  healing  as  in  nistoric  times. 

Mr.  RusselK  replying  to  the  historic 
meaning  relied  on  by  his  learned  friend, 
said  if  that  interpretation  was  to  be  put 
on  the  trade,  then  a  chemist  might 
practise  as  a  medical  man^  and  he  would 
also  be  entitled  to  practise  as  a  "  bar- 
ber." 

[Buchanan,  A.C.J. :  He  can  practise  as 
a  barber  at  mesent  if  he  likes.] 

Mr.  Russell  having  been  heard  further 
in  argument, 

Buchanan,  A.C.J.  :By  Act  15  of  1877, 
Section  4,  the  licence  of  a  chemist  or 
druggist  covered  as  well  all  dealings  of 
a  retail  shop  dealer  ;  so  that  a  chemist 
or  druggist  could  sell  anything  which  a 
ret^l  shopkeeper  could  sell.  In  1887  the 
Legislature  altered  the  law  by  abolish- 
ing the  retail  shopkeeper's  licence  and 
substituting  therefor  a  licence  called  a 
general  dealer's  ilioenoe.  Act  38  of  1887, 
Section  4,  exempts  persons  licensed  to 
carry  on  certain  trades  and  occupations 
from  the  necessity  of  taking  out  a 
general  dealer's  licence  for  the  purpose 
of  such  trades  or  occupations.  This  sec- 
tion enacts,  inter  aliaj  that  no  one  li- 
censed as  an  apothecary,  chemist  or 
druggist,  as  such,  shall  be  bound  or  re 
auired  to  take  out  a  licence  as  a  general 
dealer."    It  is  contended,  however,  that 


the  privilege  of  retail  trading  is  still  con- 
tinued to  chemists  or  druggists.  I  do 
not  think  that  was  the  intention  of  the 
Legislature.  No  doubt  this  mattes'  has 
been  complicated  by  the  fact  that  the 
Act  of  1877  has  not  been  specifically  re- 
pealed. But  this  Act  of  1887  repeals  in 
law  anything  inconsistent  therewith.  The 
retail  shopkeeper's  licence  is  no  longer 
in  existence,  and  I  fail  to  see  how  a 
chemist  or  druggist  can  claim  to  carry 
on  such  a  business  an4  to  have  the 
privileges  of  a  licence  which  no  longer 
can  be  granted.  Under  the  Act  of  1887 
the  chemist  is  allowed  to  deal  as  such 
without  having  taken  out  a  general 
dealer's  licence.  I  think,  therefore,  that 
the  provisions  of  the  Act  were  intended 
to  mean  that  a  chemist  does  not  re- 
quire a  general  dealer's  licence  to  sell 
goods  connected  with  his  business  as  a 
chemist  or  druggist.  In  this  case,  had 
the  contention  ben  confined  to  the  sell- 
ing of  films  for  photographic  amuiratus, 
they  might  fairly  have  been  held  to 
come  within  the  scope  of  a  chemist's 
business.  But  the  claim  set  up  is  to  sell 
anything  which  retail  shopkeepers  could 
Ecll  under  the  old  Act.  If  the  case  had 
been  confined  to  the  film.  I  think  the 
conviction  might  probably  have  been 
quashed,  but  as  the  claim  is  t^  sell 
goods  not  connected  with  a  chemist's 
business  the  conviction  must  be  con- 
firmed and  the  appeal  dismissed. 

[Appellaint's  Attorney©:   Van  Zyl  and 
Buissinne.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maasdobp.] 


APPEALS. 


1905. 
Aug.  29th. 


RBX  y.  MABTIN  AND  0THBB8.  | 

Native  reserve  —  Ejectment  — 
Criminal  proceedings  —  Act 
37  of  1884. 

The  appellants^  EuropeanHy  had 
been  ejected  from  a  certain 
wUive  reserve  on  a  Magistrate'^ 
order  f/rattted  against  them 
after  criminal  proceedings  had 
been   taken.      Thei'e    was    no 


718 


f« 


CAt»B  TtMEB'*  LAW  ftEPOftTS. 


evidence  thai  any  natives  were 
living  on  ihetie  lands. 

Held,  tlwi  as  the  place  kos 
not  a  native  location  in  terms 
ofActS7  of  1884 J  the  appei- 
latUs  irere  lutt  liahlcy  either 
ciriUtf  or  criminttUy^  and  that 
the  proceedings  taken  against 
them  wei'e  irregular  and  inu^t 
be  fjHHuhed, 


This  was  &u  »pP^l  ^y  llcndrik  Mar- 
tin, Wyaand  Martin,  Oert  Martin,  Al- 
bert Lyons,  and  Gert  Vermaak,  from 
a  decision  of  the  Resident  Magistrate 
of  Mafeking  on  the  29th  Juno  last,  or- 
dering them  to  remove  from  the  Molopo 
native  reserve  or    location. 

The  appeal  wa^s  based  on  the  follow- 
ing gruund«:  (1)  That  the  native  re- 
serves in  Bech  nana  land  are  not  Crown 
lands  in  terms  of  the  Native  Location 
Act  3/  of  1884;  ^2)  that  ihe  appellants 
were  wrongfully  and  unlanvfuUy  ordered 
to  remove  from  the  recerve  under  sec- 
tion 20  of  Act  37  of  1884 ;  and  (3)  that 
the  conviction  was  contrary  to  law. 

The  Court  below  held  that  proclama- 
tion 62  B.B.,  which  dealt  with  the  con- 
trol of  the  native  reserves  in  Bcchuana- 
land,  having  been  repealed  by  proclama- 
tion 220  B.B.,  and  on  the  promulgation 
of  the  Annexation  Act  of  1895,  under 
section  2,  the  Native  Location  Act  of  37 
of  1884  came  into  force,  and  that  the 
accused,  being  n<it  such  per^one  as  were 
described  in  bection  7  of  that  Act,  were 
unlawfully  on  the  Crown  reeerro  or 
location,  and  must  remove  therefrom  on 
receipt  of  written  instructions  from  the 
Magistrate  to  tiuit  effect. 

Counsel  having  been  hoard  in  argu- 
ment, 

Maasdorp,  J.,  said  it  seemed  to  him 
that  the  procedure  in  this  case  was  ab- 
solutely the  wrong  procedure  adopt- 
ed for  the  purpose  intended  oy 
the  Act.  This  proceeding  was 
in  the  form  of  a  criminal  prose- 
cution, and  it  was  attempted  to  ex- 
clude certain  people  from  wliat  was  call- 
ed the  native  location  under  terms  of 
section  20  of  Act  37  of  1884.  These 
proceedings  were  quite  irregular,  but  no 
exception  was  taken  to  tnat,  because 
the  parties  wished  to  have  a  certain 
point  W'hich  was  raised  decided  by  that 
Court,  and  as  the  appeal  was  before  the 
Court,  the  mere  form  of  the  proceed- 
ings might  perhaps  not  have  prevented 
the  Court  from  deciding  the  pomt  which 
was  raised,  which  was  whether  the  ac- 
cused in  this  case  were  found  on  a 
native  location  on  Crown  lands  as  de- 
scribed b]r  the  Act.  A  natWe  location 
was  described  as  a  number  of  huts  or 
dwellings  occupied  by  native  races, 
the  names  of  which  were  set  forth. 
Now,      there      was     no     evidence     in 


this  case  of  the  «xiitenoe  of  any 
native  location  at  the  place  where 
these  people  resided,  and  consequently 
they  could  not  be  said  to  have  been  in 
a  native  location  suoh  as  that  in  respect 
uf  which  provision  was  made  for  the 
purposes  oi'  eiectment,  consequently 
there  was  no  evidence  to  prove  that  they 
became  liable  to  these  proceeding,  whe- 
ther civil  or  criminal.  If  it  had  been  a 
criminal  proceeding,  the  conviction 
would  have  had  to  be  quashed,  bat 
there  was  no  conviction  to  quash,  and 
the  only  thing  the  Ck>urt  could  do 
would  be  to  quash  the  proceedings, 
which  were  irregular  in  form,  and  in 
rcKpeot  of  which  there  was  nothing  to 
prove  that  any  offence  had  been  com- 
mitted. The  Court  would  hold  that 
these  peoi)lo  were  not  liable  to  pro- 
ceedings, either  civil  or  criminal,  under 
this  section,  because  they  were  not  living 
in  a  native  location  such  as  was  describ- 
ed under  section  7.  It  was  stated,  bow- 
ever,  that  that  was  not  the  point  which 
the  parties  wished  the  Court  to  decide, 
but  that  there  was  a  larger  question 
opened,  upon  which  they  wished  for  the 
ruling  of  ihe  Court,  and  that  larger 
(luei^tion  was  whether  the  native  reserve 
was  Crown  land  for  the  purpose  of 
making  a  location  of  suoh  reserve.  The 
parties  in  this  case  could  not  raise  such 
a  point,  because  they  were  not  inter- 
ested in  the  docigion.  The  decision  in 
this  case  must  proceed  on  the  faces 
which  were  directly  before  the  Coun. 
The  accused  appeared  to  be  European 
farmere  livinsr  on  a  native  reserve,  and 
the  Court  dia  not  see  what  interest  they 
could  possibly  have  in  having  a  decisioii 
of  the  CJourt  as  to  whether  a  native  re- 
serve was  Crown  land  or  not,  and  th'» 
Court  did  not  decide  mere  hypothetical 
matters  in  which  'the  parties  appearia/ 
boforo  the  Court  were  not  interested! 
This  was  a  criminal  prooeedure.  and 
the  Court  could  only  say  the  proceedings 
must  be  quashed. 


REX  V.  FEBRBIRA. 

This  was  an  appeal  brought  by 
Mamiel  Ferricra  against  a  sentence  of 
the  Assistant  Resident  Magistrate  of 
C'ape  Town  sentencing  him  to  fourteen 
days'  imprisonment  for  the  theft  of  four 
bottles  of  whiskey. 

The  appeal  was  on  ihe  grounds  that 
the  eviaenoe  given  for  the  pro>ocution 
did  not  disclose  any  criminal  intent  or 
conduct  on  the  part  of  accused,  that  the 
conviction  was  not  supported  by  the  evi- 
dence, and  that  seeing  there  existed  a 
reasonable  doubt  as  to  the  guilt  of  ac- 
cu«ied,  he  should  have  been  g^iven  the 
bcneBt  thereof,  that  the  evidence  ad- 
duced by  the  defence  preponderated  in 
clearness,  precision,  and  probability  over 
the  evidence  giyen  by  the  prosecution, 
and  that  illegal  or  incompetent  evidence 
was  admitted. 


(f 


CAPE  TIMSS"  LAW  BEP0BT8. 


719 


From  the  eyidenoe  given  in  the  Court 
below,  it  appeared  that  accused  was  en- 
gaged by  one  D*Abreu  as  a  handyman 
and  bottle-washer  at  his  hotel.  D'Abrcu 
and  accused  quarrelled  on  July  21,  when 
the  fonner  turned  him  out  without 
wages  or  notice.  Accused  then  went  to 
bis  agent  to  take  proceedings  to  recover 
his  wages,  and  after  thJa  he  was  arrest- 
ed. The  only  bottle  found  on  the  pre- 
mises  owned  by  accused  was  one  which 
was  there  when  he  took  the  premises 
over  from  D'Abreu. 

Dr.  Greer  appeared  for  appellant,  and 
Mr.  XMightingale  for  the  Crown. 

Counsel  having  been  heard. 

Maasdorp,  J.,  said  the  evidence  given 
by  the  prosecution  in  this  case  was  to 
the  effect  that  four  bottles  of  whiskey 
bearing  a  special  mark  disappeared 
from  the  place  of  business  of  the  plain- 
tiff, and  that  one  of  them  was 
subsequently  found  at  a  place  which 
was  m  the  occupation  of  the  ac- 
cluding  this  lyarticujar  bottle.  The  evi- 
dence sbowea  that  cei^n  bottles  were 
brought  by  the  accuaed  to  this  place,  and 
that  at  the  time  that  he  delivered  it  he 
said  he  had  taken  it  away  from  his  mas- 
tei*  without  his  master's  knowledge.  Now 
this  master  appeared  to  be  the  com- 
plainant, and  when  prisoner  was  taxed 
with  the  theft  he  was  said  to  have  ad- 
mitted that  he  had  taken  the  whiskey 
without  actual]};  admitting  that  he  had 
stolen  it  If  this  evidence  was  believed 
by  the  Magistrate,  then  there  was  no 
reason  why  the  Court  should  interfere. 
Thore  were  no  circumstances  in  the  case 
upon  which  the  Court  could  come  to  the 
conclusion  that  the  Magistrate  was 
wrong  in  his  finding,  and  under  the  cir- 
cumstances the  appeal  would  be  dis- 
missed. 


DAVIDSON  V.  SIVBRTSEN. 


,    f       IJKIT). 
^-   ]  Aug.  29th. 

Joinder  of  parties — Magistrate's 
jurisdiction — Married  ^oman 
— Public  trader. 

P.,  while  wider  the  age  of 
majority  awl  unmarried,  leaned 
certain  premises  for  the  fntr- 
pose  of  her  hyiHineHa.  She 
after trardjt  married  /w  com- 
mnnity  ami  irati  tnuul  for  rent 
nmoHniing  to  £30.  Exception 
tran  iiiken  (I)  th<it  the  amount 
7ras  heyoml  the  3fagiHtrate*H 
junadictioHy  (2)  that  D.U  hun- 
hattd  and  not  D.  nhmdd  hare 
been  ffued. 

Held,  (/;  That  the  leant  being 
a  liqtud  document^  the  mim 
ctftimed  thereon  teas  within  the 
juriedictiofi,    (2)  That  D.  mis 


rightly  sued  for  a  debt  eon- 
tracl4d  ichile  she  tvas  a  imblic 
trader. 


This  was  an  appeal  against  a  judg- 
ment of  the  R.M.  of  the  Cape,  who  had 
found  for  the  respondent  (plaintiff  in  the 
Court  below),  in  an  action  for  debt.  £30, 
representing  rent  due.  against  Mrs. 
Davidson  and  Miss  Robertson.  Mr. 
Alexander  was  for  the  appellant,  and 
Mr.  J.  E.  R.  de  Villiers  for  the  respon- 
dent. 

Mr.  Alexander  urged  that  Mrs.  David- 
son, when  he  signed  tlie  lease  of  a 
shop,  belonging  to  the  respondent,  was 
a  minor.  On  March  15,  she  and  her 
friend,  by  mutual  agreement,  gave  up 
the  drapery  business  they  were  running ; 
and.  in  September,  1904,  she  married  one 
Davidson  m  community  of  property.  Not 
till  after  she  was  married  was  she  sum- 
moned, and  he  (counsel)  would  submit 
that  her  husband,  and  not  she,  ought  to 
have  been  summoned,  as  she  was  not  a 
public  trader;  and  that,  if  the  action  in 
tho  Court  below  had  been  for  damages 
to  the  extent  of  £30,  the  R.M.  had  had 
no  right  to  deal  with  it.  Tha  wife  had 
no  control  over  the  property  held  in 
community ;  and  he  submitted  that  the 
Court  would  never  give  judgment  against 
her  to  take  effect  on  property  with 
which  she  had  nothing  to  do.  Coun- 
sel quoted  extensively  from  previous  de- 
ci.sior)s  of  the  Court,  in  support  of  his 
argument.  Proceeding,  he  said  that  on 
page  247  of  Van  Zyl  (enlarged  edition)  it 
was  laid  down  that,  where^  judgment  for 
debt  had  been  given  against  a  women, 
and  she  subsequently  married,  in  defauh 
of  satisfaction  of  the  judgment,  an  order 
for  imprisonment  could  be  made  agaim^t 
the  husband,  in  respect  of  this  ante> 
nuptial  liability,  without  his  being  called 
upon  to  show  oause  against  the  imprison- 
ment. He  (Mr.  Alexander)  took  it,  of 
course,  that  this  applied  to  marriage  in 
community  of  property  only,  and  should 
be  road  as  such.  His  Lordship  would 
see  that  tlie  Magistrate,  in  his  decision, 
did  not  deal  at  all  with  the  legal  aspects 
of  the  case.  There  was  no  attem{>t  in 
Voet,  nor  any  of  the  other  authorities, 
to  hold  a  wonuin  liable  for  an  ante- 
nuptial liability,  when  she  was  subse- 
ouently  married  in  communitv,  and  had. 
■tnepcfore.  no  control  over  the  adminis- 
tration of  the  property,  except  where  the 
woman  had  been  a  public  trader.  In 
these  circumstances,  he  submitted  that 
the  Magistrate's  judgment  was  not  a 
correct  one. 

Mr.  De  Villiers  contended  that  a  wife 
married  in  community  of  property  could 
be  sued.  It  was  recognised  that  one 
could  sue,  on  the  wife's  torts,  the  wife, 
assisted  by  the  husband:  and  the  ques- 
tion for  the  Court  to  decide  in  this  case 
was  if  the  point  involved  was  to  be  re- 
garded as  anatagous  to  a  post-nuptial 
tort  or  post-nuptial  contract, 


720 


If 


CAPE  TIMES"   LAW  REPORTS. 


Mr.  Alexander,  in  reply,  said  that  the 
contentions  set  up  by  his  learned  fricmd 
did  not  affect   his  argument. 

Maasdorp,  J. :    The  matter  is  now  be- 
fore the   (  ourt  on  appeal      against   the 
ruling  of  the  Resident  Magistrate  of  the 
rajx",  upon  exceptions  taken  in  the  Court 
below.       Hie   first   is,    that   the  amount 
claimed  was  beyond  the  jurisdiction     of 
the  Magistrate.     The  amount  claimed  is 
£48,   and   it  ia  claimed   upon   a  written 
lease,      which      clearly     expresses      the 
amounts  payable  and    the   times     when 
they  are  to  be  paid.     I  am   of  opinion 
that  it  is  a  claim  for  rent,  and  is     upon 
a   liquid      document,    and    clearly   tails 
within  the  jurisdiction  oi  a  Magistrate. 
Then,  there  is  a  further  exception  taken : 
that  the  wife  should  not  have  been  sued 
assisted  by  the  husband  as  she  has  been, 
but   that   the    husband   himself      should 
have  been  sued.    This,  in  its  nature,  is  a 
technical  exception;  but,  if  it  is  a  good 
exception,  and  borne    out  by  the  prac- 
tice of  the  Court,  the  Court  would  now 
have  to  hold  thiU;   the  present  form     of 
procedure   is   erroneous.      I   cannot   say 
that  any   of  the  authorities    ,that  have 
been  cited  are  directly  in   point  in  this 
case,  and  I  do  not  find  that  this  matter, 
as  it  now   stands,   has  been  clearly  and 
distinctly    dealt,  with.     It   appears   that, 
under   certain       circumstances,    for    the 
debts  of  a  wife  before  marriage  the  hus- 
band only  can   be  sued,  because,     after 
marriage,  all  debts  and  assets  come  into 
community.         But    there    is   something 
special  in  the  nature  of  this  case.      Ex- 
ception   is   made    to   the   rule   in    cases 
where  a  married  woman  is  a  trader,  and, 
in  her  case,  she  is  allowed  to   be  sued 
personally  for  debts   contracted  by   her- 
self   in   respect  of    her  trade;  and  in  a 
suit  against  her,  it  is  only  necessary  that 
she  should  be    assisted  by  her  husband. 
Now,  it  seems  to  me  that  in  such  a  case, 
if  the  wife  had  ceased   to  be  a      public 
trader,  she  could  still  be  sued  in  respect 
of   transactions     which  she  had   entered 
into      whilst    a   trader,    notwithstanding 
the  fact  that  she     could  no  longer     be 
described    as  a  public  trader.       In    this 
case,  the  defendant  was  a  public  trader 
before  she  married,  and,  in  my  opinion, 
in   respect  of   debts  contracted   for  that 
business,  she  would  stand  in     the  same 
position  as  a  married   woman    who  had 
dealt    as  a  public  trader  after  marriage. 
She    could,   consequently,      be    sued    for 
matters  which  related  to  her   trade     by 
those  who  had     ^iven    her  credit  in  re- 
spect of  that  business.    It  appears   that, 
in  this  case,  the  house  was  hired  by  her- 
self and  partner  to  carry  on  business  in, 
and  the  debt  was  contracted   by  her  in 
respect  of  rent  due  for   the  premises  so 
hired.    On  the  whole,  I  am  inclined     to 
think  that,  in  such  a  case,  she  must    be 
treated    as    a    married    woman,    who    is 
sued  by  those  who  dealt  with  her  ae    a 
public  trader  in   matters   of  such   trade, 
and  that  the  form  was  rightly  adopted 
of  suing  her  personally,  duly  assisted  by 


her  husband.  And,  under,  the  circnm- 
stanoes,  I  think  the  Magistrate  was  right 
in  over-ruling  that  exception.  It  nas 
been  mentioned  that  she  was  a  minor, 
but  the  Court  cannot  go  inte  that  ques- 
tion now,  because  minority,  in  itself,  is 
not  an  excuse  for  the  payment  of  debta 
due,  but  it  ma]^  be  taken  advantage 
of  as  an  exception.  In  this  case  the 
defendant  did  not  set  up  the  question 
of  minority  in  the  Magistrate's  Court. 
With  respect  to  the  fixtures,  the  Magis- 
trate seemed  to  have  overlooked  the 
fact  that  thev  should  be  dealt  with,  but 
the  Court  will  not  deal  with  the  matter. 
If  judgment  were  given,  the  respondent 
would  be  able  to  seize  them  in  execu- 
tion.   The  appeal  is  dismissed  with  costs. 

[Appellant's  Attorney:  H.  Hirsch- 
berg;  Respondent's  Attoirneys:  Herold 
and  Gie.] 


REX  V.  CARN  AND  OTHERS  |  AugTmh 

Act  36  of  1902,  Sec.  16. 

Ufider  Sec,  16  of  Act  36  of 
1902^  any  pervms  who  use  any 
hot^ae  or  place  for  the  purpone 
of  betting  may  he  convicted. 

This  was  an  appeal  on  behalf  of  Is- 
rael Cam,  Alexander  Jacobs,  George 
Wolstenholme  Smith,  and  Hyman  Kruy- 
er  (*'  Trilby  ").  local  bookmakers,  from  a 
sentence  of  the  Resident  Magistrate, 
Cape  Town,  fining  them  £40  each,  or  the 
alternative  of  one  month's  imprisonment, 
with  hard  labour,  for  contravening  sec- 
tion 16  of  Act  36  of  1902. 

The  evidence  taken  before  the  Magis- 
trate was  read,  after  which  counsel  were 
heard  in  argument. 

Mr.  J.  T.  Molteno  appeared  for  the 
appellants,  and  Mr.  Nightingale  for  the 
Crown. 

Mr.     Molteno   said    he   believed     this 
was  the    first   time    that  an  interpreta- 
tion    came     up    for     the    decision     of 
the     Supreme     Court     of      the      clause 
under    which    these    men  were  charged 
— the       16th       clause       of       the       Act 
of     1902.       There    was    a     decision    in 
the   middle    of    the    year  dealing    with 
section  6  of  the  same  Act,  which  dealt 
with    gaming   houses,    whilst   part  3   of 
the    Act    dealt   entirely    with    beitting- 
houses.     To  put   the  matter  shortly,  a 
great  number  of  books  were  put  in  be- 
fore  the    magistnate,  consisting   of   the 
constitution  of  the  club,  the  articles  and 
lisite  of   the  committee,    and    the   rules, 
and  it  w<3s  clearly  recognised  there  that 
there   was   no    need    to    further    define 
what   TattersaU's  Club  was.     It  had  n 
liquor  licence,  and  aleo  a  club   licence 
Now,    in   this    case    the    contention    of 
the  appellants  was  that  under  this  sec- 
tion  they   should  not   have  been   sued, 
and  that  the  proper  parties  to  be  sued 


'•CAPE  TIMES"  LAW  REPORTS. 


721 


were  tlie  ownera  or  the  tenants  of  th^e 
premiflos.  Under  the  eeotion  the  pro- 
per pereoDB  to  be  sued  were  not  in- 
diviaual  persons  who  were  niembers  of 
the  club,  but  those  who  govern- 
ed Tabtorsall's  Club.  All  through  the 
Aot  it  woul^  be  seen  that  a  distinction 
ytma  snade  between  the  people  who 
owned  or  kept  or  ran  either  a  betting 
or  a  gaming  nouse,  and  the  frequenters 
of  such  houses.  If  the  Court  would 
look  at  part  2,  section  4,  it  would  be 
seen  that  it  was  said  that  it  shall  be 
unlawful  to  keep  or  frequent  any  gam- 
ing house  in  tho  Colony  or  on  territorial 
waters,  and  under  section  12  it  was  laid 
down  that  it  was  unlawful  to  keep  or 
frequent  any  house  or  place  for  betting 
within  the  Colony  or  territorial  waters. 
Now,  under  part  2  of  the  Act,  there 
had  been  a  case  in  which  three  per- 
sons were  charged  under  the  sixth  sec- 
tion with  ganung,  and  they  were  all 
convicted  and  fined  £100  by  the  Resi- 
dent Magistrate  of  Gape  Town.  Their 
caoe  came  up  for  appeal,  cmd  was  heard 
in  the  Supreme  Court  on  the  3rd  July, 
it  was  the  case  of  Sex  v.  Ah  Foo 
(15  C.T.R.,  520).  The  Acting  Chief 
Justice,  in  giving  judgmenL  was 
reported  in  the  *' Cape  Timee" 
as  saying  that  the  two  appellants  based 
their  ax)peal  upon  the  groimd  that  they 
-were  not  the  owners  or  kee^pers  of  the 
house^  but  were  merely  frequenters.  The 
question  turned  upon  the  oonotruotion 
to  be  placed  upon  section  3  of  what  was 
commonly  called  the  Morality  Act.  This 
section  made  the  owner  or  Keeper  of  a 
gambling  house  or  brothel  include  the 
owner  of  a  house,  who  was  cognisant 
^  the  uses  to  which  the  property  was 
put,  and  the  tenant,  or  jAndlord,  or 
lodger,  or  any  person  employed  in  any 
capacity  other  than  that  of  a  menial  or 
domestic  servant.  Now  the  two  appel- 
lants were  neither  owners,  lodgers,  nor 
tenants  of  this  house.  They  were  there 
playing  a  certain  game,  and  on  the  evi- 
dence oefore  the  Court,  he  (the  Acting 
Chief  Justice)  thought  it  would  bo  diffi- 
cult to  hold  thait  they  were  anything 
more  than  players  frequenting  tho 
house.  He  thought  the  section  must  be 
taken  to  mean  that  persons  so  convicted 
must  be  either  owners  or  persons  who 
assisted  in  running  the  house  for  the 
benefit  of  the  owner.  There  was  no  proof 
that  these  two  were  more  than  frei)uent- 
ers,  or  that  they  could  be  included  un- 
der the  title  of  owner  or  keeper.  It  was 
quite  consistent  with  the  evidence  to  sav 
tiiaft  they  were  only  frequenters,  and 
he  thought  the  Magistrate  had  erred  in 
convicting  them  as  owners  or  keepers, 
especially  where  it  was  so  conclusively 
proved  who  was  the  keeper  and  owner 
of  the  house — the  texkant,  who  had  been 
punished.  The  appeal  should  therefore 
be  aHowed,  and  the  conviction  against 
the  two  apfpellants  quashed.  The  six- 
teenth section  of  the  Aot  stated  that 
whosoever  opened,   kept^   or  used    any 


house  or  place  for  any  of  the  purposes 
mentioned  in  the  fifteenth  section,  or 
I  knowingly  and  wilfully  being  the  owner, 
!  tenant,  occupier,  or  lodger,  permitted 
tho  ciainie  to  be  opened,  kept,  or  used 
for  such  purposes,  or  had  the  oaro  or 
management  of  any  such  place  was  li- 
able to  a  fine  not  exceeding  £200.  An 
owner  or  occupier  was  defined  in  the 
interpretation  clause  as  a  pereon  who 
was  cognisant  of  the  purposes  for  which 
or  uses  to  which  his  property  was  being 
used  or  put,  and  also  a  tenant,  occupier, 
lodger,  mai]Ager.  banker,  deialer, 
croupier,  secretary,  clerk,  messenger,  or 
any  person  employed  in  any  house  or 
a  person  employed  in  a  place  other  than 
a  menial  or  domestic  capacity.  His  con- 
tention was  that  these  bookmakers, 
who  were  members  of  TatteraaH's 
Club,  were  like  every  m^nber  of  a  club, 
only  frequenting  a  club.  T^Mse  men 
were  there  frequenting  the  club,  and  it 
was  not  denied  that  bets  were  made,  and 
it  was  contended  that  'the  proper  persons 
to  be  sued  were  not  the  individual  mem- 
bers of  the  club,  but  the  pensons  who 
governed  or  oon'trolled  the  club— the 
committee.  If  the  Crown  had  wished 
to  get  at  this  Tattersall's  Club  the  pro- 
per persons  to  be  sued  were  the  owners 
of  7b,  Longmarket-street,  or  if  the  own- 
ers had  sub-let  the  premises  to  anybody 
else,  who  had  lot  them  to  TattersalFs, 
then  the  sub-lessee.  He  contended  that 
the  appellants  should  not  have  been  con- 
victed, and  he  did  not  think  the  Liegisla- 
ture  intended  that  a  fine  of  £200  should 
be  imposed  under  these  circumstances. 
The  only  betting  that  was  legal  was  pro- 
vided for  under  section  21,  which  hold 
that  the  only  betting  that  was  legal  by 
bookmakers  was  betting  on  a  racecourse 
on  the  races  on  which  were  run  in  ac- 
cordance with  the  rules  and  regulations 
of  the  Jockey  Club  of  South  Africa.  Un- 
der that  section  they  could  only  bet  upon 
races  which  were  being  run  on  the  par- 
ticular day  they  were  there.  For  in- 
stance, it  would  be  illegal  for  a  book- 
maker to  stand  up  at  Kenil worth  Race- 
course and  bet  on  a  race  that  was  being 
run  in  England  or  Kimberley,  or  else 
where.  He  was  only  protected  if  betting 
on  a  race  run  at  the  meeting  at  which 
he  was  present,  and  then  only  if  he  had 
the  consent  of  the  authorities  to  stand 
up.  Counsel  did  not  for  a  moment  con- 
tend that  these  persons  were  acting 
legally,  but  under  this  section  the  pro- 
per persons  to  be  sued  were  not  the  in- 
dividual members  of  the  club,  but  the 
body  that  governed  the  club.  It  was 
put  in  at  the  Magistrate's  Court  as  evi- 
dence that  there  were  400  members  of 
this  club.  The  police,  if  they  had  wish- 
ed, could  have  taken  their  choice.  They 
could  have  run  in  the  committer  of  the 
club  by  means  of  the  president  and  exe- 
cutive, or  the  owners  of  tho  premises, 
but  the  section  of  the  Act  never  intended 
that  the  individual  members  of  the  club 
should  be   brought  up.     For   those   rea- 


782 


'CAPS  TIMK8"  LAW  BEPOBT& 


•ons  be  submilted  that  the  oooviclion 
was  wrong,  just  as  it  wu  wroti^  in  the 
ease  where  tliey  were  dealing  with  gam- 
iiig-liouse«  ill  the  case  of  Mex  \.  Ah  Foo, 
and  for  a  like  reason  he  submitted 
that  the  conviction  should  be  quashed. 
Of  course,  it  remained  open  to  the  Crown 
if  any  illegal  practices  were  carried  on 
at  Tattersairs  to  prevent  the  breaking 
of  the  law  by  taking  proceedings  against 
the  governin^^  body,  and  not  coming 
down  on  private  members,  who  were 
not  responsible  for  the  management  of 
the  club. 

Mr.  Nig[htingale  6aid  he  thought  his 
learned  friend  was  not  quite  correct  in 
his  information  about  the  case  of  Ah 
Foo.  He  thought  it  was  necessary  to  see 
how  the  charge  against  iheae  men  differ- 
e:l  from  the  charge  in  the  present  ease. 
In  that  case  the  circumstances  were  that 
the  police  made  a  raid  on  a  gaming- 
house and  arrested  everybody  there.  It 
was  found  thai  only  the  owners  and 
keepers  could  be  charged  under  the  par- 
ticular section  on  which  they  were  charg- 
ed, and  the  frequenters  under  another 
section.  Now.  in  the  section  under 
which  the  men  in  the  present  case  were 
charged,  the  wording  was  diflferent.  The 
charge-sheet  said  nothing  about  opening 
or  keeping  a  betting  place.  The  charge 
•gainst  the  accused  was  that  they  did 
wrongfully  and  unlawfully  use  a  certain 
place,  vir..  TattersalPs  Club,  for  pur- 
poses which  were  illegal.  His  learned 
friend  might  bo  correct  in  saying  that 
the.  committee  of  Tattersall's  Club  might 
bo  prosecuted,  but  the  Court  were  not 
entering  into  that  point. 

[Maasdorp,  J. :  But  thi^  club  is  not 
supposed  to  be  kept  as  a  gaming-houae.] 

Mr.  Nightingale:  Oh,  no;  but  if  the 
committee  allow  this  place  to  be  used  for 
betting  they  can  be  prosecuted. 

Continuing,  counsel  contended  thai 
this  particular  prosecution  was  exactly 
such  a  case  as  the  English  Act  was 
intended  to  meet,  but  there  was  a  slight 
difference  between  the  English  and  Colo- 
nial Acta  in  that  they  had  not  taken  over 
the  preamble  of  the  English  Act,  which 
read :  "  Whereas  a  kind  of  gaming  ha^ 
of  late  sprung  up  tending  to  the  injury 
and  demoralisation  of  improvident  per- 
sons by  the  opening  of  places  called  bet- 
ting-houses or  offices,  and  the  receiving 
of  money  in  advance  by  the  owners  or 
occupiers  of  such  houses  or  offices,  or  by 
other  persons  acting  on  their  behalf  on 
their  promises  to  pay  money  on  events  of 
honM  races  and  the  like  contingencies." 
It  was  quite  clear  that  the  English  Act 
specified  charges.  For  instance,  under 
the  English  Act.  if  betting  trK>k  place  in 
a  public-house  it  was  not  the  publican 
who  was  charged,  but  the  bookmakers 
who  made  the  bet.  The  point  with 
which  the  Court  was  dealing  was  this. 
A  number  of  bookmakers  were  members 
of  Tattersairs  Club,  and  apparently 
one  of  the  objects  of  that 
membership      was      contravention      of 


this  Act  Instead  of  standing  about  the 
streets  for  a  siuHlar  purpose,  they  had 
their  desks  and  their  notice  boards,  and 
carried  out  betting  transactions  with 
outsiders  inside  the  club.  That  was  the 
sort  of  betting  that  this  Act  was  passed 
to  put  a  stop  to  Undoubtedlv,  if  one 
read  the  preamble  of  the  English  Act, 
they  would  find  that  it  was  to  preveut 
outside  betting.  The  betting  complained 
of  in  the  present  case  was  really  outside 
betting,  because  none  of  the  men  who 
risked  their  monev  on  the  occasion  of 
the  prosecution  had  anything  to  do  with 
Tattersairs  Club.  The  bookmakers  did 
not  deny  that  they  habitually  bet  with 
outsiders.  Under  these  circumstances 
the  case  of  Ah  Foo  had  nothing  to  do 
with  this  case. 

Maasdorp,  J.,  said  section  15  was 
rather  an  awkward  section.  Supposing 
two  people  bet  in  a  room,  they,  under 
that  section,  clearly  nsed  that  place  for 
betting.    Thai  was  rather  a  long  jump. 

Mr.  Nighlingale  said  he  thought  that 
arose  from  the  transcript  of  the  E«n^lish 
Act,  which  had  not  been  transcnbed 
verbatim.  The  English  Act  held  that 
every  house,  room,  office,  or  place  open 
for  the  purpose  of  betting  shall  be 
taken  to  be  a  gaming  house  within  the 
meaning  of  another  Act.  The  Act  of 
1902  really  incorporated  two  English 
Acts.  It  incorporated  the  English  Act 
of  17  and  18  Victoria  and  15  and  16 
Victoria,  and  apparently  the  Act  of 
1902  fd-iowed  the  wording  of  the  English 
Act,  wJiich  really  onlv  defined  what  a 
betting  house  was.  If  the  preamble  of 
the  Engli^  Act  was  adopted,  it  would 
be  macw  quite  clear  that  this  outside 
betting  was  the  sort  that  should  be  put 
a  stop  to.  His  learned  friend  had  as- 
sumed that  the  people  were  charged 
with  keeping  ana  opening  a  house, 
whereas  they^  were  only  charged  with 
wrongfully  using  the  place  for  betting. 

Mr.  Molteno:  The  whole  thing  hangs 
on  the  interpretation  of  the  word  place. 

Mr.  Nightingale:  A  place  is  almost 
anything. 

His  Lordship:  It  was  held  in  the 
House  of  Lords  that  a  racecourse  is  not 
a  place  after  the  Court  of  Appeal  had 
decided  that  it  was. 

Mr.  Nightingale:  An  umbrella  can  be 
considered  a  place.  Continuing,  he  con- 
tended that  the  members  of  this  dub 
did  not  confine  their  operations  of 
betting  lo  one  another,  but  did  so  with 
anybody  that  came  along.  If  the  point 
ranged  by  his  learned  friend  to  the  effect 
that  these  people  were  not  to  be  pro- 
secuted for  oontmvening  the  section,  but 
only  as  frequenters,  then  they  would 
have  tliem  going  into  the  premises  of 
some  friend  and  starting  bookmaking 
there.  It  was  difficult  to  see  what  the 
Act  was  intended  to  do  if  it  was  not  in- 
tended to  meet  cases  of  this  kind. 

Mr.  Molteno  mentioned  that  in  the 
case  of  Ah  Foo  36  men  were  charged.  33 
of  whom  were  convicted  as  frequenter** 


tt 


CAPE  TIMES"  LAW  REPORTS. 


72S 


The  fact  of  the  matter  was  thai  Tatter- 
sail's  C\uh  wae  purely  a  betting  club. 

Mr.  NightingaJe:  Are  you  a  member? 

Mr.  Molteno  replied  that  he  was  not. 
This  club  was  purely  a  beUing  club,  and 
they  had  a  licence  for  liquor.  That 
was  why  the  rules  were  put  in.  If  Mr. 
Nig<htingiale  was  correct,  then  there 
would  not  be  a  house  in  the  Peninisula 
of  which  the  occupiers  would  not  be 
liable  to  prosecution.  In  fact,  one  oould 
not  ha^e  a  smaU  game  of  bridge  without 
laving  himseU  open  to  prosecution.  He 
fek  sure  the  Legislature,  when  they 
Pjflased  that  Aot,  never  had  that  inten- 
tion. He  concluded  by  again  contending 
that  the  committee  of  the  dub  should 
have  been  prosecuted,  and  not  the  in- 
dividual members. 

Maasdorp^  J. :  The  accused  are  charg- 
ed in  this  case  with  contravening  section 
16  of  Act  36  of  1902,  in  that  they  used 
certain  room?  and  a  passage  at  78,  Long- 
market-street,  as  a  betting-house.  They 
pleaded  "  Not  Guilty,"  but  were  found 
*' Guilty,"  and  each  of  them  was  fined 
£40,  or,  in  default,  one  month's  impri- 
sonment, with  bard  labour.  It  is  argued 
that  in  accordance  with  the  finding  of 
the  Court  in  the  case  of  Hex  v.  Ah  Foo 
the  Court  should  now  hold  that  only  the 
owner  or  occupier  of  the  betting-house 
oould  be  charged  with  contravention  of 
section  16,  and  not  thoM  who  are  merely 
frequenters  of  the  place.  It  seems  to 
me  that  there  is  a  distinction  between 
this  case  and  that  of  Ah  Foo.  There  is 
a  provision  made  under  section  6  for 
the  punishment  of  persons  who  own  or 
keep  gaming-houses,  and  then  there  is 
a  further  provision  for  the  punishment 
of  those  wno  frequent  or  use  such  places. 
Im  tiiat  case  certain  persons  who  were 
found  upon  the  premises  as  frequenters 
were  charged  with  keeping  and  owning 
a  gaming-house.  Upon  appeal  the 
Court  held  that  there  was  no  evidence 
that  they  were  the  occupiiers  or  owners, 
and,  consequently,  they  were  charged 
under  the  wrong  section,  which  provides 
for  a  much  more  severe  penalty  than  the 
subseqiKnt  section,  but  in  that  case  it 
was  quite  clear  that  the  accused  could 
have  been  charged  as  frequenters  of  the 
ffaming-house,  and  would  have  been  lia- 
ble to  a  less  penalty.  What  the  Court 
held  was  that  they  were  not  owners  or 
occupiers  c^  the  gaming-house,  and 
that  they  were  charged  under  the 
wrong  section.  Under  section  16 
of  the  Act  provision  ^  is  made  for 
a  penalty  to  be  infiicted  on  those 
who  own  or  keep  betting-houses, 
but  under  the  same  section  there  is  also 
provision  in  respect  of  those  who  use 
places  for  the  purpose  of  betting,  and 
there  is  no  other  section  making  provi- 
sion as  to  how  persons  using  places  for 
the  purpose  of  betting  are  to  be  dealt 
with.  The  accused  are  charged  with  us- 
ing these  rooms  as  a  betting-house,  and 
it  api»eazB  that  a  place  is  to  be  regarded 
as  being  used  as  a  betting-house  when 


betting  takes  place  in  it  or  money  is 
kept  in  it  as  stakes  for  <the  purpose  of 
betting.  The  rooms  they  used  in  this 
case  am>ear  to  be  the  rooms  of  a  club 
called  Tattersairs  Club,  and  it  is  argued 
that  those  who  keep  a  club  as  the 
ipanaging  committee,  are  really  the 
guilty  persons,  and  that  members  who 
are  found  betting  in  it  cannot  be  charg- 
ed under  this  section.  It  seems  to  me 
that  these  sections  have  a  very  wide 
scope,  and  they  include  those  who  mere- 
ly use  any  house  or  place  for  the  pur- 
pose of  betting.  I  think  it  is  clearly 
proved  in  this  case  that  it  was  ^ot  mere- 
ly an  odd  case— an  odd  in.sthnoe  of  a 
bet  between  one  or  two  persons  that 
took  place  in  these  rooms,  for  the  rooms 
were  fully  furnished  for  the  purpose  of 
betting.  They  were  frequents!  by  the 
accused,  and  it  was  found  that  they  kept 
their  books  and  their  materials  for  the 
purpose  of  betting  in  these  rooms,  in 
fact,  they  were  actually  detected  engaged 
in  the  act  of  betting  in  these  rooms,  and 
under  the  circumstances  of  this  case  I 
think  it  has  been  abundantly  proved  that 
they  themselves  usefl  these  rooms  for  the 
purposes  of  betting.  I  am  of  opinion 
that  the  appeal  should  be  dismissed. 

[Appellant's    Attorney:     D.    Tennant, 
jun.] 


SECOND    DIVISION. 


[Before  the  Hon  Mr.  Justice  Hopley.] 


DREWITT  V.  STKrR. 


\       1905. 
\  Aug.  29th. 

Mr.  Burton  moved,  as  a  matter  of 
urgency,  for  an  order  calling  on  the 
respondent  to  show  cause  whjj^  he  should 
not  hand  over  to  the  a(pplioant  £800 
with  interest  at  6  per  cent.,  from  3rd 
inst..  and  costs.  Counsel  said  the  ap- 
plica  it  had  known  the  respondent  some 
yeirs  ago,  and  in  July  fast  he  called 
on  (the  respondent  and  mentioned  that 
he  had  some  money  to  invest,  and  asked 
him  if  he  could  offer  a  good  mortgage 
on  firtst  bond.  Eight  hundred  pounds 
were  handed  to  the  respondent  in  re- 
spect of  certain  property,  which  was  to 
be  hypothecated.  The  respondent  was 
instructed  Uiat  the  money  was  to  be 
invested  in  the  name  of  his  minor 
daujg:hter  Gladys  Stella  Drewitt.  After 
calling  on  the  respondent  several  times 
without  avail,  the  applicant  discovered 
that  the  bond  was  not  a  first  mortgage, 
there  being  two  others^  one  of  £750  and 
another  for  £50,  and  it  further  appear- 
ed that  the  property  had  been  attacbed. 
Only  one-half  share  of  the  property  had 
been  hypotheoaited,  and  the  Dond  was 
not  passed  in  favour  of  the  daug'htsr 
as  a  minor. 


724 


"CAPE  TIMES"   LAW  REPOBTS. 


Mr.  Russell,  who  appeared  for  the  re- 
spondent, put  in  an  answering  affidavit, 
in  which  the  respondent  sot  out  that  ho 
explained  to  the  appdicani  that  the 
farm  in  question  was  the  property  of 
two  brothers,  and  the  farm  had  been 
divided  by  order  of  the  Supreme  Court, 
of  the  brothers  having  ^urrcnderja' 


one 


his  estate.  It  was  explained  to  the  ap- 
plicant that  the  loan  of  £800  was  to 
satisfy  the  judgment  of  the  Court,  and 
the  whole  naJture  of  the  investment  was 
discussed  with  the  fippiicant,  who  was 
cognisant  of  all  the  oircumbtanoes.  The 
respondent  was  confident  that  the  mi'ior 
daughter  wa£  fully  secured. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts. 

Uopley,  J. :  It  is  perfectly  clear  that 
the  Court  cannot  make  an  order  on  the 
present  affidavits.  There  is  a  serious  con- 
flict of  evidence,  and  it  is  impossible  to 
say  whether  there  has  been  anything  in 
the  way  of  a  breax^h  of  trust  or  a  dere- 
liction of  duty  on  the  part  of  the  respon- 
dent. On  the  facts  disclosed  to  the 
Court,  it  seem  to  me  that  the  appli- 
cant has  adopted  a  wrong  procedure  in 
coming  to  the  Court  in  this  manner  for 
a  summary  order.  He  must  have  known 
that  if  he  had  any  remedies  in  the 
premises,  he  would  have  to  institute 
an  action  in  the  ordinary  way.  There 
will  be  no  order,  and  as  the  applicant 
has  adopted  a  wrong  course  of  proce- 
dure and  so  incurred  unnecessary  and 
avoidable  expense,  I  am  of  opinion  that 
he  should  pay  the  costs  of  the  applica- 
tion, but  the  notice  of  motion  may  stand 
as  a  summons  in  the  action  to  be  in- 
stituted, and  the  costs  of  such  notice 
will  be  costs  in  the  cause. 


VAH  DER  HOOP  AND  FIBHER  (        HK)5. 
V   BECHUANALAND  E8TATE<  AlloT.  29th. 
SYNDIC  ATK.  (Sept.     4th. 

Principal  and  agent — Private  in 
structions  —  Knowledge     of 
third  persons. 

This  was  an  action  for  an  order  of 
transfer  of  certain  property  at  Vryburg, 
whore  the  plaintiffs  carried  on  busi- 
ness, the  defendants  being  the  trustees 
of  the  Bechuanaland  Estate  Syndicate. 
On  the  15fch  May,  1905,  the  plain- 
tiff (Van  der  Hoff)  bought  from  the 
svndicate  certain  three  farms  for  £900, 
tno  terms  being  cash  agains^t  transfer. 
The  claim  was  for  an  order  directing 
the  defendant  to  pass  transfer  on  the 
plaintiff  tendering  £900,  or,  in  the  al- 
ternative, to  pay  the  sum  of  £1,000. 
The  defendants,  in  their  plea,  set  out 
that  no  such  sale  had  taken  place.  No 
sale  had  been  mau^  on  behalf  of  the 
svndicate.  It  was  admitted  that  one 
Kosenblatt  in  1903  was  authorised  to 
deal  with  the  properties  on  certain  con- 
ditions,   but   the      authority   had    never 


been  exercised,  nor  the  said  oonditions 
fulfilled.  When  Rosenblatt  purported  to 
soli  the  farms,  he  did  so  without  au- 
thority, and  it  was  denied  that  Rosen- 
blatt was  the  duly  authorised  agent  of 
the  syndicate  for  the  purpose  of  a  sale. 

Sir  H.  Juta.  K.C.  (with  him  Dr. 
Rainsford)  was  for  the  ^aintiffs,  and 
Mr.  Burton  (with  him  Mr.  van  Zyl)  was 
for  the  defendant. 

Reginald  de  Beer,  partner  in  the  firm 
of  Rosenblatt  and  De  Beer,  solicitors,  of 
Vryburg,  said  that  before  witness  en- 
tered into  partnership  Rosenblatt  had 
all  the  title  deeds  of  these  farms  in  his 
possession,  and  the  firm  held  the  power 
of  attorney  to  sell  the  farms  which  power 
had  never  been  revoked.  As  the  result  of 
proceedings  by  the  Government  for  ar- 
rears of  quitrent,  the  farms  were  put  up 
to  auction,  and  three  were  sold.  Plain- 
tiff was  making  inquiries,  and  £^ubse- 
quently  purchased  the  farms  in  question. 
\Vitness,  who  had  charge  of  the  matter, 
advised  the  defendants'  attorneys,  who 
cabled  that  the  farms  had  been  already 
sold.  Witness  had  received  no  inti- 
mation of  this,  nor  had  his  pwwer  of  at- 
torney ever  been  revoked. 

Cross-examined  by  Mr.  Burton :  From 
August,  1904,  to  the  best  of  his  reccl- 
lection  all  the  properties  were  under  at- 
tachment. On  behalf  of  Mr.  Cullinan, 
witness  bought  another  farm  at  the  sa^ 
in  execution.  In  less  than  five  minutes 
Van  der  Hoff  bought  the  farms,  and  the 
reason  of  the  hurry  was  tha'^  he  (witness) 
was  afraid  Wessels  would  go  behind  his 
back.  The  sale  to  Wessels  was  a  better 
business  for  the  syndicate  than  that  of 
witness  to  Van  der  Hoff.  Witness 
thought  Van  der  Hoff  very  foolish  to  buy 
the  farms  Witness  had  never  joined  the 
plaintiff  in  land  speculation. 

By  Hopley,  J. :  When  Rosenblatt 
knew  of  witness's  action  in  disposing  of 
the  farm  he  approved  of  it. 

Herman  Rosenblatt,  who  acted  for  the 
defendant  syndicate  for  B<»no  fifteen 
years  before  the  last  witness  joined  him, 
said  that  what  De  Beer  did  was  with 
his  approval. 

Peter  Van  der  Hoff,  partner  in  the 
plaintiff  firm,  stated  that  before  the  exe- 
cution eale,  he  approached  the  solicitors 
with  a  view  to  a  purohase,  and  at  the 
sale,  and  afterwards  in  May  he  negoti- 
ated for  the  farms.  In  consequence  of 
what  Wessels  said  as  to  being  able  to 
purchase  the  farms,  witness  asked  De 
Beer  to  show  his  power  of  attorney. 

Cross-examined  by  Mr.  Burton:  He 
told  Wessels  that  he  "  thought "  he  had 
made  an  offer  of  £300  each  for  the 
farms  through  Rosenblatt.  When  wit- 
ness mentioned  Rosenblatt  having?  the 
authority  to  sell,  Wessels  said  :  '*  For 
God's  sake  don't  toll  De  Beer  anything 
about  it." 

Sir  H.  Juta  closed  his  case. 

Daniel  Wessels,  attorney,  at  Vryburg, 
who  at  present  represents  the  defendant 
syndicate,  stated  that  he  conducted  the 


«l 


CAPE  TIMES"  LAW  REPORTS. 


'2n 


6ale  on  the  25th  Biarch.  After  the  auc- 
tion, witness  made  an  offer  for  certain 
of  the  farms  by  cable,  which  was  accept- 
ed on  the  3rd  May.  That  offer  was 
made  on  behalf  ol  principals.  On  the 
15th  May  the  defendants  cabled  him 
with  regard  to  two  other  farms,  and  he 
spoke  to  the  plaintiff,  who  he  thought 
was  a  likely  bu;^er.  The  plaintiff  could 
not  understand  it,  as  he  said  Rosenblatt 
and  De  Beer  had  a  power.  The  plaintiff 
promised  to  see  witness  again,  and  wit- 
ness did  not  see  him  again  on  the  mat- 
ter. The  farms  were  attached,  and 
transfer  had  not  yet  been  given  to  wit- 
ness's principals. 

Cross-examined  by  Sir  H.  Juta:  Wit- 
ness did  not  know  thsA  Rosenblatt  and 
De  Beer  had  power  to  sell.  He  did 
not  communicate  with  Rosenblatt  and 
De  Beer's  principals  in  London. 

Mr.  Burton  closed  his  case. 

Counsel  were  heard  in  argument  on 
the  facts. 

Cur.    Adv,    Vult. 

Poatea  (September  4). 

Hopley,  J. :  The  defendant  syn- 
dicate, which  is  domiciled  in  and 
managed  from  London,  had  been 
before  1903,  and  then  ^ill  was,  the 
owner  of  a  considerable  extent  of  landed 
property  in  British  Bechuanaland.  In 
that  year  the  Colonial  Government  tooli 
proceedings  against  the  defendants  for 
the  recovery  of  arrear  quitrents,  which 
had  accumulaited  to  a  considerable 
amount,  and  the  defendants  then  be 
came  anxious  to  get  rid  of  their  proper 
ties  on  the  best  terms  possible.  Witb 
thai  object  in  view,  they  sent,  in  De 
cember,  1903,  a  power  of  attorney  to 
Mr.  ^  Rosenblatt,  an  attorne^-at-law 
practising  at  Vryburg,  constituting  him, 
with  power  of  substitution,  their  agent 
to  sell  the  said  properties,  or  any  of 
them,  for  such  price  or  prices,  and  upon 
•uch  terms  and  conditions,  and  generally 
in  such  manner  a«  he  should  think  fit, 
and  authorising  him  to  do  all  actis  neces- 
sary for  such  purposes  as  fully  as  his 
principals,  if  present,  could  themselves 
do  This  power  was  sent  in  a  letter, 
which,  to  a  certain  extent,  and  for  his 
private  instruction,  modified  these  ample 
powers;  but  in  the  view  I  take  of  the 
tacts  of  the  caee,  I  do  not  think  it  neces- 
sary to  enter  upon  the  nature  or  extent 
of  such  limitations.  It  appears  that 
Rosenblatt  passed  over  the  active  con- 
trol and  management  of  this  matter  to 
his  partner,  Mr.  De  Beer,  that  the  lat- 
ter made  some  attempts  to  dispose  of 
the  land,  but  unsuccessfully,  and  that 
eventually  in  the  course  of  1904  the 
Government  attached  the  properties  to 
found  jurisdiction,  sued  for  their  quit- 
rents,  obtained  judgment,  and  sold  two 
of  the  farms  at  prices  which  covered 
their  claim,  and  left  a  surplus  in  their 
hands  for  the  benefit  of  the  defendants. 
These     proceedings  were  concluded   in 


March.    1905 ;    and    at   about   that   date 
Mr.   Weasels,  who  is  an  attoriiey-at-Iaw, 
also  practising  at  Vryburg,  and  Deputy 
Sheriff  of  that  district,  wrote  to  the  de- 
fendants, m^kin^  them  an  offer  on  be- 
half   of    a    certain   principal   for  one    of 
these  faring,  and  making  suggestions  as 
to    the    disposal   of  others   through    Ins 
firm.     Mr.  Wessels  says  that  he  was  en- 
tirely  ignorant   of   the  fact     that     Mr. 
Rosenblatt   held   a  power   to    deal   with 
them,   and   that  he  wrote  to  the  defen- 
dants at  the  address  which  he  had  asoer- 
taired  to   be    tlicirs,    in   consequence  of 
the  services  of    the    varioue   legal    pro- 
cesses  in    the   proceedings     which     had 
passed  through  his  hands  in  his  capacity 
as  sheriff.     The  plaintiffs  were  at  about 
that  tiine  desirous  of  buying  some  of  the 
properties,   and   approached  De  Boer  in 
the  matter,  who,  however,  thought,  when 
first    approa<fhed,    that    the    defendants' 
letter  in  1903  debarred  him  from  selling 
the  farms  at  the  prices  then  procurable 
by  him,  and  he  accordingly  wrote     for 
instructions.       This   letter  went   by  the 
same   mail    as  Wessels's    letter,   making 
his   offer,    and   the   defendants  on      re- 
ceiving  the    two  letters    decided  to  ac- 
cept Wessels*s  offer,  and  telegraphed  to 
him  on  May  3  that    they  had  done  so, 
but    <?hey  sent   no  telegraphic  communi- 
cation   to    Rosenblatt,    to   whom       they 
wrote  on  May  6,  acquainting  him  of  the 
fact    that    they    had    sold    their    farm 
•Southev"   through   Wessels,    and  that 
they  had   authorised  him   to  sell    other 
of  the  properties  at  prices  suggested  by 
him.        Before   this    letter    had    reached 
Rosenblatt,   and  about  May  15,  Wessels 
offered  one  of  the  defendant's  farms  to 
the    plaintiffs,    and    then    went    to    De 
Beer  and  told  him  that  they  were  being 
approached  hy  Wessls.      This  caused  De 
Beer  t<3  examine  more  carefully  than  he 
had  previouslv  done  the  defendant's  let- 
ter of  Decombor.  1903,  and  finding  then 
that  he  had  misread  his  private  instruc- 
tions, and  that  in   his  opinion  he  could 
carry  out  the    wishes  of  the  defendants 
by  concluding  a  sale  with  the  plaintiffs, 
ho  sent    for  Van    der  Hoff,  one  of  the 
plaintiffs,  and  informed  him  that  he  was 
ready    to    conclude    a    contract    of    sale 
With  him   for  such    of  the  properties  as 
he   might   require.       Van    der  Hoff,    in 
view  of  what  had  taken   place  between 
himself    and     Wessels,    then        inquired 
^nether  De  Beer  had  power  to  dispose 
of  the  land,  and  De  Beer  produced  and 
exhibited  to  him   the  power  of  attorney 
of  December,   1903.      This  satisfied  Van 
der    Hoff,    who    thereupon       purchased 
from    him    the    farm    "  Southey "       for 
£400,  the  one-half  of  "Tlaping,"  owned 
by  the  defendants,   for  £200,  and  their 
one-half  of    "  Vyfling«pan,"      for   £300, 
the   terms    being  cash   against    transfer. 
Oi   those   properties,   Southey  had  been 
previously       sold    by    the        defendants 
through  Wessels,  and  ne  had  also,  acting 
on  his  instructions  received  by  telegram, 
disposed  of   the  half  of  Tlaping  befor© 


726 


"CAPE  TIMES"  LAW  REPORTS. 


May  15.  As  soon  as  he  had  ooncludcd 
the  sales  to  ithe  plaintiffs,  De  }icer 
telegraphed  to  the  defendants,  who  then 
by  telegraph  repudiated  his  authority, 
and  on  May  17  tney  revoked  the  power 
of  December  18,  1903,  in  favour  of 
Kosenblatt. 

Now,  I  am  in  this  action  not  con- 
cerned with  questions  that  may 
arise  between  the  defendants  and 
Kosenblatt,  and  have  only  to  deal 
wTth  the  mabter  as  it  rests  between  the 
piaintifiiB  and  the  defendants.  I  have 
oajreitully  ooneidered  the  evidence  to  as- 
certain  whetiher  the  pkbintiffs  were  iu 
any  way  aware  ol  any  limitations  to 
Rosenblatt's  powers,  or  wheibher  they 
were  put  upon  inquiry  as  to  whether 
the  ostensible  powers  with  which  he 
was  clothed  had  been  curtailed.  The 
only  argument  that  has  been  u^:^.! 
ai^ainat  the  plaintiffs  on  this  point  is 
that  they  were  awaro  that  De  ^eer  had 
in  Apnl  written  for  apeoial  instruc- 
tions and  that  auoh  instructions  had 
not  been  received ;  but  then  the  effect 
of  that  is  nullified  by  De  Beer's  state- 
ment to  Van  der  Hoff  on  15th  May 
wiien  he  sent  for  him  and  exphiinea 
thait  the  writing  for  inertruoliionB  had 
been  done  uoi'der  a  misapprehension  of 
his  position  which  no  longer  existod, 
and  that  he  was  empowered  to  act  in 
terms  ol  the  ample  powers  which  he 
exliibited.  I  fino  tnat  there  was  no 
knowledge  on  the  pant  of  the  plaintiffs 
of  anv  limitations  to  such  full  powers, 
Oind  the  legial  consequence  is  that  iho. 
defendants  must  be  held  bound  by  the 
contract  of  their  agent.  It  ^nould  bo 
observed  that  Rosenblatt  himself  was 
not  in  Vryburg  on  15th  May,  or  at  all 
events  not  during  the  busmo>3s  hours 
of  the  da^r;  but  he  wa^  told  of  the  sale 
to  plaintiffs  on  the  next  day  and  en- 
tirely approved  of  what  had  been  done  j 
and  moreover  it  apjxMirs  to  mo,  in  view 
of  the  iK)vver  of  substitution  contained 
in  the  jX)wor  of  attorney  and  of  the 
manner  in  whith.  in  consocjuonce  there- 
of, Rosenblatt  had  actually  subetitut-od 
De  Boer  for  himself  in  the  management; 
of  this  busine^,  that  the  aot  of  De 
Beer  must  be  taken  to  be  the  act  of 
Rosenblatt  ajid  consequently  of  the  de- 
fendajits.  The  defendants  are  still  the 
regiistered  owners  of  all  the  properties, 
and  it  may  be  possible  for  them  to  give 
transfer  of  them  all  to  the  plaintiffs, 
but  seeing  that  two  of  the  farms  iiave 
been  sold  twice  over  tliere  will  as  to 
them  be  an  alternative  order.  The 
judgment  of  the  Court  is  thait  the  de- 
fendants do  give  transfer  to  the  plain- 
tiffs of  their  one-half  share  of  the  farm 
Vyflingspan  upon  payment  of  the  sum 
of  £300 ;  that  they  do  give  transfer 
of  the  farm  Southey  upon  payment  of 
the  sum  of  £400,  or  in  the  alternative 
that  they  pay  £100  as  damages  for 
breach  of  their  contract  of  sale  of  the 
said  farm ;  that  they  do  give  transfer 
of       thoir    haK-ehare    of    Tlaping    upon 


payment  of  the  sum  of  £200,  or  in  the 
alternative,  that  thev  pay  £50  as 
damages  for  their  breach  of  contract  hi 
resoect  of  the  sale  of  the  said  farm ; 
ana  that  the  defendants  do  pay  tho 
costs  of  suit. 

[Plaintiff's  Attorneys :  Fairbridi^e, 
Arderne  and  Lawton ;  Defendant's  At- 
torneys:  Not  on  record.] 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  Hopley.] 


UEYDENKYCH   V.     BENliETT.  J   .     ^^JSLw 

i  Aug.  olitD. 

Mr.  Burton  who  appeared  for  the 
plaintiff  asked  for  a  judgment  in  terms 
of  a  consent  paper  put  in. 

Judgment  as  pnayed  was  granted. 


NICHOLLAB    AND    CO 
WHITE,  Br  AN  AND  CO 


V     r       1906. 
'^'  <  Axig.  30th. 
^^-      tSeFt.    Gth. 


Promissory  note — Surety — Nova- 
tion. 

This  was  an  action  in  which  George 
Drossiades.  Nicholas  Coutelis  and  L^- 
nidas  Coutelis,  trading  as  NichoUas 
and  Co.,  sued  Edwin  George  White 
and  Pierce  Ryan,  trading  as  White, 
Ryan  and  Co.,  to  recover  possession  of 
a  promissory  note  for  £500  given  by 
plaintiffs,  and  for  judgment  for  the 
sura  of  £9  17a.  6d.  against  the  defend- 
ants, as  refund  for  interest  paid  by 
plaintiffs    in  advance^ 

The  plaintiffs'  declaration  was  as 
follows  : 

1.  The  plaintiffs  are  George  Drossi- 
ades,  Nicholas  Coutelis,  and  Leouidas 
Coutelis,  trading  in  co-partnership, 
under  the  style  and  title  of  Nichollas 
and  Co.,  merchants,  of  Grand  Parade 
Buildings,  Capje  Town.  The  defend- 
ants are  Edwin  George  White  and 
Pierce  Ryan,  trading  as  White,  Ryan 
and  Co.,  of  Burg-street.  Cape  Town, 
merchants. 

2.  An  agreement  bearing  dale  the  Ist 
day  of  August,  1902,  was  entered  into 
between  the  plaintiffs  and  one  I^nos 
Vafidis  (at  that  time  a  partner  in  the 
firm  of  Nichollas  and  Co)  of  the  one 
part  and  the  defendants    of  the  other. 

3.  By  agreement  bearing  date  the 
30th  day  of  April,  1903,  the  said 
Vafidis  retired  from  the  firm  of  Nichol- 
las and  Co.,  and   for   the   consdderfttion 


"CAPE  TIMES"  LAW  tCEPORtS. 


727 


therein  appearing  sold  to  his  co-part- 
ners (the  pia^itiff)  his  share  ana  in- 
terest in  the  said  hotel.  Notice  of  the 
dissolution  of  the  said  partnership  was 
duly  pi^Iished  in  the  "  Government 
GiaiBebte  of  the  30th  day  of  June, 
1905. 

4.  In  or  about  April,  1905,  plaintiffs 
had  redux)ed  their  indebtedness  to  the 
defendants  in  respeot  of  the  advance 
of  £1,000  sterling,  made  in  terms  of 
agreement  *'A,"  to  the  siun  of  £500 
tfteriiug.  for  which  amount  on  the  Ist 
day  of  April,  1906,  plaintiffs  gave  de- 
fendants a  promissory  note  payable  on 
the  31st  day  of  July,  1905,  and  plain- 
tiffs further  paid  to  defendants  the 
sum  of  £15  9s.  8d.  sterling,  as  interest, 
in  advanoe,  for  4  months,  at  the  nate  of 
8  per  cent,  per  annum. 

5.  In  or  about  April,  1905,  plaintiffs 
entered  into  negotiations  with  one  Dinah 
Myers  for  the  sale  of  the  Britannia 
Hotel,  and  by  a  verbal  agreement  made 
in  the  same  month  between  plaintiffs 
and  defendants,  defendants  consented 
to  the  sale  of  the  said  hotel  by  the 
plaintiffs  to  the  said  Dinah  Myers, 
and  the  transfer  to  her  of  the  plaintiffs' 
indebtedness  to  them  and  the  release 
of  the  plaintiffs  therefrom  on  condition 
that  security  to  the  sattisf action  of  the 
defendants  was  provided  by  the  said 
Dinah  Myera.  The  defendants  ac- 
cepted one  Abraham  Muller,  who  sign- 
ed as  surety,  and  the  condition  was 
thereby  satisned. 

6.  In  consequence  of  the  agreement 
in  the  last  paragraph  set  out,  plaintiffs 
sold  the  said  hotel  to  the  said  Dinah 
Myers  in  -  terms  of  an  agreement 
bearing  date  the  4th  day  of  May,  1905, 
the  terms  of  the  said  agreement  were 
well-known  to  the  defendants. 

7.  By  agreement  bearing  date  the  5th 
day  of  May,  1905,  in  pursuance  of  the 
sand  agreement  in  xyaragraph  5  set  out, 
the  defendoints  agreed  to  advance  to 
the  said  Dinah  Myers  the  sum  of  £500 
Iberian c  to  enable  her  to  purchase  the 
said    hotel.       Such   bitls    were    actually 

fiven  by  the  said  Dinah  Myers  to  the 
efendants,  as  were  arranged  in  terms 
of  an  agreement  by  the  defendants'  in 
satisfaction  of  the  sum  of  £500  due 
from  the  plaintiffs  to  the  defendants 
cw   in   oaragrap'h  4  hereof  mentioned. 

^  8.  All  things  have  happened,  all 
times  elapsed  and  all  oonKktions  been 
fulfilled  to  enable  the  plaintiffs^  to  re- 
cover the  possession  of  the  said  pro- 
mi^ry  note  for  £500  fiterldng,  the  same 
having  been  discharged  by  the  agree- 
ment set  forth  in  paragraph  5,  but  the 
defondaDts  have  refused  or  neglected, 
and  0tin  refuse  or  neglect,  to  return  the 
said  promissory  note,  though  frequently 
requested  so  to  do. 

9.  Plaintiffs  further  say  that  in  the 
preinises  herein  set  for'th,  they  became 
enticed  to  the  refund  from  the  defend- 
ants of  the  interest  paid  in  advance 
from  the  5th  day  of  Miay  till  the  31st 


day  of  July,  1905,  to  wit,  the  sum  of 
£9  17s.  6d.  sterling,  but  this  sum  the 
defenuants  have  refused  or  neglected, 
and  still  refuse  or  neglect  to  refund, 
though  often   requested  so  to  do. 

Wherefore  plaintiffs  claim:  (a)  An 
order  for  the  delivery  of  the  said  pro- 
missory note  for  the  sum  of  £500  by 
the  diof  end  ants  to  the  plaintiffs.  (b) 
Judgment  for  the  said  sum  of  £9  its. 
6d.  against  the  defendants  as  and  b/ 
wa^  of  refund  for  interest  paid  r.y 
plaintiffs'  in  advanoe.  (c)  Alternative 
relief,     (d)  C'osts  of  suit. 

The  defendants    plea  was   as   follows: 

1.  Paragraphs  1  and  2  of  the  declara- 
tion are  admitted  but  the  defendants 
say  Vafidis  is  and  was  a  partner. 

2.  The  defendants  have  no  knowledge 
of  paragraph  3,  and  do  not  admit  it. 
They  had  no  notice  or  knowledge  of 
the  alleged  retirement  of  Vafidis,  and 
dealt  with  the  firm  of  Nicholas  and  Co., 
as  consisting  of  the  plaintiffs'  and  Vafi- 
dis. 

3.  The  defendants  admit  paragraph 
4,  save  that  for  the  plaintiffs  must  be 
read  the  firm  of  Nichollas  and  Co.,  con- 
sisting as  aforesaid,  and  they  say  that 
the  said  promissory  note  was  signed 
only  by  George  Drossiadis,  but  they  au- 
mit  that  it  was  given  for  and  on  behalf 
of  the  said  firm,  and  that  the  said  firm 
had  reduced  their  liability  from  £1,000 
to  £500. 

4.  The  defendants  admit  the  negotia- 
tions between  the  same  firm  and  them- 
selves. 

5.  Save  as  aforesaid,  the  defendants 
refused  to  release  the  said  firm  from  its 
said  liability,  and  thereupon  it  was 
agreed  between  the  defendants  and  tiie 
said  George  Drossiades,  acting  for  and 
on  behalf  of  the  said  firm,  that  the  de- 
fendants' would  agree  to  the  sale  to  the 
said  Dinah  Me.yers.  who  should  become 
liable  for  the  said  debt  of  the  firm,  upon 
the  express  condition  and  provided  that 
the  said  firm  became  liable  in  due  form 
as  sureties  and  co-princii)al  debtors  for 
the  due  payment  of  the  said  sum  by 
the  said  Dinah  Meyers,  the  defendants 
deny  that  there  was  any  novation  or 
release  of  the  said  firm  or  the  plaintiffs, 
and  they  deny  that  tliey  agreed  to  ac- 
cept any  security  for  the  said  debt 
other  than  that  of  the  said  firm,  and 
thoy  say  that  the  said  A.  Muller  became 
surety  for  the  said  Dinah  Meyers,  not 
at  the  instigation  of  or  to  the  satisfac- 
tion of  the  defendants,  but  at  the  insti- 
tration  and  for  the  benefit  of  the  said 
firm,  who  wore  still  to  remain  liable  for 
the  said  debt.  Relying  upon  the  said 
agreement,  the  defendants  signed  the 
agreement  C,  and  took  the  promissory 
notes  of  the  said  Dinah  Meyers,  not  in 
satisfaction  of  the  said  debt,  but  in  pur- 
suance of  the  premises,  and  they  at  the 
time  submitted  a  document  of  surety- 
ship as  aforesaid  to  the  said  George 
Drossiades  for  signature  by  the  said 
firm,    which    was    accepted    and    taken 


728 


(f 


CAPE  tlMES*'  LAW  REPOIttS. 


away  by  him  for  th«  said  purpose,  and 
the  defendants  refused  to  deliver  up 
meanwhile  the  said  promissory  note, 
signed  by  the  said  Drossiades,  as  afore- 

6.  Save  as  aforesaid,  the  defendants' 
deny  the  allegations  in  paragraphs  5,  6, 
7,  8  and  9,  and  they  say  that  thoy  are 
still  ready  and  willing  to  deliver  up  the 
said  promissory  note,  upon  the  under- 
taking of  suretyship,  as  aforesaid,  being 
given,  but  they  say  that  the  plaintiffs 
refuse  to  give  any  such  suretyship,  and 
refuse  to  carry  out  their  said  contract 
and  claim  to  be  released  from  aJl 
liability  in  breach  of  the  terms  thereof, 
and  that,  therefore,  they  are  not  en- 
titled to  claim  back  the  said  promissory 
note. 

Wherefore  the  defendants  pray  that 
the  plaintiffs  claim  may  be  dismissed, 
with  costs. 

Mr  Close  (with  him  Dr.  Greer)  for  the 
plaintiffs;  Sir  H.  Juta  (with  him  Mr. 
Gardiner)  for  the  defendants. 

Geo.  Drossiades,  one  of  the  plaintiffs, 
stated  that  in  1902  whan  hie  firm  en- 
t^red  into  the  agreement  with  the  de- 
fendants thev  were  carrying  on  differ- 
ent kinds  of  business.  Witness  him- 
self went  to  Messrs.  White  Ryan  and 
Co.,  and  after  that  he  took  on  the 
Britannia  Hotel  section  of  the  busi- 
ness alone  for  the  benefit  of  the  part- 
nership. A  number  of  promissory 
notes  were  made  from  time  to  time, 
alwayci  being  renewed  before  the  date 
due  and  gradually  reducing  the  amount. 
Finally  on  April  1,  1905,  the  amount 
stood  at  £500.  and  witness  signed  a  re- 
newal note  that  day.  On  April  1  ho 
paid  a  cheque  for  £63  lis.  7d.  That 
represented  tba  last  payment  of  £50  in 
the  reduction  of  the  promissory  notes, 
and  £13  lis.  7d.  interest  on  the  debt, 
which  he  always  paid  in  advance.  Wit- 
ness soon  afterwards  was  anxious  to 
go  to  England,  but  his  partnerfi  did 
not  want  to  oarry  on  the  Britannia 
Hotel.  Witness  tried  to  arrange  for 
someone  takintr  over  the  business.  Wit- 
ness went  and  saw  Mr.  Mann,  of 
Messrs.  White,  Ryan  and  Co.  Witness 
told  him  that  he  wanted  to  sell  the 
bu^ness,  and  to  see  if  White,  Ryan 
and  Co.  would  consent  to  the  transfer 
of  witness's  liability  to  the  purchaser. 
The  following  d«ay  Mr.  Mann  told  wit- 
ness that  Mr.  Ryan  had  consented  to 
the  suggested  arrangement,  provided 
witness  got  a  good  purchaser.  Subse- 
quently, about  the  beginning  or  middle 
of  April  of  this  year,  witness  saw  Mr. 
Ryan,  who  said  that  he  was  willing  to 
accept  Mrs.  Dinah  Myers  as  the  pur 
chaser  of  the  hotel  business,  provided 
a  good  surety  could  bo  obtained.  Wit- 
ness then  pointed  to  Muller,  who  was 
S resent,  suggesting  him  as  surety. 
Ir.  Ryan  said,  "All  right,"  and  added 
that  he  would  have  the  agreement 
drawn  up.  Witness  did  not  agree  or 
offer,  or  ever  heard  it  suggested  that 
he  should  remain  as  a  surety  for  Mrs. 


Myers,  who  agreed  to  take  over  wit- 
ness's liability  to  White.  Ryan  and 
Co.  Mrs.  Myers  signed  tne  agreement 
produced  on  May  15.  Nothing  was 
said  then  about  witness  standing; 
security  for  Mrs.  Myers.  On  May  22 
or  23  witness  got  a  message  from 
White,  Ryan  and  Co.  He  went  to  the 
firm's  offices  and  saw  Mr.  White,  who 
complained  that  Muller  had  gone  bank- 
rupt. Mr.  White  said  that  witness 
should  give  him  £100  under  clause  4 
of  the  ae;reement.  Witness  declined 
to  pay  this  money,  as  he  had  lost  by 
the  transaction.  After  some  conver- 
sation, Mr.  White  turned  to  Mr.  Mann, 
the  manager,  and  said,  "  You  must 
draw  up  a  proper  le^al  agreement  and 
make  Drossiades  sign."  Two  days 
later,  witness  was  summoned  (o  White. 
Ryan  and  Co. 'a  office.  Mr.  Mann,  the 
manager,  presented  him  with  a  draft 
agreement,  bringing  in  witness  as  a 
surety  for  Mrs.  Muller.  Mann  urged 
that  witness  was  under  a  moral  obli- 
gation to  sign  the  paper,  as  he  had 
introduced  an  insolvent  man,  Muller, 
to  the  firm.  Witness  did  not  sign  the 
paper. 

Cross-examined  by  Sir  H.  Juta:  He 
did  not  promise  to  W^hite,  Ryan  and 
Co.  that  his  partners  would  sign  the 
suretyship.  On  the  6th  June  ne  re- 
ceived a  letter  to  the  etfect  that  as  he 
had  not  returned  the  security  they 
would  hold  him  to  the  clauses  thereof. 
Witness  did  not  know  that  Midler's 
estate  was  assigned. 

Re-examined  by  Mr.  Close:  It  was 
not  until  he  saw  his  attorneys  '  that  he 
attached  any  importanoe  to  the  pro- 
missory note.  An  advance  was  al- 
ways made  on  the  goodwill ;  not  to 
the  individual.  It  was  in  the  agree- 
ment if  Dinah  Myers  did  not  get  the 
transfer  the  business  was  to  fail 
through,  and  White,  Ryan  and  Co. 
must  have  known  of  this. 

Nicholas      Coatelis.      partner    in    the 

gaintiff  firm,  caid  the  matter  of  the 
ritannia  Hotel  had  been  manag.3j  by 
the  last  witness.  It  was  only  on  the 
letter  of  the  6ih  June  that  ho  knew 
that  White,  Ryan  and  Co  wanted  the 
firm  to  go  as  securit;^. 

Mr.  Close  closed   his  case. 

Pierce  Ryan  stated  be  had  trans- 
actions with  the  plaintiff  firm  for  years. 
In  April  last  Drossiades  oame  to  see 
him  with  a  view  to  a  transfer  of  the 
liabilitjr  to  a  new  purchaser.  At  the 
time  witness  thought  that  Muller,  whom 
Drossiades  brought  in,  was  the  pur- 
chaser. It  was  not  true  that  he  ac- 
cepted Muller  as  surety.  The  property 
did  not  belong  to  witness;  it  was 
merely  a  trading  house  to  the  firm. 
Witness  was  very  expKcit  in  explaining 
to  Drossiades  that  his  firm  would  have 
to  remain  as  surety. 

Cross-examined  by  Mr.  Close:  Mr. 
Muller  was  a  jperfect  stranger  to  him ;  be 
made  no  inquiries  wbatsoeTer  about  him. 


*'CAPB  TIMES"  IaW  ttEt'OtlTS. 


729 


Mis.  Myers's  name  might  have  been 
mentioned  that  same  day.  Witness  un- 
dentood  that  Mr.  Muller  was  the  princi- 
pal party. 

Alfred  Mann,  confidential  olerk  to  the 
defendant  firm,  gave  confirmatory  evi- 
dence as  to  the  arrangement  between 
the  parties. 

Reginald  Simpson  of  the  firm  of  Sy- 
fret,  Grodlonton  and  Low,  stated  Mr. 
Mann  called  on  his  firm  a  few  days  prior 
to  May  10,  and,  m  consequence  of  what 
he  said,  the  agreement  (produced)  was 
drawn  up. 

Edwin  George  White,  partner  in  the 
defendant  firm,  stated  he  was  acquainted 
with  the  agreements.  Witness  had  been 
the  person  who  conducted  these  matters. 
When  the  transaction  took  ^lace  be- 
tween Mr.  Ryan  and  the  plaintiffs  wit- 
ness was  away  from  home,  but  on  his 
return  he  was  acquainted  with  the  facts. 
Witness  first  took  part  in  the  matter 
early  in  May.  Droasiados  was  in  the 
office.  Witness  tried  to  speak  to  him, 
but  he  left  the  office  somewhat  hurried- 
ly. On  his  second  visit  witness  spoke  a 
few  words  to  him.  After  that  witness 
sent  for  Mr.  Drotsiades,  as  witness  had 
heard  he  was  ill,  and  wanted  the  agree- 
ment signed. 

[Hopley,  J. :  But  there  was  no  agree- 
ment then.] 

Witness:  I  thought  Mr.  Mann  had 
had  it  drawn  up.  Continuing,  witness 
said  that  he  understood  that  Drossiades 
was  leaving  the  country,  and  wished  to 
put  other  people  in  his  place,  arid  the 
defendant  firm  wished  the  plaintiff  firm 
to  sign  as  seouritsr.  The  defendant  firm 
wanted  them  to  sign  for  Dinah  Myers. 

[Uopley,  J. :  But  she  was  taking  it  as 
a    purchaser.] 

Witness:  But  we  would  not  release 
Drossiades. 

Sir  H.  Juta :  You  mean  they  were  to 
remain  liable  for  the  due  performance 
of  the  contract. 

Witness :  Just  so.  Continuing,  witness 
said  he  sent  for  Drossiades,  who  saw  Mr. 
Mann.  Witness  left  instructions  for  him 
to  sign  the  aerreement.  He  did  not  do 
so  Witness  sent  for  him,  and  told  him 
that  he  wanted  him  to  pav  the  £100. 
and  to  see  that  Mrs.  Myers  paid 
£50  before  she  settled  anvthing. 
Dromiades  asked  witness  to  take  the 
promiasorv  notes  and  give  £1,000  for 
them.  Wirtnees  deoliiMd,  ae  he  con- 
■idered  it  was  a  banker's  buriness.  Dros-. 
siades  bad  three  busineesee,  and  he 
was  always  making  excuses  for  not  giv- 
ing wrtnees's  firm  the  busdness.  Dros- 
siades said  there  was  no  profit  in  the 
business.  Mr.  Mann  submit^  the  deed 
of  suretyvhip  to  him,  and  he  took  it 
mrmj.  He  was  wrong  if  he  said  Mr. 
Mann  was  excited.  He  brought  the 
deed  back,  and  said  his  partners  would 
noi  sign  k. 

[Hopley,  J. :  Were  they  his  words?] 

Witness:  He  was  speaking  to  Mr. 
Mann,  and  I  went  arway,  and  Mr.  Mann 


said,  *'  He's  ^oing  down  to  get  his  part- 
ners to  sign  it."  He  took  it  away,  and 
did  not  return. 

It  was  not  the  business  of  the  firm  to 
give  up  a  security  without  knowing 
what  the  standing  of  the  other  person 
was.     This  was  not  an  isolated  case. 

[Hopley,  J.:  But  Mr.  Mann  said  it 
was.] 

Witness:  Mr.  Mann  was  very  excited, 
and  make   many  renMurks 

[Hopley,  J. :  Do  you  mean  to  say  that 
Mr.    Mann's  evidence   was   incorrect  yj 

Witness:  He  was  very  excite  J.  In 
the  liability  book  I  oan  show  many 
Ktuoh  instances. 

[Hopley,  J.:  What  are  they?— 
Parkes,  Freeman,  and  Hoffman. 

[Hopley,  J.:  Will  it  show  that  in 
the  ledger? J 

Witness:  I  think  not;  we  generally 
had  a  separate  agreement. 

[Hopley,  J.:  Do  you  say  that  Mr. 
Mann  is  wrony  in  his  statement,  and 
that  m  many  mt^ances  you  have  kept 
the  old  security  in  the  case  of  taking 
over  a  new  ?J 

Witness:  I  would  not  think  of  doing 
otherwise. 

Witness  (continuing)  denied  that  he 
said  to  Drossiades  that  he  had  no  busi- 
ness to  take  them  such  a  transaction  as 
Muller  was  ineoWent.  If  that  had  been 
so,  witness  would  have  found  it  out 
before  the  transaction  was  entered  into. 

[Hopley,  J.:  Did  you  find  out  after 
the  5&h  May  anything  about  Mul'ler's 
position  ?] 

Witness :  We  all  knew  that  he  had 
been  dabbling  in  property,  and  that 
we  would  have  to  be  very  careful. 

Witness  further  stated  that  he  know 
Mailer's  position  before  the  end  of 
April. 

The  examiniaition  of  George  Edwin 
White,  one  of  the  partners  in  the  defen- 
dant firm,  was  resumed. 

Cross-examined  by  Mr.  Close,  wit- 
ness stated  that  the  question  of  the  pay- 
ment of  £100  profit  arose  when  Drossi- 
ades went  to  the  shop  for  the  third 
time.  Mr.  Ryan  knew  nothing  about 
it.  Witness,  considering  the  circum- 
stances, felt  justified  in  claiming  it. 
Wiitnces  could  not  sav  anything  aibout 
the  demand  for  £613  19te.  lOd.  Drossiades 
h-ad  always  dealt  fmrly  with  the  de- 
fendant firm. 

^  To  tlhe  Court :  Witness  was  under  the 
unpression  that  Drossiades  took  lihe 
agreonieiit  away  twice.  He  took  it 
awTay  on  the  firat  ocoasion,  and  muat 
have  brougint  it  back  to  Mr.  Mann. 
WiitnesH  did  not  know  whaA  he  said  when 
he  brougi*'.  it  back 

Sir  H.  Juta  closed  his  case,  and 
counsel  were  heard  in  argument  on  the 
facts. 

Cur,  Adv.   Vult. 
Posten   (September  6). 

Hopley^  J. :  The  plaintiffs  carry  on 
business  m  Cape  Town,  and  in  August, 


730 


«• 


CAPE  TIMES"  LAW  REPOATB. 


1902,  they  borrowed  from  the  defend- 
antSy  who  are  merchants  in  a  large 
way  of  business,  the  sum  of  £1,0%, 
for  the  purpoee  of  acquiring  the  good- 
will of  &  certain  hotel  business  in  Cape 
Town,  known  as  the  Britannia  Hotel. 
An  agreement  was  at  that  time  entered 
into  whereby  the  plaintiffs  covenanted 
inter  alia  to  purchase  certain  classes 
of  goods  from  the  defendants,  and  to 
^ive  them  promissory  notes,  bearing 
interest  at  8  per  cent.,  for  the  sum  of 
£1,000,  or  for  such  lesser  sum  as  from 
time  to  time  might  be  due,  according 
as  at  the  stipulated  periods  they  re- 
duced the  amount  of  the  indebtedness, 
which  they  contracted  to  do  at  each 
renewal;  and  they  further  agreed  that, 
in  the  event  of  their  wishing  to  dispose 
of  the  said  hotel  business,  they  would, 
before  transferring  it,  pay  to  the  de- 
fendants the  whole  of  their  indebted- 
ness. Amicable  business  relations 
thereafter  subsisted  between  the  parties 
and  by  April,  1905,  the  debt  had  been,' 
by  successive  payments  on  account, 
reduced  to  £500,  for  which  amount  the 
plaintiffs,  on  1st  April  gave  a  pro- 
missory note,  pavablo  on  1st  August, 
1905,  and  they  further  paid  a  sum  of 
£13  9s.  8d.,  being  the  niterest  in  ad- 
vance upon  the  said  sum  of  £500  from 
the  pjric>d  of  the  currency  of  the  note. 
The  plaintiffs  had  throughout  managed 
thi3  hotel  business,  through  one  of  their 
partners,  Mr.  Droesiades,  and  in  the 
defendants'  books  the  goods  supplied  for 
such  business,  and  the  general  account 
of  such  business,  were  entered  to  the 
name  of  Droasiades,  who  ^eerns  to  have 
made  the  promissory  note,  and  signed 
the  che((ues  which  from  time  to  time 
passed  m  connection  with  the  said 
business  between  himself  and  the  de- 
fendants. In  April,  1905,  Drossiades 
wa«  anxious  to  §et  rid  of  the  hotel,  in 
order  that  ho  might  be  free  to  make  a 
trip  to  Turkey,  and  he  entered  into 
negotiations  with  one  Muller,  with  a 
view  to  selling  the  goodwill  and  other 
rights  in  the  hotel  to  which  he  was 
entitled.  Muller  professed  to  be  act- 
ing for  his  mother-in-law,  Mrs.  Dinah 
Myers,  and  though  he  was  willing  to 
buy  out  the  plaintiffs  for  £4,000,  he  was 
not  able  to  pay  the  whole  of  that  sum 
in  cash,  so  that,  to  carry  the  trans- 
action through,  it  became  nece4»sary  to 
get  the  defendants  to  consent  to  the 
substitution  of  the  new  tenants  for  the 
plaintiffs  in  the  indebtedness  of  £500, 
such  portion  of  the  purchase  price  to  be 
satisfied  in  that  manner  in  case  the  de- 
fendants should  agree.  At  this  time 
Mr.  White,  who  manages  such  matters 
for  the  defendants,  happened  to  be  on 
a  visit  to  Natal,  and  a  meeting  was 
arranged  between  Muller  and  Drossi- 
ades and  Mr.  Ryan,  with  the  object  of 
obtaining  the  defendant  firm's  con- 
sent to  the  proposed  arrangement.  Such 
meeting  took  place  on  8th  April,  and 
Drossiades      deposes  that   it  was   then 


arranged  that  Mrs.  Myers  should  step 
into  his  place,  that  she  should  be  ac- 
cepted as  the  debtor  for  the  £500  still 
owing,  and  that  nothing  was  said  as  to 
any  continuing  liability  of  himself  or 
of  his  firm,,  nor  about  any  undertaking 
by  them  to  remain  liable  as  sureties 
for  the  incoming  tenant.  He  contends 
therefore  that  there  was  a  complete 
novation  of  the  contract,  and  that  on 
that  date  the  plaintiff  firm  was  com- 
pleely  freed  from  any  further  liability 
or  claim ;  and  it  is  upon  such  conten- 
tion that  the  plaintiffs  claim  the  relief 
sought  for  by  them  in  the  present  ac- 
tion. Before  stating  the  defendants* 
version  of  the  new  agreement,  it  is  con- 
venient here  to  set  forth  the  subsequent 
course  of  events.  Mr.  White  returned 
from  Natal  towards  the  end  of  April, 
and  was  informed  of  what  had  taken 
place  by  Mr.  Ryan,  and  Mr.  Mann, 
an  ernployee  of  the  defendants  in 
charge  of  the  financial  branch  of  their 
business,  who  had  arranged  and  been 
present  at  the  interview  of  8th  April, 
and  thereafter  Mr.  Ryan  took  no  fur- 
ther share  or  part  in  the  matter,  except 
that  what  happened  was  report^yd  to 
Kim.  On  May  4  the  plaintiffs  sold  their 
rights  in  the  hotel  to  Mrs.  Myers  for 
£4,000,  of  which  sum  £500  wao  sartisfied 
bv  her  taking  over  the  liability  to  the 
defendants— the  wording  of  t-he  agree- 
ment on  that  point  being  in  tne  follow- 
ing -terms  :  **  Purchaser  assumes  present 
liability  of  vendor  te  Messrs.  W'hite, 
Ryan  and  Co.,  Cape  Town,  and  indem- 
niifies  them  in  respect  thereof  in  the  sum 
of  £500."  Another  clause  in  the  agree- 
ment stipulates  that  the  contract  should 
be  null  and  void,  and  as  if  not  entered 
into  if  the  licensing   authoriti<¥»   or   the 

f)olioe  should  refuse  to  transfer  the 
ioenoes  of  the  said  hotel  to  the  pur- 
chaser. It  is  clear,  therefore,  that  this 
agreement  could  not  be  considered  a^i 
finally  settled  until  the  authorities  had 
consented  to  the  transfer  of  the  licence, 
which  consent  as  a  matter  of  fact  was 
in  due  course  given  on  May  23.  Ap- 
parently in  anticipation  that  no  diffi- 
culty would  be  raised,  Mrs.  Myers  and 
her  son-in-law  were  taken  by  Drossiades 
to  defendants'  office  on  May  5,  and  an 
agreement  was  there  entered  into  and 
signed  by  her,  acknowledging  an  ad- 
vance of  £500  by  defendants  to  her  to 
enable  her  to  purchase  the  ^  licence, 
goodwill,  ete.,  of  the  Britannia  Hotel, 
undertalling  to  purchase  certain  sup- 
plies entirely  from  defendants  while 
she  remained  owner  of  the  said  busi- 
ness, and  undertaking  to  sign  promk- 
sory  notes  for  the  amount  of  £500,  and 
to  pay  interest  at  8  per  cent,  thereon, 
the  ncvtes  to  be  renewed  at  due  dates, 
but  to  be  reduced  at  each  renewal  by 
£50  at  least.  She  did  on  that  date  sifn 
a  promissory  note  in  favour  of  the  de- 
fendants payable  on  September  1,  1905, 
for  £513  19s.  lOd.,  being  for  the  said 
sum  of   £500,   taken  over  firom   Dros- 


it 


CAPE  TIMES**  LAW  REPORTS. 


731 


siades  with  interest  to  September  1  add- 
ed Thia  note  was  signed  by  both  Mrs. 
Myers  and  MuUer,  and  the  defendants, 
after  getting  Muller  also  to  endorse  it 
as  surety  and  co-principal  debtor,  nego- 
tiated it  in  the  ordinary  way  of  business 
with  their  bank.  They,  moreover,  at 
that  date,  transferred  the  Britannia 
Hotel  account  in  their  ledger  from 
Drossiades  to  Dinah  Myers,  the  former 
being  credited  with  the  £500,  proceed- 
ing from  the  promissory  note  of  the  lat- 
ter. A  line  was  then  drawn  below  his 
account,  which  was  apparently  closed, 
and  a  credit  wa6  started  in  the  name  of 
Dinah  Myers,  for  the  Britannia  Hotel, 
on  the  same  folio  of  the  ledger.  Dros- 
siades's  note  for  £500  was  not,  how- 
ever, retired,  nor  was  any  return  of  in- 
terest made  to  him,  though  the  defend- 
ants now  admit  that  they  could  not 
claim  to  receive  double  interest  on  their 
money,  and  that  they  should  have  re- 
turned, and  must  account  to  the  plain- 
tiffs for  a  pro  rata  share  of  the  £13 
9s.  8d.  for  the  period  between  May  5 
and  August  1.  In  the  defendants'  jour- 
nal, moreover,  appears  an  entry  in  the 
month  of  June  m  reference  to  this  ac- 
count in  the  handwriting  of  one  of  their 
bookkeepers  to  the  effect  that  the  liabil- 
ity had  been  transferred  from  Drossiades 
to  Myers.  Now,  if  the  matter  rested 
uDon  the  documents,  and  the  books 
aione,  the  facts,  as  above  stated,  would 
certainly  seem  to  point  to  a  novation 
completely  exoneratdng  the  pki^intiffs 
from  all  further  liability  in  the  matter : 
but  the  defendants  say  that  all  that  was 
a  mere  matter  of  book-keeping,  so  en- 
tered for  convenience  sake,  and  that 
there  was  co-existing  with  their  written 
agreement  with  Mrs.  Myers  and  with 
this  state  of  the  entries  in  their  books. 
an  express  verbal  undertaking  by  Dros- 
aiades  that  the  defendants  were  still  to 
retain  the  security  of  h^  firm  for  the 
due  fulfilment  of  her  obligations  by 
Dinah  Myers,  li.  w  clear  &at  neither 
Mann  nor  Mr.  Byan  knew  anything  of 
^he  financial  standing  of  either  MuIIer  or 
Mrs,  Myers,  and  Mr.  Ryan  is  very 
positive  that  he  told  Drossiades  at  the 
interview  on  8th  April  that  he  had,  of 
course,  no  objection  to  his  selling  to 
Muller  or  Myers,  but  that  his  firm  was 
to  have  the  security  of  the  plaintiffs  as 
theretofore,  until  the  liabilitv  was  ex- 
tinguished by  repayment  in  full  of  their 
loan.  He  states  that  Drossiades  agreed 
to  this,  and  that  all  the  subsequent 
transactions  were  carried  through  on 
the  basis  of  such  understanding.  Mann, 
though  he  was  not  a  clear  witness,  was 
equally  emphatic  on  this  point;  and  I 
believe  that  both  he  and  Mr.  Ryan  are 
absolutely  honest  in  their  evidence  ae  to 
that  being  the  way  in  which  they  under- 
stood the  arrangement.  Mr.  Kyan  is 
corroborated  by  a  pencil  memorandum 
copied  by  him  into  the  ''  Supported 
Accounts  Book,"  on  the  folio  devoted  to 
DroflBiades   and   the   Britannia     Hotel, 


from  a  note  taken  on  a  loose  piece    of 
paper,     since      destroyed,  of  the      pro- 

Sisitiona  made  to  him  by  Muller  and 
rossiades  at  the  interview  of  8th 
April.  The  genuineness  of  this  en- 
try is,  to  my  mind,  beyond  doubt,  and 
it  13  in  the  following  terms :  "  Mr.  Muller 
paya  £4,000  for  goodwill;  own  cash, 
£1,700;  Bosman-Powia,  £500;  W.R. 
and  Co.,  £500;  Drossiades,  £1,300; 
pay  Drossiades  £15  per  mouth  off  re- 
maining capital ;  Muller  undertakes  to 
carry  out  the  agreement  of  Drossiades — 
the  latter  to  be  surety  for  fulfilment  of 
same. — ^April  8,  1905,  as  per  interview 
of  Drossiades  and  Muller."  It  is  true 
that  the  above  terms  of  payment  were 
not  eventually  literally  adhered  to; 
but  that  was  a  matter  between  Muller 
and  Drossiades,  and  there  was  ample 
time  for  a  modification  of  them  between 
8th  April  and  4th  May;  but  Mr.  Ryan 
can  hardly  have  made  any  mistake  as 
to  the  undertaking  to  remain  surety  on 
the  part  of  Drossiades.  Mr.  White, 
too,  to  whom  the  matter  was  reported 
on  his  return,  swears  that  it  never  en- 
tered his  mind  that  the  plaintiffs,  whose 
financial  position  was  satisfactory,  should 
be  released,  and  that  their  obligations 
should  be  replaced  by  the  unsecured 
liability  of  Mrs.  Myers  and  Mr.  Muller, 
of  whose  position  nothing  was  known, 
save  that  Muller  was  somewhat  in- 
volved in  speculations  in  immovable  pro- 
perty and  rather  *'  shaky  "  in  conse- 
quence; and  Mr.  White  also  is  a  wit- 
ness on  whose  veracity  I  feel  satisfied 
that  I  can  safely  rely.  As  to  him,  aa 
well  as  Messrs.  Ryan  and  Mann,  I 
think  the  utmost  that  can  with  effect 
be  said,  is  that  they  misunderstood 
what  Drossiades  considered  to  be  the 
contract;  but  as  to  what  thev  them- 
selves understood,  I  do  not  think  that 
they  could  have  been  under  any  mis- 
apprehension. It  is  clear  that  after 
5th  May  neither  the  plaintiffs  nor  the 
defendants  took  any  immediate  steps, 
the  one  side  to  get  back  their  pro- 
missory note  and  pro  rata  interest,  or 
the  other  to  get  a  deed  of  security 
^i^ncd;  and  each  explains  that  the 
delay  was  partly  due  to  their  trust  in 
the  other ;  but  the  defendants  also  say 
that  they  were  waiting  to  see  what  the 
action  of  the  Licensing  Board  would 
be ;  and  it  is  clear  that  shortly  after 
the  transfer  to  Mrs.  Myers  was  sanc- 
tioned, the  defendants  gent  for^  Mr. 
Drossiades,  and  asked  him  to  sign  a 
deed  of  suretyship,  and  to  get  his  part- 
ners to  sign  it  also.  It  has  been  sug- 
gested that  this  step  was  taken  by 
them  because  of  knowledge  as  to 
Muller's  position,  which  may  have 
reached  them  about  that  date;  but  thcri 
is  no  evidence  of  anything  of  the  kind, 
and  I  accept  Mr.  Whitens  statement 
that  he  praatically  knew  Muller's  posi- 
tion immediately  after  his  return  from 
Natal,   or  a.bout  April  25.       When  the 


732 


"CAPE  TIMES**  Law  BEPOHTd. 


deed  of  »u>retyBhip  was  drawn  and  pre- 
sented (to  Droasiiifaes  (and  this  wa«  about 
May  26),  he  took  it  away  with  him, 
and  White  and  M&nn  say  that  he  took 
it  to  procure  his  partners*  signatures, 
and  they  also  say  that  he  returned  in  a 
few  da^,  saying  that  his  partnere  refus- 
ed to  sign  any  deed  of  the  kind.  Dros- 
c^iades  denies  this,  and  says  that  he  took 
the  deed  away  aoGidentally,  and  inad- 
vertently being  at  the  tiane  agitated  by 
a  somewhat  stormy  scene  with  White, 
who  insisted  that  he  was  morally  bound 
to  sign  sueh  document,  and  he  swears 
that  ne  never  presented  the  deed  to  his 
partners,  who  codrroborate  him  on  this 
point.  Here  it  a{>pearB  to  me  that  the 
balance  of  probahilities  is  against  Dros- 
siades.  He  does  iK>t  seem  to  be  a  man 
who  would  lose  his  head,  or  be  flustered, 
and  I  am  inctined  to  believe  that  when 
he  took  the  deed  he  intended  1o  present 
it  to  his  partners  for  s^nature.  Wha.t 
happened  between  them  it  is,  of  couree, 
difficult  to  conjeDture,  and  it  may  even 
be  that  Drossiades  had  promised  more 
than  he  was  authorised  to,  and  that  he 
shirked  the  task  of  laving  the  document 
before  his  partners;  but  the  probabili- 
tie0  are  rather  that,  on  consideration  of 
what  had  happened,  and  of  what  they 
knew  to  be  the  ertate  of  the  books  and 
documents,  they  considered  that  they 
would  no  longer  be  hold  to  be  in  any 
way  bound,  and  that  they  might  safely 
refuse  to  sign  such  a  document.  What- 
ever reasons  may  have  actuated  h^m,  it 
is  clear  that  Drosedades  did  refuse  to 
sign  the  deed,  and  about  a  wec^  kiter 
defendants  wrote  telling  him  that  they 
would  hold  his  firm  to  their  onginaJ 
agreement  as  to  their  immediate  indobt- 
ednctjs  for  their  unpaid  liability.  The 
dofeiidants  replied  on  June  9,  though 
their  attorney  setting  up  the  novation, 
repudiating  liability  to  become  sureties 
and  demanding  (then  for  the  first  time) 
the  return  of  their  promissory  note  for 
£500,  and  the  pro  rata  return  of  the 
interest.  It  will  thus  be  seen  that  the 
direct  contradiction  between  Droaaiades 
and  the  defendants  is  on  the  point  whe- 
ther or  no  there  was  any  veroal  under- 
taking by  him  that  in  spite  of  the  intro- 
duction of  Dinah  Myers,  and  the  sale  of 
the  hotel  to  her,  he  and  his  firm  could 
remain  answerable  as  sureties  to  the 
p^lain tiffs.  For  the  uncertainty  and  pos- 
sibility of  doubt  and  contradiotion  which 
exists,  both  parties  are  blameable.  They 
are  all  busincis  men,  and  whichever  side 
i<3  right  it  would  have  been  so  simple  to 
have  placed  the  matter  T>eyond  ail  doubt 
by  a  business-like  record  of  the  agree- 
ment. As  matters  stand,  it  is  possible 
that  the  parties  n>ay  not  have  under- 
stood one  another,  on  .A4>ril  8.  upon  this 
point,  and  in  that  case  there  would 
never  have  been  a  consensus  to  a  nova- 
tion ;  or  it  may  be  that  <?hough  the  par- 
ties then  quite  understood  each  otJier, 
one  or  other  is  now  endeavouring  to  ob- 
tain an  advantage  for  which  he  did  not 


then  bargain.  The  plaintiffs  in  ihkt 
action  seek  to  get  their  promissory  note 
returned  in  such  a  manner  as  would 
amount  to  a  declaration  by  the  Court 
ths/t  there  was  a  complete  novation,  and 
that  they  are  freed  from  all  further  lia- 
bility to  the  defendants,  whatever  the 
future  conduct  or  default  of  Mrs.  Myers 
or  Mullef  may  be.  I  cannot  say  that 
their  evd-ience  convinces  me  that  such 
was  the  real  contract  between  them,  and 
I  do  not  feel  safe  in  giving  a  fioai 
judgment         which  would         have 

that  effect,  or  be  capable  of  bearing 
that  interpretation.  On  the  other 
hand,  the  defendants  resist  the  claim 
bv  a  plea  that,  before  handing  over  the 
note,  they  are  entitled  to  <K>tain  from 
the  plaintiffs  an  undertaking  of  sure^- 
ship  for  the  due  fulfilment  of  her  obli- 
gations by  Mrs.  Myers;  but  they  make 
no  claim  in  reconvention  asking  for  an 
order  to  that  effect  upon  the  plaintiffs; 
and  it  is  possible  that  nad  they  done  so, 
and  had  the  burden  of  proof  been 
upon  them,  they  might  have  failed  in 
convincing  the  Court  that  they  were 
entitled,  in  the  face  of  the  state  of  their 
books  and  of  the  documentary  evi- 
dence, to  any  such  order.  As  the 
burden  of  proof  in  the  present  case 
rests  upon  the  plaintiffs,  and  as  they 
have  failed  to  satisfy  me  that  there  was 
a  complete  novation  entirely  freeing 
them  from  all  obligations,  upon  which 
fact  their  whole  claim  rests,  there  will 
be  absolution  from  the  instance  on  the 
claim  in  convention,  in  so  far  as  a  re- 
turn of  the  note  is  claimed.  The  effect 
of  this  will  be  that  the  defendants  will 
not  be  ordered  to  give  up  the  plaintiffs' 
promissory  note,  which  is  now  overdue; 
but  the  Court  is  not  called  upon  to 
pronounce,  and  will  not  dedare  what 
remedies  they  still  have  upwn  the  note, 
or  how  such  remedies  are  to  be  exer- 
cised. With  regard  to  the  plaintiffs' 
claim  for  £9  17s.  6d.,  which  is  ad- 
mitted by  the  defendants  to  be  valid, 
there  will  be  judgment  in  favour  of 
the  plaintiffs.  As  both  parties  seem  to 
me  to  be  equally  responsible  for  the 
imbrofflio  which  exists,  and  for  the 
state  of  uncertainty  in  which  their  re- 
spective rights  are  involved,  there  will 
be  no  order  as  to  costs.  The  order 
which  the  Court  makes  is  that  there 
be  judgment  for  the  plaintiffs  for  £9 
ITs.  6d.,  and  no  order  as  to  costs. 

[Plaintiff's  AUorney :  Stanley-Jones ; 
Defendant's  Attorneys:  Syfret,  Godlon- 
ton  and  Low.] 


"CAi^B  TIDES'*  tiAW  BEPOtil^. 


Tto 


SUPREME  COURT 


FIRST  DIVISION. 


[Before  the  Acting  Chief  Justice,   the 
Hun.  8ir  John  B  ecu  an  an  ] 


BEX  V.  BOYD. 


{ 


190d. 
Au^.   3ist. 

Stock  theft— Act  7  of  1905— 
Hard  labour  —  Magistrate's 
jurisdiction. 

In  cases  of  stock  theft  where  a 
Jiiie  has  been  imposed  with  the 
alternative  of  imprisonment^ 
the  Magihtrate  may  not  sentence 
to  such  term  of  imprisonment 
with  hard  labour. 


Buchanan.  A.  C.  J.,  said  that  the 
case  of  Freaerick  Boyd,  of  Calvinia,  and 
a  number  of  other  cases,  had  come  be- 
fore him  in  Chambers,  and  these  cases 
raised  the  question  whether  the  Magis- 
trate, in  default  of  a  fine  being  paid, 
in  cases  of  theft  of  stock,  could,  under 
the  Act  of  1905.  with  the  alternative 
imprisonment,  add  the  imposition  of 
hard  labour.  In  the  Eastern  Districts 
tho  sentences  of  Magistrates  who  had 
imposed  hard  labour  in  default  of  pay- 
ment of  the  fine,  had  been  confirmed, 
probably  without  attention  being  called 
to  the  wording  of  the  Act,  and  His 
Lordship  believed  several  cases  had  also 
been  passd  here.  The  attention  of  the 
Attorney-General  had  been  called  to 
the  wording  of  the  Act.  and  he  was  not 
prepared  to  support  the  imposition  of 
hard  labour  in  cases  of  imprisonment 
in  default  of  payment  of  the  fine. 
There  was  nothing  in  the  section  of 
the  Act  as  to  hard  labour,  and  in  the 
cases  which  had  come  before  him  the 
sentences  would  be  confirmed,  but  the 
portion  referring  to  hard  labour  must 
be  omitted. 


ADMISSIONS. 


Mr.  J.  E.  R.  de  Viliiers  applied  for  the 
admission  of  Benjamin  Goalieb  Heyden- 
rich  86  an  attorney,  notary,  and  con- 
veyancer. 

Granted. 

Oaths  administered. 

Mr.  J.  E.  R.  de  Viliiers  applied  for 
the  admission  of  Mortimer  Jooste  as  an 
attornev.      He  asked  that  permission  be 

granted  to  take  the  oaths    before     the 
ommissioner  of  Oaths  in  Johannesburg. 
The  Acting  Chief  Justice  said  that  it 
had  been  pointed  out  before,  that  it  was 


only  reasonable  that,  when  persons  wish- 
ed to  be  admitted,  they  should  take  the 
oaths  either  in  Cape  Town  or  before 
some  officer  of  the  Supreme  Court.  He 
would  suggest  that  the  applicant  might 
take  the  oaths  at  Kimberfey  or  at  the 
Eastern   Districts  Court. 

Mr.  De  Viliiers  said  that  he  thought 
the  Eastern  Districts  Court  would  suit 
the  applicant. 

Granted,  applicant  to  take  the  oaths 
before  the  Enstern   Districts  Court. 

Mr.  H.  S.  van  Zvl  applied  for  the 
admission  of  Archibald  Henderson  as  a 
notary.  He  asked  that  the  applicant  bo 
allowed  to  take  the  oaths  before  the  Re- 
sident Magistrate  of  Gnquatown. 

Granted,  the  applicant  to  take  the  oath 
befoie  the  Resident  Magistrate  of  Gri- 
quatown. 


PROVISIONAL  ROLL. 


ESTATE  OF  HDTT  V.  PATNE.  |  ^^l     3]8t, 

Dr.  Greor  applied  for  provisional  sen- 
tence on  an  I.O.U.  The  matter  had  pre- 
viously been  before  the  Court,  when 
leave  was  granted  to  sue  bv  edict al  cita- 
tion ;  and  publication  haol  been  duly 
made,  as  ordered. 

Provisional  sentence,  as  prayed. 


BBUSSBL  AND  CO.  Y.  BNYMAN. 

Dr.  Greer  asked  that  the  provisional 
order  of  sequestration  granted  by  the 
Court  in  October  be  discharged.  (14 
C.T.R.,  820.) 

Order  granted. 


BABTHOLOMBW  V.  DBLMORE. 

Mr.  P.  Jones  asked  for  provisional 
sentence  on  a  mortgage  bond  for  £100, 
with  interest  tut  6  per  cent.,  and  that 
the  property  specially  hypothecated  be 
declared  executable. 

Order  granted. 


OAKLAND  y.   DELMOBB. 

Mr.  Gutsche  produced  an  affidavit  to 
show  that  the  respondent  had  been  duly 
summoned  to  appear.  He  now  asked 
for  provisional  sentence  for  £1,100,  with 
interest  from  December,  1902,  at  6  per 
cent.,  less  £158  15s.,  paid  on  account, 
due  by  reason  of  non-payment  of  inter- 
est, and  thai  the  property  specially  hy- 
pothecated be  declared  executable. 

Order  granted. 


OBIQUALAND  WEST  LOAN.  TBUfeT  AND 
AGENCY  CO.  V.  FORSYTH. 

Mr.   Benjamin  applied  for  provisional 
sentence  on  two  mortgage     bonds     for 


734 


(1 


CAPB  T1MB8'*  LAW  REPOttTft. 


£750  and  £500.  with  interest  «t  10  per 
cent,  from  April  1.  1905,  due  by  rewon 
of  non-payment  of  instalments,  and  that 
the  property  specially  hypothecated  be 
declared  executable. 
Order  granted. 


TBKGIDGA  V.  SPENOLBi:. 

Mr.  Payne  applied  for  proviaional  sen- 
tence on  two  mortgage  bonds  for  £1,800 
and  £250,  with  interest  from  July  21, 
1904,  and  September  18,  190^,  respective- 
ly due  by  reason  of  non-payment  of 
interest ;  and  that  the  property  specially 
hypothecated  be  declared  execut«tble. 

Order  granted. 


FAURB  V.  GIBBONS. 

Mr.  Benjamin  applied  for  provisional 
sentence  on  a  mortgage  bond  for  £400, 
with  interest  at  6  per  cent.,  less  £10 
paid  on  account,  due  by  reason  of  non- 
payment of  interest;  and  that  the  pro- 
perty specially  hypothecated  be  declared 
executable. 

Order  granted. 


BERRANGE  V.  8HAW. 

Mr.  D.  Buchanan  applied  for  the  final 
adjudication  of  the  respondent's  estate 
as  insolvent. 

Order  granted. 


KLBIN  V.  STEIN. 

Mr.  Lew'ia  applied  for  the  final  ad- 
judioa'tion  of  the  respondent's  estate  ais 
insolvent. 

Order   graiyted. 


TURKINGTON   V.  HUMPHRBYS. 

Mr.  Long  applied  for  provisional  sen- 
tence on  a  promitisory  note  for  £25,  w*bh 
interest  from  June  1.  1905,  at  10  per 
cent. 

Order   granted. 


INGLESBV  V.  JACK  MAN. 

Mr.  D.  Buchanan  applied  for  pro- 
vieional  sentence  on  a  mortgage  bond 
for  £1,100,  wit^h  interest  from  January 
1,  1905.  due  by  reason  of  non-payment 
of  interest,  and  that  the  property  spe- 
cially hypotiheovted  be  declared  execut 
able. 

Order   granted. 


HAMMEBBCHLAG  V.  ESTBBHUI8BN. 

Mr.   De  Waal  applied   for  provisional 
sentence  on  two  notarial  bonds,  one  for 


£133  18s.,  dated  Auguspt  2,  1904,  and 
bearing  interest  at  6  per  cent,  from 
August  1,  and  one  for  £100,  da4«d 
February  25,  1906.  and  bearing  interest 
at  8  per  cent,  from  Fetjruary  1.  Pay- 
ment became  due  by  reason  of  the 
bonds  having  been  called  in.  He  also 
asked  for  judgment  under  Rule  329d 
there  appeared  to  be  no  deifauH  with 
regard  to  the  second  application.  Pro- 
vdaional  sentence  woixicl  therefore  be 
for  £58  16s.  4d.,  for  goods  sold  and 
delivered,  and  interest  a  tempore 
I     morae. 

Buchanan,  A.  C.  J.,  said  that  there 
appeared  to  be  no  default  with  regard 
to  the  second  application.  Provisional 
sentence  would  therefore  be  given  on 
the  two  notarial  bonds. 


ROWLAND  HILL  AND  CO.  V.  8CHAPBRA. 

Mr.  Pajme  appUed  for  provisional  sen- 
tence on  a  promissory  note  for  £100. 
less  £10  paid  on  account,  and  judg- 
ment under  Rule  329d  for  interesr  on 
fhe  sum  of  £90.  balance  due,  and  costa 

Order   granted. 


BENDBEIM  V.  GOLDSTEIN. 

AppUoation  was  made  for  the  final 
adjiKUcation  of  the  respondent's  estate 
as  insolvent.  The  provisional  order  of 
sequestrartaon  was  granftod  by  the  Court 
on  August  8. 

Order   granted. 


FIOK  V.  TANNKB. 

Mr.  Roux  moved  for  i^he  final  adjudi- 
oa<t»ion  of  the  respondeot's  estate  as  in- 
solvent. Mr.  Benjamin  opposed  the 
apip^oation. 

The  {daintiff's  affidavit  set  forth  «bat 
a  judgment  had  been  obtained  against 
t/ho  respondent  for  £700.  The  plaintiff 
sold  oeitadn  land  to  the  r<^ponaent,  on 
condition  that  £100  be  paid  down,  and 
t!hat  transfer  should  be  passed  at  the 
end  of  four  mout^hs,  on  payment  of  the 
balance  oi  tlie  purohase  price  (£700). 
When  tihe  four  moa^hs  expo  red  plaintiff 
owing  to  certain  legal  difficulties,  was 
not  able  to  pass  transfer.  Since  t-heii 
the  respondent  had  disposed  of  certain 
plots   of  the   ground. 

Mr.  Beniamin  read  the  affidavit  of 
the  Rev.  W.  0.  C<ylilins,  whic4i  stoted 
that  he  was  nresent  wiben  payment  of 
the  balance  of  the  purcftiaae  money  was 
tendered.  It  was  entirely  owing  to  the 
reports  spread  by  Fkk  that  the  sale  of 
pJots  of  the  ground  were  interfered 
wtith.  The  affidavit  of  Mr.  McLeod 
stated  that  tihe  present  stoite  of  the  re- 
spondent's affairs  waa  due  to  the  aotfon 
ol  the  plaintiff.  Counsel  stoted  ibat 
the  affidavits  showed  that  Fick  had  told 
the    persons   who    had    purchased     lots 


"CAPE  TIMBS"  LAW  EEPORTS. 


735 


fram  bhe  respondent  t)i»t  he  (Fiok)  wu 

Oto  take  poaeeeai  m,  and  ao  inter- 
with  the  paymexit  of  the  purchase 
prioee  by  these  people  to  Tanner.  Had 
nhe    respondent   been    able    to  sell    the 

Slots  and  receive  payment,  he  would 
ave  been  in  a  position  to  pay  off  the 
£700.  He  urged  thaft  the  respondent 
Btbould  be  allowed  time.  When  the 
notttter  wva  before  the  Court  on  a  pre- 
Tdous  oooasion,  the  respondeat  had  ten- 
dered payment. 

Buchanan,  A.  C.  J.,  suggested  that 
the  parties  should  try  to  come  to  some 
arrangement.  The  Court  would  direct 
that  the  provisional  order  stand  over  to 
allow  time,  in  consequence  of  the  num- 
ber of  small  holders  interested.  The 
matter  would  stand  over  until  Novem- 
ber 10. 


THE  MA8TEB  Y.  BUTSKB8. 

Mr.  Nigihtingale  moved  for  an  order 
oaUdn^  on  the  defendant  to  file  a  dk- 
tnibutoon   acoount. 

Order  granted. 


ILLIQUID  ROLL. 


I    MOHLAN  AND  80LMB  V 
STEVENS. 


•   { 


1906. 
Aug.   31st. 

Mr.  Searle,  who  appeared  for  the 
plaintiffs,  said  that  this  was  originally 
an  action  for  an  interdict  and  damages 
for  the  infringement  of  a  patent.  An 
arrangement  had,  however,  been  come 
to  by  the  parties,  and  he  asked  for  judg- 
ment in  terms  of  the  consent  paper  put 
in,  which  provided  for  the  payment  of 
£5  damages. 

Judgment  in  terms  of  the  oonseui 
paper. 

EDWARDS  V.  COLONIAL  OOVERNMENT. 

Mr.  J.  E.  R.  de  Villiers  applied  for 
judgment  in  terms  of  the  consent  paper 
put  in,  declaring  the  plaintiff  entitled 
to  remain  in  free  and  undisturbed  pos- 
session of  certain  property  and  provid- 
ing for  the  pavment  of  £30  by  the  plain- 
tiff to  the  defendant. 

Order  granted  in  terms  of  the  consent 
paper. 


ALLIE  V.  BENNET. 

Mr.  Le  Rouz  apolied  for  an  order, 
directing  the  respondent  to  transfer  cer- 
tain property  within  fourteen  days,  fail- 
ing which  the  eale  be  cancelled. 

Order  granted. 


VAN  NIBKERK  AND  CO.  V.  KABBR 

Mr.    Benjamin   applied   for  judgment, 
under  Rule  329d,  for  £115  14s.  iSd.,  in 


respect  of  goods  sold  and  delivered.  He 
stated  that  the  respondent's  property 
had  been  attached  ad  fundandam  juris- 
dictionem,  and  he  was  now  instructed  to 
ask  for  an  order  declaring  the  property 
specially  hypothecated  to  bo  declared 
executable. 
Granted. 


COLONIAL  OOVEBNHENT  V.  LATEOAN. 

Mr.  Nightingale  applied  for  judgment, 
under  Rule  32»d,  for  £146  17fi.  6d.,   for 
convict  labour  supplied,  and  for  £10  6s 
od^  for  goods  sold  and  delivered. 

Granted. 


RIPLEY  V.  DUFPUS. 

^'-  « -1  ®iS?J  'PPJied  for  judgment, 
under  Rule  329d.  for  debt  due,  wrth  m- 
terest  a  tempore  morae  and  costs  of  suit, 
m  respect  of  goods  sold  and  delivered. 

Granted. 


SHIELDS  V.  FLETCHER. 

A^i  ^^'^J^^P^^^iJ?^  judgment,  un 
der  Rule  329d,  for  £113  lis.  7d.,  balance 
of  account  for  salary  due,  and  interest  a 
tempore  morae,  and  costs  of  suit. 
Granted. 


VOS  V.  TURNER. 

¥''•  ^^  ^^^  applied  for  judgment, 
under  Rule  329d,  for  £64  19s.  3d.,  being 
moneys  disbursed,  with  interest  and 
costs  of  suit. 

Granted. 


NICOLL  V.  HENDRICKS  AND  CO. 

Mr.  M.  Bisset   applied  for  judgment, 
under  Rule  329d,  for  £75  4s. 
Grsnted. 


WEIMAR   V    DAVIE8.  ANDERSON  AND  CO. 

Mr.    M.    Bisset  applied  for   judgment 
under  Rule  329d,  for  £32  17s.  6d..   with 
mtereet  and  costs  of  suit. 

Granted. 


GOODYEAR  V.  NEWTON. 

^^'  i^i  ^JJJi^  applied    for    judgment, 
under  Rule  329d,  for  £25,  money  lent. 
Granted. 


NATIONAL  DRILL  CO.    V.  BRADBURY. 

Mr  Sutton  applied  for  judgment,  un- 
der Rule  329d,  caUing  upon  the  respon- 
dent to  give  delivery  of  a  certain  -  Na- 
tional" drill,  faihng  which  he  be  order- 
ed to  pay  the  sum  of  £60,  with  inter- 
est,   and  costs  of  suit. 

Granted,  delivery  to  be  made  within 
14  daye. 


786 


€( 


CAPE  TIMES"  LAW  REPOBTa 


GENERAL    MOTIONS. 


Ex  parte  GREByp   AND 
BOUWER. 


{ 


190.".. 
Aug.    3lBt. 


Mr.  Searle  moved  to  make  absolute  the 
rule  niH,  under  the  Derelict  Lands  Act. 
Mr.  Benjamin  opposed  the  application. 

Counsel  for  the  petitioners  explained 
that  this  application  was  made  under  the 
Derelict  Lands  Act,  and  that  da^  was  the 
return  day  of  the  rule  nm.  This  matter 
had  been  before  the  Court  before,  when 
it  was  suggested  that  the  present  peti- 
tioners should  divide  the  erf  in  ques- 
tion between  them,  and  then  a  rule  ni$i 
was  made  by  the  Court  to  have  the  erf 
registered  in  both  their  names.  Now 
another  party  stepped  in  and  opposed 
the  application. 

Mr.  Benjamin  asked  for  a  postpone- 
ment, in  order  to  allow  the  opposing 
party  to  file  an  affidavit. 

Buchanan,  A.  C.  J.,  directed  that 
the  matter  be  postponed  until  October 
16,  affidavits^  to  be  filed  by  the  oppos- 
ing party  within  three  weeks. 


Ejp  parte  VAN  NIKKERK. 

Mr.  Le  Roux  moved  to  make  abso- 
lute a  rule  niai,  under  the  Derelict 
Lands  Act. 

Granted. 


E3P  parte  KOEKBMOER. 

Mr.  Gutsclie  moved  to  make  absolute 
the  rule  nut,  under  the  Derelict  Lands 
Act. 

Granted. 


Ex  parte  CARELSE. 

Mr.  Van  Zyl  moved  for  leave  to  sell 
certain  property  in  terms  of  the  peti- 
tion. There  were  no  minors  in  the 
estate  concerned,  and  all  the  majors  had 
given  their    consent  to    the  sale. 

Granted. 


Ex  parte  SAMSON. 

Mr.  Swift  moved  for  an  order  author- 
ising the  Registrar  of  Deeds  to  pass 
transfer  of  certain    property. 

Granted. 


Ex  parte  ESTATE  OP  BOTHA. 

Mr.  Benjamin  moved  for  an  inter- 
dict restraining  the  Registrar  of  Deeds 
from  passing  transfer  of  certain  property, 
pending  an  action  to  be  instituted.  Mr. 
Searle  opposed  the  application. 

Mr.  Benjamin  read  affidavits  in  sup- 
port of  the  application. 

Mr.  Searle  read  Answering  affidavits, 
and  pointed  out  that  the  estate  would 
not  have  been  insolvent  but  for  the  low 


value  put  CD  the  property  by  Mn. 
Botha. 

Buchanan,  A.  C.  J.,  said  he  would  like 
to  have  some  explanation  of  the  trustee's 
extraordinary  oonduct  in  disposing  of  the 
property  the  day  after  the  meeting  of 
creditors,  without  advertising  it  in  the 
"Gazette." 

The  matter  was  ordered  to  stand  over 
for  trial  at  the  Circuit  Court,  the  notice 
to  stand  as  summons,  costs  to  be  left  to 
the  discretion  of  the  Circuit  Court. 


Ex  parte  vuso. 

Mr.  Lewis  moved  for  an  order  as  to 
service  on  the  defendant,  whom  the  ap- 
plicant was  auing   for  divorce. 

Buchanan,  A.  C.  J.,  said  service  of 
notice  at  the  defendant's  last-named 
place  of  residence — namely,  the  defend- 
ant's father's  house— would  be  sufficient. 


INCORPORATED  LAW  SOCIETY  Y.  O'BRIEN. 

Mr.  Benjamin  moved  to  make  abso- 
lute an  order  calling  on  the  respondent 
to  show  cause  why  nis  name  should  not 
be  removed  fr<xn  the  roll  of  attorneys, 
on  the  ground  of  his  having  misappro- 
priated certain  moneys  handed  to  nim 
tor  the  purpose  of  conducting  certain 
oases. 

Order  as  prayed,  with  costs. 


Mr. 


Ex  parte  LAD  AM. 
M.  Bdaseit   moved  to  make   abso- 


lute  a   rule  nwt  oalling    on    all  persons 
concerned  to    ahow    cauee    whv   certain 
property   should    not   be    transferred   to 
the  applioanit. 
Grarrted. 


Em  parte  KILILT. 

Mr.  Roux  moved  for  an  order  au- 
thorising the  Registrar  of  Deeds  to 
transfer  certain  land  to  the  petitioner. 

A  rule  niai  waa  granted,  oalling  on 
all  concerned  to  show  cause  whv  trans- 
fer sfhould  not  bo  passed,  to  be  pub- 
liethed  once  in  "Imvo"  and  the  "  Kok- 
spbad     Adventiser." 


GAPE  MARINE  SUBURBS  Y.  RKCBEATIOK 
SYNDICATE,  LTD. 

Mr.  Roux  moved  for  an  order  for  the 
wiinding  up  of  the  Recreation  Syndicate, 
and  for  the  appointment  of  an  official 
liquidator. 

A  rule  nUi  was  granted,  returnable 
on  the  IStdi  Septemtter,  oalling  on  all 
concerned  to  show  cause  why  t^e  prayer 
rix)uld  not  be  granted,  one  publication  m 
the  "Cape  Times," 


€< 


CAPE  TIBfBS"  LAW  REP0ET8. 


787 


Ex  parte  ALLBN  AMD  00. 

Dr.  Rainsford  moved  for  an  order 
aupthoriaing  the  enregisterment  of  certain 
letteiB  palent. 

Order  as  prajred,  wiithoufc  prejudioe  to 
any  rigbts  to  Beit  aside  the  registra- 
feion. 


OAROLESSEK  V.  PAUL8E. 

Mr.  P.  S.  T.  Jones  nioved  to  have 
an  awiard  of  the  arbiitrator  made  a  rule 
of  Ck>u<rt.  wirtih  ooeits  against  the  defen- 
damt. 

A^ard  made  a  rule  of  Court,  with 
costs,  the  respondent  being  ordered  to 
pay  the  coats  of  suit. 


Ex  parte  VAN  WYK. 

Mr.  Bailey  mored  for  leave  to  mort- 
gage oeiitaan  property  in  the  estate  of 
Uie  petivtdoneris  late  father,  in  order  to 
pay  the  debts  due  by  the  estate. 

Granted. 


OOURLAY  V.   BAUMQABTEM  AND  QATEB. 

Dr.  Rainsford  moved  for  an  order  call- 
ing on  the  respondents  to  show  oause 
why  a  certain  partnership  should  not 
be  Hquidisited,  and  for  the  appointment 
of  a  receiver  in  the  defendan'to'  e^rtwte, 
the  order  to  aot  as  an  interdict  to  re- 
0ti«<in  the  respondents  from  alienating 
any  of  the  s^eete  of  the  partnerahdip. 

A  rule  iMM  was  granted  calling  on 
all  concerned  to  show  cause  whjr  the 
partnership  should  not  be  placed  in  li- 
c]uidi8ffaion.  the  order  to  act  as  an  inter- 
im intercnct,  and  funther  cause  to  be 
e(hown  wherelby  Mr.  Close  i/hould  not 
be  amxnnted  as  receiver,  personal  ser- 
vice if  passible.  faaUng  whoch  one  pub- 
lication in  the  "Daily  Telegraph,'* 
London,  and  one  in  the  '*  Umtata  Her- 
ald." 

On  the  application  of  Dr.  Rainsford, 
the  order  was  made  returnable  on  No- 
vember 2. 


Ex  parte  VENTEB. 

Mr.  Roux  moved  for  an  order,  author- 
ising the  payment  of  certain  moneys. 
Couneel  explained  that  there  were  eight 
minor  heirs  in  the  estate,  three  of  whom 
wanted  certain  sums,  held  for  them  un- 
der a  certain  bond,  paid  over  to  them, 
in  order  that  they  might  buy  sheep  to 
stock  their  farm.  One  of  the  minors  was 
dead.  The  report  of  the  Master  of  the 
Supreme  Court  was  most  favourable.  It 
recommended  that  the  three  minors  in 
question  be  allowed  to  purchase  sheep, 
as  desired ;  that  the  money  due  to  the 
deceased  minor  under  the  bond  be  paid 
inPto  the  Guardian  Fund ;  that  £100  each 
be  paid  to  the  four  remaining  children ; 
and  that  the  original  bond,  6zing  £100 


each  on  the  eight  children  be  cancelled. 
The  {>etitioner  now  asked  that  £100  be 
paid  into  the  Guardian  Fund,  in  respect 
of  the  deceased  child's  share ;  that  £100 
each  be  paid  to  four  of  the  minors;  that 
to  himself  and  the  remaining  two  £100 
each  be  paid,  in  order  that  they  might 
buy  stock;  and  that  the  original  bond 
be  cancelled. 

Order  granted,  in  terms  of  the  Mas- 
ter's report. 


Ex  parte  VAN  BENSBUBO. 

Mr.  Bailey  moved  for  the  confirmation 
of  the  sale  of  certain  property,  sold  in 
terms  of  the  will  of  the  late  Johannes 
Frederick  van  Rensburg.  The  petition- 
er and  another  were  appointed  executors 
testamentary  in  the  deceased's  estate. 
Counsel  read  affidavits  to  show  that  the 
property  was  sold  at  a  fair  price,  and 
that  the  sale  was  bona  fide. 

The  Acting  Chief  Justice :  The  Court 
will  not  confirm  the  sale,  but  will  author- 
ise the  Registrar  of  Deeds  to  pass  trans- 
fer. 


Ex  parte  HAZELL. 

Mr.  P.  Jones  moved  for  an  order  re- 
leasing the  petitioner  from  his  curator- 
ship  of  one  Edward  Everton,  on  the 
ground  that  Everton  was  restored  to  his 
sound  mind  again.  The  applicant  had 
rendered  a  full  account  of  his  adminis- 
tration of  the  estate.  On  November  6 
Everton  was  placed  under  the  curator- 
ship  of  the  petitioner ;  but,  in  August  of 
the  present  year,  he  was  certified  by 
Dr.  Black,  of  Valkenberg,  as  being  of 
sound  mind. 

Buchanan,  A.  C.  J.,  asked  if  Everton 
had  been  released  from  the  asylum,  be- 
cause the  notice  of  motion  appeared  to 
have  been  served  on  him  at  the  insti- 
tution. 

Mr.  Jones  replied  that  he  under^itood 
that  the  man  had  been  released  since 
the  notice  was   served. 

It  was  ordered  that  the  matter  should 
stand  over,  pending  the  production  of 
an  affidavit  to  show  that  Everton  had 
been  released  from  the  asylum. 


Ejp  parte  H0LME8. 

Mr.  Swift  applied  for  a  certain  award 
to  be  made  a  Rule  of  Court.  Counsel 
stated  that  the  petitioner  and  another, 
named  Schumar,  had  a  dispute  regard- 
ing certain  water  rights.  An  umpire  was 
appointed  by  mutual  consent,  and  he 
had  nMtde  the  award,  which  it  was  now 
sought  to  make  a  Rule  of  Court. 

'The  matter  was  allowed  to  stand  over, 
for  the  production  of  an  affidavit,  show- 
ing that  the  other  party,  Schumar,  offer- 
ed no  objection. 


738 


it 


CAPE  TIMES"  LAW  REP0ET8. 


WHITB,  RTAK  AKD  CO.  V.  FLORIDA. 

Mr.  Lewis  applied  for  aii  extension 
of  the  return  day  of  a  rule  ni»i  granted 
by  the  Court  in  this  matter.  When  the 
case  was  before  the  Court  on  a  previous 
ocoasion,  leave  waa  granted  to  sue  tlie 
defendant  br  edictal  citation,  he  having 
left  Cape  Town  and  gone  to  Ontario, 
Canada.  It  waa  beUeveiclp  however,  that 
since  then  Florida  had  left  Ontario  and 
gone  to  Manik^  in  the  PhilUpine  Is- 
lands. An  extension  of  time  was,  there- 
fore, asked  for,  and  direction  as  to  ser- 
vice. 

The  return  dav  was  extended  to  Feb- 
ruary 1,  personal  aervioe  to  be  effected, 
if  possible,  failing  which  application  in 
one  issue  of  the  '*  Gazette,  and  in  a 
newspaper  circulating  in  Manila. 


Ex  parte  KRIOE. 

Mr.  De  Waal  made  application  for  an 
order,  authorising  the  transfer  of  certain 
property. 

Order  granted. 


Ex  parte  MCKILLOP. 

Mr.  J.  E.  R.  de  Villiers  moved  for  the 
confirmation  of  the  sale  of  certain  pro- 
perty. Counsel  read  the  petition  of  A. 
K.  Wolfe,  setting  forth  that  the  peti- 
tioner had  been  appointed  curator  of 
James  Henry  McKiUop,  who  had  been 
declared  a  prodigal.  There  were  at 
present  debts  against  the  estate  to  the 
amount  of  £435.  The  assets  con- 
sisted of  immovable  propert^^  which 
was  sold  to  meet  the  liabilities,  and 
petitioner  now  prayed  for  an  order  con- 
firming the  sale  of  the  property  and 
the  authorisation  of  transfer. 

Granted. 


R06EN  V.  EARLS  AND  BCHMITZ. 

This  was  an  application  for  an  order 
directing  the  restoration  of  certain  pro- 
perty. Mr.  P.  Jones  appeared  for  the 
plaintiff,  and  Mr.  Le  Roux  for  the 
second  respondent,    Schmitz. 

Mr.  Jones  read  the  affidavit  of  Morris 
Rosen,  a  furniture  dealer,  which  set 
forth  that  certain  property  was  sold  by 
him,  on  the  hire  purchase  system,  to 
Earls,  and  delivered  at  the  Mount 
Pleasant  Hotel.  The  purchase  price 
was  £49.  Up  to  March  10,  .'Oarls 
paid  £5  in  respect  of  the  furniture.  On 
March  10  Earls  left  the  hotel,  and  hand- 
ed it  over,  with  furniture  and  Ct'^in^s, 
to  Schmitz.  The  amount  now  owing  in 
respect  of  the  furniture  was  £29  9s.  2d. 
Counsel  stated  that  the  matter  had 
come  before  the  Court  on  a  pre- 
vious occasion,  when  Schmitz  ap- 
peared, and  put  in  an  agreement 
which   had   been   entered   into   between 


him  and  Earls.  On  that  occasion  Mr. 
Justice  Maasdorp  granted  an  order,  re- 
straining Schmitz  from  parting  with  the 
furniture,  and  suggested  that  the 
parties  might  try  to  come  to  some  ar- 
rangement. The  matter  now  came  be- 
fore the  Court  again. 

The  Court  ordered  that  the  respond- 
ent Schmitz,  unless  he  pay  the  sum  of 
£20  on  or  before  the  4th  September, 
should  deliver  up  to  the  applicant  all 
the  furniture,  the  property  of  the  ap- 
plicant, and  pay  the  costs  of  this  action, 
and  costs  of  the  previous  motion  grant- 
ed against  both  respondents. 


MOBBIBON  V.  MUNNICK. 

Mr.  P.  8.  T.  Jones  moved  for  leave  to 
attach  certain  property,  and  sue  the 
defendant  by  ediotal  citation  for  £7D  due 
to  the  plaintiff. 

Granted,  personal  service,  if  pos- 
sible, the  edict  returnable  on  the  30th 
September,  with  leave  to  serve  the  in- 
tendit  with  notice   of  trial. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting-  Chief  Juatioe.   the 
Hon.  Sir  John  Buchanan] 


TRIAL  CAUSE. 


WALKKH  v.  BAR8D0RF. 


f. 


191).). 
Sei)t  1st. 


Thi«  was  an  aotion  brought  by  John 
Lunnden  Walker,  an  attorney,  formerly 
prac'tising  at  Claremont,  and  now  at 
Oftpe  Town,  against  Edward  Barsdorf,  a 
broker  and  general  dealer,  of  Cape 
To«wn,  for  the  recovery  of  £50.  money 
\en-t,  and  £6  Os.  9d.,  for  professional  ser- 
vices. 

The  plaintiff's  declaration  set  forth 
that  he  was  enititiled  to  £50.  money  ad- 
vanced to  t^e  defendant,  and  £6  Os.  9d.. 
in  respect  of  profemonal  services.  The 
(iefonaant  admitted  that  £50  was  ad- 
vanced to  him.  but  stated  thait  the  plain- 
tfiff  purchased  from  him  in  July.  1903. 
bwo  plots  of  ground  on  the  He^th- 
field  Estate,  Diop  River,  for  £230.  The 
conditions  of  the  sale  provided  that  in 
tShe  event  of  the  plaintiff  faiting  to  pay 
any  of  the  instalments,  which  should  be 
at  least  £1  per  motith  per  plot,  the  pro- 


"CAPE  TIMES"  LAW  REPORTS. 


739 


petrty  abould  be  pufc  up  for  sale  ibhe 
plaintiff  boing  held  liable  for  all  ex- 
penses and  any  lose  whicfh  mig-ht  arise 
m  connection  with  fhe  le-sale.  Plaintiff 
p«Md  £10  on  aooount  of  the  purchase, 
out  failed  to  pay  the  oiiher  instalmente, 
and,  according  to  the  conditions  of  sale, 
the  property  was  re-sold  by  public  auc- 
tfion  for  £92,  leaTing  in  all  a  balance 
due  bv  the  plaiintiff  of  £88.  This  sum 
defendant  claimed  in  reconvention.  The 
pladntiff,  in  'his  rejoiner,  alleged  that 
subsequent  to  the  payment  of  the  £10 
on  account  of  the  land,  the  sale  wai» 
cancelled  by  mutual  consent,  and  in 
tatisHaotion  of  tihe  £10  paid  out,  he  ac- 
cepted from  the  defendant  a  certain 
safe.  Fupbher,  in  contravention  of  the 
agreement,  Iftie  property  waa  sold,  in 
the  Pe-«ile,  privately,  and  n<yt  by  public 
aucttion.  Liabdlity  for  £5  5s.  for  goods 
■old  and  £1  money  advanced  was  ad- 
mitted. Defendant  admitted  tho  can- 
cellation of  the  original  sale,  but  denied 
thast  it  released  the  plaintiff  from  his 
Ufrbihrty  for  the  loss  si»tained  in  the  re- 
sale. 

After  ilihe  pleadings  had  been  read,  the 
ActiDg  Ohiel  Jusibice  held  that  the  onus 
of  proof  lay  with  the  defendant. 

Mr.  M.  Bissei  appeared  for  the  plain- 
tiff, and  Dr.  Greer  for  the  defendants 

Edward  Baradorf,  the  defendant  in 
tile  claim  in  convention,  and  the  pladntiff 
in  tho  claim  in  reocnvention,  btatcd 
thai  he  was  the  owner  of  certaan  lors 
of  ground  on  the  Heothfield  Estate,  two 
plots  of  which  he  sold  through  Mr. 
Marous,  an  auctioneer,  to  Mr.  Walker. 
About  seven  or  eight  n>onths  after  the 
sale,  Mr.  Walker  asked  witness  if  he 
might  re-sell  the  Ian  a  for  him,  as  he 
thougCht  he  had  paid  too  high  a  price 
for  it.  Witness  asked  what  price 
Walker  would  want,  and  Walker  replied 
that  any  sum  in  reason  would  do.  Ic 
was  then  arranged  that  Messrs.  I.  and 
J.  Hermann  should  sell  tho  plots,  with 
certain  others.  Walker  clearly  under- 
stood that  the  rc-salc  would  be  at  h'va 
profit  or  loss.  Messrs.  Hernuinn  sold 
the  plots  for  £92.  The  sale  was  a 
puft>lic  one,  and  advertised  in  the  papers. 
Witness  asked  Walker  several  times  for 
the  balance  of  the  original  purohaeo 
price.  He  oafw  Mr.  Walker  daily,  and 
made  repeated  afppHcation  for  the  bal- 
ance due.  About  September,  1904,  wit- 
ness asked  Walker  if  no  could  spare  him 
some  money,  as  he  was  hard  pressed. 
W>alker  gave  wttness  £50.  Witness  in- 
tended that  this  money  should  be  a  set- 
off to  the  -haiance  owing  by  Walker. 
He  never  intended  to  repay  the  money ; 
he  never  save  any  I.O.U.  or  acknow- 
ledgnieaat  for  it,  and  he  gave  Walker 
credit  for  it  in  his  books.  Subsequently 
Walker  spoke  to  hdm  aibout  the  £50,  and 
witness  then  said  that  he  had  set  off 
the  amount  agv^inst  the  land  purohased. 
Walker  then  remarked  that  though  he 
had  not  intended  the  £50  to  go  against 

a3 


the  land,  it  was  all  right     Two  other 
persons  were  present  on  that  occasion. 

Cross-examined  bv  Mr.  Bisset :  Witness 
thought  that  while  Walker  lent  him 
£50,  he  would  not  have  paid  £50  on 
account  of  the  land  purohased.  Witness 
made  the  entry  of  the  £50  in  the  HeoJtili- 
field   books  some  mouths  ago,  when   he 

Sarted  with  Mr.  Porter.  Prior  to  that 
Ir.  Porter  used  to  keep  the  books,  as 
agent  for  tihe  seller.  It  was  not  correct 
to  stajte  that  when  the  sale  was  cancelled 
witnoiss  was  short  of  money  and  wanted 
to  sell  the  land  to  someone  who  would 
pay  ready  cash.  In  the  oancellajtion 
paper  put  in  there  was  no  rosorvatdon 
whatever.  He  denied  that  the  i»afe  in 
c|uet>uon  wa8  his,  and  ho  di<l  not  l)e- 
heve  that  he  had  received  any  considera- 
tion   in    rt»s^M»ct  of  it. 

Re-examined  by  Dr.  Greer:  Witness's 
sole  reason  for  .v.gning  tho  cancellation 
was  that  he  wai^i  informed  th&t  iio  could 
not  re-sell  the  proiK?rty  without  his  do- 
ing so.  He  did  not  think  it  was  an  out 
and   out   cancellation. 

George  Hunter  stated  that  he  was  a 
clerk  in  the  employ  of  the  defendant. 
On  one  occasion  he  heard  Mr.  Walker 
say  to  Barsdorf,  in  his  office,  '"  By  the 
way,  I'm  deuced  hard  up ;  what  about 
that  loan  of  £50."  Barsdorf  replied, 
"  I  i-ui.  »hjtt  against  tlio  land  at  Dicp 
River."  Walker  said,  '*  If  that  is  so, 
it's  all   right. 

William  Ellis  stated  that  he  was  pre- 
sent at  the  conversation  mentioned  by 
the  witness  Hunter,  and  gave  corrobora- 
tive evidence. 

Jolni  Marcujs,  who  was  auctioneer  on 
the  occasion  of  the  first  sale,  stated 
that  about  four  or  five  months  after 
the  puroliaso  Mr.  Walker  aaid  to  him 
thiat  ho  thought  tlia-t  he  had  paid  too 
much  for  the  ground,  and  would  like  co 
sell    dt. 

Thomas  Herbert  Hazell,  administering 
trustee  in  the  int-olvent  e-itate  of  Philip 
Porter,  gave  evidence  "as  to  certa-in 
entrieri  in  the  Hoa^hfield  books. 

Dr.  Greer  closed  his  case. 

John  Hamilton  Walker,  the  plaintiff, 
said  that  he  purchased  the  two 
lots  for  £230,  and  paid  £10  down.  He 
did  part  of  tho  conveyancing  work  of 
the  Heathfield  Estate.  He  had  never 
been  asked  to  pay  any  instalments  on 
account  of  the  purchase  of  tho  land, 
alter  the  cancellation  of  the  sale. 
Witness  had  a  running  ac- 
count with  Porter,  and  his  account  could 
easilly  have  been  debited  with  the  in- 
stalments alleged  to  have  been  due. 
Barsdorf  came  to  him  and  said  that  he 
was  anxaous  to  sell  the  land  for  oeu^, 
and  asked  that  the  sale  should  be  can- 
celled to  enaible  him  to  do  so.  Witness 
did  not  remember  anything  of  the  con- 
ereation  spoken  of  by  Barsdorf,  Hunter, 
and  Btlis.  He  frequently  asked  for  the 
return  of  the  £50.  With  regard  to  the 
safe,  he  asked  Barsdorf  for  a  refund  of 
tihe  £10  psdd,  alter  the  cancellation  of 


740 


<( 


GAPB  TIMBS"  LAW  REPORTS. 


the  sale  Baredoif  pleaded  «bai  he  was 
short  ol  money  ai  the  moment,  adding 
tb&t  ibere  was,  however,  a  aafe  w-bich 
wiinefls  roigibt  take  in  satisfaciion  of  the 
£10.   Witucefl   agreed  to  do   this. 

Croaa-examined     by    Dr.    Greer:    He 
wae  -willing  to  accept  the  aaie  in  aatis- 
faotion   of  the  £10  paid  on  account  of 
the  purchase   of   the  ground.      Witness 
always  looked  upon  Mr.    Porter  as   the 
person   with   whom   be   dealt;   Bflursdorf 
was  only  Porter's   clerk.      He   did  not 
even  know  thai  Baradorf  was  the  owner 
of  the  Heaithfield  EvtaAe  until   transfer 
was    being    passed.        That    was    some 
months  a&er   the  sale.       Barsdorf    told 
bhn  that   he  had  a   cash  purchaser  for 
the   ground,    and   vritness    oelieved   that 
the  land  was  sold  for  cash.      That  was 
why  his  pJea  said  that  the  re-sale  had 
been   private.      Witness  would  say  tb&t 
the   conversation  spoken    of    as    having 
taken  place  in  Barsdorf's  office  in  con- 
nection with  the  £50  did  not  take  place. 
Philip  John  Porter  sta4;ed  that  he  had 
recently  been    carrying   on    business   as 
broker  and  general  agent  at  Claremont. 
He    acted    as  agent   for  the    seller    in 
the  sale  of  Heathfield  Estate.     He  had 
an   arrangement  with   Baredorf   at  that 
tdme    giving  him   a    half-share    in    the 
profiits   of  any    bussneaa    he    brought  to 
wirbness*s  office.      When   the  declaration 
of   the   cancellatioin   of  the  sale  of   the 
two   plots    bo  Walker  was  made   before 
witnessi   no  mention  of  any  reservation 
was  made.    Witness  underertood  that  the 
oancolt&tion    was    out   and     out.        Mr. 
Walker  was  never  deihited  with  the  loss 
on  the  re-sale,  although,  in  the  ordinary 
cases   of  loss  on  re-sale,    this   was   done 
to  other  persons. 

By  Dr.  Greer:  There  were  other 
losses  on  re-sales  which  were  not  debited 
to  the  original  buyers  in  the  books. 
Wdtnees  thought  that  the  agreement  as 
to  the  cancellaition  was  come  to  in 
Walker's  private  office. 

Buchanan,  A.C.J.,  said  that  the 
plaintiff  sued  the  defendant  for 
the  sum  of  £50,  money  lent,  and 
for  professional  work  done.  His 
claim  as  it  now  stood  was  for  £49 
15s.  9d.  The  defendant  set  up  a  coun- 
ter claim,  <in  reconvention.  He 
claimed  that  he  had  lost  on  the  sale  of 
certain  property  purchased  by  the  plain 


tiff.  It  appeared  that  the  plaintiff 
bcught  two  plots  of  ground,  in  respect 
of  which  he  paid  £10.  the  balance  to  be 
paid  in  instalments  of  not  less  than  £1 
per  month,  within  four  years.  The 
conditions  of  sale  were  made  out  by  an 
auctioneer,  "  instructed  thereto  bv  Mr. 
Philip  Porter,  of  Claremont."  Walker 
alleged  that  shortljr  afterwards,  the  de- 
fcnoant  came  to  him  and  said  that  he 
(Barsdorp)  was  short  of  money,  and 
would  he  (Walker)  cancel  the  sale?  It 
was  not  unreasonable  that  Barsdorp 
should  do  this,  because,  on  the  one  hand, 
he  would  be  aUe  to  sell  the  ground  for 
cash,  if  the  sale  were  cancelled ;  whereas, 


on  the  other  hand,  he  would  reoeive  only 
£1  per  month  from  Walker.      With  ro- 
garato  the  cancellation,  they  had  Bars- 
dorp making  a  solemn   declaration      to 
this  effect :  **  I  declare  that    I     have  not 
received   any  money,   or  other   valuable 
consideration,   for  this   purchase,   and    I 
agree    to   cancel    the  sale ;    and  ^  I  have 
not  received,  nor  «uai  I  to  rpceive.  any 
consideraition  for  the  cancellation.*'  There 
was   no   default  by    the   plaintiff    under 
the  conditions  of  sale,  and  there  was  no 
re- sale   under   the  conditions       of    sale. 
There  was  a  re-sale ;  but  that  was  bv  vir- 
tue of  an  agreement  between  the  defen- 
dant and   plaintiff.       After    the   re-sale, 
until  the   present   action  no    claim    was 
made  on  Walker.       With  regard  to  the 
loan  of  £50.  Barsdorp  candidly  acknow- 
ledged that  he  did  not  think  that  Walker 
intended  the  money  to  be  a  payment  on 
account  of  the  ground ;    he  even      said 
that  he  did  not  tnink  that  Walker  would 
have  given  it  to  him,  had  he  asked  for 
it  as  a  payment  in  respect  of  the  land. 
Then,  there  was  no  entry  made  in  Bars- 
dorp's  books,  in  support  of  his  statement 
that   he  took  the  money  as   a   payment 
on  account,   until   a  few  months      a^. 
Here  Barsdorp's  conduct  was  totally  mr 
consistent  with  the  idea  that  he  thought 
that  the  sale  was  not  cancelled  out-and- 
out.     In  June,  Barsdorp,  in  a  letter  to 
the  plaintiff,    mentioned  that  he  bad  a 
counter-claim ;    and,    in  reply.       Walker 
wrote  asking  to  be  supplied  with  parti- 
culars of  the  counter-claim,  but  received 
no  reply.     In  the  face  of  the  declaration 
of  cancellation,  and  looking  at  the  con- 
duct  of   Barsdorp  in   the   matter,       the 
Court  could  not  hold  with  the  defendant. 
As  far  as  the  claim  in  reconvention  was 
concerned,  there  had  been  no  re-aale  oo 
the  conditions  of  sale    but  on  a  contract 
between  Walker  and  Barsdorp.     The  re- 
sale was  effected  for  Barsdorp's  benefit 
There  was  another  allegation,  that  Walk- 
er had  agreed  with  Barsdorp  to  share  bis 
foes  on  work  brought  to  him  by  the  de 
fondant.    He  (the  Acting  Chief  Justice) 
did  not  like  that  attorneys  of  the  Court 
should  enter  into  such  an  arrangement; 
but  here  again   Barsdorp  had    failed  to 
establish  a  contract,  entitling  him  •  to  a 
half  share  of  the  fees.     In  these  circum- 
stances, judgment  would  be  for  the  plain- 
tiff for  £49  15s.  9d.,  with  costs,  on  the 
claim  in  convention,  and  for  the  defend- 
ant in  the  claim  in  reconvention. 

[Plaintiff's  Attorneys :  Fairbridge. 
Arderne  and  Lawton;  Defendant's  At- 
torney: D.  Tennant,  jun.] 


REX     V.     ABENS     AND        §        1906. 

ANOTHER.  ,       )    Sept.  Ist. 

Buchanan,  A.C.J. ,  said  that  the  case 
had  come  before  him  from  Bredasdorp 
of  Rex.  V.  Arens  and  Kuroko,  two 
coloured  men.  convicted  of  stock  thoft. 
The  men  were  each  sentenced  to  one 
year's  imprisonment,  and  to  pay  a  fine 


"CAPS  TDfBS"  LAW  REPORTS. 


741 


of  30b.,  or,  in  default,  two  months*  im- 
prisonment. In  the  case  of  one  of  the 
men  there  was  an  addition  to  the  two 
months'  imprisonment  of  "  with  hard 
labour,"  and  in  <|fae  case  of  the  other 
there  was  nq  such  addition.  This  was 
one  of  the  oases  which  came  under  the 
Act  to  which  he  had  referred  on  the  pre- 
vious day  (15  C.T.R.  p.  733);  and  the 
sentence  of  the  second  man,  including 
hard  labour,  would  have  to  be  amended, 
as  far  as  the  hard  labour  was  concerned. 
The  words  "with  hard  labour,"  would 
be  struck  out;  otherwise  the  sentence 
would  be  confirmed. 


Tihis  waa  an  appeal  from  *  decision 
of  the  Assistairt  Resident  Magistrate  of 
Middle  Drift  in  a  case  in  which  the 
plaintiff  m  the  Court  below  claimed  £20 
aamagea  for  the  detention  of  a  heifer. 
The  respondent  denied  liabilitv. 

The  Magistrate  found  lor  the 
plaintiff,  and  awarded  damages  at 
£12.  From  the  evidence,  it  ap- 
peared that  the  plaintiff  and  defen* 
dant  used  to  freely  exchange  oatAle. 
Noti  lemt  a  centain  faeifer  to  the  de« 
fendant^  whidb,  it  was  alleged,  was 
heavy  in  calf.  It  wias  further  stated 
tbat  4flie  pladntiff  gave  tnstruotions  tha4 
trhe  animal  should  not  be  used  foi 
ploughing.  The  heifer  waa  worked  at 
the  plougih.  and  died  the  day  after  it 
was  Dor rowed.  That  wss  the  fiiist  ocoa- 
8  ion  duxvn|f  the  preeeot  year  on  whioh 
the  'heifer  in  questioa  was  put  to  plough. 
For  the  defence,  it  was  alleged  in  the 
Ma^fistrajte's  Court  tbat  the  heifer  wat 
auffering  from  lung  and  gall  sickness, 
and  had  not  died  as  a  consequence  of 
bepinff  put  to  plough  while  in  calf,  a< 
anoiner  ammal  in  the  same  condition, 
which  was  ploughing  at  the  same  time, 
-was  unaffected. 

Mr.  Gardiner  was  for  the  appellant, 
and  Mr.  J.  E.  R.  de  Villiers  for  the  re- 
spondent. 

Mr.  Gardiner  urged  that  when  the 
heifer  waa  ix)rroiwed  Noti  must  have 
known  that  it  waa  being  taken,  as  he 
was  «t  home  at  the  tame,  and  he  must 
have  known  tbat  the  appellant  could  noi 
•wmnl  it  for  any  other  punpose  than 
ploughing.  The  condition  of  tihe  calf 
loiKicI  in  the  heifer  after  deaith  showed 
thai  the  animal  would  noi  have  calved 
for  a  few  days  more,  and  there  was  <Jhe 
further  point  to  show  that  the  heifer 
did  not  die  as  a  conoequenoe  of  being 
put  to  pk>ugh,  that  anoliher  animal  in 
the  aame  oondiiion  was  unaffected, 
though  it,  too,  waa  ploughing  at  the 
aame  time. 

Buchanan,  A.O.J. ,  said  that  it 
waa  admitted  that  the  appeal 
was  on  a  aoestion  of  fact,  and 
it  WM  also  aomitted  that  the  heifer 
was  in  calf.  The  plaintiff  in  the  Court 
below  said  ^A^  it  ifna  heavy  in  calf; 


the  defendant,  on  the  ofaher  hand,  main- 
tained that  it  was  lees  so.  it  was  dear 
that  the  heifer  was  used  ^  to  plough 
against  the  express  in^ruotions  of  the 
pluntiff,  and  thai  it  bad  died  while 
being  so  worked.  He  thought  that  the 
evidence  did  not  show  that  the  animal 
was  suffeiing  from  sickness.  In  these 
drcumstanoes,  the  Magistrate  found  for 
the  plaintiff.  On  a  question  of  fact  of 
this  kind,  he  did  not  think  that  the 
Court  could  alter  the  decieion  of  the 
Magistrate,  and  the  amount  allowed  by 
the  Magistrate  as  damages  appeared  to 
be  a  fair  one.  The  appeal  would  be  dis- 
missed,  with    costs. 


MORGAN  v.  KIKO  ELECTRIC  LIGHT  CO. 

This  was  an  appeal  from  the  deoiaion 
of  the  Reeident  Magistrate  of  King 
WilUam's  Town,  awaroing  the  respon- 
dent £b  17s.  6d.  in  reti^ot  of  damages 
caused  to  an  electric  lighting  pole  by 
the  oolliaion  therewith  of  a  pair  of 
runaway  horses  and  wagon  bdonging  to 
W.  S.  Morgan,  the  appellant. 

From  the  evidence  m  the  Court  be- 
low, it  appeared  that  the  defendant's 
wagon  was  being  loaded  with  barrels 
in  •the  streerfc,  when  one  of  the  barrek, 
either  rolling  off  or  being  blown  off 
bv  the  wind,  fell  on  one  of  the  horjes. 
Tne  animal  bolted,  other  barrels  falling 
off  as  it  ran,  and  further  frightening 
it,  and  came  into  coHlision  with  i.be 
Light  CoR»pany'8  pole. 

Mr.  Upington  appeared  for  the  ap- 
pellant, and  Mr.  Gardiner  for  the  re- 
spondent. 

Mr.  Uipington  urged  that  the  Ma^ia- 
trato  should  have  allowed  the  appbca- 
lion  made  in  the  Court  below,  on  behalf 
of  the  defendanrt,  at  the  end  of  the 
plaintiff's  case,  for  absolution  from  the 
inetance,  without  compelling  the  defen- 
dant to  go  into  his  case,  because  there 
was  no  evidence  of  any  kind  to  show 
negligence.  Counsel  went  on  to  argue 
that  there  had  been  no  negligence  on 
the  part  of  the  driver,  as  alleged  in 
the  summons,  and  that  the  falling  off 
of  the  barrel,  as  a  consequence  of  which 
the  collision  took  place,  was  a  pure 
accident. 

Buchanan,  A.C.J.,  said  that  the 
Magistrate  having  decided  the  case 
on  the  evidence  as  a  whole, 
he  felt  bound  to  take  the  evi- 
dence as  laid  before  him.  Looking 
upon  the  whole  evidence,  then,  the 
Magiartrate  had  found  that  there  was 
negligence  on  the  part  of  the  defendant 
He  (the  Acting  Chief  Justice)  was  of 
opinion  that  the  Magistraite  was  justified 
in  eaying  that  what  had  happened  was 
just  what  might  have  been  expected 
to  happen  under  the  circumstances.  Ha 
thought  that  all  the  facta  justified  the 
Magistrate  in  saying  that  there  was  ne- 

gligenoe.    and  the  appeal  would  t^ero- 
>re  be  dismiaaed,  with  coats. 


742 


«« 


CAPE  TiMEB*'  LAW  BEPOBTS! 


BOTHA  V.  ESTATE  PHILLIPS. 


This  was  ail  appeal  from  a  decision  of 
the  R.M.  of  Mount  Fletcher,  in  an  ac- 
tion brought  by  James  Phillips  against 
Andries  Botha,  for  £77  lis.,  money  lent 
and  good«  sold.  The  Magistrate  gave 
judgment  for  the  sum  claimed,  less  £8 
8s.,  an  amount  of  compound  interest 
whiol)  ho  deducted. 

When  the  case  came  on  in  the  Court 
bcicw  Mr.  Hargrcaves,  the  agent  for 
plaintiff,  applied  to  substitute  h»  name 
as  asijignee  m  place  of  that  of  Phillips 
and  tho  Magistrate  allowed  the  amend- 
ment. 

The  Magistrate,  in  his  reaaons  for 
judgment,  said  the  plaintiff  sued  the  de- 
fendant for  £77  lis.  8d.,  which  included 
interest  for  goods  sold  and  money  lent. 
The  amendment  was  allowed,  the  Court 
holding  that  the  substitution  of  the  name 
did  not  prt»judice  the  defendant  Har- 
greavea,  as  assignoe  of  the  estate,  swore 
tlio  account  is  correct,  and  the  defen- 
dant never  disputed  it  The  item  of  £8 
8s.  interest  was  deducted,  as  it  was  not 
included  in  the  last  account  rendered 
The  Court  considered  the  evidence  of  tho 
bookkeeper,  and  the  extracts  from  the 
bocks  sufficient  proof  and  judgment 
would  be  given  for  £69  3s.  8d. 

Mr.  Gut<^he  was  for  tho  appellant  and 
Mr.  Close  for  th«  respondent. 

Counsel,  having  been  heard  in  argn- 
ment  on  the  facts, 

Buchanan,  A.C.J. :  In  the  Magistrate's 
Court  a  summons  was  taken  out  by  one 
Phillips  again.st  Botha.  When  the  case 
came  on,  Mr.  Hargraves,  the  agent,  ap- 
plied to  subrtitute  his  name  as  assignee 
m  the  place  of  that  of  Phillipa.  The  de- 
fendant's agent  objected  anci  the  Magis- 
trate allowed  the  amendment.  In  the 
course  of  the  evidence  it  was  proved  that 
Mr.  Hargreaves  wa/i  not  the  assignee, 
at  all.  but  held  the  power  of  attorney  of 
Mr.  Myers.  The  objection  against  Har- 
graves suing  is  a  good  one.  If  this  tech- 
nical objection  be  sustained)  it  would  be 
ground  for  allowing  the  appeal ;  but  the 
Court  has  very  extensive  powers  ni  ap- 
peals from  the  Magistrates'  Courts  to 
render  speedy  justice.  The  order  will 
b<^  that  the  record  be  amended  b^  sub- 
stituting Mr.  Myers's  name  as  assignee, 
in  place  of  Hargraves.  There  is  an- 
other objection  to  the  charges  made  for 
interest,  £17  in  all.  The  Magistrate 
might  have  been  justified  in  allowing  in- 
terest up  to  January  31,  190^,  when,  on 
Botha's  own  evidence,  the  account  was 
correct.  Since  that  date,  £12  15s.  lOd. 
has  been  allowed,  beini?  interest  on  an 
account,  for  goods  sold  and  delivered. 
Now,  this  could  not  be  chargeable  with- 
out an  express  agreement ;  and  there  is 
no  evidence  given  by  the  plaintiff  that 
there  ever  was  any  such  agreement.  On 
the  contrary,  he  knows  nothing  about 
tho  accounti  Under  the  circumstances, 
therefore,  this  £12  15s.  lOd.  must  be 
deducted  from   the  account,    which  wil! 


make  the  correct  judgment  £56  7s.  lOd. ; 
and  that  will  be  entered  with  costs  is 
tho  Magistrate's  Court.  But  as  the  de- 
fendant  has  come  to  this  court  with  a 
very  substantial  objection,  he  will  have 
hi 9  costs  of  appeal. 


SUPREME  COUR 


[Before  the  Actin<r  Chief  Justice  (the 
Hon.  8ir  JoBN  BuCHAKAK),  the 
Hon.  Mr.  Justice  Maas'>orp,  and 
the  Hon.  Mr.  Justice  Hop  ley.] 


LAWMON  V.  ALLSDTT. 


f        1905. 

i  eept.4th. 

Mr.  R<rwson  moved  as  a  m^atter  of 
urgency  for  a  temporary  interdict  re- 
straining the  respondent  fpoon  re- 
movmg  any  maienals  from  the  appli- 
cant's  blacksmiith  shop,  at  No.  2, 
Lesar-street,  pending  an  action  for  a 
declaration  of  rights. 

Rule  nm,  to  opcrato  as  an  interim  in- 
terdict granted,  the  aotion  to  be  insti- 
tirted  forthwith,  with  leave  to  the  re- 
spondent to  move  to  have  the  rule  »e^ 
a^side. 


MILLS   V.  BIDLI. 


(  ISOV 
{  Sept.  4 
(  Nov.  <; 


19a>. 
4th 

;th. 

Native  —  Marriage  —  Lobola  — 
Interpleader. 

J).  W,  .1/.  ?iad  ohttiinrd  n 
jmUjmeytt  in  a  TninRhemn  R.M. 
Court  againxt  A .  M.  J).  W,  J/. 
iook  out  a  tori  I  of  exentthm, 
and  thrreundPi'  (dktched  aer- 
taiti  cattle  in  potttession  of  B. 
Ji.  (iffsrrted  that  these  cattle 
had  been  paid  to  him  a  it 
'^Lobola''  by  A.  M.  The 
marriage^  however,  between 
A,  M.  and  BJ's  daughter  not 
having  t<iken  place,  tJie  ^f€^gis 
trat^.  decided  that  the  dominium 
(tf  the  cf title  teas  in  A.  J/.,  and 
that  they  tcere  therefore  at- 
tachable  for  his  debtsi.  On 
appeal,  the  Circuit  Court 
reversed  this  decision  of  the 
RJL 

Held  on  further  appeal  to  the 
Supreme  Coujt,  that  thejui^- 


"CAPE  TIMES"  LAW  BEP0RT8. 


743 


inetU    of    the     Circuit    Court 
muni  he  affirmed. 

Peacock  v.   Ben  Rango   (12 
C. T.R.J  545)  (iistingnished. 


This  was  an  appeal  brought 
i^ainst  a  decision  of  Mr.  J  us- 
tice  Kotze  in  the  Circuit  Ck>urt  at  But- 
terworth.  The  matter  was  first  heard 
before  the  Resident  Magistrate  of  But- 
terworth,  when  the  appellant  Mills,  a 
European  trader,  obtained  judgment 
oigainst  a  native  for  £18  10s.  A  writ 
of  execution  was  issued,  and  certain 
cattle  that  were  in  the  jpoese^sion  of 
Bidli  were  attached,  and  thereupon  an 
interpleader  action  was  instituted,  and 
Bidli  claimed- that  these  cattle  could  not 
be  attached  under  the  judgment  which 
the  plaintiff  obtained  again!>t  the  native 
Mvataza.  It  wa«  admitted  that  the 
cattle  was  given  by  Myataza  to  Bidli 
as  a  dowry,  and  tbat  the  marriage  had 
not  taken  place.  •  The  Magistrate  held 
that  the  cattle  were  still  tlio  property 
of  Myataza.  The  matter  came  up  on 
appeal  to  the  Circuit  Court,  sitting  at 
Butterworth. 

Kotze,  J.,  allowed  the  *PP^.  an^ 
gave  his  reasons  as  follows :  — This  mat- 
ter comes  before  me  by  way  of  appeal 
from  the  decision  of  the  Resident  Magi- 
strate of  Idutywa.  The  facts  were  a.s 
follows: — One  D.  W.  Mills,  a  European 
traider.  had  obtained  a  jiidgmout  for  the 
sum  of  £18  lOs.  6d.  against  a  native 
called  Andries  Myataza.  A  writ  of 
execution  was  issued  for  the  recovery  of 
this  amount,  together  with  the  sum  of 
£2  10s.  4d.  for  costs.  Under  this  writ 
certain  cattle  were  attached  which  were 
in  the  possession  of  the  appellant,  Mfu- 
leni  Bidli.  who  maintained  that  the  cat- 
tle, hairing  been  given  to  him  as  lobola 
by  Andriod  Myatasa,  in  view  of  a  con- 
templated marriage  with  the  appellant's 
daughter,  were  not  liable  to  attachment. 
Ill  the  interpleader  suit  brought  by 
Mfuleni  Bidli  the  Magistrate  decided 
against  him,  on  the  ground  that,  as  the 
marriage  had  not  yet  taken  place,  the 
property  in  the  cattle  was  still  in  An- 
dries Myatasa.  The  parties,  by  their 
counsel  appeared  before  me.  and  it  was 
mutually  understood  that  the  argument 
should  proceed  on  the  case  as  stated  by 
Mr.  Henley  in  the  Court  below,  viz. : 
Mr.  Henley  wic^hes  to  place  on  record 
thai  these  cattle  were  8eiz€>d  from  Mfu- 
leni Bidli,  that  these  cattle  had  been 
paid  to  him  by  Andries  Myatasa  as  dow- 
ry eighteen  months  a^|o,  that  the  marri- 
age has  not  yet  been  ooTwummated.  and 
that  the  parties  desire  a  ruling  of  the 
Court  whether  ihese  oattle  are  execut- 
able or  not."  The  case  was  argued  by 
Mr.  Gane  for  the  appellant,  and  Mr. 
Currey  for  the  respondent.  Upon  the 
statement  of  the  case  as  submitted  to 
me  I  had  to  presume  that  the  parties  to 


1 


the  intended  marriage  were  able  and 
willing  in  due  time  to  carry  out  and 
perform  the  contract.  There  was  noth- 
ing to  show  that  such  was  not  their  in- 
tention, and  in  the  absence  of  any  evi- 
dence to  the  contrary,  the  presumption 
is  that  the  parties  intend  to  carry  out 
and  conijplete  their  contract  or  engage- 
ment. This  material  fact  distinguishes 
the  case  from  Peacock  v.  Ben  Rango 
(12  C.T.  546),  upon  which  the  respon- 
dent relied  in  support  of  the  seizure  of 
the  cattle  under  tne  writ  of  attachment. 
Without  in  least  questioning  the  pro- 
prietv  of  the  decision  in  that  case,  by 
which  I  consider  myself  bound,  I  do 
not  think  the  judgment  of  the  Supreme 
Court  should  be  extended  bevond  the 
circumstances  of  the  case  then  before  H. 
In  Peacock  v.  Ben  jRango  the  respon- 
dent had  delivered  certain  oattle  as 
dowry  to  the  father  of  the  intended 
bride,  but  she  subsequently  refused  to 
marry  him,  and  he  thereupim  claimed 
back  the  dowry  cattle  from  her  father, 
who  had  meanwhile  sold  Homc  of  tho 
cattle  to  the  app<*llant.  The  Supreme 
Court,  following  the  view  taken  by  tho 
(^hief  Magistrate  of  the  Transkei,  laid 
down  that  the  ownership  in  tho  dowry 
cattle  did  not  pass  until  the  marriage 
had  taken  place,  and  that  consiniueutiy 
the  re«ponclent  was  entitled  to  claim 
back  tho  cattle.  That  tho  respondent 
was  entitled  to  claim  back  the  cuttle  Ik>- 
cause  the  girl  had  refu.stnl  to  enter  into 
marriage  seems  a  sound  and  reasonuhlo 
custom.  Wihile  the  general  rule  may  be 
that  the  property  in  lobola  c^ittle  dm^s 
not  pass  until  the  intended  marriage 
takes  pkce,  it  does  not  follow  that  un- 
der an  circumstances,  where  the  mar- 
riage is  not  completed,  the  dowry  cat- 
tle can  be  recovered.  Thus,  in  the  caso 
of  William  Nojiwa  v.  Samuel  Vuha^  de- 
cided by  the  Court  of  Appeal  in  tho 
Transkei  on  the  4th  March,  1903.  where 
tho  intended  bridegroom  had  broken  off 
the  contemplated  marriage  and  his 
father,  who  nad  i>aid  six  head  of  dowry 
cattle  for  him  to  the  father  of  the  girl, 
claimed  back  the  cattle  w^ith  the  in- 
crease amounting  to  ten  head,  the 
Court  held  that  the  plaintiff  was  not 
under  tho  circumstances  entitled  to  re- 
cover the  cattle,  and  gave  judgment  in 
favour  of  tho  defendant  with  costs.  This 
was  decided  a  year  after  Peacock  v.  Ben 
Bango,  and  is  duly  entered  and  record- 
ed in  the  official  record  book  of  tho 
(Tourt  of  Appeal  for  the  Transkei.  In 
tho  present  instance,  as  already  pointed 
out,  there  is  apparently  nothing  to  pre- 
vent the  contemplated  marriage  from 
taking  place.  By  native  law  and  custom 
the  payment  of  lobola  or  dowry  cattle  is 
a  very  important  and  serious  tran-sac- 
tion.  According  to  tho  report  of  the 
South  African  Native  Affairs  Oommis- 
sion  of  1906,  Art.  302,  "  Ukulobola  may 
be  taken  to  be  a  contract  between  the 
father  and  the  intending  husband  of  his 
daughter,  by  which  the  father  promises 


744 


•< 


GAPS  lUfftd*'  LAW  kSPOkli. 


his  consent  to  the  Doarria^  of  his 
daughter,  and  to  protect  her  in  oaAe  of 
necessity,  either  during  or  after  such 
marriage,  and  by  which  in  return  he 
obtains  from  the  husband  valuable  con- 
sideration, partly  for  such  consent  and 
partly  as  a  gruarantee  by  the  husband  <^ 
nis  good  conduct  towards  his  daughter 
and  wife.  Such  a  contract  does  not  im- 
ply the  compulsory  marnage  of  the  wo- 
man." Such  being  the  view  of  lobola, 
according  to  native  law  and  custom,  it 
seems  to  me  that  if  the  parties  are  wil- 
ling to  enter  into  the  intended  mar- 
riage, and  the  present  case  falls  under 
this  description,  then  the  dowry  cattle 
given  in  pursuance  of,  and  in  consider- 
ation for  such  intended  marriage,  are 
not  attachable  at  the  insta>nce  of  a  third 
party  who  has  obtained  a  judgment 
against  the  intended  bridegroom  or  the 
pcrBoik  who  has  handed  over  the  dowry 
cattle  to  the  father  of  the  intended 
bride.  Such  a  rule  seems  to  me  to  be 
a  sound  and  reasonable  one,  and,  I  am 
assured  by  many  an  experienced  Magi- 
strate in  the  Transkei,  js  strictly  in  ac- 
cordance with  native  law  and  custom. 
It  does  not  fellow  then  that  became  the 
ownership  remains  in  the  giver  of 
dowry  cattle  until  the  intended  marria^ 
takes  place,  such  cattle  are  seizable  m 
execution  at  the  instance  of  a  third 
party.  They  would  not  have  been  so 
seizable  in  the  case  of  William  Nojiica 
V.  Samuel  Tuba  already  mentioned  by 
me.  and  I  need  but  refer  to  a  simi- 
lar and  well-known  rule  of  our  own  law 
that  a  pledge  of  moveables  accom- 
panied by  delivery  cannot  be  attached 
m  execution  by  a  juogment  creditor  of 
the  pledgor,  although  the  property  in 
the  moveables  remain  in  the  pl^gor. 

But,  be  this  as  it  may,  it  was  con- 
tended by  Mr.  Gane,  for  the  appellant, 
that  as  the  respondent  Mills  is  a  Euro- 
pean, and  the  question  is  one  between 
nim  and  a  native,  the  23rd  section  of 
Proclamation  110  of  1879  applies,  under 
which  the  law  of  the  Colony  must 
regulate  and  detemune  the  dispute  be- 
tween them.  Such  is  aiso  my  own  view.. 
As  the  appellant,  as  father  of  the  future 
bride,  bad  received  delivery  of  the 
dowry  cattle  and  held  them  as  consider- 
ation for  the  intended  marriage,  which 
could  at  any  time  be  consummated,  and 
which  the  parties  presumably  wished  to 
be  completed,  I  am  of  opinion  that  he 
cannot  be  disturbed  in  his  possession  of 
the  cattle.  In  other  wordra.  that  the 
cattle  are  not  under  the  circumstances 
liable  to  attachment  at  the  suit  of  a 
third  party.  My  judgment  is  therefore 
in  favour  of  the  appeMant,  Mfuleni 
Bidli,  with  costs. 

Sir  H.  Juta:  Marriage  is  a  valuable 
consideration.  If  a  man  settles  property 
in  view  of  marriage,  that  marriage 
must  take  place  or  else  the  dowry  is 
attachable.  A  father  oannot  be  the 
trustee  for  a  wife.  A  man  oannot  give 
a  portion  of  his  property  to  a  prospec- 


tive spouse  and  thereby  deprive  his 
creditors  of  their  rights.  Goods  can  be 
attached  under  a  judgment;  but  jn  the 
case  of  a  pledge  there  is  a  /u»  in  ran. 
In  this  case  there  wa«  no  contract  be- 
tween the  father-m-Uw  and  the  aon-in- 
law.  If  there  was  a  contract  between 
them  it  is  immaterial  where  the  pro- 
perty was.  When  the  Court  has  nad 
occasion  to  analyse  this  contract  of  lo- 
bola, it  held  that  the  girl's  father  held 
the  cattle  in  trust  for  the  bridegroom. 
In  Pearark  v.  Bani^o  (12.  C.T.R.  645) 
the  Court  held  that  the  father  had  no 
interest  in  the  dowry  cattle  beyond 
keeping  them  in  security.  There  the 
principle  M4fbilia  turn  habent  teqttelam 
was  relied  upon,  and  the  Court  held 
that  the  contract  was  neither  a  security 
nor  a  pledge.  In  the  case  of  lobola,  the 
father-in-law  is  merely  a  trustee,  and 
he  has  no  rights  against  a  creditor. 

Mr.  Benjamin :  As  to  Lobola,  see  p. 
16  of  the  judgment.  That  is  quite  con- 
sistent with  the  judgment  in  Pcarork  v. 
Rango,  Lobola  js  either  a  pledge  or  it 
is  in  the  nature  of  a  contract. 

[Hopley,  J. :  The  father  has  to  hand 
over  nis  daughter  in  consideration  of 
the  cattle.  Until  he  has  handed  over 
his  daughter  he  has  no  right  to  the 
cattle.] 

The  father  i»  law,  it  is  true,  has  not 
dominium  oi  the  cattle,  but  he  has  cer- 
tain rights  which  may  ripen  into 
dominium.  Suppose  the  son-4n-law  un- 
reasonably refuses  to  marry? 

[Hopley  J. :  Possibly  the  forfeiture  of 
the  oattle  may  be  intended  as  a  penalty 
for  breach  of  promise.] 

If  my  view  is  correct  the  judgment  in 
Nomhombo  v.  StofiU  (12.  C.T.R.  596)  is 
perfectly  reconcileable  with  the  oases 
cited  on  the  other  side.  A  pledgor  can- 
no*  oonvey  greater  rights  than  he  him- 
self possesses  (3.  Burge.  678).  This  case 
is  not  on  all  fours  with  Kango's  case. 
I  The  arcditor  of  a  creditor  cannot  attach 
'  the  property  of  "the  originaJ  debtor  in 
satisfaction  for  a  debt.  (Sec  Brmcn  v. 
Me»»enqer  (Buch.  1876,  p.  49.) 

[Hopley,  J. :  You  cannot  put  this  on 
the  ground  of  pledge  for  he  can  be 
made  to  marry  the  girl.] 

After  further  argument, 

Cur.  Adv,  Tult, 

Pottta  (November  6th). 

Buchanan,  A.  C.  J.:  The  issue  in 
this  appeal  is,  whether  or  not  cer- 
tain cattle  which  had  been  paid  by 
one  Andries  Myatasa  to  respondent, 
Mfuleni  Bidli,  as  eo-called  "dowry" 
under  a  contract  for  a  marriage  in 
accordance  with  native  customs,  and 
which  cattle  are  in  the  poi^ession  •*{ 
reeponclent  (Bidli),  are  liable  to  attach 
mont  in  execution  of  a  writ  taken  out 
bv  appellant  (Mills)  upon  a  judgment 
obtained  by  him  against  Andries  Myi- 
tasa.  The  Magistrate  of  Idutywa,  in  an 
interpleader  just  heard  by  him,  decided 
in  favour  of  appellant,  but  on  appeal  to 


"OAPB  TIMES"  LA:W  EEPORta 


745 


the  Cirouit   Court .  at  Butterworth    the 
Magifitrate's  deciflion  wab  reversed.  A/ter 
many  eonflictixig  expreesions  ol  opinion 
the  validity  of  the  custom  of  lobola  pre- 
vailing  among  the  natives  of  the  Trans- 
kei  maV  be  taken  to  have  been    tiijally 
settled  by  the  decision  of  the  fuH  Ciurt 
in    the  case    of    Nggabefa    v.    Sibele    (10 
Juta,   346),   and  the   agreement  ip  give 
"dowry"  has  since  been  recognised  a« 
lawful    conlraot    among    natives        The 
definition  of  the  contract  of  "ukulobola" 
cited    in    the   Circuit    Court   iudgment. 
taken   from    the    rejport    of     the     South 
Afrioan   Native    Affairs   Commission    of 
1905,    agrees   with    the    finding    of    the 
Cape  Native  Affairs  Commission  of  1883, 
and  niay  be  accepted  as  now  generally 
received.     The   validity  of  the  contract 
in  this  cajse  was  recognised  in  both  the 
other  Court3,   and   is   not  raised  on  ap- 
peal.    It  if}  the  question  of  the  incidents 
or  consequences  of  the  contract  which   's 
involved    in    the    present   dispute.        It 
may,    I    think,    be  taken    to    have    boon 
settled  by  the  nuinerou.s  decisions  which 
have  been   given  on  the  subject   of  lo- 
bola,  and  bv  the  opinions  authoritative- 
ly expreasea  by  experts  on   native   law, 
tlia*   where  property — usually  cattle,    as 
in  this  ca£e — has   been   given   as  dowry, 
and  the  marriage  has  been  conisummat- 
ed,  the  dominium  in  the  property  passes 
to   the    father ;    but    until  the  marriage 
haa    been   consummated    it    remains    m 
the  intended   husband.      After  the  con- 
summation   of    the    marriage,     on    the 
wife's  desertion,  or  for  other  good  cause, 
the  father  may  in  certain  cases  be  com- 
pelled   to   restore  the  property    received 
by  hflm    under    the  contract.       On    the 
other        band,         if        there        as         a 
failure     to      complete      the      marriage 
duo  to  the   fault  of   the   intended   hus- 
band,  he  loses   his   property,   and      the 
father  is  not  compellable  to  restore  the 
dowry   paid.       The  Magistrate   decided 
that  the  cattle  given  for  dowry  in  this 
case  were  exigible  on  the  ground  that 
as  the  marriage  had  not  yet  taken  place 
the  property  therein   was  still  in  Mya- 
sata.    He  relied  on  the  decision  of  this 
Court   in    Peacock    v,    Ben    Rango    (19, 
S.C.R.,  323).     But  as  the  learned  Cir- 
cuit Judge  pointed  out,  the  facts  of  that 
case  differea  very  materially  from  those 
in   the    present    action.      In    Peacock    v. 
Ben  Rangoy  the  contract  to  marry  had 
been    broken   through    default   ol       the 
father,  or  of  the  intended  wife,   and  a 
judgment    of    the    Magistrate's       Court 
had    already   been   obtained      declaring 
the  contract  to  be  at  an  end,   and  the 
cattle  ordered   to  be   restored.     De  Vil- 
licrs.  C.J.,  in  concurring  in  the  view  of 
the  native  custom  taken  hy  the   Court 
of  the  Chief  Magistrate,  said  that  throe 
very  experienced   magistrates  had  held, 
**  that  -when  cattle  were  paid  a^  dowry 
on    account   oi    a  marriapre    to    be   con- 
tracted,   until   that   marriage   had   been 
contracted  the  ownership  did  not  pass, 
and  that  if  any  died  before  marriage, 


the  inte.ided  husband  bore  the  loss,  and 
if  any  of  them  had  progeny  he  was  en- 
titled to  the  increase.  That  would 
clearly  show  that  it  was  not  the  inten- 
tion of  the  intended  bridegroom  to  pass 
any  property  at  all,  but  that  the  father 
of  the  bride  was  merely  to  hold  these 
cattle  in  trust  for  the  bridegroom  until 
the  marriage  took  place.  Until  the  mar. 
riage  took  place  the  father  had  no  inter- 
est in  the  cattle  beyond  keeping  them 
as  security  until  the  marriage  took 
place."  Accepting  this  to  be  a  correct 
statement  of  native  law  on  the  ques- 
tion dealt  with  in  that  case,  it  does  not 
dispose  of  the  case  under  appeal.  The 
Magistrate  here  omitted  entirely  to  con- 
sider the  position  of  the  parties,  where 
the  contract  to  marry  was  still  existant. 
It  was  taken  for  granted  in  this  case 
that  the  parties  were  able  and  willing, 
and  intended  to  complete  and  carry  out 
their  contract.  As  the  case  stands, 
therefore,  though  the  dominium  in  the 
cattle  was  still  vested  in  Myatasa,  they 
were  in  the  possession  of  Bidli,  under  a 
valid  contract,  which  gave  Bidli  certain 
rights  over  the  cattle.  In  the  view  I 
take  of  native  law.  until  there  was  some 
default  on  the  part  of  the  other  parties 
to  the  contract,  Myatasa  himself  could 
not  reclaim  the  cattle,  which,  under  his 
contract  he  had  handed  over  to  Bidli. 
Myatasa  was  not  entitled  to  break  his 
contract,  and  then  to  take  advantage  of 
his  wrongful  act  in  so  doing.  If  that  is 
so,  I  fail  to  see  good  ground  for  holding 
that  a  creditor  could  claim  greater 
rights  than  the  owner  of  the  cattle  him- 
self possessed.  By  the  writ  obtained  by 
appellant  the  messenger  of  the  Court 
was  directed  to  make  a  levy  on  the  pro- 
perty of  the  debtor.  Where  such  pro- 
perty is  in  the  possession  of  the  debtor 
there  would  be  no  difficulty.  But 
where  possession  has  been  parted  with 
under  a  valid  contract  to  a  third  person, 
who  has  thereby  acquired  a  right  over 
the  property,  the  judgment  creditor  can- 
not ignore  the  rights  of  such  third  per- 
son. The  fact  that  the  dominium  re- 
mains in  the  debtor  is  not  sufficient  to 
render  the  property  liable  to  seizure  un- 
der the  writ,  at  any  rate,  not  until  the 
claim  of  the  possessor  is  first  discharged. 
The  illustrations  of  the  pledge  of  mov- 
ables, which  in  pursuance  of  the  con- 
tract of  pledge,  nad  been  delivered  to 
the  pledgor,  used  by  the  learned  Circuit 
Judge,  seems  to  me  directly  in  point. 
There  is  no  suggestion  of  fraud  in  this 
case,  and  the  payment  of  the  dowry 
took  place  eighteen  months  before  the 
case  was  heard  by  the  Magistrate.  In 
my  opinion  the  judgment  of  the  Circuit 
Court  was  correct,  and  this  appeal  there- 
from should  be  dismissed,  with  costs. 

Mr.  Justice  Maaedorp:   I  concur. 

Mr.  Justice  Hopley :  The  facts  in  this 
case  are  that  one  Mvetasa  handed  over 
certain  cattle  to  Bidli,  the  present  re- 
spondent, as  part  of  the  ikazi,  to  be  paid 
to  him  under  a  contract  of  ukulobolai  in 


746 


"CAPS  TIMES"  LAW  REPORTS. 


consideration  of  receiving  his  daughter 
in  nMuriage  from  Bidli  at  some  futuro 
time — preeunmblv  when  he  was  able  to 
earn  and  pay  tne  rest  of  the  ikazi  or 
lobola. — and  about  eighteen  months  after 
euch  handing  over  of  theise  cattle  the 
prowent  appellant,  who  had  obtained  a 
judgment  against  Myataaa  for  a  debt, 
caiLsed  the  cattle  to  be  attached  by 
virtue  of  a  writ  of  execution  issued  in 
connection  with  such  judgment.  Bidli 
tliereupon  set  up  his  claim  that  those 
cattle  were  not  liable  to  attachment,  as 
they  had  been  handed  to  him  under  the 
said  contract,  whi^h.  as  to  their  portion 
tliereof,  he  and  his  daughter  were  readv 
and  willing  to  perform  It  was  ad- 
mitted that  the  actual  marriage  had  not 
yet  taken  ^lace,  but  that  Myatasa  wa** 
likewic^  still  intending  to  carry  out 
his  contract. 

In  an  interpleader  suit,  the  Resident 
Magistrate  decided  that  the  cattle  were 
liable  to  attAchment,  on  the  ground 
that,  a,-*  the  marriage  had  not  taken 
place,  the  dominium  of  the  animals  had 
not  pfisscd  from  Myalasa.  This  judg- 
ment was  revers<Hl  hy  appeal  to  trio 
Circuiit  Judge,  the  l<Mrned  Ju<lgo  Presi- 
dent of  the  Eastern  Dirtricts  Court, 
against  whoue  decision  the  present  ap- 
peal is  brought.  The  matter  involved 
IS  om>  of  considerable  importance,  owing 
to  the  fact  that  it  is  not  uncommon  for 
young  KKilirs  to  engage  themselves  to 
marry  in  simiJar  manner.  Tiiey  obtajn 
the  promi*jo  of  the  girl  and  her  guardian 
and  pay  as  much  oif  th,'  ikazi  as  they 
can  afford.  They  then  go  aw.ay  to  earn 
enough  to  pay  the  balance  of  what  has 
been  agreed  upon,  and  only  when  they 
have  fully  ijerformed  their  rhare  of  the 
contract,  by  paying  the  full  numl>er  of 
the  cattli»,  Cdn  they  claim  that  the 
nKirri.igo  should  take  place.  Ihit  ui.on 
the  fir.st  jayment  the  young  man  ob- 
tained an  immediate  hold  uiwn  the  girl 
and  her  guardian,  and  the  latter  reci- 
proially  bu^-j  c^ometbing  in  the  nature  of 
a  ^<M•llVity  that  the  aspirant  will  fulfil 
his  ])ri>MUse  and  carry  out  his  contract. 
Should  he  fail  to  do  so  thr-ough  his  own 
fault  or  change  of  mind,  ho  is  punished 
for  his  iriconsistincy  by  bein^  imable  to 
Ft  claim  any  of  the  proix?rty  which  may 
have  been  banded  over  from  the  father 
or  guardian,  if  the  latter  can  reply  that 
h')  and  his  daughter,  or  ward, 
are  ready  aiul  willing  to  per- 
f<*'rni  their  cliare  of  the  agreement. 
Thi.s  was  the  deciMon  in  the  case  of 
Nojiwa  V.  Vuba,  cited  by  the  Judge- 
Pntiident  in  his  judgment.  That  de- 
cision, ba.«?ed  on  Kafir  law  and  custom, 
seems  to  me  to  be  in  accordance  with 
our  own  ideas  of  law  and  equity,  and 
it  cei'tainly  establishes  the  pos>ition  that 
a  guardian,  to  whom  in.stalments  of  cat- 
tle have  been  given  by  wa.v  of  lolx)la, 
has  a  right  of  retention  which  may  be 
converted  into  absolute  dominium  in 
certain  cases.  That  he  has  not  absolute 
dominium  in  such   animals   as  soon   as 


they  are  handed  over  to  him,  has  been 
clearly  laid  down  in  the  case  of  Peacock 
V.  Ben  Range  (19  S.C,  323),  wbioh 
case  defines  his  rights  as  those  of  a 
trustee  for  his  prospective  son-in-law: 
but  in  the  same  oase  it  is  pointed  out 
by  His  Lordship  the  Chief  Justice  that 
tlie  father  has  an  interest  in  such  cat- 
tle, which  would  enable  him  to  hold 
them  as  security  for  the  completion  of 
the  contract.  He  is  the  trustee  (with 
such  personal  interest)  as  long  as  the 
contractual  relations  subsist  unbroken 
on  either  side,  and  as  long  as  he  and 
the  real  owner  are  in  the  position  of 
prospective  father-in-law  and  future 
Bon-in-law.  His  trusteeship,  however, 
is  changed  into  absolute  ownership  m 
his  own  behalf  upon  completion  of  the 
marriage  or  upon  refusal  on  the  part  of 
the  young  man  to  fulfil  his  contract. 
The  trusteeship  likewise  comes  to  an 
end,  and  the  absolute  unrestricted  own- 
ership of  the  young  man  revives,  should 
the  lather  or  his  daughter  commit  a 
breach  of  the  contract  by  refusing  to 
complete  the  marriage,  or  in  case  the 
latter  should  hr>  rendered  unfit  for  the 
position  implied  by  the  contract.  These 
are  the  main  incidents  of  the  contract 
of  Ukulobola.  before  the  completion  of 
the  marriage ;  and  though  it  may  bo 
urged,  as  indeed  it  was  urged  in  argu- 
ment, that  to  hold  that  the  rights  ac- 
quired by  the  prospective  father-in-law 
over  such  instalments  of  lobola  cattle 
should  prevail  over  those  of  a  judgment 
creditor,  who  seeks  to  attach  them, 
opens  the  door  to  frauds,  it  may,  in 
reply,  be  pointed  out  that  to  deprive  a 
father  of  the  security  by  reason  of 
which  ho  has  been  reserving  his  daugh- 
ter for  the  man  with  whom  he  has  con- 
tracted to  do  so  would  certainly  entail 
hardship ;  and  that  as  to  the  perpetra- 
tion of  frauds  each  case  would  have  to 
lx>  inquired  into  on  its  own  merits,  and 
in  case  collusion  were  proved,  the  fraud- 
ident  arrangements  would  be  set  aside, 
just  as,  in  similar  circumstances,  they 
would  be  set  aside  in  the  case  of  dishon- 
est marriage  settlements  or  other  con- 
tracts among  more  civilised  people.  In 
the  present  case,  the  parties  concerned 
seem  to  have  acted  in  good  faith,  and 
I  am  of  opinion  that  the  appeal  should 
be  dismissed,  with  costs. 

[Appellant's  Attorneys:  Walker  and 
Jocobsohn.  Respondent's  Attorneys: 
Findlay  and  Tait.] 


"CAPE  TIMES"  LAW  REPORTa 


747 


[Before  the  Acting  Chief  Justice,  the 
Hon  Sir  John  Buchanan.] 


REX     V.    GOURLAV    AND       f         1905. 

CAVANAGH.  (  Sept.  4th. 

Excise  duty— Acts  36  of  li)04, 
Sec.  18,  and  'A6  of  1905, 
Sec.  4. 

This  was  an  appeal  against  the  deci- 
sion of  the  Acting  Resident  Magistrate 
of  Cape  Town,  by  which  the  appellants 
were  convicted  on  a  charge  of  having 
contravened  section  18  of  Act  36  of  1904 
and  section  4  of  Act  26  of  1905.  in  that, 
on  or  about  June  15,  1906,  tney  both, 
each,  one,  or  other  of  them,  fraudulently 
made  a  false  return  to  the  Excise  Re- 
ceiver of  the  quantity  of  spirits  in  their 
possession,  or  under  their  control,  by 
omitting  to  include  a  certain  quantity 
of  whisky ;  or,  otherwise,  with  fraudu- 
lently failing  to  make  a  return  of  spirits. 
The  accused  were  each  fined  £250,  or  in 
default  one  month's  imprisonment.  Mr. 
Burton  appeared  for  the  appellant,  and 
Mr.   Nightingale  was  for  the  Crown. 

Mr.  Burton  said  that  the  appeal  was 
made,  on  notic>e  to  the  Attorney-General, 
on  the  grounds  that  the  conviction  was 
not  supported  by  the  evidence,  and  was 
contra rv  to  law.  The  charge  was  sub- 
stantially based  on  the  Act  of  1904,  which 
dealt  with  the  Excise  projx^r;  and  in 
s*.'rtion  18  tlie  maximum  •  penalty  was 
laid  down  as  £500  fine  or  one  year's 
imprisonment.  The  only  reason  why  the 
Act  of  1905  was  referred  to  in  the  charge 
was  that,  by  that  Act,  the  provisions  of 
the  Act  of  1904  were  made  to  apply  to 
imported  spirits.  In  reviewing  the  evi- 
dence given  in  the  case  in  the  (Jourt 
below,  counj-ol  said  that  he  might  ex- 
plain that,  before  the  Act  of  1905  :ame 
into  force,  there  was  an  idea  amonj?st 
the  spirit  merchants  of  the  Penin.-iula 
tliat  the  payment  of  the  extra  duty  en 
imix^rted  spirits,  under  that  Act,  might 
be  avoided  by  the  removal  of  the  spirits 
from   bond,   before  the  Act  was  promul- 

f'jated.  Acting  on  this  idea,  the  appel- 
ants  had  something  like  4,000  castas  of 
spirits  removed  from  bond.  They  found, 
however,  that  they  could  not  accommo- 
date all  that  quantity  at  their  stores,  so 
some  of  it  was  sent  to  be  stored  in  a 
store  in  the  grounds  of  the  private  resi- 
dence of  Mr.  C'avanagh,  one  of  the 
partners,  at  Green  Point.  Some  of  the 
cases  of  spirit  sent  to  Green  Point  were 
brought  into  town  again,  but  149  cases 
were  left  there,  and  were  overlooked 
when  the  Excise  return  was  made  out. 
This  was  the  cause  of  the  whole  trouble. 
The  149  cases  represented  an  extra  duty 
of  about  £90,  and  it  was  said  that  the 
appellants  fraudulentiv  made  a  false  re- 
turn in  order  to  evade  payment  of  that 
small  amount.  The  omission  to  draw 
attention  to  the  149  cases  lying  at  Green 
Point  was  made  by  Simpson,  the  man 


in  charge  of  the  appellants'  store  in 
town.  Uourlay,  Cavanagh  and  Co.  re- 
turned 6,000  gallons  of  spirits,  to  the 
Excise  Department,  on  which  they  paid 
over  £1000;  yet  it  was  now  said  that 
they  tried  to  evade  the  payment  of  such 
a  small  amount  as  £90. 

[Buchanan,  A.  C.  J, :  I  cannot  under- 
stand how  a  firm  keeping  books  like  this 
should  not  have  noticed  the  shortage.] 

The  man  who  sent  the  caaoh  out  to 
Green  Point  failed  to  make  a  return  to 
his  employers. 

[Buchanan,  A.'  C.  J. :  But  the  books 
show  it.] 

No.  The  books  and  the  return  were 
checked  by  the  Excise  officers,  and  a 
diflference  of  10  gallons  was  found.  Of 
course,  that  frequently  occurs ;  a  firm 
is  a  few  gallons  over  or  a  few  gallons 
short. 

[Buchana'n,  A.  C  J. :  The  books 
should  show  the  total  quantity,  where- 
evcr  the  spirits  might  be.] 

That  was  the  storeman's  fault. 

[Buchanan,  A  C.  J.:  But  the  bookn 
should  show  the  total  amount  correctly.] 

That  would  not  bo  shown  until  they 
r(x*eiviKi  their  returns  from  the  (-ustonis. 
That  is  one  of  the  elements  in  tin*  case. 

[Buchanan,  A.  C.  J.:  I  could  under- 
stand a  mistake  being  made  as  to  where 
the  sjiirits  were,  but  not  as  to  the 
amount.] 

Mr.  Burt-on  (proceeding)  said  that  it 
wa,s  shown  in  the  evidence  that  the  Vii!^- 
tonis  return  agnxHl  witli  the  finn'H  stork 
book,  an  examination  by  tht^  Exoiise  offi- 
cers showing  that  there  were  ten  gallons 
out  m  bath.  It  appe>ared  that  subse- 
<iuently  two  gallons  out  of  the  ten  were 
accountpd  for,  bringing  the  amount 
dorwn  to  eight  gallons.  Patrick  Duffj', 
the  firm's  manager,  stated  in  his  evi 
dence  that  he  made  out  th»  return  on 
which  the  prosecution  was  based,  and 
signed  it  on  Ix^half  of  the  firm ;  he 
thouK^ht  that  it  included  the  149  gallons 
of  whisky  wliich  wore  at  (iroen  Point. 
When  the  spirit  was  sent  to  GreiMi  Point 
the  appellairts  were  under  no  liability, 
accumulating  or  otherwise,  for  extra 
duty  on  whisky,  so  that  it  could  not  have 
been  sent  out  in  order  to  evade  the  Ex- 
cise. The  Magistrate  found  lx)th  the 
accused  guilty,  without  saying  on  which 
charge ;  and  said  that  he  was  satisfied 
that  the  spirit  was  taken  to  Green  Point 
in  order  to  evade  the  duty,  and  not  that 
it  was  overlooked  by  mistake.  The 
substantial  [)oint  of  the  apjx'al  was  to 
h^ve  this  stigma  on  the  appellants,  of 
having  committed  fraud.  removed. 
From  the  very  beginning  the  charge  was 
extraordinary.  The  summons  said  that 
the  omission  was  fraudulent  and  inten- 
tional. Now,  all  this  was  vorj'  improper, 
and  not  in  accordance  with  the  terms  of 
the  Act,  which  said  that  a  man  nn'giit 
be  prosecuted  for  failing  to  make  a  re- 
turn— not  fraudulently  omitting  to  do 
so,  as  the  summons  was  worded.       He 


748 


l€ 


CAPS  TtMEB"  LAW  REPORTS. 


(couDBel)  submitted  that  the  appellants 
had  a  right  to  come  to  Court  to  have  thia 
stigma  on  their  character  removed.  It 
would  have  been  .  reasonable  had  the 
accused  been  found  guilty  of  not  having 
made  a  fetum  without  a  reasonable  ex- 
cu<^,  because  one  felt  that  the  em- 
ployees were  negligent  in  not  informing 
their  principals  of  the  fact  that  there 
was  spirit  at  Green  Point. 

[Buchanan,  A.  C.  J.:  As  the  sum- 
mons is  worded,  they  would  be  found 
guiltv  of  fraud  in  either  case?] 

Yes. 

His  Lord.ship  inquired  which  count  of 
the  indictment  the  Magistrate  convicted 
the  appellants  on.  He  would  like  before 
going  further,  to  have  the  Magistrate's 
reasons 

Mr.  Nightingale:  It  is  por«ible  that 
the  evidence  in  this  case  might  support 
the   prosecution  on   both   counts. 

[Buchanan,  A.  C.  J. :  There  is  no 
charge  on  both  counts.] 

They  were  charged  in  the  alternative. 

[Buchanan.  A.C.J. :  I  think  it  would 
bi  advisable  to  know  before  this  case  is 
argued  which  count  they  were  convicted 
on.  The  Magistrate  can.  of  course,  only 
convict  on  one.  I  should  like  to  know 
the  count  the  Magistrate  convicted  on.] 

Mr.  Burton:  That  should  certainly  be 
made  clear. 

[Buchanan,  A.  C.  J. :  I  think  it  is 
rather  important  in  this  case.] 

It  would  appear  from  the  newspaper 
rejjort,  which  my  learned  friend  had 
allowed  me  to  refer  to,  that  they  were 
found  guilty  on  the  charge  of  making 
the  false  rcj)ort. 

[Buchanan,  A.  C.  J. :  I  think  it  would 
be  as  well  to  get  the  Magistrate  to  de- 
cide the  point.  The  Court  will  continue 
to  hear  appeals  this  week,  and  the 
Magistrate  can  send  in  his  reasons.] 

Mr.  Burton :  It  is  a  matter  of  some 
importance. 

[Buchanan,  A.  C.  J. :  If  the  Magis- 
trate gives  his  reasons  at  once  the  hear- 
ing of  the  case  can  be  continued  during 
the  coming  week.] 

Postea. 

Mr.  Burton  said  the  Magistrate  had 
now  stated  that  he  found  the  accused 
guilty  on  the  alternative  charge,  of 
failing  to  send  in  a  return.  After 
hearing  the  evidence,  he  (the  Magis- 
trate) was  satisfied  that  the  accused 
had  the  liquor  sent  to  Chantilly, 
Green  Point,  and  had  failed  intention- 
ally to  make  a  return,  with  the  objeot 
of  evading  the  dutv.  Profceeding, 
Counsel  said  that  the  charge  under  the 
Act  was  one  of  failing  to  send  in  a 
return  withou<t  rea^^onable  excuse. 
Therefore,  it  wan  clear  that  the  rest 
of  the  charges  on  the  summons  wore 
mere  trimming  and  unjustifiable  verbi* 
age.  The  Magistrate  had  been  in- 
fluenced by  the  form  in  which  l^e 
charge  was  made  out.  The  charge 
should  haye  been  worded  in  the  teiius 


of  the  Act,  which  merely  laid  down 
that  one  could  be  charged  with  omit- 
ting to  make  a  return,  without  reason- 
Me  excuse — not  with  fraudulent  omis- 
sion to  make  a  return — and  the  convic- 
tion should  have  been  confined  to  that. 
It  was  dear  that  the  Magistrate  came 
to  the  conclusion  that  the  spirit  was 
sent  to  Chantilly,  and  no  return 
was  made,  because  the  accused  desired 
to  evade  payment  of  the  duty,  and  it 
was  equally  clear  that  he  based  the 
conviction  on  tha.t  finding.  The  finding 
of  criminal  intent  should  not  be  al- 
lowed to  remain  on  the  record ;  all  the 
circumstances  pointed  to  the  absence 
of  criminal  intent.  Because  tiie  ap- 
ix>llants  had  omitted  to  include  149 
cases  in  the  large  quantity  returned, 
they  were  now  held  guilty  of  fraudu- 
lent intent.  He  would  point  out  that 
the  returiin  in  question  were  ccwnpiled 
by  empJoyees,  and  only  one  of  them 
was  seen  b^  one  of  the  principals,  who 
formally  signed  it  on  behalf  of  the 
firm.  The  sjnrit  was  sent  to  Green 
Point  before  it  was  liable  to  pay  the 
extra  duty;  yet  the  Magistrate  said 
that  it  was  sent  out  with  tlie  object  of 
evading  the  duty.  The  evidence  showed 
that  between  250  and  300  oases  were 
sent  out  to  Chantilly.  Green  Point. 
in  the  first  instance.  It  wai»  said  that 
this  was  done  to  evade  the  duty,  bat 
what  happened? — a  large  number  of  the 
cases  was  returned  to  town,  leaviug 
only  the  149  oases  which  were  over- 
looked, at  Green  Foint.  One  of  the 
points  to  which  he  would  draw  atten- 
tion was  that  it  was  practically  im- 
possible to  evade  the  i!iXcise.  except  by 
oullusion  between  the  wholesale  mer- 
chant and  retailer.  It  would  have  been 
reasonable  had  the  Magk>trate  found 
the  appellants  guilty  of  failing  to  send 
in  a  return  without  reasonable  excuse. 
Then  would  arise  the  question  whether 
the  overlooking  of  the  spirit  at  Chan- 
tilly in  the  present  case  was  a  rea- 
sonable excuse.  As  to  that,  he  was  not 
prepared  to  argue ;  he  was  disposed  to 
admit  that  the  principal  was  responsible 
for  the  action  of  his  employees.  He 
(counsel)  would  then  ask  the  Court 
to  mark  its  disapprobation  of  the  find- 
ing of  the  Magistrate,  that  there  was 
fraudulent  intent,  by  a  reduction  in 
the    amount    of    the    fine. 

[Buchanan,  A.  C.  J. :  Has  the  Court 
power  to  do  that.  In  the  High  Court  of 
Griqualand  West,  it  can  be  done,  but  I 
do  not  think  it  is  so  here.] 

Mr.  Burton :  I  think  it  has  been 
done    here. 

[Buchanan,  A.  C.  J. :  Not  in  this 
Court;  the  conviction  has  been  struck 
out  altogether,  but  not  the  fine  reduced. 
The  Act  of  1886  lays  down  that  this 
Court  cannot  reduce  the  fine,  but  it  can 
recommend  to  the  Government  mitiga- 
tion of  sentence.] 

In  that  case,  I  would  ask  the  Court 
to  express  an  opinion  as  to  the   oon- 


«I 


CAPE  TIMES"  LAW  REPORTS. 


749 


yiction,   and   to   make  a   suggestion   to 
the  Executive  as  to  the  fine. 

Mr.  Nightingale  said  that  he  would 
draw  particular  attention  to  the  fact 
that  the  returns  on  which  the  prosecu- 
tion was  based  formed  the  basis  of  the 
Excise  revenue.  The  dealers  were 
bound  by  the  Act  to  make  full  die- 
closures  of  the  quantity  of  spirits  in 
their  possession.  As  to  the  difficulty 
of  evading  the  Excise,  it  was  (|uit4« 
possible  for  a  dealer,  who  had  not  dis 
closed  certain  stock,  to  diepose  of  u 
without  the  knowledge  of  the  Excise 
Department.  He  would  point  out  that 
in  this  case  the  elements  were,  that 
there  was  no  declara^on  of  the  pre- 
sence of  the  spirit  at  Chantilly; 
that  it  was  the  partner  Cavanagh  who 
arranged  with  his  fairer  for  the  stor- 
age of  the  spirit  at  Green  Point,  and 
that  the  partner,  Gourlay,  was  the  per- 
soii  who  instructed  the  men  to  have 
it  t-aaen  out  to  Chantilly.  And  then 
there  was  one  siffnifioant  point.  Simp- 
son, in  his  evidence  for  the  defence, 
said    that  when   some   of    the  cases  ori- 

ginally  sent  to  Green  Point  were 
rought  ill  they  were  returned  to  bond, 
and  eub:}equently  removed  to  Sir 
Lowry-road.  The  inference  was  that 
the  appellants  wisneu  it  to  be  thought 
that  these  cases  were  coining  from  bond 
and  not  from  the  undeclared  stock  at 
Chantilly.  There  was  ample  evi- 
dence to  show  that  though  the  re- 
turn was  comioiled  by  an  employee,  it 
was  signed  by  one  of  the  partners,  and 
it  wa«  perfectly  clear  that  the  partners 
had  a  knowledge  of  the  omission,  and 
that  the  Magietrate  was  jui»tified  in 
coming  to  the  conclusion  that  there 
was  an  element  of  fraud  in  the  omission 
to  make  a  ret-uni  ot  the  spirit  at 
Chantilly. 

Buchanan,  A.  C.  J.,  said  that  the  ap- 
pellants in  this  case  were  large  whole- 
sale dealers  in  liquor ;  and,  when  it  was 
being  discussed  in  Parliament,  whether 
or  not  any  additional  duty  should  be 
imposod  on  foreign  spirits,  they  cleared 
from  bond  some  d,000  cases  of  spirit,  on 
th*)  supposition,  that,  once  the  spirit 
had  been  removed  from  bond,  it  would 
not  be  liable  to  pay  the  extra  duty. 
However,  Parliament  decided  to  impose 
nor  an  additional  Customs  duty  but  an 
excise  on  stocks  in  hand.  At  the  time 
of  the  removal  of  the  spirit  from  bond, 
it  was  immaterial  to  the  Government 
where  the  spirit  was  stored.  When  the 
Act  of  last  session  was  passed  foreign 
spirits  were  rendered  liable  to  the  Ex- 
cise, and  dealers  were  required  to  send 
in  a  return  of  stocks  in  hand.  The  ap- 
fiellants  sent  in  a  return,  showing  the 
stock  in  their  Short-street  and  Sir  I^wry- 
road  stores ;  but  no  return  was  «-ent  in. 
in  respect  to  that  at  Chantilly.  When 
it  was  found  that  there  was  a  stock  of 
spirit  at  Chantilly,  the  appellants  were 
prosecuted.  They  were  charged,  under 
the  18tb  section  of  Act  36  of  1904,  with 


making  a  false  return;  or,  alternatively, 
with  failing  to  make  a  return,  without 
reasonable  excuse.  The  Magistrate  did 
not  convict  on  the  charge  of  making  a 
false  return,  but  he  did  on  the  charge 
of  omitting  to  make  a  return.  The  al- 
ternative charge,  of  omitting  to  make 
a  return,  without  reasonable  excuse,  was 
laid  as  having  been  done,  that  they  did 
'*  wrongfully,  intentionally,  and  fraudu- 
lently, etc'  It  was  unnecessary  to  say 
that  the  omission  was  made  with  intent 
to  defraud,  except  in  so  far  as  it  might 
influence  the  Magistrate  as  to  the  pun- 
ishment should  there  bo  a  conviction.  It 
was  clear  that  the  appellants  did 
actually  omit  to  make  a  return  of  the 
spirit  at  Chantilly.  The  excuse  they 
gave  was,  that  then  Clerk  Duffy,  who 
made  out  the  return,  did  su  on  informa- 
tion received  from  the  bonding  store 
manager,  whom,  ho  thought,  included 
the  cases  at  Chantilly.  That  excuse,  the 
Magistrate  held,  was  not  a  rcasuiiabic 
excuse  for  the  conduct  of  the  parties. 
When  the  case  was  before  the  (^ourt  in 
the  first  instance,  he  (Sir  J.  Buchanan) 
remarked,  that,  if  the  returns  had  been 
checked  with  the  book,  the  omission  to 
include  the  149  cases  at  Green  Point 
could  not  have  been  noticed ;  and  he 
thought  that  the  neglect  to  check  the 
returns  was  such  as  to  justify  the 
Magistrate  in  saying  that  *  there 
was  no  reasonable  excuse  for  the 
omission  to  make  a  return  of  the 
149  cases.  As  to  whether  there  had 
been  fraudulent  intent,  it  was  very  diffi- 
cult to  deal  with  that  point.  The 
Magistrate  held  that  there  had  been 
fraudulent  intent.  The  fine  which  was 
inflict<^d  by  the  Magistrate  had  been 
imi)osed  was  one  within  his  jurisdic- 
tion and  under  the  49th  section 
of  Act  20  of  1856,  it  was  directed 
that  on  appeal  or  review  no  sentence  of 
a  Ma'gistrate  should  be  reveised  or  al- 
tered oy  reason  merely  that  the  degree 
of  punishment  awarded  may  appear  to 
the  Court  to  have  been  usually  or  un- 
necessarily severe.  This  Court  there- 
fore cannot  now  reduce  the  fine,  though 
it  is  open  to  represent  to  the  Governor 
its  opinion  that  the  sentence  be  miti- 
gated. In  a  case  such  as  this,  one  Magis- 
trate would  take  one  point  of  view,  and 
another  Magistrate  another  point  of 
view;  and  it  was  probable  that  this 
Court  would  not  have  imposed  the  maxi- 
mum fine.  But  the  question  now  bo- 
fore  the  Court :  Was  the  convic- 
tion justified  by  the  evidence? — ho 
thdught  that  it  was.  Was  the  fine  im- 
posed within  the  jurisdiction  of  the 
3lagis£rate?  It  is  clear  that  it  was.  In 
these  circumstances,  the  Court  would 
have  to  dismiss  the  appeal.  If  it  were 
desired  that  he  should  give  a  personal 
opinion  on  the  question  of  fraud,  he 
would  say  that,  under  the  circum- 
stances, considering  the  position  of  the 
parties,  he  did  not  think  that  he  would 


750 


"CAPE  TIMBB"  LAW  REPORTS. 


have  oome  to  the  same  conclusion  as 
the  Magistrate  had  done  on  that  Ques- 
tion of  fraud.  The  appeal  would  be 
dismissed,   with  costs. 

[Appellant's   Attorneys:    Ilarsant   and 
Harsant.] 


HEX  V.  PBRKAAR. 

This  was  an  appeal  hj  Bawa  S. 
Pcakaar  from  the  decision  of  the 
A.R.M.,  Wynberg,  sentencing  him  to  a 
month's  imprisonment  with  hard  labour 
for  receiving  goods,  knowing  them  to 
have  be<*n  stolen.  Mr.  Burton  appear- 
ed for  the  appellant,  and  Mr.  Nightin- 
gale for  the  Grown. 

The  appeal  was  brought  on  the 
grounds  that  the  conviction  was  not 
suDoortod'  by  evidence. 

Mr.  Burton,  for  the  appellant,  wa« 
heard  in  argument  on  the  facts. 

Without  calling  upon  Mr.  Nightingale 
Buchanan,  A.C.J.,  said  that  in 
this  case  two  persons  were  charged 
with  the  crime  of  theft  or  re- 
ceiving jtfcoleu  goods,  knowing  them 
to  have  been  stolen.  Of  the  two  per- 
sons, one  was  a  boy,  who  accompanied 
the  driver  of  the  prosecutor's  bread 
cart,  and  the  other  was  a  shopkeeper, 
to  whom  bread  was  delivered.  The  boy 
I)load<.Hl  guilty.  The  e\'idono©  showed 
that  after  the  driver  t<»inporariIy 
left  the  cart  iho  boy  gave  the  man  a 
certain  amount  of  bread.  The  bread, 
on  the  return  of  the  cart  was  found 
to  lx»  short,  and  the  evidence 
went  on  to  show  that  a  certain  amount 
of  bread  was  found  in  the  man's  shop, 
hidden  away  undier  the  counter.  The 
man  stated  that  he  had  bought  the 
bread  from  the  driver,  but  the  bread 
so  bou|^ht  was  left  on  the  counter,  and 
the  driver  contradicte<l  the  prisoner  as 
to  the  quantity  bought  The  man's 
conduct  wa«  not  that  of  a  hoTia-fide  pur- 
chaser. The  evidence  was  sufficient  to 
justify  the  Ma^strate,  and  the  appeal 
would  be  dismLsecd. 


GENERAL     MOTION. 


Ex  parte  NKWARK. 

Mr.  Russell  moved  for  a  rule  nisi  to 
attach  certain  property,  in  the  estate  of 
Thomas  George  Denbigh,  to  found  juris- 
diction, and  for  leave  to  sue  by  edictal 
citation  for  damages  incurred  by  a 
breach  of  contract. 

[Buchanan,  A.C.J. :  What  goods  is 
it  desired  to  attach ;  in  -whose  posses- 
sion  are    they?] 

Mr.  Russell:  They  are  at  70,  Loop- 
street,  in  the  possession  of  Mr.  Bar- 
forth.  I  do  not  know  what  is  the 
nature  of  the  goods. 


[Buchanan,  A.C.J. :  What  ie  tlie 
value  of  the  goods  in  his  possession?] 

About   £75. 

[Buchanan,  A.C.J. :  What  are  the 
damaged  likely    to    be — £30  or   £40?] 

I  am  instructed  £150. 

[Buchanan,  A.C.J. :  Oh.  no  1  That  is 
out  of  the  question  altogether.  The 
Court  will  grant  a  rule  nisi  to  attach  the 
goods  in  the  possession  of  Barforth.  to 
i  found  jurisdiction,  leave  being  allowed 
<  to  the  respondent  to  move  to  have  the 
rule  set  aside,  action  to  be  commenced 
forthwitdi. 


SUPREME  COURT 


[Before  the  Actin<?  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


HALVBRSOK  Y.  ANDER£ON. 


(        IIX).*). 
it  Sept  f'th. 

Contract — Breach  —  Mensure    of 
damages. 

This  was  an  action  in  which  Mrs.  Ger- 
trude E.  Halverson,  local  manageress  of 
the  Viava  Treatment  Company,  sued  the 
South  African  proprietor,  W^illiam 
Thomas  Anderson,  to  recover  £500  as 
damages  for  breach  of  contract. 

The  plaintiff's  declaration  was  as  fol- 
lows: 

1.  Tlie  plaintiff  is  a  widow,  residing 
and  carrying  on  business  at  Cape  Town. 
The  defendant  resides  at  Johannesburg, 
and  carries  on  business  there  under  the 
style  of  the  South  African  Viavi  Com- 
pany. 

2.  By  order  of  this  Honourable  Court, 
dated  the  22nd  June,  1905,  certain  pro- 
perty of  the  defendant  has  been  attaclied 
ad  fundandam  jurisdietionem. 

3.  On  or  about  the  3rd  January.  1905, 
the  plaintiff  and  the  defendant  entered 
into  a  certain  written  contract. 

4.  Thereafter,  the  plaintiff  hired  and 
paid  for  rooms  for  tne  carrying  on  of 
the  business  set  forth  in  tne  contract, 
engaged  workers  for  the  same,  and  did 
all  things  necessary  to  be  done  by  her 
under  tne  said  contract. 

5.  On  or  about  the  16th  May,  1905. 
the  plaintiff  requested  and  required  th<» 
defendant  to  replenish  and  supply  her 
with  a  stock  of  the  preparations  and 
goods  referred  to  in  tne  contract.  Par- 
ticulars of  the  preparations  and  goods 
so  required  were  furnished  to  the  de- 
fendant, 

6.  The  defendant,  in  breach  of  the 
said     contract,   refused  and  has  wholly 


"CAPE  TIMES"  LAW  REPORTS. 


761 


failed  to  supply  the  plaintiff  with     any 
of  the  stock  so  required. 

7.  The  plaintiff  has  been  and  is  un- 
able to  obtain  the  said  preparations  and 

foods  elsewhere,  and  by  reason  of  the 
efendant's  failure  has  lost  profits  which 
she  would  otherwise  have  obtained 
from  the  sale  of  the  said  preparations 
and  goods,  and  has  otherwise  sustained 
damage. 

8.  The  plaintiff  estimates  the  damage 
sustained  as  in  paragraph  7  set  forth  m 
the  sum  of  £250. 

9.  The  defendant  still  refuses  to  supply 
her  with  any  preparation  or  goods,  and 
has  repudiated  the  said  contract,  though 
the  plaintiff  has  always  been  ready  and 
willing  to  perform  her  part  of  the  said 
contract. 

10.  The  plaintiff  has  been  put  to  ex- 
pense in  hiring  rooms,  in  engaging 
workers,  and  in  other  ways  for  carrying 
out  the  contract,  and  by  reason  of  the 
defendant's  repudiation  will  lose  profits 
which  she  would  have  obtained  during 
the  unexpired  portion  of  the  contract. 

11.  Th.>  plaintiff  estimates  the  damages 
caused  to  her,  as  in  paragraph  10  set 
forth,  by  the  defendant's  repudiation  in 
the  sum  of  £250. 

Wherefore  the  plaintiff  claims:  (a) 
£250  damages,  as  in  paragraphs  7  and  8 
set  forth;  (b)  an  order  declaring  that 
the  said  contract  is  cancelled  by  reason 
of  the  defendant's  repudiation  thereof; 
(c)  £250  damages,  as  m  paragraphs  10 
and  11  set  forth;  (d)  alternative  relief; 
(e)  costs  of  suit. 

The  defendant's  plea  wa«  as  follows : 

1.  The  defendant  admits  paragraph  1 
of  the  declaration,  save  that  he  says 
that  the  business  of  the  South  African 
Viavi  Co.  is  not  carried  on  by  him 
alone,  but  by  him  and  his  brother 
Alexander  Anderson  in  partnership, 
trading  together  under  the  said  style. 

2.  As  to  paragraph  2,  the  defendant 
says  that  the  property  attach3d  belongs, 
not  to  him,  but  to  the  partnership  afore- 
said. 

3.  The  defendant  admits  paragraph  3. 

4.  Save  as  hereunder,  the  defendant 
denies  paragraphs  4  and  10.  The  plain- 
tiff was  allowed  to  continue  the  use  of 
the  office  provided  by  defendant,  and 
to  use  the  furniture  therein  as  in  the 
contract  provided.  Half  of  the  month- 
ly rental  has  each  month  since  the  date 
of  the  said  contract  been  paid  out  of 
defendant's  moneys. 

5.  The  plaintiff^^s  position  under  the 
contract  aforesaid  was  that  of  manager 
at  Capo  Town  for  the  defendant,  and 
it  was  her  duty,  not  only  to  carry  out 
the  contract,  but  to  obey  all  lawful 
directions  given  by  the  defendant,  and 
to  supply  all  information  lawfully  re- 
quired by  defendant  in  connection  with 
the  business. 

6.  The  defendant  failed  and  neglected 
to  carry  out  the  terrns  of  the  contract 
aforesaid;  more  particularly  she  failed 
imd   neglected   to  hire   and  train      the 


necessary  workers,  as  under  the  con- 
tract provided,  and  refused  to  give  to 
the  defendant  proper  particulars  of 
what  she  was  doing  in  this  regard, 
though  repeatedly  requested  by  the 
defendant  prior  to  May  15  last,  and 
subsequently  so  to  do. 

7.  The  plaintiff  further  failed  to  give 
defendant  proper  financial  state- 
ments, though  called  upon  by  him  eo 
to  do. 

8.  The  defendant  is  not  under  the  con- 
tract bound  to  supply  any  fixed  or  de- 
finite quantities  of  the  viavi  prepara- 
tions; but  is,  snd  always  has  been, 
ready  to  forward  reasonable  quantities 
thereof  to  plaintiff.  The  plaintiff 
made  no  requisition  for  such  prepara- 
tions in  May,  1905;  but  failed  and  re- 
fused till  June  9,  1905,  to  furnish  to 
defendant  proper  returns  of  the  sup- 
plies of  such  preparations  furnished  by 
defendant,  and  still  in  her  possession, 
though  repeatedly  requested  so  to  do  in 
April,  1905,  and  subsequently. 

9.  On  the  said  9th  Jw^^.  1905,  the  said 
return  of  supplies  was  forwarded  by 
plaintiff,  with  a  financial  statement, 
from  which  it  appeared  that  plaintiff 
was  retaining  in  her  possession  £46 
15«.  3d.  of  defendant's  moneys,  which 
should  under  the  agreement  have  been 
paid  into  defendant's  bank 

10.  Defendant  denies  that  plaintiff  was 
in  need  of  Viavi  supplies  a^  set  forth 
in  her  declaration ;  and  says  that  he 
forwarded  to  plaintiff  all  such  Viavi 
aui)plies  as  were  reasonable  under  all  the 
circumstances.  He  is,  and  has  been, 
prepared  to  forward  further  supplies 
conditionally^,  on  duly  receiving  the 
reports,  information.  and  returns 
aforej^aid,  which  he  is  lawfully  entitled 
to,  and  on  plaintiff  duly  carrying  out 
her  part  of  the  contract ;  but  the  defen- 
dant says  he  was  justified,  by  reason 
of  the  premises,  in  refusing  to  send  fur- 
ther supplies,  save  upon  such  condi- 
tions being  carried  out. 

11.  Subject  to  the  above,  defendant 
denies  paragraphs  5,  6,  and  9. 

12.  As  to  paragraphs  7,  8,  and  11,  the 
defendant  denies  that  plaintiff  has  suf- 
fered any  damages  as  alleged  in  her 
declaration,  and  denies  that  he  is  in 
law  liable  for  the  same,  even  if  she  has 
suffered  such  damages. 

Wherefore  defendant  prays  that  plain- 
tiff's claim  may  be  dismissed,  with  costs. 

For  a  claim  in  reconvention,  the  de- 
fendant (now  plaintiff)  says : 

14.  The  defendant  wrongfully  and  un- 
lawfully detains  in  her  possession  the 
sum  of  £46  15s.  3d.,  being  amounts  due 
to  plaintiff  under  the  agreement  afore- 
said, as  part  proceeds  of  sales  effected 
by  defendant. 

15.  The  defendant  by  her  negligence 
and  breaches  of  contract  aforesaid  has 
greatly  retarded  the  development  of 
plaintiff*s  business,  and  has  caused  great 
loss  of  profits  to  plaintiff. 


7.->2 


« 


CAPE  TIMES*'   LAW  REPORTS. 


16.  The  plaintiff  has  suffered  dt mages 
which  he  estimates  at  £500,  by  reason 
of  the  premises. 

Wherefore  plaintiff  in  reconvention 
claims;  (a)  Repayment  by  defendant 
of  the  sum  of  £46  15s.  3d.,  being  moneys 
duo  to  plaintiff,  and  wrongfully  and  un- 
lawfully detained  by  defendant  as  afore- 
said ;  [h)  t  he  sum  of  £500  a«  and  for 
damages  as  aforesaid ;  (c)  alternative 
relief;   (d)  costs. 

The  paintiff's  replication  was  aa  fol- 
lows : 

1.  As  to  her  position  and  duties,  the 
plaintiff  refers  to  the  terms  of  the  con- 
tract annexed  to  the  intendit. 

2.  She  says  that  she  has  hired  and 
trained  the  necessary  workers,  has  for- 
warded proper  statements  and  reports, 
and  has  done  all  things  which  she  is 
liable  to  do  in  respect  of  her  contract. 

3.  She  admits  that  from  the  amount 
shown  in  the  financial  statement  for- 
warded in  June,  1005,  as  cue  to  the 
defendant  she  has  deducted  the  sum  of 
£29  13s.  9d.,  being  an  amount  due  to 
her  by  the  defendant  for  passage^  money 
and  travelling  expenses  trom  New  Zea- 
land to  South  Africa,  but  not  paid  to  her 
or  credited  to  her  in  the  said  statement 
or  any  previous  statement.  She  admits 
that  she  retains  the  balance  for  the  pur- 
pose of  satisfying,  to  the  extent  of  such 
balance,  rent  and  other  expenses  incurred 
since  the  said  statement  m  connection 
with  the  Viavi  business  in  Cape  Town, 
for  which  expenses  the  defendant  is 
liable. 

4.  Save  as  above,  and  save  in  so  far 
as  the  plea  contains  admissions,  she 
denies  all  and  singular  the  allegations 
of  fact  and  conclusions  of  law  therein 
contained  and  joins  issue  thereon,  and 
again  pray«i  for  judgment  with  costs. 

For  a  rejoinder  to  the  plaintiff's  repli- 
cation. t!ie  defendant  says  that  he  denies 
specially  that  plaintiff  is  or  was  entitled 
to  deduct  the  sums  referred  to  in  para- 
graph 3  of  the  replication,  as  she  alleges 
that  she  has  done,  or  that  defendant  is 
liable  as  therein  set  forth.  Otherwise, 
save  for  admissions,  the  defendant  denies 
the  allegation-)  and  conclusions  in  the 
replication  contained,  joins  issue  there- 
on, and  again,  as  before,  prays  that  t*ie 
plaintiff's  claim  may  be  dismissed  with 
costs. 

Mr.  Gardiner  for  plaintiff;  Mr.  Clorse 
(with  him  Mr.   Sutton)  for  defendant. 

Mrs.  Gertrude  E.  Ilalvorsen,  the 
plaintiff,  stated  she  came  to  South 
Africa  in  May,  1904,  under  contract 
with  the  American  Viavi  Company, 
which  was  eventually  taken  over  by  An- 
derson, who  was  the  loc^al  agent.  In 
the  letter  appointing  witness,  which 
was  written  in  the  previous  January,  the 
company  enclosed  the  contracts  to  be 
signed.  No  mention  was  made  in  that 
contract  of  witness's  passage  money. 
Witness  was  brought  to  South  Africa  to 
assist  Mr.  Anderson  in  o>rganising  the 
countryi  aa  she  had  had  vast  experience 


in  other  countries.  Witness  arrived  in 
South  Africa,  and  travelled  about  the 
country.  Viavi  was  a  proprietary  medi- 
cine, chiefly  used  by  ladies.  It  was  neoes- 
sary  to  train  ladies  in  different  parts  of 
the  country  to  sell  the  medicine.  Wit- 
ness arrived  in  Cape  Town  in  January 
last,  when  the  contract  was  entered  into 
with  Anderson.  W^hen  witness  arrived 
in  Cape  Town,  the  contract  was  changed, 
as  she  then  became  manageress. 

[Buchanan,  A.C.J. :  How  did  you 
train   the   workers?] 

We  taught  them  how  to  call  on  ladies, 
a-nd  to  teach  them  what  the  remedy  is. 

Witness  (continuing)  said  she  travelled 
around  the  country  giving  lessons  to 
workers,  and  also  lecturing.  Witness 
furnished  weekly  statements.  Up  to 
May  she  made  on  an  average  about  £50 
a  month  for  herself.  At  nrst  she  Had 
no  reasons  for  complaint,  but  on  May  1 
she  had  to  complain  of  the  insufficiency 
of  the  stock.  She  had  no  reply,  and  she 
therefore  sent  an  urgent  wire,  as  she 
was  refusing  money  daily  because  of  the 
lack  of  supplies.  On  May  15  she  re- 
ceived a  letter  from  defendant  contain- 
ing a  number  of  complaints,  and  mak- 
ing particular  reference  to  her  '*  dis- 
loyal attitude  "  and  **  sailing  under  false 
colours."  Further  correspondence  pass- 
ed between  the  parties,  from  which  it 
appeared  tne  defendant's  main  complaint 
against  the  plaintiff  was  because  her 
notepaper  was  headed  as  if  she  were 
manageress  of  the  South  African  busi- 
ness. By  defendant's  action,  plaintiff 
had  to  refuse  many  orders. 

In  cross-examination,  witness  said  she 
came  to  South  Africa  under  a  traveller's 
contract.  Under  the  system.  South  Af- 
rica was  divided  into  territories,  each 
under  a  manager.  The  manager  was 
not  supposed  to  act  as  saleswoman. 
There  was  no  question  of  security  when 
witness  took  over  Cape  Town  district: 
on  the  contrary,  Mr.  Anderson  was  very 
anxious  for  her  to  do  so.  Witness  never 
had  a  letter  complaining  of  her  lack  of 
energy.  It  was  almost  impossible  to 
get  Iflidies  to  work  Viavi  in  Cape  Town. 
One  could  not  get  workers  made  to  order. 
Witness  denied  that  her  letters  to  de- 
fendant were  of  an  antagonistic  nature. 

[Buchanan.  A.C.J. :  And  is  that  the 
reason  you  didn't  send  more  mediicine?] 

Mr.  Close:  We  wanted  particulars  of 
accounts. 

Witness  (continuing)  said  she  wrote  to 
San  Francisco  every  week,  because  the 
company  there  was  interested  in  tlie 
company  out  here. 

Mr.  Close :  But  Mr.  Anderson  was  the 
agent  out  here,  and  as  long  as  he  paid 
them  it  was  quite  suflicient.  Tou  wrote 
to  San  Francisco  running  the  defendant 
down. 

[Buchanan,  A.C.J. :  Is  that  the  reason 
you  refused  to  supply  the  medicine. 
If  it  is  not  it  is  quite  irrelevant  to  the 
case.] 


"OAPB  TIMES"  LAW  REPORTS. 


763 


Examination  continued:  When  wit- 
ness found  that  defendant  objected  to 
her  writing  to  San  Francisco  she 
stopped  doing  so. 

buchanan,  A.C.J.,  said  he  could  not 
stop  the  crosii-exainmation,  but  counsel 
certainly  seemed  to  be  going  outside  the 
points  relevant  to  the  case.  If  these 
lotterft  that  were  being  read  constituted 
h  reason  fur  stopping  the  supply  of 
n*odicino  he  could  understand  cross-ex- 
amination on  them,  but  they  did  not. 

Mr.  Close  said  ho  regretted  his  lord- 
ship should  have  had  to  sav  that.  The 
position  taken  up  by  the  defendant  was 
that  he  would  nave  sent  the  medicine 
if  the  plaintiff  had  carried  out  her 
agreement  loyally,  but  he  contended 
that  she  had  not  done  so.  and  the  let- 
ters would  prove  his  contention. 

In  further  cross-examination,  witness 
said  she  ran  out  of  saleable  stock,  but 
she  had  other  stock  in  hand. 

By  the  Court:  Very  little  stock  had 
been  put  into  the  place  after  witnese 
took  It  over. 

Mr.  Gardiner  closed  his  case. 

The  defendant,  William  Thomas  ^n- 
d^rson,  in  his  evidence,  bore  out  the 
statements  made  in  his  plea.  After 
which  he  went  into  detail  as  to  the  dif- 
ferent stock  he  decided  not  to  order. 
ea  there  wa«  no  sale  for  it.  Some  of 
the  goods  he  did  order  were  attached 
by  the  Court,  and  were  at  present  in 
the  King's  Warehouse.  Witness  would 
have  been  able  to  su[>ply  the  goods  only 
for  that  reason.  Tonics  were  not  a  very 
essential  part  of  the  treatment.  The 
list  of  workers  submitted  by  the  plain- 
tiff comprised  a  lot  of  persons,  who 
were  not  workers,  and  a  good  many 
more  whom  she  said  she  taught  were 
working  for  the  company  before  the  ar- 
rival of  the  plaintiff  in  this  oountrv. 
Witness  objected  to  one  lady,  who  only 
gave  logons  in  French,  and  did  no 
work.  Witnes.s       first      refused      to 

supply  stock,  because  he  wanted 
to  receive  an  account  of  the  stock 
she  had,  and  after  that  he  refused,  be- 
cause she  did  not  forward  him  the 
money  which  she  told  him  she  was  hold- 
ing over.  Witness  was  quite  willing  to 
keep  the  contract  on  provided  the  plain- 
tiff consented  to  prove  that  she  was 
keeping  her  side.  The  action  of  the 
plamtiff  about  the  heading  of  the  note- 
paper  did  witnest)  considerable   harm. 

[Buchanan,  A.C.  J. :  You  asked  to 
have  "  Cape  Town  Branch  '*  put  on, 
and  that  wan  done.] 

Witness:  It  was  typewritten,  and  I 
wanted  it  printed,  because  one  could 
easily  be  typed  to  me  and  the  others 
could  go  out   wrthout  it. 

Mr.  Close :  Did  you  actually  find  let- 
ters that  were  sent  out  like  that. 

Mr.  Gardiner:  They  must  be  pro- 
duced. 

Witness  (continuing)  said  that  when 
he  engaged  plaintiff  he  had  his  own 
office,  out  after  a  abort  time  there  plain- 


tiff moved  into  another  office.  Witness 
did  not  agree  to  her  taking  an  office  on 
a  three  years'  lease. 

In  cross-examination,  witness  said  that 
out  of  his  Johannesburg  stock  he  had 
to  supplj  seven  or  eight  different  places. 
He  denied  that  complaints  were  receiv- 
ed from  various  places  with  regard  to 
the  supply  of  stoclc. 

I  put  it  to  you  that  you  received  com- 
plaints?— No. 

The  stock  you  would  sell  in  Johannes- 
burg would  pay  you  better t— No;  all 
branches  received  the  same  terms. 

You  could  always  tell  how  your  stock 
was  going  on?— Yes. 

Well,  I  put  it  to  you  that  you  did 
not   require  these  lists?— Yes;  I  did. 

Why  this  pressing  necessity  in  May? — 
I  wanted   a  return  of  the  stock. 

Witness  (continuing)  said  good  workers 
were  hard  to  get.  When  he  got  com- 
plaints from  Mrs.  Halvorsen  that  ladies 
were  ill  and  requiring  the  medicine,  he 
thought  he  was  justified  in  keeping  it 
back  until  he  got  the  information  he 
was  asking  from  the  plaintiff.  He  claim- 
ed £50(y  damages,  which  on  the  ba^is  of 
what  was  done  in  £ast  London  he  .cal- 
culated was  his  loss  through  Mrs.  Hal- 
vorsen  not  going  on. 

Buchanan,  A.C.J.,  remarked  that  in 
that  case  Mrs.  Halverson  could  also 
claim    £500   damai^es. 

James  Smith,  shipping  agent  in  Cape 
Town,  said  in  May  last  he  got  a  case  of 
Viavi  remedies  for  Mr.  Anderson,  and 
his  instrnuctions  were  to  hold  them 
foi-  Mrs.  Halvorsen  pending  instructions 
from  Johannesburg. 

Mr.  Close  closed  his  case,  and  counsel 
wore  heard  in  arerument  on  the  facts. 

Buchanan,  A.C.J.,  said  an  agreement 
was  entered  into  in  May  last  between 
the  plaintiff  and  defendant,  by  which  it 
was  agreed  that  the  nlainitiff  was  to 
manage  the  Cape  Town  branch  of  the 
defendant's  business,  and  was  to  hire 
and  train  workers  for  the  business,  and 
that  she  was  to  be  supplied  by  defen- 
dant with  the  patent  remedies  used  in 
the  business,  by  the  sale  of  which  she 
was  to  be  paid.  The  Cape  Town  branch 
had  been  opened  some  time  before  the 
plaintiff  took  it  over,  and  at  that  time 
the  business  was  a  small  one.  The 
plaintiff  began  work  in  January,  and 
worked  on  until  May,  at  which  time 
the  business  had  greatly  increased.  In 
April  the  defendant  refused  to  renew 
the  stock,  which  was  very  low,  and  as 
a  consequence  plaintiff  could  not  supply 
the  orders  received  by  her,  ajnd  was 
l)rcvented  from  earning  her  commission. 
As  she  was  paid  by  results  this  was  a 
matter  of  serious  importance  to  her,  and 
she  eventually  had  to  put  the  matter  in 
the  hands  of  her  attorneys.  Defendant 
in  the  eni^uing  correspondence  made 
complaint  of  want  of  loyaJty  and  the 
refusal  to  give  information  as  to  the 
branch  busineas.  But  at  most  there  was 
a  ctelay  owiD,g  to  illness,  not  a  refusal 


754 


<( 


CAPE  TIMES"   LAW  REPORTS. 


to  give  the  inforniatiiiii  nsked  for.  The 
pica  mentioned  another  ground  of  com- 
plaint, namely,  that  the  plaintiff  failed 
t<»  carry  out  her  contrnct  in  having 
failed  to  give  proper  financial  state- 
ments. As  a  fact,  she  rendered  regular 
statements,  and  it  was  only  in  the  la^t 
statement  that  she  mixed  up  the  stock 
on  hand  with  stock  ^old  on  credit  and 
not  yet  paid  for.  There  was  nothing  in 
all  this  to  justify  defendant  breaking 
his  contract.  His  Lordship  held  that 
di^fendant  had  broken  his  contract,  and 
that  the  plaintiff  was  entitled  to 
damacres.  Tno  ])laintiff  said  she  had 
£49  in  hand  which  Rh<^  had  not  remit- 
ted, but  held  it  pending  this  action, 
lliis  amount  woula  have  l>een  sent  to 
defendant  in  the  ordinary  courrc  had 
the  contract  gone  on.  'I*ho  defendant 
in  reconvention  claime^d  that  amount. 
Now,  the  <iue>tion  of  damages  was  one 
that  could  noft  bo  settled  on  a  matlie- 
matical  basis,  and  the  Court  h:id  to  look 
at  all  the  circumetancos,  and  take  into 
wmsideration  future  as  well  a.**  past 
losses.  As  a  juror  h<^  would  feel  ju^^ti- 
fied  in  awarding  her  £160.  and  from 
that  amount  would  be  deducted  the 
amount  claimed  in  re-convontion.  There 
would  bo  judgmwit  for  £100  and  costs. 

fPlaintifT's  Attorneys:  Van  Zyl  and 
Buissinne;  Dcf«Midant'a  Attorneys: 
Trinlgold,    Mclntyio    and    IM.SK»t.] 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 


UEINEKK  AND    ANOXnKR    V.  (         190^. 

LAKK.  i   Sept.  .')th. 

This  wa.s  an  appeal  from  a  decision 
of  the  Resident  Magistrate  of  Somerset 
Kast.  Mr.  Van  Zyl  wa.s  for  the  ap- 
pellants. 

Counsel  said  exception  was  taken  to 
thr;  summons  on  the  ground  that  the 
one  defendant  Maasdorp,  being  a 
surety,  it  would  ha  necessary  for  the 
principal  debtor  to  be  excuss^ed  before 
Maasdorp  could  be  sued.  The  Magis- 
trate decided  against  the  exception. 
The  defendant  Reineke  admitted  his  sig- 
nature to  the  note,  and  claimed  in 
reconvention  £4,  by  reason  of  wrongful 
detention  of  furniture  by  the  plaintiff. 
The  defendant  Maasdorp  denied  lia- 
bility, as  the  principal  debtor  had  not 
l)een   ex  cussed. 

The  Magistrate  held  that  Lake  was 
thw  bona-fido  owner  of  a  promissory  note 
for  £5,  and  Maasdorp.  if  he  had  not 
wished  to  be  personally  liable.  could 
have  added  the  words,  "  without  re- 
course to  me."  Counsel  contended  that 
Maasdorp's  exception  should  -have  been 
upheld,  as  Reineke  had  property  in  his 


house  at  that  time,  and  should  therefore 
hove  iKH'n  excussed.  The  respondent 
liad  locked  up  Roineke's  property,  and 
sought  to  excuse  himaclf  by  saying  that 
Reineke  had  given  his  consent. 

Hopley,  J.,  upheld  Maasdorp*8  appeal, 
with  costs,  in  both  Courts. 


IMMELMAN  AND  MULLER  V.  DU  PLKSSIfl. 

This  was  an  appeal  against  a  decision 
of  the  Resident  Magistrate,  Calvinia. 
Mr.  Burton  was  for  the  appellants.  It 
appeared  that  the  respondent,  who  was 
a:i  agent  of  the  London  and  Lancashire 
Insurance  C'o.,  had  ordered  certain 
goods  from  the  appellanta,  and  part  of 
tlie  goods  which  he  had  been  charged 
for  was  chargeable  to  the  account  of 
the  London  and  Lancashire  Insurance. 
Co. 

Mr.  Burton  contended  that  the  re- 
spondent had  ordered  the  goods,  and 
was  liable  to  the  appellants.  The  Ma- 
gistrate had  neglected  the  central  point 
that  the  contract  was  one  between  the 
respondent  and   the  appellants. 

Hoplev,  J. :  This  is  a  palbrv  case,  and 
unless  tliere  waa  eomething  behind  the 
matter,  which  does  not  appear  in  evi- 
dence, it  soems  to  me  the  case  ought 
never  to  have  come  even  into  the  Magis- 
trate's Court.  If  it  is  true  that  this 
■amount  is  due  on  behalf  of  a  wealthy 
comimny  like  the  London  and  Lanca- 
shire Insurance  Co.,  these  people  ou|^ht 
to  exi)e-rienoe  no  difficulty  m  irocovenng 
it  from  the  agent,  or  frt«n  the  companv 
themselves.  But  it  has  been  right- 
ly contended  on  appeal  that  the 
legal  point  that  was  before  the  Magis- 
trate was  one  as  to  with  whom  the  con- 
tract was  made  in  the  first  instance. 
It  may  very  well  be  known,  and  pro- 
bably is  known,  that  a  certain  man  is 
an  agent  for  a  company  when  he  goes 
to  a  small  business,  and  it  may  very 
well  have  been  known  in  this  town- 
Sutherland— that  the  respondent  (Du 
Ple«sis)  was  the  agent  for  the  London 
and  Lancashire  Co.  In  this  case  a  man 
goes  to  people  who  are  general  dealers, 
and  buys  some  articles,  which  he  places 
to  his  private  account,  and  sonie  articles 
which  ought  to  have  been  paid  for  by 
his  principals.  Now,  as  a  matter  ot 
fact  and  common  sense,  they  contracted 
with  the  agent  personally  for  every- 
thing he  gets,  and  they  leave  the  agent 
to  settle  with  the  principals.  That,  no 
doubt,  was  what  happened  in  the  pre- 
sent case,  and  that  is  what  MuUer,  one 
of  the  plaintiffs  in  this  ca«e.  swore  was 
the  course  of  business  in  this  particular 
case.  I  have  no  doubt  that  such  was 
the  course  of  business.  I  think  the 
Magistrate  ought  to  have  made  Du 
Plessis  responsible  for  the  amount,  and 
left  him  to  settle  with  his  principals. 
It  seems  to  me  tBat  the  Magistrate  was 
wrong  when,  even  if  he  held  a  guinea 


"CAPE  TIMES"   LAW  REPORTS. 


r55 


was  all  tbat  Du  Plessis  was  liable  for, 
lie  should  not  have  made  the  appcllanta 
nay  the  coeU  of  the  action.  Although 
l)u  Plessis  admitted  he  owed  a  guinea, 
he  never  tendered  it,  nob  even  at  the 
trial.  In  my  opinion,  the  Magistrate's 
judgment  should  be  reversed,  and  judg- 
ment entered  for  the  plaintiffs  for  the 
sum  prayed  in  the  Court  below,  with 
costs  in  both  Courts. 


BOSS  AND  CO.  V.  SMITH 


•{ 


190). 
Sept.  5th. 

Surety — laaolvency  of    principal 
— Costs  of  excussion. 


S.  had  guaranteed  certain  debts 
of  C,  to  the  amount  of  £30, 
Shortly  after  S.  had  given  hU 
guarantee^  C.  made  further 
purchases  from  the  same  d  aler 
to  the  amount  of  near'y  £5, 
A  few  days  aftei'  entering  into 
this  latter  transactivii^  C,  2)aid 
to  the  vendor  of  the  goods  some 
£7  10s,,  and  thereafter  her 
estate  was  sequestrated.  Some 
£2  costs  were  incurred  in 
excussing  her  for  the  principal 
debt.  In  the  Court  below  the 
Afagistrate  refused  to  give 
judgment  for  these  costs. 

Held  on  appeal,  (hat  a  surety 
is  liable  for  costs  of  excunsion. 


This  was  an  appeal  from  a  decision  of 
the  Resident  Magistirate  of  Wynberg, 
wherein  judgment  was  given  for  the 
plaintiffs  for  £12  ISs.,  with  costs.  The 
defendant  introduced  one  Mrs.  Con- 
nolly to  the  plaintiffs,  and  guar- 
aiitc><ed  payment  of  the  account  in 
the  event  of  non-payment  by  Mrs. 
Connolly  Provisional  judgment  was 
taken,  with  costs,  against  Mrs.  Con- 
nolly, whose  estate  had  been  sequestrat- 
ed. The  original  claim  was  for  £29  17s. 
for  a  stove  and  utensils  supplied  to 
Mrs.  Connolly,  but  to  bring  it  within 
the  jurisdiction  of  the  Court  the  amount 
wa«  reduced  to  £20.  The  Magistrate, 
in  his  reasons,  held  that  the  defendant 
did  guarantee  payment  for  the  stove 
£30,  and  utensUs  £4  198.  lid.  On  the 
account  £7  10s.  was  paid,  making  the 
amount  £27  9b.  lid.,  with  costs  of  the 
action  brought  against  the  principal 
debtor.  £2  7s.  Id.,  the  amount  stood  at 
£29  17s.  There  was  no  evidence  that 
the  defendant  was  liable  for  £4  19s. 
lid.  for  utensik  and  £2  78.  Id.,  the 
costs  against  the  principal  debtor.  Tak- 
ing those  amounts  from  the  amount 
claimed,  H  left  jud^ent  for  the  plain- 
tiffs for  £12  13s.,  with  costs.    The  plain- 

32 


tiffs  appealed  on  the  ground  that  they 
were  entitled  to  judgment  for  the  full 
amount  of  £20,  an  amount  for  >yhich 
the  Magistrate  could  have  given  judg- 
ment when  he  allowed  for  the  waiver  m 
the  first  instance. 

Mr.  P.  S.  T.  Jones  for  the  defendant ; 
Mr.  Burton  for  the  respondent. 

Counsel   having   been   heard  in   argu- 
ment on  the  facts. 

Hopley,  J. :     In  this  case  the  defend- 
ant was  sued    as   a  surety   to  one  Mrs. 
Connolly,    whom   he   introduced    to  the 
plaintiffs  as  being   a  person   worthy   of 
credit,    and  for   whom    he   promised    to 
bo    surety    in    the   matter    of    the   pur- 
chase of  a  stove  for  £30,  of  which  she 
was     to    pay    instalments    of    £7     lOs. 
Apparently       some       days       afterwards 
she      purchased     utensils     to     the     ex- 
tent of  £4  198.   lid.      A  few  days  after 
she  purchased    this   stove   she   paid   off 
the  nrst  instalment  of  £7  lOs..  so  that, 
with  the  utensils  in  the  case  there  would 
have  been  owing,  or  at  all  events  there 
would  have  been  an  amount  standing  in 
the  books  of  the  plaintiff  of  £22  lOs.,  for 
which  the  defendant  was  surety  to  the 
plaintiffs  in  case  of  the  failure  of  Mrs. 
Connolly.       As   a  matter  of   fact,  Mrs. 
Connolly  never  paid  anything  but     the 
first  instalment      She  became  insolvent, 
and  notice  was  given  to  the  surety  that 
she  would  be  excussed,  and  he  would  be 
held  liable  for  any  costs.     She  was  ex- 
cussed,  and   £2  7s.    Id.   were   the   costs 
incurred.     The  surety  thereupon  became 
liable  for  the  costs  of  the  excussion,   as 
well  as  for  the  debt  for  which   ho  was 
surety,  which  amounted  at  that  date  to 
£24    17s.    Id.       The   plaintiff      claimed 
from  the  defendant  in  the  Court  below 
the  sum  of  £20,  and  he  showed  by  his 
account   how   that  was  arrived   at.       It 
wa<i    arrived    at   by   taking    the  items    I 
have  already  enumerated,  amounting  to 
£24   17s.    Id.,    and  adding  to    thorn    £4 
19s.    lid.    for   the  utensils     which    Mrs. 
Connolly    had    bought.        That    brought 
the  whole  amount  up  to   £29  17s.,   and 
the  plaintiff  professed  to  waive  £9  178., 
so  as   to   bring   the   amount  within   the 
jurisdiction    of    the    Magistrate's    C'ourt. 
The   Magistrate   found   that  the   deftMid- 
ant  was  not  surety  for  the  utensils  for 
£4    198.    lid.,    and  he    therefore   struck 
that  amount  out.  and  he  also  found  that 
there  was   nothing  to   make   him   liable 
for  the  £2  7s.   Id.,   which  appeared   to 
have   been    the   oo9t8  incurred,    and       I 
think     it     is      quite     clear     that     they 
are  the  costs  of  the  excussion.    I  do  not 
feel    inclined   to  send    the  oase   back    to 
the     Magistrate's      Court  whereby  fur- 
ther expenses  would      be       incurred   to 
prove      that     that      amount     was     the 
costs    incurred.       The     Magistrate    sim- 
ply  overlooked    the  fact    that    a   surety 
was  liable  by  law   for  such  costs  when 
he  had  due  notice  that  they^were  flromi? 
to  be   incurred.    Taking   the  itpms   the 
plaintiff  presented,  it  would  appear  thatt 


756 


«< 


CAPS  TIMES"  LAW  BEP0BT8. 


his  aooount  would  Btand  at  £29  ITs., 
and  tf'hen  he  waived  £9  lis.  Now,  what 
is  the  effect  of  the  waiver,  and  what 
does  it  mean?  I  think  H  means  that 
the  plaintiff  says  in  effect  :^  *'  I  have  a 
claim  for  over  your  jurisdiction,  and  I 
show  the  various  items,  and  I  only  ask 
you  for  judgment  for  £20,  because  that 
18  all  you  can  give  me."  Looking  at  it 
in  that  way,  what  was  the  state  of 
affairs  as  it  should  have  presented  it- 
self to  the  Magistrate's  mand?  There 
were  the  amounts  fairly  due  to  the 
plaintiffs  by  the  surety  of  £24  17s.  Id. 
He  is  only  asked  of  that  amount  to  give 
judgment  for  £20,  and  he  takes  the 
whole  waiver  as  being  an  amount  of 
which  he  can  reduce  from  anything  he 
can  find  from  the  £20,  and  he  givee  the 
judgment  for  the  balance.  It  does  not 
seem  to  me  in  doing  so  he  did  full  jus- 
tice between  the  parties,  because  it  is 
perfectly  clear  that  the  whole  amount 
of  £20  was  properly  and  fairly  owing 
by  the  defendant  to  the  plaintiffs,  and 
that  the  waiver  was  merely  to  bring 
the  matter  within  his  jurisdiction.  In 
spite  of  the  waiver  when  he  found  there 
was  a  fdir  debt  of  £20  owing,  the  Magis- 
trate should  have  g^ven  judgment  for 
the  plaintiff  for  that  amount.  In  my 
opinion,  there  should  be  judgment  for 
the  sum  of  £20  for  the  plaintiff,  with 
costs. 

[Appellant's  Attorney:  A.  W.  Steer. 
Respondent's  Attorneys ;  Friedlander 
and  Du  Toit.] 


TORB  V.  ZIEHL. 

This  was  an  appeal  from  a  decision 
of  the  Resident  Magistrate  at  Cathoart, 
in  an  action  in  wnich  the  plaintiff 
(respondent)  claimed  from  the  appellant 
£15,  being  the  balance  on  an  exchange 
of  certain  carts.  On  6th  December, 
1904,  plaintiff  and  defendant  ex- 
changed carts  by  mutual  consent, 
the  defendant  agreeing  to  pay  £15, 
as  the  difference  m  vaJue.  The 
Magistrate  held  that  the  counter-claim 
of  the  defendant  was  not  a  bona  fide 
one.  and  counsel,  after  reading  the  re- 
cord, submitted  the  evidence  did  not 
justify  that  finding.  In  his  reasons, 
the  Magistrate  stated  that  the  plaintiff 
sued  the  defendant  for  £15,  in  terme  of 
an  agreement.  The  defendant,  how- 
ever, denied  the  debt,  on  the  ground 
of  mala  fides  on  the  part  of  the  plain- 
tiff, and  claimed  the  cancellation  of  the 
agreement.  He  put  in  a  claim  in 
reconvention  for  the  return  of  his  cart, 
or  its  value  (£30),  and  excepted  to  the 
jurisdiction  of  the  Court.  The  Court 
held  that  the  exception  could  not  be 
entertained  until  tne  defendant  sub- 
stantiated the  allegations,  and  the 
Court  further  held  that  the  counter 
claim  was  not  a  bona  fide  one.  The 
defendant  noted   an  appeal  on   the   ex- 


ception to  the  counter-claim  and  to  the 
jurisdiction  of  the  Court. 

Mr.  Upington  was  for  the  appellant, 
and  Mr.  Burton  was  for  the  respon- 
dent. 

Counsel  submitted  that  the  exception 
waa  properly  taken.  The  counter-claim, 
if  upheld,  would  have  the  effect  of  ex- 
tinguishing the  plaintiff's  claim. 

Mr.  Burton  contended  that  the  Magis- 
trate would  have  to  satisfy  himself 
about  the  bona  fides  of  the  defendant's 
counter-claim. 

Hoplev,  J. :  In  this  case  the  respond- 
ent sue^  the  appellant  for  the  sum  of 
£15,  which  he  alleged  to  be  due  to  him 
as  a  balance  from  certain  exchange  of 
carts.  It  would  appear  £rom  the  evi- 
dence that  the  respondent  did  give  a 
certain  Raleigh  cart  to  the  appellant, 
who  gave  him  in  return  an  old  cart  of 
his  own,  and  promised  him  in  addition, 
or  to  boot,  £15,  to  be  paid  at  a  future 
date.  Before  the  arrival  of  the  date 
when  the  cart  was  to  be  delivered,  ap- 
parently the  appellant  had  reason  to 
examine  more  cloeely  the  cart  which 
he  had  received  from  the  respondent, 
and  he  says  that  he  then  found  it  was 
totally  unfit  for  his  use,  and  not  in 
accordance  with  the  representation 
made  to  him  at  the  time  of  the  ex- 
change by  the  respondent,  and  that  be 
immediately  tried  to  rescind  the  ocm- 
tract  by  an  amicable  arrangement,  but 
the  respondent  refused  to  meet  him, 
and  held  him  to  his  bargain.  The  time 
for  the  payment  of  the  £15  passed, 
and  the  respondent  sued  in  the  Magis- 
trate's Court  the  appellant  for  the  sum 
of  £15.  Now,  it  seems  to  me  perfect- 
ly clear  that  each  cart  in  itself  was 
value  for  over  £20,  or  had  been  so 
treated  by  the  parties.  On  the  evi- 
dence in  the  Court  below,  the  plaintiff 
valued  his  own  cart  at  something  like 
£40,  and  the  defendant  at  something 
liko  £15  less.  Everything  the  Magis- 
trate had  to  decide  grew  out  of  the 
contract  of  exchange  between  the 
parties.  The  defendant  pleaded  that 
there  had  been  practically  fraudulent 
misrepresentations  to  him  ««  to  the  con- 
dition of  the  cart.  ^  Taking  the  trans- 
action as  a  whole,  it  seems  to  me  there 
were  matters  involved  which  the  Maffis- 
tratc  ought  not  to  have  tried  as  within 
his  jurisdiction.  When  the  defendant 
not  only  raised  the  issue  of  fraudulent 
misrepresentation,  but  a  claim  in  re- 
convention for  a  recission  of  the  con- 
tract or  the  payment  of  the  value  of 
his  cart  (£30),  it  was  beyond  the  Magis- 
trate's jurisdiction.  It  became  evident 
if  such  a  plea  was  a  bona  fide  one,  and 
the  counter-claim  was  a  bona  fide  one,  his 
jurisdiction  was  ousted.^  The  defendant 
produced,  not  only  his  own  evidence, 
but  some  strong  evidence,  which  might 
go  very  far  towards  establishing^  nis 
claim  of  misrepresentation.  It  is  cer- 
tainly  clear  that   tl?e   cart   was  |n     i^ 


''CAPE  TDiES*'  LAW  REPORTS. 


757 


disabled  oonditioD  shortly  after  the  sale. 
It  seems  to  me  that  the  Magistrate 
ought  to  have  oome  to  the  conclusion 
that  the  defendant  was  going  to  set 
up  this  as  a  bona  fid^  plea  and  a 
bona  fide  oounter-olaim,  and  it  was  not 
for  the  Magistrate  to  go  into  the 
merits  of  the  oase,  but  he  should  haye 
referred  it  to  a  higher  court  On  the 
evidence  given  by  the  defendant,  the 
Magistrate  ought  to  have  held  that  his 
jurisdiction  was  ousted.  Judgment 
will  be  for  the  appellant  on  the  ap- 
peal. The  judgment  in  the  Court  be- 
low will  be  ^nged  to  '*  exception  al- 
lowed, with  costs,"  the  appellant  to 
have  tbe  costs  of  appeal. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan  ] 


OAPB     TIM  Eg,     LTD 
FI8HBB. 


.   V.    I 


1905. 
Sept.    6th. 


This  was  an  action  brought  by  the 
Cape  Times  Ltd.  against  A.  M.  Fisher, 
broker,  of  Cape  Town,  to  recover  £86 
9b.,  money  due  for  advertisements. 

From  the  pleadings  it  appeared  that 
about  six  months  ago  the  plaintiffs 
signed  a  deed  of  composition  with  other 
crodltors,  hj  which  no  claim  would  be 
mad^  on  the  defendant,   so  long  as  he 

Eaid  some  money  within  six  months, 
owever  small,  but  that  was  on  condi- 
tion that  the  defendant  paid  the  legal 
expenses  incurred  in  a  previous  sum- 
mons, which  the  defendant  had  failed 
to  do.  The  defendant,  in  his  plea, 
denied  there  was  any  stipulation  be- 
fore the  deed  was  signed,  and  stated 
that  there  was  an  understanding  that 
the  expenses  were  to  go  on  to  the  prin- 
cipal sum.  In  accordance  with  the 
agreement  to  pay  something,  fis.  had 
been  tendered  to  the  plaintifiEs  yester- 
day.     The  debt  was  admitted. 

Mr.  Close  was  for  the  plaintiffs,  and 
Dr.  G<eer  was  for  the  defendants. 

[Buobanan,  A.  C.  J. :  The  onus  is  on 
you  to  set  up  the  defence.  Tou  admit 
the  debt?] 

Dr.  Greer:    Yes,  my  lord. 

Joseph  Fisher,  son  of  the  defeadant, 
who  acted  in  obtaining  signatures  on 
the  deed  of  composition,  stated  at  tnnc 
tjroe  his  father  was  very  ill.      His  fatlier 


obtained  the  first  signature,  and  wit- 
ness completed  the  list.  The  manag- 
ing director  of  the  "Cape  Times,"  Mr. 
F.  L,  St.  Leger,  agreed  to  sign  the 
deed  of  composition.  There  was  no 
one  present  at  the  time,  and  when  the 
deed  was  signed  a  gentleman  came  over 
and  asked  about  previous  costs,  and  wit- 
ness said  the  costs  would  be  added  on 
to  the  principal  sunt.  None  of  the 
other  creditors  raised  this  question 
about  costs.  His  father  was  too  ill  at 
the  time  to  trouble  him  with  any  busi- 
ness. 

Cross-examined  by  Mr.  Close:  The 
document  wsa  taken  round  after  a  sum- 
mons for  jB86  9s.  had  been  issued  by 
the  "  Cape  Times.'*  Mr.  St.  Leger  did 
not  say  that  he  would  not  sign  tM 
document  unless  the  costs  were  paid. 
There  was  nothing  said  about  the  costs 
until  the  document  was  signed. 

Adolph  Marks  Fisher,  defendant  m 
the  case,  stated  that  at  the  time  the 
document  was  being  signed,  he  was  in 
a  very  weak  state  of  health.  It  was 
only  afterwards  that  he  learned  that 
his  son  had  taken  round  the  docu- 
ment and  got  the  signatures.  He  was 
too  ill  to  reply  to  the  letter  sent  by 
Mr.  Knox  Baxter,  reminding  him  of 
the  agreement  with  the  "  Cape  Tmies, 
and  demanding  the  amount  due*  ?«  he 
bad  failed  to  pay  the  costs.  Witnew 
subsequently  wrote  asking  for  time,  and 
offering  to  pay  the  costs  if  any  such 
promise  had  been  made  on  hts  be- 
half Each  creditor  was  sent  os.  on 
Tuesday,  in  accordance  with  his  agfree- 
ment  to  pay  something  withm  six 
months,  however  small. 

Cross-examined  by  Mr.  Close :  Before 
he  sent  his  letter  in  reply  to  Mr.  Baxter, 
he  was  satisfied  that  his  son  gave  him 
the  same  version  then  as  was  given  in 
the  court.  _        ^ 

[BuchaMui,  A.  C.  J.:  Summons  was 
Uken  out  against  you  last  February?] 

Yes 

FBuchanan,  A.  C.  J. :  You  had  no  de- 
fence in  the  action  ?1-I  cannot  say. 

[Buchanan,  A.  C.  J. :  Why  did  you 
enter  an  appearance  then,  and  increase 
the  costs?}— I  did  not  enter  an  appear- 

[Buchanan,  A.  C.  J.:  Is  that  your 
signatiure?}— Yes.  ,,      ,     ,        j 

[Buchanan,  A.  C.  J. :  You  had  no  de- 
fence in  the  case— why  did  you  enter  an 
appesirance?}— I  did  not  know  anything 

aibout  it.  ^       .  J 

[Buchanan,  A.  C.  J.:  You  increased 
the  costs  by  this  conduct  of  yours,  which 
is  unnecessary.] 
Dr.  Greer  closed  his  case. 
F.  L.  St.  Leger,  manager  of  the  plain- 
tiff company,  stated  that  in  February 
last  summons  was  taken  out  against  the 
defendant,  and  witness  was  anxious  to 
get  the  money  in.  Hie  defendant's  son 
called  at  the  ofl&ce  when  Mr.  Wheeler 
was  present.      Mr.  Wheejey    said  sum- 


758 


M 


CAPB  TIMES"  LAW  RSPORTB. 


znons  had  been  issued,  and  iben  wit- 
ness asked  about  tbe  costs,  and  Fisher 
•aid  the  costs  would  be  i>aid.  Wit- 
ness would  not  have  signed  the  docu- 
ment otherwise.  Fisher  was  to  settle 
the  matter  of  costs  with  Sir.  Baxter. 

CiOBs-ezamined  bv  Dr.  Greer:  Wit- 
ness did  not  sign  tne  document  before 
there  was  any  queetioa  of  costs.  When 
Fisher  said  he  would  see  the  costs  paid 
witness  did  not  think  the  costs  were  to 
be  added  to  the  principal  amount. 

William  John  Aithur  Wheeler,  assist- 
ant general  manager  of  the  "Cape 
Times,"  said  he  took  ^roung  Fisher  in  to 
Mr.  St.  Leger,  and  witness  was  present 
during  the  whole  of  the  time  the  ar- 
rangement was  being  entered  into.  The 
questioti  of  costs  was  inentioned  be- 
fore the  document  was  signed.  Fisher 
went  oyi  to  get  the  money  for  the  costs, 
but  did  not  return. 

Cross-examined  by  Dr.  Greer:  Wit> 
ness  was  positive  that  he  was  present 
during  the  whole  of  the  conversation 
between    Fisher   and   Mr.    St.    Leger. 

Mr.  Close  dosed  his  case,  and  counsel, 
having  been  heard  in  argument  on  the 
facts. 

Buchanan,  A.  C.  J. :  The  plaintiff  sued 
the  defenoant  in  the  beginning  of 
February  last  for  £86  odd  due  to  the 
plaintiff  foir  advertising  charges,  and 
appearance  was  entered  to  the  sunmions, 
and  on  the  6th  March,  the  defendant's 
son  called  on  the  plaintiff,  and  got  him 
to  sign  the  document  produced,  which 
gave  time  for  the  payment  of  the  debt. 
The  managing  director  of  the  plaintiff 
company  says  it  was  signed  on  condi- 
tion that  the  legal  expenses  whioh  had 
already  been  incurred  should  be  paid 
forthwith.  This  had  never  been  done. 
The  case  quoted  bv  Dr.  Greer  naight 
possibly  have  applied  to  this  case  if  in 
consequenoe  of  tne  signature  the  other 
creditors  of  the  defendant  had  been  in- 
duced to  forego  any  portion  of  their 
claims.  But  it  was  simply  an  agree- 
ment to  wait,  and  not  to  take  proceed- 
ings for  six  months,  on  condition  some 
sum  of  money  was  paid  on  account 
Tlie  whole  of  the  liability  remains  ex- 
actly as  it  is.  The  document  did  not 
prejudice  the  other  creditors;  and  it  is 
a  coincidence  that  the  six  months  time 
allowed  expired  yesterday.  The  defend- 
ant has  sent  the  sum  of  5s.  to  the  plain- 
tiff, and  he  says^  having  paid  Ss.  within 
six  months  he  is  now  entitled  to  fur- 
ther time.  There  is  no  further  time 
stipulated  for.  This  agreement  to  give 
time  was,  I  think,  entered  into  between 
the  i^aintiff  and  the  defendant  on  the 
express  condition  that  the  legal  expenses 
incurred  should  be  i>aid.  The  defendant 
has  had  plenty  of  time  within  which  to 

Say  the  legal  expenses,  and  has  not 
one  so.  The  agreement  was  signed  on 
the  6th  March,  and  a  demand  was  made 
in  May  for  the  legal  expenses.  The 
defendant  then  asked  for  a  little  time, 


and  not  until  June  was  a  declaration 
filed,  I  can  see  no  legal  defence  to  the 
action  brought.  The  defendant  certainly 
seems  to  be  in  a  bad  financial  position, 
but  the  plaintiff  is  entitled  to  his  de- 
oree.  Judgment  will  be  given  for  tbe 
plaintiff,  with  costs. 


BAKKBB  V.  LUOOLPH. 


I        1905. 

I  Sept  eth. 

Magistrate's  jurisdiction — Coan- 
terclaim — Evidence  of  bona 
fides — Set  off. 

This  was  an  appeal  from  a  decision  of 
the  Resident  Magistrate,  of  Wynberg. 
The  appellant  brought  an  action  against 
respondent  for  trespass.  The  respondent 
let  a  house  and  certain  surrounding  land 
to  the  appellant.  During  tbe  term  of 
the  appellant*6  tenancy,  the  respondent 
placed  on  this  ground  without  the  ap- 
pellant's leave  or  licence  certain  build- 
ing material  for  the  purpose  of  erecting 
a  stoep,  whereupon  the  appellant 
brought  an  action  for  £20  damages  in 
the  Magistrate's  Court,  at  Wynberg. 
The  respondent  counter-claimed  a  sum 
of  £30,  made  up  of  two  items  of  £5 
odd,  being  a  liquidated  daim,  and  un- 
liquidated claims  for  certain  damages 
for  waste  of  water  and  damage  to  cer- 
tain trees.  The  Magistrate  set  off  one 
unliquidated  claim  against  the  other, 
and  dismissed  the  case.  The  appeal 
was  on  the  ground  that  the  finding  of 
the  Magistrate  thai  the  counter-claim 
was  a  bona  fide  one,  was  against  the 
evidence,  and  his  decision  setting  off  the 
one  unliquidated  claim  against  the  other 
was  contrary  to  law.  In  his  roasons,  the 
Magistrate  said  the  counter-claim  was  a 
mixed  one.  The  plaintiffs  claim  was  for 
damages,  and  he  was  of  opinion  that 
the  defendant's  claim  could  be  set  off. 
The  amount  claimed  by  the  defendant 
exceeded  the  jurisdiction  of  the  Court, 
and  the  Court  was  of  opinion  that  the 
counter-claim  was  a  bona  fide  one,  and 
dismissed  the  case. 

Mr.  Rowson  was  for  the  appellant, 
and  Mr.  Gardiner  was  for  the  respond- 
ent. 

Mr.  RowRon:  This  appeal  is  broughtr 
on  the  grounds  (1)  thai  the  evidence 
ought  not  to  have  convinced  the  Magis- 
trate that  the  counter  claim  was  a  bona- 
Sde  one.  This  is  not  a  question  of  the 
fagistrate's  £ndinfr  on  faots,  but  of 
the  Magistrate's  inferences  from  facts. 
The  respondent  candidly  admits  that  he 
would  never  have  claamed  damages  in 
re-convention  had  not  damages  been 
claimed  against  him.  Then  the  price  be 
sets  on  his  wood  and  water  is  excessive. 
The  appellant  had  a  right  to  take  wood 
for  his  own  use,  and  ibere  is  nothing 
to  show  that  he  exercised  this  right 
unrea/H>nably. 

(2)  Our  chief  ground  of  appeal  «s  that 
the  Magistrate's  judgment  was  bad  \n 


"CAt'B  TtMES"  LAW  tlEPOhTS. 


759 


law.  He  eet  off  one  unliquidafced  claim 
ag-amst  anoifier  unliquidated.  An  un- 
liquidatod  claim  cannot  be  set  off 
against  anything.  Van  der  Linden 
(1— 1&-4— 3,  Cod.  (4-32—14—1).  There 
are  many  decided  cases  which  show  that 
an  unliquidated  claim  cannot  be  set  off 
against  a  liquidated.  See  {f.a.)Humph- 
reyt  r.  Humphreys  (14  C.T.K.,  244), 
and  the  very  full  judgment  of  De  Vil- 
liera,  C.J.  If  an  unliquidated  ^  claim 
cannot  be  aei  off  againet  a  liquidated, 
a  fortioriy  it  cannot  be  set  off  against 
another  unliquidated.  On  this  point 
Vaet  (16—2—17)  is  explicit.  The  Magis- 
trate should  nave  heard  appellant's 
claim  for  damages,  liquidated  it  by  his 
judgment,  and  then  have  tried  the 
liquidated  part  of  the  counter-claim 
wnich  was  clearly  within  his  juris- 
diction. Jooste  V.  Fetter  (11  S.C.R.,  60). 
As  to  the  exception  regarding  future 
rights,  see  MH  v.  Borana  and  Others 
(13  C.T.R.,    1151). 

fMr.  Gardiner  eaid  he  was  not  pre- 
pared to  uphold  that  exception.] 

Counsel  wad  proceeding  to  argue  on 
the  second  exception  to  the  effect  that 
a  landlord  might  be  a  trespasser  on  his 
own  property,  and  cited  Wood/all  on 
Landlord  and  Tenant  (C.  16,  Sec.  3), 
when  he  was  stopped  by  the  Court. 

[Buchanan,  A.U.J. :  The  Magistrate 
gave  no  decision  on  these  exceptions, 
«o   we    need    iK>t   discuss  them.] 

Mr.  Gardiner:  All  the  decided  cases 
as  to  set-off  refer  to  cases  in  which  an 
unliquidated  claim  was  set-off  a^r&^nst 
one  which  was  liquidated.  That  is  not 
the  present  case,  for  here  both  the 
claims  were  unliquidated.  The  fact 
that  the  respondent  admitted  that  he 
migbt  not  have  claimed  damages  in  re- 
convention had  not  damages  first  been 
claimed  in  convention  is  no  evidence 
of  mala-iidcs.  A  bona-fide  claim,  is  a 
claim  wnich  the  person  who  makes  it 
honestly  believes  he  can  substantiate; 
no  matter  whether  he  intends  to  en- 
force it  or  not.  Then,  was  the  counter- 
claim really  unliciuidated  7  There  was  a 
charge  for  certain  trees  and  for  water. 
These  were  really  goods  sold  and  de- 
livered, and  if  the  Court  is  with  me  in 
thia  view,  I  submnt  that  the  Magis- 
trate's jurisdiction  was  ousied.  See 
Bradp  v.  Mirhiel  (3  Juta,  178) 

Without     calling     on     Mr.     Rowson, 

Buchanan,  A.  C.  J. :  The  claim  set  up 
by  the  defendant  was  divisible,  and  the 
Magistrate  has  not  dealt  with  the  ques- 
tion as  to  whether  a  landlord  could  be 
uiltjT  of  trespass  on  his  own  land.  He 
as  simply  satisfied  himself  that  the  de- 
fendant's claim  was  a  hona  fide  one,  but 
that  was  not  sufficients  Ho  should  have 
h<Mird  plaintiff's  claim,  and  the  defend- 
ant's claim  so  far  as  it  was  competent  to 
be  set  off.  The  appeal  would  be  al- 
lowed, an  dthe  case  ordered  to  be  re- 
heard by  the  Maistrate  to  whom  the 
question  of  oosts  in  both  courts  would 
be  remitted. 


I 


UODOSON  y.  VAN  8CHALKWTK. 

Costs — Tender. 

This  was  an  appeal  from  a  decision  of 
the  Resident  Maoristrate  of  Williston. 
The  plaintiff  claimed  £20  damages  for  a 
trespass  of  sheep.  The  defendant  had 
offered  £5.  previous  to  the  case,  although 
he  did  not  tender  it,  and  claimed  in  re- 
convention £10  for  malicious  prosecu- 
tion. 'Ilie  appeal  was  brought  on  the 
ground  that  a  legal  tender  had  not 
been  made,  and  that  ooets  should  not 
have  been  ^iven  to  the  defendant. 

The  Magistrate,  in  his  reasons,  held 
that  the  damage  was  fully  covered  by 
the  tender  of  £5.  It  was  contended  on 
behalf  of  the  plaintiff  that  no  legal 
tender  was  made.  In  his  opinion,  the 
tender  was  practically  a  legal  one,  and 
there  was  sufficient  evidence  to  show 
that  the  action  was  the  outcome  of  a 
previous  case.  He  held  that  the  pro- 
ceedings were  malicious,  and  gave  judg- 
ment for  the  defendant  for  £5,  with 
costs. 

Mr.  Close  for  appellant.  Mr.  Benja- 
min for  respondent. 

Buchanan,  A.  C.  J.,  said  if  the  de- 
fendant had  repeated  nis  tender  in  tho 
plea,  the  Magistrate  would  have  been 
justified  in  making  the  plaintiff  pay  adl 
costs  subsequent  to  the  date  of  the 
tender.  But  instead  of  repeating  the 
tender  the  defendant  claimed  in  recon- 
vention £20  damages,  alleged  to  have 
been  occasioned  by  the  plaintiff  mali* 
ciously  proceeding  with  the  case.  Tho 
plaintiff  brought  his  action  to  recover 
damages,  and  the  fact  that  a  tender  was 
made  justified  his  taking  legal  proceed- 
ings. The  mere  fact  that  he  refused  the 
tender  and  proceeded  to  trial  would  not 
justify  any  Court  in  saying  that  the 
civil  proceedings  were  malicious.  The 
Magistrate  decided  that  the  proceedings 
were  nuilicious,  and  gave  judgment  for 
£10,  but  this  judgment  of  the  Magis- 
trate could  not  possibly  be  sustained. 
The  appeal  must  be  allowed,  with 
costs.  Judgment  in  the  Court  below 
will  be  entered  for  tlie  plaintiff  on  tho 
claim  in  convention  for  £5,  and  in  tho 
claim  in  reconvention  for  the  defendant 
with  costs. 


8TDPABT  V.  CROSS. 

Mr.  Benjamin  was  for  the  appellant, 
and  Mr.  Gardiner  was  for  the  respond- 
ent. The  appeal  was  from  a  judgment 
of  the  Acting  Resident  Magistrate  of 
Somerset  West,  by  which  the  defendant 
was  ordered  to  pay  £10  and  costs  for 
the  removal  of  wood  and  material. 

Coun-sel  having  been  heard  in  argu- 
ment, 

His  Lordship,  in  giving  judgment, 
said:  The  plaintiff  in  this  case  bought 
a  farm,  and  on  this  farm  there  was  a 
■table  at  the  time  of  the  tale.      Mrs. 


tco 


*f 


CAt'B  Tbtes'*  LAW  iLEMiiA. 


Kruger  lived  on  the  farm,  and  he  had 
profeMed  an  interest  in  the  farm,  and 
was  allowed  to  remain  for  six  months. 
The  defendant,  who  had  no  right  on 
the  farm,  had  gone  to  lire  there  three 
years  before  with  one  Joubert,  who 
was  the  lessee  of  the  farm.  He  had 
lived  with  Mrs.  Kruger  apparently,  and 
while  so  living  with  her  he  built  this 
stable.  Uavmg  built  the  stable,  he 
removed  the  roof  before  he  left  the 
farm.  He  certainly  was  not  entitled  to 
be  put  in  any  better  position  than  a 
mala  fide  possessor.  One  of  the  prin- 
ciples in  the  case  of  De  Beert  and  the 
London  and  S.A.  EscpUtration  Com^pany 
(10  Juta  350)  is  that  a  mala 
fide  possessor,  who  has  affixed 
materials  to  the  land,  and  before 
demand  by  the  owner,  has  dtsannexed 
and  removed  them,  is  not  deemed  to 
have  parted  with  his  ownership  in  the 
materials.  That  was  a  very  well-consider- 
ed judgment,  and  must  be  deemed  as 
an  exposition  of  our  law  on  the  sub- 
ject. The  defendant,  Stupart,  remov- 
ed these  materials,  which  he  had  placed 
on  the  land,  and  having  removed  the 
materials,  I  think  the  rules  laid  down 
in  the  De  Beers  case  must  apply.  It 
is  with  some  hesitation  I  allow  the  ap- 
peal, with  costs,  and  judgment,  with 
absolution  from  the  instance  in  the 
Court  below,  with  costs. 


SECOND    DIVISION 


[Before  the  Hon.  Mr.  Jastioe  Hopley.] 


■STATE     BTEEN8HA     V.      f        1905, 

STEEN8MA.  \  Sept.  «th. 

This  was  an  action  brought  by  the 
trustee  in  the  insolvent  estate  of  W. 
J.  Steensma,  jun.,  against  W.  J. 
Steenama,  sen.,  insolvent's  father,  for 
an  order  for  the  cancellation  of  a  cer- 
tain deed  of  transfer  of  a  certain  piece 
of  propertv,  situated  at  Maitland, 
passed  by  the  son  in  favour  of  the 
father. 

The  declaration  set  forth  that  the 
plaintiff  was  duly  appointed  trustee  in 
the  insolvent  estate  of  W.  J.  Steensma, 
jun.,  and  the  defendant  was  the  insol- 
vent's father,  residing  at  Maitland.  On 
December  12,  1904,  the  insolvent's 
estate  was  compulsorily  sequestrated. 
On  November  16,  1903,  W.  J.  Steensma, 
jun.,  obtained  transfer  of  a  certain 
piece  of  land,  situated  at  Maitland ; 
and  on  the  same  day  a  mortgage  bond 
was  passed  on  the  propjerty  by  the  in- 
solvent in  favour  of  his  father,  W.  J. 
Steensma,  sen.  On  October  21.  1904, 
transfer  of  the  land  in  Question  was 
passed  by  the  son  to  the  father,  under 
cover  of  an  alleged  purchase  and  sale, 


I 


the  purohaae  price  being  £2,000,  of 
which  £1,200  was  covered  by  the  bond, 
and  £800  paid,  it  was  alleged,  in  cash. 
In  December  of  the  same  year  the 
estate  of  W.  J.  Steensma,  jun.,  was 
sequestrated;  and  the  trustee  alleged 
that  no  valuable  consideration  wa«  giv- 
en by  the  father,  and  that  transfer  was 
made  when  the  liabiliUea  in  the  estate 
exceeded  the  assets;  or,  alternatively, 
that  the  transaction  was  not  bona 
fde,  and  was  carried  out  with  the  ob- 
ject of  defrauding  the  creditors  in  the 
estate.  The  detondant.  in  reply,  said 
that  the  vale  was  bona  fide, 

[Hopley.  J.:  The  whole  point  is 
whether  there  was  a  cash  balance?] 

Mr.  Burton :  Yes ;  and  whether,  if  a 
cash  balance  was  paid,  the  transaction 
was  bona  fide. 

Mr.  Burton  (with  him  Mr.  Van  Zyl) 
appeared  for  the  plaintiff;  and  Mr. 
Upington  (with  him  Mr.  D.  Buchanan) 
was  for  the  defendant. 

G'other  Mann  stated  thai  he  was  the 
plaintiff  in  the  present  action  as  the 
sole  trustee  in  the  insolve  it  estate  of 
W.  J.  Steensma,  jun.  Upon  the  con- 
firmation of  witness's  appointment,  he 
called  for  the  books  and  papers  in  the 
estate.  After  some  trouble,^  tiie  books 
were  handed  over;  and  witness  now 
produced  certain  three  ledgers.  One 
appeared  to  refer  to  a  shop  business, 
which  was  carried  on  for  about  18 
months,  stopping  about  December,  1903. 
Another  lea^r— it  was  journal  and 
ledger  combined — referred  to  the  same 
business.  In  December,  1905.  the  whole 
stock  of  the  shop  was  disposed  of  to 
Friedman.  The  third  book  referred  to 
a  forage  business.  In  one  of  the  books 
there  was  an  index  reference  to  the  in- 
solvent's private  transaotiona;  but  the 
pages  210  to  215  were  tom^  out  of  the 
book.  Page  213,  one  of  those  torn  oiit, 
was  indicated  in  the  book  as  referring 
to  insolvent's  private  transactions. 
Otherwise,  there  wss  no  reference  Co  the 
insolvent's  private  transsctions.  ,  There 
was  considerable  difficulty  in  getting  in- 
formation from  the  insolvent :  and  wit- 
ness prosecuted  him ;  and  eventually 
tho  insolvent  was  sentenced ,  ,  to  two 
months'  imprisonment,  for  failing  to  at- 
tend a  meeting  of  creditors.  From 
June.  1904.  the  insolvent  did  not  keep 
any  banking  account.  Witiie^  had  pre- 
pared a  statement  of  the  insolvent's 
position  on  September  30,  1904:  He  set 
down  the  liabilities  as  follows:  Unse- 
cured liabilities,  £628  2b.  2d. ;  bonds. 
£5,250.  The  sssets  consisted  entirely  of 
tni movable  property,  which  fitness  took 
at  the  municipal  valuation.  The  state- 
ment showed  a  deficiency  of  £1,828.  At 
a  matter  of  fact,  the  total  amount 
realised  bv  the  sale  of  the  properties 
was  leis  than  the  total  municipal  valu- 
ation. Witness  produced  the  proofs  of 
debts  on  the  estate.  The  aesets  put  in 
the  statement  did  not  include  the  pro- 


••CAtB  TtMfiS"  LAW  REPOfetS. 


761 


eirty  now  in  question,  Steensdale, 
aitland.  Had  Steensdale  been  taken 
in,  it  would  have  made  a  difference  of 
about  £300  in  favour  of  the  insolvent; 
the  deficiency  would  have  been  brought 
dcwn  to  about  £1,528.  The  estate  ap- 
peared to  Jiave  been  in  an  insolvent  posi- 
tion for  a  long  time — even  at  the  time 
at  which  the  first  bond  was  passed. 

Croea-examined  by  Mr.  Upington : 
The  only  concurrent  liabilities  proved 
amounted  to  £326  2s.  lid.  The  first 
bond  was  pac^sed  in  1903  for  £4,500; 
two  others  were  passed,  one  in  March, 
1904,  and  the  other  in  April  of  the  same 
year.  Witness  considered  that  the 
municipal  valuation  of  the  properties 
in  the  estate  was  a  fair  one.  The  other 
entnea  in  the  book  out  of  which  the 
two  pages  were  torn  referred  to  trans- 
actions in  1898  and  1899.  There  had 
been  a  fraud  with  regard  to  the  raising 
of  a  loan  on  an  adjacent  property.  Wit- 
ness had  not  prosecuted  the  insolvent 
for  ihat.  The  loan  purported  to  be  on 
Steensdale,  wheroaa  it  was  put  on  the 
plot  of  land.  You  were  deluded  into  the 
belief  that  the  property  valued  at 
£1,500  was  the  adjacent  plot.  How 
can  vou  explain  that?  Tne  insolvent 
will  be  able  to  do  that. 

Witness  (vontinuing)  said  that  in  Sep- 
tember last  none  of  the  properties  would 
have  realised  the  municipal  valuation. 
The  bond  for  £500  on  Steensdale  was 
passed  in  March,  1904.  Witneaa  was 
not  aware  then  that  there  was  a  bond 
on  it  for  £1,200.  The  loan  was  granted 
subject  to  the  land  being  free. 

You  never  looked  up  the  title  deeds? 
That  would  have  been  looked  into  when 
the  loan  was  pa^^sed. 

There  was  no  record  of  land  transac- 
tions in  the  insolvent's  books. 

Johannes  £.  Neethling,  auotioneer, 
and  partner  in  Hofmeyr  and  Son,  stated 
he  had  a  good  deal  to  do  with  landed 
property.  He  knew  the  property  of  the 
insolvent,  Steensma.  Witness  was  en- 
gaged to  sell  the  place.  He  valued  the 
propertv  at  the  market  value  existing  in 
September  last  at  £2,500.  There  were 
tenements  and  a  shop,  and  witness 
valued  them  at  about  £1,400.  The  in- 
Bolvent  had  been  owing  him  £37  since 
February,  1903,  over  the  sale  of  two 
horses. 

John  Mellville  Marquard,  bookkeeper 
for  Marquard  and  Sons,  said  that  since 
the  end  of  1903  the  insolvent  had  owed 
his  firm  £290  36.  for  goods  supplied. 

Pieter  Steyn,  farmer,  Malmesbury, 
said  Steensma,  jun.,  had  been  owing 
him  £53  for  hay  for  more  than  a  year. 

Ernest  John  Richard  Jani^on,  plumber, 
Zonnebloem,  said  a  sum  of  £40  had 
been  owing  him  by  the  insolvent  since 
August  of  last  year.  When  he  saw  the 
old  man  the  latter  told  him  that  he  had 
lent  £2,000  on  the  property,  and  was 
going  to  olaim  it. 

Hubert  Corder,  clerk  in  the  R.M.'s 
Court,   Cape   Town,   produced   extracts 


from  judgmento  in  thai  oo^rt  against 
Steensma,  jun.,  for  £26  17s.  3a.  on 
September  23,  1904;  for  £60  2s.  on  Sep- 
tember 27,  1904;  decree  of  civil  impri- 
sonment for  £20  3s.  6d.,  in  September, 
1904;  and  £52  on  October  21,  1904. 

William  Muller  clerk  in  the  Deeds 
Office,  produced  the  transfer  of  the  pro- 
perty, dated  October  21,  1904. 

Mr.  Burton  closed  his  casew 

Anthony  van  Ryneveld,  of  Dempers 
and  Van  Rynveld  attorney,  said  the  de- 
fendant was  a  client  of  his  firm,  and  in 
1903  the  defendant  had  £1,100  on  de- 
posit. Later  on  defendant  obtained  £300 
from  another  client,  Mr.  Le  Roux,  about 
February,  1904,  and  the  bond  for 
£1,200  was  passed  in  November,  1903. 
The  father  and  the  son  came  on  the 
occasions  when  the  instalments  on  the 
£300  were  paid,  and  went  away  together 
with  the  cheques.  The  transfer  from 
Steensma,  jun.,  to  Steensma,  son.,  was 
proposed  by  hjs  firm,  and  the  same 
day  transfer  was  passed  a  mortgage  was 
raised  for  £850;  of  that,  £300  was 
utilised  in  paying  Lo  Roux,  and  the  bal- 
ance was  paid  out  according  to  the 
instructions  of  Steensma,  jun. 

William  Jan  Steensma,  sen.,  father  of 
the  insolvent  stated  that  in  May,  1904, 
he  advanced  the  insolvent  £200  for  the 
purpose  of  erecting  a  building  on  the 
property  in  question,  for  which  amount 
he  gave  a  promissory  note,  falling  due 
on  August  28.  He  also  advanced  him 
£1,200,  for  which  a  bond  was  passed  on 
the  property  on  November  16,  1903,  and 
went  off  as  part  payment  of  the  pur- 
chase amount  of  the  property.  In  Au- 
gust, 1904,  witness  purchased  the  pro- 
perty for  £2,000,  £1.200  of  which  was 
deducted  to  pay  off  the  bond.  For  the 
balance  he  raised  a  loan  from  Messrs. 
Dempers  and  Van  Rvneveld,  for  which 
he  passed  a  bond  on  October  21,  1904,  si- 
multaneously with  the  passing  of  the 
transfer.  £318  was  deducted  by  Messrs. 
Dempers  and  Van  Ryneveld,  being 
amount  due  by  the  insolvent  to 
that  firm.  Witness  paid  £290 
due  to  MessK.  Marquard  and 
Co  on  a  promissory  note.  When  wit- 
ness paid  these  amounts,  and  purchased 
the  property  he  believed  his  son  was 
quite    solvent. 

Cro8s-examined  by  Mr.  Burton :  Wit- 
ness did  not  have  to  claim  anything 
against  the  estate.  Witness  did  not 
know  of  any  judgments  being  obtained 
against  the  insolvent  prior  to  September. 
The  insolvent  did  not  apply  to  witness 
for  the  loan  of  money  to  meet  certain 
judgments  obtained  against  him  in  May. 

Do  you  read  the  papers? — Yes;  I 
read  the   "News"    and  "Ons   Land." 

[Hopley,  J.:  Do  you  read  the 
"  Times  *^?}— I   do   occasionally. 

[HopHey,  J. :  Mr.  Burton  wants  to 
know  if  you  read  the  proceedings  at  the 
Magistrate's  Court.] 


76: 


*'CAPE  TIMES"  IaW  tLEPOkr^ 


Mr.  Upington:  Cases  of  this  Bort  are 
not  reported. 

Mr.  Burton :  There  is  a  gazette  pub- 
lished for  the  protection  of  merchants, 
which  contains  them. 

[Hoi>lev,  J. :  Do  you  read  that  ga- 
x(»tt<'?}  -1  did  when  I  was  in  business, 
but  1  don*t  now. 

Witness  (continuing)  denied  that  he 
told  Johnson  that  he  had  lent  his  pon 
£2,000  on  the  projjerty.  He  also  de- 
nied having  told  Johnston  that  he  was 
sorry  for  him,  as  ho  was  the  biggest 
creditor. 

Witness  remembered  Steyn  telling  him 
that  a  cheijue  given  by  his  son  was  not 
Honoured  at  the  bank.  It  was  in  Au- 
gui't  that  witness  agreed  to  purchase  the 
property  from  his  son. 

Mr.  llpington  closed  his  case,  and 
counsel  were  hoard  in  argument  on  the 
fact«. 

Hoploy,  J.,  said  the  plaintiff  in  this 
case  claimed  that  a  certain  transfer  of 
a  cx>rtain  property  at  Maitland.  made 
on  or  about  the  31st  of  October,  1904, 
should  be  set  aside  under  the  terms  of 
the  83rd  section  of  the  Insolvent  Ordin- 
ance, or  otherwise  by  virtue  of  the  com- 
mon law.  as  being  an  alien-ation  in 
fraud  of  creditors.  The  allegations 
made  in  the  declaration  were  very 
serious,  and  when  the  aid  of  the  83rd 
section  w»is  invoked,  the  onus  on  the 
I)laintifT  is  very  strong  in  order  that 
the  relief  he  sought  miglit  be  granted. 
It  had  to  be  proved  that  the  assets  at 
the  time  of  the  alienation  were  less  than 
the  liabilities,  and  that  the  contract  was 
not  a  bona  fide  one.  Then  only  could 
the  prayer  be  granted.  The  circum- 
stances of  the  present  case  seemed  to 
show,  that  the  insolvent  was  carrying  on 
business,  and  must  have  been  able  to 
get  plenty  of  credit.  He  owned  consider- 
able immovable  property,  on  which  he 
appeared  to  have  got  big  loans.  Pos- 
sibly on  account  of  the  depression  that 
had  recentlv  taken  place,  the  insolvent 
seemed  to  nave  got  into  financial  diffi- 
culties. In  December,  1903,  he  sold  a 
business,  but  what  the  nature  of  his  em- 
ployment in  1904  was,  was  not  known. 
During  last  year  judgments  were  obtain- 
ed against  him,  and  it  was  proved  that 
he  was  in  monetary  difficulties,  and  that 
the  defendant  must  have  known  of  it. 
One  reason  given  was  because  the 
insolvent  was  the  defendant's  son.  One 
fact  was  that  a  cheque  of  tlie  son's  was 
dishonoured  in  the  July,  and  another 
fact  was  that  the  father  went  security 
for  tlie  son  to  Messrs.  Marquard  for  the 
sum  of  £290.  It  was  apparent  that  at 
this  time  the  father  intended  purchasing 
one  of  the  properties.  These  isolated 
circumstances  did  not  noc«»ssarily  bring 
to  the  attention  of  the  father  that  the 
son  was  in  financial  difTiriilties,  as  he 
was  well  known  to  have  other  valuable 
properties,  on  one  of  which  there  was  a 
bond  of  £4,500.     Not  a  word  had  been 


said  to  show  that  the  defendant  knew 
that  the  value  of  the  property  had  dwin- 
dled BO  low.  The  father  might  very 
well  have  thought  that  his  son  would 
pull  tlirough  all  right,  and  that  be  was 
only  temporarily  embarrassed.  His  whole 
evidence  tended  to  show  that  be  was 
anxious  to  help  bis  son  but  the 
evidence  did  not  show  that  the  son 
confided  in  his  father,  which  would  be 
a  thing  ,that  he  would  not  be  likely  to 
do,  as  it  might  tend  to  close  up  the 
fountain  from  which  he  was  obtaining 
financial  relief.  It  was  evident  that  about 
September  1  the  sale  to  the  defendant 
was  under  consideration,  as  a  power  of 
attorney  was  made  by  him  regarding  it 
All  the  documents  tended  to  show  that 
the  sale  must  have  taken  place  in  Sep- 
tember. All  that  made  it  impossible  to 
get  transfer  before  October  23.  In 
iSepteniber  there  was  no  know- 
ledge on  the  part  of  the  de- 
fendant of  the  dneolvency  of  ihe 
eon.  It  seemed  to  the  Court  that  there 
had  been  a  disastrous  sale  of  a  portion  of 
this  property,  when  the  bondholder  was 
the  only  biddier,  and  got  the  property  for 
the  amount  of  his  bond.  The  amount 
of  £800  had  actually  heen  paid  by  the  de- 
fendant for  the  one  property  to  the 
insolvent,  in  addition  to  the  bond,  and 
the  Court  believed  that  it  was  a  bwa 
fde  transaction  of  the  fatlier  to  assist 
nis  son  in  his  tem|X>rary  embarrassment. 
If  this  was  a  mnUi-fide  transaction,  as 
was  suggested,  it  was  most  peculiar 
that  in  every  step  of  this  transaction 
the  defendant  should  have  had  tlie  ad- 
vice of  an  attorney  of  the  CV)urt.  It 
seemed  to  the  Court  that  the  trans- 
actions were  perfectly  bona  fide^  and 
that  the  plaintiff  must  fail  in  his  action 
as  far  as  the  83rd  section  of  the  Insol- 
vent Ordinance  was  concerned,  and 
judgment  would  be  for  the  defendant 
with  cofltB. 

[Plaintiff's     Attorneys:       Sauer     and 
Standen.  Defendant's  Attorneys: 

Dempcrs  and  Van  Ryneveld.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the   Actinfr  Chief  Justice,  the 
Hon.  Sir  John  Buchanan. 1 


VAN     RtERCK     AND    CRAW- f         !*>>.'». 
FORD  V.  STABLKfOKD.         {  Sept.  7th. 

lliis  was  an  appeal  against  a  deci- 
sion of  the  Resident  Magistrate  of  Wyn- 
berg,  in  a  case  in  which  Van  Blerck  and 


'•cAt>fi  TIMES"  tkir  kE^okTS. 


763 


Crawford,  of  Cape  Town,  sued  William 
Stableford  for  the  recovery  of  £16.  for 
goods  alleged  to  have  been  sold  ana  de- 
livered. 

The  Magistrate  gave  judgment  for  the 
appellants  for  £5  3s.  6d.  This  sum  wa« 
arrived  at  by  taking  from  the  amount 
claimed  the  charges  for  certain  goods  in 
dispute.  The  appeal  was  brought  on 
the  grounds  that  the  evidence  did  not 
support  the  decision  of  the  Magistrate, 
and  that  judgment  should  have  been 
for  the  plaintiffs  for  the  full  amount 
claimed. 

Mr.-  Alexander  waa  for  the  ap 
pllants,  the  plaintiffs  in  the  Court  be- 
low ;  the  respondent  did  not  enter  an 
apoearance. 

Mr.  Alexander  was  heard  in  argu- 
ment on  the  facts. 

Buchanan,  A.C.J. ,  said  that  there  was 
a  direct  conflict  of  evidence  in  this  ca^e. 
and  the  Magistrate  diMllowod  some 
portions  of  the  claim,  and  allowed  other 
>x>rti<>ns.  It  all  diepcnded  on  the 
credibility  of  the  witnesses;  and 
the  Court  could  not  aay  that 
the  Magistrate  was  so  utterly  wrong 
in  his  judgment  aa  to  justify  it  in 
altering  his  decision.  It  was  not  pos- 
sible for  the  Court,  in  a  case  de[>cnd- 
ing  .solely  on  the  credibility  of  wit- 
nesses, without  having  the  witnesses  be- 
fore it,  to  set  aside  the  finding  of  the 
Magistrate,  who  had  had  the  witnesses 
before  him.  The  appeal  would  be  dis- 
missed, with  costs. 


DE    VILLIKKS    V.    GBONEWALD    AND 
▲NOTHKB. 

Thii)  was  an  appeal  from  a  decision 
of  the  Resident  Magistrate  of  Murrays- 
burg,  in  a  case  in  which  the  plaintiff, 
the  appellant  on  appeal,  sued  the  de- 
fendants, the  respondents  on  appeal,  on 
a  promissory  note  for  £40.  Dr.  Gre«r 
appeared  for  the  appellant,  and  Mr. 
Benjamin    for  the    respondents. 

Dr.  Greer  said  thait  in  the  Court 
below  otie  of  the  defendants,  Doornik, 
confessed  judgment,  and  the  Magis- 
trate refused  to  give  judgment  against 
tlie    other,    Groeneveldt.  The       one 

against  whom  judgment  waa  given  was 
worthless,  and  the  appellant  now 
sought  to  obtain  judgment  against 
the  partnership.  The  plea  was  a  de- 
nial of  signature,  ana  stated  that 
Doornik  had  no  right  to  mgn 
for  the  partnership,  in  ^  term«  of 
the  deed  for  partnership  between 
the  defendants,  and  th»t  he  had 
no  right  to  sign  a  promissorjr  note  on 
the  partnership  for  his  private  ro- 
<iuirements.  The  appellant  set  up  the 
rase  that  the  money  was  r«»<|uired  for 
the  nil.  poses  of  the  partnership,  and 
not  for  Doornik's  private  require- 
ments. 

Buchanan,  A.C.J. ,  said  the  defen- 
dants   Groenewald    and    Doornik    were 


partners  under  a  written  deed  of 
partnership,  and  by  the  deed  Groene- 
wald had  charge  of  the  bookkeeping 
and  the  management  of  the  acoounts, 
and  the  cheques  were  to  be  signed  by 
Groenewald.  Doornik,  at  the  express 
direction  of  his  partners,  bought  the 
pair  of  mules.  Under  ordinary  circum- 
stances, one  partner  could  bind  the 
other.  But  in  this  case  there  was  the 
express  authorization  to  pledge  iho 
credit  of  the  partnership,  and  the  pro- 
perty bought  went  into  the  partner- 
ship aa«ets,  and  were  now  in  the  actual 
possession  of  Groenewald,  the  objecting 
partner,  who  aJao  when  «»pokefi  to  by 
the  appellant,  acknowledged  hie  lia- 
bility. Under  these  circumstances  he 
thought  the  Magistrate  erred  in  keep- 
ing to  the  wording  of  the  deed  of  part- 
nership between  Doornik  and  Groene- 
wald. when  in  this  tran»action  it  had 
been  departed  from  by  the  parties 
thereto.  The  appeal  would  be  allowod, 
with  coBts,  and  judgment  entered  for  the 
appellant  in  the  Court  below,  with  costs. 


SCHWARTZ  V.  LOUW. 

Mr.  Burton  was  for  the  appellaut, 
and  Mr.  Benjamin  was  for  the  respon- 
dent. The  appeal  was  from  a  deci 
sion  of  the  Resident  Magistrate  of  Wei 
lington,  in  a  claim  by  the  plaintiff 
against  the  defendant  for  the  delivery 
ot  a  heifer,  the  property  of  the  plain- 
tiff, or  its  value  (£15).  The  Magis- 
trate upheld  an  exception  that  the 
name  of  the  plaintin's  ^  attorney  was 
not     disclosed,  and  dismissed  the  case. 

Counsel  for  the  respondent  having 
been  heard  in  argument, 

Buchanan,  A.C.J.,  said  the  eummoric^ 
was  duly  eigned  by  the  clerk  of  the 
Court,  and  was  duly  served  on  the  de- 
fendant. ,The  Magistrate's  Court  Act 
said  nothing  about  the  summons  being 
al«o  signed  oy  an  attorney.  The  excep- 
tion ought  never  to  have  been  allowed. 
The  appeal  would  be  allowed,  with 
costs,  and  the  exception  over-ruled,  and 
the  case  remitted  to  the  Magistrate  to 
be  tried  on  ita  merits. 


DU  TOIT  V.  LILIENFBLD  BROS, 

Mr.  J.  E.  R.  de  Villiers  was  for  the 
appellaint,  and  Mr.  Burton  was  for  the 
reepondents.  The  appeal  wa^  from  a 
decision  of  the  Resident  Magistrate  of 
Hope  Town,  in  which  the  plaintiff 
claimed  £20  for  goods  sold  and  de- 
livere<l,  tlie  transaction  lieing  in  respect 
of  two  guns,  which  tlie  defendant  con- 
tended wei-e  not  in  order.  The  Magis- 
trate granted  absohitiom  from  the  in- 
stance, asrainflt  which  the  plaintiff  ap- 
pealed. 

Buchanan.  A.C.J.,  dismissed  the 
appeal,   with  costa 


764 


"CAPE  TthiEB"  IAW  EE^Ottt^ 


DU  PBEEZ  y.  BRINK. 

This  was  an  appeal  from  the 
Resident  Magistrate's  Court  of  Wel- 
lington, in  which  the  plaintiff  sued 
for  £185.  less  £7  paid  on  account,  be- 
ing the  balance  due  for  goods  sold  and 
delivered.  The  judgment  of  the  Magis- 
trate was  absolution  from  the  in- 
stance, with  no  order  as  to  oosts,  and 
the  point  of  the  appeal  waa  as  to  the 
question  of  oosts.  The  defendajit 
(appellant)  contended  that  he  was  en- 
titled to  costs. 

Mr.  Benjamin  was  for  the  appellant, 
and  Mr.  J.  E.  R.  de  Villiers  was  for 
the  respondent. 

In  the  course  of  the  hearinc  of  the 
case,  Buchanan,  A.C.J. ,  remarking  on 
the  Magistrate's  decision,  said: 
"  That's  a  naoet  extraordinary  judg- 
ment. Persons  like  that  should  not 
be  allowed  to  tr^  oases.  The  reason- 
ing is  in  one  direction,  and  the  judg- 
ment is  in  the  opposite  direction.  I 
am  sorry  that  there  ie  not  a  cross 
appeal,  and  then  I  might  have  eettled 
the  whole  question.*' 

Buchanan,  A.C.J. ,  saiid  that  bhe 
Magistrate  had  in  this  case,  gran- 
ted absolution  from  the  instance, 
without  of^ts.  If  the  Magistrate 
believed  the  plaintiff's  evidence,  he 
ought  to  have  given  judgment  for 
the  plaintiff,  with  costs.  If  he  did  not 
believe  the  plaintiff,  he  should  have 
given  judgment  for  the  tenderer.  In- 
stead of  that,  he  granted  absolution 
from  the  instance,  but  he  had  not  given 
satisfactory  reasons  for  his  refusal  to 
allow  the  defendant  his  costs.  The 
defendant  ought  to  have  had  his  costs. 
There  should  be  some  grounds  for  de- 
parting from  the  rule  that  the  victorious 

^rty  was  allowed  costs.  The  judg- 
ment of  the  Court  would  be  that  the 
apoeal  would  be  allowed,  with  costs; 
judgment  to  be  entered  for  the  plaintiff 
in  the  Court  below  for  the  sum  of  £1 
15s.  7d.,  the  amount  of  the  tender,  and 
absolution  from  the  instance  in  the  case 
of  the  remaining  claims,  the  plaintiff  to 
pay  costs. 


REYNOLDS  AND  CO.  V.  LUYT. 

Mr.  Van  Zyl  (for  the  appellant)  stated 
that  this  was  an  appeal  from  the  Resi- 
dent Magistrate  of  Prieska,  in  which 
respondent  was  allowed  judgment  for 
an  amount  of  £4  4s.,  loss  sustained 
through  breach  of  contract.  The  re- 
spondent alleged  that  he  had  been  en* 
araired  by  appellant  to  go  and  fetch 
8.4^  lb.  of  goods  at  an  agreed  charge 
of  la.  per  100  lb.  When  he  arrived  ai 
the  place  where  the  goods  lav,  the  ap- 
pellants' agents  refund  to  hand  all 
the  goods  over.  Appellants  stated  that 
they  never  entered  into  any  such  con- 
tract, and  merely  told  respondent  that 
if  he  was  anxioua  to  get  the  goods  at 


all.  he  must  hurry.  They  were  quite 
willing  to  pay  for  the  goods  he  brought 
back. 

Buchanan,  A.C.J.,  said  that  there 
was  a  direct  conflict  of  evidence  as  to 
whether  or  not  a  contract  had  been 
entered  into  between  the  parties.  The 
re«>pondeiit  srtated  Reynolds  told  him 
that  there  was  8,400  lb.  weight  of  goods 
to  be  transported,  and  that  they  asked 
him  to  hurry  up  aanl  go  and  fetch 
them.  Appellants  denied  this,  and  said 
that  they  told  respondent  that  if  he 
wanted  to  fetch  the  goods  he  would 
have  to  hurry.  The  Question  was  one 
entirely  of  fact.  The  Magistrate  based 
his  judgment  upon  the  evidence 
and  telegrams  put  in,  and  in 
his  lordship's  opinion,  there  was  not 
sufficient  grounds  for  upsetting  the 
Magistrate  s  decision.  The  appeal 
would  therefore  be  dismissed,  with  costs. 


WELLS  v.  H'BANOA. 

This  was  an  appeal  brought  by  the 
appellant  Wells  to  have  the  judgment 
of  the  Resident  Magistrate  of  Maclear 
set  aside.  The  case  arose  out  of  the 
ownership  of  a  certain  horse,  which 
the  plaintiff  M'Banga  averred  had 
been  lost  by  him  in  1902,  and  which 
was  afterwards  found  in  the  possession 
of  the  present  appellant.  Respondent 
identified  the  horse  by  certain  marks 
and    by  a  split  ear. 

Mr.  Close  appeared  for  the  appel- 
lant, and  Mr.  van  Zyl  for  the  respon- 
dent. 

Buchanan,  A.C.J.,  said  this  was 
a       question      of     bare     facts.  The 

respondent  claimed  the  horse,  which 
he  believed  was  stolen  from  him. 
It  was  stated  that  a  native 
who  was  at  present  undergoing  five 
years'  imprisonment,  had  stolen  the 
horse.  In  his  opinion,  the  appellant 
took  a  risk  in  buying  the  horse  from 
a  person  like  the  thief.  Tlie  identity 
of  the  honse  as  being  the  one  stokni 
from  respondent  was  mainly  based  on 
the  facts  of  the  age  of  the'  horse  and 
the  docking  of  its  tail.  As  regarded 
the  age,  the  evidence  was  very  conflict- 
in  "•.  The  MagistrB;te,  howev'er,  heard 
all  the  witnesses,  and  had  the  further 
advantage  of  seeing  the  horse,  and 
he  came  to  the  conclusion  that 
the  horse  wae  the  property  of 
the  respondent,  and  must  be  re- 
stored to  him.  In  his  lordship's 
opinion,  the  Magistrate  had  acted  ac- 
cording to  the  evidence  adduced,  there 
fore  the  appeal  must  be  dismissed  wiUi 
costs. 


••cAt>ft  ttttes"  Law  tiEt'OtiTS. 


765 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplbt.] 


APPEALS. 

FOBTUIN  V.   ENOELBBSCHT.  I  g^IJ^'^j^ 

This  was  an  appeal  from  the  decision 
of  the  Resident  Magistrate  of  Spring- 
bokfontein  given  on  March  30  last. 
The  appellant  was  the  plaintiff  in  the 
action  in  the  Court  below,  and  the  le- 
<>ponde»t  was  the  defendant.  The  claim 
was  for  £20  dama^jes  for  assault,  and 
the  defendant  adnutted  the  assault.  It 
was  alleged  that  the  defendant  struck 
the  plaintiflf  with  his  fist,  kicked  him  in 
the  side,  and  caused  him  injuries.  He 
admitted  the  injuries,  but  denied  the 
damag««,  and  judgment  was  given  for 
the  plaintiff  for  £d  damages,  and  costs 
of  suit.  The  plaintiff  appealed  on  the 
grounds  of  the  insufficiency  of  the  dam- 
ages  awarded. 

Mr.  Upington  appeared  for  the  appel- 
lant, and  Mr.  Gardiner  for  the  respond- 
ent. 

Hopley.  J.,  saiid  he  thought  this  was 
rather  an  up-hill  fight  for  the  aippellant. 

Mr.  Upington  said  that  in  another 
case  it  might  be,  but  in  this  case  it 
was  not  so,  as  certain  specific  damages 
were  proven. 

The  evidence  of  the  appellant,  Paulus 
Fortuin,  taken  in  the  Court  below,  was 
to  the  effect  that  he  was  a  post-cart 
driver,  and  also  a  grain  farmer.  On 
Februarr  5  last  he  was  taking  a  load 
of ^  fish  from  the  coast  to  Springbokfon- 
tein,  and  in  the  course  of  his  journey 
he  outspanned  on  the  farm  Elansklip. 
He  asked  the  propritor— Willem  Engel- 
brecht,  the  respondent — for  a  pipe  of 
tobacco,  and  the  latter,  without  saying 
a  word,  struck  him  under  the  jaw  and 
knocked  his  down,  and  then  kicked 
him  about  the  face  and  body.  For  this 
offence  the  respondent  was  fined  £2 
and  costs,  or  14  days  in  the  Criminal 
Court;  and  as  a  result  of  the  injur- 
ies he  received  the  api>ellant  claimed  £20 
damages,  but  the  magistrate  only  award- 
ed him  £3.  The  evidence  of  medical 
inen  who  attended  the  appellant  during 
his  illness  was  to  the  effect  that  prior 
to  this  onslaught  the  appellant  was  very 
healthy,  but  since  then  he  had  been 
suffering  from  the  effects  of  the  kicks 
he  received.  Amongst  the  items 
claimed  for  in  the  damages  was  the 
Talue  of  a  foal  born  dead,  and  the  pro- 
geny of  a  mare  which  the  appellant  had 
to  hire  to  ride  to  see  the  doctor. 

The  respondent's  evidence  in  the 
Court  below  was  to  the  effect  that  the 
appellant  stole  his  forage  and  wasted 
the  water,  which  had  to  be  brought 
»  considerable    distance,    and   although 


cautioned  about  doing  to,  continued  to 
do  so. 

The  Magistrate  in  his  reasons  stated 
that  the  assault  for  which  some  con- 
siderable provocation  existed  was  of  a 
very  mild  nature.  The  evidence  of 
the  plaintiff  and  his  father  could  not  be 
relied  upon  in  any  particular.  Many 
contradictory  statenients  were  made  by 
them,  some  of  which  were  proved  to 
bo  lies.  The  doctor  in  his  evidence 
clearly  stated  that  no  evidence  of  kicks 
in  the  side  could  be  found.  The 
plaintiff's  statement  that  he  rode  a  long 
distance  after  the  assault  went  to  prove 
that  his  injuries  were  not  of  a  very 
serious  nature.  The  Magistrate,  in 
making  his  award,  treated  the  matter 
without  taking  into  consideration  the 
provocation. 

^r.  Upington  contended  that  the  Ma- 
gistrate was  not  justified  in  consider- 
mg  an  assault  where  a  man  was  kicked 
about  the  head  and  face  and  body  was  a 
mild  assault.  There  was  no  evidence 
on  the  record  to  support  the  view  the 
Magistrate  took.  Then,  again,  there 
was  no  evidence  forthcoming  to  prove 
that  the  appellant  gave  the  respondent 
any  provocation  for  the  assault. 

[Hopley,  J. :  I  consider  there  is  suf- 
ficient provocation  in  a  man  stealing 
your  forage  and  wasting  vour  water,  for 
which  vou  have  to  send  a  wagon  and 
team  of  mules  miles.] 

Mr.  Upington  said  there  was  very 
little  doubt  but  that  the  respondent 
kicked  the  appellant  when  be  was  lying 
on  the  ground.  If  he  did  not,  then  he 
must  have  possessed  the  acrobatic  skill 
of  a  •*  Savate." 

[Hopley,  J. :  That  is  not  impossible, 
knowing  the  ways  of  these  Hottentots.] 

Mr.  Upington :  But  these  are  white 
men. 

[Hopley,  J.:  Oh,  .are  they!  Wo  are 
not  so  sure  about  that.  There  is  a 
part  of  this  country  where  there  are 
very  few  white  people^  and  the  natives 
possess  the  names  of  Europeans.] 

On  reference  to  the  charge  sheet,  Mr. 
Upington   ascertained  that  the   respond 
ent  was   described  as  a  European. 

Mr.  Upington  further  contended  that 
when  European  farmers  had  little  dif- 
ferences they  did  not  usually  stand  on 
one  leg  and  kick  at  their  opponent's 
head  and  face  with  the  other.  Continu- 
ing, Mr.  Upington  said  that  his  client 
hiM  been  badly  treated,  and  asked  for 
a  favourable  consideration  of  his  appeal. 

Hopley,  J.,  commented  upon  the  dis- 
tances from  Magistracies  in  Namaqua- 
land,  and  to  that  might  be  due  the  fact 
that  the  assault  had  taken  place.  He  (the 
learned  Judge)  said  that  no  one  would 
have  complained  if  the  Magistrate  had 
found  for  a  little  more,  but  when  one 
considered  that  the  Magistrate  had 
heard  the  evidence  of  both  sides,  it  seem- 
ed strange  that  the  Supreme  Court 
should,    without    hearing   witnanoi,    bo 


766 


(I 


CAPE  tiMiSS"  LAW  Rl&t^ittS. 


asked  to  Bet  the  Magistrate's  decision 
aside.  The  appeal  would  be  diamifleed, 
with  costs. 


SMITH  V.  DB  JAOiSR  AND  OTHERS. 

This  was  an  appeal  against  the  deci- 
sion of  tho  R.M.,  Colesberg. 

From  the  record  it  appeared  that 
eight  of  the  appellant's  oxen  had  been 
attached  by  respondents  in  execution 
of  a  writ  against  appellant's  father. 
Appellant  waa  a  minor,  and  had  been 
a  rebel  during  the  late  war.  The 
cattle  were  given  him  the  day 
after  he  returned  from  commando 
by  his  father,  as  it  was  appellant's  birth- 
day. He  had  paid  for  a  considerable 
amount  of  his  school  fees,  and  managed 
his  own  affairs.  He  had  not  allowed 
his  oxen  to  be  considered  as  belonging 
to  his  father,  because  the  military  au- 
thorities were  paying  attentions  to  the 
cattle  of  rebels.  The  R.M.,  Colesberg, 
had  declared  six  of  the  cattle  to  be  non- 
executable, but  in  doing  so  had  said 
that  the  plaintiffs  and  his  witnesses' 
(with  the  exception  of  two)  evidence 
was  not  of  the  best. 

Mr.  IJpington  was  for  the  appellant 
(plaintiff  in  Court  below),  and  Mr.  Gar- 
diner for  the  respondent. 

Hopley,     J.,     said     he     was     of  the 
opinion       that       the       matter       should 
be      remitted      back      to      the     Magis- 
trate   for     further     inquiry    as    to   the 
ownership  of   the   oxen,    which    he   had 
declared  to  be  liable  for  execution,  and 
the   further   costs   of   such    inquiry    and 
the  costs  of  the  appeal   would   have  to 
abide  the  results  of  the  inquiry.       With 
regard  to   tht*   costs  of  the   interpleader 
action,   he  thought  that  the  Magistrate 
had    not    exercised    his    judicial    discre- 
tion in  ordering  each  party  to   pay  his 
own   costs.     The   Magistrate    had    given 
the  appellant  six  out  of  the  eight  oxen, 
practically  making  him  successful  in  his 
action.    There  had  been  no  tender  made 
to  the  plaintiff,   and  he   had  succeeded 
in  the  maior  portion  of  his  claim.    His 
lordship   thought  that   the      Magistrate 
ought  to  have  awarded   him   the  costs. 
He  thought  that  the  judgment  should 
be  changed  on  that  point.    The  costs  in 
the  Court  of  Appeal  would  have  to  be 
paid  by  the  respondent. 


I 


STARTUP  V.  BUJEYE. 

This  was  an  appeal  from  the  decision 
of  the  Residont  Magistrate  of  Maclear, 

? granting  a  decree  against  the  appellant 
or  £9  lOs. 

From  the  record  it  appeared  that 
the  apiwllant  was  engaged  in  winding 
un  the  estate  of  a  Mr.  Roberts,  of 
Afaclear,  which  had  been  seques- 
trated. Prior  to  the  insolvency,  the 
respondent,   a    native   named      Bujeye,    I 


pledged  some  cattle  with  Mrs.  Roberts 
for  a  loan  of  £9  10s.  During  the  period 
in  which  the  estate  was  being  wound 
up,  Bujeye,  hearing  that  the  cattle  had 
been  seized,  went  into  the  appellant's 
office,  and  paid  the  £9  10s.,  which  he 
said  he  owed  to  Roberts's  estate.  His 
name  not  being  found  on  the  list  of 
debtors,  the  appellant  decided  not  to 
pay  the  money  over  again  until  Ruieye 
returned.  He  came  in  a  few  days  after, 
and  on  being  again  asked,  said  he  owed 
the  money  to  Mr.  Roberts,  and  the  ap- 
pellant then  paid  the  money  into  the  es- 
tate. An  action  was  brought  to  re- 
cover the  amount,  and  the  Magistrate 
gave  a  decree  for  it  against  which  de- 
cision Startup  appealed. 

Mr.  Gardiner  for  appellant.  Respond- 
ent in  default. 

Hoj^ey,  J.,  said  the  attorney  was 
behaving  very  wrongly  when  he  did  not 
rectify  a  mistake  of  this  sort. 

Mr.  Gardiner;  But  the  money  has 
been  paid  into  the  estate,  and  Startup 
had  not  got  it. 

Hopley,  J, :  He  is  the  trustee's 
agent,  and  surely  he  can  pay  the  money 
out  of  the  estate  to  this  unfortunate 
fellow. 

Mr.  Gardiner  said  the  tnistee  always 
had  great  difficulty  in  dealing  with  an 
estate   between    man    and    wife. 

fHopley,  J. :  And  this  poor  ignorant 
Kafir  has  also  got  into  a  difficult  posi- 
tion.] 

Mr.  Gardiner :  When  the  name  of  this 
Kafir  was  not. on  the  list  of  debtors  to 
the  estate,  Startup  took  precautions  to 
ascertain  that  the  money  was  due  to  the 
ii:solyent'8  estate,  and  asked  him  before 
handing  the  money  over,  and  Bujpyc 
clearly  stated  that  he  owed  the  money 
to  Mr.  Roberts. 

Counsel  contended  that  Startup  had 
received  the  money,  and  had  distributed 
it  in  good  faith  after  having  made  every 
inquiry,  and  he  was  not  legally  respon- 
sible for  it.  The  trustee  was  the  respon- 
sible person. 

Hopley,  J.,  said  he  considered  that 
these  people  had  dealt  with  this  unfor- 
tunate native  in  a  terribly  careless  way. 
It  made  one  indignant  to  think  of  it. 
Mrs.  Roberts  lent  him  money  at  interest 
dose  on  100  per  cent,  per  annum,  and 
when  the  stock  which  he  had  given  as  a 
pledge  were  being  seized  in  the  insol- 
vent s  estate,  nobody  took  the  trouble 
to  explain  that  the  cattle  did  not  be- 
long to  the  estate.  Startup,  who  was 
the  legal  adviser,  should  have  .  done 
something  an  that  direction.  The  result 
of  it  all  was  that  this  unfortunate  na- 
tive, in  the  hands  of  these  Europeans, 
was  going  to  be  absolutely  ruined.  The 
(•ourt  might  have  to  give  judgment 
against  this  native,  but  such  judgment 
would  not  reflect  very  much  to  the 
credit  of  the  Europeans.  He  did  not 
wish  to  say  that  Startup  dSd  anything 
that  was  really  wron^.  It  was  rather 
Roberts     that  he  (his  lordship)     blim- 


"CAPE  TIMES"  LAW  REPORTS. 


767 


ed,  beoaufie  they  must  have  known 
whose  the  cattle  were,  and  did  not  take 
the  trouble  to  explain.  He  could  not 
understand  why  Startup  did  not  say  to 
the  native  when  tlje  matter  came  to 
light  that  the  ofitwte  had  not  boon 
wound  up,  and  that  as  the  native  was 
not  a  concurrent  creditor,  he  would  get 
his  money  back,  and  have  saved  all  this 
expense  which  the  unfortunate  native 
had  been  put  to. 

Counsel  having  been  further  heard  in 
argument, 

Hoplcy,  J.,  said  this  appeal  he  feared 
would  have  to  be  allowed,  but  he  re- 
gretted exceedingly  the  whole  of  these 
proceedings.  He  regretted  them 
very  much,  because  he  felt  cer- 
tain the  unfortunate  native,  who 
was  affected  by  the  order  and  the 
reversal  of  the  decii^ion  in  the  Court 
below,  would  never  properly  get  into  his 
head  that  he  had  not  been  properly 
treated  to  British  justice  by  the  British 
Courts.  He  seemed  to  his  lordship  to 
have  received  very  questionable  treat- 
ment at  the  hands  of  the  Europeans 
with  whom  he  became  involved.  His 
lordship  then  proceeded  to  review  the 
evidence,  after  which  he  said  it  became 
the  duty  of  the  Roberts,  when  they  dis- 
covered the  mistake,  to  have  protected 
this  native.  If  they  had  done  so,  and 
disclosed  the  real  owner  of  these  cattle, 
then  there  would  have  been  no  further 
trouble  in  this  matter,  and  the  native 
would  not  have  been  deprived  presum- 
ably of  all  the  property  he  possessed. 
The  Magistrate  seemed  to  have  founded 
his  judgment  on  the  facts  of  the  case, 
as  ,they  appeared  before  him.  He  ex- 
amined the  documents,  aad  came  to  the 
ccnclusion  that  the  money  was  due  to 
Mrs.  Roberts,  and  not  Roberts'^  estate, 
and  he  came  to  the 'conclusion  that  it 
waf  paid  on  behalf  of  Mrs.  Roberts. 
Under  all  the  circumstances  there  did 
seem  to  be  no  claim  against  Startup  per- 
sonally. Bujeye  might  have  sued  the 
estate  for  the  refund  of  the  money  they 
gor  hold  of,  and  which  was  not  theirs. 
He  would  still  be  able  to  get  back  the 
money  if  the  estate  waA  not  wound  up, 
or  there  might  have  to  be  a  contribu- 
tion account  by  the  creditors  to  give 
this  money  back  to  the  native.  Al- 
though these  proceedings  would  pro- 
bably ruin  Bujeye.  he  feared  he  would 
have  to  give  absolution  from  the  in- 
stance, with  costs. 


SUPREME  COURT 


[Before  the  Hon.  Mr.  Justice  HorLETj 


CIVIL  APPEALS. 

SMITH  V.  WATNEY.  {  g^JJ^'^h. 

MeHsenger  of   R.M.  Court — At- 
tachment— Sale  in  execution. 

It  is  the  duty  of  a  messenger 
who  has  beeii  entrusted  with  a 
icrit  of  execution  to  attach  the 
goods  named  therein  aiid  set  I 
them  on  the  due  dute,  even  if 
tJiey  are  claimed  by  a  third 
person.  In  such  case  he  should 
take  security  for  indemnity 
from  the  judgment  creditor. 


This  was  an  appeal  from  the  deoision 
of  the  A.R.M.,  of  Malmesburv,  in  a 
case  heard  before  him,  in  wnich  the 
present  respondent  wae  the  plaintiff  and 
the  appellant  was  the  defendant.  Judg- 
ment was  ^iven  for  £12  8s.  in  favour  of 
the  plaintiff,  who  was  the  messenger 
of  the  Magistrate's  Court.  The  de- 
fendant Smfth  had  pre\'dously  obtained 
judgment  against  one  H.  J.  Hoffman, 
and  thereafter  took  out  a  writ  of  execu- 
tion. The  plaintiff  seized  two  mules 
which  were  afterwards  claimed  by  one 
Lombard,  who  had  a  lien  on  them  for 
rent.  The  plaintiff  refused  to  sell  the 
mules,  until  the  defendant  guaranteed 
to  pay  the  rent  duo  to  Lombard.  Upon 
receiving  the  guarantee  the  mules  were 
sold  for  £22  10s.,  and  the  defendant 
(Smith)  duly  received  the  proceeds. 
The  plaintiff  paid!  Lombard  the  £14 
rent,  but  the  defendant  refused 
to  refund  the  money.  The  Mag- 
istrate, for  the  purposes  of  the 
case,  said  he  would  take  Smith's  ver- 
sion of  what  took  place  at  the  office 
between  him  and  the  plaintiff,  and  he 
held  that  whatever  the  messenger  did, 
after  he  informed  the  judgment  credi- 
tor, that  he  must  be  assumed  to  have 
done  so  as  the  agent  of  the  creditor. 

Mr  dose  was  for  the  appellant,  Mr. 
Van  Zyl  was  for  the  respondent. 

Hopley,  J.,  said  that  in  thia  case 
there  was  an  aotion  by  Smith  against 
Hoffman  and  Smith  reoovered  damages 
for  the  t«um  of  £16,  wnd  costs,  and  a 
writ  of  execution  was  issued  from  the 
Court  of  the  Resident  Magistrate 
at  Malmesbury,  ordering  the  Mes- 
senger of  the  Court  to  take  Hoff- 
man's goods  to  satisfy  Smith's 
claim.  He  went  out  apparently  as  he 
was  intended  to  do,  and  there  attached 
two  mules  and  a  cart.    |>3mbard     gave 


768 


it 


CAPE  TIMEB"  LAW  BSPOBTd. 


aecuritv  that  he  would  produce  iheee  ut 
the  riglit  date  for  sale.    It  appeared  that 
a   few  days   after  Lombard   put   in      a 
claim,   and  he  had  some  right  to  these 
mules,  as  they  were  pledged  to  him  as 
rent  for  a  farm  he  had  leased  to  Hoff- 
man.   He  produced  a     note     to     that 
effect,  and  about  four  days  after  the  at- 
tachment he  seemed  to  have  goiM  into 
Malmesburv,  and  made  an  affidavit  that 
the  mules  had  been  handed  to  him,  and 
that  they  were  his  bona  fide  oroperty. 
The  Messenger  ol  the  Court  drew   the 
attention  of  Smith  to  the  fact  that  the 
mules   were   pledged   to  Lombard,    and 
Smith   admitted  that   he  saw   the   note 
of  pledge.    Now,   it  was  at  this  inter- 
view if  at  all  that  the  Court  must  fix 
the    subsequent    rights    of    the   i)arties, 
with  which  they  were  oonoerned  in  this 
appeal.    The    Messenger   of    the    Court 
said  thai  upon  his  showing  the  note  and 
bringing  Lombard's  claim  to  the  notice 
of  Smith,    Smith   said   that  he   did   not 
think   much   of  it,    and    that   he   asked 
if   the   cart   would    realise   sufficient   to 
pay  more  than  his  claim,  and  the  Mes- 
senger of  the  Court  said  he  thought  it 
would,  whereupon  Smith  authorised  him 
to  settle  with  Lombard,  and  told  him  to 
let  the  sale  go  on  on  the  basis.  ^  That 
was  the  Messenger's  clear  and  distinct 
version  of  what  took  place  at  that  inter- 
view,   but   Smith,    in  his  evidence,    de- 
nied   that    anything   of    that   sort    took 
place.    He  admitted   seeing  the   pledge 
note,  and  stated   he  expressed   his  con- 
tempt for  it,  and  that  he  never  author- 
ised the  Messenger  to  guarantee  or  pro- 
mise to  pay  Lombard  his  rent.     It  seem- 
ed to  the  Court  that  it  would  have  been 
well  for  the  Magistrate  to  have  found 
either  one  way  or  the  other  as  to  which 
of     these     was    the    more     likely    ver- 
sion,      but     he     had     not     been     able 
to    make    up     his     mind     to  the  point 
of   being    ame    to   pronounce   which   of 
these  people  he  believed  and  he  had  gone 
with  considerable  ability  and  care  into 
the  law  of  the  case  with  the  object  of 
showing  that  the  messenger's  duty  ceased 
when    a    third    party   claimed    the   pro- 
perty.     The   magistrate   held    that   Ux» 
messenger   of    the    Court    acted    merely 
as  the  agent  to  Smith.    The  Court  could 
not  hold  that  view.    The  messenger  had 
been  commanded  to  do  certain  things  by 
the  writ  that  was  entrusted  to  him,  snd 
it  was  his  duty  to  do  those  things  unless 
•omething  stopped  him,  the  mere  putting 
in  of  a  claim  by  a  third  party  should 
not  have  done  so.      It  was  his  duty  to 
go  on  and  sell  on  the  right  day.      He 
could   protect  himself  from   loss  at  the 
hands  of  the  judgment  creditor,   whose 
writ  was  in  his  hands.    The  messenger  of 
the  Court  was,  he  supposed,  an  experi- 
enced  messsenger,   and  he  should   nave 
known  that  there  were  ways  of  protect- 
ing himself.     He  did  not  do  that.     The 
proper  thing  for  the  magistrate  to  have 
done  was   to  give   absolution  from   the 
instance,  and  the  appeal  would  be  •!• 


lowed   and   the  judgment  altered.   TIm 
plaintiff  would  have  to  pay  costs. 

[Appellant's  Attorneys :  Tregold, 
Mclntyre  and  Basset.  Respondent's 
Attorney:    D.  Tennant,  juor.] 


FUMBA  v.  DICEERSOir. 

Carrier — Negligence. 


5       1905. 
I  Sept.  8tb. 


D.  hired  /'.'*  xcagon  i-o  carry 
certain  grain  anditaw  it  loatled 
ofi  the  toagon,  cmd  aUo  sme 
that  there  uxis  a  lail  cloth 
wherewith  to  cover  it.  The 
toagon  was  in  charge  of  F.*8 
hrothtr.  On  arrival  at  the 
store  of  D.*«  agefitf  the  grain 
was  fbuftd  to  he  wet^  and 
the  agent  refused  to  accept 
delivery. 

Held  on  appeal,  that  as  there 
teas  no  evidence  of  negligence 
agaiftst  F.  or  his  servants^ 
U.  was  not  entitled  to  recover 
damages. 

D.  had  letU  to  F.  certain  hags 
in  which  to  carry  the  grain 
under  the  agi'cenient  that  they 
should  be  returned.  Chi  F.'s 
failure  to  return  theni^  D,  sued 
him  for  their  value  as  "  goods 
sold  and  delivered." 

Held,  that  this  action  having 
heen  wrongly  hrought,  D.  was 
not  entitled  to  recover. 

Van  der  Merwe  v.  Colonial 
Government  {15  C.T.R.,456) 
distinguished. 


This  was  an  appeal  from  the  decision 
of  the  Resident  Magistrate  of  Tabankulu 
in  a  case  in  which  the  plaintiff.  Dicker- 
son,  the  present  respondent,  sued  the  de- 
fendant  Fumba,  the  present  appellant, 
fo7  the  recovery  of  £33  15s.  aamages, 
alleged  by  the  plaintiff  to  be  owing  to 
him  on  account  of  the  negligence  of 
the  defendant  and  for  goods  deuTered. 

From  the  record  it  appeared  that  the 
plaintiff  came  to  the  defendant  and  en- 
gaged with  ^m  for  has  (Fumba'a)  wagon 
to  carry  20  bags  of  mealies  and  10  Mgs 
of  Kafir  com  to  a  place  in  the  Flagstaf 
District.  The  mealies  and  corn  were 
valued  at  £1  per  bag.  On  the  jour- 
ney thev  got  damaged  by  rain,  with  the 
result  that  when  they  reached  their  des- 
tination the  plaintiff^s  agent  refused  to 
take  delivery.  The  plaintiff  alleged  that 
the  damage  to  the  corn  was  caused  by 
the  defendant's  negligence,  and  he  claim- 
ed £1  value  of  the  corn  and  mealies,  £30, 
and  £3  15b.  for  goods  Q^iven  to  U)e  de- 


"CAPE  TIMES"  LAW  REPORTS. 


7«9 


{endant  in  oonsideration  of  the  cartage. 
The  magistrate  in  the  Court  bolow  gave 
judgment  for  the  plaintiff  for  £26  5s.  The 
plea  was  a  denial  of  liability  for  the 
damage,  the  £3  ISs.  being  admitted. 

In  the  course  of  the  evidence  for  the 
plaintiff  in  the  Court  below,  it  was 
stated  that  Dickerson  offered  to  allow 
Fumba  for  the  bags  which  were  in  good 
condition,  and  that  the  defendant  led 
him  to  belieive  he  would  bring  back  the 
good  grain,  the  arrangement  being  that 
he  was  to  be  paid  for  the  return  cartage. 
No  bags  were,  however,  returned  by  the 
defendant.  The  grain  was  good  when 
placed  on  the  wagon. 

The  magistrate,  in  giving  judgment, 
backed  his  decision  on  the  case  of  Van 
der  Merv'e  v.  The  Colonial  Government 
(15  C.T.R.  466),  where  the  defendant 
was  held  Hable  for  damage  caused  oy 
not  furnishing  a  sail-cloth  with  a  wagon. 
He  gave  judgment  for  £26  16s.,  being 
168.  per  bag  for  the  grain  and  £3  16s. 
in  respect  of  the  goods,  which  was  ad- 
n>ptted. 

Mr.  Le  Roux  appeared  for  the  appel- 
lant, and  Mr.  Benjamin  for  the  respon- 
dent. 

Mr.  Le  Roux  said  that  the  mistake  the 
magistrate  had  made  in  basing  his  deci- 
sion on  the  case  of  Van  der  Merwc  v 
The  Colonial  Ooremrnent  was  in  looki^ig 
upon  the  present  appellant  as  a  common 
carrier.  In  the  case  of  Trrgidqa  v. 
JSirewriffht,  reported  in  Vol.  14  Su- 
preme Court  Report**,  p.  76,  and  7 
C.T.R.,  67,  the  Chief  Justice  hf»ld  that 
the  Praetor's  edict  extended  to  car- 
riers by  land;  but  he  (counsel)  con- 
tended that  this  was  to  be  taken  as 
applying  only  to  common  carriers  by 
land'  In  the  present  case  the  plaintiff 
came  to  the  defendant  and  engaged  his 
(Fumba' s)  wagon ;  therefore  the  defend- 
ant could  not  be  regarded  as  a  common 
carrier,  and  Golini  Fumba,  the  appel- 
lant's brother,  who  drove  the  wagon, 
could  be  regarded  only  as  the  respon- 
dent's agent,  in  so  far  as  he  looked 
after  the  grain,  and  as  the  appellant's 
agent,  in  so  far  as  he  looked  after  the 
horses.  The  case  was  really  one  of  let- 
ting and  hiring.  Bower,  the  respond- 
ent s  servant,  helped  to  load  up  the 
wagon,  and  it  was  admitted  by  the 
defendant  that  it  had  a  sail-cloth.  In 
the  Court  below  no  evidence  was  called 
to  rebut  the  allegation  of  negligence; 
neither  was  there  any  to  prove  negli- 
gence. There  was  a  sail-cloth  on  the 
wagon,  and  there  was  no  proof  that 
they,  on  appellant's  side,  had  not  done 
the  best  they  could  to  avoid  the  damage. 

fHopley,  J. :  Your  point  is  that  tne 
defen^nt  saw  the  wagon,  and  he  saw 
the  sail-cloth  with  which  it  was  fur- 
ni<;hed.  and  should  have  seen  if  they 
were  fit  to  carry  the  grain?] 

Mr  Le  Roux :  Yes,  and,  further, 
there   is   no  proof  of  negligence. 

fHopley,  J. :  There  wae  a  sail-cloth 
on   the  cart;    of  course,    if   th©  driver 


were  to  take  the  sail-cloth  off  and 
sleep  in  it  in  a  rain-storm,  leaving  the 
grain  exposed,  that  would  be  different?] 

Mr.  Le  Roux :  Exaotly,  but  there  is 
no  proof  that  we  did  not  do  our  befit — 
that  there  was  any  negligence. 

Hopley,  J.,  said  that  in  thie  case  some 
important  points  arose,  and  if  it  had  not 
been  that  that  was  the  last  possible  day 
in  which  he  oould  give  judgment  before 
proceeding   on    cirouit.    he    would  have 
taken    time  to    consider    it,    but   as    he 
had   not  very  inuch  doubt    himeelf,    he 
felt  ready  to  give  judgment  on  the  case 
as  it  stood.     The  pJaintiff  sued  a  native 
in  the  Terrrtoriea  who  owned  a  wagon, 
as  a  great  many  natives  there  did,  whom 
he    had  hired    for    a   special   trip,  from 
Mount      Ayliff  to    Lukisikisi    to    carry 
some  grain.      This   w«a8   about  January 
or  February  laet — during  the  rainy  sea- 
son in  these  parts.     The  appellant  seuc 
hk    wagon   to   the    respondent's    store, 
where  the  latter  had  an  opportunity  of 
examining  it,    and  seeing    that    it  wa« 
all  ri^ht,  and  where  it  was  to  be  pre- 
sumed he  loaded  it.     Now,  it  had  been 
argued    that    if    any    damage    occur  re  vi 
to    this   grain   thereafter,     the      carrier 
should  be   held  re9ponsi>hle  for  it.      Mr. 
Juetice   Maasdorp   nod   laid   down  in  a 
similar  case  that  where  a  man  contract- 
ed to  do  carrying  work,  he  must  do  so 
to   the    best  of  his  ability,   and  that  he 
was   liable   for  negligence  if  he   should 
exhibit    anv    negligence   in    the    oourse 
of  the  "work  he  undertone     In  the  pre- 
sent ca^e   the  journey  was  undertaken, 
and  it  was  eaid  that  it  should  have  taken 
four   days,    when  in   reality    it   took   12 
days,  and  on  arrival  at  the  end  of  the 
journey  the  res>pondent's  a^ent  refused 
to  take  delivery  of  the  gra4n,  as  it  was 
wot.      That  wae   the  clearest  way  to  in- 
crease the  damage  which   had  been    lo- 
cunred.      What  the  agent   should   have 
done  was  to  open  the  sacks,  and  have 
seen  how  muon  of  the  grain   had  been 
damaged.    The  respondents,  it  was  pre- 
sumeJ.    had  seen  to  the  loading^  of  the 
wagon  before  k  started  on  its  journey, 
and  the  covering  of   it,    and   as  no  ne- 
gligence was  proved  against  the  carrier 
he  could  not  oo  held   responsible.      The 
Magistrate  based  his   juagm-ent   on   tlie 
case  of  Van  der  Merwe  v.   The  Colonial 
Government,   which   was   to   a   large    ex- 
tent simiUr.      It  did   not  seem    to   the 
Court  that    the    judgment    in  that  case 
should  affect    the    present    oase,    for    in 
that  negligence  on  the  part  of  the  carrier 
was   proved.      In  the   present   case   no- 
body  scorned    to    have   asked   how   the 
wet'  occurred,  and  they  ought  to   have 
gone  more  deeply  into  the  quastion,  and 
ascertained  if  the  damp^  was  due  to  the 
negligence  of    the    oarrier.       That    had 
not   been   done,   and  it   seemed   to  His 
Lordship   that  that   portion  of  the  case 
in    the  Court   below    failed,    and    there 
should   be   a   reversal  of  the  judgment, 
and  there  would  be  absolution  from  the 
inatanoe.      With    regard   to   tl^o  otl^er 


770 


fi 


CAPE  TIMES"  LAW  REPORTS. 


claim  for  £3  158.,  tlio  action  wae 
brought  for  froo<k  sold  aod  dolivered; 
tlKit  flbould  not  have  been  done.  They 
wore  not  sold  aiid  d<>iiver<*d ;  they  were 
given  for  carrying  the  goods,  and  in 
that  the  reepondent  had  carried  out  his 
contract.  Therefore,  ho  must  Buoeeed 
in  his  appeal.  On  both  count«  it  seemed 
that  the  Ma«trate'B  judgment  was 
wrong,  and  the  appeal  would  be  al- 
lowed with  costs.  He  thought  that 
under  the  circumstances  the  proper 
thing  was  absolution  from  the  inatance, 
because  it  might  be  possible  for  the 
present  responoent  to  move  if  tbef«  was 
actual  negligence  on  the  part  of  the 
carrier. 

[Appellant's  Attorneys:  Zietsnum  and 
Bosman.  Respondent's  Attorneys : 
Findlay  and  Tait.] 


SUPREME  COURT 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


ADMISSIONS*. 


f       190.O. 
i  Sept.  12th. 

Mr.  Benjamin  moved  for  the  admis- 
sion of  Evcritt  George  Orsmond,  as  an 
attorney  and   notary. 

Applications  granted,  oaths  to  be 
taken  before  the  Resident  Magistrate 
of  Ea.st  London. 

Mr.  Benjamin  moved  for  the  admis- 
sion of  Johannes  H.  Conradie.  am  an  at- 
torney  and   notary. 

Application  granted  and  oaths  ad- 
ministered. 


PROVISIONAL  ROLL. 


LAWLKY  V.  SOUTH  AFRICAN  PIONBRB 
SYNDICATE. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £180,  due  by  reason  of  the  non- 
payment of  capital  after  notice ;  counsel 
also  applied  for  the  property  specially 
hypothecated  to  be  declared  executable. 

Order  pranted,  subject  to  affidavit  of 
service  of  notice  being  filed. 


LOTZ  V.  BRAF. 


Mr.  Bailey  moyvl  for  provisional  sen- 
tence op  1^  mortgage  bond  for  £150,  due 


by  reaaou  of  tlie  uon-payment  of  inter- 
est ;    counsel   also   applied   for   the   pro- 
perty  specially   hypotnecated   to  be  de- 
clared executable. 
Order  granted. 


DU  PLESeiS  V.  HBOEB& 

Mr.  Bailey  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £90.  due 
by  reason  of  the  non-payment  of  inter- 
est ;  counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable. 

Order  granted. 


8NYMAN  V.  TURNER. 

Mr.  Boux  moved  for  provisional  sen- 
tence on  a  mortgage  oond  for  £300, 
due  by  reason  of  the  non-payment  uf 
interest,  and  also  for  provisional  ^  sen- 
tence on  a  Magistrate's  Court  judg- 
ment for  £11  98.  lid. ;  counsel  also  ap- 
plied for  the  property  speciallv  hypothe- 
cated to  be  declared  executable. 

Order  granted. 


HOFFMANN  V.  NICHOLS. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £175, 
and  for  the  property  spcciallv  hypothe- 
cated  to   be  declarcHl  excutable. 

Order  granted. 


VERSTKR  V.  BERGL. 

Mr.  Pajme  moved  for  provisional  sen* 
trnoe  on  a  mortgage  bond,  and  for  £13 
2a    6d.,   insurance  premiums,      paid  by 

f)laintiff,  and  costs,  counsel  also  apphed 
or  the  property  specially  hypothecated 
to  be  declared  executable. 
Order  granted. 


PAARL  AFRICAN  TRUST  V.  BASflON. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond  for  in- 
terest in  the  sum  of  £36  and  £1  lis. 
6d.    insurance  premiums. 

Order  granted. 


ARMSTER  v.  BELINO. 

Mr.  Benjamin  moved  for  provisional 
sentence  on  a  promi»ory  note  for  £23 
15s.  with  interest  a  tempore  morae  and 
costs. 

Order  granted. 


"CAPE  TIMES"  LAW  REPORTS. 


771 


STURK    AND    CO.    V.    BHUR 
ABRAHAM80N. 


AND 


Mr.  Lewis  moved  for  a  provisional 
order  of  sequestration  to  be  made 
final. 

Final  order   granted. 


WILSON  V.  UEIBBBQ. 

Mr.  Gutache  moved  for  the  final 
adjudication  of  the  defendant's  estate 
aa   insolvent. 

Final    order   granted. 


MALYON  V.  OOLDINO. 

Mr.  Bailey  moved  for  the  final  ad- 
judication ot  the  defendant's  estate  as 
insolvent. 

Order  granted. 

Mr.  Bailey  also  asked  that  the  order 
should  be  made  final  against  Moee^ 
Golding,  under  which  the  defendant  had 
under  an  alias  first  name  passed  a  cer- 
tain mortgage  bond. 

Buchanan,  A.  C.  J.,  refused  the  ap- 
plication. 


GOVKY  AND  CO.  V.  WARNER. 

Mr.  Benjamin  moved  for  a  pro- 
Tisional  order  of  sequeetration  to  be 
made  final. 

Final  order  gi>anted. 


ESTATE  LBTTRU8TEDT  V.  WENTZEL. 

Mr.  Douglas  Buchanan  moved  for  a 
provisional  order  of  sequestration  to  be 
made  final. 

Final  order   granted. 


COULTON  T.  BULL. 

Mr,  P.^  S.  T.  Jones  mov€»d  for  a  de- 
cree of  civil  imprisonment  upon  a  judj^- 
xnent  of  this  Court  for  £200  as  and  for 
damages,  and  for  oo6t«  amounting  to 
£96  odd.  It  was  stated  that  the  de- 
fendant waa  a  medical  practiCioner  re- 
aiding  at  Urtenhage. 

Decree  granted. 

Buchanan,  A.  O.  J.,  subsequently 
stated  that  a  ielegraxa  had  been  rocefived 
to  the  effect  that  security  had  been 
given.  Under  the  circiunstAnoea  the 
docree  would  be  suspended  for  a  fort- 
night. 


CHIAPPINI  V.  VAN  STRAATEH 

Mr.  Du  Toit  moved  for  provisional 
sentence  on  an  acknowledgment  of  debt 
for  £50,  less  £25  paid  on  account 

Order  granted. 

C2 


MARTIN  V.  MEKENI   AND  ANOTHEB. 

Mr.  Russell  moved  for  provisional 
sentence  for  £50  interest  and  £5  29.  3d. 
t«i.xed  costs  upon  a  judgment  of  the 
Magistrate's  Court,  and  for  the  ppo- 
porty    to    be   declared   executable. 

Order  granted. 


ESTATE  DE  VILLI EB8  V.  VAN  ZYL. 

Mr.  Watermeyer  moved  for  provision- 
al sentence  on  a  mortgage  bond  for 
£850,  with  interest,  \em  £40  paid  on 
account.  Counsel  also  applied  for  the 
property  specially  hypothecated  to  Im 
declarea  executable. 

Order  granted. 


DE  KOCK   V    RILEY. 

Mr.  Close  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £5,000, 
with  interest  and  costs,  due  by  reafion 
of  the  non-payment  of  interest.  Coun- 
sel also  applied  for  the  property  speci- 
ally hypotnecated  to  be  declared  execut- 
able. 

Mr.  Benjamin  (for  defendant)  aaid 
that  he  was  instructed  to  confess  judg- 
mont. 

Order   granted   as  prayed. 


ILLIQUID  ROLL. 


RANDALL  V.  RANDALL. 


{ 


1905. 
Sept.  12th. 


Dr.  Greer  moved,  in  terms  of  con- 
sent paper,  for  a  decree  of  judicial 
separation  and  judgment  in  terms  of 
prayers  2  and  3  of  the  summons. 

Judgment  accordingly. 


DARTER  V.  STEER. 

Mr.  Alexander  moved  for  judgment 
under  Rule  329d  for  £29  la.  3d.,  bal- 
ance of  account  for  goods  .sold  and  de- 
lived,  etc. 

Order  granted. 


GEARING  V.  B,S,A.  ASPHALTS  CO. 

Mr.  Roux  moved  for  judgment  under 
Rule  32gd  for  £30  10s.  6d.,  work  and 
labour  done,  with  interest  a  tem- 
pore morae   and   costs. 

Buchan>an,  A.  C.  J.,  said  that  an  ap- 
plication had  been  made  to  him  m 
chambers  to  sequestrate  the  defendants' 
estate. 

Mr.  Molteno^  said  that  he  was  apoear- 
ing  in  an  application  against  defenaanta 
on  the  motion  roll. 

Order  granted. 


772 


tt 


CAPB  TIMES'*  LAW  REPORTa 


HAMMEB8CHLAO  V.  ESTESHUIZEK. 

Mr.  De  Waal  moved  for  judgment  un- 
^er  Rule  329d  for  £56  16e.  4d.,  goods 
sold  and   delivered. 

Order  granted. 


CAPB    TIMES.    LTD.    Y.    AMERICAN. 
MEDICINE  CO. 

Mr.  Douglas  Buchanan  moved  for  judg- 
ment under  Rule  329d  for  £23  ITs.  6€ll 
advertising  charges,  with  interest  a  tern- 
jfore  morae  and  oosta. 

Order  granted. 


HARDING  v.  HOWARD. 

Mr.  De  Waal  moved  for  judgment  un- 
der Rule  329d  for  £25  ISe.  9d.,  and 
£10,  bein^  amounts  deposited  in  con- 
nection with  certain  transfers  and  for 
delivery  of  certain  title  deeds  to  com- 
plete transfer. 

Buchanan,  A.  C.  J.,  said  that  the 
defendant  wsa  an  attorney,  and  he  did 
not  appear.  He  mentioned  this  point 
so  that  the  Law  Society  might  look 
into  it  An  order  would  be  granted  as 
prayed. 


DU  PLES8I8  V.  STARK. 

Mr.  Swift  moved  for  judgment  un- 
der Rule  3^d  for  £34  Is.,  professional 
services  rendered. 

Order  granted. 


CHARLIE  V.  ESTATE  MATOLA. 

Mr.  Gutsche  moved  for  judgmtjnt  un- 
der Rule  319,  defendant  having  been  bar- 
red. 

Judgment  as  prayed,  defendant  to  &le 
account  within  six  weeks. 


REHABILITATIONS. 


Mr.  Roux  moved  for  the  discharge  of 
Samuel  Lewis  from  insolvency. 
Application  granted. 

Mr.  Alexander  nooved  for  the  dis- 
charge of  Alexander  Gromer  from  insol- 
vency. He  understood  that  the  Master 
refused   to  give  the  certificai'O. 

Buchanan,  A.  C.  J.,  said  it  was  neces 
sary  to  have  a  written  report  from  the 
Master.     The  case  would  have  to  stand 
over. 


GENERAL    MOTIONS. 


WOOD  V.  OXENDALE  AND  00 


•{ 


1905. 


Sept   12th. 

Dr.    Greer    moved    as    a    matter    of 
urgency  for  the  attachment  of    certain 


property  ad  fundandam  jvrifdietionem, 
pending  the  result  of  an  action  to  be 
instituted  by  applicant  for  £2,500  dam- 
ans for  breach  of  contract,  and  for  leave 
to  sue  by  edictal  citation.  Respondents, 
it  was  stated,  were  an  English  com- 
pany. Applicant  alleged  that  he  had 
oeen  appointed  their  agent  for  Cape 
Colony,  and  that  respondents  had 
broken  their  contract  with  him. 

Rule  riMt  granted,  authorising  the 
applicant  to  sue  by  edictal  citation,  and 
to  attach  one  ca.«e  of  goods  belonging 
to  respondents,  pending  an  action  to  be 
brought  by  the  applicant,  rule  to  be 
returnable  on  the  loth  November,  and 
to  be  served  personally. 


TUTT  V.  TDTT. 


Mr.  Lewis  moved  for  a  decree  of 
divorce,  in  default  of  compliance  with 
an  order  of  the  Court  for  the  restitution 
of  conjugal  rights. 

The  application   was  granted. 


JSv  parte  WILSON. 

Mr.  P.  S.  T.  Jones  moved  to  have  a 
rule  nisi  under  the  Derehct  Lands  Act 
made  absolute. 

The  application  was  granted. 


HENDBICK8  V.  CAPE  TOWN  TRAMWAY 
GOMPANIEa 

Dr.  Greer  moved  for  leave  to  sue  «fi 
forma  vauperit. 

Mr.   Molteno  opposed  the  application. 

The  applicant's  affidavit  was  to  the 
effect  that,  owing  to  the  negligence  of 
the  defendant  companies,  a  cart  he  was 
driving  was  upset.  He  was  taken  to 
hospital,  where  his  leg  was  amputated. 
He  claimed  £2,000  damages.  He  was 
not  worth  £10,  and  consequently  sought 
to  sue  in  forma  pauperis. 

The  affidavit  of  Donald  McDonald 
stated  that  the  pole  against  which  the 
applicant's  cart  collided  was  a  fixture, 
and  that  the  applicant,  when  he  re- 
ported the  matter,  made  no  statement 
with  regard  to  a  projection  of  the  rails. 
He  saw  the  rails  three  months  after  the 
accident,  and  there  was  nothing  wrong 
with  them.  The  applicant's  wife  ad- 
mitted to  deponent  that  her  husband 
ran  against  the  pole,  and  that  the  acci- 
dent was  caused  through  no  fault  of  the 
Tramway  Company,  but  through  that 
of  her  husband. 

An  affidavit  made  by  Henry  van  den 
Westhuizen  stated  that  the  accident  was 
not  due  to  the  negligenoe  of  the  defen- 
dant company.  In  the  interval  be- 
tween the  accident  and  when  the  ap- 
plicant reported  the  accident,  the  road 
had  been  repaired* 


«<04P](  TIHS9'*  l^W  REPORTS. 


773 


Other  a^davits  made  by  spectators 
stat^  thajt  the  hoarse  bolted,  aiid  col- 
lided with  the  ppat.  ^ 

A  replyipK  affidavit  by  the  applicant 
denied  that  the  hone  bolted. 

Tiie  affidavit  of  OlMrlet  Millar  stated 
that  at  the  a[]ot  where  the  ac3cident  oc- 
curred, the  rail  wa«  about  an  inch  above 
the  level  of  the  1094. 

Catherine  Hendricks  denied  having 
told  Mr.  McDonald  that  the  accident 
was  tHe  fault  of  her  husband. 

Mr.  Molteno  said  the  Court  had  made 
the  rule  that  the  probabilities  should 
be  in  favour  of  the  petitioner  before 
granting  an  order.  On  the  affidavits 
before  the  Court,  could  it  be  held  that 
the  applicant  was  likely  to  succeed  in 
his  suit  The  result  would  be  that 
the  Tramway  Companv  would  be  put  to 
heavy  expense,  whiWt  the  applicant 
would  haVe  nothinv  to  lose. 

Dr.  Oreer  said  ne  placed  himself  in 
the  hands  of  the  Court.  If  there  was 
no  chance  of  the  applicant  succeeding 
in  his  action,  of  course,  it  would  be 
inadvisable  to  proceed  with  the  action. 
Mr.  McDoneld  had  stated  that  he  saw 
the  place  where  the  accident  occurred 
three  months  after  the  accident,  and 
that  nothing  had  been  dpne  to  it  in  the 
meantime;  whilst  Mr.  Van  der  West- 
huizen  stated  that  the  road  had  been 
repaired  and  reguttered.  If  the  cart 
had  struck  the  telegraph  pole,  the  boy 
would  have  fallen  towards  the  road, 
but  he  was  thrown  towards  the  path. 

Buchanan,  A.C.J. .  said  that  under 
the  126th  Rule  of  Court  provision 
was  made  for  t^  person  who  was 
a  pauper,  on  the  certificate  of  coun- 
sel, Sluing  in  forma  paaperit.  Several 
cases  had  been  before  the  Court 
as  to  the  effect  of  a  barrister's  certifi- 
cate, and  in  the  case  of  Almond  v.  Jor- 
daafiy  in  the  B^stem  Districts  Court, 
fhe  practice  of  the  Court  was  pretty 
fully  stated.  Since  then  a  esse  had 
been  before  thai  Court  when  the  ques- 
tion of  the  effect  of  counsel's  certificate 
was  also  disciu^sed.  and  it  was  decided 
that  the  riGrht  to  sue  in  forma  pnupcri* 
ws'v  not  dependent  solely  on  counsel's 
certificate.  If  the  respondent  could  show 
that  the  applicant  had  no  case  the 
Court  might  well  refuse  leave.  It  was 
not  a  matter  of  right,  but  a  privilege 
granted  by  the  Cr>i\rt.  Counsel  in  the 
present  case  declined  to  withdraw  his 
certificate,  and  maintained  that  the  op- 
position to  the  rule  W9»  founded  on  a 
oonflfct  of  testimony.  "The  Court,  under 
such  circumstances,  had  discretion,  and 
h)s  txyrd^liip  t]ioii(rht  the  rule  should  bo 
made  absolute.  His  Lordship  wished  to 
adhere  to  the'  ofiinion  that  the  mere  cer- 
tificate of  counsel  was  not  final,  but 
•^hen  the  n^  rested  on  the  mere  con- 
ffict  of  evidence,  the  Court  would  gener- 
ally act  on  counsel's  opinion.  The  rule 
woul4  be  ma^  absolute,  and  Dr.  Greer 
would  be  appointed  to  act  as  counsel. 

pn<J  Mr-  Jj  BufrsKi  «»  attorney.     HH 


Lordship  added  that  the  Court  looked 
upou  counsel  in  these  cases  not  as  coun- 
sel for  the  party,  but  as  advisers  to  the 
Court, 


Ex  parte  the  mtatb  mobteet. 

Mr.  Gardiner  moved  to  pass  transfer 
of  oertaiq  lands. 

Mr.  Benjamin  opposed  the  application 
on  oehalf  of  the  trustee  of  the  estate. 

Dr.  Greer  on^osed  on  behalf  of  the 
respondent,  Williams. 

Mr.  Gardiner  said  he  had  not  been 
served  by  the  respondent  Williams  with 
comes  of  the  affidavit. 

Pr.  Groer  said  his  client  did  not  op- 
pose. He  had  been  called  into  court  to 
explain  why  he  should  not  pay  costs. 

The  applicant  in  this  motion,  Willem 
Frederick  Zipp,  executor  dative  in  the 
estate  of  the  late  Adrian  Sybrandt  Mos- 
tert,  applied  for  an  order  authorising 
him  to  deal  with  and  dispose  of  certain 
property  situate  at  Observatory-road. 

From  the  petition  of  the  applicant  it 
appeared  that  the  late  Adrian  S.  Mos- 
tert  surrendered  his  estate  as  insolvent 
on  the  22nd  August,  1863,  and  at  the 
time  of  the  surrender  he  was  the  regis- 
tered owner  of  a  certain  property  situ- 
ate at  Observatory- road.  The  property 
was  brought  up  in  the  schedule  of  the 
insolvent,  and  the  transfer  was  handed 
over  to  the  trustee  of  the  estate.  About 
1864  Mostert  died,  leaving  a  mutual 
will,  in  which  his  wife  and  the  children 
of  the  marriage  wero  appointed  the 
heirs.  On  the  29th  December,  1868, 
the  joint  estate  was  rehabilitated.  There 
still  remained  registered  in  the  name  of 
Adrian  S.  Mostert  a  certain  portion  of 
the  land  surrendered.  Owing  to  the  or- 
der of  rehabilitation  not  having  been 
made  in  terms  of  the  106th  section  of 
the  Ordinance  of  1843,  the  Registrar  de- 
clined  to  pass  transfer. 

Counsel  for  the  trustees  read  the  affi- 
davit of  George  Wm.  Steytlcr,  in  which 
he  stated  that  he  was  one  of  the  trus- 
tees in  the  insolvent  estate  of  Adrian 
Sybrandt  Mostert.  The  applicant  was 
not  entitled  to  the  property  claimed  in 
his  petition,  as  it  was  still  vested  in  the 
insolvent  estate,  and  as  trustee  of  the 
estate  he  claimed  the  same  for  the 
benefit  of  the  creditors,  the  deficiency 
of  whose  claims  amounted  to  £2,094  Is. 
9d.  At  the  time  of  the  liquidation  of 
the  estate  some  of  the  property  in  the 
estate  was  sub-divided  into  lots,  and  it 
must  have  been  an  omission  that  these 
lots  were  not  dealt  with,  or  possibly  not 
sufficient  was  offered,  and  they  were 
not  sold  and  subsequenthr  forgotten. 

Counsel  having  been  heard  in  argu- 
ment, 

Buchanan.  A.C.J.,  said  he  thought 
this  appHoaiion  was  covered  by  the 
decision  of  the  Court  in  the  case  of 
Parker.  In  this  case  a  certain  property 
was  registered  in  the  name  of  oi^e  I4o8< 


774 


"CAPE  TIMES ••  LAW  HEPORTS. 


teri.  He  beoame  inaolvenfe,  «2id  by  the 
imolvenoy,  he  booame  divested  of  his 
property,  Moetert  died  shortly  after- 
waras,  aiid  hie  widow  aft^^rwards  ob- 
tained th©  rohabilitatdon  of  the  joint  es- 
tate. Thie  rehabilitation,  howovor,  was 
not  one  which  would  reinvofit  them  with 
their  estate.  Part  of  the  estate  bad 
been  sold  by  the  trustees  in  insolvency, 
and  part  had  since  been  discorered  not 
to  have  been  eold.  One  of  the  trustees, 
who  was  still  aHve,  could  not  say  why 
it  was  not  sold.  The  property  was  ves- 
ted in  the  trustees  for  the  benefit  of  the 
creditors,  who  had  not  been  paid  in 
full,  and  consequently  were  now  en- 
titled to  payment  out  of  the  unreleased 
property  of  the  eetaite.  He  thought 
the  creditors  would  never  have  had  the 
benefit  of  this  property  had  not  the  ap- 
plicant moved  in  the  matter,  and  as  he 
had  brought  the  existonce  of  this 
property  to  the  notice  of  the 
creditors,  it  was  only  fair  to  say 
that  the  property  should  pay  the  costs 
of  that  and  previous  applications.  The 
only  question  the  Court  had  to  decide 
was  whether  the  executor  dative  should 
not  be  made  to  pay  the  costs  of  the 
second   respondent 

Mr.  Benjamin  said  he  thought  the 
costs  of  the  second  respondent  ishould 
be  paid  by  the  applicant.  The  second 
respondent  had  been  brought  to  the 
Court  for  no  reason  at  all,  m  fact,  such 
a  proceeding  seemed  to  be  gross  negli- 
gence on  the  part  of  the  applicant. 

Buohanan,  A.C.J..  said  that  these 
costs  were  incurred  in  consequence  of 
the  order  of  Court,  and  the  property 
would  -bare  to  pay  all  costs. 


BENNETT  V.  GILLANDERS. 

Mr.  P.  S.  T.  Jones  moved  as  a  mat- 
ter of  urgency  for  an  interdict  to  re- 
strain the  defendant.  Dr.  J.  Gillanders, 
from  removing  furniture  from  a  cottage, 
occupied  bv  him  at  Muizenberg.  The 
affidavit  of  the  petitioner  stated  that 
the  respondent  was  indebted  to  him  in 
the  sum  of  £38  lOs..  being  for  seven 
months'  rental  of  Blackpool  Cottage, 
Muizenberg.  Although  petitioner  did 
repeatedly  demand  the  rent,  the  respon- 
dent had  failed  to  pay  it.  The  respon- 
dent had  hired  another  house  at  Wvn- 
berg.  where  he  intended  removing  nis 
furniture,  and  if  he  was  allowed  to  do 
this  the  petitioner  would  be  defeated 
in  obtaining  payment  of  his  claim,  and 
would  lose  his  hen  on  the  furniture,  .and 
that  he  intended  instituting  an  action 
to  recover  the  amount  of  his  rent. 

The  application  was  graniied  pending 
an  action  to  be  forthwith'  instituted. 


r     I9a5. 

RTKPIIAN  BROS.  AND  OTHERSj  Sept.  12th, 
V.  THB  B  tt.A.  ASPHALT  CO.    J      „      13th. 

COut,   17th. 

This  was  au  application  on  behalf  of 
Stephau  Bros,  and  others  for  the  oom- 
pulsorv  winding-up  of  the  _  B.S.A. 
Asphalt  Co.,  carrying  on  buBiuesB  in 
Strand-street,  Cape  Town. 

The     petition     of  H.     R.      Stephan, 
trading    as    Stephan    Broe.,    and    Jack 
CUrey    and    Co.,     and    Sidney    Charles 
Gearing,       trading       as       Cunningham 
and      Gearing,      set      forth     that     the 
B.S.A.   Asphalt  Co.    was   regriBtered   oa 
February  25,   1903,  for  the     object  inter 
alia  of  manufacturing  asphalt  and  pav- 
ing  material,    and  laying  of   the  same. 
The    nominal   capital   of   the    company 
was   £50,000.    divided    into    £1    shares. 
Accx>rding  to  the  records  of  the  Deeds 
Oflice,  36,517  £1  shares  had  been  issued 
and  alioted,  and  the  full  amount  of  £1 
a    share    had    been    called    up  thtreou 
Calls  to  the  amount  of  £1,206  Ss.      re 
mained   unpaid  on  divers   of  the     said 
shares,  but  it  was  not  expected  that  any 
considerable   sum   would  be      recovers 
frocn  this  source.     The  petitioners  were 
creditors  of  the  company,  and  had  made 
repeated    applications   for   the    amount 
due      to   them,   but    the  compaTiy  had 
neglected  to  pay  or  satisfy     the    same, 
although  they  did  not  dispute     their  in- 
debtedness.       In  August,   1905,  the  in- 
solvent estate  of  James  Garvie  and  Ca 
obtained  judgment  against  the  company 
for  the  sum  of  £281.      A  writ  of  attach- 
ment was   issued,  but  the   amount  was 
still  unpaid.      The  business  of  the  com- 
pany had  been  carried  on  since  its  for- 
mation at   a  loss,    and    was    still  being 
carried  on  at  a  loss,  and  the  sooner  the 
company  was   placed  under   liquidation, 
the  better  it  would  be  for  creoitora  and 
shareholders.       The  company  was     un- 
able to    i>ay  its    debts,   and    the    assets 
were    insufficient    to    provide     for    and 
satisfy  all  its  debts  and     liabilities.     At 
a  general   meeting  of   shareholders,  the 
position    of  the    company   was      so    un- 
satisfactory that  a   committee      of       in- 
vestigation,   consisting    of    Messrs.        J. 
Maynard    Nash,    Harry    Gibson,   C.    H. 
W. '  Fleming,    and  A.    B.    Godbold.  was 
appointed  to  go  into  the  afEairs  of  the 
company,   and   the  result   of  their       in- 
vestigation brought  to  light     serious  ir- 
regularities and  mismanagement.  ^  Hav- 
ing regard  to  the  circumstances,  it  was 
just  and  equitable  that  that      company 
should  be  wound   up  by  the  Court.  ^  It 
was  desirable  that  provisional      liquida- 
tors be  appointed,    and  that   the     com- 
mittee of  investigation   be  appointed   as 
such       liquidators.         The       petitioners 
prayed:   (1)  That  the  said  company  may 
be   wound  up   under   the   provisions   of 
the  Companies   Act   of    1^2,   and    that 
for  such  purpose  all  necessary  and  proper 
directions  may   be  given;   and   (2)   that 
Messrs.    Nash,    Gibson,    Fleming,    and 


"GAPE  TIM£S"  LA.W  BEPOBTS. 


776 


God  bold  be  appointed  proviBional 
liquidators,  or  that  the  Court  would 
grant  such  other  relief  as  may  to  their 
lordshipe  seem  meet. 

The  eupporting  petition  of  the  Gape 
Toiwn  and  District  Gas,  Lig-ht,  and  Goke 
Go.,  stated  that  the  B.S.A.  Co.  had  a 
oontract  with  them  for  the  surplus  tar 
available    at    petitioners'     works.  In 

terms  of  this  contract,  the  Asphalt  Co. 
were  indebted  to  petitioners  for  tar 
enpplied  up  to  the  end  of  August,  1905, 
in  the  sum  of  £276  lis.  lOd.,  to  which 
must  be  added  the  value  of  the  quan- 
tities supplied  during  the  current  month 
of  September.  Petitioners  had  ex- 
perienced difficulty  during  the  last  few 
months  in  getting  the  surplus  tar  re- 
moved, in  terms  of  their  oontract, 
having  their  works  kept  clear  by  the 
Asphalt  Co.  Petitioners  found  on 
inquiry  that  thQ  Asphalt  Co.  were  in 
difficulties,  that  a  judgment  had  been 
obtained  against  the  company  for  debt, 
and  that  the  writ  of  execution  remained 
unsatisfied.  Petitioners  were  also  in- 
formed that  the  affairs  of  the  company 
had  formed  the  eubject  matter  of  in- 
vestigation, and  that  a  report  had  been 
submitted  for  consideration  by  its 
shareholders,  from  which  it  was  clear 
that  the  Asphalt  Go.  was  hopelessly  in- 
solvent. Petitioners  had  learnt  that 
the  firm  of  Stephan  Bros,  and .  others 
were  petitioning  to  have  the  Asphalt 
Co.  liquidated,  and  placed  under  the 
winding-up-clauses  of  the  Companies  Act. 
Petitioners  begged  to  support  such  ap- 
plication for  compulsory  winding  up, 
and  as  it  wsa  evident  that  the  adminis- 
tration of  the  affairs  of  the  company 
by  Andrew  Allen,  the  managing  oirec- 
tor  thereof,  muet  form  the  subject  mat- 
ter of  investigation  bv  the  liquidators 
when  appointed,  it  was  their  opinion 
that  some  person  other  than  Andrew 
AUen    should  be   appointed   as  suoh   li- 

auidaior.  Petitioners  were  informed 
lat  the  said  Andrew  Allen  had  inti- 
mated his  intention  of  applying  to  be 
appointed  one  of  the  ofSoial  liquidators 
of  the  Asphalt  Company,  to  which  peti- 
tioners were  opposed.  Petitioners  were, 
next  to  the  said  Andrew  Allen,  the 
principal  creditors  of  the  Asphalt  Com- 
pany, and  were  apprehensive  that  if 
the  liquidation,  be  not  speedily  decreed 
the  assets  of  the  companv  would  be 
gradually  attached  and  sold  in  execu- 
tion, to  tiie  prejudice  of  the  claims  of 
petitioners  and  others.  Petitioners, 
therefore,  suggested  that  the  four  gen- 
tlemen who  were  men>ber8  of  the  com- 
mittee of  investigation  should  be  ap- 
pointed   official    Ii<iuidator8. 

Mr.  Molteno  for  the  first  petitioners. 
Mr.  Benjamin  for  the  supix>rting  pe- 
titioner:).    R(«p(>iKleut8  in  default. 

Buchanan,  A.C.J..  asked  counsel  whet- 
her it  was  necessary  to  appoint  four 
Uouidaton. 

Mr.  Molteno  i>aid  that  the  committee 
had   presented    a    voluminous      report. 


The  committee  were  appointed  by  the 
shareholders  and  the  parties  interested, 
and  he  thought  it  was  well  that  they 
should  still  be  associated.  He  added 
that  he  thought  the  Court  was  L^ely 
to  hear  more  about  the  matter,  inas- 
much as  very  serious  allegations  were 
mado. 

Buoh&nan,  A.G.J.,  said  that  the  Court 
would  not  go  into  the  report  at  pre- 
sent. A  rule  would  be  granted  calling 
upon  all  persons  to  show  cause  why  the 
company  should  not  be  placed  under 
compulsory  winding  up,  and  why  the 
persons  named  in  the  petition  should 
not  be  appointed  liquidators,  rule  to 
be  returnable  on  the  16th  October,  and 
to  be  published  once  in  the  **  Govern- 
ment Gazette"  and  onoe  in  the  "Cape 
Times." 

Poatea  (September  13). 

Mr.  Alexander  (with  him  Mr.  Water- 
meyer)  moved  to  set  aside  tlio  pro- 
visKMial  liquidation  proooedings. 

Mr.  Alexander  based  hia  application 
upon  a  petition  by  Mr.  Andrew  Allen, 
managing  director  of  the  company, 
which  was  in  the  following  terms: 

1.  That  a  petition  was  presented  in 
the  Chamber-book  by  Stephan  Bros, 
and  others  praying  for  the  winding-up 
of  petitioner  8  company,  and  for  the  ap- 
pointment of  Messrs.  Gibson,  Nasn, 
Fleming,  and  Godbold  as  liquidators 
thereof. 

2.  That  your  lordship  refused  to  deal 
with  such  a  petition  save  in  open  court. 

3.  That  on  the  12th  (yesterday),  the 
petition  was  nresented  in  court,  and  your 
ordahip  made  a  provisional  order  of 
iq^uidation,  and  at  the  same  time     ap- 

f»omted  the  gentlemen  above  named  as 
iquidators. 

4.  That  no  notice  whatsoever  has  been 
given  your  petitioner  or  to  the  company 
or  to  any  of  the  oompan^r's  officials  of 
such  intention  to  so  petition,  and  that 
the  first  intimation  that  any  such  pro- 
ceedings were  contemplated  was  con- 
veyed to  him  through  the  Cause  List 
published  in  the  "  Cape  Times." 

5.  That  your  petitioner  begs  leave  to 
assert  that,  in  his  opinion,  the  said 
order  was  obtained  by  wilful  misrepre- 
sentation. 

6.  That  the  claim  lodged  by  Messrs. 
Stephan  Bros,  has  repeatedly  been  of- 
fered to  them  and  refused  . 

7.  That  the  amount  originally  owing 
to  them  was  £2,0(X),  plus  interest,  and 
that  in  security  thereof  10,000  shares  of 
this  company  oelongpng  to  your  peti- 
tioner were  deposited  with  Stephan 
Bros. 

8.  That  on  14th  January,  1905.  this 
sum  had  been  paid  off  with  the  excep- 
tion of  £258  1(m.,  and  that,  upon  that 
date  and  on  subsequent  dates,  a  cheque 
hereunto  attached,  and  dated  14th  Janu- 
ary, for  the  said  balance,  was  rendered 
to  Stephan  Bros.,  and  that  the  said 
cheque  was  declined,   and  that,   on  or 


776 


«< 


CAl>B  UMBB*'  law  tlBt^OftM. 


about  7th  August,  the  bank,  bb  per 
certificate  on  the  gaid  cheque,  certified 
that  there  were  enough  fundi  available. 

9.  That  petitioner  begs  leave  to  refer 
your  lordship  to  the  letters  of  20th 
June  from  Stepban  Bros. ;  8th  Au^st, 
from  Van  der  Byl  and  De  Villiers; 
and  the  letter  of  l5th  August  from  the 
secretary  of  the  ootnpany  to  the  bank, 
and  other  rela,tive  letters  hereto  attach- 
ed. 

10.  That  the  rea«oo  that  Messrs.  Ste- 
phan  Bros,  declined  to  accept  payment 
was  solely  and  simplv  in  order  to  pre- 
vent your  petitioner  from  voting  on  the 
10.000  shares  referred  to,  and  which 
belonged  to  him. 

11.  That  the  claim  lodged  by  Mr.  E. 
P.  Reilly  on  behalf  of  the  Cape  Town 
and  District  Gas  Light  and  Coke  Com- 
pany is  not  due. 

12.  Thbt  an  action  in  connection 
therewith  was  raised  in  the  R.M.  Court, 
and  the  decision  of  the  Magistrate  was 
that  under  clause  7  of  the  agreement 
between  the  Gas  Company  and  petition- 
er's company,  the  8um  sued  tor  was 
not  due. 

15.  Against  this  judgment  the  Gas 
Company  have  appealed,  but  at  present 
the  Magistrarte's  judgment  stancM,  and 
your  petitioner  would  crave  leave  to  re- 
fer your  lordship  to  the  records  therein. 

14.  On  Aupiat  7,  at  a  meeting  of  cre- 
ditors of  petitioner  s  company,  an  inves- 
tigation Committee,  consisting  of 
Mes.srs.  Gibson,  Nash,  Fleming,  and 
Godbold,  was  appointed  to  investigate 
the  affairs   of  the  company. 

15.  That  the  appointment  is  set  forth 
in  the  minute  book  of  the  comjpany. 

16.  That  at  a  meeting  of  shareholders, 
held  on  Monday,  the  11th  inst.,  the 
committee's  report,  together  with  a  re- 
ply thereto  by  your  petitioner,  oame  up 
tor  discussion. 

17.  That  at  the  outset  of  that  meeting 
Mr.  Attorney  A.  J.  MacCallum  took 
exception  to  the  legality  of  the  whole 
proceedings  in  connection  with  the  ap- 
pointment of  the  committee  subsequent 
to  August  7.  the  date  on  which  a  reso- 
lution was  passed  appointing  the  said 
Committee  of  Inquiry,  and  that  his  ob- 
jection was  noted. 

18.  That  the  grounds  of  objection 
were  that  such  a  committee  is  appointed 
under  section  120  of  the  Companies'  Act. 
1892,  and  that  consequently  a  second 
general  meeting  should  have  been  held 
to  confirm  the  resolutiori  of  the  first 
meeting  in  terms  of  section  110  of  the 
said  Act. 

19.  That  no  such  subsequent  general 
meeting  was  held,  and  that  vour  peti- 
tioner therefore  holds  that  all  iproeeed- 
ings  in  connection  with  the  appointment 
of  this  committee  subsequent  to  August 
7  are  illegal,  and  constitute*  a  direct 
oontravcntlon  of  the  Companies'  Act. 
and  of  the  said  sections  in  particular. 

20.  That  although  Messrs.  Gibson, 
Na£h,  Fleming,  and  Godbold  were  pre- 


sent at  the  iiie«lnig  above  referred  to 
that  none  of  them  gave  any  notice  or 
made  any  reference  whatsoever  to  the 
application  brought  before  the  Court 
yesterday,  although  they  well  knew 
that  steps  were  bemg  taken  thereto,  and 
that  also  with  their  consent  and  on  their 
initiative. 

21.  That  the  report  of  the  Committee 
of  Investigation  was  presented  to  the 
shareholders  at  a  meeting  held  on  Sep- 
tember 7,  and  that  discussion  was  post- 
poned until  a  meeting  on  the  lltb  inst, 
m  order  to  permit  of  my  reply  being 
plaoed   before   the   shareholders. 

22.  That  a  copy  of  said  report  is  at- 
tached to  the  petition  lodged  by  the 
Gas  Company  and  above  referred  to. 

23.  That  your  petitioner  desires  to 
state  that  the  said  report  is  an  absolute, 
wilful,  and  malicious  mis-statement  of 
fact,  a  deliberate  misconstruction  of 
your  petitioner's  intentions,  and  a  gross 
travesty  of  truth. 

24.  That  your  petitioner  in  giving 
evidence  was  tres^ted  in  a  most  unfair 
and  biasB^  manner,  and  that  the  re- 
port issued  is  not  in  accordance  with 
the  evidence  given,  but  rather  to  the 
contrary. 

26.  That  vour  petitioner  has  repeated- 
ly requested  a  copy  of  the  evidence,  but 
that  the  chairman  of  oonunittea  (Mr. 
Nash)  has  declined  to  furnish  him  with 
a  copy  or  to  permit  him  to  examine  the 
original. 

26.  That  at  a  meeting  held  on  7th 
Septenober,  the  directors'  report,  copy 
of  which  is  hereunto  annexed,  was 
passed,  and  in  that  report  the  following 
extract  occurs :  "  It  wiH  be  necessary 
if  this  company  is  to  continue  tradhig 
to  find  adaitional  capital,  and  the 
Board  advises  a  reconstruction  of  the 
oompan^r.  reducing  its  present  capital 
and  inviting  fresh  capital  or  by  the 
issue  of  debentures.  ...  At  the  in- 
stance of  the  chairman,  at  our  la^t 
meeting  a  committee  was  appointed  to 
inquire  into  the  affairs  of  the  company. 
.  .  .  The  directors  wish  it  placed  on  re- 
cord that,  in  their  opinion,  the  com- 
mittee as  constituted  is  not  an  im- 
partial committee,  moreover  their  ae- 
tions  during  the  past  few  weeks  in 
making  public  the  affaire  of  the  company 
...  is  not  calculated  to  be  in  the  best 
interests  of  the  shareholders. .  .  .  The 
directors  regret  having  to  take  up  this 
attitude,  as  they  had  hoped  the  com- 
mittee would  be  an  assistance  to  them, 
instead  of  which  it  has  been  the  oppo- 
site^" 

27.  That  your  petitioner  farther  takes 
exception  to  th^  legality  of  the  repbrt 
on  the  groimd  that  tne  committee,  even 
though  the  appointment  had  been  legal 
(which  iietitioner,  as  indicated  in  section 
19,  denies)  have  exceeded  their  poveri 
in  that  they  have  dealt  with  matters 
other  than  the  financial  aspect  and  ajf- 
fairs  of  the  compsrby. 


"CA1»B  TIMES''  iiAW  tlEtOllTS. 


777 


28.  That  ey«n  altlK>ugh  the  companv, 
•6  your  petitioner  holds,  wa«  thorough- 
ly solvent  at  the  date  of  the  presenta- 
tion of  Stephan  Bros.'  petition  to  the 
Court  for  liquidation,  the  mere  fact  of 
the  publication  of  provisional  liquida- 
tion while  the  oompany  had  no  chance 
of  replying,  renders  its  position  very 
serious  indeed  both  in  regard  to  credi- 
tors and  to  work  in  hand. 

29.  That  in  this  connection  petitioner 
begs  leave  to  produce  a  telegram  from 
Johannesburg  stating  that  certain  works 
there  are  about  to  be  stopped. 

30.  That  your  petitioner,  in  common 
with  the  other  directors  and  with  the 
shareholders  named  in  the  accompanying 
affidavit,  and  with  certain  creditors, 
verily  believe  that  the  appointment  of 
Messrs.  Gibson,  Nash,  Fleming,  and 
Godbold  aa  liquidators  is  to  the  greatest 
disadvantage  of  the  creditors,  share- 
holders, and  the  business  of  the  com- 
pany alike. 

31.  That  vour  petitioner  represents  by 
far  the  largest  creditors,  viz.,  the 
Neuchatel  AsphaJt  Co.,  Ltd.,  who  are 
creditors  to  the  extent  of  about  £4,000, 
and  that  petitioner  is  also  a  personal 
creditor  to  the  extent  of  over  £600. 

32.  That  your  petitioner  eniphatioally 
denies  the  assertion  in  the  Gas  Com- 
pany's petition  to  the  effect  that  he 
inteinds  to  ^pply  to  be  appointed  joint> 
Hauidator. 

d3.  That  the  oompany  is  solvent  and 
that  the  report  of  the  committee  (if  held 
legal)  does  not  show  anything  to  the 
contrary. 

34.  That  if  your  lordship  does  not  see 
fit  to  rescind  the  order  of  provisionaf 
liquidation,  then  your  petitioner  humbly 
•uggeets  that  four  liquidaton  is  an 
uttiu'ly  unnecessary  and  needless  ex- 
pense. 

35.  That  in  connection  with  the  ap- 
pointment of  Mr.  Nauh,  your  petitioner 
desires  to  point  out  that  Mr.  Nash  was 
the  auditor  of  the  company,  and  that 
to  appoint  him  as  a  liquidator  would 
be  a  most  unusual  |>rooeeding. 

36.  That  your  petitioner  begs  leave 
to  represent  to  your  lordship  that  in  the 
event  of  provisional  liquidation  still  be- 
ing upheld  by  your  lordsliip,  the  ap- 
poutment  of  Messrs.  J.  M.  P.  Muir- 
bead  and  Mr.  Gerald  Orpen^  of  £.  R. 
Syfret  and  Co.,  as  joint  official  liquida- 
tors, would  be  in  the  interests  of  the 
company  and  of  all  ooncernod,  they  be- 
ing impartial  men. 

57.  Tha*  your  petitioner  desires  to  re- 
fer the  Court  to  the  report  by  Mr.  W. 
A.  Palliser,  the  manager  of  the  com- 
pany's branch  in  Johannesburg,  which 
report  is  in  ihe  form  of  a  letter  dated 
31st  AugiKt,  1906,  and  to  which  is  sub- 
joined a  copy  of  his  former  report  dated 
May  29,  1905,  which  is  lodged  herewith, 
ana  especially  to  the  statements  regard- 
ing the  noanaging  director  contained  on 
res  2  and  3  of  the  said  letter-report. 
[ay  it  therefore  please  your  lordship 


m. 


to   make  an   order  to  one  or  other  or 
all  of  the  following  effects,   viz. : 

1.  For  an  order  setting  aside  the  whole 
actions  of  the  Investigation  Committee 
and  all  matters  and  actions  relative 
thereto,  subsequent  to  the  date  of  ap- 
pointment (7th  August). 

2.  For  an  order  that  the  said  com- 
mittee have  acted  illegally,  and,  ultra 
viren,  in  discussing  in  their  report  mat 
tere  other  than  tne  financial  affairs  of 
the    company, 

3.  That  the  order  appointing  Messrs. 
Gibson,  Nash,  Fleming  and  Godbold 
to  be  provisional  liquidators,  and  direct- 
ing that  the  company  be  placed  in  pro- 
visional liquidation,  should  be  set  aside 
ill  so  far  as  concerns  the  appointment 
of  the  liquidators,  and  that  Messrs. 
Muirhead  and  Orpen  be  appointed  liqui- 
dators  in  their  place. 

4.  That  the  order  be  held  over  and 
not  permitted  to  take  effect  until  such 
date  within  one  nionth  from  the  date 
hereof,  as  a  meeting  of  shareholders 
shall  have  discussed  and  come  to  a  de- 
cision upon  the  question  of  the  recon- 
struction or  Liquidation  of  the  oompany. 

[Buchanan,  A.  C.  J.  (to  Mr.  Alex- 
ander) :  Have  you  given  notice  to  the 
other  side?] 

Mr.  Alexander:  No,  my  lord.  Yes- 
terday's application  by  the  creditors  was 
ex  parte,  and  this  also  da  ex  varte.  We 
are  anticipating  tihe  return  day  of  the 
order  granted   yesterday. 

[Buchanan,  A.  C.  J. :  I  can  bear 
your  application  if  it  is  a  matter  of 
urgency,  but  I  don't  see  how  I  can  give 
anv  order  without  notice  to  the  other 
9ide.] 

Mr.  Alexander  read  the  petition  of 
Mr.  Allen,  and  said  that  in  the  present 
state  of  aiffairs  very  serious  injury  was 
being  done  to   the   company. 

[Buchanan,  A.  C.  J.:  If  y;ou  had 
given  notice  to  the  other  side,  you 
might  have  anticipated  the  return  day.] 

Mr.  Alexander:  There  was  no  time. 
The  company  is  now  hung  up  ooii4>lete- 
ly.  In  the  petition  of  my  client  two 
independent  persons  are  suggested  as  li- 
quidators. 

[Buchanan,  A.  C.  J. :  There  are  two 
men  appointed  already  in  whom  the 
Court  has  every  confidence.] 

Mr.  Alexander  said  that  he  had  to 
sugjf^est  the  names  of  Mr.  J.  M.  P. 
Muirhead  and  Mr.  Orpen,  of  Messrs.  E. 
R  Syfret  and  Co.,  both  of  whom  were 
competent  men,  who  had  had  nothing 
to  do  with  the  matter  previously.  The 
petition  set  out  that  the  petitioner 
would  be  very  much  prejudiced  by  the 
fact  that  the  provisional  liquidators  who 
had  been  app.ointed  had  presented  a 
certain  report,  which  took  up  a  certain 
view  in  regard   to  the  petitioner. 

[Buchanan,  A.  C.  J. :  They  won't  pre- 
sent any  report  until  the  rule  nui  has 
been    confirmed.] 

Mr.  Alexander :  I  was  referring  to  the 
zeport     mentioned     yesterday.      They 


778 


II 


CAt>B  TIMES"  LAW  kEt»0ttT8. 


make  vory  aerious  allegatJODB  against 
the  preeent  petitioner,  and  Burelj  they 
fihould  not  be  the  m^n  to  have  in  hand 
the  winding  up  of  this  estate  until  those 
matters  have  oeen  investigated.  They 
have  presented  this  report,  and  they 
want  to  have  the  sole  management  of 
the  company. 

[Buchanan,  A.  C.  J. :  Those  may  be 
very  good  arguments,  but  no  notice  has 
been  given  of  the  application,  anu  the 
Court  oaamot  proceed  to  go  into  the 
matter  now.] 

Mr.  Alexander:  I  don't  know  whe- 
ther there  will  be  any  opportunity  of 
hearing  this  matter  before  the  return 
day? 

[Buchanan,  A.  C.  J. :  The  CJourt  will 
be  sitting  before  noxt  term.  Nothing 
can  be  done  on  this  application  until 
notice  has  been  given.  I  do  nob  want 
to  go  'into  the  merits  of  the  petition 
unnecessarily.] 

Mr.  Alexander:  Can  your  lordship 
suggest  any  day  when  you  will  bo  pre- 
pared to  hear  the  application? 

[Buchanan,  A.  C  J.:  The  Court  will 
be  sitting  as  soon  as  the  Criminal  Ses- 
sions   are  over.] 

Ex  parte  NASH,   OIBSON   and   others. 
In   re    btephan    buos.    v,    b.8.a.  as- 
phalt CO. 

Suli6equently  Mr.  Molteiio  appeared, 
and  moved  on  the  petition  of  Messrs. 
Nash,  Gil)son.  Godbolt,  and  Flem- 
ing, the  provisional  liquidators,  for  the 
committal  of  Mr.  Andrew  Allen,  the 
managing  director,  and  Mr.  Charles 
Gibbs,  the  secretary  of  the  company,  for 
contempt  of  Court.  ■  The  petitioners 
stated  that  on  Tuesday,  when  their  legal 
representative  went  to  the  office  of  the 
company,  after  the  order  given  by  tlie 
Court,  the  secretary  refused  to  recognise 
liquidators.  Their  representative  was 
threatened  with  forcible  ejection.  Gibbs 
said  that  ho  could  do  nothing  without 
consulting  Mr.  Andrew  Allen,  the 
managing  director.  One  of  the  peti- 
tioners (Mr.  Nash)  subsequently  went 
to  the  office,  and  found  only  a  lady 
typist  and  a  small  boy  there,  neither  of 
whom  had  any  knowledge  of  the  where- 
abouts of  Gibbs  or  any  official  of  the 
company.  Later  Gibbs  appeared,  and 
when  requested  to  wait  for  petitioners, 
he  said  that  he  was  going  to  be  back, 
and,  as  a  matter  of  fact,  he  disappeared, 
and  had  not  sinoe  been  seen,  although 
he  resided  on  the  premises.  It  had 
been  found  that  one  safe  had  been  re- 
moved bodily  from  the  office,  the  main 
safe  had  been  opened,  books  and  other 
documents  of  the  company  removed, 
and  the  drawers  and  files  oif  the  office 
ransacked.  The  taking  away  of  these 
books  and  papers  was  done  on  Tuesday 
ni&rht,  or,  at  all  evente,  since  the  order 
of  the  Court  was  granted.  Petitioners 
verily  believed  that  Gibbs  and  Allen 
were  in  collusion,  and  that  it  had  been 
arranged  between  them  that  the  office 


should  not  be  banded  over  to  the  liaui- 
dators.  Petitioners  further  said  we/ 
had  ascertained  that  Allen  had  sold  his 
landed  property  about  three  weeks  ago. 
and  they  were  afraid  that  he  was  about 
to  leave  the  country.  They  prayed  for 
an  order  for  the  arrest  of  the  said 
Andrew  Allen  and  Charles  Gibbs,  and 
their  committal  for  contempt  of  Court. 
Mr.  Molteno  also  read  an  affidavit  by 
Harry  George  Davies,  who  said  that, 
until  the  month  of  August,  he  was 
secretary  of  the  company.  Latterly,  he 
had  noticed  large  quantities  of  steel 
ceilings  being  removed  from  the  store 
of  the  company,  far  in  excess  of  any 
orders  placed  with  the  company.  He 
noticed  a  load  being  removed  as  late  as 
four  p.m.  on  Tuesday.  Counsel  added 
that  ne  was  not  aware  whether  his 
lordship  had  read  the  report  of  tlic  com- 
mittee of  investigation. 
[Buchanan,  A.  C.  J.,  eaad  he  had  not.] 
Mr.  Molteno:  It  is  a  most  damaging 
report. 

j^uchanan,  A.  C.  J. :  Then  there  is  no 
wonder  that  Allen  objects.  Still,  he  is 
not  entitled  to  remove  the  property  of 
the  company.  A  rule  nisi  will  be 
granted,  operating  as  an  interim  inter- 
dict, restraining  respondents  Gibbs  and 
Allen  from  removing  any  papers  or 
property  of  the  company  from  their  pre- 
mises, and  the  8iiori£f  is  authorised  to 
follow  up  any  goods  removed  since  the 
order  of  liquidation  was  granted,  re- 
spondents to  h^how  cause  on  the  11th 
October  why  they  should  not  be  com- 
mitted for  contempt. 

Poaten   (October  17th.) 

Mr.  Alexander  said  that  tlie  petition- 
ers, whom  ho  represented,  wo  'onger 
asked  that  the  sequestration  o;  ilic  com- 
pany be  stayed,  but  thev  us!;cd  thnt  the 
provisional  liquidators  Be  e.iioved  pnd 
others  bo  appointed.  With  reference  to 
the  temporary  interdict  which  uh.  1  ber n 
granted  against  Allen  and  Gibbs,  on 
the  application  of  the  provisional  liqui- 
dators, he  supposed  now  that  notliing 
further  would  be  heard  about  that,  ts 
the  provisional  liquidators  had  full  ac- 
cess to  the  books  and  other  documents 
of   the  company. 

Mr.  Molteno  read  the  original  peti- 
tion of  the  Stephan  Brothers,  u{ion 
which  the  company  was  placed  under 
provisional  sequestration. 

Mr.  Benjamin  read  the  supporting 
petition  put  in  by  the  Cape  Town  Gas 
Coke,  and  Light  Co.  Counsel  was  pro- 
i:)osing  to  read  the  report  of  the  com- 
mittee  of    investigation    when 

Mr.  Alexander  interposed  and  con- 
tended that  the  Court  should  first  hoar 
the  petitions. 

Mr.  Molteno  said  that  the  report  ccn- 
tainod  very  si'riou.s  allogation.s  it.  regard 
t.i  the  conduct  of  the  man.i.{ing  direc- 
tor, and  it  wa.s  important  that  the 
C'ourt  should  be  put  in  possession  of 
the  facts. 


"CAPE  TIMES"  LAW  REPORTS. 


779 


Mr.  Molteno  said  that  the  other  side 
had  now  withdrawn  from  the  position 
they  originally  took  up,  and  were  pre- 
pared to  admit  that  the  liquidation  must 
go  on.  Their  opposition  was  to  tiie  ap- 
pointment of  the  provisional  liquidators 
as  the  official  liquidators  of  the  com- 
pany, so  that,  in  so  far  as  the  liquida- 
tion was  concerned,  the  sole  point  now 
^^s  as  to  who  should  be  appointed 
official  liquidators. 

.Mr.  Alexander  denied  that  they  had 
withdrawn  from  their  position,  but 
pointed  out  that,  seeing  that  liquida- 
tion had  been  forced  upon  them,  it  was 
impossible  now  to  get  away  from  it. 
The  most  serious  charges  were  made  in 
the  report  against  the  managing  director 
and  other  members  of  the  company  by 
the  very  persons  whom  it  was  now  pro- 
posed  to   appoint  as  liquidators. 

Buchanan,  A.  C.  J.,  aaked  Mr.  Alex- 
ander what  value  of  the  shares  he  repre- 
sented. 

Mr.  Alexander  said  that  they  had  a 
petition  signed  by  thirty-four  sharehold- 
ers, representing  16,195  shares. 
•  ^^^'■-  '^Ij^Hcno :  The  man  whose  conduct 
n  called  into  question  represents  the 
bulk  of  the  shares.  It  was  a  one-man 
company. 

Mr.  Alexander,  replying  to  the  Court, 
said    that   the  totaj   shares  of   the  com 
pany   numbered  36,517,  of  which   12,600 
wcro  held    by  Allen,   though  there  was 
soiiio  dispute  as  to  his  actual  holding. 

Mr.  Molteno  said  that  his  learned 
friend  (Mr.  Benjamin)  and  himself  re- 
piesented  practically  the  whole  of  the 
creditors  of  the  company.  They  had 
got  the  unanimous  support  of  the  share- 
holders at  the  half-yearly  meeting.  They 
represented  now  in  the  last  few  days 
the  Ncuchatel  Co.,  which  was  the  largest 
creditor,  for  £4,000.  The  companv  v  ere 
originally  represented  by  Allen,  but  .hey 
had  since  withdrawn  their  power  from 
Allen  and  appointed  Messrs.  Tredgold, 
Mclntyre  and  Bisset  as  their  legal  re- 
presentatives here.  Mr.  Molteno  ad- 
ded that  his  clients  represented  nine- 
tenths  of  the  creditors. 

ii?^^\ir4^*^*^"^*^'-  ^y  learned  friend 
(Mr.  Molteno)  represents  four  creditors, 
and  we  represent  seven.  We  represent 
£4.150. 

Mr.  Molteno:  That  includes  the 
Xcuchatel    Co.? 

}  r  Alexander:  Quite  so;  we  have 
their  power  of  attorney.  Counsel, 
in  answer  to  the  Court,  said  that  the 
total  liabilities,  he  understood,  were 
£6,100,  and  the  petition  he  was  now- 
putting  in  was  uigncH  by  seven  credi- 
tors, representing  £6,450  lU.  Id.  There 
were  no  shareholders  supporting  the 
application  on  the  other  side. 

IBuchanan,  A.  C.  J.:  If  there  is  likely 
to  be  a  close  contest,  I  will  order  a  poll 
to  he.  taken  of  the  shareholders  and  crc- 
tlitorjs.] 

Mr.  Molt<eno  reminded  his  lordship 
that  this  was  not  a  voluntary  windin"^- 
up,    and  thai  an  allegation   waa  made 


that    mo8.t    fraudulent  proceedings   had 
been    carried  on. 

[Buchanan,  A.  C.  J.:  We  want  to 
know  whom  the  persons  interested  wish 
to  have  appointed  liquidators.] 

Mr.  Molteno:  Practically  this  ie  a 
one-man  company,  and  naturally  that 
one  man  is  anxious  that  this  inquiry 
should  not  go  through.  He  originallv 
joined  with  these  four  gentlemen,  who 
investigated    the  company's    affains. 

Buchanan,,  A.  C.  J.,  intimated  that 
the  reading  of  the  petitions,  and  the  re- 
port ahould  be  proceeded  with. 

Mr.  Benjamin  went  on  to  read  the 
report  of  the  committee  of  investiga- 
tion.     The  re|)ort  stated: 

iu'^^"^  ^'"P^^<^^  was  appointed  by 
the  shareholders  in  general  meeting 
assembled  on  Monday,  August  7,  1906, 
lor  the  purpose  of  investigating  the 
past  aflfairs  of  the  company,  including 
the  formation  and  general  adniinif»tra- 
tion  of  the  business  since  that  event. 
1  he  resolution  appointing  them,  also 
provided  that  the  committee  should 
act  m  a  consultative  capacity,  should 
the   Board  of  Directors  desire   it. 

As  far  as  the  time  at  our  disposal 
haa  allowed,  we  have  gone  carefully 
into  the  various  oircumstanceii  suh- 
mitted  to  us  with  reference  to  the  for 
matioii  of  the  company.  For  this  pur- 
pose  we  have  examined  the  managing 
directors  and  such  other  directors  as 
were  available,  past  and  present;  the 
late  secretary  (Mr.  Davies)  and  the  pre- 
sent acting  secretary  (Mr.  Gibbs),  had 
gone  carefully  into  such  books  and  re- 
cords  as   were   thought   necessary. 

We  think  it  only  our  duty  to  place 
on  record  the  obvious  reluctance  on 
the  part  of  Mr.  Andrew  Allen,  the 
managing  director  of  the  company,  to 
furnisn  the  committee  with  informa- 
tion, and  the  want  of  candour  which 
marked  his  answers  to  many  questions. 
He  distinctly  stated  that  he  was  unable 
to  produce  the  books  or  balance-eheets 
of  nis  business  prior  to  the  flotation, 
and  that  one  of  the  latter  had  been 
stolen  from  the  office,  when  he  must 
have  known,  or  oould  easily  have  as- 
oertained  that  those  books  which  con- 
tained materials  for  reconstructing  all 
but  one  of  the  balance-sheets  were  in 
the  company's  office,  and  in  fact  in  one 
instance  had  been  continued  as  a  re- 
cord of  the  traiii&actions  of  the  present 
concern.  On  more  than  one  point  his 
statements  were  of  a  contradictory  na- 
ture, but  we  have,  fortunately,  been 
able  to  ascertain  the  facts  from  other 
.sources. 

It  is  a  matter  for  regret  that  the 
general  nature  of  our  rejwrt  cannot 
be  more  satisfactory,  but  it  may  clear 
the  ground  to  «tate  at  the  outset  that 
the  very  inception  o{  the  concern  ap- 
pears to  hav<'  been  somewhat  dubious, 
whilst  the  subsequent  ,  adniinirj>tration 
has  been   distinctly  oj>en  to  question. 

In  later  portions  of  this  report  allu- 
sioDB  will  be  made  to  the  yarioua  pointa 


780 


ff 


CAi>E  TIMES"  LAW  BE^OttTS. 


in  further  detail,  but  we  cannot  omit  to 
aay  that  our  investigation  indicates  that 
the  general  management  of  the  com- 
pany WM  very  defective,  and  showed  a 
want  of  business  ability  and  effective 
control  of  the  company's  operations  on 
the  part  of  the  managing  director,  who 
was,  it  must  be  remembered,  the  vendor 
and  promoter. 

From  the  v^ry  commencement  there 
does  not  seem  to  have  been  any  system 
by  which  the  Board  really  controlled 
the  affairs  of  the  company,  the  man- 
agement of  which  would  seem  to  have 
been  left  almost  entirely  in  the  hands 
of  the  managing  director,  Mr.  Andrew 
Allen,  who  mainly  devoted  his  time 
to  inspecting  the  works  at  NVoodstock, 
preparing  tenders,  and  canvassing.  The 
secretary  opened  and  answered  corre- 
spondence and  a  great  portion  of  the 
details  of  working  the  concern  seems 
to  have  devolved  on  \um. 

There  was  apparently  no  oo-ordination 
between  the  town  office  and  the  works 
at  Woodstock,  which  latter  were  in 
charge  of  Mr.  Allen's  brother.  The 
directors  seem  to  have  had  little  or  no 
knowledge  of  what  was  really  going 
on,  and  the  difficulties  at  one  time  in 
this  direction  seem  to  have  been  so 
great  that  two  of  the  Board  (Mr.  Amos 
Bailey  and  Mr.  Alfred  Mathew)  re- 
signed. We  only  regret  that  at  the 
time  these  gentlemen  took  that  stop 
they  did  not  think  it  adv^isable  to  state 
publicljr.  or  place  on  record  in  some 
emphatic  forrn,  the  reasons  which  actu- 
ated their  decision.  Perhaps,  however, 
the  most  serious  matter  in  this  con- 
nection was  the  fact  that,  whilst  the 
managing  director  was  at  any  rate  more 
or  less  in  contact  with  the  Board,  the 
branch  managers  at  Durban  and  Jo- 
hannesburg, who  were  not  so  placed, 
held  larger  powers  than  were  possessed 
by  the  managing  director,  from  whom 
they   received  their   instructions. 

Mr.  Allen,  in  the  earlier  srtages  of  the 
company's  history,  was  authorised  to 
accept  contracts  to  the  extent  of  £300, 
without  reference  to  the  Board.  This 
limit  was  subsequently  raised  to  £1,000. 
On  the  other  hand,  however,  the  branch 
managers  have  had,  it  is  stated,  no 
limit  placed  upon  their  powers.  They 
seem,  on  Mr.  Allen's  own  admission,  to 
have  sent  in  tenders  for  work  without 
reference  to  the  head  office,  and  to 
have  been^  in  a  position,  as  Mr.  Allen 
admitted  in  his  evidence,  to  commit 
the  company  to  an  unlimited  extent — 
at  any  rate  Mr.  Allen  said  there  was 
nothing  to  prevent  them  from  bindiiig 
the  company  to  the  extent  of  half  a 
million  sterling. 

It  is  hardly  necessary  for  us  to  dilate 
upon  the  disastrous  effects  of  this  policy. 
They  are  only  too  well  known  to  the 
shareholders;  firet,  in  the  difficulty 
which  has  been  experienced  in  getting 
returns  from  the  two  branches,  as  al- 
ready reported  by  the  auditors,  and 
also  in   the   very  serious   loued  at  the 


branches,  which  have  already  been  re- 
ported. The  position  may,  perhaps, 
be  put  shortly,  by  saying  tnat  the 
policy  of  the  company  has,  to  a  large 
ext<'nt,  been  practically  shaped  and 
forced  by  the  actions  of  the  branch 
managers,  instead  of  these  gentlemen 
acting  as  subordinates  to  the  head  office 
of  the  company. 

When  the  draft  of  the  report  had 
been  practically  completed,  we  received 
from  Mr.  W.  A.  Palliser,  the  Johan- 
nesburg manager,  a  copy  of  a  report  he 
sent  to  the  Board  on  May  29  last,  when 
he  took  up  his  duties  on  the  Rand.  The 
report  contains  much  useful  informa- 
tion, and  confirms  the  opinions  already 
expressed  as  to  the  want  of  effective 
control  and  management  of  the  con- 
cern from  Cape  'lown.  It  also  con- 
tains recommendations  of  undoubted 
value,  but  the  means  of  carrying  tha)t 
out  were  wanting,  and  Mr.  Palliser  did 
not  write  as  if  he  were  aware  of  the 
company's  financial  position.  His  rc- 
ix>rt  was  brought  to  Cape  Town  bv  Mr. 
Palliser,  and  discussed  at  a  Board 
meeting,  which  he  attended,  but  the 
directors  could  not  ^ee  their  way  to 
entertain  his  proposals,  owing  to  lack 
of  funds. 

During  the  last  few  months  it  is 
quite  evident  that  friction  has  resulted 
not  only  at  the  Board  table,  but  between 
the  managing  director  and  the  secre- 
tarjr,  placing  the  latter  official  in  a 
distinctly  disadvan>tageous  position, 
and  rendering  efficient  working  of  the 
affairs  of  the  company  well-nigh  im- 
possible. 

The  Board  of  Directors,  bv  resigna- 
tion and  absence,  was  reduced  to  a  bare 
cjuorum.  and  under  such  circumstances, 
it  is  no  wonder  that  the  affairs  of  the 
company  drifted  from  bad  to  worse. 

A  good  deal  might  be  written  on  the 
past  history  of  tne  company,  but  we 
think  it  unnecessary  at  the  present  junc- 
ture to  enter  into  elaborate  details, 
and  have  contented  ourselves  with  notic- 
ing various  matters  which  have  come 
to  our  knowledge,  and  which  we  pro- 
pose grouping  under  suitable  heads  for 
convenience  of  reference. 

The  committee  went  on  to  review  the 
formation  of  the  company  and  to  criti- 
cise the  prospectus.  The  assets  of  the 
company  were  referred  to  at  length, 
as  well  as  its  relations  with  the  ^Neu- 
chatel    Co. 

Dealing  with  the  works  management 
and  contracts,  the  committee  made  the 
following    observations : 

The  works  at  Woodstock  are  under 
the  management  of  Mr.  Alexander 
Allen,  a  brother  oi  the  managing  direc- 
tor. He  does  not  appear  to  nave  been 
in  any  way  controlled  by  the  Board, 
who  left  such  details  in  the  hands  of 
Mr.  Andrew  Allen,  apparently  because 
he  had  such  a  large  holding  in  the  com- 
pany. No  proper  costing  books,  such  as 
would  have  enabled  the  managing  di- 
rector at  any  time  to  know  if  any  ooa- 


it 


CA^K  likES"  LaW  ttEtOfeTS. 


>8l 


tract  was  being  catried  on  at  a  profit 
or  a  k»a,  were  Icept,  oor  waa  there  any 
eyvtem  which  enabled  anyone  to  find 
oat  whether  the  bu^ine«e  wae  paying. 

Stock-taking  was  done  in  a  moet  care- 
less manner,  and  in  preparing  the  stock 
stieets  for  the  annual  balance-sheets  the 
stock  was  brought  up,  not  at  cost  price, 
but  at  a  figure  which  in  some  cased 
anticipated  a  profit.  The  stock  sheet6 
presented  at  I>ecember  31.  1904,  were 
treated  in  this  manner,  ana  the  inflated 
values  correspondingly  affected  the  pro- 
fit and  loss  account.  These  returns 
were  certified  by  the  secretary,  Mr. 
Davies,  and  it  is  noteworthy  that  the 
managing  director  has,  during  this  in- 
quiry, claimed  that  the  stock  had  been 
undervalued.  We  are  unable,  on  the 
evidence  before  us,  to  sustain  his  con- 
tention, anci  prefer  the  figures  adopted 
by  Mr.  navies,  though  even  they  are 
apparently  in  some  cases  too  high'.  The 
contracts  for  work  to  be  executed  made 
by  the  managing  director  were  seldom 
brought  before  the  Board,  nor  does 
their  authority  or  advice  in  such  matters 
appear  to  have  been  sought.  Mr.  Allen 
prepared  the  contracts  and  fixed  the 
rates,  so  that  the  details  of  the  business 
were  only  known  to  himself.  In  his 
absence  Mr.  Davies,  the  secretary,  would 
|/erhaps  quote  for  small  contracts,  and, 
if  accepted,  put  the  work  in  hand. 

As  an  instance  of  the  manner  in 
which  Mr.  Allen  ignored  the  Board,  it 
may  be  mentioned  that,  since  the  ap- 
pointment of  this  committee,  Mr.  Allen, 
without  consulting  his  brother  directors, 
tendered  to  the  Cape  Town  Corpora- 
tion for  a  contract  amounting  to 
i;60.000,  or  about  twice  the  paid-up 
capital  of  the  company.  He  does  not 
appear  to  have  thought  it  necessary 
to  make  any  special  financial  arrange- 
ments for  providing  materials  for  carry- 
ing this  work  to  completion  in  the  event 
of  that  tender  being  accepted,  at  least 
none  have  been  disclosed  to  us,  though 
the  point  was  brought  to  his  notice. 

There  does  not  appear  to  be  any  con- 
siderable work  in  hand  at  Cape  TowU; 
where  for  some  time  pai»t  the  turnover 
has  been  of  no  great  magnitude.  At 
«>ohannei^urg,  Mr.  Allen  states,  the 
contracts  with  the  municipality  for  fair 
sums  are  still  running,  and  he  describes 
them  as  being  profitable,  but  there  has 
been  insufficient  time  to  procure  any 
reliable  data.  From  a  letter  addressed 
to  us  by  the  manager  at  Johstnnesburg, 
dated  August  31,  1905.  it  seems  more 
than  likely  that  the  Durban  branch  .'s 
at  present  handicapped  in  many  ways 
and  an^  profit  from  that  source  is  pro- 
blematical. 

The  committee  in  conclusion  said: 

On  the  facts  reported,  shareholders 
will,  not  un reasonably,  accept  some  tc- 
commendations  for  tneir  future  protec- 
tion. They  have  a  valuable  asset  in 
the  tar  contract  with  the  Gas  Company. 
proTided    ita    terms    oan   be    oomplied 


with,  abd  the  Agency  of  the^  Neuchatel 
Company  shoula  under  ordinary  con- 
ditions be  a  source  of  considerable 
revenue. 

We  should  have  liked  to  recommeni 
a  reconstruction  of  the  concern ;  clos- 
ing the  bi*anohes  at  Durban  and  Jo 
hannesburg,  and  writing  off  the  capital 
list  of  those  points;  writing  down  thr* 
value  of  machinery,  patents,  and  good- 
will in  the  sanie  manner:  providing  ji 
moderate  working  capital  for  the  de- 
velopment of  the  works  here,  and,  la;^:- 
ly,  a  reorganisation  of  the  manage- 
ment. 

In  face  of  the  fact  that  a  judgment 
has  already  been  obtained  by  one  cre- 
ditor at  whose  instance  certain  assets 
at  Woodstock  have  been  attached,  and 
that  the  totai  claims  on  the  concern, 
according  to  the  books  at  June  30  last, 
were  £6,917  17s.  6d.,  we  feel  it  is  ho^^e- 
less  to  attempt  te  carry  on  the  busi- 
ness, and  there  seems  no  course  open 
but  liquidation,  when  the  shareholders 
are  not  likely  to  see  any  return,  and 
we  very  much  doubt  whether  creditofs 
will  secure  more  than  a  fraction  of 
their  claims.  We  feel  bound,  however, 
to  notice  the  fact  that  the  Neuchatel 
Company  is  apparently  the  largest  cre- 
ditor with  a  claim  of  £3,824,  and  they 
are  represented  by  Mr.  Allen,  whose 
action  in  renewing  the  agreement  in 
his  own  name  has  already  been  men- 
tioned. In  terms  of  the  articles  of 
association,  this  company  is  only  in- 
terested in  the  agreement  so  long  as 
Mr.  Allen  is  managing  director  of  th? 
company. 

The  committee  have  been  put  to  cer^ 
tain  out-of-pocket  expenses  for  shorthand 
notes  of  evidence,  typing,  etc.,  amount- 
ing to  twenty  guineas,  and  they  re- 
quest that  payment  thereof  may  be 
authorised  by  this  meeting,  subject  to 
production  of  vouchers  therefor. 

Mr.  Alexander  read  a  replying  affida- 
vit filed  by  Mr.  Allen  the  day  after  an 
order  for  the  provisional  liquidation  of 
the  company  was  granted. 

Mr.  Alexander  was  about  to  read  the 
reply  made  by  Mr.  Allen  to  the  report 
of  the  committee  of  investigdcion  vhcn 

Mr.  Molteno  objected,  as  no  notice  of 
the   reply   had   been   given   to   him. 

Mr.  Alexander  contended  tha*;  as  the 
Court  had  considered  the  •  3iiOrt,  tnat 
they  ought  to  be  allowed  to  read  the 
reply. 

Buchanan,  A.C.J. ,  said  that  it  was  only 
fair  that  if  one  was  made  rul.lie  tj'e 
other  should  also  have  publicity.  .Mr. 
Molteno  said  he  had  no  ;l>je:;t'Mn  to 
having  anything  put  in  that  would  as- 
sist  the  Court 

He  did  not  wish  the  report  to  have 
been  read  beyond  that  he  thought  it 
might  have  a  bearing  on  the  appoint- 
ment of  iliquidators,  as  the  report  had 
been  read  he  thouo-ht  the  Court  should 
hear  the  reply. 

Mr.  Alexander  then  proceeded  to  read 
ithe  "notes"    of  Mr.  Allen's  reply  to 


782 


"CAt'E  TIMES"  LAW  REPORTS. 


Ibe  statements  in  the  oommitteo's  report. 
The  following  extracts  will  be  of  inter- 
eat: 

1.  Tho  statement  in  the  opening  clause 
is  entirely  wrong.  Tho  exact  wording 
of  the  resolution  which  was  carried  is 
as  follows,  viz. :  "  Mr.  Godbold  moved 
that  a  committee  of  inquiry  be  formed 
consisting  of  Messrs.  Nash,  Gibson,  and 
Fleming  on  behalf  of  the  shareholders, 
and  to  bring  forward  at  a  future  meet- 
ing a  statement  of  the  affairs  of  the 
companv."  I  hold  that  the  committee 
should  have  confined  themselves  to  the 
financial  aspects. 

2.  I  have  to  state  that  their  examina- 
tion of  myself  was  conducted  in  a  most 
arbitrary  and  one-sided  manner,  and 
did  not  convev  to  my  mind  the  feeling 
that  impartiality  existed  among  the 
members  of  the  committee  in  reference 
to  myself.  It  appeared  to  me  that  the 
committee  had  already  made  up  their 
minds  before  they  had  started  to  ex- 
amine mo,  and  knowing  as  I  did  that 
Mr.  Gibson  was  employed  by  Stephan 
Brothers  and  that  Mr.  Fleming  was 
also  connected  with  Stephan  Brothers, 
and  knowing  also  that  Mr.  Miller  was 
Stephan's  manager,  Stephan  himself,  of 
course,  being  a  director  of  the  B.S.A. 
Asphalto  Manufacturing  Co.,  Ltd.,  and 
taking  into  account  the  repeated  dis- 
agreements between  himself  and  me,  I 
foit  that,  taking  all  these  circumstances 
into  consideration,  I  could  hardly  ex- 
pect an  impartial  report  from  such  a 
ccmraittee.  The  terms  of  this  report 
have  justified  my  feeling.  Upon  the 
appointment  of  this  committee  I  made 
efforts  to  get  men  appointed  upon 
whom  we  could  depend  lor  an  impartial 
report,  and  men  who  had  some  interest 
in  the  com^an^  other  than  that  of  being 
possible  liquidators.  Unfortunately, 
this  was  not  so,  and  when  wo  look 
and  examine  closely  into  the  personnel 
of  the  committee  we  find  that  not  one 
member  of  this  committee  holds  a  single 
share  of  the  company  in  his  own  right. 

3.  I  deny  the  statement  that  I  was 
reluctant  to  give  information.  On  every 
possible  occasion  I  gave  every  possible 
assistance.  The  committee  accuse  me  of 
want  of  candour,  but  I  have  onlv  to 
sav  that  so  far  as  the  committee  them- 
selves are  concerned,  a  spirit  of  antagon- 
ism was  exhibited  to  me  during  the 
whole  course  of  the  examination.  I  was 
unable  to  produce  on  the  moment  the 
balance-street  and  books  used  by  inc 
prior  to  the  flotation  for  the  simple 
reason  that  tho  balance-sheets  had  to  be 
obtained  from  E.  R.  Syfret  and  Ck). 
I*;  is  an  absolute  fact  that  tho  balance- 
sheets    were    removed    from    the     ofTico 

>rior   to  the   flotation,   but  by  whom    I 

lavo  never  discovero<l.     I,  however,   in- 

ormed  th«'  committee  thiit  copioH  could 

)e  obtained  if  desired  from  Syfret  and 

Co.     If,  as  the  committee  alleges,  there 

were    any    contradictory    statements    on 

my  party  I  most  emphatically  state  that 


any  such  were  due  to  the  incompetent 
manner  in  which  I  was  examined. 

4.  I  dony  al»olutely  the  inucndocs  in 
Paragraph  4.  It  is  to  bo  regretted,  of 
cour&e,  that  these  gentlemen  were  plac- 
ed in  so  dual  a  position,  but  as  to 
the  inception  of  tne  concern  I  most 
emphatically  protest  against  any  state- 
ment to  the  effect  that  it  was  other 
than  absolutely  genuine. 

5.  So  far  as  I  am  concerned,  it  was 
to  my  interest  to  work  the  company  for 
its  greatest  benefit. 

6.  It  is  an  extraordinary  matter  that 
the  board,  if  they  took  the  view  that 
this  committee  does,  did  not  suggest  or 
put  forward  any  other  better  or  more 
effective  system  for  the  more  satisfac- 
tory working  of  the  affairs  of  the  com- 
pany. One  of  the  greatest  difficulties 
so  tar  as  I  was  concerned  was  that  of 
getting  the  secretary  to  carry  out  the 
system  and  to  provide  details  of  the 
board  meetings.  The  only  details  of 
working  the  concern  which  wore  carried 
on  bv  the  &ecrot>ary  were  those  oon- 
nectcd  with  the  secretarial  and  book- 
keeping: duties.  With  regard  to  these 
you  will  find  from  the  reports  of  the 
auditor  for  1903  and  1904  and  1905  that 
continuous  complaints  regarding  the 
manner  in  which  the  secrotary's  duties 
were  fulfilled  were  lodged  by  him.  I 
am  not  a  bookkeeper  nor  am  I  an  ac- 
countant, .  and  these  matters  were  not 
for  me  to  interfere  with  or  to  examine 
into  other  than  generally.  These,  you 
will  admit,  were  duties  which  pertained 
to  the  secretary  and  should  have  been 
superintended  absolutely  by  the  audi- 
tor. I  wish  to  state,  however,  that  Mr. 
Nash  never  made  any  complaints  to  me 
either  during  1903  or  1904.  Complaints 
by  Mr.  Nasn  were  alwaj's  reserved  by 
him  for  his  annual  report,  when,  in  com- 
mon with  the  rest  of  the  shareholders, 
I  saw  them  for   the  first  time. 

7.  The  works  and  office  were  in  direct 
telephonic  communication,  and  the  co- 
ordination existing  b(*twcen  the  two 
could  hardly  have  oeen  improved  upon. 
The  lack  of  knowledge,  if  any,  on  the 
part  of  the  directors  were  certainly  due 
to  the  secretary  not  producing  tho  neces- 
sary detailed  statements.  It  was  on 
this  account  that  the  chairman  and  my- 
self during  the  early  stages  of  the 
company's  existence,  considered  it  ad- 
visable to  make  a  change.  This  was 
proposed  at  a  meeting  and  was  at  first 
agreed  to,  but  we  were  afterwards  over- 
ruled, as  it  appeared  that  the  secretary 
was  beginning  to  pay  more  attention  to 
his  duties.  The  letters  of  resignation 
from  ^^r.  Bailey  and  Mr.  Mathew  them- 
selves distinctly  state  why  they  desire 
to  retire.  Needless  to  say  those  reasons 
differ  from  those  which  the  committee 
desire  you  to  believe.  It  was  not  the 
fault  of  tho  managing  director  if  the 
branch  manager  at  Durban  and  Johan- 
nesburg held  larger  powers  than  he  did 
himself.      This   was   a   matter   for   the 


"CAPE  TIMES"   LAW  REPORTS. 


783 


directors  hore,  and  I  can  hardly  see 
how  on  earth  it  would  be  to  my  interest 
to  concur  in  any  such  state  of  affairs. 

9.  In  my  oi>inion  the  most  disastrous 
part  of  the  company's  policy  was  the 
hampering  of  the  managing  director  in 
regard  to  tiie  acceptance  of  contracts.  In 
the  branch  business  up  to  the  i)resent 
year  litth*  or  no  contracting  was  done 
m  the  way  of  engineering  work.  The 
chief  business  carried  on  was  in  dis- 
posing of  the  products  of  the  company. 
The  board  had  every  control  compatible 
with  business  affairs  over  the  branches, 
and  it  was  onl^v  after  I  was  able  to 
secure  the  services  of  Mr.  Palliser  to 
rranage  our  Transvaal  business  that  I 
would  admit  of  any  engineering  con- 
tracts being  entered*  into. 

10.  The  committee  here  refer  to  a 
report  drawn  up  by  Mr.  Palliser,  in 
which  they  state  that  Mr.  Palliser  at- 
tended a  nieoting  of  directors.  This 
statement  is  true  only  in  so  far  that 
Mr.  Palliser  camo  to  Cape  Town  with 
his  reoort.  The  other  facts  are  that 
Mr.  Miller  absolutely  declined  to  con- 
sider his  report.  That  I  ineffectually 
attempted  to  arrange  several  meetings 
of  directors  for  the  purpose  of  having 
Mr.  Palliser's  report  thoroughly  dis- 
cussed, but  that,  as  Mr.  Pallis<^r  will 
tell  you,  after  waiting  here  two  weeks, 
he  returned  to  Johannesburg  disgusted 
with  the  conduct  of  Mr.  Miller,  and 
the  result  of  his  visit,  which  visit  cost 
the  company  money.  Now,  the  com- 
mittee referred  to  the  report  as  one 
which  contains  much  useiul  informa- 
tion, and  confirms  the  opinion  alrecbdy 
expressed  as  to  the  want  of  effective 
control  and  management  of  the  con- 
corn   from  Cape  Town. 

11.  In  this,  paragraiph  the  committee 
state  that  friction  has  resulted  at  the 
Board  meetinsis.  That  friction  was 
between  Mr.  Miller,  the  late  secretary, 
and  myself,  and  the  cause  thereof  I 
have  already  explained.  These  gentle- 
men were  not,  in  mv  opinion,  acting  in 
the  best  int<»rest«  ot  the  company,  and 
it  was  my  duty  to  object.  The  late 
secretary  had  fiimaelf  to  blame  for  the 
position  in  which  he  found  himself.  He 
was  absolutely  incapable,  and  for  the 
benefit  of  the  company,  I  wished  his 
removal. 

17.  The  amount  of  applications  re- 
ceived is  absolutely  correct,  applications 
having  amounted  to  21,142  shares.  I 
may  point  out  I  was  not  a  member  of 
the  Board  till  after  allotment. 

18.  This  is,  so  far  aa  I  am  concerned, 
an  absolutely  false  statement.  No 
entries  were  ever  made  on  the  lisrt  of 
applications  without  the  authority  of 
the  parties  concerned.  As  to  my  own 
holding.  I  received  1,000  shares  in  lieu 
of  £1.000. 

20.  Every  statement  in  the  prospectus 
is,  so  far  as  it  concerns  me,  and  so  far 
as  I  have  had  anything  to  do  with  the 
matters  treated  of  therein,  absolutely 
correct. 


21.  The  amount  of  profit,  as  shown  bv 
the  ooiumittee,  averaging  £1,242  2b.  4d. 
per  annum  for  the  4^  ^oars  previous  to 
the  flotation,  was  certainly  substantial, 
considering  that  the  buaineHS  wsA  floated 
with  a  vory  small  capital,  and  cou- 
isidiM-ing  further  that  in  bringing  out 
til  is  profit  a  large  amount  was  spent 
each  yea<r  in  extending  the  business  to 
other  centres.  This  meant  that  I  per- 
sonally had  to  visit  the  different  towns 
in  order  to  establish  agencies,  which 
cost  a  considerable  amount  of  money. 
Again,  prior  to  the  profit  of  £1,242  2b. 
4d.  before  referred  to  being  brought 
out,  a  l<ar^e  sum  was  drawn  eaoh  year 
for  my  own  personal  requirements,  and 
yet,  in  spite  of  all  this,  we  have  an 
average  annual  profit  shown  of  about 
and  amounting  to  over  20  per  cent,  on 
a  capital  of  £ 6,000.  I  have  no  hesita^ 
tion  in  saying  that  the  statement  made 
in  the  prospectus  is  absolutely  genuine. 

26.  As  to  the  flotation  expenses,  the 
arrangement  was  that  I  should  pay  all 
expenses  up  to  the  date  of  the  forma- 
tion of  the  company.  That  I  took  to 
mean  the  date  when  the  Board  wias 
formed,  and  everything  roadv  to  go  on 
with  the  flotation,  and  I  still  hold  that 
this  view  is  correct.  The  aooounts 
were  paid  by  the  company,  and  after- 
wards the  amount  -was  transferred  to 
my  account.  To  this  I,  of  course,  ob- 
jected, but  in  order  to  have  the  matter 
sett  lea,  and  on  account  of  my  receiving 
1,000  shares  in  lieu  of  cash,  I  -agreed 
to  forego  500  shares.  This  was  ac- 
cordingly done,   and  the  matrber  closed. 

26.  Regarding  the  4,350  vendors* 
shaxes  distributed  by  me,  I  haye  to 
point  out  that  these  were  my  sole  pro- 
perty, and  that  I  had  an  absolute 
right  to  do  whatever  I  wished  with 
them.  The  obvious  intention  of  the 
committee  in  bringing  this  matter  for- 
ward was  in  order  to  mislead  the  share- 
holders into  believing  that  these  shares 
wore  given  as  a  kind  of  sop  to  the  gen- 
tlemen named  for  assisting  in  the  flota- 
tion. This  is  an  absolute  falsehood. 
Not  one  of  these  gentlemen  assisted  in 
the  flotation  in  any  way. 

27.  The  assets  acquired  by  the  com- 
pany were  clearly  stipulated  and  duly 
registered. 

30.  I  have  not  got  the  books  in  my 
possession,  as  they  are  still  in  the  hands 
of  the  committee,  but  the  value  of  the 
machinery  and  plant  was  increased  im- 
mediately before  the  flotation  by  the 
addition,  so  far  as  I  remember,  of  a 
new  tar  still  and  other  improvements. 
The  machinery  was  valued,  and  the 
value  taken  for  the  leasehold  is,  in  mv 
opinion,  considerably  under-estimatea. 
The  patents  and  goodwill  I  could  not 
dispose  of  at  a  less  figure,  as,  in  my 
opinion,  that  represented  its  lowest 
value.  Further,  in  common  with  other 
business  men  in  the  Colony,  I  naturally 
anticipated  that  the  flotation,  taken  in 
conjunction  with  the  anticipated  revival 
in  trade  in  the  inland  towns  subsequent 


784 


VCAPB  TIMES*'  LAW  RBP09TS. 


to  tho  WHr,  that  as  tho  business  had  pre- 
TiouBly  been  so  succeesful  in  the  ooafit 
towns, .  it  would  increaae  on  all  Bides, 
and  eapeoiaily  m)  when  a  larger  field  was 
to  be  opened  up.  We  all  know  how  far 
these  anticipations  were  realised. 

32.  Regarding  the  Neuchatel  Asphalt 
Company*s  agency,  the  committee  ^^o 
pointed  out  that  the  word  ''agencies*' 
IS  omitted  in  the  document  registered; 
this  is  the  first  time  that  I  have  known  . 
such  was  the  case.  However,  I  can- 
not see  wherein  there  is  anything  wrong 
in  this  connection.  I  was  simply  the 
Neuchatel  Company's  agenb.  and  there- 
fore it  was  not  mv  business.  The  cona- 
mittee  have  carefully  left  out  of  their 
report  the  fact  that  everything  derived 
from  the  working  of  this  agency  has 
been  received  bjr  the  company. 

33.  In  connection  with  the  renewal  of 
the  agreement  with  the  Neuchatel  As- 
phalt Co.,  Ltd.,  in  November,  1904,  there 
was  no  attempt  made  to  conceal  that 
fact.  I  am  positive  that  the  secretary 
was  acquainted  with  it,  as  I  handed  the 
new  agreement  to  him  to  go  carefully 
through  before  I  signed  it. 

34.  Hegarding  my  instructions  to  the 
branches  that  all  future  payments  for 
work  done  by  the  Neuchatel  Asohalt 
Co.  should  be  paid  direct  to  the  Neu- 
chatel Asphalt  Co.,  these  were  specific 
instructions  given  to  me  by  .Mr.  HoUis 
on  account  of  his  company.  It  is  an 
absolute  misrepresentation  of  fact  to 
say  that  my  interests  as  agent  of  the 
Neuchatel  Asphalt  Co.,  Ltd.,  were  at 
direct  variance  with  the  B.S.A.  Co. 

35.  Regarding  the  tar  oontrsct,  the 
committee  has  carefully  avoided  making 
any  mention  of  the  action  at  law  which 
this  company  found  necessary  to  institute 
in  order  to  establish  this  contract  beyond 
doubt.  It  is  only  since  then  that  we 
have  been  able  to  run  this  contract  on 
anything  like  satisfactory  and  profitable 
lines.  Only  recently  the  Cape  Town 
District  Gas  Co.  sought  by  an  action  in 
the  Magistrate's  Court  to  vary  this 
contract,  an  action  which  they  lost,  with 
costs. 

36.  It  is  false  bo  state  that  no  costing 
books  were  kept,  as  a  contract  costing 
book  was  produced  to  the  committee, 
showing  all  expenditure  on  each  con- 
tract. It  will  be  found  that  on  the 
contracts  a  good  profit*  was  made.  Tho 
trouble  was  that  there  were  so  few  con- 
tracts during  the  latter  year  or  so.  When 
the  chairman  was  in  Natal,  and  had 
been  negotiating  with  another  secretary, 
the  Board  decided  to  retain  Mr. 
Davies's  services,  as  they  thought  he 
would  improve ;  subsequent  events,  and 
our  auditor's  report,  go  to  show  that 
the  Board,  although  their  intentions 
were  of  the  best,  were  wrong.  It  is 
untrue  that  the  stocktaking  was  done  in 
a  careless  manner.  It  was  most  care- 
fully done,  and  the  prices  were  fixed 
by  the  secrets rr  from  invoices,  etc.  In 
my  opinion,   the  position  of  this  com- 


pany i^  due  in  no  small  nnoasure  to  the 
action  of  the  CiW  Council,  and  I  nimj 
here  state  thai  auring  the  hearing  of 
aji  action  in  the  Supreme  Court  between 
Nuttall  and  Co.  and  the  Gas  Co.  a  letter 
was  read  from  Nuttall's  manager  to 
Nuttall,  stating  that  the  manager  had 
arranged  with  the  City  Engineer  to  make 
trouble  with  Allen  on  the  Early  Morn- 
ing Market  contract,  and  also  with 
Rfley,  the  Gas  Co.  manager,  to  plug  all 
the  tar  possible  into  Allen,  so  that  Allen 
would  be  compelled  to  sell  tar  cheap  to 
Nuttall  and  Co. 

38.  Under  the  heading.  "  General  Re* 
marks  and  Recommenal^tions,"  one 
would  expect  to  find  some  informatioD 
and  advice,  but  the  total  advice  indicated 
therein  appears  to  be  that  the  company 
should  go  into  liquidation,  toe 
reason  b^ing  given  that  a  cer- 
tain creditor  bad  obtained  judgment. 
It  should  be  noted  that  throughout 
the  committee's  report  no  mention  is 
made  of  the  numerous  irregularities  on 
the  part  of  Miller  and  the  secretary. 
It  will  be  noted  that  the  report  is 
directed  almost  wholly  against  myself, 
and  bears  the  mark  of  Mr.  Miller's  dicta- 
tion on  amost  every  paragr-aph.  It  is 
also  a  fact  that  this  movement  has  been 
in  operation  for  several  mont|is,^  and  is 
not  only  confined  to  this  oompahy,  but 
has  also  been  extended  to  other  com- 
panies in  which  Stephan  Bros,  and 
myself  are  interested.  It  is  very  easy 
for  these  gentlemen  to  go  into  any 
business  and  find  fault.  I  do  not  pre- 
tend to  be  perfect  I  can  make  miatakes 
as  well  as  anyoue  else;  so  can  most 
men  who  have  got  any  mitiative.  Had 
I  known  that  we  were  just  about  to 
enter  on  a  period  of  depression,  the 
severity  of  which  has  never  baiore 
been  experienced,  I  would  not  ha^e 
floated  my  business.  When  I  floated  my 
business  I  was  absolutely  confident  that 
it  was  a  first-class  business.    The  greater 

Eart  of  the  liabilities  taken  over 
y  the  company  on  flotation  was  in- 
curred during  toe  six  months  previous 
in  the  purchase  of  the  Omaha  business 
and  other  matters  for  the  benefit  of 
the  company,  and  our  profit,  had  there 
been  no  depression,  should  have  wiped 
off  all  liabilities  and  paid  a  satisfactory 
dividend.  I  have  the  confidence  of 
these  shareholders  who  have  been  more 
or  less  in  touch  with  me,  and  know  the 
difficulties  we  have  to  contend  with, 
and  if  I  have  lost  the  confidence  of  those 
who  only  know^  me  by  name,  it  is  caused 
by  a  few  designing  parties  who  are 
not  working  for  the  best  interests  of  the 
shareholders,  and  who  are  anxious  to 
do  me  a  bad  turn  to  suit  their  own 
schemes  in  connection  with  another 
company  with  which  I  am  closely  con* 
nected. 

Mr.  Alexander  and  Mr.  Molteno  wew 
heard   in  argument. 

Buchanan,    A.    O.    J. ;        Ihe   B.S.A. 
Asphalt  Company  oomnienoed  op^Cf^ioQS 


u 


CAPE  TIMES"   LAW  REPORTS. 


785 


in  1903,  an-d  this  year  the  financial 
state  of  the  oompaiiy  was  not  satisfac- 
tory. A  meeting  of  ^hareholdors  was 
held,  and  at  that  meeting  a  Committee 
of  Investigation  waa  appointed,  oonBJst- 
;ng  of  Messrs.  Naah,  Gibson,  Godbold, 
and  Fleming,  and  this  committee  re- 
ported to  the  shareholders  the  result 
of  their  inquiries.  The  reflections  made 
in  their  report  against  Mr.  Allen,  who 
may  be  called  the  promoter  of  the  com- 
pany, were  such  as  required  further  in- 
vestigation, and  a  resolution  was  passed 
by  the  shareholders  in  favour  of  ap- 
pointing an  official  liquidator  of 
the  company,  and  moreover,  cer- 
tain creditors  also  join  in  the 
petition  for  the  liquidation  of  the  com- 
pan^,s  estate.  The  order  granted  was 
equivalent  to  prooeedings  in  the  compul- 
sory sequestration  of  an  insolvent's  es- 
tate. At  the  time  the  petition  came 
before  the  Court,  prima-facie  grounds 
were  shown  for  granting  a  provisional 
order  for  liquidation,  and  a  return  day 
was  fixed  upon'  which  persons  interested 
were  entitled  to  show  cause  why  this 
order  should  not  be  made  absolute. 
Immediately  after  this  provisional  order 
wa<9  granted  Mr.  Allen  and  others  ap- 
plied, ex  parte,  and  they  wished  to  have 
thifl  order  set  aside.  It  was  pointed 
out  that  this  could  not  be  done  without 
notice  being  given  as  they  wished  to 
anticipate  the  return  day  of  the  order, 
leave  was  granted  to  do  so  on  notice 
being  given  to  the  petitioners,  but  the 
case  was  allowed  to  stand  over,  and  it 
iK>w  comes  before  the  Court  for  fi:nal 
decision.  Mr.  Allen  and  the  others  who 
objected  to  the  liquidation,  have  now 
withdrawn  their  obiection  on  the 
ground  that,  after  wnat  had  taken 
place,  it  u>  not  desirable  to  cancel  the 
provisional  order,  and  "they  consent  to 
the  liquidatiorn  goin^  through.  There- 
is  no  objection,  therefore,  to  making 
the  rule  absolute  ordering  the  B.S.A. 
Asphalt  Company  to  be  placed  under 
liquidation.  A  great  number  of  affi- 
davits have  been  made  which  would 
have  been  revelant  to  the  question 
whether  the  company  should  or  should 
not  have  been  placed  under  compulsory 
Hquidation.  The  statements  of  these 
affidavits  now  fall  away,  and  it  i.s  not 
neces««ary  to  consider  them.  The  only 
reason  why  those  affidavits  should  be 
considered  now,  is  with  reference  to 
deciding  who  should  be  appointed 
official  liquidiators  of  the  company.  In 
deciding!  upon  this  (luestion,  undoubtod- 
ly  the  Court  should  take  into  c<)n- 
sideration  the  wishes  of  the  persons  in- 
tere^^ted.  At  the  previous  application. 
as  I  said,  four  provisional  liciuidators 
.  were  nominated  pending  the  result  of 
further  proceedings.  For  myself,  I  do 
not  see  the  necessity  of  so  many  I'-iui- 
dator<;  being  appointed,  and  ii  there 
had  been  no  opposition,  probably  the 
Court  would  have  been  satisfied  in  ap- 
pointing   one    licjmdator    only.        The 


four  people  who  were  appointed  pro- 
visional licjuidators  were  tne  four  mem- 
bers of  tne  Committee  of  Investiga- 
tion. Two  of  these  -gentlemen  do  not 
wish  to  press  their  claims  for  being  ap- 
pointed liquidators,  I  refer  to  Messrs. 
Godbold  and  Fleming.  If  there  had 
been  no  objection  to  the  two  remaining 
ones  being  appointed,  probably  the 
Court  would  have  been  sati.sfied  in  ap- 
nonitiiig  Messrs.  Nash  and  Gibson,  but 
\lr.  Allen  states  that  he  wishes  to  have 
his  position  considered  in  the  liquida- 
tion, and  he  is  a  very  large  shareholder 
in  the  company.  I  thinlc  Mr.  Allen's 
wishes  deserve  some  consideration.  I 
have  heard  the  report  of  the  liquidators 
read,  and  there  are  some  charges  made, 
but  they  are  more  irregularities  and 
want  of  attention  to  proper  business>  re- 
quirements than  express  charges  of 
fraud.  I  do  not  wish  to  say  anything 
more  about  these  charges,  as  it  is  said 
they  may  form  the  basis  of  future  pro- 
ceedings, but  I  think  that,  under  the 
circumstances  it  would  be  better,  as 
there  is  some  dispute,  to  have  three,  in- 
stead of  two  liquidators.  I  should  have 
preferred  only  one  im  this  case,  as  the 
estate  is  not  a  very  large  one;  but  as 
three  will  be  appointeid  they  will  be 
Messrs.  Nash.  Gitv^on,  and  derald  Or- 
pen.  I  can  see  the  force  of  the  objection 
taken  to  the  appointment  of  an  official 
as  liquidator,  but  Mr.  Nash  is  not  an 
official  of  the  company  in  the  sense  of 
having  had  anv-thinir  to  do  with  the 
management.  He  is  the  auditor  of  the 
company,  and  there  is  nothing  what- 
ever in  his  conduct  which  would  require 
investigation,  and  which  would  be  in- 
imical or  opposed  to  his  duties  as 
li()uidator.  on  the  contrary,  he  called 
attention  to  the  irregularities  which 
had  taken  place.  These  three  gentle- 
men are  well  known,  and  the  Court 
ha.s  every  confidence  that  they  will  per- 
form their  duties  faithfully.  The  ob- 
tection  taken  to  Mr.  Gibson  is,  that  he 
las  an  interest  in  one  of  the  creditors, 
but  this  is  no  bar  to  h'm  being  a  liqui- 
dator. As  to  Mr.  Orpen  he  is  suggested 
for  appointment  bv  Mr.  Allen  himself 
a.nd  i.s  unconnected  with  the  compaaiy 
in  any  way.  The  rule  nitii  will  be  made 
absolute  ordering  the  company  to  be 
placed  under  liquidation,  and  Messrs. 
Nash,  Gilvon.  and  Orpen  will  be  ap- 
poin'ted  official  liquidators,  with  powers 
imder  the  149th  section  of  the  Act. 
There  is  only  one  other  question,  and 
that  is  a.**  to  the  security  to  be  given 
by  the  liquidators.  The  amount  at 
ipsiie  is  at  the  outside  £5,000  or  £6,000. 
snd  I  think  it  will  be  sufficient  if  the 
lidrndators  give  joint  securitv  for 
£1.000.  The  co<H;s  of  the  application 
will  be  costs  in  liquidation.  There  is 
another  matter  before  the  Court,  and 
that  is  the  rule  nisi  which  was  grant<s1 
after  the  liquidation  was  ordered, 
Messrs.  Gibbs  and  Allen,  it  was  alleged, 
removed  after  the  granting  of  the  order 


786 


II 


CAPE  TIMES"   LAW  REPORTS. 


certain  i)Hi>ors  and  a  safo  from  tho 
offices  of  the  oompan^.  Mr.  Giblxi  has 
filed  an  affidavit  stating  that  ho  acted 
in  ignoraiicG  of  tho  order  of  Court, 
flnd  explaining  tiw  cirrum«*tances  undo* 
which  he  removed  thi»  pr<»rK»rty.  The 
rule  will  be  disoliarged,  but  the  re- 
spond^ents  did  what  ivas  improper,  and 
it  they  had  been  acting  with  any  mali- 
cious or  fraudulent  intent,  the  Court 
would  have  considered  it  eon  tempt  of 
Court  and  would  probably  have  im- 
posed a  penalty  whicn  would  have  made 
them  understand  that  they  could  not 
disobey  an  order  of  Court  with  impuni- 
ty. The  respondents  must,  however, 
ptay  the  oosts  of  that  particular  applioa- 
tion. 

Mr.  Alexander  asked  for  leave  to  be 
heard  on  the  question  of  the  oosts  of 
the  rule  against  Gibbs  and  Allen. 

Buchanan,  A.  C.  J.,  said  that  be 
thought  affidavits   had   been   read. 

Mr.  Alexander  said  that  he  had  also 
an  affidavit  sworn  by  Mr.  Allen,  which 
he  now  proceeded  to  read. 

Buchanan,  A.  C.  J.,  held  that  the 
reepondente  must  pay  the  costs  of  the 
rule. 

Mr.  Benjamin:  I  take  it  that  the 
Gas  Company  will  obtain  their  costs 
from  the  liquidation? 

Buchanan,  A.  C.  J.,  said  that  thAt 
was  so. 

Attorneys :  For  the  creditors — Van 
der  Byl  and  De  Villiers.  For  the  Cape 
Town  Gas  Company — Van  Zyl  and 
Buissin^.  For  the  B.S.A.  Asphalt 
Company — A.  J.  McCallum. 


Rr  parte  THE   KRAAIPONTEIN    HOTEL 
COMPANY. 

Mr.  Molteno  ntoved,  as  a  matter 
of  urgency,  on  the  petition  of  G.  W. 
Steytler  and  other  liquidators  of  the 
Kraaifontein  Hotel  Company  (in  volun- 
tary liquidation)  for  an  order  for  tho 
compul.wry  winding  up  of  tho  company. 
The.  petitioners  nt^ted  that  tho  hotel 
had  been  advertised  to  be  sold  by  pub- 
lic auction  on  Saturday  next,  and  thoy 
feared  that  if  such  a  course  were  per- 
sisted in  there  would  be  some  prejudice 
to  thi?  claims  of  the  creditons.  Ever 
since  the  commencement  the  businees 
of  the  company  had  been  carried  on  at 
a  loss  owing  to  the  state  of  trade  and 
other  circumstances  beyond  the  con- 
trol  of    the  company. 

A  rule  niH  was  granted  placing  the 
company  under  the  Act  of  1892,  and 
provisionally  appointing  the  voluntary 
liquidators  as  liquidators,  rule  to  be 
returnable  on  the  16th  of  October,  and 
to  bo  published  once  in  the  "  Govern- 
ment Gazette  "  and  once  in  the  "  Cape 
Times." 

Postea  (October  16).  The  rule  was 
made  absolute. 


/>  jmrfr  Tin:   UOYAL   HOTEL  COHPANT. 

Mr.  Moheno  moved  that  an  order  of 
the  Court  for  the  winding  up  order  and 
the  appointment  of  official  liquidators 
in  thi6  case  be  made  aheolute.  lie 
alM)  applied  for  the  appointment  of 
Messrs.  Siberbauer,  Wahi.  and  Fuller 
as   attorne3r8   to   the   liquidators. 

Buohanan,  A.  C  J.  said  that  if  neces- 
sary the  liquidators  could  appoint  the 
attorneys,  but  the  Court  would  not  make 
an  order  to  that  effect. 

The  application  was  gnanted. 


THB    CAPE    MABINB    SUBUBBS    Y.     THE 
BECBEATIOK  STNDICATS,  LTD. 

Mr.  Rc>ux.  nooved  that  a  rule  of  Court 
for   a  winding   up   order   and    the   ap- 
pointment of  Mr.    Syfret   as  official   li- 
quidator in  this  case  be  made  absolute, 
lute. 

The   application    was   granted. 


SUPREME  COURT 


[Before  the  Acting'  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


HETDENBYCH  V.  WEAKLEY,  jg^^g^^^ 

Mr.  Searle,  K.C.,  mentioned  the  mat- 
ter of  the  application  of  the  plaintiff 
for  the  appointment  of  a  commianon  to 
take  the  evidence  of  Mis.  Elisabeth  Hey- 
wood,  of  Aliwal  North.  The  matter 
had  previously  been  before  a  judge 
in  OhambeTB,  and  had  been  ordered  to 
be  mentioned  in  the  open  Court.  Coun- 
sel stated  that  the  other  side  had  now 
consented  to  the   application. 

Buchanan,  A.C.J. ,  said  that  the  diffi- 
culty was  that  no  pleadings  had  been 
filed,  but,  seeing  tnat  the  other  side 
had  consented,  the  application  would  be 
granted,  the  Resident  Magistrate  of 
Aliwal  North  to  be  commissioner. 


REHABILITATION. 

Sa  parte  gbomer. 

Mr.  Alexander  staied  that,  in  regard 
to  the  application  of  Alexander  Gromer 
for  discharge  from  insolvency,  iic  had 
now  to  present  an  affidavit  frnm  the 
applicant  s  attorney  in  reference  to  the 
refusal  of  the  Master  to  grant  the  iieces- 
sary  oertifioate.     Counsel  said  that  t|)e 


"CAPE  TIMBB''  LAW  BEP0RT8. 


tS7 


applioant  had  obtemed  the  consent  of 
three-fifthe  of  the  oredoton  in  number, 
&nd  more  than  three-ftfths  in  value. 

Buohanan,  A.C.J.,  eaid  that  in  the  In- 
solvency Ordinance  the  word  **  num- 
ber" meant  areditoTB  over  £30— only 
those  ai  that  amount  were  entitled  to 
be  reckoned  by  number.  In  thia  oase 
thero  were  five  crediton,  three  of  whom 
were  entitled  to  be  reckoned  by 
number.  Of  these  three  only  one  had 
consented  to  the  rehabilitation  of  the 
applioant.  The  Master  was  rig'ht  in 
refufling  the  oertifioate,  seeing  that 
three-fifths  of  the  creditors  by  number 
as  well  as  in  value  must  consent.  I^ 
appUcatioQ  would  be  refused. 


GENERAL  MOTIONS. 


In  re  INSOLVENT  estate 

FOK. 


{ 


1905. 
Sept.  18th. 


Mr.  Close  moved  for  the  removal  of 
Rachmiel  Earter,  alias  Eartel,  from  his 
office  as  trustee  in  the  insolvent  estate 
of  Solomon  Fon,  general  dealer,  Malmes- 
bury,  an  dthe  appointment  of  Frederick 
Fortunatus  WerdmuIIor  to  the  office. 

An  order  was  granted  appointing  Mr. 
WerdmuUer  provisional  trustee,  and  au- 
thorising the  Master  to  call  a  meeting 
of  creditors  for  the  election  of  a  per- 
manent trustee  in  the  pLace  of  Mr.  Kar- 
ter,  who  had  become  inoaipacitated  from 
his  office  by  reason  of  his  insanity,  costs 
of  this  ttpplioaiion  to  come  out  of  the 
estate. 


Hof  parte  HAZELL. 

Mr.  P.  S.  T.  Jones  moved  for  the  re- 
lease of  the  applicant  from  curatorship 
in  the  estate  of  one  Everton,  who,  it 
now  transpired,  had  been  discharged 
from  the  valkenberg  Asylum.  He  had 
recovered  the  use  of  his  reason,  and  had 
gone  to  Canada. 

Order  granted,  subject  to  the  filing 
of  accounts  and  payment  of  moneys 
found  to  be  due  to  the  reepondent. 


DU  PBE  V.  COLONIAL  OOVERNMBNT. 

Mr.  Roux  moved  for  certain  award  of 
arbitrator  to  be  made  rule  of  Court, 
with  costs. 

Mr.  Nightingale,  for  the  Government, 
consented. 

Award  made  rule  ol  Court,  with  costs. 


0*CONNELL  V.  0*GONNELL. 

Mr.  Benjamin  moved,  on  behalf  of 
Mrs.  0*Connell,  for  leave  to  sue  her  hus- 
band bj  ediotal  citation  for  restitution 
of  oonjugal  rights  by  reason  of  his 
malicious      desertion.  The      parties 

p3 


in  1900  sold  up  their  home  in  London, 
intending  to  seibtle  in  tfads  colony.  They 
came  out  to  the  Gape,  and  clefendant 
became  attached  to  the  staff  of  Lord 
Roberts  and  Lord  Kitchener,  and  went 
with  them  to  Pretoria.  Owing  to  his  in* 
tenajperate  habits,  he  went  on  a  voyage 
to  Europe  in  September,  1902,  and  had 
since  contri-butecf  nothing  towards  peti- 
tioner's support.  Petitioner  at  first  re- 
sided at  (Jlaiemoot,  and  had  since  re- 
moved to  Observatory.  In  March  last 
petitioner's  husband  returned  to  Cape 
Town,  and,  after  remaining  about  three 
weeks,  left  for  Europe.  He  was  drinking 
very  heavily. 

Leave  to  sue  by  edictal  citation  was 
granted,  citation  to  be  returnable  on 
the  15th  November,  to  be  served  per- 
sonally, if  possible,  or  at  the  respon- 
dent's last  known  address,  West  Ken- 
sington, London,  and  to  be  published 
once  in  the  "Government  Gacette'' 
and  once  in  the  "Daily  Telegraph." 


REICH  V.  MCNALLT  AND 
ALIWAL  NORTH  MUNICI- 
PAL COUNCIL. 


{ 


1905. 
Sept  13th. 


Municipal  Council  —  Election  — 
Act  45  of  1882,  Sec.  17— 
Office  of  profit. 

N.  had  been  elected  as  a  Cotm' 
cillor  of  the  Municipality  of  A . 
At  the  time  he  vxls  mwiicipal 
poufidniaster,  for  the  duties  of 
which  he  was  remunerated  by 
fees. 

Held,  that  as  this  was  an  office 
of  profit  under  the  Mutiici- 
polity^  he  was  disqualified  from 
being  elected  by  Sec.  17  of 
Act  45  of  1882. 


This  was  an  appUostion  upon  notice 
calling  upon  the  nmt-named  respondent 
to  show  cause  why  his  election  as  a 
member  of  the  Aliwal  North  (Council 
should  not  be  declared  illegal  and  in- 
valid, and  why  he  should  not  be  de- 
cktred  to  be  disqualified  from  continuing 
as  a  Councillor. 

The  petition  of  the  api^oant 
stated  that  at  ^  the  election  for 
the  said  Council  in  Julv  last  ther« 
were  seven  candidates  for  four  vacancies, 
including  petitioner  and  the  first-named 
respondent.  At  the  poll  McNally  was 
elected,  and  petitioner  was  fifth  m  the 
list      By  an  agreement  dated  April  9, 

1903,  McNally  entered  into  a  lease  with 
the  said  council  for  certain  ground,  and 
although  that  lease   expired  in   March, 

1904,  he  continued  as  pound  master  of 
the  Council,  and  was  at  the  time  of 
his  nomination,  and  still  was  the  muni- 
cipal pouqd  master.    The  position  held 


788 


"CAPB  TIMEB*'  LAW  REPORTS. 


by  the  said  McNally  was  one  of  profit 
under  the  said  Ck>iuicil,  and  he  partici- 
pated in  the  profits  of  a  contract.  The 
election  was,  therefore,  invalid,  and  Mc- 
Nally was  not  capable  of  being  a  Coun- 
cillor of  the  said  municipality.  The 
agreement  provided  for  the  payment  by 
the  lessee  of  £12  per  annum. 

The  affidavit  of  the  (respondent, 
MoNallv,  stated  that  he  admitted 
that  fie  acquired  the  municipal 
pound  at  Aliwal  North  under  an  agree- 
ment dated  the  9th  April,  1903.  He 
further  admitted  that,  although  the  said 
agreement  expired  on  31st  March,  1904, 
he  continued  to  farm  the  said  pound  on 
the  said  terms  as  stated  in  the  said 
ag^reement.  No  further  agreement  was 
entered  into  by  him  with  tne  said  Coun- 
cil. The  said  Council  had  accepted  pay- 
ment of  his  rent  ever^  Quarter.  In 
March,  1903,  the  Municipal  Council  at 
Aliwal  Nortn,  by  advertisement  in  the 
public  Press,  called  for  competition  bv 
tender  for  the  farming  of  the  said  pouna. 
He  submitted  a  tender  of  £12  per  an- 
num for  the  same.  He  denied  the  al- 
legation that  he  had  held,  or  now  held, 
an  office  or  position  of  profit,  or  that 
he  participated,  or  was  concerned  in, 
the  profits  of  any  contract.  He  submit- 
ted that  he  acouired  the  right  to  farm 
the  said  pounn  by  public  competition, 
Arm  «Aj-  profit  that  he  had  made  out 
of  the  said  pound  had  not  been  made 
from  the  said  Municipal  Council  of  Ali- 
wal North,  but  from  tho  general  public 
using  the  said  pound.  Deponent  added 
that  no  objection  was  raised  to  his  can- 
didature until  after  the  result  of  the 
poll  had  been  declared.  The  support- 
ing affidavit  of  the  Town  Olerk  of  Ali- 
wal North  stated  that  any  profit 
the  said  McNally  may  have  made  out 
of  the  farming  of  tho  said  pound  would 
be  made  out  of  tho  general  public,  and 
not  from  the  funds  of  the  Municipal 
Council  of  Aliwal  North. 

Mr.  Benjamin  for  applicant ;  Mr.  Gar- 
diner for  respondent. 

Mr.  Benjamin  submitted  that  it  was 
clear  that  the  poundmaster  was  entitled 
to  certain  fees,  and  to  that  extent  he 
held  an  office  of  profit  under  the  Coun- 
cil. Under  the  English  law  it  was  stipu- 
lated that  any  person  participating  in 
any  contract  with  the  municipality  was 
disqualified  from  bein^  elected  to  the 
Council.  He  (Mr.  Benjamin)  contended 
that  in  the  present  case  the  respondent 
was  a  contractor  to  the  municipality. 

Mr.  Gardiner  contended  that  his 
learned  friend's  arguments  were  some- 
what inconsistent.  The  position  of  the 
respondent  wa^  either  that  of  an  office 
o'  employment  or  that  of  lessor  or  les- 
see This  was  not  a  case  of  employ- 
ment; it  was  not  a  case  of  holding  an 
office.  He  did  not  saj  that  it  was  abso- 
lutely necessary  that  m  holding  an  office 
that^  a  salary  should  be  attached 
to  ft,  but  theie  must  be  certain 
elements.        There      mv\st      b^     some 


ohoioe  in  penooa  when  appodn- 
ing  to  an  office  when  the  Council  would 
]>.•  deciding  who  was  the  most  fit  Here 
one  of  the  elements  of  choice  was  the 
getting  of  a  rent  or  the  payment  for  the 
office,  and  counsel  contended  that  the 
payment   by    the    employee   to    the   em- 

i)Ioycr  was  not  con&istent  with  the  Act, 
l-^  also  submitted  that  in  the  case  of 
a  1  office  or  employment  there  should  be 
the  power  of  dismissal.  Here  there 
coulu  be  no  power  of  dismissal,  as  long 
as  respondent  fulfilled  the  conditions  of 
the  contract  .  There  was  no  power  of 
dismissal  on  account  of  his  personal 
misbehaviour,  such  as  an  emplovee  was 
liable  to.  In  the  case  of  employment 
there  would  be  a  power  of  control,  but 
here  there  was  none.  The  Muni- 
cipal Council  was  not  responsible 
for  the  acts  of  the  poundmaster.  He 
aloni*  was  reHponsible.  Counsel  sub- 
mitted that  all  these  things  went  to 
show  that  the  office  of  poundmaster  was 
not  an  office  of  profit.  It  was  a  case 
of  a  lease  into  which  he  entered,  and 
if  it  \yas  a  lease  it  cK>uld  not  at  the 
HI  me  time  be  nn  office  of  employment. 
II'-  snbmittod  that  it  was  not. 

Buchanan,  A.  C.  J.,  said  respoD- 
dent  had  been  returned  at  the 
last  election  of  Muniaipal  CVxinoillons  for 
Aliwal  North.  There  was  a  oontest  for 
the  position,  and  the  candidate  who 
received  the  next  number  of  votes  was 
the  applicant,  who,  however,  was  not 
elected.  He  was  interested  in  making 
this  application  not  only  as  the  defeated 
candidate,  but  as  a  ratepayer.  His  o^ 
jection  to  MoNally's  elootoon  was 
founded  on  the  17th  section  of  the  Muni- 
cipal Act.  Two  years  before  this  efeo- 
tion  the  Coimcil  of  Aliwal  North  leased 
the  pound,  and  the  respondent  was  ap- 
pointed poundmaster  under  a  contract 
for  twelve  months.  The  contract  was 
not  renewed,  but  the  respondent  had 
lK>en  allowed  to  continue  as  pound- 
master  up  to  tho  present  time.  The 
contract  showed  the  various  dutiee  he 
had  to  perform,  how  he  was  to  keep  his 
books,  etc  The  contract  did  not  in- 
volve the  payment  of  salary  to  McNally. 
hut  he  wae  to  receive  payment  from 
fees  of  office.  As  to  MoNally's  present 
occupancy  of  the  office  being  of  a  tem- 
porary nature,  that  was  an  argument 
rather  against  than  for  him.  The  ques- 
tion w«s  whether  or  not  McNally  held 
an  office  of  profit.  His  Lord^ip  thought 
that  he  did  hold  such  an  office.  He 
thought  that  both  the  contract  and  the 
office  held  came  under  the  section, 
and  that  the  respondent  had  no  rfght 
to  stand  for  and  be  elected  to  the  Cour.- 
cil.  It  had  been  stated  that  although 
holding  this  view  the  Court  should  not 
grant  the  application,  with  costs,  be- 
cause of  the  delay  in  taking  proceedings. 
There  might  have  been  something  in 
that  objection  if  McNally  had  resigned 
his  position  on  objection  being  tuen, 
bq.t   he  had   not  yet  resigned.    Uoder 


"OAPB  TIMB8"  LAW  REPORTS. 


789 


ihtme  ommnuianoeB  the  Court  oould  not 
■ee  Any  reaaon  for  departiiicr  from  the 
usual  rule.  The  applioation  would  be 
panted  as  prayed,  mth  costs  figainst 
the  respondeat 

[Applicant's  Attorneys :  Tredgold,  Mc- 
Intyre  and  Biaset;  Respondent's  Attor- 
neys :  Van  der  Byl  and  De  Villiers.] 


OATKS  V.  IK80LVENT  KBTATB8  OF  SMITH 
AND  BUSSRL. 

Mr.  Alexander  moved  for  leave  to 
have  a  certain  proof  of  debt  amended. 

The  affidavit  of  the  applicant  stated 
that  the  respondents  owed  him  £51  for 
rent,  and  £86  17s.  6d.  for  repairs  done 
to  the  house.  Through  some  oversight 
fae  had  forgotten  to  file  his  claims.  He 
wished  the  first  claim  to  rank  as  pre- 
ferent 

There  was  no  oppoaition  to  the  ap- 
plication. 

Order  granted  as  prayed. 


EsB  parts  bezuidrnhout. 

Mr.  Watermeyer  moved  for  an  order 
authorising  the  transfer  of  certain  pro- 
perty. 

Order  granted. 


JSx  parte  potoibteb. 

Mr.  P.  S.  T.  Jones  moved  for  an 
order  for  the  registration  of  a  certain 
transfer  of  a  farm  to  the  petitioner  from 
her  husband,  to  whom  she  had  been  ap- 
pointed curator  in  March.  19C4. 

Order  granted. 


AN8TI0B  V.  ANSTICE. 

Mr.  Gardiner  was  for  the  applicant, 
and  Mr.  P.  S.  T.  Jones  was  for  the 
respondent. 

Mr.  Jones  sajd  the  respondent  had 
n>ade  an  affidavit  asking  for  a  postpone- 
noent  in  order  that  he  might  obtain  cer- 
tain dooumeots  in  connection  with  the 
money  claimed  by  the  applicant. 

Mr.  Gardiner  objected,  as  the  respon- 
dent had  been  in  Cape  Town  since  Sat- 
urday, and  had  had  ample  time  to  ob- 
tain tiie  documents. 

Ordered  to  stand  over  until  the  next 
aitfting  of  the  Court. 


Etc  parte  teubbb. 

Mr.  De  Waal  moved  for  an  order  au- 
thorising the  Registrar  of  Deeds  to  re- 
gister a  certain  notarial  bond. 

Order  granted. 


HOULDER  BB08.  V.  COLONIAL  QOVERN- 

MENT. 

Mr.  Close  was  for  the  applicants ;  Mr. 
Searle,  K.C..  was  for  the  respondent. 
The  application  was  on  notice  ol  motion 
to  have  certain  pleadings  of  the  defen- 
dants   removed   from  the  record. 

Mr.  Close  said  the  declaration  had 
been  filed  about  eighteen  months  ago, 
and  after  several  amendments  and  ex- 
ceptions, the  respondents  noiw  filed  a 
plea,  which  went  beyond  the  order  of 
the  Court 

Formal  leave  was  granted  to  the  de- 
fendants to  amend  their  pleadings  a^ 
tendered,  with  costs  to  date  of  amend- 
ment, and  a  ioint  commission  issued  to 
take  the  evioence  either  party  wishes, 
costs  of  the  application  to  be  costs  in 
the  cause,  Mr.  Oliver  appointed  as 
commissioner. 


Ex  parte  ARNOLD. 

Mr.  Benjamin  moved  to  have  certain 
transfer  passed  in  the  district  of  Somer- 
set West. 

Order  granted. 


Ex  parte  settbrt. 

Mr.  Benjamin  moved  for  the  removal 
of  one  Frank  Percival  Smith  from  his 
office  as  executor  dative  in  the  estate  of 
Panai  Polo,  petitioner's  late  husband, 
and  the  appointment  of  Daniel  McLaren 
Brown,  jun.,  of  Port  Elizabeth,  as  execu- 
tor dative. 

A  rule  nm  was  granted  calling  upon 
F.  P.  Smith  to  show  cause  on  the  16th 
October  why  he  should  not  be  removed 
from  the  office  of  executor,  rule  to  be 
served  personally,  failing  which,  one 
publication  in  the  "E.P.  Herald." 


Ex  parte  oericke. 

Dr.  Greer  moved  for  leave  to  attach 
a  certain  farm  at  Barkly  East  nd  fun- 
dandatn  purisdietionem,  and  to  sue  by 
edictal  citation.  The  petitioner  waa 
suing  for  provisional  sentence  on  a  cer- 
tain promissory  note. 

Leave  granted  to  attach  the  interest 
of  the  respondents  in  the  farm,  and  to 
sue  by  eaictal  citation,  citation  to  be 
returnable  on  the  16th  October,  and  to 
be  served  personally. 


Ex  parte  oratlino. 

Mr.  J.  K  R.  de  Villiers  moved  for 
the  appointment  of  a  curator  ad  litem  to 
petitioner's  wife,  an  inmate  of  the 
Graham's  Town  Asylum.  Counsel  said 
that  the  matter  had  previously  been 
before  the  Court,  when  some  question 
waa   raised  aa   to   whether   the   matter 


790 


«CAFB  TDIES"  LAW  BfiPOBTO. 


oftOM  withm   the   jurifldiction   of      the 
oonrtfi  of  (hii  oolon  j. 

Order  gimnted,  the  Resident  Me^is- 
trate  of  Updiam'i  Town  to  be  cumtor 
ad  Utem,  with  leaie  to  report  to  the 
Ooart  on  affidavit,  sununona  to  be  aenred 
on  the  curator  and  on  the  alleged  luna- 
tic, and  to  be  returnable  on  the  16th 
October. 


LB8TBB  V.  LB8TKB. 

Mr.  WatermeTer  applied  for  a  i«turn 
day  to  be  fixed  in  regutl  to  the  role 
for  leave  to  Bue  by^  edictal  citation. 

His  Lordship  said  that  no  edictal 
citation  was  granted.  The  rule  had 
been  made  absolute  upon  an  application 
for  leave  to  aue  in  forma  pauperis. 


BSADBUBY  V.  THB  NATIONAL  DRILL 
AND  MANUFAOTUBINO  CO. 

Mr.  P.  S.  T.  Jones  moved  for  the 
removal  of  bar  and  leave  to  the  appli- 
cant to  defend  the  action. 

Mr.  Benjamin  was  for  the  respon- 
dents. 

It  appeared  that  the  respondents  had 
obtained  judgment,  under  Rule  329d, 
on  the  31st  August  last  against  the  ap- 
plicant. It  was  now  sought  to  have 
that  judgment  set  aside,  and  leave  given 
to  the  applicant  to  defend  the  action, 
applicant  naving  been  absent  from  the 
Colony,  and  having  no  knowledge  of 
the  previous  proceedings  until  his  re- 
turn. 

Leave  was  granted  as  prayed,  costs  of 
the  application  under  Rule  329d  to  be 
paid  by  applicant,  and  costs  of  the 
present  application  to  be  costs  in  the 
cause. 


HALV0R8BN  V.  ANDEB80N. 

(See  15  0  T.R.,  750.) 

This  was  an  application  upon  notice 
of  motion  for  the  interpretation  of  a 
certain  order  of  Court. 

Mr.  Gardiner  was  for  the  applicant; 
Mr.  Close  was  for  respondent. 

Mr.  Gardiner  eaid  that  the  question 
was  whether  the  contract  on  which  the 
applicant  sued  was  cancelled  by  reason 
of  the  judgment  of  the  Court. 

Buchanan,  A.  C.  J.,  said  that  that 
was  clearly  so.  The  application  would 
be  refusea,  with  costs. 


SUPREME  COURT 


[Before  the  Acting  Chief  Jnstioe,   the 
Hon.  Sir  John  Buchanan.] 


IN  OHAMBER& 


insolvent    estate     WIL-(       1905. 

LIAMSON  V.  BEROL.  \  S«pt.  26th. 

This  was  an  application  by  the  de- 
fendant in  the  action  (Bergl),  for  an 
eztenaion  of  the  time  within  which  his 
evidence  might  be  taken  on  ooimxnisaion 
in  London  before  Mr.  Oliver.  Mr. 
Gardiner  is  for  applicant;  Mr.  Kuaeell 
was  for  respondent. 

The  affidavit  of  Mr.  Robinson,  of  the 
firm  of  Messrs.  Fairbridge,  Ardeme 
and  Lswton^  stated  that  on  the  13th 
July  last  this  Court  granted  a  commis- 
sion de  bene  esse  to  take  the  evidence 
of  appHoant  in  London  before  the  let 
October.  Defendant's  attorney  we.v 
informed  that  the  examination  had 
not  yet  been  held,  and  had  re- 
ceived a  letter  from  Mr.  M.  Bej^gl, 
defendant's  fatlier,  who  represented 
A.  Bergl  in  London,  and  who 
aaid  that  he  was  engaged  on  a 
contract  to  superintend  the  erection  of 
works  for  the  Borrowje  Preserving 
Works,  in  Siberia.  It  was  impoaaible 
for  him  to  get  permission  to  leave 
Siberia  before  January.  The  company 
woiild  not  grant  him  his  paoaporta  to 
leave  for  Eiurope,  and  he  could  not 
cross  the  frontier  without  theuL  De 
fendant^had  (deponent  added)  received 
permission  from  the  company  for  a 
fortnight's  holiday,  and  he  intended  to 
leave  Siberia  about  the  beginning  of 
January,  and  he  had  instructed  his 
attorneys  to  apply  for  an  extension  of 
time  for  his  examination,  until  the 
Ist  February.  If  such  postponement 
be  granted,  defendant  would  be  able  to 
give  his  evidence  in  London  in  Janu- 
ary. 

The  answering  affidavit  of  Mr.  Dold, 
respondents'  attorney,  ^  stated  that  the 
('ourt  ordered  the  evidence  to  be  ta- 
ken on  commission  before  the  1st  Oc- 
tober. The  Master  of  ihe  Supreme 
Court  W88  pressing  the  plaintiff  to  file 
an  account  in  the  insolvent  estate,  but 
plaintiff  was  unable  to  do  so  until  the 
action  wae  decided.  If  the  preaent 
application  were  granted,  the  case  would 
probably  not  be  heard  until  the  April 
term,  and  the  creditors  in  conaequenoe 
would  be  delayed  in  the  settlement  of 
their  claima.  When  defendant,  entered 
into  the  contract  with  the  Russian  oom- 

Ean^,  the  caae  was  already     ripe     for 
earing. 


*'C3At»]B  ^ttllEB"  LAW  RBt>OtllB. 


791 


4*1 


Mr.  Gardiner  for  applicant.  Mr. 
Raasell  for  reapoiKlexii. 

In  BDflwer  to  Has  Lordship,  Mr.  Rus- 
sell said  that  the  aci^ion  was  to  set  aside 
certain  proof  of  the  debt  filed  by  de- 
fendant.^ A  ium  of  £3,000  was  at  stake, 
and  plaintiffs*  case  was  thai  defendant 
owed  money  to  the  estate. 

BuchaJian,  A.  C.  J.,  said  that  he  did 
not  see  why  the  oaae  should  not  oome 
on  for  hearing  in  the  February  term, 
even  if  the  present  application  were 
Sn^<anted.  Had  the  oairn,  he  asked,  been 
set   down    for   trial? 

Mr.  Russell  replied  that  it  had  not 
yet  been  set  down. 

Buchanan,  A.  C.  J.,  said  that  there 
was  no  reason  why  the  conuniasion 
should  not  arrive  in  time  for  the  Feb- 
ruary term. 

Mr.  Russell  submitted  that,  if  that 
were  his  lordship's  view,  the  costs  of 
the  present  application,  at  any  rate, 
should   be  borne  by   defendant. 

Mr.  Gardiner  argued  that  costs  should 
be  costs  in  the  cause. 

Buchanan,  A.  C.  J.,  granted  an  ox- 
tension  of  time  as  prayed,  and  directed 
that  the  case  should  be  set  down  for 
trial  on  the  23rd  February.  There  had 
now,  he  said,  been  two  applications  'n 
this  matter,  and  in  the  previous  one 
the  order  was  thsi  costs  be  oosts  in 
the  cause.  Oosts  of  the  present  ap- 
plication must  be  paid  by  the  appli- 
cant. 


BBTATB  BCHOLTZ  V.  PRINCESS  RADZIWILL. 

Mr.  Benjamin  moved  for  leave  to  set 
down  this  case  for  trial  on  the  9th 
November.  He  said  that  the  re- 
spondent was  being  sued  by  edictal 
citation,  and  notice  was  sent  to  Eng- 
land of  the  trial  for  Thursday,  the 
7th  November.  That  date  was  an 
error,  and  should  have  been  Tuesday, 
the  7th  November.  When  the  agents 
in  London  saw  the  papers,  they  noticed 
the  discrepancy,  and  put  the  matter 
down  for  Thursday,  the  9th  November, 
instead  of  Tuesday,  the  9th.  This 
.  just  brought  the  case  within  the  seven 
days,  according  to  which  a  case  could 
not  be  set  down  for  trial  without  the 
special  leave  of  the  Court.  Notice  had 
Deed  sent  for  Thursday,  the  9th  No- 
vember. That  was  the  correct  date,  but 
unfortunately  plaintiffs  could  not  set  the 
case  down  for  that  day  without  special 
leave.  It  was  necessary  to  nMke  this 
application  now,  because  the  edictal  cita- 
tion would  have  to  be  published  on  Fri- 
day. 

In  answer  to  His  Lordship, 

Mr.  Beniamin  said  that  the  case  would 
probably  oe  undefended.  They  had 
no  reason  to  believe  that  the  Princess 
would  enter   appearance. 

Buchanan,  A.  C.  J.,  said  that  appli- 
cants should  set  down  the  case  for  the 


9th  November,  and  it  would  probably 
then  be  ordered  to  stand  over  till  the 
10th  No>'ember,  when  it  could  be  dis- 
posed of. 


SUPREME  COURT 


[Before  the   Actin^r  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


IN  CHAMBERS. 


BEX  V.  HBNDRIK  JUBL  AND  f        1906. 

TOL  JUKL.  (  Sept.  29th. 

Stock   theft — Hard    labour — Act 
7  of  1906,  Sec.  4. 

Where  a  piisoiter  is  sentettced 
to  pay  a  fine  under  Hec.  4  of 
Act  7  of  1905,  or  in  the  alter- 
native to  a  further  term  of 
imprisofimentf  the  Act  does  not 
atihorize  the  imposition  of 
hard  labour  during  such  ad- 
ditional term. 


Buchanan,  A.  O.  J. :  A  case  has  come 
before  me,  as  Judge  of  the  week,  from 
the  Magiirtrate's  Oourt  at  Britotown, 
in  which  certain  natives  (Hottentots) 
were  convicted  of  stock  thefts,  and 
were  sentenced  to  imprisonment  with 
hard  labour  for  12  months,  and  to  pay 
a  fine  of  £1  each,  or  in  default  a 
further  term  of  one  month's  imprison- 
ment with  hard  labour.  It  has  been 
repeatedly  pointed  out  that  the  Act 
No.  7,  1906,  does  not  provide  for  hard 
labour  in  the  alternative  imprisomment, 
whefe  a  fine  has  been  imposed.  The 
sentence  and  conviction  will  be  confirm- 
ed, but  the  sentence  will  be  amended 
by  striking  out  the  words  "bard  la- 
bour.'» 


LUPTON  V.  EDEL8TEIN. 

Mr.  Swift  moved,  on  the  petition  of 
Bingley  Fairbank  Luptron  for  an  order 
restraining  Anastasius  Trupos  from  pay- 
ing  over  certain  money  to  the  respond- 
ent, Charles  Edektein,  pending  an  action 
to  be  instituted  by  the  petitioner,  and 
for  leave  to  sue  by  edictal  citation.  The 
petitioner  set  out  thai  respondent  owed 


792 


"CAPE  TDflSS'*  LAW  ttBPORTfi. 


petitioner  a  sum  of  £50,  with  intereet, 
m  reepecl  of  a  promiflaory  note,  and 
that  he  had  cauaed  a  eummons  to  be 
issued.  Thifl,  however,  had  not  been 
served,  the  endorsement  stating  that  the 
respondent  now  resided  at  Bethulie, 
O.K.C.  Petitioner  believed  that  re- 
spondent reaided  beyond  the  jurisdiction 
of  the  Court.  He  had  ascertained  that 
on  or  about  September  30  a  sum  of  £100 
would  become  payable  to  the  respondent 
by   one    Anastatiua   Trupoa.    of       Cape 


Town,  and  he  prayed  ^that  ihia  sum 
should  be  attached,  pending  an  aciioo. 
Rule  fUM  granted,  attachmg'  the  sum 
of  £100  in  the  hands  of  Anastatios  Tru- 
pos,  due  to  the  defendant,  Edelstein, 
and  leave  granted  to  the  petitioner  k> 
sue  bv  edictal  citation,  citation  to  be 
served  personally,  and  to  be  returnable 
on  October  26,  leave  to  be  reserved 
to  set  aside  the  rule  to  any  other  cre- 
ditor having  rights  against  the  said 
sum. 


*'.Cape  Times"  Law  Reports. 


CASES  BECIDED  IN  THE  SUPEEME  COURT, 


CAPE   COLONY. 


SUPREME  COURT 


[Before  the  Actingr  Chief  Jiutice,  the 
Hon.  Sir  JoHK  Buchanan.] 


BLAAUWKLIP     OARDBN    CO.  f       ,q^,. 
V.  FAURE,    VAN  EYK    AND<    rk«*    Av 
MOOBB.  (  ^^^-  **^- 

Mr.  Douglas  Buchanan  moved,  on 
behalf  of  the  defendants  in  the  action, 
for  leave  to  amend  the  plea. 

Mr.  M.  Bisset  (for  plaintiffs)  applied 
for  leave  to  amend  the  declaration  and 
replication. 

The  amendments  were  allowed,  and 
ordered  to  be  filed  within  fourteen  days, 
coats  to  be  costs  in  the  cause. 


WORDON  V.  ESTATE  WORDON. 

Mr.  Benjamin  moved  for  judgment  in 
torma  of  a  consent  paper.  The  action, 
he  said,  had  been  brought  to  set  aside 
a  certain  will.  Various  allegations  were 
made,  and  those  allegations  had  now 
been  withdrawn,  and  a  consent  paper 
had  been  signed  between  the  parties. 
He  appeared  for  the  first,  second,  and 
further  defendants.  All  the  parties  had 
signed   the  consent  paper. 

Judgment  entered  in  terms  of  consent 
paper. 


WAITE  AND  HARVEY  V.  YOUNO. 

Water  Conrt—Act  40  of  1899— 
Appeal — Review. 

Act  40  of  1899  makes  no  pro- 
rision  for  an  appeal  from  a 
decision  of  a  Water  Court 
thereunder  constituted,  Stich 
decision  may,  however,  be 
brought   under   review    by   a 


superior  court  on  any  of  the 
ugital  grounds. 


This  was  an  appeal  from  a  decision  of 
the  Water  Court  of  Humansdorp.  Mr. 
Benjamin  wss  for  the  appellants;  Mr. 
McGregor  was  for  the  respondent. 

Mr.  McGregor  said  that  he  had  had 
no  notice  of  the  appeal,  and  he  under- 
sto<xl  from  the  Registrar  that  none  had 
been  given.  At  the  same  time,  the 
question  arose,  why  wss  his  learned 
friend  there?  This  was  an  appeal  from 
a  <iecision  of  the  Water  Court  of  Hu- 
mansdorp. Under  certain  sections  there 
was  an  appeal,  and  under  other  sec- 
tions  there  was  not. 

Mr.  Benjamin  said  that  the  other 
side  had  had  notice,  inasmuch  as  his 
learned  friend  Mr.  Burton  had  ap- 
peared from  time  to  time,  and  the  mat- 
ter had  been  allowed  to  stand  over. 

[Buchanan,  A.  C.  J. :  You  were  not 
in  the  case  originally.   Mr.   McGregor?] 

Mr.    McGregor :     No.  I    am    told 

there  is   no   notice  of   appeal. 

[Buchanan,  A.  C.  J.:  I  think  there 
must  have  been  some  notice,  because 
here  the  assessors  give  their  reasons 
for  judgment.] 

Mr.  McGregor  said  that  he  had  no 
objection  to  the  appeal  being  proceeded 
with  subject  to  rignt  being  reserved  to 
raise  subsequently  the  questions  of 
whether  notice  Wd  been  given,  and 
whether  an  appeal  lay  against  the  de- 
cision of  the  Water  Court. 

Mr.  Benjamin  said  that  this  was  an 
appeal  under  section  15,  Act  40  of 
1899,  from  a  decision  of  the  Water 
Board  for  the  district  of  Humansdorp. 
The  appellants  were  sued  by  the  pro- 
sent  respondent  for  an  order  to  compel 
them  to  observe  «  certain  distribution 
of  water,  alleged  to  have  been  agreed 
UDon  between  the  predecessors-in-title 
of  the  parties.  Shortly  put,  the  point 
was  this,  that  the  defendants  (the  pre- 
sent appellants)  had  no  netice  of  such 
an  agreement,  an(}  that  such  agreement, 


794 


II 


CAPE  TIMES"   LAW  REPORTS. 


if  it  exifited  at  ali,   had  not  boon  regis- 
tered againht  the  title-deeds  of  the  pre- 
decessor-in-title  of      either  the      appel- 
lants or    the  respoudent.        The      thir*! 
question  that  arose  was  a:>  to  what  this 
arrangement  -was  whether  it  referred  to 
the  ivater  that  was  led  out  of  a  parti- 
cular dam,  or  whether  it    referred  gen- 
erally to  the  water  in  tho  river,   which 
either  ran      through  the     properties  or 
which    was    the    boundary    of    the   pro- 
perties?      The   farm   in   Question      wae 
called   "Klein  River,"    and  situate  near 
Hankey.       The  plaintiff     (now     respon- 
dent)  became  owner  in   1874;      the  first 
defendant    (now        appellant)        became 
owner  in   1885,    and   the     second  defen- 
dant became  owner     about     two  years 
ago.       The  farm  was,  roughly,   divided 
into  four  eaual  parte,  three-fourths  being 
owned    by  the  present  respondent,  and  tha 
ramatning  fourtfa  by  the  appelUnis.     It 
appeared     that    about    sixty    years    ago 
the    farm    Klein    River   was   owned    by 
one    Ferreira,    who    had    four   ohilJrcn, 
and     flub-divided     the     farm      betweou 
the  four  children.       They  took  undivid- 
ed shares  in   the  farm.    C.   J.   S.    Fer- 
Teira,  who   was  the  predecessor  in  title 
ol  the    preseiMt    appellants,    owned    one- 
fourth.     The  three  ofDher  shares  of  one- 
fourth    each    oame    into    trhe    hands    of 
the  husband  of  one  of  the  children,  and 
Mr.    Harvey,  apparently  no  relation    of 
the    defendant    Harvey.       Those    shares 
aPterwazxls  came  into  the  hand^  of  one 
Board,  and  from  his  hands  they  parsed 
into   the    hands  of   the   present   respon- 
dent.     At  the  time   when  old  Mr.  Fer- 
reira  divided    the   property  between   his 
c'hildren  there   was  a  dam  called  No.  1 
dam,    with    a  sluit   leading    ou<'.       The 
appellants,  ow^ning  one-fourth,   were  the 
upper  proprietors,   and  the  respondents, 
owning    threenfourthe,     were    the    lower 
proprietors.       Old  Mr.   Ferreira,    in    di- 
vidmg  his  farm  between  his  four  child- 
ren,   made    (sume     arrangement     as     re- 
garded the  water,  each  of  the   children 
to  have  a  fourth  sh^ire,   in  the  order  of 
four  days  each  in  each  period  of  six'teen 
days.       In    regard    to  this   point    there 
was    a    dispute    as    to   whether   the    ar- 
rangement referred  merely  to  the  water 
in  No.  1  dam  or  whether  it  referred  to 
the  water  to  which  the  farm  Klein  River 
was  generally  entitled.    Young  acquired 
the  property  about  1874.      In    1878   an- 
other   dam    was    constructed      by    one 
I/aaitz,   who    had  leased  from  C.    J.    S. 
Ferreira.     Th«t  dam  did  not  oome  into 
the  case,  haying  subsequent  to  rts  con- 
struction  been   disused   and    closed    up. 
When      Mr.      Wadte  acquired  the  pro- 
perty he  made  No.  3  dam,   whioh   was 
higher    up   the   river,    and    from    which 
his    landd  could       be    watered.        That 
was    about    20    years    ago.        The    dam 
was      constructed    on    another   property 
called  Klein  Fontein.  A  protest  was  made 
by    Young,    but  nothing   came  of   it   at 
the   time.        When    Mr.    Harvey   came, 
Waite   and      be   proceeded   to   irrigate 


their   land   through  certain    pipes  which 
they  laid   down,   and     conveyed      wat-or 
from  dam  No.   3.      Recently  action    had 
been  taken  by  thc^  resixjndent  t-o  have   it 
declared,    firstly,    that    the    arrangemer^t 
which    had    been    entered    into   beiv/eofx 
the    Ferreira    children    when    they     fiad 
taken   possession    of    the    property,  from 
their     father      was      an      arrangement 
w-hich     referred    not    to    the    wajter     in 
the  dam,  but  to  the  water  in  the  river, 
and,  secondly,   to  have  it  declared  th»t 
thirs  arrangemnt  made  between  the  Fer- 
reira  children    was    binding    upon    tho 
present  appellants.     The  plaintiff  claim- 
ed   an    order  in  terms   of  the    arrange- 
ment and  £50  damages.      He  Baid  that 
the    defendants    had    repeatedly    drained 
the    river,    and    had   taKon    water    from 
it    out    of  their    turns. 

The  Water  Court,  in  their  reasons 
for  judgment,  said  that  they  found  in 
favour  of  the  plaintiff,  and  assessed  the 
damage  that  ho  had  sustained  at  JB32 
lOs. 

Mr.  Benjamin  eaid  that,  as  regarded 
the  side  is&ue  raised  in  the  reasons  for 
judgment  as  to  what  was  a  ^ir  and 
equitable  distribution  of  the  wat<?r,  no 
evidence  had  been  lead  in  the  Court 
below  upon  that  point,  and  the  defend- 
ants were  not  called  upon  to  meet  an 
indefinite  case  of  that  kind.  He  sub- 
mitted that  the  only  question  to  be  de- 
termined by  the  Court  was  whether 
there  was  an  original  agreement  between 
the  parties  which  was  now  binding  uFK>n 
the  present  owners  of  the  property.  He 
submitted  that  there  had  been  no  regis- 
tration of  any  alleged  servitude  in  the  in- 
terests of  the  present  plaintiff.  If  there 
had  been  no  registration,  then  the  ques- 
tion arose,  had  there  been  due  notice  to 
the  present  owners  of  the  property  of  anv 
arnangmont  that  would  be  binding  up- 
on them?  He  contended  that  no  such 
due  notice  had  been  given.  He  mh- 
minted  that  the  dis'tribution  thatt  took 
place  when  the  division  of  the  laim 
was  made  was  the  distribution .  of  the 
water  in  the  dam,  and  not  the  river  was 
made. 

Mr.  McGregor  argued  that  if  a»i 
agreement  had  been  admitted,  then 
the  parties  mufit  be  deemed  to  l.ave 
taiken  the  Water  Court  as  being  ihe 
arbiter,  and  his  learned  friend  could 
not  come  into  court  under  section  15 
of  the  Act.  It  was  significant  that  in 
this  case  the  Water  Court  had  gone  into 
the  question  of  what  would  be  a  fair 
and  reasonable  didtribuition.  His  Ica^'n- 
ed  friend  had  intimated  that  he  came 
into  oourt  on  section  15;  section  15, 
according  to  his  own  showing,  d?d  not 
applv,  and  he  had  not  yet  satisfied 
his  lordsihip  on  what  ground  he  was 
entitled  to  come  to  this  Court.  He 
submitted  that  his  learned  friend  ciu'd 
not  bo  heaxd  on  appeal  that  day  at  all. 
It  was  significant  that  counsel  should 
say  that  this  matter  mast  be  dea'r  with 
rigorously,    apd    only    a^    a  matter    of 


"CAPE  TIMES"  LAW  REPORTS. 


795 


agreeni<n)t.  It  was  true  that  no  servi- 
tude had  been  registered  against  the 
property,  but  against  that  they  had  the 
only  »tanding  eysrtem  Which  had  existed 
from  time  immemorial,  and  the  furt.her 
fact  th»t  the  division,  after  being  in- 
formally entered  into  between  the  father 
and  the  children  many  years  back,  was 
thereafter,  owing  to  difficulties  arising 
between  the  parties,  made  a  matter  of 
arbitration.  The  award  could  not  be 
traced,  but  one  might  fairly  preeume 
tha<t  the  arbitrator  would  give  to  the 
party  that  had  three-fourths  ol  the 
land  three-fourtha  of  the  wuter.  Mr. 
McGregor  dwelt  ait  some  length  on  the 
point  as  to  whether  this  matter  should 
nave  come  before  the  Court  by  way  of 
amieal  or  review. 

Mr.  Benjamin,  in  reply,  submitted 
that  if  the  Court  should  hold  that  there 
were  no  grounds  of  appeal  his  clients 
were  entitled  under  the  Charter  of  Jus- 
tice to  ask  the  Court  to  review  the  de- 
cision of  the  Water  Court. 

Buchanan,  A.C.J. :  I  am  not  aware 
that  there  has  been  any  decision 
of  this  Court  upon  the  construction 
now  sought  to  be  placed  upon 
the  Water  Court  Act,  No.  40,  1899, 
on  the  points  raised  in  issue  in 
this  case.  The  Parliament  of  this 
country  sought  by  that  Act,  it  seems 
to  me,  to  revert  to  the  former  practice 
which  was  in  existence  in  this  country 
of  having  disputes  between  farmers 
relative  to  water  rights  settled  on  the 
spot  by  a  Court  of  Heemraden,  and  the 
place  of  that  Court  of  Heemraden, 
which  has  been  abolished,  was  sought 
to  be  filled  by  the  Water  Court  created 
by  this  Act.  The  powers,  duties,  and 
mode  of  procedure  of  the  Water  Court, 
as  indicated  by  the  Act,  are  very  simi- 
lar to  those  which  were  follow^ed  by 
the  old  Court  of  Heemraden.  Their 
decisions,  unlike  the  decisions  of  arbi- 
trators, would  under  this  Act  be  bind- 
ing upon  the  parties,  and  I  see  under 
one  section  the  decisions  of  the  Water 
Court  may,  without  reference  to  the 
Supreme  Court  for  confirmation  or 
otherwise,  be  registered  against  the 
titles  of  the  persons  affected  by  the  de- 
cision of  the  Water  Court.  The  Water 
Court  in  the  present  case  found,  as  a 
fact,  that  the  agreement  related  to  the 
whole  of  the  water  in  the  river,  and 
not  the  distribution  only  of  such  water 
as  happened  to  get  into  the  sluit  which 
was  led  out  of  the  river.  The  Court 
below,  I  think,  decided  this  question  on 
sufficient  evidence.  The  Water  Court 
found  that  the  use  of  the  water  in  the 
Klein  River  was  intended,  and  that 
the  present  applicants  are  entitled  to 
the  use  of  water  for  4  days  out  of  every 
sixteen,  and  that  Young  is  entitled  to 
have  12  days  out  of  every  sixteen  in 
the  older  portion  of  the  river,  and  they 
made  an  order  accordingly.  This  order 
does  not  interfere  with  any  right  which 
th''  applicants   may   or  may    not  have 


to  take  their  four  days*  turn  of  water 
out  of  the  stream  higher  up.  That 
matter  is  still  left  open.  Tne  Water 
Court  support  their  finding  upon  the 
older  portion  by  saying  that,  after  be- 
ing on  the  spot  and  investigating  the 
cape,  this  apportionment  seems  to  bo  a 
fair  apportionment  of  the  water.  Now 
the  5th  section  of  the  Act  which  em- 
powers the  Water  Court  to  investigate 
any  agreement  or  understanding 
whether  written  or  unwritten,  does  not 
contain  any  reference  to  a  means  of 
bringing  a  decision  of  the  Water  Court 
before  this  Court  on  appeal,  and  I 
think  it  may  well  be  that  the  Legisla- 
ture intended  the  Water  Court  to  settle 
the  question  without  further  appeal, 
and  I  am  suppoited  in  this  view  bv 
looking  at  the  next  section.  I  think 
that  the  Act,  as  worded,  supports  the 
construction  sought  to  bo  put  upon  it 
by  Mr  McGregor,  that  there  is  no  ap- 
peal in  a  case  such  as  is  now  before  the 
Court,  and  I  think  it  is  quite  possible 
that  it  was  intended  that  there  should 
be  no  such  appeal.  I  hold,  therefore, 
that  under  this  Act  the  question  w'bich 
was  referred  to  the  Water  Court  in  this 
case  is  one  which  there  is  no  right  of 
appeal  against.  At  the  same  time^  of 
course,  this  Court  has  always  the  right 
of  control  over  the  proceedings  of  any 
inferior  Court,  and  to  correct  any  in- 
formality or  malpractice.  As  I  hold 
that  thore  is  no  appeal  from  the  Water 
Court,  the  only  question  that  remains 
is  whether  in  order  to  save  expense  the 
Court  should  say  whether  there  is  any- 
thing indicated  which  would  induce  the 
Court  to  interfere  with  the  decision  of 
the  Court  below.  Looking  at  all  the 
circumstances  of  the  case,  looking  at 
the  decision  given  by  the  Water  Court 
and  the  fact  that  their  finding  is  justi- 
fied by  the  evidence,  I  think  that  this 
is  a  case  in  which  there  would  be  no 
likelihood  x)f  a  review  succeeding  against 
the  decison  of  the  Water  Court.  This 
must  bo  treated  as  an  application  to 
the  Supreme  Court,  and  the  order  of 
this  Court  will  be  that  the  application 
is  dismissed  with  costs. 


In  re  INSOLVBSCY  Stevenson. 

Mr.  Benjamin  moved,  as  a  matter  of 
urgency,  on  behalf  of  the  Board  of 
Executors,  ea  executors  in  the  estate  of 
the  late  William  Hiddington,  for  the 
appointment  of  Mr.  Johannes  H.  N. 
Roos,  secretary  of  the  Board,  as  pro- 
visional trustee  in  the  insolvency  of 
Henry  Stevenson,  of  the  Annandale 
Hotel,  Cape  Town^  for  power  to  carry 
on  the  hotel  pending  the  election  of  a 
trustee   by   the   creditors. 

An  order  was  granted  appointing  Mr. 
Roos  as  provisional  trustee  with  power 
to  carry  on  the  hotel. 


796 


i< 


CAPE  TIMES"  LA,W  REPORTS. 


SUPREME  COURT 


[Before  the  Acting?  Chief  Justice  (the 
Hon.  Sir  John  Buchanan)  and 
the  Hon.  Mr.  Justice  Hopley.] 


qOULTON  y.  BULL. 


I       1905. 
I  Oct,  11th. 

This  was  an  application  on  notice  of 
motion  for  an  oraer  of  releane  from  civil 
impiisonment,  and  for  a  discharge  of  the 
decree  of  civil  imprisonment  against  the 
applicant  (Bull).  The  apphcant  ie  a 
doctor,  who  had  recently  opened  prac- 
tice at  Uitenhage,  and  the  respondent 
is  also  a  medical  man.  The  respondent 
had  promised  not  to  press  his  claim 
until  the  applicant  aatisfied  another 
debt,  and  the  applicant  pointed  oirt  in 
his  affidavit  that  some  of  his  patients 
were  in  a  critical  state,  while  ne  was 
being  detained  in  prison.  The  appli- 
cant, an  his  affidavit,  set  out  that  his 
income  was  not  sufficient  to  enable  him 
to  pay  anything. 

Mr.  Upington  was  for  the  applicant 
and  Mr.  Gardiner  was  for  the  respon- 
dent. 

Buchanan,  A.  C.  J.,  pointed  out  that 
the  paucity  of  information  in  the  affi- 
davits with  regard  to  the  applicant's 
property,  and  suspended  the  decree  on 
the  applicant  paying  £3  a  month. 


MZUBELO    AND    OTHERS 
NDABA  AND  ANOTHER 


]  Oct. 


1905. 
nth. 
12th. 


Deed    of    grant — Rectification — 
Tribal  tenure — Trust. 

Chie  Manguzela^anat'iDe  Chiefs 
licul  purchased  tiro  farms  with 
Kuhscriptious  raixed  amou(j  the 
people  of  his  trihfi  for  the 
jmrpose  of  exteiiding  his  loca- 
tion. At  the  suggeHtion  of  the 
Ji.M.j  the  property  was  traus- 
f erred  to  the  Chief  his  Head- 
men and  C(mHcillor»^  irithout 
mention  of  any  triist.  Two 
of  tJiese  people  noin  cl aimed 
dominium  in  pro  rata  undi' 
vided  shares  of  the  farms 
purchased. 

Held,  thai  the  farms  had  been 
transferred  to  them  only  in 
trust  for  Oieir  tribe  :  and  that 
the  deed  of  grant  must  be  so 
amended  as  to  ejrpre,'S  that 
trust. 


This  was  an  action  for  the  rectifica- 
tion of  a  certain  deed  of  grant  of  two 
farms  in  Fiost  Griqualand' 


The  declaration  wa^  as  follows: 

1.  The  plaintiffs  and  defendants  are 
members  of  that  section  of  the  Amah- 
lubi  lril)e  under  the  late  Chief  Man- 
guzela,  and  reside  at  Matatiele,  in  the 
district  of  East  Griqualand,  in  this  col- 
ony, 

2.  On  or  about  the  26th  day  of  April, 

1894,  and  during  the  lifetime  of  the 
said  Mangubela,  one  John  Shepherd 
Bimpson,  duly  authorised  thereto,  pur- 
chased from  the  Colonial  Government, 
under  the  conditions  and  regulation.s 
contained  in  the  Act  15  of  1887,  and  in 
certain  deeds  of  grant,  hereinafter  re- 
ferred to  for  and  on  behalf  of  the  peo- 
ple of  the  said  section  of  the  Amahlubi 
tribe,  certain  two  farms  situate  in  the 
•aid  district  and  known  as  **  Simpson  " 
and  **  Polygon,"  for  the  sums  respec- 
tively of  £1.010  and  £780  sterling. 

3.  The  said  sums  so  far  a»  necessary 
were  raised  by  public  subscription 
amongst  the  people  of  the  said  section 
of  the  said  tribe,  and  the  whole  of  the 
said  purchase  prices  has  been  paid  for 
and  on  behalf  of  the  said  people. 

4.  On  or  about  the  25th  day  of  Juno, 

1895.  oertnin  two  deeds  of  grant  wore 
executed  in  pursuance  of  the  said  con- 
tract of  sale,  whereby  the  said  two  farms 
were  granted,  oeded,  and  transferred  to 
the  said  Chief  Manguzela,  Rarnati.  So- 
bago,  Jafta,  the  plaintiffs  and  defend- 
ants with  full  power  and  authority 
thenceforth  to  possess  the  same  in  per- 
petuity, subject  to  certain  conditions 
therein  set  forth  to  which  it  is  unneces- 
sary to  refer  more  fully.  The  plain* 
tiffs  annex  hereto  copies  of  the  said 
deeds  of  grant  which  they  pray  may  be 
considered  as  if  inserted  herein. 

5.  It  was  at  all  times  material  to  this 
case  the  true  iivtention  and  meaning  of 
%11  the  parties  to  the  deed  of  grant  that 
the  said  farms  should  be  granted,  ceded, 
and  transferred  to  the  persons  mention- 
ed in  the  last  preceding  paragraph  in 
trust  for  the  said  seotion  of  the  said 
tribe,  which  is  entitled  to  all  the  right, 
title,  and  interest  in  and  to  the  said 
farms,  under  and  by  virtue  of  the  said 
deeds  of  grant,  but  by  mistake  or 
"Justus  error"  the  said  deeds  of  grant 
were  signed,  and  executed  in  the  form 
set  out  in  the  laet  preceding  paragraph. 

6.  Subsequently  to  the  signing  and 
execution  of  the  said  deeds  of  grant 
the  Chief  Manguzela  and  the  said  Rar- 
nati, Sobago,  and  Jafta  died. 

7.  Thereafter  the  defendants  claimed 
and  still  claim  to  be  entitled  in  full  and 
free  ownership  to  an  undefined  one- 
eleventh  share  each,  in  each  of  the  said 
farms,  and  have  wrongfully,  unlawfully, 
and  in  violaition  of  the  true  intention 
and  meaning  of  the  parties  to  the  said 
deeds  of  grant,  purported  to  sell  and 
have  attempted  to  transfer  their  said 
shares. 

8.  Thereafter  on  or  about  the  17th 
dav  of  November,  1903.  this  Honour- 
able Court  granted  an  interdict  restraq^- 


••CAPE  TIMES"  LAW  REPOfetS. 


7^ 


ing  the  transfer  by  the  defendants  of 
&ny  portion  of  the  said  farms,  pending 
an  action  to  be  forthwith  brought  by 
the  plaintiffs  against  the  defendants  for 
rectification  of  the  title  deeds  of  the 
said  farms. 

9.  By  reason  the  premises  the 
plaintiffs  are  entitled  to  claim  that  the 
said  deeds  of  grant  be  rectified  so  as 
to  carry  out  the  true  meaning  and  in- 
tention of  the  parties  thereto,  by  the 
insertion  in  each  of  the  said  deeds  of 
grant  between  the  words,  **  Willie  Nda- 
ba,"  and  "  the  aforesaid  piece  of  land  " 
of  the  words  *'  in  trust  for  that  section 
of  the  Amahlubi  tribe  under  the  late 
Chief  Manguzela,"  or  of  such  other 
words  as  will  give  effect  to  the  said 
meaning,   and  intention  of  the  parties. 

The  plaintiffs  claim :  (a)  Rectification 
of  the  said  deeds  of  grant  as  set  forth 
in  paragraph  9;  (b)  alternative  relief; 
(c)  costs  of  suit. 

For  a  plea  in  abatement  the  defend- 
ants set  out  that  the  plaintiffs  wore  not 
entitled  to  have  and  maintain  the 
action  against  them  without-  joining 
the  Colonial  Government,  who,  as  gran- 
tors, wore  directly  interested.  On  29th 
July,  1895,  the  parties  jointly  and  seve- 
rally executed  and  registered  in 
favour  of  the  Colonial  Government 
a  mortgage  bond  for  the  sum  of 
£1.432.  The  defendants  admitted  they 
belonged  to  the  Amahlubi  tribe,  but  de- 
nied that  they  were  members  of  the 
section  which  wafi  under  the  late  Chief 
Mang^uzela  They  denied  that  Simpson 
was  authorised  to  purchase  the  farms 
for  the  people  of  the  section,  and  thev 
set  out  that  thev  were  entitled  to  sell 
their  shares  and  to  obtain  from  the 
plaintiffs  the  original  deeds  of  grant  for 
the  purpose  of  passing  transfer  to  one 
Kirk. 

Mr.  Upington  (with  him  Mr.  D. 
Buchanan)  for  plaintiffs.  Mr.  Benjamin 
for  defendants. 

Mr.  Upington  said  that  the  Govern- 
ment did  not  wish  to  intervene  in  the 
action,  but  the  Acting  Chief  Justice  or- 
dered the  Government  to  be  formally 
joined  as  co-defendants,  in  order  that 
the  mortgage  bond,  if  necessary,  might 
also  be  rectified.  The  evidence  taken 
on  commission  was  read. 

Mr.  Upington  said  that  in  this  case 
the  plaintiffs  sought  to  have  the  grants 
of  two  pieces  of  ground  rectified  so  as 
to  carry  out  what  they  alleged  to  be 
the  true  intent  and  meaning  of  the 
parties  at  the  time  when  the  purchase 
was  entered  into,  and  they  alleged  that 
the  form  in  which  the  documents  were 
drawn  up  did  not  carry  out  that  true 
tnrtent  and  meaning,  and  that  this  was 
due  to  a  mistake.  As  to  what  the  true 
purpose,  intent,  and  meaning  of  the 
two  deeds  of  grant  actually  was  there 
could  be  very  little  doubt,  because  upon 
that  point,  so  far  as  the  main  features 
of  the  case  was  concerned,  in  spite  of  the 
-vast  amount  of  evidence  that  had  been 


led,  there  really  was  verv  little  at  issue 
between  plaintiffs  and  defendants.  It 
was  admitted  that  Manguzela  called  his 
people  together,  that  the  people  contri- 
buted, that  at  the  first  meeting,  or 
some  time  before  and  after,  the  sum 
of  £300  was  contributed,  and  that  a 
large  number  of  people  who  had  con- 
tributed did  not  appear  on  the  title 
deeds.  He  did  not  intend  to  enter 
into  a  nice  analysis  to  show  the 
names  of  the  contributors  and  the 
amounts  they  had  contributed,  because 
these  were  admitted.  Consec^uentlv,  he 
submitted  that  a  large  portion  of  the 
plaintiffs]  case  was  made  out.  It  was 
highly  improbable  tha*  these  people 
contributed  for  the  purpose  of  making 
11  natives,  including  the  two  defendants, 
Breakfast  and  Ndaoa,  co-proprietors  in 
their  own  right  of  the  two  farms  **  Simp- 
son and  Polygon,  and,  in  fact,  when 
the  direct  evidence  was  looked  to  it 
was  at  once  seen  that  that  clearly  was 
not  the  case.  Counsel  proceeded  to 
quote  from  the  evidence  of  Mr.  Simp- 
son, who  stated  that  while  R.M.  of 
Matatiele  he  was  approached  bv  the 
Chief  Manguzela,  who  was  afraid  that 
the  farms  were  going  to  fall  into  the 
hands  of  the  Europeans,  and  who  was 
anxious  to  keep  tne  property  for  his 
own  tribe.  These  farms,  according  to 
Mr.  Simpson,  were  purchased  in  order  to 
enlarge  the  location  and  to  protect  the 
location,  and  in  the  course  of  his  evi- 
dence he  said  thai  from  an  administra- 
tive point  of  view  it  was  necessary  that 
the  farms  should  be  added  to  the  loca- 
tion, and  that  he  consadered  it  his  duty, 
as  Magistrate  of  the  district,  to  interest 
himself  on  the  natives'  behalf.  Counsel 
went  on  to  comment  on  the  fact  that 
of  the  £500  or  £600  oQntributed,  every 
penny,  with  the  exception  of  £20  or 
£30,  was  subscribed  oy  people  other 
than  the  two  defendants.  Ho  also  point- 
ed out  that  these  farms  had  always  been 
looked  upon  by  the  Government  as  part 
of  Manguzela's  location. 

Mr.  Benjamin  said  that  a  great  mass 
of  evidence  had  been  led,  and  there 
was  a  great  conflict  in  the  testimony 
given  by  the  witnesses.  The  defendants 
clearly  intended  to  purchase  a  share  of 
the  farms,  and  they  contributed  certain 
sums  towards  the  purchase  of  the  pro- 
perty. It  was  true  that  a  contract  nad 
been  entered  into  between  the  defend- 
ants and  Mr.  Kirk,  but  it  was  not  Mr. 
Kirk  who  was  now  before  the  Court, 
but  the  defendants.  It  was  dear  from 
their  evidence  that  the  defendants  would 
not  have  contributed  unless  they  had 
thought  they  were  going  to  have  a  fixed, 
definite  interest  in  the  farms.  Wthatever 
Mr.  Simpson's  explanation  may  have 
been,  the  defendants  thought  they  were 
going  to  have  a  heritable  right.  If  Mr. 
Simpson  did  say  at  the  time  that  the 
farm  was  to  be  bought  ''in  trust,"  then 
one  would  like  to  know  what  were  the 
words  used  by  the  interpreter  in  con- 


?98 


"CAPE  TIMES"  LAW  REPOttTd. 


voying  the  idea  to  the  defendants.  He 
submitted  that,  while  the  defendants 
would  not  be  entitled  to  a  full  eleventh 
share  each  of  the  property,  they  were 
BX  least  entitled  to  a  share  proportion- 
ate to  the  amount  of  money  they  had 
contributed.  If  the  prayer  in  the  plain- 
tiff's declaration  were  granted  then  the 
defendants  would  be  outcasts.  Counsel 
submitted  that,  as  against  defendants, 
plaintiffs  were  not  entitled  to  succeed  in 
this  action 

Buchanan,   A.   C.   J. :        Prior  to    the 
year  1894  the  native  chief  or    headmfan 
iVlanguzela   and    his   people   occupied    a 
location  on  Crown  ground  in  the  Mata- 
tiele    district.       Adjoining    this   location 
were  certain  other    Crown  lands,   which 
the  Government  resolved  to  sell.     Before 
the  sale  the  chief  and  some  members  of 
liis    tribe   had   spread    their   borders   on 
to    some    of    these    unoccupied       Crown 
lands,  and  were  living  there  at  the  time 
of    tiie  sale.       When  the    sale   was  first 
mooted       Manguzcla    had    an    interview 
with    Mr.    Simpson,    the    Magistrate    of 
Matatielo,  with  a  view  to  the  chief  buy- 
ing the  land  which  vvas  about  to  be  put 
up  for  auction  adjoining  his  location  for 
the    use  of  his    sub-tribe.       On   looking 
into   the   diagram   it   is   very   clear    why 
it  was  desirable  that  the  farms  Polygon 
and   Simpson  should  be    bought  for  the 
tribe  or  should  be  annexed  to  the  loca- 
tion of  the    Chief  Manguzela,    not  only 
as  giving  them  access  to  the  water,  but 
al^o  as  affording  additional  grazing  and 
arabl?  land.     The  Chief  took  Mr.  Simp- 
ji^^'ii's  advice  and  called  a  meeting  of  his 
people  for  the  purpose  of  discussing  the 
purchase,    and    at   the   meeting    in    the 
language  of  allegory  so  much  in  favour 
with  the  natives,  as  one  of  the  witnesses 
said,    "  he  represented    as   the   Chief  of 
his  people  that  he  was  about  to  marry 
a   daughter    of   the      Government,    and 
wanted  their  assistance  in  providing  the 
usual  dowry*' — in   other  words,   that  he 
wanted   to  buy   this   land   and    that   he 
wanted      his      people     to  assist  him  in 
buying  it.     The  people  responded  to  the 
request,   and  a  numoer  of     them     sub- 
scribed     cattle,    which  were   afterwards 
sold,  and  the  proceeds  paid  over  to  the 
Magistrate.     Tne  two  defendants  Ndaba 
and   Breakfast,   each    contributed  cattle, 
which      were      afterwards    sold  for   £10. 
The  Cliief  himself  contributed  some  £30 
or  £40  and  other  members  of  the  tribe 
contributed,    some   more  and  some  less. 
The  money  subscribed  was  about  £300. 
Later  on    Mr.    Simpson,    acting  for    the 
tribe,    bought    those    two    farms.        Mr. 
Simpson    was  then  removed  from  ^lata- 
tiole  to  Mount  Fletcher.     When  the  land 
had   been  bought  he  had  suggested  that 
the   transfer   or   grant  should    be    made 
not  only  in  the   Chiefs  name,  but  that 
the   names   of  the    headmen    and   ooun- 
sollors   should   be  inserted    in   the   deed. 
This  suggestion  was  adopted.     The  gr&nt 
was  made  out  in  the  names  of  the  Chief 


and  theee  ten  counsellors,  but  without 
mention  of  any  trust,  but,  from  the  evi- 
dence given  in  this  case,  and  about  which 
there  is  no  conflict,  it  is  clear  that  the 
Magistrate  had  made  the  purchase,  not 
on  behalf  of  the  Chief  and  these  ten 
people  named  in  the  grants  only,  but 
on  behalf  of  the  members  of  the  tribe 
under  Manguzela.  The  purchase  was 
made  in  1894,  and  when  the  land  was 
subsequently  granted,  a  mortgage  bond 
was  passed  to  the  Government  for  the 
balance  of  the  purchase  price.  Since 
then,  by  contributions  of  the  people,  a 
portion  of  the  capital  has  been  paid  off, 
and  during  the  last  ten  years  sums  have 
been  raised  from  time  m>  time  by  the 
people  of  the  tribe  for  the  annual  inter- 
est and  for  the  expenses  of  survey  and 
transfer.  Breakfast  h«8  contributed  £10 
towards  the  ^^urchase,  and  he  says  that 
he  has  contributed  £5  a  year  towards 
the  interest.  Ndaba  contributed  £10 
towards  the  purchase,  and  he  says  that 
iie  has  paid  £7  towards  the  expenses  of 
transfer  and  survey  and  £5  towards  the 
interest.  Mr.  Temple,  in  his  evidence 
for  the  defendants,  says  that  the  £5  con- 
tributed by  Nd&ba  was  not  one  year's 
contribution,  but  was  for  his  share  of 
the  contribution  for  several  years  to- 
wards the  interest.  It  appears  to  have 
been  the  custom  of  the  tnbe,  whenever 
a  call  was  made  either  for  capital  or  in- 
terest, either  for  the  Chief  to  call  a 
meeting  or  to  send  round,  and  have  the 
amount  collected,  and  when  the  required 
amount  was  collected  from  his  people 
no  further  collections  were  made.  In 
1902  the  defendants,  wishing  to  leave  the 
place  for  several  reasons,  enteared  into 
negotiations  with  one  Kirk,  who  bought 
from  them  their  interest  in  this  farm 
for  £60.  Kirk  alleges  that  at  that  time 
he  bought  a  one-eleventh  interest  in  the 
whole  property,  and  proceedings  were 
taken  in  tnis  court  to  compel  the  plain- 
tifTs  to  deliver  the  title  deeds  to  Kirk, 
or  to  the  agents  of  the  two  defendants 
for  the  purpose  of  transferring  this 
eleventh  portion.  But,  as  I  have  said, 
it  is  clear  from  the  evidence  that  the 
defendants  were  not  intended  to  be  the 
owners  in  their  own  right  oi  one- 
eleventh  of  the  property;  and  the 
learned  counsel  for  tne  defendants  now 
says  that  he  is  prepared  to  give  up  the 
claim  for  one-eleventh,  and  to  take  what 
may  be  considered  a  fair  proportion  of 
the  land  purchased.  It  appears  to  be 
the  cusrtom  of  natives  for  the  Chief  to 
allot  to  the  men  who  come  to  his  tribe 
Grronnd  to  cultivate.  One  of  tlie  de- 
fendants said  the  Chief  promi'HHl  him  a 
''blanket."  meaning  a  pieoe  of  land,  for 
himself  if  he  would  assist  in  the  pur> 
chase.  The  Chief  did  afterwards  point 
out  to  each  defendant  a  place  where 
they  could  build  their  huts  and  make 
gardens.  Whether  the  defendants  will 
be  entitled  to  dispose  of  their  allot- 
ments   is   a  question    that   wo   are    no4 


it 


CAPB  TIMES"  LAW  ftEPOtttS. 


799 


called  upon  to  decide.  It  may  be  well 
that  the  defendants  took  the  allotments 
from  the  Chief  under  the  usual  custom 
of  the  natives,  with  regard  to  lands 
in  locations,  and  they  may  be  bound  to 
abide  by  those  customs,  which,  if  I  am 
rightly  informed,  amount  to  this,  that 
when  a  chief  allots  land  to  a  member  of 
the  tribe  he  is  entitled  to  occupy  that 
land  only  so  long  as  he  is  a  member  of 
t'.ie  tribe,  and  that,  if  he  likes  to  give 
it  up  or  to  leave  the  tribe,  then  he  has 
to  abandon  to  the  common  land  what 
was  specifically  allotted  to  him  as  a 
member  of  the  tribe.  There  is  no  doubt 
that  deeds  of  grant  and  title  deeds  are 
important  documents,  and  that  they 
would  not  be  lightly  interfered  with  by 
the  Court.  The  defendants*  case  de- 
pends mainly,  if  not  entirely,  upon  these 
documents.  But  motions  to  amend  title 
deeds  or  deeds  of  grant  are  not  un- 
known in  this  colony,  and  when  it  is 
clearly  made  out  that  there  is  an  error 
in  the  documents  the  Court  has  ordered 
the  amendment,  so  as  to  represent  the 
actual  position  in  the  case.  But  for 
Mr.  Simixson's  interference,  the  defend- 
ants' names  would  probably  never  have 
appeared  on  the  deed  of  grant  at  all, 
and  they  would  have  been  made  in  fa- 
vour of  ^languzela.  I  consider  that 
tlicy  were  grantees,  not  in  their  indivi- 
dual rights,  but  as  trustees  for  the  tribe. 
I  think  that  the  plaintiffs  have  proved 
in  this  case  that  they  are  entitled  to 
have  the  grant  amended  in  terms  of  the 
declaration.  The  prayer  of  the  plain- 
tiff's declaration  will  therefore  be  grant- 
ed, and  the  deed  of  grant  will  be  amend- 
ed by  adding  ihe  words  "  in  trust  for  that 
section  of  the  Hlubi  tribe  under  the 
Chief  iManguzcla."  As  the  property  has 
been  bonded  to  the  Goernment,  and  the 
Government  do  not  obiect  to  this 
action,  and  to  any  amendment  in  the 
bond  following  the  amendment  of  the 
title,  an  order  will  also  bo  given  for  an 
alteration  of  the  mortgage  bond  by  in- 
serting the  words  **  in  their  capacity  as 
trustees  for  that  section  of  the  tribe  un- 
der the  Chief  Manguzela,"  so  that  it 
will  agre^  with  the  deexls  of  grant. 
The  plaintiffs  will  have  to  pay  the  costs 
of  amending  the  mortgage  bond.  As 
far  as  the  defendants  (Ndaba  and 
Breakfast)  are  concerned,  they  will  have 
to  pay  the  costs  of  the  action. 

Hopley,  J.,  concurred. 

Mr.  Benjamin  said  "that  he  desired 
to  draw  the  attention  of  their  lordships 
to  the  large  amount  of  unnecessary  mat- 
ter attached  to  the  declaration.  He 
noticed,  for  instance,  that  the  whole  of 
the  Act  of  Parliament  had  been  printed 
twice  over. 

Buchanan.  A.C.J. :  That  will  be 
a  matter  for  the  Taxing  Master.  His 
Lordship  added  that  he  wished  to  ex- 
preM  his  disapprobation  of  certain  ol 
the  evidence  led  before  the  commission- 
er, especially  with  regard  to  the  charges 


brought  without  foundation  against  wit- 


nesses. 


[Plaintiff's  Attorneys:  Van  Zyl  and 
Buissinne:  Defendant's  Attorneys:  Find- 
lay  and  Tait.] 


SUPREME  COURT 


[Before  the  Actinjr  Chief  Justice  (the 
Hon.  Sir  John  Buchanan),  and  the 
Hon.  Mr.  Justice  Hopley.] 


ADMISSIONS. 


f      190r>. 
(  Oct.  l()th. 


Mr.  J.  E.  R.  de  Villiers  moved  for 
the  admission  of  Willem  Yiljoen  as  an 
attorney  and  notary. 

Ajiplication  granted,  oaths  to  be  taken 
before  the  R.M.  of  Stoynsburg. 

Mr.  Van  Zyl  moved  for  the  admission 
of  Louis  Henri  van  Wineen  as  an  attor- 
ney and  notary. 

Application  granted  and  oaths  admin- 
istered. 

Mr.  Sutton  moved  for  the  admission 
of  Frank  Robert  Baker  as  a  notary. 

Ai^nlication  granted  and  oatlis  ad- 
ministered. 

Mr.   McGregor  moved  for   the  admis 
sion   of   Cecil   Edward   Bradfiold   as      a 
conveyancer. 

Application  granted  and  oaths  admin- 
istered. 

Mr.  Benjamin  moved  for  the  admis- 
sion of  Robert  Charles  Farquharson  as 
a  conveyancer. 

Application  granted,  oaths  to  be  taken 
before   the  R.M.   of  East  London. 

Mr.  Benjamin  moved  for  the  admis- 
sion of  Harry  Pomeroy  Ward  as  a  con- 
veyancer. 

Application  granted,  oaths  to  be  taken 
before  the  R.M.  of  Komgha. 

Mr.  Upington  moved  for  the  admifi- 
sion  of  Frank  Muller  Rex  as  a  trans- 
lator, applicant  having  passed  the  ex- 
amination specified  by  Mr.  Justice 
Maasdorp  at  the  Circuit  Court  at  Oudts- 
hoorn,  where  the  matter  was  originally 
mentioned. 

Application  granted,  oaths  to  bo  taken 
before  the  R.M.  of  Oudtshoorn. 


PROVISIONAL  ROLL. 

(        1Q0R 
HOABE  AND  CO.  V.  CARROLL.  J   OctriOth. 

Mr.  Douglas  Buchanan  moved  for  a 
provisional  order  of  sequestration  to  be 
superseded. 

Order  discharged. 


doo 


"CAt»E  TlMEB"  LAW  &EP0ttt8. 


WATflOH,  TENHAUT  AND  GO.  V.  VAN  ABS. 

Mr.  Bailey  moved  for  the  final  adju- 
dication of  the  defendant's  estate  as  in- 
solvent. 

Order  granted. 


DE  KLBBK  V.  CLWEIDAN. 

Mr.    Green   nooved   for   a  provisional 
order  of  sequestration  to  bo  made  EuaL 
Order  granted. 


MAXWELL  AND  EABP  V.  DRBYBR. 

Dr.  Rainsford  moved  for  a  provi- 
sional order  of  sequestration  to  be  dis- 
charged. 

Order  discharged. 


LAITE  V.  8CARLES. 


Mr.  liowis  moved  for  a  provisional 
order  of  the  eequcdtration  to  bo  dia- 
chiarged. 

Order  discharged. 


TOORT  V.  DALY. 

This  vfas  an  application  for  pro- 
visional sentence  on  a  promissory  uoto 
for  £220,  less  £75  paid  on  account,  to- 
gy>tlior   with   interest  ajid  costs. 

Mr.  J.  E.  R.  de  Villiers  (for  defen- 
dant, who  resides  at  Rosebank)  read  an 
affidavit.  The  defendants  absolutely 
denied  that  the  aaid  sum  or  any 
portion  thereof  was  owing.  Defendant 
said  that  she  had  made  certain  pay- 
ments, and  that  there  had  been  tra^ns- 
actiona  in  connection  with  certain  rac- 
ing poniee,  wiiich  wiped  off  ,  the  bal- 
auoe.  The  matter  was  complicated  by 
transactions  with  a  third  party,  Thomas 
Fisher,  wiiose  estate  had  recently  been 
compulsorily  sequestrated. 

The  answerinig  affidavits  of  the  plain- 
tiff and  Thomas  Fisher  entered  into  the 
relationships  and  trajisaotione  between 
the  parties  at  length.  The  affidavits 
deah  principally  with  racing  matters, 
and  an  allegation  was  made  that  defen- 
dant had  offered  to  pay  certain  sums 
in   sefttlemeint  of   the  debt. 

Dr.  Greer  for  plaintiff;  Mr.  J.  E.  R. 
De  Villiers  for  defendant. 

Buchanan,  A.O.J. ,  said  that  this  was 
not  a  case  for  provisional  sentence  at  all. 
The  application  would  be  refused,  and 
the  parties  must  go  into  the  principal 
case,   costs  to  be  costs  in  the  cause. 


SWART  V.  CROUS. 


Mr.  Bailey  moved  for  provisional 
sentence  on  an  unsatisfied  judgment  of 
the  Periodical  Court  of  Heidelberg.  The 


debt  was  £5  lis.  4d,  with  £1  136.  lOd. 
costs. 

Defendant  offered   5s.   a  month. 

Provisional  sentence  granted,  and 
property  declared  executable. 


TRBDOOLD,  HCINTYEB  AND  BI8SET  V. 
GONBADIE. 

Mr.  M.  Bisset  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £500, 
with  interest  and  costs,  the  bond  hav- 
ing become  due  by  reason  of  the  non- 
payment of  interest  and  for  the  property 
specially  hypothecated  to  be  declared 
ezecutal>le. 

Order   granted. 


ESTATE  WRIQLEY  V.  WRIGHT. 

Mr.  M.  Bisset  moved  for  provif^iocal 
sentence  on  two  mortgage  bonds  for 
£400  and  £350  respectively,  with  in- 
terest and  costs,  and  for  payment  of 
premium  of  insurance  and  stamp  duty. 
Counsel  also  aoplied  for  the  property 
specially  hypotnecated  to  be  declared 
executa^ble. 

Order   granted. 


UARKLEW  V.  ABRAHAMS. 

Mr.  Payne  moved  for  provisional  pon- 
tenoe  on  a  mortgage  bond  for  £1.950. 
with  interest,  the  bond  having  become 
due  by  reason  of  the  non-payment  of 
capital  as  provided  therein.  Counsel 
also  applied  for  the  property  specially 
hypotnecated  to  be  declared  execut- 
avle,  and  for  rents  receivable  from  the 
property  to  be  attached. 

Order   granted. 


BAER6ELMAN  V.  FROEMAN  AND  OTHFRS. 

Mr.  p.  S.  T.  Jones  moved  for  a 
provisional  order  of  sequestration  to  be 
discharged. 

Order  discharged. 


GERSON  AND  CO.  V.  ZION,  CHIAT  AND  CO. 

Mr.    Bailey    moved  for   the    final  ad- 
judication  of   the  partnership    and    pri 
Tate  estates  of  the  defendants. 

Order  grant-ed. 


ii 


WILSON.  SON  AND  CO.  AND  ANOTHER  T. 

LEWIN. 

Mr.  Douglas  Buchanan  moved  for  the 
final  adjudication  of  the  defendant's 
estate. 

Order  graTited. 


"CAtB  TiMBS"  LAW  REPORTS. 


801 


HOLBOTD  v.  MCBBIOE. 

Mr.  M.  Bisect  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £250, 
^ith  interest  and  costs,  the  bond  hav- 
ing become  due  by  reason  of  the  non- 
payment of  interest.  Counsel  also  ap- 
plied for  the  property  specially  hypo- 
thecated  to  be  declared  executable. 

Order  granted. 


HACOWAN  y.  HBBBBB. 

Mr.  Douglas  Buchanan  moved  for 
judgment  on  a  mortgage  bond  for 
£1,000,  with  interest  and  costs,,  and  for 
the  property  specially  hypothecated  to 
be  declared  executable. 

Order  granted. 


JAOOBB  AND  CO.  V.  DROOMER. 

Mr.  Gardiner  moved  for  a  provision- 
al order  of  sequestration  to  be  dis- 
charged. 

Order  discharged. 


TAYLOR  V.  GROENKWALD. 

Dr.  Greer  moved  for  provisional  sen- 
tence on  a  promiissory  note  for  £100, 
and  judgment  for,  under  Rule  329d, 
£19  lis.  2d.,  balance  of  account  owing 
for  goods  sold  and  deli  voted,  with  in- 
terest a  tempore  morat   and   costs. 

Order  granted  as  prayed. 


BROWN  V.  PADTAOHE. 

Mr.  Benjamin  moved  for  pro  visional 
sentence  on  a  mortgage  bond  for  £73, 
with  interest,  the  bond  having  become 
due  by  reason  of  the  non-payment  of 
interest  and  instalments.  Counsel  also 
applied  for  the  property  specially  hypo- 
thecated  to   be   declared   executaible. 

Order  granted. 


OHL3SON*S  BHEWBRIE8  V.  HALV0B8EN. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  a  judgment  of  the 
Resident  Magistrate's  Court,  Cape 
Town,  for  £128  Ss.,  and  £2  10s.  4d. 
and  9s.,  being  taxed  costs  and  charges. 

Order  granted,  subject  to  copy  of 
judgment  being  filed. 


TOUCHER  V,  HOGGARD. 

Mr.  Van  Zyl  moved  for  the  final  ad- 
judication of  the  defendant's  estate. 
Order  granted. 


YOR  y.  ANDBIE8. 

Mr.  Rowson  moved  for  pro  visional 
sentence  on  a  mortgage  bond  for  £350. 
lei>s  £100  paid,  with  mterest,  the  bona 
having  become  due  by  reason  of  the 
non-payment  of  interest;  counsel  also 
applied  for  the  property  specially 
hypothecated  to  be  declared  executable. 

Order  granted. 


VAN  EEDEN  V.  DU  PLE8SIB. 

Mr.  Roux  moved  for  provisional  sen- 
tence on  a  mortgage  bond,  duo  by 
reason  of  the  non-payment  of  interest, 
and  for  the  property  specially  hypothe- 
cated to  be  declared  executable. 

Order  granted. 


BBINK  y.  BBAAF. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  on  certain  three  mortgage 
bonds,  duo  by  reason  of  the  non-pay- 
ment of  interest,  and  for  the  property 
specially  hypothecated  to  be  declared 
executable. 

Order  granted. 


ESTATE    HIDDINOH    V.    FBBRBIRA    AND 
▼AN  DER  MERWE  AND  ANOTHER. 

Mr.  Do  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £52, 
being  six  months'  interest,  and  for 
costs. 

Order  granted  against  the  defen- 
dants ui>on  whom  service  had  been 
made. 


E&TATB  BAM  V.  QROBBBLAAR. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £58, 
being  nine  months'  mtercet,  and  for 
costs. 

Order  granted. 


PETERSBN  V.  VAN  DEN  HEEVER. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £800, 
with  interest,  the  bond  having  become 
duo  by  j'eason  of  the  non-payment  of 
interest;  counsel  also  applied  for  the 
propertv  speciaJlv  hypothecated  to  be 
declared  executable. 

Order  granted. 


LANBY  AND  DURING  V.  ROUX. 

Mr.  Outfiche  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £45, 
the  l)ond  having  become  due  by  reason 
of  the  nou-pavinent  of  interest;  counsel 
also  applied  for  the  property  speodally 
hypothecated  to  be  declared  executable. 

Order  granted. 


M 


ti 


CAl*E  tiMfiB*'  LAW  REPdRtd. 


OBAAPF  V.  BOLLNIOK  AND  HATZ. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  on  a  mortgage  bond  lor  £5,000. 
with  interest,  less  £28  paid  on  account, 
the  bond  having  become  due  by  reason 
of  the  non-payment  of  interest;  counsel 
applied  for  the  property  specially 
hypothecated  to  be  aeclared  executable. 
Counsel  said  that  he  had  to  apply  for 
the  case  againait  Matz  to  be  tx>8tponed 
until  the  ^h  October,  and  he  had  to 
apply  for  judgment  against  Rollnick 
only  at  present. 

Rollnick  appeared,  and  offered  £25 
a  month. 

Order  granted  as  prayed. 


HARBI8  V.  DOYLB. 

This  wae  an  application  for  provis- 
ional sentence  on  a  promissory  note  for 
£120. 

The  defendant's  affidavit  denied  that 
there  was  a  balance  of  more  than  £50 
owing,  which  amount  he  tendered. 

The  answering  affidavit  of  the  plain- 
tiff stated  that  no  payments  had  been 
made  on  account  of  the  promissory  note 
now  sued   upon. 

Dr.  Greer  for  plaintiff;  Mr.  Upington 
for  defendant. 

Mr.  Upington  argued  that  the  mat- 
ter was  not  one  for  provisional  sen- 
tence, but  that  plaintiff  should  be  or- 
dered to  go  into  the  principal  case. 

Dr.  Greer  submitted  that  the  plain- 
tiff was  clearly  entitled  to  his  judgment 
on  the  note. 

Judgment  was  given  for  £50,  no  order 
as  to  costs,  plaintiff  to  go  into  the  prin- 
cipal case  with  regard  to  the  rest  of  his 
claim. 


V03  V.  TURNER. 

Mr.  Roux  moved  for  the  final  adjudi- 
cation of  the  defendant's  estate  as  insol- 
vent. 

Order  granted. 


DANZIG  V.  RKX  AND  ANOTHER. 

Mr.  Van  Zyl  moved  for  provisional 
sentence  on  a  promissory  note  for  £377 
10s.,  payable  at  the  Standard  Bank, 
Oudtsnoom,  and  for  interest  at  the  rate 
of  12  per  cent. 

Order  granted. 


BABL  V.    HUMPHREY  AND  TURKINGTON. 

Mr.  Van  Zyl  moved  for  the  final  ad- 
judication of  the  defendants'  estates  as 
insolvent. 

Order  granted. 


WILSON,    FON    AND    CO.     V.  f        1905. 
ROCHESTER  BRICK  CO.        )    Oct.  16th. 

This  was  an  application  for  provis- 
ional seiiteuce  on  certain  promiesory 
not'.M,  and  for  balance  of  account  for 
gLM.>d;»  sold  and  delivered. 

The  affidavit  of  W.  Stevens,  one  of 
the  defendants,  admitted  certain 
debts,  but  said  that  plaintiffs  were  in- 
debted to  them  in  tne  sum  of  £299, 
rent  due  for  certain  coal  deposited  on 
defendants'  property,  leaving  a  bal- 
ance due  in  their  favour  of  £157  ds.  lid. 

PlainitTiff^s  answering  affidavit  em- 
phatically denied  that  they  were  in- 
debted to  defendants  in  £299  or  any 
other  sum. 

Mr.  Burton  for  plaintiff;  Mr.  Uping- 
ton for  defendant. 

Mr.  Upington  having  been  heard  in 
argument, 

Buchanan,  A.C.J.,  said  that  pro- 
visional sentence  was  claimed  on 
two  promissory  notes.  TTiese  notes 
were  admitted.  though  defendants 
said  that  they  had  a  counter- 
claim against  plaintiffs  for  rent,  in  re- 
spect of  certain  coal  stored  on  their 
property.  This  claim  was  positively 
denied  by  the  plaintiffs.  They  ^«ia 
two  li(]uid  documents,  which  were  ad- 
mittedty  genuine,  and  there  was  a  dis- 
puted amount,  which  was  alleged  to  bo 
a  set-off  against  those  claims.  Plaintiffs 
were  entitled  to  provisional  sentence  on 
the  liquid  documents,  less  £20  paid  on 
account.     Order    accordingly. 


GRAAFP-REINET    BOARD   OF  EXECUTORS 
V.  IIENTJES. 

Dr.  Greer  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £335  with 
interest  and  for  the  property  specially 
hypothecated  to  be  declared  executable. 

Order  granted. 


STEPHIOr  FRASER  AND  CO.,  LTD.  V. 
IMMELMAN. 

Mr.  Douglas  Buchanan  moved  for  a 
provisiosial  order  of  sequestration  to  be 
made  final. 

Order  granted. 


PEDLAR  AND  CLAPHAM  V.  LEWIS  AND 

DINNBB. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  bill  of  exchange  for  £125 
58.,   with  interest. 

Order  granted. 


SCANLON  V.  DI  BIABIO. 

Mr.  Van  Zyl  moved  for  a  decree  of 
civil  imprisonment  upon  an  unsatisfied 
judgment  of  the  R.M.  Court  for  £88 
and  £2  128.  4d.   taxed  costs. 


"CAPE  TtMBS"  tAW  feEPORTS. 


803 


Defendant  admitted  that  he  owed  the 
money,  but  said  that  he  was  unable  to 
pay  anything.  He  was  employed  as  a 
stoue-cutter   at    the   Pa&rl. 

Mr.  van  Zyl,  in  reply  to  the  Court, 
said  that  the  matter  arose  out  of  a 
libel  action  brought  in  the  Supreme 
Court  by  defendant  against  one  Harri- 
son. Plaintiff  succeedecL  but  he  had 
had  to  pay  the  costs,  as  Harrison  could 
not   pay. 

Buchaimn.  A.C.J. ,  said  that  the  action 
should  have  been  brought  in  the  R.M.'s 
Court. 

Decree  of  civil  imprisonment  granted, 
to  be  suspended  on  pavmcnt  of  £2  a 
month,  with  leave  to  plaintiff  to  move 
the   Court   further. 

Buchanan,  A.C.J.,  remarked  that  these 
heavy  costs  ehould  not  have  been  incur- 
red by  the  attorneys. 


KOBTUEBN  ASSURANCE  CO.  V.  BAREND 
AND  OTHEBS. 

Mr.  p.  S.  T.  Jones  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £600,  with  interest,  due  bv  reason 
of  notice  having  been  given  and  for  the 
property  specially  hypothecated  to  be  de- 
clared executable.  Counsel  said  that 
only  Cornelis  and  Barend  had  been 
served  with   the   summons. 

Order  granted  against  the  two  defend- 
ants named. 


NATIONAL  BANK   OF  SOUTH    AlfRICA  V. 
ABHAUAAIS. 

Mr.  Benjamin  moved  for  a  decree  of 
civil  imprisonment  on  an  unsatisfied 
judgment  upon  two  dishonoured  cheques 
amounting  to  £3,601  8s.  lOd.  and  an  il- 
liquid claim  of  £15  ITs.  8d.  and  taxed 
costs. 

Defendant  said  that  he  was  without 
means  or  property.  He  had  been  a 
speculator  and  bookmaker.  He  had 
agreed  to  pay  £10  a  month  to  the  bank, 
but  at  that  time  **  books  "  were  allowed, 
and  they  were  now  excluded. 

Cross-examined :  He  was  residing  In 
Kimberlev,  and  was  hardly  making  suffi- 
cient to  live  on.  He  had  a  wife  and 
nine  children.  He  was  engaged  in 
bookmaking  and  following  up  sales.  The 
cheques  were  accommodation  cheques 
for  Mr.  Harris,  a  well-known  broker  in 
Cape  Town,  who  assigned  his  estate 
about  eighteen  months  ago.  He  had 
not  proved  against  the  Harris  estate 
Iriecause  it  was  not  worth  while. 

By  the  Court:  He  wae  already  pay- 
ing £5  a  mouth  on  anotlier  judgment. 

No  order  was  made,  leave  being  given 
to  applicant  to  move  the  Court  furthiT. 


DEMPEUS  AND  VAN  llYNEVEt.D  V.  SACHS. 

Mr.   De  Waal   moved  for  provisional 
sentence  on  mortgage  bonds  for  £150, 


£150,  £75,  £200,  £83  ISs.  6d..  £150, 
£50,  and  £350,  with  interest,  and  for 
the  property  specially  hypothecated  to 
be  declared  executable  ana  for  leave  to 
collect  the  rents  of  the  property. 

Order  granted   and   power     given    to 
the  Sheriff  to  attach  the  rents. 


ESTATE  AHBEN8  V.  CONRADIE. 

Dr.  Rainsford  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £150, 
the  bond  having  become  due  by  reason 
of  the  non-payment  of  rent.  Counsel 
also  applied  for  £3  5s.,  insurance  pre- 
mium and  for  the  property  specially  hy- 
pothecated to  be  declared  executable. 

Order  granted. 


LOTRIET  V.  BOONZAIBR. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  judgment  of  the  R.M.'s 
Court  at  Fauresmith,  O.R.C.,  for  £43 
odd  and  taxed  costs,  defendant  having 
removed  to  the  jurisdiction  of  this 
Court. 

Order   granted. 


HEIDE  V.  DANIELS. 

Mr.  P.  S.  T.  Jones  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £2,300,  with  interest,  the  bond  hav- 
ing become  due  by  reason  of  the  non- 
payment of  interest.  Counsel  also  ap- 
plied for  the  property  specially  hypo- 
thecated to  be  declared  executable. 

Order  granted. 


008THUY6EN  V.  FOTHBRINGHAM. 

Mr.  De  Waal  moved  for  provisional 
sentence  on  a  promissory  note  for  £22, 
with   interest. 

Order  granted. 


LUYT  V.  SMYTH. 

Mr.  Swift  moved  for  a  provisional 
order  of  c-equcstration  to  be  made 
final. 

Order   granted. 


LIND   V.  6E8WINT 

Mr.  M.  Bisset  said  that  this  was 
an  application  for  the  final  sequestra- 
tion of  the  defendant's  estate  as  in- 
solvent, but  his  client  was  prepared 
to  cons<»nt  to  the  matter  fit.inilnig  over 
sifif    (I if. 

Mr.  Douglas  Buchanan  (for  defen- 
dant) moved  for  an  order  authoritjini^ 
the  sale  of  certain  property  in  the 
estate  of  their  father  to  enable  the 
petitioners   to  pay  off  the   debt.      The 


804 


"CAPE  ttMEs»»  Law  reports. 


debt  iwas  incurred  on  behalf  of  il^ 
father,  and  the  petitioners  wore  his 
curators. 

Order   granted  ae   prayed. 

The  application  for  final  soc^uestratioii 
wtm   ordered  to  stand   over  sine   die. 


ILLIQUID  ROLL. 


OILBEBT  AND    OTHERS 
BILBEBT. 


\    f       1905 
(Oct.   16th. 

Dr.  Greer  moved  for  jubgment  under 
Rule  329d  for  £32  lis.  7d.  for  bai&nce 
of  money  lent  and  advanced,  with  in- 
terest a  tempore  morae  and  costs. 

Order   granted. 


SCHMIDT  V.  ORAY  AMD  SONS. 

Dr.  Greer  moved  for  judgment  under 
Rule  329d  for  £23  13s.  6d.,  being  amoiint 
due  in  respect  of  moneyfi  collected,  with 
interest    a   tempore  morae   and    costs. 

Order  granted. 


JULIAN  STEPHENS,  LTD.  V.  EILEY. 

Dr.  Rainsford  moved  for  judgment 
under  Rule  329d  for  £2.301  18s.  2d., 
due  aa  per  statement  of  account,  for 
money  lent,  goods  sold,  commission, 
and  otherwise,  with  interest  a  tempn^-e 
morae  and   costs. 

Order  granted. 


ALARD  AND  OTHERS  V.  LE  ROUX. 

Mr.  Benjamin  moved  under  Rule  329d 
for  the  return  of  certain  promiMory 
note,  or,  alternativel^r,  for  a  good  and 
sufikient  indemnity  in  respect  of  the 
liability  of  third  parties. 

Order  given  for  the  return  of  the 
promissory   note  within    14   days. 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


HOWBE,  REYNOLDS  AND  CO.  V.  DAVIB. 

Mr.  Benjamin  moved  for  judgment 
under  Rule  329d,  in  terms  of  prayer 
(a)  of  the  declaration,  calling  upon  (.he 
defendant  to  render  a  true,  full,  and 
detailed  account,  supported  by  vouchors 
and  for  costs  ot  suit. 

Order  granted,  account  to  be  rondeicd 
within  one  month. 


BT.  LEGBR  AND  WILSON  V.  BONCKBR. 

Mr.  Upington  moved  for  iudgniei>t 
under  Rule  319,  in  default  of  plea,  v/on 
«  declaration  which  claimed   (1)  an  9C- 


count  of  certain  monevs  oollecied  by 
defendant  on  behalf  of  plaintiffs;  (2) 
debate  of  the  account;  and  (3)  riturn 
of  all  papers  and  documents  handed  by 
plaintiffs  to  defendants  for  the  pur- 
pose of  collecting  debts.  It  appeared 
irom  the  declaration  that  defendant  had 
made  a  statement,  in  which  he  claimed 
that  a  sum  of  £8  was  due  from  plain- 
tiffs  to   himself. 

Defendant  said  that  he  wiahed  to  plead 
to  the  declaration.  He  had  renaered 
to  plaintifffi  a  detailed  statement  of 
account. 

Ordered  to  stand  over  until  Thursday 
next. 

Poetea  (October  19.) 

Mr.  Bisset  said  thris  case  had  been  ad- 
jouined  from.  Monday  to  enable  defen- 
dant to  file  an  affidavit. 

Defendant  now  appeared,  and  inform- 
ed the  Court  that  he  had  done  ao. 

Mr.  Biamt  said  the  defendant  had 
onlv  handed  the  affidavit  to  him  at 
10.30  this  morning. 

Buchanan,  A.U.  J. :  I  eec  you  were 
supposed  to  collect  these  accounta,  and 
you  gave  their  oollection  to  somebody 
else? 

Defendant:  But  they^  agreed  to  it. 
He  added  that  be  bad  given  his  attor- 
ney autliority  to  file  the  defence  and  it 
had  not  been   done. 

The  Court  allowed  defendant  two 
day«  to  file  his  plea. 


BRUNT  v.  GOLDSTEIN. 

Mr.  Van  Zvl  moved  for  judgment 
under  Rule  318  in  default  of  plea  for 
£44  rent. 

Order  granted. 


STANDARD  BANK  V.  PARRY. 

Dr.  Rainaford  moved  for  judgment 
under  Rule  319  for  £67  la.  Id.,  over- 
draft,   and  for   interest. 

Order  granted. 


AFRICAN  BANKING  CORPORATION  Y. 
LEOM^VN. 

Mr.  Lewis  moved  for  iudgment  under 
Rule  319  in  default  of  plea  for  £61  lOi^. 
6d.,  overdraft,  interest,  and  costs  of 
suit. 

Order    granted. 


BADBNHORST  V.  BADBNHORST. 

Mr.  Benjamin  moved  for  iudgment 
in  terms  of  consent  paper.  The  action 
was  for  a  decree  of  judicial  separation. 
The  consent  paper  provided,  inter  alia, 
for   a  decree  of  judicial  separation   ana 


"CAl^B  TIMES"  LAW  REPORTS. 


805 


payment    by    defcudaut    to    plaintiff  of 
£1,135. 

Judgment  in  teTms  of  ooneent  paper 
filed. 


B08E  V.  8HUTTE  AND  BOflE. 

Mr.  Van  Zyl  moved  for  judgment  in 
terms  of  oonsent  paper. 
Judgment  in  terms  of  consent  paper. 


CAPS  TOWN  TOWN  COUNCIL  V.  BBOWN. 

Mr.  Gutsche  moved  for  judgment  un- 
der Rule  319  for  £51  15s.,  £10  98.  5d., 
and  £9,  rates  and  taxes. 

Order  granted. 


NATIONAL  BANK  V.  LIQUIDAT0B8  CAPE 
CANNING  CO. 

Mr.  Sutton  moved  for  judgment  under 
Rule  329  (d)  for  £78  148.  lid.,  money 
lent  and  advanced,  with  interest  and 
costs  of  suit. 

Order  granted. 


SOUTHBBN  LIFE  ASSOCIATION  Y.  FBYEB. 

Mr.  Swift  moved  for  judgment  under 
Rule  329  (d)  for  £24  9s.  lid.,  balance 
of  account  due  from  defendant  in  re- 
spect of  certain  renewal  premiums  col- 
lected by  him,  with  interest  a  tempore 
morae,  and  costs  of  suit. 

Order  granted. 


HOLST  Y.  SCHMIDT. 

Dr.  Greer  moved  lor  judgment  imder 
Rule  329  (d)  for  £66,  rent  of  certain 
premises,  Mentone,  Green  Point. 

Order  granted. 


CAPE    TOWN     TOWN     COUNCIL 
H0PHEB80N. 


V. 


Mr.  Gutsche  moved  for  judgment  un- 
der Rule  329  (d)  for  £180  9s.  5d.,  muni- 
cipal rates. 

Order  granted. 


MOWBBAY  MUNICIPALITY    V.    HOOGABD. 

Mr.  Swift  moved  for  judgment  under 
Rule  329  (d)  for  £75  126.  6d.,  owner's 
rate. 

Order  granted. 


COLONIAL  GOVEBNMENT  V.  EDGECOMBE 
AND  CO.  AND  D0MIMICU8. 

Mr.  Nightingale  moved  for  judgment 
under  Rule  319  in  default  of  plea  for 
^789  8s.   Id.,   less  £226  10s.    now   paid 


by  first  two  plaintiffs;  rent  of  the  right 
to  let  certain  bookstalls  on  the  C.G.R. 
and  for  a  further  sum  of  £15  ISs.  4d., 
rent  of  certain  bookstalls. 
Order  granted. 


BBLLETT  V.  8TABE. 


f       1905. 
\  Oct.  I6th. 

Mr.  Bailey  moved  foir  judgment  un- 
der Rule  329  (d)  for  £91  II9.  6d.,  bal- 
ance of  wages  due. 

Order  granted. 


HILL  AND  CO.  Y.  SCHAPEEA. 

Mr.  Struben  moved  for  judgment  un- 
der Rule  329  (d)  for  £64,  less  £25  paid 
on  account,  with  interest  a  tempore 
morae,  and  costs. 

Order  granted. 


PUBCBLL,  YALLOP  AND  EVEBETT  V. 
AOAMa 

Dr.  Greer  moved  foo*  judgment  un- 
der Rule  329  (d)  for  £18  10s.  2d.,  goods 
sold  and  delivered,  with  interest  a 
tempore  morae. 

Order  granted. 


PUBCELL,  YALLOP  AND  EVEBETT  V. 
PBESWICH. 

Dr.  Greer  moved  for  judgment  under 
Rule  329  (d)  for  £101  7s.  lid.,  goods 
sold  and  labour  performed,  with  inter- 
est a  tempore  morae  and  costs. 

Order  granted. 


ABMSTEB  Y.  BELINO. 

Mr.  Benjamin  moved  for  judgment 
under  Rule  329  (d)  for^  £2  63.,  goods 
sold  and  delivered,  with  anterest  a 
tempore  morae  and  costs  of  suit. 

Order  granted. 


MYEB8  BBOS.  Y.  M0B6AN  AND  ANOTHEB. 

Mr.  Lewis  moved  for  judgment  un- 
der Rule  329  (d)  for  £72  68.  6d.,  value 
of  a  certain  diamond  bangle  stolen  by 
defendants  from  plaintiff's  premises.  De- 
fendants had  been  convicted  of  theft 
and  sentenced  to  a  term  of  imprison- 
ment. 

Order  granted. 


ESTATE  OIN6BBBG  V.  BATES. 

Dr.  Greer  moved  for  judgment  under 
Rule  329  (d)  for  £80  rent,  with  -interest 
a  tempore  morae,  and  costs 

Order  grantedt 


800 


<f 


CAPE  TIMES"   LAW  REPORTS. 


VAN    BLKBCK     AND     CRAWFORD     V. 
LK  KOUX. 

Mr.  Alexander  moved  for  judKinent 
under  Rule  329  (d)  for  £9  15s.,  goods 
sold  and  delivered,  with  interest  and 
coats. 

Order  granted. 


OBEY  LINO  V.  GREY  LINO. 

Mr.  J.  E.  R.  de  Viliiere  mov«d  for 
an  order  declaring  the  respondent  to  be 
of  unsound  mind  and  appointing  the 
plaintiff  curator  of  her  estate,  ooets  to 
be  borne  by  the  estate.  Defendant  was 
at  present  confined  in  the  asylum  at 
Granam's  Town. 

Order  granted,  declaring  respondent  o4 
unsound  mind  and  appointing  Jacobus 
Johannes  Greyling  curator  of  her  pro- 
perty, the  question  of  appointment  of  a 
curator  of  defendant's  person  to  be  men- 
tioned  on   the   next   provisional   day. 


Kx  parte  B.A.  MILLINO  CO. 

Mr.  Van  Zyl  moved  on  the  petition 
of  the  South  African  Milling  Uo.  for 
the  appc)intment  of  Mr.  Gother  Mann 
as  provisional  trustee  in  the  insolvent 
estate  of  Frank  Emblin,  baker  and 
confectioner,  Claremont  and  Muizen- 
berg. 

Order  granted   as  prayed. 


Ex  parte  VOBSTER. 


r       1905. 
^Oct.    16th. 
(.Nov.  16th. 


Mr.  Benjamin  meniioned  this  case  a« 
a   matter  of  urgency. 

Buchanan,  A.C.J.,  said  that  he  thought 
there  should  be  some  alteration  in  re- 
gard to  these  urgent  matters.  The  sug- 
gestion that  commended  itself  to  him 
wan  that  there  should  be  a  divisional 
court  sitting  every  morning  to  hear 
urgent  matters. 

Mr.  Benjamin  then  moved  for  a  tem- 
porary interdict  restraining  petitioner's 
huf^band,  Cornelius  Dirk  Vorster,  at 
pr€«^nt  confined  in  Colesberg  Gaol,  from 
alienating  any  portion  oi  the  joint 
estate,  and  from  entering  on  the  'arm 
Dwarabalk,  ijending  an  actrion  for  di- 
vorce to  be  instituted  by  petitioner. 

Rule  ni»i  granted,  to  operate  as  an 
interim  interdict,  and  to  be  returnable 
on  the  2nd   November. 

Posten   (November  16th). 

Mr.  Benjamin  moved  for  the  rule  nisi 
to  be  made  absolute  interdicting  the  re- 
spondent Dirk  Cornelius  Vorster  from 
selling?  or  alienating  300  sheep  and 
goats,  and  ten  head  of  cattle,  on  the 
farm  Dwarsbalk,  in  the  district  of 
Oolesberg.  and  from  entering  on  the 
fa.rm.  Mr.  W.  Porter  Buchanan  was 
for  reepondent. 


From  the  petitioner's  affidavit,  it  ap- 
peared that  tlie  resix)ndeut  had  been 
arrested  ou  a  charge  of  rape  upon  the 
]>etitioiier's  daughter  and  that  he  was 
in  gaol  awaiting  tri.d.  The  ^lotitioner 
inteiiHed  to  ill^titute  an  action  for 
divorw.  She  a-i»lied  f<»r  an  interdict. 
Ijecause  she  under**to(>d  tha*  it  was  the 
intention  of  the  respondent  to  remove 
the  stock,  and  she  also  said  that  re- 
spondent had  threatened  her  with 
violence.  Petitioner  and  respondent 
were  married  in  community. 

Respondent,  in  an  answering  am- 
davit,  aaid  that  petitioner  had  no  <»use 
to  make  the  present  application,  and  he 
prayed  that  the  order  nught  be  dis- 
charged. Respondent  entered  at  some 
length  in.to  the  position  of  t^^  P^^P^J 
on  the  farm,  and  claimed  that  a  good 
deal  of  it  was  due  to  his  exertions. 
A  replying  affidavit  by  petitioner  was 

Mr.  Buchanan  contended  that,  under 
all  the  circumstances,  there  was  no 
ground  whatever  for  the  application. 
No  proof  had  been  given  of  any  m- 
tention  on  the  part  of  the  respondent 
to  alienate  any  portion  of  the  pro- 
perty He  said  in  his  affidavit  thai 
he  wished  the  applicant  to  remam  in 
control  of  the  farm  until  he  had  an 
opportunity  of  getting  out  of  gaol  and 
clearing  himself  from  the  charge. 

Buchanan,     A.C.  J. :      Applicant     ob- 
tained     a      rule      nisi      cailing      upon 
the     respondent     to    show     cause    why 
he     should     not     be     restrained     from 
alienating     any     of     t^e  ^P^V^J.^ 
the  joint  estate,  and  also  from  entering 
upon  the     property     Dwarsbalk,^  where 
his  wife   is   living.  ^     The  rule  is      re- 
turnable to-day,  and  the  respondent  ap- 
pears      to    show    cause    why    the    rule 
should   not    be    made    absolute.         ine 
ground  on  which  the  rule   was  granted 
restraining   the   respondent    from  enter- 
ing upon  the  farm  i&  two-fold,  but  maiii- 
Iv  because  he  had  previously  threatened 
his   wife    with    violence,    and    she      ex- 
pected     violence  if  he  were  allowed  to 
return  to  the  farm.      That  this  expecta- 
tion  is   not   without  good   ground     ap- 
pears from   the   fact   that    the    husband 
is   now  in    gaol    on  a  charge   of    incest 
and  rape  upon  the  daughter  of  th«^»^® 
by     her  previous  marriage.         I  think, 
therefore,  it  would  be  very  good  ground 
for  restraining   him    from   returning  to 
the  property,   especially   when  it   is   re- 
membered that  the  farm  is   a   property 
the  life  interest  of  which  ha«  been  be- 
queathed   to   the    estate,     and    has    not 
been   brought    into    the    estate   by    the 
husband  at  all.       As  to  the  other  part 
of    the    application   to    restrain    the  re- 
spondent   from    alienating    or   disposing 
of  any  of  the  movable  property  m  the 
estate,    there  is   great   force,   no   doubt, 
in    Mr.    Buchanan's    argument,    but    in 
this  case,  considering  the    circumstances 
which    are  disclosed   in  the       affidavits, 
the  relationship   which    is  existmg     be- 
I    tween    the    two  parties,    and    the   faci 


"CAPE  TIMES"  LAW  REPORTS. 


807 


that  tbia  property  was  really  acquired 
out  of  the  wife's  estate,  not  separate 
estat«,  but  on  estate  which  has  come 
to  her,  I  think  there  would  be  no  harm 
ill  continuing  the  interdict,  aa  no  credi- 
tors would  oe  injured.  The  applicant 
ought  iio  institute  an  aotk>n  forthwith. 
I  don't  know  when  the  criminal  trial  is 
to  take  place 

Mr.  benjamin:  It  baa  been  inati- 
tutod. 

[Buchanan,  A.C.J. :  When  will  it  take 
place? 

Mr.  Benjamin :  It  will  probably  come 
on   in  the   Northern  Circuit. 

[Buchanan,  A.C.J. :  That  won't  be  be- 
fore next  March.] 

Mr.  Buchanan  urged  that  it  would 
be  yery  hard  upon  respondent  to  re- 
strain him  from  parting  with  any  of  his 
own  property.  It  was  clear  that  he 
had  property,  as  he  had  been  in  the 
employ  of  the  military  during  the  late 
war.  Reepondent  would  want  some 
money  for  his  defence  to  the  criminal 
charge. 

Buchanan,  A.C.J. :  He  does  not  say 
that  he  needs  the  money.  He  may  ap- 
ply again.  I  think,  for  the  present,  the 
rule  will  be  made  absolute,  pencNng 
proceedings  to  be  instituted  forth- 
with, ooets  to  bo  costs  in  the  cause. 


BEX  V.  BUOODUYK. 

Marder — Bail. 

Mr.  Gardiner  moved  for  the  release 
u^n  bail  of  Broodryk,  who  is  charged 
with   murder. 

Mr.  Nigntingale  (for  the  Crown)  con- 
sented, on  condition  of  accused  provid- 
ing pnersonal  security  in  £1,000  and  two 
sureties  of  £500  each,  sureties  to  bo 
to  the  satisfaction  of  the  R.M.  of  Beau- 
fort West.  The  trial,  coun^l  said,  would 
take  place  at  the  next  Circuit  Court. 

Bail  granted,  subject  to  the  conditions 
named. 


REHABILITATIONS. 

Mr.  De  Waal  moved  for  the  discharge 
from  sequestration  of  F.  H.  C.  Hutch- 
in  gs. 

Granted. 

Mr.  P.  S.  T.  Jones  moved  for  the 
diitcharge  from  insolvency  of  Jacob  G. 
Buhlmann. 

Granted. 


the      dis- 
Frederick 


Dr.  Rainsford  moved  for 
charge  from  insolvency  of 
E.    G.    Aspeli%'r. 

Grantrd. 

Mr.  J.  E.  R.  do  Villiors  moved  for 
the  release  from  sequent  rat  ion  of  Anna 
Maria   Raubenheimer. 

Order    of  oequeatration    superseded. 


GENERAL  MOTIONS. 


HIGSON  V.  HIGSON. 


f       1906. 
(Oct.    16th. 


Mr.  Russell  moved  for  a  decree  of 
divorce,  in  default  of  compliance  with 
an  orner  of  restitution  of  conjugal 
rights. 

Ordered   to  stand  over  until  the  14th 
Noveml>er    for    production    of    an    aff 
davit   setting    out    that    the    defendant 
liad    failed   to    comply    with    the    order 
of   the    Court. 

Potttta  (November  14).  Rule  made 
absolute. 


Ex  parte  NORVAL  AMD  OTHERS. 

Rules   niii   under   the   Derelict  Lands 
Act  were   made  absolute  in  the   follow- 
I.otitions :     Estate    John        Norval 


m 


(Mr.  "  J.  E.  R.  de  Villiors),  Estate 
Jonas  Thomas  (Mr.  Gardiner)  J.  M. 
Stoyn  (Mr.  Bailey),  Anges  Emily  Poole 
(Mr.  Bailey),  Grceff  and  Bouwer  (Mr. 
Lewis). 


PLOTfEL  V.  BURMAN. 

Mr.  De  Waal  moved  for  a  rule 
fiMt  calling  upon  respondent  to  show 
cause  why  he  should  not  be  dismissed 
from  executorship  in  the  estate  of  peti- 
tioner's brother  to  be  made  absolute. 

Mr.  Gardiner,  on  behalf  of  the  re- 
spondent, opposed  the  application. 

Respondent  was  ordered  to  file  an 
account  within  three  months,  and  to 
pay  costs  of  the  application,  with  leave 
reserved  to  the  applicant  to  again  move 
the  Court  after  the  expiration  of  three 
months. 


SUPREME  COURT 


FIRST   DIVISION. 


[Berore   the  Actinflr  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.J 


['/     i«or>. 
^•lOct.  17th. 


LIQUIDATOR.**,  BUFFALO  SUP- 
PLY AMD  COLD  STOKAGB  CO. 
V.  M.  BERGL  (LONDON). 

Mr.  Burton  moved,  on  the  petition  of 
Mr.  H.  M.  Fleming,  in  his  capacity  as 
official  liquidator  of  the  plaintiff  com- 
pany, for  an  order  authorising  the  ac- 
centanco  of  a  certain  proposcnl  com- 
promise set   out,   in  an   annezure,   sub- 


808 


It 


CAPfl  TIMES"  LAW  BJSPO&TB. 


ject  to  one  Alexander  BeTig^l  being  made 
a  pa^-ty  thereto. 

[Bucii<aiian.  A.O.J. :  There  is  a  case 
pending  in  the  English  courto,  and  they 
have  come  to  torniA.] 

Thoy  have  not  quite  come  to  that 
yet.  VVo  come  hero  aa  the  litiuidators 
to  a«k  the  Court  to  allow  us  to  enter 
into  this  com  prom  iflo. 

[Buchanan,    A.C.J :     The    npijlication 
should  hardly  be  for  judgment   by  .o:j 
sent.] 

It  will  not  be  a  oaae  of  signing  judg- 
ment. The  agreement  will  be  arriv^ 
at  out  of  court,  and  all  that  will  hap- 
pen, I  believe,  will  bo  that  the  ease  will 
be   withdrawn. 

fBuchanan,  A.C.J. :  I  take  it  that  the 
judgment  will  be  rcgistezed  iu  the  Eng- 
lish  courts?] 

An  order  of  authorisation  is  asked  for 
of  certain  amendments,  which  we  ask 
tho  Court  to  sanction,  and  which  wo 
will  put  to  them.  At  present,  their  con- 
sent to  the  compromise  does  not  em- 
brace that. 

fBuchanan,  A.C.J. :  My  point  ie  that 
there  ought  to  be  a  judgment  of  the 
Englist  courts.  His  Lordship  ad<k^d 
that  it  was  a  good  rule  when  a  com- 
promise was  arranj^cd  in  a  matter  such 
as  this  that  public  notice  should  be 
given.] 

In  regard  to  the  publicity  of  the  iiiat- 
ter.  your  lordship  may  perhaps  see  from 
the  petition  that  there  are  certain 
rea^sons  why  it  should  not  be  made  pub- 
lic. 

fBuchanan,  A.C'.J. :  We  oannot  dis- 
pense with  that  in  the  ordinary  course.] 

Hero  is  a  case  in  the  court  which,  I 
take  it,  will  be  settled,  and  the 
general  requirements  of  the  law  as  to 
publicity  would  be  complied  with  if 
there  were  a  regular  judgment  by  con- 
sent. 

Burhanan,  A.C.J. ,  granted  an 
order  authorisincr  tho  lij^uidiators 
to  consent  to  judgment  in  their 
favour  in  the  action  institu-ted 
by  them  in  the  High  Court  of 
Justice,  based  on  the  oflFer  made  by 
the  defendant,  with  such  other  oondi- 
tions  aa  might  be  agreed  upon  between 
the  defendant  and  the  liquidators. 


The  matter  wm  ordered  to  stand 
over  for  farther  inlormation  as  to  the 
poatioD  of  the  heirs. 


GENERAL    MOTIONS. 


Hx  parte  JORDAAN.         |  Oct.^rTth. 

Mr.  Molteno  moved,  on  the  petition 
of  the  executrix  testamentary,  for 
authority  to  confirm  the  sale  of  certain 
property.  Counsel  sand  that  the  sole 
point  was  as  to  the  interpretation  of 
the  will  of  the  petitioner's  late  hus- 
band, the  Master  in  his  report  stating 
that  it  was  so  contradictory  that  it 
was  difficult  to  understand  what  waa 
the  intention  of  the  testator. 


Kr  JHirf.*  SETTERY. 

Mr.  Benjamin  moved  for  the  rule 
nui  calling  upon  Frank  Percival  Smith 
to  show  cause  why  he  should  not  be 
remoTed  from  certain  ezecutorship  to 
be  made  absolute. 

Rule  made  absolute. 


BHABPE  y.  BHARPE. 

Dr.  Greer  was  for  the  applictnt 
(Elizabeth  Jacoba  Sharpe);  Mr.  Alex- 
ander was  for  the  respondent  (Archibald 
J.  Sharpe.  a  platelayer). 

This  was  an  applicatioii  hj  the  de- 
fendant in  the  divorce  suit  calUng  npon 
her  husband  to  show  cause  wny  be 
should  not  pay  to  her  the  sum  of  £30, 
to  enable  her  to  defend  the  prooeed- 
ing8. 

Affidavits  were  read,  in  which  the 
respondent  took  up  the  position  that 
he  could  not  pay  aby  sum  to  the  ap- 
plicant, as  he  was  without  means.^  Ap- 
plicant said  she  denied  the  allegatian  of 
adultery  made  against  her  by  the  plain- 
tiff in  the  suit.  Resjpondent  said  that 
his  wife*s  present  action  was  quite  un- 
necessary and  a  waste  of  money.  He 
also  stated  that  he  was  deeply  involved 
in  debt.  His  wife  had  been  turned  out 
of  one  house  by  the  landlord  on  account 
of  her  disgraceful  behaviouT,  the  land- 
lord (the  Rev.  Mr.  De  Yilliers)  saying 
that  he  would  rather  have  a  Hottentot 
in  the  house.  Deponent  had  had  judg- 
ments against  him  on  account  ot  his 
wiife's  debts,  and  had  been  twice  ar- 
retted.  He  denied  that  he  drank 
more  than  once  a  week,  and  even  then, 
ho  said,  not  more  than  an  average 
man's  drink.  He  also  said  that  when 
his  wife  received  d^20  from  him,  she 
spent  it  upon  a  dance  at  Gordon's  Bay, 
and  continued  dissipation. 

Leave  was  given  to  remove  the  bar, 
plea  to  be  filed  in  seven  days,  but  no 
order  was  made  as  to  the  payment  of 
alimony.  Leave  was,  however,  grant- 
ed to  the  applicant  to  defend  the  ac- 
tion in  forma  pauperis.  Dr.  Greer  to 
be  counsel,  and  Messrs.  Herold  and 
Gie,  attorneys,  costs  to  be  costs  in 
the  cause. 


Ex  parte  esterhutben. 

Mr.  Watermeyer  moved,  on  the  peti- 
tion of  the  executrix  testamentary,  for 
confirmation  of  an  agreement  of  sale. 

Order  granted  in  terms  of  Master*^ 
report. 


J 


"CAPB  TIMES"  LAW  REPORTS. 


809 


Ex  parte  BOAKDMAK. 

Attorney  —  Admission  —  Servi(« 
of  articles — Breach  of  con- 
tinaity. 

B.,  fl«  articled  clerh^  had 
served  upitmrds  of  hco  years 
with  a  firm  of  attorneys  in 
this  Colofiy.  He  then  joined 
the  Imperial  forces  attd  now 
applied  for  have  to  complete 
the  remainder  of  his  eervice 
in  the  Transvaal, 

Held,  that  the  breach  of  con- 
tifiuity  of  service  must  he 
cofidofiedy  but  that  leave  could 
not  be  granted  to  complete 
service  in  the  Transvaal, 


Mr.  Benjamin  moved  ior  an  order 
as  to  the  oompletioo  of  the  articles  of 
cleriiship  of  one  Wm.  BoardmaD, 
petitioner  having  had  his  period 
of  servioe  ioterrupted  hy  join- 
ing HiB  Majesty's  forces  during  the 
late  war.  He  was  now  acting  as  manag- 
ing clerk  to  a  firm  in  the  Transvaal. 

Mr.  Upington,  on  behalf  of  the  Law 
Society,  opposed  the  application,  m  so 
£ar  as  it  was  asked  that  service  should 
be  allowed  in  the   Transvaal. 

Mr.  Benjamin  pointed  oMt  that  th') 
applicant  had  actually  ^er/cd  two  years 
and  three  noonths  with  an  attorney  at 
Barkly  East,  when  he  joined  the  Im- 
perial forces.  He  was  only  nine  months 
short  of  the  service  required  by  the 
Court. 

Buchanan,  A.C.J.,  said  thait  the 
applicant  appeared  to  have  ren- 
dered meritorious  service  to  the 
country,  in  consequence  of  which  the 
continuity  of  his  service  as  an  articled 
clerk  had  been  broken.  The  Court 
would  condone  the  breach  of  continuit/ 
of  service,  and  grant  an  order  for  the 
applicant  to  be  allowed  to  qualify  for 
admission  by  serving  a  further  nine 
months,  so  as  to  complete  the  requisite 
period  of  three  years.  As  to  the  second 
part  of  the  application,  for  leave  to 
serve  the  balance  of  the  period  in  the 
Transvaal,  His  Lordship  said  that  he 
cottid  not  see  his  way  at  present  to 
grant  leave. 


SECOND  DIVISION. 


[Before  the  Hon.  Mr.  Jastioe  Hoplby.] 


COUBTENCT  ▼.  COUBTKNOT. 


f 


1905. 
Oct.   17th. 

Mr.  Benjamin  moved  for  a  commis- 
•fion  to  take  the  evidence  of  the  plain- 
tilf.  Mrs.  Cpurteney,  who  was  residing 

Fa 


at  Johannesburg.  She  had  been  desert- 
ed by  her  hu^and,  and,  having  to  earn 
her  living  as  a  boarding-house  keeper 
at  Johannesburg,  was  unable  to  come 
to  Cape  Town. 

Application  granted,  the  commission 
to  take  the  evidence  of  the  plaintiff 
and  any  oUier  of  her  witnesses,  Mr. 
J.   van  Heerden  to  act  aa  commission- 


er. 


KOCH  V.  EOCH. 

Dr.  Greer  was  for  the  plaintiff,  and 
the  defendant  was  in  default.  The  action 
was  brought  by  the  husband  against  his 
wife  for  restitution  of  conjugal  rights, 
failing  which  a  decree  of  divorce.  L^ve 
was  given  to  sue  by  edictal  citation,  and 
personal  service  was  ordered!  on  the  de- 
fendant at  Johannesburg,  but  after  a 
diligent  search  by  the  Sheriff  her  where- 
abouts could  not  be  discovered.  Sub- 
stituted service  wa«  ordered,  and  pub- 
lication had  been  effected  in  "  Ons 
Land"  and  "The  Transvaaler." 

Buchanan,  A.O.J..  pointed  out  that  the 
publication  in  "  The  Transvaaler  '* 
oiight  ^o  have  been  in  Dutch,,  as  the 
parties  to  the  suit  were  Dutch. 

Dr.  Greer  said  that  the  publication 
was  in  Dutch  in  *'  0ns  Land,"  and  ex- 
plained that  the  publicaiion  would  be 
made  by  the  agents  in  Johannesburg. 
There  was  some  evidence,  however,  that 
the   defendant   was   in  Europe. 

The  plaintiff,  Frederick  Johannes 
Koch,  a  farmer,  of  Rietfontein,  said  he 
was  married  to  the  defendant,  Catherina 
Margariiat  Koch  (born  Bothas),  at 
Prince  Albert,  in  November,  1892. 
There  was  no  issue  of  the  marriage 
alive.  He  lived  happily  with  his  wjfe 
until  1902.  when  the  defendant  went  to 
Beaufort  West  to  fetch  her  bicycle, 
which  had  been  handed  over  to  the 
militarv.  She  never  returned  to  the 
plaintiff.  ISix  months  later  she  wrote 
A  letter  to  her  sister  from  Joliannets- 
burg  stating  her  intention  of  never 
ret'irnin)?.  and  making  certain  allega- 
tions against  her  husband.  Plaintiff  was 
possessed  of  some  400  sheep  and  goats, 
and  his  wife  had  brought  nothing  into 
the    community  of   property. 

It  was  ordered  tliat  the  defendant 
return  to  the  plaintiff  and  restore  to 
him  conjugal  rights  on  or  before  15th 
January,  1905,  failing  which  to  show 
cause  on  the  Ist  February,  1906,  why 
a  decree  of  divorce  should  not  be 
granted,  and  the  defendant  declared 
to  have  forfeited  benefits  arming  out 
of  the  marriage  in  community,  pub- 
lications   Be,  before. 


COLDBET  V.  OOLDBET. 

Mr.  Gutsche  was  for  the  plaintiff  and 
the  defendant  was  in  default.  The 
plaintiff   sued  his  wife  by  edictal  cita- 


810 


<i 


CAPE  TIMES*'  LAW  REP0ET8. 


tion  for  restitution  of  conjugal  rights, 
failing  which  a  decree  of  divorce  for 
malicious  desertion  and  personal  ser- 
vice was  ordered,  failing  which  publi- 
cation twice  in  the  weekly  *'  C-aiic 
Times"  and  the  "Daily  Telegraph." 
It  was  found  imims^^iblo  to  elFect  por- 
Bonal  service.  The  parties  were  married 
in  community  of  property  in  December, 
1895,  and  of  the  marriage  there  was  one 
girL  three  years  of  age.  In  August, 
1903,  the  defendant  deserted  the  plain- 
tiff and  had  not  been  heard  of  since. 
Plaintiff  claimed  a  decree  of  restitution 
of  conjugal  rights,  failing  which  a  de- 
cree of  divorce  and  forfeiture  of  the 
benefits  under  the  marriage  in  com- 
munity. 

The  plaintiff,  Harry  Pritchard  Col- 
drey,  stated  he  married  the  defendant, 
Ann  Jane  Coldrey,  born  (Campbell)  in 
December,  1895.  In  January,  1903,  wit- 
ness, acting  on  medical  advice,  sent  his 
wife  for  trip  to  England  for  six 
months,  which  was  extended  to  nine 
months.  He  wrote  to  her  regularly 
every  mail  and  sent  remittances.  There 
was  nothing  peculiar  until  July,  1903, 
when  he  got  a  somewhat  short  note  from 
his  wife  stating  that  she  had  not  made 
arrangements  tor  her  return  for  reasons 
which  she  would  state  later  on.  Wit- 
ness, in  reply,  sent  a  letter,  which  was 
returned  unopened.  In  August  he  re- 
ceived a  letter  froni  the  defendant  con- 
taining the  following  passages:  "You 
will,  no  doubt,  be  surprised  when  you 
receive  this  letter.  After  months  of 
careful  thinking  I  have  come  to  the 
conclusion  it  is  best  I  should  not  return. 
...  It  will  be  useless  to  try  to  find  me, 
as  I  am  leaving  here  this  w(3ck,  and 
for  the  future  I  am  dead  to  everyone." 

By  HopJey,  J. :  He  had  no  idea  whv 
she  was  staying  away.  When  she  left 
he  took  exception  to  her  leaving  debts 
behind,  after  ho  had  stipulated  she 
should  not  do  so. 

[Hopley,  J. :  There  do  not  seem  to 
be  extraordinary  differences  between 
these  people.] 

Mr.  Gutsche:  For  two  years  he  has 
not  heard  from  her. 

[Hopley,   J.:       She  has   had   time   to 
think  about  it.     You  can  take  a  similar 
order  to  the   last,  with   the   same  pub 
lication  as  before.     If  possible,  have  it 
brought  to  her  personal  notice.] 


WARREN  V.  WARREN  AND  TAYLOR. 

IVir.  Lewis  was  for  the  plaintiff  and 
the  defendants  were  in  default.  The 
action  was  brought  by  the  husband 
against  his  wife,  Jeanetta  Warren,  for 
divorce,  and  against  James  Arthur  Tay- 
lor for  £500  damages,  on  the  ground 
of   the   adultery   of   the   defendants. 

William  George  Warren,  the  plaintiff, 
stated  he  was  married  to  the  defendant 
»t  Cardiff  in  May,  1880. 


Witness  went  to  Australia  and  remain- 
ed there  twelve  years.  In  1887  his  wile 
went  to  Englanu  on  a  trip  to  see  her 
l)areutu.  In  1895  his  wife  and  he  re- 
turned to  England,  and  in  1897  they 
came  iiere.  At  the  beginning  of  the  war 
witness  M?iit  her  home  to  her  parents  for 
a  trip.  The  letters  between  the  parties 
were  couched  in  affectionate  terms.  In 
August,  1902,  she  returned  with  the 
child.  Witness  was  then  at  Kimberley 
with  the  military,  then  he  came  down 
to  Cape  Town  and  subsequently  took 
up  his  residence  at  Bloemfontein.  Tay- 
lor's name  was  mentioned  to  him  by  his 
wife,  who  said  that  the  second  defend- 
ant had  been  very  kind  to  her  on  the 
voyage  home.  VVitness  and  his  wife 
went  to  Springfontein,  and  from  there 
his  wife  left  for  Cape  Town 
to  s))end  a  few  days  with 
some  lady  friends,  and  on  her  sugges- 
tion witness  addr(>sse-J  letters  to  a  Post 
OHicc  box  instead  of  the  address  where 
she  was  staying  at  Sea  Point.  In  July, 
1903,  she  returned  to  Bloemfontein  and 
stayed  twelve  or  fourteen  days,  during 
which  time  he  noticed  that  she  was 
very  cold — there  was  something  strange 
about  her.  She  again  returned  to  Sea 
Point,  and  in  September,  1903,  witness 
came  down  to  Cape  Town  and  endeav- 
oured to  find  his  wife,  but  he  could 
not  find  the  address  given  at  Sea  Point. 
Referring  to  the  P.O.  box  address,  he 
found  it  was  the  property  of  people  in 
Kloof-road,  but  he  could  not  find  her 
there.  Subsequently  he  received  two  let- 
ters, in  which  the  first  defendant  denied 
any  misconduct,  but  absolutelv  refused 
to  see  him.  He  returned  to  Bloemfon- 
tein and  received  more  letters  in  the 
same  strain.  In  February,  1905,  he  came 
down  here,  and,  finding  the  defendant.s 
living  as  husband  and  wife,  he  visited 
them  at  Observatory,  and,  ultimately,  in 
a  scuffle,  he  was  shot  by  the  secondf  de- 
fendant. Taylor,  at  the  Cri^minal  Ses- 
sions, was  ordered  to  pay  £50  or  under- 
go four  months*  imprisonment  for  the 
assault,  and  the  jury  recommended  him 
to  mercy  on  the  ground  that  there  was 
evidence  that  he  believed  the  first  de- 
fendant was  a  widow  and  that  she  was  in 
a  delicate  st-ate  of  health  when  the  plain- 
tiff forced  his  way   into  the  house. 

Hopley,  J.,  granted  a  decree  of  di- 
vorce, tne  plaintiff  to  have  custody  of 
the  child,  and  taking  into  consideration 
the  circumstancos  of  the  second  defend- 
ant, who  had  been  imprisioned  tor  a 
time  for  being  unable  to  pay  his  fine, 
ordered  him  to  pay  £25  damages  and 
the  costs  of  the  suit. 


EVANS  V.  EVANS  AND  MAGEB. 

Mr.  Gardiner  was  for  the  plaintiff 
and  the  defendants  were  in  default..  The 
action  was  brought  by  Joseph  James 
Evans  against  his  wife  for  divorce,  and 
against  the  second   defendant  for  £500 


"OAPB  TIMES"  LAW  REPOETS. 


811 


damages  by  reason  of  the  defendants' 
adultery. 

Joseph  James  Evans,  the  plaintiff,  said 
he  was  married  to  his  wife  at  Belfast 
on  15th  July,  1895.  Eventually  he  came 
out  here  and  settled  at  Diep  River  un- 
der Government  employment.  The 
co-defendant  got  an  introduction  to  the 
house  through  a  friend,  and  on  Sun- 
day, 16th ^  July,  1905,  he  (witness)  be- 
came suspicious  of  the  relations  between 
Magee  and  his  wife. 

[Hoi^ey,  J. :  What  made  you  suspic- 
ious?] 

Witness:  He  was  making  "eyes"  at 
my  wife.  Proceeding,  plaintiff  said  that 
on  the  following  Tuesday  morning,  in- 
stead of  going  to  his  work,  he  returned 
to  the  house,  only  to  find  the  defend- 
ants in  the  same  room.  He  proceeded 
to  give  evidence  of  the   misconduct. 

Evidence  was  called  as  to  the  scene 
which  then  happened,  the  plaintiff 
evicting  the  defendants  from  the  house 
and  throwing  the  first  defendant's  boxes 
into  the  street. 

Decree  of  divorce  granted,  the  de- 
fendant to  pay  £50  as  damges  and  costs 
of  the  suit.  ^  In  awarding  damages  His 
Lordship  laid  stress  on  the  unhappy  re- 
lations between  husband  and  wite  prior 
to  the  occurrence. 


HETDENBTOH  V.  AMTOT. 

Mr.  Roux  moved  for  an  order  to  at- 
tach certain  property  in  order  to  found 
jurisdiction  in  an  action  to  be  brought 
for  the  recovery  of  £248  IBs.  Id.  on 
an  acknowledgment  of  debt. 

Order  granted  and  leave  granted  to 
sue  by  edictal  citation,  the  citation  and 
notice  to  be  served  together,  personal 
service  returnable  on  12th  December. 


6WEENBT  V.  BWEBKET. 

Mr.  Jones  moved,  on  behalf  of  the 
applicant  (Bridget  Sweeney)  for  a/limony 
and  funds  to  enable  her  to  defend  an 
action  brought  by  the  respondent  againert 
her  for  divorce. 

Mr.  Lewie  opposed  the  motion. 

The  appldoant's  affidavit  stated  that 
respondent  was  in  receipt  of  £17  158. 
a  month  wagee.  The  applicant  had  no 
means  of  d^ending  the  action,  as  she 
had  aeven  ehlldren  dependent  on  her. 

The  respondent's  affidavit  denied  that 
she  had  no  funds.  ^  She  had  a  board- 
ing-house, which  paid  her  well. 

The  applicant,  in  a  replydng  affidavit, 
denied  tnat  the  boarding-house  was  pay- 
ing her.  ^ 

Hopley,  J.,  inquired  what  amount  it 
would  take  the  respondent  to  support 
himself  monUily. 

Mr.  Jonee  said  the  respondent's  duties 
towards  his  family  should  aUso  be  taken 
into   considerMioxu 


Hopley,  J.,  said  that  in  the  present 
case  the  applicant  had  a  boarding- 
house,  and  in  that  way  had  a  home. 
There  were  very  serious  charges  alleged 
on  'both  sides.  It  did  not  appear  that 
there  were  any  accumulated  funds,  and 
the  Court  did  not  see  it«  way  to  make 
an  order  to  tflop  the  procoodings.  There 
would  be  nio  order  for  coutriBution  to 
the  applicant's  costs,  but  he  would 
have  to  pay  15s.  weekly  towards  tne 
support  of  the  children  until  the  case 
was  decided.  The  respondent  would 
have  to  proceed  forthwith  with  his 
action. 

Mr.  Lewis :  Will  your  Lordship 
assign  any  date? 

Hople;^,  J. :  He  will  have  to  file  his 
declaration  within  a  week. 


Ejh  parte  SOLOMON  AND  ANOTHER. 

Mr  Russell  moved  for  an  order  au- 
thorising the  Master  to  pay  over  certain 
moneys  to  the  trustee  for  the  mainten- 
ance of  minotrs. 

The  application  waa  granted. 


Ex  2>arte  HOLMES. 

Mr.  Swift  moved  to  have  an  arbi- 
trator's award  made  a  rule  of  Court. 
Hemit  in  consent  papers. 

The  application  waa  granted. 


Ex  parte  BOWEBS. 

Mr.  De  Waal  moved  to  have  the 
transfer  deed  <rf  certain  property  at 
Camp's  Bay  amended.  He  was  describ- 
ed in  the  oood  as  Arthur  Bowers,  when 
it  should  have  been  Arthur  Fitzgerald 
Bowers.  The  Registrar  raised  no  ob- 
jection   to  the    motion. 

The    application   was    granted. 


Ex  parte  KILLINQSWORTH. 

Mr.  Gerdiner  moved,  on  behalf  of 
applicant,  for  leave  to  sue  his  wife, 
Kate  Killingsworth,  by  edictei  citation 
for  restitution  of   conjugal   rights. 

The  applicant's  affidavit  stated  that 
he  paid  ms  wife's  poasage  to  England, 
and  that  she  now  refused  to  return  to 
him. 

The.  case  was  allowed  to  stand  over 
to  enable  the  applicant  to  state  how 
long  he  had  been  domiciled  in  this 
country. 


E»  parte  THE  ESTATE  Dtr  PLE68IS. 

Mr.  De  Waal  moved,  on  behalf  ol 
the  trustees  in  the  above  estate,  for 
leave  to   pass  ti'ansfer  of   oertann  pro- 


812 


"CAPE  TIMES"  LAW  BEPOBT& 


porty.      A   consent   paper   by   those   in- 
terested  was   put  in. 

The    application     was    granted,    peti- 
tioner to  pay  cor<t8  of  petition. 


SUPREME  COURT 


KEMLO  V.  KEMLO. 

Mr.  Van  Zyl  moved,  on  behalf  of 
Alexander  Komlo,  to  have  an  arbitra- 
tor's award  made  a  rule  of  Court.  The 
applicant  and  respondent  had  traded 
together,  but  owing  to  their  being  un- 
able to  agree,  an  arbitrator  waa  called 
in,  and  the  parties  decided  to  abide  by 
his  ruling. 

The   application   waa   granted. 


MA6TEBT0N  V.  OBREE. 

Mr.  Gardiner  moved,  on  behalf  of 
Masterton,  to  make  a  certain  award  a 
rule  of  Court. 

Mr.  Houx,  who  appeared  for  the  re- 
spondent, consented  to  the  application, 
but  opposed  costs  being  given  against 
him. 

Mr.  Gardiner  explained  that  Maater- 
ton  was  afi.signeo  in  Obree's  estate,  and 
after  he  had  paid  out  the  various 
claims,  he  handed  the  balance  to 
Obree.  The    latter     contended    that 

more  than  ho  received  was  due  to  him, 
and  as  a  result,  an  arbitrator  was  called 
in,  who  found  that  Obree  had  got  what 
he  was  entitled  to. 

Mr.  Roux  contended  that  Masterton 
had  not  rendered  an  account  as  be 
should  have  done  when  he  had  wound 
up  the  estate,  and  ra  a  result,  the  arbi- 
trator was  put  to  considerable  trouble 
and  expense  to  ascertain  it,  which 
amount  he  contended  Ma.-terton  should 
pay. 

The  application   was   granted,   the  ap- 
plicant  noiiig   given   pennission    to  meet 
lis  costs  out   of  the  funds  at  present  in 
his  hands. 


I 


7i>  parte  DYMOND. 

Mr.  W.  P.  Buchanan  moved  for  leave 
to  register  an  ante-nuptial  contract.  The 
parties  were  married  seven  years  ago 
m  community  of  property,  but  were  not 
aware  of  the  fact  until  recently,  con- 
sequently they  brought  the  present  ap- 
plication. 

The  matter  was  ordered  to  stand  over 
pending  counsel  quoting  authority  for 
the  order. 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Justice,  the 
Uon.  Sir  John  Buchanan.] 


GENERAL  MOTIONS. 


Ejc  parte  THE   estate 

DV  TOIT. 


§       19U&. 
I  Oct    18th. 

Mr.  McGregor  moved  for  the  confir- 
mation of  a  certain  sale.  The  case  had 
been  before  a  Judge  iu  Chambers,  but 
counsel  was  advised  to  bring  it  up  in 
court. 

Rule  nisi  granted,  to  be  served  on 
heirs  under  the  will  of  the  Boshofs,  rule 
returnable  on  the  14th  December. 


JUsp  parte  lovbll. 

Mr.  Close  moved,  on  behalf  of  appli- 
cant, for  leave  to  aue  her  husband 
Williani  Lovell  bj  edictal  citation  for 
restitution  of  conjugal  rights. 

The  affidavit  stated  the  parties  were 
married  in  1903  at  Gape  Town.  In 
April  last  the  respondent,  who  was  a 
sergeant  in  the  C.G.A.,  deserted,  and 
has  not  since  been  heard  of. 

Leave  to  sue  granted,  citation  to  be 
the  notice  published  in  the  **  Cape 
Times "  and  "  Government  Gazette," 
and  to  be  returnable  on  the  15th 
December. 


2>  jfartr  MINORS  COBTZEB. 

Mr.  Gutsche  moved  for  leave  to  pass 
transfer  of  certain  propertv.  The  pro- 
|x;rty  had  been  purchased  from  a  vendor 
who  had  never  received  transfer.  Usual 
rule  under  Derelict  Lands  Act  granted. 


A>  parte  POULTON. 

Mr.  Payne  moved  for  the  registra- 
tion of  a  certain  transfer  to  an  execu- 
trix. 


ESTATE  KABB  V.  COLOMBICK. 

Mr.  Douglas  Buchanan  moved,  on  be- 
half cf  the  executors  in  this  estate,  for 
attachment  of  certain  property,  and 
leave  to  sue  the  defendant,  wno  was 
resident  outride  the  jurisdiction  of  the 
Court,  by  edictal  citation. 

Order  granted. 


if 


CAPE  TIMES*'  LAW  ftEPOftxa 


813 


OODFBEY  V.  FBAlfK. 

Mr.  p.  S.  T.  Jonea  moved,  on  behalf 
of  the  applicant,  to  have  the  hearing 
of  this  case  set  aown  for  trial  by  jury. 

Dr.  Greer  appeared  for  the  respon- 
dent. 

Mr.  Jones  read  the  affidavit  of  Mr. 
Wrensch,  plaintiff's  attorney,  stating 
that  the  matters  at  issue  in  the  suit 
were  mainly  matters  of  fact. 

Dr.  Greer  said  his  client  had  not  re- 
ceived the  necessary  notice  as  re- 
quired under  section  6,  Act  23  of  1891, 
but  he  did  not  intend  to  raise  that 
point. 

[Buchanan,  A.  C.  J. :  But  the  Court 
may.] 

Dr.  Greer  read  an  affidavit  made  by 
respondent's  attorney  (Mr.  C  Brady), 
in  which  he  stated  that  the  defendant 
was  obliged  to  leave  this  colony  for 
Europe,  and  would  be  unable  to  re- 
turn until  December  31.  Defendant 
was  a  very  material  witness,  as  he  was 
in  the  motor-car  when  the  accident  hap- 
pened, and  he  prayed  that  the  hear- 
ing of  the  case  be  set  down  for  sc^me 
date  after  December  31. 

The  affidavit  of  the  applicant  stated 
that  on  or  about  the  18th  August  he 
was  informed  that  the  defendant  was 
making  active  preparations  to  leave  the 
Colony.  H©  thereupon  reported  the 
fact  to  his  attornev,  and  the  next  day 
caused  a  letter  to  be  written  to  the  de- 
fendant's attorney,  calling  upon  de- 
fendant to  give  security  to  answer  the 
action  and  abide  by  the  judgment  to  bo 
given  therein.  On  tne  Zlst  August 
applicant's  attorney  received  a  letter 
from  defendant's  attorney  stating  that, 
as  far  as  he  was  aware,  the  defendant 
had  no  intention  of  leaving  the  Colony. 
On  the  same  date  a  letter  was  received 
from  defendant's  attorney  emphatically 
denying[  that  the  defendant  was  con- 
templating departure  from  this  colony. 
In  view  of  that  letter,  plaintiff  took  no 
further  steps  in  the  matter.  Plaintiff 
objected  to  the  application  to  have  the 
case  set  down  for  a  date  after  the  31st 
December,  as  the  defendant  was  fully 
awure  that  the  action  would  come  on 
for  trial  this  term.  He  firmly  believed 
that  the  defendant  did  not  intend  to 
return  to  the  Colony,  and  had  left  the 
Colony  to  avoid  judgment. 

Buchanan  A.  C.  J.,  said  it  was  a  pity 
that  the  defendant  was  not  arrested  and 
forced  to  give  bail  before  he  left  the 
country. 

Dr.  Greer  said  ho  believed  that  the 
defendant  intended  to  return  to  Cape 
Town.  He  was  a  veterinary  surgeon, 
employed  by  the  German  Government, 
and  had  large  interest*  in  Cape  Colonv. 

Mr.  Jones  said  the  defendant  had  sow 
his  horses  and  motor-cars  before  leav- 
ing South  Africa. 

The  case  was  set  down  for  trial  for 
February  6. 

Buchanan,  A.  C.  J.,  said  that,  in  the 
meantime^  he  would  like  the  attorney  for 


the  defendant  to  make  an  affidavit  ex- 
plaining to  the  Court  how  he  came  to 
write  the  letters  he  did  to  the  plain- 
tiff's attorney,  and  also  to  know  if  he 
would  give  security  for  the  defendant's 
appearance. 


AV  jfartc  THE  estate  db  beeu. 

Mr.  Payne  moved,  on  behalf  of  the 
executor  in  this  estate,  for  the  confirma- 
tion of  a  certain  sale. 

Order  granted. 


SJSCOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley 
and  a  Jury.] 


WESTON     V.    CAPE    TOWN    J  ^v  f      W4>, 
TOWN   COUNCIL.  |^^^^      JJ)[2' 

This  was  an  action  brought  by 
Frank  Jonah  .  Weston,  merchant,  of 
RondeboiK^h,  agaiiiist  the  Corporation 
of  Cape  Town,  to  recover  £2.000  dam- 
ages for  personal  injuries  alleged  to 
have  been  sustained  through  the  negli- 
gence of  the  defendants  or  their  ucr- 
vants.  Plaintiff,  in  the  evening  of  tho 
l&th  March  last,  fell  into  an  oxcav<atiou 
near  Claridge's  Hotel,  at  the  top  of 
Plein-street,  made  in  connection  with 
works  which  were  being  oa<rried  out  by 
the  Waterworks  Department,  and  met 
with  severe  injuries  to   his  loft  knee. 

The  plaintiff  s  decliaratiou  wa6  as  fol- 
lows : 

1.  The  plaintiff  is  a  merchant  resid- 
ing in  Rondobosch,  in  tho  Capo  Division, 
and  the  defendants  are  the  Corpora- 
tion of  the   city  of  Cape  Town. 

2.  The  defendants  are  reepousible  for 
keepinf^  the  streets  of  the  city  of  Cape 
Town  in  a  proper  stete  of  order  and 
repair. 

3.  On  or  about  the  16th  March,  1906, 
certain  excavations  were  being  made 
by  the  defendants  or  their  servants  or 
agents  at  the  corner  of  Plein  and  Roe- 
land  t^treets,  in  the  »aid  city,  facing 
Claridge's  Hotel. 

4.  It  was  the  duly  of  the  dofendfints 
to  provide  or  cause  to  be  provided 
sufficient  and  proper  hoarding,  lights, 
or  other  protection  in  and  around  the 
said  excavations  on  the  date  aforesaid, 
for  the  protection  and  safety  of  the 
public  using  the  said  street,  but  tho  de- 
fendanta  wrongfully,  unlawfully,  and  in 
breach  of  their  duty  failed  and  neglect- 
ed to  provide  any  or  sufficient  protec- 
tion a.s  aforesaid. 

6.  On  the  night  of  the  said  16th  ol 
March  the  plaintiff  was  walking,  as  he 
lawfully  might,  in  the  said  street,  for 
the  purpose  of  his  business,  when,  ow- 
ing to  the  negligence  and  default  of  th4 
defendants, .  as   aforesaid,    he    suddenly 


814 


If 


CAPB  TIMES'*  LAW  REPORTS. 


fell  into  the  said  excavatioii,  which  was 
7  ft  in  depth. 

6.  Owinjf  to  his  said  fall,  the  plaintiff 
sustained  injuries  to  hw  leg,  the  knee- 
cap being  broken  in  several  places  in 
consequence  of  which  he  haa  been  oblig- 
ed to  undergo  an  operation;  he  aUo 
fluatainod  other  injuries,  and  still  is 
suffering  severely  from  the  result  of  the 
said  injuries,  which  have  practically 
crippled  him. 

7.  The  plaintiff  had,  moreover,  been 
obliged,  by  reason  of  his  said  fall,  and 
its  results,  to  incur  considerable  ex- 
pense, and  has  further  been  prevented 
and  is  still  prevented  to  a  great  ex- 
tent from  pursuinjg^  his  business  upon 
which  he  16  entirely  dependent  for  the 
support  of  himself  and  hicj  family,  and 
his  aaid  business  has  become  neglected 
thereby,    to   his    great    detriment. 

8.  Tne  plaintiff  estimates  the  loss 
and  damages  which  he  has  suffered  in 
the  premises  damages  to  the  extent  of 
£2,000. 

The  plaintiff  clainw :  (a)  The  said  sum 
of  £2,000  as  damages  aforesaid ;  (b) 
alternative   relief;   (c)   costs  of   suit. 

The  defendant's  plea  was: 

1.  The  defendant  is  not  aware  of  the 
plaintiff's  occupation.  The  liabilities 
of  the  defendant  are  defined  by  Act 
26  of  1893.  Subject  to  the  above,  para- 
graphs 1  and  2  of  the  decraration  are 
admitted. 

2.  The  said  excavation  was  situated 
between  the  lines  of  rail  of  the  Tnamway 
Company,  which  has  the  right  to  have 
the  lines  there,  and  there  were  at  the 
^aid  excavation  the  earth  thrown  up, 
sufficient  and  proper  barriers,  and  lights 
and  other  protection  for  the  safety  and 
protection  of  the  public  using  the  said 
street  were  provided,  and  the  defendant 
denies  that  there  was  any  breach  of 
duty  on  their  part  or  any  failure  or 
negligence  to  provide  any  or  sufficient 
protection   as  aforesaid. 

3.  In  addition  to  the  aforesaid,  watch- 
men were  employed  by  the  defendant 
to  open  and  close  the  barriers  upon  the 
approach  and  departure  of  a  tram  pass- 
ing the  said  excavation,  and,  on  the 
16th  March,  when  the  said  barriers  were 
opened  for  the  passing  of  a  tram,  the 
plaintiff,  with  notice  and  knowledge  of 
the  above  facts,  and  in  spite  of  warning, 
crossed  the  metals  ana  fell  into  the 
said  excavation;  the  said  fall  was  occa- 
sioned by  the  carelessness  and  negli- 
gence  of  the  plaintiff.  Save  as  afore- 
said, the  defendant  denies  paragraphs 
4  and  5. 

4.  The  defendant  has  no  knowledge 
of  i>aragraphfi  6  and  7,  and  does  not 
admit  them,  end  he  denies  that  plaintiff 
has  sustained  damage  to  the  extent  of 
£2.000,  or  to  any  amount  for  which 
defendant  is  liable.  Wherefore  defen- 
dant pra3r8  that  plaintiff's  claim  may 
be   dismissed  with   co^ts. 

Mr.  Burton  (with  him  Mr.  Lewis)  for 

Elaintiff.    Mr.  Schreiner,  K.C.  (with  him 
)r,  Rainafor^)  for  defendants. 


Sir  Edmund  Sdnolair  SteTenson, 
medical  praotittoner,  Rondebosch,  said 
that  b^  saw  the  plaintiff  in  oousultation 
with  Dr.  Guillemazd  about  the  17th  or 
18th  March,  and  found  thait  he  has  sus- 
tained a  fracture  of  the  knee-cap,  which 
waa  serious  because  of  the  large  spaces 
between  the  fragments.  He  oGnsidered 
that  it  w«8  wise  to  perform  an  opera- 
tion and  this  was  done.  He  did  not 
think  the  plaintiff  would  ever  have  the 
full  use  of  his  leg  as  he  had  before  the 
accident;  he  did  not  think  he  would 
be  able  to  bend  his  knee  aa  he  did 
before. 

Cross-examined  by  Mr.  Schreincr: 
Even  to-day  he  would  be  prepared  to 
certify  the  plaintiff  as  a  first-class  "life" 
from  an  insurance  point   of  view. 

Dr.  Bernard  J.  Guillemard,  partner 
of  the  previous  witness,  expressed  the 
opinion  that  plaintiff  would  always  have 
a  more  or  less  crippled  leg.  He  would 
be  liable  to  pain  m  his  after-life ;  his 
leg  would  ache  from  time  to  time. 

He  thought  the  plaintiff's  general 
health  would  .suffer  because  he  would  not 
be  able  to  take  as  much  exercise  as  he 
otherwise  would  have  done.  He  thought 
the  f>laintiff  would  have  to  use  a  stick 
in  going  about  for  the  rest  of  the  year. 

George  May,  photographer,  Plein- 
street,  identified  a  series  of  photographs 
of  the  locality  of  the  accident  taken 
about  a  month  ago. 

The  plaintiff,  Frank  J.  Weston,  who 
walked  into  the  box  with  the  aid  of  a 
stick,  said  that  at  the  beginning  of 
March  he  was  carrying  on  business  as 
a  draper  in  Station-road,  Observatory. 
On  the  16th  March  he  had  removed  bis 
home  to  Rondebosch,  and  had  taken  a 
shop  in  Plein-street,  Oape  Town,  form- 
erly the  Weiner  Bakerr  premises.  On 
the  evening  of  the  16th  Maroh  he  had 
taken  his  shop  goods  and  had  them 
placed  on  a  wagon  Witness  came  to 
town  by  train,  and  went  to  the  shop, 
where  he  arrived  about  half-paat  seven. 
He  had  sent  the  wagon  on  in  charge 
of  a  coloured  *'  boy."  named  John 
Julius.  Witness  waited  for  about  15 
or  20  minutes  and  looked  down  Plein- 
street,  but  did  not  see  the  wagon.  On 
looking  up  the  street  he  saw  the  **  boy  " 
standing  at  the  comer  of  Claridge's 
Hotel  with  the  wagon.  He  whistled  to 
him,  but  could  not  attract  the  *'  boy's " 
attention.  Witness  we:rt  up  the  street 
to  cross  the  road  towards  the  wagon.  He 
saw  a  large  mound  or  heap  of  earth 
round  the  curve  of  the  tram-Hnes,  which 
he  would  have  to  pass  to  reach  the 
wagon.  The  mound  was  outride  the 
lines  on  the  Stal  Plein  side  between 
witness  and  the  wagon.  As  he  walked 
he  saw  the  **  boy  "  commence  to  drive 
straight  ahead,  as  though  he  were  about 
to  pass  Madeira  House.  He  thought  the 
"  boy "  was  going  to  turn  into  Plein- 
street,  and  in  order  to  meet  him  wit- 
ness turned,  but  fell  into  the  exoava- 
tooD.  Witness  first  struok  hoe  ohin,  then 


J 


"CAPB  TIMES*'  LAW  BEPORTS. 


815 


his  arm  sTruck,  and  he  dropped  to  the 
bottom  of  the  hole  with  his  left  leg 
underneath.  A  coloured  man  named 
Gabriel  and  a  white  man  came  to  his 
help  and  drew  him  out  of  the  hole. 
There  was  nothing  to  indicate  to  him 
that  the  mound  of  earth  was  not  solid. 
There  was  no  protection  or  barrier  of 
any  sort.  He  saw  one  light  on  the  cor- 
ner of  the  heap,  but  it  did  not  show 
on  the  excavation.  He  saw  no  watch- 
liian  at  the  spot,  and  he  received  no 
kind  of  warning.  Witness  claimed  £2.000 
damages.  His  out-of-pocket  expenses 
included  a  bill  of  £73  10s.  6d.  from  his 
medical  attendants,  about  11  guineas  for 
massage,  about  £3  for  medicine,  and  15 
guineas  hospital  expenses.  Prior  to  the 
accident  his  business  was  showing  a  pro- 
fit of  about  £100  a  month,  llis  busi- 
ness principally  consisted  in  travelling, 
his  shop  being  used  more  as  a  depot 
than  a  money-making  concern.  His 
business  could  not  be  conducted  by  any 
deputy  during  his  illness.  Witness  had 
formerly  been  manager  of  Mr.  Amos 
Bailey's  drapery  branch  at  Woodstock. 
During  the  time  he  was  laid  up  he  could 
do  no  business;  he  claimed  for  three 
months*  loss  of  trade.  He  had  done  a 
little  business  since  June  last.  He  had 
a  promise  of  a  lease  of  the  Ploin-strcct 
shop  for  three  years,  but  it  was  not 
signed.  His  goods  wore  taken  to  his 
home  at  Rondebosch.  Ho  was  even  yet 
constantly  in  pain,  on  account  of  the 
injury.  He  could  not  move  without  the 
aid  of  a  stick  except  on  the  level. 

Cross-examined :  Witness  had  had  a 
sample-room  at  Slation-road,  Oboerva- 
tory  about  four  months  prior  to  the 
accident.  He  received  a  salary  of  £16 
a  month  and  commission  while  in  Mr. 
Bailey's  employ.  He  was  emploj'ed  at 
Mr.  Pearce  s  at  Claremont  from  1899 
to  1901  at  a  salary  of  £20  a  month,  and 
was  dismissed  without  notice.  He  then 
went  to  the  Transvaal  and  had  a  posi- 
tion in  the  mines  at  £22  a  month.  He 
had  lately  been  engaged  in  travolling 
Cape  Town  and  suburbs. 

Mr.  Schreiner:  Where  was  the  profit 
of  £100  a  month  nicked  up  this  year  in 
travelling  about  Capo  Town  and  sub- 
urbs?— \Vitnoss:  From  the  sale  of  my 
goods. 

Whom  were  you  selling  to? — Private 
people. 

What  were  your  big  lines? — There 
were  no  big  lines;  the  accounts  were, 
sar,   from  £2  downwards  and   upwards. 

Were  you  doing  business  in  what  I 
may  call   a   "classy"  line?— Yes. 

Ladies'  good.s? — Yes. 

Give  me  the  largest  account  that  any 
one  lady  in  the  suburbs  bad  between 
July  and  March?  I  think  the  lar.f;e>t  I 
had  wa.1  £15. 

Was  it  at  WyTiberg,  or  where  was  it? 
— At  Observatory. 

Cross-examination  continued :  His 
best  business  was  in  Mowbray.  He  was 
not    surprised    at    the    amount    of   the 


doctor's  bill,  and  in  fact  bad  expected 
it  to  go  to  £100.  Witness  had  not 
seen  the  works  that  had  been  going  on 
in  Plein-s'treet  until  the  16th  March, 
having  returned  from  Caledon  on  the 
15th.  He  was  in  Plein-street  on  the 
morning  of  the  16th,  but  he  did  not 
notice  any  barriers  about  the  exoava* 
tions.  When  he  went  up  to  his  shop, 
he  saw  there  was  work  going  on  in  the 
street. 

Mr.  Schroiuer :  Did  you  see  the 
tram? 

Witness :    Which  tram? 

Mr.  Schreiner:  Behind  which  you 
hurried   to   get  across   the  road. 

W^itnesa :    I  never  saw  a  tram. 

Mr.  Schreiner:  The  tram  for  which 
the  barrier  was  opened  to  let  the  car 
pass. 

W^itncss:    I  absolutely  deny  that. 

Cross-examination  continuea:  He  only 
saw  one  lamp  near  the  mound.  Thero 
was  not  a  barrier  carrying  other  lamps. 
It  was  absolutely  untrue  that  he  rushed 
out  from  the  kerb  as  if  he  intended  to 
catch  the  car. 

By  the  Court:  Kven  after  he  got 
out  of  the  hole,  he  never  noticed  bar- 
riers or  lamps. 

Re-examined :  He  certainly  did  not 
run  after  any  tram. 

James  Parker.  Mayor  of  Mowbray, 
spoke  to  making  an  inspection  the 
day  following  the  accident  of  the  ex- 
cavation. The  protection  was  very 
small,  consisting  as  it  did,  so  far  as  ho 
could  see,  of  only  a  rope  about  18  inches 
high.  He  would  consider  it  dangerous 
even  at  that  time. 

John  Gabriel,  an  eye-witness  of  the 
accident,  said  there  was  no  tram  there 
at  the  time.  There  were  no  planks, 
but  he  saw  two  lights,  one  on  a  heap 
of  dirt  on  Claridge's  Hotel  side,  about 
a  foot  and  a  half  from  the  hole,  and 
the  other  at  the  bottom  half,  a  foot 
from  the  hole.  There  were  no  other 
lights,  oxwpt  further  down  the  street. 

Ana«tasia  Candiotes,  a  Greek  fruiterer, 
carrying  on  business  in  Plein-street,  said 
that  on  the  night  in  question  plaintiff 
called  at  his  shop  between  6.30  and  7 
for  a  candle.  He  did  not  see  the 
accident,  but  after  it  had  occurred, 
plaiintiff  again  came  to  his  shop.  Wit' 
ness  went  to  the  hole  about  ten  minutes 
later,  and  saw  an  Indian  boy  carrying 
a  lamp.  He  saw  a  rope  being  put  at 
the  front  of  the  hole  by  an  Indian. 
There  were  iron  x>osts  in  the  ground, 
to  which  the  rope  was  beinp  fixed.  Ho 
also  noticed  two  or  three  lights. 

By  the  Court :  The  custom  of  the 
Indian  boy  was  to  take  the  rope  off  the 
posts  until  a  car  passed,  and  then  fix 
it  on  again.  ^ 

Cross-examined  :  Witness  saw  a  tram 
pass  up  Plelin-street  a  little  while  after 
the  acoident.  He  stayed  about  for 
some  time,  but  did  not  see  a  tram  go 
down  the  street.  He  only  saw  two  or 
three  lamps  over  the  whole  length  of 
the  excavation. 


dl8 


"CAPE  TIMBS"  LAW  ltEP0itt6. 


ness  wms  atanding  by  the  hole,  his  duty 
being  to  remoTe  a  plank  when  the  car 
oame  and  replace  it  when  the  car  had 
gone  by.  The  pLank  leated  on  tins  filled 
with  earth.  Witne«  had  only  to  remove 
one  plank.  He  did  not  see  the  plaint  iff 
until  he  was  dose  to  him.  Witoiess  had 
removed  the  plank  to  let  a  tram  pMS 
from  the  Roeiand-street  end.  Immedi- 
ately the  tram  had  passed,  plaintiff  came 
along  and  fell  into  the  hole.  Plaintiff,  who 
was  walking  quicklv,  entered  at  the 
place  where  witness  had  removed  the 
barricade.  Witne«  was  at  the  time 
holding  the  plank  and  the  lamp,  amd  he 
shouted  •'  Hi !  "  to  the  plaintiff.  Witness 
oould  not  stop  him.  Plaintiff  was  close 
behind  the  car.  There  were  about  ten 
or  eleven  lamps  round  the  hole  when 
the  accident  happened.  Witness  waa 
carrying  a  lamp,  which   was  alight. 

Cross-examined :  Witness  did  ^  not  see 
a  wagon  standing  near  Claridge*s  Hotel. 
He  did  not  see  anybody  start  to  walk 
across  the  street  from  the  butcher  a  shop 
side  The  plank  which  witness  removed 
to  let  the  tram  pass  was  about  two  or 
three  paces  from  the  hole.  Witness  did 
not  know  from  which  side  of  the  street 
the  plaintiff  got  to  the  hole.  The  hole 
was  well  lighted,  and  the  man  ought  to 

have  Been  it.  ^_     ,  .   .»  i 

[Hopley,  J. :  If  plaint.ff  waa  close 
behind  the  car,  he  would  not  see  the 
hole  before  he  fell  into  it?] 

Witness:  There  were  lights  on  both 
sides  of  the  excavation. 

Further  cross-examined:  No  ropes 
were  placed  round  the  hole  on  the  night 
in  question.  Ropes  were,  however,  fixed 
round  the  hole  on  the  following  day  in- 
stead of  planks.  ^    , 

Hallo,  another  Hiaidoo  (who  also  gave 
his  evidence  through  an  interpreter)  said 
that  he  was  employed  by  the  Council 
to  watch  the  lower  part  of  the  works 
in  Plein-street  There  were  eight  oc 
nine  lamps  about  the  upper  hole.  He 
saw  a  number  of  people  at  the  hole, 
and  he  shouted  to  Dwear.  Ho  saw  a 
man  being  removed  a  little  latw  from 
the  hole.  There  waa  a  tram  conamg 
down  the  street  towards  the  point  where 
witness  waa  standing. 

Mustaia  Hendricks,  a  Malay  cahnian, 
said  that  he  usually  stood  at  the  Plein- 
street  cab-rank.  On  the  night  in  ques- 
tion he  had  the  first  cab  on  the  rank. 
He  aaw  a  man  fall  into  the  hole.  Plain- 
tiff was  close  behind  the  tram. 

[Hopley,  J. :  You  would  not  see  the 
hole  because  of  the  tram?] 

Witness:  I  can't  say  as  to  that  In 
further  evidence,  witness  said  that  he 
saw  Dwear  removing  a  9  by  3  ft.  piooo 
of  deal,  so  aa  to  let  the  car  pas.s.  Dwoar 
waa  stvinding  at  his  poet  all  the  time. 

Cross-examined:  Witness  made  a 
statement  to  the  police  in  St.  John-street 
in  his  Malay  name.  His  European  name 
waa  Mustaia  Hendricks.  He  had  never 
said  that  a  car  passed  from  the  Palmer- 
ston  Hotel  side.  Witness  did  not  see  plain- 


tiff run  across  the  street.  The  In<haD 
was  waiting  to  replace  the  plank  when 
the  plaintiff  fell  into  the  hole.  Witne» 
did  not  think  that  the  plaintiff  waa  more 
than     a  foot  behind  the  tramoar. 

Christian  Paulson,  ako  a  cabman,  said 
that  he  waa  by  the  Stal  Plein  stand 
when  the  accident  happened.  He  had 
a  view  of  the  spot.  He  saw  the  plain- 
tiff hurrying  to  the  Greek  shop.  Plain- 
tiff came  out  and  stood  a  little  while, 
and  then  walked  towards  the  comer  of 
Roeiand-street.  A  little  later  he  beard 
a  tram  coming  from  Roeiand-street,  and 
he  saw  a  man,  who  was  carrying  a 
light,  take  a  plank  away.  The  car 
paesed,  and  he  saw  the  plaintiff  moYO 
from  the  comer  and  walk  rapidly  to- 
wards the  car.  The  man  fell  into  the 
hole.  Witness's  attention  was  called  to 
plaintiff  because  he  thought  he  waa  go- 
ing to  take  a  cab. 

Cross-examined:  Witness  thought  the 
man  was  trying  to  catch  the  car.  Ho 
did  not  aee  plaintiff  move  from  the 
verandah  at  the  street  corner.  He  aaw 
lights  about  the  hole. 

Albert  Sidney,  manager  of  the  Pal- 
me rston  Hotel,  said  that  he  remem- 
bered seeing  the  excavations  in  Plein- 
street  in  March  last.  The  excavations 
were  well  lighted  and  barricaded  at 
night.  He  was  not  speaking  of  any 
piuticular  night,  but  from  general  ob- 
servations. 

Mr.  i^avis,  confectioner,  Plein-street, 
eaid  that  in  March  last  be  aaw  the 
works  carried  on  by  the  Corporation 
in  the  street.  The  works  seemed  to  be 
properly  lighted  and  barricaded  at 
night. 

Gustave  Hanson,  draughtsman  in  the 
Waterworks  Department,  gave  evidence 
ae  to  the  preparation  of  the  plan  put 
in  by  the   defendants. 

Mr.  Schreiner  dosed  hia  case. 

Mr.  Burton  said  that  counsel  were 
a^eed  that  the  question  to  be  deter- 
mined was  one  of  fact,  that  the  jury, 
aa  men  of  biuineaa  and  oommon-senae, 
could  well  decide.  As  far  as  one  could 
see,  there  was  no  particular  legal  poini 
arising.  The  matter  resolved  itself  intc> 
this,  whether  they  were  going  to  be- 
lieve the  version  of  the  occurrence 
given  by  the  plaintiff  and  his  witnesses, 
or  the  version  given  by  defendants' 
witnea&eis.  Either  the  plaintiff  was  en- 
tireiy  responsibcle  by  his  neglect  or 
carelessness  for  the  accident,  or  the 
Council  was  reeponsible,  through  the 
negligence  of  its  servants.  Either  the 
plaintiff  was  entitled  to  nothing  at  all, 
or  he  was  entitled  to  damages  in  a 
riirhetantial  amount.  It  was  clear  that 
the  plaintiff  did  not  see  the  liolo  before 
he  fell  into  it.  Was  it  not  the  duty 
of  the  defendants  to  make  .such  pro- 
tection that^  no  member  of  the  piiblic 
could  walk  Into  the  excavation?  Coun- 
sel at  aome  length  analysed  the  evi- 
dence. 

Mr.  Schreiner  argued  that  hla  learned 
friend  had  put  the  caee  before  the  jury 


"OAl^B  TtBitt"  LAW  tXPOiLTi. 


8ld 


on  such  propositions  as  ho  would  not 
have  ventured  to  address  to  a  Judge. 
His  learned  friend  had  put  the  case  in 
euch  a  fway  ad  to  imply  that  the  onus 
lay  upon  the  (Council  to  prove  that 
they  -were  not  negligent.  The  Council, 
in  pursuance  of  its  duty  had  made 
holes  that  were  re<|uirod  for  the  im- 
provement of  the  city.  The  burden  of 
proof  rested  upon  the  plaintiff  to  show 
affirmatively  that  there  was  negligence 
on  the  part  of  the  Council  in  discharg- 
ing this  duty.  If  the  view  put  before 
the  jury  by  his  learned  friend  were 
true,  then  the  oflBcials  of  the  Corpora- 
tion bad  conspired  to  defeat  the  ends 
of  justice,  and  instead  of  having  been 
in  the  witne8s4>ox,  they  should  have 
been  in  the  dock.  The  Council  was 
standing  in  this  matter  on  a  point  of 
princijple.  Counsel  went  on  to  sub- 
mit that  from  the  evidence. the  conduct 
of  the  plaintiff  was  consistent  with  that 
of  a  man  who  wanted  to  board  the 
tram.  He  must  have  seen,  and  did 
see,  the  numerous  lights  and  the  hsr- 
riers.  In  his  desire  to  reach  the  other 
aide  of  the  street,  he  disregarded  the 
hint  conveyed  to  him  by  the  barriers 
and  lights.  Mr.  Schreiner  proceeded  to 
argue  that  plaintiff  entered  upon  what 
he  mu6t  have  known  to  be  a  danger 
areai,  and  he  did  not  exercise  due  caro 
and  precaution,  and  liability  for  what 
happened  was  not,  therefore,  upon  the 
Council's  shoulders. 

Mr.  Burton,  in  reply,  repudiated  the 
suggestion  th»t  he  had  a^ked  the  jury 
to  believe  that  the  officiaU  of  the  Ck)r* 
poration  had  put  befoie  thorn  a  forced 
plan  and  a  false  scheme  of  protection, 
what  he  (Mr.  Burton^  did  say  was  that 
the  Corporation  officials  had  ^iven  them 
a  scheme  of  protection  which  should 
have  been  there  if  everything  had  been 
properly  done.  It  did  look  as  if  that 
night  tne  servants  of  the  Corporation 
began  to  lock  the  stable-door  after  the 
horse  had  gone. 

Hopley,  J.,  in  summing  up,  direct- 
ed the  jurr  to  dismiss  from  their  minds 
any  consioerations  they  might  have  in 
regard  to  the  relative  positions  of  the 
parties,  and  to  give  their  attention 
solely  to  what  occurred  when  the  acci- 
dent happened.  At  the  same  time,  it 
must  be  oorne  in  mind  that  these  works 
had  been  going  on  for  some  time,  hav- 
ing been  commenced  in  Adderley-street 
and  reached  the  top  of  Plein -street.  The 
plaintiff  was,  on  his  showing,  an  ener- 
getic man,  and  it  was  quite  natural 
to  expect,  when  he  saw  the  wagon  carry- 
ing his  goods  turning  in  what  he  be- 
lieved to  bo  a  wrong  direction,  that 
he  would  ^o  across  the  street,  and 
quite  conceivably  without  noticing  the 
obstructions  in  the  street.  H'uk  lordship 
reviewed  at  some  length  the  evi- 
dence in  regard  to  the  state  of  things 
in  the  neighbourhood  of  the  excavation 
where  the  plaintiff  met  with  his  acci- 
dent,   and   in    his   concluding    remarks 


inclined  strongly  to  the  theory  that  a 
tramcar  passed  just  before  the  plaintiff 
tried  to  cross  the  street,  and  that  a 
shadow  would  be  thrown  on  the  hole. 

The  foreman  asked  his  lordship  whe- 
ther it  was  necessary  that  the  jury's 
verdict   should    be  unanimous? 

Hopley,  J.,  replied  that  the  ver- 
dict must  be  unanimous,  unless  the  jury 
had  deli'berated  for  an  hour,  and  in 
that  case  there  must  be  a  majority  of 
six. 

The  jury  having  retired,  and  having 
subsequently  returned  into  court. 

The  foreman  intimated  thai  they  had 
agreed  upon  a  verdict  for  the  defen- 
dants. He  added  that  thev  wished  to 
express  their  sympathy  with  the  plain- 
tiff in  what  was  to  them  a  regrettable 
accident. 

[Hoplev,  J. :  I  am  sure  we  all  feel 
myselt  that  tne  verdict  is  quite  cor- 
sympathy  wvth  the  plaintiff.  I  think 
rect.] 

Mr.  6chreiner  then  moved  for  judg- 
ment for  the  defendants,   with  costs. 

fPlaiiitiff's  Attorneys :    Friedlander  and 
Du  Toit;  ;  Defendant's  Attorneys:  Fair 
bridge,  Arderne  and  Lawton.] 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


PROVISIONAL   ROLL. 


B068ELIBR  V.  PIPUAN 


f        1905. 
■      J  Oct.    19th. 

Mr.  D.  Buchanan  moved  for  provi- 
sional sentence  on  a  mortgage  bond  for 
£2,000,  with  interest  from  April  1,  at 
6  per  cent. ;  also  for  £14  2s.  od.  for  in- 
surance, etc.,  and  for  the  property  spe- 
cially hypothecated  to  be  declared 
executablis. 

Ordor  granted. 


ALLIE  V.  DULLA. 

Mr.    Benjamin    moved    for    the    final 
adjudication  of  the  defendant's  estate. 
Order  granted. 


820 


"CAPB  TJt&tBS'*  LAW  REPOlltS. 


WARBEK  V.  WATSOX. 

Mr.  Payne  moved  for  the  final  adju- 
dication of  the  defendant's  estate. 
Order  granted. 


PAABL     BOABD    OF    EXBCUTOBS     V. 
MTBURGH. 

Mr.  Roux  moved  for  the  final  adju- 
dication of  the  defendant  estate.  Pro- 
visional order  had  been  granted  on  the 
26th  September.  1905. 

Order  granted. 


WIIJBON  V.  OLYNX. 

Mr.  Benjamin  moved  for  the  final 
adjudication  of  the  defendant's  estate. 
The  provisional  order  was  granted  on 
October  2 

The  defendant  api)eared  and  ^aid 
judgment  had  been  given  Utr  £50, 
-whereas  the  amount  wba  only  £45.  Pie 
had  tendered  propertv  valued  at  £100. 
but  it  was  not  accepted.  A  friend  of  his 
had  guaranteed  to  pay  the  amount. 
Some  of  the  other  creditors  did 
not  wish  to  have  the  estate  com- 
pulsorily  sequestrated.  The  defen- 
dant proceeded  to  explain  that 
lie  had  no  knowledgp  of  the  debt 
until  it  was  due,  as  it  was  contracted 
by  the  person  to  whom  he  had  given 
his  power  of  attorney.  Defendant  had 
tendered  £5  a  month,  but  it  was  iK)t 
accepted.  If  he  was  allowed  a 
month's  lime,  he  believed  he  would  be 
able  to  pay  the  debt,  as  he  was  expect- 
ing an   mncritance. 

Mr.  Benjamin  aaid  the  defendant  had 
been  asked  to  allow  the  plaintiff  to 
draw  on  the  inheritance,  but  he  refused. 

The  defendant  said  he  had  assigned 
the  inheritance,  but  a  friend  of  his  waa 
willing  to  satisfy  the  plaintiff's  claim. 

fBuchanan,  A.C.J. :  Why  hae  he  not 
done    so?] 

Witness :   He  was  busy. 

rBuchanan.  A.C.J. :  Can  you  settle  it 
this    morning?] 

Witness:    I  will  try  to  do  so. 

The  case  was  postponed  until  2.  p.m. 

Subsequently  Mr.  Benjamin  asked  to 
have  the  application  postponed  as  he 
believed  an  arrangement  would  be  come 
to. 

This  was  allowed. 


ZnCKERMAN  V.  BEBNHABDT  AND  SARIF. 

Mr.  P.  S.  T.  Jones  moved  for  provi- 
sional sentence  on  three  promissory 
notes  endorsed  by  plaintiff,  and  paid 
by  him  as  surety  tor  the  defendants. 

Order  granted. 


DALA  y.  HA88IEN. 

Mr.  Douglas  Buchanan  moved  for  a 
decree  of  civil  imprisonment  against  de- 
fendant, because  of  his  failure  to  pay 
£12  2d.,  costs  incurred  in  an  action  in 
the   Court. 

Mr.  Buchanan  explained  that  this  oase 
arose  out  of  an  action  in  the  Magis- 
trate's Court.  Judgment  was  entered 
for  the  defendant  instead  of  the  plain- 
tiff, when  the  error  was  discovered 
the  mistake  waa  rectified,  and  the 
amount  of  £12  2s.  was  incurred  in 
moving  the  Courts. 

The  defendant  admitted  owing  the 
money,  but  said  he  was  unable  to  pay 
the  amount  due.  He  was  only  earnmg 
30s.  a  month. 

In  reply  to  Mr.  Buchanan,  the  defen- 
dant aamitted  that  he  had  a  shop  at 
the  Paarl,  when  the  debt  was  contract- 
ed, but  he  had  since  disposed  of  it. 
He  had   no  money. 

By  the  Court:  He  could  pay  lOs.  a 
month. 

The  Court  granted  a  decree,  but  or- 
dered it  to  be  suspended  upon  payment 
of  £1  a  month. 


LAUBENCE  V.  BABQENT  AND  CO. 

Mr.  Bailey  moved  for  the  final  adju- 
dication of  the  defendant's  estate.  A 
consent  paper  was  put  in. 

Order  granted  in  terms  of  consent 
paper. 


MOBKBL   V.  DEYDIBR. 

Mr.  Bailey  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for 
£700.  less  £100  paid  on  ac- 
count, with  interest  at  6  per  cent.,  and 
for  the  property  specially  hypothecated 
to  be   declared   executable. 

Order  granted. 


ILLIQUID  ROLL. 


COLONIAL  OOVBBNMBNT  V, 
LAZBNBT. 


f        1«B. 
I  Oct.     l<)th. 


Mr.  Nightingale  moved  for  judgment 
under   Rule   329  (d)    for   £142   17a    6d. 

auitrent  and  stamp  duty  due  by  dcfen- 
ant. 
Order  granted 


COLONIAL  GOVEBNUENT  V.  CONBAOE. 

Mr.  Nightingale  moved  for  judgment 
under  rule  329  (d).  He  drew  the  atten- 
tion of  the  Court  to  the  fact  that  short 
service  had  been  effected.  It  was  be- 
lieved that  service  could  have  been  per- 
sonally effected,  but  six  days  after  the 
time   for   service  had    expired,    it   was 


"CAPB  TIMES"  LAW  REPORTS. 


821 


•fouod  ihat  this  was  imposaible,  oonae- 
quently  the  advertisement  was  iusert- 
ed  in  the  "  GoTerumeirt  Gazette." 

Buchanan,    A.C.J.,    extended    the    re- 
turn day  to  December  12. 


CYRIAGUS  V.  CYRIA0U8. 

Mr.  Bisset  moved  for  a  decree  of  ju- 
dicial separation  between  the  parties  in 
terms  of  a  notarial  consent  paper  put 
in. 

Order  granted  in  terms  of  consent 
paper. 


HBBBERT  V.  HERBERT. 

Mr.  Close  moved  for  judicial  separa- 
tion in  terms  of  consent  paper  put  in. 
Order  granted. 


CALMEYER  Y.  DAMERELL 

Mr.  Bttset  said  that  although  this 
case  wae  entered  on  the  list  un- 
der the  names  <rf  Calmeyer  v.  Dam- 
erell,  it  was  really  to  ooinipel 
the  attorney  of  the  defendant  to 
pay  certain  costs.  Calmeyer  originally 
took  certain  proceedings  against  Dam- 
erell  to  recover  ^he  price  of  certain 
property  at  Rosebank.  In  consequence 
of  a  conversation  with  a  Mr.  Lloyd,  a 
clerk  in  the  office  of  Mr.  Waton,  Dam- 
erell's  solicitor  Calmeyer  decided  to 
allow  the  case  to  fall  through,  and 
shortly  afterwards  Damcrell  applied  to 
the  Cqurt  to  havo  judgment  signed 
against  Calmeyer  for  not  pjroce^ing 
with  his  action.  In  the  meantime  Dam- 
erell  left  Cape  Town,  and  Calmeyer 
wrote  to  him,  asking  him  why  he  had 
moved  to  have  judgment  signed;  he 
replied  by  telegram  as  follows :  "  No 
inartructions  whatever  given.  Coulton 
cannot  proceed.'*  Calmeyer*s  attorney 
immediately  served  Coulton  with  notice 
that  they  were  going  to  apply  for  a 
rule  nisi,  to  show  cause  why  he  should 
not  pay  the  coats. 

The  Court  granted  an  order  calling 
on  Coulton  on  next  motion  day  to  show 
cause  why  he  should  not  pay  the 
costs. 


IIIOADI  V.  TEMBA. 

Mr.  Searle,  K.C.,  moved  under  Rule 
190  io  have  the  judgment  of  the  Assis- 
tant Resident  Magistrate  of  Idutywa 
reviewed.  He  explained  that  in  the 
Court  below  the  plaintiff  claimed  de- 
fendant, his  wife,  or  the  dowry  of  8 
head  ol^  cattle.  Plaintiff  married  defen- 
dant's sister  20  years  ago,  and  paid  six 
head  of  cattle  for  her.  She  deserted 
him  and  returned  to  live  with  defen- 
dant. Defendant  demanded  more  dowry 
for  her,  and  plaintiff  paid  two     more 


cattle.  She  would  not  return,  and 
plaintiff  claimed  her  or  the  return  of  his 
eight  cattle.  The  Assistant  Magistrate 
on  the  authority  of  the  Chief  Magis- 
trate heard  and  dismissed  the  summons. 

[Buchanan,  A.C.J. :  Isn't  this  an  ap- 
peal?] 

Mr.  Searle :  No.  It  is  a  review  based 
on  the  ground  that  there  was  no  juris- 
diction for  the  Magistrate  to  try  the 
case.  Under  the  Act  of  1894  there  can 
be  no  appeal  from  the  decision  of  the 
Chief  Magistrate  in  native  cases.  It 
appeared  from  the  evidence  given  in  the 
Court  below  that  the  Magistrate  had  no 
jurisoiction  in  the  case  as  the  defendant 
was  a  constable  engaged  at  Sterkstroom, 
and  resided  there.  He  had  a  kraal  at 
Idutywa,  which  he  onljr  visited  occa- 
sionally. Ho  had  resided  at  Sterk- 
stroom for  20  vears,  and  therefore  the 
Magistrate    had   no    jurisdiction. 

Counsel  contended  that  even  if  the 
man  had  a  wife  in  another  district,  and 
visited  her  occasionally,  he  could  not  be 
held  to  be  domiciled  there,  whiLert  he 
could  be  held  to  reside  there. 

Buchanan,  A.C.J. ,  saiid  it  was  a  pity 
that  counsel  was  not  appearing  on  the 
other  side,  as  rather  an  important  point 
was   raised. 

Buchanan,  A.C.J.,  eaid  this  mat- 
ter had  been  brought  by  wa^ 
of  review  before  the  Court,  as  if 
it  was  an  appeal  it  could  not  be  heard. 
Under   the   present   state  of   affairs  dis; 

{3utes  between  natives  in  the  Transkei 
lad  to  be  settled  by  the  Magistrate, 
and  the  only  appeal  was  to  the  Native 
Court  in  the  Transkei.  This  was  a 
review  on  the  grounds  that  the  Native 
Court  had  exercised  rights  to  which  it 
was  not  entitled.  The  plaintiff  sued 
the  defendant  in  the  Court  of  Idutywa. 
The  defendant  at  that  time  was  em- 
ployed as  a  constable  at  Sterkstroom, 
where  he  lived  with  one  wife,  but  he 
had  a  kraal  at  Idutywa,  where  another 
wife  lived.  In  tha.t  kraal  he  paid  hut 
tax.  The  Native  Court  held  that  the 
defendant's  residence  was  in  the  Idutywa 
district,  whilst  the  Magistrate's  Court 
was  against  that.  There  was  a  con- 
flict between  the  two  Courts  as  to  a 
question  of  fact.  If  that  question 
oould  have  been  settled,  the  Supreme 
Court  would  not  have  had  to  inter- 
fere. His  Lordship  quite  saw  that  it 
was  possible  for  a  penson  to  reside  in 
more  than  one  district.  He  might 
have  a  residence  in  two  districts,  and 
between  them  he  could  spend  his  time; 
but  if  he  was  to  be  summoned  in  one 
or  the  other  district,  he  must  be  re- 
siding in  that  district  for  +he  time  be- 
ing. It  was  true  that,  according  to 
th«*  English  law,  that  where  a  person's 
wife  lived,  was  considered  his  home. 
The  chief  wife  of  the  defendant  was 
living  in  Idutywa.  but  this  wife  did  not 
stand  in  the  same  position  in  native 
law  as  a  wife  did  m  the  English  law. 
He  thought,   \inder  the     whoJo   of  the 


822 


u 


CAPS  TIMBB*'  LAW  BEl>0RT8. 


circuDMiancefl,  tb«i  the  Magifltrat^  at 
Idutywa  had  iio  jurisdiction  in  trying 
the  case,  and  the  order  of  the  Native 
Appeal  Court  directing  the  Magistrate 
to  try  the  case  ^ould  have  to  be  eet 
aside. 


Jb>    2^rU     THE     DUTCH     BKrOBMED 
CUUKCU  OF  HEIDELBKBU. 

Mr.  Close  moved,  on  behalf  of  the 
churchwardens  of  the  Dutch  Reformed 
Church,  for  leave  to  sell  certain  pro- 
perty,  This  -waa  the  return  day  for  a 
rule  mti  granted  by  the  Court  on  the 
lat  August  last,  calling  upon  all  per- 
sons to  show  cause  why  an  order  should 
not  be  granted  allowing  the  petitioners 
to  sell  certain  four  lota  of  land,  known 
aa  Church-S(iuare. 

Mr.  Benjamin  oppoeed  the  applica- 
tion. 

Mr.  Close  explained  that  when  the 
town  was  laid  out,  a  Mr.  Fourie,  the 
owner  of  a  certain  farm  on  which  the 
town  was  built,  agreed  to  give  the  farm 
if  he  was  guaranteed  £5,000  for  it.  This 
was  done,  and  he  proceeded  to  lay  out 
the  village,  and  on  the  pUn  which  he 
laid  out,  the  lots  in  question  were  in- 
dicated as  Church-sauare.  The  church- 
wardens now  wished  to  sell  the  lots  to 
pay  off  certain  church  debts. 

Mr.  Benjamin  contended  that  the 
Court  had  not  the  power  to  authorise 
the  disposal  of  a  propertv  which  was 
donated  to  an  ecclesiastioal  body.  The 
only  way  to  accomplish  that  would  be 
by  Act  of  Parliament. 

Buohatnan,  A.C.J.,  held  that  the 
reservation    of    the  square    for  church 

Eur  poses     induced       persons     to     pay 
iorher      prices      for      it      than      they 
otherwise       would.        He       was  of 

opinion  that  the  church  should  not 
transfer  the  property  in  question  for 
the  purpose  of  making  it  mto  a  town 
erven  for  the  village.  To  do  so  would 
be  contrary  to  the  terms  of  the  agree- 
ment. Considering  the  inducements 
that  were  offered  to  the  purchasers  when 
the  place  was  sold,  he  thought  the  ap- 
plication should  be  discharged,  and  the 
costs  of  the  opposition  paid  by  appli- 
cant. 


JSx  parte  luck. 

Mr.  De  Waal  moved  for  an  order 
authorising  the  Master  to  pay  over  a 
certain  inoeritance.  The  Master  re- 
ported favourably. 

Order  granted. 


i^  parte  THE  ESTATE  PIENAAB. 

Mr.  Struben  moved  for  the  appoint- 
ment of  a  commissioner  in  the  insolvent 
^tate  of   ^aoob   Johannes  Pionaar,    to 


taJce  the  evidence  of  the      insolvent's 
wife. 

Granted       The  Magistrate  of  the  dis- 
trict was   appointed   as  coinmis?ioner. 


£x  parte  VEBSFELD. 

Mr.  Benjamin  moved  for  the  cancel- 
lation of  toe  sale  of  a  certain  property 
to  one  Arnold  Woolf,  who  bad  pur- 
chased  it,  but   had  not  taken   transfer. 

[Buohanan,  A.C.  J. :  Is  there  any  pre- 
cedent for  such  a  motion?] 

Mr.  Benjamin  replied  in  the  affirma^ 
tive,  stating  th«t  a  rule  mst  had  been 
granted. 

A  rule  niti  calling  on  respondent  to 
show  cause  why  the  sale  should  not  be 
oaucelled  was  ^ranted.  The  return  day 
was  fix^d  for  November  16. 

Pottfa  (November  16th).  Rule  made 
absolute. 


rOOCH  V.  COOPER. 

Mr.  Benjamin  moved  to  have  a  cer- 
tain  dividend  declared  executable. 
Order  granted. 


E»  parte  roVBiE. 

Mr.  Benjamin  mored  to  stay  a  cer- 
tain writ  of  execution  for  fourteen 
days,  as  the  petitioner  intended  to  se- 
questrate his  estate. 

Buohanan,  A.C.J. ,  said  he  did  not 
think  an  order  was  necessary,  aa  tiie 
proceeds  would  remain  in  the  hands  iA 
the  Sheriff. 


JSx  parte  WIUOET. 

Mr.  Benjamin  moved  for  the  exten- 
sion of  the  return  dav  of  citation  in 
thid  case  to  January  16. 

The  application    was  granted. 


Ex  parte  EBABMUS. 

Mr.  De  Waal  moved  for  leave  to  re- 
gister the  gross  of  an  ante-nuptial  oon- 
traot  drawn  up  in  the  Transvaal.  The 
Registrar  refused  to  do  so  until  the 
original  contract  was  produced.  Tiiis 
the  petitioner  found  it  impossible  to  do. 

Granted. 


Hx  parte  stonbstbebt. 

Mr.  Benjamin  moved  for  leave  to  sue 
Barnard  and  Moses  Herbert  by  edictal 
citation.  They  owed  the  petitioner 
£700,  and  when  last  heard  of  were  seen 
in  Cape  Town,  but  they  had  disap- 
peared. 

The  appdioation  waa  granted,  the  re- 
turn day   being  set  down  for  Peoeqi 
ber  12. 


"OAPB  TIMES"  LAW  BEP(»TS. 


823 


Ejs  parte  DIAMOND  AND  WIFE. 

Mr.  W.  P.  Buchanan  moved  for  leave 
to  register  an  ante-nuptial  contract. 
The  i>arties  believed  that  the  Married 
Woman's  Property  Act  was  in  force  in 
the  Colonies  ae  it  was  in  England. 

Buchanan,  A.C.J. ,  inquired  what  pro- 
perty the  narfeiea  had. 

Mr.  Buchanan:  She  haa  £1,000.  but 
I  do  not  know  what  he  has. 

The  case  was  ordered  to  stand  over. 


£x  parte  RAY. 

Mr.  Benjamin  moved,  on  behalf  of 
petitioner,  to  sue  his  wife  for  divorce 
by  edictal  citation.  The  parties  were 
married  and  lived  in  England.  Ha 
left  her  to  come  to  South  Africa,  and 
when  he  arrived  o£fered  to  send  for 
her.  She  refused  to  come,  but  went 
to  AufftraJia  instead. 

The  application  was  granted.  The 
return  day  was  fixed  for  February  14. 


Sx  parte  THE  equitable  fire  assu- 
rance AND  TRUST  00. 

Mr.  Searle,  who  moved  for  the  relin- 
quishment of  certain  trusts,,  said  the 
company  had  been  wound  up,  but  it  bad 
vtill  flix  trust  estatea,  whioh  it  wished  to 
relinquish.  The  petitioners  had  beeu 
authorised  to  take  the  necessary  steps 
to  wind  it  up.  They  wished  cer- 
tain of  the  estates  to  be  handled 
over  to  the  Colonial  Orphan  Chamber. 

In  the  estates  of  Hannon  and  Blore, 
the  Court  ordered  the  trust  to  be  to- 
linouished  when  the  accounts  were  filed 
with  and  approved  of  by  Ihe  Master. 
In  the  trusts  of  Ross  and  Hodgskin,  Mr. 
Currey  was  appointed  as  trustee  in 
lieu  of  the  petitioner. 


BMART!^5  SYNDICATE  V.  PHILLIPS  AND 

OTHERS. 

Mr.  Gardiner  moved  for  the  removal 
of  bar  and  the  appointment  of  a  com- 
mission  de  bene  esse  and   custe. 

Dr.  Grpeer,  who  ar^^^eared  for  the  re- 
spondents, said  they  did  not  oppose  the 
application,  but  they  refused  to  pay  the 
costs. 

The  case  was  ordered  to  stand  over. 


JSv  parte  edboss. 

Mr.  Roux  moved  for  leave  to  pass  a 
bond  on  certain  property  in  Hanover- 
i^treet,  which  was  originally  a  Mahom- 
medan  mosque,  and  was  now  falling 
into  ruin  unless  money  could  be  raised 
on  bond  to  repair  it, 

Gr»nted. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Acting  Chief  Justice,   the 
Hon.  Sir  John  Buchanan.] 


r  I 


HAMMOND  V.  D£  ZUID  AFBI- 

KAANSCHE      RIJTUIG      ENJ        1906. 
BOUW  MAATSCHAPPIJ,  BE-l  Oct.  20th. 
PEBKT.  ( 

This  waa  an  action  brought  by  Pieter 
Eduard  Hammond,  of  Worcester,  against 
De  Zuid  Afrikaanaohe  Rijting  en  Bouw 
Maatschappij  Beperkt  to  recover  dam- 
ages in  tuc  sum  of  £500  for  penonal 
injuries  to  his  child,  Pieter  Eduard 
Hammond,  jun.,  alleged  to  be  due  to 
the  negligence  of  the  defendants  or 
their  servants. 

From  the  pleadings^  it  appeared  that 
in  May  last  the  plamtiff  entered  into 
a  written  contract  of  lease  with  the 
defendants  to  hire  from  them  for  a  year 
a  certain  house  situate  in  Behring-street, 
in  the  town  of  Worcester.  A  little 
later  plaintiff,  who  had  nK>ved  into  the 
premises,  vacated  them,  and  on  the  4th 
July  the  Rev.  Mr.  De  Villiers  entered 
into  occupation.  Plaintdff  said  he  had 
sub-iet  tne  house  to  the  Rev.  Mr.  De 
Villiers.  Between  the  house  and  the 
adjacent  premises  was  a  passage,  which 
gave  access  to  the  back  part  of  the 
preinises  leased  by  plaintiff.  The  alle- 
gation in  the  declaration  waa  that  de- 
fendants had  stacked  a  number  of  planks 
on  this  passage,  and  that  on  Sunday, 
the  2nd  July,  plaintiff's  child  was  seri- 
ously injured  by  the  planks  falling  upon 
him,  breaking;  his  left  leg  and  inflicting 
*nju"«B  on  his  body.  By  the  wrongful, 
unlawful,  and  negligent  conduct  of  the 
defendants,  plaintiff  had,  he  said,  sus- 
tained damages  in  the  sum  of  £500. 
Defendants,  in  their  plea,  said  that 
when  the  alleged  accident  occurred,  the 
plaintiff  was  not  in  lawful  possession 
or  occupation  of  the  premises,  and 
denied  that  the  premises  had  been  sub- 
let by  plaintiff  to  the  Rev.  Mr.  De  Vil- 
liew.  Plaintiff  had  got  into  arrear  with 
his  rent,  and  had  been  ordered  to  quit 
the  premisQB.  Defendants  denied  that 
jn  stacking  the  planks  they  acted  un- 
lawfully, wrongfully,  and  negligently, 
and  said  that  due  precautions  were 
taken,  and  that  if  the  accident  did  hap- 
pen, as  alleged,  it  was  caused  by  the 
negligence  and  carelessness  of  the  plain- 
tiff in  permitting  the  child  to  enter  and 
trespass  upon  the  said  passage,  where 
the  plaintiff  and  his  children  had  no 
right  to  be,  and  to  play  upon  and 
about  the  said  nlanks.  The  children 
had  been  warned  about  playing  in  the 
oaasage.  Defendante  denied  any  liability 
for  the  mjurjee.  The  plaintiff,  in  his 
rephoation,  deI^ed  tfeat  the  accident  was 


824 


ti 


GAPS  TIMES'*  lAW  REPORTS. 


caused  by  his  ncijligeiire  and  carelca:^- 
ness,  and  said  that  he  was  in  lawful 
occupation  of  the  promises,  and  both 
he  and  hi^  children  had  a  right  to  go 
on  the  pa«aagc. 

Mr.  Van  Zyl  was  for  the  plaintiff; 
Mr.   Alexander  was  for  the  defendants. 

The  plaintiff,  Pieter  Eduard  Hana- 
mond,  said  that  about  May  last  he 
entered  into  a  contract  with  the  defen- 
dants for  the  hire  of  a  dwelling-house 
for  a  year,  rent  to  be  paid  monthly  in 
advance.  He  took  possession  of  the 
premises  on  the  15th  May,  and  paid  £9, 
the  first  month's  rent,  in  advance.  Dur- 
ing the  first  month  he  saw  Mr.  Fuch, 
a  director  of  the  defendant  company, 
and  told  him  that  the  house  was  not 
in  a  habitable  etate.  He  asked  him 
whether,  if  he  sub-let  the  house,  they 
would  cancel  the  oon tract.  He  took 
steps,  and  spoke  to  the  Hev.  Mr.  Dc 
Vifliers  and  the  churchwardens.  At  the 
beginning  of  the  second  month  he  did 
not  pay  the  rent.  Mr.  MuUer  (secre- 
tary of  the  company)  did  not  give  him 
n^ce  on  the  21st  June  to  quit  the 
house,  because  he  had  not  paid  the 
rent.  On  the  27th  June  Mr.  Muller 
.  asked  him  whether  he  could  vacate  the 
premises  if  the  minister  would  take  it. 
Witness  said  that  the  notice  was  very 
short.  He  met  the  Rev.  Mr.  De  Villiers 
the  following  day.  and  it  was  arranged 
that  witne38  should  remain  in  the  house 
until  the  3rd  June.  Mr.  De  Villiers 
removed  into  the  house  a  few  days  later. 
The  arrangement  was  that  if  the  Kerk- 
raad  hired  the  house,  he  would  pay  the 
rent  for  the  half-month  of  June.  Wit- 
ness liad  not  paid  the  rent  for  that 
month.  On  the  27th  June  a  case  filled 
with  iron  fell  on  one  of  wittnessV  children 
The  company's  house  was  next  door. 
The  company  often  put  boxes,  planks, 
etc.,  in  the  passage  between  the  nouses. 
On  the  30th  Juno  or  a  couple  of  days 
before  planks  were  stacked  in  the  pas- 
sage. Witness  made  constant  use  of 
this  passage  to  reach  his  yard.  The 
planks  were  stacked  to  a  height  of 
more  than  6  feet.  On  Sunday,  the  2nd 
July,  his  child's  leg  wa.«?  broken.  There 
was  a  north  wind  blowing,  and  rain 
was  falling.  There  was  nothing  to 
keep  the  planks  from  rolling  down. 
Witness  was  not  at  home  at  the  time 
of  the  accident.  The  child  could  now 
walk,  but  his  leg  was  crooked,  and  ho 
seemed  to  be  lame.  In  bad  weather 
he  complained  of  pain  from  the  injury. 
Witness  denied  that  he  had  lieen  cau- 
tioned about  his  children  playing  near 
the  planks.  On  the  day  after  the  acci- 
dent he  T^ent  and  asked  Mr.  Muller, 
the  secretary  of  the  company,  whether 
they  would  pay  him  compensation  for 
the  injury  to  the  child.  Mr.  Muller 
said  that  he  would  speak  to  the  direc- 
tors. 

Crosis-examined :  Witness  had  never 
offered  the  rent  for  the  half  month. 
He  would  have  been  able   to  pay  the 


rent  if  it  had  been  demanded.  Just 
before  then  he  had  given  notice  of  his 
intention  to  surrender.  Hd  was  aware 
that  he  could  not  sub-let  the  house 
without  tlio  consent  of  tbo  dofendauta. 
He  had  never  applied  for  their  consent 
to  the  sub-lotting  of  the  house.  He 
w«8  not  awave  thai  any  warning  waa 
given  to  his  children. 

fBuchanan,  A.C.J,  (to  Mr.  Alexan- 
der) :  He  -was  in  lawful  posseesion  of 
the  pro{)epty  under  his  lease.] 

Further  cross-examined :  Witness 
made  a  complaint  to  the  company  when 
the  case  fell  upon  his  child.  On  the 
2nd  July  wiitness  and  his  wife  were 
away  from  hime,  having  left  the  child- 
ren in  charge  of  two  older  girls. 

Elizabeth  Petronella  Hammond  (wife 
of  the  plaintiff)  gave  evidence  as  to  cer- 
tain interviews  with  Mr.  Muller,  repre* 
senting  the  company.  As  ^  to  the  in- 
juries to  the  child,  she  said  that  the 
child  was  confined  to  bed  for  eight 
weeks.  The  boy  complained  just  when 
they  were  about  to  nave  rain  that  be 
experienced  pain  from  the  injury. 

By  the  Court:  She  did  not  know  the 
amount  of  the  doctor's  bill. 

Rachel      Hammond   (daughter  of   the 

fllaintiff)  spoke  to  the  finding  of  her 
ittle  brother  under  the  planks  on  the 
day   in   question. 

Johannes  Hammond  (son  of  the  plain- 
tiff) said  that  on  the  day  in  Question 
he  was  '*  nlaying  horse "  with  his  two 
little  brothers.  W'hile  he  was  tying 
one  brother  the  other  ran  down  the  pas- 
sage, and  the  planks  blew  down  upon 
him.  They  did  not  play  upon  the 
planks.  Witness  did  not  see  the  planks 
fall,  his  attention  being  drawn  to  the 
accident  by  hearing  cries  from  his  bro- 
ther. 

Jacobus  Johannes  Erasmus,  of  W^or- 
cester,  Pieter  Jacobus  de  Wet,  and 
Arnholdt  Zeeman  gave  evidence  as  to 
having  viewed  the  stack  of  timber  after 
the  accident.  They  were  of  the  opin- 
ion that  it  was  not  safe. 

Reitz  Carol  Wolff,  a  medical  practi- 
tioner, said  that  he  examined  the  boy 
after  the  accident,  and  found  three 
fractures  of  the  bones  of  the  left  leg. 
The  injury  was  a  serious  one.  and  the 
log  had  to  be  placed  in  plaster  of  Paris 
on  three  occasions.  The  child  had  suf- 
fered considerably,  and  the  leg  was 
still  crooked  in  shape.  He  would  not 
advise  the  child  to   play  football. 

Cross-examined :  Tne  boy  would  be 
unfit  for  military  service,  but  could  fol- 
low other  walks  in  life. 

The  plaintiff  (recalled)  said  that  he  as- 
sessed the  damages  at  £5(X),  because  all 
the  time  the  child  was  suffering  he 
and  his  wife  had  extra  trouble  with  the 
child.  The  pain  the  boy  suffered  was 
unnecessary,  and  he  would  never  be 
fit  to  do  heavy  work.  A  sfpecial  boot 
would  be  necessary,  and  the  boy  would 
not  be  able  to  secure  a  girl  with  a 
large    "  dot,  ' 


"CAPE  TIMES"  LAW  REPORTS. 


825 


Mr.  Van  Zyl  closed  his  case  for  fabe 
plaiutiff. 

Percival  Noel  Muller  (secretary  to  the 
defendant  comi>aiiy)  said  that  the  w<M>d 
was  stacked  in  the  paasage  because  the 
company   was  stock-taking. 

rBuchanan,  A.C.J. .  Who  gave  you 
permission  to  stack  the  wood   there?] 

W'iftness:  No  one;  we  had  the  right 
to  do  it. 

fBuchanan,  A,C. J. :  No,  you  had 
not;  you  had  let  the  place.] 

Witness  (continuing)  said  that  Ham- 
mond had  told  him  that  he  could  not 
pav  the  rent,  and  if  the  company  was 
willing  to  cancel  his  lease,  he  would 
move  out,  and  let  the  house  be  used  as 
a  manse.  The  directors  assented.  In 
the  course  of  further  evidence,  witness 
said  that  on  the  Friday  before  the  accd- 
dent  he  had  had  to  warn  the  children 
about  playing  upon  the  planks.  After 
the  accident,  witness  saw  the  plaintiff, 
who  remarked  that  he  did  not  know 
why  the  Lord  had  punished  him,  be- 
cause he  had  paid  for  his  sins  long 
ago.  Witness  did  not  think  the  stack 
of  planks  could  have  been  blown  down, 
because  the  passage  was  well  protected 
from  the  wind  by  the  trees. 

Mr.^  Van  Zyl  was  about  to  cross- 
examine  witness  as  to  the  legal  right  of 
the  plaintiff's  children  to  be  in  the  pas- 
sage, when 

Buchanan,  A.C.J,  inier^sod,  and  ob- 
served that  he  did  not  think  there  was 
any  necessity  to  labour  that  part  of  the 
case.  The  plaintiff  was  lawfully  oc- 
cupying the  house. 

Cross-examined :  Witness  had  the 
boards  stacked  very  carefully,  and  they 
coiild  only  have  been  overturned  by  the 
children.  lie  denied  that  the  planks 
were  so  shaky  that  they  could  easily 
have  been  blown  down. 

Philip  Botha  H.  Fuchs,  one  of  the 
directors  of  the  company,  spoke  to  hav- 
ing seen  plaintiff's  children  playing  on 
the  boards  in  the  passage  on  Friday,  the 
30th  June. 

Carl  B.  Denah,  an  assistant  in  the  de- 
fendant company's  employ,  said  that  he 
helped  to  stack  the  floor  boards.  On 
the  Friday  and  Saturday,  while  the 
stacking  was  being  carried  out,  he  had 
to  speak  to  the  plaintiff's  children 
about  playing  on  the  boards.  He  did 
not  think  the  planks  could  have  been 
blown  down  by  the  wind. 

Johannes  Goridgos,  another  assist- 
ant, Grerhardus  Goridges,  also  in 
tho  employ^  of  the  company,  and  Jan 
Reitz.  assistant  carpenter,  gave  evi- 
dence to  the  effect  that  the  planks  were 
properly  stacked,  and  that  it  had  been 
necessary  to  warn  plaintiff's  children 
in  regard  to  placing  about  the  boards. 

Peiier  Francois  Hugo,  farmer,  said 
that  on  the  afternoon  in  question  he 
was  passing  along  Behring-street,  when 
ho  saw  two  children  on  the  top  of  the 
planks,  and  another  clinging  to  the 
planks,    trying   to  clamber    up.        Just 

g3 


after  he  had  passed  lie  heard  a  child's 
cries.     He  did  not  go  back. 

OrosH-examincd :  Witness  could  not 
say  whotlier  the  children  he  saw  were 
the  plain  tiff 'ii.  The  passage  was  open 
to  the  street,  and  any  children  could 
have  gone  there.  He  did  not  warn 
the  children  about  the  danger.  He 
did  not  trouble  about  the  danger  of  the 
youngsters  being  killed. 

Mr.  Van  Zyl  having  been  heard  in 
argument  on  the  facts, 

Buduuian,  A.C.J. ,  said  he  found 
that  the  plaintiff  was  in  lawful 
occupation  of  the  premises  when  the 
accident  occurred.  From  the  evi- 
dence it  appeared  that  the  timber  was 
properly  stacked,  and  that  there  was  no 
negligence  on  the  part  of  the  defen- 
dants. He  had  come  to  the  o(^nclu- 
sion  that  the  wood  wa^  sufficiently 
stacked  if  it  had  not  been  interfered 
with,  and  that  it  was  brought  down 
by  the  acts  of  the  children  when  playing 
there.  Under  these  circumstances,  it 
could  not  be  said,  as  the  plaintiff  al- 
leged, that  the  accident  was  entirely  due 
to  the  negligence  of  the  defendants  in 
stacking  the  wood  in  the  passage.  There 
was  no  contributory  negngence  pleaded, 
but  it  was  pleaded  that  there  was  negli- 
gence on  the  part  of  the  defendants. 
He  (the  learned  Judge)  could  not  find 
that  negligence  had  been  proved  on  the 
part  of  the  defendants,  but  he  did  find 
that  they  had  disproved  any  negli- 
gence, and  they  had  also  proved  that 
the  accident  was  entirely  due  to  the 
conduct  of  the  plaintiff's  own  children 
in  playing  on  this  wood.  There  was 
no  doubt  that  one  must  feel  a  great 
deal  of  sympathy  with  the  |)laintiff  in 
the  trouble  and  expense  to  which  he  had 
been  put  and  with  the  little  boy  who  had 
been  nnrt,  but  the  Court  was  not  there 
to  decide  the  matter  from  that  point 
of  view,  but  to  decide  whether  the  de- 
fendants were  legally  answerable  for 
what  had  taken  place.  Judgment 
would,  therefore,  be  given  for  the  de- 
fendants,  with  costs. 

fPlaintiff's  Attorney:  D.  Tenmnt, 
jun. ;  I)«»fendant'8  Attorneys:  Walker 
and   Jacobsohn.] 


In  re  INSOLVENT  ESTATE  MCPHERSON. 

Mr.  Wright  moved,  as  a  matter  of 
urgency,  upon  the  petition  of  Wm. 
Arthur  CNirrey  and  otner  creditors,  for 
the  appointment  of  provisional  trustees 
in  the  estate  of  George  Campbell  Mc- 
Pherson,  trading  as  McPherson  and 
Co.,  at  Cape  Town,  and  in  the  private 
estate  of  McPherson.  The  petitioners 
stated  that  they  represented  claims  to 
the  amount  of  £26,8(X),  and  the  liabili- 
ties of  the  estate  were  estimated,  ap- 
proximately, at  £30,000.  Insolvent  had 
carried  on  a  large  business,  and  it  would 
be  to  the  interest  of  the  creditors  to 
carry  it  on  for  the  benefit  of  the  estate 


826 


i( 


CAPE  TIMES"   LAW  REP0RT8. 


without  interruption  during  the  insol- 
vency. Amongst  tho  stock-in-trade  were 
certain  perishables,  which  must  be  dis- 
txjsed  of  or  attended  to  at  once,  and 
It  was  neccvssary  that  provisional  trus- 
tees should  bo  apiJoiubed  to  take  charge 
of  the  business,  ponding  the  election  of 
permanent  trustees,  the  names  of  Messrs. 
W.  A.  Currey  and  A.  N.  Foot  being 
suggested.  .     . 

Order  granted  as  prayed,  appomtmg 
Messrs.  Curiey  and  Foot  as  provisional 
trustees. 

Ex  parte  OOWAN. 

Divisional    Council— Voters'    list 
—Act  40  of  1889. 

Wh€7'e  applicant's  mime  had^ 
per  incuriam,  been  omitted 
from  the  list  of  voters  for  a 
Divisional  CounciL  The  Court 
granted  an  order  authorizing 
its  insertion. 


Mr.  Upington  said  that  he  had  an  un- 
mual    application  to  bring  before     the 
Court  as  a  matter  of  urgency,  so  as  to 
enable  the    petitioner  to    be   nominated 
on  Tuesday  next  as  a  candidate  for  elec- 
tion to  the  Divisional  Council  of  Oudts- 
hoorn.        Counsel    read   an   afiSdavit   by 
the  petitioner,  who  said  that  he  was  the 
registered  proprietor  of  immovable  pro- 
perty  in    the  division      of  Oudtshoorn, 
Ward  No.  2,  of  the  value  of  over  £6,000. 
lie  had,   for  the  last  j&fteen  years,  been 
a    registered  voter    for  the  division      of 
Oudtshoorn   for    Divisional   Council   pur- 
poses.   When  the  present  list  was  framed, 
ho  found  that  his  name  had  been  regis- 
tered   as  a  voter    on   the    rough  draft. 
Thereafter,    the  secretary   of   the   Divi- 
sional     Council,    in  having  a   fair  copy 
made       of    the    said    list,    inadvertantly 
omitted       petitioner's    name    therefroni. 
Petitioner  possessed  the  necessary  quali- 
fication to  enable  him  to  be  elected   as 
a  member   of  the  said  Divisional  Coun- 
cil.      He  had  boon  ^e<^llested  by  several 
persons  to  allow  himself  to  be  nominated 
afl  a  candidate  for  the  Divisional  Coun- 
cil, to  which  he  had  conscuited.    On  in- 
specting    the  voters*  list,  he  found  that 
his   name  had  been  omitted   therefrom. 
Nominations   for  the  ensuing      election 
must  be  filed    not    later   than   the   24th 
October.      There   were   no    reasons   why 
petitioner's  name  should   not   be   placed 
on      the   voters*   list,   and   he    therefore 
asked  for  an  order  authorising  his  name 
to  be  placed  on  the  list  or  such  other  re- 
lief as    to   the    Court   may   seem   meet. 
Counsel   also   read   an   aflBdavit  by    Mr. 
Arthur  C.  Sheard,  secretary  of  the  Divi- 
sional   Council    of    Oudtshoorn,     stating 
that  the   facts  and  allegations  contained 
in  the     petition  were   true  and  correct. 
ITe  added  that  he  was  not  aware  of  any 


reason  why  the  petitioner's  name 
should  not  be  placed  on  the  list.  Coun- 
sel referred  to  the  Divisional  Council 
Act,  No.  40,  1889.  and  said  that  its  pro- 
visions did  not  seem  to  touch  a  case  of 
this  kind,  where  an  omission  was  due 
entirely   to    a   clerical  error. 

Buchanan,  A.C.J. ,  said  that.  ^  if 
the  Court  which  sat  to  hear  obiec- 
tions  to  the  voters'  list  passed  Mr. 
Gavan's  name,  then  he  saw  no  objec- 
tion to  the  list  being  corrected,  as  pray- 
ed. The  important  point  was  whether 
Mr.  Gavan's  name  was  included  in  the 
list  submitted  for  public  inspection,  and 
the  point  must  be  made  clear  whether 
his  name  was  passed  by  the  Court,  A 
rule  nisi  would  be  granted  calling  upon 
the  Court  appointed  to  hear  objections 
to  the  list  to  show  cause,  on  Tuesday 
next,  why  applicant's  name  should  not 
be  inserted  on  the  final  list,  applicant 
to  pay  costs,  leave  being  granted  to 
telegraph  the  notices,  in  order  to  enable 
the  applicant,  if  no  objection  is  raised, 
to  be  nominated  for  the  election  on 
Tuesday  next 

Postea  (October  24th). 

Buchanan.  A.C.J. ,  said  that  a 
telegram  had  been  received  from 
the  chairman  stating  that  "  there 
is  no  objection  to  the  applica- 
tion being  granted."  His  Lord- 
ship added  that  he  had  de^^ired 
counsel  to  tell  him  whether  the  list 
which  was  published  bore  petitioner's 
name? 

Mr.  Upington  :  I  have  made  inquiries, 
but  I  have  no  information. 

Buchanah,  A.C. J. :  I  wanted  it  to  be 
made  perfectly  clear  that  the  omis«on 
was  due  merelv  to  a  clerk's  error  in 
conving  from   tnc  draft. 

Rule  made  absolute,  authorising  peti- 
tioner's name  to  be  inserted  upon  tho 
roll  of  voters. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplky.] 


f      19a'.. 

WAGNER  V.  WAGNER.         |  q^^.     goth. 

This  was  an  aotion  brought  by  Charles 
Wagner  for  an  order  for  restitution  of 
con  iu gal  rights,  failing  which  a  decree 
of  divorce,  against  his  wife.  Clara  W'ag- 
ner,  because  of  her  unlawful  desertion. 
Mr.  Roux  was  for  plaintiff;  defendant 
did  not  appear. 

The  defendant  was  personally  served 
with  the  notice  in  Johannesburg. 

The  plaintiff's  declaration  stated  he 
was  a  stonemason,  residing  at  Wynberg. 
He  was  married  to  the  defendant  on 
April  22,  1895.    On  October  5,  1904,  de- 


**CAPB  TIMES"  LAW  REPORTS. 


827 


fcndant  doeerted  pUintiff,  and  refused 
to  return. 

Mr.  Birch  proved  the  marriage  in 
April.  1895. 

Charle«  Wagner,  the  plaintiff,  Btat'ed 
he  was  uwrried  to  defendant  in  April, 
1895.  There  was  no  issue  of  the  mar- 
riage. A  man  n.aniod  Fredericka  lived 
with  witness  and  hiti  wife,  and  the  de- 
fendant misconducted  hers<^lf  with  him, 
but  'witness  forgave  her.  This  was  the 
eecond  occasion  on  which  the  defendant 
left  witness.  In  October,  1904,  the 
defendant  left  the  house,  taking  with 
her  her  clothes  and  about  £50  in  money. 
She  left  a  letter  stating  she  had  left 
through  no  fault  of  her  own.  He  had 
heard  that  the  defendant  wa«  residing 
in  Vredenberg.  The  defendant  wrote 
telling  witness  that  she  would  not 
return  to  him,  as  she  was  happier  where 
ahe  was.  The  letter  further  alleged  that 
there  was  no  happiness  in  her  home, 
and  consequently  that  she  preferred  to 
earn  her  own  living.  The  defendant 
came  to  Gape  Town  about  three  weeks 
ago  and  created  a  row  at  the  house  he 
was  living  at.  He  had  not  seen  her 
since.  Witness  would  take  her  back  if 
she  would  return. 

An  order  for  the  restitution  of  con- 
jugal rights  by  December  31,  failing 
which  to  show  cause  on  January  12  why 
a  decree  of  divorce  should  not  oc  grant- 
ed,  was  made. 


Ex  parte  BROWN,  LAWRENCE  AND  CO. 

Mr.  Baily  moved  as  a  matter  of  ur- 
gency for  the  appointment  of  provision- 
al trustees  in  the  estate  of  Frederick 
Wickham,  trading  as  Sargent  and  Co. 
Hx?  suggested  Messrs.  G.  W.  Stejrtler 
and  Muirheed. 

Tiie  application  was  granted. 


r      1905. 
.      -(Oct.    20th. 
(     „      23rd. 


BAILY  v.  DRUMMOND 


Contract — Acceptance  by  letter. 

B.  had  agreed^  verbally^  to  ^dl 
a  house  to  Z).,  and  Z).,  by  letter 
posted  at  5.10  p.m.  mi  the  same 
day^  accepted  B.*s  ojffer.  At 
5.47  p.m  atid  before  receiving 
D.'s  letter,  B.y  by  telegram^ 
revoked  his  offer. 

Held,  that  B.  was  bound  by 
his  contract. 


This  was  an  action  in  which  Percy 
Ba«ly,  ol  Claremont,  claimed  from  Hi  Id- 
yard  Home  Drummond  £30,  amount 
due  for  three  months*  rent  and  damages 
at  the  rate  of  £10  per  month,  for  such 
time  as  the  defendant  should  continue 
to   occupy   the   premises    after   July   31 


The  plaintiff's  declaration  stated : 

1.  The  plaintiff  is  James  Marcus  Smith, 
under  a  duly  executed  power  of  attor- 
ney 86  agent  for  Percy  Baily,  late  of 
Ciareniont,  and  at  present  travelling  ^n 
Europe.  The  defendant  i^  Ilildyard 
Home  Driinimond.  at  present  reaidiiii^ 
at  ,yilla  Marbella,  Claremont,  in  the 
division  of  the  Cape. 

2.  By  an  agreement  bearing  date  April 
3,  1905,  plaintiff  agreed  to  let,  and  the 
defendant  to  hire,  a  certain  partly  fur- 
nished house,  known  as  Villa  Marbella, 
Claremont,  the  property  of  the  plain- 
tiff, at  the  monthly  rental  of  £10  ster- 
ling, payable  on  the  first  day  of  each 
month,  the  tenancy  commencing  as  and 
from  1st  April,  1905. 

3.  Plaintiff  gave  defendant  possession 
of  the  said  premises,  and  defendant  paid 
plaintiff  the  apportioned  rent  for  the 
month  of  April. 

4.  All  things  have  happened,  all  times 
elapsed,  and  all  conditions  have  been 
fulfilled  to  entitle  plaintiff  to  payment 
by  defendant  of  the  sum  of  £30  sterling 
— being  rent  due  at  the  rate  of  £10  per 
month  for  the  months  of  May,  June, 
and  July,  1906,  but  though  frequently 
re^iuested  so  to  do,  defendant  has  re- 
fused or  neglected,  and  still  refuses  or 
neglects,  to  pay  the  said  sum  of  £30, 
or   any    part   thereof. 

5.  Plaintiff  further  says  that  defendant 
has  broken  the  agreement  by  failing  to 
pay  £10  on  the  nrst  of  each  month,  as 
therein  provided,  that  the  said  agree- 
ment is  thereby  ended,  and  plaintiff  is 
entitled  to  recover  back  the  possession 
of  the  said  premises.  Plaintiff  Kay^  \\is* 
so  long  as  defendant  continues  to  occupy 
the  same,  he  is  suffering  loss  and  dam- 
age to  the  extent  of  £10  sterling  r'*r 
month,  being  the  rent  of  the  S6'*d 
premises.  Wherefore  plaintiff  claims: 
(a)  Judgment  against  the  defendant  in 
the  sum  of  £30  sterling;  (b)  an  order 
for  the  ejectment  of  defendant  from 
the  said  premises  by  reason  of  his 
breach  of  agreement ;  (c)  damages  at 
the  rate  of  £10  por  month  for  such 
time  as  defendant  shall  continue  +0 
ocpupy  the  said  premises  after  July  31, 
1905;  (d)  alternative  relief;  (e)  costs 
of  suit. 

For  the  plea  to  the  declaration  the 
defendant  says  as  follows: 

1.  Paragraphs  1,  2,  and  -3  are  admit- 
ted, save  that  the  agreement  was  en- 
tered into  and  possession  of  the  pre- 
mises given  by  Percy  Baily,  and  not 
by  his  agent,   James  Marcus  Smith. 

2.  Defendant  denies  paragraphs  4  and 
5,  and  says  that  on  or  about  the  2nd 
day  of  May,  1905,  he  contracted  with 
the  said  Percy  Baily  to  purchase  the 
property  known  as  the  Villa  Marbella 
in  the  circumstances  hereinafter  set 
forth  in  the  claim  in  reconvention,  and 
to  which  the  defendant  craves  leave  to 
refer,  and  thereupon  the  agreement  of 
lease  was  cancelled  by  mutual  consent. 
Wherefore      the   defendant   prays   that 


828 


(I 


CAPE  TIMES"  UlW  BEPOBTS. 


the  plaintiff's  claim  may  be  dismissed, 
with  costs. 

And  for  a  claim  in  reconvention  the 
dt'fondant  (now  plaintiff)  says  as  fol- 
lows : 

1.  Defendant  (now  plaintiff)  craves 
leave  to  repeat  the  allegationa  stated 
in  the   above   plea. 

2.  On  or  about  the  2nd  day  of  May, 

1905,  the  plaintiff  (now  defendant) 
agreed  to  sell  and  the  defendant  (now 
plaintiff)  to  purchase  a  certain  property 
known  as  the  Villa  Marbella,  situate  in 
the  3rd  Avenue,  Claremont,  in  the  dis- 
trict of  the  Cape  of  Good  Hope,  for 
the  sum  of  £1,650. 

3.  It  was  a  term  and  condition  of  the 
«aid  contrac^t  that  the  defendant  (now 
plaintiff)  should  immediately  take  pos- 
session as  owner,  but  that  the  pur- 
chase price  of  £1.350  (as  agreed)  be 
paid  and  transfer  executed  on  the  1st 
August,  1905. 

4.  On  or  about  the  6th  day  of  June, 
1905  the  terras  of  purchase  were  con- 
firmed to  defendant  (now  plaintiff)  by 
plaintiff's  (now  defendant's)  agent,  one 
James  Marcus  Smith. 

5.  On  or  about  the  16th  day  of  July, 

1906,  the  defendant  (now  plaintiff) 
completed  negotiations  tor  a  re-sale  of 
the  aforesaid  property  to  one  Charles 
Edward  Mackintosh,  of  the  city  of 
Cape  Town,  for  the  sum  of  £1,500,  to 
bo  paid  and  transfer  taken  on  the  1st 
August,   1905. 

6.  Defendant  (now  plaintiff)  duly  noti- 
fied plaintiff  (now  defendant)  or  his 
agents  of  his  preparedness  to  take 
aforesaid  transfer,  but  same  was  re- 
fused to  defendant  (now  plaintiff)  by 
plaintiff  (now  defendant)  or  his  agents. 

7.  The  aforesaid  Charles  Edward 
Mackintosh  claims  from  defendant 
(now  plaintiff)   £50  as  damages. 

Wherefore  the  defendant  (now  plain- 
tiff) claims:  (a)  £200  damages;  (b)  al- 
ternative relief ;   (e)  costs  of  suit. 

For  a  replication  to  defendant's  plea, 
plaintiff  says  that,  save  for  admissions, 
h3  denies  all  and  «ingular  the  allega- 
tions of  fact  and  conclusions  of  law  in 
the  said  plea  contained,  joins  issue 
thereon,  and  again  prays  for  judgment 
as  before,  with  costs. 

And  for  a  plea  to  the  claim  in  re- 
convention, plaintiff  (now  defendant) 
says : 

1.  He  denies  all  the  statements  in 
paragraphs  1,  2,  3,  and  4  of  the  said 
claim.  He  says  that  on  May  2,  1905,  he 
did  offer  to  sell  to  the  defendant  (now 
plaintiff)  the  said  Villa  Marbella  for 
the  sum  of  £1,350  sterling,  but  that 
the  said  offer  was  withdrawn  on  the 
same  day  before  being  accepted  by  the 
defendant  (now  plaintiff),  and  that  no 
contract  of  sale  ever  existed. 

2.  Plaintiff  (now  defendant)  says  that 
ho  has  no  knowledge  of  the  allegations 
made  in  paragraphs  5,  6,  and  7  of  the 
said  claim,  and  puts  defendant  (now 
plaintiff)  to  the  proof  thereof. 


Wherefore  plaintiff  (now  defeDdant) 
prays  that  the  defendant's  (now  plain- 
tiff's) claim  in  reoou  vent  ion  may  be  dis- 
misaed.    with  costs. 

Dr.  Greer  for  plaintiff;  defendant  in 
person. 

Peroy  Baily.  the  plaintiff,  stated 
be  owned  the  property  in  dispute, 
situate  at  Claremont.  The  house  was 
furnished,  and  as  witness  cont<emplat«id 
a  trip  to  England  he  let  it  as  it  was  to 
defendant.  An  agreement  was  drawn 
up  between  them.  Witness  g*ve  de- 
fendant possession  in  April.  The  rent 
was  paid  for  the  period  of  that  month 
defendant?  was  in  occupation.  No  rent 
had  since  been  paid.  The  defendant  had 
written  to  witness,  asking  him  to  sell 
the  property.  On  May  2  witness  re- 
ceived a  communication  from  t-he  de- 
fondant,  asking  him  to  call  on  him  at 
Whitehall.  Defendant  was  sitting  in 
a  Mr.  Peregrino's  office.  As  soon  as 
witness  entered  the  room  defendant  said: 
"Well  Baily,  what  is  the  lowest  youU 
take  for  the  house?"  Witness  replied 
that  he  would  Uke  £1.350— £850  in  cash 
and  £500  on  bond.  The  defendant  sat 
down  and  wrote  out  a  broker's  note, 
which  witness  cooied.  The  note  was  to 
the  effect  that  tne  property  was  to  be 
taken  possession  of  on  August  1,  1905. 
Witness  did  not  know  Drummond  be- 
fore this.  Witness  and  Drummond  went 
and  had  a  drink,  and  witness  went  to  see 
his  agent,  and  as  a  result  wired  Drum- 
mond to  the  effect  that  the  offer  to  sell 
the  property  was  withdrawn.  He  con- 
firmed this  by  letter.  Witness  received 
a  letter  from  the  defendant  the  next 
day,  accepting  the  place  at  £1.350.  Thai 
letter  was  dated  May  2,  but  was  not  re- 
ceived until  3.30  p.m.  on  May  3.  Wit- 
ness did  not  r€»eeive  a  letter  from  de- 
fendant dated  May  3.  Witness  left 
for  England  on  May  5,  and  returned  to 
Cape    Town    for   the    purpose   of       this 

case. 

Cross-examined  by  defendant :  Wit- 
ness built  the  house  himself. 

Everything  you  put  in  it  was  of  the 
best?— Yes. 

You  built  the  house  for  your  own 
use  ?— Yes. 

Before  you  commenced  building  you 
were  a  Cape  policeman  ?— Some  years 
back  I  was. 

In  further  cross-examination  the  wit- 
ness said  the  duplicate  copy  of  the  lease 
was  not  stamped.  After  wkne^s  left 
Peregrine's  office  he  went  and  saw 
Smith,  and  sent  the  telegram.  Wit- 
ness aenied  that  he  had  told  Peregrino 
that  he  had  sold  the  property  to  de- 
fendant. Wftnees  had  great  confidence 
in  Smith.  The  mistake  witness  made  in 
giving  defendant  the  option  was  that  ho 
would  lose  three  months'  rent.  Before 
going  to  England  witness  passed  a  bond 
on  the  house.  ^  Witness  left  debts  in 
Cape  Town,  which  he  directed  Smith  tQ 
pay. 


*'CAt>B  ttMBS**   Law  REP(^t8. 


82d 


The  witness  objected  to  these  ques- 
tioQS.  as  they  were  irrelevant.  "He'e 
trying  to  get  me  into  a  net,''  remarked 
the   witness. 

**  They  generally  do/'  replied  His 
Lordship,  '  when  one  is  in  the  witness- 
box." 

James  Martin  Smith,  broker  and  ac- 
countant, of  St.  George's-strect,  stated 
he  held  defendant's  power  of  attorney 
w^hilst  plaintiff  was  in  England.  Wit- 
ness recollected  plaintiff  letting  his 
house  to  defendant.  Shortly  after  the 
plaintiff  told  witness  of  the  offer  to  sell. 
Witness  told  him  his  action  wa.s  foolish. 
A««  a  result  the  telegram  was  sent,  and 
a  letter  followed  it.  On  May  5  plaintiff 
left  for  England,  and  witness  endeavour- 
ed to  collect  the  rents  from  defendant, 
but  was  unable  to  do  so.  Witness  re- 
ceived a  letter  on  May  6.  stating  that 
defendant  refused  to  pay  the  rent,  but 
that  if  witness  would  guarantee  to  re- 
fund it  wh<»n  transfer  was  effected  he 
would  pay  the  three  months*  rent.  Wit- 
ness agreed  to  this  course. 

To  the  Court :  Witness  could  have 
sold  the  prt)perty  if  the  price  offered  had 
been  sufficient. 

Witness  (continuing)  said  he  had  not 
received  any  rent  from  defendant. 

Cross-examined :  Witness  offered  the 
property  to  defendant  in  April  for 
£1,400.  Witness  drew  up  the  lease. 
Witness  allowed  defendant  to  draft 
another  one.  Witness  was  under  the 
impression  that  defendant  would  not 
pay  the  rent.  W'itness  would  have 
got  his  commission  whether  the  pro- 
perty was  sold  privately  or  not.  Wnen 
Mr.  Baily  went  to  England  witness  wont 
t)  a  money  lender,  and  mortgaged 
four  months'  rent  for  a  loan. 

What  was  the  amount? — That  has  no- 
thing to  do  with  the  case. 

[Hopley,  J. :  If  Mr.  Baily  was  com- 
plaining of  his  conduct,  this  would  be 
very  relevant  j  but  as  far  as  you  are 
concerned,   it  is  not.] 

Witness  denied  that  he  was  short  of 
money  at  the  time. 

Dr.  Greer  drew  the  attention  of  tho 
Court  to  the  fact  that  the  questions 
were  irrelevant. 

The  defendant  was  about  to  further 
cross-examine  the  witness  with  regard 
to  rents  he  collected,  when 

Hoploy.  J.,  said  he  would  have  to 
stop  all   the   irrelevant  questions. 

Witness  stated  that  for  £5,000  canh 
he  would  not  sell  the  property  to  defen- 
dant. 

A  letter  signed  by  Robert  Greening 
was  put  in. 

PHopley.  J. :  Wlv>  is  Robert  Green- 
ing? There  was  an  attorney  of  that 
name  suspended  from  practice  in  this 
C^urt.     Is   that   the   emimy   gentlonrwin  ?] 

Dr.   Greer:    Yes,  my  lord. 

WitnosH  denied  having  received  a 
letter  ^  from  Drummond  repudiating 
Greening's  services. 

Witness  said  Greening  was  in  Drum- 
mond'a  office  on  one  occasion  when  wit- 


ness visited  him.  and  Drummond  turned 
to  him  and  said,  "  Greeninj?,  you  have 
got  me  into  a  hole  several  times,  so  you 
can  get  me  in1;o  another  now." 

Defendant:  That  would  Ik?  an  extra- 
ordinary thing  for  a  man  to  say. 

fHopley,  J. :  It  is  possible  he  may 
have  misunderstood  you.] 

Michael  Cavanagh,  sui>erintendent  of 
the  Telegraph  Order  Branch,  produced 
the  telegrams  which  passed  between 
plaintiff  and   defendant. 

John  Reid,  clerk  in  the  Magis- 
trate's Office,  Wynberg,  produced  the 
records  of  actions  which  had  been  tried 
there.  One  of  thorn  was  for  civil  im- 
prisonment against  the  defendant,  who 
on  July  6  admitt^^d  renting  a  furnished 
house,  that  he  had  paid  no  rent,  and 
that  the  house  was  rented  for  his  mother- 
in-law. 

Dr.    Greer   closc^d    h'i.s   ease. 

F.  Z.  S.  Peregrine  stated  the  defen- 
dant occupied  hi«  office  in  April.  Ho 
saw  plaintiff  there  on  one  occasion,  and 
he  told  witness  that  Drummond  was 
buying  a  house  from  him.  From  the 
conversation  he  had  heard  between 
Drummond  and  Baily,  ho  had  the  im- 
pression that  the  former  had  bought 
the  house.  Witness  was  asked  to  join 
in  a  liquid  refreshment  to  celebrate  the 
purchase. 

In  cross-examination,  witness  admitt:'d 
that  defendant  did  not  pay  for  the  use 
of  the  office  or  the  stationery.  They 
were  negotiating  for  a  partnership,  but 
it  fell  through. 

Elizabeth  Ilome  Drummond,  wife  of 
the  defendant,  stated  the  latter  told  her 
that  he  had  purchased  the  house  thev 
were  living  in.  She  was  very  much 
annoyed,  and  defendant  showed  her  a 
letter  to  the  plaintiff,  which  he  i)ostod 
at  Lansdowne-road.  Defendant  told 
her  he  intended  selling  the  house 
again. 

Cross-examined :  Witness  knew  no- 
thing[  about  her  husbaiid's  financial 
position. 

You  know  that  he  haa  been  sued  for 
debt?— Yes. 

You  know  that  decrees  for  civil  im- 
prisonment have  been  applied  for  again.st 
him? — There  has  been  a  person  down 
at  the  house  to  ask  if  we  had  any 
effects,    if  that   is  what  you   mean? 

Have  you  not  seen  the  newspapers? 
— I  never  open  a  newspaper  from  one 
year's  end  to  the  other. 

Dr.  Greer :  Thai  is  rather  unfortunate. 

Charles  Edward  Mackintosh,  a  specu- 
lator and  company  representative, 
sta/ted  he  accei)ted  the  defendant's  offor 
to  sell  the  houae  and  funr'ture  for  £1.500, 
and  claimed  £50  for*  breach  of  con- 
tract. 

Cross-examined :  Drummond  had^  no- 
thing but  certain  articles  of  furniture 
which  were  oxcliided  under  his  agree- 
ment. During  May,  June,  and  July, 
when  negotiations  were  going  on, 
Drummond  said  not  a  word  about  any 
dispute  about  his  purchase  of  the  house. 


83U 


"CAPE  TiMES"  LAW  kEPOElH. 


The  defondant,  Hilyard  Home  Drum- 
mond,  gave  evidence.  He  stated  he 
waN  a  pupil  to  Mr.  Coulton-; — 

(lld-p^y,   J.:     Are  you  articled?] 

Witiioois:    No. 

[Ilopk'y,  J.  :  Wc  do  not  know  what  a 
pupil  is  in  our  profession.  Are  you 
btill  carrying  on  in  hopes  of  being  a 
law  agent?] 

I  have  rather  higher  aspirations  than 
that.  I  am  endeavouring  to  understand 
the  business  of  an  attorney,  through 
being   in    Mr.  Ooulton's  office. 

Illopley,  J. :  Then  you  are  en>ployed 
as   a  learner?] 

Yofl. 

Witness  (continuing)  said  his  friend 
Mackintosh  wanted  to  buy  a  house. 
Witness  saw  the  house  advertised  in  the 
"  Times,"  and  approached  Bailey  about 
it.  Macintosh  was  willing  to  give 
£1.200  for  it,  so  witness  thought  that  if 
transfer  was  not  to  be  effected  until 
August,  he  could  take  up  possession 
ana  live  rent  freo  for  three  months. 
Witness  believed  Macintosh  would  pay 
£1,350  for  the  place. 

(Iloplcy,  J.:  Who  would  pay  the 
transfer   fecK^] 

MaclTrtosh. 

But  I  mean  the  truisfer  fees  from 
Bailoy  to  you?— 1  didn't  think  of     that. 

Illopley.  J.:  And  you  would  pro- 
bably have  found  yourself  being  prose- 
cuted for  trynng  to  defraud  the 
Revenue.] 

Witness  corroborated  the  evidence 
given  by  the  plaintiff  with  regard  to 
the  agreement  to  purchase  the  house. 
Continuing,  he  saia  that  he  wrote  the 
letter  accepting  the  ofifer  of  the  house 
about  an  hour  and  a  half  before  he  re- 
ceived the  telegram  from  plaintiff.  He 
met  plaintiff  next  morning,  and  told 
him  that  he  intended  to  keep  him  to 
his  agreement.  The  witness  denied  that 
ho  authorised  Greening  to  write  to 
Smith  agreeing,  on  his  behalf,  to  pay 
the  three  months*   rent. 

(lloploy,  J.:  Then  you  think  that 
Smith  and  Greening  were  conspiring  to 
git   this    £30  from   you?] 

Witness:  I  believe  Mr.  Greening's 
share  of  that  transaction  was  a  pair  of 
bo<>ts. 

[lloploy,  J. :  You  say  that  Smith 
gave  him.  a  pair  of  boat«?J 

Witness:  Yes;  for  his  assistance  in 
enabling  Mr.  Smith  to  raise  £30  when 
lie  was  hard  up,  he  got  these  boots. 
I  had  had  some  experience  of  Mr. 
Greening,  and  it  is  not  likely  that  be- 
ing left  with  an^  degree  of  sense,  that 
I  should  get  hini  to  do  anything  for 
mo. 

Witness  added  that  Sniitli  told  him  if 
he  would  give  up  |»ssession,  he  would 
give  him  a  clear  quittance  to  July  31. 

The  witness  gave  the  Court  a  short 
resume  of  his   legal  experiences. 

In  croas-oxamination,  witness  said  he 
had  not  always  been  known  as  Home 
Drummond.      Witness  did    not  pay   tlie 


rent  of  Mr.  Bidewell  £dwards*a  house 
for  certain  reasons.  Witness  was  still 
living  in  the  house  rent  free.  *'  I  was 
working  out  my  damages  by  staying: 
there/'  added  the  witness.  Witness  had 
not  the  means  to  purchase  the  houses 

Had  you  £4  or  £5  at  that  time  7— I 
had. 

And  yet  we  see  that  you  were  decreed 
for  that  amoimt? — Yes;  but  that  was 
later  on. 

Witness  denied  that  he  was  proprietor 
of  "  South  African  Truth.''  He  also 
denied  that  Greening  was  a  personal 
friend  of  his.  He  <^ten  took  him  into 
his  house,  because  he  was  sorry  for 
him. 

Dr.  Greer  and  the  defendant  were 
heard  in  argument  on  the  facts. 

Cur.   Adv.    Vult. 

Fotiea  (October   23rd). 

Hoplev,  J. :  In  April  last  a  lea^se  for 
12  months  was  entered  into  between  the 
plaintiff  and  defendant  of  certain  pre- 
mises known  as  Villa  Marbella,  at  Clare- 
mont,  belonging  to  the  plaintiff,  at  a 
rentiu  of  £10  a  month,  and  it  is  clear 
that  during  the  same  month  certain 
overtures  were  made  by  the  defendant 
to  purchase  the  place,  the  sum  of  £1,400 
bedng  then  mentioned  as  the  purchase 
price.  The  defendant  is,  and  then  wae, 
a  man  of  no  meang,  and  it  was  im- 
l>o9sible  for  him  to  conclude  a 
contract  of  sale  at  thai  price  with 
any  prospect  of  carrying  out  his  share 
of  the  transaction,  unless  he  could  gain 
time  for  payment  and  could  see  a 
possibility  of  a  resale.  The  latter  he 
seems  to  have  had,  even  at  that  time, 
as  a  Mr.  Molntosh  had  viidted  him  ai 
the  property  in  the  early  days  of  his 
tenancy,  and  had  expressed  hie  wish  to 
buy  it.  The  plaintiff  was  at  that  time 
about  to  visit  England,  and  seems  to 
have  been  anxious  to  effect  a  sale  of 
the  property,  and  he,  on  May  2,  met 
the  defendant  in  the  office  of  Mar. 
Peregriuo,  where,  after  some  discission, 
he  made  an  offer  of  the  place  to  the 
defendant,  which  the  latter  a^ked  him 
to  put  in  writing,  he  himself  preparing 
a  rough  draft  of  the  offer.  The  plaintiff 
thereupon  wrote  out  a  formal  offer  <A 
the  place  at  £1,350,  of  which  £500 
might  remain  on  firat  mortgage  at  6 
per  cent.,  the  balance  to  be  paid  on 
August  1,  when  transfer  was  to  be 
given.  These  terms,  the  defendant 
sa>-e  that  he  then  and  there  verbally 
accepted,  and  I  am  inclined  to  believe 
that  he  did,  as  it  is  common  cause 
that  the  plaintiff  and  defendant  went 
to  a  neighbouring  publichouae  to  have 
a  drink,  inviting  Mr*  Perogrino  to  ioin 
thoin  in  **  wetting  "  the  traaisartion.  Mr. 
Perogrino  refused  to  join  them,  but 
hin  imi)r«>ssion  wai* — and  ho  overheard 
most  ot  the  conversation — that  a  final 
sale  had  been  effected. 

The  plaintiff  savs  that  the  drink  was 

merely   to    "wet        the    offer    he    had 

J  made,   but  I  think   it  more  likely  that 


"OAPB  TIMES"  tAW  tlEPOitTS. 


881 


it   VAS,    aa    tbe   defendaut   d«poaee,    to 
oelebrtate  the  conclusion  of  the  bargain. 
However,  the  case,   aa   far   aa  the   con- 
cluaion    of    the    contract    ii&    oonoerned, 
does  not  rest  on  verbal  evidence  alone, 
for  the  defendasit  returned  to  the  o£Boe 
and   wrote  a  formai  acceptance  of   the 
offer,  which  he  enclosed  in  one  of  Pere- 
ffrino*8  envelopes,  and  intended  to  have 
delivered    by    his    messenger.       This   is 
borne  out  by  the  evidence  of  Peregrino, 
and    is     distinctly    sworn    to     by      the 
defendant,  and  I  oelieve  that  the  accept- 
ance   was    written  as   above  stated.      It 
was    not,    however,    lyent    by  messenger, 
nor  immediately  posted  iiii  Cape  Town, 
OS  the  defendant's  wife  happened  to  be 
in   town,   and    called    for    him,    and    he 
went      with      her      to      have      a      cup 
of        tea       at       a        restaurant        op- 
opposite    the   Railway   Station,    whence 
they   went,    just    in    time   to   oa;tch   the 
4.40  train  to  the  suburbs.       This  would 
land    them  at  Claremont   Station   at    5 
p.m.,   and  I  believe  their  evidence  that 
they    walked   home    and    dropped      the 
letter    into    a   pillar-box   in   Lansdowne- 
road  at  about  5.10  o'clock.      Even  then, 
if  there  had   been   no     verbal     conclu- 
sion of  the  contract  at  about  4  o'clock 
in    Gape  Town,    as  1   think    there  was, 
this   posting   of  the   letter   would      con- 
clude   it    at   5.10    p.m.        The  plaintiff 
seems,    after    he   parted    from    the    de- 
fendant,   to    have   met   or    gone  to    his 
agent,       a    Mr.    Smith,    and    told    him 
what  had  happened.        Smith  told  him 
that  he  had  been  foolish,   as  he   would 
lose   three  months'    rent,  and    also  that 
he    himself  had    a  better   offer    for    the 
property.       As  far  as  the^e  two  knew, 
the  only    writing    affecting   the    matter 
at  that  time  was  tho  offer  to  sell,  and 
they  made  up  their  minds  that  it  would 
be  wise  to  back  out  of  such  a  contract 
without       delay.  They        thereupon 

despatched  a  telegram  to  Claremont  in- 
forming the  defendant  that  the  offer 
was  withdrawn.  This  telegram  was 
banded  in  at  the  Post  Office  in  Cape 
Town  at  5.47  p.m.,  and  was  not  re- 
ceived by  the  defendant  at  his  resd- 
dence  until  shortly  before  7  o'clock. 
Next  day  the  plaintiff  received  the 
defendant's  letter,  but  apparently  under 
the  conviction  that  it  was  written  and 
posted  after  receipt  of  his  telegram, 
ne  has  treated  the  matter  as  if  there 
bad  been  no  concluded  contract,  while 
the  defendant  has  equally  consistently 
maintained  that  there  was  one.  The 
parties  met  in  Cape  Town  on  May  3, 
and  each  maintained  his  position.  The 
plaintiff  shortly  thereafter  proceeded  to 
England,  leaving  his  attain  in  the 
hands  of  Smith  under  a  general  power 
of  attorney;  and  the  defendant  pro 
coeded  with  his  plan  of  reselling  the 
property  to  Mcintosh.  From  time  to 
time  Smith  made  attempts  to  get  rent 
for  the  property  from  defendant,  who. 
however,  aVways  refused  to  pay,  on  the 
ground  that  he  had  purchased  it. 
Eventually,   in  July,   defendant  effected 


the  resale  of  the  jproperty  to  Mclnto;^ 
for    £1,500,     transfer    to    bo     given     on 
August  1 ;    but  when  that  date   arrived 
1    the    plaintifFs    agents    refused    to    give 
{    transfer  to  him,  and  he  was  accordingly 
unable  to  fuinl  his  contract  with  Mcln- 
toi»h,  who  immediately  claimed  damages 
from    him    for    broach    of   contract.       I 
am    therefore    clearly    of    opinion    that 
there  was   a  concluded  contract   of  sale 
on   the  2iid  of   May  from    the    plaintiff 
to  the  defendant  of  the  Villa  Marbolla 
for    £1,350,    and    that   transfer    was    to 
be  given,    and   the  contract   was    to    bo 
perujrmed  on   both  sides  on  the   Ist  of 
August,    that   the   plaintiff  signified    his 
intention   of  not  carrying  out  that  con- 
tract on   the  3rd  of  Maj;,    that   the  de- 
fendant   held    the    plaintiff  to    his    con- 
tract, and  that  the  plaintiff  finally  com- 
mitted   the    broach    of    the    contract    by 
refusing  to  transfer  the  pro|x>rty  on  the 
1st    of   August.      In  such   circumstance^ 
it  has  been   laid  down  in  a  number  of 
cases,   of    which   J'hilpotts   r.  Eruns  and 
Frost   r.    Knight  may      bo      mentioned, 
that   the    correct   method    of   m<vasurin.i? 
the    damage   for   such    a   breach    is    by 
estimating   them   with    reference   to   the 
date  at  which  the  contract  should  h<»vo 
■been    carried   out.       That    date    in     the 
present  caFe  was  August  1,  when,  if  the 
plaintiff   had    carried   out    the    contract, 
the  defendant  would  have  made  a  profit 
of  £150  on  the  resale  to  Mcintosh,   hut 
the    Governme-nt   dues   on    the    transfer, 
to  himself,   and    the  various  feet^       and 
charges   of  effecting  that    transfer,    and 
the  further  transfer  to  Mclnto&h.  would 
probably    have    come  to  something    like 
£40,  so  that  the  clear  profit  would  have 
been,    say     £110.       This    amount   murft, 
however,  be  reduced    in    a    final    aottlo- 
ment  between  the  parties  by  the  sum  of 
£30  for  the  use  and  occupation  of  the 
premises    by  the   defendant    during    the 
months  of  AugUHt,   September,   and  Oc- 
tober.     The  order  of  the  Court  is  that 
the   defendant  do  give  up  possession   of 
the  said  premises  to  the  plaintiff  on  the 
3l9t    inst.,    that    the    plamtiff      do    pay 
to   the  defendant  the  sum  of   £80,  and 
that   the  plaintiff  do   pay   the   costs   of 
suit. 

[Plaintiff's  Attorney:      Stanley-Jones; 
Defendant  in  pcnson.] 


824 


(t 


CAPS  TIMES**  LA.W  BEPORTS. 


caused  bv  l>is  Tio;?ligoficc  and  careless- 
ness, htid  aaid  that  he  watt  in  iawful 
occupation  of  tlie  promises,  and  both 
h«  and  hic»  children  had  a  right  to  go 
on  the  pai»ago. 

Mr.    Van   Zyl    was   for   the  plaintiff; 
Mr.   Alexander  was   for  the  defendants. 

The  plaintiff,  Pieter  Eduard  Ham- 
mond, said  that  about  May  last  he 
entered  into  a  contract  with  the  defen- 
dants for  the  hire  of  a  dwelling-house 
for  A  year,  rent  to  be  paid  monthly  in 
advance.  He  took  possession  of  the 
premises  on  the  15th  May,  and  paid  £9. 
the  first  month's  rent,  in  advance.  Dur- 
ing the  first  month  tie  saw  Mr.  Fuch, 
a  director  of  the  defendant  company, 
and  told  him  that  the  house  was  not 
in  a  habitable  ^tate.  He  asked  him 
whether,  if  he  6ub-let  the  house,  they 
would  cancel  the  contract.  He  took 
steos.  and  spoke  to  the  Rev.  Mr.  De 
ViUiers  and  the  churchwardens.  At  the 
beginning  of  the  second  month  he  did 
not  pay  the  rent.  Mr.  MuUer  (secre- 
tary of  the  company)  did  not  give  him 
notice  on  the  21st  June  to  quit  the 
house,  because  he  had  not  paid  the 
rent.  On  the  27th  June  Mr.  Muller 
asked  him  whether  he  could  vacate  the 
premises  if  the  minister  would  take  it. 
Witness  «aid  that  the  notice  was  very 
«hort.  He  met  the  Rov.  Mr.  De  Villiers 
the  following  day,  and  it  was  arranged 
that  witnos'i  should  remain  in  the  house 
until  the  3rd  June.  Mr.  De  Villiers 
removed  into  the  house  a  few  days  later. 
The  arrangement  was  that  if  the  Kerk- 
raad  hired  the  house,  he  would  pay  the 
rent  for  the  half -month  of  June.  Wit- 
ness had  not  paid  the  rent  for  that 
month.  On  the  27th  June  a  case  filled 
with  iron  fell  on  one  of  wittness'h  children 
The  company's  house  was  next  door. 
The  company  often  put  boxes,  planks, 
etc.,  in  the  passage  between  the  nouses. 
On  the  30th  June  or  a  couple  of  days 
before  planks  were  stacked  in  the  pas- 
sage. Witness  made  constant  use  of 
this  passage  to  reach  his  yard.  The 
planks  were  stacked  to  a  height  of 
more  than  6  feet.  On  Sunday,  the  2nd 
July,  his  child's  log  was  broken.  There 
was  a  north  wind  blowing,  and  rain 
was  falling.  There  was  nothing  to 
keep  the  planks  from  rolling  down. 
Witness  was  not  at  home  at  the  time 
of  the  accident.  The  child  could  now 
walk,  but  his  leg  was  crooked,  and  he 
seemed  to  be  lame.  In  bad  weather 
he  complained  of  pain  from  the  injury. 
W^itncss  denied  that  he  had  l)een  cau- 
tioned about  his  children  playing  near 
the  planks.  On  the  day  after  the  acci- 
dent he  went  and  asked  Mr.  MuUer, 
the  secretary  of  the  company,  whether 
they  would  pay  him  compensation  for 
the  injury  to  the  child,  .  Mr.  Muller 
said  that  he  would  speak  to  the  direc- 
tors. 

Cross-examined :  Witness  had  never 
offered  the  rent  for  the  half  month. 
He  would  have  been  able   to  pay  the  , 


rent  if  it  had  been  demanded.  Just 
before  then  he  had  given  notice  of  his 
intent idu  to  surrender.  He  was  aware 
that  he  could  not  sub-let  the  house 
without  the  consent  of  iho  defendants. 
He  had  never  applied  for  their  consent 
to  the  sub-letting  of  the  house.  He 
was  not  aware  thai  any  warning  was 
given  to  his  children. 

fBuchanan,  A.C.J,  (to  Mr.  Alexan- 
der) :  He  -was  in  lawful  posaesaion  of 
the   propeMy  under  his  lease.] 

Further  cross-examined :  Witness 
made  a  complaint  to  the  company  when 
the  case  feu  upon  his  child.  On  the 
2nd  July  witness  and  his  wife  were 
away  from  hime.  having  left  the  child- 
ren in  charge  of  two  older  girls. 

Elizabeth  Petronella  Hammond  (wife 
of  the  plaintiff)  gave  evidence  as  to  cer- 
tain interviews  with  Mr.  Muller,  repre- 
senting the  comnany.  As  to  the  in- 
juries to  the  chud,  she  said  that  the 
child  was  confined  to  bed  for  eight 
weeks.  The  boy  complained  just  when 
they  were  about  to  nave  rain  that  he 
experienced  pain  from  the  injury. 

By  the  Court :  She  did  not  know  the 
amount  of  the  doctor's  bill. 

Rachel      Hammond   (daughter  of   the 

f)laintiff)    spoke    to    the    finding    of    her 
ittle  brother  under  the   planlu  on  the 
day   in    question. 

Johannes  Hammond  (son  of  the  plain- 
tiff) said  that  on  the  day  in  question 
he  was  **  playing  horse "  with  his  two 
little  brothers.  While  he  was  tying 
one  brother  the  other  ran  down  the  pas- 
sage, and  the  planks  blew  down  upon 
him.  They  dia  not  play  upon  the 
planks.  Witness  did  not  see  the  planks 
tall,  his  attention  being  drawn  to  the 
accident  by  hearing  cries  from  his  bro- 
ther. 

Jacobus  Johannes  Erasmus,  of  Wor- 
cester, Pieter  Jacobus  de  Wet,  and 
Arnholdt  Zeeman  gave  evidence  as  to 
having  viewed  the  stack  of  timber  after 
the  accident.  They  were  of  the  opin- 
ion that  it  was  not  safe, 

Reitz  C^arol  Wolff,  a  medical  practi- 
tioner, said  that  he  examined  the  boy 
after  the  accident,  and  found  three 
fractures  of  the  bones  of  the  left  leg. 
The  iniury  was  a  serious  one.  and  the 
leg  haa  to  be  placed  in  plaster  of  Paris 
on  three  occasions.  The  child  had  suf- 
fered considerably,  and  the  leg  was 
still  crooked  in  shape.  He  would  not 
advise  the  child  to   play   football. 

Cross-examined :  The  boy  would  be 
unfit  for  military  service,  but  could  fol- 
low other  walks  in  life. 

The  plaintiff  (recalled)  said  that  he  as- 
sessed the  damages  at  £5(X),  because  all 
the  time  the  child  was  suffering  he 
and  his  wife  had  extra  trouble  with  the 
child.  The  pain  the  boy  suffered  was 
unnecessary,  and  he  would  never  be 
fit  to  do  heavy  work.  A  fipecial  boot 
would  be  necessary,  and  the  boy  would 
not  be  able  to  secure  a  girl  with  a 
large    "dot' 


"CAPE  TIMES"  LAW  REPORTS. 


825 


Mr.  Vau  Zyl  closed  his  caee  for  fcbe 
plaiutiff. 

Percival  Noel  Muller  (j^ecrcyt^ry  to  the 
dcfendnjit  company)  said  that  the  wood 
was  fita-ckcd  in  the  passage  because  the 
company   was  stock-taking. 

fBuchanaji,  A.C.J. .  Who  gave  you 
permission  to  stack  the  wood   there?] 

Witness:  No  one;  we  had  the  right 
to  do  it. 

fBuchanan.  A,C.J. :  No,  you  had 
not;  you  had  let  the  place.] 

Witness  (continuing)  said  that  Ham- 
mond had  told  him  that  he  oould  not 
pav  the  rent,  and  if  the  company  was 
willing  to  cancel  his  lease,  he  would 
move  out,  and  let  the  house  be  used  as 
a  manse.  The  directors  assented.  In 
the  course  of  further  evidence,  witness 
said  that  on  the  Friday  before  the  acci- 
dent he  had  had  to  warn  the  children 
about  playing  upon  the  planks.  After 
the  accident,  witness  saw  the  plaintiff, 
who  remarked  that  he  did  not  know 
why  the  Lord  had  punished  him,  be- 
cause he  had  paid  for  his  sins  long 
ago.  Witness  did  not  think  the  stack 
of  planks  could  have  been  blown  down, 
because  the  passage  was  well  protected 
from  the  wind  by  the  trees. 

Mr.  Van  Zyl  was  about  to  cross- 
examine  witness  as  to  the  legal  right  of 
the  plaintiff's  children  to  be  in  the  pas- 
sage, when 

BuohanaT),  A.C.J,  interposed,  and  ob- 
served that  he  did  not  think  there  was 
any  necessity  to  labour  that  part  of  the 
case.  The  plaintiff  was  lawfully  oc- 
cupying the  house. 

Cross-examined:  Witness  had  the 
boards  stacked  very  carefully,  and  they 
could  only  have  been  overturned  by  the 
children.  He  denied  that  the  planks 
were  so  shaky  that  they  could  easily 
have  been  blown  down. 

Philip  Botha  H.  Fuchs,  one  of  the 
directors  of  the  company,  spoke  to  hav- 
ing seen  plaintiff's  children  playing  on 
the  boards  in  the  passage  on  Friday,  the 
30th  June. 

Carl  B.  Denah,  an  assistant  in  the  de- 
fendant company's  employ,  said  that  he 
helped  to  stack  the  floor  boards.  On 
the  Friday  and  Saturday,  while  the 
stacking  was  being  carried  out,  he  had 
to  speak  to  the  plaintiff's  children 
about  playing  on  the  boards.  Ho  did 
not  think  the  planks  could  have  been 
blown  down  by  the  wind. 

Johannes  Goridges,  another  assist- 
ant, Gerhardus  Goridges,  also  in 
the  employ  of  the  company,  and  Jan 
Reitz.  assistant  carpenter,  gave  evi- 
dence to  the  effect  that  the  planks  were 
properly  stacked,  and  that  it  had  been 
necessary  to  warn  plaintiff's  children 
in  regard  to  playing  about  the  boards. 

Peiter  Francois  Hugo,  farmer,  said 
that  on  the  afternoon  in  question  he 
was  passing  along  Behring-street,  when 
he  saw  two  children  on  the  top  of  the 
planks,  and  another  clinging  to  the 
planks,    trying-   to  clamber    up.         Just 

g2 


after  he  had  passed  he  heard  a  child's 
cries.    He  did  not  go  back. 

Oross-examinod :  Witness  could  not 
say  whether  the  children  lie  saw  were 
the  plaintiff's.  The  passage  was  open 
to  the  street,  and  any  children  could 
have  gone  there.  He  did  not  warn 
the  children  about  the  danger.  He 
did  not  trouble  about  the  danger  of  the 
youngsters  being  killed. 

Mr.  Van  Zyl  having  been  heard  in 
argument  on  the  facts, 

Buchanan,     A.C.J. ,     said     he     found 
that      the      plaintiff     was      in      lawful 
occupation    of   the    premises    when    the 
accident     occurred.         From     the      evi- 
dence it  appeared   that  the  timber  was 
properly  stacked,  and  that  there  was  no 
negligence    on    the    part    of    the    defen- 
dants.       He   had  come   to  the     conclu- 
sion   that    the    wood    was        sufficiently 
stacked    if   it    had    not    been    interfered 
with,    and  that    it   was   brought      down 
by  the  acts  of  the  children  when  playing 
there.        Under   these   circumstances,    it 
could  not  be   said,  as   the  plaintiff      al- 
leged, that  the  accident  was  entirely  due 
to   the  negligence  of   the  defendants  in 
stacking  the  wood  in  the  passage.    There 
was  no  contributory  negngenoe  pleaded, 
but  it  was  pleaded  that  there  was  negli- 
gence   on    the    part    of  the    defendants. 
He  (the  learned    Judge)    could    not  find 
that  nf»gligence  had  been  proved  on  the 
part  of  the  defendants,   but  he  did  find 
that    they    had      disproved       any  negli- 
gence,   and    they   had    also  proved    that 
the  accident   was  entirely  due  to      the 
conduct  of  the   plaintiff's   own   children 
in  playing  on   this  wood.        There   was 
no  doubt  that  one  must  feel   a      great 
deal  of  sympathy   with    the   |ilaintiff  in 
the  trouble  and  expense  to  which  he  had 
been  put  and  with  the  little  boy  who  had 
been  hurt,  but  the  Court  was  not  there 
to   decide    the   matter    from    that   point 
of  view,  but  to  decide  whether  the  de- 
fendants    were     legally    answerable    for 
what       had    taken    place.         Judgment 
would,   therefore,   be'  given  for  the    de- 
fendants, with  costs. 

rPlaintiff's  Attorney:  D.  Tenmnt, 
jun.;  Defendant's  Attorneys:  Walker 
and   Jacobsohn.] 


In  re  INSOLVENT  ESTATE  MCPHERSON. 

Mr.  Wright  moved,  as  a  matter  of 
urgency,  upon  the  petition  of  Wm. 
Arthur  Ourrey  and  other  creditors,  for 
the  appointment  of  provisional  trustees 
in  the  estate  of  George  Campbell  Mc- 
Pherscm,  trading  as  McPherson  and 
Co.,  at  Cape  Town,  and  in  the  private 
estate  of  McPherson.  The  petitioners 
stated  that  they  represented  claims  to 
the  amount  of  £26,800,  and  the  liabili- 
ties of  the  estate  were  estimated,  ap- 
proximately, at  £30,000.  Insolvent  had 
carried  on  a  large  business,  and  it  would 
be  to  the  interest  of  the  creditors  to 
carry  it  on  for  the  benefit  of  the  estate 


826 


"CAPE  TIMES"  LAW  REPORTS. 


without  interruption  during  the  insol- 
voncy.  Amoiigflt  the  stock-in- trad©  were 
cortuiii  iK'riMhahleB,  which  must  bo  dis- 
|iosod  of  or  attended  to  at  once,  and 
It  was  necessary  that  provisional  trus- 
tees should  bo  a{)pointed  to  take  charf^o 
of  the  business,  pending  the  election  of 
permanent  trustees,  the  names  of  Messrs. 
W.  A.  Currey  and  A.  N.  Foot  being 
Bugpested. 

Order  granted  as  prayed,  appointing 
Messrs.  Currey  and  Foot  as  provisional 
trustees. 


Ejc  parte  OOWAN. 

Divisional    Council — Voters'    list 
—Act  40  of  1889. 

Where  applicants  mime  had^ 
per  incuriam,  been  omitted 
from  the  list  of  voters  for  a 
Dirisional  Council.  2'he  (hurt 
granted  an  order  authorizing 
its  insertion. 


Mr.  Upington  said  that  he  had  an  un- 
asual  application  to  bring  before  the 
Court  as  a  matter  of  urgency,  ao  as  to 
enable  the  petitioner  to  be  nominated 
on  Tuesday  next  £jb  a  candidate  for  elec- 
tion to  the  Divisional  Council  of  Oudts- 
hoorn.  Counsel  read  an  affidavit  by 
the  petitioner,  who  said  that  he  was  the 
registered  proprietor  of  immovable  pro- 
perty in  the  division  of  Oudtshoorn, 
Ward  No.  2,  of  the  value  of  over  £6,000. 
lie  had,  for  the  last  fifteen  years,  been 
a  registered  voter  for  the  division  of 
Oudtshoorn  for  Divisional  Council  pur- 
ix>ses.  When  the  present  list  was  framed, 
he  found  that  his  name  had  been  regis- 
tered as  a  voter  on  tlie  rough  draft. 
Thereafter,  the  secretary  of  the  Divi- 
sional Council,  in  having  a  fair  copy 
made  of  the  said  list,  inadvertantly 
omitted  petitioner's  name  therefroni. 
Petitioner  possessed  the  necessary  quali- 
fication to  enable  him  to  be  elected  as 
a  member  of  the  said  Divisional  Coun- 
cil. He  had  been  requested  by  several 
persons  to  allow  himself  to  be  nominated 
as  a  candidate  for  the  Divisional  Coun- 
cil, to  which  he  had  consented.  On  in- 
specting the  voters*  list,  he  found  that 
his  name  had  been  omitted  therefrom. 
Nominations  for  the  ensuing  election 
must  be  filed  not  later  than  the  24th 
October.  There  were  no  reasons  why 
petitioner's  name  should  not  be  placed 
on  the  votere'  list,  and  he  therefore 
asked  for  an  order  authorising  his  name 
io  be  placed  on  the  list  or  such  other  ro- 
lief  as  to  the  Court  may  seem  meet. 
Counsel  also  read  an  affidavit  by  Mr. 
Arthur  C.  Sheard,  secretary  of  the  Divi- 
sional Council  of  Oudtshoorn,  stating 
that  the  facta  and  allegations  contained 
in  the  petition  were  true  and  correct 
Tie  added  that  he  was  not  aware  of  any 


reason  why  the  petitioner's  name 
should  not  be  plaoed  on  the  list.  Coun- 
sel referred  to  the  Divisional  Council 
Act,  No.  40,  1889.  and  said  tluU  its  pro- 
visions did  not  seem  to  touch  a  case  of 
this  kind,  where  an  omission  was  due 
entirely   to    a    clerical  error. 

Buchanan,  A.C.J.,  said  that,  if 
the  Court  which  sat  to  hear  objec- 
tions to  the  voters'  list  passed  Mr. 
Gavan's  name,  then  he  saw  no  objec- 
tion to  the  list  being  corrected,  as  pray- 
ed. The  important  point  was  whether 
Mr.  Gavan's  name  was  included  in  the 
list  submitted  for  public  inspection,  and 
the  point  must  be  made  clear  whether 
his  name  was  passed  by  the  Court.  A 
rule  nt/tf  would  be  granted  calling  upon 
the  Court  appointed  to  hear  objections 
to  the  list  to  show  cause,  on  Tuesday 
next,  why  applicant's  name  should  not 
be  inserted  on  the  final  list,  apfJicant 
to  pay  costs,  leave  being  granted  to 
telegraph  the  notices,  in  order  to  enable 
the  applicant,  if  no  objection  is  raised, 
to  bo  nominated  for  the  election  on 
Tuesday  next 

Postea  (October  24th). 

Buchanan,  A.C.J.,  said  that  a 
telegram  had  been  received  from 
the  chairman  stating  that  "  there 
is  no  objection  to  the  applica- 
tion being  granted.'*  His  Lord- 
ship added  that  he  had  de^red 
counsel  to  tell  him  whether  the  list 
which  was  published  bore  petitioner's 
name? 

Mr.  Upington :  I  have  made  inquiries, 
but  I  have  no  information. 

Buchansih,  A.C.J. :  I  wanted  it  to  be 
made  perfectly  clear  that  the  omission 
was  due  merely  to  &  clerk's  error  in 
conving  from   the  draft. 

Rule  made  absolute,  authorising  peti- 
tioner's name  to  be  inserted  upon  the 
roll  of  voters. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplet.] 


WAGNER  V.  WAGNER. 


f     i9a"i. 

(Oct.   20th. 

This  was  an  sction  brought  by  Charles 
Wagoner  for  an  order  for  restrtutioti  of 
con lu gal  rights,  failing  which  a  decree 
of  divorce,  against  his  wife.  Clara  Wag- 
ner, because  of  her  unlawful  desertion. 
Mr.  Roux  was  for  plaintiff;  defendant 
did  not  appear. 

The  defendant  was  personally  served 
with  the  notice  in  Johannesburg. 

The  plaintiff's  declaration  stated  he 
was  a  stonemason,  residing  at  Wvnberg. 
He  was  married  to  the  defendant  on 
April  22,  1895.    On  October  5,  1904,  de- 


tt 


CAPE  TIMES"  LAW  REPORTS. 


827 


fendant  deserted  plaintiff,  and  refused 
to  return. 

Mr.  Birch  proved  the  marriage  in 
April.   1895. 

Charles  Wagner,  the  plaintiff,  stated 
ho  wafi  noarricd  to  dofoiidaiit  in  April, 
1895.  There  was  no  issue  of  the  mar- 
riage. A  man  named  Fredericks  lived 
wiui  witness  and  hies  wifo,  and  the  de- 
fendant misconducted  herself  with  him, 
but  'witneas  forgave  her.  This  was  the 
second  occasion  on  which  the  defendant 
left  witness.  In  October,  1904,  the 
defendant  left  the  house,  taking  with 
her  her  clothes  and  about  £50  in  money. 
She  left  a  letter  stating  she  had  left 
through  no  fault  of  her  own.  He  had 
heard  that  the  defendant  was  residing 
in  Vredenberg.  The  defendant  wrote 
telling  witness  that  she  would  not 
return  to  him,  as  she  was  happier  where 
ahe  was.  The  letter  further  alleged  that 
there  was  no  happiness  in  her  home, 
and  consequently  that  she  preferred  to 
earn  her  own  living.  The  defendant 
came  to  Cape  Town  about  three  weeks 
ago  and  created  a  row  at  the  house  he 
woB  living  at.  He  had  not  seen  her 
since.  Wrtnea^  -would  take  her  back  if 
she  would  return. 

An  order  for  the  restitution  of  con- 
jugal rights  by  December  31,  failing 
which  to  show  cause  on  Januarv  12  why 
a  decree  of  divorce  should  not  oe  grant- 
ed,  was  made. 


Hip  parte  BROWN,  LAWRENCE  AND  CO. 

Mr.  Baily  moved  as  a  matter  of  ur- 
gency for  the  appointment  of  provision- 
al trustees  in  the  estate  of  Frederick 
Wickham,  trading  as  Sargent  and  Ck). 
Ho  suggested  Messrs.  G.  W.  Steytler 
and  Muirheed. 

TJie  application  wa£  granted. 


r      1905. 
.      -?Oct.    20th. 
(     „     23rd. 


BAILT  v.  DRUMMOKD 


Contract — Acceptance  by  letter. 

B,had  agreed,  verbally,  to  sell 
a  house  to  Z>.,  and  D.,  by  letter 
posted  at  5.10  p.m.  oil  the  name 
day,  accepted  B*8  ojffer.  At 
5.47  p.m  and  before  receiving 
D'a  letter,  B.,  by  telegram, 
Tfvoked  his  offer. 

Held,  that  B.  ivas  bound  by 
his  contract. 


This  was  an  action  in  which  Percy 
Baily,  of  Claremont,  claimed  from  Hi  id- 
yard  Home  Drumraond  £30,  amount 
due  for  three  months'  rent  and  damages 
at  the  rate  of  £10  per  month,  for  such 
time  as  the  defendant  should  continue 
to   occupy   the   premises   after   July   31 


The  plaintiff's  declaration  stated : 

1.  The  plaintiff  is  James  Marcus  Smith, 
under  a  duly  executed  power  of  attor- 
ney ai»  agent  for  Percy  Baily,  late  of 
Claremont,  and  at  presc^nt  travelling  .n 
Kurope.  The  defendant  'm  Ilildyard 
Home  DniHimond.  at  present  residing 
at  Villa  Marbella,  Claremont,  in  the 
division  of  the  Cape. 

2.  By  an  agreement  bearing  date  April 
3,  1905,  plaintiff  agreed  to  Jet,  and  the 
defendant  to  hire,  a  certain  partly  fur- 
nished house,  known  as  Villa  Marbella, 
Claremont,  the  property  of  the  plain- 
tiff, at  the  monthlv  rental  of  £10  ster- 
ling, payable  on  tne  first  day  of  each 
month,  the  tenancv  commencing  as  and 
from  Ist  April,   1905. 

3.  Plaintiff  gave  defendant  possession 
of  the  said  premises,  and  defendant  paid 
plaintiff  the  apportioned  rent  for  the 
month  of  April. 

4.  All  things  have  happened,  all  times 
elapsed,  and  all  conditions  nave  been 
fulnlled  to  entitle  plaintiff  to  payment 
by  defendant  of  the  sum  of  £30  sterling 
—being  rent  due  at  the  rate  of  £10  per 
month  for  tiie  months  of  May,  June, 
and  July,  1906,  but  though  frequently 
re<iuested  so  to  do,  defendant  has  re- 
fused or  neglected,  and  still  refuses  or 
neglects,  to  pay  tne  said  sum  of  £30, 
or  any   part   thereof. 

5.  Plaintiff  further  says  that  defendant 
has  broken  the  ajBfroement  by  failing  to 
pay  £10  on  the  nrst  of  each  month,  as 
therein  provided,  that  the  said  agree- 
ment is  thereby  ended,  and  plaintiff  is 
entitled  to  recover  back  the  possession 
of  the  said  premises.  Plaintiff  nays  th.t* 
so  long  as  defendant  continues  to  occupy 
the  same,  he  is  suffering  loss  and  dam- 
age to  tne  extent  of  £10  sterling  ft 
month,  being  the  rent  of  the  s&id 
premises.  Wherefore  plaintiff  claims: 
(a)  Judgment  against  the  defendant  in 
the  sum  of  £30  sterling;  (b)  an  order 
for  the  ejectment  of  defendant  from 
the  said  premises  by  reason  of  his 
breach  of  agreement ;  (c)  damages  at 
the  rate  of  £10  per  month  for  such 
time  as  defendant  shall  continue  +o 
omupy  the  said  premises  after  July  31. 
1905 ;  (d)  alternative  relief ;  (e)  costs 
of  suit. 

For  the  plea  to  the  declaration  the 
defendant  says  as  follows: 

1.  Paragraphs  1,  2,  and  -3  are  admit- 
ted, save  that  the  agreement  was  en- 
tered into  and  possession  of  the  pre- 
mises given  by  Percy  Baily,  and  not 
by  his  agent,  James  Marcus  Smith. 

2.  Defendant  denies  paragraphs  4  and 
5,  and  says  that  on  or  about  the  2nd 
day  of  May,  1905,  he  contracted  with 
the  said  Percy  Baily  to  purchase  the 
property  known  as  the  Villa  Marbella 
in  the  circumstances  hereinafter  set 
forth  in  the  claim  in  reoonventiou,  and 
to  which  the  defendant  craves  leave  to 
refer,  and  thereupon  the  agreement  of 
lea.se  was  cancelled  by  mutual  consent. 
Wherefore      the    defendant    prays    that 


896 


fi 


ca1>b  tembb''  law  ttitpotttt. 


5.  In  or  about  the  said  1897  the  said 
Baasardien  did  by  himself,  his  servants, 
or  agents  proceed  wrongfully  and  un- 
lawfully to  cnoroach  over  the  said 
boundary  upon  the  land  of  the  plaintiff, 
and  to  trespass  thereon,  and  t<>  remove 
therefrom  a  larg^  portion  of  ^ound, 
the  property  of  the  pUintnff,  whereby 
the  plaintiff  has  suffered  damage. 

6.  By  resfion  of  the  promises,  the 
plaintiff  has  suffered  damage  in  tlie 
eum  of  £500. 

Wheref<xre  the  plaintiff  claims :  (a) 
£500  damages,  (b)  alternative  relief,  (c) 
costs  of  suit. 

The  defendant's  plea  stated  : 

1.  The  defendant  admits  the  allega- 
tions in  parag^raphs  1,  2,  and  3  of  the 
declaration,  in  all  save  that  he  says  he 
received  letters  of  administration  on 
26th  July.  1900. 

2.  He  admits  that  in  or  about  the 
vear  1897j  Saliem  Basttardien  did  by 
hinvelf.  his  agents  or  servants,  excavate 
a  portion  of  ground  uiK)n  his  (I^rrar- 
dien's)  land,  but  he  denies  that  he 
thereby  deprived  plaintiff's  land  of  any 
lateral  support  to  which  he  was  legally 
entitled,  and  the  plaintiff  has  suffereil 
any  damage  for  which  he  (defendant)  is 
legally  responsible.  He  says  that  if 
there  is  any  subsidence  or  danger  of 
subsidence  in  or  upon  plaintiff's  land, 
or  any  other  damage  done  theieto.  it 
was  in  no  way  due  to  Bassardien  or  any 
person  for  whom  ho  is  liable,  but  is  due 
to  the  acts.  defanlt8.  and  neglects  oi 
plaiivtiff  or  .some  <»th<'r  person  for  whose 
acts,  defaults,  and  fioglects  ho  (defen- 
dant) is  not  liahU'.  und  more  cY^ix^ially 
b^  the  acts  in  the  cladm  in  reconven- 
tion set  out. 

3.  Defendant  donies  the  allegations  in 
paragraphs  5  and  6,  especially  that  the 
said  Bassardien  did  by  himeelf,  his 
sj^ents,  or  his  servanits,  trespajto  on 
plaintiff's  land,  or  remove  large  portions 
of  ground  therefrom,  or  otherwise  Jo 
damage  to  plaintiff,  in  respect  whereof 
the  said  plaintiff  is  entitled  to  claim 
the  sum  of  £500  or  any  other  sum. 

\yherefore  he  prays  that  plaintiff's 
claim   be   dismissed,    with  costs. 

And  for  a  claim  in  reconvention,  the 
defendant  (now    plaintiff)    says: 

5.  He  says  that  at  divers  times  plain- 
tiff (now  defendant)  has  cut  away  por- 
tion of  his  own  land,  and  has  thus  de- 
prived the  remainder  of  bis  own  land 
of  itsi  natural  supnort;  he  has  erected 
heavy  cement  worlc  on  or  towards  the 
edge  of  the  land  from  which  the  cut- 
ting luis  been  made,  and  he  ha«,  through 
himself,  or  the  occupiers,  or  tenants  of 
his  land,  suffered  large  quantities  of 
water  to  flow  towards  and  to  such 
edflfe. 

6.  By  reason  of  the  acts  set  out 
in  the  preceding  paragraph,  large  quan- 
tities of  earth,  soil,  and  rock  have  fallen 
upon    the    defendant's    (jiow    plaintiff's) 

S remises,  and  have  caused  damage  which 
e  estimates  in   the  sum  of  £Z00,   and 
large    quantities    will   continue  to    fall 


unless  plaintiff  (now  defendant)  be  or- 
dered to  take  sufficient  steps  to  abate 
the  nuisance. 

Wherefore  the  plaintiff  in  reconyention 
prays:  (a)  Judgment  for  the  sun  of 
£200  t^  and  by  way  of  damsLgea;  (b) 
An  order  calling  upon  defendant  in  re- 
conveirtion  to  build  a  retaining  wall  of 
sufficient  height  and  strength  to  abate 
the  nuisance  aforesaid ;  (c)  such  further 
and  other  relief  aa  mav  seem  meet, 
together  with  (b)  costs  o(  suit. 

For  a  replication  t-he  plaintiff  says : 

1.  He  admits  that  the  defendant  re- 
ceived letters  of  adminietxatioci  on 
26th  July,  1900. 

2.  Save  as  above,  he  defies  all  and 
several  the  allegations  in  the  pdea,  and 
joins  issue  thereon,  and  prays  for 
judgment,  with   costs,  aa   before. 

For  a  plea  in  reconvention,  the  plain- 
tiff  (now   defendant)  says: 

1.  He  craves  leave  to  refer  to  the 
matters  pleaded  in  his  replication. 

2.  He  denies  that  he  has  at  any  time 
cut  away  portions  of  his  own  land  ao 
as  to  deprive  the  remainder  of  his  land 
of  its  natural  support,  or  that  he  erected 
heavy  cement  work  on  or  towards  the 
edge  of  ajiy  land  from  which  a  cutting 
haa  been  inade  by  him,  or  that  he  has, 
through  himself  or  the  occupiers  or  ten- 
ants of  hie  land,  suffered  large  quantities 
of  water  to  flow  towards  or  to  such 
edge. 

3.  He  denie.4  tliat  by  reason  of  any 
act  set  out  in  paragrapn  5  of  the  claim 
in  reconvention,  or  for  which  the  plain- 
tiff (now  defendants  is  liable,  any  quan- 
tities of  earth,  soil,  or  rock  have  fallen 
upon  the  defendant's  (now  plaintiff's)  pre- 
mises, or  have  caused  any  damage.  He 
denies,  further,  that  there  in  any  nuis- 
ance on  his  land  which  he  is  liable  to 
be  called  upon  to  abate. 

4.  He  says  that  if  large  quantities  of 
earth,  soil,  or  roclt  have  fallen 
upon  the  defendant's  premises, 
or  if  quantities  of  water  above 
the  amount  of  the  natural  flow  have 
flowed  towards  or  to  the  said  edge,  or 
have  caused  damage,  which  be  don 
not  admit,  the  same  is  due  to  the 
wrongful  acts  of  the  defendant  (now 
plaintiff),  as  set  forth  in  paxvtgraphs  4 
and^  5   of   the   declaration. 

Wherefore  he  prays  that  the  claim 
in  reconvention  be  dismissed  with  costs. 

Rejoinder  and  replication  in  recon- 
vention : 

1.  For  a  rejoinder  to  the  replication 
in  convention  the  defendant  repeats  all 
the  allegations  in  his  plea,  and  again 
prays  that  the  claim  in  convention  bo 
dif^missed  with  costs. 

2.  And  for  a  replication  he  (now 
plaintiff)  says  that,  save  in  ao  far  as 
any  of  the  allegations  in  the  claim  in 
reconvention  are  admitted  by  the  plea 
thereto,  he  joins  issue  thereon,  and 
again  prays  for  judgment  with  costs. 

Mr.  Rusciell  for  plaintiff;  Mr.  Ben- 
jamin (with  liim  Mr.  Bailey)  for  defen- 
dant. 


"CAPS  TIMES"  LAW  RBP0RT8. 


837 


Jamee  O.  Bisaet,  Governmeni  land 
surveyor,  testified  to  having  drawn  a 
plan  of  the  grounds  in  question.  The 
depth  of  the  excavation  was  22  feet, 
and  it  was  about  11  feet  broad.  The 
boundary  ran  about  nine  inchefl  from 
defendant's  house. 

Doffa  Abrahams,  the  plaintiff,  said  he 
knew  defendant,  whose  ground  was  just 
below  witness's.  Defendant  had  made 
certain  excavations,  when  building  his 
houses.  If  witness  had  hia  proper 
ground,  he  could  get  increased  rental 
for  his  property. 

In  cross-examination,  witness  said  that 
when  he  found  Bassardien  excavating 
the  ground  he  went  to  him  and  told 
him  to  stop.  Bassardien  promised  to 
put  up  a  wall,  but  failed  to  do  so.  If 
the  successors  consented  to  build  it  now 
ha  would  be  quite  satisfied. 

Mr.  Benjamin  said  ho  thought  after 
the  defendant's  admission  th&t  there 
was  not  much  necessity  to  lead  further 
evidence.  The  cause  of  action  for 
which  the  plaintiff  sued  was  for  dam- 
ages for  encroachment,  and  the  plaintiff, 
by  his  own  evidence,  admitted  that 
thore   was   accord    and   »atisfaction. 

Hoplcy,  J.,  considered  it  would  be 
advisable  to  lead  further  evidence.  He 
was  not  prepared  to  deal  with  the  case 
at  that  stage. 

In  further  cri)ss-cxamiuotion,  the 
plaintiff  said  it  was  (vight  years  since  the 
excavation  had  been  made. 

Mr.   Russell  closed  his  oase. 

Robert  Esdon,  C.E.,  stated  he  knew 
the  defendant's  property.  He  wa.s  call- 
ed in  in  1897  to  draw  a  plan  for  a  house 
the  defendant  was  about  to  erect.  Wit- 
ness believed  he  saw  the  title  deeds, 
which  showed  two  strips  of  land,  one 
acquired  in  1890  and  the  other  seven 
years  after.  Witness  taped  off  the 
frontage  to  Pepper  and  Bryant  streets. 
It  was  necessary  to  prepare  the  site, 
and  excavations  would  be  necessary.  It 
was  necessarv  to  make  provision  for  a 
stormwater  drain  on  the  site.  It  bo- 
came  necessary  for  the  builder  to  build 
over-hand  from  the  inside  wall.  It  was 
also  necessary  to  excavate  for  an  air 
space.  That  was  all  excavated  vrithin 
tne  defendant's  propertv.  Witness  al- 
lowed 18  inches  for  the  stormwater 
drain.  The  cliff  was  now  **  weather- 
ing,*' and  two  or  three  loads  was  lying 
against  the  wall,  which  caused  the  wall 
to  dampen  considerably. 

In  cross-examination :  Witness  said 
he  must  have  considered  the  site  for  the 
building  a  good  one,  or  he  would  not 
have  drawn  the  plan. 

Willem  Versfcla.  land  surveyor.  Cape 
Town,  stated  that  he  surveyed  the  de- 
fendant's property,  and  discovered  two 
pegs,  one  being  at  the  corner  of  Pepper- 
street  and  Bryant-street,  and  the  other 
further  down  Bryant-street.  He  was  sat- 
isfied  that  the  former  was  a  boundarv 
peg.  According  to  his  survey,  defend- 
fipt  was  well  within  his  boundary. 


Cross-examined :  The  difference  be- 
tween himself  and  Mr.  Bisset's  survey 
was  eight  incites. 

Armena  Bassardien,  widow  of  Salim 
Bassardien,  said  her  husband  did  not 
cut  away  tlie  face  of  the  old  quarry  at 
all.  The  ground  had  been  falling  down 
from  the  cliff  on  to  the  house. 

Counsel  were  heard  in  arigument  on 
the  facts. 

Hopley,  J.,  said  this  case,  like  all 
cases  brought  against  the  estate  of 
a  deoeased  man,  was  somewhat 
unsatisfactory,  because  the  man  who 
did  the  acts  complained  of  could  not 
be  present.  In  all  such  cases  the  Court 
was  very  exacting  in  having  proof  of 
the  plaintiff's  claim.  The  present  ac- 
tion was  for  damages  done  by  Bassar- 
dien in  his  lifetime.  Taking  it  that 
in  this  colony  one  property  had  to  give 
lateral  support  to  another,  there  was 
nothing  wrong  in  a  person  working  up 
to  the  boundary  of  his  own  land;  but 
if  he  injured  his  neighbour's  property 
by  removing  anything,  he  should  secure 
tne  safety  of  the  place  from,  which  he 
nK>ved  it.  In  the  present  case,  it  was 
clear  that  when  the  parties  bought 
the  property,  there  was  an  old  quarry. 
The  exact  locality  of  the  quarry  could 
not  now  be  very  well  located,  as  it  had 
been  converted  into  building  lots  and 
streets,  so  that,  when  a  ^et  of  wit- 
nesses told  the  Court  that  such  a 
building  was  outside  the  boundary  of 
the  quarry,  he  lK?ld  tlvat  their  evidence 
had  to  bo  carefully  scrutinized.  There 
had  been  a  cojiflict  of  eridejice  in  the 
case.  If  \ieup\e  bought  property 
on  the  ed^e  of  a  quarry,  they  could 
not  complain  if  in  the  natural  crum'o- 
ling  away  of  the  face  of  the  quarry, 
tl  oil*  property  was  injured.  The  plain- 
tiff held  that  the  quarry  was  outside 
Bas.^ardien's  property.  The  engineers 
differed  on  that  point.  That  the  ciiff 
did  extend  beyond  the  boundary  was 
evident  from  the  diagrams  put  in.  Fronfi 
the  evidence  given,  the  Court  waj  oor 
satisfied  that  the  accumulation  of  retuso 
was  wholly  due  to  the  act  or  de- 
fault of  Bassardien.  It  was  very 
difficult  lor  the  Ocoirt  to  say  that 
Bassardien  had  done  all  this.  If 
the  plaintiff  now  came  to  the  Court 
and  said  this  damage  had  been  done 
to  his  property,  what  was  his  duty 
when  he  saw  it  .being  done,  iiic^tead  of 
waiting  until  he  could  recover  heavy 
damages?  That  point  had  been  settled 
by  the  Supreme  Court  in  1895.  The 
duty  of  the  plaintiff  when  he  saw  Bas- 
sardien digging  at  the  foot  of  the  pro- 
I>erty  was  to  apply  to  the  Court  for 
an  interdict,  unless  Bassardien  agreed 
to  make  it  safe.  He  did  not  do  so, 
but  said  that  Bassardien  promised  a 
protedting  wall.  If  he  made  that 
agreement,  he  should  have  moved  to 
make  Bas&ardien  erect  the  wall.  If 
there  vras  this  contract,  it  was  veiry 
difficult   to  prove  it,    and   he   had   not 


as8 


"CAPE  TIMES"  LAW  REPORTS. 


proceeded  on  it,  and  he  (his  lord- 
bhip)  thou}?ht  tho  contract  was  (K)  RtaJe 
that  no  Court  would  j?ive  him  relief 
on  it.  Ho  felt  that  on  thei»e  points 
the  plaintiff'B  oa»e  was  weak.  It  was 
difficult  to  bt^iievo  that  he  would  have 
allowed  tho  case  to  gt)  ho  far  if  he 
had  thoiifi^ht  he  could  ^et  n»lief.  All 
these  thinK;i  made  it  diflicult  for  tlio 
Court  to  oolievo  that  ho  wai$  entitled 
to  judgment.  There  would  be  abso- 
lution from  the  instance,  with  costs. 

fPlaintirs    Attorney:    A.    W.    Stee.r; 
Defendant's   Attorney ;    R.    M.cLeod.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Actinj?  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


VISSEB  V.  VAN  DER  HEEVER 


190->. 
24th. 
2r)th. 
27th. 


(       1 

J  Oct. 

V.     It 

Beacons  —  Adverse  possession  — 
Long  continued  occupation — 
Onus  probandi. 

This  was  an  action  brought  by 
Christian  Abraham  Mauri tz  YiSBer,  of 
Kriegerspoort,  division  of  Hainover, 
against  Gert  Petrus  van  der  Heever, 
of  Beoste  Kuil,  also  in  the  division  of 
Hanover,  for  a  declaration  of  rights, 
interaic'    and  damages. 

The  plaintiff'8  declaration  was  as  fol- 
lows: 

1.  The  plaintiff  is  a  farmer  residing 
a*  Kriegerspoort,  in  the  division  of 
Haaiover,  and  the  defendant  is  a  farmer 
residing  at  Beestkuil.  in  the  same  di- 
vision. 

2.  The  parties  are  the  registered 
owners  resipectivcly  of  the  said  forms, 
which  adjoiji  each  oth^er. 

3.  The  plaintiff  annexes  hereto  a  plan 
(marked  **  A  *'),  showing  the  relative 
positions  of  the  said  farms,  and  he  says 
that  the  true  boundary  line  between 
them  is  represented  by  the  line  A,  B, 
O,  on  the  said  plan. 

4.  For  some  eight  or  ten  years  back 
the  defendant,  by  himself  and  his  ser- 
varets,  has  wrongfully  and  unlawfully 
trespassed  with  has  cattle,  and  other- 
wise u|>on  that  portion  of  the  plain- 
tiff's said  farm,  which  is  represe'nted  on 
the  said  plan  by  the  lett^re  A,  B,  C,  D, 


and  is  coloured  in  wJiite,  and  the  de- 
fendant has  enclosed  the  same  by  mcAns 
of  a  fence  erected  along  the  line  A, 
D,  L\  and  he  still  cikutinues  to  trc^spads 
and  encroach  upon  the  8aid   ground. 

5.  The  defendant  atiserts  that  the 
boundary  line  Ix^tween  the  two  farfii6 
ii»  the  «aid  line  A,  D,  C,  and  he  claitns 
the  whole  of  tlie  area  A,  B,  C,  D,  aj 
his  own  property. 

6.  By  reason  of  the  wrongful  and  un- 
lawful acts  of  trespass  aforesaid,  the 
plaintiff  has  been,  and  still  is,  deprived 
of  a  fertile  and  well-watered  portion 
of  his  said  farm,  and  has  Miffered 
damages  to  the  extent  of  £384. 

The  plaintiff  claims :  (a)  A  declaration  of 
rights  aa  to  the  boundary  line  between 
his  and  the  defendant's  said  farms ; 
(b)  that  the  true  boundary  line  is  the 
said  line  A,  B.  C,  on  the  plan  annex- 
ed; (c)  an  order  compelling  the  defen- 
dant to  remove  the  said  fence  back  to 
the  true  boundary,  as  above  defined ; 
(d)  a  perpetual  interdict  restraini^ig  the 
defendant  from  trespassing  upon  the 
eaid  portion  of  the  farm  Kriegerspoort 
marked  A.  B,  C,  D,  on  the  plan ;  (e) 
the  sum  of  £384  as  dauMrges  aforesaia : 
(f)  alternative  relief;  (g)  coaiiA  of  suit. 

The  defendant's  plea  was  as  follows : 

1.  The  defendant  admits  paragraphs  1, 
2,  and  5  of  the  declaration,  save  that  he 
now  resides  in  Hanover. 

2.  The  defendant  admits  the  relative 
positions  of  the  farms  as  shown  on  the 
plan  A,  but  he  denies  that  the  line  a, 
D,  c  is  the  true  boundary,  and  says  that 
the  line  a.  d,  c  is  the  true  boundary. 

3.  The  defendant  says  that  sinoe  1865, 
when  he  and  his  brother  bought  the 
said  farm  Beestekuil,  he  and  nis  co- 
owners  have  uninterrupted] V,  and,  aa  of 
right,  used  and  occupied  ana  grazed  their 
cattle  on  the  said  farm  up  to  the  line 
a.  d,  c,  and  since  1873,  when  the  de- 
fendant became  the  sole  owner  of  the 
said  farm,  the  defendant  has  likewise 
uninterruptedly  and  of  right  used  and 
occupied  the  said  farm  up  to  the  said 
line,  and  in  or  about  the  years  1890  and 
1891  the  defendant  fenced  in  his  said 
farm  alotng  the  line  a,  d,  c,  and  the 
then  owner  of  plaintiff's  land,  plaintiff's 
predecessor  in  title  paid  his  share  of  the 
cost  of  the  said  fence,  and  the  plaintiff 
bought  his  said  farm  with  knowI<Kige 
of  the  foregoing.  Save  as  aforesaid  the 
defendant  denies  the  allegations  in  para- 
graphs 4  and  6  of  the  declaration. 

^  Wherefore  defendant  prajrs  that  plain- 
tiff's claim  may  be  dismissed,  with 
costs. 

For  a  claim  in  reeonvention  defendant 
says :  (1)  He  begs  to  refer  to  the  plead- 
ings in  convention,  wherefore  he  prays: 
(a)  For  an  order  declaring  the  line  a,  d, 
c^  to  be  the  boundary  between  the  par- 
ties; (b)  alternative  relief  and  costs  of 
suit. 
The  plaintiff's  replication  was: 
1.  Ab  to  paragraph  3  of  the  plea,  the 
plaintiff  admits  that  the  defendant  erec(- 


'CAPS  TIMES"  LAW  REPORTS. 


839 


ed  a  fence  along  the  line  a,  d,  c,  but 
say^  that  the  said  fence  was  erected 
-without  the  consent  of  the  plaintiff's 
picdecrsRor  in  title,  who  was  then  the 
owner  of  the  plaintiff's  land.  The  baid 
fence  was  erected  with  the  consent  of 
one  B.  J.  du  Plessis,  who  was  at  tho 
time  in  f>ccupation  of  the  said  land,  and 
who  gave  his  consent  and  contnbuted 
his  share  of  the  cost  in  consequence  of 
certain  incorrect  representations,  as  to 
the  boundary  line  between  the  said 
farms  made  to  him  by  the  defendant, 
but  the  said  Du  Plessis  had  no  right 
nor  authority  to  give  such  consent  nor 
to  pay  such  share  of  the  cost,  and     the 

Elaintiff   is  in   any  case   not  bound   by 
is  actions  herein. 

2.  Save  as  above  set  forth,  and  save 
as  to  adm'ssions,  the  plaintiff  joins  issue 
with  the  defendant  upon  his  plea,  and 
specially  denies  that  the  defendant  or 
his  co-owners  have  uninterruptedly  and 
as  of  right  used  or  occupied  tho  said 
ground  a^  alleged  either  since  1865  or 
since  1873. 

For  a  plea  lo  claim  in  reconvention, 
plaintiff  said : 

1.  The  plaintiff  craves  leave  to  refer 
to  the  pleadings  in  convention. 

Wherefore  he  prays  that  the  defend- 
ent*8  claim  may  be  dismissed,  with 
costs. 

The  rejoinder  wad  general. 

Mr.  Schreiner,  K.C  (with  him  Mr. 
Burton)  for  plaintiff.  Mr.  McGregor 
(with  him  Mr.  Sutton)  for  defendant. 

Christian  Abraham  Mauri tz  Visscr 
(the  plaintiff)  said  that  he  attended  the 
sale  at  which  the  farm  Kriegerspoort 
was  sold,  in  the  estate  of  J.  D.  van  der 
Ileever,  about  ten  years  ago,  witness's 
wife  being  a  daughter  of  C.  J.  van  der 
Heever.  Witness  wae  then  living  at 
Middetwater.  He  knew  that  there  was 
a  fence  on  the  farm  Kriegerspoort. 
The  question  was  put,  he  thought  by 
Dal  ton,  as  to  how  the  farm  was  to  be 
sold.  Th^  auctioneer  (Mr.  De  Vil- 
liers)  said  that  he  was  going  to  sell 
the  farm  according  to  diagram.  Wit- 
ness did  not  bid.  The  highest  bid 
reached  was  £6,(XX).  offered  by  Dalton. 
The  farm  was  subsequently  sold  to  Mrs. 
Du  Plemis  (witness's  mother-in-law).  His 
wife  afterwards  bought  the  farm  in 
1895  from  her  mother  for  £3,700,  and 
in  1900  witness  became  the  owner,  the 
purchase  price  being  £3,900.  Witness 
went  to  the  farm,  and  remained  in  pos- 
sec'.'srion  until  the  war  had  broken  out. 
Mr.  Cillie  then  occupied  the  farm  for 
two  yearhi  and  nine  months,  and  witness 
returned,  and  was  now  in  occapation. 
Witness  described  the  steps  which  he 
took  to  secure  tlie  removal  of  the  fence. 
As  to  the  land  in  dispute,  he  con- 
sidered that  it  was  of  great  value,  see- 
inor  that  it  comprised  the  river  veld  and 
gave  access  to  tho  water. 

By  the   Court:    He   valued   the   land 
in  question  at  about  £1,600. 


[Buchanan,  A.C.J.  (to  witness) : 
Would  it  not  h&  a  fair  thing  to  divide 
the  laud  between  you  and  defendant?] 

I  thought  wo  .should  do  so.  Tliat  was 
why  we  got  a  surveyor.  Everything  was 
in  the  handb  of  my  agents. 

[Buchanan,  A.r.J. :  Of  course,  the 
(luesttion  I  have  to  decide  ii*  as  to  the 
legal  -rights,  but  I  think  that  that 
would  be  a  very  fair  basis  of  comprom- 
ise between  the  parties.] 

Mr.  Murray,  land  surveyor.  Coles- 
berg,  said  that  it  was  inconsistent 
with  the  data  of  the  diagram  of 
Beeste  Kuil  that  the  disputed  ground 
should  be  in  Beeste  Kuil.  It  was 
not  completely  consistent  with  the 
diagram  of  Kriegerspoort  that  the 
ground  should  be  in  that  farm,  but  't 
was  less  inconsistent  that  the  lana  should 
belong  to  that  farm  than  that  it  should 
belong  to  Beeste  Kuil. 

By  the  Court:  The  data  which  he 
had  obtained  from  actual  survey  did 
iK>t    agree  with   the  diagrams. 

Mr.  Schreiner  put  dn  oorrespondonoe 
which  had  taken  place  since  the 
trial  was  commenced,  with  a^  view 
to  a  compromise.  The  plaintiff's 
attorneys  had  written  to  the  defendant's 
attorneys  suggesting  that  as  this  litiga- 
tion would  be  a  possible  source  of  fric- 
tion between  neighbours  and  relatives 
in  the  future,  the  land  in  dispute  should 
be  equally  divided  between  plaintiff  and 
defendant,  fo  that  the  parties  could 
have  access  to  the  perennial  water,  each 
party  to  pay  his  own  costs  and  the 
expenses  of  Mr.  Surveyor  Murray  to 
be  equally  shared.  The  reply  of  the  de- 
fendant's attorneys  was  that  he  (defen- 
dant) felt  that  he  had  been  forced 
into  court  by  the  plaintiff,  and  that  at 
this  stage  he  could  not  entertain  the 
proposea  compromise.  A  further  letter 
was  addresr<ed  by  plaintiff's  attorneys  t-o 
the  other  side,  allowing  them  until  ten 
o'clock  this  moirmng  to  consider  the 
offer.  No  further  communication  had, 
however,  been  received  from  defendant's 
attorneys. 

Hannah  Catherina  Vieser  (wife  of  the 
plaintiff),  Pieter  Jacobus  Visser  (cousin 
of  the  plaintiff  and  defendant),  Abrain 
Jacobus  Cillie,  farmer,  formerly  of 
Kriegerspoort,  and  William  Muller,  clerk 
in  the  Deeds  Office,  were  also  called  on 
behalf  of  the  plaintiff. 

The  defendant,  Gert  PetruH  van  der 
Heever,  said  that  he  was  a  retired  farm- 
er, and  now  lived  in  Hanover.  Beeste 
Kuil  was  bequeathed  in  his  father's  will 
to  witness  and  his  brother,  but  it  was 
afterwards  sold  to  them  by  his  father. 
Kriegerspoort  was  at  that  time  owned 
by  his  father. 

Mr.  McGregor  was  about  to  put  in 
a  certain  **  koop  brief"  or  agreement  of 
i^ale  of  Beeste  Kuil  to  witness  and  his 
brother,  when 

Mr.  Schreiner  obj[ected  that  the  docu- 
ment was  inadmissible.  The  document 
was  signed,  the  witness  h&d  stated,  by 


840 


"CAPE  TIMES"  LAW  BEP0RT8. 


f 


hitf  f&tber  and  mother ;  it  was  produced 
from  the  private  custody  of  tno  other 
side ;  it  had  not  been  rcj^istored ;  and 
couiMol  iir^i^cd  tliat  the  Court  had  no 
opportunity  of  testing  it. 

Buchanan,  A.C.J. ,  noted  tlie  objection, 
but  ruled  that  the  document  was  admis- 
sible. 

Defendant,  in  further  evidence,  said 
that  he  became  owner  of  the  whole  of 
lieeste  Kuil  in  1873.  They  had  occupied 
tiic  farm  up  to  the  limits  of  Booi's  Kraal. 

rostra  (October  27th). 

Mr.  Schreiner  addressed  the  Court  in 
argument  on  the  facts. 
Without  calling  upon  Mr.  McGregor, 
Buchanan,  A.  C.  J. :  Mr.  Schreiner 
has  argued  this  case  and  raised  all  the 
:)oints  moat  carefully  and  fiiUy,  and 
have  liartoned  very  attentively  to 
his  argument;  but  he  has  not 
convinced  mo  that  he  has  .succeeded 
in  this  action.  The  farm  Kriegerspoort 
is  held  by  the  plaintiff;  the  farm  Bieesfce 
Kuil  belongs  to  the  defendant.  The 
dividing  line  between  these  two  farms 
is  in  dispute.  The  boundary  beacon  on 
the  west  side  and  the  one  on  the  east 
side  are  admitted,  but  the  line  running 
between  these  two  beacons  takes  an 
an^le,  and  it  is  the  angle  beacon  which 
is  m  dispute.  A  corner  beacon  at  Wol- 
veberg  is  marked  "  A,"  and  the  other 
corner  beacon,  at  Hoogmoodsfontein,  is 
marked  "  C."  The  plaintiff  claims  that 
the  line  should  run  "A.B.C.,"  and  the 
defendant  says  that  the  line  is  "  A.D.C." 
These  two  points  are  aliout  half-way 
between  the  two  places,  and  involve  a 
dispute  of  some  386  morgcn.  The  de- 
fendant is  in  possession  of  the  disputed 
land.  The  present  occupation  is  against 
the  plaintiff,  and  the  plaintiff  must 
come  into  court  and  establish  his  right 
to  alter  the  present  occupation.  More- 
over, the  line  which  is  claimed  by  the 
defendant  is  fenced  off,  and  has  been 
fenced  off  for  some  time.  As  the  plain- 
tiff is  not  in  possession  of  the  land,  it 
is  desirable  that  we  should  go  back  to 
the  original  grant  of  these  farms,  to  see 
how  far  the  plaintiff's  claim  is  sustained 
by  the  original  grants,  by  any  of  the 
diagrams  which  have  passed  between  the 
owners  since  that  time,  or  by  the  con- 
duct of  the  parties  ever  since.  The 
two  farms  wore  probably  occupied  be- 
fore any  grants  were  given  to  them. 
Kriegerspoort.  the  plaintiff's  farm,  was 
granted  in  1841,  and  Beeste  Kuil  was 
granted  first  in  1842,  and  afterwards  in 
1846.  From  the  diagram,  it  will  be  seen 
that  these  farms  must  have  been  sur- 
veyed some  time  before  the  grant.  In 
tlie  survey  by  Van  Abo.  in  1830,  of 
Beeste  Kuil,  the  farm  Kriegerspoort  is 
shown  to  be  adjoining,  and  when  we 
look  at  that  of  the  farm  Kriegerspoort 
we  see  that  the  farm  Beeste  Kuil  is 
marked  as  adjoining  Kriegerspoort. 
Eventually,  the  whole  of  those  farms 
niust   have  been  occupied     before      the 


grants   wer^  got.       The       surveyor    of 
Beeste   Kuil  and   Kriegerspoort  is      the 
same  survevor,  and  the  two  original  dia- 
grams  made  by   him   were  evidently  in- 
tended to  fit  in  one  with  another,  so  as 
to  leave  no  vacant    space  between  Krie- 
gerspoort and  Beeste  Kuil.     His  Lord- 
ship went  on  to  refer  to  the  course  taken 
by  the  stream  tiirough  the  property,  as 
marked  on   the  diagrams,   and   proceed- 
ed :   From  the  evidence  of  the  surveyor 
who  haa  now  surveyed  the    land,  I  must 
say  that  thexe  is  no  indication  whatever 
of  any     change  of  the  course  of      the 
stream,    as    now    found    in    actual  sur- 
vey.      It    mu^t    be  Tunning      more    or 
less  in   the  actual  position  in  which    it 
was    when    these     taroK    were    granted 
originally.     Mr.   Murray,   the    surveyor, 
said  that  the  stream  could  not  be  seen 
for  the  whole  distance,  and  the  diagrams, 
as  they  stand,  are  certainly  in  favour  to 
some  extent,  but  not  altogether,  of    the 
plaintiff's  claim.     But  when  we  look  at 
the  position  of   the  parties,  the  occupap 
tion     seems     to     me     to     have     been 
altogether    against    the    plaintiff's  claim 
and  in  favour  of  the  defendant's  claim. 
The    grants,   as    I    said,    were    given   in 
1841    and    1842     and     1846,     if    I     am 
correct  in  my  da<tes.      The  farm  Beeette 
Kuil   was  bought  by  old   Mr.   Van   der 
Heever,  and  in  1860  he  bought  the  flarm 
KriegorspooTt.        While    Mjt.    Van    der 
Ileever  was  owner  of  both  ihese  farms, 
•he  entered  into  an  agreement  with  two 
of  hi^  sons,  the  present  defendant  and 
Chri^toffcl,  to  sell  them  the  farm  Bee»te 
Kuil   in    half-shares.       It      is      common 
among    gentlemen    like    Mr.    Van    der 
Heever  to  dispow?  of  their  property  to 
their    £>ons    as   a    kind    of   aalf-4)equest. 
half-sale,  as  was  done  in  thds  case,  ana 
a   "  koop    brief "    was  entered   into    be- 
tween old  Mr.  Van  der  Heever  and  his 
wife  and  the  two  sons.     From  l^e  old 
diagram  of  1865  I  think  it  is  clear  that 
the  corner  beacon  which  is  now  in  dis- 
pute iis  shown  by  t>he  "  koop  brief  "  to  be 
the  beacon   now   claimed   by   the  defen- 
daiift.  m-arked   D.     Here,   then,   in   1866, 
we  have  the  owners  of  both  properties 
describing    the    beaxK)nc!,    and   therefore 
the   line   which   divides   the  two    farms, 
and   tha/t    description   is   attoget'her     m 
fevour  of  the  defendant's   claim.      The 
tranr^fer    was    made    to    the    defendant 
and  hie  brother  of  Beesite  Kuil  in  1866. 
Three    years    after,    in    1869,   a    further 
division  of  the  property  seems  to  have 
been  desired  bv  old  Mr.  Van  der  Hee- 
ver,   and   he    directed    Surveyor  Breda 
to  cut  off  a  portion  of  the  farm   Krie- 
gerspoort.     The  object    for  wWch    this 
part   was  cut   off    is   not  clearly   stated 
m  the  evidence.      On  the  one  side  it  is 
e^tcd  that  the  object  was  to  hand  over 
this   to  Beeste  Kuil    and   give    the   re- 
mainder to  the  other  brother,  Johannes, 
and  on  the  other  hand  it  is  ata4»d  that 
the    object  was  to   reserve   a  residence 
for  the  old  gentleman  and  give  the  re- 
mainder of  Kriegenspoort  to  Johannes, 


"CAPB  TIMES"  LAW  REPORTS. 


M\ 


the  stop-hrather  of  the  dofondant,  and 
Chrisloffel.  Jobaunos,  however,  would 
not  fall  in  with  thib  aKrtM3meiit,  and 
nothing  was  done  beyond  the  surv^oy. 
When  we  look  at  the  survey,  we  fcod 
tha<t  it  lays  down  a  line  in  accordance 
with  the  line  now  claimed  bv  the  de- 
fendant. On  this  diagram,  fitamed  by 
Breda  at  the  time,  which  Mr.  Sohreinei* 
suggests  was  made  for  the  purpose  of 
obtaining  an  amended  title  to  Beeste 
Kuil,  he  (Mjt.  Breda)  says :  "  Surveyed 
by  me  aooording  to  the  exicsting  beacons 
held  by  the  proprietors  of  this  and 
neighbouring  far  me,  etc."  TJiis  was  in 
1869.  This  diagram,  therefore,  is  against 
the  plaintiff^s  claim.  After  the  proposed 
arnangement  fell  through,  Onnstoffel 
Van  der  Heever  sold  back  to  his  fat^her 
his  half-share  of  Beeste  Kuil,  which  was 
tran^erred  to  the  faiher  absolutely  for 
£600»  the  original  {)rioe  being  £225. 
He  must  have  sold  it  in  1872,  I  pre- 
sume, according  to  the  diagram  put  in. 
The  father  immediately  transferred  this 
half  of  Beeste  Kuil  to  the  defendant, 
who  has  ance  1873  been  the  owner  o! 
the  registered  title  of  the  whole  farm 
of  Beesie  Kuil.  Chiistoffel  bad  a.t  tih«t 
time  received  transfer  of  the  f^irm 
Kriegerspoort,  and  in  the  receipt  which 
has  been  put  in,  signed  bv  old  Mr.  Van 
der  Heever,  he  acknowledges  receipt 
of  the  purchase  price  of  this  farm,  the 
whole  of  Kriegerepoort.  Now,  it  is 
suggested  that  tnis  receipt  in  the  words, 
"the  whole  of  Kriegerepoort/'  includes  the 
whole  of  the  ground  now  in  dispute ; 
but  I  think  it  is  quite  as  reasonable  to 
say  that  it  moans  the  ^ound  which 
had  been  cut  off  from  Kriegerspoort, 
and  is  now  given  to  it.  At  the  Ume 
C^ri«itoffel  was  owner  of  half  of  Beeete 
Kuil.  I  think  it  is  olearly  proved  thai 
•he  ci aimed  or  exercised  dominium  over 
the  ground  now  in  dispute,  as  part 
owner  of  Beesfte  Kuil,  and  I  think  he 
also  took  steps  to  whitewash  the  beacon 
now  claimed  by  defendant.  Mr. 
Schrciner  suggeeted  that  the  original 
intention  of  the  surveyor  was  to  give 
access  to  both  farms  to  the  western 
branch  of  the  stream  marked  No.  1. 
Now,  if  th&t  had  been  the  intention  of 
the  surveyor,  nothing  would  have  been 
easier  than  to  have  made  the  river  the 
boundary  line  between  the  two  parties, 
but  he  has  not  done  thait.  Up,  there- 
fore, to  the  time  of  Chri^boffel  s  owner- 
ship of  nart  of  the  fiarm  Beetste  Kuil. 
I  think  there  is  no  doubt  that  Ood's 
Kraikl  beacon  was  the  true  beacon  and 
boundary  of  this  farm.  I  am 
not  prepared         to      ^   say,  on 

this  evioence,  that  there  is  no  support 
for  the  oont^^ntion  that  at  no  time  after- 
wards did  he  dispute  that  beacon.  ^  It 
is  no  doubt  unfortunate  for  plaintiff 
that  Christoffel  is  dead,  and  several  wit- 
nesses who  might  have  thrown  light  on 
the  subject  have  not  been  before  the 
Court.  The  defendant  has  been  in  oo- 
•upation  since  1865  onwards.  We  have 
produced   for  the     plaintiff,      witnesses 

H3 


who  say  that  they  saw  a  beacon  at  a 
place  wnere  no  beacon  has  been  seen  by 
anybody  else,  and  we  have  against  that 
the  fact  that  a  beacon  has  always  existed 
at  the  other  corner.  After  Christof- 
feKs  death  his  widow  took  possession  of 
his  share  of  Kriegerspoort,  and  she  im- 
mediately transferred  it  to  her  minor  son, 
as  she  was  about  to  enter  iato  a  second 
marriage  with  one  Du  Plessis.  She 
was  married  out  of  community  to  Du 
Plessis,  and  consequently  by  the  marriage 
Du  Plessis  took  no  interest  in  the  farm 
itself,  or  in  the  life  interest  in  the  farm 
which  his  wife  had  reserved  to  herself, 
and,  therefore,  it  is  quite  fair  to  con- 
tend that  Du  Plessis  was  not  in  the 
position  of  a  person  who  can  bind  the 
owners  of  the  farm ;  but  his  conduct  is 
important,  as  showing  what  the  per- 
sons who  were  interested  at  that  time 
considered  to  be  the  true  beacon  line. 
While  the  property  was  still  in  the  hands 
of  the  son,  the  line  now  claimed  by  the 
defendant  was  fenced  some  12  or  13 
years  ago,  and  Du  Plessis  actually  paid 
half  the  cost  of  fencing  that  land.  The 
line  now  claimed  by  the  defendant  had 
been  fenced  when  the  plaintiff  bought 
in  1900,  and  it  has  oontmued  so  fenced 
erer  since.  After  briefly  sketching  the 
principal  points  in  favour  of  the  conten- 
tions of  the  respective  parties.  His  Lord- 
ship added:  I  do  not  decide  this  case 
altogether  on  the  (question  of  prescrip- 
tion, althoupfh  I  thmk  on  the  question 
of  prescription  a  strong  case  has  been 
made  out.  I  may  say  that  the  evidence 
of  long  user  and  occupation  is  so  strong 
as  to  show  that  there  is  no  reason  why 
ithe  past  occupation  should  be  interfered 
with.  I,  therefore,  on  the  whole  case, 
hold  that  the  defendant  has  sucoeedea 
in  this  matter,  and  judgment  will  be 
given  in  his  favour,  with  costs,  and  on 
his  claim  in  reconvention  I  declare  the 
bounday  line,  ADC,  shown  on  Sur- 
veyor Murray's  plan  marked  "  a,"  and 
dated  May,  1905,  to  be  the  true  boun- 
dary line  Dotween  the  farms. 

On  Mr.  McGregor's  application,  de- 
fendant was  granted  his  expenses  as  a 
necessary    witness. 

[Plaintiff's  Attorneys:  Syfret,  Godlon- 
ton  and  Low ;  Defendant  s  Attorneys : 
Herold  and  Gie.] 


SECOND    DIVISION. 


[Before  the  Hod.  Mr.  Justice  Hoplbt.] 


HAYES  V.  BHOODIE. 


f        1905. 

{Oct.   24th. 


fThi«  case  not  having  been  concluded 
at  the  time  of  going  to  press,  the  report 
is  neocesarily  hekl  over.]— S.H.R. 


R42 


CAPE  TIMES"  LAW  REP0ET8. 


Jl'TA   AND  CO.  V.  DUITMAIOXD. 

Mr.  Jont.'s  mov<'(l,  as  a  matter  of 
urgency,  on  be-half  of  Mousrs.  J.  C. 
Jiita  ami  Co.,  for  leayo  to  attach  tho 
rjroc<H'ds  of  a  certain  judj^ment  of  Hie 
»5uprouie  Court  j^iven  in  favour  of  llil- 
yard  lloino  Drunimond. 

Tho  applicant's  affidavit  fital-od  that 
the  deferidanl  owed  him  £40  Ibn.  6d., 
and  tiiat  tho  defendant  itad  boon  grant- 
ed £80  damag(*s  againnt  one  I^orcy 
Bail^  during  the  week,  aiid  tho  present 
application  was  to  attach  tiio  amount 
owing  from  tlio  damages  awarded. 

Iloploy.  J.,  .said  ono  of  the  cxhibita 
of  the  ca.-e  was  an  assigiuiio^nt  of  any 
judgment  received  to  Im  attorney  for 
vdlue  received.  It  was  a  very  peculiar 
assignment. 

Mr.  Joiios :  It  id  peculiar,  when  he 
cannot  pay  hie  just  dobtd. 

A  rule  nin  calling  on  Bailv  and  his 
law  agent  and  Drununond  to  show  cause 
why  the  amount  should  not  bo  attached 
■was  granted,  the  return  day  being  fixed 
for  November  2. 

Posted   (November  2nd). 

Mr.  P.  ^  T.  Jone«  for  applicants; 
tho  respondent  Drummond  appeared  in 
periion. 

l>r.  Greer  (for  Bailey)  said  that  he  ap- 
peared merely  to  submit  to  any  judg- 
ment that  the  Court  might  ^ive. 

Mr.  P.  Jones  read  an  affidavit  by  the 
pt^rdtionere,  in  which  they  aaid  tltat  they 
had  obtained  judgment  for  £46  against 
nvpondent  in  the  R.M.'s  Court  at  \Vyn- 
berg. 

Rosi)ondent  read  an  answering  affi- 
davit, in  which  he  set  forth  his  position 
at  considerable  length.  He  declared 
that  petit ioner.*  had  promi.sed  to  renew 
a  cxM-tain  promissory  note. 

Mr.  Jon(»s  read  a  rojilying  affidavit  by 
the   1)1  titioners. 

Rfsix>iwlent  .said  that  there  were  only 
two  courses  o|)on  to  him  to  carry  for- 
ward the  actions  which  he  had  agaitist 
Pjiiley  and  Wood.  He  had  cither  not  to 
nnH't  tlnvo  arcounts,  or  he  Ind  to  sue 
in  formal  2^'' "l^'''"**'  Respondent  pro- 
ci'oded  to  argue  the  quest'on  of  whet- 
her he  could  have  assigned  his  rights  in 
r<'gard  to  certain  actions  to  his  atti>niey, 
and  cited  certain  English  c-ases.  Ho 
Anid  th^'\t  ho  had  Ivad  actions  against 
<»thero  in  the  Supreme  Court,  but  in 
tho  meantime  his  creditors  had  sued 
him  in  the  Magi.st  rate'.s  Court.  Hence 
his  present  financial   difficulties. 

Without  calling   upon    Mr.    Jones. 

Buchanan,  A.C.J. ,  said  that  tho  rule 
would  bo  made  absolute,  and  the  pro- 
Iierty  declared  exerut^ible  to  the  judg- 
ment obtained  in  "the-  Ma^ristrate's  Crniit 
by  applicants  against  reai>ondentr:. 
"•">sts  were  allowed  to  Railev  and  Jones. 


f      1905. 
.    -{Oct.    24th. 
I     „      2r>th. 


BOSWABVA  V.  PALMER 


Commission — Conditional  promise 
to  pay. 

This  was  Oiii  action  brought  by  Charles 
John  Bo;)warva,  who  resides  at  Obser- 
vatory-road,  against  Charles  Thomas 
Palmer  to  recover  £100,  amount  due  on 
a  written  unde^rtaking. 

Tho  plaintiff's  declaration  stated  that 
in  April,  1903,  tho  defendant  agreed 
to  pay  to  plaintiff  £100,  if  he  (plaintiff) 
could  arrange  for  the  sale  of  certain 
promises  to  defendant,  occupied  by 
one  AlacLood,  for  £4,000,  and  arrange 
for  a  bond  to  be  passed  on  the  property 
for  £3,500.  The  defendant  then  became 
liable  to  plaintiff  for  £100,  and,  not 
having  it  then,  gave  a  written  under- 
taking to  pay  it  within  six  mouths, 
which  he  had  not  done. 

The  defendant's  plea  alleged  that 
plaintiff  was  acting  as  agent  for  Mac- 
Leod, and  effected  the  sale  of  the  pro- 
perty to  defendant,  for  which  service 
he  received  £100  from  MacLeod.  He 
denied  that  he  agreed  to  give  plaintiff 
£100.  He  admitted  thait  he  promised 
plaintiff  £100  if  ho  could  effect  a  bond 
for  £3,500,  but  he  denied  that  plaintiff 
had  done  eo. 

Tho  replication  denied  that  plaintiff 
was  engaged  by  MacLeod,  but  admitted 
that  he  received  £100  from  MacLeod. 

Mr.  Searle  (with  him  Dr.  Groer)  was 
for  plaintiff;  Mr.  W.  P.  Buchanan  (with 
him  Mr.  Jones)  "wa^  for  defendant. 

The  plaintiff  stated  he  wa^  a  builder 
and  contractor  and  speculator.  In 
April,  1903,  tiio  defendant  approached 
him,  and  asked  him  to  purchase  Mac- 
Leod's property  for  him  for  £4,000. 
He  told  him  that  he  had  only  £700 
cash,  and  that  it  would  be  necessary 
to  arrange  for  a  bond  of  £3,500,  and 
told  witness  that  if  he  could  raise  it 
ho  would  pay  him  £100.  Witness  suc- 
c<x»ded  in  getting  MacLeod  to  sell  the 
property  for  £4,(X)0,  and  aleo  arranged 
tho  bond  for  £3,500.  MacLeod  promised 
witness  £100,  provided  he  could  get 
tho  sale  fixed  up  within  a  fortnight. 
He  did  so,  and  got  the  £100.  As  t^ie 
defendant  did  not  arrange  about  tJie 
iKMid  in  time,  the  arrangecncnts  fell 
through,  and  defendant  at  -witness's  sug- 
gestion took  a  partner  into  the  pro- 
perty.  Witness  arranged  a  bond  later 
on  for  £2,4(X).  Witness  then  asked  for 
h)A  £100,  and  defendant  informed  him 
that  he  was  hard  pushed  for  money, 
and  told  witness  he  would  pay  him 
later  on.  Witness  went  on  a  trip  for 
six  months^  and  rotiumed  for  six  weeks, 
during  which  time  he  a^ain  asked  for 
the  money.  Witness  ag&in  went  awav 
for  six  months,  and  on  his  return  heard 
that  defendant  had  got  an  inheritance. 
Ho  again  applied  for  tho  money,  but. 
receiving  no  reply,  put  the  ma^r  in 
the  hands  of  his  solicitor.    Van  Reenan 


I 


"CAPE  TIMES"  LAW  REPORTS. 


843 


(dofendant's  partner)  told  witness  thajt 
ho  had  nothing  to  do  with  the  promis- 
sory  IV.A.C, 

Cross-examined :  MacLeod  did  not 
pive  the  £100  as  brokerage ;  he  gave 
it  as  a  present.  Witness  denied  ihat 
he  showed  defendant  his  property,  atid 
suggested  hits  buying  it.  Witness  told 
defendant  that  MacJLfeod  had  proonised 
'him  £100.  All  was  put  down  in  black 
and  white.  "  "^l^^Y  '  were  to  get  2i 
pe^T  cent,  for  raising  the  money  and 
stamps,    etc. — the    usual    thing. 

Mr.  Buchanan:  And  what  were  you 
to  get  your  2^  per  cent,  for? 

W'itness :  For  introducing  them  to 
the    firm. 

Mr.  Buchanan :  So  you  were  to  get 
£100  for  taking  him  to  see  your  con- 
veyancer, and  saying  here  is  a  man  who 
wants  so  and  so? 

Proceeding,  witness  said  that  ho  had 
had  nothing  to  do  with  raising  the 
mortgage.  He  had  not  known  thai 
Mr.  Ilofmeyr  valued  the  whole  pro- 
perty at  £3.700,  and  that  only  a  por- 
tion of  the  land  had  been  told  to  Palmer 
for  £4,000.  The  bond  was  "fixed  up" 
before  Palmer  signed  the  deeds. 

[Ilopley,  J. :  Are  you  disputing  that 
they  agreed  ito  lend  the  money?] 

Yes,  thoy  were  never  satisfied  with 
the    security. 

fllopley,  J :  And  that  part  of  the 
work  for  which  ho  claimed  £100  was 
never  done 

That  is  my  contention. 

Witnosfe  (continuing)  said  ho  would  be 
greatly  surprised  to  hear  that  when  wit- 
ness was  trying  to  get  the  loan  of 
£3.500,  Silberbauer,  Wahl  and  Fuller 
were  trying  to  get  a  bond  of  £2,450. 
Witneas  knew  nothing  of  Silberbauer, 
Wahl  and  Fuller's  endeavours  to  got  the 
bond.  Witness  denied  that  he  told 
Palmer  he  could  get  money  when  others 
could   not. 

Mr.  Buchanan :  You  were  confident 
you  could  ^et  it? — I  was  confident  when 
Mr.   Partriage  told  me  he  had  it. 

You  are  a  biisine$:s  man,  and  you 
know  that  people  could  not  get  the 
full  value  of  a  place  as  a  mortgage? — 
Money   wa^  very   plentiful  then. 

[Hopley.  J. :  Do  you  mean  to  say 
that  people  would  advance  35-37tht*  of 
the   money?] 

I   know  many   instances,   my  lord. 

Mr.  Buchanan :  How  is  it  you  took 
so  long  to  bring  this  action? — I  was 
away  for  twelve  months. 

Ilow  long  has  Partridge  gone? — I 
cannot  say. 

fHopley,  J. :  Is  this  Partridge  the 
man  about  whom  one  sonietimc^s  reads 
in  tho  newspapers  of  his  disappear- 
ance?] 

Witness:  Yes,  mv  lord. 

Mr.  Buchanan :  Isn't  it  because  Par- 
tridge has  disappeared  that  you  bring 
this  action? 

Witness:  If  Partridge  was  here, 
there  would  bo   no  action. 

Mr^   Buchanan:   That's  what  wo  say. 


The  witness  added  that  after  his  re- 
turn to  Capo  Town  he  heard  that  de- 
fendant had  inherited  £4,000,  conse- 
quently he  thought  it  time  defendant 
paid  up.  Continuing,  he  said  it  was 
the  intention  that  the  £500  was  to  be 
paid  on  June  30.  and  as  it  was  not 
forthcoming  by  July  14,  tho  arrange- 
ments fell   through. 

W'a&n't  it  on  account  of  the  absence 
of  one  of  the  partners  in  the  property 
that  the  arrangements  wore  delayed? — 
No.  It  was  because  the  money  wa<5  not 
forthcoming. 

After  that,  didn't  vou  suggest  to 
him  that  he  should  take  in  Van 
Reenan?— No.  I  advised  him  to  take 
in  a  partner.  Continuing,  witness  said 
he  did  not  know  if  Silberbauer,  W^ahl 
and  Fuller  charged  anything  for  pre- 
paring tho  loan. 

Hector  McLean  MacLeod,  shipwright, 
srtated  ho  was  owner,  in  common  with 
one  Mr.  Keswick,  of  the  property 
which  was  the  cause  of  the  present  dis- 
pute. The  plaintiff  had  never  acted 
in  the  matter  for  witnea*;  he  had  gone 
to  witness  and  informed  him  that  he 
had  a  purchaser  for  the  place  at  £4,000. 
Witness  wanted  £4,300.  but  consented 
to  acce])t  £4,000.  Witness  promiised 
plaintiff  £100  if  he  succeeded  in  selling 
the  property.  W^itness  mentioned  the 
matter  m  a  general  way  to  Palmer. 

In  cross-examination,  witness  stated 
he  purchased  the  property  for  £4,800 
about  twelve  months  before  he  sold  to 
defendant.  He  kept  a  couple  of  blocks 
of  land.  Palmer  asked  witness  for 
time  to  pay.  and  witiiet>s  gave  his  as- 
sent. 

Edgar  Jones,  attorney,  of  Mesf^rs. 
Fairbridge,  Arderne  and  Lawton,  stated 
he  conducted  certain  correspondence 
with  Silberbauer,  Wahl  and  Fuller  on 
behalf  of  Mr.  MacLeod. 

Mr.  Searle  closed  his  case. 

For    the    defence, 

Andrew  Chatterton  Fuller,  of  the  firm 
of  Silberbauer,  W^ahl  and  Fuller,  stated 
that  in  April,  1903,  Mr.  Partridge  was 
in  their  emplojr,  and  had  charge  of 
this  case.  Witness  knew  nothing  of 
the  present  case,  but  put  in  the  cor- 
respondence. If  the  papers  for  a  loan 
were  drawn  up,  and  Palmer  failed  to 
avail  himself  of  it,  ho  would  be  charged 
with    it.  There    was   no   charge    re- 

corded   in  the   firm's  accounts      again^^^t 
him. 

rHopley,  J. :  W^hat  has  become  of 
Partridge  ?] 

Witness:  I  do  not  know,  my  lord. 
He  suddenly  disappeared.  Wo  have 
heard  that  he  was  seen  in  London. 

[Ilopley,  J. :  Was  there  anything 
irregular  about  his  books,  papers,  or 
mon<>y  matters  to  account  for  it?] 

W'itness:  Certainly  nothing  to  cause 
his    disappearance. 

Tho  witness  (continuing)  said  Palmer 
was  only  charged  the  fees  for  arrang- 
ing the  loan. 


844 


''GAPS  TIMB8"  LAW  REPORTB. 


In  cross-oxamination,  witness  said  the 
whole  of  the  arrangeniente  for  this  ioaii 
would  have  been  put  through  without 
the  firm  being  cohsuIumI.  He  wrote 
letters  on  behalf  of  the  firm.  The  cor- 
respondence appeared  to  indicato  that 
Partridge  had    made    axrangemeuta    for 

the  loan. 

Witness,  in  re-cxammation,  said  ne 
would  not  grant  35-37th8  of  the  valuar 
tion  of  a  property  on  first  mortgage. 

Johannes  E.  Nee  tilling,  of  the  firm  of 
J     J.    Hofmeyr    and    Sons,    sworn    ap- 

g raiser,  valuecf  the  property  at  £3,700. 
ioswarva  called  on  witness,  i.nd  accom- 
panied him  to  Messrs.  Fairbridge,  Ar- 
derne.  and  Lawton's  office,  where  wi*;- 
nesB  informed  him  that  he  was  acting 
for  Van  Roenen.  Witness  had  consider- 
able experience  of  advancing  money.  It 
would  nave  been  impossible  to  get  a 
£3.500  bond  on  the  £3.700  valuation, 
^fter  a  conversation  between  Boswarva 
and  Palmer,  witness  was  instructed  to 
Bend  a  cheque  for  £60,  as  commission 
for  the  loan. 

In  cross-examination,  witness  said  lie 
did  not  personally  make  the  appraise- 
ment. At  that  time  the  money  market 
was  much  easier  than  it  wa«  in  August. 
People  were  lending  their  money  very 
recklessly. 

In  reply  to  his  lordship,  the  witness 
said  the  valuations  at  that  time  were 
greatly  inflated. 

In  further  cross-examination,  witness 
admitted  that  his  firm  were  looked  upon 
as  very  cautious  valuators.  In  Septem- 
ber, witness's  firm  conducted  a  sale  of 
stock  for  defendant.  The  net  amount 
reaUsed  was  £481  17s.  At  the  time  of 
the  transfer,  witness  advanced  the 
money,  which  the  defendant  subsequent- 
ly repaid. 

Charles  Thomas  Palmer,  the  defend- 
ant, stated  he  was  now  a  farmer  i:* 
Bechuanaland.  In  April,  1903,  he  was 
a  cartage  contractor  at  Obsorvatory- 
road,  and  hired  stables  from  a  man  nam- 
ed Hartley.  Witness  had  to  vacate  these 
stables.  Witness  was  approached  by 
plaintiff,  who  showed  him  some  of  his 
own  places.  The  property  was  purchas- 
ed from  McLeod  on  May  27.  Witness 
signed  an  agreement  to  pa^  him  £100 
if  he  raised  the  money.  W  itness  knew 
nothing  about  plaintiff  getting  £100 
from  McLeod  at  that  time. 

Plaintiff  asked  witness  what  amount 
he  could  pay  down  and  he  replied 
£500,  without  crij^ling  his  business. 
Witness  went  and  saw  McLeod  on  June 
30,  and  McLeod  asked  to  allow  the  mat- 
ter to  stand  over  pending  the  signing  of 
the  transfer  by  Keswick.  Witness  met 
the  plaintiff  on  the  Parade  shortly  after, 
and  he  told  witness  that  the  attorneys 
would  not  accept  the  money,  as  witness 
had  been  late  in  paying  the  £500.  Wit- 
ness and  Van  Reenen  saw  Boswarva 
later  on,  and  told  him  that  as  he  had 
failed  to  raise  the  loan  the  note  was 
valiieleH. 


In  cross-examination,  witness  haul  ho 
was  not  verv  anxious  to  get  Mt-Lood's 
place  when  he  met  Bo>warva.  Boswar- 
va took  witness  to  s<h)  Partridge  on 
May  27.  Boswarva  told  witness  that  he 
was  not  a  broker. 

A.  G.  van  Reenen,  butcher.  Observa- 
tory, said  he  was  part  owner  of  the  pre- 
mises. In  witness's  presence  Palmer 
told  Boswarva  that  the  matter  of  the 
commission  hud  fallen  through,  as  Bos- 
warva had  failed  to  raise  the  money. 

Mr.  Searle,  having  been  heard  in  ar- 
gument on  the  facts,  his  k>rdship, 
without  calling  on  Mr.  Buchanan, 
i9aid  ho  was  not  satisfied  tliat  the 
claim  h>ad  been  proved.  It  was 
quite  clesj*  that  the  plaintiff  had 
done  considerable  work  in  bringing 
about  this  sale,  but  for  those  services  he 
had  been  paid  handsomely  by  Mr.  Mc- 
Leod. It  appeared  from  the  evidence 
that  they  had  been  to  Partridge  before 
the  promissory  note  was  signed,  and  he 
appeared  to  have  given  a  loose  promij>e 
to  arrange  a  bond,  and  that  he  would 
be  prepared  to  advance  £3,500,  trust 
moneys.  In  consequence  of  what  was 
then  said  and  the  arrangement  with 
Partridge,  the  note  was  signed.  It  was 
therefore  an  agreement  to  pay  £100  to 
plaintiff  in  connection  with  having  ren- 
dered services  for  raising  the  bond. 
Now,  the  question  which  arose  was, 
what  did  that  document  mean,  and  had 
any  work  been  done  by  plaintiff  in  con- 
nection with  it^  It  seemed  to  the  Court 
that  the  document  ought  to  mean :  *'  If 
you  succeed  in  raiding  £3.500,  I  will 
nay  you  £100."  That  would  have 
oecn  the  ordinary  commis.sion,  and  a 
little  more.  It  nad  been  said  that 
through  the  defendant's  neglect  of  his 
obligations  that  it  had  not  gone 
through.  The  Court  did  not  agree  with 
that.  Before  the  Court  could  agree 
with  the  case  made  by  the  plaintiff,  it 
would  want  him  present  to  explain  some 
of  his  letters.  Instead  of  suing  Palmer 
at  once  for  the  amount  due,  the  plain- 
tiff advised  him  to  get  in  a  partner, 
and  then  tried  to  include  him  in  the 
liability  on  the  note.  Possibly,  if  Par- 
tridge had  been  present,  and  been  cross- 
examined,  he  might  have  been  able  to 
throw  considerable  light  on  the  case, 
but  in  the  absence  of  such  evidence,  his 
lordship  thought  the  proper  judgment 
in  the  case  was  absolution  from  the  in- 
stance, with  costs,  so  that  if  at  some 
future  time  plaintiff  had  any  further 
evidence  to  bring  forward  ho  could  still 
bring  an  action. 

Mr.  Buchanan  inauired  what  was  to 
be  done  with  r^ara  to  the  provisional 
sentence. 

Hopley,  J.,  said  tlie  defendant  would 
get  his  money  back,  and  would  have  to 
pay  all  costs. 


'•tJAPB  TIMES"  LAW  RiGt»0tlt8. 


845 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplby.1 


LEWIN  AND  ADAMSTEIN    V 
ESTEIIHUYSE. 


(     inoo. 
J  O^t.  2r,th. 
^     „     26th. 
C    „     27th. 


This  witS  an  Bction  brought  by  Messrs. 
Lcwin  and  Adamstetn  to  recover  pos- 
Affision  of  portion  of  the  farm  Middlo- 

glaats,   Laingsburg,   from      Willem      S. 
Istorhuyse,   and  damaget)  fixed  at  £100 
for  injury  to  the  pasturage. 

The  plaintiffs*  declaration  stated  that 
they  had  purchased  the  farm  in  ques- 
tion. Defendant  had  possession  of  a 
certain  portion  of  the  farm,  which  he 
refused  to  give  up. 

Tlvc  defendant's  plea  stated  that  he 
obtained  a  ten  years'  lease  of  the  por- 
tion of  ground  in  question  after  the 
death  of  his  uncle  from  hii>  aunt,  who 
was  executrix  in  the  estate,  and  had  a 
usufruct  interest  in  the  farm,  and  that 
the  plaintiffs  were  aware  of  the  exist- 
ence of  this  lease  when  they  purchased 
the   farm. 

The  plaintiffs  denied  that  they  knew 
of  the  existence  of  the  lease,  and  added 
that,  oven  if  the  aunt  had  given  the 
leaj*e,  she  could  not  grant  it  to 
operate  after  her  death. 

Mr.  J.  E.  R.  de  Villiers  for  plaintiffs, 
and  Mr.  Close  (with  him  Mr.  Roux)  for 
defendant. 

Mr.  Do  Villiers  submitted  that  the 
burden  of  proof  wae  upon  defendant. 

Hopley.   J.,   agreed. 

The  defendjuii  stated  that  he  lived  on 
the    farm    Middleplaats,   in    Laingsburg. 
It  formerly   belonged   to  his  uncle,   W. 
J.      LoureiJt?,  who  died   about  ten  years 
ago.   and  loft  a  will,   in  which   his   wife 
was      ap}>ointed      executrix.       She      re- 
mained  m      possession     of     tht>.     farm. 
About    ten     years     ago     witness     wan- 
ted     a      place      to      farm,       and       he 
stopped        at        this       farm        Middle- 
plaats   with    his    aunt.         He    arranged 
with   her  to  get  a  part  of  the  farm   to 
cultivate,  with  the     right  to     graze  60 
head  of^  cattle.       For  two  years  he  was 
to  get  it  for  nothing-    and  then  he  was 
to   pay  £7   per  annum.        His      aunt's 
fon       knew       of  the    agreement,      and 
measured    out    the    ground.         Part    of 
the       ground        was    overgrown       with 
mimosa  bush,  and  he  had  improved  the 
place       very      much,       the      value      of 
the       improvemcnits      being      e.«rtimated 
at  about  £500.       For     two     years     he 
worked    at    the    farm,     and  then   there 
was      a      written      aj^poement,       which 
-waa  handed   to  a  Mr.   Walters  and  lost. 
T^ndrr    the    contract,    the    original    oon- 
fiitions  were  put   in   writing,    and      wit- 
nefw  got    the   ground    for    ton  years    at 
£10  a  year.       He  heard  the  auctioneer 
announce   the  existence   of  the   lease  in 
the    presence   of  both      plaintiffs    when 
tbey  purchased  the  farm. 


He  denied  that  he  showed  anybody  the 
lost  contract  about  four  years  ago.  It 
was  not  correct  to  say  th*t  **  Gouws " 
told  him  the  contract  was  worthless. 
Witness  denied  that  he  asked  *'  Gouws  " 
to  get  the  old  lady  to  give  him  a  new 
contract  the  day  before  the  sale.  The 
old  contract  was  lost  by  a  Mr.  Walters. 
W^itness  could  not  state  definitely  when 
he  gave  it  to  him,  but  he  took  it  to 
him  to  have  some  point  explained.  The 
declaration  was  signed  on  the  morning 
of  the  sale.  "  Gouws  '*  accompanied 
witness.  If  "  Willem  Baard  "  said  that 
this  was  the  first  time  he  had  seen  the 
lease  it  would  not  be  correct.  Mr.  De 
Wet  would  not  be  correct  if  he  denied 
that  in  the  conditions  of  sale  mention 
was  made  of  witness's  lease. 

Hendrik  Thos.  Greeff,  farmer,  stated 
his  farm  was  near  the  defendant's.  Wit- 
ness was  for  some  time  partner  with  Mr. 
Walter.  Witness  was  in  the  office  when 
the  search  was  made  for  the  old  lease. 
Willem  *'  Zwaart  Baard  "  and  Gouws 
Esterheyze,  called  at  the  office  for  it. 
Witness  was  consulted  about  the  stamps. 
Witness  was  at  the  auction  when  tno 
conditions  of  sale  were  read,  and  the 
fact  of  the  lease  was  mentioned. 

Evidence  was  given  by  a  local  farmer, 
who  attended  the  sale  to  purchase  the 
farm,  but  owing  to  the  many  conditions 
he  did  not  do  so. 

Johannes  David  van  der  Mullcr,  a 
farmer,  stated  that  in  June,  1904.  ho 
hired  from  the  plaintiffs  the  farm  Mid- 
(lelplaats.  The  agreement  was  in  writ- 
ing, and  was  duplicated.  Before  the 
lease  was  signed  there  was  some  diffi- 
culty experienced  about  the  two  pieces 
of  ground    which  were  leased. 

Further  evidence  of  a  corroborative 
naturo-  having  been  heard,  Mr.  dose 
closed  his  case. 

Solomon  Lewin,  one  of  the  plaintiffs, 
Atated  he  resided  at  Laingsburg.  Wit- 
ness and  his  partner  went  to  the  sale 
of  the  farm.  They  did  not  go  speci- 
ally to  buy  the  place.  Witness  bid 
£3,200  or  £3,400  for  the  whole  farm. 
Piet  Esterheyse  might  have  been  there, 
but  witness  did  not  see  him.  Witness 
btood  about  30  yards  o^way  from  the 
auctioneer. 

[Hopley,  J. :  I  suppose  your  busineeis 
is  to  buy  if  you  see  a  thing  going 
t  heap  ?] 

I  did  not  go  there  with  tlie  intention 
of  buying.  I  know  the  reserve  price, 
and  I  just  bid  up  to  £3,000  for  it. 

Mr.  De  Villiers:  What  was  the  high- 
est bid? 

£4,500   by  a   Mr.   Woolfaanrdt. 

[Hopley,  J. :  And  what  wva  the  re- 
s  »rvc?] 

£6,000. 

[Hoploy.  J.:  If  you  had*  no  intention 
of   buying,   why   did  you  go  there?] 

Because  I  knew  the  people,  and  it  was 
a    nice  drive. 

The  witness  stated  he  could  swear 
poeitiyeiy  that  he  knew  nothing  about 


846 


"CAi'E  ttMlKS"  LAW  RBFOfttB. 


the  ten  years'  lease.       Witness  entered 
into  a  lease  the  following  day  for  tlie 
farm.    Nothing  was  said  about  the  ten 
years'  lease  at  that  time.      Witness   in- 
quired if  Piet  Esterheyse  and  Wilmott, 
the  holders  of  portion  of  the  farm,  were 
willing  to  give  up  their  share.     Witness 
asked  what  Willem  Esterhcysc  was  do- 
ing there,  and  the  sons  replied  that  he 
was  doing  nothing  there,  and  could  be 
kicked  out   at   any   time.     The   contract 
was  signed,  and  witness  let  the  farm  to 
Van  der  Muller.     When  witness  signed 
the   contract   to   the  latter,    he   did   not 
know    that    anything  was       said    about 
Willem      Baards  holding.     Witness   did 
not  read  the  contr&ct,  which  was  draft- 
ed by  his  agent.     Witness  intended  hav- 
ing  a  dorp    at  Piet   Esterheyze's    farm. 
Witness   could    not   exactly      remember 
when  ho  first  heard  of  the  ten     years' 
lease,  but  he  thought  it  was  about  three 
weeks    after   he    took    the   farm      over. 
Willem  went  up   to   witness,    and   said, 
**  I  hope  you  won't  charge  me  too  much 
for  the  farm."     Witness  told  him  to  call 
and  see  him,  but  he  never  did  so.       In 
September,  witness  bought  the  farm  for 
£4,000.     Nothing  was  said  about  the  ten 
years'  lease.     The  sale  and  transfer  were 
unconditional     Transfer  was  effected  on 
January  14.       After  witness  bought  the 
farm    he  told  defendant  he  had  bought 
the  farm,  and  asked  him  what  was  up 
that  he  did  not  go  in  to  settle  matters 
u^.    He  said  ho  had  a  contract,  and  at 
witness's  request  promised  to  show  it  to 
him,  but  he  had  not  done  so.       Witness 
sold    the   farm   to    Mr.    Solomon.     They 
had    not   passed   transfer,    because  Solo- 
mon refused  to  go  in  for  the  farm,  be- 
cause Willem  was  in  possession.      They 
were  to  get  £5.500  for  the  farm. 

[Hoplev  J. :  You  were  to  get  £1,500 
profit  ?] 

W'itness:  I  did  a  number  of  alter- 
ations to  the  farm. 

Witness  (continuing)  said  Solomon 
withdrew  from  the  sale. 

[Ilonley,  J. :  I  suppose  you  told  Wil- 
lem Baard  that  you  would  hold  him 
liable  if   the  contract  was  held  gocxl.] 

Witness:   Yes,  my  lord. 

[Hopley,  J. :  I  suppose  you  or  vour 
agent  wrote  to  them  and  would  nold 
them    liable?] 

I  told  his  bixitber  thait  I  of^uld  not 
understand  what  was  wrong  with  Wil- 
lem. 

Witness  deniod  that  he  told  Van  Mid- 
ler "that  he  could  not  let  him  have  Wil- 
Irm's  portion  of  the  farm.  Witness 
■vvant<^d  it  for  the  purpose  of  levelling 
it  off.  If  witrH'ss  had  had  the  farm 
thev  would  have  made  money  out  of  it. 
Defendant's  brother,  who  was  a  sub- 
les8<>e,  had  \)oon  U5;ing  the  farm. 

In  cross-examination  defendant  said 
he  had  not  thought  of  the  dorp  when  ho 
went  to  the  sale.  Witness  did  not 
believe  Willem' s  contract  was  signed 
before  the  day  witness  leased  the  farm. 


The  plaoe  Willem  now  had  was  worth 

£50  a  year  to  witness. 

Supposing  I  came  to  hire  tho  farm 
from  you,  what  would  you  charge  me? 
— I  don't  know. 

He  had  not  vc«t  begun  to  level 
the  ground  of  Willem  Ziwa&rt  Baard. 
Witness  aftked  eoverel  timea  for 
the  contnact,  but  ho  could  not 
get  it.  Witness  was  pUintiflT  in 
the  case  of  Lewin  and  Groeff,  in  which 
he  claimed,  in  addition  to  the  farm, 
another  section  on  which  a  man  named 
Marais  was  permitted  to  live.  He  never 
warned  Marais  to  leave,  and  the  Court 
held  that  he  had  not  purchased  the  sec- 
tion. 

Re-examined  by  Mr.  De  Villien:  If 
}>e  ever  told  Willem  Baard  if  he  l<»t 
this  case  he  would  sue  him,  it  must  have 
come  out  by  "  mistake  "  ;  he  never  re- 
membered saying  it 

Jacob  Adamstein,  partner  of  the  last 
witness,  corroborated  Lewin  on  every- 
thing that  transpired  when  he  was  pre- 
sent. 

Cross-examined  by  Mr.  Close :  Witness 
had  no  intention  of  going  up  to  £6,000. 
the  reserve  price  on  the  farm.  First  of 
all,  the  auctioneer  put  up  portion  of  the 
farm,  and  subsequently  he  offered  tho 
whole  farm  for  sale.  The  conditions  of 
sale  wore  read,  but  witness  did  not  h<»ar 
the  terms,  and  yet  a  bid  was  made  for 
the  farm.  When  they  got  the  lease 
of  the  farm  nothing  was  said  of  the 
old  lease.  He  knew  that  Willem  Zw&art 
Baard  was  on  the  (arm,  but  he  never 
told  Baard  to  leave.  He  would  not 
say  that  a  respectable  man  like  Van  der 
Meulen  would  perjure  himself,  but  he 
was  trying  to  get  it  out  of  witness. 

William  Jacob  E.sterhuyse  stated 
that  under  the  will  of  his  father  the 
farm  Middleplaats  was  bequeathed  to 
him  subject  to  a  life  interest  to  his 
mother.  He  disapproved  of  the  lease 
given  by  his  mother.  That  lease  was 
only  to  jafft  during  her  lifetime.  While 
the  auctioneer  was  reading  out  the  con- 
ditions of  sale,  a  dog  fight  took  place, 
and  it  was  difficult  to  hear. 

Daniel  Jacobus  de  Wet  stated  ho  was 
formerly  an  auotioneer  at  Laingshurg. 
and  he  pint  up  the  farm  in  question  in 
April  last  year.  He  could  not  repeat  the 
oonditions  of  sale,  which  he  miglit  have 
destroyed  when  he  left  the  office.  He 
did  not  remember  having  mentioned 
that  the  farm  was  being  sold  subject  to 
an  existing  lease  to  Esterhuyse.  Wit- 
no<;a  took  it  to  be  a  clean  sale  of  the 
whole  farm. 

('ross-examined  by  Mr.  Close:  He  did 
not  suggest  that  Esterhuyse  asked  him 
to  oome  to  the  court  to  lie.  Tlie  de- 
fendant said :  **  You  are  an  Afrikander, 
and  you'll  l)e  on  my  side."  He  did 
not  rememl>er  telling  Nel  that  he  read 
out  the  conditions  of  sale  at  tho  auction. 
Ho  did  not  tell  Jan  Jacobs  that  he 
know  all  about  the  lease  on  the  day  of 
the  sale. 


"CAPE  TIMES"  LAW  REPORTS. 


847 


The  next  witnoss,  Gordon,  who  read 
out  the  conditions  of  sale,  said  ho  did 
not  remember  reading  anything  about 
tho  ten  years'  lease. 

Counsel  for  the  plaintiffs  having  been 
heard  on  the  facte, 

Hoplcy,  J.,  "without  calling  on 
counsel  for  tho  defendant,  gave  judg- 
ment for  the  defendant,  with  costs.  He 
believed  that  tho  document,  which  was 
drawn  up  about  the  ten  years'  lease, 
was  intended  to  be  used  at  the  sala 
His  decisdon  did  not  rest  on  the  evi- 
dence of  the  defendant  himself,  but 
upon  the  probabilities  of  the  case,  and 
the  direct  evidence  of  other  witnesses. 
Tho  plaintiffs,  he  could  not  fancy,  pur- 
chasing anything  without  knowing  tho 
conditions.  Tho  lease  was  a  perfectly 
bona  fide  one,  and  he  believed  it  was 
entered  into  for  valuable  consideration. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


PROVISIONAL  ROLL. 


'j     1905 
"I Oct.  2Gth. 


SOUTH  AFBICAN  PRODUCE 
WINE  AND  BRANDY  COM 
PA  NY  V.  RILEY. 

Mr.  Benjamin  moved  for  the  discharge 
of  a  provisional  order  of  sequestration 
and  for  the  application  for  the  appoint- 
ment of  a  provisional  trustee  to  bo 
struck  off. 

Order  granted  as  prayed. 


HABE  V.  HARTUNO. 

Mr.  M.  Bieset  moved  for  the  final 
adjudication  of  the  defendant's  estdte 
as  insolvent. 

Order  granted. 


MOUILLOT  AND  DE  JONG  V.  KOENIG. 

Sequestration,   compulsory — Ord. 
6  of  1843,  Sec.  5. 

A  creditor  cfumot  oppose  the 
compuhory  s€qH4*stration  of  the 
estate  of  an  insolvent  debtor 
on  the  grouiuU  that  he  has  no 
security  for  his  debt,  that  he  is 


willing  to  give  time  and  that 
the  time  is  inopportune  for 
realizinq  the  estate. 


Mr.  Burton  moved  for  the  final  al- 
judication  of  the  defendant's  estate  afi 
insolvent. 

Mr.  tociireiner,  K.C.  (with  him  Mr. 
Upingfcoii),  appeared  for  the  defendant, 
and  presented  the  petition  of  tlie  Col- 
onial Orphan  Chamber  and  other  credi- 
tors opposing  the  application. 

Mr.  Burton  read  the  petition  upon 
which  tho  provisional  order  was  granted, 
from  whicn  it  appeared  that  then)  was 
a  sum  of  £2,357  148.  lid.  duo  under  a 
certain  agreement,  upon  which  judg- 
ment had  been  oDtamed.  This  judg- 
ment the  debtor  had  been  unable  to 
saitisfy.  Goods  of  the  value  of  £125 
were  pointed  out  to  the  Sheriff's  officer 
but  no  other  goods  or  chattels  of  the 
defendant  were  pointed  out  or  after- 
wards found. 

Mr.  Schreiner,  for  the  defendant,  said 
that  it  was  not  denied  that  there  had 
been  an  act  of  insolvency,  but  urged 
that  it  was  not  for  the  benefit  of  tho 
creditors  that  the  estate  should  be  fe- 
questrarted.  Counsel  read  a  petition  by 
the  Colonial  Orphan  Chamber,  the  Sii- 
verlea  Estate,  and  others,  who  said  that 
they  were  unsecured  creditors  to  the  ex- 
tent of  £6,000  odd.  Petitioners  stated 
that  the  assets  in  the  estate  coni^istod 
only  of  landed  proixrty  in  Caoe  Town 
ana  Wynlierg,  wliicn  property  was  btmd- 
ed  to  some  of  tho  petitioners,  and  in 
the  present  dcproesod  state  of  the  pro- 
perty market  it  seoiiestrati<m  was  forced 
the  property  would  be  sacrificed. 

Mr.  Upington  also  read  an  affi- 
davit by  the  defendant,  Juliur?  Koenip, 
merchant,  L/ape  Town,  in  which  he  said 
that  the  petitioners  claimed  £1,650  un- 
der a  partnership  between  Frank  do 
Jong  and  Frederick  Mouillot.  D^en- 
dant  entered  in  detail  into  his  relations 
with  the  partnership,  and  with  the  Bank 
of  Africa,  who.  ho  said,  had  brought 
aibout  hie  present  difficulitie«s  by  discon- 
tinuing to  finance  him. 

Mr.  Burton  read  an  answering  affi- 
davit by  Mr.  James  Murray  Wil- 
son, who  said  thait  the 
applioantis  had  received  nothing  on  ac- 
count of  the  partnership,  and,  as  a 
mabter  of  fact,  had  to  meet  liabilities 
of  tho  partnernhip  owing  to  the  default 
of  the  respoiid<Mit.  lie  submibtod  that 
no  ground  had  been  shown  by  tlie  other 
side  why  the  provisional  order  of  sc- 
queisitralion  should  not  l>o  made  final. 
Ooun«<^l  also  read  affidavits  by  Mr.  Mul- 
lins,  general  nianag<»r  of  tho  Bank  of 
Africa,  who  r^aid  that  tho  bank  repudi- 
ated tho  claim  made  by  respondent,  by 
Mr.  \V.  A.  ITofmeyr,  of  the  firnri  of 
Messrs.  Tredgold,  Melntyro  and  Bissot. 
applicant's  attornevs ;  and  by  tho 
Sheriff's  officer,  wno  went  to  EToenig's 
preiDUfles  to  levy  oxeoution. 


848 


i« 


OAi>B  TiMSS"  LAW  BBPOtttS. 


Mr.  Upington  read  «.  replying  affi- 
davit by  the  defendasot. 

Counsel  having  been  heard  in  argu- 
ment, 

Buchanan,  A.C.J. ,  aaid  the  appli- 
cant in  this  ease  wajs  executor  tee- 
tam<int<kr}ii  of  the  will  of  the  late 
Frank  do  Jonff,  who  obtained  judg- 
ment against  the  defendant  for 
£2,357,  and  a  return  of  nulla  bona  was 
made.  In  so  doing,  the  defendant  com- 
mitted an  act  of  inaolvenoy.  The  ques- 
tion before  the  CJourt  waa  whether  that 
should  be  made  absolute  or  not.  The 
opposition  to  making  the  rule  absolute 
was  made  wholly  on  the  allegation  that 
it  would  not  be  to  the  benefit  of  the 
creditors  to  seauestrate  the  estate.  The 
part  of  the  ordinance  on  which  the  ap- 
plication waa  based  gave  the  right  to  a 
creditor,  who  could  not  get  his  demand 
satisfied  to  place  the  estate  under  com- 
pulsory sequestration.  A  creditor  apply- 
ing for  the  compulsory  sequestration  of 
an  estate  must  be  able  to  show  that  the 
liabilities  exceed  the  aasets,  and  that  the 
sequestration  would  be  for  the  benefit 
of  the  estate.  In  the  present  case  cer- 
tain creditors  had  joined  in  the  opposi- 
tion to  the  sequestration,  and  the  only 
grounds  they  could  bring  forward  were 
that  they  were  unsecured,  and  were 
willing  to  give  Lime  for  the  payment, 
and  that  owing  to  the  state  of  the  mar- 
ket the  present  was  not  a  good  time  to 
realise  the  estate.  No  creditor  was 
bound  to  give  time.  He  was  entitled  to 
payment.  His  Lordship  could  not  find 
any  good  grounds  to  base  the  refusal  of 
the  application  on,  and  the  judgment  of 
the  Court  would  be  for  the  final  adjudi- 
cation of  the  estate,  with  costs. 


STANDARD  BANK  V.  HOTZ. 

This  was  an  application  for  provis- 
ional sentence  on  a  promissory  note  for 
£3,678  lOs.  5d.,  madto  by  the  defendant 
in  favour  of  Israeleohn  Bros.,  payable  at 
the  Standard  Bank,  Oudtshoom,  tor 
value  received,  dated  August  18,  1904, 
and  payable  six  months  after  date.  The 
summons,  was  for  the  balance  of 
£3,758  10s.  5d.,  less  £200  10s.  5d.  paid 
on  account. 

The  defendant's  affidavit  stated  that 
he  admiiifccd  that  the  signature  to 
the  pronuissory  note  was  his,  and 
that  the  said  note  had  been  re- 
duc<xj  by  payments  amounting  to 
£200  10s.  5d'.  Defendant  went  on  to 
say  that  certain  bills  discounted  by 
Israelsohn  Bros,  had  been  forged,  and 
that  he  agreed  with  the  bank  manager 
at  Oudt»hoorn  to  retire  the  bills  in  order 
to    prevent  the    arrest   of   and    criminal 

Krooeedings  against  his  brother-in-law, 
leyer  Israelsohn.  He  guaranteed  an 
overdraft,  and  passed  a  promissory  note 
for  £3,578  lOs.  5d.,  but  said  that  the 
note  was  given  to  the  plaintiff  bank 
without  consideration,    or    for    immoral 


oonsideration.  He  abo  sftid  that  Meyer 
had  been  oonTicted  of  forgery  at  the 
Circuit  Court  on  the  26th  September. 

The  answering  affidavit  of  Jaoo'tMis 
Johannes  de  Kock,  now  of  Malmes- 
bury,  and  formerly  majiager  of 
the  Standard  B&nk,  Oudtohooni. 
denied  thait  he  had  promieed  not 
to  prosecute  Meyer  Israelsohn.  He 
said  that  the  firm  of  Israelsohn  Bros, 
were  allowed  a  certain  overdraft  subiecl 
to  a  guarantee  being  provided.  Mr. 
de  Kock  entered  at  some  length  into 
the  whole  matter  of  Meyer  Israelsohn, 
and  the  bilk  alleged  to  have  been  forg- 
ed by  him  and,  as  to  defendant's  asso- 
ciation with  the  case,  he  said  that  he 
agreed  to  sign  the  promissory  note  and 
a  guarantee  for  £8u0.  Daring  all  the 
time  there  was  not  any  question  of  com- 
pounding  or    compromising    any    crime. 

Sir  H.  Juta,  K.C.  (with  him  Mr. 
Searlo,  K.C,  and  Mr.  Upington)  for 
defendant;  Mr.  Schreiner,  K.C.  {with 
him  Mr.    Gardiner)   for  plaintiff. 

Sir  H.  Juta  submitted  that  this  clearly 
was  not  a  case  for  provisional  sentence, 
but  one  in  which  it  would  be  necessary 
for  the  plaintiff  to  go  into  the  principal 
case,  so  that  witnesses  might  be  heard, 
and  especially  the  evidence  of  Mr.  De 
Kock.  m  view  of  the  affidavit  which  he 
had  filed  in  these  proceedings.  For 
practical  purjposes.  the  note  and  guaran- 
tee upon  which  the  defendant  was  sued 
referred  almost  solely  to  the  documents 
alleged  to  have  been  forged.  The  ques- 
tion to  be  determined  by  the  Court  was 
whether  the  note  and  the  guarantee 
given  in  the  month  of  August,  1904, 
were  founded  upon  an  .  improper  and 
immoral  consideration.  Counsel  sub- 
mitted that  a  man  who  was  in  the  posi- 
tion of  Mr.  De  Kock,  the  manager  of 
a  branch  in  the  country,  who  had  made 
heavy  advances  to  Israelsohn  Bros., 
would  move  heaven  and  earth  to  do 
everything  to  put  himself  right  with  his 
general  managers,  and  with  the  direc- 
tors of  the  bank,  in  trying  to  retrieve 
the  situation  and  getting  money  so  that 
the  indebtedness  of  Israelsohns  misrht 
be  paid.  Mr.  De  Kock  gave  an  explan- 
ation which  was  too  ridiculous.  He 
said  that  he  told  Israelsohns  that 
he  would  sequestrate  their  es- 
tate. What  was  Hotz  to  get 
from  this  business  T  Why  should 
he  undertake  thib  enormous  liability 
if  it  were  not  to  save  his  brother-in- 
law  from  being  prosecuted?  Quite 
naturally,  when  his  brother-in-law  was 
prosecuted,  he  refused  to  pay  the  pro- 
missory noAe.  Counsel  urged  that  the 
whole  of  the  circumstances  were  con- 
sistent with  the  explanation  given  by 
the  defendant  as  to  how  he  came  to 
pass  the  promissory  note.  Sir  Henr> 
cited  the  rase  of  Harru  r.  Krige'* 
Executors  (2  Jut*,  399). 

Mr.  Schreiner  contended  that  this  was 
eminently  a  case  in  which  provisional 
sentence  should  be  granted.      It  seemed 


"•bA^t  ilMBS''  LAW  RBP0RT8 


849 


to  him  that  this  was  one  of  those  cases 
in  which  a  little   knowledge  was  a  dan- 
gerous thing.      Mr.  Wiggott,  defendant's 
aidviser,   had  had  the  coae  of  Harris  v. 
Krige't  Executor*  in  his  mind.     On   the; 
probabilities,  the  version  of  facts  given  by 
the  defendant  was  not  the  correct  one. 
A  letter  was  written  on   February  3  by 
the  defendant  to  the  general  manager  of 
the  bank  in  Cape  Town,  and  it  was  in- 
credible that  if  defendant  had  been  in- 
duced by  threats  to  act   in  the  wav  he 
did,   and   by   promises  which   had    been 
broken,    he    should    have    written    that 
letter  when    proceedings  were   pending. 
In  that  letter  tie  said  he  was  informed  by 
the   local   branch   manager   that    he   was 
prepared  to    ^rant  him   (Mr.    Ilotz)     an 
extension  of  time  on  his  lodging  security 
to  the  amount  of  £5.000,  and  passing  a 
second  mortgage.       This   he  (defendant) 
was  not  prepared  to  do.       He  said  that 
had  he  not  come  to  the  assistance  of  Is- 
raelsohn  Bros.,  the  bank  would  have  lost 
considerably      more    than    it    had    done. 
Having  saved  the  bank  a  large  amount, 
he  thought  that  some  consideration  was 
due    to    him.        Counsel    asked    whether 
that    letter  indicated  the  least  objection 
on  the  part  of  the  defendant  towards  the 
bank  or  the  representative  of    the  bank. 
He   submitted   that    there   was    nothing 
whatever    to    show    that  the    defendant 
was   induced  by  the  threat   to  pass   tho 
promissory  note,  except  the  improbable 
etory   given    by    the   aefondnnt    himself. 
The  whole  case  was  one  of  vigilance  by 
the   local   manager   of    the    bank,      and 
nothing  more.       The  plaintiffs  were  en- 
titled  to   provisional   sentence,   and   the 
defendant,    unless  he  could    make      out 
some  better  catie,  must  pay  the  promis- 
sory note.      As  to  the  case  quoted  by  his 
learned    friend,    he   submitted    that      it 
differed  in  material  respects   from     the 
present  case. 
Sir  H.  Juta  having  briefly  replied, 
Buchanan,      A.C.J.,     said:      This     is 
an      ai>plication     for     provisional     sen- 
tence    upon     a     liquid      document,      a 
promissory  note  signed   by  the   defend- 
ant,  and   now  overdue.       The   genuine- 
ness  of  the  note  is  not  in  dispute,   but 
the  defence  oot  up  is  that  there  is  no 
consideration,    or    rather    that    the   con- 
sideration   for    the    note    was    immoral, 
viz.,   that  the  note   was  given  to  retire 
forged  notes  and  to  prevent  prosecution 
of  the  person  who  had  committed     for- 
gery.      I  may  say  at  once  that,  if  this 
had  been  clear,  I  think  no  Court  would 
have   the  slightest  hesitation  in  holding 
that  this  was  an  immoral  consideration, 
and  that  a  note  given  for  such  considera- 
tion could  not  be  sued  upon.      The  law 
is  quite  clearly  laid  down  in  the  case  of 
Harris,  which  has  biH^n  referred     Uk  In 
the  case  of  Harris  there  is  no  doubt  that 
the  person  who  took  the  note,  viz.,  the 
bank  manager,  knew  that  the  considera- 
tion for  which  he  took  the  note  was   a 
forged   note.       I  quite  agree     with  Sir 
llanry  Juta  that  even  in  this  case,     il 


the  bank  manager  knew  that  tlie  notes 
were  forged,  the  case  of  Harris     would 
apply,    but  I   must  look  at  all   the  cir- 
cumstances to  see  whether  that  is     the 
case  or  not.      At  the  time  this  note  was 
^iven,       Israelsohn   Bros.,   the  brothers- 
mlaw  of  the  defendant,  had     large  dis- 
counts with  the  Standard  Bank.       Some 
of    these    documents    were    due,    others 
were    falling   due,    and    one    thing    that 
may    well    create   suspicion    upon    these 
notes  is  the  fact  that  these  notes,  which 
the  defendant  signed,   were   not  due  at 
the  time  of  the   transaction  in  dispute. 
On  looking  at  tho  affidavits  I  find  that  it 
is  stated  tnat  the  defendant  in  this  case, 
together  with  his  brother-in-law  (Israel- 
sohn), called  at  the  bank  and  asked  the 
bank  to  be  lenient  with  Israelsohn  Bros. 
This  statement  is  not  denied.       Now  it 
may  well  be  that  Israelsohn  wished     to 
have  these  notes,   which  were  forgeries, 
and  which  afterwards  led  to  his  convic- 
tion for  forf^ery,  removed  from  the  bank, 
and  that  this  knowledge  may  have  been 
imparted    Ui  the  defendant,   Hotz,   with- 
out  being   imparted  to  the  bank     man- 
ager.      If,  from  other  circumstances,     I 
could    gather  that   the    bank      manager 
knew  thait  these  notes  which  he    wished 
to  be. retired  were  forged,  I  should  cer- 
tainly refuse  provisional  sentence  in  this 
case.        The    notes   were    not       retained 
bv     the     bank,      but     given     over      to 
Hotz,   and  how  they  were  given      over 
to       the       Court       in       the       criminal 
case   is   not  made  dear.        Here    is   the 
bill  signed    by    Hotz    in    favour   of    the 
bank    on  the    18th    August.        What    is 
the  c«>nduc>t  of  Hotz?        After   the   bill 
is  given  and  bcforo  it  is  due,  or  rather 
when  it  is  falling  due,   there  is  a  com- 
munication with   the  local  branch   man- 
ager and  with  the  head  manager,   with 
the   object    of   getting   time    allowed  in 
which    to  meet    the   liability  which      is 
undertaken.         Israolsohns   were      even 
then  threatened  with  a     prosecution  for 
fraurlulent   imolvency.       I  do  not  think 
that  it    is  clear   that   a   definite    charge 
of    forgery    was    laid.         The  defendant 
docA  not  111  any  way  suggest,  either  in 
his    communication    with    the       branch 
manager    or    with    the    head    manager, 
that    he   should    have   special  considera- 
tion      for    the   character    of    the    debt, 
beintr  such  as  it  was,  a  knowledge  that 
forged       notes    were    being    taken    up. 
Moreover,    he    makes    a    payment       m 
February  of    £100,    with   mtercst      due 
upon  the  bill,   and   he  makes  a  similar 
payment  also  in  March.       He  patsed  a 
mortgage  bond,    which    is  still  in  exist- 
ence against  his  property,  covering  this 
bill.  This    mortgage    bond    is       still 

rngistorod,  and  there  has  been  no  at- 
tenijit  to  set  it  aside.  It  was  not 
until  afterwards,  when  criminal  pro- 
CHvdings  wore  taken,  that  through  his 
attorneys  he  alleged  that  it  was  an  im- 
moral consideration.  On  the  18th 
April,  through  his  attorney,  he  called 
ifpon    the    bank   at  once   to   cancel  the 


850 


<« 


CAPS  TQIBS''  LAW  BBPOBTS. 


bond  and  give  up  the  guarrairtee  bo 
had  given,  and  also  to  give  up  the 
note,  and  said  that,  unless  they  did  ao 
within  ten  days,  be  would  take  pro- 
ceedings to  compel  them  to  do  so.  He 
did  not  take  proceedings.  When  it 
became  known  that  there  was  to  be  a 
criminal  prosecution,  one  can  quite 
undenstana  that  the  defendant  especial- 
ly should  not  take  proceedings  until 
that  question  of  forgery  should  be  dis- 
posed of  by  the  Court,  and  it  might 
also  to  some  extent  explain  the  delay 
of  the  bank.  The  whole  point  I  have 
before  me  iA,  thaA  here  is  a  liquid 
document — a  genuine  document,  ad- 
mittedly due  secured  by  a  mortgage 
bond— upon  which  payments  have  been 
nuule  from  time  to  time  by  the  defen- 
dant. .The  defendant  now  repudiates 
his  liability  upon  this  bill,  and  says  it 
was  given  for  an  immoral  considera- 
tion. Now  the  immoral  consideration 
has  not  been  shown  to  have  been 
known  to  the  bank  at  the  time  the  note 
wae  given.  I  cannot  on  the  affidavits 
come  to  the  conclusion  that  the  bank 
knew  that  it  was  an  immoral  oonsidera* 
tion.  The  bank  gave  oonsideration  for 
thifi  note.  The  defendant  must,  as 
far  as  the  bank  is  conoerned,  pay  the 
debt.  On  the  ordinary  principles  which 
govern  provisional  sentence,  I  think  the 
plaintiffs  are  entitled  to  succeed,  and 
provisional  sentence  will  be  given  ac- 
cordingly,   with   costs. 


Decree  granted,  execuition  to  be  stay- 
ed upon  paymenit  of  £1  a  month. 


PAARL    BOARD    OF     EXECUTORY     V. 
8ILBRRT. 

Mr.  M.  Bissot  moved  for  provisional 
sentence  for  £2,800  upon  a  mortgage 
bond,  with  interest  at  tlie  rate  of  6 
per  cent,  per  annum,  the  bond  having 
Secome  due  by  reason  of  the  non-pay- 
ment of  intercept;  the  counsel  also 
applied  for  the  property  specially  hypo- 
thecated to  be  deciarod  executable. 

Order  granted. 


PUBCELL  V.  LUBBE  AND  OTHERS. 

Mr.    De  Waal   moved    for  costs,    the 
interest  sued  for  having  been  paid. 
Order   granted   for   costs. 


OROENEWALD  V.  DETDIER. 

Mr.  De  Waal  moved  for  provisional 
sentence  for  £250  on  certain  conditions 
of  sale,   being   second      instalment      of 

furcha<;e    price   of    certain    property    at 
*aJedon. 
Order   granted. 


VAN  WYK  V.  LLOYD. 

Mr.  Roux  moved  for  a  decree  of  civil 
imprisonment  upon  an  unsatisfied  judg- 
meivt  of  this   Court. 


AFRICAN  HOMES  TRUST  CO.  V.  BOYCK. 

Mr.  Long  moved  for  a  decree  of  civil 
imprisonment  upon  an  unsatisfied  judg- 
men't  <^  this  Court. 

Decree    granted. 


MARTIN  V.  VAN  RENSBURGH. 

^  Dr.  Rainsforii  moved  for  a  docrce  of 
civil   imprisonment  upon  an  unsatiaSed 
judgment  of  thia  Court. 
I>ecree  granted. 


SLADE  V.  JENKINSON. 

Mr.  WrigSrt  moved  for  provisional 
sentence  upon  two  bonds  amounting  to 
£275,  due  oy  reason  of  non-pa3rment  of 
interest;    counsel    also    applied   for   the 

Sropertv    specially    hjrpotheoated    to    be 
eciarea  executable. 
Order   granted. 


VAN  LILL  V.  HOLM. 

Mr.  M.  Bisset  moved  for  provisional 
sentence  for  £114  14s.  6d.,  balance  of  a 
cheque. 

Defendant  said  that  he  had  paid  £200 
off  the  cheque,  and  he  disputed  ihe  bal- 
ance. He  applied  for  a  postponement 
in  order  to  get  together  ms  witnesses, 
who  were  scattered  about  the  country. 

Ordered  to  stand  over  for  a  fortnight 

Buchanan,  A.C.J.,  advised  defendant 
to  consult  an  attorney  and  file  his  affi- 
davits  within  seven   days. 


UiLIQUID  ROLL. 


WATSON  V.  STEER. 


(       1905. 
\  Oct.  26th. 

Mr.  Gardiner  moved  for  judgment 
under  rule  319  in  terms  of  a  declaration 
for  an  account,  debate,  judgment  for 
such  sum  as  may  be  found  to  be  dae, 
and  delivery  of  documents,  or,  in  the 
alternative,  for  payment  of  £507  3s.  9d. 

Judgment  in  terms  of  declaraition,  sub- 
ject to  production  of  affidavit  that  no- 
tice of  set-down  had  been  served,  ac- 
count to  be  filed  wkhin  one  mouth, 
falling  which  alternative  prayer  to  be 
gran>ted. 


SMITH  V.  JONES. 

Mr.  Van  Zyl  moved  for  judgment  un- 
der Rule  319,  in  terms  of  a  certain 
declaration. 

Order  fir^anted  as  prayed. 


"CAM  HMfiS"  LAW  REPOfttS. 


S5l 


GLIDDON  AND  ANOTHER  V.  ABLKTT. 

Mr.  Gardiner  moved  for  judj^mont 
under  Rule  329d  for  JCi4l  14s.  6d.,  balance 
due  for  dits^burbements  and  professional 
Bcrvicos. 

Order  granted. 


MAHOM£D  V.  SCUMILT. 

Mr.  Swift  moved  for  judj^ment  under 
Rule  329d  for  £30,  rent  due,  with  in- 
terest a  tempore  morae  and  co*ta. 

Order  granted. 


WITTSTOCK  V.  SMART. 

Mr.  Payne  moved  for  judgment  under 
Rule  329d  for  £37  63.  5d.,  goods  sup- 
plied, with  interest  a  temj)ore  morae 
and  costs. 

Order  granted. 


NETHERLANDS  BANK  V.  FALSE  BAY 
QUARRY. 

Mr.  De  Waal  moved  for  judgment 
against  Tct^chort  (a  member  of  the  com- 
pany) under  Rule  329d  for  £425  9s.  Id., 
less  £100  paid  on  account,  baianoo  of 
loan  or  overdraft,  with  interest  a.nd 
ctets  of  euit. 

Order  granted. 


ESTATE  THIEN   V.    SCHNEIDER    AND 
BARSDORF. 

Mr.  Dougks  Buchajian  moved  for 
judgment  under  Rule  329d  for  £1,700, 
balance  of  purchase  price,  under  certain 
conditions  of  sale,  with  inftorost  and 
costs. 

Order   granted. 


PAARL   AFRICAN   TRUST   V.  DU   PRE. 

Mr.  Do  WaaJ  moved  for  judgment  un- 
der Rule  329d  for  £210,  being  interet^^t  on 
£3,500  capital  of  a  certain  mortgage 
bond,  and  for  interest  a  tempore  morae 
and  costs  of  euit. 

Order    granted. 


BENSIMON  V.  HUTCHINSON. 

Mr.  Sutton  moved  for  judgment, 
under  Rule  329d,  for  £111,  with  interest 
a  tempore  morae  and  costs. 

Order  granted. 


MACLEOD  V.  JACOBS. 

Mr.  liailey  moved  for  judgment,  under 
Rule  329d,  upon  an  account  for  profes- 
fiional  services  rendered  and  disburse- 
ments made. 

Order  granted. 


CAPE  TOWN  TOWN  COUNCIL  V.  PLOCKY. 

Mr.  Gutsche  moved  for  judgment,  un- 
der Rule  ,329d,  for  £70  19s.  9d.  and  £32 
lOs.,  municipal  rates  and  water  supplied. 

Order  granted. 


DE   VILLIERS  V.  BAUMGARTEN. 

Mr.  Pj  S.  T.  Jones  moved  for  judg- 
ment, under  Rule  319,  for  £9  Os.  6d.,  pro- 
fessional services  rendered,  with  interest 
a  tempore  morae  and  costs. 

Order  granted. 


ST.   LEGER  AND  WILSON  V.   BONCKER. 

Mr.  M.  Bisset  said  that  the  defendant 
had  failed  to  file  a  plea  within  the  time 
allowed,  and  ho  (counsel)  now  applied 
for  judgmcQit  in  terms  of  declaration. 

Order  granted. 


MOTIONS. 


CAPETOWN  TOWN  COUNCIL  f         lJK)o. 

V.  MILLS.  (   Oct.  2<)tb. 

Mr.  Schreiner,  K.C.  (with  him  Mr. 
Searlo,  K.C.),  was  for  the  applicants 
(defendants  in  the  action).  Sir  H.  Juta, 
K.V.  (with  him  Mr.  Benjamin),  was  for 
the  respondent  (plaintiff  in  the  action). 

Mr.  Schreiner  moved  for  leave  to  tako 
certain  evidence  on  commission.  The 
case,  he  said,  had  been  set  down  for  the 
7th  November,  but  as  there  were  several 
cases  on  the  list  which  had  priority  on 
that  date,  it  seemed  very  unlikely 
that  this  case  would  bo  reached.  The 
action  (counsel  said)  concerned  the  lia- 
bility of  the  Council  for  a  slip  of  mud 
or  earth  on  the  other  side  of  the  Lion's 
Head,   beyond  Clifton. 

The  case  was  set  down  for  hearing 
on  the  5th  February,  His  Lordship  re- 
marking that  there  were  no  less  than 
seven  cases  set  down  for  the  7th  Novem- 
ber. 


1 


852 


CAPE  tlMBS"  LAW  ftBPORTB. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting  Chief  Jostioe,  the 
Hon.  Sir  John  Buchanah.] 


i        1905. 
}Oct.    27th. 


8HABPE  V.  SUARPU  AND 
VENN. 

This  was  an  action  brought  by  Archi- 
bald John  Sharpe,  of  Woodstock, 
against  hia  wife,  Elizabeth  Jacoba 
Sharpe,  of  Sait  River,  on  the  ground 
of  her  alleged  adultery,  with  one  Georg« 
Venn,  aflrainst  whom  damages  in  the 
sum  of  i5500  w«<re  claimed. 

Plaintiff,  in  his  declaration,  said  that 
he  was  married  to  the  first  defendant  in 
Cape  Town  on  the  22nd  September, 
1896.  He  alleged  that  on  divers  dates, 
in  September  and  October,  1904,  at  Re- 
gent-street, Woodsttxik,  and  other 
places,  the  first  defendant  committed 
adultery  with  the  second  defendant.  Ho 
claimed:,  aa  against  the  first  defendant, 
a  decree  of  aivorce  and  forfeiture  of 
any  benefits  accruing  from  the  marriage, 
and  as  against  the  second  defendant 
£500  damages. 

The  first  defendant  in  her  plea  denied 
the  allegations  of  adultery,  and  prayed 
that  the  claim  may  bo  dismissed. 

Mr.     Alexand<»r     appeanni     for      th  • 

glaintiff;  Mr.  Lewis  api)oared  for  tho 
rst  defendant.  As  to  the  second  de- 
fendant, it  was  stated  that  ho  was  con- 
fined in  Roelaiid-.stroot  CJaoI  for  cfimo. 
and  that  a  letter  had  Ixmmi  received 
from  him,  sayinj?  that  he  "  pleaded  not 
guilty    in   this  case." 

Wm.  Thomas  Birch,  clerk  in  charge 
of  the  Marriage  Register^  Colonial 
Secretary's  Office,  gave  evidence  aa  to 
the  registration  of  the  qiarriage. 

Archibald  John  Sharpe  (the  plaintiff) 
said  that  when  he  married  defendant 
she  was  known  by  tho  name  of  Mrs. 
Fenton.  They  first  lived  in  Chapell- 
streot,  until  November,  1899,  when  wit- 
ness left  his  wife  on  account  of  the 
scandalous  way  in  which  she  had  acted. 
They  went  to  Stellenbosch,  and  after- 
wards returned  and  lived  together  until 
November,  1901.  Witness  then  went 
to  Caledon  to  work  on  the  railway,  and 
subsequently  to  Simon's  Town,  his  wife 
remaining  in  Aberdeen-stroert,  Wood- 
stock. Witness  met  Venn  at  Sir 
Lowry's  Pass.  Venn  came  to  his  house 
about  the  beginning  of  1901,  but  after 
staving  about  a  weok,  he  went  to  Mid- 
delburg,  and  witness  a  little  later  went 
to  Bloemfontein.  Witness  had  allowed 
his  wife  £14  a  month  while  he  was  at 
Bloemfontein.  On  his  return  in  March, 
1903,  he  found  that  his  wife  was  occupy- 
ing a  room  at  2,  Groldsmith-road.  There 
were  two  beds  in  the  room,  and  when 
witneas  asked  hia  wife  whose  bed  the 


aeoood  one  was,  the  replied  thai  it  waa 
*'  George's  "—Cleaning  George  Venn. 
Ho  aaked  her  if  she  was  a  respectable 
woniian  to  do  such  a  thing,  and  she 
merely  laughed,  and  aaid,  "  Oh,  it's  all 
right.  He  insisted  upon  Venn  leaving 
the  house,  with  the  result  that  Venn 
went  to  Camp's  Bay.  After  that  wit- 
ness's  wife  lived  in  Ormskirk-atreet, 
where,  on  several  occasions,  he  found 
Venn  in  the  same  bedroom  with  her. 
He  remonstrated  with  hia  wife  about 
her  conduct.  He  continued  to  live  with 
her  for  the  sake  of  the  two  children — 

{firls  ot  9  and  5  years  respectively — but 
ast  year,  becoming  certain  of  the  rela- 
tions between  the  defendants,  he  left 
bis  wife.  He  deaired  to  have  custody 
of  the  two  children,  but  admitted  that  he 
had  not  made  a  claim  to  that  effect  in 
his  declaration. 

Cross-examined :  He  was  never  a  par- 
ticular friend  of  Mr.  Venn ;  they  were 
workmates,  having  been  employed  on 
constructions  together.  There  were 
throe  rooms  and  a  kitchen  in  the  house 
witness  and  his  wife  lived  in  in  Orms- 
kirk-street.  Mr.  Venn  visited  them  at 
hi.s  wife's  request.  Mr.  Venn  slept  two 
nights  in  the  passage,  and  another  night 
ho  slept  m  tne  same  bedroom  as  wit- 
ness and  his  wife  but  that  was  wnth- 
out  witness's  permission.  Witness  was 
now  living  at  Tennyson-street,  the  house 
being  kept  by  a  nurse,  who  was  divorc- 
ed from  her  husband.  He  admitted 
having  written  tho  letter  (produced) 
from  Touws  River,  but  said  it  was 
merely  a  hit  of  bluff,  and  that  he  had 
since  the.i  lived  with  his  wife.  He  said 
in  the  letter  that  he  had  "  got  somebody 
else  who  was  better  to  him."  He  mero- 
\y  wrote  the  letter  in  order  to  frighten 
his  wife.  '*  Mr.  Shortle  "  had  also  slept 
in  tbo  ^ame  room  ae  witnera  and  his 
wife.  There  was  a  great  dance  party 
at  the  house  the  night  Venn  was  ar- 
restcMi.  Witness  often  watched  the 
house. 

Henry  Oliver,  fitter,  Doune-street,  Ob- 
servatory, said  that  he  remembered  the 
two  defendants  occupying  a  room  m 
Goldsmith -road,  Sait  River.  He  had 
seen  the  defendants  together  in  the 
bedroom.  He  had  stayed  at  the  same 
house  as  the  defendants  in  Devon-street 
and  Regent-street,  W^oodstock,  the  de- 
fendants occupying  one  room.  Mr 
Shortle  used  to  sleep  in  the  same  room 
as  Mrs.  Sharpe  when  Mr.  Venn  was 
away.  During  a  great  portion  of  tho 
time  plaintiff  was  absent  up-country. 
Mrs.  Sharpe  often  used  to  speak  to  wit- 
ness about  Venn,  and  had  told  him  that 
she  loved  Venn,  and  that  she  was  vexed 
Ixicauso  he  had  another  ^oung  lady. 
W^itness  on  one  occasion  paid  a  visit  to 
Phimer'e-road  at  Mrs.  Sharpe's  re- 
quest, when  he  found  Venn  in  the  same 
room.  They  had  a  glass  of  wine.  Wit- 
ness had  got  no  interefft  in  the  case, 
and  had  no  ill-feeling  against  either  of 
the  defendants.       He  had  seen      Mn. 


"CAPE  TIMES"   LAW  REPORTS 


853 


Sharpc  in  bod  with  another  man,  buf 
he  was  not  sure  that  the  man  was  Venn. 
Cross-oxamined :  It  was  not  true  that 
Mrs.  Sharpe  had  giyen  notice  to  witness 
to  leave  the  house.  Witness  occupied 
the  same  room  as  a  blind  woman.  Ho 
ha-i  never  seen  plaintiff,  his  wife,  and 
Ye.m  all  in  the  same  room.  Witness 
htid  never  seen  any  guilty  conduct  be- 
tween the  defendants. 

Johanna  Osborne,  a  nurse,  living  at 
Tennyson-street,  Salt  River,  said  that 
she  had  known  the  parties  for  some 
years.  In  October,  1904,  Mrs.  Sharpe 
came  and  asked  her  to  lend  her  £5,  m 
order  to  pot  Venn  away  to  East  Lon- 
don, so  tnat  he  would  be  separated 
from  a  young  lady,  with  whom  he  was 
in  love.  Mrs.  Sharpe  told  witness  that 
she  was  devotedly  in  love  with  Venn. 

Herbert  George  Hunt,  signalman,  Salt 
River,  also  gave  evidence  for  the  plain- 
tiff. 

Elisabeth  Jacoba  Sharpe  (the  defend- 
ant) said  that  her  husband  brought 
Venn  to  the  house  in  the  first  instance, 
and  said  that  she  must  make  room  for 
him.  Mr.  Shortle,  her  brother-in-law, 
was  at  the  house  at  the  time.  Venn 
afterwards  went  to  Middelburg,  and 
witness's  husband  later  on  left  for 
Bloemfontein.  Witness  subsequently 
removed  to  Goldsmith-road,  and  while 
she  was  there  Venn  camo  down  and 
asked  if  ho  could  live  with  her.  She 
wrote  to  her  husband,  and  ho  consent- 
ed to  Venn  occupying  another  bed  in 
the  same  room.  When  plaintiff  return- 
ed from  up-country,  they  ail  slept  in 
the  same  room.  Shortle  also  slept  in 
the  same  room,  and  i>laintiff  raised  no 
objection.  Later  on  witness  removed  to 
Ormskirk-street.  Plaintiff  deserted  her 
on  the  1st  July  last.  Her  husband  slept 
away  for  about  a  month  before  he  de- 
serted her.  and  on  his  return  in  the 
mornings  he  us«Ki  to  tell  her  that  he  had 
been  out  gamblmg.  Oliver  was  sleep- 
ing in  the  samo  room  as  the  blind 
woman ;  he  was  her  guardian — to  spend 
her  ^  money.  Plaintiff  afterwards  co- 
habited with  witness  in  Plumer's-road. 
She  denied  that  she  had  gone  to  Mrs. 
Osborne  to  borrow  money,  on  behalf  of 
Venn. 

Cross-examined  :  Venn  never  occupied 
tho  same  room  as  witness  without  her 
husband's  **  instructions."  She  thought 
Oliver  had  given  this  evidence  because 
she  had  "chucked  him  out,"  and  he 
had  got  spite  agaiuHt  her. 

Michael  Shortle,  brother-in-law  of  the 
first  defendant,  said  he  was  in  the  house 
in  Ormskirk-stroet  in  1901,  when  plain- 
tiff brought  George  Venn  there.  Wit- 
ness and  Venn  slept  on  the  floor,  while 
plaintiff  and  his  wife  occupied  the  bed. 
Witness  had  never  seen  any  guilty  con- 
duct between  the  defendants. 

Cross-examined :  Witness  was  a  re- 
cruiting agent  for  native  labour. 

fBuehanan,  A.  C.  J. :  Your  name  is 
Michael  Shortle?] 


Witness:  Yes. 

IBuchaJvaii,  A.  0.  J. :  You  have  been 
hem    hoUtra,    I   boli^^voT] 

Witness:  Yes,  and  so  has  Sh&rpe,  my 
lord ;  he's  been  convicted  in  this  Court 
for  stoaling   a  box. 

Josephine  Maria  Rix,  daughter  of  the 
first  defendant,  also  save  evidence. 

Cross-examined:  Witness  was  living 
with  a  man  named  Weasels,  but  she  was 
not  married  to  him. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Buchanan,  A.C.J. ,  said  that  after 
their  marriage,  the  parties  had 
lived  in  a  way  that  was,  per- 
haps, not  very  much  to  be  oonomended. 
There  was  nothing,  however,  to  show 
that  they  lived  unhappily  together.  The 
husband  went  to  work  at  Caledon,  on 
the  railway,  where  he  seemed  to  have 
made  the  acquaintance  of  a  man  named 
Venn,  and  when  Venn  came  down,  as 
he  was  a  poor  man,  plaintiff  gave  him 
accommodation  .at  his  house.  At  that 
time  he  was  only  occupying  one  room 
in  the  house.  Afterwards,  when  her 
husband  had  gone  to  Bioenifontein  for 
work  his  wife  took  in  this  man,  and 
they  lived  in  the  same  bedroom  to- 
getner  when  the  plaintiff  was  away. 
He  (the  learned  judge)  did  not  see  that 
there  was  anything  on  the  part  of  the 
husband  which  conduced  to  this  ^  con- 
duct on  her  part,  and,  in  fact,  miscon- 
duct on  his  part  was  not  pleaded.  A 
decree  of  divorce  would  bo  granted,  and 
defendant  would  be  declared  to  have 
forfeited  any  benefits  accruing  from  the 
marriage  in  community.  There  would 
be  no  order  as  to  costs.  No  judgment 
would  be  entered  against  the  second  de- 
fendant, Venn. 


SUPREME   COURT 


FIRST  DIVISION. 


[Before  the  Acting  Chief  Justice,   the 
Hon.  Sir  John  Buchanan] 


BOLDT  V.  BURGER  ESTATE 
LTD. 


r     190.5 

usJOct.  3ith. 
*)  „  ,31  St. 
(Nov.     Ist. 


Contractor — Work  done — Reten- 
tion money— Damages. 

This  was  an  action  brought  by  Fritz 
Boldt,  engineer  and  contractor,  Cape 
Town,  against  the  Burger  Estates, 
Ltd.,   to   recover     certain  sums   alleged 


854 


"CAPE  TIMES"  LAW  REPORTS. 


to  be  due  upon  a  contract  for  the  con- 
struction of  an  irrigation  canal  in  the 
district  of  Rolx?rtfion,  and  for  dam- 
ages. 

From  the  pleadings,  it  apix'arj'd  that 
a  contract  was  entered  into  lH"two<^n 
plaintiff  and  defendants  on  the  9th 
April.  1903,  wiiereby  the  former  was  to 
construct  over  the  defendants'  property 
a  certain  canal,  watcrconrse,  or  fur- 
row, and  in  a  certain  time,  in  the 
Breede  River,  in  the  district  of  Ro- 
bertson, in  consideration  of  the  eaid 
work  the  plaintiff  to  be  paid  the  sum 
of  £4,750.  Plaintiff  eaid  that  it  was  a 
condition  of  the  said  agreement  that 
he  was  to  bo  paid  fortnightly  for  the 
work  as  it  progressed,  that  the  de- 
fendants fell  into  arrear  with  their  pay- 
ments, and  that  finally,  on  the  Z6th 
December,  1903,  owing  to  the  action  of 
the  defendants,  he  was  compelled  to  de- 
sist from  work.  He  claimed  (a)  judg- 
ment for  the  sum  of  £100  13s.  2d.,  due 
for  work  which  had  been  performed 
and  had  not  been  paid  for  by  the  de- 
fendants; (b)  £159  10s.  6d.,  retention 
money;  (c)  £500  damages,  by  reason 
of  the  wrongful  and  unlawful  conduct 
of  the  defendants  and  their  breach  of 
contract ;  (d)  interest  a  tempore 
morae;  (e)  alternative  relief;  (f)  costs  of 
suit. 

Defendants,  in  their  plea,  denied  that 
the  plaintiff  had  fulfilled  his  part  of 
the  contract.  and  said  that  certain 
work  which  he  had  dope  wa^  inspected 
by  Mr.  Burger,  who  was  appointed  for 
that  purpose,  and  was  condemned. 
They  said  that  the  plaintiff  had  not 
been  compelled  to  desist  from  work  on 
account  of  their  action,  but  that  he 
oear:ed  work  entirely  at  his  own  in- 
stance. They  denied  that  they  were 
indebted  to  the  plaintiff  in  the  sums 
claimed,  or  any  other  sums.  For  a 
claim  in  reconvention,  the  defendants 
said  that,  owing  to  the  wrongful  and 
unlawful  conduct  of  the  plaintiff,  they 
had  been  compelled  to  engage  another 
person  to  complete  the  contract,  and 
that  they  had  had,  as  a  consequence, 
to  pay  a  total  sum  for  the  work  of 
£5,500,  or  £750  in  excess  of  the  amount 
of  the  contract,  and  also  that  ownng  to 
Boldt*s  breach  of  contract,  they  had 
sustained  damages  in  the  t«um  of  £250, 
as  a  result  of  the  delay  in  completion 
of  the  work.  Defendants  (plaintiffs  in 
reconvention)  prayed  for  judgment  in 
the  said  sums  of  £750  and  £250,  and 
costs  of  suit. 

The  replication  was  general,  but  as  a 
plea  to  the  claim  in  reconvention,  the 
plaintiff  (defendant  in  rcwnvention) 
said  that  he  was  in  no  way  liable  for 
the  expenses  incurred  by  the  plaintiffs, 
and  repeated  that  it  was  through  the 
wrongful  and  unlawful  conduct  of  the 
plaintiffs  in  reconvention  that  he  was 
compelled  to  desist  from  the  work.  He 
denied  that  the  plaintiffs  in  recon- 
vention had  sustained  any  damages 
through  any  default  on  his   part,    and 


prayed  that  their  claim  may  bo  dis- 
missed,   with   co6ts. 

The  rejoinder  was   generaL 

Mr.  Searle.  K.C.  (with  him  Dr.  Greer) 
for  plaintiff;  Mr.  Burton  (with  him  Mr. 
Van  Zyl)  for  defendants. 

The  plaintiff  (Fritz  Boldt)  fcaid  that 
he  w^as  a  qualified  civil  engineer  of 
(icrmany.  He  had  been  a  railway 
engineer  in  Germanjr.  He  had  been 
engaged  on  engineering  works  in  this 
colony  for  nine  years.  The  Govern- 
ment sent  down  Mr.  Wright  to  make  a 
survey  of  the  canal.  Mr.  Wright 
left,  and  witness  took  up  and  com- 
pleted the  survey.  Witness,  on  his 
return  from  Europe  in  1903,  was  met  by 
Mr.  Burger,  who  a^ked  him  to  make 
a  contract  for  the  canal.  He  under- 
took to  carry  out  the  work  on  a 
certain  specification  that  he  had  drawn 
up.  the  price  being  £4,750.  One  of  the 
provisions  of  the  contract  was  that  the 
work  wa«5  to  be  done  under  inspection 
by  the  defendant  company.  The  so- 
called  specification  was  rather  an  esti- 
mate of  the  cost  than  an  actual  speci- 
fication. Witness  prepared  a  plan 
showing  the  situation,  widths,  and 
depths  of  the  canal.  He  started  work 
about  the  middle  of  April,  1903,  and 
went  on  until  the  26th  December.  He 
worked  without  friction  until  the  13th 
October;  the  work  had  been  inspected 
by  Mr.  Burger,  who  had  been  appoint- 
ed inspector  by  the  company.  The  pay- 
ments had  been  regularly  made  by  the 
company  each  fortnight  up  to  that 
stage.  He  received  no  complaints  as 
to  the  quality  of  the  work  until  Octo- 
ber. Mr.  Burger  made  a  complaint  in 
respect  to  a  mistake  in  witness's  pay- 
sheet  of  the  24th  October.  W^itness 
made  a  claim  on  the  21st  October  to 
the  amount  of  £176,  but  received  only 
£75  on  account.  Mr.  De  Kock  (second 
cashier  of  the  company)  saving  that  he 
had  no  money  to  meet  the  ^yment. 
Mr.  Burger  again  visited  the  canal  on 
the  30th  October,  when  he  expressed  hii> 
satisfaction  with  the  work,  with  the  re- 
sult that  the  balance  of  the  money 
owing  to  witness  was  paid  in  full.  Cer- 
tain sections  of  the  work  were  afterwards 
done  by  Mr.  Blom,  while  certain  other 
portions  were  done  by  Mr.  Burger  be- 
fore witness  went  on  the  job.  The  sug- 
gestion was  made  on  the  30th  October 
by  Mr.  Burger  that  witness  should  sub- 
let some  of  the  work  to  Mr.  Blom.  On 
the  31st  October  witness  asked  Mr. 
Burger  for  an  increase  of  price,  because 
the  work  was  mucli  heavier  than  ho 
had  anticipated,  on  account  of  the  na^ 
ture  of  the  ground.  Burger  gave  wit- 
ness a  fortnisrht's  notice  to  stop  the 
work,  but  witness  did  not  accept  the 
notice,  as  he  did  not  think  Mr.  Burger 
was  authorii?od  to  give  it.  On  the  3rd 
November  he  oame  to  Cape  Town  and 
sasw  Mir.  Michaul  (chadrman  of  the  com- 
pany), and  spoke  to  him  about  the  price 
ne  was  getting  for  tJhe  work.  Mr. 
Michau  told  him  to  put  his  complaints 


"CAPS  TIMB8"  LAW  RBP0BT8. 


856 


in  writinf]^,  and  mtaen  then  returned  to 
Robertson.  Ho  (jplaintiff)  aooordingly 
put  his  complaints  in  writing.  He  could 
not  tell  at  thai  time  whether  he  was 
going  to  gain  or  lose  on  the  contract, 
bec-ause  of  the  difference  in  the  chiarac- 
ter  of  the  ground  from  what  ho  had 
anticipated.  On  the  4th  November  he 
made  an  ordinary  fortnightly  claini  for 
£128  for  work  done.  The  claim  was 
payable  on  the  7th  November.  Ho 
tried  to  obtain  payment  from  Mr.  Do 
Kock.  but  he  waa  told  that  he  wa£  not 
entitled  to  any  money  at  that  time.  Mr. 
Burger  ijropoeed  to  witness  that  he 
fihoiud  give  a  portion  of  the  work  to 
Mr.  Blom,  and  let  him  have  the  tools 
in  his  (plaintiff's)  poeseeaion.  Witness 
declined  to  fall  in  with  the  euggestion, 
bid  *Mr.  Burger  then  aaid :  *'  All  right, 
wiit  until  matters  are  ripe."  Witness 
lan^r  on  received  a  telegram  from  Mr. 
Michau  telling  him  to  apply  to  Mr.  De 
Kock  for  £50.  Mr.  De  Kock  when  seen 
replied  that  the  money  had  not  arrived. 
Mr.  Burger  aftorwardi^  said  that  the 
money  would  be  paid  on  the  11th  No* 
vember,  but  it  was  not  paid  even  then. 
Mr.  Bk>m  appeared  on  the  work  on 
the  9th  November,  and  aaid  that  he 
had  been  sent  by  Mr.  Burger.  Wit- 
nefs  told  him  that  he  must  understand 
that  he  (plaintiff)  had  not  engaged  him 
and  that  if  he  started  work  it  was  on 
his  own  responsibility.  Witness  had  tc 
pay  hi6  workmen  out  of  his  own  pocket 
Witnescs  had  to  come  to  Cape  Town 
and  his  attorneys,  upon  his  ins'tructions, 
sent  a  letter  to  the  defendants,  calling 
upon  them  to  fulfil  their  part  of  tii€ 
contract.  Witness  was  present  at  a 
meeting  of  the  directors  held  in  Cape 
Town  on  the  13th  November.  His  ap 
plication  for  an  increased  rate  was  re 
jected.  He  agreed  to  continue  the  work 
at  the  old  price,  and  he  went  back  to 
Robertson.  On  the  14th  November  he 
i»ent  in  a  new  account,  but  that  aisc 
was  unpaid.  Mr.  Burger  came  about 
the  2l6t  November,  accompanied  by 
Mr.  De  Kock.  Mr.  Burger  inspected 
the  work,  and  a  complaint  was  made  b} 
Mr.  De  Kock  in  reference  to  a  certain 
road  crossing.  A  further  contract  wat 
entered  into,  whereby  the  lower  part  ol 
the  section  £  to  F  was  to  be  continued 
by  Blom,  and  the  witness  was  to  receive 
10  per  cent,  retention  monev.  He  en- 
tered into  this  contract  in  order  to  make 
things  go  smoothly.  From  that  time 
Blom  was  alwavs  paid  by  the  company. 
During  Novemoer  damage  wac^  caused 
by  an  extraordinary  rainiall,  the  water 
rifling  oonaiderably  above  the  normal 
level  of  the  furrow.  Witness  had  set 
apart  in  his  estimate  a  sum  of  £50 
for  contingencies  of  this  kind.  He  had 
further  disputes  with  the  company  with 
mgard  to  tne  amounts  due  to  nim.  De 
ductions  were  made  on  account  of  work 
which  had  actually  been  passed  and 
paid  for  previously.  On  the  19t!h  De- 
cember he  instructed  his  attorneys  to 
write  to  ihe  defendants  informing  them 


that  unless  the  deductions  were  remitted 
he  should  have  to  discontinue  work.  He 
received  no  reply  to  the  letter,  and  on 
the  26th  Dccemoer  he  discontinued 
work.  He  had  not  been  turned  off  the 
work  by  tJie  company,  but  he  had  had 
to  stop  because  thoy  discontinued  his 
fortnijjhtly  paj;nient«.  There  had  been 
ncgotiati<)nr>  with  a  view  to  arbitration 
but  these  had  come  to  naught. 

Cross-examined  bjr  Mr.  Burton :  Wit 
nesb  adnkitted  having  written  a  lettei 
to  ihe  company,  pointing  out  that,  ow 
ing  to  the  formation  of  the  ground,  he 
was  hardly  making  10  jper  cent,  on  ths 
contract. 

Mr.  Burton :  Are  all  the  statements 
contained  in  this  letter  true? — Witness: 
No. 

Then,  why  did  you  lie? — I  didn't  lie. 
At  that  time  I  was  losing.  I  had  not 
made  up  my  accounts,  but  then  I  knew 
that  my  financial  position  wais  not  good. 

In  answer  to  a  further  question,  he 
admitted  that  he  had  written  a  sillj 
letter,  and  said  that  if  he  had  been 
calmer  ho  would  have  written  a  more 
senriiblo    letter. 

Cross-exami nation  continued:  He  said 
in  one  of  his  letters  that  the  work  wa« 
costing  him  three  times  more  tJhan  he 
was  getting,  but  he  only  referred  to  cer- 
tain sections,  which  proved  heavier  work 
than  he  had  thought.  On  the  average, 
however,  the  coat  wa^  less  than  he  had 
eetimated  for.  He  was  working  in  the 
rock  at  the  time  ho  left  the  job.  He 
denied  that  on  the  Slst  Octorber  Mr. 
Burger  said  he  was  dissatisfied  with  the 
work.  He  did  not  tell  Mr.  Burger  on 
that  occasion  that  it  was  impossible  for 
him  to  go  on  with  the  contract,  because 
he  was  losing  too  heavily.  Instead  of 
witness  proposing  to  leave  the  work. 
Mr.  Burger  and  Mr.  De  Kock  iumpea 
to  the  idea  of  getting  him  to  abandon 
the  contract,  proposing  to  give  witness 
a  fortnight's  notice.  Witness  denied 
that  he  had  ever  given  notice  to  the 
company  that  he  was  going  to  discon- 
tinue work  on  the  contract,  despite  the 
report  made  by  Mr.  Burger  to  the 
directors.  On  t»ne  Sunday  following  the 
meeting  t'hat  he  had  with  Mr.  Burger 
and  Mr.  De  Kock,  he  met  Mr.  Burger, 
but  he  did  not  tell  him  that  he  regretted 
having  given  notice  to  disoontinue  the 
contract.  On  the  other  hand,  he  told 
Mr.  Burger  that  he  had  not  tne  slight- 
est  idea  of  abandoning  the  contract. 
He  did  not  propose  to  Mr.  Bur^jer  that 
Ihe  should  get  someone  to  assist  him 
in  the  work.  On  the  other  hand,  Afr. 
Burger  proposed  to  put  Mr.  Blom  into 
the  work.  He  went  into  the  contract 
with  Mr.  Blom,  so  as  to  help  to  bring 
the  job  to  a  peaceable  conclusion.  The 
consftruotion  of  the  canal  was  begun 
by  Mr.  Burger,  and  witness  took  up  the 
work  at  the  point  whore  Mr.  Burger 
had  fini.«*hed.  Witnet's  saw  Mr.  Blom 
at  the  job  after  he  (Boldt)  had  left, 
but  he  never  saw  him  repairing  tho 
work  which  ho  (Boldt)  had  carried  out. 


fm 


.i 


CAPE  TIMES"   LAW  REPORTS 


No  work  had  been  doiie  over  atfain, 
except  a  wall,  which  had  not  been  placed 
at  ita  proiK'r  hoij^ht.  Mr.  Bur;^or  did 
not  oomplaiii  alK)ut  the  way  in  which 
he  had  8l<>|i0(l  tlio  krantz.  Stones  would 
still  fall  in  from  that  slope.  All  the 
same,  he  considered  that  the  slope  he 
had  made  was  sufficient.  He  had  never 
m^de  alterations  of  the  work  which  i  e 
had  done.  Mr.  Burger  did  not  complain 
that  he  had  not  taken  out  his  levels 
properly  by  the  gravel  pit.  He  did 
not  complain  to  witne»  that  he  wu6 
making  the  canal  too  shallow.  Mr. 
Burger  made  deductions  on  account  of 
certain  leakages.  Witness  did  not  know 
anything  about  the  canal  having  'caked 
in  various  places  during  rains  m  Ja.iu- 
ary,  1904,  and  flooded  the  vineyards  of 
Mr.  Marais.  6uch  a  statement,  ne 
thought,  must  be  an  exaggeration.  Ho 
did  not  consider  that  the  walls  of  he 
culvert  were  too  thin.  He  had  <^m1v 
claimed  for  £35  out  of  iB50,  to  which 
he  would  have  been  entitled  if  he  had 
completed  the  culvert.  He  had  ery 
nearly  completed  the  culvert  when  he 
ceased  work.  He  bad  not  been  paid  a 
halfpenny  in  respect  of  this  part  of  the 
contract.  On  the  7th  November  he 
claimed  £14  on  account  of  the  culvert, 
but  he  was  paid  nothing  in  respect  ot 
that  matter.  He  did  not  receive  a 
letter  from  the  defendants  saying  ♦hat 
Mr.  Scaife  would  inspect  the  works  nn 
behalf  of  the  Government  on  the  5th 
December.  He  did  not  know  anything 
about  Mr.  Scaife's  visit  until  .i  Kid 
actually  taken  place.  His  attorneys  re- 
ceived the  letter,  but  he  did  not  receive 
any  intimation  of  the  visit  until  it  had 
been  paid. 

Re-examined :  Witness  was  told  by  the 
company  to  carry  out  the  work  as  econo- 
mically as  possible,  and  to  do  it  for  not 
more  than  £5,000.^  Canals  of  a  simikir 
length,  when  carried  out  by  the  Gov- 
ernment,   had    cost    £30.000. 

[Buchanan,  A.C.J. :  Then,  why  did  you 
undertake  the  work  at  £4,000?] 

Witness:  £5,000,  my  lord.  I  would 
have  been  able  to  carry  it  out  at  that 
price. 

Repljring  further  to  the  Court:  Wit- 
ness said  that  in  carrving  out  the  work 
he  did  not  carefully  loUow  the  line  of 
survey,  but,  in  order  to  avoid  the  deeper 
excavatioTM,  ho  went  round,  and  thus 
saved  expense.  He  understood  that  the 
canal  had  given  every  satisfaction. 

Charles  D.  Braime,  A.M.I.C.B.,  said 
that  he  had  had  considerable  experience 
oC  irrigation  work  He  inspected  the 
work  in  question  on  the  25th  or  26th 
January,  1904.  The  culvert  was  rough 
work,  but  it  was  perfectly  sound,  and 
suitable  for  its  purpose.  When  he  look- 
ed at  the  retaining  walls  built  by  Mr. 
Burner,  he  found  that  they  were  bulg- 
ing m  three  places,  and  remarked  at  the 
time  that  Uiere  would  be  trouble  in  the 
future  from  the  walls.  The  length  of 
canal  opposite^  Mr.  Marais's  vineyard 
was,   in  bis  opinion,   an  excellent  piece 


of  work.  On  the  section  south  of  tbo 
Groot  Rivier,  the  work  was.  in  his  opin- 
ion, in  accordance  with  the  specification. 
He  thought  the  work  had  been  carried 
out  on  proper  principles.  The  canal 
was  not  too  narrow.  Witness  took  par- 
ticular care  to  see  that  the  widths  were 
oorrectw 

Dr.  tjireer:  W^ould  the  canal,  as  far  as 
the  work  had  been  carried  out  by  Mr. 
Boldt,    have   answered    the   purpose  for 
I     which  it  was  built? 

Witness  (deliberately) :  That  is  rather 
difficult.  In  the  first  place,  a  canal, 
after  it  has  been  built,  would  almost  in- 
variably leak.  You  can  hardlv  expect 
anything  else.  There  has  hardlv  been 
a  canal  built  in  the  whole  world  that  did 
not  leak  at  first,  and  did  not  require 
maintenance. 

[Buchanan,  A.C.J. :  It  improves  with 
age?] 

Witness :  A  canal  does,  as  a  rule.  If 
you  have  leaky  places,  they  will  silt  up. 
They  are  bound  to  leak  when  they  are 
new,  sure  to  leak.  In  further  evidence, 
he  said  that  the  canal  was  not  very 
finished  work,  but  he  would  regard  fin- 
ished work  on  an  undertaking  of  that 
kind  as  a  waste  of  money. 

Cross-examined  by  Mr.  Burton :  Wit- 
ness was  now  engaged  in  the  Irrigation 
Department,  Transvaal.  He  was  for- 
merly in  the  Public  Works  Department 
of  Cape  Colony  for  about  four  years, 
having  been  stationed  in  the  Midland 
districts.  Witness  did  not  merely  in- 
spect such  places  as  were  pointed  out  to 
him  by-  Mr.  Boldt;  he  inspected  the 
work  according  to  his  own  ideas.  He 
saw  one  place  where  there  was  <mly 
a  very  little  excavation  on  the  lower 
side,  perhaps  about  6  inches.  He  did 
not  think  that  was  insufficient  It  would 
all  depend  on  the  embankment.  They 
would  expect  leakages  in  such  materiu 
as  Boldt  would  be  going  through  at 
that  pojnt.  If  Boldt  had  made  deep 
excavatfons  through  the  solid  rock,  the 
expense  would  have  been  enormous,  and 
would  have  provided  a  worse  scandal 
than     a  Government  irrigation  scheme. 

R.  H.  Charters,  M.I.C.E..  said  that 
he  inspected  the  works  on  the  25th  and 
26th  May  of  this  year.  Sosne  water 
was  flowmg  through  the  canal  at  that 
time.  He  saw  a  slight  leakage  on  the 
first  day  in  various  parts  of  *'e"  and 
**  f,*\  and  on  the  second  day  he  saw  a 
considerable  leakage  near  the  Krantz. 
He  would  have  expected,  if  the  canal 
had  been  running  at  full,  to  find  no 
leakage,  but  he  understood  that  the 
canal  had  not  been  running  at  full,  and 
under  the  circumstances  he  would  ex- 
pect to  find  a  slight  leakage.  He 
thought  the  canal  was  a  very  fair  piece 
of  work.  He  gauged  the  veloci^  of 
the  water  between  sections  "  d "  and 
"e."  constructed  by  plaintiff,  and  found 
that  it  was  running  very  uniformly 
throughout.  The  work  was  decidedly 
rough  in  character,  but  he  thought  it 


"CAPE  TIMS8"  LAW  REPORTS. 


867 


was  qui  to  suitable  for  its  purpose  as  a 
country  canal.  He  saw  nothing  about 
the  work  that  one  could  complain  of. 

Cross-oxamincd  by  Mr.  Burton:  Wit- 
ness saw  the  work  18  mouths  after  Mr. 
Boldt  had  left  the  job,  and,  of  course, 
he  had  no  knowledge  of  what  might 
have  been  done  in  the  meantime.  The 
work  could  be  improved  both  from  an 
engineering  and  contractor's  point  of 
view,  but  he  would  not  say  that  be 
would  have  condemned  the  work  if  he 
had  been  appointed  to  inspect  it  on  be- 
half of  the  company.  A  good  deal 
would  depend  on  the  price  his  emplov- 
ers  were  prepared  to  pay  for  the  work. 

Michiel  Mauritz,  formerly  in  the  era- 
ploy  of  Mr.  Boldt,  on  the  works,  also 
gave  evidence. 

Cross-examined:  During  the  progress 
of  the  contract,  the  plaintiff  had  a  good 
deal  of  trouble  through  the  Kafirs,  who 
were  employed  on  tne  works,  running 
away. 

Mr.  Searle  closed  his  case. 

Thomas  W.  \V.  Perry,  engineer,  <4 
the  Public  Works  Doparbment,  said 
that  he  inspected  the  works  on  the  8th 
January,  1904,  at  the  instance  of  the 
Government,  and  a.t  the  request  of  the 
company.  He  was  instructed  by  the 
Government  not  to  enter  into  the  dis- 
pute. He  saw  the  work  in  the  course 
of  other  duties  he  bad  to  perform.  At 
the  Krantz  he  saw  a  marked  difference 
between  the  work  done  by  Mr.  Burger 
and  that  done  by  the  plaintiff.  The 
former's  work  was  much  more  finished. 
The  work  done  between  sections  E  and 
F  by  the  plaintiff  was  very  unsatis- 
factory,  ana  Ihe  would  not,  as  an  en- 
gineer, have  been  prepared  to  pass  it. 

Louis  J<acobus  Burger,  the  vendor 
of  "the  property,  said  that  he 
now  resided  in  the  River  Hex 
district,  Worcester.  He  'begun  the 
work  in  question  in  1900,  and,  while 
he  was  the  owner  of  the  property,  he 
had   some    talk    with    Boldt  about   com- 

f Noting  the  work.  Witness,  upon  the 
ormation  of  the  company,  became  the 
manager.  Boldt  tendered  to  the  com- 
pany, but  no  restriction  was  placed  on 
the  figure  to  which  he  might  go.  De- 
scribing the  work  done  by  plaintiff,  wit- 
neaa  went  on  to  say  that  even  in  April 
be  had  to  complain  about  the  work  at 
the  Krantz  ana  about  the  work  beyond 
at  the  gravel  pit.  He  had  also  to  find 
fault  with  the  way  in  which  Boldt  per- 
fonned  portions  of  the  contract  on  sub- 
sequent inspections  that  he  (witness) 
made.  After  Boldt  bad  left  the  work, 
Blom  waa  iiaid  ISs.  a  day.  Who'i 
Boldt  had  given  up,  Blom  had  to  -e- 
fxiove  part  of  the  stone  construction, 
and  had  to  strengthen  one  of  the  walls 
by  riding  earth  up  to  it.  Tito  wa/ter 
ran  through  the  walls  into  Mr.  Manais* 
property.  A  lot  of  work  had  ali9o  to 
he  done  over  again  at  the  Krantz. 
Blom  liad  to  finish  the  work  begun  upon 
the  culvert  by  Boldtv     If  Blom  had  not 

j3 


done  over  again  work  which  was  sup- 
posed to  have  been  done  by  Boldt,  the 
canal  would  not  have  been  of  any  use. 

CrocM-examined  by  Mr.  8earle :  Wit- 
ness made  payments  a^  the  work  pro- 
gressed, in  accordance  with  the  value 
of  what  had  been  done  by  Boldt.  He 
did  not  make  any  complamt  in  writing 
about  Boidt's  work.  Each  time  witness 
paid  him  in  Julv,  Boldt  said  that  he 
would  be  obugeu  to  give  uo  the  con- 
tract,  ^fitness  was  not  anxious  to  get 
Blom  on  the  job,  because  he  was  a 
friend  of  witness.  He  desired  to  git 
the  contract  completed  as  soon  as  pos- 
sible. He  had  not  spoken  to  Boldt 
of  £5,000  as  a  sum  that  he  should  keep 
before  him  when  he  tender,  i  for  the 
work. 

Barend  Louis  Blom,  contractor,  Ro- 
bertson, said  that  he  had  to  execute 
over  again  a  considerable  amount  of 
work  which  was  supposed  to  have  been 
finisned  by  the  plaintiff. 

Cross-examined :  Witness  commenced 
the  jcA>  ooi  the  9th  November,  but 
two  months  previously  Mr.  Burger  tkad 
asked  him  to  take  on  the  woiic  at  5s. 
a  yard.  Witness  declined  that  offer. 
He  arranged  with  Mr.  Burger  that  he 
was  to  be  paid  15s.  a  day.  Eight  days 
aifter  he  iiad  begun  the  job,  Burger 
came  and  offered  him  4fl.  6d.  a  yard, 
but  thi?»  witness  refused  to  accept,  and 
he  then  entered  into  an  agreement  with 
Boldt  whereby  he  was  to  receive  46.  6d, 
a  vard.  Ho  was  promised  that  if  he 
did  not  come  out  all  right  at  that 
price,  some  allowance  would  be  made 
to  him.  He  was  paid  ISs.  a  da^,  as  a 
matter  of  fact,  during  all  the  time  he 
was  on  the  job. 

Johannes  Jacobus  de  Kock,  local  sec- 
retary to  the  defendant  company  at 
Robertson,  gave  evidence  a«  to  why  cer- 
tain money  was  withheld  from  the 
plaintiff. 

Cro«-exa mined :  There  was  nothing 
in  the  minutes  of  ti.e  company  appoint- 
ing him  to  the  position  of  local  secre- 
tary. He  had  been  appointed  informal- 
Iv.  He  also  ke^t  a  store  at  Kobertson. 
At  one  time  Boldt  had  gone  unpaid 
for  a  month. 

Re-examined  :  During  November,  1903, 
Boldt  owed  the  company  money. 

[Buchanan,  A.C.J. :  *'  That  is  provided 
for  in  the  contract.  It  has  nothing  to  do 
with  the  settlement."] 

John  J.  Michau.  chairman  of  the  de- 
fendant company,  said  that  at  a  direc- 
tors* meeting  on  November  13,  1903, 
Boldt  said  that  unless  he  was  paid  an- 
other £^0  he  would  not  be  able  to  con- 
tinue the  work.  Witness  was  the  only 
one  present  in  favour  of  granting  the 
£250,  and  the  company  decided  to  ad- 
here to  the  contract.  Up  to  the  present 
the  cost  of  the  canal  had  been  £5,741 
14s.  lid.,  all  of  which,  with  the  excep- 
tion of  £1,400  paid  to  the  plcuntiff,  had 
been  paid  to  Eilom.     J/om  |»ad  been  in- 


858 


'CAPK  TIMES"  LAW  REPOBT8. 


curred  throuffh  delay.  In  November  1 
plaintiff  owed  the  company  £300,  £100 
of  whioh  was  uoducted.  The  bal&iice 
was  allowed  to  stand  over,  the  under- 
standing being  that  it  should  bo  de- 
ducted from  the  co«t  of  the  syphon 
which  had  been  ordered  from  the  plain- 
tiff's firm. 

Cross-examined :  The  plaintiff  had  to 
pay  back  the  loan  of  £400  at  the  rate 
of  £55  per  month. 

t Buchanan,  A.C.J. :  Then,  why  did  you 
:  him  for  £100  in  November?] 
He  was  throe  months  in  arrears. 
Mr.    Searle :    Was   he?— Yes;     it    was 
reported   to   the   Board   that    ho    was  in 
arrear   with  his   payments. 

Where  is  it  in  jrour  minutes;  pro- 
duce it? — It   is  not  in   the  minutes. 

[Buchanan,  A.C.J. :  You  did  not  pay 
him  anything  on  November.  Why  did 
you  ask  him  for  £100?] 

We  had  to  protect  ourselves.  We  de- 
ducted it. 

[Buchanan,  A.C.  J. :  It  strikes  me  you 
wanted  to  squeeae  him  out.] 

No ;  I  was  sorry  for  Boldt. 

Proceeding,  witnees  said  that  the  com- 
pany had  plenty  of  funds  in  hand ;  to 
which  Hiii  Lordship  and  counsel  replied 
that  no  one  had  suggested  that  it  had 
not. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Buchanan,  A.C.J. ,  said:  Befors 
1900  Mr.  Burger  conceived  an  ex- 
tensive scheme  of  irrigation,  and, 
with  the  assistance  of  a  Government 
engineer  he  had  some  information  given 
him  as  to  levels  and  a  sketch  plan  of 
the  locality.  I  very  much  regret  that 
a  scheme  of  such  great  importance,  and 
one  lio  highly  commended,  should  have 
been  brought  into  court,  but  we  have 
nothing  to  do  now  with  the  commenda- 
tion of  Mr.  Burger  for  his  enterprise ; 
but  we  have  to  confiiM*  ourselves  to  the 
matters  before  the  Court.  After  Burger 
had  constructed  the  canal  or  furrow 
in  1903,  negotiations  were  entered  into 
with  the  plaintiff,  who  had  btH»n  in  the 
Government  service,  and  had  assisted 
in  some  of  the  preliminary  investiga- 
tions which  had  taken  place.  Unfor- 
tunately no  proper  plaiii^  or  details  were 
{jrepared,  but  on  data  he  had  before  him 
le  offered  to  complete  the  canal  for 
£4,500.  He  entered  upon  the  work  in 
April,  and  worked  until  rome  time  in 
December.  He  was  not  a  man  of  means, 
and  to  assist  him  in  getting  tools  and 
to  import  pipes,  the  company  advanced 
£400  to  him.  They  agreed  that  ho  was 
to  send  in  a  fortnightly  statement, 
which  was  to  l>e  submitted  to  a  represen- 
tative on  behalf  of  the  company,  and 
the  amount  approved  of  should  be  paid 
every  fortnignt  to  him  for  his  work. 
At  nrst  things  went  tolerably  r^moothly, 
but  as  time  went  on  the  plaintiff  found 
mismoasurements  in  the  data  upon  which 
ho  had  based  his  tender,  and  also  that 


tbe<re  was  a  quantitv  of  hard  rock,  the 
presence  of  which  be  had  not  antici- 
pated. The  erocw-sectiou  annexed  to 
tlR*  contract  »hows  that  where  this  rook 
wsff  found  the  plaintiff  wa6  not  intended 
M>  excavate  on  both  sides,  but  only  on 
one,  the  ground  excavated  to  be  thrown 
up       on       the       other       aide.  As 

to       the        mode       of         construction, 
it  was  left  to  a  great  extent  in  Boldt's 
hands,   subiect   to   the   approval   of   the 
c<:mpany.    Burger   formed   bis      scheme 
into  a  company,  but  he  seems  to  be  the 
person    who   controlled   the   work.       In 
September  or  October.  1903,  one  of  the 
directors,  De  Kock,  came  on  the  scane, 
and    from   then   difficuhies   commenced. 
Boldt,  on  finding  the  heavy  rook,  wish- 
ed   the    company    to    increase    his    pay- 
ment.    To   this   the   managing   director, 
Mr.  J.  J.  Michau,  was  favourable,  but 
his   co-directors   were   not,    and    Burger 
was  one  of  those  who  objected.       The 
company   held   that   Boldt   must  adhere 
to    the   contract.    There   was   an    inter- 
view   between    Boldt,    Burger,    and    De 
Kock  about  the  end  of  October,  and  at 
this  interview  Mr.  Burger  came  to  the 
conclusion    that    Boldt    had    given    him 
notice   that  he   was  about  to   terminate 
the  w<M-k.       Burger  might  have  misun- 
derstood Boldt,  for  shortly  after  Burger 
wrote   to   the  directors  in   Cape   Town, 
saying  that  Boldt  had  given  notice,  and 
that  ne  (Burger)  wanted  money  in  order 
to  settle    with   Boldt.       Now,      Burger 
must   either    have    misunderstood    Boldt 
or  misrepresented  him.       That  is  quite 
clear,    for   Boldi.  on   November   10   says 
that  he  was  quite  willing  to  continue  the 
work  even  if  he  obtained  no  profit  from 
it,  as  he  was  anxious  to  save  his  repu- 
tation.    Boldt  at  that  time  had  near  the 
works   a  shop  from   which   he   had   ob- 
tained   profit   through  supplying   native 
labourers    with    goods.     De    Kock    and 
Burger  introduced  a  man   named  Blom 
to  I^ldt,  and  induced  the  latter  to  take 
Blom  on,     although     that     was  against 
Boldt's    wish.     When    Blom    took    OA'er 
the  work,  he  supplied  the  labourers  in- 
stead of  letting   tliem   buy   their   things 
from    Boldt.       The    things   Blom      sold 
were  obtained  from  De  Kock.  and  when 
De  Kock  and  Burger  found   that   Boldt 
was  not  g'>ing  to  give  up  the  contract. 
Burger  omitted  to  inspect  the  works  for 
a    whole   month,    with   the   result      that 
Boldt  was  kept  out  of  his  money.  This 
nut  him  in   a  critical   position,   because 
ne   was  not  a  man  of   means,   and  the 
next  account  he  sent  in  Burger  reduced 
in  such  a  way  that  Boldt  could  only  re- 
o(»ive   £3  98.   6d.       This   brought  Boldt 
to  a  standstill,  and,   although  he  wrote 
to  town,    he  got   no   redress.       At   this 
time    pressure   was  put   upon   Boldt   le- 
gardin?   certain    moneys   borrowed      by 
him.  instalments  of  which  he  had  been 
paying  regularly  all  alonp.       All     these 
circumstances    have  convmced    me    that 
there  was  a  desire  on  the  part,  not  of 
Mr.    Michau,    but   of   Burger    and    Do 


« 


CAPE  TIMES"  LAW  REPORTS. 


869 


fPlaintifTs  Attorneys:  Fricdlandor 
and  I>u  Toit.  Defonaant'.-j  Attoriioys : 
Miehau  and  Do  Villiers.] 


Kock.  to  squeeze  Bo4dt  out  of  the  con- 
tract, and,  aa  Boldt  could  not  get  his 
money,  he  had  to  cease  work.  Burger 
has  said  that  Boldt  had  over-measured 
the  work  done  by  219  yards,  but  I  am 
inclined  to  take  Boldt's  version  of  the 
matter,  for  his  claim  has  never  before 
been  disputed.  I,  therefore,  find  that 
the  amount  of  measurement  claimed  by 
Boldt  must  be  allowed.  On  the  ques- 
tion of  the  amount  of  work  done,  Bur- 
5er  says  that  600  yards  have  not  been 
one  properly,  but  expert  evidence  has 
shown  that  the  canal  had,  as  it  were, 
to  find  itself.  I  agree  with  Burger  that 
the  work  was  not  quite  completed,  al- 
though at  the  same  time  it  was  an  am- 
biguous position  to  place  Burger  in,  viz., 
to  pass  the  work.  Blom,  the  defend- 
ants* own  witness,  has  said  that  he 
thinks  3d.  a  yard  would  remedy  the 
work,  and  Marais  does  not  think  that 
there  is  much  to  be  done.  However,  as 
Boldt  has  said  that  he  requires  Is.  a 
yard — and  I  must  say  that  I  think  it  is 
nigh — I  think  I  must  allow  that  amount, 
viz.,  £30.  There  is  another  item  of  £25 
for  work  done  on  the  culvert.  It  is 
clear  it  was  not  completed,  but  the  work 
was  well  done.  Burger  has  deducted 
£5  from  the  account,  and  I  think  this 
must  be  allowed,  so  that  from  the  £85 
lOs,  9d.  claimed  by  Boldt  for  work 
done,  the  sum  of  £35  must  be  deducted. 
The  next  claim  is  for  the  10  per  cent, 
retention  money,  which  has  Iwen  hold 
over  by  the  company.  Undoubtedly, 
this  work,  for  which  £159  10s.  6d.  'is 
claimed,  has  been  done,  and  must  be  al- 
lowed for  making  in  all  £208  9s.  6d. 
With  regard  to  damages,  if  Boldt  had 
any  reason  for  discontinuing  his  work, 
the  question  arises,  is  he  entitled  to 
damages?  I  do  not  think  that  he  is, 
for  two  reasons.  One  is  that  he  discon- 
tinued the  work,  and  the  other  is  that 
the  work  was  not  of  a  profitable  nature, 
and  that  he  would  not  have  made  the 
£500  which  he  is  claiming.  He  would 
have  got  working  wages  only,  and  not 
a  penny  more.  In  reconvention,  the 
defendants  claim  for  £750  and  £250, 
but  I  do  not  think  that  they  are  en- 
titled to  claim,  for  by  thoir  own  conduct 
they  forced  Boldt  to  give  up  the  con- 
tract. On  the  claim  in  convention  Boldt 
will  be  allowed  £50  for  work  done,  and 
the  retention  money,  which  is  clearly 
due  to  him  foi  work  completed  and 
paflsecL  As  to  the  claim  for  damages, 
nothing  will  be  awarded.  As  for  the 
case  for  damages  by  the  other  side,  I 
think  they  are  barred.  Judgment  will 
be  entered  for  Boldt  for  £208  98.  6d.. 
with  costs. 


SECOND  DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Ma  asdoup.] 


ORANGEZICHT  ESTATE.  LTD 
V.  TOWN  COUNCIL. 


f       1905. 
I  Oct.  30th. 


Mr.  Searle,  K.C.  (with  him  Mr. 
Close),  was  for  the  applicants,  and  Sir 
H.  Juta,  K.C.  (with  him  Mr.  Ben- 
jamin), was  for  the  defendants.  The 
application  was  on  behalf  of  the  Town 
Council,  of  Cape  Town,  in  a  case  which 
was  pending,  for  permission  to  make 
certam  excavations  on  the  estate,  which 
the  Oouwcil  say  are  necessary  for  the  pur- 
pose of  determining  the  issue  in  the 
suit,  and  for  the  appointment  of  a  com- 
mission to  take  tlie  evidence  of  Mr. 
Henry  Rofe  in  London.  If  the  latter 
application  was  granted  it  would  neces- 
sitate a  postponement  of  the  trial  from 
the  preeent  term.  Both  applications 
were  opposed.  The  plain'tiffs  claimed  a 
declaration  of  rights  for  an  order 
against  the  defendants  to  pass  certain 
plans  and  for  £1,000  damages. 

Couneel  having  been  heard  in  argu- 
ment, 

Maasdorp,  J.,  said:  It  seems  that 
the  defendants  in  this  case  are  en- 
titled to  the  use  of  the  water  of 
certain  springs  situated  on  the  lands 
of  the  plaintiffs,  and  that  the  plain- 
tiffs now  propose  to  divide  the  land 
into  building  lots,  and  to  sell  these 
lots  for  the  purpose  of  building.  The 
defendants  are  afraid  if  the  land  is  built 
upon  in  some  way  or  other  it  may 
affect  the  purity  of  the  water  springs, 
and  consecjuentfy  they  wish  to  prevent 
the  plaintiffs  from  doin^  anything 
which  would  injure  their  rights.  In 
this  case  it  happens  that  they  have  had 
it  for  the  time  being  in  their  power  to 
prevent  such  buildings  by  refiii-ing  to 
sanction  plans  submitted  by  the  plain- 
tiff; that  is,  of  course,  only  a  tem- 
porary expedient,  and  the  Court  would 
ultimately  have  to  decide  whether  they 
have  the  right  to  protect  their  springs 
by  having  the  plaintiffs  prohibted  from 
building.  Now  some  very  large  ishuet^ 
will  be  raised  in  this  case,  and  among 
the  questions  will  be  a  very  large  one, 
as  to  whether  the  owner  of  a  servitude 
to  water  on  land  has  a  right  to  prevent 
building,  because  there  is  some  proba- 
bility tnat  his  spring  may  be  interfered 
with.  I  think  the  defendant  is  noiw  an- 
ticipating one  of  the  issues  raised.  Such 
an  oroer  could  only  be  grantjod 
on  the  final  settlement  of  the 
rights  between  the  parties  after 
the  legal  position  had  been  de- 
cided. Without  expressing  any  opinion 
of  the  rights  of  the  parties,  the  first 
application  will  be  refused.  With  re- 
ference to  the  evidence  of  Mr.  Rofe, 
it  seems  to  be  material  evidence,  and 
the  application   in   thait  respect  mil  be 


860 


if 


CAPE  TIMES"   LAW  REPORTS. 


granted.  The  parties  will  go  to  trial 
by  the  12th  February,  Mr.  Dwyor  to 
act  as  commissioner,  ccifits  to  bo  cobts 
in   the   cauce. 


VAN  DEB  RIKT   V.   VAN  ZYL. 

This  was  an  action  brought  by  George 
Louis  Werendly  van  der  Riet?,  of  Brita- 
town,  again.st  Jurie  Johannes  Wilhelm 
van  'Zy\,  of  Simonapoort,  in  the  diviaion 
of  Britstown,  for  an  order  calling  upon 
the  defendant  to  execute  a  contract  | 
of  lease,  or,  in  default,  for  judg- 
ment in  the  sum  of  £1,000.  On 
the  22nd  May,  1900,  the  plaintiflF 
entered  into  a  contract  of  lease  in 
respect  of  certain  buildings  and  erven 
situated  in  Britstown,  and  on  the  18th 
February,  1905,  the  plaintiflF  duly  exer- 
cised his  right  of  renewal,  whereby 
the  lease  was  extended  for  a  further 
period  of  five  years.  This  the  defen- 
dant   denied. 

Mr.  Benjamin  (with  him  Mr.  Douglas 
Buchanan)  was  for  the  plaintiflF,  and 
Mr.  Searle,  K.C.  (with  him  Mr.  Bisset) 
was  for  the  defendant. 

George  Louis  van  der  Reit,  the  plain- 
tiflP,  said  on  February  18  he  gave  notice 
of  his  exejci.se  of  the  option  of  renewal  for 
five  years  from  July  1, 1905,  and  received 
a  letter  from  the  defendant  accepting. 
On  July  1  the  defendant  came  to  his 
oflBce,  and  plaintiff  asked  for  the  option 
<;f  ftnofeher  five  years,  and  defendant 
said:  "All  right,  you  can  have  it."  The 
original  renewal  was  to  be  cancelled, 
and  a  new  lease  was  to  be  entered  into. 
They  went  over  to  Mr.  Raath,  the  at- 
torney, and  instructed  him  to  draw  up 
the  lease  on  the  same  day.  In  thd 
afternoon  the  defendant  came  to  wit- 
ness's office,  and  said  his  wife  was 
against  it,  and  he  could  not  do  it. 
lipfendant  went  awajy,  and  on  Raath's 
advice  ho  wrote  to  the  defendant  hold- 
ing him  to  the  agreement,  but  he  got 
no  reply,  and  defendant  subseciuently 
refused  to  i«ign  the  contract  unless  wit- 
ness paid  him  £50. 

In  cross-examination,  witncfl*^  denied 
what  defendant  said  in  reply  to  his  re- 
quest for  another  five  years'  option : 
"  No.  I  won't  live  that  long.*' 

Nanne  Johannes  Schmierstina,  book- 
keeper in  plaintiff's  employ,  gave  cor- 
roborative evidence  as  to  what  t<x)k 
place  between  plaintiff  and  defendant 
m  plaintiff's  oflRoe. 

Baron  Jacobus  Raath,  attomoj,  of 
Britstown,  stated  that  on  an  occas^ion  of 
the  plaintiff  and  defendant  coming  to 
hif  office,  the  plaintiflF  »tated  that  the 
defendant  had  again  given  him  the  place 
for  ten  years,  and  asked  him  to  draw 
up  a  copy  of  the  old  contract,  and  sim- 
ply alter  the  dates.  The  defendant  in 
a  joke  said :  "I  suppose  I'll  be  dead 
when  the  contract  expires.'* 

Mr.  Benjamin  closed  his  case. 


J.  J.  van  Zyl,  the  defendant,  denied 
making  any  new  contract  with  the 
plaintiff.  After  the  plaintiff  kept  trou- 
bling him  time  after  time,  witness  told 
1  im  positively  that  there  could  be  no 
new  contract.  Van  dor  Riet  came  to 
him  subsequently,  and  said  he  wanted 
t^  draw  up  a  contract  for  from  ten  to 
fifteen  years,  and  witness  refused.  Tlie 
plaintiff  was  constantly  troubling  him 
about  the  contract.  When  Mr.  Raath 
spoke  about  the  contract,  witness  denied 
that  he  ever  agreed  to  the  extension. 

Cross-examined :  Mr.  Raath  had  been 
his  legal  adviser.  The  plaintiff  asked 
for  an  extension  of  from  five  to  fifteen 
years,  and  witness  walked  away  in  a 
rage. 

Charles  Johannes  van  Zyl  corrobor- 
ated his  father  as  to  what  took  place  in 
the  presence  of  Van  der  Riet,  about  the 
contract.  His  father  said  the  old  con- 
tract was  quite  good,  and  the  plaintiff 
was  trying  to  catch  him  for  another 
five  years. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts. 

Maasdorp,  J.,  said :  At  one  stage 
of  the  case  it  seemed  to  me  not 
at  all  improbable  that  this  du- 
pute  was  the  result  of  a  misunder- 
standing between  the  two  parties,  and 
that  in  the  face  of  that  misunderstand- 
ing it  would  be  impossible  for  the  Court 
to  hold  that  the  parties  had  arrived  at 
a  mutual  consent.  But  as  the  case  de- 
veloped itself,  it  seemed  to  me  that 
tliere  was  suoh  a  confiict  of  evidence, 
which  placed  the  parties  in  such  a  posi- 
tion that  there  was  no  room  for  a  mis- 
understanding, and  both  counsel  have 
contended  that  there  is  a  serious  con- 
flict of  evidence  in  this  case.  The  ques- 
tion now  is  whether  the  evidence  in 
this  case  supports  the  position  taken 
up  by  the  plaintiff,  or  by  the  defend- 
ant. The  positions  are  so  far  apart  that 
they  cannot  both  be  maintained,  and  it 
cannot  be  said  upon  considering  any  of 
them  that  there  is  still  any  room  for 
misunderstanding.  As  to  what  took 
place  on  the  1st  July,  the  plaintifTs  evi- 
dence is  corroborated,  and  the  defend- 
ant's evidence  is  uncorroborated.  If 
that  had  stood  by  itself  I  would  have 
still  maintained  that  the  plaintiff  should 
prove  his  case.  Upon  tlie  whole  of  the 
evidence,  I  am  satisfied  that  Raath  was 
not  in  possession  of  the  contract — it 
ma^  have  been  left  in  Mr.  Cillie's  pos- 
sets ion.  whose  clerk,  Raath  thon  wa& 
On  the  whole,  I  find  that  the  contract, 
as  set  forth  in  the  draft  agreement, 
made  by  Mr.  Raath,  contains  the  terms 
agreed  uiK)n  by  the  parties.  An  order 
will  be  given  on  the  defendant  to  exe- 
cute this  lease,  the  defendant  to  pay 
the  costs,  the  plaintiff  declared  a  neces- 
sary witness. 


"CAPE  TIMES **  LAW  REPORTS. 


861 


SUPREME  COURT 


SECOND  DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Maasdobp.] 


ANDEIiSON   V.  ANDERSON,     j  Qd        31st 

ThiB  was  an  action  brought  by  Emily 
Agnes  Anderson,  of  Salt  River,  against 
her  husband  Richard  Anderson,  an 
eng>ine>driver,  for  restitution  of  con- 
jugal rights,  failing  which,  a  decree  of 
divorce,  by  reason  of  the  defendant's 
malicious  desertion.  Mr.  Bailey  wa£ 
for  the  plaintiff,  and  the  defendant 
was  in  default.  Counsel  explained 
that  the  defendant  had  filed  a  plea, 
but  his  solicitors  were  not  instructed 
to  proceed  further.  The  defendant's 
present  whereabouts  were  unknown. 
The  pfltrties  were  married  on  the  26th 
December,  1900,  at  Cape  Town,  and 
on  the  11th  November,  1901,  he  de- 
lierted  the  plaintiff,  and  since  then  had 
not  contributed  to  her  support.  The 
defendant,  m  his  plea,  admitted  desert- 
ing the  plaintiff,  and  he  claimed  in  re- 
convention a  decree  of  divorce,  alleging 
that  the  plaintiff  had  committed  adultery 
with  one  William  Twcntyman  Jackson. 
The  roplioation  denied  the  allegations  in 
the   plea. 

Emily  Agnes  Anderson,  plaintiff  in 
the  suit,  said  she  was  married  to  the 
defendant  on  the  26th  December,  1900. 
She  lived  with  her  husband  for  eleven 
months.  On  the  11th  November,  1901, 
the  defendant  loft  her,  and  since  then 
he  had  not  contributed  to  her  sunjjort. 
She  knew  Jackson,  who  was  a  friend 
of  the  defendant,  and  she  denied  the 
allegations  made  by  her  husband.  The 
defendant  got  jealous  of  Jackson  with- 
out any  reason. 

By  Maasdorp,  J. :  She  had  heard  no- 
thing of  the  defendant  since  1901.  Wit- 
ness supported  herself  for  four  yoars  aa 
a  cook. 

An  order  of  restitution  of  conjugal 
rights  granted,  the  defendant  to  re- 
turn by  30th  November,  or  show  cause 
by  the  12th  December  why  a  decree  of 
divorce  should  not  be  granted.  Per- 
sonal service  to  be  effected,  failing 
which,  leave  to  counsel  to  move  again. 

Pottea  (Docember  15).     Rule   absolute. 


DIRKS  V.  8GHR0DKR. 

This  was  an  action  for  an  order  com- 
pellinf^  the  defendant  to  deliver  to  the 
plaintiff  a  certain  receipt  for  transfer 
duty,  dated  June,  1895,  and  for  £100 
damages,  for  wrongful  detention.  .Tho 
declaration  set  out  that  the  plaintiff 
was  a  farmer,  and  the  defendant  an 
attorney,   both   residing   in   the   district 


of  Gordonia.  About  August,  1894, 
the  plaintiff  purchased  a  farm  from  one 
Eiman,  and  paid  transfer  duty  to  the 
amount  of  £20  17s.,  and  received 
through  his  attorney  (Tilney)  a  duly^- 
authenticated  receipt.  Thereafter  Til- 
ney handed  the  receipt  to  the  defendant, 
and  the  defendant  had  the  receipt  still 
in  his  possession.  The  receipt  be- 
longed to  the  plaintiff,  and  through 
the  defendant's  wrongful  detention,  he 
was  unablo  to  pass  transfer  of  the 
farm. 

The  plea  admitted  that  the  transfer 
duty  wai,  paid,  and  that  a  duly-authen- 
ticat<.»d  receipt  was  signed.  The  de- 
fendant was  instructed  by  Eiman  not 
to  pa.ss  transfer  until  the  whole  of  the 
purchase  price  had  been  paid.  The 
defendant  detained  the  sadd  receipt  for 
the  purpose  .of  passing  transfer  when 
the  purchase  price  was  paid.  There 
still  remained  £50  owing  in  respect  of 
tlie  purchaiK)  price.  On  the  10th  April 
the  defendant  tendered  to  the  plaintiff 
the  said  receipt,  together  with  costs, 
which  tender  he  repeats. 

Mr.  Upington  (with  him  Mr.  P.  8. 
T.  Jones)  was  for  the  plaintiff,  and  Mr. 
Oardiner  (with  him  Mr.  J.  B.  K.  de 
Villiers)  was  for  th©  defendant. 

H.  J.  H.  Dirks,  plaintiff  in  the  case, 
stated  on  the  29th  August,  1894  he 
bought  the  farm  from  Eiman  for  £500. 
He  got  receipts,  including  one  for  £20 
cash,  which  ho  paid.  By  one  of  the 
documents,  Eiman  was  to  pay  the  ex- 
penses of  survey  and  transfer.  As  a 
matter  of  fact  witness  paid  the  transfer 
duty  through  Mr.  Tilney.  Witness  had 
paid  the  whole  of  the  purchase  price  in 
1895.  In  1898  he  could  have  sold  the 
farm  for  £750.  Witness  had  paid  his 
agent  £25  in  respect  of  searches,  etc., 
over  the  receipt. 

Cross-examined  by  Mr.  Gardiner:  It 
was  one  of  the  farms  that  came  before 
the  Concession  Court,  and  transfer  oould 
not  bo  given  until  th©  boundary  was 
fixed.  He  did  not  know  that  the  boun- 
dary was  only  fixed  in  1903. 

Charles  Richard  Steyn,  an  articled 
clerk,  in  the  employment  of  Mr.  Tilney, 
attorney,  Upington,  gave  supporting 
evidence. 

Mr.  Upington  closed  his  case. 

Alexander  Thompson.  farmer,  of 
Bechuanaland,  stated  that  in  1899  wit- 
ness sold  goods  to  Eiman,  who  show- 
ed him  a  copy  of  a  promissory  note,  and 
witness,  on  writing  to  Mr.  Schroder,  re- 
ceived an  original  promissory  note,  but 
ho  could  not  get  the  money  from  Dirks. 
Witness  returned  the  promissory  note  to 
Eiman,  who  eventually  paid  him.  Dirks 
did  not  deny  owing  the  momey,  but  said 
he  would  pay  nothing  until  ne  got  his 
papers. 

Cross-examined       by    Mr.    Upington : 
The  promissory  note  was  not  endorsed 
to  him.     He  never  traded  in  promissory 
notes,   and  he  did  not  know  that     the 
note  should  be  indorsed  over  to  him.  Ho 


862 


II 


CAPE  TIMES"   LAW  REPOtlTS. 


could  not  get  across  the  line  during  the 
war  to  collect  the  money  from  the  plain- 
tiff. 

Ernst  Schroder,  defendant,  stated  ho 
was  an  attorney  practising  at  Upiiigton. 
Dirks  and  Eiman  came  to  him  on  20th 
February,  1895.  They  asked  witnees  to 
do  the  transfer  work  in  connection  with 
the  farm.  In  reply  to  witness  Eiman 
said  there  was  still  a  balance  of  £77  to 
be  paid  on  the  purchase  price  of  £500. 
Dirks  admitted  the  promissory  note,  of 
which  the  one  produced  was  an  exact 
copy.  Witness  took  steps  at  once  to 
get  the  grant,  and  eventually  the  grant 
was  issued  on  27th  November,  1903. 

Cross-examined  by  Mr.  Upington : 
The  moment  Mr.  Steyn  wrote  he  found 
the  transfer  duty  receipt. 

Gert  EUman,  who  sol4  the  farm  to 
the  plaintiff,  said  he  was  paid  £423, 
and  afterwards  he  went  to  the  defend- 
ant, and  said  that  £54  was  still  owing. 
Witness  showed  the  defendant  a  pro- 
missory note,  given  by  the  plaintiff  for 
£77.  and  explained  that  £23  had  been 
paid  off.  The  promissory  note  was  lost 
by  his  wife.  Dirks  had  not  yet  given 
him  the  £54.  The  plaintiff  said  he  had 
no  money  when  witness  asked  him  for 
the  £54, 

Crrms-cxamined  by  Mr.  Upington  :  He 
told  Mr.  Steyn  that  as  far  as  witness 
was  concerned,  he  had  done  everything 
to  enable  the  plaintiff  to  get  transfer. 
He  signed  a  paper  at  the  Magistrate's 
Office  in  order  that  Dirks  should  get 
transfer.  He  did  not  want  to  give 
transfer  before  he  got  the  money. 

Other  evidence  having  been  called, 
and  counsel  hoard  in  argument,  on  the 
facts. 

Maasdorp.  J.,  held  that  no  damages 
had  resulted  from  the  withholding  of 
the  document,  and  ordered  the  defend- 
ant to  deliver  up  the  receipt,  and  pay 
costs  up  to  the  date  of  tender,  the  plain- 
tiff to  pay  costs  subsequent  to  that. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Actinjr  Chief  Justice,    the 
Hon.  Sir  John  Buchanan.] 


GENERAL  MOTIONS. 


Ejp  vartc  van  rbenen.     \  ^^^    j^^ 

Mr.  Gardiner  moved  for  an  order  au- 
thoritting  the  execut-ors  in  the  estate  of 
petitioner's    late   grandfather,     Joseph 


Vink,  to  pay  a  certain  iaheritance  due 
to  the  petitioner. 

Mr.  Molteno  appeared  for  the  execu- 
tors, and  raised  no  objection  to  the  ap- 
plication, but  opposed  costs  being  paid 
out  of  the  estate,  on  the  ground  that 
the  application  was  sc^ely  in  the  inter- 
est of  the  petitioner. 

Mr.  Gardiner  oontended  that  there 
was  no  need  for  the  executors  to  have 
compelled  the  petitioner  to  seek  an  or- 
der of  Court. 

Order  granted  as  prayed,  costs  to 
come  out  of  the  fund,  which  is  released 
under  the  will. 


ANBTICE  V.  ANSTICE. 

This  was  an  application  upon  notice, 
calling  upon  the  responclent  Waiter 
French  Aiir*tice  to  show  cauee  why  an 
order  of  Court  granted  by  Mr.  Justice 
Maasdorp,  restraining  the  preeent  ap- 
plicant (Mrs.  Anstice)  from  withdraw- 
ing certain  money,  should  not  bo  set 
aside,  and  whv  the  respondent  should 
not  be  ordered  to  pay  over  a  sum  of 
£40  to  enable  her  to  institute  proceed- 
ings for  divorce  or  judicial  separation, 
and  aho  for  alimony,  pending  the  ac- 
tion. 

A  number  of  affidavits  were  read, 
from  which  it  appeared  that  the  pre- 
sent respondent  was  manager  of  an 
hotel  at  Dwars-in-de-Weg,  district  of 
Matiesfontein,  and  that  his  wife  re- 
cently left  him  on  account  of  domestic 
unhappiness,  and  removed  to  Cape 
Town.  Tliere  appeared  to  have  been 
frequent  quarrels,  and  the  wife  alleged 
that  her  husband  wai«  addicted  to  drink. 
and  that  ho  had  committed  cruelty  to- 
wards her.  and  had  threatened  to  take 
both  her  life  and  his  own.  Two  i^ums 
of  money  had  been  placed  in  the  bank 
—£35  in  the  Post  Office  Savings  Bank 
and   £70  in  the  African  Banking     Cor- 

E oration.  The  former  sum  had  already 
cen  withdrawn  by  Mrs.  Anstice,  but 
the  latter  could  not  be  touched  until 
May  next.  Mrs.  Anstice  said  that 
I  he  money  was  hers;  Mr.  Anstice  said 
that  it  wa£  his.  Mrs.  Anstice  «aid 
Uint  her  husband  had  boasted  to  her 
that  ho  had  committed  adultery  with 
a  lady  now  in  Canada,  and  with  other 
persons;  while  the  defendant,  on  his 
part,  denied  the  allegations,  and  said 
that  ho  was  j^rcpared  to  call  c\'idencc 
in  support  of   his  statements. 

Mr.  Gardiner  was  for  the  applicant ; 
Mr.  P.  S.  T.  Jones  was  for  respondent. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Buchanan,  A.  C.  J.,  said  that  ihe  was 
not  prepared  to  set  aside  the  previous 
order  of  C/Ourt,  l3ut  he  thought  that  the 
wife  should  receive  £5  per  month  from 
her  husband  by  way  of  alimony,  pend- 
ing an  action  for  divorce  or  judicial 
reparation,  as  »he  might  be  advised.  An 


"CAPB  TIMES"  LAW  REPORTS. 


86S 


order  would  be  made  aooordingly,  the 
fijst  payment  to  f<all  due  on  November 
15.    Costs  to  be  eoerts  m  the  cause. 


BMABTT  SYNDICATE  V.  PHILLIPS  AND 

OTHERS. 

Thie  was  an  application  upon  notice 
of  motion  fop  remoTal  of  bax  and  for 
the  appointment  of  a  oommiasion  to 
i*  certain  eridenoe  in  Johannesburg. 
Mr.  Gardiner  was  for  applicant;  Dr. 
Greer    was   for  respondent. 

After  hearing  affidavits  on  both  aides 
and  counsel  m  argument, 

Buchanan,  A.  C.  J.,  said  that  an  or- 
der would  be  given  that  the  bar  be  re- 
moved, and  leave  would  be  given  to 
file  a  replication  forthwith,  PlaintiflF 
iiavinff  been  barred,  must  pay  the 
wasted  costs.  A  commission  would 
be  granted  de  bene  esse  to  examine  the 
witness  Phillips  in  Johannesburg,  Mr. 
Advocate  Percival  Smith  to  be  com- 
miasjoner.  This  was  clearly  a  case  in 
which  the  applicant  should  pay  costs 
of  opposition  to  the  application. 


GALMBYEB  V.  DAMERELL. 

Thie  waa  an  application  upon  notice 
of  motion,  calHng  upon  Mr.  W.  G. 
Coulton,  of  Capo  Town  (attorney  to  the 
defendant  Damerell)  to       show 

cause       why       he       should       not       be 
ordered   to  pay   costs   of  certain      pro 
ceedings  de  bonis  propriis. 

From  the  affidavits  it  appeared  that 
Laimeyer  had  commenced  an  action 
against  Damerell  to  compel  him  to  take 
transfer  of  cerbain  property  at  Rosebank 
That  action  was  not  proceeded  with. 
ine  defendants  attorney  then  gave 
rvotice  of  motion  that  he  would  sign 
judgment  against  Calmeyer  for  not  pro- 
ceeding with  his  action.  Subsequently, 
it  appeared  Mr.  Damereirs  attorney 
had  no  instructions  from  his  client  to 
take  that  stenL  and  the  matter  was 
withdrawn  Then  an  application  was 
made  to  hie  lordship  calhng  upon  the 
respondent  to  show  cause  why  he 
should  not  pay  costs  de  bonis  propriis, 
ajid  a  rule  was  granted. 

Mr.  M.  Bi^eet  was  for  applicant ;  Dr. 
UPeer  w«s  for  respondent. 

A  coneiderable  number  of  affi<}avits 
were  read,  and  Dr.  Greer  having  been 
heard  in  argument, 

Buchanan,  A.  C.  J.,  humorouisly  com- 
mented upon  the  somewhat  ludicrous 
change  of  front  which  had  been  under- 
gone by  counsel  for  the  respondent  be- 
tween the  previous  hearing  and  the  pre- 
sent one.  He  said  that  the  costs  of  the 
original  application,  which  was  entered 
by  the  respondent  and  afterwards  with- 
drawn by  him,  having  been  incurred 
through  a  totally  unauthorised  action  on 
his  part,  the  rule  which  had  been 
granted  calling  upon  him  to  show  cause 


why  he  fiihould  not  pay  the  costs  person- 
ally would  be  made  absolute.  Respon* 
dent  said  that  it  was  due  to  a  misunder- 
standing that  he  applied  for  leave  to 
sign  judgment  against  Cahncyer,  and 
if  there  was  nothing  more  than  a  mis- 
understanding, then  he  must  pay  the 
costs  of  his  misunderstanding. 


Ex  parte  key. 

Mr.  Houx  moved  on  behalf  of  pe- 
titioner, a  notary  public,  of  Indwe,  for 
leave  to  register  a  certain  ante-nuptial 
contract  entered   into  between  clients. 

Order  granted  as  prayed.  His  Lordship 
remarking  that  the  attorney  ought  to 
pay  costs  of  the  application. 


KREFFER  V.  SALKINDER. 

Mr.  P.  S.  T.  Jones  moved,  on  behalf 
of  defendant  in  the  suit,  for  leave  to 
sign  judgment  against  the  plaintiflf  for 
not  proceeding  with  his  action  within 
the  time  required  by  the  Rules  of  Court. 

Order  granted  accordingly. 


Ex    parte    EXECUTOR    OK    ESTATE 
WILSON. 

Mr.  Baily  moved,  on  behalf  of  the 
executor  in  the  estate  of  the  late  Alex- 
ander Wilson,  of  Wynberg,  for  leave  to 
mortgage  certain  property. 

Order  granted. 


Ex  parte  estate  wordon, 

Mr.   Van   Zvl  moved,  on   the  petition 
of  the  minor  heir,  for  an  order  authoris- 
ing the  payment   of  certain  award  and 
moneys  to  provide  for  petitioner's  edu- 
cation at  Graham's  Town,   and    to  pay 
taxed   bills  of  costs  of  certain  proceed- 
ings.       The    matter    arose    out    of    the 
well-known    Wordon  will  case,  in  which 
W.   L.   Scott  and   two  others  were  pro- 
ceeded  against    on    a    charge    of    being 
concerned   in   forging    the  will  of      the 
late   Samuel  Wordon,   and  were  acquit- 
ted.      The    heir    under    the    will       now 
asked  for  certain   payments  to  be  made 
from  the  fund  standing  to  his  credit  in 
order  to  pay  the  reward  of  £100  to  Scott 
for  discovering  bhe  will  in  question,   as 
promised    in    an    advertisement      issued 
by  Messrs.  Van  Zyl  and  Buissinne.      Pe- 
titioner had  aI?o  incurred  certain   costs 
in   connection  with    an  action  which  he 
instituted    to    clear    himself    from       the 
imputation  of  illegitimacy,    the  said   ac- 
tion  having  been  settled.       He    desired 
further  sums   to   be   paid    out    for      his 
benefit,    as   he   was   being    educated      at 
Graham's  Town,    and   was   intending  to 
proceed  to  the  South  African     Coltege, 


§64 


"CAi'E  TtlilES"  LAW  REt^OftM. 


with  a  Yiew  of  becoming  an  advocate  of 
this  Court. 

The  matter  was  referred  to  the  Master 
for  report. 


Ejt  parte  KILLINOSWOBTH. 

Mr.  Gardiner  moved,  on  the  petition 
of  the  husband,  who  resides  in  Cape 
Town,  for  leave  to  sue  his  wife  by 
edictal  citation  for  restitution  of  con- 
jugal rights,  failing  which,   divorce. 

Leave  granted,  citation  to  be  served 
personally  on  the  respondent,  and  to 
be  returnable  on  December  31,  with 
leave  to  applicant  to  serve  intendit  and 
notice  of  Iria!,  with  citation. 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplky.] 


WUEfiLER  V.  I.OUAN. 


f       1W». 
\  Nov.   Ist 


This  was  an  action  to  recover  the 
sum  of  £57,  made  up  by  £54,  which  the 
plaintiff  claimed  in  revt?ct  -of  expenses 
•incurred  in  qualifying  himself  to  give 
evidence  in  a  certain  arbitration  of  Lo- 
gan and  the  Colonial  Government,  and 
i!3  in  respect  of  -his  appearance  jsua  a 
witness. 

The  declaration  set  out  that  the  plain- 
tiff was  a  contractor  residing  at  Mait- 
land,  and  the  defendant  a  merchant  re- 
siding at  Cape  Town.  About  November 
and  December.  1903,  the  plaintiff  made 
certain  measurements  and  quantities  at 
the  request  of  the  defendant,  and  gave 
evidence  as  to  the  amount  of  compen- 
sation to  be  allowed. 

The  defendant,  in  hie  plea,  admitted 
that  the  plaintiff  was  entitled  to  £3 
as  witnesri't^  expenses.  He  duly  tendered 
the  said  sum,  and  repeated  the  tender. 
Ho  denied  that  the  plaintiff  made  mea- 
surements for  which  he  was  entitled  to 
any  payment  at  the  request  of  the  de- 
fendant. The  defendant  further  denied 
that  the  plaintiff  made  any  measure- 
ments or  valuation,  or,  if  he  did,  he  did 
so  before  he  gave  evidence  at  the 
Court. 

Mr.  Benjamin  was  for  the  plaintiff, 
and  Sir  H.  Juta,  K.C.  (with  him  Mr. 
Close),  was  for  the  defendant. 

Thomas  Wheeler,  railwav  contractor, 
of  Maitland,  plaintiff  in  the  case,  said 
he  was  asked  by  the  defendant  to  give 
evridence  with  regard  to  Mi  expropria- 
tioTi  in  1903.  "Witness  saw  the  defendant 
in  his  office,  when  he  was  asked  to  give 
evidence.  Notning  was  said  then  about 
the  measurements.  The  (>)urt.  at  Mat- 
jesfontein  had  no  measurements  and 
adjourned  in  order  that  measurements 
might  be  taken.  The  defendant  ap- 
proached   him    and    asked    witness    to 


prooeed  to  Toaws  River  to  meaaure  the 
quarry,  the  briokfields,  and  ihe  build- 
ings, which  had  been  expropriated  by 
the  Government.  The  defenoant'a  man- 
ager, Mr.  Wright,  and  his  solicitor, 
Mr.  Kayser.  also  asked  witness  to  go 
to  Touws  River  for  the  same  purpose. 
Shortly  afterwards  a  Mr.  Ellis  told 
witness  that  he  waa  to  accompany  him 
and  assist  in  the  measuring.  From 
Wednesday  until  Saturday   he  was  en- 

5 aged  on  the  meacMirements.  On  Satur- 
ay  Mr.  Ellis  received  a  wire,  which, 
however,  had  been  lost.  The  telegram 
wa6  to  the  effect  that  witness  and  Ellis 
were  to  proceed  to  Cape  Town  to  give 
evidence  before  the  Court.  The  survey 
was  not  completed ;  it  would  bave  taken 
three  weeks  or  &  month  to  do  it.  Wit- 
ness was  called  by  the  other  side  at  the 
commission  to  be  further  croas-examiued, 
and  the  defendant'^  representative  <^ 
jected.  He  considered  five  guineas  a 
day  a  fair  and  reasonable  charge  for 
measuring,  and  the  balance  of  hie  claim 
was  made  up  of  the  time  lost  from  the 
time  he  left  for  Touws  River  until  the 
commission  concluded  its  sittings  in  Cape 
Town. 

Cross-examined  by  Sir  H.  Juta :  W'it- 
ness  denied  that  hie  volunteered  to  go 
up  merely  to  give  evidence  on  the  brick- 
fieldn.  He  was  examined  at  the  com- 
mission a>bout  hi^  knowledge  of  brick- 
fields and  quarries.  The  Court  might 
have  adjourned  for  the  information  re- 
quested from  the  Government.  He 
did  not  know  that  Mr.  Marais.  the 
surveyor,  went  and  collected  all  the  ?u- 
formation  which  the  Court  wanted.  Mr. 
Kayser  did  not  tell  him  that  he  was 
not  wanted  at  Touws  River.  The  de- 
fendant, Mr.  Wright,  and  Mr.  Kayser 
ec^ked  him  to  take  the  measurements. 

[Hopley,  J. :  What  were  you  doing  at 
that  time?] 

Witneee :  I  was  busy  on  my  conces- 
sion on  the  train  from  Maitland  to 
Beilville. 

Sir  H.  Juta :  Will  you  produce  your 
books  to  show  that  you  were  busy? 

Witness :    I  will. 

Sir  H,  Juia :   Do  so  at  two  o'clock. 

W'itness :   Yes. 

Re-examined  by  Mr.  Benjamin :  Ho 
could  not  have  given  evidence  as  to  the 
value  of  the  site  expiropriated  without 
making   measurements. 

John  Brown  Ellis,  railway  engineer, 
Touws  River,  said  he  went  with  the 
party  to  Matjesfontein,  and  was  ap- 
proached by  Mr.  Logan  and  his  man- 
ager, Mr.  Wright,  to  go  to  Touws 
River.  Tliey  told  him  that  Mr.  Wheeler 
would  accompany  him.  They  were  en- 
gaged until  the  Saturday,  wiien  he  re- 
ceived a  telegram,  asking  him  to  be  at 
the  court  on  Monday. 

Mr.   Benjamin  closed  his  case. 

For  the  defence, 

Charles  Marais,  a  Government  land 
surveyor,  said  he  was  engaged  by  Mr. 
Logan,  and  went  up  to    Matjesfontein. 


"cAl»E  Tt^fss*'  Law  iLJsPab'tA 


9^ 


Certain  information  was  required  at 
Touws  River,  and  he  and  Mr.  Ellis  were 
sent  down.  Mr.  Wheeler  was  there,  but 
witneea  knew  notlung  about  his  comidig 
down.  Witness  got  some  measurements, 
and  certain  valuations  were  made.  He 
left  that  night,  and  there  was  then  no- 
thing left  undone,  but  Ellis  and  W heeler 
said  they  were  nut  going  to  hurry  down. 
He  did  not  ask  Ellis  to  stay.  Witness 
got  W*hoeler  to  make  a  second  valu- 
ation. 

Hon.  J.  D.  Logan,  defendant,  stated 
that  he  was  plaintiff  in  the  action  that 
went  before  the  Privy  Council.  The 
plaintiff  came  to  see  witness,  and  ex- 
pressed the  wish  to  go  to  Matjesfontein. 

[Hopley,  J. :  You  didn't  take  him 
down  as  a  friend?] 

He  came  down  more  as  a  friend  than 
a  witness,  my  lord. 

Continuing,  witness  denied  that  the 
plaintiff  was  instructed  to  go  down  to 
take  measurements. 

Cross-examined  by  Mr.  Benjamin :  He 
knew  the  plaintiff  previously  as  a  friend, 
who  insisted  on  going  with  witness  on 
his  election  tour.  He  would  swear  that 
he  never  paid  the  plaintiff  a  penny  in 
his  life.  The  plaintiff  was  never  asked 
to  come  up  and  give  evidence.  The 
plaintiff  was  going  as  a  friend  in  the 
first  place,  ana  as  a  witness  in  the  sec- 
ond. After  his  evidence  was  heard, 
counsel  advised  witness  that  his  evi- 
dence was  U3eless.  All  he  knew  of  the 
plaintiff  was  that  he  was  a  persistent 
person  in  election  matters.  It  was  abso- 
lutely untrue  that  he  sent  the  plaintiff 
down  to  Touws  River  to  take  measure- 
ments. He  was  no>t  surprised  at  the  let- 
ter from  Mr.  Ellis  refusing  twenty-five 
guineas  in  connection  with  his  services, 
in  which  he  pointed  out  that  he  was 
engaged  with  Mr.  Wheeler. 

John  Kayser,  attorney,  in  charge  of 
the  defendant's  interests  in  the  arbitra- 
tion, and  who  went  up  to  Matiesfon- 
tein,  stated  that  the  arbitrators  amourn- 
ed  on  the  first  day  for  certain  informa- 
tion from  the  Government.  The  plain- 
tiff was  not  instructed  by  witness  to 
take  measurements.  Witness  was  under 
the  impression  that  the  plaintiff,  merelv 
continuing  his  outing,  went  away  with 
Ellis.  Witness,  taking  the  average  of 
drink  consumed,  would  put  the  plain- 
tiff down  for  eleven  shillings  for  the  two 
days. 

Cross-examined  by  Mr.  Benjamin: 
Wright  came  to  witness,  and  said  that 
the  plaintiff  was  worrying  him  to  go 
to  Touws  River.  While  he  would  not 
have  hesitated  in  spending  money  to 
obtain  corroborative  evidence,  he  cer- 
tainly would  not  have  selected  the  plain- 
tiff. 

Samuel  Wright  stated  that  in  1903  he 
was  manager  for  Mr.  Logfan.  The  plaintiff 
was  not  asked  bv  witness  to  come  to 
Matjesfontein.  He  never  heard  <A  in- 
structions given  to  Wheeler  to  go  down 
to  Touws  Kiver.    The  plaintiff  said  to 


witness:  **I  hear  Ellis  is  going  down 
to  Touws  River,  and  I  would  like  to 
go,"  and  although  Mr.  Kayser  did  not 
want  him,  witness  told  hi  in  that  he 
might  go.  It  was  quite  possible  that  he 
did  seiir*  a  wire  to  Ellis,  but  certainly 
not  to  Wheeler. 

Croea-examined :  The  plaintiff  came  to 
him,  and  said  he  was  going  up  as  a 
witness. 

[Hoplej,  J. :  He  let  the  plaintiff  go 
with  Ellis  merely  to  please  him.] 

[llKkplcy,  J. :  Wh«ut  was  the  greeut  ob- 
ligiattiooi  (thai  you  should  please  him?}  - 
Ho  appeared  to  be  very  fraendly  with 
Mr.  Logan. 

Sir  H.  Juta  closed  his  case,  and  coun- 
oel  having  been  heard  in  argument  on 
the  facts, 

Hopley,  J. :  I  regret  very  much  to 
see  this  case  brought  before  this  Court, 
when  it  might  have  been  settled  in  the 
Magistrate's  Court.  Though  the  matter 
of  friendship  may  have  been  the  domi- 
nant factor  in  the  mind  of  Mr.  Logan, 
the  fact  remains  that  the  plaintiff  did 
give  evidence  as  a  witness,  with  cer- 
tain oualifications.  The  letter  from 
Mr.  Wright,  the  then  general  manager 
for  Mr.  Logan,  clearly  treats  him  as  a 
witness.  Hia  evidence  was  that  of  a 
pereon  who  affected  to  know  about 
bricks,  quarries,  clay,  etc.  I  have  no 
doubt  it  was  in  the  mind  of  the  de- 
fendant that  the  plaintiff  was  a  valu- 
able witness.  The  matter  was  clearly 
left  in  the  hands  of  Wright,  and  Wright 
had  the  power  to  bind  Logan.  I  be- 
lieve when  Ellis  and  the  plaintiff  were 
left  behind,  the  plaintiff  or  his  agents 
were  well  aware  of  it.  It  is  a  pity 
that  the  plaintiff  did  not  go  before  the 
Magistrate  and  ask  for  a  small  sum.  I 
personally  think  that,  considering  all 
the  expenses  wore  paid  both  ways,  the 
utmost  I  can  allow  is  a  couple  of  pounds 
(ctt  the  three  days  I  find  ho  was 
working.  The  judgment  of  the  Court 
will  be  for  the  sum  of  £6,  along  with 
the  £3  tendered,  with  Magistrate's 
Court  costs. 

Mr.  Benjamin  and  Sir  H.  Juta  hav- 
ing been  further  heard  on  the  question 
of  costs, 

Hopley.  J.,  allowed  the  matter  to 
irtana  over  for  aflidavits  as  regards 
costs. 

[Plaintiff's  Attorneys :  Moore  and 
Son ;  Defendant's  Attorneys :  Van  Zyl 
and  Buissinn^.] 


« 


CAPB  ItMiSS"  LAW  UJSPtOxn. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Actinsr  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


ADMIBBIONB. 


f       1905. 
I  Nov.  2nd. 


Mr.  Russell  moved  for  the  admiMion 
of  Frederick  Wm.  Beyers  as  an  advo- 
cate. 

ApplicaiioD  granted,  and  oath  ad- 
ministered. 

Mr.  De  Waal  moved  for  the  admis- 
sion of  W.  H.  de  Villiers  as  an  at- 
torney and  notary. 

Application  granted,  and  oaths  ad- 
ministered. 

Mr.  Roux  moved  for  the  admission 
of  C.  W.  A.  Coulter  as  an  attorney  and 
notary. 

Application  granted,  and  oaths  ad- 
ministered. 


HOULDBB  BBOS.  V.  COLONIAL  OOVEBN- 

MBNT. 

This  was  an  application  upon  notice 
of  motion,  calling  upon  the  plaintiffs  in 
the  action  (Houlder  Bros.)  to  show 
cause  why  the  trial  should  not  be  post- 
poned, and  why  they  (plaintiffs)  should 
not  be  ordered  to  pay  costs  of  the  ap- 
plication. Mr.  Schreiner,  K.C.  (with 
nim  Mr.  Searle,  K.C.,  and  Mr.  Burton), 
was  for  applicants;  Sir  H.  Juta,  K.C. 
(with  him  Mr.  Close  and  Mr.  Struben), 
was  for  respondents. 

Mr.  Schreiner  8»id  that  the  maitter 
was  of  some  urgency,  as  the  trial  had 
been  set  down  for  hearing  to-morrow 
(Friday). 

[Buchanan,  A.  C.  J. :  The  application 
has  not  been  put  down  on  the  roll.  It 
seems  to  me  to  be  neglect  on  the  part 
of  the  attorney.  The  matter  was  moved 
in  Chambers  some  weeks  «go.] 

Mr.   Schreiner:    For  postponement? 

[Buchanan,  A.   C.   J. :   Yes.l 

Mr.  Schreiner:  I  do  not  know  why 
it  should  not  be  set  down. 

[Buc^hanan,  A.  C.  J. :  Neglect,  purely 
neglect.  However,  I  will  hear  you,  Mr. 
Schreiner.] 

Mr.  Schreiner  read  an  affidavit  by 
Mr.  Reid,  attorney,  who  said  that  a 
commission  had  been  despatched  to 
London,  but  up  to  the  present  the  evi- 
dence which  was  to  be  taken  on  com- 
mission had  not  arrived  from  England, 
and  it  was  uncertain  when  it  would 
arrive.  The  case  had  ^  been  set  down 
for  hearing  by  the  plaintiffs'  attorney 
on   the  3rd  November. 

Buchanan,  A.  C.  J.,  said  that  he 
wished  to  withdnaw  the  remarks  he  bad 


made  in  regard  to  the  neglect  of  the  at- 
torney. He  found  that  he  was  under  a 
misapprehension,  and  that  the  case  be 
bad  4n  mind  was  that  of  the  liquidators 
of  the  Grand  Jnnotion  Railway  and 
Walker. 

Sir  H.  Juta  submitted  that,  as  the 
case  had  now  been  standing  over  for 
a  considerable  time,  the  defendants 
should  be  put  to  terms. 

The  trial  was  ordered  to  be  set  down 
for  Wednesday,  the  14th  February, 
costs  to  be  costs  in  the  cause. 


PROVISIONAL  ROLL. 


WILSON  V.  GLTNN. 


i       1906. 
t  Nov.  2nd. 

Mr.  Douglas  Bucbana.n  moved  for  a 
provisional  order  of  eequestration  to  be 
superseded. 

Provisional  order  superseded. 


KEMP  BEOS.  V.  SCOTLAND. 

Mr.  Russell  moved  lor  a  pro- 
visional order  of  sequestration  to  be 
made  final. 

Order  granted. 


ALVEBBAGK  V.  DAVIDS. 

Dr.  Greer  moved  for  provisional  sen- 
tence for  £52,  upon  a  judgment  of  th<? 
Resident  Magistrate's  Court,  with  costs, 
and  for  certain  property  in  Cape  Town, 
registered  in  the  defendant's  name,  to 
be  declared  executable. 

Defendant  appeared,  and  denied  that 
he  owed  the  money,  which  was  alleged 
to  be  due  on  a  promissory  note. 

Buchanan,  A.  C.  J.  (to  defendant): 
The  judgment  of  the  Resident  Magi- 
strates Oourt  still  stands.  I  oari't  help 
you  now.  Judgment  will  be  given  as 
prayed,  and  the  property  declared 
executable. 


NETTLESHIP  V.  GABTON. 

Mr.  Sutton  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £7,000, 
due  by  reason  of  the  non-payment  of 
interest;  counsel  also  applied  for  the 
property  specially  hypothecated  to  be 
declared  executable. 

Order  granted. 


RATHFELDKK  V.  OTTO  AND  SCHMIDT. 

Mr.  Struben  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £250. 
with  interest,  the  bond  having  become 
due  by  reason  of  the  non-pajrment  of  in- 
terest ;  counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable. 

Order  granted. 


tl 


CAPE  tiBlES"   LAW  ItEPOHTS. 


867 


OHLSSON'.H  BREWERIES  V.  HALV0R8BN. 

Mr.  Douglas  Buchanan  moved  for  a 
decree  of  civil  imprisonment  upon  an 
unsatisfied  judgment  for  £128,  and  cer- 
tain smaller  sums.  Cktunsel  said  that  he 
had  received  a  copy  of  an  affidavit, 
sworn  by  defendant,  in  which  she  said 
that  she  had  been  unable  to  naeet  the 
debt  because  of  delay  in  receiving  cer- 
tain remittances.  Deponent  also  said 
that  she  was  a  heavy  foeer  by  a  recent 
lawsuit,  in  which  she  was  the  plaintiff. 
Defendant  added  that  she  was  unable 
to  appear  to  answer  the  summons  on  ac- 
count of  illness. 

Decree  granted. 


VON   HOLDT  V.  GARTON. 

Mr.  Watermcyer  moved  for  provi- 
sional sentence  for  £189  5s.  upon  cer- 
tain conditions  of  sale,  together  with  in- 
terest and  costs. 

Order  granted. 


ADLBU  V.  TUGHTEN. 

This  was  an  <application  for  provisional 
rK?ntence  upon  three  bills  of  exchange 
for  £23  4s.  lOd.,  £26  Is.,  and  £50  12s. 
lid.,   respectively. 

Mr.  Joubert  moved. 

Counsel  said  that  half  an  hour  before 
th(^  Court  opened  he  was  served  with  an 
affidavit  by  the  defendant,  and  after 
that  affidavit  had  been  heard  he  would, 
if  it  was  thought  necessary,  ask  for  the 
postponement  of  the  case  to  enable  the 
plaintiff  to  file  answering  affidavits. 

Mr.  W.  Porter  Buchanan  (for  defen- 
dant) said  that  the  plaintiff  should  make 
up  his  mind  either  to  apply  for  a  post- 
ponement or  go  on   with   the  case. 

Mr.  Joubert  said  that  he  did  not  ap- 
ply for  a  postponement  at  the  present 
stage. 

Mr.  Buchanan  read  an  affidavit  by 
defendant,  who  said  that  he  had  a  coun- 
ter-claim against  the  plaintiff,  and  that 
he  had  tendered  and  again  tendered  the 
balance  of  £10  Ts.  9d.,  due  to  the  plain- 
tiff. Defendant  alleged  that  he  was  en- 
titled to  a  credit  of  £43  odd,  in  respect 
of  certain  liquor  sent  by  the  plaintiff  to 
him,  which  had  been  confiscated  by  the 
Customs  authorities  at.  Port  Eliabeth,  on 
the  ground  of  a  breach  of  the  Mer- 
chandise Marks  Act. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts, 

Buchanan^  A.C.J.,  gave  judgment  for 
the  plaintiff  for  £28  7s.  9d..  and  said 
that  pl-aintiff  must  go  into  the  principal 
ease  for  the  balance  of  his  claim. 


ESTATB  WITTE  V.  SCHMIDT. 

Mr.    P.   S.    T.    Jones   moved   for  pro- 
visional sentence     on     two     mortgage 


bonda^  for  £150  and  £100  respectively, 
with  interest,  bonds  having  become  due 
by  reason  of  the  non-payment  of  inter- 
est ;  counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable. 
Order  granted. 


WILKINSON  V.  LANG  AND  OLENDINMING 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  mortgage  bond  for  £190, 
with  interest,  the  bond  having  become 
due  by  reason  of  the  terms  of  tlie  bond ; 
counsel  ako  applied  for  the  property 
specially  hypothecated  to  be  declared 
executable. 

Order  granted. 


ILLIQUID  ROLL. 


MALYON  V.  MAZZIN. 


f        I9a5. 
(  Nov.  2nd. 

Mr.   Payne  moved  for  judgment,  un- 
der Rule  329d,  for  balance  of  account. 
Order  granted. 


EAOLB  V.  WILLIAMS  AND  BATHGATE. 

Mr.  Sutton  moved  for  judgment,  un- 
der Rule  329d,  for  £121  lis.  6d.,  goods 
sold  and  delivered,  with  interest  a  tem- 
pore morae  and  coats  of  suit. 

Order  granted. 


PHILIPS  v.  ZIEMAN. 

Dr.  Greer  moved  for  judgment  under 
Rule  319,  in  default  of  plea,  for  £16, 
bein^  wages  due,  with  interest  a  tem- 
pore morae  and  costs  of  suit. 

Order  granted. 


GAPE  TIMES  V.  STEVENSON. 

Mr.  M.  Biisset  moved  for  judgment 
under  Rule  329d  for  £100  6s.  2d.,  goods 
sold   and  delivered. 

Order  granted. 


LOUW  V.  LODW. 

Mr.  Benj&min  moved  for  judgment 
under  Rule  319  for  an  order  against 
defendant,  calling  upon  him  to  render 
full  and  cerroct  account  of  the  proceeds 
of  a  certain  sale,  supported  by  vouchers 
and  for  data.  Defendant  had  acted  as 
auctioneer. 

Mr.  Close  said  that,  on  behalf  of  the 
defendant,  who  resided  at  Oalvinia,  he 
wished  to  move  for  leave  to  purge  de- 
fault. 

Mr.  Benjamin  said  that  notice  of  the 
defendant's  application  "was  only  served 
on    ■plaintiff's    attorney   that   morning. 


868 


«< 


GAJ^E  TttlBS"  LAW  ttEt^Olfta. 


He  ^  contended  that  hia  client   was  now 
entitled  to  judgment. 

[Buchanan,   A.   C.  J. :    Do  you  apply 
for  a  postponement?] 

Mr. Benjamin :     Not    unless    the  affi- 
davit 18  one  of  merit«? 

Mr.   Ckxe  read  an  affidavrt  by  defen- 
dant's  attorney. 

Leave    -waa  granted  to    defendant    to 

Surge   default .   and  he   waa  directed   to 
1«  ois  plea  within  seven  dav«,  oovte  of 
the  mcrtion  to  bo  paid  by  defendant. 


CAP!  TOWN  TOWN  COUNCIL  V.  LEWIS. 

Mr.  Gutschc  moved  for  judgment 
under  Rule  329d  for  £111  lis.  9d.  and 
£54,  for  municipal   rates. 

Order  granted. 


CAPB  TIMMf  LTD.  V.  WILLIAMS. 

Mr.  M.  Bifteet  moved  for  iudgment 
under  Rule  329d  for  £68  36.  6d.,  adver- 
tising chargos,  with  interest  a  tempore 
morae  and  ooetc. 

Order  granted. 


CAMPBELL  AND  OO.  V.  DBUMMOND. 

Mr.  Lewi^  moved  for  judgment  under 
Rule  329d  for  £13  lis.  6d.,  account  for 
goods  sold  and  delivered,  and  for  rent. 
Counsel  added  that  en  interdict  had 
been  obtained  again^  defendant  re- 
atraining  the  payment  of  damages  to 
him  by  one  Bailey. 

Mr.  P.  S.  T.  Jones  said  that  there 
was  a  motion  in  the  list  at  the  instance 
of  Messrs.  J.  C.  Juta  and  Co.  with  re- 
gard to  an  interdict  granted  againet  the 
proceeds  of  the  judgment. 

Defendant  said  tnat  he  had  a  good 
answer  to  the  claim  of  Camobcll  and 
Co.,  and  he  desired  to  enter  appear- 
ance. He  was  served  with  the  sum- 
mons on  Saturday  laat,  and  he  under- 
stood that  he  w«8  allowed  six  days  with- 
in which  to  enter  appeanance. 

Buchanan,  A.  C.  J.,  said  that  the 
plaintiff^e  application  was  premature. 
The  matter  must  ortand  over.  The  mo- 
tion as  to  the  interdict  would  come  on 
in  the  ordinary  course. 


REHABILITATIONS. 

Mr.  Benjamin  moved  for  the  reho^bili- 
tation  of  Louis  Lionel  Goldsmid. 
Granted. 

Mr.  Watermeyer  moved  for  the  re- 
haibilitation  of  Mores  Lynn  and  Abe 
WistafF,  trading  as  Lynn  and  Wiataff. 

Gi«.nted. 

Mr.    Lewia    moved   for  the  discharge 
from  insolvency  of  Frederick  Pratt. 
Gmnted. 


Hx  parte  SEPTEMBER  AND  ANOTHER. 

Mr.  Benjamin  moved,  as  a  matter  of 
urgency,  on  the  petition  of  two  aom 
of  Samson  September  and  hia  late  wife. 
Caroline  September,  members  of  the 
Baca  tribe,  for  an  interdict  restnaining 
their  father  from  marrying  a  aeoond 
time,  and  the  Rev.  Charles  Palma,  or 
any  other  marria^  officer  of  this  col- 
ony, from  performing  the  said  marriage 
ceremony,  and  restraining  the  aaid  Sam- 
son September  from  parting  with  the 
property  bestowed  upon  the  petitioners 
and  their  brothers  hy  contract  entered 
into  between  Samson  and  his  first  wife, 
until  transfer  <be  given  to  the  petkioners 
and  their  brothers  of  the  properties. 

Buchanan,  A.C.J..  said  that  iie  ooald 
not  see  his  way  to  make  «ui  order. 


GENERAL  MOTIONS. 

/>  parte  SERVICE.         {  Xov^&d. 

Mr.  Bailey  moved  for  a  rule  nisi 
under  the  Derelict  Lands  Act  to  be 
made  absolute. 

Granted. 


SAWKINB  V.  HEDDON. 

Mr.  W.  Porter  Buchanan  moved  to 
have  an  award  of  arbitrators  made  a 
Rule  of  Court.  The  matter  had  been 
before  the  Court  in  September,  but  had 
been  postponed  to  enable  a  copy  of  the 
notice  to  be  served  on  the  defendant. 

The  application   was  granted. 


DE  WAAL  V.  D£  WAAL. 

Mr.  Gutache,  on  behalf  of  the  defend- 
ant, submitted  to  judgment  in  terms 
of  consent  paper  put  in.  Judgment  in 
terms  of  consent. 


WE8TBR00K  V.  MARTTN. 

Mr.  Close  moved  on  behalf  of  the 
applicant,  who  is  plaintiff  in  a  case  to 
be. heard  in  the  court  for  the  appoint- 
ment of  a  commission  de  bene  esse  to 
take  the  evidence  of  the  plaintiff. 

Dr.   Greer  opposed  the   motion. 

An  affidavit  by  Mr.  Gee.  the  plain- 
tiff^s  attorney,  stated  that  plaintiff,  who 
resided  in  Johannesburg,  found  it  im- 
possible to  come  to  Cape  Town  for  the 
trial. 

The  defendant's  affidavit  stated  that 
the  amount  involved  was  only  £37  IOb.. 
and  would  not  pay  the  expenses  of  a 
commission. 

Mr.  Close  contended  it  would  be  a 
saving  to  take  the  plaintiff,  and  his  wit- 
nesses' evidence  in  Joihannesburg. 


"CAPE  TIMES"  LAW  REPORTS. 


869 


Dr.  Grreer  held  tbat  tlie  plaintiff  gave 
no  valid  excuse  for  not  coming-  to  Cape 
Town.  The  expenses  incurred  in  a  com- 
mission would  De  very  large. 

Buchanan,  A.C.J. ,  said  tho  taking  of 
the  evidence  on  commission  was  to  the 
plaintiff's  detriment,  and  not  that  of 
the  defendant.  The  application  would 
be  granted.  Mr.  Smitn  would  be  ap- 
pointed commissioner. 


Ejt  parte  MARAIS. 

Mr.  Benjamin  moved  for  an  order 
directing  the  Master  to  pay  out  certain 
money  in  the  estate  of  Marais  minors. 
The  Master's  report  was  favourable  sub- 
ject to  the  permission  of  the  Court. 

The  application  was  granted. 


Ex  parte  the  tbustee  in  the  insol- 
vent ESTATE  OP  WHITWORTH  AND  CO. 

Mr.  Benjamin  moved  for  an  extension 
of  time  to  file  a  liquidation  account. 
Granted. 


Ex  parte  COETSEE. 

Mr.  Gutsche  moved  for  the  amend- 
ment of  an  order  of  Court.  Transfer 
of  certain  property  had  been  granted  by 
the  Court,  but  as  there  were  two  parties 
concerned,  and  it  was  not  stated  to 
which  party  the  property  was  trans- 
ferred, the  present  application  was 
brought. 

A  rulo  nisi  calling  on  objectors  to  the 
application  was  granted. 


Ex  parte  OLIVIER  AND  WIFE. 

Mr.  Gutsche  moved  for  the  registra- 
tion in  Cape  Colony  of  an  ante-nuptial 
contract  drawn  in  the  Orange  River 
Colony. 

Granted. 


MOHATLA  V.  MATLA. 

Appeals  fro-u  Native  Territories 
—Act  26,  1894. 

Where  the  only  European  in- 
terested in  a  civil  suit  hetxceen 
certain  Transkeian  natives  teas 
merely  an  executor  ;  the  Court 
refused  leave  to  ajjpecU  from 
the  judgment  of  the  Chief 
Magistrate. 


Mr.  Benjamin  moved  on  behalf  of  the 
plaintiff  for  leave  to  appeal  against  the 
judgment  of  the  R.M.  of  one  of  the 
districts  in  the  Transkei.  One  of  the 
parties  was  a  European,   and  he  took 


the  case  to  the  court  of  the  Chief  MagU. 
trato  by  mistake. 

The  case  was  adjourned  to  enable 
counsel  to  look  into  the  Act. 

The  ca«e  was  again  mentioned  kbter, 
but  was  ordered  to  stand  over  for  fur- 
ther information. 

At  a  still  later  stage,  Mr.  Benjamin 
said  that  certain  questions  of  nart^ive  law 
as  to  dowry  and  succession  were  in- 
volved in  the  matter.  The  only  Euro- 
pean interested  was  an  executor 

Buchanan,  A.C.J.,  said  that  ikiia  was 
essentially  one  of  those  cases  which  the 
Le§:islatu re  wished  to  be  settled  by  the 
Ohiof  Magistrate  of  the  Native  Terri- 
tories. There  would  bo  no  order  on 
tho  present  applic^ition. 


Ex  parte  WILKINSON. 

Mr.  Gutsche  moved,  on  the  petition 
of  Artiiur  Wilkinson,  for  leave  to  sue 
his  wife  for  divorce  in  forma  pauperis. 

Applicant  appeared,  and  said  that  he 
was  a  labourer,  but  was  in  irregular 
work.  He  was  without  any  property 
except  a  few  pereonal  goods.  He  did 
not  desire  to  marry  again,  but  wished 
to  get  rid  of  his  wife,  because  of  her 
disgraceful  conduct.  He  desired  to  have 
custody  of  the  child  of  the  marriage. 
His  wife  was  living  with  her  mother  at 
St.  Leger-street. 

Rule  nisi  granted,  personal  service  to 
be  effected  on  respondent,  rule  to  be 
returnable  on  the  IDth  inst. 


Ex  parte  VAN  DER  MKRWE. 

Mr.  Benjamin  moved  for  the  appoint- 
ment of  a  fresh  trustee  to  represent  jin 
insolvent  estate  in  an  action. 

Order  granted. 


/>  paiit  ESTATE  ROBERTSON. 

Mr.  Wright  moved,  on  the  petition 
of  the  executors  testamentary  in  the 
estate  of  Alfred  George  Robertson,  for 
an  order  for  the  survey  of  the  property 
of  the  Iftgateee,  and  for  the  transfer  to 
them  of  the  property,  subject  to  a  bond 
being  passed  in  terms  of  the  will.  The 
property  was  staited  to  be  situated  in 
the  district  of  George. 

Dr.  Greer,  iri  the  absence  of  Mr. 
Searle,  K.C.,  saad  that  he  was  asked 
by  tlie  attorney  in  the  matter  to  say 
that  he  appeared  for  the  tutor  dative, 
and  that  he  understood  the  matter  was 
to  be  postponed. 

Ordered  to  stand  over  till  next  motion 
day. 


OOURLAY  V.  BAUMGARTEN  AND  JONBB. 

This  was  the  return  day  of  a  ru'e 
nisi  calling  upon  the  respondents  to 
show  cause  why  the  partnerahip  carried 


870 


if 


CAPE  TIMES''  LAW  REPORTB. 


on  by  tbein  in  Long-street,  Cape  Town, 
ae  the  South  African  Hackney  Light  in  j? 
Corporation,  should  not  be  forth  wit  n 
placed  under  liquidation,  why  thoy  (re 
apondeirts)  ahould  not  be  ro»'trained  from 
alienating  the  aaseta,  and  why  Mr.  J.  E. 
P.  Ooae  should  not  be  appointed  re 
ceiver. 

From  the  petition,  it  appeared  that 
the  business  carried  on  by  the  Cor 
poration  was  that  of  acetylene  ga«  light- 
ing. The  petitioner  had  advanced  a 
sum  of  £1.500,  but  the  business  had  re- 
sulted in  considerable  losses,  and  Mr 
Oourlay  decided  that  the  business  should 
be  liquidated  before  further  losses  were 
incurred  m>  as  to  protect  his  interests. 

Dr.  Rainsford  was  for  applicant  (Wil- 
liam Dixon  Gourlay);  Mr.  W.  Porter 
Buchanan  was  for  respondents. 

Mr.  W.  Porter  Buchanan,  on  behalf 
of  the  first  respondent  (Henr^  Baum- 
garten,  now  of  Umtata),  applied  for  a 
postponement  for  a  fortnight,  to  enable 
him  to  file  alBdaYits. 

Dr.  Rainsford  read  an  answering  affi- 
davit, in  which  it  was  urged  that  the 
respondent  had  had  ample  opportunity 
of  preparing  his  defence,  seeing  that  the 
rule  was  granted  on  August  31. 

Counsel   having   been   heard   in   argu 
ment, 

Buchanan,  A.  C.  J.,  said  that  as  the 
matter  had  alreadv  stood  for  two  months 
it  could  stand  a  fortnight  longer. 

Respondent  must  pay  costs  of  post- 
ponement. The  matt-er  was  postponed 
until  November  14. 


Ea  parte  BTRYDOM. 

Mr.  Sutton  moved  to  make  absolute  a 
rule  ntn,  calling  upon  respondent  to 
show  cause  why  petitioner  should  not 
bo  granted  leave  to  sue  for  divorce  in 
forma  pauperis. 

Rule  made  absolute,  Mr.  Sutton  to 
act  as  counsel,  and  Messrs.  Fairbridge, 
Arderne,  and  Lawton  as  attorneys  for 
the  petitioner. 


Fit  parte  FULLKR. 

Mr.  M.  Bisset  moved,  on  behalf  of 
Emily  Fuller,  a  widow,  of  the  Queen's 
Town  district,  for  the  attachment  of 
certain  property  of  Richard  Webb,  who 
had  left  the  Court's  jurisdiction,  and  for 
leave  to  sue  him  b>  edictal  citation,  in 
respect  of  a  certm-n  mortgage.  The  pe- 
titioner said  that  the  respondent  failed 
to  pay  the  interest  on  the  bond.  The 
debtor  was  reported  to  have  been  seen 
in  the  streets  of  Johannesburg,  but  his 
address  was  not  known  to  the  petit- 
tioner. 

Leave  granted,  citation  to  be  served 
personally,  failing  which  to  be  published 
once  in  the  Government  "  Gazette,"  and 
once  in  the  **  Star,"  Johannesburg,  and 
to  be  retqmable  on  January  12. 


Kr  parte  BETIEF. 

Mr.  De  Waal  moved,  on  the  petition 
of  the  rurutrix  boni*  in  her  husband's  es- 
tate, for  leave  to  expend  balance  of 
moneys  in  her  hand,  and  to  raise  a 
mortgage  upon  certain  property. 

Order  granted. 


Ex  parte  VALENTINE. 

Mr.  Benjamin  moved  for  leave  to 
raise  a  mortgage  of  £450  upon  certain 
property  in  Richmond-street,  Cape 
Town. 

Order  granted. 


JSit  parte  VAN  BIBT. 

Mr.  Struben  moved  for  an  amendment 
of  plan  of  sub-division  of  certam  proper- 
ty, so  as  to  enable  transfers  to  be  made. 

Order  granted. 


EiT  parte  DB  KLSBK. 

Mr.  Douglas  Buchanan  moved  for 
leave  to  pass  transfer  of  defined  |K>rtions 
of  certain  prc^rty  in  the  district  of 
Barkl^  East,  petitioner  having  agreed  to 
a  partition  of  the  farms  in  question. 

Order  granted. 


Ex  parte  DIAMOND  AND  WIKB. 

I  Mr.  W.  Porter  Buchanan  moved  for 
leave  to  register  a  certain  ante- 
•nuptial  contract,  as  if  the  same 
had  been  entered  into  before  marriage. 
The  parties  were  married  in  1898.  The 
petition  was  to  the  effect  that  the  par- 
ties had,  from  the  beginning,  intended  to 
have  separate  estates,  but  that,  through 
an  oversight,  they  had  been  married  in 
community.  The  application  had  been 
standing  over  for  further  information, 
which  was  now  furnished  by  counsel. 
The  marriage  took  place  in  this  colony 
immediatelv  after  the  second  petitioner's 
arrival,  and  her  affidavit  set  out  that  she 
understood  the  nature  of  the  present  ap- 
plication, and  voluntarily  consented  to 
it.  Both  parties  were  possessed  of  pro- 
perty. 

Buchanan,^  A.  C.  J.,  eaid  he  thought 
that  the  evidence  was  slight,  but  still 
it  was  sufficient  to  satisfy  tne  Court  that 
there  was  a  ^  pre-nuptial  arrangement 
that  the  T>artie8  should  retain  their  own 
property  and  control  over  the  same,  as 
they  would  have  done  if  they  had  been 
married  in  England,  before  coming  out 
to  the  Colony,  under  the  Married 
Women's  Property  Act.  Leave  would 
be  granted  to  register  the  contract  as 
if  it  had  been  entered  into  before  mar- 
riage, saving  all  just  rights  of  creditors, 


"CAPE  TIMES"  LAW  REPORTS. 


871 


Ex  parte  8BARLE  AND  CO. 

Mr.  Struben  moved,  on  the  petition 
of  Edward  Searle  and  Co.,  carrying  on 
business  at  Port  Elizabeth,  for  the  at- 
tachment of  certain  property  in  the  town 
of  Colesberg,  ad  ftmdandam  juritdic- 
ilonemy  and  for  leave  to  sue  one  Morris 
Bernstein,  late  of  Colesberg,  and  now  of 
Johannesburg,  for  £10  Ss.  6d.,  for  goods 
sold  and  delivered. 

Leave  was  granted  to  sue  as  prayed, 
and  one  of  the  erven  was  ordered  to  be 
attached,  citation  to  be  served  person- 
ally on  the  respondent  and  to  be  return- 
able on  the  15th  January. 


JSx  parte  EaTATB  CKONJB. 

Mr.  Payne  moved  for  leave  to  pass 
transfer  of  certain  property  in  the  dis- 
trict of  Barkly  East,  in  accordance  with 
&  paittatdoin  agreed  upon. 

Order   granted. 


DB.   WILLIAMS  MBDICINB  COMPANY  V. 
ALEXAMDBB. 

This  was  an  application  brought  by  the 
Dr.  Williams  Medicine  Company,  upon 
iK>tice  of  motion,  calling  upon  the  re- 
spondent, a  chemist,  carrymg  on  busi- 
ness in  Caledon-street,  Cape  Town,  to 
show  cause  why  an  interdict  should  not 
be  granted  restraining  him  from  selling, 
offering,  or  disposing  for  sale  certain 
pilk  other  than  those  of  the  company 
with  a  cover  labelled  "Pink  Pills  for 
Pale  People,"  and  restraining  him  from 
advertising  the  same  as  if  they  were  the 
pills  of  the  Dr.  Williams  Medicine  Com- 
pany. Mr.  M.  Bisset  was  for  applicants ; 
Mr.  Molteno  was  for  respondent. 

Mr.  Bisset,  at  the  outset,  said  that  he 
desired  to  call  the  attention  of  the  Court 
to  a  report  that  the  owner  of  the  com- 
pany was  dead.  This,  however,  lacked 
official  confirmation.  Counsel  proceeded 
to  read  an  affidavit  by  James  Camerson 
McKenzie,  manager  of  the  South  Afri- 
can branch  of  the  Dr.  Williams  Medi- 
cine Company,  hi  which  he  complained 
that  the  respondent  was  selling  pills 
styled  "  Pink  Pills  for  Delicate  Females." 
This,  he  said,  was  an  infringement  otf 
the  trade-mark  of  the  applicant  company, 
whereby  considerable  lose  and  damage 
was  being  sustained  by  them.  Counsel 
said  that  what  the  applicant  complained 
of  was  the  use  of  the  words  "  Pink  Pills 
for  Delicate  People."  The  api^icants' 
expression  was  *'  Dr.  Williams's  Pink 
Pills  for  Pale  People." 

[Buchanan,  A.  C.  J. :  Your  trade-mark 
is  not  infringed.] 

Mr.  Bisset:  We  say  that  the  essential 
part   of  our   trade-mark   is   infringed. 

[Buchanan,  A.  C.  J. :  Winit  essential 
part.] 

Mr.  Bisset:  The  use  of  the  words 
"pink  pills." 


[Buchanan,  A.  C.  J. :  You  bare  noth- 
ing about  '*  delicate  females "  on  your 
labels.] 

That  is  so,  but,  of  course,  the 
sting  of  the  thing  lies  in  the  use  of 
the  words  "pink  pills."  Counsel  pro- 
ceeded to  read  affidavits  by  several  per- 
sons, who  said  they  had  gone  to  the 
respondent's  shop  and  asked  for  "pink 
pills,"  and  have  been  supplied  with 
Alexander'^  own  pills.  When  «isked  for 
Dr.  William's  pink  pills,  respondent  had 
said  that  those  he  had  tendered  were 
quite  as  good. 

Mr.  Molteno  read  a  number  of  reply- 
ing affidavits. 

John  Henry  Cooper,  chemist,  Plein- 
street,  said  that  to  his  knowledge  chem- 
ists in  England  sold  pink  pifls  other 
than   those   of   the   applicant   ooinpany. 

John  C.^  Smith,  chemist.  Cape  Town, 
formerly  in  the  employ  of  Hedges  and 
Co.,  of  Birmingham,  said  that  the  ap- 
plicants some  years  ago  threatened 
Hedges  and  Co.  with  an  action  for  sell- 
ing pink  pills  of  their  own  manufacture, 
but  did  not  go  forward  with  it. 

Ernest  Glover  Alexander  (the  respon. 
dent)  denied  that  he  had  infringed  the 
applicants'  label,  and  said  that  it  was  a 
common  custom  in  England  for  chemists 
to  sell  pink  pills  other  than  those  of 
the  appGcant  company.  He  claimed 
that  he  had  a  perfect  right  to  sell  pink 

gills  other  than  the  applicant  company's, 
[e  denied  that  he  had  represented  to 
the  persons  who  had  sworn  affidavits  on 
the^  other  side  that  his  pills  were  su- 
perior to  the  applicants'. 

Mr.  Bisset  having  been  part  heard  in 
argument, 

Buchanan,  A.C.J.,  said  that  as  the 
matter  seemed  to  be  likely  to  take  up  a 
considerable  time,  he  would  hear  the 
rest  of  the  argument  on  some  future 
occasion,  when  an  opportunity  offered. 

Po9tea  (November  15th). 

Mr.  Bisset  continued  his  argument  in 
support  of  the  application.  He  said  that 
when  the  matter  was  last  before  the 
Court  he  was  endeavouring  to  establish 
the  proposition  that  the  infringement  of 
a  trade-mark  may  consist  in  the  adop- 
tion by  a  rival  trader  of  an  essential 
part  of  such  trade  mark,  even  though 
the  essential  part  may  consist  of  oidy 
one  or  two  words— only  one  word,  for 
example,  as  in  the  Eureaka  Shirt  Case, 
Ford  V.  Foster  and  Porter  (7,  Law  Re- 
ports, Chancery  Appeals).  Counsel 
quoted  at  some  length  from  the  report 
of  the  case.  He  also  cited  the  Olet^eld 
starch  ease,  Waterrpocn  v.  Currey  (Law 
Reports,  5,  House  of  Lords). 

[Buohanam,  A.  C.  J. :  What  words  do 
you  say  can  be  used  in  this  case?] 

I  should  say  that  respondent  could 
say  this.  In  the  first  plaoe.  he  may  use 
the  word  "pill." 

[Buchanan,  A.  C.  J. :  Couldn't  he  use 
the  description  "pink  pills?] 


872 


«« 


CAPE  TIMES"  LAW  REPORTS. 


No ;  I  say  not,  because  "  pink  pilk  " 
is  an  essential  part  of  our  trade  mark, 
and  our  goods  nave  become  known  to 
the  trade  in  tbu  Colony  At  any  rate,  as 
••pink  pills." 

[Buchanan,  A.  C.  J. :  Is  not  your  es- 
sential part  "Dr.  Willia'ns*  Pink 
Pills?"] 

No ;  I  submit  not.  If  one  sees  "  pink 
pills "  one's  mind  flies  right)  away 
to  "Dr.  Williams'  Pink  Pills  for  Pale 
People." 

Buchanan,  A.  C.  J. :  Ton  claim  pink 
pills  as  your  exclusiye  right?  Nobodv 
else  may  sell  "  pink  pills "  in  South 
Africa?] 

Nobody  else  ma^  sell  "  pink  pills," 
we  say,  and  certainly  not  under  the 
same  collocation  as  the  respondent  is 
selling  pills,  viz.,  *'  pink  pills  for  deli- 
cate females."  I  should  say,  of  course, 
that  applicants  could  sell  "  Bland's  p'lis 
for  delicate  females." 

Mr.  Bisset  (proceeding)  called  the  at- 
tention of  the  Court  to  the  Transvaal 
High  Court  case  concerning  Khedive 
cigarette*. 

[Buchanan,  A.  C.  J. :  If  "pink  pills" 
is  only  the  description  of  an  article, 
then  you  are  not  entitled  to  an  inter- 
dict] 

Thai  is  an  objection  that  might  have 
been  raised  originally  before  our  trade 
mark  was  registered.  In  further  argu- 
ment counsel  quoted  the  Aus- 
tralian case  of  the  "Dog's  Head  Beery^* 
the  Einglish  case  of  Stone  Ales  {Mont- 
gomery V.  Thompson  appeal  cases,  1891) 
the  Yorkshire  Relish  case  {Potcell  v.  Bir. 
mingham  Vinegar  Co.,  appeal  cases, 
1897,  p.  715).  Counsel  went  on  to  argue 
that  the  description  of  "  pink  pills  "  had 
come  to  be  specialy  associated  with  ap- 
plicant's pills.  Applicants  had  made 
those  pills  famous  by  wide  advertising 
and,  he  supposed,  by  the  virtues  of  the 
pills. 

[Buchanan,  A.  C.  J. :  The  question  is 
w'hether  "pink  pills"  is  a  description  of 
a  pill.  Tne  amdavits  of  the  respond- 
ent allege  that  "pink  pills"  is  a  term 
commonly  used  among  chemists  in 
Great  Britain  and  Ireland,  a<nd  you 
have  not  answered  that.] 

Mr.  Bisset  said  that  the  question  was 
what  was  the  user  in  this  country.  If 
the  respondent  had  shown  that  "  pink 
pills  '*  was  a  term  known  to  the  public 
in  this  colony  before  1893,  when  the  ap- 
plicants had  their  trade  mark  registered, 
the  case  that  applicants  would  have 
had  to  moot  would  have  been  a  very  dif- 
ferent 'one.  All  that  the  affidavits  of  re- 
spondent said  was  that  the  term  was  in 
common  use  in  Great  Britain  and  Ire- 
land, but  the  respondent  did  not  suggest 
that  "  pink  pills  "  was  a  term  known  to 
the  public  out  here  before  1893,  and  the 
applicants  said  that  other  chemists  such 
as  respondent  were  now  seeking  to  take 
advantage  of  the  name  and  reputation 
obtained  for  "pink  pills'*  by  the  appli- 


I 


cants.  The  primary  words  "  pink  pills " 
may  have  been  merely  descriptive  at  the 
beginning,  but  he  contended  that  the 
words  had  now  obtained  a  secondary 
meaning.  Counsel  went  on  to  refer  to 
the  Camel-hair  Betting  ease  (14,  House 
of  Lords  Appeal  Cases,  1896,  p.  199). 

[Bucbanan.  A.  C.  J. :  Can  jrou  tell 
me  what  you  are  registered  as  in  Eng- 
land?] 

Mr.  Bisset  said  that  be  did  not  know. 
In  closing  tie  cited  the  case  of  Dr.  WS- 
liams*  Pink  PiUs  v.   TothiU. 

Mr.  Molteno  said  that  this  was  an  at- 
tempt on  the  part  of  the  ap- 
plicants to  appropriate  for  their  own  use 
a  portion  of  the  English  language. 
He  did  not  wish  for  a  moment 
to  deny  that  his  learned  friend's  state- 
ment of  the  law  was  perfectly  correct 
with  regard  to  the  Eureka  and  the 
other  cases.  Those  ^^^^^^  however, 
went  on  a  settled  principle.  Those  were 
cases  dealing,  not  with  trade  marks,  but 
with  trade  names  or  fancy  names,  a  to- 
tally different  thing.  Af^licants  were 
not  entitled  to  appropriate  the  generic 
description  of  "  pmk  pills."  These  pills 
were  simply  the  orainary  ferric  oxide 
pills,  and  they  were  pink  just  as  the 
nydrangea  was  pink.  If  they  looked 
at  any  of  the  circulars  of  manu- 
facturing chemists  on  the  contin- 
ent, in  England,  or  in  America,  they 
would  find  that  **  pink  pills  "  was  a  com- 
mon thing.  Dr.  Williams'  were  not  the 
only  pink  pills  in  the  world.^  Schultse 
and  Co.  of  London,  advertised  "  pink 
pills"  in  their  circulars.  This  was  an 
attempt  which  had  been  overruled  time 
after  time  of  a  person  trying  to  get  a 
proprietary  right  to  the  English  lan- 
guage, trying  to  trade  mark  a  portion 
of  the  English  language. 

[Buchanan.  A.  C.  J. :  I  could  quite 
understand  your  argument  if  you  were 
opposing  the  registnation  of  the  tnads 
mark.] 

Mr.  Molteno:  Then  I  will  come  to 
this,  is  the  defendants'  label  a  colour- 
able imitation  of  applicant's,  calculated 
to  deceive  the  people?  The  point  is 
whether  bv  selling  "  pink  pills  tor  deli- 
cate females "  we  infringe  the  trade 
mark  of  *^  Dr.  Williams'  pink  pills  for 
pale  people.'*  All  we  do  is  to  sell  a 
common  article  in  the  chemical  trade 
as  "  pink  pills."  W^e  try  to  sell  pink 
pills  not  for  "  pale  people " — ^not  for 
"  anemic  people  — but^  we  sell  them  for 
'' delicaite  lemalee."  I  submit  that  that 
would  not  deceive  the  most  aniemio 
people  in  the  world.  Mr.  Molteno  went 
on  to  urge  that  it  was  absurd  to  suppose 
that  ''  Dr.  Williams'  pink  pills  for  pale 
people"  had  the  sole  right  to  use  the 
term  "  pink  pills."  He  contended  that 
in  this  case  the  Court  had  not  to  decide 
a  question  such  as  was  raised  in  the_pre- 
vious  case  of  Dr.  Williams'  Pink  Pills 
V.  TothilL  One  oould  conceive  «h  colour- 
able fmittftion  of  the  applicant'   trade 


"CAPE  TIMES"  LAW  REPORTS. 


873 


mark  in  the  label  "  Dr.  Wilson's  Pink 
PillB.'*  One  could  understand  that  the 
class  of  people  who  l)ought  these  pills- 
he  believed  that  there  was  a  large  trade 
amongst  coloured  people— would  not  at 
once  detect  the  difference  between  **  Dr. 
Williams'  Pink  Pills  "and  "Dr.  Wil- 
son's Pink  Pills." 

Buchanan,  A.  C.  J. :  The  ap- 
plicants in  this  case  have  regis- 
tered a  trade  mark  under  the  for- 
mer Act,  and  that  trade  mark  still  re- 
mains in  existence.  It  is  clear  that  the 
original  trade  mark  is  not  one  that 
could  bo  registered  under  the  present 
Act,  and  the  question  whether  it  should 
or  should  not  have  been  registered  un- 
der the  previous  Act  has  never  been 
raised.  No  steps  have  been  taken  to 
have  the  mark  removed  from  the  re- 
gister, and  it  stands  there  as  one  of  the 
thin^rs  to  which,  by  registration,  the 
applicants  are  declared  entitled.  The 
triule  mark  as  the  registration  of  a  label 
which  begins  by  describing  them  as 
••  Dr.  Williams'  Pink  Pills  for  Pale  Peo- 
ple Medicine  Co.*'  Now,  had  this  been 
a  question  of  first  impression,  I  must 
say  I  would  have  hesitated  very  con- 
sioerably  before  saying  that  this  was  at 
all  a  colourable  imitation  of  the  appli- 
cants' trade  mark  which  is  sold.  I  can- 
not help  thinking  with  the  affidavits  be- 
fore me  that  "pink  ^ills "  arc  a  common 
article  in  the  chemists'  trade  in  Eng- 
land, and  that  pills  are  called  by  their 
coating,  pink  pills,  purple  pills,  white- 
coated  pills,  and  so  on,  but  I  have  bo- 
fore  me  the  previous  decision  in  this 
case,  where,  not  one  Judge,  but  two 
Judges  of  the  Supreme  Court,  sat  on 
this  very  question.  His  Lordship,  the 
Chief  Justice,  who  gave  judgment  in 
that  case,  seemed  to  found  his  judg- 
ment mainly  on  the  fact  that  the  plain- 
tiffs had  this  registration,  and  that  no- 
body else  is  entitled  to  use  the  words 
which  are  distinctive  and  descriptive  of 
the  applicants'  goods.  It  is  true,  as 
Mr.  Bisset  has  argued,  tha*fc  there  ha.s 
been  no  disclaimer  of  any  word  iii  the 
trade  mark  regisfercd,  and  it  might 
almost  be,  if  you  drive  his  argument  to 
an  extreme,  that  nobody  else  can  sell 
pills  in  this  country.  I  hardly  think 
we  could  go  so  far  as  that,  because 
"pills"  is  a  description  of  an  article. 
The  question  is  whether  "  pink  pills " 
has  obtained  such  a  secondary  meaning 
as  to  indicate  the  goods  ma[de  by  the 
applicants.  There  is  no  doubt  that  pink 
pifls  are  well-known  by  advertising,  and 
'nave  become  an  article  of  commerce. 
After  referring  to  what  would  probably 
have  been  the  position  of  the  trade 
mark  under  the  English  Acts,  his  lord- 
ship went  oil  to  say :  I  feel  bound  un- 
der the  previous^  decision  of  this  Court, 
and  with  the  evidence  before  me,  to  say 
thai  nobody  else  is  entitled  to  sell 
Vpink  pills"  as  such  in  this  country. 
They  may  not  describe  them  as  such, 
because   "pink  pills"   are  supposed   to 

k2 


be  "Dr  Williams'  Pink  Pills."  The 
goods  are  made  in  England  as  "  Dr. 
Williams'  Pink  Pills,"  lut  the  appli- 
cants have  been  shrewd  enough  to  get 
their  trade  mark  registered  in  tnis 
country,  and  while  that  trade  mark 
stands  I  am  bound  to  keep  it  in  view. 
The  applioatioH  will  be  granted  as  pray- 
ed, with  costs. 

[Applicants'  Attorneys:  Fairbridge, 
Arderne  and  Lawton;  Respondent's  At- 
torneys :    Not  on  the  record.] 


SECOND  DIVISION. 


[Before  theHon.  Mr.  JusticeMAASDORP.] 


SOEKER  y.    BLAKR 
HENDRICKS, 


"  ^^'^    \  N'ov.  tod. 
I     .,     3rd. 


This  was  an  action  in  which  Lallie 
Soeker,  a  livery  stable-keeper  and  specu- 
lator, of  St.  John-street,  Capo  Town, 
sought  an  order  releasing  him  and  his 
property  from  a  certain  bond  granted 
in  favour  of  Anna  Susanna  Blake  and 
Baine  Hendrickp 

The  plaintiff's  declaration  was  as  fol- 
lows: 

1.  The  plaintiff  is  a  landed  proprietor, 
residing  a^  Cape  Town.  The  first  de- 
fendant is  a  widow,  now  or  heretofore, 
residing  at  Paarl.  The  second  defend, 
ant  is  a  landed  proprietor  residing  at 
Cape  Town. 

2.  On  the  21st  April,  1902,  a  certain 
mortgage  bond  was  passed  and  register- 
ed in  the  Deeds  Office,  whereby  the 
second  defendant  acknowledged  himself 
to  be  indebted  to  the  first  defendant  in 
the  sum  of  £6,000,  and  as  security  there- 
for bound  as  a  first  mortgage  a  cer- 
tain piece  of  ground  situate  in  the  city 
of  Cape  Town  in  Glynville-terrace,  at 
the  corner  of  Hope-street. 

3.  The  said  mortgajfe  bond  further 
set  forth  that  the  plaintiff  bound  him. 
self  as  surety  and  joint  principal  debtor 
for  the  payment  of  the  said  £6,000. 
such  interest  as  mij^ht  become  due  there- 
on, premiums  of  insurance  and  other 
costs  and  charges,  and  that  for  the  se- 
curity thereof  the  plaintiff  bound  as  a 
first  moitgaope  a  oei^in  piece  of  land  in 
the  city  of  Cape  Town  being  part 
**  A "  of  the  land  transferred  to  Barrio 
Hendricks  on  the  25th  February,  1901, 
measuring  34  square  roods  and  45 
square  feet,  and  subsequently  trans 
f erred  to  the  plaintiff  on  the  19th  Feb- 
ruary.  1902. 

4.  That  portion  of  the  said  bond 
which  binds  the  plaintiff  and  his  pro- 
perty as  aforesaid,  was  passed  by  virtue 
of  a  certain  power  of  attorney,  purport- 
ing to  be  granted  by  the  plaintiff  in 
favour  of  Jan  Johcm  Miohau,  an  attor- 
ney-at-law  and  oonveyancer,  to  be  sign- 


874 


"CAPS  umbs**  law  reports. 


ed  by  Ihe  plaintiff,  with  his  mark,  and 
purporting  to  authorise  the  said  Michau 
to  appear  before  the  Reg>istrar  of  Deeds 
and  to  bind  the  plaintiff  and  his  pro- 
perty as  aforesaid. 

5.  The  said  power  of  attorney  was  not 
granted  by  the  plaintiff  and  the  mark 
thereon,  purporting  to  be  the  plaintiff's 
mark  was  not  put  thereon  by  tne  plain- 
tiff or  with  his  authority  knowledge  or 
consent,  and  the  plaintiff  never  agreed 
to  bind  himself  or  his  property  as  afore- 
said. 

6.  The  said  mark  was  fraudulently  put 
on  the  said  power  of  attorney  by  the 
second  defendant,  or  by  someone  else 
on  his  instructions. 

Wheirefore  the  plaintiff  claims :  (a)  An 
order  releasing  the  plaintiff  and  his  pro- 
perty as  aforesaid  from  the  said  bond, 
(b)  An  order  directing  the  Registrar  of 
Deeds  to  rectify  the  said  bond  and  the 
entering  thereof  in  the  Debt  Register 
by  striking  out  therefrom  all  mention  of 
the  plaintiff  or  his  property,  (c)  Alter- 
native relief,      (d)  Costs  of  suit. 

The  defendant's  plea  denied  the  for- 
gery, alleging  that  the  plaintiff  put  his 
signature  to  the  power  of  attorney. 

Mr.  Gardiner  (with  him  Mr.  Koux) 
for  plaintiff.  Mr.  Searle.  K.C.  (with 
him  Mr.  J.  E.  R.  de  VilHera)  for  first 
defendant ;  Mr.  Upi<ngton  (with  him  Mr. 
Van  Zyl)  for  second  defendant. 

The  plaintiff  stated  he  wae  a  livery- 
stable  keeper,  and  resided  in  St. 
John-street.  He  owned  a  considerable 
quantity  of  property,  and  had  had 
several  speculations  with  Hendricks. 
Mr.  Chiappini  acted  as  witness's  agent. 
Witness  did  not  agree  to  go  euiret^  for 
Hendricks  on  a  £6, 000  bond.  Witness 
did  not  authorise  anybody  to  put  his 
mark  to  it.  Witness  discovered  that 
he  was  surety  when  on  one  occasion  he 
wanted  iBl,0OO,  and  went  to  Mr.  Chiap- 
pini, who  told  him  ho  could  not  ad- 
vance the  amount.  Witness  coni'idered 
he  was  worth  £1.000.  and  took  his 
papers  to  a  Mr.  W^oolf,  who  informed 
him  that  he  owed  £32,000.  It  was 
on  that  occasion  ho  first  discovered 
there  was  a  bond  for  £6,000. 

In  cross-examination  by  Mr.  Searle, 
witness  denied  that  he  Kad  signed  any 
docunrient  to  paes  transfer. 

Louis  Cerfontein  stated  he  knew  both 
the  plaintiff  and  Hendricks.  Witness 
was  clerk  to  the  latter,  who  brought 
him  the  document  to  sigr.  as  a  witness 
in   April,    1902.  Soerker's  mark  was 

not  there  at  the  time.  W^itness  did 
not  see  Soeker  put  hi^  mark  to  the 
power  of  attorney  when  witness  signed 
It. 

Bv  Mr.  Searle :  He  was  in  Hendricks' 
employ  when  he  signed  the  document 
The  paper  was  folded  up.  and  what  he 
signed  was  perfectly  blank — that  was 
the  portion  of  the  document  shown  to 
him. 

By  Mr.  Upington :  He  had  the  strict- 
est confidence  in   Hendricks,   and  there- 


fore he  tsigned  his  name  wiihoat  ask- 
ing any  questions.  For  all  he  knew, 
it  might  have  been  a  confessicMi  of 
murder.  It  was  never  explained  to 
him  that  he  was  witnessing  a  mark 
when  he  put  his  name  to  the  power  of 
attorney.  When  he  went  to  see  Mr. 
Woolf  earlv  in  the  ,7ear,  be  did  not 
point  out  that  his  initials  on  the  docu- 
ment were  forgeries. 

Courtene^  Cmmack,  clerk  in  the  office 
of  the  Register  of  Deeds,  produced  the 
bonds. 

Mr.  Gardiner  (^osed  his  case. 

Barrie  Hendricks,  the  second  defen- 
dant, stated  that  in  1902  he  purchaaed 
a  certain  property  adjoining  the  one 
that  was  mortgaged.  He  wanted  a  loan 
to  proceed  with  building  operations, 
and  Soeker  consented  to  go  as  security. 
Thereupon  witness  gave  certain  instruct 
tions  to  Chiappini  Bros.  Tlie  money 
was  advanced  from  time  to  time  as  the 
building  proceeded.  Witness  aigped 
the  power  of  attorney  in  Mr.  Chiap- 
pini's  office,  and  went  in  search  of  the 
plaintiff.  He  saw  the  plaintiff  talking 
to  Taffie,  and  when  witness  showed 
him  the  document,  Soeker,  Taffie,  and 
witness,  at  the  former's  suggestion, 
went  to  witness's  house.  Soeker  made 
his  mark  on  the  security  bond  in  the 
presence  of  the  witnesses.  He  would 
swear  that  Soeker  put  his  mark  there 
in  the  preiEence  of  the  witnesses.  If 
the  bond  was  called  up,  he  would  be 
able  to  pay  it  at  present.  In  1902  he 
owned  considerable  property;  he  was 
not  pushed  for  money,  and  he  could 
have  raised  it  elsewhere.  Since  then 
he  had  accommodated  Soeker  to  an 
amount  of  over  £2,000.  B<»th  the 
plaintiff  and  Omar  were  in  difficultis. 
Witness  saw  the  thing  coming  on 
through  the  racehorses.  The  docu- 
ment  was    handed   to   Cerfontein   open. 

Croi»s-oxamined  by  Mr.  Gardiner:  If 
Soeker  had  refused  to  go  as  security, 
witness  could  have  got  the  money  on 
his  other  property.  He  could  not  say 
who  gave  Chiappini  Bros,  authority  to 
use  Seeker's  name  an  security  before 
the  26th  March.  Cerfontein.  witness 
would  swear  positively,  signed  the  docu- 
ment. 

Alexander  John  Chiappini,  partner  in 
the  firm  of  Chiappini  Bros.,  acted 
for  the  plaintiff  and  the  second  defend- 
ant, in  Dusiness  for  a  number  of  years, 
stated  until  recently  Soeker  and  Hen- 
dricks were  on  the  best  of  terms.  Hen- 
dricks required  a  loan  of  £6,000  on  the 
buildings.  Witness  made  arrangements 
to  have  the  power  of  attorney  signed. 
The  following  day  Hendricks,  who  sign- 
ed the  power,  said  that  he  could  not 
find  Soeker.  Hendricks  subsequently 
returned  with  Soeker*s  mark,  and  the 
signatures  of  two  witnesses.  The  plain- 
tiff had  frequently  signed  as  security  for 
Hendricks.  Soeker  came  to  his  office 
later  on.  and  wanted  money  to  pav  the 
liabilities  of  Hadje  Omar,   and   witness 


"CAPE  TIMES"  LAW  REPORTS. 


876 


reminded  him  that  he  had  already  gone 
as  security  for  Hendricks,  and  witness 
then  gave  him  a  cheque  for  £150.  Soe- 
ker  was  constantly  getting  money  of 
witness.  In  March  this  year  Soeker 
wanted  £1,000,  to  pay  certain  liabilities 
of  Arend's.  Witness  said  it  was  impos- 
sible to  raise  that  amount  of  money, 
taking  it  for  granted  that  Soeker,  who 
offered  no  landed  property  as  security, 
knew  all  about  the  mortgage  of  £6,000 
on    his  propertT.    Soeker    further    sug- 

gested  tne  pledging  of  certain  race- 
^  orse?,  but  when  witness  spoke  of  hav- 
ing them  taken  to  ertables  at  Wynberg, 
the  plaintiff  dropped  the  conversation. 
Soeker  begged  of  witness  to  assist  him 
as  he  was  being  summoned,  and  witness 
advanced  hiin  £160. 

Cross-examined  by  Mr.  Gardiner : 
When  Hendricks  wanted  the  money  he 
had  no  unbonded  property.  If  he  had 
sold  his  property  at  the  time  he  would 
haye  had  £1,500  over  his  bonds.  Several 
powers  were  signed  in  the  presence  of 
other  witnesses,  and  he  did  not  think 
it  necessary  to  have  this  power  with 
£6,000  concerned  signed  in  his  presence. 

Allie  Taffie,  building  foreman,  aa'id 
he  was  present  with  Soeker,  when  Hen- 
dricks came  up  with  the  document  to 
sign.  Soeker  said  all  right,  and  sug- 
gested going  round  to  the  house  to 
sign  the  paper.  Hendricks,  in  the  house, 
called  the  two  witnesses,  and  told  them 
that  they  must  sign  as  witnesses  to 
Soeker's  mark.  S^ker  put  his  mark 
to  the  paper,  and  then  the  witnesses 
signed. 

Oross-ezanHned  by^  Mr.  Gardiner: 
Witness  was  a  relative  of  Hendricks. 
Witneas  was  at  work  when  Hendricks 
came  up,  and  beyond  having  a  cup  of 
tea  he  did  not  know  why  he  was 
brought  round  to  the  house  as  he  could 
not  write. 

Hannah  Hendricks,  wife  of  the  second 
defendant,  stated  that  she  saw  Soekor 
put  his  mark  to  a  document  in  her  hus- 
band's house  a  little  more  than  three 
years  ago.  After  that  the  two  witnesses 
signed  the  papers. 

Cross-examined  by  Mr.  Gardiner:  She 
had  been  married  according  to  Malay 
rites  for  a  number  of  years,  and  was  re- 
married before  a  Magistrate  this  year, 
when  her  husband  settled  on  her  a 
number  of  horses  and  carriages,  and  a 
quantity  of  property  after  she  had  sign- 
ed an  ante-nuptial  contract. 

James  Robert  Munnik.  clerk  in  the 
employment  of  Messrs.  Cliiappini  Bros., 
ataied  he  witnessed  a  power  to  pass  a 
mortgage  bond  for  £3,000  in  May,  1902. 
It  waa  not  allowed  in  the  office  to  wit- 
ness the  signature  of  a  man  who  was 
not  present. 

Francis  Chiappini,  partner  in  the 
firm  of  Ohi»ppini  Bros.,  ^taited  it  wias 
a  rule  of  vote  ot&ce  not  to  witness  any 
fligrnature  except  it  was  written  at  the 
time. 

Mr.  TTping^n  closed  hia  case. 


Mr.  Searle  called  witueeeee  to  give 
formal  evidence  ««  to  the  'bonds  passed 
between  Soeker  tand  Hendricks,  and  as 
to  the  passing  of  the  bond  in  question. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts. 

^  Maasdorp,  J. :  Before  dealing  with  the 
circumstances  directly  connected  with  the 
transaction  in  ^  question,  it  would  be 
well  to  ascertain  the  personal  relations 
that  existed  at  that  time  between  Soeker 
and  Hendricks.  I  am  satisfied  that  the 
relationship  was  of  the  most  friendly 
character.  It  seeme  also  that  they  ac* 
oonrimodated  one  another  on  several  oc- 
casions with  their  rignaturee.  Of  course, 
it  may  be  said  that  this  relatioiudiip 
Hendricks  took  advantage  of  in  order 
to  obtain  irregular  assietance  in  funds. 
Hendricks  a<t  that  time  wae  not  in  such 
difficulties  that  it  was  neceesary  to  have 
recourse  to  irregularities  in  order  to 
obtain  funds.  Of  the  two  disinterested 
witneai^es  in  the  case  there  is  nothing 
to  choose  between  Corfontein  and  Taffie, 
and  consequently  their  credibility  haA 
to  be  tested.  His  lordship,  after  re- 
viewing the  evidence,  accepted  that  of 
Mr.  Chiappini,  wluoh  be  said  disposed 
of  the  evidence  -^iven  by  Cerfontein,  and 
he  gave  judgment  for  the  defendants, 
with  costs. 

Attorney  for  Plaintiff:  Van  derByl 
and  De  ViUiers ;  Attorneys  for  first  De- 
fendant: Walker  and  Jacobsohn;  At- 
torneys for  eeoond  Defendant :  Dempers 
and   van  Ryneveld.] 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hopley.] 


WOOD  V.  8HEBW00D. 


{ 


1905. 
N^ov.  3rd. 
„     7th. 

This  was  an  action  brought  by  John 
Henry  Wood,  of  Claremont,  a  former 
Mayor  of  Muizenberg,  against  E.  J. 
Sherwood,  of  Observatory,  a  member  of 
the  Mowbray  Municipal  Council,  to  re- 
cover cession  of  a  policy  of  insurance, 
and  damages  in  the  sum  of  £100. 

From  the  pleadings,  it  appeared  that 
the  nvatter  in  dispute  went  back  to  the 
early  '80's,  prior  to  either  party  coming 
out  to  the  Cape.  Defendant  became 
surety  to  a  firm  named  Wood  Bros,  for 
the  plaintiff's  running  account,  and  in 
or   about   September,       1884,      plaintiff 


876 


M 


CAPE  TIMES"  LAW  BBPORT& 


handed  to  him,  by  way  of  security,  a 
liolicy  of  iDAiiraiice  upon  hb  life  for 
£400  with  the  SUiidard  Life  Afwur- 
aiioe  CompanT.  Plaintiff,  in  his  de- 
claration, aaid  that  he  made  paymentu 
to  defendant  in  full  di«charffe  of  the 
liabilities  undertaken  by  defendant, 
thua  entitling  him  to  the  return  of  the 
policy  and  the  cession.  Defendant  had 
returned  the  policy,  but  not  the  ces- 
sion, although  demands  had  repeatedly 
been  made  upon  defendant  in  regard 
to  the  latter.  He  prayed  for  (1)  an 
order  for  the  return  of  the  cession;  (2) 
judgment  for  £100,  as  and  for  damages; 
ana   (3)   costs  of  suit. 

Defendant,  in  his  plea,  said  that  in 
July,  1888,  plaintiff  and  defendant  ar- 
riYed  at  a  settlement,  whereby  it  was 
mutually  agreed  that  plaintiff  should 
pay  to  defendant  the  sum  of  £200.  and 
that  the  said  policy  then  held  by  defen- 
dant, with  the  rignts  therein,  should  be- 
come  defendant's  property  out  and  out, 
and  remain  absolutely  vested  in  him, 
plaintiff  further  undertaking,  in  lieu  of 
paving  interest  on  his  indebtedness  to 
defendant,  to  pay  the  premiums  of  in- 
surance. Plaintiff  paid  £200,  but  such 
payment  waa  not  in  full  disoharge  of 
the  liabilityof  the  defendant  under  the 
surety.  The  policy  was  handed  to 
plaintiff,  who  waa  leaving  for  England, 
on  his  undertaking  to  pay  the  balance 
due  to  defendant  of  £390.  Plaintiff 
neither  on  his  return  nor  thereafter 
paid  such  amount,  nor  any  part  thereof, 
and  it  still  remained  due  and  owing. 
Defendant  was  still  ready  and  willing, 
and  tendered  to  deliver  to  plaintiff  the 
said  cession,  on  payment  of  the  eaid 
amount  (£390).  now  due  to  him.  He 
prayed  tnait  ithe  claim  might  be  die- 
missed,  with  costs.  In  reconvention, 
defendant  claimed  an  order  thai  plain- 
tiff hand  over  to  him  the  said  policy, 
and  continue  to  pay  the  premiums  from 
time  to  time  as  they  fall  due,  or,  alter- 
natively, payment  o(  the  said  sum  of 
£390.  with  interest  n  tempore  moraCy  and 
costs. 

Plaintiff,  in  his  replication,  denied 
that  ho  undertook  to  pay  defendant  the 
^um  of  £390,  or  any  part  thereof,  or 
that  ho  owed  defendant  any  sum.  For 
a  plea  to  the  claim  in  reconvention,  he 
said  that  he  had  discharged  all  in- 
debtedness that  defendant  might  have 
had  under  the  bond,  and  he  prayed 
thait  the  claim  in  reoon  vent  ion  might  be 
dismissed,  with  costs. 

Mr.  Benjamin  (with  him  Mr.  W.  P. 
Buoh-anan)  for  plaintiff;  Mr.  McGregor 
(with  him  Mr.  Lewis)  for  defendant. 

John  Henry  Wood  (plaintiff)  said 
that  ho  was  formerly  a  miller  in  Al- 
ford  Lincolnshire.  Wood  Bros., 
whoso  principal  business  was  in  Hull 
at  that  time,  supplied  him  with  foreign 
wheat.  In  1879  defendant  came  to  his 
place  in  Alford,  and  said  that  he  was 
very  much  pressed  for  money,  and 
asked  witne^  for  a  loan  of  £100.       He 


had  known  defendant  from  being  & 
vouth.  having  been  boya  together. 
When  they  ^rew  up,  tbev  married  two 
hist4}rB.  Witness  told  defendant  thai 
he  could  not  afford  to  lend  him  a^ 
uiuucy,  because  there  waa  a  great  dim* 
culty  at  the  time  in  bujring  foreign 
wheat.  They  had  had  five  auccesnve 
bad  harvests.  Witness,  however,  agreed 
that  if  defendant  would  be  security  for 
him  for  foreign  wheat,  he  would  find 
him  £100.  Sherwood  agreed  to  be- 
come surety  for  two  bilb  of  £250  each. 
Witness  could  not  give  defendant  more 
than  £60.  When  the  bills  became 
due,  witness  met  them.  Defendant 
entered  into  a  deed  of  surety  with 
Wood  Bros.  Some  time  durmg  1879 
or  1880,  he  entered^  into  a  separate  bond 
as  a  general  security  for  witness's  ac- 
count. Witness  remained  in  England 
until  1881.  When  he  left,  they  had 
had  a  succession  of  bad  harvests,  and 
in  order  to  secure  Mr.  Sherwood  as  his 
surety,  witness  gave  him  a  second  mort- 

gage   on  the   will   and   property,    which 
e  held,   but  unfortunately     tnat  mort- 
gage   was    advertised   in    the      London 

Gazette  "  as  a  bill  of  sale.  Witneas 
did  not  go  into  insolvency.  He  let 
the  business  to  a  local  miUer,  and  ad- 
vertised the  mortgagees  of  the  property, 
with  the  consent  of  Mr.  Sherwood.  The 
result  of  the  bill  being  advertised  in 
the  "Gazette"  wae  that  his  creditors. 
Wood  Bros.,  became  anxious  about 
their  account.  From  time  to  time 
after  he  had  come  to  the  Cape,  he 
received  dunning  letters  from  the  de- 
fendant with  regard  to  his  indebted- 
ness, and  afterwards  he  received  let> 
ters  from  Sutcliffe  and  Sutoliffe. 

Mr.  Benjamin  put  in  a  bundle  of  cor- 
respondence, going  down  to  1888.  In 
that  year  the  proposal  was  made  that 
plaintiff  should  i)ay  £200  absolutelv, 
and  that  on  payment  at  any  time  with- 
in twelve  months  of  another  £100.  the 
policy  should  be  handed  back     to  him. 

Witness  {continuing  his  evidence)  said 
tihat  he  paid  the  sum  of  £300  as  a^^roed 
upon,  making  the  final  payment  on 
September  6,  1890.  In  1890  the  policy 
was  handed  back  to  him  b^  defendant. 
Witness  went  to  England  in  1897,  and 
waited  upon  Sutcliffe  and  Sutcliffe  with 
regard  to  the  state  of  his  account  with 
Wood  Bros.  He  was  given  a  receipt  by 
Sutcliffe  and  Sutcliffe.  The  c^ion  had 
been  the  cause  of  a  long-standing  quar- 
rel. Witness  was  in  some  difficulties  in 
1903.  It  was  not  until  then  that  he 
made  his  discovery  that  the  cession  had 
not  been  given  back  to  liim.  Defen- 
dant, on  demand  being  made  upon  him. 
first  agreed  to  hand  the  cession  over  to 
witness's  son,  and  afterwards  to  hand 
it  over  to  his  trustees,  but  he  failed  to 
give  up  the  cession.  Witness  discovered 
that  defendant  had  been  attempting  to 
raise  money  on  the  poKcv.  Witness 
spoke  to  an  interview  whicn  afterwards 
took  place   between  ymself,   Mr.  Sher- 


**CAt»H  tlMBS"  LAW  ttEtOttm 


M 


wood  And  Mr.  Andrews,  w'lien  the  de- 
fendant claimed  that  witness  >had  only 
paid  £250  and  that  he  was  not  entitled 
to  the  £100.  Witness,  who  was  in  *a 
rage,  replied :  **  If  that  is  the  ease,  give 
him  the  money,  if  I  can't  have  it 
honourable  I  won't  have  it  at  all." 
Frcmi  time  to  time  lie  had  appl^icatione 
from  the  defandant  for  sums  of  money 
from  1891  to  1901.  From  1890  to  1904 
there  was  no  intimation  on  the  part  of 
the  defendant  that  witness  was  ii^ebted 
to  him  in  any  way.  Between  1890  and 
1887  he  decided  to  lend  anything  to  the 
defendant  because  the  latter  would  not 
give  him  a  free  discharge.  From  1897 
onwards  he  had  continually  lent  to  the 
defendant^  money  up  to  large  amounts. 
"  In  fact,"  said  witness  with  warmth, 
*'ihe  has  also  been  the  torment  of  mv 
life."  ' 

Mr.  Benjamin  read  a  series  of  letters 
couched  in  very  fraternal  terms  which 
had  passed  years  ago  between  the 
parties,  plaintiff  being  visibly  affected 
when  the  correspondence  was  read. 
3rianv  of  the  letton  contained  applica- 
tions by  defendfiuit  for  financial  help. 

Witness  (in  further  evidence)  said 
that  he  had  paid  all  the  paremiums  on 
the  policy. 

Cross-examined  by  Mr.  McGregor: 
Witness  had  a  ^ood  memory  sometimes. 
He  had  been  in  a  rage  several  times 
because  of  defendant's  conduct.  He 
waij  not  bad  tempered.  He  did  not 
think  that  he  had  threatened  personal 
violence  to  Mr.  Sherwood.  He  did  not 
remember  saying  recently  to  the  de- 
fendant that  if  he  (plaintiff)  lost  the 
case,  Sherwood  would  have  to  suffer, 
even  if  be  (witness)  had  to  swing  for 
it.  Wrtnees  took  exception  to  a  misire- 
presentation  made  by  the  defendant  to 
the  insurance  company.  When  he  want- 
ed to  raise  money  on  the  policy,  defen- 
dant represented  that  witness  had  oon- 
eented  to  it.  That  was  what  witness 
referred  to  when  he  spoke  in  one  of  his 
letters  about  the  miutter  taking  a 
"  criminal    aspect" 

Mr.  McGregor:  Have  you  used  very 
positive  epithets  towards  Mr.  Sben-wood. 

Witness  (with  some  feelin^g:):  I  have 
called  him  alimost  everything  that  I 
could  think  of  from  time  to  time,  be- 
oause  I  have  been  so  much  annoyed  by 
him. 

Further  cross-examined  :  Witness  came 
out  to  this  country  in  October,  1881. 

In  further  ctxMS-examination,  witne^ 
said  -that  defendant  persecuted  him  from 
the  very  day  he  arrived  in  this  colony 
in  reflcard  to  the  bond. 

Mr.  McGregor  wanted  to  put  a  letter 
to  wvtnesB  to  refresh  his  memory  on  a 
certain  point. 

Witness  (bitterly) :  I  don't  want  to  see 
it ;  I  am  so  sick  of  the  whole  thing. 

In  answer  to  the  Court :  Witnei^s 
said  that  Wood  Bros,  died  soon  after 
be  had  given  up  doing  business  with 
tbem. 


Further  cross-exammed :  Yeaie  ago 
witness  had  asked  the  defendant  for  a 
statement  of  what  ho  '  had  paid  to  the 
firm  of  Wood  Bros.  He  had  threatened 
in  one  of  the  letters  to  remove  beyond 
the  reach  of  the  defendant. 

Mr.  McGregor  :  Why  did  you  threaten 
\\j  go  beyond   his   reach? 

Witness:  Because  he  was  peiieecuting 
me.  I  would  go  to  the  ends  of  the 
earth  raither  than  be  persecuted,  and  I 
would  BO  further  if  possible!  Witness 
paid  £20  to  Sherwood's  solicitors  in 
England  for  a  complete  statement  of 
the  account,  and  in  1897  he  made  a 
full  and  final  settlement.  He  had  lent 
thouisands  of  pounds  since  then  to  Sher- 
wood. It  was  with  Sherwood's  consent 
that  he  came  out  to  this  colony.  He 
did  not  see  Sherwood  before  he  em- 
barked from  Hull,  because  Sherwood 
was  in  London  at  that  time.  He  ad- 
mitted that  it  would  have  been  better 
if  he  had  inc^uired  before  he  left  Eng- 
land what  his  indebtedness  to  Wood 
Bros.  was.  It  would  have  eaved  him 
a  life-<time  of  agony. 

Mr.  McGregor :  Mr.  Sherwood  was 
in  difficulties  m  1879? 

Witness:  I  have  never  known  him 
out  of  difficulties,  and  I  have  known 
him  since  he  was  a  boy. 

Further  cross-examined  :  A  grreat  many 
of  witness's  papers  had  been  destroyed 
by  the  fire  at  his  mill  in  Plein-etreet. 

By  the  Court :  Witness  based  his  claim 
on  the  settlement  arrived  at  with  de- 
fendant's solicitors,  Messrs.  SutcHffe  and 
Sutcliffe,  in  July,  1888.  Messrs.  Sut- 
oliffe  wrote  saying  that  the^  were  will- 
ing to  accept  £300,  paid  in  terms  set 
out,  and  he  agreed,  paydng  the  sum 
of  £300  in  full  and  final  settlement. 
The  amount  of  £300  was  agreed  to  as 
a  compromise.  He  sent  £100  aikl  three 
sums  of  £50,  and  paid  'the  balance  of 
£50  to  the  Sherwoods  on  their  arrival 
in  this  colony  in  October,  1890.  Sher- 
wood used  often  to  oomplaan  that  he 
had  paid  i>aup.  £600,  or  dDl,000,  and  as 
witness  was  in  good  circumstances,  he 
offered  to  {hlv  to  defendant  anything 
more  that  mignt  bo  owing  to  hrm.  Wit- 
ness said  to  defendant:  *' If  you  can 
prove  that  vou  have  paid  the  amount 
of  money  that  you  allege,  I  will  give 
you  £1,000  and  principal  and  interest," 
There  had  been  a  lot  of  trouble  in  the 
family,  because  some  believed  witness 
and  others  believed  Sherwood. 

Douglas  Francis  Mautrv,  clerk  in  the 
employ  of  the  Bank  of  Africa,  gave  evi- 
dence as  to  certain  drafts  drawn  by 
plaintiff  in  favour  of  defendants. 

David  R.  Andrew,  district  manager 
for  the  Western  Province  of  the  Stan- 
dard Life  Company,  said  that  the  pre- 
miums had  been  paid  up  to  July  fast, 
and  the  policy  was  still  alive,  although 
the  premium  for  1906  was  now  due. 
Witness  was  waited  upon  this  year  by 
Sherwood,  and  asked  what  loan  value 
would  be  given  on  the  policy.      Witness 


878 


<i 


CAPE  TIMES"  LAW  ULEPOlSLTB. 


iDuuired  from  the  head  office,  and  was 
informed  that  the  loan  value  was  £126. 
It  waa  a  reeuiation  of  the  office  that 
both  the  bolder  and  the  oessionary  of 
the  policy  should  sign  a  bond  if  a  loan 
were  granted.  Sherwood,  on  being 
asked  if  Wood  was  willing  to  sign  the 
bond,  said  that  he  was.  Wood  after- 
wards called  at  the  offioe,  and  objected 
to  any  loan  being  granted  on  the  policy. 
Witness  had  in  the  meantime  communi- 
cated with  Johannesburg,  and  at  ue 
time  Wood  called  a  cheque  and  two 
bonds  were  in  the  company's  office. 
There  was  an  interview  subaequenily 
with  Sherwood  and  Wood,  at  which 
the  latter  lost  his  temper. 

Mr.  Benjamin  closed  his  case. 

E.  J.  Sherwood  (defendant)  was  then 
called.  About  1880,  he  said,  he  went 
with   plaintiff  to  Wood   Bros.,  of  Hull, 

f^ave  him  a  letter  of  credit,  and  lent 
.im  £1,000.  He  denied  that  about  that 
time  he  received  a  loan  from  plaintiff. 
Plaintiff  gave  hjm  a  second  mortgage 
on  his  mill  property  lor  £500.  He 
failed  to  meet  his  second  bilK  Witness 
made  several  payment«  to  W*ood  Bros. 
When  plaintiff  s  bills  fell  due  he  called 
upon  witness  to  pay  as  much  as  he 
could  to  meet  the  bills.  Witness  scraped 
together  all  the  loose  cash  that  he  could 
find  and  handed  it  over  to  Wood. 

[Hopley,    J.:    Without    any  receipt?] 

W'itness:  1  simply  handed  it  over  to 
Wood.  He  would  come  to  me  and 
say :  "  Look  here,  there  is  a  bill  to 
meet,"  and  I  gave  him  so  much  towards 
it 

[Hopley,  J.:    How  much?] 

That  I  cannot  tell  you. 

[Hopley,  J. :  Do  you  want  us  to  be- 
lieve that  you  handed  over  this  money 
without  getting  any  acknowledgment?] 

I  got  acknowledgments. 

[Hopley,  J.:    Where  are  they?] 

I  have  net  got  the  acknowledgmenta 
now,  I  never  troubled  about  them.  The 
second  bill  that  was  met  w-aa  met 
throug-h  the  eelHng  of  my  furniture 
when  I  was  away  in  London. 

W'itness  (continuing)  said  that  he 
transferred  the  rents  of  his  property  in 
Manchester  for  plaintiff's  benefit. 

Mr.  McGregor:  Did  you  get  a  state- 
ment of  account  between  J.  H.  Wood 
and  Wood  Bros? 

W'itness:  Certainly,  as  soon  as  Wood 
ran  away  I  got  that. 

Mr.  McGregor:  What  became  of  that 
etatement? 

W^itncas :  I  sent  it  after  him  to  South 
Africa.  Continuing,  he  said  that  when 
he  could  not  go  on  paying  cash,  he 
passed  a  bond  in  favour  of  Wood  Bros. 
Subsequently  he  surrendered  the  bond 
Wood  nad  given  him,  for  the  sake  of  his 
(plaintiff's)  father  and  mother.  Wood 
took  particular  care  not  to  see  witness 
before  he  went  to  South  Africa.  Wood 
could  have  met  him  in  Hull,  where  he 
started  from,  and  where  witoAas  waa. 
He  (defendant)  Fan  all     over  rtie  l<vwn 


trying  to  find  him,  but  he  did  not  suc- 
ceed. The  first  news  he  had  ol  Wood's 
whereabouts  be  received  from  his  (wit- 
ness's) wife. 

[Hopley,  J.  (interposmg) :  What  is 
all  this  about?  Do  you  want  to  impute 
dishonesty  ?] 

No,  not  difihonesty. 

[Hopley,  J.:  Then  what  is  all  the 
trouble  about?] 

I  think  he  ii>igbt  bave  made  some  ar- 
rangement about  the  payment  of  his 
account. 

[Hopley,  J. :  But  that  waa  arranged 
by  you  having  taken  it  over?] 

I  did  not  take  it  over  with  the  in- 
tention of  having  the  account  to  pay. 

[Hopley,  J. :  You  must  have  been 
young  in  those  days.] 

Witness  (in  further  evidence)  said  that 
he  had  expended  on  behalf  of  the  plain- 
tiff £600  odd,  apart  from  legal  ex- 
penses. 

[Hopley,  J. :  Of  course,  you  will  pro- 
duce documents  to  show  this  ezpeodi- 
ture?] 

Witness  replied  that  he  oould  not 
produce  any  such  documents. 

[Hopley,  J. :  Then  hadn't  we  better 
come  down  to  the  settlement  of  '88.  and 
leave  this  ancient  history  alone?  The 
important  date  is  *88.] 

Witness  (continuing)  said  that  when 
the  agreement  of  '88  was  made  witness 
was  in  England.  Plaintiff  did  not  pay 
the  first  £200  within  three  years.  He 
did  not  avail  himself  of  the  option. 
Witness  received  £100,  and  two  drafts  of 
£50  each,  but  he  got  no  more  payments 
either  by  draft  or  note.  Witness  did 
not  hand  the  policy  to  defendant  in 
1890,  but  it  remained  in  his  possession 
until  1897. 

He  ihanded  the  policy  to  the 
plaintiff  in  1897,  when  the  latter  went 
to  England.  Plaintiff  said  that  ho 
wanted  the  policy  for  a  purpoite,  but 
witness  knew  that  he  was  not  wanting 
to  raise  money,  because  he  was  in 
funds.  Wood  said  that  he  had  got 
plenty  of  money,  and  he  was  going  to 
the  Old  Country,  and  was  going  to 
square  up  all  his  old  debts.  He  was  go- 
mg  to  see  W^ood  Bros,  and  Sutcliffe, 
witness's  solicitors,  and  see  how  much 
he  (defendant)  had  paid  on  his  behalf. 
He  promised  on  his  return  to  pay  to 
witness  all  that  he  (Sherwood)  had  pAid 
to  Wood  Bros.,  with  interest.  W'itness 
gave  plaintiff  the  policy,  but  he  told 
plaintiff  that  he  would  keep  the  cession. 
Witness  knew  that  plaintiff  could  not 
raise   money  on  the  policy. 

[Hopley.  J. :  What  was  the  ^ood  of 
taking  that  policy  to  England?] 

It  was  no  good  to  him,  only  he 
M>emed  to  have  had  a  fad  to  have  it  in 
iiis  posseseion. 

[Hopley,  J.  :  What  good  could  it  be 
to  him?] 

No  good  whatever  financially ;  I  knew 
that. 


"CAPE  TtMES"  LAW  ItEt'OltTS. 


S79 


,  [Hopley,  J. :  What  was  the  fad  H«ro 
18  «  man  with  thousands  to  his  credit 
m  the  bank  at  the  time.  Why  should 
fhe  have  this  particular  fad?] 

I  camxyt  tell  you.  I  must  leave  the 
Court  to  decide. 

[Hopley,  J.:  That  is  what  the 
Court  wants  to  know.  The  Court 
has  to  decide  on  the  proba- 
bihties  when  two  gentlemen  like 
yourselves  contradict  each  other  and 
call  each  other  a  liar,  and  say  that  you 
are  mistaken?] 

I  bave  given  the  true  statement  of 
what  passed  between  us. 

Witness  (in  further  evidence)  said  that 
he  sent  a  letter  to  Sutcliffe  giving 
plaintiff  a  full  discharge  from  all  legal 
clami.  He  took  it  that  expresiion  did 
not  mean  that  the  policy  had  been  re- 
deem^. When  plaintiff  returned 
from  England,  he  flourished  the  receipt 
about,  and  put  it  in  front  of  witness's 
wife  and  children.  He  said  to  wit- 
ness: I'  I  have  got  vou ;  you  have  given 
a  discharge."  After  the  policy  was 
handed  to  witness,  plaintiff  continued  to 
pay  the  premiums.  In  regain  to  the 
attempt  to  raise  a  loan  on  the  policy, 
witness  said  that  he  had  the  consent  of 
plaintiff  to  raise  a  loan.  One  day 
pUihtiff  called  at  his  office.  He  was 
crying  like  a  child,  and  he  aeked  wit- 
nem  to  come  outside.  Plaintiff  then 
said  that  the  bother  had  been  going 
on  a  long  time,  and  he  wanted  it  to  be 
settled.  Witness  agreed,  and  said  to 
plaintiff:  "Yoti  give  me  £75,  and  we 
will  sign  receipts,  here  and  now,  be- 
tween each  other,  which  will  settle  this 
depute  for  ever."  Witness  knew  that 
plaintiff  had  no  money,  and  he  pointed 
out  that  he  (plaintiff)  could  raise  money 
on  the  insurance  policy.  Plaintiff  was 
the  very  one  to  agree  to  it,  and  they 
went  to  Mr.  Andrew,  of  the  Standard 
Life  Insurance  Ga,  to  aarange  about  a 
loan  on  the  policy.  At  the  interview 
with  Mr.  Andrew,  witness  happened  to 
•av  something  that  did  not  suit  Mr. 
Wood,  and  the  latter  got  up  in  a 
towering  rage,  and  said :  "  Keep  the 
policy."  Witness  was  an  archi- 
tect and  quantity  surveyor. 

Mr.  Fenjamin  called  the  witness's  at- 
tention to  a  letter  of  the  11th  Novem- 
ber. 1901,  which  he  had  sent  to  the 
plaintiff.  In  his  evidence,  witness  had 
said, that  i^aintiff  had  only  paid   £200. 

Witness  admitted  that  he  wrote  the 
letter  (copy  produced). 

Mr.  Benjamin  (apologetioallv) :  It  is 
a  very  lona:  letter,  my  lord,  and  I  am 
afraid  the  language  is  not  very  choice. 

[Hopley,  J. :  I  am  accustomed  to  that 
eort  of  thing.} 

Mr.  Benjamin  read  the  letter  in 
question,  in  which  defendiint  used  very 
strong  terms  with  regard  to  the  con- 
duct of  the  plaintiff,  accusing  him  of 
pouring  out  *'  his  devilish  venom  and 
spite''    upon  him    (ikfendant).     Defen- 


dant in  ibis  letter  said  that  plaintiff  hAd 
paid,  him  £300. 

Witness  (in  reply  to  further  questions) 
said  he  admitted  that  the  plaintiff  must 
have  paid  him  £500. 

[Hopley,  J.:  The  funnv  part  of  that 
letter  is  that  it  is  signed:  "Your  af- 
feotioudbte  brother,   Ted."J 

Witness  (further  cross-examined)  eaid 
he  knew  at  the  time  that  he  had  no 
legal  claim  upon  the  plaintiff. 

Mr.  Benjamin :  You  have  got  no 
legal  claim  ubon  him  now. 

Witness :   No. 

Then  why  do  you  contest  this  action? 
—It  is  not  we  that  brought  it  in.  I 
have  done  everything  I  possibly  oould 
to  prevent  it  coming  here. 

Why  didn't  you  hand  over  the  cession 
to  Mr.  Wood?— Why  should  I? 

Why  should  you  not?— I  can  tell  you. 

[Hopley,  J. :  Why  did  not  you  hand 
him  the  policy?  That  is  what  counsel 
means  by  **  settling  the  action."] 

Witness:  I  wanted  to  get  the  matter 
settled,  and  that  is  the  reason  why  I 
wanted  the  receipt.  If  I  had  handed 
back  that  policy,  he  would  have  gone 
about  boasting  for  the  rest  oif  his  life 
that  ho  had  beaten  the ." 

In  further  cross-examination,  witness 
said  that  he  did  not  prens  the  matter 
of  the  policy  for  some  time,  because 
they  had  been  fighting  for  the  last 
twenty  years,  and  he  had  made  up  his 
mind^  that    he    would   not    re-open    the 

auestion.  In  1899  wjtness  was  in  some 
ifficulties.  A  meeting  of  his  creditors 
was  held.  One  of  his  creditors  was 
Mr.  Wood.  He  brought  up  a  schedule 
which  showed  liabilities  at  £596  and 
astets  at  £1,145,  making  a  balance  in 
hand  of  £549.  He  paid  his  creditors 
20s.  in  the  £,   with  good  interest. 

Mr.    Benjamin:    Is   this  statement  of 
affairs  correct 
Wrtneee:   Yes. 

Then  why  have  you  not  brought  up 
the  policy  of  insurance  as  an  asset?— 
I  did  not  bring  it  up,  because  it  was  in 
dispute. 

Charles  Henry  Littlewood  (son-in-law 
of  the  defendant)  also  gave  evidence. 

Counsel  having  been  heard  in  argu- 
ment on  the  facts. 

[Hopley.      J.  The      matter       at 

issue  fcK>tween  itihe  parties  to  this 
suit-^nd  it  is  regrettable  that 
court  of  law  should  have  to  settle 
a  dispute  between  two  men  who  have 
arrived  at  their  time  of  life,  and  who  are 
closely  connected  by  marriage— is,  in 
short,  whether  the  [>laintiff  is  entitled  to 
have  returned  to  him  a  certain  cession 
of  a  policy  of  insurance  made  by  him  in 
the  year  1884  to  the  defendant,  or 
whether,  as  a  matter  at  fact,  according 
to  the  pleadings,  the  defendant  is  en- 
titled to  regain  that  policy  and  to  retain 
the  cession  against  payment,  which  he 
alleges  is  due  to  him,  of  £390,  together 
with  interest.  After  briedv  sketching 
the  inoidenta     oonnected  with   the   lia- 


8.S<) 


"CAt>E  tlMES''   LAW  ftE^Otttd. 


bilities  which  the  defendant  contracted 
oil  behalf  of  the  plainti£F  to  Wood  Bros., 
of      Hull,      and    the  subsequent  corre- 
spondence which  took  place  between  the 
parties  as  to  the  repayment  by  plaintiff 
of  his  debt  to  the  defendant,    His  Lord- 
ship  proceeded  to  say:   I  pass  over  that 
stage,  because  it  seems  to  me  to  be  ren- 
dered     unimportant      by   the  fact  that 
ovontualiy,  in  the  year  1888,  a  settlement 
which    we    sitting   in    this   Court    must 
consider  to  have  been  ffiven  for      con- 
sideration as   between  themselveB,      was 
arrived  at,  which  fixes    the  hitherto  dis- 
puted accounts   as  between   the  parties. 
It  may  be  that  Sherwood  knew  that  he 
was   losing   a  bit  of  money;    it  may  be 
that  Wood  knew  that  he  was  gaining  a 
bit;  but  he  himself  was  not  in   such  a 
position,  although  he   was   doing  better 
here  than  he  had  done  in  England,  as  to 
bo  able  to  bo  too  generous    with     over- 
payments, and,  as  he  was  disputing  the 
account,   and  apparently  annoying  Sher- 
wood,  tlic  letter  of  July  was  eventually 
written    by   Sherwood   himself.     On    the 
4th   July,    Mr.   Sherwood      writes    from 
London  to   his  brother-in-law  and     sets 
forth    practically    or   pretty  much      the 
same  terms  as  were  alterwards  made  by 
the  solicitors  on  behalf  of  the  defendant 
Those  terms  are  £100  at  once,  a  bill  fox 
£100  in  six  months,  and  another  bill  for 
i)luj  in  a  further  six  months,    and      a 
further  bill  for  £100  in  twelve  months. 
Now  comes     a  very  significant  senternce 
to   my   mind :    "  Oi  course,  I  shall  give 
receipt       in    full    discharge,    when    the 
policy    is   redeemed."    In    view    of   that 
statement,  I  might  revert  to  the  fact  that 
in  1882  or  early  in  1883,  in  the     corre- 
spondence which      was      taking       place 
Wood  bad  ofifered  to  Sherwood  to  insure 
his  life  for  £500  for  the  benefit  of  Mr. 
Sherwood.      That  had  been  done,     and 
this   policy  had  been  taken   out  on  the 
30th  August,  1883,  in  the  company  here 
for     £400.      At    that    time    the     exact 
amount  was   a  matter     of  dispute      be> 
tween  the  parties.    Wood  swears  that  all 
along   he   knew    that   it   was   not    more 
than  £400,  and  that  he  insured   his  Itl<} 
for  £400,  and  that  he  sent  on  his  poii3y 
of  £400  in  security  for      that   amount. 
The  fact  that  the  amount  of  the  poiirv 
was    £400      bears      out  pretty  9tronf(ly 
Wood's   evidence.     But  to  come      baok 
to    the    correspondence,    we   have       tiie 
letter  of  Messrs.  SutcIifTe,  the  defendant's 
solicitors,    sent    two    days  later  to      toe 
defendant,  viz.,     the  6tn  July,  1888.     In 
that    letter,    Messrs.    Sutcliffe   say   that, 
acting  on  behalf  of  Mr.  Sherwood,  they 
would  accept  the  terms  offered  by  the 
defendant.       These   are   the  terms  that 
were  accepted,  and  these  are  the  terms 
that  it  is  impossible  to  go  behind.       It 
is   impossible   to   follow    Mr.    Sherwood 
when      he     says     that      there      is      a 
much   larger  sum  owing  to   him      bhan 
that   indicated   by   this  statement.        In 
pursuance  of  that  agreement  that      he 
should   pay   £100  then,   and  then   £50, 


and  another  £50  within  12  months,  there 
is    no   doubt    that   he   sent   £100,    that 
another    £50   was   sent,    and    a    further 
£50.       This    Mrs.    Sherwood        admits. 
What  is  in  dispute  is  whether  be  carried 
out  the  further  agreement  to  pay  what 
was    due   at   that   time   (another   £100), 
and  he  (plaintiff)  says  that  it  is  material 
whether  the  defendant  paid  it  within  12 
months  or  not.       I  see   nothing  in  that 
agreement  which  changes  the  nature  of 
the  cession.      For  instance,  Sutcliffes  do 
not  say  whether  that  this  agreement  is 
contingent  upon  the  plaintiff     carrying 
out  every  letter  of  it,  and  that  time  is 
of  the  essence  of  the  contract,  and  that 
if  he  did  not  redeem  this  policy  within 
12   months   it   becomes   irrevocably  that 
of  their  client.      There  was  no  objection 
t'sken   at   that   time   that   the   payments 
wore  out  of  time,  or  that  ansrthing  would 
result    from  their  being  somewhat   late. 
Now,  the  only  other  question  is :    Did  the 
plaintiff  carry  out  the  further  agreement 
and  pay  this  £100?     On  ^s   there  is  a 
direct  conflict  of  evidence.       Mr.  Wood 
says  that  he  did  pay,  and  he  says   that 
he  paid  one  part  of  it.  at  all  events,  in 
a  somewhat  peculiar  fashion.      He  aays 
that   a   £50   note   came   into   his    hands 
in  the   course  of  business,   and   that  be 
sent  it  off  by  registered  letter,  and  that 
he  received  a  letter  of  acknowledgment 
from  Mr.  Sherwood,  which  was  filcnd.  to- 
gether with  the  registered  letter  receipt, 
at    the   place   where   he   carried    on   his 
mill  in  Plein-street,  and  that  it  w-as,  in 
the  removal  which  took  place  in    1891, 
lost  with  some  other  papers.       He  saya 
that,   as  to  the  other  £60,  he   can   pro- 
duce a  receipt,   and  that  he  has  ahown 
that  he  paid  the  £60   when     defendant 
came   here.       He   says   that   wHh    that 
pajrmcnt    he   completed      the   payments 
which    released   his    i)olicy,    and   ahonld 
have  released  his  cession.       If  he  made 
these  payments,  it  seems  to  m«  that  this 
cleared  off  the  obliprations  between     the 
parties.      This  cession,  being  only  a  se- 
curity for  money  borrowed,  if  he     dis- 
charged all  that    was  due  by  him,  this 
cession  must,   in  due  course,   have  been 
returned.       Legally,   he  was  entitled  to 
claim   it.       The  whole   case,    therefore, 
narrows  itself  down  to  this  one  matter- 
has  the  plaintiff  discharged  the  obliga- 
tion that  is   upon  him ;  has  he  success- 
fully shouldered   the  onus  that   is  upon 
him  of  proving  his  case?      I  quite  agree 
with  Mr.  McGregor  that  **  nebulous  hy 
potheses  "  will  not  do,  and  that  we  must 
nave  proof.       Of  course,  there  is  in  the 
first  place,   ss  far  as  legal  proof  is  con- 
cerned. Mr.  Wood's  own  oath,  on  which 
I   should   be.    by   itself,   entitled   to   act 
if  I  thought  ne  was  entirely  trustworthy. 
But  I  am  asked  bo  doubt  that  for     the 
reason    that   he  can  produce    no    proof, 
and  that  the  transactions  are  (Tttraordin- 
ar>.       The    question    is:    Is   there    any 
corroboration  of   these  transactions?      I 
think  that  as  regards  the  payment  of  the 
sum  of  £60,  Mr.  Wood  must  be  taken 


tt 


CAt^E  TtMEB"  Law  REt>0kT8. 


S8l 


on  the  documents  to  be  riglit,  and  that 
this  payment  of  £60  was  pavment  wholly 
and  entirely  independent  of  the  promis- 
sory note  in  favour  of  Mrs.     SSherwood. 
In  testing  the  worth  of  the  evidence,  I 
have  the  fact  that  at  some  period      or 
other  this  policy  of  insurance  was  handed 
back  by  Mr.   Sherwood  to      Mr.   Wood, 
and     1     have     not     had     a     word     of 
explanation  which  can  commend  itself  to 
my    mind  as  to  the  reason  why  rt   was 
handed    back,    unless    it    be    the    reason 
given  by  Mr.  Wood.  Mr.  Sherwood  does 
pot  offer  any  explanation.      Again,  tak- 
ing   the    plea,    1    do    iK>t   see    why    the 
Slaintiff   should    undertake    to    pay    the 
efendant  the  sum  of  £390.       It  seems 
to  me  that  that  paragraph  of  tlie   plea 
i?    in    direct    conflict?    with    the    proved 
facta  in  this  case       In  October,  1891,  we 
have  letters  containing   abuse     between 
the  parties,  which  gentlemen  of  their  po- 
sition and  age  should  not  have  indulged 
in.       In  October,   1^1,   defendant  said: 
'*  We  acknowledge  we  accepted  what  was 
equivalent  to  10s.  in  the  £,  so  that  you 
would  not  go  bankrupt,  and  we  should 
^et  nothing,  and  now  you  boast  of  hav- 
ing  settled    with    us,    but    your    moral 
ubligation  is  still  the  same.      You  have 
paicT  a  few  pounds  over  £300,  which  is 
nt>t  half  of  the  £634  we  paid  for  you." 
One  cannot  help  feeling   that  this   is  a 
corroboration   of    the    evidence   of      the 
plaintiff   that    he   paid    £300.       In   1897 
the  plaintiff  went  to  England,     and  we 
have  the  letter  sent  to  Mr.  Sutcliffe  by 
the  defendant,  as  follows :    "  In  reply  to 
your  letter.  I  beg  tx)  say  that  Mr.  John 
Henrr  Wood,   formerly  of  Alford,     Lin- 
colnshire,   who    now    resides    in       Cape 
Town,   complied      wit^h      the   conditions 
agreed    uoon   as  stated   in   yours    dated 
the  6th  July,  1888,  and  that  in  accord- 
ance with  such   agreement,    I    have    no 
further  claim  upon  the  said  J.  H.  Wood." 
We  can  only   take  that?  letter   to  mean 
what  it  says.       Whether  we  look  at  it 
from  the  legal   point  of   view,    or  from 
Mr.  Sherwood's  own  point,  we  can  only 
take  it  to  mean  that  the  £100  for     the 
policy  had  been  paid,  and  that  defendant 
had  no  further  claim  upon  him   for  the 

r)licy  or  the  cession  or  anything  else. 
am  extremely  sorrv  that  two  men,  both 
apparently  respectable  men  should  have 
reached  that  stage  when  neither  could 
see  the  points  in  the  other's  case,  and 
I  am  sorry  that  they  had  to  come  to 
this  Court,  and  that  I  have  had  to  de- 
cide the  matter  between  them.  The 
only  one  point  that  I  can  congratulate 
them  upon  is  that  they  have  kept  their 
wives  and  children  out  of  the  witness- 
box  to  support  them.  I  find  on  the 
documents,  and  chiefly  on  the  documents, 
that  this  account  has  been  paid  in  full ; 
and,  to  use  Mr.  Sherwood's  own  words, 
**  all  the  conditions  in  the  letter  of  his 
attorneys  of  1888  have  been  complied 
with  by  Mr.  Wood."  On  his  own  words, 
I  must  give  judgment  against  him,  and 
if  he  has  any  satisfaction  hereafter     in 


explaining  to  his  friends  that?  his  words 
do  not  mean  what  apparently  they  mean 
to  anybody  else,  he  may  have  that 
satisfaction.  I  must  decide  as  an  ordin- 
ary common-sense  person,  and  a  lawyer, 
in  such  circumstances,  would  decide,  ana 
say  that  ^  the  balance  of  evidence  is 
against  him,  and  that?  the  plaintiff  has 
made  out  his  case.  As  to  damages, 
there  are  no  damages  proved  by  the 
plaintiff.  The  order  of  the  Court  is 
that  the  cession  should  be  returned  to 
the  plaintiff,  and  that  the  defendant 
should  pay  the  costs  of  suit 

[Plaintiff's  Attorneys :  Buchanan  and 
Boyes;  Defendant'e  Attorney:  A.  W. 
Steer.] 


RH0DE81A  COLD  BTOBAGB  CO 
V.  BKIBA  COLD  8T0BA6E  CO 


/      1905. 

).jNov.  6th. 

.  )     „    13th. 

(     ,     I4tb. 


Sale  —  Specific     performance  — 
Damages — Shares. 

The  defendants  agreed  to  take 
mi  the  plaintiff  company  for 
Vie  purpose  of  amalgamating 
it  with  other  companies  of  a 
similar  character.  Pa  rt  of  th  e 
purchase  price  roas  to  be  paid 
in  cash^  ami  Me  remainder  in 
shares  in  the  new  company. 
The  cash  was  paid^  hut  the 
shares  were  kept  over  pending 
transfer.  In  an  action  for 
specific  psrformafice  and  the 
delivery  of  the  shares^  the 
ilefsndani  company  alleged 
misrepresentation  on  the  part 
of  the  vendors^  but  at  the  trial 
failed  to  establish  this  defence. 
Judgment  was  given  for  t/te 
delivery  qf  the  shares^  or  in  the 
alternative  for  the  payment  of 
damages  equal  to  their  full 
value.  AfurOier  sum  was  cdso 
awarded  as  damages  suffered 
hy  the  delay  in  making  delivery: 
the  shares  being  now  unsaleable. 
On  appeal^  the  latter  sum 
awarded  as  damages  teas  dis- 
allowed  as  fio  specific  loss  had 
been  proved. 

Semble  (per  Buchanan, 
A.C.J.)  :  Where  specific  per- 
formance of  a  cofitract  of  sdle 
is  decreed,  damages  immedi- 
ately arising  out  of  and  conse- 
quent on  the  mora  oftli/C  vendors 
may  be  recovered. 


This  wea  an  appeal  from  a  mdgment 
of  the  Htgth  Court  of  Southern  Rhodesia. 


8to 


i( 


CAt»E  TIMES*'  LAW  HE^ftta 


The  action  in  the  Court  below  was 
brought  by  Hiinil  Albert  Yon  Hiracbberg, 
in  his  capacity  00  liquidator  of  the 
Beira  Cold  Storage,  Idmited,  against 
the  Rhodesia  Cold  Storage  and  Trading 
Company,  Limited.  Putintiff  sued  on 
a  written  agreement  entered  into  on 
February  10,  1903,  between  one  Davis, 
as  the  duly  au*^horised  agent  of  the 
Beini  Cold  Storage,  Limited,  and  one 
Bartnum,  as  trustee  lor  a  company  about 
to  be  formed,  wibich  agreement  was 
subsequently  adopted  by  the  defendant 
company,  who  took  over  the  rights  and 
liabilities  of  Bartman  on  March  20  of 
the  aame  year.  The  agreement  was  for 
the  sale  of  the  whole  of  the  business  and 
aasets  as  a  going  concern. 

[The  record  in  this  case  having  been 
very  voluminous,  we  can  only  report 
thoee  portions  thereof  which  arc  more 
particularly  essential  to  the  issue.  Coun- 
sel in  the  appeal  case  having  quoted  the 
pages  in  the  record ;  the  passages  re- 
ferred to  are  given  froni  the  record,  and 
the  page  of  the  record  is  inserted  in  the 
margin.] 

The  declarattion  was  in  the  following 
terma :  — 

.  1.  The  plaintiff  is  liquidator  of  the 
'^  Beim  Cold  Storage,  Limited,  and  sues 
in  such  capacity,  and  is  the  proper  per- 
son to  sue ;  the  defendants  are  the  Rho- 
leeian  Cold  Storage  and  Trading  Com- 
pany. Limited,  a  company  duly  regis- 
tered in  England,  and  carrying  on  busi- 
ness in  this  territory. 

2.  The  Beira  Cold  Storage,  Limited, 
is  a  Company  registered  in  Southern 
Rhodesia  and  carried  on  business  in 
that  territory  and  elsewhere  and  prior 
to  the  agreements  and  acts  hereinafter 
set  out  the  Company  held  certain  assets 
oonsieting  of  leaseholds,  plant,  credits 
and  other  aasets  in  this  territory  in  addi- 
tion to  landed  property  and  assets  situ- 
ated at  Beira  and   elsewihere. 

3.  On  the  t-enth  day  of  February, 
1903,  an  agreement  was  entered  into  be- 
tween the  Beira  Cold  Storage,  Limited, 
called  the  Vendor  Company,  and  one 
Sidney  William  Bartman  on  behalf  of  a 
companv  about  to  be  formed  the  terms 
of  which  are  more  fully  set  out  in  the 
annezure  'hereto  marked  "  A,"  which 
forms  part  of  this  dedanvtion. 

4.  Subsequently  the  defendant  com- 
pany wai»  duly  incorporated,  and  on  the 
20th  day  of  March,  1903,  adopted  and 
held  themselves  bound  as  the  pur<?haser 
con>pany  by  the  terms  of  the  said  agree- 
ment. This  will  noore  fully  appear  from 
the  document  thereunto  annexed  and 
marked  "  B,['  which  also  forms  part  of 
this  declaration. 

5.  In  order  to  carry  out  the  terms  of 
the  said  agreement  on  the  13fch  May, 
1903,  it  was  decided  by  the  shareholders 
thereof  to  wind  up  the  Beira  Cold  Stor- 
age, Limited,  voluntarily,  and  the  plain- 
tiff,    Emil  Albert    von    Hirohberg    was 


duly   appointed   liquidator  of   the  com- 
pany on  the  aome  <)ate. 

6.  The  defendants  'have  f)aid  to  the 
plaintiff  the  cash  consideration  of 
£11,383  mentioned  in  clause  4  of  the 
said  agreement  A. 

7.  The  certificate  for  22,768  siiaree,  p.  5. 
part  consideration  of  the  said  agree- 
menits,  iwaa  hainded  to  4he  Bank  of 
Africa  in  London,  in  trust  for  both  com- 
panies until  transfer  of  the  Vendor 
Company's  property  and  asseia  to  the 
purchasing  companv. 

8.  On  or  about  toe  18th  day  of  April, 
1903,  the  defendants  took  physical  poa- 
seesion  of  all  the  premises  and  plant  of 
the  Vendor  Company,  and  took  control 
of  and  began  carrying  on  the  bumneas 
hitherto  carried  on  by  the  Vendor  Com- 
pany. Transfer  of  the  Vendor  Com- 
pany's assets  to  the  defendants  baa  not 
yet  been  completed. 

9.  Thoug'h  as  above  set  out  the  de- 
fendants are  in  full  control  of  the  buai- 
ness  of  the  Vendor  Company,  the  de- 
fendants wrongfully  and  unlawfully  re- 
fuse to  deliver  or  allow  the  said  bank 
to  deliver  the  eaid  shares  to  the  plain- 
tiff. 

10.  By  reason  of  such  wrongful  non- 
delivery the  Vendor  Company  has  suf- 
fered Ices  and  damage  to  an  amount  of 
£11.384. 

11.  The  costs  incidental  to  the  wind- 
ing up  of  the  Vendor  Company  have 
been  as  follows :  —The  suni  of  £20  10». 
4d.,  being  the  amount  paid  to  Messrs. 
Budd,  Johnson  and  Jecks,  of  London, 
SoVicitors ;  the  sum  of  £18  2s.  Id.,  paid 
by  the  Vendor  Company  to  their  solici- 
tors at  Salisbury;  the  sum  of  £10  15s. 
8d.,  being  the  further  costs  of  liquida- 
tion prior  to  these  proceedings  and 
payable  to  the  Vendor  Company's  so- 
licitor at  Salisbury ;  and  a  further  sum 
of  £400  for  general  expeuaes  incident 
to  such  winding  up,  or  in  all  the  sum 
of  £450  88.  Id.  In  terms  of  clause  3  of 
the  eaid  agreement  annexed  and  marked 
A  the  defendants  have  agreed  and  are 
bound  to  pay  the  said  sum  to  the  plain- 
tiff's, but  the  defendants  refuse  to  pay 
the  same. 

12.  All  things  have  happened,  all 
times  elapsed,  and  all  conditions  been 
fulfilled  entitling  the  plaintiff  to  sue. 

Wherefore  the  plaiimff  claims:  — 

1.  DeMyery  of  11.384  seven  per  centum 
fully  paid-up  preferent  tmrei  of  £1 
each,  and  11.384  fully  paid-up  ordinary 
(Shares  of  £1  each  in  the  defendant 
company  in  terms  of  the  said  aigree- 
ment  or  payment  of  £22,768  their  val^ie 

2.  £11.684  as  and  for  damages  sus- 
tained. 

3.  The  sum  of  £450  88.  Id.  as  detailed 
in  paragraph  11  of  the  declaration,  with 
interest  a  tempore  morte. 

4.  With  coste  of  su-it.  ^ 

5.  And  such  alternative  rePief  as  may 
seem  meet  in  the  premises. 


II 


CAt»E  TIMES  *^  I  AW  tlEt»OttTS. 


m 


p.  6. 


(< 


A." 


An  Agreement  made  the  tenth  day  of 
February,  one  thousand  nine  hundred 
and  three  between  The  Beira  Cold 
Storage,  Limited,  a  company  incorpor- 
ated in  Southern  Rhodesia  with  limited 
liability  under  the  British  South  Africa 
Com^ny'e  Ordinance  No.  2  of  1895 
(iieieinatter  called  "The  Vendor  Com- 
pany'*) of  the  one  part  and  Sidney 
William  Bartman  of  i'insbury  Pavement 
House,  Moorgate  Street,  in  the  City  of 
London,  on  behalf  of  the  company  be- 
low mentioned  (hereinafter  referred  to 
as  the  purchasing  company)  of  the 
ather  part.  Whereas  the  Vendor  Com- 
pa>ny  nas  for  some  time  past  carried  on 
bus>ines3  in  Rhodovia  and  Portuguese 
Kast  Africa.  And  whereas  it  is  intended 
a«  soon  as  may  be  after  the  completion 
of  the  sale  hereby  agreed  to  be  mude 
that  the  Vendor  Company  shall  pass  an 
effective  resolution  for  the  voluntary 
winding  up  thereof.  And  whereas  the 
Purchasing  Company  to  be  called  Tihe 
Rhode^lan  Cold  Storage  and  Tradiii^ 
Company,  Limited,  or  some  other  simi- 
lar name  'is  about  to  be  formed  under 
the  English  Companies  Acts  with  a  no- 
minal capital  of  five  hundred  thousand 
pounds  divided  into  two  hundred  ajid 
fifty  thousand  seven  per  centum  cumu- 
lative preference  shares  And  two  hun- 
dred and  fifty  thousand  ordvn&ry  shares, 
the  preference  shares  ranking  both  as  to 
capital  and  dividend  in  priority  to  the 
oroinary  shares,  and  having  for  its  ob- 
ject among  other  things  the  acquisition 
a*iid  working  of  the  undertaking  of  the 
Vendor  Company  and  of  the  said  busi- 
nesa  so  hitherto  carried  on  as  aforesaid, 
and    other    similar    businesses.  And 

whereas  by  the  Articles  of  Asspociation 
of  the  Purchasing  Company  it  is  pro- ' 
vi^ed  that  such  Company  i»hall  immedi- 
ately after  the  incorporation  thereof 
af]opt  {inter  alia)  the  agreement  therein 
referred  to  being  these  presents:  Now 
it  is  herebv  agreed  as  follows :  — 

1.  The  Venck>r  Company  ahall  sell  and 
t^ransfer  and  the  Purchasing  Company, 
wJien  incorporated,  shall  purchase  and 
take  over  the  undertaking  businees  and 
goodwill  of  the  Vendor  Company,  and 
all.  the  lands,  buildings,  hereditaments, 
ffoods,  chattels,  moneys,  credits,  debts, 
bills,  notes,  trade  ^marks,  if  any,  and 
things  in  action  of  the  Vendor  Com- 
pany, and  the  full  benefit  of  all  con- 
tracts, agreements  and  securities,  to 
which  the  Vendor  Company  is  entitled, 
and  all  other  assetd  whatsoever  and 
wihereeoever  of  the  Vendor  Company 
other  than  and  not  including  its  un- 
called capital  together  with  the  right  to 
use  any  words  to  represent  the  carrying 
on  of  the  business  m  succession  to  the 
Vendor  Company. 

2.  As  a  part  of  the  consideration  for 
the  said  eale  and  transfer  the  Purchas- 
ing       Company    shall   undertake,    pay, 


satisfy  and  discharge  all  tha  debts,  lia- 
bildties  and  obligations  of  the  Vendor 
Company  whatsoever,  and  shall  adopt, 
fulfil  and  perform  all  contracts  and  en- 
gagements binding  on  it  either  now  or 
which  shall  become  binding  on  it  be- 
fore the  completion  of  the  sale  and  shall 
•indemnify  the  Vendor  Company,  its 
liquidatoia  and  contributories  against 
such  debts,  liabilities,  obligations,  con- 
tracts and  engagements  and  against  all 
actions,  prooeedfings,  costs,  damages, 
claims  and  demands  in  respect  thereof. 
5.  As  a  further  part  of  the  considera- 
tion for  the  said  sale  and  transfer  the 
Purchasing  Company  shall  pay  and  at 
all  times  hereafter  keep  the  Vendor 
Company,  its  liquidators  and  contribu- 
tories indemnified  against  all  the  costs, 
charges  and  expenses  of  and  incidental 
to  the  winding  up  and  dissolution  of 
the  Vendor  Company,  and  of  carrying 
the  said  transfer  into  eflfect. 

4.  The    residue    of    the    consideration  p.  7. 
for  the  said  sale    and    transfer  shall  be 

the  sum  of  thirty-four  thousand  one 
hundred  and  fifty -one  pounds,  which 
shall  be  paid  and  satisfied  as  fol- 
lows:— As  to  the  sum  of  eleven  thou- 
sand three  hundred  and  eighty-three 
rounds  by  the  payment  thereof  to  the 
Vendor  Com  pan  v  m  cash,  and  as  to  the 
further  sum  of  twenty-two  thousand 
seven  hundred  and  sixty-eight  pounds 
by  the  allotment  to  the  Vendor  Com- 
pa<ny  or  its  nominees  or  the  nominees 
of  Robert  George  Davis  of  113,  Cannon- 
street,  in  the  City  of  London,  manager  * 
ill  London  of  the  Bank  of  Africa,  Ltd., 
of  eleven  thousand  three  hundred  wnd 
eighty-four  seven  per  cent,  fully  paid-up 
preference  shares  of  £1  eacn,  No. 
250.001  to  261,384.  both  inclusive,  and 
subject  to  no  restriction  as  to  transfer- 
ability in  the  capital  of  the  Puchasing 
Company  amd  eleven  thousand  three 
hundred  and  eighty-four  fully  paid-up 
(  rdinary  shares  of  £1  each.  No.  8  to 
11,391,  noth  inclusive  and  subject  to  no 
rodtriction  as  to  transferbility  in  the 
capital  of  the  same  conipany. 

5.  The  Purchasing  Company  shall, 
without  investigation,  objection  or  re- 
quisition, accept  the  title  of  the  Vendor 
Company  to  the  premises  hereby  agreed 
to  be  sold. 

6.  The  sale  and  purchase  hereby 
agreed  to  be  made  shall  be  completed 
on  the  twentieth  of  March,  one  thou- 
sand nine  hundred  and  three,  at  the 
registered  office  of  the  Purchasing  Com- 
pany when  the  said  residue  of  consider- 
ation in  cash  and  shares  shall  be  paid 
and  satined  subject  to  the  provisfions  of 
this  agreement,  and  the  Purchasing 
Company  shall  dssue  certificates  for  the 
said  fully  paid  shares  in  accordance  with 
this  agreement,  and  the  Vendor  Com- 
pa'njr  shall  at  the  expense  of  the  Ppr- 
chasing  Company  execute  and  do  all 
such  assurances  and  things  as  shall  rea- 
sonably be  required  by  tiie  Purchasing 


884 


"CAPE  TiMBS"  LAW  ttEt>Otttl^. 


Company  Cor  Testing  in  it  the  said  pre- 
mises and  poaBe99ion  thereof,  and  giy- 
vng  to  it  the  full  benefit  of  this  agree- 
ment. 

7.  No  ehares  in  the  oapital  of  the 
PurOhamnf^  Company  shall  be  allotted 
before  the  allotment  to  the  Vendor 
Company  or  its  nominees  or  the  no- 
minees of  the  sa'd  Robert  George  Day  is 
of  all  the  fully  paid  up  shares  herein- 
before TnenfakMied,  and  no  certificates 
of  euoh  fully  paid  up  shares  shall  include 
more  than  one  hundred  shares.  No 
apecial  settlement  on  any  Stock  Ex- 
cnange  for  any  ehares  of  the  Purchas- 
ing Company  shall  be  applied  for  un- 
til euoh  niaree  ahall  be  fully  paid  u^. 

8.  The  poflsession  of  the  said  premiaes 
»hall  be  retained  -by  the  vendor^  Com- 
pany up  to  the  completion,  and  in  the 
meantime  they  shall  carry  on  the  said 
businesB  of  the  Vendor  Company  in  the 
same  manner  as  (heretofore  eo  as  to 
maintain  the  same  as  a  going  concern, 
and  they  shall  as  from  the  first  January, 
One  thousand  nine  hundred  and  three, 
be  deemed  to  have  been  and  to  be 
carrying  on  such  business  on  behalf  of 
the  purchasing  company.  And  shall  ac- 
count and  be  entitled  to  be  indemnified 
accordingly,  and  the  purchasing  com- 
pany shall,  subject  to  the  consent  of  the 
insurance  offices  and  until  completion 
of  the  purchase,  be  entitled  to  the  bene- 
fit of  the  current  insurances  of  the  pre- 
mises. 

p.  8L  ^'  Unless  before  the  thirty-first  day  of 
March,  One  thousand  nine  hundred  and 
three,  the  purchasing  company  shall 
have  become  entitled  to  commence  busi- 
ness and  this  agreement  shall  have  been 
adopted  by  the  purchasing  company  in 
sucn^  manner  as  to  render  the  same 
binding  on  the  eame  company  ,the  ven- 
dor company  may  by  notice  in  writing 
to  the  said  Sidney  William  Bartman  de- 
termine the  same. 

10.  If  from  any  cause  whatever  other 
than  the  wilful  default  of  the  vendor 
company  the  purchase  shall  not  be  com- 
pleted on  the  said  twentieth  March,  One 
thousand  nine  hundred  and  three,  the 
purchasing  company  shall  pay  interest 
as  from  such  date  at  the  rate  of  five 
per  cent,  per  annum  on  the  sum  of 
thirty-four  thousand  one  hundred  and 
fifty-one  ix>unds  until  the  purchase  shall 
be  completed. 

As  witness  the  execution  of  the  Beira 
Cold  Storasre,  Limited,  by  the  hand  of 
the  said  Robert  George  Davis,  their 
duly  authorised  attorney,  set  hereto, 
and  the  hand  of  the  said  Sidney  William 
Bartman  set  hereto  the  day  and  year 
first  above  written. 

S.  W.  BARTMAN. 


C( 


B." 


n  9^      An  agreement  made  the  2(Hh  day  of 

'  March,  1903.  between  the  Rhodesia  Cold 

Storage  and  Trading   Company,   Limit- 


ed of  Finsbury  Pavement  Hou:$e,  in  the 
city  of  Iiondon  (hereinafter  oalled  "  the 
company*'),  of  the  first  part,  the  Beira 
Cold  Storage,  Limited,  of  Beira,  Portu- 
guese Blast  Africa  (hereinafter  called 
'*  the  vendors  "),  of  the  second  part,  and 
Sidney  William  Bartman,  of  Finsbury 
Pavement  House  aforesaid,  of  the  third 
part.  Whereas  by  an  agreement  (here- 
mafter  called  *'  the  principal  contract  **), 
dated  the  10th  day  of  February,  1903, 
and  made  between  the  vendors  of  the 
one  part  and  the  said  Sidney  William 
Bartman  as  trustees  for  the  company 
(which  was  then  intended  to  be  and  has 
since  been  formed  under  the  Companies' 
Acts  1862  to  1900),  of  the  other  part,  it 
was  agreed  that  the  vendors  should  sell 
and  the  comj>any  should  purchase  the 
undertaking  and  property  therein  re- 
ferred to  upon  the  terms  and  subject 
to    the   stipulations   therein    expre»ed. 

Now  these  presents  witness  and  de- 
clare as  follows: 

The  principal  contract  is  hereby 
adopted  by  the  company  and  shall  be 
binding  on  the  vendors  and  the  com- 
pany in  the  same  manner  and  take  ef- 
fect as  if  the  company  has  been  in  exist- 
ence at  the  (kite  thereof,  and  has  been 
a  party  thereto,  instead  of  the  said 
Sidney  William  Bartman,  who  from 
henceforth  shall  be  discharged  from  all 
liability   under  or  in   respect  thereof. 

As  witness  the  common  seals  of  the 
companies'  parties  hereto  and  the  hand 
and  seal  of  the  said  Sidney  William 
Bartman. 

The  common  seal  of  the  Rhodesia 
Cold  Storage  and  Trading  Company, 
Limited,  was  hereunto  affixed  in  the 
presence  of: 

P.  LYTTELTON  GELL, 
W.   J.   ELDER, 

Directors* 
S.  W.  BARTMAN,  SecreUry. 

Signed,  sealed,  and  delivered  by  the 
said  Sidney  William  Bartman  in  the 
presence  of: 

S.   W^   BARTMAN. 

To  this  declaration  the  defendants 
pleaded : 

1.  The    defendants   admit    the  allega-  »  iCi 
tion    in   paragraphs   1   to  8  inclusive  of 

the  declaration  and  deny  those  in  parai- 
graphs  10,   11,  and  12  ther^. 

2.  As  to  paragraph  9  thereof  the  de- 
fendants say  that  prior  to  the  issue  of 
the  summons  in  this  action  they  had  de- 
livered the  said  shares  m  London  to  one 
Davifi,  who  was  the  agent  of  the  said 
Beira  Cold  Storage,  Limited,  to  receire 
the  same.^  Subsequently,  after  the  issue 
of  the  said  summons,  they  obtained  an 
order  in  the  Hi^h  Court  of  Justice  re- 
straining the  said  company  or  their 
agents  from  parting  vrith  the  said 
shares;  copy  of  the  said  order  is  an- 
nexed hereto  and  marked  A. 

Save  as  aforesaid,  the  defendants  deny 


"CAPE  TIMB8"   LAW  REPORTS. 


885 


tho  alleffations  in   the  sfrid  ninth  para- 
g^raph  of  the  declaration. 

3.  The  defendants  »ay  further  that 
when  they  entered  into  tlie  t>aid  ugre<>- 
ooenta  of  the  10th  February,  1903,  and 
20th  March,  1903,  for  the  purchase  of 
the  business  of  the  said  compajiy  they 
did  so  relying  on  the  accuracy  of  the 
balance-sheet  of  the  said  company  made 
dp  to  the  3l8t  March,  1902,  which  was 
handed  to  them  prior  to  the  10th  Febru- 
ary, 1903,  by  the  eaid  company  as  being 
a  true  statement  of  the  financial  position 
of  the  said  company,  and  in  order  to 
induce  the  defendants  to  purchase  the 
said  business,  and  the  defendants  were 
so  induced. 

4.  Subsequent  to  the  dates  of  the  said 
agreements  and  the  events  referred  to 
in  paragraphs  5,  6,  7,  and  8  of  the  de- 
claration the  defendants  discovered  that 
thd  said  balance-sheet  was  false  and 
misleading,  and  the  financial  position  of 
the  said  company  was  not  as  represent- 
ed by  them,  and  that  tho  books  and  ac- 
counts of  the  said  company  were  falae 
and    contained   serious  discrepancies. 

p^X4.  ^:  The  defendants  have  furnished  the 
plaintiff  with  an  extract  from  the  re- 
port of  the  auditors  whom  the  defen- 
dants employed  to  examine  the  said 
hooka  and  accounts  of  the  said  com- 
pany after  the  defendant  discovered  that 
the  Baid  balance-sheet  was  false,  giving 
particulars  of  such  errors  and  diecrepan- 
cies.  A  copy  of  the  said  extract  is  an- 
nexed hereto,  marked  B,  and  to  whicn 
defendants  crave  leave  to  refer. 

6.  As  soon  as  the  defendants  became 
aware  of  the  said  misrepresentations 
they  commenced  an  action:  in  London 
in  the  Hi^h  Court  of  Justice,  King's 
Bf'nch  Division,  for  rescission  of  th': 
said  agreements  by  reason  of  the  t»'n 
ir.'srepresentation,  which  action  is  ti'.W 
pending^.  A  copy  of  the  summone  in 
the  aaid  action  is  annexed  hereto, 
marked   C. 

Wherefore  the  defendants  pray  that 
the  plaintiffs*  claim  may  he  dismissed 
with    costs. 

The  plninftiff  made  application  as  fol- 
lows: 
nil  !•  He  admits  the  allegation  in  para^ 
'  graph  2  that  the  said  injunction  was  ob- 
tained, he  says  he  was  no  party  to  the 
proceedings,  nor  has  he  any  knowledge 
of  the  circumstances  under  which,  the 
said  order  was  obtained.  After  ^rvice 
upon  him  the  plaintiff  availed  hi  nix*  If 
of  the  liberty  given  him  in  the  said  in- 
junction, and  he  has  moved  the  Hie-h 
Court  of  Justice  in  England  to  set  tne 
order  aside ;  his  application  is  still 
pending  in  that  Court. 

2.  As  to  paragraphs  3,  4,  and  5,  he 
denies  that  any  statement  of  account  or 
balance-sheet  was  handed  to  the  defen- 
dants by  himself  or  the  Beira  Cold 
Storage  Company.  No  statement  of  ac- 
count, financial  statement,  or  balance- 
sheet  was  ever   referred  to  during  the 


negotiations  or  formed  any  iiiduoenioiit 
to  the  defeiidautb  to  enter  into  the  t^aid 
contract.  Should  this  Court  hold  to 
the  contrary,  tho  plaintiff  says  the  said 
balaiico -sheet  was  the  ordinary  annual 
business  statement  drawn  up  on  the 
date  mentioned,  and  that  the  same  is 
true   apd  correct   balance-sheet. 

3.  The  plaintiff  admits  the  receipt  of 
the  report  referred  to,  but  denies  that 
it  3&  correct  in  any  particular. 

4.  As  to  para^aph  6,  the  plaintiff  says 
the  action  iierein  set  out  was  only  com- 
menced alter  summons  had  been  served 
in  this  action.  On  the  15th  day  of 
March,  1904,  the  defendants  made  am- 
plication to  this  Court  to  set  aside  this 
action  on  the  ground  of  the  pendency 
of  proceedings  in  the  High  Court  of 
Justice  aforesaid.  The  application  was 
dismissed  with  costs  against  defendants. 

5.  Save  as  above,  the  plaintiff  denies  p.]H. 
all  aiMi  singular  the  allegations  of   fact 

in  the  plea  coixtained. 
The  rejoinder  was  general. 

CX)NSKNT  TO  AMENDMENT  OF    DECLARA- 
TION, 

We,    the   undersigned,    attorneys     for  p.  21. 
the  plaintiffs  and  ofefendants  respective- 
ly in  this  cause,  consent  to  the  amend- 
ment of  the   plaintiffs'    declaration     as 
followB,   that  is  to  say: 

Paragraph  10  to  road :  "By  reason  of 
such  wrongful  non-delivery  the  vendor 
company  has  suffered  loss  and  damage 
to  an  amount  of  £11,384,"  the  amend- 
ment oonsieting  of  the  substitution  of 
the  figures  £11.384  instead  of  the 
figures  £1,133  18s. 

In  the  prayer  at  the  end,  amend 
Claim  No.  2  by  substituting  the  figures 
£11,384  instead  of  the  figures  £1,133 18s., 
so  as  to  read  "  £11,384  as  and  for  dam- 
ages  sustained. '* 

And  we  further  consent  to  the  same 
amendment  being  made  in  the  sum- 
mons, so  as  to  read  (in  paragraph  2) : 
"2.  The  sum  of  £11,384  as  and  for 
damages   sustained." 

Sir, — We   beg   to  give   you    notice  of  p,  22, 
the  following  further   particulars   under 
paragraphs   4    and     5     of     defendants* 
pleas,  VIZ. : 

1.  That  under  the  item  of  £4,627  38. 
to  sundry  creditors  in  the  balance-sheet 
is  included  a  sum  of  £3,000,  which  was 
a  loan  from  the  Bank  of  Africa,  Limit- 
ed. Beira,  to  the  Beira  Cold  Storage, 
Limited,  and  should  not  have  been  in- 
cluded among  the  sundrv  creditors  of 
the  company,  but  should  nave  appeared 
in  the  balance-sheet  as  a  separate  item. 

2.  That  the  value  placed  on  the  assets 
in  the  balance-sheet  misrepresents  the 
true  value  of  such  assets,  no  sufficient 
depreciation  having  been  written  off. 

3.  That  at  the  time  of  the  sale  of  the 
said  business  by  the  Beira  Cold  Storage, 
Limited,  to  defendants  tho  business  was 
not  in  the  flourishing  condition  repre- 
sented by  the  balance-sheet,  bi)t  was  in  i| 


886 


"CAPE  TIMES"   LAW  REPORTS. 


moribund  condition,  nnd  boinp:  carried 
o«i  at  a  prcat  loss. — We  havo  the  honour 
t.>  be,  arir,  your  ol>edioiT*  servants, 

GRIMMER,   DU  PREEZ 

AND  TOWNSEND, 

Attorneye  for  Defendants, 
p.  2a        MR.  WALLACE'S   EVIDENCE. 

A. — I  may  say  that  I  asked  Mr.  Law- 
ley  for  information  as  to  the  capitaliM.- 
tion  and  general  position  of  the  Beira 
Cold  Storage  Company,  and  turning  to 
th3  Secretary,  he  said:  "Where  is  that 
balance-sheet  that  arrived  by  the  last 
mail,  or  "the  mail  before  last"?.  And 
on  it  being  produced,  he  handed  it  to 
me,  he  said.  "There  you  have  aJl  the 
information,  and  know  as  much  about  it 
as  I  do,'*  or  words  to  that  effect. 

Q. — Wa»  that  balance-sheet  and  the 
report,  and  the  information  it  contained, 
considered  by  those  acting  on  behalf  c^ 
the  defendant  company  before  they  ar- 
rived at  the  agreement? 

Mr.  Wallace:  I  object  to  that.  We 
have  not  heard  that  anybody  else  was 
acting  on  behalf  of  the  defendant  com- 
pany- „ 

A.— Yes. 

Mr.  Vaughan  W^illiams :  Who  else  was 
acting  on  behalf  of  the  defendant  com- 
pany at  that  time  in  consioering  the  ac- 
qinsition  of  these  buednesses? 

A.— There  were  the  proposed  direc-tors 
and   their  solicitor. 

Q. — ^Who  were  the  proposed  directors? 

A.— Mt.  p.  Lyttelton  Cell,  Sir  F.  W. 
Forester  Walker,  and  Mr.  Elder,  I 
have  forgotten  his  initials.  Mr,  Hawka- 
ley  was  the  solicitor,  and  Messrs.  Jack- 
son and  Pixley  were  the  auditors. 

p.  39.  MR.  V.  W'lLLIAMS. 

Q.— Having  formed  the  plan  of  get- 
ting in  other  companies,  to  whom  did 
you  go? 

A.— I  naturally  went  to  Mr.  Lawley. 
who  I  knew  as  a  director  of  the  Beira 
Cold  Storage. 

Q. — And  you  put  the  scheme  to  him. 
did  you? 

A. — I  did  not  put  the  scheme  to  Kim 
at  the  moment.  I  went  to  ask  him  the 
position  of  his  Beira  Cold  Storage  Com- 
pany. I  did  not  know  whether  their 
capital  was  £5,000  or  £500,000.  I  knew 
nothing  about  it. 
p.  40.  Q. — ^You  cannot  say  when  you  called 
on   Mr.   Lawley? 

A.— I   should  say    October,   1902.       I 
know     we     were     shooting  about    that 
-«  time. 
P-^  MR.  WALLACE. 

Mr.  Vaughan  Williams:  Were  all  the 
negotiations  with  regard  to  this  trans- 
action conducted   in   this  country? 

A.— All  of  them,  so  far  as  the  defen- 
dant company  was  concerned. 

Q. — ^You  told  my  learned  friend,  if  I 
remember  rightly,  that  you  did  not  hear 


that   the  directors  of  the  plaintiff  com- 
pany     intended      to  sell  or  unload    or  i»>3i 
whatever  expression  otic  nuy  use,  their 
shares    in    the    defendant    company    as 
soon   as  they  could. 

A. — I  only  heard  that  a  year  after- 
wards. 

Mr.  Wallace:  Is  it  entirely  wrong  to 
suggest  that  Mr.  Lawly  was  communi- 
cating with  the  Beira  Company  on  your 
account? 

A. — No,  I  should  not  think  it  is  wrong 
to  suggest  so  at  all.  I  told  you  I  ap- 
proaoned  Mr.  Lawly  in  the  "first  in- 
stajice,  and  finding  the  position  of  the 
Beira  Company,  I  made  nim  that  offer, 
and  he  sent  it  along.  I  should  not 
think  it  wou-ld  be  wrong. 

Q. — I  mean  that  Mr.  Lawley  was  act- 
ing rather  as  your  agent  in  communi- 
cating with  the  Beira  Comrpany. 

A.— I  should  say  not.  He  acted  in  his 
capacity  as  director  of  the  Beira  Cold 
Storage  Company. 

Q. — As  an  agent  only? 

A. — ^I  went  to  him  as  a  director  of 
the  Beira  X>>ld  Storage  Company,  and 
as  such  I  wrote  to  him. 


F.  CELL'S  EVIDENCE. 


P.9BI 


Q. — ^During"  the  negotiations  did  you 
make  yourself  familiar  and  acquainted 
with  the  figures  and  position,  as  far  as 
you  could,  of  the  plaintiff  company 
which    it   was  proposed   to  buy? 

A. — So  far  as  it  was  disclosed  in  the 
papers  which   were  laid   before   ine. 

Q. — W^ere  the  profit  and  loss  account 
and  balance-sheet  of  the  plaintiff  com- 
pany shown  to  you? 

A. — ^Yes,  that  was  the  fundamental 
evidence. 

Q. — Did  you  go  through  them? 

A.-I  did. 

Q.— Were     they     gone     through     by 
Messrs.    Jackson  and    Pixley? 
,  A. — By    instructions,      and      as     they  p.  9k 
8igne<l  it  I  suppose  they  did  go  throitgh 
it.     I  went  through  it  with  Mr.  Hawkis- 
ley. 

Q.— Ultimately  we  know  that  the 
agreement  of  the  10th  of  February,  con- 
firmed on  the  20th  of  March,  was  en- 
tered into. 

A. — ^Yes,  we  deckled  to  adopt  that 
agreement. 

Q. — What  influenced  you  in  adopting 
that  agreement? 

A. — 'The^  statement  of  the  value  of  the 
assets  which  was  laid  before  roe,  and 
the  value  of  the  trade  which  I  thought 
the  company^  would  be  acquiring. 

Q. — What  impression  as  to  the  finan- 
cial position  of  the  pluntiff  company 
did  you  form  from  those  documents? 

A. — I  should  say  that  looking  upon 
the  statement  which  they  made  thai 
they  were  promising  well,  but  that  thev 
were  fettered  by  shortage  of  capital, 
and  that  they  wajited  fresh  capital  to 
put  them  into  a  better  and  stronger 
position. 


J 


«< 


CAPE  TIMES"  LAW  REPORTS. 


887 


p.  63. 


Q. — In  arriviiifi^  at  your  willingness  to 
pay  the  price  wnich  you  agreed  to  pay, 
were  you  influenced  by  the  apparent 
profit  disclosed  ? 

Mr.  Wallace:  That  ie  a  very  leading 
question. 

A.— Absolutely ;  practically  I  will  say 
nothing  else.  For  the  value  of  the  trade 
we  are  acquiring  I  went  on  their  state- 
ments in  the  profit  and  loss  account. 

Mr.  Yaughan  W^illiams:  It  was  sug- 
gested yesterday,  if  I  rightly  understood, 
that  jou  were  influenced  by  a  desire  to 
acquire  a  monopoly  of  the  cold  storage 
business.     What  do  you  say  as  to  that? 

A. — It  was  not  in  the  power  of  the 
Beira  Cold  Storage  Company  to  give  us 
a  monopoly.  This  came  beeore  me 
originally  as  a  proposal  to  buy  the  Ma- 
ahonaland  Railway  plant  and  the  Rail- 
a  monopoly.  This  came  before  me 
the  Chartered  Company.  That  plant  at 
the  same  time  was  bemg  leased  to  the 
Beira  Cold  Storage  Company;  the  Ma- 
shonoland  Railway  Company  had  erect- 
ed that  plant  with  the  idea  of  reducing 
the  cost  of  living  in  Rhodesia.  It  was 
a  particular  pet  scheme  of  Mr.  Rhodes. 
We  were  not  at  all  unwilling  to  sell  that 

flant  to  the  new  company,  with  which 
then  had  no  kind  of  connection,  and 
knew   nothing  whatever   of. 

Q. — I  think  there  was  a  difficulty  as 
to  selling  it,  and  ultimately  it  was 
leased. 

A. — It  was  already  leased  to  the 
Beira  Cold  Storage  Company,  but  on  a 
short  term,  I  think  at  six  months'  no- 
tice, therefore  the  Beira  Company  could 
only  sell  a  six  months'  tenancy.  I  may 
not  be  right  as  to  the  number  of  months. 

CELL'S  EVIDENCE. 

Q. — UntU  about  ten  days  before  the 
agreement  this  company  was  not  your 
company,  and  did  not  interest  you  at 
all? 

A. — Yes,  that  was  so. 

Q. — Except,  of  course,  as  a  Chartered 
director? 

A. — Yes. 

Q. — ^Then,  of  course,  when  they  asked 
you  to  be  a  director,  and  you  were 
going  to  put  your  name  on  the  pros- 
pectus, you  wanted  to  see  what  you 
were  doing? 

A.— Yes. 

Q. — Was  it  then  that  you  got  the  re- 
port and  balance-sheet  which  you  have 
been  alluding  to? 

A. — A  little  later,  within  those  few 
days. 

Q. — Do  you  describe  yourself  as  a 
good   accountant? 

A No. 

S. — In  examining    the     balance-sheet 
the  rest  of  the  documents,  how  long 
did  you  have  it  before  you? 

A. — Several  times  that  I  oan  recol- 
lect. It  came  up  once  or  twice  at  the 
Board  when  we  were  preparing  the 
prospectus,  when  Mr,  Hawksley  was  at- 


tending. We  were  checking  various 
statements,  and  so  on.  Then  I  remem- 
ber one  Saturday  afternoon  I  had  this 
and  other  papers  before  me  with  Mr. 
Bartman  at  my  home,  and  I  worked  on 
th^  whole  lot.  I  spent  a  long  time  ini- 
tialling them  all,  and  this  one  amongst 
others.    (F.  J.  5  hamied  to  witness.) 

Q. — XHd  you   go   through    the   figures  p.  64. 
yourself? 

A.— I   did. 

Q.— PersonaUy? 

A. — Personally.  I  checked  them  all 
off  agpainst  the  statements  we  made  in 
the  prospectus,   for  ono  thing. 

Q. — ^Wnat  else  did  you  do  with  them? 

A. — They  are  not  my  figures.  I  could 
do  nothing  more  with  them  than  .study 
them,  aiM  ass'ime,  as  I  did,  that  they 
were  correct.  I  therefore  found  that 
two  people  whose  names  were  known  to 
me.  Mr.  Van  Praagh  and  Mr.  Martini, 
and  an  auditor  whose  name  was  well 
known  to  me,  certified  that  the  land 
and  buildings  were  worth  so  much,  and 
the  plant  was  so  much,  and  so  on^  What 
I  attached  a  great  deal  of  importance 
to  was  the  trade  we  were  buying. 

Q.— What  I  may  call  the  turnover? 

A.— Yes.  There  were  £8,000  brought 
in  from  revenue  account.  I  forget  what 
set-off  there  might  be  agiainst  that,  but, 
apart  from  that,  £8,000  return  was  a 
satisfactory  return  on  a  capital  of 
£22,000,  and  I  remember  I  also  noted 
that  they  had  not  distributed  their  pro- 
fits, but  had  carried  them  forward  into 
capital,  which  created  the  impressdon  in 
my  mind  that  they  were  doing  a  grow- 
ing business,  but  were  short  of  capital. 

Q. — I  presume  they  had  not  distri- 
buted a  dividend? 

A. — They  showed  a  very  large  and 
substantial  profit.  They  did  not  distri- 
bute it,  but  carried  'into  capital,  which 
would  make  the  impression  that  they 
were  careful  people  with  a  growing 
business,  and  they  were  building  it  up 
out  of  dividends.  It  seemed  to  me  to 
account  for  their  de.«iire  to  get  the  fresh 
capital  that  the  amalgamation  offered 
them. 

Q.— Have  you  seen  the  telegrams  that 
had  passed  between  Mr.  Law  ley  and  the 
company  ? 

A.— No. 

VON  HIRSCHBBRG'S  EVIDENCE,    p.  212. 

£450  represents  ithe  costs  of  liquida- 
tion at  present,  as  far  as  I  oan  ascer- 
tain. ^  While  I  was  secretary,  only  two 
occasions  when  sharee  of  Beira  Com- 
pany were  transferred   for  cash. 

CrosB-examined :  The  bakbooe^heet 
was  drawn  up  for  shaiehoflders.  It  was 
printed  before  it  was  adopted  by  direc- 
tors, and  was  sent  out  to  sharenoilders. 
That  would  be  all  the  information  sent 
to  sKareholders  who  did  not  attend  tlie 
meeting. 

At  the  time  it  was  published — un- 
known to  ourselves — it  was  not  correct 


888 


«f 


CAPE  TIMES"   LAW  REPORTS. 


— ii  would  be  quite  sufficient  if  s^Me- 
nwut  wha  made  by  chaimMUi  of  inoet- 
iiig.  At  OM^ctiiiK  all  Hhareholdors  pros- 
i^t  wore  aware  of  tbo  miatakoti,  and 
therefore  no  statement  was  made.  Ibi 
next  balance-sheet  would  have  had  to 
correct  the  iteniA  of  Paulinf^  and  Co. 
and  the  rent  for  railway  storages.  The 
shareholders  not  present  at  tne  meet- 
ing would  not  know  of  this, 
p.  214.  X  certainly  expected  a  small  profit. 
Evans's  balance-sheet  shows  a  loss  on 
voar's  trading,  but  I  have  no  knowledge 
now  his  figures  are  arrived  at.  We 
started  a  butchery  business,  it  was  not 
exactly  a  failure,  but  not  a  success. 
Mineral  water  arrangement  was  with 
the  view  of  making  the  business  more 
successful.  To  save  salaries  the  direc- 
tors maoaged  sections  of  the  business 
themselves.  Up  to  the  end  of  1900  we 
wrote  off  no  depreciation.  I  have  no 
knowledge  of  machinery.  In  1901  the 
depreciation  of  £2,000 — this  was  arrived 
at  an  estimated  deficiency.  As  to  values 
I  would  back  the  opinion  of  mv  direc- 
tors, who  have  worked  with  tne  stuff 
for  years,  against  that  of  Mr.  Coxwell, 
who  has  only  lately  examined  the  as- 
set4$. 

Our  balance-sheot  of  1902:— I  think  I 
had  drawn  it  up  by  April  15th.  It  was 
eventually  rcaay  about  the  end  of 
April.  It  had  by  that  time  been  hand- 
ed back  hy  the  auditor.  It  was  printed 
almost  immediately.  It  would  be  ready 
iowsjrds  the  end  of  Mav.  It  was  adopt- 
ed by  directors  towards  the  end  of 
June. 

The  judgment  in  the  Court  below  was 
as  follows : 
p.  auO.  Wa.termeyer,  J. :  The  plaintiff  in  this 
case  is  the  liquidator  of  the  Beira  Cold 
Storage,  Ltd.,  a  company  that  was  reg^is- 
tened  in  Southeim  Rhodesia,  and  from 
1^9  to  1963  carried  on  bi^iness  in  Por- 
tuguese East  Africa  and  Southern  Rho- 
desia. 

He  sues  on  a  written  agreement  en- 
tered into  on  February  10th,  1903,  be- 
tween one  Davis  as  the  duly  authorisoH 
agent  of  the  Beira  Cold  Storage,  Ltd.. 
and  one  Bartman.  as  trustee  for  a  com- 
pany about  to  be  formed,  which  agree- 
ment was  subsequently  adopted  by  tho 
defendant  company,  who  took  over  tho 
rights  and  liabilities  of  Bartman  on 
March  20th  of  tho  same  jear. 

The  agreement  which  is  attached  to 
the  declaration  is  for  the  eisile  of  the 
whole  of  the  business  and  assets  of  the 
Beira  Company  as  a  going  concern  for 
a  consideration  which  for  the  present 
may  be  summed  up  under  four  heads : 

1.  Payment  by  the  new  company  of 
the  debts  and  liabilities  of  the  Beira 
Company. 

2.  Payment  of  a  definite  sum  of 
money. 

3.  UejIiTery  of  a  certain  number  of 
shares  in  the  new  company. 

4.  Payment  of  the  GOst»  of  liquidation 
of  the   Beira  Company. 


The  deokuraiion  ailleges  that  in  pur- 
suance of  this  agreement  the  new  com- 
pany have  taken  physical  possceeion  of 
all  the  property  and  business  of  the 
B<Mra  Company.  (I  presume  they  have 
also  made  themselves  responsible  tor  the 
debits  and  liabilities,  ihougih  nothingr  ^ 
said  about  tliat  in  the  pleadings.) 

By  some  mistake  not  explained  at  the 
trial  the  declaration  as  ongidally 
drafted  alleged  that  legal  transfer  had 
been  effected,  and  this  was  admitted  in 
plea.  As  it  ai^peared  clear  from  the 
evidence  that  this  was  not  00, 1  allowed 
the  dieclaration  to  be  amended  to  be  in 
accordance   with   facts.    When    the    ap- 

Slication  lor  amendmeob  was  made  Mr. 
iriissell,  for  defendants,  soujgrht  to  make 
a  condition,  i.e.,  that  certain  additional 
particulacB  tendered  bv  him  shoiMd  be 
admitted.  I  do  not  think  he  was  en- 
titled to  make  that  condition.  I  think 
the  two  matterv  wero  quite  distinct.  I 
think  the  plaintiff  waa  entitled  to  the 
amendment  wrthout  conditi<m.  I  de- 
cided also  to  admit  defendants  farther 
particulars  for  reasons  which  I  hope  io 
explann  at  the  proper  sta^,  but  I  want 
to  be  understood  that  I  treated  the 
matters  quite  independently,  as  not 
hinging  on  one  another  at  all. 

Tne  declaration  ^oes  o«i  to  aver  that 
the  monetarjr  consideration  has  been 
paid,  but  dlaims  ^  (1)  delivery  of  the 
share  consideration,  (2)  £11,384  as 
damages  for  delay  in  such  delivery,  and 
(3)   £460  8s.  for  costs  of  liquidation. 

'Die  first  defence  raised  ^is  that  this  p.  3QL 
mat.t<er  is  the  subject  of  judicial  pro- 
ceedings pending  in  England.  In  proof 
of  that  copies  of  a  writ  of  summons  and 
an  injunction  taken  out  in  the  High 
Court  of  Justice  against  plaintiff  and 
Davis,  the  agent  w1k>  signckd  the  ags«e- 
ment.  are  attached  to  the  plea.^  'Rto 
dates  of  these  documents  ^  are  instruc- 
tive. The  summons  in  this  court  was 
taken  out  on  the  3rd  March,  1904,  and 
served  on  the  manager  of  the  defendant 
company  on  the  4th  March.  The  Eng- 
lish writ  of  summons  was  taken  out  on 
March  4th  and  the  injunction  on  April 
29th. 

The  inference  is  obvious  that  it  wa? 
on  cabled  information  of  the  service  of 
the  writ  in  Salisburv,  Rhodesia,  that 
the  directors  of  the  aefendaift  company 
took  out  their  writ  in  London.  Fur- 
ther, defendants  have  tendered  no  evi- 
dence that  they  are  proceeding  with  this 
action  in  London,  oeyond  an  implica- 
tion made  to  me  on  March  15th,  1904, 
for  a  stay  of  proceedings  in  this  Court, 
which  application  I  felt  bound  to  re- 
fuse. The  only  evidence  now  before  the 
Court  as  to  further  proceedings  in  this 
matter  in  London  are  the  statement  by 
Mr.  Davis  at  the  Commission  that  the 
action  had  been  dismissed  a£  against 
him.  and  the  statement  of  Von  Hirsch- 
berg  that  the  injunctaon  hsd  been  dis- 
missed, and  he  knew  of  no  further  pro- 
ceedings under  the  writ  of  summona. 


"OAPB  TIMES"  LAW  REPORTS. 


880 


If  iliM  defence  was  seriously  relied 
on  defendant  should  have  offered  some 
more  inforznation  as  to  their  proceed- 
ings sinoe  Maroh  15th,  1904.-  But  even 
presuming  they  are  proceeding  in  Lon- 
don, I  cannot  see  how  thait  prevents  me 
from  dealing  with  the  matter  here.  The 
n>aitter  is  within  the  jurisdiction  of  this 
Court  as  laid  down  by  the  Order  in 
Council,  and  I  cannot  refuse  to  hear 
a  plaintiff  and  deal  with  his  case  simply 
because  subsequent  to  the  commence- 
ment of  proceedings  in  this  Court  the 
defendants  choose  to  commence,  with 
Tegard  to  the  same  matter,  proceedings 
in  another  Court,  which,  as  far  as  I 
know,^  sitting  here,  may  or  may  not 
have  jurisdiction. 

The  defence  of  proceedings  in  another 
Court  may  be  dismissed  at  once. 

The  real  defence  in  the  case  is  con- 
tained in  paragraphs  3  and  4  and  an- 
nezure   **  B "   of  the   plea. 

As  the  defendants  admit  the  agree- 
nnent  it  is  incumbent  on  them  to  show 
why  they  refuse  to  carry  it  out.^ 

Ofiieir  reasons  are  set  forth  in  the 
above-named  paragraphs :  They  say  that 
they  entered  into  the  agreement  "  Re- 
Ivting  on  the  accuracy  of  the  balanoe- 
sheet  of  the  said  company  made  up  to 
the  31st  March,.  1902,  which  was  handed 
to  them  prior  to  the  10th  February, 
1903,  by  tile  said  company  as  bein^^  a 
true  statement  of  the  financial  poedtion 
of  the  said  company  and  in  order  to  in- 
duce defendants  to  purchase  the  f<iaid 
business,  and  defendants  were  so  in- 
duced." 

They  go  on  to  say  that  subsequently 
they  disoovered  "  That^  the  said  balance- 
sheet  was  false  uid  mdsleading  and  the 
financial  p>osition  of  the  said  company 
was  not  as  represented  by  them,  and 
that  the  books  and  accounts  of  the  said 
p.  302L  company  wore  false  and  contained  ser- 
""  ious  disorepancies." 

And  in  annexure  '*  B  "  they  give  par- 
ticulars to  support  theso  allegations. 

The  essence  of  this  defence  then  is 
thai  a  false  and  misleading  balanoe- 
flheet  wias  produced  to  defendants  by 
the  company  in  order  to  induce  them  to 
buy.  and  that  they  were  thereby  in- 
duced to  buy. 

When  I  road  this  plea  first  I  under- 
stood it  as  a  direct  allegation  of  fraud 
against  the  Beira  Cold  Storage  Com- 
pany, and  certainly  some  of  the  docu- 
ments produced  in  eviderioe  would  seem 
to  show  that  defendants  intended  to  set 
up  a  charge  of  fnaud  against  the  Beira 
C&mpany.  But  Mr.  Russell,  for  defen- 
dants, has  argued  that  it  is  not  neces- 
sary for  his  case  to  contend  that  there 
was  actual  fraud,  but  that  it  is  suffi- 
cient to  show  that  there  was  misrepre- 
sentation, however  innocent,  which  mis- 
led defendants  as  to  the  true  financial 
position  of  the  company. 

He  relies  on  the  judgment  of  Lord 
Halsbury  in  Adam  r.  Neirhioffina, 
L.R.  13.  App.  Gases,  308. 

1.3 


He  does  not,  however,  actually  with- 
draw the  imputation  of  fraud.  He 
stated  in  argument  that  if  knowledge  of 
the  falsity  of  the  representations  were 
necessary  the  evidence  proved  it,  but 
that  dt  was  not  necessary  to  prove 
knowledge — only  that  the  representa- 
tions were  false  in  fact. 

In  answer  to  the  plea  the  plaintiff  in 
his  replication  says  that  "  He  denies 
that  any  statement  of  account  or  bai- 
anoe-sheet  was  handed  to  defendant  by 
himself  or  the  Beira  Cold  Storage  Com- 
pany, no  statement  of  acount,  financial 
statement  or  1>alance-sheet  was  refenred 
to  during  the  negotiations  or  formed 
any  induoement  to  the  defendants  to 
enter  into  the^  said  contract." 

In  case  it  is  ruled  otherwise,  he 
pleads  that  the  balance-sheet  in  ques- 
tion was  a  true  and  correct  balance- 
fiheet. 

At  the  Conamission  in  London  Major 
Johnson  put  in  the  document  which  it 
is  allegea  mieiled  and  deceived*  defen- 
dants, and  which  in  the  pAea  ds  called 
shortly  the  balance-sheet  of  Maroh  31st, 
1902. 

The  document  consists  of  three  parts : 

1.  Balance-sheet  as  at  ckise  of  busi- 
ness on  the  31st  March,  190Z. 

2.  Profit  and  loss  account  as  at  dose 
of  business  on  the  3l9t  Maroh,   1902. 

3.  Directors'  annual  report  to  31st 
Maroh,   1902. 

As  this  document  is  made  the  basis 
of  defendant's  case  I  shall  proceed  to 
examine  it. 

Firstly,  as  to  what  it  shows  in  itself, 
apart   from   subsequent  evidence; 

Secondly,  the  odroumstanoes  under 
which  it  came  into  existence  and  the 
particulars  as  to  which  it  is  said  to  be 
false   and  misleading; 

Thiirdly,  the  manner  in  which  it  came  P-  **3. 
into  the  hands  of  the  promoters  of  de- 
fendant company; 

Fourthly,  how  far  these  promoters 
were  axt  fact  misled  by  this  document. 

Firstly,  taking  the  document  by  it- 
self, not  as  an  expert  acoountan<^  but 
as  an  ordinary  man  tenqyted  to  invest 
in  the  shares  of  the  ompany: 

I  agree  with  Mr.  Lyttelton  GeU  and 
Sir  John  Craggs  that  it  shows  on  the 
face  of  it  a  very  promising  state  of  af- 
fairs. It  shows  a  profit  brought  for- 
ward frc^n  the  previous  year's  working 
of  £1,157  9s.  6d.,  and  an  apparent  pro- 
fit for  the  current  year's  working  of 
£2,456  8s.  3d.  But  agadnst  this  latter 
figure  the  directors  in  their  report  re- 
oommend  the  writing  off  of  £1,280  128. 
8d.  for  depreciation  of  plant,  lands, 
and  budldings. 

This  still  leaves  a  profit  for  the  year's 
working  of  £1,177  ISs.  7d.  Thus  on 
the  two  years  together  they  show  a  to- 
tal profit  of  £2,335  Ss.  Id.,  slightly  over 
10  per  cent,  on  their  subscribed  capital. 
Yet  they  do  not  suggest  any  dividend, 
but   carry   forward   this   profit. 


890 


"CAPE  TIMES*'  LAW  REPORTS. 


Mr.  Lyitelton  Gell  and  Sir  John 
pv^Rgs  would  aeem  to  be  quite  justified 
in  saying  that  this  statement  of  ac- 
counts seemed  'to  imply  oautious  direc- 
tori^  who  were  builcling  up  a  sound 
business  out  of  profitti.  I  cannot,  how- 
ever, agree  with  the  manner  in  which 
this  apparent  profit  was  treated  by  the 
promoters  of  the  defendant  company 
and  their  accountants  for  the  purposes 
of  their  prospectus.  The  current  year's  ' 
profit,  which  I  work  out  from  the  bal- 
ance-sheet at  £1.177  15ii.  7d.,  in  the 
bands  of  defendants*  accountants  be- 
comes a  certified  annual  profit  for  the 
purpo^  of  their  prospectus  of  £3,274. 

Tnc  process   by   which  this  is  accom- 
plished does  not  commend  itAcJf  to  me. 

Firstly,  they  ignore  the  depreciation 
which  the  directors  in  their  report  pro- 
ix)se  to  write  oflf.  They  justify  this  on 
the  technical  ground  that  the  directors 
did  not  bring  this  depreciation  into  their 
balance-sheet,  but  placed  it  separately 
in  their  report.  I  am  quite  prepared 
to  accept  the  evidence  of  the  export  ac- 
countants who  have  appeared  betore  me 
and  ait  the  Commianon  that  it  would 
be  a  more  correct  method  of  preparing 
the  aimual  statement  to  bring  this  de- 
preciation directly  into  the  balance- 
sheet,  instead  of  placing  it  dn  a  separate 
report  attached  to  the  balance -sheet. 
But  as  one  unlearned  in  accounting 
matters,  it  seems  to  me  that  it  was  suffi- 
cient that  it  was  there — apparent  on 
the  face  of  the  docunaent — where  aW  in- 
terested in  the  finajicial  nosibion  of  the 
comi>any  could  see  it.  And  I  think  the 
action  of  defendamts'  accourntant««!  is.  to 
say  the  last  of  it,  inconsistent,  when 
they  utilise  this  technical  error,  if  it 
be  one,  to  swell  the  apparent  profits 
which  they  advertise  to  intending  share- 
holders in  the  prospectus,  whilst  later 
on  they  make  it  theio*  most  serious  com- 
plaint against  the  Beira  Company  that 
the  directors  had  not  made  sufficient 
allowance  for  depreciation.  I  have  not 
lost  sight  of  the  fact  that  by  a  few 
words  in  small  print  the  accountants 
protect  themselves  from  a  literal  mis- 
statement on  this  point — ^I  refer  to  the 
words  in  the  oerbificate:  "After  charg- 
ing depreciation  (except  in  the  case 
«^  of  the  Beira  Company)."  But  I  think 
l*'*^'  those  words  are  so  placed  in  the  pros- 
pectus that  if  an  in-tending  investor,  not 
being  aji  accountant,  saw  them  at  all 
he  would  conclude  tluit  onl^  some  smtall 
depreciation,  not  worth  noticing,  would 
have  to  be  written  off  th6  Bedra  profits, 
and  he  would  be  very  much  suxprised  to 
hear  that  the  accountants  ana  promo- 
ters of  the  new  company  knew  that  the 
•responsible  directors  of  the  Beira  Com- 
pany had  reoomnoended  the  writing  off 
of  so  large  a  sum  as  £1.280.  But  these 
promoters  add  two  other  serious  items 
to  the  profit  as  appearing  in  the  bal- 
ance-sheet. 

Firstly,   an   item  of   £500  appears  on 
th©  balance-sheet  as  '*  p^ovisio/i  for  rent 


due  on  railway  storages."  Thn  is  cob- 
sequently  maoe  a  oomi^aint  ihmt  the 
rent  due  at  the  time  turned  out  to  bo 
£598.  But  when  preparing  the  pros- 
pectus this  £500  is  eliminated  from  the 
balance-sheet  so  as  to  further  sweil  the 
alleged  profits.  The  accountant.  Mr. 
Binnie,  justifies  this  on  the  ground  that 
it  was  intended  to  purchase  the  BLail- 
way  Storages,  and  as  therefore  rent 
would  no  longer  be  payable,  it  should 
be  elimpinated  from  the  expenses  and 
thereby  swell  the  profits,  and  as  Major 
Johnson  and  Mr.  Lyttelton  Cell  say  that 
the  certificate  wa«  carefully  expfained 
to  them  bv  Mr.  Binnie  or  Mr.  Pixley, 
and  that  they  checked  ai4  the  figures/ 1 
must  presume  that  they  adopt  this  rea- 
soning. The  onlv  concession  that  Mr. 
Binne  would  make  on  this  point  wa« 
that  by  an  oversight  which  he  could 
not  understand,  he  had  omitted  to  ap- 
pend a  note  that  this  increased  pront 
would  be  due  to  the  purchase  of  Uie 
railway  premises. 

Sir  John  Cragge,  orie  of  the  other  ex- 
pert accountants,  called,  disairrees  with 
that  opinion,  and  says :  '*  The  profits 
must  be  certified  according  to  the  pro- 
fits of  that  year,  but  it  must  be  men- 
tioned in  the  words  of  the  certificate 
or  elsewhere  in  the  documents  of  that 
date  that  a  change  in  the  rent  or  other 
conditions  had  i»Lken   place." 

I  would  su;gge8t  further  that  if  iho 
purchase  of  premises  by  doing  away 
with  rent  to  that  exteni  cauaos  iii- 
creafied  profit,  such  increased  profit 
should  be  apportioned  to  the  premises 
purcha.<^d — in  other  words,  that  i^f  £500 
was  going  to  be  saved  by  purchasing 
the  Railway  Cold  Storage,  tiiat  would 
be  profit  on  that  purohase.  end  not  on 
the  purchase  of  the  Beira  Cold  Storafn?. 
whereas  it  is  carefully  stated  by  tne 
promoters  that  the  profiits  alleged  are 
exclusive  of  any  estimate  of  profit  from 
the    railway   plant. 

But  taking  Mr.  Binnie's  rea<K>ning  in 
its  most  fiavoua-able  light,  it — by  his  own 
admission — ^absolutely  falls  to  the 
ground  when  it  appeared  by  the  issued 
prospectus  that  the  -new  company  had 
abandoned  all  idea  of  purchasing  the 
Railway  Cold   Storage. 

When  the  draft  prospectus  (F.J.  4)  was 
printed  it  was  undoubtedly  the  inten- 
tion of  the  promoters  to  purchase  the 
Radlway  Cold  Storage — that  was  Feh- 
ruarjr  4th — ^but  when  the  final  prospectus 
was  issued  on  March  5th  this  intention 
had  been  abandoned,  and  it  had  been 
decided  to  lease  the  Railway  Stos«ges 
under  the  agreement  with  the  Beira 
Cold  Storage.  I  need^  not  detail  the 
evidence  from  which  this  appears,  it  is 
clear  from  comparison  of  the  two  pros- 
pectuses. Yet  under  the  changed  con- 
ditions the  Dfromoterk*  issued  this  cer- 
tificate of  alleged  profits  which  it  had 
been  carefullv  explained  to  them  could 
onily  be  correct  on  the  assumption  th;»t 
they  were  going   to  pujrcha'^  the  Ruil- 


i 


"CAPE  TIMES"  LAW  REPORTS. 


891 


way  Storagie0--iB!nd  they  had  chocked  all 
the  figures. 
p.  30fi.  The  reasoning-  thai  applied  to  the 
rent  seems  to  me  alao  to  apply  to  the 
interest  on  the  £3,000  bond  to  the  bank 
— if  that  was  to  be  saved  in  the  future 
the  increased  profit  would  be  due  not 
to  the  Beira  Company,  but  to  the  ex- 
tra capital  providea  to  pay  off  this 
bond — and  this,  loo,  soems  to  have 
failed  when  the  new  com>pany  found 
themflelves,  as  appears  latter,  imprepeired 
to  >pa^  off  this  ix>nd — and  this  refusal 
of  tneirs  to  pay  this  bond  of  £3,000  has 
been  the  inmiediate  cause  of  all  this 
litigation. 

It  appears,  therefore,  that  under  the 
circumstances  existing  on  March  5th, 
the  certificat€»  in  the  proapectus  alleg- 
ing the  Beira  profits  at  £3,274  was 
false,  if  it  was  not  also  f-alse  undetr  the 
circumstances  existing  on  February  4tb, 
when  the  draft  prospectus  was  printed. 

It  would  appear,  therefore,  tnat  the 
promoters  who  issued  this  prospectus 
containing  this  certificate,  and  who 
carefully  "  checked  all  the  figures,'* 
wiien  they  now  niake  aJ^legations  of  mis- 
representation againai  the  Beira  direc- 
tors are  rather  throwing  stoues  from  a 
glased  habitation. 

But  it  was  not  merely  to  show  that 
the  promoters  of  the  defendant  com- 
pany oomtmitted  the  same  »m  ihnJb  they 
lay  to  the  aooount  of  others  that  I  have 
gone  ait  length  into  this  allesred  profit 
of  £3,274,  but  to  attempt  to  g<et  at  the 
real  state  of  mind  of  these  promoters 
in  February,  1903,  and  to  test  whether 
they  really  so  carefully  examined  this 
balance-sheet,  and  whether  they  based 
their  calculation  on  it  with  the  exact- 
ness of  detail  thait  they  would  now  have 
us  believe. 

To  sum  this  portion  of  the  case,  I 
say  that  the  perusal  of  this  baJanoe- 
sheet  and  report  shows  to  an  ordinary 
mind  a  promising  little  companjr  with  a 
moderate  oapital  of  £22,000,  with  sub- 
stantial assets,  and  making  an  annual 
profit  of  about  5  per  cent.,  with  cau- 
tious directors,  who  were  refraining 
from  paying  dividends  until  the  com- 
pany should  be  well  established.  But 
that  it  was  only  a  very  wild'  imagination 
that  from  the  perusal  of  this  document 
could  certify  an  annual  profit  of  £3,274. 

I  now  proceed  to  deal  with  the 
second  point,  viz.,  the  circumstances  un- 
deor  which  this  bakuioe-sheet  came  into 
existence. 

It  appears  that  the  Beira  Cold  Stor- 
age, Ltd.,  was  a  small  company,  chief- 
ly owned  by  the  directors  themselves 
(see   the   shajre  list  put   in). 

The  Attorney-General  calls  vt  a 
**  family  affair,"  and  Mr.  Martini,  who 
was  chairman  in  1902,  gives  us  to  un- 
derstand that  he  was  the  father  of  it. 

It  has  originally  been  a  mdneral 
•waiteor  and  ioe  business,  which  they^  had 
developed  into  a  cold  storage  business. 
(I  unoerstand   from   tho  evidence    that 


under  the  new  company  it  has  pmctioal- 
ly  returned  to  an  ice  and  mineral  water 
business.) 

As  a  ootd  storage  buaineas  they  had 
worked  in  Beira  since  1899,  and  in  the 
latter  part  of  1901  they  had  extended 
their  busiimss  to  Salisbury,  Rhodesia. 

Theone  bad  at  one  tinte  been  a  fair 
demand  for  frozen  meat  in  Beira,  but 
this  dema»nd  had  fallen  off,  and  at  the 
latter  end  of  1901  and  1902  the  principal 
sales   were   in   SaJisft>U£y. 

At  March  31st,  1902,  the  Salisbury  p.  306. 
business  had  only  been  in  existence 
about  six  months,  and  I  agree  with  de- 
fendant's witnesses  that  the  period  was 
too  abort  to  form  a  fair  estimate  of  the 
possibilities  or  probable  profits  of  the 
Salisbury  business.  It  was,  in  fact,  in 
an  experimental  condition. 

The  company  was,  as  I  said  before,  a 
smaAl  one.  and  was,  tn  fact,  the  per- 
sonal business  of  the  directors,  not  only 
in  the  sense  that  they  held  neariy  all 
the  shares — bui  that  they  personally 
managed  the  business — each  personally 
attenoing  to  the  management  of  a  de- 
partinent  or  section,  thus  reduoing 
working  expenses  by  saving  salaries. 

Mr.  Uoxwell  has  put  forward  his  o^n* 
ion  that  they  were  working  with  a  view 
to  reflotaition,  and  in  support  of  this 
opinion  he  acoi»es  them  of  intention- 
alily  negeoting;  to  write  off  depreciation 
of  their  machonery,  so  as  to  nrake  their 
profits  appear  large. 

This  is  flatly  denied  bv  Mr.  Martini 
and  Von  Hirschberg;  they  iAate  that 
there  was  no  idea  or  selling  or  refloat- 
ing until  they  received  the  cable  on 
August,  to  be  referred  to  subsequently. 

Having  seen  these  gentlemen  in  the 
witness-box,  I  prefer  to  accept  their  de- 
nial in.  preferenoe  to  Mr.  Coxwell's 
susnioion. 

Under  these  circumstances,  the  pres- 
ent plaintiff,  who  was  then  fiecreiarjr  of 
the  company,  proceeded  in  April,  1902, 
to  make  up  his  statement  of  acooun<ts 
for  the  financial  year  ending  March 
3l0t.   1902. 

This  is  the  document  attacked  by  the 
defendants,  and  which,  according  to 
them,   was  false  and  misleading-. 

I  am  satisfied  th«t  at  tbs  time  that 
thait  balanoesheet  was  certified  to  be 
the  auditor  it  was  a  correct  accoimt  of 
the  financial  position  of  the  company, 
as  shown  in  the  books. 

I  am  also  saitisfied  that  it  was  issued 
by  the  directors  m  their  bona-fide  be- 
lief as  to  the  position  at  3l8i  Ikf^roh, 
1902. 

In  the  light  of  subsequent  events  it 
is  undisputed  that  ibhat  balance-sheet 
showed  the  position  inoorreotly  with  re- 
flra.rd  to  two  items,  the  rent,  and  the 
Waimate  shipmentr-Hand  there  is  now  a 
difference  of  opinion  as  to  whether 
sufficient  depreciation  was  written  off. 

It  will  now  be  necessary  to  consider 
m  detail  the  particulars  annexed  to  the 
plea  and  those  subBec|uently  te|id«red, 


892 


41 


CAPE  TIMES"  LAW  REPORTS. 


Th«fle  latter  were  objected  to,  and  I 
was  in  some  doubt  tm  to  accepting'  them, 
but  ultimately  I  considered  that  they 
nu'ght  as  well  go  in  as  they  did  not  seem 
to  me  to  carry  the  case  much  further. 
NoA.  2  and  3  arc  not  really  new  aa  I 
consider  that  the  allegation  rn  the  ori- 
ginal particulars  to  tne  effect  that  no 
sufficient  depreciation  had  been  written 
off  is  suffici«»nt  notice  to  plaintiff  that 
the  val nation  of  assets  in  the  balance- 
sheet  is  challenged, 
p.  907.  ^^'  ^  ^  fully  disposed  of  by  defen- 
dant*fl  own  witnesses  in  London. 

IVUcing  the  items  then  in  ordcir — the 
first  is  the  nent,  wbioh  appears  in  ibe 
boJianoe-sheet  as  '*  Provision  for  rent 
due  on  railway  wtorag>es,  £500."  The 
accusation  is  that  this  was  under-esti- 
mated by  the  amount  of  £98  7tf.  7d. 

The  facts  are  now  undisputed :  The 
Beira  Company  had  entered  into  a  con- 
tract with  the  Railway  0<»mpony  (E.  A. 
V.  H.  30)  for  the  lease  ot  some  cold 
storage  chambers  to  be  built  at  Beira 
and  Salisbury.  The  rent  is  not  fixed  at 
a  definite  sum  an  the  agreement,  but 
wiae  to  be  8  per  cent,  of  tne  cost  of  the 
building.  The  Beira  Componjr  took 
possession  of  the  Salisbury  bui-ldingk<  in 
November.  1901,  and  the  Beina  build- 
ings in  February,  1908.  TTw  exact  i^ent 
payable  was  not  ascertained,  or,  at  all 
events,  not  made  known  to  the  Be4ra 
Company  until   June.   1902. 

Under  the  ciircumstanoes  the  secretary, 
making  up  his  books  in  April,  1902.  put 
in  an  approxim-a.t'e  estimate  of  £500  as 
rent  due  to  March  31st.  Sul)8eque«ntly 
in  June  it  transpired  that  this  figure 
should  have  been    £598  7s.    7d. 

This  is  the  first  misrepresentation 
complained  of. 

Tne  second  objection  was  to  an  al- 
leged over-valuation  of  the  Salisbury 
stock.  This  has  now  been  abandoned 
by  Mr.  Russell,  and  he  ha/l  to  aban- 
don it  because  each  of  his  experts  in 
turn,  when  faced  with  Mr.  Von  Hirsch- 
bergs*  explanation  of  the  matter,  had  to 
admit  that  the  objection  was  untenable. 
T  shall  only  remark  on  it  here  that  Mr. 
Binnie,  the  defendants*  acooimtant, 
might  have  had  that  explanation  at  any 
time. 

Mr.  Evans,  whose  evidence  impressed 
me  very  favourably,  says  that  the  per- 
sons connected  with  the  Beira  Company 
were  always  ready  to  give  him  any  ex- 
planation he  asked  for — and  he  oannot 
understand  Mr.  Binnie's  statement  that 
it  was  impossible  to  obtain  information 
because  there  was  no  one  to  inquire 
from — ^a  statement  made  not  once,  but 
jiererai  times  in  Mr.  Binnie's  evidence. 
It  seems  that  Martini.  Diepeveen,  and 
Von  Hirschberg  were  in  oein.  at  the 
time  of  the  investigation,  and  the  lacpt 
named  was  anxious  to  meet  Mr.  Bdnnie 
to  clear  up  any  miwmderstandings. 

Again,  when  Binnie  was  investigating 
in  Salisbury,  Van  Praagh  actuaNy  ap- 
proached his  clerk,   Ford,   but  was  ap- 


parently dioked  off.  Bedra  and  Salts- 
Dury  are  small  places,  and  the  gentle- 
men mentioned  by  him  are  so  well 
known  that  I  oannot  believe  thai 
Messrs.  Dear^  and  Suter  could  bare 
told  Mr.  Binnie  that  there  was  no  one 
from  whom  be  could  obtain  infofmar 
tion  as  to  the  affairs  of  this  company. 

One  is  driven  to  the  conclusion  that 
Mr.  Binnie  approached  this  investiga- 
tion in  a  very  prejudiced  state  of  mind, 
and  has  onfly  bimeelf  to  blame  that  be 
did  not  receive  the  explan^itions  which 
have  now  been  given  in  Court. 

The  next  item  in  the  particnlare  is 
that  no  sufficient  depreciation  was  writ- 
ten off.  As  I  remarked  before,  Mr. 
Binnie  when  certif^n^  the  year's  profit 
ignored  the  depreciation  that  was  as  a 
fact  propoeed  oy  the  dissectors.  Now 
the  complaint  is  that  the  depreciation 
written  off  is  insufficient.  It  is  difficult 
now — ^more  than  three  years  after  the 
date — to  say  whether  tKe  allowance  <rfP-*^ 
£1,280  proposed  by  the  directors  was  a 
fair  amount  at  the  time.  I^lr.  Binnie's 
chief  complaint  waa  that  the  £2,000  for 
the  previous  year  was  an  unscientific 
way  of  writing  off.  Evidence  has  been 
given  of  the  present  values  of  the  plant 
and  buildings.  On  this  point  the  evi- 
dence of  Anderson  and  Tetlow  did  not 
impress  me  favourably,  and  CoxweO, 
sworn  valuator  though  he  be,  was  not, 
in  my  opinion,  in  a  position  fairty  to 
gauge  the  values  in  March,    1902. 

I  am  of  opinion  that  the  depreciation 
written  off  was  a  fair  one,  and  though 
possibly  not  exact,  was  sufficiently  near 
the  mark  for  the  purposes  that  the  di- 
rectors then  had  in  mind. 

The  next  item  is  the  bonus  of  £25 
paid  in  Apn!.  This,  Mr.  Binnie  guesses 
to  have  oeen  for  the  previous  year's 
working,  <^arges  of  misrepresentation 
are  not  proved  by  guesses.  There  is  no 
evidence  to  show  what  it  was  for,  and 
therefore  no  treason  given  why  it 
should  be  in  the  balance-fheeii  in  ques- 
tion. 

The  next  item  is  £835  4s.  2d.  for  what 
has  been  called  the  Waimate  shipnEient. 
which  does  not  appear  in  the  balance- 
shoot,  and  which  it  is  contended  should 
increase  the  item  of  sundry  detytors.  and 
there>by  decrease  the  profits  shown.  The 
explanation  offered  with  re^^d  to  tliis 
item  is  as  follows:  In  IS^  the  com- 
pany, through  Lawley.  then  acting  as 
their  agent,  purchased  froni  the  cap- 
tain of  the  Waimate  a  shipment  of 
f  rncen  meat  at  a  price  to  be  calculated 
on  tho  arrival  of  the  Waimate  in  Kng- 
land  at  the  ruling  rate  lor  meat  in  Ixmi- 
don  at  that  date.  The  account-  for  this 
meat  was  presented  to  Pauling  and  Co. 
in  London,  of  which  firm  Lawley  was  a 
member.  Pauling  and  Cb.  paid  £  1,835 
4s.  2d.,  and  sent  their  account  to  the 
Beira  Company.  TTio  bookkeeper  en- 
tered this  amount  at  once  to  the  rredit 
of  Pauling  and  Co.  The  directors  con 
tended,  however,  that  at  the  ruling  rate 


u 


CAl'B  TtMES''  LAW  REPOfetS. 


for  iiieat  in  London  at  tliat  date  tho 
amount  should  not  have  exceeded 
£1,000,  the  book-keeper  accordinf^ly 
ina<io  fresh  entries  «o  as  to  reduce  the 
amount  due>  <to  Pauling  and  Co.  to 
£1,000.  The  di«<pute  with  regard  to  this 
matter  continued  for  nearly  two  yoar^, 
and  by  March  ZUt,  1W2,  it  had  not 
been  settled.  In  May,  1902,  the  direc- 
tor!* were  forced  to  gi\'e  way,  and  the 
additiooal  £835  was  paid  to  Pauling  and 
Co. 

Minutes  of  directors*  meetings  wore 
put  in  to  show  that  in  November,  1901, 
and  at  subsequent  dates  the  directors 
were  discussing  the  possibility  of  mot- 
tling this  dispute  by  comprocniso  on*  in 
somo  way,  but  it  was  not  till  May  that 
the  matter  was  actually  settled. 

A  good  deal  of  evidence  was  given  as 
to  whether  this  amount  of  £8ido  which 
was  in  dispute  should*  have  appeu«>d 
in  the  balance-sheet  as  a  liability  or  as 
«  special   suspense   account. 

1  am  quite  satisfied  thart  when  tho 
entries  were  made  in  March,  1901,  the 
directors  were  honestly  of  opinion  that 
£1.000  represented  the  extent  of  their 
liability,  and  as  the  amount  was  not 
settled  till  May,  1902,  I  am  satisfied  that 
no  blame  attaches  to  them  or  their 
bookkeepenr  for  leaving  the  item  at  that 
in  making  up  the  aooounts  to  March, 
1902.  It  would,  of  course,  have  to  be 
rectified  in.  the  next  year'^  'balance- 
sheet.  Mr.  Evans  and  Mr.  Ford  say  in 
effect  thai  as  they  were  not  paying  out 
a  dividend  no  iharm  attached  to  what 
tliey  did  provided  the  matter  was  men- 
tioned at  the  general  meeting,  seeing 
that  the  balance-sheet  had  been  already 
certified  by  the  auditor  before  this  set- 
tlement was  arrived  at,  and  as  to  men- 
tioning it  at  the  general  meeting,  it  is 
necessary  to  remember  the  family  partv 
uature  of  this  company,  and  that  all 
p repent  at  the  meeting  were  aware  of 
what  had  been  donOb  And  in  any  case, 
it  must  be  remembered  that  thi^  entry 
would  have  effected  the  profits  for  1901 
only,  and  not  the  1902  profits,  on  which 
tlie  promoters  of  the  defendant  com- 
pany were  basing  their  prospectus. 

The  next  item  is  the  Customs  House 
Bar.  I  am  quite  satisfied  that  in 
March,  1902,  Mr.  Martini  had  good 
rcteon  to  believe  that  they  had  some- 
thing approaching  a  perpetual  lease, 
and  no  was  unite  satisfied  in  placing  on 
it  the  value  no  did,  i.e.,  £1,100,  less  its 
ppoportaoii  of  the  depreciation  written 
off  lands  and  buildings. 

The  facA  that  it  was  burned  down  in 
September,  1902,  and  was  only  insured 
for  £500  had  nothing  to  do  with  the 
balance-sheet  in  March,  1902. 

Turning  to  the  additional  particulars : 
No.  2  has  already  been  dealt  with.  No. 
3  has  nothing  to  do  with  the  balance- 
aheet  at  its  date.  As  to  No.  1,  I  can- 
not follow  the  reasoning  of  the  ac- 
oountanta 

Tfafis  balance-sheet  was  not  drawn  for 


the  purposes  of  a  sale,  but  merely  to 
show  shareholders  the  assets  and  liabili- 
ties. I  accept  Mr.  Duncan  Qameron's 
evidence  that  it  was  quite  proper  for 
the  purposes  of  this  baikance-eheet  to 
place  this  bend  under  the  heading 
'*  Sundry  creditors,"  Wlwther  it  did  in 
fact  eventually  deceive  the  purchasers 
will  be  dealt  with  afterwart^. 

I  have  come  to  the  ooncluaion,  then, 
that  tho  balance-sheet  as  issued,  to 
^ther  with  the  report,  was  at  the  time 
it  was  issued  a  fair  bona  fide  statement 
of  affairs,  ^ifiSoient  lor  the  purpose  for 
which  it  was  brought  into  existence, 
i.e..  for  the  information  of  their  share- 
holders. 

Following  the  reasoning  in  Pock  v. 
Gurney,  this  balance-sheet  when  issued 
to  shareholders  had  accomplished  it<s 
purpose,  and  tho  directors  woiild  not 
be  responsible  to  any  other  parties  into 
who(%  hands  it  migiit  accidently  come, 
and  who  might  act  on  it  and  be  misled 
on  account  of  matters  which  subsequent 
events  have  shown  to  havo  been  wrong- 
ly stated. 

But  this  brings  the  position  only  to 
March,  1902. 

We  have  to  consider  the  position  at 
the  latter  end  of  1902  and  the  com- 
mencement of  1903^  when  the  sale,  tho 
ffubjeot  of  this  action,  wbb  effected. 

The  position  of  the  oompeoiy  as  shown 
in  the  balance-sheet  had  changed  in 
throe  main  (particulars.  They  had  dis- 
covered the  exact  amount  of  the  rent 
to  be  paid.  They  had  been  comi>elled 
to  pay  PauJing  and  Co.  £835  for  a  debt 
contracted  in  1900,  and  the  Customs 
House  Bar  had  been  burned  down.  If 
at  that  time  the  vendor  company  sub-  »jq 
mitted  this  balance-sheet  to  the  purchas-  ^' 
ing  company  as  a  true  »tatemont  of 
their  affairs  without  drawing  attention 
to  tho  alteration  that  subsequent  cir- 
cumstances had  necessitated,  and  the 
purchasing  company  relied  on  the  ac- 
curacy of  thi«  Dalance-shoct,  and  wei'e 
ind-uocd  by  the  figures  in  this  balance- 
sheet  to  enter  into  the  agreement,  I 
certainly  think  they  would  be  entitled 
to  claim  relief. 

And  this  brings  me  to  the  third 
point,  viz. :  Tlie  manner  in  which  this 
balance-sheet  came  into  the  hands  of 
defendant  company. 

It  is  the  ba^s  of  defendants'  case  that 
this  balance-«heet  was  handed  to  Major 
Johnson,  the  originator  of  the  new  com- 
pany) by  Mr.  Lawley,  acting  as  the 
agent  of  the  Beira  Cold  Storage,  ae  a 
true  statement  of  tlie  financial  position 
of  the  said  company.  The  plaintiff  de- 
nies that  Lawley  was  the  agent  of  the 
Beira  Company  in  the  matter  of  tho 
sale,  and  repudiates  Lawley's  authority 
to  make  any  representations  on  behilf 
of  the  company. 

This  question  of  Lawley's  alleged 
agency  is  the  critical  part  of  defen- 
dant's case,  and  has  to  oe  detennined 


8d4 


"LAPB  TIMES"  LAW  kfiboktd. 


by   a  cx>iiai deration  of   all    the    circuui- 
vtaDoes  of  the  oa«e. 

The  defendants  have  produced  no  evi- 
dence that  Lawley  -was  ever  in  express 
tonus  appointed  the  agent  o{  the  Beira 
Company,  but  their  case  rather  seems 
to  be  that  Lawlev  in  the  first  instance 
constituted  hiooself  the  agent  of  the 
Beira  CcHnpany,  and  that  the  said  com- 
pany afterWrds  accepted  him  as  their 
a^ut,  and  thereby  accepted  resjwnsi- 
bilrty  for  what  he  did. 

The  evidence  to  support  this  is: 
Firstly,  Lawley  wte  a  director  of  the 
Beira  Company;  seoondly,  Major  John- 
son states  that  Lawley  purported  to  act 
as  agent  of  the  Beira  Company;  third- 
ly, an  inference  drawn  bjr  Mr.  Russell 
irom  the  wording  of  certain  cables  that 
passed  between  Lfswley  and  the  Beirji 
Board. 

On  the  first  point  it  can  hardly  be 
contended  that  a  single  director  can 
commit  the  whole  Board,  especially 
when,  as  is  shown  in  this  case,  his  opin- 
ion in  the  matter  and  his  iinterest  in  the 
matter  is  opposed  to  that  of  the  rest 
of  tlie   Board. 

On  the  second  point — Major  Johnson's 
memory  is  so  inaccurate  ae  to  dates — 
as  to  tne  circumstances  under  which  he 
diseased  the  matter  with  Mr.  Law- 
ley  —  as  to  the  length  of  time  that 
that  the  negotiations  took,  and  he 
has  made  such  extroardinary  state- 
ments with  regard  to  other  mat- 
ters —  notably  the  reason  given 
by  him  for  the  delay  in  transferring 
the  pro|)erty  he  stated  that  the  delay- 
in  tne  transfer  was  due  to  the  methods 
of  the  Portuguese  authorities  (a  most 
unwarranted  attack  upon  the  Govern- 
ment of  a  neighbouring  State)  and  that 
pladntiff  could  not  have  reasonably  ex- 
pected transfer  to  go  through  till  Sep 
tember,  whereas  it  was  shown  that  tho 
delay  was  solely  due  to  defendants'  re- 
fusal to  pay  off  a  certain  bond  of 
£3.000  due  to  the  Bank  of  Africar— that 
Mr.  Cameron,  agent  for  defendants,  had 
the  power  of  attorney  and  papers  ready, 
and  could  have  got  transfer  at  any  time 
if  the  bond  was  i>aid  off,  that  I  cannot 
accept  his  (Major  Johnson's)  mere  state- 
ment on  this  point  without  further  cor- 
roboration, 
p.  311.  ^^^  ^^  ^^  most  his  statement  does  not 
'  prove  agency,  supposing  Lawley  did 
purport  to  act  as  agent,  he  apparently 
produced  no  authority  for  so  domg,  an-.l 
defendairts  can  hardly  put  forward  so 
extraordinary  a  proposition  as  that  a 
self -constituted  agent  could  bind  per- 
sons who  were  not  even  aware  that  ho 
was  purporting  to  act  as  tlieir  agent. 
If  Lawley  purported  to  act  as  agent,  it 
was  Major  Johnson's  duty  to  ask  him 
for  his  authority. 

The  *  defendants  have  selected  not  to 
call  Lawley  as  a  witness,  though  in  the 
application  lor  a  Commission  they  men- 
tioned him  as  one  of  the  witnesses  they 
intended  to  call,   and  from  an   affidavit 


mode   in  connection  with   that   appiica 
tion   it  appears   that   his  evidence   waa 
available  ii  required. 

On  the  evidence  before  me  I  am.  not 
aatisfied  that  at  the  earlier  negotiations 
Lawley  ever  told  Johnson  that  he  had 
authority  to  act  as  agent  for  the  Beira 
Company. 

The  defendants  must  rely  on  what 
they  can  find  in  the  cables.  In  order 
to  understand  the  cables  it  is  necessary 
to  review  to  a  certain  extent  tiie  ori^n 
of  the  defendant  company  and  Major 
Johnson's  negotiations  with  Mr.  Law- 
ley. 

In  1902  Major  Johnson,  as  obaannan 
o^  the  Scottish  Africa  Trust,  had  a  con- 
siderable interest  in  two  companies 
trading  m  Rhodesia,  viz..  Deary  and 
Co..  Ltd.,  and  the  Rhodesia  Cold  Stor- 
age of  Bulawayo,  and  in  negotiations 
with  the  head  of  the  firm  of  Suter  and 
Co.,  it  was  apparently  decided  to  com- 
bine these  three  companies,  and  it  was 
then  thought  advisable  to  get  in  also 
the  Beira  Cold  Storage  Oomnany,  and 
to  get  possession  of  certain  cold  storajpe 
plant  tnat  had  recently  been  erected  by 
the  Beira  and  Mashonaland  Railway 
Companv  at  Beina  and  Sabsbury,  a  fur- 
ther ad<lition  waa  proposed*  in  the  ehape 
of  .an  Australian  Catlflc  Estate,  and 
then,  with  a  contract  with  the  Imperial 
Cold  Storage  Company  of  Pretoria, 
Transvaal,  which,  though  it  ia  very 
little  referred  to  in  the  case,  was,  to 
my  mind,  a  very  important  elemenlv  he 
pxt)po8ed  to  start  a  huse  tisidin^  con- 
cem,  wthich  seemed^  to  nim  to  promise 
unlimited  possibilities  see  the  growing 
terms  of  the  prospectus.  But  it  was 
very  important  for  his  scheme  to  get 
possession  of  the  Beira  Oompany,  or,  if 
ne  could  not  do  that  on  rccusoiialile 
term»— to  get  it  out  of  his  way. 

In  this  state  of  mind  he  approac4ied 
Mr.  Lawley,  whom  he  knew  to  be  % 
director  of  the  Beira  Company,  and 
aeked  him  about  that  company. 

Lawley  thereupon  gave  him  that  much 
discussed  balance-sheet. 

Here  again  we  have  only  Major 
Jc^neon's  account  of  what  took  place, 
and  it  does  not  tell  us  very  much.  He 
saye  Lawley  cravo  him  the  balance-sheet, 
saying  sometning  like  this :  "  Here  is 
the  last  report  1  have  received.  Now 
you  know  as  much  as  I  do." 

This  seems  to  me  very  slender  evi- 
dence on  which  to  found  the  alleged  re- 
presentation that  this  balance-sheet  ac- 
curately described  the  financial  posi- 
tion of  the  company  as  it  then  was 
assuming  that  Lawley  was  an  agent 
authorised  to  make  representations. 

The  balance-sheet  on  the  face  of  it 
represented  a  state  of  affairs  several 
montiis  dd,  and  Johnson  cannot  say 
that  Lawley  added  one  word  to  war- 
rant that  the  present  position  was  as 
then  described. 

However,  Johnson  propounds  to  Law-     m 
ley  his  scheme  for  to  is  hvLge  combine.  ^ 


^*CAPB  tiMBS"  LAW  REPOkXS. 


896 


Lawley,  besides  being  a  director  of  the 
Beira  Company,  i.s  a  large  holder  in 
Salter  and  Oo.,  Ltd.,  one  of  the  com- 
panies to  bo  brought  in. 

Lawley  approves  the  scheme — in  fact, 
we  find  thaik  he  becomes  associaited  with 
it  aa  one  of  the  promoters— his  signa- 
ture appears  below  the  articles  of  as- 
sociation printed  with  tho  published 
prospectus,  as  associated  with  the  four 
proposed  directors,  the  trustee  of  the 
underwHtens,  «nd  the  solicitor  for  the 
underwriters. 

He  undertakes  io  recommend  the> 
scheme  to  his  Board  at  Beira,  and  so 
we  get  .  the  first  cable,  August  18th, 
190e. 

In  this  cable  Lawley  sets  forth  the 
proposed  combine,  recommends  the 
^ira  people  to  come  in  on  practically 
a  sha<<e  for  share  basis — and  aske  for  a 
power  of  attorney.  The  reply  is  a 
prompt  refusal.  At  the  same  time  the 
Beira  people  appeal  by  cable  to  the 
Administnator  of  Rhodeeia,  then  'n 
London  to  protect  them  in  their  pos- 
session of  the  railway  cold  storage  plant. 

The  production  of  this  cable  was  ob- 
jected to  by  defendants,  but  I  think  in 
this  case,  where  it  is  important  to  as- 
certain the  state  of  mind  of  the  Beira 
directors  at  that  date,  an  act  done  by 
them  at  the  time  is  admissable  to  cor- 
roborate their  present  statement  that  at 
that  time  they  were  not  anxious  to  get 
rid  of  their  business. 

A  few  days  afterwards  Lawley  enables: 
"Telegraph  lowest  terms;  shall  try  to 
nsffoiiate.  The  reply,  dated  August 
28tn,  1902,  is:  "Cannot  assist  in  oarry- 
ifig  out  the  scheme  for  amalgamation; 
am  ouite  prepared  to  sell  casii.  You 
had  better  suomit  offer  on  above  lines, 
which  will  be  laid  before  the  next 
Board  meeting  immediately.*' 

After  that  cable  the  negotiations  were 
sUHdended  for  nearly   two  months. 

Up  to  this  point  I  can  find  no  accept- 
ance by  the  Beira  Company  of  Lawley 
as  their  agent. 

Mr.  Russell  relies  on  Lawlev's  worde 
"shall  try  to  negotiate,'*  and  Mr.  Mar- 
tini's statement  in  the  witness-box  that 
ibe  was  quite  agreeaible  to  Lawley's  ne- 
{fotiaiiug  as  much  as  he  plea«ed.  But 
they  refuse  to  send  him  a  power  of  at- 
torney, and  they  lask  him  to  submit  a 
cash  offer  to  them,  which  they  will  con- 
sider. 

This  seems  quite  consistent  with  the 
position  now  taken  up  by  Martini  that 
tbev  considered  that  they  were  dealing 
with  Lawley  as  the  proposed  puTcha^er 
of  their  busitiess,  probal>ly  in  conjunc- 
tion with  others,  but  as  acting  for  him- 
self and  those  probable  others,  kud  not 
AS   agent  for  the  Beira  Company. 

They  said  they  were  led  to  this  belief 
partly  by  the  cables  coming  from  him 
and  partly  bv  their  kuowleage  of  Law- 
ley's  large  holding  in  Suter  and  Co. 

On  October  20th  Lawley  wires  again : 


"  Strongly  advise   accept  the  terms  of- 
fered." 

No  reply  to  this  has  been  put  in.  It 
must  bo  noted  that  Johnson  and  Law- 
ley  consulted  together  about  the  var- 
ious cables,  and  at  this  stage  it  was  de-  p.  313. 
cided  between  them  to  put  a  little 
geivtle  pressure  upon  the  Beira  people. 
The  next  cable,  dated  29th  OctcHber,  is 
simply  a  threat  that  if  the  Beira  Board 
will  not  come  into  the  combine,  Lawley 
will  sell  some  of  his  own  vacant  land  at 
Beira  to  the  amalaganvated  company, 
who  will  £Ftart  an  opposition  business. 
This  has  its  effect.  The  Beira  Board 
apparently  find  themselves  driven  into 
a  corner,  and  after  consultation  with 
Lawley's  representative  at  Beira  they 
state  the  terms  on  which  they  are  will- 
ing to  sell,  viz. :  Share  for  share  and 
10s.  per  share  in  cash. 

The  promoters  of  the  new  company 
try  to  oeat  them  down,  and  Lawley 
proposes  a  variation  of  56.  instead  of 
10s.  per  share,  and  again  asks  for  a 
power  of  attorney. 

The  Beira  Board  adhere  to  their 
terms,  and  Martini  incidentally  wires 
that  he  considers  business  bright  and 
improving.  This  is  also  aUeged  to  be 
a  misrepresentation,  but  I  confi'ider  it 
simply  an  honest  expression  of  Mr. 
Martini's  opinion  at  the  time,  and  is 
certainly  not  particular  enough  to  war- 
rant a  charge  of  misrei)resentation.  I 
presume  it  is  on  this  wire  that  the  3rd 
of  the  additional  particulars  is  based. 
That  particular  can  be  at  once  dis- 
mL^sed. 

On  November  22nd  Lawley  again 
cables  that  he  is  still  negotiating,  and 
again  asks  for  a  power  of  attorney. 
This  power  of  attorney  is  not  sent  to 
him,  out  eventually  the  bargain  is  con- 
cluded on  the  terms  asked  for  by  the 
Beira  Company,  and  they  send  their 
power  of  attorney  to  the  London  man- 
ager of  the  Bank  of  Africa. 

On  this  evidence  I  am  asked  to  find 
that  Lawley  was  the  authorised  agent 
of  the  Beira  Board  in  opposition  to  the 
direct  statement  of  the  chairman  and 
one  of  the  Directors  and  the  secretary 
of  the  Board  that  they  never  appointed 
him  their  agent,  that  they  never  ima- 
gined that  he  was  acting  as  their  su^ent, 
and  that  they  would  particularly  nave 
objected  to  his  acting*  as  their  agent  on 
account  of  the  recent  dispute  re  the 
Waimate  shipment,  and  that  they  hon- 
estly belioveo  he  was  the  purchaser  or 
the  agent  <A  the  purchasers.  Further, 
on  December  5th,  1902,  immediately  af- 
ter conclusion  of  the  negotiations. 
Major  Johnson  writes  to  the  manaq^er 
of  the  Bank  of  Africa  to  the  effect  that 
they  "  will  be  prepared  to  take  over  the 
business  of  the  Beira  Cold  Stonwe  Com- 
pany, csi  the  terms  arranged  between 
Mr.  A.  L.  Lawley  and  the  Board  of 
that  company.*' 

Surely  af  at  that  date  Major  Johnson 
be>lieved  that  Mr.  A.  L.  Latwley  had  in 


' 


896 


f( 


CAPE  TIMES"  LAW  REPOfttd. 


tlio  negotMtious  acted  as  liie  agoiit  of 
the  BomODmpany,  be  would  ha v«  uaed 
yerj  differant  language  in  hia  letter  to 
the  bank  manager. 

I  am  satisfied  thai  Lawley  never  pur- 
ported to  be  and  never  waa  the  agent 
of  the  Beira  Oompany  in  thi^  maUer, 
and  that  the  idea  of  hia  agency  is  en- 
tirely   an  afterthought. 

But  if  Lawley  never  waa  the  com- 
pany's agent,  in  what  way  can  the  com- 
pany be  sadd  to  have  handed  their  bal- 
ance sheet  to  the  defendant  oompany? 
There  ie  some  vague  evidence  that  the 
Beira  Company  knew  that  defendaait« 
were  using  thie  balance-sheet.  Possibly 
when  inquiries  were  made  about  the 
exchange  item  the  directors  if  they 
p.  314.  thought  of  it  might  have  known  that 
the  purchasing  company  had  seen  and 
were  using  the  baianoe-sheet — as  at  that 
time  they  thought  Lawley  was  the  pur- 
chaser this  would  not  be  surprising. 

But  there  was  nothing  to  indicate  to 
tliem  that  the  figures  on  this  old  bal- 
ance-sheet were  being  taken  as  the  basis 
of  the  purchase  price.  And  when  we 
come  to  the  actual  agreement  of  Feb- 
ruary 10th,  not  only  is  there  no  men- 
tion of  this  balance-sheet  as  the  basis 
of  the  contract,  but  the  agreement  de- 
parts from  the  balance-sheet  by  a  dif- 
ference of  635  shares  in  the  purchase 
price. 

The  promoters  of  this  new  company, 
who  lay  so  much  stress  upon  the  small 
discrepancies  they  find  in  this  balance- 
sheet,  were  prepared  to  pay  without 
question  neariy  £1,000  more  than  would 
have  been  the  purchase  price  calculated 
on    the   balance-sheet 

Further,  at  the  concluding  stage  of 
tlie  negotiations  they  were  so  anxious  to 
get  the  matter  completed  that  they  seem 
to  have  thought  the  difference  between 
5s.  and  ids.  per  share  hardly  worth  a 
contest,  though  it  made  a  difference  of 
£5,692  in  the  amount  they  were  paying 
for  this  business. 

On  the  whole  evidence,  1  am  not  satis- 
fied that  the  promotters  o^  the  new  com- 
pany did  pay  such  attention  to  this  bal- 
ance-sheet, and  did  so  absolutely  rely 
on  it  as  the  plea  contends. 

They  were  engaged  in  a  big  sclieme, 
and  it  was  necessary  for  this  scheme  to 
get  rid  of   the    Beira  Company.     First 


lVrU19.        JCtUlUlf^      lilMkW,      W«7J      Micvi     wv     j**»»- 

ohase  the  railway  cold  storages  over  the 
heads  of  the  Beira  people,  which  would 
have  effectually  broken  the  Rhodesian 
portion  of  the  Beira  Companv's  busi- 
ness. There  being  some  difficulty  about 
that,  they  threatened,  by  the  purchase 
of  Lawley's  land,  to  set  up  an  opposi- 
tion. This  threat  brought  the  Beira 
TOopie  to  terms,  but  far  rrom  the  Beira 
Company  inducing  the  new  oompany  to 
buy,  the  evidence  shows  that  the  new 
company  by  a  throat  compelled  the  Beira 


Company  to  sell,  and  the  new  company 
were  not  at  that  time  very  particular  aa 
to  whiit  they  paid  aa  to  a  few  thousands 
or  so. 

Major  Johnson  has  told  us  of  hia  con- 
tract with  the  Imperial  Cold  Storage, 
and  we  know  that  for  five  yean  the 
supplies  for  the  oompany  as  far  as  Rho- 
desia is  concerned  were  to  be  imported 
from  the  Imperial  Cold  Storage  from 
Cape  Town  through  Bulawayo,  and  not 
threugh  Beira.  And  as  we  know  that 
the  BeiTK  Company's  chief  sales  were  in 
Salisbury,  this  would  at  onoe  render  use- 
less a  lot  of  the  Beira  i^ant,  for  Beira 
we  know  from  the  evidence  is  .not,  ow- 
in^  to  a  falling  off  of  the  white  pofu- 
lation,  in  a  position  to  support  a  cold 
storage  business  by  itself,  despite  Major 
Johnson's  statement  that  **  it  is  almost 
a  bigger  town  than  any  in  Rhodesia," 
a  statement  he  would  hardly  have  made 
if  he  had  given  his  evidence  out  here. 

Incidentally,  I  may  remark  that  as 
the  Beira  Cold  Storage  plant  appears 
to  have  been  practically  standing  idle 
for  two  years,  except  for  the  mineral 
I  water  business,  this  fact  may  possibly 
ex])lain  the  aeteriorated  condition  in 
which  Mr.  Coxwell  now  says  he  finds 
it. 

The  big  scheme  of  cold  storage  sup-  ^  . 
plies  for  Rhodesia  appears  to  have  been  V-  31a> 
to  some  extent  unsuccessful,  not  on  ac- 
<  count  of  anv  misrepresentations  by  the 
Beira  Cold  Storage  Companv,  but.  first- 
ly, as  hinted  by  Mr.  Lyttelton  Cell,  that 
tiMB  failure  to  raise  sufficient  capital  has 
neoessitated  the  temporary  abandonment 
of  part  of  the  scheme,  and,  secondly, 
because  the  demand  for  frozen  supplies 
in  Rhodesia  has  not  risen  to  the  mag- 
nitude prophesied  in  the  prospoctus. 

Mr.  Binnie  tells  us  in  one  of  his  re- 
ports that  there  appears  to  have  been 
a  sufficient  supply  or  fresh  meat  to  ser- 
iously interfere  with  the  demand  for 
f  rosen  meat. 

For  some  reason  not  exi^ained  the 
new  oompany  were  not  prepared  to  pay 
off  a  bond  of  £3,000  due  to  the  Bank 
of  Africa.  His  delayed  tlie  transfer  of 
the  fixed  assets  of  tKe  Beira  Company. 
It  is  now  alleged  that  the  inclusion 
of  this  bond  under  the  heading  of  sun- 
dry creditors  in  the  balance-sheet  misled 
the  promoters  of  the  new  company— 
but  I  am  perfoctoly  satisfied  from  th^ 
evidence  that  the  promoters  in  London 
knew  of  this  bond  nefore  the  agreement 
was  signed,  and  in  fact  they  ,i>ever  suff' 
Pfested  in  their  plea  or  in  their  evidence 
in  London  that  thov  were  misled  on  this 
point.  It  is  raised  here  by  the  ^  local 
auditor  ,at^  the  last  moment.  I  t-hink  it 
may  be  dismissed. 

But  this  delay  jirevented  the  delivery 
of  the  share  consideration.  Tlie  secre- 
tary of  defendant  company,  in  his  let- 
ter of  October  8th,  1903,  to  the  Bank  of 
Africa,  speaks  of  "unavoidable  delays 
in  completing  the  transfer." 


CAp&  tiMEB*'  LAW  kEt^ORTd. 


89ir 


Th»  ia  the  only  reason  proved  for  the 
delay,  and  it  was  quite  aToidable  if  de- 
lendant  company  were  prepaared  to  pay 
the  bank. 

It  does  not  appear  clear  from  the 
Agreement  on  what  ffrounda  the  new 
company  were  entitled  to  prevent  Mr. 
Davis  handine  over  the  share  considera- 
tion to  the  plaintiff  pending  completion 
of  transfer,  but  apparently  they  have 
forbidden  him  to  hand  over  the  shares, 
and  it  is  oonmion  cause  on  the  pleadingr 
that  Mr.  Davis  now  holds  these  shares 
in  trust  for  both  companies. 

But  the  delay  in  handing  over  the 
shares  enabled  the  directors  to  discover 
that  their  newly-acquired  Beira  business 
was  a  losing  one.  They  ordered  an  in- 
vestigation. As  a  result  of  that  investi- 
gation they  refuse  to  complete  the  con- 
tract, and  through  their  secretary  write 
a  letter  to  the  Bank  of  Africa  making 
most  serious  charges  of  fraud,  misre- 
presentation, and  negligence  against  the 
directors  of   the  Beira  Company. 

With  regard  to  that  letter  I  shall  only 
say  that  in  my  opinion  no  fraud,  no  mis- 
representation, and  no  negligence  has 
been  proved  against  the  Beira  directors. 

In  my  opinion,  the  defendants  bave 
entirely  failed  to  establish  the  case  set 
up  in  paragraphs  3  and  4  of  their  plea. 
l».  316.  It  was  argued  that  there  was  no  duty 
incumbent  on  defendants  to  inquire  into 
the  actual  position  of  the  Beira  Com- 
pany at  the  time  of  the  sale.  If  actual 
representations  were  made  to  them  by 
the  vendor  company,  I  can  understand 
that  there  might  be  no  duty  on  them 
to  inquire  into  the  truth  of  such  repre- 
sentations. But  inasmuch  as  the  vendors 
were  making  no  representations  beyond 
Martini's  vague  cable  that  business  was 
bright,  I  think  they  ought  to  have  made 
some  inquiry  before  they  bought  this 
businesa 

Von  Hirschberg  says  that  thev  (the 
Beira  people)  were  on  their  side  ex- 
pecting an  inquiry,  and  both  Lawley 
and  the  firm  of  Suter  and  Co.  were  re- 
presented at  Beira.  and  these  representa- 
tives mi^ht  at  aiiy  time  have  obtained 
all  the  infonnation  which  it  is  now  al- 
leged   the  Beira  directors  withheld. 

I  have  come  to  the  conclusion  that 
defendants  are  really  in  tlie  position  of 
the  purchaser  in  the  hypothetical  case 
suggested  by  Lord  Romilly  in  his  judg- 
ment, Charlesicorth  v.  Jcnningt^  who 
said,  'I, do  not  care  whether  the  concern 
is  thriving  or  what  may  be  the  extent 
of  its  liabilities,  I  am  willing  to  pay  so 
much  to  p[et  out/'  and  according  to 
Lord  Romilly,  a  purchaser  who  says  that 
is  bound   by  his  agreement. 

Under  ^  the  _  old  doctrine  of  laenio 
marmit^  it  is  just  possible  that  defen- 
dants might  have  claimed  some  relief, 
bnt  on  the  facts  before  me  I  am  satis* 
fied  that  plaintiffs  aie  entitled  to  suc- 
ceed. 

Hie   plaintiff  is  therefore  entitled  to 


judgment  on  the  first  prayer  of  the  de- 
claration. 

As  the  shares  are  in  the  Bank  of 
Africa  in  London,  I  presume  there  will 
be  no  difficulty  about  their  delivery,  but 
judgment  will  be  for  the  first  prayer  as 
set  forth. 

The  second  prayer  is  for  danxages  for 
delay  in  delivering  these  sha^ies.  The 
shares  should  have  been  delivered  two 
years  ago,  and  were  then  of  a  substan- 
tial   value. 

We  are  told  that  now  they  are  prao- 
ticaly  unsaleable.  The  delay  has  been 
wholly  the  fault  of  the  defendant  com- 
pany- 

The   plaintiff    did    everything    in    his 

power  to  expedite  matters,  writing  fre- 
quently to  defendant's  agents  from 
April  24th,  1903,  onwards,  asking  them 
to  complete  the  transfer  and  deliver  the 
shares.  He  was  put  off  on  various  pro- 
texts,  and  it  was  noi  until  September 
16th,  1903,  he  learnt  through  the  Bank 
of  Africa  that  ckfendants  were  not  pre- 
pared to  carry  out  the  agreement. 

Even  after  summons  the  defendants 
delayed  the  matter  in  every  possible 
way.  (See  the  various  applications  nuide 
to  this  Court  during  the  last  year.) 

It  is  said  that  it  is  not  usual  to  order 
damages  as  well  as  specific  performance 
for  breach  of  a  contract  of  sale,  but  the 
^preme  Court  has  held  there  are  ex- 
ceptions to  this  rule,  and  non-delivery  p^  gjj^ 
of  shares  is  one  of  these  exceptions — 
in  such  cases  "the  mere  statement  of 
the  breach  would  be  sufficient  indication 
of  the  nature  of  the  damages  sustained 
and  claimed "  (Philip  v.  Metropolitan 
and  Suburban  RaUvcay  Co.,    10  J.,  55). 

In  the  present  case  a  judgment 
merely  for  the  de*livery  now  of  theso 
6'hares  without  damages  for  the  delay 
would  be  a  mockery. 

The  amount  of  the  damagics  is  more 
difficult  to  arrive  at.  In  similar  cases 
the  damage  is  generally  fixed  at  the 
difference  between  the  selling  price  at 
the  time  when  delivery  should  have  been 
made  oud  thai  at  the  time  of  actioiK 
But  that  assumes  a  markot  and  a  pro- 
bability of  sale  at  the  price  mentioned. 
Here  we  know  that  though  a  few  shares 
were  sold  above  par  sborldy  after  tho 
flotaition  of  the  Company,  it  would  have 
■been  impossible  to  eell  22,000  at  any- 
thing like  that  price.  But  still  some 
would  have  been  sold  at  a  good  price 
and  the  reet  would!  probably  have  ocen 
disposed  of  at  decreasing  prices.  And 
the  fault  has  been  thai  of  defendants. 
They  by  their  failure  to  carr^  out  their 
a^^roement  have  put  it  out  of  the  power 
oi  plaintiff  to  show  what  he  mdght  have 
done  with  these  shares,  and  they  can 
hardly  be  heard  now  to  say  that  he 
couldn't  have  sold  them  at  any  price. 

The  plaintiff  olaime  damiages  at  the 
rate  of  lOs.  per  share  and  though  per^ 
haps  that  is  pezliaps  a  lough  estimate 
iit  may  be  taken  as  a  fair  calculation  of 


P98 


•I 


CAPfc  TIMiES"  LAW  REt^ORM. 


wlut  iiH^^'lit  have  boiMi  roaliaod  by  the 
»lian>s.  si>oinp;  tiiat  at  th«  dtato  of  broach 
thoy  wer©  nominally  abovo  par — any- 
how it  is  dofendai)<ta*  fault  that  the  mat- 
t-er  -waft  -not  put  to  the  t<Mst. 

Judgment  will  therefore  be  givetn  also 
in    termA  of   the  second   prayor. 

The  third  prayer  is  based  on  the  do- 
f<Midant|B  uiiaertakine  to  pay  the  aista 
ivf   liquidating  the   Beira   Company. 

On  this  ground  plaintiff  claims  £450 
8h.  Id.,  but  he  has  not  produced  evi- 
dence to  support  the  claim. 

Mr.  Von  Hirsohberg-  put  in  a  state- 
nient  of  hia  expenses  up  to  date.  Be- 
yond his  own  fee  as  liquidator  thi«  state- 
ment consists  largely  of  expenses  con- 
nected with  this  litigation  which  the 
liquidator  finds  he  canno>t  charge 
againJ9t  defondanta  in  hia  blil  of  costs 
between  party  and  party.  This  i«  a 
roundabout  way  of  trying  to  recover 
from  the  opposite  party  costa  which  the 
taocing   officer   diaallows. 

If  I  allowed  theee  items  •to  par-«  a« 
expeneca  of  liquidation  the  plaintiff 
woivld  claim  to  recover  the  whole  of  his 
attorney  and  client  cost^  in  this  action. 

The  earlier  itema  of  legal  expenses 
before  litigation  may  be  accepted  and 
these  appear  to  amount  to  £50  8s.  Id. 
Add  the  liquidator's  fee  of  £105.  and 
the  total  costi-^  of  liquadation  proved 
here  will  amount  to  £155  8s.  Id.  fivr 
which  amount  tl>e  plaintiff  is  entitled  to 
judgment. 

Tiio  judgment  will  therefore  be  for 
plaintiff  in  termi»  of  prayers  1  and  2 
of  the  declaration  and  on  prayer  3  for 
the  sum  of  £155  8s.   Id. 

Defendant  must  |>ay  tlie  co«ts,  includ- 
ing cohts  of  the  oommisHion. 

Mr.  Schreiner:  The  declaration  has 
been  twice  amended — once  after  the 
argument  in  the  Court  below  had  been 
cloTsed.  Of  course,  we  could  not  have 
pleaded  to  the  amended  declaration,  and 
it  would  have  been  much  more  satis- 
factory had  we  had  the  original  declara- 
tion before  us. 

[Maafidorp.  J.  :  Had  you  been  pre- 
pared to  carry  out  your  arrangement 
DV  a  certain  date,  they  would  have  done 
all  they  were  bound  to  do.] 

I  cannot  find  tliat  in  the  [)lea^ings  as 
they  stand.  The  Dank  of  Africa  was 
h<)4d<ing  transfers  in  trust  for  both  com- 
panie*e. 

fMaasdorp,  J. :  Had  thoy  tendered 
transfer,  would  that  have  been  suffi- 
cient?] 

They  never  did  so;  and  I  am  not  pre- 
pa.red  to  say  that  that  would  have  been 
sufficient.  vVe  admit  tho  shares  which 
we  handed  over  in  trust  from  the  traiia- 
fer.  They  do  not  allege  that  we  did 
auvthing  to  hinder  the  transfer.  The 
claim  for  £11.384  for  shares  is  absurd. 
(See  Agreement  A,  pars.  1  and  2.)  The 
shares  were  divided  into  7  per  cent, 
preference  shares  and  £11,384  i>aid-up 
shares  of  £1  each.  (See  A.,  pars.  5  and 
6.)      By  par.  10  sale  and  purchase  were 


I 


to  lx>  completed  by  March  20th.  ClauM 
10  of  the  memorandum  states  tbat  any 
person,  corporate  cmt  otiierwise,  must  pay 
interest,  but  how  could  ^uch  purohascr 
be  liaible  for  any  interest  if  t4ie  sale  and 
and  i>urcha«e  were  to  be  ooacluded  on 
the  same  day.  Here  the  completion  of 
the  contract  does  not  mean  transfer,  but 
an  actual  handing  over  of  tho  property. 

[Buchana,  A.C.J. :  Then  you  say  that 
the  interest  should  run  on  the  pc»tion 
of  these  shares  not  delivered?] 

Exactly,  but  the  preference  sharrs 
would  nW  have  paid  the  dividend.  So 
far  these  shares  have  been  unfruitful. 
In  our  Courts  damages  have  never  been 
awarded  in  addition  to  specific  perform- 
ance, save  by  way  of  loss  of  frwtu*. 
(See  Article.  Vol.  22,  part  3  of  **  C«.pe 
Law  Journal  '*  and  authorittee  tberem 
cited.)  Our  old  law  in  a  ca^e  like  this 
would  not  order  specific  performance 
but  damages.  Our  law  would  oHer 
specific  perofrmance — Van  der  Byl  v. 
Hanbury  (2  Juta.  82).  Till  1858  even 
the  Court  of  Chancery  cou4d  not  order 
both  specific  performance  and  damans. 
(Fry  on  Specific  Performance,  sections 
1.300  and  1.306;  Main  on  Damages, 
oh.  21,  p.  613.)  In  our  law,  if  a  man 
claims  a  thing  he  must  take  it.  He 
may  ask  for  frwtua  lost,  but  not  for 
damages.  The  case  of  Kaiser  Bros. 
goes  as  far  as  the  Court  has  ever  gone. 
Hutton  V.  Black  Beef  Mining  Co.  (7 
Juta.  77).  In  that  case  Smdih,  J.,  dis- 
sented, and  cited  Wiiliam*  v.  Arrher 
(17  C.P..  82),  and  Lippert  v.  Adfer  (5 
Juta,  38i9).  Smith,  J.,  had  previously 
dissented  on  a  similar  point.  I  can 
find  no  authority  for  the  statement  of 
Watermeyer.  J.,  in  that  case  as  to  tlie 
measure  of  damages.  (See  Philip  v. 
MttropoUiun  BnUtray  Co.  [3  C.T.R..  55). 
Mitehdl  V.  Sam  WeU  Syndicate  (15 
C.T.R..  217).  where  see  the  judgment  of 
Maasdorp,  J.,  at  p.  220,  in  which  he 
referred  to  Vort  (19,  1.  20).  That-  oise 
i/i  decisive  in  my  favour.  See  also 
Silrerton  Estates  v.  Bell^viie  SyndiatU 
(Transv.  Rep.,  1904,  p.  462),  Frame  ▼. 
Berff  (Buoh..  1879,  p.  183).  Kaiser  Bros. 
V.  WesUyan  Church  (12  C.T.R.,  147). 
Cohen  v.  Shirey,  McHattic  and  Kino  (1 
Kotae,  41).  As  to  the  fUifitas  empforis 
«ieo  Difffift  (19-1-121-3).  The  purchafcr 
can  claim  only  id  quod  interest.  Dam- 
ages he  cannot  daim.  and  that  is 
exaotljr  wha*  the  respondent  Company 
are  endeavouring  to  ao. 

rCounael  proceeded  to  dieousa  the  evi- 
dence.] 

Major  Johnson  was  by  no  means 
clear  as  to  the  dates  of  hicp  communica- 
tions. That,  however,  ds  not  the  ques- 
tion. The  reaJ  question  is:  Was  Law- 
ley  an  agent  of  the  Comnany  or  not? 
The  evidence  at  page  54  snows  tliai  be 
was  an  agent  of  the  Beira  Company.  I 
cannot  argue  that  a  director  m  neces- 
sarily an  agent  for  t^  purpose  of  com- 
miting  the  Company;  but  the  Com- 
pany,  by    Martina    ratified   the   acts  of 


i 


'*CAPB  TIMES"   LAW  REtoktfe. 


899 


Lavrley.  Johnson's  evidence  is  uncon- 
tradicted. Lawley  waa  a  dij^ector  and 
▼et  ho  seemed  to  be  very  hazy  as  to  the 
balance-sheet.  He  knew  that  the  report 
ivaA  not  correct.  I  do  not  say  that  he 
aoted  fraudulently,  but  he  -was  negii- 
gent.  If  he  was  an  agent  to  negotiate, 
his  acts  are  the  acts  of  his  Company. 
Yon  Hirsohberg's  evidence  (pp.  20  and 
212)  shows  that  all  the  correspondence  is 
not  before  the  Court.  The  evidence  on 
behalf  of  the  Beira  Company  shows 
that  the  other  company  has  theid:  bal- 
ance-sheet. The  report  of  June  24th 
was  false  and  misfeading.  Turning  to 
GeU's  evidence:  it  was  favourably  com- 
mented on  by  the  Judge  in  the  Court 
below  (p.  59).  Gell  was  a  director  of 
the  Chartered  Company,  and  must 
therefore  have  well  known  the  value  of 
a  concession  in  Rhodesia.  His  evidence 
at  p.  64  as  to  the  prospects  of  purchasers 
is  very  important.  Gell  had  not  seen 
these  cables,  and  so  could  not  have  been 
influenced  by  them.  See  judgment  of 
Watermeyer,  J.,  o.  309.  That  is  quite 
in  our  favour.  What  is  said  at  p.  16 
does  not  seem  to  be  entirely  consistent, 
but  this  passajge  is  the  crux  of  the  whole 
judgment.  It  Lawley  was  an  agent  to 
negotiate  for  the  Beira  Company,  his 
Lordship's  conclusion  was  wrong,  and 
the  Rhodesia  Company  have  a  ri^^ht  to 
resist  an  action  for  specific  perform- 
ance. As  to  whether  the  balance-sheet 
led  to-  the  contract  or  not,  tliat  is  a  very 
eimi]4e  point.  His  Lordship,  however, 
k>oks  to  the  prospectus.  If  the  balance- 
sheet  was  fftulty,  the  prospectus  was 
still  more  so.  Two  wrongs  cannot  make 
a  right.  There  is'  nothing  to  show  that 
Lawley  was  a  promoter  of  the  company. 
The  respondents  must  have  had  full 
knowledge  of  the  balance-sheet  at  the 
time  they  neg^otiated  with  a  view  to  pur- 
chase. The  judgment  seems  to  go  on 
the  ground  that  the  balance-sheet  and 
the  oreport  were  contemporaneous;  but 
in  point  <^  fact  the  date  of  the  former 
was  March  31st,  1902,  and  that  of  the 
latter  June  24th. 

[Counsel  proceeded  to  deal  with  cer- 
tain items  of  account  on  the  balance- 
sheet.] 

The  balance-sheet  was  very  mislead- 
ing. The  vendors  show  their  gains,  but 
the  condition  of  the  business  is  not  cor- 
rectely  represented  (see  p.  22). 

[Counsel  further  discussed  the  evi- 
dence; more  particularly  as  to  the  dates 
relating  to  a  certain  bond  due  to  the 
Bank  of  Africa,  and  cited  Redtirave  v. 
Hurd  (20  Ch.  D.,  1,  and  45,  L.T.,  486), 
where  see  judgment  of  Jessel,   M.R.] 

This  case  shows  that  if  a  representa- 
tion is  not  true  in  point  of  fact,  it  is 
not  necessary  that  there  should  have 
been  fraud  or  even  negligence  in  order 
that  die  contract  may  be  set  aside.  Our 
Roman-Dutch  Law  stops  with  exeeptio 
doli,  and  English  law  is  jjiradually  tend- 
ing to  this.    That  case  is  quite  in  my 


favour.  Here  we  were  induced  to  enter 
into  a  contract  by  a  representation 
which  was  not  true.  See  Eeete  Silver 
Mining  Company  v.  Smith  (4  H.L.,  64). 
The  whole  point  in  these  cases  is  the 
validity  or  otherwise  of  a  contract  en- 
tered into  by  reason  of  a  misrepresenta- 
tion. The  liability  of  directors  is  a  dif- 
ferent matter. 

[Hopley,  J. :  The  Court  is  quite  with 
you  on  that  point.] 

See  Peek  v.  Oumep  (6  H.L.,  392,  403, 
and  43  Ch.,  19).  This  .case  has  no  bear- 
ing on  the  present  case,  nor  has 
Andrews  v.  Mockford  (1  Q.B.,  1896,  372) ; 
nor  Derry  v.  Peek  (14  Ap.  Ca.,  337); 
nor  Newbiggen  v.  Adam  (34  Ch.  D., 
594,  and  59  L.T.,  267).  One  of  our  own 
cases  is  Stellenboseh  Municipalitv  v.  Hurd 
(3  Searle,  345).  The  facts  in  tne  case  of 
Charlesicorth  v.  Jennings  (11  L.T.,  439) 
are  analogous  to  those  in  the  present 
case.  See  especially  the  judgment  of 
Rosnilly,    M.R. 

As  to  the  third  part  of  the  judgment, 
affecting  about  £155:  if  we  succeed, 
that  must  fall  away;  if  we  do  not,  I 
leave  the  matter  in  the  hands  of  the 
Court.  All  the  plaintiff  company  can 
obtain  in  any  case  is  specific  perform- 
ance; they  cannot  claim  damages  as 
well. 

Mr.  Burton  (for  respondents):  In  our 
Courts  misrepresentation  does  not  avoid 
a  contract  unless  it  is  fraudulent.  For 
the  appellants  two  technical  points  have 
been  raised:  (1)  As  to  the  state  of  the 
pleading.  (2)  That  traiisfer  has  never 
been  given.  These  points  were  not 
raised  in  the  Court  below.  We  admit 
that  legal  transfer  had  not  been  com- 
pleted, but  the  defendant  company  had 
physical  possession.  We  did  ail  we 
could  do  from  April  onwards.  We  did 
not  delay  the  giving  of  transfer,  but 
Johnson  suggests  that  the  Portuguese 
Government  are  very  slow,  and  whatever 
delay  there  was  was  their  fault.  There 
is  nothing  in  the  Oj^reement  binding  us 
to  effect  transfer  within  a  certain  time : 
see  par.  6,  p.  7.  Their  case  is  that  we 
refuse  to  give  transfer  (par.  9  of  the  de- 
claration. As  to  damages,  we  have  no 
decision  on  that  point,  unless  Mitchell 
V.  Sam  Weil  SyndicaU  (15  C.T.R.,  217) 
can  be  so  considered.  The  judgment  of 
the  C.J.  of  the  Transvaal  in  Silvertofi 
instates  V.  Bellevue  Syndicate  (Trans. 
Rep.,  1904,  466)  is  quite  reooncileable 
witn  the  decisions  of  our  own  Courts. 
I  may  remark  that  the  reference  there 
to  Voet  should  be  (22-1-28):  the  discus- 
sion begins  at  22-1-2A,  and  in  par.  28 
tihe  wrnter  holds  thai  the  person  in  mora 
is  liable  for  fruetuSf  id  quod  interest j 
and  poenam  eonventam.  The  poenam 
convenlam  would  here  seem  to  refer  to 
specafib  peitfonnoanoe.  As  to  ut  quod 
interest,  see  Voet  (46-I1-9).  The  wiiole 
quecftion  with  us  is  wheither  the  dam- 
ages are  or  are  not  too  remote,  96e 
Pothier,  par.  466). 


900 


i< 


CAPS;  TIMES"  LAW  llEPOktd. 


[MiauMlurp.  J. :  Yi^u  say  lliat  you  arc 
euMU«cl  to  the  ditt'«roiice  be*tween  the 
profits  whicih  mig-ht  have  beou  ixMide  alU 
theioQfl  ftufttained?] 

It  admitcd  on  the  other  side  that 
cornpeuatttdon  may  be  allowed  for  de- 
torioratioD,  and  tiiai  would  include  de- 
pi-<x?iattton :  Philip  v.  Metropolitan 
JiaUway  Company  (3  C.T.R.,  56)  has 
been  cited,  but  there  the  remark  of  De 
Villioiis,  C.J.,  on  which  stress  has  been 
laid,  was  only  an  obiter  dictum,  end  the 
ca«e  weat  otf  on  anotiher  issue.  The 
case  of  Kaiser  Bros,  (also  referred  to) 
is  in  our  favour,  for  there  compensa- 
tion wae  allowed.  In  Mitchell  v.  Weil 
Syndicate  (15  C.T.R.,  217)  there  was  a 
tender.  Voet  was  not  oomteauplaiti ng 
specific  performance,  plus  damages. 
T*hat  was  merely  a  caee  of  lose  of  pro- 
fits. It  is  said  that  my  clients  mighit 
have  dadmed  a  reiK>i8sion  of  the  whode 
i-ontraot:  but  the  contract  has  been 
partly  performed,  so  there  can  be  no 
queaitiou  of  restitutio  in  integrum.  We 
arc,  therefore,  justified  in  demanding 
diat  the  contract  should  be  completed, 
ajid  also  daimages.  The  appollants  in 
their  replication  do  not  a^k  for  a  re- 
cis.sion  of  the  contract,  but  simrjjy  ten- 
der a  quantity  of  oompaitatively  value- 
less «cnp. 

LCounsel  procet»ded  to  argue  on  the 
measure  of  damages,  and  to  contend 
thai  the  daimages  were  not  remote.  He 
cited  Fothier  an  Contract  of  Sale  (Art. 
16(9),  Wolff  V.  Pickering  (6  C.T.R.,  447), 
Ltppert  V.    AdUr   (6  Juta,   389).] 

As  to  da.mage6,  more  paiticularly 
Gilchrist  v.  Stone  (6  H.C.,  363).  See  also 
T  an  Recnen  v.  Republican  Gold  Mining 
Company  (Trans.  Rep.,  2  Kotz^,  236). 
Here  we  have  a  case  in  which  the  lino 
between  contract  and  tort  is  very  fine. 
6ee  Williams  v.  Archer  (17  C.P.,  82). 
rhis  -was  a  case  of  detinue:  here  we 
iuave  a  case  of  tort,  but  *he  distinction 
18  very  narrow.  These  sharea  were  to 
be  ajliotited  in  order  that  they  might  be 
dealt  with.  Sees.  4,  5,  and  7  at  p.  7. 
Time  was  evidently  of  tlie  essence  of  the 
contract.  Stevrart  v.  Sichel  and  Others 
(4  Juta,  438).  The  defemdawts,  in  point 
of  fact,  were  ea'ger  buyers.  Ajb  lo  con- 
sequential damages,  ^■ivcn  v.  Brady  (6 
Natal  Rep.,  20).  If  there  waa  delay  in 
gjivnnflT  transfer  that  -was  Hhe  fault  of 
the  ap-ejlants.  See  letter  of  August 
a2th.  1903  (p.  285).  This  letter  clearly 
shows  that  the  bank  refused  distribu- 
tion until  the  auditor  had  made  his  in- 
'voirtigia'tions.  \Jounsel  takea  up  the  line 
that  fhey  were  not  liable  till  the  date 
of  Jobnson's  letter.  I  contend  that  they 
were  lia/ble  from  August  12bh,  1903.  All 
•we  are  bound  to  show  is  thait  these 
sliares  were  sold  on  a  certain  date.  The  , 
other  side  were  wiMuHy  in  mora.  Our  i 
market  has  been  spoiled,  and  we  have  ' 
not  made  what  -we  might  have  <k>ne 
had  the  shares  been  <tolivered  to  ua 
when  thev  ou^h*  to  have  been.  We  do 
not  ask  for  rigorous  compenaatioii,  bul 


for  fair  compeusaiioo,  and  I  adLMuit 
th»t  oau  only  be  given  by  awafdu%  us 
bofh  specifiip  performaiioe  and  aiibafeiaa- 
tial  daioages. 

Mr.  Sohreiner  was  not  heaxd  in  reply. 

Buchanan,  A.C.J. :  The  diaoiiuMn 
about  the  amalg'amation  of  oertain  oom- 
paniea  began  in  a  moat  oasuai  way. 
Whedi  I«awley  handed  over  the  balance- 
sheet  of  the  Beina  Company  to  Johi^oa 
he  eaid :  ''  You  know  aa  mu<^  abou4  u 
as  I  do."  Negotiations  were  not  90m- 
manoed  with  the  Baira  Cc'inpariy  until 
after  March,  1903.  The  first  document 
was  a  cabl9  from  Lawley  to  the  Beira 
Company,  dated  15th  August,  ISOB, 
where  Lawley  informed  Martini  that 
the  Rhodesian  Company  had  arranged 
amalgamation  on  certain  terms.  On  Uiis 
oorreapondenoe,  it  was  alleged  that  Law- 
ley  was  the  agent  of  the  Beira  Com- 
pany, and  negotiated  the  transaction. 
As  a  matter  of  fact,  the  Beira  Company 
did  not  sign  any  power  of  attorney  to 
Lawley.  He  authorised  the  bank  to 
deal  for  them  in  London.  The  contract 
was  for  the  sale  of  the  whole  of  the 
Beira  Company's  assets  for  the  sum  of 
£11.000  odd  in  cash  and  £22,000  in  ahaies, 
halt  preference  and  half  ordinary.  This 
contract  was  guaranteed  by  Bartman, 
and  the  contract  was  to  be  oompleted  by 
the  20th  March.  Shortly  ilterwards 
the  £11,000  in  cash  was  paicf  to  the  bank, 
and  the  shares  were  deiivered  to  the 
bank;  but  it  was  alleged  they  were  to 
be  held  by  the  bank  pending  transfer 
of  the  property.  Some  time  in  April 
the  defendants  took  over  all  the  assets 
of  the  Beira  Company,  and  continued 
the  business  for  a  tiine.  They  did  not 
take  transfer  of  the  inunovable  property 
situated  in  Portuguese  territory,  while 
the  company  was  in  liquidation  the 
liquidator  applied  to  know  whether  they 
had  completed  the  transfer.  When  the 
pleadings  in  the  action  were  drawn, 
both  parties  assumed  that  the  transfer 
had  been  completed,  but  at  the  trial  it 
was  suddenly  discovered  that  the  trans- 
fer had  not  been  passed,  and  leave  was 
granted  to  the  plaintiffs  to  amend  their 
declaration.  The  only  negotiation  seem- 
ed to  be  between  Johnson  and  Lawley. 
I  am  not  prepared  to  admit  that 
Lawley  was  ever  authorised  to  bind 
the  selling  company  in  any  way.  The 
balance-8hc»et  was  incorrect,  but  with 
the  exception  of  some  small  error  it 
could  not  be  regarded  as  fraudulent  or 
misleading.  The  principal  defence  in  tlie 
case  was  on  the  ground  of  misrepresenta- 
tion 'bv  the  selling  company,  and  I  think 
thalt  the  leanned  judge  m  the  Cburt 
below  was  right  in  his  decision  on  that 
part  of  the  case.  The  first  part  of  the 
judgment  must  stand,  and  the  contract 
must  go  through.  .  His  lordship^  in  the 
Court  oelow  was  justified  in  saying  that 
they  must  deliTer  the  shares  or  pay  the 
nooodnal  value.  I  atn  noi  ^npixed  to 
lay   down  as   a   general   pnDnple  that 


i 


"CAPE  TIMES"   LAW  REPORTS. 


901 


when  a  poraon  buying  sh&ree  gets  his 
Mm  res  be  oannot  claim  for  dtunagea. 
The  difficultv  is  to  asoert&in  when  the 
shares  should  have  been  delivered.  The 
shares  were  handed  over  to  the  bank 
in  April,  and  the  selling  company  al- 
lowed the  shares  to  remain  in  the  bank 
and  not  to  be  handed  over  until  trans- 
fer was  given.  There  is  no  evidence 
to  show  that  after  October  these  shares 
could  have  been  sold  for  anything  at  all. 
It  is  true  a  small  numbier  of  shares 
were  disposed  of  in  England  immediately 
after  the  company  was  floated,  for 
above  par  down  to  128.  6d.  in  August 
or^  September,  but  it  was  not  shown  in 
this  case  that  the  plaintiff  company,  if 
they  had  got  the  snares,  ever  intended 
to  dispose  of  them.  The  a«pT>eal  wiU 
be  allowed  on  the  second  claim  for 
damages,  and  the  judgment  in  the  Court 
below  altered  to  judgment  on  prayers  (1) 
and  (3) ;  that  is  delivery  of  the  eharo« 
and  the  amount  of  costs  in  liquidation, 
with  costs  in  the  Court  below,  the  ap- 
pellants to  have  their  costs  of  appeal. 

(Maaedorp.  J.,  and  Hopley,  J.,  con- 
curred. 

[Appellants'  attorney:  G.  Trolip;  re- 
spondents* attorneys:  Syfret,  Godlonton 
and  Low.] 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Hon.  Mr.  Justice  Maasdorp.] 


BOUTHEY  V.  SOUTH  KY.      { 


190.-. 

Xov. 

7th. 

M 

8th. 

t1 

10th. 

tf 

2()th. 

•> 

2l8t. 

It 

22nd. 

(t 

2.3rd. 

n 

24th. 

Dec. 

4th. 

n 

r>th. 

it 

6th. 

•f 

7th. 

n 

ir,th. 

Water — Storm  water — Respective 
rights  of  upper  aiid  lower 
riparian  proprietors. 

When  icater  flowing  into  the 
channel  of  a  river  has  once 
entered  therein  and  joined  ihp. 
stream  within  the  river  banhs^ 
whether  such  water  he  a  jwrt/on 


of  the  usual  flowy  or  of  freshets, 
or  of  more  considerable  floods 
after  heavy  rains :  such  water 
becomes  part  of  the  perennial 
stream  and  is  subject  to  all 
rules  reguldting  the  user  of  the 
ordinary  flow  by  the  Hjxirian 
proprietors. 

The  rule  that  an  upper  pro- 
prietor ^  after  using  a  reasona 
ble  quantity  of  water  for 
irrigation^  must  allow  the  sur- 
plus  of  such  water  to  flow  back 
into  the  stream,  does  not  con- 
template such  return  being 
made  at  any  uncei'tain  spot  by 
percolation,  tut  ohligen  him  to 
return  such  xoater  by  a  visible 
flow  at  some  point  in  the  stream 
above  that  at  which  it  joins 
the  property  of  the  lower  pro- 
j>rietor. 

This  was  an  aoAnon  luoug'ht  by 
Mr.  Ohas.  fiouthey  agadnat  Mr. 
William  Southey,  both  being  far- 
mers  in  the  Middeliburv  diaUniot, 
for  a  deolarffition  of  ri^ts  as  to 
(Walter  rigthts  on  the  Brak  River.  The 
river  flows  from  -tJhe  upper  farm  of 
the  defendant,  and  then  over  that  of 
the  plaintiff's  farm  at  Oulmstock.  The 
dcclapation  was  as  in  the  following 
terms : 

1.  Tihe  parties  are  farmers  resident 
in    the  Miijcldeliburg   distridt.    Cape  Ool* 

2.  A  publio  perennial  stream,  called 
•the  Brak  River,  rises  on  land  above  the 
farm  Varkenskon,  of  which  defendant 
is  the  registered  owner,  and  flows  on 
to  and  over  the  said  faim  on  to  and 
over  the  adjodmng  and  lower  ,farm 
Ouhnsitock,  of  which  the  plaintiff, 
Charles  William  Souithey,  is  the  regis- 
tered owner,  and  theoice  on  to  and  over 
the  adjoin  ingfarm  Temple  Farm. 

3.  The  plaintiff  as  riparian  proprie- 
tor  upon  the  said  stream  was,  and  is, 
entitl^  to  the  user  of  a  reaeonaible 
share  of  the  water  in  the  said  stream. 

4.  fV>r  some  years  past  up  to  the 
profsont  time  tlio  defendant  has  been 
gradually  from  year  to  year  by  various 
works,  constructed  by  him,  taking 
more  and  more  water  out  of 
the  said  stream.  In  the  veam 
1876,  1895,  and  1902  respectively 
the  defendant  constructed  three  solid 
ma^on  weirs  at  different  points  across 
the  said  stream,  and  by  means  thereof 
and  by  furrows  leading  therefrom  he 
has  as  aforesaid  been  diverting  more 
and  more  water  from  the  said  stream, 
and  bv  gnidual  means,  viz.,  filling  up 
the  sluices,  widennng  and  deep^^ning  the 
'furrows  connected  with  the  said  weir«*. 
spreading    the    water    and    heightening 


902 


II 


CAPE  TIMES"  LAW  REPORTS. 


Ibe  furrowfl,  he  has  jAmoed  targe  traote 
of  land,  hitherto  di^  and  ml  unoul- 
tiiyttted,  under  irriffation,  and  in  doinff 
BO  has  diiveried  liarge  quaotitdes  ot 
water  »way  from  the  said  afeream,  into 
an  entirely  different  oatohaneni  area  or 
waterslied,  and  does  not  after  user  of 
the  said  w«ter  return  the  same  into  the 
said  stream,  the  Brak  River,  and  the 
said  water  is  thereby  wholly  lost  to  the 
plaintiff. 

5.  In  addition  to  the  above  works, 
the  defendant  in  or  about  the  year  1902 
erected  a  windmdU  on  tflie  banks  of  the 
mid  river,  at  a  spot  below  the  said 
third  weir,  end  by  means  thereol  and 
of  pipes  laid  from  the  said  river, 
piftRkps  and  diveite  from  the  said  stream 
a  considera/ble  quantdty  of  suoh  water 
as  there  is  below  the  said  weir,  aod 
which  water  had  up  to  that  time  always 
flowed  in  the  said  stream  down  to  the 
plaintiff's  land. 

6.  By  reason  of  the  said  works  the 
defendant  has  gradually  been  dtvertin^ 
more  water  tiian  he  is'  legally  entitiled 
to  use,  and  the  plaintiff  has  been  gradu- 
ally deorived  of  more  and  more  of  his 
reasons  Die  share  of  the  water  in  the 
said  stream,  and  while  the  defendant 
has  from  vear  to  year  been  using  more 
wjater  and  pkoing  more  and  more  of 
hie  kinds  under  irrigation,  the  plain- 
tiff has  gradually  become  more  and 
more^  unalble  to  cultivate  his  land  and 
to  raise  crons  thereon,  and  the  plain- 
tiff sajns  that,  especially  from  the  year 
1903  up  to  the  present  time,  (Jie  de- 
fondant  has  wrongfully  and  unlawfully 
diverted  from  the  stream  and  usecl 
more  than  his  reasonable  shar^^of  the 
water  in  the  said  stream,  and  has 
wronglfuUy  and  unlawfully  ddveited  t^e 
said  water  into  the  aforesaid  new 
watershed,  and  has  not  returned  the 
said  water  after  user  into  the  said 
stream. 

7.  By  reason  of  the  premises  tihe 
waiter  so  di'verted  has  been  and  is 
wholly  lost  to  the  plaintiff,  and  he  has 
been  deprived  of  the  user  of  a  reason- 
able share  of  the  said  water,  and  has 
iheen  unable  to  oultivate  his  lands  as 
theretofore,  to  water  his  lucerne  fields, 
and  to  raise  his  crops,  and  has  suffered 
great  loss  and  damage,  to  wit,  the  ^aan 
of  £500.  and  the  defendant  continues  to 
use  and  divert  the  water  as  aforesaid, 
and  refuses  to  desist,  and  claims  the 
rie^bt  so  to  do. 

Wherefore    the  plaintiff   claims: 
(<&)  An  order  declaring  that  he  is  en- 
titled to  the  user  of  a  reasonable  share 
of  the  water  in  the  said  stream. 

(b)  An  Older  declaring  that  the  defen- 
dant is  using,  and  is  not  entitled  to 
use,  more  than  a  reasonable  sihare  of 
the  water  in  the  said  stream,  and  direct- 
ing the  defendiant  to  return  to  the 
stresum  water  diverted  therefrom  after 
user  by  him. 

(c)  An  interdict  restrain inj?  t3ie  de- 
fendant from  using  more  than  a  reason- 
able share  of  tIhe   water     in     the   said 


^ream  and  from  divertinfl^  the  m/bM 
so  that  it  is  not  returned  into  t^  aaid 
stream. 

(d)  The   sum  of   £500     as     and     for 
damages. 
(e)   AJternative  relief  and  costs  of  suit. 

To  this  declaration  the  defendaiA 
pleaded  as  follows : 

1.  The  defendant  admits  pars.  1,  2, 
and  3  of  the  declaration. 

2.  As  to  par.  4,  defendant  admits  thai 
he  built  two  solid  masonry  weirs  in  the 
Brak  River  in  the  period  referred  to, 
but  says  that  only  one  is  used  for  di- 
verting the  defendaikl's  share  c£  the 
ordinary  flow  of  the  water  in  the  river. 
The  third  weir  was  bought  by  defen- 
dant from  an  xj^pper  proprietor,  with  ail 
the  said  propnetor  s  water  rights  in 
respect  of  the  Brak  River,  but  defen- 
dant has  used  it  little,  and  for  small 
quantities  of  water  only. 

3.  Defendant  admits  that  in  tbe  afore- 
said period  he  has  continued  increasing- 
ly to  divert  on  to  Varkens  Kop  water 
from  the  said  river,  but  such  increased 
diversion  has  been  in  respect  only  of 
surplus  flood  water  after  good  rains. 
The  water  so  diverted  on  to  YM^ens 
Eop  could  not,  owing  to  the  quajitifry 
of  the  flood  water  and  the  lie  of  the 
country  have  been  utilised  by  lower 
proprietors,  and  would  have  been  waste 
water  but  for  defendant's  user.  The 
defendant  is  almost  entirely  dependent 
on  flood  water  to  irrigate  his  crops. 

4.  By  means  of  such  diversion  and 
of  the  manner  in  which  the  water  di- 
verted has  been  used  for  irrigation  nur- 
|>08es  on  defendant's  lands,  the  plain- 
tiff's property  has  been  greated  bene- 
fited and  enhanced  in  value.  The 
water,  after  use  ^  by  defendant,  has 
flowed  on  to  pkintiff's  lands,  and  tiie 
plaintiff  has  tnereby  been  enabled  to 
cultivate  large  tracts  of  land  which 
otherwise  he  could  not  have  culti- 
vated ;  and  the  springs  on  plaindfTs 
lands  have  been  greatly  strengthened 
by  the  said  diversion  and  use. 

5.  As  to  par.  5,  the  defendant  admits 
having  erected  a  windmill,  and  says 
that  he  did  so  for  the  proper  enjojsnent 
of  his  user  of  the  water  in  the  river. 
The  piping  was  laid  to  economise  the 
use  of  the  water  for  watering  stock, 
and  no  appreciable  difference  in  the 
quantity  of  the  water  in  the  river  is 
caused  by  the  use  of  the  windmill  and 
pipintr.  The  defendant  denies  that  a 
coneiderable  quantity  of  water  is  so  cft>- 
tained. 

6.  As  to  par.  6.  ^e  defendant  denies 
that  he  is  or  has  been  m^ing,  and 
does  not  claim  that  he  can  make  un- 
reasonable use  of  tihe  water  of  the  said 
river,  and  says  that  he  has  not  be<m 
iisinflT  or  divertinp'  the  water  (wfiethor 
flood  water  or  otherwise)  to  thd  extent 
to  whioh  he  is  in  law  entitled  so  to  do. 
The  defendant  can  flood  the  tjnaote  of 
dry  land  referred  to  in  the  said  para- 
isrrapfli   at   times  only  wben  the  river  is 

I    in    such     flood  that  there  is  far  xnore 


i 


"CAPE  TIMES"  LAW  REPORTS. 


90^ 


water  in  bhe  river  than  can  be  used  by 
lower  ppoprieitorB. 

7.  The  defendfa»t  saye  thai  from  the 
year  1909  to  January,  1905,  there  was 
a  severe  droug^ht,  and  such  want  of 
water  as  plaintiff  majr  have  experienced 
was  due  to  the  continuous  dry  season, 
and  not  to  any  wron^ul  user  of  the 
water  in  the  river  by  dofcndaiit.  From 
14th  March,  1904,  to  Jianuary,  1906,  no 
waier  oame  down  the  Brak  River,  and 
defendant  himself  suffered  severely  from 
want  of  waiter,  not  only  for  irrigation, 
but  for   watering  his  stock. 

8.  As  to  par.  7,  the  defendant  denies 
apecially  that  plaintiff  has  suffered  any 
ctamage  for  which  defendant  is  in  kbw 
laaUo.  The  defendant  admits  that  he 
claims  to  be  entiitled  (and  is  continuing) 
to  use  the  water  of  the  river  as  he  has 
been   doing. 

9.^  Suibjeot  to  the  above,  defendant 
denies  pars.  4,  5,  6,  and  7. 

Wherefore,  subject  to  the  above,  de- 
fendant prays  that  plaintiff's  claim  nuiy 
be  dismissed  with  costs. 

The  replication  was  general. 

Sir  H.  Juta,  K.C.  (with  him  Mr.  Up- 
infjfton)  for  plaintiff ;  Mr.  Schreiner,  K.C. 
(with  nim  Mr.  Close)   for  defendant 

Charles  Southey  stated  that  in  1871 
his  brother  and  himself  bought  un- 
divided shares  in  Culmstock  and  Var- 
kenskop.  and  ultimately  his  brother 
took  over  the  latter  farm.  Culmstock 
was  partly  dependent  on  freshets  and 
floods  in  1871.  He  built  a  weir  on  his 
boundary  in  1894  and  1895.  In  an 
ordinary  flood,  he  got  no  beneifit  from 
the  diverted  water  from  weir  No.  3. 
Not  long  ago  the  defendant  began  to 
cut  a  furrow  out  of  that  of  the  defen- 
dant, which  ran  on  to  the  veld.  That 
furrow,  belonging  to  witness,  irrigated 
the  lucerne  ground.  An  obstruction 
was  also  put  up  by  the  defendant  to 
prevent  the  flood  water  flowing  on  to 
witnesA^s  farm.  The  water  which  the 
defendant  fitated  benefited  plaintiff's 
farm  simply  flooded  the  road,  over 
which  plaintiff  had  to  drive.  The 
effect  of  the  defendant's  works  was  to 
diminish  witness's  supply;  it  was 
rapidly  decreasing.  The  windmill,  he 
believed,       was    built    in    1903.^  It 

pumped  water  from  the  river  into  two 
dams.  At  the  end  of  1904,  witnefv; 
had  no  water,  and  went  up  to  examine 
the  windmill.  There  were  traces  of 
the  dam  having  overflown  its  banks. 
In  1904,  witness's  lucerne  died  for 
want  of  water.  The  water  never  actual- 
Iv  stopped  previous  to  the  erection  of 
the  windmill,  but  it  had  been  getting 
weaker  and  weaker  on  account  of 
^e  action  of  "tJhe  windrndll.  Before 
February  this  vear  the  windmill  was 
almost  oomstantly  running,  but  since 
th*»n  it  had  practioallv  .^topped. 

Re-exfaunined  bv  Sir  H.  Juta:  This 
year  he  meraaured  25,000  gallons  below 
the  windmiH  which  was  practically  uise- 
(ess  for  his  lucerne  land.  FV>rmerly  it 
•fvas  75,000  ^llons.    As  far  back  as  1871 


he  'hiad  giown  cats,   and  tiiat  waa  the 
principal  product  of  the  land. 

Arthur  Smythe  said  he  was  manager 
to  the  plaintiff  since  February,  1904, 
and  before  that  he  had  been  on  an  ad- 
joining farm  for  four  years.  The  water 
on  Culmstock  had  recently  been  weaken- 
ed. Witness  re-sowed  the  lucerne  this 
year.  In  October  there  was  a  good  rain, 
but  the  river  did  not  come  down  at 
Culmstock.  Witness  took  the  rain  re- 
cords at  8  o'clock  each  morning.  On 
January  13  there  was  rain,  but  the  water 
came  down  only  slightly  to  Culmstock. 
Witness  went  up  to  Varkenskop,  and 
saw  water  running  over  the  veld.  On 
several  occasions  when  the  river  came 
down  there  was  no  water  at  Culmstock, 
while  there  was  water  on  the  adjoining 
farm.  The  lucerne  had  to  be  resown  this 
year,  partly  for  want  of  water. 

Gert  Kock,  who  lives  above  Varkens- 
kop, stated  he  took  water  from  the  Brak 
River  for  his  own  farm.  In  October  last 
water  came  down  the  river,  and  the 
water  witness  used  passed  on  to  Varkens- 
kop. In  January  there  was  rain ;  the 
river  passed  him  and  went  on  to  Var- 
kenskop. 

Cross-examined  by  Mr.  Schreiner:  Al- 
though he  could  not  give  the  date,  ho 
was  positive  there  was  rain  in  October. 

Reginald  Greaves,  Government  land 
surveyor  gave  evidence  as  to  the  plan 
he  had  drawn  up. 

Arthur  Forbes,  who  is  farming  on  a 
portion  of  the  place  in  dispute,  stated  he 
had  been  there  for  the  past  eight  years. 
Ho  took  particular  interest  in  the  result 
of  this  case,  as  the  farm  he  was  at  pres- 
ent on  had  been  willed  to  him  by  the 
landlady  (his  mother).  Witness  had  proof 
that  Mr.  W.  Southey  had  made  his  cut- 
ting to  injure  witness.  When  the  flood 
was  large  it  went  on  to  the  Thebus. 

S.  Montague  Gadd,  a  farmer  at 
Springfield,  who  is  on  good  terms  with 
both  farmers,  measured  the  water  above 
the  dam  at  the  homestead  (Weir  No.  6). 
He  did  so  in  December,  1904,  and  it  was 
15,120  gallons  in  twelve  hours.  Weir  No. 
4  was  dry.  Lucerne  was  grown  on  the 
farm. 

Wilfred  Southey,  nephew  to  the  parties 
conicerned  in  this  action,  gave  evidence 
for  the  plaintiff.  After  further  evi- 
dence.  Sir  H.   Juta  closed   his   case. 

William  ^  Southey,  the  defendant, 
was  examined  at  considerable  length 
on  plans  and  photographs  of  the  farm. 
He  stated  that  the  dam  was  often  dry 
for  nine  months  in  the  year.  It  was  a 
large,  shallow  dam,  and  very  quickly 
dried  up.  The  water  in  the  case 
of  extraordinary  floods  would  run  into 
the  Brak  River  at  the  junction  of  the 
two  rivers.  Any  water  that  came  on 
to  the  Temple  Farm  in  that  way  would 
find  its  way  to  the  Brak.  and  not  to  tlie 
Thebus  River.  For  the  properties  that 
he  purchased  subsequently  he  had  not  a 
solitary  drop  of  water.  Witness  d^Miied 
tlvat  he  had  made  a  cut  tin. cr  to  take  off 


900 


«« 


CAPE  TIMKS"  LAW  BBPOETfi. 


lacMne  durinflr  the  year  depend- 
ed on  the  supply  of  water,  but  wit- 
nets  oould  not  say  how  often  it  oould 
be  cut  in  an  average  8eaM>n,  as  in  his 
farm  he  had  never  experienced  an  aver- 
age season. 

Frederick  Southoy,  a  eon  of  the  de- 
fendant, said  he  asked  Forbes  to  show 
him  the  cutting  that  he  and  the  "  old 
boss  "  had  an  argument  about.  If  the 
water  oamo  through  the  cutting  above 
100  morgen  could  he  cultivated.  Witness 
bad  seen  traces  of  water  on  the  veld  at 
thtii  spot.  Anderson  pointed  out  that 
there  was  weed  there.  On  Anderson's 
tfiiggestion  they  returned  to  the  dam 
that  pushes  back  on  Culmstock.  There 
was  a  strong  stream  of  clear  water  run- 
ning into  the  dam.  It  was  ridiculous 
%o  say  thatp  the  water  was  the  result  of 
a  flood  or  a  freshet.  The  river  was  ab- 
solutely dry  where  he  crossed  it.  At 
Forbe»'s  place  there  waa  sufficient  forte 
of        water        in        the  river  to 

fill  a  3  in.  pipe.  When  wit- 
ness was  a  lad  there  was  cultivation  on 
the  abandoned  Isnds,  but  there  never 
was  a  good  crop.  He  could  easily  dis- 
tinguish river  water  from  brak  water  by 
the  colour. 

Cross-examined  by  Sir  H.  Juta :  There 
was  a  good  strong  flow  into  the  weir 
at  Forbes's  farm.  Fifty  acres  could 
have  been  irrigated  in  that  stream.  The 
lucerne  was  not  in  a  good  condition;  it 
might  have  been  fed  off.  Ho  did  not 
know  that  the  pre8ent  was  a  good  year. 
He  did  not  go  down  with  Mr.  Ander- 
son for  the  purpose  of  giving  evidence; 
ho  merely  went  down  to  show  Mr.  An- 
derson round.  On  the  abandoned 
ground  he  could  only  remember  some 
mealies  or  pumpkins. 

Re-examined  b^  Mr.  Schreiner:  He 
saw  Forbes's  evidence  in  a  newspaper, 
and  he  was  determined  to  see  for  him- 
self. 

Petrus  Jacobus  Venter,  farmer,  who 
was  in  the  employ  of  Mr.  Forbes  for 
about  14  months  up  till  April,  1905,  said 
ho  knew  the  cutting  on  the  veld.  He 
bad  seen  about  two  morgen  of  Mr. 
Forbes's  ground  wetted  from  Mr.  Wm. 
Southey's  farm.  Witness  made  the 
cutting,  and  only  remembered  water 
coming  down  it  once.  The  day  witness 
finished  the  cutting,  which  he  believed 
was  in  January,  the  river  was  down 
on  Temple  farm.  The  river  came  right 
over  the  danu  It  was  so  full  that  the 
cows  nad  to  swim  over.  Tlio  fiood 
water  from  the  defendant's  farm  must 
come  down  to  the  Brak  River.  Some 
time  this  year  there  was  a  thunderstorm 
over  the  Brak  River.  The  rain  lasted 
about  20  or  25  minutes.  W^hen  witness 
returned  to  the  farm  the  road  was  full 
of  red  water,  so  were  the  river  and  the 
eluits. 

Henry  Trollip  stated  that  after  the 
flood  ol  1874  the  water  grew  stronger 
for  t^  ooiiple  of  years.    After  the  flood  of 


1874  the  river  Sowed  for  a  year.  From 
1895  the  water  graduallv  weakened.  H« 
would  not  oonsider  tne  abandoned 
lands  good  soil.  He  was  not  under  the 
impresuon  that  the  defendant's  works 
were  constructed  to  take  more  water 
than  years  a^o. 

Cross-examined  by  Sir  H.  Juta:  It 
was  the  custom  of  the  upper  propraetor 
to  take  all  the  water  he  could  make  use 
of.  W'itness  was  an  upper  and  lower 
proprietor,  but  the  upper  farmers  in  his 
case  had  not  the  works  to  take  an  un- 
fair share  of  water. 

Herbert  Collett,  fanner,  residing  at 
Saltpansdrift,  on  the  Brak  River,  stated 
his  farm  was  where  the  Fish  and  the 
Brak  Rivers  united.  Witness  was  pre- 
sident of  the  Cradock  Farmers'  Ajbso- 
ciation,  and  had  been  farming  by  him- 
self for  twenty  years.  He  was  on  good 
terms  with  the  plaintiff  and  the  defend- 
ant. He  was  familiar  with  Cuhnstock, 
Varkenskop,  and  Temple  Farm.  About 
the  beginning  of  May  he  went  to  see 
Varkenskop.  Witness  went  in  company 
with  Mr.  W.  Southey  to  see  where  the 
water  would  run  at  the  nineteen  foot 
furrow  at  No.  2  weir.  He  saw  by  the 
irrass  that  there  had  been  flooding.  The 
flooding  done  by  the  defendant  did  not 
appear  to  be  in  anv  way  excessive.  The 
river  was  dry  at  the  time.  Every  man 
took  as  much  flood  water  as  he  possibly 
could,  whether  it  was  a  freshet  or  a 
flood.  It  would  not  be  practicable  to 
divide  a  small  freshets  In  this  case  it 
was  better  for  the  upper  proprietor  to 
take  as  much  flood  water  as  he  could, 
and  establish  a  permanent  supply  below. 
The  upper  proprietor  never  tnought  of 
the  lower  proprietor. 

Cross-examined  by  Sir  H.  Juta:  He 
was  the  person  who  had  a  scheme  for 
supplying  Cradock  with  a  water  sap- 
ply,  and  that  would  mean  the  diversion 
of  a  deal  of  water  from  the  river.  He 
would  not  say  he  was  vitally  interested 
that  the  case  should  not  go  against  the 
defendant.  He  had  never  seen  the  de- 
fendant turning  out  the  water  when  the 
river  came  down.  He  could  not  say 
how  long  it  took  to  fill  the  dams. 
There  were  any  amount  of  degrees  be- 
tween a  small  freshet  and  a  big  flood 
that  would  reach  the  lower  neighbours. 

By  Maaedorp  .  J.:  The  Cradock 
.scheme  would  be  a  flood  scheme.  The 
idea  was  to  pipe  it  into  a  large  reser- 
voir. 

Kdniund  Wainwright,  farmer,  at  pre- 
stMit  of  Queen's  Town,  said  ho  former- 
Iv  farmed  at  Culmstock.  then  known  as 
Kliprift,  from  1865  until  aft<;r  1868.  In 
August  last  he  revisited  the  plac«». 
when  Mr.  W.  Rubadge  was  thea:*.  Then 
he  made  an  inf>pection  as  to  the  use  of 
water  on  both  fnnns.  Witness  wa-* 
farming  the  west  of  tiie  river.  At 
that  time  there  was  a  dam  he  to<^k  the 
water    from.  The    homestead     land^ 

which  tlio  plaintiff  had  now  were  at  pre- 
sent   more    irrigated   than    in    witnee^'s 


"CAPE  TIME8*'  LAW  REPORTS. 


907 


time.  The  landB  -wotnoni  bad  at  the 
homestead  were  watered  from  the  weir ; 
water  waa  very  soaroe.  The  permanent 
water  on  Culmetock  in  Auguat  was  muoh 
more  than  in  witness'a  time.  He  waa 
fairly  familiar  with  Vaxkeiiakop,  the 
irrigation  on  which  had  increased  great- 
ly. In  Au^st  he  aaw  the  lucerne 
lands  of  both  parties.  There  was  noi 
»  drop  of  flood  wa.ier.  Witness  saw 
no  perennial  waier  at  Varkenskop. 
He  saw  water  at  weir  2,  but  he  did 
not  know  where  it  came  from.  The 
•luioes  were  all  down  at  weir  1,  but  he 
did  not  see  any  water.  The  condition 
of  the  lucerne  on  both  homeeteads  was 
about  equal.  There  was  a  little  water 
at  the  windmill.  There  was  no  indica- 
tion that  there  had  been  irrigation  from 
the  dams.  Witness  was  positive  there 
waa  a  very  fine  stream  of  water  at 
No.  4.  As  the  defendant  took  the 
flood  water,  it  would  strengthen  the 
springs  bedow.  Witness  was  of  opinion 
that  the  defendant  benefited  Culm- 
atoek. 

Cross-examined  by  Sir  H.  Juta:  The 
f afmeoQi  on  the  east  side  used  the  water 
out  of  the  Brakke  River.  There  was 
a  cutting  near  the  homestead  that  was 
cut  further  back.  There  was  practical- 
ly no  cultivation  at  CaWood  when  wit- 
ness was  there;  now  there  was  lucerne. 
He  did  not  know  what  perennial  water 
there  was  at  Varkenskop  in  Oawood's 
time.  Witness  was  not  entirely  de- 
pendent on  freshets.  In  the  early  days 
li  was  verv  probable  the  weirs  were 
much  smaller  than  they  were  at  pre- 
sent. 

Walter  Rubidge.  farmer,  residing  in 
the  district  of  Graaff-Reinet,  said  be 
had  close  on  forty  years'  experience 
of  fairming.  He  was  a  member  of  Par- 
liament for  Vryburg.  He  would  con- 
aider  himself  a  fortunate  lower  pro- 
prietor. flSofth  pauities  to  the  eoit 
•were  friends  of  his.  Witness 
took  a  greo/t  iniereet  in  the  irri- 
gation question.  During  the  present 
year  he  was  seked  to  inspect  Culm- 
stock  and  Varkenskop.  In  1868,  wit- 
ness saw  Culmstock.  Witness  had  been 
to  the  farms  on  and  o£F  since  then.  In 
August  Iset  witness  was  on  the  farms, 
and  also  on  last  Saturday.  Here  and 
thfive  he  took  meseurements  of  the 
weirs  and  sluices  in  ^  August.  There 
was  no  water  in  the  river.  The  water- 
works of  both  jparties  were  inspected, 
with  the  exception  of  the  works  made 
from  the  Rooi  Spruit.  To  the  best 
of  his  recollection,  the  water  wse  still 
in  the  dam  at  weir  No.  1.  The  fur- 
row from  weir  No.  2  was  blocked  up; 
it  would  only  take  flood  water  on  the 
east.  There  was  just  a  little  oozing 
of  water  in  the  river  bed  below  weir 
No.  2.  The  furrow  on  the  west,  ait 
weir  No.  3.  would  take  water  down  to 
the  vlei.  That  was  wmply  a  construc- 
tion to  take  flood  water;  he  had  never 
Been  perennial  waAer  there.  The  dams 
at  the  windpwffl  could  ipot  be  used  for 


irrigation.  There  waa  no  indicaition 
that  the  veld,  through  carelessness,  was 
watered  from  the  dams.  At  the  deep 
footoath  and  a  little  below  it  there  was 
a  clear  stream— appsrontly  permanent. 
About  100,000  gallons  were  flowing  at 
the  deep  footpsi^h.  Tlie  water  might 
percolate  down,  but  it  must  go  down 
to  the  plaintiffs  dam.  The  Rooi 
Spruit  would  go  to  Varkenskop,  and 
then  to  Culmstook.  The  lucenw  at 
plaintiff's  homestead  lands  showed  signs 
of  growth.  In  1904  the  ostriches  were 
dyinflr  on  the  defendant's  farm.  In 
August  this  year  he  saw  a  splendid 
suppljr  of  water  below  weir  4,  on  the 
plaintiff*s  farm.  The  water  at  the 
cutting  was  between  60,000  and  80.000 
gallons.  Culmstock  wss  decidedly  bet- 
ter off  for  water  than  Varkenskop. 
There  wss  a  great  deal  more  water  at 
Culmatock  now  than  when  he  visited  it 
in  1868-1869,  and  then  there  was  an 
exceptionaHy  ^ood  season.  He  would 
not  say,  judging  by  the  lucerne,  that 
the  plaintiff  had  suffered  a  great  deal 
of  damage.  Much  more  could  be  done 
to  take  water  from  the  Rooi  Spruft 
when  it  wss  flooded.  It  would  be 
a  dangerous  experiment  to  attempt  ^  to 
irrigate  the  flood  from  the  eastern  side 
of  weir  4  on  account  of  die  ground 
being  very  steep  and  full  of  sluits.  It 
would  be  more  convenient  to  flood  the 
*  new  lucerne  lands  from  the  Rooi  Spruit 
than  the  river.  The  furrow  from  the 
weir  was  decidedly  not  a  flooding  fur- 
row. Varkenskop  was  almost  entirely 
dependent  on  flooding.  With  a  sharp 
thunderstorm  over  the  catchment  area, 
it  would  take  a  considerable  quantity 
of  water  to  fill  the  dam  at 
Grasbult.  All  such  water  was  now 
cut  off  by  the  flooding  water.  Grossing 
the  bridge  towards  Schoombie  Station, 
he  noticed  the  bed  of  the  river  was  wet. 
Witness  corroborated  Mr.  Collett  on 
that  point.  Below  Temple  Farm,  in  the 
Brakke  River,  there  was  about  100,000 
gallons  of  clear  water  flowing.  The 
water  from  Grasbult  would  go  to  the 
Thebus  River.  The  lucerne  lands  at 
Forbes's  farm  were  in  fairly  good  con- 
dition. The  water  was  standing  well 
back,  and  Forbes  said  it  was  about  four 
feet  deep.  Forbes  said  the  water  came 
from  the  banks  of  the  river  up  to  the 
willow  tree.  The  cutting  on  that  farm 
would  put  a  large  area  under  irrigation. 
Witness  could  see  that  water  had  'been 
over  about  100  acres.  Four  or  five  acres 
were  distinctly  marked,  and  witness  ask- 
ed him  if  that  was  the  piece  he  describ- 
ed as  big  OS  the  Court-house,  and  re- 
marked tnat  was  a  big  Court-house.  He 
estimated  200,000  gallons  at  the  Teast 
was  flowing  into  Forbes's  dam.  The 
water  was  perfectly  clear.  There  was 
a  considerable  flow  of  water  from  weir 
number  five,  irrigating  the  homestead 
lands  of  the  plaintiff.  The  defendant, 
in  his  opinion,  did  not  make  excessive 
use    of  flood   water.       A   ^mall   freshet 


t  - 


908 


"CAPE  TIMES"  LAW  REPORTS. 


coming  down  the  river  would  not  be  cap- 
Able  of  diviaion.  He  would  not  like 
to  undertake  a  fair  division  of  the  flood 
water.  The  quantity  and  velocity  being 
•o  uncertain.  With  a  permanent  fk)w  it 
would  be  i>068iblo.  He  certainly  thought 
it  was  to  the  benefit  of  the  lower  pro- 
prietora  that  the  defendant  should  take 
tbe  flood  water  aa  lie  did ;  it  strengthen- 
ed the  underground  sources. 

Cross-examined  by  Sir  H.  Juta :  L*a.st 
year  there  were  two  lucerne  Lands  with 
very  nice  stacks  on  the  defendant's 
farm,  but  he  could  not  explain  why  the 
ostriches  were  dying.  There  waa  nothing 
to  show  that  the  water  had  overflown 
at  the  two  amaU  dams  at  the  windmill. 
He  was  not  prepared  to  say  tluit  Mr. 
Charles  Southcy  suffered  no  damage  to 
his  lucerne. 

Walter  Haltz,  farmer,  of  the  district 
of  Wodehouse,  stated  he  knew  the 
parties  to  the  suit  very  casually.  Never 
before  the  17th  of  u\»  month  had  he 
been  to  Culmstock.  He  had  a  great 
deal  of  experience  of  waterworks,  and 
was  part  proprietor  in  the  Carnarvon 
dam.  He  had  aome  experience  of  the 
meaaurement  of  flowing  water.  He 'came 
to  Varkenskop  at  the  invitation  of  the 
defendant,  and  saw  weirs  1,  2,  and  3. 
That  afternoon  he  estimated  the  flow 
at  weir  number  1  at  30,000  to  35,000 
gallons.  There  was  no  running  flood 
water  in  the  river.  The  flood  furrow 
on  the  east  appeared  to  him  to  be  a 
reasonable  construction  for  taking  flood 
water.  There  was  no  water  between 
weiiB  numbens  2  and  3.  Going  across 
the  railway  bridge  kiter  on  ho  noticed 
a  little  water  from  a  freshet  up  above. 
He  corroborated  the  evidence  given  by 
Mr.  CoUett  and  Mr.  Rubidge  as  to 
what  they  saw  and  what  Mr.  Forbes 
had  said.  Near  Forbes  cutting,  about 
three  or  four  acres  showed  traces  of 
having  been  flooded,  and  lower  down 
fifty  or  sixty  morgen,  though  not  so  clear 
had  apparently  been  flooded.  The  largest 
permanent  perennial  stream  he  had  seen 
was  above  Forbes's  dam  on  Culm- 
stock,  consisting  of  about  200,000  gal- 
lons. He  took  it  as  a  permanent  stream. 
The  flood  water  must  go  back  to  the 
Brakke  River.  The  permanent  water  for 
Culmstock  was  infinitely  more  than  that 
on  Varkenskop.  The  water  above  Weir 
3  and  below  Weir  4  was  found  to  be 
strengthened  by  percolation  of  the  flood 
water.  There  were  standing  pools  at  the 
windmill.  There  was  nothmg  unusual 
there ;  if  the  dams  had  been  his  he 
would  have  had  them  made  a  little 
larffe.  There  was  no  trace  that  the  dam 
had  overflown.  If  the  cutting  was  not 
obstructed  at  Weir  4  by  the  bank  the 
water  would  go  into  the  Bnakke  River. 
All  the  lucerne  the^  saw  was  in  a  rea- 
sonably good  condition.  He  could  not 
see  any  practicable  scheme  that  would 
divide  the  small  freshets.  It  was  very 
much  more  important  to  have  perma- 
nent water  instead  of  flood  waters,  and 


he  considered  the  defendant  was  materi- 
ally benefiting  the  plaintiff.  To  lay 
down  a  rule  as  to  the  divisions  of  flood 
water  would  be  unpracticable  and  un- 
just. It  was  incidental  to  flood  irriga- 
tion to  take  the  smaller  freshets. 

Cross-examined  by  Sir  II.  Juta:  The 
water  ho  saw  flowing  into  Weir  No.  1 
had  all  the  appearance  of  being  a  per- 
manent stream.  The  strength  of  the 
water  varied  very  much.  A  fairly  good 
idea  could  be  formed  as  to  the  volume  of 
water  required  to  go  down  the  river 
to  Culmstock.  It  was  difficult  to  know 
where  the  water  in  a  deep  hole  in  the 
bed  of  the  river  below  Weir  3  went  to, 
but  in  the  grasbult  side  it  would  i>erco- 
late  towards  the  lowest  place.  He  did 
not  sec  the  oozing  in  dam  No.  2. 

Re-examined  by  Mr.  Schreiner:  The 
catchment  area  of  from  three  to  four 
square  miles  was  a  particularly  good 
catchment  for  impounding  water.  The 
whole  thing  seemed  to  him  to  be  a  ease 
of   the   value  of   surface   flooding. 

The  witness  proceeded  to  aay 
that  had  he  been  in  the  f>laoe  of 
the  lower  proprietor  he  would  have 
joined  hands  with  the  top  man  and  help- 
ed to  pay  expense  to  make  his  weirs, 
dams,  etc.,  as  strong  as  possible,  and 
keep  all  the  water  on  the  land  for  the 
purpose  of  establishing  permanent 
spring  streams. 

Frederick  William  Pack,  formerly  a 
tutor  at  Varkenskop  stated  Mr.  Oscar 
Southcy  was  a  pupil  of  his.  He  was 
there  from  November,  1894,  to  January, 
1901.  He  taught  Mr.  Oscar  Southey 
how  to  take  rain-gauges.  Oscar  Southev 
made  some  of  the  entries  in  the  book 
and  witness  made  some.  The  entries 
were  absolutely  correct.  Witness  de- 
posed to  the  accuracy  of  particular  en- 
tries which  he  remembered  as  being 
associated  with  certain  incidents,  one  be- 
ing the  visit  of  the  Governor,  and  an- 
other an  occasion  on  which  photo- 
graphs (produced)  were  taken.  These 
photographs  were  taken  at  a  time  when 
there  was  a  small  flow.  The  river  usu- 
ally went  over  No.  3  weir.  The  entry 
in  the  book,  *'  river  down/'  was,  as  a 
rule,  made  when  the  water  went  over 
Weir  No.  3,  but  it  did  not  always  mean 
that. 

Charles  Southey  (recalled)  stated  that 
the  cutting  above  Weir  4  was  with  the 
intention  of  taking  flood-water  on  to 
the  vlei  from  tbo^  river.  Its  appearance 
might  easily  deceive  Mr.  Rubidge.  Tlie 
work   was  not  abandoned. 

Mr.  Sbhreiner  closed  his  case. 

Sir  H.  Joata:  The  defence  vaieed  in 
the  plea  does  not  agree  with  the  line 
adopted  by  the  defence  in  the  course  of 
the  case.  The  plea  alleges  that  this  river 
is  a  public  perennial  stream.  The  de- 
lfcn<lant  acbrnta  that  we  are  entitled  to 
a  reasonable  share  of  tbe  water ;  but  in 
spite  of  this  admission  ho  has  daverted 
an  unreasonable  quantity.  In  our  de> 
claration    wc    make  no    distinction  be- 


"CAt^B  TIMES"  LAW  tlBt>OtltS. 


dod 


twecn  flood  wat«r  and  the  ordinary 
flow.  The  dofcndant  in  hie  ploa  makes 
i)o  distinction,  but  admitting  iho  diver- 
sion of  the  w<a;ter,  he  said  it  wm  *'  sur- 
plus 'flood  water."  He  admit«  that  he 
can  flood  dry  tracts  of  land  only  when 
the  lower  proprietors  cannot  use  the 
water.  He  does  not  claim  the  right  to 
divert  flmall  floods  or  froshel*.  Ho  s&ys 
nothing  about  a  wiuterahed,  but  says 
<4iat  he  returns  the  w<ater  to  the  stream. 
He  now  claima  to  take  all  the  flood 
w«ter  he  can  gctf;.  That  is  quite  a  dif- 
ferent case  from  the  one  set  up  in  the 
|ilea.  Alt  last  lie  denies  tba/t  tnis  river 
M  a  perennial  stream,  save  as  between 
binisclf  and  Schoomtoie.  The  evidence 
shows  that  some  of  the  water  of  tni.-^ 
river  flows  in  a  defined  underground 
channel.  The  defeiKfant  now  says  that 
■wc  arc  not  entitled  to  any  increase  of 
mra^cr  resulting  from  rains,  and  that  in 
respect  of  such  increased  flo^  he  is 
dominus  fiuminU.  Everv  puUic  peren- 
nial stream  varies  mucn  in  force  at 
^larious  seasons;  but  where  does  the 
defen<kint  wish  to  dranv  the  line ;  and 
i'ow  much  water  does  he  say  must  bo 
in  the  rover  before  he  can  aoprive  us 
of  our  2iro  raUi  share  of  water?  What 
18  *'  usual  and  permanent  flow  "7  A 
man  is  enltitled  to  do  as  he  likee  with 
the  rain  water  w)uch  flails  on  his  land, 
provided  it  does  not  find  its  way  into 
tihe  channel  of  a  public  perennial 
stream ;  but  if  it  does  that,  he  is  in  no 
bcitter  position  than  any  other  riparian 
proprietor.  The  evidence  shows  that 
this  liver  is  largely  dependent  on  rains. 
I<t  is  said  that  when  wtuter  comes  down 
all  the  upper  proprietors  take  all  they 
oan.  T^t  may  have  been  so,  but  in 
tlie  days  to  which  tliat  evidence  refers 
dams  had  not  been  built  to  enafble  an 
upper  proprietor  to  take  all  the  water. 
In  this  case  huge  work^  have  bevn  con- 
Mr  uctcd  so  as  to  enable  the  defendant 
to  turn  a  large  quantity  of  water  on  to 
his  dry  veld  lands.  He  now  seeiins  to 
say  that  he  is  entitled  to  aill  the  water 
ill  the  river,  save  »pring  water;  but 
!«prings  de)>cnd  on  rains,  and  I  can  find 
no  authonty  for  drawing  any  difltfnc- 
tion  between  rain  water  and  spring 
"waler  in  a  river.  The  defen<kint  fla.>Ti 
that  the  lie  of  the  land  is  sudi  that  the 
water  put  on  his  veld  mu^  fiml  its  way 
b«<k  to  the  river.  As  far  as  l4ie  eawteni 
friile  is  coiK«rned,  it  is  returned  to  the 
river  at  a  place  where  it  cannot  be 
in«ed.  An  upt)er  proprieitor  may  not  re- 
tairn  the  water  wheresoever  he  iile«s€>s 
on  the  land  of  the  lower  ]iropriotor. 
He  must  return  it  into  the  stream  at  a 
|K>iut  aix)ve  where  the  stream  reaches 
me  lands  of  the  lower  proprietor.  In 
t^is  case  the  water  woura  not  naturally 
flow  on  to  defendant's  veld,  but  on  to 
our  ground.  It  has  been  artificially  di- 
Teited.  Water  wdU  not  percolate 
through  barren  veVd  unless  it  is  poured 
on  it  in  very  large  quantities,  in  this 
c«Me  we  have  no  evidence  as  to  percola- 


tdon  and  return  of  the  water  to  the 
river.  W-ater  will  not  percolate  through 
land  which  is  not  constantly  irrigatea. 

Then  as  to  the  weirs.  There  are  three 
of  them,  and  what  Nos.  1  and  2  do  not 
catch  No.  3  does. 

[Counsel  described  the  construction  of 
these  weirs  and  certain  beams  connected 
witli  them,  which  obstruct  the  flow  of 
water.  Counsel  also  dealt  with  other 
portions  of  the  evidence  with  a  view  of 
showing  that  often  when  there  was 
practically  no  water  in  the  Brak  River 
defendant's  farm  was  flooded,  while  that 
of  plaintiff  had  no  water.] 

We  have  suffered  damages,  and  de- 
fendant should  not  be  allowed  to  use 
tihis  unreasonaJble  quantity  of  water ; 
and  I  submit  that  if  the  Court  is  with 
me  in  thi^,  it  will  leave  the  parties  to 
settle  their  differences,  either  by  arbi- 
tration or  by  the  judgment  of  a  Wkter 
Court.  I  oannot  find  any  authorities 
in  our  law  to  warrant  any  distinction 
between  ordinary  flow  and  flood  water 
in  a  perennial  stream :  but  sec  the 
judgment  of  Kotz6,  C.J.,  in  Meyer 
and  Others  v.  Jokannenburg  Watcmrorks 
ComjMtJiy  (reported  in  "  Cai>e  La/w 
Journal"  for  1893,  p.  159);  An{fell  on 
Waterraurseti  p.  544,  where  see  judff- 
ment  of  Tenterdcn,  L.Oh.  (this  case  is 
reportfKl  1  B.  and  A.,  874  and  887); 
Broadhent  v.  liamsbottom  (11  Kxch., 
615),  Ooulson  and  Poi^bes  (Law  of 
Walters,  p.  136),  dealing  with  the  obli- 
gation of  receiving  flood  waters^— are  all 
in  favour  of  my  contention,  viz.,  that 
flood  waters  are  an  integral  part  of  a 
public  stream.  See  also  Stmlten  v. 
Cofletf  (9  C.T.R.,  620).  particMilarly  the 
judgment  of  De  Villiers,   C.J. 

[Maasdorp.  J. :  In  that  case  the  ques- 
tion of  fkx)d   water   was  not  discussed.] 

No,  but  the  matter  was  alluded  to. 
See  alM>  SlrvfytH  v.  Cuyc  Distrirt 
Water irork-9  Company  (9  Juta,  68) ; 
HUeoek  v.  J)c  Wet  (1  A-p.  (^.,  58).  A 
man  may  do  wlwvt  he  likes  with  water 
falling  on  his  own  ground  until  it  goes 
into  a  puiblic  e^ ream,  but  not  after  mat, 
and  he  mu&t  not  divert  the  water  of 
tjiich  stream. 

Mr.  Schreriner:  The  trend  of  my  ar- 
giwnent  will  be  to  slwiw  (1)  tliat  the  de- 
fendant is  not  bound  to  allow  flood 
water  to  flow  down  below  his  land.  (2) 
Tliat  even  if  such  an  obligation  l>e  in- 
cunvlient  \x\w\\  him,  he  has  not.  macie  an 
unreasonable  use  of  the  water. 

The  first  of  the.^e  i)oiiUs  has  iiever 
been  decided  in  the  Courts  of  this  col- 
ony. A  man  may  claim  aqua  Aujferfluens 
on  his  land  by  tlie  title  of  orenpatio, 
just  as  he  may  claim  ftrae  naturae  <>r 
any  other  wild  thing.  I  contend  that 
flood  waiter  "in  a  river  is  subject  to  the 
iiaime  rules  as  water  on  a  man's  land. 
Has  title  is  oecuvatio.  He  oan  take  it, 
and  do  as  he  liices  with  it.  Institutes 
of  the  La-w  of  Cai>e  Colony,  by  Maas- 
dorp,  C.J.  (Bk.  2,  Gh.  13).  He  there 
refers  to  De  Ptueoe  v.  Uawton  (1  Roscoe, 


I 


^16 


«i 


CAPE  TIMES"  LAW  RBPORti^. 


135),  aiid  to  Sirubtn  v.  Cape  Toicn 
Watcrworkt  (9  Juta,  68).  See  this  oaee 
aleo  aa  to  -waiter  Bom'ing  by  a  Bubter- 
raiioan  passage.  I  wish  to  flihow  that 
my  contention  is  based  on  Oovnmon  Laiw 
authorities,  that  the  principles  I  ad- 
vance are  founded  on  rifriit  reason,  and 
tiliat  no  decision  of  this  or  any  other 
C)ouit  of  thi»  country  is  agvunst  me. 
Counsel  for  the  plaintiff  pleads  dearth 
of  authority  to  support  his  ooniention. 
As  plaintiff  he  was  bound  tyo  prove  His 
case  by  authority.  1  have  found  author- 
ity for  my  posiftion.  Voet  (43-13).  As- 
suming our  judicial  made  law  as  U> 
Hater  in  the  summer  season,  there  's  no 
authority  for  the  grantanff  of  an  inter- 
dttot  to  make  the  water  *'  flow  othepwase 
{(iliter)  than  it  did  in  the  previous  sum- 
mer season. "  We  have  had  the  use  of 
this  wa/ter  for  several  summer  seasons. 
Voet  regards  tho  sujnracr  flow  as  the 
ivaitunal  normal  flow.  But  my  point  is 
that  the  year  is  here  divided  into  sum- 
mer and  winter,  and  tihe  time  when 
water  is  scarce  must  be  regarded  as 
tlMvt  of  the  normal  flow.  The  passage 
I  have  cited  is  by  no  means  obsoiefte; 
though  it  is  true  thait  in  Htmgh  v.  Van 
tier  Merwe  (Buch.,  1874,  p.  148)  one  of 
our  then  judges  criticises  this 
title  as  somewhat  inconsistent  with 
with  Voet  (39-3-1).  But  that  refers  to 
the  right  of  the  lower  proprietor  to 
keep  off  water.  His  Lordship's  criti- 
cison  on  that-  point  shows  thait  he  was 
not  thinking  of  storm  water.  See  his 
remarks  on  Dig.  (8-3-17):  **  FJood- 
warter  means  water  in  the  wateroourae. 
Of  course,  everybody  may  do  as  he  likes 
with  overflow  water  which  runs  on  to 
his  tend.  ."  In  our  plea,  by  **  flood- 
water  "  we  do  not  mean  only  waiter 
coming  down  a^ter  big  floods.  In  par. 
6  of  our  plea  we  allude  only  to  special 
portions  of  our  land.  The  river  can 
come  down  only  after  heavy  raans.  The 
levels  are  auch  that  wo  could  not  take 
water  from  the  ordinary  flaw  either  at 
weir  No.  2  or  No.  3.  All  authorities 
speak  of  the  ordinary  flow  as  something 
ascertainable  with   precision.      Retief   v. 


lAtuw  (Buch.  Ap.,  1874,  p.   165)  may  be 
Van  der  Merfce  (Bucii.,  1874,   Ap.,  148) 


w-  -  ■--       f  —  '^ —  ^ —  ,      

regarded   as   overruled 


Hough     V 


8ee  part icu lady  the  tests  as  to  proper 
user  by  the  uoper  proprietor.  My  con 
tentious  are  (1)  that  we  are  entitled  to 
take  ail  the  flood  water  we  can  get 
(2)  That  no  decision  has  ever  yet  deiter 
mined  the  use  we  mav  make  of  it.  In 
Iteiief  v.  lAmw  (Bucn.,  Ap.,  1874,  p 
165)  there  was  no '  question  of  storm 
wa/ter,  but  of  streams  which  hardly 
flowed  at  all.  See  the  judgment  oi 
Oloeto.  J.,  Groitius  (2-36-16),  Nathan 
'*  Com-mon  Law  of  South  Africa "  (Vol. 
1,  pp.  486,  par.  19).  The  author  there 
Aununarises  Voet  3&— 3  and  4.  All  our 
Btoman-IXiitcih  authorities  deal  with  the 
quastion  of  storm  wa^er  under  the  title 
"  De  aquam  pulviae  arrendo.  There  is 
a     remedy     against  me    if   I   turn   my 


(storm  watcdr  oii  to  my  neiglUjour's  land, 
but  he  has  no  remedy  if  I  keen  it  off 
his  land,  no  matter  horw  usetul  he 
might  have  found  it.  His  only  remedy 
is  given  in  Voet  43-13,  which  has  nothing 
to  do  with  storm  water.  See  also  Voei 
(8-3-6),  Dig.  (39-3-11  and  21).  Van 
Leeuwin  Cq\i».  Foren.  (2-1-6)  on  title 
ibv  occupation  and  flowing  streams. 
The  sole  authoritv  against  me  is  the 
case  of  Meyer  ana  Others  v.  Johattne*- 
burp  Waterworks  (**  Cai>e  Law  Jour- 
nal" for  1893,  p.  159).  T^e  judgment 
of  Kotz^,  C.J.,  was  delivered  soon  after 
Struben  v.  Cape  Waterworks.  Evidently 
His  Lordship  had  studied  this  latter 
case,  aixl  did  not  ajpprove  of  the  judg- 
■inent  (see  "  Cape  I^w  Journal,'*  part 
2,  vol.  10,  p.  i67).  Here  the  channel 
from  whdcJi  the  flood  water  was  taken 
was  on  defendtant's  own  property,  and 
if  a  man  denies  the  rights  of  another 
to  do  someithing  on  his  own  property, 
he  who  denies  must  prove  the  restric- 
tion. The  rigbts  o(  lower  proprietors 
to  ordinary  water  cannot  be  extended 
to  sftorm  water.  Struben  v.  Cape  Water- 
icorks  Company  quite  supports  my  oon- 
tention. 

[Maasdorp,  J. :  What  is  the  exoefrtion 
to  a  man's  right  to  deal  with  water  on 
his  own   land?] 

It  is  stated  in  Vermaak  v.  Palmer 
(Bucii.,  1876,  p.  25).  l^at  case  was 
commented  on  in  Jordaan  v,  Winkel- 
man  (Buch.  1879,  p.  79).  See  Burge 
(vol.  3,  p.  421),  wncre  he  cites  Cod., 
3-4-47).  All  authorities  speak  of  a 
source  when  speaking  of  a  river;  but 
we  cannot  speak  of  the  source  of  flood 
water.  In  Vermaak  v.  Palmer^  Da 
Villiers  C.J.,  refers  to  Voet  (8-3-6)  cit- 
ing Ood,  (3-34-10).  In  Struben's  case  h^ 
said  that  undei^round  water  is  in  flia 
dame  position  as  storm  water,  citing 
Dig.  (39-3-21).  Mouton  v.  Van  dT 
Merwe  (Buch.,  1876.  p.  18)  did  not  turu 
on  the  question  of  prescription,  but  oc 
user  exercised  without  restraint. —  Vc^t 
(39-3-6).  In  Jordaan  v.  Winkelman,  tii*: 
leading  case  on  prescription,  Vermaak 
r.  Palmer,  was  strongly  relied  upoji 
Kxistimatio  eircumrolnUium  is  t-he  best 
test  as  to  whether  a  stream  is  pubbc 
or  private,  and  hence  the  importance  d 
the  evidence  of  local  witnesses,  ^^ff 
V.  Van  der  Merire  evidently  deals  witti 
the  accustomed  flow.  If  the  lower  pro- 
prietors on  the  Liesbeek  River  had  iiad 
a  rigiht  to  storm  water,  it  would  not 
have  been  so  necessary  to  discuss  what 
was  "  accustomed  flow  "  or  to  limit  the 
interdict  so  strictly  to  '*  accustomed 
flow."  Van  HeertUn  v.  Visser  (1  Ap., 
5)  agaan  deals  with  limitations  of  toe 
rights  of  an  upper  proprietor  to  water. 
Tnere  the  appeal  was  aismissed,  but  see 
the  judgment  of  De  Villiers,  C.J.  Voei 
(43-12)  must  -be  read  in  the  light  of  this 
judgment.  As  to  wiMut  is  a  public  river* 
see  Dig.  (43-12-1).  As  to  the  windmill, 
we  say  that  by  its  means  we  have  taken 


"cApb  TIMES"  Law  reports. 


911 


only  water  for  ordinary  use  for  cnttle, 
but  ihe  plaintiff  says  thai  we  have  used 
the    water  extravagantly. 

[Maasdoip,  J.  :  If  the  defendant  »a}'s 
that  he  can  take  all  the  flood  water, 
why  doe*  he  rai:H»  the  jwint  tha<t  he  re- 
turn*  it  to  the  river?] 

Weir  No.  1  takes  none  of  the  ordi- 
nary water.  *  Nos.  2  and  3  take  only 
what  he  is  entitled  t-o.  Bt^tween  weire 
No8.  2  and  3  there  is  never  any  flow 
on  the  8urfaee.  Below  No.  3  the  sur- 
face flow  reapi)oarB.  It  is  our  right 
under  our  former  judgment,  and  in  vir- 
tue of  our  purchase  from  Schoonibie,  to 
take  all   the  water  at  weir  No.  2. 

I^Maasdorp,  J. :  You  eeom  to  divide 
tilus  river  mto  several  public  perennial 
stream^).] 

Tha4:  is  so ;  below  No.  3  it  is  a  peren- 
nial  i9treajii. 

[Maasdorp,  J. :  If  it  is  not  perennial 
above  that,  of  course  you  are  entitled 
to  all  the   water.] 

It  is  perennial  in  a  sense.  It  goes 
down  to  No.  2,  and  then  is  lost  till  ^t 
rises  below  No.  3,  but  we  say  that  the 
Bprinjge  below  No.  3  are  caused  by  our 
floodnig   operations. 

IMaasdorp,  J. :  I  think  the  evidence 
shows  that  tlie  stream  is  perennial,  but 
you  cannot  break  it  up  into  sections.] 

Then  we  say  fetnt  our  weirs  do  not 
4>beiiiruct  all  Ifiie  w«ter.  Some  goes  un- 
der the  weirs  and  reappears  on  plain- 
tiff's prof>enty.  This  is  a  case  in  which 
^le  plainftiff  has  acquiesced,  and  volenti 
tton  fit  injuria.  See  Voct  (39-3-5).  This 
passage  will  help  us  in  con«ideriug  the 
case  at  large.  The  plaimtiff  knows  tihat 
weir  No.  1  was  built  in  1872.  Wear  No. 
2  is  20  years  old. 

[Counsel  dealt  -with  the  evidence  as 
to  the  quaiiitity  of  water  taken  out  of 
the  atreaon  by  the  defendant,  and  the 
dneane  whereby  it  is  removed,  and  pro- 
ceeded to  argue  the  consent  of  the 
pkiiAiff  from  the  fact  that  there  had 
never  been  a  denuntiatio  novi  operut.] 

The  plaintiff  was  not  quite  sure  that 
the  wcirs  were  not  an  advanita^e  to 
him.  True,  be  found  many  years  after- 
utiardfi  that  they  were  not;  but  he  can- 
not go  back  on  his  previous  belief.  He 
ha»  broug'ht  no  aotion  de  damno  iufrrto ; 
he  lies  by  nearly  thirty  ^ears,  and  now 
comes  forward  and  objects,  and  vir- 
tually claims  a  better  position  than  that 
of  a  dominua  fiuminis.  The  right  of  a 
lower  proprietor  is  not  a  ser^utude ;  it 
arises  ex  fiatura  loci.  Kdmeada  v. 
Srhecprrs  (1  Juta,  317).  This  is  a  clear 
case  of  lying  bye.  The  doctrine  on 
tiii«  i>oint  which  applies  to  a  reigistered 
servitude,  applies  a  fortiori  to  a  more 
ri^bt  of  user.  Even  a  dominant  tene- 
ment cannot  after  so  many  years  de- 
mand the  removal  of  works  constructed 
by  the  servient  tenement;  much  less  can 
a  man  do  so  who  has  a  mere  right  of 
user.  It  is  impossible  to  apnortion 
flood  wat«r.     It  is  a  quid  incertum.      To 


»t  tempt  to  do  any  tiling  of  the  kind 
would  be  to  put  a  »toD  to  the  defen- 
dant's enterprise,  without  l)enefitting 
anybody  else.  Plaintiff  has  been  con- 
tent to  lie  bye,  and  qui  tacet  consentiri 
Hdetur. 

ICounticl  proceeded  to  deal  with  the 
correspondence,  and  with  various  facte 
of  the  case.] 

Sir  li.  Jufca  (in  reply) :  In  my  argu- 
ment in  chief,  I  haid  thout  I  could  find 
no  authoriiy  for  the  opinion  that  water 
which  once  finds  its  way  into  a  publio 
stream  ie  not  part  and  parcel  of  that 
stream.  You  cannot  divide  that  w^ater 
in  a  stream  into  layers,  and  say  "  \so 
much  is  ordiikary  flow,  and  so  much  Ls 
storm  water."  No  legal  autliority  has 
been  cited  on  the  oth«»r  ride  for  any 
such    proposition  Counsel    relies    on 

Voet  (43,  13),  and  Cod.  (8,  6,  3).  These 
■were  relied  upon  in  Howe  v.  Van  der 
Menre.  Thcbo  authorities  have  since 
bcHMi  discredited,  aaid  if  thejr  aie  to  bo 
upheld,  all  our  later  decisions  as  to 
water  rights  are  wrong.  What  is 
"  cuistomary  flow  "  ?  Every  stream  be- 
gins with  a  fountain,  and  ih  augmentod 
by  tributaries.  It  has  been  argued 
on  the  other  side  tliat  tributaries  ar«3 
at/uae  fiurict,  and  hence  the  <>nlv  cus- 
tomary flow  must  bo  that  derivecT  from 
the  fans.  In  what  other  way  can  the 
customary  flow  be  gauged?  Counsel 
r^ees  this  difficulty^  and  takes  refuge  in 
Voct  (43,  13).  That  i>amagc  docs  not 
consist  with  our  law,  since,  according  to 
us,  if  a  stream  dries  up,  it  does  not 
necessarily  cease  to  bo  a  public  i>eronnial 
stream. 

[Maa«dorp,  J. :  Voct  is  going  back 
on   Roman   Law.] 

If  a  rainfall  ie  to  make  no  difference 
in  the  customary  flow,  what  Ueconies 
of  water  coming  from  rainis,  w^liich  cause 
the  river  to  flow  aga>in  after  a  X)eriod 
of  drought? 

[Maasdorp,  J. :  Permanent  waters  are 
produced  by  soakagee.] 

Just  so.         But   lot    us    suppose   that 

1903  was    an    exceptionally    dry    year ; 

1904  was  wet,  but  in  1905  the  flow  of 
water  was  weak.  In  such  a  cane  the 
upper  proprietor  can  take  in  1904  all 
the  water,  save  such  as  ran  in  1903. 
In  1906  tlu?  lower  proprietor  can  in- 
si^rt  that  the  water  should  come  down 
as  it  did  iin  1904,  and  then  the  upper 
proprietor  will  8[et  nothing.  Accord- 
ing to  Van  Srhaltryk  v.  Herman  (14 
S.C.R..  214),  in  times  of  scarcity  each 
proprietor  must  alxate.  As  to  tlio 
rnterdict,  **  Ne  f/uifl  fiat  in  fiuminc  indt- 
liro,  f/r.,"  Pothier  trajislates  *S//t7rr" 
as  referring  to  a  different  courwi  of 
the  stream,  and  not  to  any  change  <»f 
tmo  volume  of  water  therein.  (See 
the  latter  part  of  the  Edict).  Such  an 
interpretation  does  away  with  all  inoon- 
eietencies  wii-ich  the  Roman  Law  may 
appear  to  preseAt  to  our  own  law. 
Hence  this  passage  of  the  Ekiict  has 
nothing  to  do  with  this  case.       As  to 


dl2 


•«CAPE  TIMES"  LAW  HEPOETS. 


occupancy  8oe  the  latter  part  of 
Story^s  judgmentt  given  in  OaU  on 
Saiementa  (p.  205). 

Cur.  Adv,    VulL 

Postea  (December  15). 

Maasdorp,  J.,  aaid:  The  plain- 
tiff is  the  owner  of  the  farm 
Culmstock,  which  adjoiiie  the  farm 
Barkemkop.  of  the  defendant,  and 
a  perennial  stream  called  the  Brak 
River,  after  flowing  through  the  land 
of  the  defendant,  pasacs  through  that 
of  the  plaintiff.  The  plaintiff  states  in 
his  declaration  that  he  as  riparian  pro- 
prietor upon  the  said  river,  is  entitled 
to  the  use  of  a  reasonable  share  of  the 
water  in  the  stream,  and  he  complains 
that  for  some  years  past  up  to  the  pre- 
sent time,  the  defendant  has  been  gradu- 
ally, from  year  to  year,  by  various 
works  constructed  by  him.  taking  more 
and  more  water  out  of  tne  stream,  by 
means  of  which  he  has  placed  large 
tracts  of  land,  hitherto  dry  and  still  un- 
cultivated, under  irrigation.  He  says 
the  defendant  has  diverted  largo  quan- 
tities of  water  from  the  stream  into  an 
entirelT  different  catchment  area  or 
watershed,  and  does  not  after  user  of 
tlie  water  return  the  same  into  the 
river  again.  That  the  defendant  also 
draws  a  large  quantity  of  water  out  of 
the  stream  by  means  of  a  windmill. 
That  in  the  result  the  defendant  takes 
more  than  a  reasonable  share  of  the 
water,  to  the  injurv  of  the  plaintiff, 
who  is  unable  to  cultivate  his  lands  as 
he  used  to,  or  to  water  his  lucerne 
fields,  and  has  consequently  suffered 
damage  in  the  sum  of  £500.  He  asks 
(a)  an  order  declaring  that  ho  is  en- 
titled to  the  user  of  a  reasonable  share 
of  the  water  in  the  stream ;  (b)  an  or- 
der declaring  that  the  defendant  has 
used  niore  than  a  reasonable  share,  and 
directing  him  to  return  to  the  stream 
water  diverted  therefrom  after  user  by 
him;  (c)  an  interdict  restraining  the  de- 
fendant from  using  more  than  a  reason- 
able share  of  the  water;  (d)  the  sum  of 
£500  as  damages. 

The  defendant,  in  hie  plea^  admits 
that  he  built  two  weirs  in  the  Brak 
River,  but  says  that  only  one  is  used  for 
diverting  his  share  of  the  ordinary  flow 
of  the  water.  He  also  admits  that  dur- 
ing the  period  mentioned  by  the  plain- 
tiff ho  has  continued  increasingly  to 
divert  water  from  the  river,  but  such 
increased  diversion  has  been  in  respect 
only  of  surplus  flood  water  after  good 
rains,  and  the  water  so  divert- 
ed on  to  Varkenskop  could  not,  owing 
to  the  quantity  of  the  flood  water  and 
tho  lie  of  the  country,  have  been  utilis- 
ed by  lower  proprietors  and  it  would 
have  been  waste  water  but  for  the  de- 
fendant's user.  The  defendant  also 
says  that  he  is  almost  entirely  depend- 
ent on  flood  water  to  irrip^ate  his  crops. 
He  states^  that  the  plaintiff  so  far  from 


being  injured  has  been  benefited  by  hia 
manner  of  using  the  water,  because  after 
the  water  is  used  by  him  it  flows  on  to 
the  plaintiff's  lands,  and  the  plaintiff  ia 
thereby  enabled  to  cultivate  large  tracts 
of  land  which  otherwise  he  could  not 
have  cultivated,  and  the  springs  of 
plaintiff's  lands  iiave  been  greatly 
strengthened  by  the  said  •  diversion  and 
use.  As  to  the  windmill,  the  defend- 
ant says  he  only  uses  it  to  obtain  water 
for  his  stock.  He  denies  that  he  makes 
or  claims  to  make  an  unreasonable  use 
of  the  water,  and  that  he  lias  been 
using  and  diverting  water  (whether  flood 
water  or  otherwise}  to  the  extent  to  which 
he  is  in  law  enititled  so  to  do.  He 
can  flood  the  tracts  of  dry  land  re- 
ferred to  ill  the  declaration  at  times 
only  when  the  river  is  in  such  flood 
that  there  is  far  more  water  in  the 
river  than  can  be  used  by  the  lower 
proprietors.  He  aittributes  the  dam- 
age complained  of  by  the  plaintiff  to 
continuous  dry  season,  during  which 
he  himself  suffered  severely,  and  he 
denies  that  the  defendant  lias  suffered 
any  damage  for  which  he  is  in  law 
liable.  With  respect  to  the  more  im- 
portant facta  in  tnis  case,  there  is  no 
conflict  of  evidence,  and  it  is  only  when 
we  come  to  matters  of  inference,  con- 
jecture, and  opinion  that  important 
differences  arise.  The  parties  to  the 
case  are  men  of  <the  utmost  integrity, 
upon  whofse  word  upon  questions  of  fact 
the  fullest  reliance  can  be  placed,  and 
it  will  bo  seen  that,  in  respect  of  such 
matters  as  were  treated  occasionally 
during  the  trial,  as  touching  upon  tlie 
veracity  of  the  witnesses,  there  merely 
existed  divergence  of  views  held  by  men 
who  were  advocates  of  onposing  in- 
terests and  opinions  in  the  subject — 
agriculture  and  irrigation.  Tlie  main 
outstandingly  fact  admitted  on  all  hands, 
and  established  by  the  evidence,  is  as  to 
the  nature  of  the  stream  with 
regard  to  tlie  use  of  which 
tlie  legal  issues  are  raised  be- 
tween the  parties.  The  stream  is 
question  is  a  perennial  stream  of  the 
kind  so  common  in  the  country.  It 
might  puzzle  those  who  have  had  no 
experience  of  our  rivers  to  delect  the 
))ereiinial  character  of  streams  in  chan- 
nels which  for  90  large  a  part  of  their 
course  present  the  ap|>ettrance  of  dry, 
sandy  watercourses.  The  defendant 
himself  succeeded  in  an  action  between 
him  and  an  upper  proprietor  to  have  this 
river  declared  by  judicial  decision  to 
be  a  perennial  stream,  and  I  can  find 
iiothinip  in  the  evidence  to  throw  doubt 
upon  his  own  admiesion  that  such  is  tho 
nature  of  the  rdver.  It  appears  that  the 
Brak  River  is  a  river  of  some  magni- 
tude, and  rises  in  the  mountains  a  con- 
siderable distance  above  the  farms  of 
the  parties  to  this  suit,  and  possesses  a 
channel,  the  bed  of  ^  which  is  a  deep« 
sandy  bottom.  This  loose  sand  lies 
between  well-defined  banks  to  such  depth 


•I 


CAPB  ilMES"  LAW  REPOklB. 


m 


thai  the  ciurent  of  water  ia  not  stronip 
enoug*h    throughout    the    oourae  of    the 
river  to  fill  toe  channel  up  to  the  sur- 
face of  the  ground,   and   to  produce  a 
continuous   surface    flow   Tisibte    to    the 
eye.       The   water  sinks  into  the  sand» 
and  only  rising  up  where  it  meets  some 
solid  obstruction  in  its  course,  and  then 
it      becomes    available    for  use  by    the 
riparian  owners.       The  invisible  under- 
ground constant  flow  of  water  between 
well-marked  banks  in  a    defined  channel 
has  been  held  to  be  of  such  a  character 
as    to    constitute  a    perennial       stream. 
I  am  not   prepared      to   say  that   such 
rivers  may  not  reach  a  tract  of  coun- 
try, the  bottom  of  which  may  be  of  such 
a  nature  as  to  destroy  the  character  of    the 
river,  through  the  irretrievable  loss  of  the 
water  in  the  soil,    and   that,    in   conse- 
quence, a  channel  or  watercourse     may 
be  a  perennial  stream    «n    one    part    of 
its  course    and  a  dry  river  bed  further 
down.    But   it   would   be   impossible   to 
distinguish   in    this   case    between      bhe 
nature  of  the  Bipak  River  on  the  defend- 
ant's farm  and  that  on  the  farm  of  the 
plaintiff.    It  may  be   thought  that   the 
perennial   obaracter  of  the  river  being 
adnutted,  these  re.narks  are  superfluous, 
but  they  will  be  found  p«i;inent  when 
the  main  issue  in  the  case  comes  under 
consideration.     Especiallv  as  it  appeared 
at  times  as  if  the  defendant  repented  of 
the  admission  he  had  made,  and  oalle<I 
it)  (question  the  correctnees  of  that  ad- 
mnsion.    It  is,  however,  now  established 
by    admission,    and    evidence    that    the 
Brak  River  in  its  passa^^e  through  the 
farms  of  tiie  plaintiff  ana  defendant  is  a 
perennial  stream,   and  that  a  perennial 
stream  flows  in  the  channel  between  its 
banks,   whether  visible  or  not.    On   the 
farms  Varkenskop.  Culmstock.  and  Tem- 
ple Farm,  the  water  shows  itself  a<t  in- 
tervals where  it  is  forced   up  h^  inter- 
vening dykes,  in  ruiantitios  suffioient  for 
common  use.       This  natural  emergence 
of  the  water  is  partial  in  its  character, 
and    favours    the    different    farnM       in 
varying    degrees.    Because    of    the    lay 
of  the  country  and   the   nature  of   the 
river  bod.  Temple  Farm  possesses  great- 
er natural  advantages  than   the     other 
two  farms,  and  on  the  whole  Oulmstock 
seeme  to  be  more  favoured   than   Var- 
kenskop.     The  nature  of    the    channel 
and  fiver  bed  is  such  tihat  in  places  it  U 
possible   to   lead   out   the   water   on   to 
the  neighbouring  soil      by     means      of 
trifling  structures,  in  others  it  is  necesr 
eary  to  construct  some  substantial  works 
io   raise  the  bed  bv  means   of   the   silt 
brought   down,    and   by  that    means   to 
carry  the  water  out  of  the  channel.    The 
necessary   structures    have    been    made, 
and  whatever  their  effeot  may  be  on  the 
flow   oi    the    water,    no    complaint    has 
been  raised  by  the  parties  on  that  score 
so  far  as  the  use  of  the  more  permanent 
flow  of  water  is  oonoemed.       Although 
the   question    is    not   iwintedl^       raised 
upon  the  pleadings  by  the  plamtiff,  it  is 


undoubtedly  the  case  that  the  dispute 
between  the  parties  turns  upon  the  use 
of  the  water  periodically  brought  down 
by  freshets  during  the  rainy  season,  and 
if  it  were  not  for  that  the  case  would 
not  have  come  into  court.     The  issues 
are  somewhat  ext^ded  by  the  introduc- 
tion of      the     action     of      the     wind- 
mill     erected        by      the        defendant 
by  means  of  which  he  pumps  water  into 
two  dams  for  the  uae  of  his  cattle.      It 
is  clear  that  the  moderate   and  reason- 
able use  of  the  water  for   that  purpose 
would  not  have  been  objected  to,   and 
it   is    only    when   taken    in    conjunction 
with  the  other  use  of  the  warter  by  the 
defendaint,  that  the  plaintiff     complains 
that  such  use  becomes  unreasonable.    It 
is  true  that    in  this  connection  evidence 
was   elicvtcd   to   prove      that   the  water 
raised   by   means  of   the  pump   was  al- 
lowed   to    flow    over    the   surrounding 
land,    and    the    plaintiff    felt    that    this 
was  done  of  set  purpose,  and  was   not 
merely  the  result  of  negligence  or  acci- 
dent.      A  good  deal  was  made  of  this 
in  the  evidence,   and  it  may  be  well  to 
clear    the  grouixl  by   disposing   of    this 
point   before   considering   the  more   im- 
portant issues.       As  I  have  said,  I  have 
no  reason  to  doubt  the  veracity  of  the 
defendant,   and    I  accept    his   statement 
that   his  sole  purpose  m  erecting      the 
windmill   and    constructing    the       dams 
was   to   place   a  reasonable   quaiitity  of 
water  into  a  reservoir,  where  his  cattle 
could  drink.     That  some  water  may  have 
escaped  and  run  over  the  neighbouring 
ground,    as  deposed  to  by  some  of  the 
witnesses,    is   quite  possible;    but   I   ain 
of  opinion,  upon   the  whole  of  the  evi- 
dence, that  it  has  not  been  proved  tliai 
ail    unreasonable   use  was   made  of  the 
water  raised  by  the  pump.       If  an  un- 
reasonable use  should  hereafter  be  made 
by  the   defendant   in   this   manner,    the 
plaintiff  will   have  his  remedy.        How- 
ever,  I  do   not  believe  anything  would 
have   been   heard   of   this   complaint,   if 
it  were  not  for  the  conduct  of  the  de- 
fendant in  other  respects.       The  plain- 
tiff   feeling,    as    he   says,    that  he   was 
not  fairly  dealt  with  by  the  defendant, 
beoame  apprehensive,  when  he  i<aw  the 
windmill    being   |>ut    up,    that    the    de- 
fendant was  meditating  further  inroads 
upon  his  rights ;  but,  in  my  opinion,  his 
susfncions  ai^o  not  justified  by  the  facts, 
or   at  least   not   supported    by  the  evi- 
deiK?e.         lliere    is    not  sufficient  proof 
in    this   case    that   in   taking  the   water 
for   his   cattle,    the   defondant  made  an 
unreasonable  use  of  it.       Tliis  primary 
lawful  user  cannot  be  objected   to,    be- 
cause it  happens  to     go     in     company 
with  other   alleged   unreasonable   users. 
We   come    now   to  the   central   dispute 
between   the   parties.       It   appears  that 
the  Brak   River   is  subject   daring   the 
year  to  freshets  or  floods  from  its  upper 
reaches.    These  are  heavier  in  character 
and  more  frequent  in  occurrence  accord* 
ing  as  the  rains  are  more  or  less  pAenti< 


1)U 


"CAPE  TIMEi>*»   LAW  REPOftTfe. 


ful.  Tlu'ir  durartioii  aUo  dcponds  upou 
the  cha>ractor  of  tho  rainfall.  Art«r 
thunderstorms  they  rapidly  run  off,  after 
long-continued  r&in  the  flow  is  more 
prolonged.  And  as  the  rains  fall  over 
a  larger  surface,  tho  surface  water  takes 
longer  to  run  off.  It  will  be  found  necessary 
—for  tlie  purpose  of  the  cont<»ntion9 
naised— to  distinguish  carefully  between 
e^urface  water  after  rains,  which  con- 
stitutes the  freshets,  properly  so  called, 
and  the  subsequent  percolations  through 
the  soil,  which,  after  soaking  down- 
pours, find  their  way  into  the  channel, 
and  which  belong  rather  to  the  perma- 
nent flow  of  the  stream.  It  is  not  dis- 
puted that  a  long  continued  current  of 
water  by  which  the  usual  flow  of  the 
river  is  increa^^ed  after  steady  rains,  is 
such  as  is  subject  to  the  rules  of  com- 
mon use  by  the  riparian  owners.  As 
to  the  freshets,  they  vary  in  volume; 
at  times  they  are  so  small  that  they 
can  be  wholly  diverted  by  weirs  placed 
in  the  river  by  some  of  the  riparian 
ownere;  at  others  they  suffice  to  feed 
the  furrows  of  all  the  proprietors,  and 
then  again  they  are  so  violent  and  im- 
petuous that  mo»t  of  the  water  rushes 
down  tho  course  of  the  river  to  the  sea. 
With  respect  to  the  last,  no  question 
of  reasonable  use  haa  arisen  m 
this  case.  It  is  as  to  the  two 
former  that  questions  both  of  law 
and  fact  are  raised.  The  question  of  law 
is  whether  the  ordinary  ruloK  applicable 
to  the  common  and  reasonable  user  of 
the  water  of  a  perennial  stream  apply 
to  them,  and  the  question  of  fact  is 
whether  the  defendant  has  made  an 
unreasonable  use  of  these  freshet  waters 
It  must  be  ascertained  what  it  is  tliat 
the  defendant  has  actually  done.  He 
has  placed  three  substantial  weirs  in 
the  river  for  the  (nirpose  of  diverting 
the  water.  The  existence  of  the  upper 
weir  is  immaterial  to  the  case,  it  being 
only  used  to  feed  the  second  weir.  Weir 
No.  2  is  intended  to  divert  the 
usual  flow  of         water,  and 

also  to  turn  out  such  flood  water  as  it  is 
capable  of  doing.  It  is  so  constructed 
that  it  diverts  all  the  water  through 
a  furrow  on  the  west  bank  of  the  river, 
until  tho  water  comes  down  in  such 
volume  that  it  flows  oyer  the  crest  of 
the  W^cir,  and  when  that  happens  a  por- 
tion of  the  water  flows  over  a  beam  ly- 
ing across  a  furrow  on  the  east  side, 
and  so  down  that  furrow  on  to  the  land 
of  tlie  defendant  on  that  side.  If  this 
beam  were  lifted  the  water  would  rush 
out  in  the  furrows  both  on  the  west 
and  oast  side,  and  in  that  case  a  strong 
freshet  will  be  needed  to  take  the 
water  over  the  crest  of  the  weir.  \^Tien 
tire  water  does  rush  over  weir  No.  2  it 
is  intercepted  by  weir  No.  3.  This  lat- 
ter weir  is  used  solely  for  the  divermon 
of  flood  water,  for  there  is  no  percep- 
tible permanent  surface  flow  between 
weirs  No.  2  and  No.  3.  A  furrow  car- 
ries away  the  water  on  the  west  out  d 


weir  No.  3.  and  is  used  to  iridgate  the 
vieys  and  land  of  the  defendant,  otiier 
than  cultivated  fields.  Weir  No.  3 
would  take  all  the  flood  water  out  of 
tho  river,  unless  the  freshet  were  00 
strong  as  to  pass  over  the  creat  of  the 
weir.  It  follows,  therefore,  that,  eveo 
when  the  beam  is  down  at  weir  No.  2, 
a  considerable  quantity  of  water  cxmiing 
down  in  a  freshet  will  be  diverted  by 
the  defendant's  wears.  In  this  watr 
very  small  flows  will  be  diverted,  which 
might  be  of  little  avail  to  the  lower 
proprietors.  But  most  undoubtedly  the 
weirs  are  capable  of  turning  off,  and 
have  been  used  to  turn  off  a  large  vol- 
ume of  water,  wiiioh  would  be  sufficient 
for  common  use.  I  shall  refer  later  to 
th(^  dispute  respecting  the  lifting  of  the 
beams,  confining  my  attention  for  the 
present  to  the  quantity  of  water  taken 
by  the  farmers  on  the  west,  and  the 
overflow  over  the  beam.  As  a  matter 
of  fact,  the  defendant  claims  the  right 
to  take  as  much  of  the  flood  water  as 
h3  pleases,  and  denies  the  existence  of 
any  right  in  the  lower  proprietors  to 
confine  him  to  a  reasonable  user  thereof. 
His  claim  as  set  forth  in  his  plea  is  not 
as  large  as  that.  In  his  plea  he  atatos 
that  he  admits  that  in  the  period  men- 
tioned ill  the  declarati<>n  he  haa  0011- 
tiiiucMi  incrcaaingly  to  divert  on  to  Var- 
kenskop  water  from  the  river,  but  he 
says  such  increased  diversion  nas  been 
in  respect  only  of  surplus  flood  water 
after  good  rains,  and  the  water  so  di- 
verted oould  not,  owing  to  the  quantity 
of  the  flood  water  and  the  lie  of  toe 
country,  have  been  utilised  by  the  lower 
proprietors,         and  would  have 

been  waste  water  but  for  de- 
fendant's user.  Tlie  reference  to 
good  rains  seems  to  imply  that  he  only 
uses  the  water  when  there  is  abundance 
of  it,  and  consequently  enough  for  all. 
But  then  it  is  difficult  to  see  why,  owing 
to  the  quantity,  it  could  iK>t  be  used 
by  the  lower  ranoprietor.  If  it  could 
be  u^ed  by  deiendant,  it  could  surely 
be  used  by  others,  whatever  its  quan- 
tity. If  tne  explanation  is  sought  for 
in  these  words,  that  owing  to  the  lie 
of  the  country  it  could  not  be  served 
by  the  \owtiT  proprietors,  then  the  con- 
tention is  disposed  of  by  the  evidence, 
because  it  is  quite  clear  that  both  Culm- 
srtock  and  Temple  Farm  are  adapted  to 
the  use  of  flood  water.  The  pleader 
was  not  prepared  to  assert  boldly 
the  rights  claimed  by  the  defendant 
himself,  but  alleges  certain  special  cir- 
cumstances, under  which  he  iwea  the 
water  without  injury  to  the  plaintiff. 
Finally  it  comes  to  tnis,  tlut  the  Court 
has  to  decide  whether  freshets  or  flood- 
water,  whether  large  or  small  in  toI- 
ume,  must  be  treated  aa  part  of  the 
perennial  stream  of  the  Brak  Riyer.  and 
subject  to  all  the  rules  applioable  to 
perennial  streaaxis.  There  m  very  little 
direct  aufahorit;^  deciding  in  expreis 
terms   the   definite   issue  here      raued. 


"CAiPB  TlMlSS"  LAW  REPORTS. 


dl5 


Indirectly^  the  point  has  been  referred 
to  in  considering  the  law  of  water  rights 
for  other  purposes.  Much  argument 
has  been  addressed  to  the  principles  of 
the  decisions  of  our  Courts  on  the  sub- 
ject of  perennial  ^ftreame,  nrainly,  I 
take  it,  to  discover  in  how  far  they 
throw  any  direct  light  upon  the  point 
in  question,  and  indeed  by  that  means 
we  may  be  enabled  to  develop  the  doc- 
trine bearing  upon  the  nature  of  flood- 
water.  But  I  do  not  think  I  am  called 
upon  to  discuss  at  any  length  the  osms 
which  have  firmly  established  the  bask 
upon  which  the  user  of  water  of  a  per- 
ennial stream  should  be  i^gulated.  The 
Roman  law  has  been  referred  to  aa 
showing  bow  laws  were  enacted  by 
means  of  the  Preitor's  edict,  wherein 
strict  and  well-defined  rules  were  laid 
down  respecting  the  use  of  water,  but 
it  is  evident  that  the  Pretor  himeelf 
— through  the  instrumentality  of  his 
equitable  actions — allowed  an  extenaion 
of  the  established  principles  to  aiialo- 
gous  cases.  In  England  and  Amerioa, 
where  the  rules  ot  the  civil  kw  in 
this  respect  have  been  adapted,  we 
find  the  law  developed  and  adapted  to 
the  needs  of  the  country.  Our  Courts 
have  done  the  same  in  dealing  with  the 
peculiar  features,  requirements,  and 
circumstances  of  our  country  regarding 
the  flow  of  water.  It  is  quite  true 
that  flood  water  has  at  times  been  de- 
signated as  a  common  enemy,  and  de- 
scribed as  a  wild  beast,  but  such  wide 
statements  cannot  be  taken  literally, 
because  it  is  evident  that  flood-water 
can  be  tamed  and  made  to  render  good 
service.  And  it  is  onl^  necessary  to 
refer  to  the  good  work  it  has  already 
done,  as  shown  by  the  witnesses  in  this 
ease,  to  prove  tnat  it  is  a  thing  of 
great  utility.  Our  thirsty  land  differs 
largely  from  countries  possessing  abund- 
ance of  water,  which  becomes  excessive 
the  inoment  the  rainv  season  begins. 
But  it  is  contended  tnat  notwithstaitd- 
ing  the  fact  that  flood-water  can  be 
utilised,  it  is  in  its  nature  such  that  it 
is  not  amenable  to  the  rules  necessary 
for  its  common  beneficial  enjoyment. 
If  it  were  quite  true  that  it  is  wholly 
impossible  to  make  arrangement  for  its 
reasonable  division  among  riparian  own- 
era,  that  would  be  a  good  reason  for  the 
Court  refusing  to  interfere  by  attempt- 
ing to  do  the  impossible,  and  thereoy 
deprive  one  man  of  a  benefit  without 
any  advantage  to  others.  But  if  it  be 
found  upon  reference  to  the  legal  au- 
thorities as  a  whole,  that  flood  water 
must  be  regarded  as  part  of  the  peren- 
nial stream  in  which  it  flows,  then  it 
follows  that  it  becomes  subject  to  the 
common  interest  of  all  the  riparian 
owners,  and  any  one  derogating  from 
their  rights  has  the  burden  of  proof 
thrown  upon  him  that  what  he  takes 
cannot  be  beneficially  enjoyed  by  others. 
This  the  defendant  has,  in  nay  opinion, 
failed  to  show,  and  there  is  evidence  that 


some  of  the  witnesses  who  raised  difficul- 
ties have  themselves  considered  and  sug- 
gested plans  for  the  common  enjoyment 
of  flood  water.  Counsel  for  the  defend- 
ant contended  that  only  the  usual  aver- 
age flow  of  the  water  in  the  channel 
should  be  regarded  txs  the  perennial 
stream,  and  anything  over  and  above 
that  produced  by  a  surface  flow  after 
rain  is  to  be  taken  as  flood  water,  ex- 
empt from  the  rules  applicable  to  peren- 
nial streams.  If  surface  water  which 
goes  to  swell  a  stream  after  rain  is  to 
be  taken  as  distinguishable  and  distinct 
from  the  perennial  stream,  it  is  diffi- 
cult to  see  why  percolation  through  the 
soil  after  rain  should  not  be  treated  in 
the  sanoe  way.  But  not  the  remotest 
suggestion  was  made  or  could  be  riade 
that  percolations  through  the  soil  find- 
ing their  way  into  the  channel  could 
be  treated  otherwise  than  as  part  of 
the  stream.  And  vet  surface  water  run- 
mng  in  no  defined  channel  and  percola* 
tions  in  the  soil  fall  under  simiinr  legal 
rules,  and  while  on  land  or  in  the  scil 
are  at  the  free  disposal  of  the  cviner  of 
the  land.  I  can  see  no  r.^ason  why  the 
one  should  be  identified  wiCh  the  stream 
when  it  finds  its  way  into  rhe  channel 
and  the  other  not.  In  considering  this 
case  it  must  be  borne  in  nimd  that  the 
defendant  claims,  not  the  surface  wsler 
after  rain  which  has  fallen  0:1  his  own 
land,  but*  flood  water  which  is  ftlrfecdy 
part  of  the  stream  when  it  enters  his 
farm.  There  is  no  question  here  as  to 
water  which  falls  on  his  own  ground.  To 
elucidate  the  matter,  I  may  take  a  pas- 
sage from  a  judgment  of  Loord  Cran> 
worth  in  Claremore  v.  Richards  (7  House 
of  Lords,  379).  based  on  the  ^ame  prin- 
ciples as  our  law,  and. embracing  several 
features  appearing  also  in  tJ«e  f»re»fnt 
case.  The  passage  is  as  follows:  "The 
right  to  running  water  has  alwa^  been 
properly  described  as  a  natural  riglif, 
lust  like  the  right  to  the  air  we  breathe. 
They  are  gifts  of  Nature,  and  no  ona 
has  a  right  to  appropriite  tliom.  Tb<^re 
is  no  dififioulty  in  enforcing  that  righi^ 
because  runndng  water  is  eomethii^  vis- 
ible, and  no  one  can  interrupt  it  with- 
out knowing  whether  he  does  or  does  not 
do  injury  to  th<Me  who  are  above  0* 
below  him,  but  if  the  doctrine  were  ap- 
plied to  waiter  merely  percolating,  as  at 
18  said,  through  the  soil  and  eventually 
reaching  some  streanri.  it  would  always 
be  matter  that  woula  require  the  evi- 
dence of  soientifio  men  to  state  whether 
or  not  there  has  been  mt  irruption,  and 
whether  or  not  there  had  been  injury. 
It  is  a  process  of  Njiture  not  apparent, 
and  therefore  such  percolating  water 
has  not  received  the  protection  which 
water  running  in  a  natural  channel  on 
the  surface  has  always  received."  The 
remarks  will  be  applicable  to  fhnt  rcr- 
tson  of  this  case  which  deals  with  the 
evidence  given  to  prove  that  the 
springs  in  the  river  have  been  strencth- 
ened  by  percolation,     but     here  I  snail 


916 


»f 


CAPfi  TIMES"  LAW  REPORTS. 


only  point  uut  li-c  diHitiiv^jcn 
drawn  between  water  while  percolating 
through  th«  soil,  ajid  the  eame  watet 
when  it  hafl  eventually  reached  a 
perennial  9treani.  And  also  that  tha 
law  will  not  attempt  to  do  what  it  is 
impossible  to  do.  In  thia  case,  it 
would  be  impoflfiible  to  decide  in  tb« 
case  of  streams  which  constantly  vary 
in  volume  what  portion  of  ihe  stream 
is  at  a.ny  particular  time  attributable  to 
surface  flood  water,  or  to  nercolationa 
after  rain,  or  to  the  usual  out  varying 
flow  of  the  river.  The  stream  when 
increased  after  rain  is  one  entire  thing, 
which  cannot  be  analysed  or  separated 
into  its  component  parts,  and  all  the 
law  can  do  is  to  treat  it  a»  a  whole. 
pOvSsossing  all  the  characteristics  of  the 
perennial  flow,  and  subject  to  the  same 
rules.  I  shall  now  refer  to  some  pas 
sages  in  the  authorities  which  have  a 
more  direct  bearing  on  the  point  in 
ibsue.  Lord  (lielmsrord  said  in  Clare- 
marc  v.  Bichards.  when  dealing  with  the 
difficulties  attending  percolating  water: 
"  There  is  no  difficulty  in  determining 
the  rights  of  the  different  proprietors  to 
the  usufruct  of  the  water  in  a  running 
stream ;  whether  it  has  been  increased  by 
floodi»  or  diminished  by  drought.  it 
flows  on  in  the  same  ascertained  course, 
and  the  use  which  every  owner  maj 
claim  is  only  of  the  water  which  has 
CMitered  into  and  become  part  of  the 
stream.''  In       BroadberU    v.    Bams- 

bottom  (11  Exch.,  615),  Alderson,  B.. 
said :  *'  All  the  water  falling  from 
heaven  and  shed  upon  the  surface  of  a 
hill,  at  the  foot  of  which  a  brook  runs, 
must,  by  the  natural  force  of  gravity, 
find  iUi  way  to  the  bottom,  and  so  into 
the  brook;  but  it  does  not  prevent  the 
owner  of  the  land  on  which  the  wat^^r 
falls  to  deal  with  it  as  he  may  please, 
and  appropriate  it.  He  cannot,  it  is 
true,  do  so  if  the  water  has  arrived  at 
and  in  flowing  in  some  natural  channel 
alpt>ady  formed,  but  he  has  a  perfect 
right  to  appropriate  it  before  it  arrives 
at  such  channel."  In  the  Encyclopeedia 
of  the  Law  of  Scotland,  a  pas&Agc, 
tix'ating  of  non -navigable  rivers.  ap- 
pears, which,  af«tor  ^tating  that  the  ixjr- 
mauent  diven«ion  of  water  to  the  pre- 
judice of  a  lower  proprietor  in  not 
allowod,  proceeds  to  say:  "And  this 
appliejf  equally,  although  tlio  diversion 
extends,  and  can  extend,  only  to  what 
IS  in  excess  of  the  usual  flow  of  the 
stream."  Further  on,  it  reads:  "If  a 
heritor  itrtroduoes  a  quantity  of  aJion 
water  into  a  stream,  thi6  will  not  en- 
tit  k?  him  to  withdraw  a  quantitv  of 
river  water  equal  in  amount  to  that  so 
introduced."  The  plain  inference  from 
all  these  authorities  is  that,  whatever 
water  finds  its  way  into  a  perennial 
stream,  becomes  part  and  parcel  of  that 
stream.  Chief  Justice  Kotzc.  in  the 
High  Court  of  the  Transvaal,  when 
dealing  with  a  case  under  similar  cir- 
cumstanoes,  was  of  opinion  that  the  pro- 
prietor of  a  farm  was  entitled  to  catch 


up  the  rain-water  falling  on  his  laud, 
and  deal  with  it  aa  bis  own,  but  held 
that  this  right  cannot  be  extended  to 
rain-water  which  has  found  vta 
way  into  the  channel  of  a 
public  stream.  Although       thia 

oonclusion  could  be  readily  deduced  from 
the  Roman  law,  where  the  floods  of 
winter  a«  well  as  the  moderate  flow  of 
summer  are  regarded  as  fonzung  the 
perennnal  stream,  it  is  very  aatistactory 
to  find  that  judges  of  high  aiithority 
have  come  to  the  same  oonclusion.  I 
am,  therefore,  of  opinion  that  water 
flowing  in  the  channel  of  a  river,  between 
its  banks,  whether  it  is  the  moderate 
and  usual  stream,  or  the  waters  increas- 
ed by  freshets,  or  the  more  oonaiderable 
floods  after  heavy  raina,  is  part  of  the 
perennial  stream,  and  subject  to  all  the 
rules  regulatinig  the  reasonable  user  of 
such  water  hj  the  riparian  owners.  That 
being  so,  it  is  not  difficult  to  determine 
upon  the  evidence  that  the  quantity  of 
water  diverted  by  the  defendant  by 
means  of  his  two  weirs  is  very  con- 
siderable, and  ooiistitutes  an  unreason- 
able user  of  the  water.  But  then  it  is 
said  even  though  a  large  quantitv  is 
taken  out  of  the  river  by  the  defendant, 
a  fair  proportion  of  it  is  restored  to  the 
river  by  means  of  abundant  peroolattons 
through  the  soil  of  the  defendant's  farm, 
which  go  to  strengthen  the  springs  used 
bv  the  plaintiff.  The  burden  oi  proof 
after  disturbing  the  natural  flow  of  the 
stream  lies  upon  the  defendant.  It  is 
for  him  to  show  that  he  has  not  de- 
prived the  lower  proprietors  of  tlieir 
reasonable  use  of  the  water  of  the  river. 
We  have  had  the  evidence  of  witnesses 
who  are  intimately  acquainted  with  the 
locality,  and  they  differ  widely  as  to  the 
effect  of  the  flooding  of  the  fields  by 
tlie  springs  in  the  river.  Then  we  have 
had  the  evidence  of  experienced  far- 
mers, who  speak  of  the  probable  or 
general  effect  of  such  floooing.  As  to 
the  latter,  I  may  say  that  tiheir  theories 
are  such  as  any  intelligent  man  can 
form  an  opinion  ui)on,  and  their  experi- 
ence must  necessarily  be  confined  to  the 
nature  of  the  localities  they  have  lived 
in.  It  is  quite  true  that  extensive 
flooding  in  narrow  valleys  must  have 
the  effect  of  creating  steady  and  plenti- 
ful percolations  back  into  the  river. 
Where  the  valleys  are  wider,  the  bene- 
ficial effect  on  the  river  will  be  less, 
and  where  the  water  is  taken  to  a  dis- 
tanoe  on  to  extensive  flats  very  little 
will  find  its  way  by  means  of  percola- 
tion bsck  into  the  stream.  There  is  no 
satisfactory  clear  proof  in  this  oam  that 
by  the  flooding  of  his  own  lands  the  de- 
fendant ha<3  strengthened  the  springs  of 
the  plaintiff.  And  in  my  opinion  this 
is  not  a  case  in  which  the  nature  of  the 
ground  is  such  that  the  waters  led  by 
the  defendant  on  to  hia  lands  must 
naturally  and  necessarily  find  their  way 
back  intj  the  river  to  be  ayailable  for 
Culmstock  or  Temple  Farm.    Moreover) 


"CAPE  TIMES"   LAW  REPORTS. 


917 


I  am  of  opdnion  that  when  the  authori- 
ties allow  a  reasonable  use  of  the  watctr 
of  a  stream  to  an  upper  proprietor, 
provided  he  allows  the  watery  reduoea 
reasonably  by  such  use,  to  flow  back 
into  the  stream,  it  is  not  intended  that 
this  should  be  by  means  of  uncertain 
percolation,  but  rather  by  means  of  a 
viable  flow.  It  Ihas  already  been  said 
that  the  percolations  through  the  soil 
belong*  to         the         ctwner         of 

the  land,  and  when  a  man  turns  a  run- 
ning stream  into  invisible   percolations, 
he  destroys  its  pro^r  character.      And 
the   very   difficulty  is  created   which   i^ 
pointed  out  by  liord  Cran worth  in   the 
case    of    Claremore    v.    Richards,    when 
he  eays :    **  But  if  the    doctrine   is    ap- 
plied to  water  merely  percolating,  as  it 
IS   said,   and   eventually   reaching   some 
stream,    it    would   always    be    a   matter 
that    would    require    the   evidence      of 
scientific  men  to  state  whether  or   not 
there  had  been  injujry."  In  my  opinion, 
it  is  not  permissible  to   an   upper  pro- 
prietor to  divert  the  water,  and  to  tell 
the  lower   proprietor    that   he    gets    his 
reasonable   share  by^  means  of   percola- 
tion.    And  then  again  it  is  clearly  esta- 
blished that  the  water  must  be  returned 
to  the   river  before   it   enters   the   land 
of  the  lower  riparian  owner,  which  was 
not  done  in  this  oaae.    I  am  consequent- 
ly of  opinion  that  the  defendant   made 
an  unreasonable  use  of  the  water,  irre- 
spective of   the    question   whether       he 
raised  the  beam  on  the  east  side  of  the 
river,  but  as  a  great  deal  of  the  evidence 
was  directed  to  that  point,  I  think  the 
parties  are  entitled  to    a   finding    upon 
tJie  facts  bearing  upon  it.     And  I  may 
say,    if    the    case    depended    upon    the 
quAstion   whether   the  beam    was   lifted 
to  allow  an  escape  of  the  water  to  the 
east,    I    ahould    have    g^ven    absolution 
from  the  instance.    The  Court  is  expect- 
ed to  infer  that  the  water  flows  on  to 
Grasbult    flowed  through   the  east   fur- 
row,   when    no  witness    ever    saw    that 
it    actually    did  ;^   while,    on   the   other 
hand,  the  Court  is  expected  to  find  that 
the   water  came   from   the  Brak  catch 
ment.   when  no  watness  for  the  defence 
could   say  jKoitively  that  that  was  the 
oaee,  except  on  one    or   two    occasions. 
Men    of    intelligence,    experience,    and 
local  knowledge  have  said   a  p^rolonged 
flow  can  be  produced  by  a  radnfall  on 
the  Brak,  and  this^  Court  cannot  by  a 
mere  doctrinaire  opinion  of  its  own  brush 
aside   tliis   eviden^M.       The   question   is 
left  open,  and  with  it  the  question   re- 
specting the  use  of  water   on    after-ac 
quired  non-riparian  land   by  a  riparian 
owner.        The    facts    not    having    been 
established  as  to   unreasonable   user  oi 
Brak    River    water    on    Grasbult,   it  is 
unnecessary  to  apply  the  law,  especially 
as  no  authorities  have  been  cited  which 
throw  any  Hgbt  upon  this  part  of  the 
case.      Having  decided  that   tbe  defen 
dant   made  an  unreasonable  use  of  the 
water  of  the   Brak  River  by  means  ot 


the  western    furrows  out  of  weirs    No. 
2  and  No.  3,  to  the  injury  of  the  plaid- 
tiff,  the  question  arises,  what  damages 
were    caused    thereby?       No   strenuous 
effort    was   made    to    prove    the  actual 
amount  of  damages,   and  it  was  appar- 
ent that   this   was   Dccause  tbe  plaintiff 
was       not      eager       to      obtain       any 
danmgo,  his  object  being  rather  to  have 
his  legal  rights  settled.     But  the  plain- 
tiff,  having  necessarily   suffered      some 
damages,   the  Court    will   fix    it  at    the 
nominal   amount   of   £20.      Before  con- 
cluding, I  should  like  to  make  some  re- 
marks upon  a  subject  which  has  a  strong 
bearing  upon  the  case,  and  might  oven 
have  been  pertinent  to  its  legal  aspect. 
It    is   said    that   flood   water   is   so   un- 
manageable that   it  ought  rather  to  be 
treated   like  a   wild  animal,   that  is  to 
be  feared   rather  than  enticed.      But  it 
is  clear  that  this  wild  animal  has  been 
tamed,   and   put  to  use  by   the  defend- 
ant.      Then,    again,    it   is   contended    it 
is  of  such  a  nature  that  it  will  not  al- 
low of  reasonable  division.     I  am  quite 
satisfied   that  any   minute  or  measured 
division  would  be  difficult,  but  that  some 
rough    and    ready    arrangement    giving 
the  different  owners  an  approximately 
equal  enjoyment  of  the  water  cannot  be 
made,  I  cannot  believe.     It  is  .said  any 
such   arrangement  would  be   expensive. 
That   IS    not   unlikely,   but   the  benefits 
expected  to  be  reaped  are  large.     Any- 
how,  the  Court  can  only  find  that  the 
plaintiff    in    this    case    is    entitled    to   a 
reasonablc'share  of  the  perennial  stream 
called    the    Brak    River,    whether     the 
water    in    the   stream    is    the    ordinary 
flow  or   the  result  of  freshets  large  or 
small,   and    that  the  defendant,  having 
deprived  him   of  his  reasonable  use  of 
the    water,    has   caused    damage   in  ^  the 
sum   of  £20.      Judgment  will  be  given 
for  the  i)laintiff  for  £20,  with  costs. 

[Plaintiff's  Attomej-s:  Van  Zyl  and 
Buissrnn^ ;  Defendant's  AttomeTS :  Fair- 
bridge,   Ardorne  and  Lawton.] 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  HoPLET.] 


ADMISSION. 


{ 


i9an. 

Nov.  7th. 


Mr.  Sutton  moved,  as  a  matter  of  ur- 
gency, for  the  admission  of  Johan  God- 
fried  Taute  as  an  attorney,  notary,  and 
conveyancer.  The  urgency,  counsel  said, 
was  that  applicant  wished  to  proceed 
upoountry  this  (Tuesday)  evening. 

Application  granted,  ai>d  oaths  ad- 
ministered. 


SMORGNBERG  V.  BMORENBERU. 

This    was    an    action       brought       by 
Johanpos  IToRdrick  Smorenborg,  of  the 


9id 


CI 


CAPE  TIMBB"  LAW  KEPO&Td. 


Paarl,  affftinst  his  wife  for  reetttution  of 
ooDJugM  rights,  on  the  ground  of  her 
unlawful  and  malicious  desertion,  failing 
which  a  decree  of  divorce.  Mr.  Lewis 
was  for  plainti£F ;  defendant  did  not  ap- 
pear. 

The  declaration  alleged  that  defend- 
ant had  declined  to  return  to  and  co- 
habit with  plaintiff,  who  claimed  a  de< 
rree  of  restitution  of  conjugal  rights, 
failing  which  a  decree  of  divorce,  with 
forfeiture  of  the  benefits  of  the  marriage 
and  custody  at  once  of  the  two  eldier 
children,  and  the  two  younger  children 
on  attaining  a  maturer  age. 

Johannes  Hendriok  Smorenber^  (the 
plaintiff)  said  that  he  was  married  to 
the  defendant  at  Parys,  O.R.C.,  in 
1892.  He  setUed  at  Faarl  about  three 
or  four  yean  ago.  About  twelve  months 
ago  he  went  to  Heilbron,  O.R.C.  He 
wrote  to  his  wife  to  come  to  him,  but 
she  Refused.  Subseouently  ho  returned 
to  Paarl,  and  founa  that  his  wife  hacL 
gone  away  from  his  home.  He  had 
since  written  to  his  wife,  asking  her 
to  return  to  him,  but  she  would  not. 
They  both  lived  at  the  Paarl. 

By  the  Court:  His  wife  was  living 
with  another  man.  He  could  not  prove 
whether  she  was  living  with  this  other 
man  as  his  wife.  There  were  four  chil- 
dren of  the  marriage.  He  desired  to 
have  custody  of  the  elder  children.  Wit- 
ness had  formerly  been  a  schoolmaster, 
and  was  now  employed  as  a  m&ttress- 
maker.  He  wanted  custody  of  .the 
younger  children  when  they  became  old 
enough  to  leave  their  mother. 

Witness  (in  further  evidence)  said  that 
neither  he  nor  his  wife  had  any  pro- 
perty. 

By  the  Court:  The  other  man  used 
to  be  with  a  firm  of  architects,  but  he 
was  at  present  out  of  work.  He  used  to 
be  a  boarder  at  witness's  house.  Only 
four  days  ago  his  wife  said  that  she 
would  not  return  to  him. 

Decree  of  restitution  granted,  defend- 
ant to  return  to  or  receive  the  plaintiff 
on  or  before  the  30th  November,  failing 
which  to  show  cause  on  the  12th  Decem- 
ber why  a  decree  of  divorce  should  not 
be  granted  as  prayed,  with  immediate 
custody  of  the  two  elder  children,  and 
also  of  the  two  younger  children  on  at- 
taining the  age  of  seven  years  respec- 
tively, or  such  earlier  date  as  he  may, 
on  due  application  to  the  Court  and  no- 
tice to  the  defendant,  bo  entitled  to  by 
order  of  the  Court. 

Postea  (December  13) :  Rule  made 
ab«olut<^. 


CHKT8TIAN  V.  CHRISTIAN. 

This  was  an  action  brought  by  Chris- 
tina Mary  Christian,  of  Albert-road, 
Salt  River,  against  her  husband,  Joseph 
Wm.  Christian,  of  Elsie's  River  Halt, 
for  divorce  on  the  ground  of  his  adul- 


tery with  one  Lydia  Fortuia.  Mr. 
Douglas  Buchanan  appeared  for  plain- 
tiff; defendant  appeared  in  person. 

Mr.  Buchanan  subnutted  that  defend- 
ant could  not  be  heard,  inasmuch  as  he 
had  been  duly  barred  from  pleading. 

Defendant  (in  reply  to  nis  lordship) 
said  that  he  wished  to  enter  appearance. 

[Hopley,  J. :  How  many  witnosses 
have  you  got?] 

Defendant:  I  have  several,  but  the 
chief  witness  in  the  case  is  dead. 

[Hopley,  J. :  I  am  afraiid,  then,  that 
we  cannot  have  his  evidence.  You 
know,  you  ought  not  to  be  heard  at 
all  now,  because  you  took  no  ncftice 
of  the  summons.] 

The  declaration  alleged  that  in  May, 
1903,  defendant  deserted  plaintiff,  and 
had  since  contributed  nothing  towards 
the  maintenance  or  support  of  the  child 
of  the  marriage  or  puuntiff.  Plaintiff 
claimed  a  decree  of  divorce,  with  forfei- 
ture of  the  benefits  of  the  marriage,  and 
an  order  for  payment  of  £3  a  month  as 
and  for  maintenance  of  the  said  child. 

Christina  Marv  Christian  (the  plain- 
tiff) said  that  she  was  married  at  St. 
Paul's  Church,  Cape  Town,  in  July, 
1902.  They  lived  together  at  her 
mother's  until  the  3rd  May,  1903,  when 
he  deserted  her.  She  eontlnued  to  live 
with  her  nK>ther  until  August  of  the 
same  year,  when  she  went  to  work 
again  as  a  domestic  servant.  Witness 
saw  defendant  when  ehe  took  out  the 
summons,  and  he  then  admitted  to  her 
that  he  was  living  with  Lydia  For- 
tuin.  Witness  had  been  appointed  sole 
heiress  under  her  father's  will.  The 
estate  consisted  of  land,  and  a  house 
erected  upon  it. 

By  the  Court:  Witness  received  in- 
formation of  the  fact  that  defendant  was 
living  with  Lydia  Fortuin  from  h» 
sister. 

Defendant  said  that  he  admitted  the 
adultery,  but  he  wanted  to  know 
whether .  it  was  right  that  a  woman 
should  drive  a  man  into  a  thing  of  thin 
kind  and   then    bring   him    into    court? 

fHopley,  J. :  You  might  be  driven 
from  nome.  but  I  don't  see  how  you 
ocmld  be  driven  to  commit  ttduHery.] 

Defendant  rejoined  that  he  was  a 
poor  orphan,  and  he  should  have  some- 
body to  support  him.  He  meant  that 
he  wanted  to  work,  and  to  have  aome- 
bodv  to  look   after  him. 

Wm.  Thomas  Birch,  clerk  in  charge 
of  the  marriage  reiy^isters,  gave  evidence 
hts  to  the  r^stration  of  the  marriage. 

Elizabeth  Paulson  (sister  of  the  de- 
fendant) said  that  she  knew  her  bro- 
ther and  Lydia  Fortuin  were  living 
toeether  as  man  and  wife. 

Plaintiff  (recalled)  said  that  ehe  did 
not  press  for  an  order  for  maintenance 
of  the  child. 

Decree  of  divorce  granted,  with  ooert^, 
with  ^  forfeiture  of  the  benefits  of  the 
marriace  in  community,  and  custody  of 
the  child, 


"CAPE  TIMES"  LAW  BEPOBTS. 


919 


NIL8KN  y.  NIL^BN*. 

This  wte  an  «u:tion  brought  by  Olaf 
Comelie  Nilaen,  fisherman,  Port  Beau- 
fort, district  of  Swellendam.  agrainst  his 
wife,  who  was  stated  to  be  living  at 
the  Touw'fl  River  Location,  district  of 
Worcester,  for  divorce,  on  the  ground 
of  her  adultery  -with  one  Carel  Dourie. 
Dr.  Greer  appeared  for  plaintiff;  de- 
fendant did  not  appear. 

The  declaration  alleged  that  the 
rarties  were  married  in  oonununity  at 
Kalk  Bay  in  1897,  and  that  there  was 
issue  of  the  marriage  one  child.  De- 
fendant, it  was  allcTOd,  had  been  liv- 
ing at  the  Touw'e  Kiver  Location  in 
adultery  with  one  Carel  Dourie.  Plain- 
tiff clumed  a  dissolution  of  the  bonds 
of  marriage,  with  forfeiture  of  the  bene- 
fita,  and  custody  of  the  minor  child. 

Mr.  Buchanan  read  a  letter  from 
defendant,  in  which  she  accused  plain- 
tiff of  having  been  addicted  to  arink, 
and  of  having  cruelly  treated  her  while 
under  the  influence  of  drink.  She 
also  stated  that  she  had  three  children, 
of  whach  plaintiff  wa«  the  father. 

Wm.  Thomas  Birch,  clerk  in  charge 
of  the  marriage  register,  gave  evidence 
as  to     registration  of  the  marriage. 

Olaf  Comelis  Nilseii  (plaintiff)  eaid 
that  he  was  a  Norwegian.  He  was 
married  to  defendant  at  the  English 
Church,  Kalk  Bay.  in  1897.  They 
Mved  together  at  Kalk  Bay  until  Octo 
ber,  1902,  when  witness  went  to  Port 
Beaufort  and  his  wife  went  to  Touw's 
River. 

By  the  Court:  He  used  to  drink  a 
little,  but  he  had  not  treated  his  wife 
cruelly.  She  had  never  complained 
that  he  had  treated  her  badly.  His  wife 
went  to  Touw's  River  for  a  holiday, 
her  father  residing  there. 

Witness  (continuing)  said  that  in 
November,  1902.  he  eent  her  £4  to 
come  to  Port  Beaufort  and  join  him. 
She  promised  to  come  to  Fort  Beaufort 
after  Christmas,  and  he  subsequently 
wrote  to  her  asking  her  to  come,  but 
she  had  not  answered  the  letter,  and 
had  not  returned  to  him.  Witness  was 
willing  to  take  charge  of  the  three  chil- 
dren. He  did  not  press  for  costs  of 
the  proceedings.  He  wae  making  about 
£1  lOs.  a  weeK. 

Ernest  Johannes  du  Toit  said  that 
he  had  seen  defendant  at  Touw's 
River.  She  had  lived  with  Carel  Dourie 
as  his  wife  until  about  three  months 
ago.  Defendant  now  lived  alone,  and 
supported  iherself  by  washing. 

Hopley,  J.,  said  that  in  the  declara^ 
ation  pfaintiff  said  there  was  only  one 
child  of  the  marriage,  and  he  now  ad- 
mitted that  there  were  three. 

Dr.  Greer  appftied  for  a  formal 
amendment  of  the  declaration  in  ac- 
cordance with  the  admissions  of  the 
plaintiff. 

[Hoplev  J. :  In  view  of  the  letter  of 
the  defendant,  I  do  not  see  that  any 
harm  oould  be  done  by  making      the 


amendment,  and  the  declaration  will  be 
amended  Qooordingly.] 

Defendant,  in  answer  to  the  Court, 
said  that  he  proposed  to  put  the  chil- 
dien  in  a  home  when  they  came  into 
his  custody,  but  he  was  not  quite  pre- 
pared to  receive  them  at  present. 

Hopley,  J.,  said  that  a  d€»cree  of 
divorce  would  be  granted  as  prayed, 
and  plaintiff  woiild  be  given  custody  of 
the  three  children,  in  accordance  with 
the  request  of  defendant  herself.  He 
thought  it  was  clear  that  if  plaintiff 
took  any  of  the  children  he  must  take 
them  all,  otherwise  he  would  have  to 
pay  something  to  defendant  for  their 
maintenance,  say,  10s.  per  month  for 
each  child. 

Plaintiff  said  that  he  could  not  afford 
to  pay  30s.  a  month. 

Hopley,  J.,  said  thait  if  the  children 
remained  with  their  mother  and  plain* 
tiff  did  not  make  satisfactory  arrange- 
ments with  her  with  regard  to  their 
maintenance,  she  would  have  leave  to 
api)ly  to  the  Court  for  an  order  against 
plaintiff  to  pay  so  much  per  month. 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplkt.] 


DAVIS  V,  MCDONALD. 


j       1905. 
i  Nov.  8th. 


Employer  and  employee — Month- 
ly notice. 

D.  7i<%d  contracted  to  sei^e  M. 
for  a  certain  monthly  salary^ 
the  engagement  to  he  termina- 
hie  on  a  montlCx  tiotice  on 
cither  side.  D.  asserted  thai 
it  wa-n  undersfoftd  hetirecn  him- 
Hclf  and  one  B.  that  the  noti4:e 
niuni  expire  (tn  the  la.it  day  of 
the  month.  M.  had  (jive-n  D. 
notice  on  the  9th  December^ 
1904y  and  tendered  plaititiff^a 
salary  to  January  9th^  1905. 
B.  was  not  called  for  the 
defence^  and  it  xoaa  admitted 
thai  D.  icas  in  the  habit  of 
rendering  his  accounts  at  the 
end  of  each   month »     D,  now 


920 


II 


CAPE  TIMES"  LAW  REPORTS. 


claimed  salary  foi'  the  entire 
month  of  January. 

Held,  tliat  judgment  muat  ft« 
gire-n  for  D.j  with  costn. 


This  was  an  action  brought  b>  De 
Leon  Davis,  mechanic^  engineer,  resid- 
ing in  ('ano  Town,  against  Charles  Ar- 
thur MacDonaid,  manufacturer  of  re- 
frigerating machinery,  to  recover  £51 
11*.,  alleged  to  be  due  by  way  of  salary. 

PlaintaflF,  in  his  declaration,  said  that 
in  October,  1903,  he  was  engaged  at  a 
salary  of  £25  15«.  6d.  and  expensee,  from 
month  to  month,  and  subject  to  one 
month's  notice,  the  salary  to  be  payable 
at  the  end  of  eacji  month.  Plaintiff  wiw 
subsequently  engaged  to  superintend  the 
(Jape  Town  office  of  the  defendant. 
PliuntiflF  duly  fulfilled  his  part  of  the 
agreement,  and  the  said  employment  was 
continued  from  month  to  monbh,  until 
December  9,  1904,  when  the  defendant, 
through  his  duly  authorised  agent,  gave 
the  plaintiff  a  month's  notice  to  com- 
plete the  said  agreement.  Plaintiff  con- 
tended t^hat  the  legal  effect  of  the  said 
agreement  was  that  it  should  terminate 
on  January  31,  1906,  Plaintiff  continued 
in  the  employment  of  the  said  Mac- 
Donald  until  January  9,  1905,  and  said 
that  he  was  ready  and  willing  to  remain 
in  the  defendant's  employment  until 
January  31.  He  claimed  payment  of  his 
salary  for  the  months  of  December  and 
January,  viz.,  £51  lis. 

Defendant,  in  his  plea,  said  that  under 
the  agreement  he  was  entitled  to  ter- 
minate the  engagement  of  the  plaintiff 
at  30  dajrs'  notice,  reckoned  from  the 
date  of  giving  such  notice,  and  that  the 
plaintiff  was  given  and  received  30 
days'  notice  on  December  9.  1904.  De- 
fendant had  tendered  to  plaintiff  the 
sum  of  £33  10s.  9d.,  being  the  salarj 
to  which  he  was  entitled  to  January  9, 
1906.  Defendant  said  further  that  it 
was  plaintiff's  duty  to  supply  lists  of 
his  expenses,  supported  by  proper 
vouchers,  and  that  plaintiff  had  failed  to 
supply  vouchers.  Plaintiff  had  falsely 
and  fraudulently  claimed  for  amounts 
largely  in  excess  of  his  board  and  lodg- 
ing, and  had  been  paid  £91  168.  9d. 
more  than  he  was  entitled  to.  In  re- 
convention defendant  claimed  £58  6s., 
being  the  difference  between  the  sum  of 
£33  10s.  9d.,  to  which  he  admitted  that 
plaintiff  was  entitled  for  salary  to  Janu- 
ary 9,  and  the  sum  of  £91  16s.  9d.,  ex- 
cess of  charges  made  by  the  plaintiff 
for  board  and  lodging. 

Plaintiff,  in  his  replication,  said  that 
defendant  never  requested  him  to  render 
vouchers  for  his  expenses,  and  that  the 
claims  for  expenses  were  duly  sub- 
mitted to  and  paid  by  defendant.  As 
a  plea  to  the  claim  in  reconvention,  he 
denied  tlie  allegations  of  fraud  and  false 
pretences,    and    prajod    tliat    the       de- 


fendant's  claim  be       dismissed,      with 
costs 

Mr.  J.  E.  R.  de  Villiei»  (with  him  Mr. 
Russell)  was  for  plaintiff;  Mr.  W.  Por- 
ter Buchanan  (with  him  Mr.  M.  Bissett) 
was  for  defendant. 

D.     lioon     Davis  (plaintiff)   said  that 
he      was        a      mectianioal      operating 
and     supervising   engineer.       The      de- 
fendant     was      a      manufacturer      of 
refrigerating     machinery,     and     carried 
out     contracts     all     over     the     world. 
Witness  was  engaged  by  defendant     in 
May,  1902.  to  superintend  tjhc  erection  of 
certain  refrigerating  machinery  in     this 
colony,  and  entered  into  an     agreement 
for  one  year  at  a  salary  of  1,500  dollars, 
and  expenses.       Witness   first  went     to 
Port  Elizabeth,   and   afterwards  he  was 
in  Cape  Town.  He  then  went  to  Somer- 
se4;  West,   and  was  employed  on  behalf 
of  the  respondent  at  De  Beers  Explosive 
Works.       In  regard  to  expenses,  the  de- 
fendant firm  sometimes   made  inquiries, 
but  the  ordinary  course  of  business  was 
for  him  to  make  a  report,  and  that  re- 
port would   be  accepted  by  his  employ- 
ers,   who    would    then    render    him       a 
statement  showing  what  was  due  to  him. 
and  make  payment.       No  obiection  wa» 
raised  to  his  charge  for  hotel  expenses. 
The  only  item  to  which  exception     was 
taken   was    a   subscription  of   £5  which 
he  gave  towards  the  entertainment  of  the 
officers  and  crews  of  the  American  Flc»et, 
on    the   occasion   of   the    visit   to      the 
Cape.       Witness   subscribed    the   money 
as  coming  from  his  office,  but  the  firm 
declined  to  pay,   and  charged  it  back  to 
him. 

fHopley,  J. :  They  did  not  think  it 
was  an  item  you  ought  to  commK  the 
firm  to  at  all?] 

Yes,  sir;  they  charged  dt  back  to  me. 
Witness  gave  evidence  as  to 
the  custom  adopted  by  the  de- 
fendant firm  in  regard  to  his  ex- 
penses  while  engaged  at  Somerset  W^est. 
Witness  stayed  on  the  property  by  an 
arrangement  that  he  should  come  to 
town  once  a  week,  and  be  allowed  ex- 
penses. His  wife  was  at  that  time  atay- 
mg  at  Weston  House.  Sea  Point.  He 
spoke  to  the  arrangement  which  obtain- 
ed when  he  removed  to  Mr.  Abegglen's 
hotel  at  Somerset  Strand.  He  stayed 
with  his  wife  at  Mr.   Abegglen's,      and 

Said  £13  or  £13  10s.  a  month,  having 
een  unable  to  continue  at  the  culinary 
department  at  De  Beers  W^orks  on  ac- 
count of  the  food.  The  charge  for  him- 
self alone,  Mr.  Abegglen  told  him, 
would  have  been  £7  15s.  a  month.  Wit- 
ness had  frequently  to  come  to  town  in 
connection  with  the  electrical  machi- 
nery. In  September  or  October,  1903, 
having  completed  his  work  at  Somerset 
West,  he  came  to  town,  and  entered^  into 
a  further  contract  with  Mr.  Beveridge. 
acting  on  behalf  of  the  defendant,  who 
had  other  large  machinery  to  erect  for 
the  Imperial  Cold  Storage,  and  the  Cape 
C<M   Storage.       The   firm    were    using 


"CAPE  TIMES"  LAW  REPORTS. 


<V21 


every  endeaTour  to  induce  him  to  stay, 
and  to  giT6  up  the  notion  of  going  back 
to  America.  Witness  said :  "I  have 
made  up  my  mind  to  oondude  arrange- 
ments for  another  class  of  business  ol 
mpr  own,  and  I  won't  make  any  contract 
with  you  definitelj^,  but  I  will  enter  into 
an  agreement  with  you  month  by 
month."  The  engagement  was  to  be 
terminable  upon  one  month's  notice  on 
either  aide,  and  ran  from  the  first  of 
each  month.  He  was  to  receive  £25 
15s.  6d.  and  expenses,  a  special  arrange- 
ment being  made  as  he  desired  to  t^ke 
a  house,  so  that  his  wife  could  do  the 
cooking.  Withess  was  suffering  from 
indigestion.  ^He  took  a  furnished  house 
at  Green  Point,  and  the  firm  agreed  to 

Say  half  of  his  housekeeping  expenses, 
[e  continued  housekeeping  until  April, 
1904,  but  he  found  the  expenses  to  be 
very  large,  and  as  his  general  health 
did  not  seem  to  improve  very  much 
under  his  wife's  cooking,  and  catering 
to  his  wants  of  appetite,  he  decided  to 
give  up  the  house.  He  afterward* 
went  to  a  boarding-house,  where  he  was 
accompanied  by  Mrs.  Davies.  The  pro- 
prietor told  him  that  the  charge  to  him 
alone  would  have  been  eleven  guineas. 
It  was  specially  understood  in  the  nego- 
tiations between  Mr.  Beveridge  and 
himself  that  the  notice  should  not  break 
into  a  month,  but  that  notice  should 
terminate  on  the  last  day  of  the  month. 
On  the  9th  December  last  he  saw  Mr. 
Davidson,  a  representative  of  the  de- 
fendant ,firm,  who  told  him  that  they 
were  thinking  of  shutting  down  the 
Capo  Town  office.  It  was  common  in 
America  in  business  matters  to  use  the 
term  "30  days."  He  did  not  think, 
however,  that  he  used  that  term,  be- 
cause his  intention  had  been  to  have  all 
his  arrangements  running  to  the  end  of 
the  month.  On  the  14th  December  he 
was  sent  by  the  firm  to  Kimberley,  and 
he  returned  to  Cape  Town  on  the  7th 
January. 

In  cross-examination  the  witness  ad- 
mitted that  he  had  whilst  in  defendant's 
employment  looked  after  machinery  for 
the  Verster  Cold  Storage,  but  with  the 
defendant's  permission.  He  had  order- 
ed a  boiler  from  a  rival  house,  when  it 
was  found  that  defendant's  did  not  suit. 
Witness  did  not  hold  himself  out  as  con- 
sulting engineer  to  the  Federal  Cold 
Storage,  although  ho  was  addressed  as 
such. 

Mr.   Buohanan:   Did  you  refute  it? 

Witness :    No. 

Witness  wa«  further  cross-examined 
with  regard  to  outside  work  he  had 
done. 

[Hopley,  J.  (to  Mr.  Buchanan) : 
What  do  you  wish  to  prove? — That  he 
has  been  doing  underhund  work?] 

Work  that  we  knew  nothing  of. 

In  further  cross-examination  witness 
said  he  was  surprised  to  hear  that  de- 
fendant had  been  selling  boilers  like  the 

n2 


one  supplied  to  the  Federal  Cold  Stor- 
age for  a  period  of  seven  years.  Wit- 
ness denied  that  he  had  made  commis- 
sion or  anything  else  for  supplying  ma- 
chinery to  the  Federal  Cold  Storage  for 
outside  firms.  Witness  had  received  a 
fee  from  Mr.  Verster  for  advice  given. 

By  the  Court:  Witness  was  endea- 
vouring to  further  the  interests  of  his 
firm  in  advising  the  Federal  Cold  Stor- 
age. 

Witness  (further  cross-examined)  de- 
nied that  the  defendant's  firm  had  to 
pay  his  wife's   travelling  expenses. 

Mr.  Buchanan :  You  apparently  have 
a  large  scope  for  vour  expenses.  I  see 
you  charge  for  hotels,  theatres,  cars, 
wines,  etc. 

Witness  said  he  never  had  to  present 
vouchers  for  expenses  until  the  present 
case  came  on.  He  gave  vouchers  when 
he  had  them. 

Hopley.  J.,  said  he  oomeidered  that 
it  was  unnecessary  to  re-open  the  ac- 
counts which  had  been  paid.  Counsel 
would  have  to  come  almost  to  dis- 
honesty and  fraud  before  the  Court 
would  reopen  these  accounts.  If  the 
firm  had  just  discovered  the  matter,  the 
Court  might  listen  to  it,  but  they  had 
got  into  trouble  with  him  over  a  small 
amount,  and  they  now  wanted  to  re- 
open his  accounts  for  the  past  three 
years,  all  of  which  had  been  paid,  and 
should   have   been   inquired    into. 

Mr.  Buchanan  contended  that  he  wafi 
justified  in  reopeninj^  the  matter,  if  ho 
could  prove  that  his  clients  had  been 
charged  more  than  they  should  have 
paid. 

[Hopley,  J. :  You  are  trying  to 
prove  that  he  is  absolutely  and  fraudu- 
lently charging  items  that  he  never 
spent?] 

They  are  outside  his  own  actual  ex- 
penses. 

[Hopley,  J. :  He  has  actually  ex- 
pended these  amounts,  and  ^ou  have 
to  prove  that  he  did  not  do  it  on  be- 
half of  your  firm.] 

He  has  expended  money  on  Mrs. 
Davis,  which  we  should  not  be  asked 
to  pay. 

The  witness  denied  having  charged  the 
firm  for  Mrs.   Davis's  maintenance. 

[Hopley,  J. :  If  a  man  wishes  for  the 
company  of  his  wife,  he  is  entitled  to 
it.] 

But  he  has  gone  in  for  larger  and 
better  rooms  because  of  the  presonro 
of  his  wife. 

[Hopley,  J. :  But  he  doos  not  charge 
for  her.]" 

He  has  also  had!  fires  in  his  room. 

Witness :  I  never  charged  MacDonald 
for  coal  or  oil,  although  I  i^hould  have 
done  so. 

By  the  Court:  Any  excess  in  the 
amount  allowed  was  incurred  on  b<*half 
of  the  firm. 


!)22 


<i 


CAPS  TIMK8"  LAW  BBPOETft. 


Mr.  Buchaiutn  (to  witneas) :  I  put  it 
to  you  that  yoa  oft«n  went  out  for  your 
own  pleasure,  and  charged  the  com- 
pany, especially  so  when  you  were 
stopping  at  Somerset  West? 

Witness :  I  am  not  00  fond  of  sitting 
in  the  train  for  three  hours  at  a  time, 
and  rising  before  daybreak  to  catch 
trains,  especially  in  4ho  winter  time. 

Mr.   De  Villiers  closed   hi*  caAo. 

Alexander  Davidson,  manager  of  the 
defendant's  buc)iness  in  South  Africa, 
said  that  when  ho  .spoke  to  plain- 
tiff in  Doocmber.  1904.  about  giving  up 
the  Cape  Town  branch,  the  latter  said 
that  he  would  want  30  days'  notice.  To 
this  witnefti  agreed.  Plaintiff  did  not 
say  that  he  had  agreed  with  Mr. 
Beveridflre  that  lie  was  to  have  a  com- 
plete calendar  month's  notice.  Wit- 
ness saw  plaintiff  on  the  10th  January, 
and  tendered  to  him  his  salo'ry,  but  this 
plaintiff  refused  to  accept,  and  said  that 
he  must  have  30  days'  notice  from  the 
first  day  of  the  month.  Witness  went 
on  Mr.  Davis's  own  words  on  the  9th 
December  that  he  was  to  have  30  days' 
notice. 

Cross-examined  by  Mr.  De  Villiers: 
Witness  knew  nothing  whatever  as  to 
what  pasfied  between  plaintiff  and  Mr. 
Beveridgc.  Plaintiff    said    that       he 

would  want  30  days'  notice,  and  wit- 
nws  gave  him  notice  accordingly.  If 
plaintiff  had  said  that  ho  would  reauire 
a  month's  notice,  witness  would  nave 
undorstood  that  the  notice  should  com- 
mence on  the  1st  of  the  month.  Mr. 
Bevi»ridge  was  in  Durban  in  January, 
but  in  February  he  had  jfone  away. 

Mr.  Bisset  read  the  evidence  of  th<' 
defendant,  taken  on  commission.  Mr. 
Macdonald  r>poke  to  having  had  an 
interview  with  the  plaintiff  on  the 
10th  January  la^t,  when  the  latter  said 
he  wanted  30  clays'  notice,  which  was 
one  month. 

Mr.  Buchanan  closed  his  case. 

('Ounsel  having  been  heard  in  argu- 
ment on  the  question  of  the   notice. 

Hopley,  J. :  The  sole  matter  that 
remains  in  dispute  between  the 
particH  is  whether  or  not  the 
plaintiff  is  entitled  to  be  paid 
salary  to  the  end  of  January,  1906. 
i.e..  £51  lis.,  for  December  and  Janu- 
ary, or  whether  the  amount  tendered  by 
the  defendant.  £33  odd.  was  a  sufficient 
sum.  Other  matters  have  been  Intro- 
duced in  the  defendant's  plea  and  coun- 
ter-claim, which  they  have  dropped,  I 
think,  wisely,  but  I  'must  remark  with 
none  too  good  a  grace.  I  think  that 
they  would  have  had  exceeding  difficulty 
In  making  any  sort  of  case  to  try  ancl 
upset  the  accounts  which  they  had  pass- 
ed, and  which  they  had  paid  out  and 
considered  settled  for  a  long  series  of 
months.  I  think  it  would  have  been 
more  graceful  if,  in  dropping  that  coun- 
ter-claim, they  had  at  once  said  that 
they  had  no  groimds  for  the  allegations 


which  they  had  made,  and  made  appar- 
I  ently  witnout  being  able  to  oall^  an7 
witnesses,  as  they  taenftselves  admit,  to 
support  them  to-day.  What  I  have  to 
decide  is  the  simple  inatter  of  what  was 
the  contract  at  the  time  8ub8istins[  be- 
tween plaintiff  and  defendant,  plaintiff 
being  at  that  time  on  a  montnly  en- 
gagement with  the  defendant  at  a  fixed 
salary.  The  point  is  a  simple  one,  but 
it  does  not  by  any  means  follow  that 
there  is  not  some  difficulty  about  it  in 
regard  to  the  evidence  which  is  to  es- 
tablish so  simple  a  position.  The  plain- 
tiff says  that  ne  agreed  with  Mr.  Mac- 
donald and  his  representative,  Mr. 
Beveridge,  to  remain  in  the  service  of 
the  former  a  little  longer  on  condition 
that  he  was  not  tied  down  for  anything 
'  longer  than  a  month.  He  says  that  he 
I  stipulated,  and  it  was  then  tnoroughly 
understood,  between  him  and  Mr. 
Beveridge,  that  a  month  under  that 
agreement  should  mean  a  calendar 
month,  beginning  on  the  first  day  of  the 
month,  and  ending  on  the  last  day.  I 
am  inclined  to  believe  the  plaintiff's  ver- 
sion of  the  contract  with  Mr.  Beveridgc, 
and  I  come  to  that  conclusion  for  more 
than  one  reason.  Plaintiff  was  in  the 
habit  of  rendering  his  accounts  to  the 
defendant  by  the  calendar  month.  Then 
again,  he  took  a  furnished  house,  and 
any  one  who  knows  anything  about  the 
matter  knows  that  it  is  necessary  to  run 
such  a  establishment  here  from  the  first 
to  the  end  of  the  month.  I  think  that 
there  is  an  a  priori  very  good  ground 
for  supposing  that  plaintiff  said  to 
Beveridgc  that  it  should  be  a  month, 
and  that  it  should  be  a  calendar  month 
running  from  the  first  to  the  last  day  of 
the  month.  There  is  one  way  of  dis- 
proving this,  that  has  not  been  adopted 
by  the  defendant,  and  that  is  to  call 
Beveridge  to  give  his  version  of  the 
agreemeat.  It  is  not  as  if  the  defend- 
ant had  had  no  opportunity  of  doing  so. 
because  Beveridge  was  still  in  South 
Africa  when  this  point  arose,  and  was 
discussed  between  the  parties.  As  the 
whole  contract  was  between  Beveridge 
and  the  plaintiff,  it  seems  absolutely  eU^ 
mentary  common  sense  and  elementary 
law,  and  they  must  have  known  that 
Beveridge  was  the  one  person  who 
should  have  come  here  with  regard  to 
the  contract.  I  cannot  help  tninking 
that  Mr.  Beveridge  should  have  been 
called  in  this  matter.  Judgment  will  be 
gi\en  for  the  plaintiff  for  the  amount 
claimed.  £51  lis.,  with  costs  of  suit. 

Mr.  De  Villiers  applied  for  the  ex- 
penses of  the  plaintiff  as  a  necessary 
witness  inasmuch  as  ho  had  had  to  come 
to  Cape  Town  from  Johannesburg, 
where  he  had  been  on  business. 

Mr.  Buchanan  said  that  defendant 
had  been  thinking  of  applying  for  an 
order  for  security  of  costs  against  plain- 
tiff,  as  he  was  an  alien. 

Hopley,  J.,  allowed  pladntiff  his  per- 
sonal expe^ises,    and   also   allowed   him 


t* 


CAPE  TIMES"  LAW  REPORTS. 


923 


oosto  of  an  application  made  in  March 
last. 

Pkuntiff's  Attoroieye:  Fairbridge,  Ar- 
derne  and  Lawton;  Defendant's  Attor- 
iwys:    Roid  and  Nephew.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the   Actingr  Chief  Justice,  the 
Hon.  Sir  Johi?  Buchanan.] 


ADMISSIONS. 


Ik 


i9or,. 

Xov.  10th. 


Mr.  Roux  moved  for  the  admission  of 
Josua  Petrus  Malherbe  as  an  attorney 
and  notary. 

Application  granted  and  oaths  ad- 
ministered. 

Mr.  J.  E.  R.  de  Villiers  nwved  for 
the  admission  of  Daniel  Cornelius  de 
Villierft  as   aii  attorney   and   notary. 

Applications  granted  and  oath»  ad- 
min istei*ed. 

Mr.  J.  E.  R.  de  Villiers  moved  for 
the  admission  of  Ockert  Jacobus  Oost- 
huizen  as  a  conveyancer. 

Application  granted  and  onths  ad- 
ministered. 


PROVISIONAL  ROLL. 


TIOI.ItlKS  AND  CO.   V.   ''''^YKll.  |  j^^^,     j'^j^jj 

This  was  an  application  for  provisional 
sentence  on  two  promissory  notes  for 
£178  13s.  6d.  and  £31  7s.  respectively. 

The  defendant's  affidavit  stated  that 
he  was  a  farmer,  aged  63  years,  and 
resided  ai  Upington.  Until  November 
last  he  lived  in  German  South-west 
Africa.  During  the  war  two  of  his 
sons  were  shot,  and  he  had  lost  nearly 
ail  his  stock.  He  had  always  been  a 
luird  drinker,  but  since  the  loss  of  his 
children  and  stock  he  had  been  very 
much  upset.  He  had  been  drinking 
very  heavily  of  late.  He  used  to  ob- 
tain brandy  from  Hirech^on,  but  the 
brandy  was  not  good,  and  it  made  him 
Tiearly  half-mad.  He  did  not  remem- 
ber having  signed  the  notes  in  ques- 
tion. 

The  answering  affidavit  of  Herman 
Hirsohson.  generall  dealer,  stated  that 
there  was  a  transaction  in  mules,  in 
which    Marensro.   the    Hottentot    leader, 


had  a  hand.  Deponent  went  on  to 
say  that  he  had  known  defendant  was 
in  the  habit  of  drinking,  but  ho  had 
never  known  him  unfit  to  transact 
business  on  account  of  drunkenne«s.  On 
the  day  in  question  defendant  was  sober, 
and  quite  capable  of  transacting  but^i- 
ness.  The  notes  were  given  to  de- 
ponent's firm  for  goods  sold  and  de- 
livered, and  were  endorsed  over  to  W. 
J.  Holmes  and  Co.  for  valuable  con- 
sideration. Affidavits  bv  Joseph 
Hirschson  and  others  were  also  read. 

Mr.  Benjamin  for  plaintiff;  Mr.  Bur- 
ton for  defendant. 

Buchanan.  A.C.J..  said  it  seemed  to 
him  that  the  defendant  denied  the 
signature  to  the  notes,  and  al$K)  alleged 
fraud'. 

Mr.  Burton  said  that  he  did  not  take 
the  point  that  defendant  denied  having 
signed  the  notes,  but  what  defendant 
did  say  was  that  he  had  no  recollec- 
tion of  the  alleged  transaction.  De- 
fendant's position  was  that  his  unfor- 
tunate condition  was  taken  advantage 
of  by  these  traders  out  in  the  country. 
Counsel  read  further  affidavits  by  de- 
fendant and  others,  the  former  alleging 
that  since  his  arrival  in  the  district  he 
had  been  supplied  by  the  Hirachsons 
and  others  with  as  much  bad  brandy 
as  he  could  drink,  until  hi/^  mind  had 
become  deranged.  Mr.  Burton,  in 
argument,  urged  that  this  was  etisen- 
tially  a  case  in  which  plaintiff  should 
show  what  the  consideration  was  for 
which  the  notes  had  been  given  bv 
defendant.  Was  it  all  **  sarsaparilla.^' 
tli«  name  bv  which  brandy  was  known 
among  traders  dealing  in  illicit  liquor? 
The  Hirschsons  were  not  licenned 
dealei*s  in  liquor,  and  there  was  no- 
thing to  show  that  defendant  had  had 
anything    from   them   except   liquor. 

Mr.  Bo.ijamin  said  that  the  defence 
was  not  a  denial  of  the  signature,  but 
it  was  alleged  that  the  notes  were  ob- 
tained from  defendant  when  under  the 
influence  of  drink,  and  were  not  for  just 
consideration.  As    to    the    condition 

of  the  defendant.  counsel  submitted 
that  the  balance  of  the  testimony  was 
in  favour  of  the  contention  of  the  plain- 
tiffs that  Fryer,  although  admittedly  a 
heavy  drinker,  was  Fober  and  fit  *  to 
transact  business.  As  to  the  alleged 
illegal  consideration,  it  was  merely  sug- 
gested in  the  affidavits  put  in  by  the 
other  side  that  the  notes  were  given  for 
liquor  supplied  to  defendant,  but  no 
direct  statement  to  that  effect  was 
made.  The  plaintiffs,  he  f^ubmitted. 
had  taken  the  notes  over  from  the 
HirschBons  for  valuable  consideration, 
and  were  entitled  to  provisional  sen- 
tence. 

Buchanan.  A.C.J..  said  that  if  this 
had  been  a  case  brouorht  by  Hirschson, 
the  two  grounds  which  had  been  al- 
leged by  the  defendant  would  have  been 
sufficient  to  induce  him  to  refuse  pro- 
visional       sentence,  Unforfunntclv, 


1>2» 


<i 


CAPE  TIMES"   LAW  REPORTS. 


tlio  notes  were  in  the  hands 
of  A  third  person,  sn  inno- 
cent holder,  and  under  these  oiroum- 
stanoes.  he  (the  learned  judge)  thought 
that  if  Fryer  believed  that  he  could 
Ruccccd  in  an  action  against  the  holder, 
ho  should  go  into  the  principal  case. 
Provisional  sentence  would  be  granted, 
with  costs.  If  the  parties  went  into  the 
principal  case,  defendant  would  have  an 
opportunity  of  recovering  costs  of  the 
provisional  sentence.  | 

At  a  later  stage,  His  Lordship  pointed    | 
out  to  Mr.   Burton    that  he    thought  it 
would  be  very  desirable,  if  the  defendant    • 
consented,  that  the  case  should  be  tried 
in    the   Magistrate's    Court,    instead    of 
bringing  it  to  Cape  Town.  ' 


VAN  LTLL  V.  HOLM. 

Mr.  M.  Bisset  moved  for  provisional 
sentencM)  for  £14  14s.  6d.,  on  a  cheque, 
together  with   interest. 

Order   granted. 


STUTTAKOBD  AND  CO.  V.  MOOBE. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £1,000,  with  interest,  the  bond  hav- 
ing become  due  by  reason  of  the  non- 
payment of  interest  and  notice  given. 
Counsel  also  applied  for  the  property 
specially  hypothecated  to  be  declared 
executable,  and  for  the  rents  accruing 
from  the  said  property  to  be  attached. 

Order  granted. 


SHAW   V.  ABEND  AND  SOEKBR. 

Mr.  De  Waal  moved  for  provisional 
sentence  upon  a  promissory  note  for 
£104. 

Order  granted. 


CLUVBR  V.  CAB8IEM. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £240,  with 
interest,  the  bond  having  become  due 
by  reason  of  the  non-payment  of  interest 
Ck>unsel  also  applied  for  the  property 
specially  hypothecated  to  be  declared] 
executable. 

Order  granted. 


VAN  DEB  MERWB  V.  DIT   PLBS8IS. 

Mr.  Sutton  moved  for  provisional  sen- 
tence upon  a  mortgage  bond  for  £300, 
with  interest,  the  nond  having  become 
due  by  reason  of  the  non-payment  of 
interest.  Counsel  also  applied  for  the 
property  specisj  >  hypothecated  to  be  de- 
clared executable. 

Order  granted. 


8TBBET  T.  VAN  BEENKN. 

Mr.  P.  T.  Jones  moved  for  the  final 
adjudication  of  the  defendant's  estate  aa 
insolvent. 

Order  granted. 


BBURSELL  AND  CO.  T.  KOTZE. 

Mr.  De  Waal  moved  for  a  decree  of 
civil  imprisonment  upon  an  unsatisfied 
judgment.  Counsel  read  an  affidavit  by 
defendant,  of  Calvinia,  admitting  the 
debt.  He  said  the  debt  was  incurrKl 
before  the  war.  He  joined  the  rebel 
forces,  and  his  property  had  been  confis- 
cated, with  the  result  that  he  was  with- 
out means,  and  oould  not  discharge  the 
debt.  He  was  now  working  as  a  farm 
labourer,  and  had  a  wife  and  family  de- 
pendent upon  him.  He  offered  to  pay 
OS.  a  month  in  discharge  of  the  debt. 

Decree  granted,  with  costs,  execution 
to  be  suspended  upon  payment  of  5s. 
a  month,  leave  being  reserved  to  either 
party  to  move  the  Court  again. 


ODTHBIK  AND  THEBON  V.  VISAGIE. 

Mr.  P.  S.  T.  Jones  moved  for  provi- 
sional sentence  upon  a  mortgaire  bond 
for  £300,  with  interest,  the  bond  having 
become  due  by  reason  of  the  non-pay- 
ment of  inter^t ;  counsel  also  applied  for 
the  property  .specially  hypothecated  to  be 
declared   executable. 

Order  granted. 


ILLIQUID  ROLL. 

ZWABTKOPS  VALLEY  CO.    V.  S         1905. 

JACOBS.  i|  Nov.  10th. 

Mr.  Wright  moved  for  judgment  in 
terms  of  consent  paper  for  £40,  balance 
of  account. 

Order  granted. 


ESTATE  SCHOLTZ  V.  RADZTWILL. 

Mr.  Benjamin  moved  for  judgment, 
under  Rule  319,  upon  a  declaration  claim- 
ing the  sum  of  £160,  being  moneys  lent, 
and  for  an  order  declaring  certain  jew- 
ellery pledged  by  the  Princess  R«diiwill 
with  tne  plaintiff,  to  be  executable  in 
satisfaction  of  plaintiff's  claim.  Coun- 
sel read  an  affidavit  by  Mr.  Kayser.  at- 
tornev,  who  said  t^at  his  firm  acted  on 
l>ehalt  of  the  plaintiff.  He  had  received 
an  offer  from  Johannesburg  for  the  pur- 
chase of  the  property  in  question.  ^  He 
had  had  the  property  valued  by  a  jewel- 
ler in  Cape  Town,  who  valued  the  dia- 
monds at  £75  (5  carats,  at  £15  each), 
and  the  gilt  purse  and  pin,  etc.,  at 
£5.  making  a  total  of  £80,  Tbe  amount 


C( 


CAPE  TIMES"  LAW  REPORTS. 


925 


for  which  the  property  was  pl^^dged  wae 
£160,  and  authonty  was  asked  to  8ell 
it  out  of  hand  at  the  highest  pric*e  ob- 
toinable  above  £80.  Deponent  antici- 
pated being  able  to  sell  the  property  at 
100  guineas  or  more,  and  annexed  to  his 
affidavit  a  memorandum  in  Princct^  Rad- 
ziwilKH  iiandwriting.  admitting  the 
debt. 

[Buchanan,  A.C.J. :  Ought  not  the 
property  to  bo  sold  through  the  Sheriff?] 

Mr.  Benjamin  :  That  is  the  usual  wav, 
but  it  is  anticipated  that  if  the  plaintiflf's 
attorney  can  sell  it  out  of  hana  a  better 
price  may  bo  realised. 

[Buchanam,  A.C.J. :  It  may  bo  »t>ld 
out  of  hand,  but  ought  it  not  to  bo  sub- 
ject to  the  approval  of  the  Sheriff?] 

Mr.  Beujamm  said  he  did  not  see  any 
objection  to  the  adoption  of  such  a 
course. 

[Buchanan,  A.C.J.  :  You  will  no  doubt 

get  a  better  price  by  selling  out  of  hand, 
ut  I  think  the  sak  should  go  through 
an  officer  of  the  court.  The  Sheriff  will 
have  authority  *o  .Hell  out  of  hand.] 

Mr.  Benjamin:  Of  course,  it  will  not 
bo  necessary  for  the  Sheriff  to  advertise 
it? 

[Buchanan,  A.C.J. :  Oh,  no.  Tut  it 
had  better  be  a  judicial  sale,  and  it 
hhouid  go  through  the  officers  of 
the  Court.  Judgment  will  bo  given 
as  prayed,  and  the  property  de- 
clared executable,  and  authorfty  will 
bo  given  to  sell  the  property  to  the  best 
advantage,  either  by  public  or  by  pri- 
vate sale. 

Mr.  Benjamin:  Will  that  mean  that 
the  Sheriff  will  have  to  sell  by  public 
auction  ? 

[Buchanan.  A.C. J. :  No;  he  can  tell 
to  tlic  best  advantage  either  way.] 


BIGCARD  V.  8MELLEKAMP. 

Mr.  Bailey-  moved  for  judgment  under 
Rule  320d  m  terms  of  tne  summons  for 
transfer  of  certain  land  at  D' Urban-road, 
plaintiff  tendering  costs  of  transfer. 

Order  granted. 


GENERAL  MOTIONS. 


BEVKRN  AND  GO.    V.  ROYAL  f        11KI.V 

1  Nov. 


HOTEL  CO. 


Nov.   10th. 


REHABILITATION. 


Mr.   Bailey   moved   for  the   diiyuharge 
of  J.  T.  P.  de  Villiers  from  insolvency. 
Granted. 


Thi«  was  an  application  on  notice  of 
motion  oalling  on  the  reepondente  to 
show  cause  why  certain  articles  of 
furniture  should  not  be  delivered  up  to 


tile  applicants  under  the  ieruk>  of  «ui 
agi^eement  entered  into  on  7th  Decem- 
ber, 1904.  The  furniture  -wae  valued 
at  about  £2,500.  The  applicants  con- 
tended that  the  terms  of  tne  agreement 
had  not  been  complied  with,  while  the 
official  Uquidaton  of  the  respondent 
company  set  out  that  they  found  it 
against  the  interests  of  the  creditors  to 
give'  delivery  to  the  applicants  until 
they  established  their  ownership  in 
court.  They  hiad  discovered  that  the 
rights  of  the  applioaiit^  were  not  ai> 
clear  as  represented,  but  on  the  con- 
trary they  tound  on  investigation  that 
the  furniture  was  originally  purchased 
in  a  manner  not  as  disclosed  by  the 
applicants.  Counsel  for  respondent's 
said  the  company  wanted  a  little  time 
to  make  further  enquiries  from  Mr. 
McCarthy,  who  was  at  present  in  Eng- 
land. 

Mr.  Benjamin  was  for  the  applicants 
and  Mr.  Burtou  was  for  the  respon- 
dents. 

fBuchanan.  A.C.J. :  Why  don't  you 
pay  the  rent?] 

■Mr.  Burton :  The  company  is  in  li- 
quidation. 

[Buchanan,  A.C.J. :  That  does  nut 
m-attor.] 

Mr.  Buiton  having  been  heard 
in  argument,  asked  lor  a  postpone- 
ment until  12tli  Decempber,  in  ortlor  to 
tallow  the  liquidators  to  make  further 
inquiries. 

Buchanan,  A.C.J. :  When  &  C5)mpauy 
is  placed  under  -liquidation,  it  is  equi- 
valent to  placing  a  priva/te  estate  under 
8e<^uet«tration.  If    this    had    been    a 

pnvat<j  estate,  no  doubt  Mr.  Bevern 
would  have  been  entitled  under  the 
contract  to  have  had  his  propertv  re- 
turned. The  liquidators  have  not  Himrn 
to  the  Court  anything  why  IW^\i*ru 
.should  not  be  allowed  to  remove  the 
furniture,  which  he  had  lea&ed  to  the 
company,  and  which  the  liquidators 
are  using  day  by  day,  for  the  l^enefit 
of  the  liquidation.  Bevern  is  suffering 
day  by  da^y  the  depreciation  of  his  pro- 
perty, by  its  use  by  the  liquid&tors. 
They  cannot  be  allowed  to  continue  to 
have  the  benefit  of  the  contract  un'le.ss 
they  undertake  to  pay  wthaA  ds  ntipu- 
lated  for  therein.  It  will  be  orden'd 
that  the  respondent  forthwith  deliver 
up  to  the  applicant  tho  furniture  men- 
tioned in  the  agreement,  and  this  ap- 
plication will  be  granted  with  costs, 
unless  tlio  respondents  undertake  within 
three  days  to  pay  tho  purchase  ])rico 
specified. 


Kr  pnrtf  THE  ESTATE  COETZER. 

Mr.  J.  K.  R.  de  Villiers  moved  for 
an  order  to  raise  a  loan  of  £650.  on 
certain  property,  which  had  been  be- 
queathed by  the  deceased  spouae  to  the 
petitioner,  Anna  Susannah  de  Klerk. 

The  matter  was  ordered  to  stand  over 
for  further  inquiries  by  the  Master. 


92<; 


"CAPE  TIMES"   LAW   REPORTS. 


MCKILLOP  V.  WOLFE  AM)  UCKILLOI*. 

This  was  an  application  upon  notice 
calling  upon  tho  curator  boniS  and  ap- 
plicant's wife  to  show  cause  why  be 
should  not  be  released  and  discharged 
from  curatonship,  under  which  he  was 
placed  on  the  ground  of  prodigality  by 
order  of  the  Court,  datou  the  3rd  No- 
%  ember.  1904,  and  why  ho  should  not  Ix* 
re -invested    with    his   estate. 

The  applicant's  affidavit  stated  that  hi> 
had  been  almost  a  total  abstainer  »inco 
the  order  of  Court  was  granted,  and  he 
asked  to  be  re-invested  with  his  estate. 
Ho  desired  to  be  reioincd  by  his  wife. 
Affidavits  by  a  meaioal  man  and  the 
Rev.  F.  O.  Waiters,  of  Wynberg,  were 
also  read,  speaking  to  the  improved  con- 
tion  and  habits  of  the  applicant  during 
the  past  ftix  months  or  so. 

Tlie  answering  affidavit  of  Mrs.  Mc- 
Killo])  (to  whom  applicant  in  mar- 
ried in  community)  expressed  the 
opinion  that  applicant' &  abstemious 
habits  were  due  to  the  moderate  amount 
allowed  to  him  each  month  by  the  cuifa- 
tor.  She  believed  that  if  tho  applicant 
were  re-invested  with  the  estate  tho  re- 
tults  to  the  estate  would  be  disastrous, 
becauHO  it  was  at  present  in  a  critical 
condition,  and  in  danger  of  being  placed 
under    fiequestration.  Applicant    did 

not  bring  anything  to  the  joint  estate ; 
ho  did  nothing  for  a  living,  and  he  did 
not  even  attempt  to  obtain  oniployment. 
Counsel  also  read  an  affidavit  liy  the 
curator,  Arthur  K.  Wolfe,  who  said 
that  while  ho  should  like  to  f«eo  tho  ap- 
plicant re-investod  with  his  estate,  he 
thou{|[lvt  it  was  inadvisublo  at  the  pro- 
aent  juncture. 

Th©  replying  ailidavit  of  the  appli- 
cant denied  the  allegation  that  his  im- 
proved habits  were  attributable  to  the 
restricited  allowance  on  -which  he  had 
l)e<'n  placed  by  tho  curator.  He  urged 
that  he  had  advanced  tlie  value  of  tho 
i»^tate  since  his  marriago  to  the  rc- 
.spondent. 

Mr.  W.   Porter  Buchanan  was  for  ap- 
)licant,       James       Henry  McKillop,    of 
Newlands ;    Mr.    Benjamin    wa<«   for    re- 
Hi>ondents. 

Buchanan.  A.C.J. .  ar>ked  what  w^as  tho 
ofcupation    of   the    applicant. 

Mr.  Buchanan  (after  consulting  with 
}ii:s  client)  .said  that  the  applicant  was 
formerly  a  salesman,  and  had  a  shop  in 
Loop-street. 

Buchanan,  AC. J..  asked  c<»un:>(>l 
whether  it  wouH  not  be  better  to  let 
the  estate  continue  under  its  present 
administration. 

Mr.  Buchanan  said  that  his  client 
would  not  object  to  the  joint  e.stote  be- 
ing co]itinued  for  some  little  time,  with 
Mr.  Wolfo  aa  financial  adviaer. 

Mr.  Benjamin  said  that  his  client 
merely  desired  to  protect  the  intererts 
of  the  estate. 

Buohanan,  A.C.J.,  granted  an  order 
releasing      tho    applicant    (loni    personal 


^ 


curatorship.  Mr.  Wolfe  to  remain  ad- 
mtnifltrator  of  the  joint  estate,  pending 
a  further  order  of  Court.  The  order 
declaring  the  applicant  to  be  a  prodigal 
would  be  discharged,  costs  to  come  out 
of  the  joint  estate.  His  lordship  added 
that  be  was  glad  to  notice  the  improre- 
mcnt  ill  the  applicant's  oondiiion,  and 
he  hoi)ed  that  it  would  continue. 


A>  jMrfr  THK  BbTATB  WATSON. 

Mr.  Gardiner  moved  for  an  order  fur 
tlie  a^ipointment  of  a  euraior  ad 
litem  in  the  estate  of  George  Peteraen 
to  be  joined  as  defendant  in  an  action 
relating  to  the  lease  of  certain  premises 
at  Colesbcrg. 

Mr.  P.  S.  T.  Jones  appeared  for  tlic 
executor  of  the  estate  of  Mrs.  Peter- 
tion. 

His  Lordship  said  that  the  Court 
would  appoint  the  executor  as  rvrator 
(id  litem  to  the  minors,  aua  executor, 
cofctto  to  abide  the   result. 


Em  parte  THE  Ei^TATK  IiOBEBTM>N. 

Mr.  Wriffht  moved  for  an  order 
autlioribing  tnc  ^urvcy  of  eeo^aiu  pro- 
perty in  the  district  of  George,  be- 
queatlied  by  the  late  Alfred  George 
Hobcrt^on,  so  as  to  diet4?niiinc  the 
boundaries  of  adjacent  farms.  The  Lakes 
and  Oukraal,  a-nd  define  the  rights  of 
the  legatees   under   the  will. 

Mr.  Seairle,  K.C,,  appeared  to  op- 
pose the  application,  and  produced  affi- 
davits by  Wm.  Robertson,  of  East- 
brook,  divi.sion  of  Knysua,  and  others. 

[Buchanan,  A.C.J. ,  ^aid  he  thought 
tho  only  thing  to  be  done  was  to  direct 
the  parties  to  proceed  by  an  action,  in 
which  al  persons  interested  in  the  estate 
should  be  joined.  No  order  would  he 
granted  on  the  present  application. 


Kt  parte  LYONS. 

Mr.  Lewis  moved,  on  the  petition  of 
Sarah  Lyons,  of  Hanover-street,  Cap« 
Town,  for  leave  to  sue  her  husboiid 
Solomon  Lyons,  commonly  known  as 
Frank  Lyons  in  forma  pauperis,  Tlio 
parties  were  married  in  London,  and 
applicant  desired  to  cue  for  judicial 
separation. 

The  matter  was  referred  to  Mr. 
Lewis,  who  certified  forthwith,  and  a 
rule  was  thereupon  granted  calling  on 
the  defendant  to  show  cause  on  the  12th 
December. 


/>  jtftrte  EDROOS. 

Mr.  Roux  moved  for  the  removal  of 
certain  conditions  mentioned  in  the 
codicil  of  a  will,  so  as  to  enable  peti- 
tioner to  raise  a  sum  of  £450  on  a  build- 
ing at  W^ynberg,  left  by  the  testator  to 


kf 


CAlPE  TtMES"  LAW  REPORTS. 


92: 


bo  used  as  a  znos^uei  in  such  manner  ai 
to  ffive»  as  security  for  the  advance  of 
£450,  the  right  to  the  persons  to  whom 
the  mortgage^  was  to  be  passed  to  sell 
the  property  in  execution  free  from  the 
conditions  of  the  said  codicil,  should  the 
property  not  realise  su£Eicient  to  cover 
the  bond  and  interest  when  put  up  to 
auction  subject  to  the  conditions  of  the 
codicil. 
No  order  was  granted. 


Ex  parte  OLIVIEK. 

Mr.  Sutton  moved  for  an  amendment 
of  an  order  of  Court  authorising  peti- 
tioner to  pass  a  mortgage  on  certain 
property  in  the  division  of  Uniondalc. 

Order  granted. 


h^  parte  AIOSTEBT  and  i)THKW». 

Mr.  De  Waal  moved  for  an  order  for 
tlH9  amendment  of  a  dc<2d  of  transfer. 
The  transfer  was  made  to  a  man  stated 
to  have  married  in  community,  wliercos 
he  was  mmrried  out   of  community. 

Order  granted. 


J'>  JHirtc  8TRUWIO. 

Mr.  Sutton  moved  for  an  order  au- 
thorising transfer  to  be  i)assed  of  a  cer- 
tain  ert   at  Hanover. 

No  order  was  granted,  His  Lordship 
stating  that  the  only  course  that  coula 
be  adopted  was  to  apply  to  a  judge  in 
chambers  under  the  Derelict  Lands  Act. 


E*r  ptirte  MAEAI8  AMD  ANOTHBR. 

Mr.  W.  Porter  Buchanan  moved  for 
leave  to  sell  certain  property  at  Bed- 
ford. 

Order  granted. 


A'lT  parte  SADIE. 

Mr.  Van  Zyl  moved  for  cancellation 
of  a  bond  on  certain  property  in  tne 
district  of  Darling.  The  bond  had  been 
lost,  bu^  the  amound  due  thereon  had 
been   paid. 

Order  granted. 


EtC  parte  DUUNE. 

Mr.  Sutton  moved  for  an  order  for 
the  amendment  of  a  bond  by  inserting 
the  full  name  of  petitioner,  John  Gilbert 
Venables  Doune,  in  place  of  John  Gil- 
bert Doune. 

The  matter  was  referred  to  the  Regis- 
trar of  Deeds. 


Ejt  parte  8U8SMA>\ 

Mr.  Roux  moved  for  an  order  author- 
ising the  transfer  of  certain  property  at 
Port  Elizabeth.  The  property  had  been 
bought  with  money  given  to  petitioner 
by  her  son,  and  was  registered  in  her 
name.  Hor  husband  was  a  lunatic,  and 
had  no  property.  She  had  sold  her  pro- 
perty, and  now  asked  for  an  order  to 
pass  transfer. 

Ordei"  granted. 


Ex  parte  VIGKB  AND  ANOTHER. 

Mr.  Pyemont  moved  for  an  amend- 
ment  of  certain  diagram. 

Order  granted  in  terms  of  Registrar's 
report. 


Ex  parte  CARDINAL. 

Mr.  Wright  moved  for  an  order  uutlio- 
rising  the  Master  to  pay  out  a  sum  of 
iJ64  from  the  funds  in  hi«  hands,  to  which 
petitioner  was  entitled  under  the  will 
of  his  father.  The  petitioner  was  un- 
able to  obtain  a  billet,  and  required  the 
money  for  his  support. 

Ortfor  granted. 


SUPREME  COURT 


[Before  the  Acting  Chief  Justice  (the 
Hon,  Sir  John  Buchanan),  the 
Hon.  Mr.  Justice  Maashorp,  and 
the  Hon.  Mr.  Justice  Hopley.] 


DUNCAN  V.  RESIDENT  HAGI6-  f        llMjo. 
TRATB  OF  M0S8P.L  BAY.        \  NoV.  13th. 

Marriage  of  noiinor — Consent  of 
parent. 

Where  a  parnif  raises  no 
objertion  to  the  marriage  of  a 
mitarr  cftildy  but  refuges  to  girr 
express  couseni^  stick  lying  by 
rannot  be  construed  as  tacit 
consent. 

Should  the  parent  unreasonably 
refuse  or  irifhhold  conseJit,  the 
minor  may  apply  to  the  ChieJ 
thtjtt  ce,  in  Chambers,  to  author- 
ize the  marriage. 


Mr.  Swift  said  that  he  wished  to  n^cn 
tion  a  matter  which  should  have  come 


*m 


tt 


CAPE  TIMES'"  LAW  REPORTS. 


ou  for  heariug  on  Friday  la«t,  an  appit- 
cation  for  a  man<ianiU8  againet  the  Resi- 
dent Mag<ifitrate  of  Mossel   Bay. 

[Buchanan,  A.C.J. :  Is  it  an  opposed 
matter  ?J 

Mr.  Swift:  No,  but  it  is  a  matter  of 
some  urgency,  as  the  applicant  wishes 
to  get  married. 

[Buchanan  A.C.J. :  Oh,  I  am  afraid, 
then,  counsel  must  gi\e  way  for  that.] 

Mr.  Swift  said  that  this  was  an  appli- 
cation calling^  upon  Mr.  Robert  Charles 
Ferris,  in  hi^s  capacity  as  Resident 
Magistrate  of  Mossel  Bay.  to  show  cause 
why  a  mandamus  should  not  be  issued 
against  him  to  solemnise  the  marriage 
of  John  Robinson  Duncan  and  £m- 
merentia  Wilhelmina  Pienaar,  both 
.  of  Mossel  Bay,  in  accordance  with 
notice  dated  the  6th  October  laM.  Coun- 
sel read  an  affidavit  by  the  applicant 
(Duncan),  who  said  that  he  was  a 
bachelor,  aged  21  years  and  upwards, 
aiid  was  engaged  to  be  married  to  Miss 
Pienaar,  with  her  full  consent  and  ap- 
probation. Miss  Pienaar  was  aged  20 
years  4  months.  Her  mother  and  «^ole 
natural  guardian  resided  at  Mossel  Bay. 
On  the  6th  October  last  deponent,  m 
terms  of  Act  16.  1860.  duly  forwarded  U) 
Mr.  Ferris  notice  of  the  marriage,  to 
l)o  solemnised  within  three  months. 
The  banns  had  been  duly  published. 
The  mother  and  sole  natural  guardian 
of  Miss  Pienaar,  ai»  well  as  all  persons 
whom  it  may  concern,  had  had  due 
notice  of  the  said  intended  marriage, 
and  no  obiections  whatever  had  been 
lodged    witn    Mr,    Ferris.  The    said 

Ferris,  in  his  capacity  aforesaid,  re- 
fused and  declined  to  solemnise  the  said 
mairriage,  on  the  ground  that  the  con- 
i»ont  of  the  mother  and  solo  natural 
guardian  of  Mise  Pienaiar  has  to  be 
obtained.  Mr.  Swift,  in  answer  to 
the  Court,  said  that  the  mother  had 
not  consented,  but  his  contention  was 
that,  as  she  had  not  raised  any  objec- 
tion to  the  intended  marriage,  after 
due  publication  of  the  banns,  her  con- 
sent should  be  taken  to  have  been 
given. 

Hopley.  J.,  put  it  to  counsel  whether 
it  would  not  have  been  much 
iK'tter.  seeing  that  the  mother  was  in 
Mo«*aol  Bay.  to  have  ascertained  de- 
finitely whether  she  consented?  That, 
it  .seemed  to  him,  would  have  lx)en  the 
nun'c   CO  mm  on -sen  be  course. 

Mr.  Swift  said  that  due  notice  had 
Uhmi  given,  and  the  mother  had  not 
uctivolv    objected  to    the    marriage. 

[Buchanan,  A.C.J. :  Without  the  con- 
>*oiit  of  parents  or  of  the  guardians  of  the 
minors,  minors  cannot  marry  in  this 
lountry.J 

Yes,  but  must  she  have  the  active  con- 
•sent?  Will  not  the  passive  consent  be 
sufficient? 

[Maasdorp,  J. :  It  is  a  very  different 
thing  giving  a  mandamus  to  an 
officer  to  do  a  thing  which  may  bo 
an    irregularity,    from   overlooking      an 


irregularity  alter  it  has  been  com- 
mitted. It  seems  to  be  taken  for 
granted  that  this  is  an  >irregularity,  but 
that  no  penalty  should  be  imposed.] 

Mr.  Swift  thought  that  th«t  wa.s 
rather  a  converse  case. 

[Hopley,  J. :  You  cannot  take  it  that 
she  has  given  her  consent,  because  she 
is  a  '*  passive  resister.'*]  • 

But  may  the  mother  sit  by  and  raibc 
no  objection?  If  she  raised  an  objection, 
then  we  could  come  to  the  Supreme 
Court  and  ask  for  a  licence.  But  sIms 
simply  sits  by  and  adopts  a  passive  atti- 
tude. She  won't  either  agree  to  tlic 
marriage  or  object  to  it. 

[Hopley.  J. :  Then  you  have  the  Chief 
Justice  to  come  to.] 

We  have  no  objection  on  which  we  can 
ffround  a  petition  to  the  Chief  Justice. 
We  don't  know  why  she  objects. 

[Hopley,  J. :  The  more  reason  why  you 
can  come  to  the  Chief  Justice  and  say 
that  she  objects  without  reason.] 

[Maasdorp,  J. :  You  might  have  made 
the  mother  a  party  to  this  matter.] 

Mr.  Swift:  Yes,  my  lord,  I  recog- 
nihe  that. 

Buchanan,  A.C.J. :  According  to  the 
law  of  this  country,  minors  are  not  en- 
titled to  marry  without  t^he  consent  of 
their  parents,  or  natural  guardians,  or, 
failing  such  natural  guardian  or  parent-, 
of  one  of  the  judges  of  the  Court.  It 
is  true  that  when  a  marriage  t^kes 
plaoe  under  certain  circumstances  of 
minors,  the  Court  will  not  upset  the 
marriage,  but  it  is  a  very  different 
thing,  as  Mr.  Justice  Maasdorp  has 
observed,  to  order  an  official  to  com- 
mit an  irregularity,  and  to  condone  an 
irregularity  after  it  haa  been  com- 
mitted. This  i»  an  application  to 
compel  a  Magistrate  to  commit  an  ir- 
regularity, viz.,  to  marry  a  minor  who 
does  not  produce  the  consent  of  her 
parent.  On  that  simple  ground,  the 
application  must  be  refused.  TkM 
minor  is  not  without  redress.  If  with- 
out valid  reason  or  without  good  cau.se 
the  parent  withholds  her  consent,  appli- 
cant may  under  the  new  Act  apply  to 
the  Chief  Justice  or  to  a  judge  in 
Chambers. 

[Applicant's  Attorneys :  Dold  and  Van 
Breua.] 


A>  parte  THK  ESTATE  VAN  BKENEN. 

Mr.  Bailey  moved  as  a  matter  of  ur- 
gency for  the  appointment  of  Mr. 
Gother  Mann  as  provisional  trustee  in 
the  insolvent  estate  of  Jan  Frederick 
van  Reenen,  farmer,  Oude  Kraal,  Koc- 
berg  division. 

Buchanan,  A.C.J. :  The  matter  came 
before  me  in  Chambers,  and  I  pointed 
out  that  under  eection  43  of  the  Insolvent 
Ordinance  a  Judge  in  Chambers  had  no 
power  to  appoint  a  provisional  trustee. 
The  Ordinance  gives  the  power  to  the 


••cAtte  tiMss*'  tAW  ktiPORtd. 


9^ 


Court,  and  it  givi»  the  power  to  a 
Judge  on  circuit  either  in  court  or  out 
of  court.  In  future,  these  cases  should 
not  be  put  in  the  Chamber  book.  You 
may  take  vour  order,  Mr.  Bailey,  in 
terms  of  the  petition. 


SUPREME  COURT 


[Before  the  Actinjr  Chief  Justice,  the 
Hon.  Sir  John  Bocuanan.J 


ADMISSIOSB. 


J  Nov.  J 


1 4th. 

Mr.  Van  Zyl  moved  for  the  admission 
of  Pietcr  Andries  Malan  as  an  attorney 
und  notary. 

Application  granted,  oaths  to  be  taken 
bf-foro  the  R.M.  of  Worcester. 

Mr.  Cloee  moved  for  the  admission  of 
Stanislaus  M.  Joseph  O'Farrell  as  an 
attorney. 

Application  granted  and  oaths  adminis- 
tered. 


PROVISIONAL    ROLL. 

WHITTALL  V.  RAILIK. 

Mr.  Rouz  moved  for  the' final  adjudi- 
cation of  the  defendant's  estate  us  in- 
fiolvent. 

Order  granted. 


MUBISON  V.  KELLY. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £220,  with  interest,  the  bond  having 
become  due  by  reason  of  the  non-pay- 
ment of  interest;  counsel  also  applied 
for  £1  lis.  6d.  insurance  premium,  for 
the  property  specially  hypothecated  to 
be  declared  executable,  and  for  the 
High  Sheriff  to  be  authorised  to  col- 
lect rents  accruing  from  the  property. 

Order  granted. 


KSTATK  JOUBBRT  V.  DAVI80N. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £900,  with  interest,  and  for  £16 
Ss.  insurance  premium,  the  bond  having 
become  due  by  reason  of  the  non-pay- 
ment of  interest;  counsel  also  applied 
for  the  property  specially  hypothecated 
to  be  declared  executable. 

Order  granted. 


BOLUS  AND  CO.    V.    FATEBSOK  AND  SUN. 

Mr.  Searle,  K.C.,  was  for  plaintiffs; 
Mr.  Burton  was  for  defendant. 

Mr.  Searle  moved  for  judgment  for 
(1)  £1,584  5s.  8d.,  owing  by  virtue  of 
certain  eight  bills  of  exchange  drawn 
by  plaintiff  upon  defendant,  together 
with  interest,  due  and  payable  on  de- 
mand in  terms  of  clause  8  of  certain 
agreement,  entered  into  between  plain- 
tiifs  and  defendant  in  London  on  the 
IGth  July,  1905,  and  (2)  £4,000  monev 
owing  by  defendant  to  plaintiffa  for  cash 
advances  and  commission,  with  interest. 
Counsel  said  that  one  of  the  bills  had 
been  retired,  and  the  remaining  billa 
would  fall  due  at  short  dwtos. 

Buchanan,  A.C.J.,  asked  counsel  on 
what  ground  he  sought  for  provisional 
sentence  7 

Mr.  Searle:  We  say  that  in  the  ab- 
sence of  any  breach  of  the  agreement 
W3  can  by  notice  call  up  the  amounts 
due  at  any  time.  The  agreement  does 
not  say  that  it  is  necessary  that  the  de- 
fendant should  commit  a  breach. 

Buchanan,  A.C.J.,  held  that  the  plain- 
tiffs were  not  entitled  to  provisional  sen- 
tence, and  directed  them  to  go 
into  the  principal  case,  costs  to  abide  the 
result,  falling  action,  provisional  sentence 
refused,  with  costs. 


E8TATfi  KERB  V.  UOLOM BRICK. 

Mr.  Douglas  Buchanan  moved  for  pro- 
visional sentence  on  a  mortgage  bond 
for  £1,250,  with  interest,  the  bond  hav- 
ing become  due  by  reason  of  the  non- 
payment of  half-yearly  interest;  counsel 
also  applied  for  the  property  specially 
hypotheoated  to  be  declared  executable. 

Order  granted. 


BRYANT  AUD   HOOD  V.  BABTLETT. 

Mr.  W.  Swift  moved  for  provisional 
sentence  upon  an  unsatisfied  judgment 
of  the  Magistrate's  Court  for  £15  odd 
and  costs. 

Ordered  to  staad  over  for  further  in- 
formation, as  to  why  the  matter  was 
brought  to  this  court. 

Later  in  the  day,   on  an  explanation 
by    counsel,    provisional    sentence 
granted. 


was 


ESTATE  60U»SARD  V.  BESTEK. 

Mr.  Roux  moved  for  provisional  sen* 
tence  on  an  acknowledgment  of  debt  for 
£100,  with  interest. 

Order  granted. 


BERNARD  V.  LE  SUEUR. 

Mr.    Gardiner  moved   for   provisional 
sentence  on  a  judgment  of  the  Magiv* 


§30 


i( 


CAtE  tlMES"  LAW  HEt'OtlTS. 


iraie's  Court  at  Cape  Town  for  £5  Ss. 
7d.  and  £2  Is.  7d.  oosts  of  suit,  defend- 
ant having  removed  to  the  jurisdiction  of 
Oudtsboorn  R.M.'s  Court,  and  for  a  de- 
cree of  civil  imprisonment. 
Order  grantea. 


CAKOLBSSEN   V.  PAl'L^K. 

Mr.  p.  S.  T.  Jones  moved  for  a  decree 
of  civil  imprisonment  upon  an  unsatis- 
fied judgment  of  this  Court  for  £17  19s. 
3d.,  less  £15  4s.  Id.  paid,  with  interest, 
and  also  for  £13  98.  Id.,  £8  12s.  lOd.,  and 
£2  13s.,  being  costs  and  charges. 

Buchanan,  A.C.J. ,  said  that  the  origi- 
nal debt  was  £17,  of  which  £15  was 
paid,  leaving  something  under  £2  un- 
paid. The  rest  of  the  claim  was  for 
costs  incurred  by  plaintiff  against  defen- 
dant. 

Mr.  Jones  explained  that  an  action 
had  been  pending,  but  the  parties  agreed 
to  allow  the  matter  to  go  to  arbitra- 
tion, subject  to  the  award  being  made  a 
rule  of  Court  bv  either  party.  Before 
the  award  could  be  made  a  rule  of  Court 
the  defendant  left,  and  the  costs  would 
bo  the  costs  incurred  therein.  The 
matter  came  up  before  his  Lordship  be- 
fore the  award  was  made  a  rule  of 
Court.  The  sum  of  £15  appeared  to. 
have  been  the  result  of  an  execution. 
There  was  no  voluntary  payment.  De- 
fendant was  originally  here,  and  before 
the  award  was  made  a  rule  of  Court 
ho  left  for  Kimberley. 

Buchanan,  A.C.J.,  said  that  a  telegram 
had  been  received  from  defendant  offer- 
ing £2  10s.  a  month,  fir^t  payment  on 
I>eceml)or  1.  Defendant  also  said  that  he 
could  not  possibly  pay  more,  as  his 
wages  were  only  £4  a  week,  and  he  had 
a   wife    and    family   to    support. 

Mr.  Jones  said  that  ho  would  accept 
the  offer. 

Decree   granted,   execution  to  be  sus- 
ended  upon  payment  of  £2  10s.  a  mouthy 
iirst  payment  on  the  1st  December. 


BOSMAN  V.  FLETCHER. 

Mr.  Roux  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £133  4s. 
8d.,  with  interest,  the  bond  having  be- 
come due  by  reason  of  the  non-payment 
of  instalments;  counsel  also  applied  for 
the  property  specially  hypothecated  to  be 
declared  executable. 

Defendant  appeared,  and  complained 
that  plaintiff  had  not  allowed  him  the 
time  agreed  upon.  He  was  willing  to  pay 
the  interest  that  had  becme  due. 

Mr.  Roux  said  that  the  bond  provided 
for  the  payment  of  £10  a  month  in  re- 
duction of  the  capital. 

Order  granted.  His  Lordship  remark- 
ing that  if  defendant  wanted  to  set  aside 
the  bond  he  must  take  steps  accordingly. 


DB  VILLIER8  V.  ESTATE  BREDETELKT. 

Mr.  Watermeyer  moved  for  provision- 
al sentence  on  a  mortgage  bond  for  £255, 
with  interest,  the  bond  having  become 
due  by  reason  of  notice  having  been 
given ;  counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable. 

The  executor  in  the  defendant  estate 
appeared  and  consented  to  judgment 

Order  granted. 


BATTENHAUSEN  V.  VOB8TSB. 

Mr.  Wright  moved  for  provisonal  sen- 
tence on  a  mortgage  bond  for  £1,000, 
with  interest,  the  bond  having  become 
due  by  reason  of  notice  having  been 
given ;  counsel  also  applied  for  the  pro- 
perty specially  hypothecated  to  be  de- 
clared executable. 

The  matter  was  ordered  to  stand  over 
for  proof  of  notice. 


BATTENHAUSEN   V.   VORSTEK. 

Mr.  Wright  moved  for  provisional  sen- 
tence on  a  mortgage  lK)nd  for  £600,  with 
interest,  the  bond  having  become  due  by 
reason  of  notice  having  been  given. 

Ordered  to  stand  over  for  proof  of 
notice. 


THATCHER  V.  VORSTKR. 

Mr.  Lewis  inovinl  for  proviMonal  sen- 
tence up'On  nn  unsatisfied  judgment  of 
the  Magistrates'  Court  at  fc^nierset  East 
for  £7  15s.  lid.,  with  taxed  costs,  and 
messenger's  charges,  and  for  certain  pro- 
perty at  Pearsion  belonging  to  defend- 
ant to  be  declared  executable. 

Order  granted. 


KEWE  V.    WOODMAN. 

Mr.  Long  moved  for  provisional  sen- 
tence on  a  mortgage  bond  for  £75,  with 
interest :  the  bond  having  become  due  by 
reason  of  the  non-payment  of 
interest;  counsel  also  a])plied  for  the 
propertv  specially  hypothecated  to  be 
declared  executable. 

Order  granted. 


CAPE  TIMES,  LTD.  V.  YEOMANS  AND 
FERGUSSON. 

Mr.  M.  Biseet  moved  for  provioioual 
fH^ntence  on  a  promissory  note  for  £44 
19s.  9d.,  with  interest  and  ooBt«. 

Order  granted. 


JACKMAK  V.  LAITB. 


Mr    P.    S.    T.    Jones  moved   for  pro- 
visional sentence  upon  an  agreement  of 


i( 


CAPB  TIMES''  Law  reportb. 


931 


purchase  of  oertaiu  property  in  Bath- 
irtreet,  £rigned  by  botn  parties.  It  ap- 
peared tdat  the  parties  ent-ered  into  a 
aettleznent  in  regard  to  an  action  which 
waa  about  to  be  heard.  Plaintiff  now 
moved  for  payment  of  £1,425,  whereof 
the  defendant  had  already  paid  £175, 
the  balance  to  be  paid  in  terins  of  the 
eettlement,  plaintift  tendering  transfer 
and  conveyance  on  payment  of  the 
balance  of  purohiMc  price. 

Mr.  Searle,  K.C.  (for  defendant),  sub- 
mitted that  this  was  not  a  case  for  pro- 
visional sentence.  He  read  an  affidavit 
by  defendant,  in  which  he  stated  that 
it  was  agreed  that  he  should  pass  a 
bond  to  i^aintiff  for  the  balance  of 
£1,425.  tie  went  on  to  allege  that 
he  wa8  not  aware  at  the  time  he  en- 
tered into  the  agreement  that  provision- 
al sentence  had  been  granted  airainst 
Jackman  on  a  mortgage  bond  for  £1,100 
and  that  the  property  he  had  purchased 
had  been  declared  executable,  or  he 
would  have  entered  into  the  agree- 
ment. Further  negotiations  took  place, 
and  he  laier  on  discovered  that  a  second 
mortgage  for  £100  was  regi^ercd 
against  the  property.  He  had  been 
informed  further  that  there  was  a  sum 
of  £70  due  to  the  Corporation  of  C«pc 
Town  in  respect  of  making  up  the  road- 
way. Deponent  submitted  that  plaintiff 
had  throughout  the  transaction  entered 
into  undertakings  that  he  could  not  per- 
form. 

Mr.  Jones  road  a  replying  affidavit 
by  plaintiff,  who  denied  that  he  had 
made  representations  to  defendant  which 
were  without  foundation.  He  said  that 
he  was  quite  prepared  to  give  defen- 
dant travisfer  as  eoon  as  the  latter 
raised  the  balance  of  purchase  price. 
Counsel  »lso  read  an  affidavit  by  Mr. 
Syfret,  attorney  to  one  of  the  judgment 
creditors  of  Jackman. 

Provisional  sentence  granted,  with 
costs. 


{>TEVEN8  V.  A>  DREWS. 

Mr.  Benjamin  wa<)  for  plaintiff;  Mr. 
Burton  wai)  for  defendant. 

Mr.  Benjamin  said  that  this  was  an 
application  for  confirmation  of  a  writ 
ot  arrest.  He  had  to  ask  that  the  matter 
be  allowed  to  stand  over. 

Buchanan.  A.C.J.,  said  that  the  writ  of 
arrest  would  be  confirmed  pro  forma, 
and  the  other  questions  raised  m  the 
case  would  stand  over  for  further  hear- 
ing. 


KICK   V.  TANNBB. 

Mr.  Roux  moved  for  a  provisional 
order  of  se<iuestration  to  be  made  final. 

Mr.  Benjamin  read  an  affidavit  by  Mr. 
McLeod  (who  had  acted  as  defendant's 
attorney)  in  opposition  to  the  applica- 
tion. 


Mr.  Roux  read  a  replying  affidavit 
by  a  member  of  the  firm  of  Van  der 
JBiyl  and  De  Villiers  (pladnt'ff's  attor- 
neys). 

Mr.  Benjamin  submitted  that  the  sole 
object  of  this  application  was  to  force 
a  cancellation  of  the  sale  of  certain 
property  in  1903  to  defendant,  of  which, 
however,  he  had  not  yet  taken  transfer. 
Defendant  had  tendered  the  purchase 
price  so  long  ago  as  January,  1904, 
but  apparently  the  applicant  was  not 
prepaived  to  pass  transfer.  The  pro- 
perty had  increased  in  value  far  be- 
yond the  expectation  of  the  plaintiff. 

Final  adjudication  granted  as  prayed, 
with  costs. 


ILLIQUID  ROLL. 

8MYTH  AND  ANOTHER  V.     (         11I0.K 

MOORKEES.  (  Nov.    14tU. 

Mr.  Swift  moved  for  judgment,  under 
Rule  329d,  for  an  account  of  moneys 
received  and  disbursements  OHide  by 
defendant  in  his  capacity  as  agent  of 
plaintiffri. 

Order  granted,  account  to  l)e  ren- 
dered   within    one   month   of  date. 


CAPB  TOWN  GAS  CO.  V.  DOBSON. 

Mr.  Roux  moved  for  judgment,  under 
Rule  329d,  for  £21  ISs.  6d.,  account  for 
gas  supplied,  etc. 

Order  granted. 


REHABIUTATIONS, 


Mr.  Bailey  moved  for  tlie  dischaTge 
from  insolvency  of  Coenraed  Peter  Hen- 
drick  Mocke. 

Granted,  subject  to  production  of 
Master's   certificate. 

Mr.  Bailey  moved  for  the  release 
from  sequestration  of  the  estate  of 
Abraham  Ezau. 

Granted. 

Mr.    Gutsohe  moved   for   the  relMtbili- 
tation  of  Petrus  Jacobus  Tesrblans. 
Rehabilitation  granted. 


GENERAL  MOTIONS. 

»  parte  8MUTS. 

Mr.  Du  Toit  moved  for  ii  ruh;  nhi 
under  the  Derelict  Lands  Act  ii.  ne 
made  absoJute. 

Rule  made  absolute. 


Ex  parte  CANABIfi. 

Mr.  M.  Biaset  made  a  similar  appli- 
cation  under  the   Derelict  Lands  Act. 
Rule  made  absolute. 


932 


(I 


CAPE  TIMES"   LAW  REPORTS. 


/i>  part.'  MTATE  OOSTHUYZEN. 

Mr. .  Searle,  K.O.,  moved,  on  behalf 
of  the  executors  testamentarj  of  the 
eetafte  of  Johannes  Jaoobus  Ooethuyzen, 
for  ooufirmation  of  sale  of  po^operty  in 
the  division  of  Catlioart  for  the  sum  of 
£8,250. 

Ord«r  granted,  subject  to  the  oliildron 
{giving  a  joint  indemnity  for  the  amount 
received,  the  balance  of  purohafie  price 
to  be  retained  by  the  executors,  or  paid 
into  the  Guardian's  Fund. 


Ej-  purtf  nsTATE  i>u  toit. 

Mr.    McGregor  moved  to  make   abao- 
luto  a  rule  for  confirmation  of  sale. 
Rule  made  absolute. 


GOUKLAY   V.    BAl'MUARTEN  AND  GATKS. 

Dr.  Raiusford  moved  to  make  abso- 
lute a  rule  nut  calling  upon  the  re- 
spondents to  show  cause  why  certain 
];>artnership  slvould  not  be  placed  u-nder 
liquioation.  and  why  Mr.  J.  E.  P. 
Close  should  not  be  appointed  receiver. 
Counsel  asked  that  costs  be  costs  in  li- 
(juidation,  except  costs  of  poetponement, 
wliich  it  was  assked  hhould  bo  paid  by 
Baumgarten. 

Order  granted  accordingly. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before  the  Actinjr  Chief  Justice,    the 
Hon.  Sir  John  Buchanan.] 


LIS  V.  KBX  AND  COLONIAL  f    190."). 

GOVERNMENT.        j  Xov.  l.")th. 

This  was  an  application  upon  notice 
to  the  Attorney- General  for  the  release 
of  the  applicant  from  custody  or,  alter- 
natively, for  hie  admission  to  bail  pend- 
ing the  trial  and  decision  of  any  issues 
of  law  or  fact  that  this  Court  may  con- 
sider nec-issary. 

Dr.  Greer  was  for  applicant;  Mr. 
Nightingale  appeared  for  the  Crown  and 
Colonial  Government. 

Dr.  Greer  said  that  he  now  desired  to 
applv  for  a  postponement  of  the  hearing 
of  the  application  until  to-morrow,  so 
as  to  enable  applicant  to  file  certain  ad- 
ditional affidavits,  but  ho  a«ked  that  he 


might  in  the  meantime  be  released  from 
custody.  Counsel  went  on  to  explain 
that  the  applicant  alleged  that  on  Mon- 
day, the  13th  inst.,  he  was  arrested  at 
the  instance  of  Mr.  C  W.  Cousins,  the 
officer  in  charge  of  the  Immigration 
Department,  and  he  was  at  present  de- 
tained in  custody  at  the  Roeland -street 
Gaol,  and  was  threatened  with  deporta- 
tion from  this  colony  under  the  Immi- 
gration Act  of  1903.  He  was  informed 
that  his  arrest  was  wrongful  and  unlaw- 
ful, and  that  the  said  Act  did  not  apply 
to  himself.  He  was  a  Russian  by  na- 
tionality, and  came  to  this  colony  about 
five  years  ago  with  the  firm  intention 
of  making  South  Africa  his  domicile, 
and  permanent  place  of  abode.  He 
had  never  departed  from  South  AfricS. 
since  his  first  arrival,  and  he  now  claim- 
ed South  Africa  as  his  place  of  abode. 
His  place  of  residence  in  this  colony 
was  Cape  Town,  and  he  resided  there 
before  the  war  with  the  late  South  Afri- 
can Republic  During  the  war  he  resi- 
ded in  Cape  Town,  and  on  the  24th  Jan- 
uary, 1901,  he  was  enrolled  in  the  Cape 
Town  Guard  of  the  Colonial  Defence 
Force,  and  served  therein,  having  got  a 
good  discharge. 

Mr.  Nightingale  did  not  object  to  a 
postponement,  but  said  that  there  was 
strong  evidence  that  the  alleged  dis- 
charge was  a  forgery. 

The  application  was  postponed  until 
to-morrow  (Thursday),  but  applicant  was 
admitted  to  bail,  pending  the  hearing, 
bail  to  be  given  to  the  satisfaction  of 
the  Resident  Magistrate  of  Cape  Town, 
applicant  in  the  sum  of  £100  and  two 
sureties  of  £50  each,  a  condition  of  the 
bail  bond  to  be  that  applicant  will  ap- 
pear at  all  times  when  called  upon,  and 
will  abide  any  order  or  judgment  of  the 
Court,  and,  when  required,  surrender 
himself  to  custody. 

Postea  (November  17th). 

Mr.  Nightingale  said  that  he  was 
not  ready  to  proceed  with  the  respon- 
dents' case,  and  he  had  to  applv  for  the 
matter  to  be  postponed.  In  the  mean- 
time he  was  prepared  to  consent  to 
Jack  Lis  being  admitted  to  such  bail 
as  he  could  find.  He  (counsel)  under- 
stood that  Lis  h«id  been  unable  to  find 
the  bail  fixed  by  the  Court  at  Wednes- 
day's hearing,  and  he  now  consented  to 
the  applicant  being  released  on  his  own 
recognisances,  subject  to  the  same  condi- 
tions as  were  prescribed  in  the  previous 
order. 

Buchanan,  A.C.J.,  said  that  the  appl}- 
cani  would  be  admitted  to  bail  on  his 
own  recognisances. 

Mr.  Nightingale  said  that  there  were 
one  or  two  facts  on  the  affidavits  directly 
in  issue,  and  he  anticipated  that  it  would 
be  rather  difficult  on  the  affidavits  to 
oome  to  a  conclusion  as  to  the  true 
facts.  What  he  would  ask  was  that  the 
Court  should  order  the  attendance  of 
Lis  himself   and   two  persons  who   had 


"CAPE  TIMES"   LAW  REPORTS. 


933 


made  affldavito  on  his  behalf  on  the  day 
of  hearing. 

[Buchanan,  A.C.J. :  Well,  subpoena 
them.J  His  Lordship  added  that  he  did 
not  see  when  this  matter  was  going  to  be 
heard  within  the  next  few  days,  and  ho 
suggested  that  the  hearing  should  be 
postponed  until  the  l^h  December. 

Counsel  acauiesoed,  and  the  hearing 
was  accordingly  postponed  until  the  12th 
December. 

Dr.  Greer  said  that  application  had 
been  made  to  the  Government  for  leave 
to  inspect  the  regimental  records,  but 
this  had  been  refused. 

Mr.  Nightingale  said  that  if  a  pro- 
perly-authorised person  went  to  the 
Colonial  Secretary's  Office,  no  objection 
would  be  raised  to  allowing  an  mspec- 
tion  of  the  records. 

Dr.  Greer :  From  the  Attornev'e  Of- 
fice? 

Mr.   Nightingale :    Yes. 

The  matter  was  then  ordered  to  stand 
over  till  the  12th  L)ecember,  applicant  to 
be  admitted  to  bail  in  such  recognisances 
as  he  may  be  able  to  find,  and  subject 
to  the  conditions  already  laid  down. 


inuuiiy^     an    order 
granted  as  prayed. 


ntti^i    be 


cowling's    bstatk    v.     f       190."). 

COWLING.  (  Xov.   15th. 

Estate  of  deceased  spouse — Minor 
heirs  —  Executor  —  Advance 
by  survivor  to  enable  execu- 
tors dative  to  bring  an  action 
against  himself. 

C.  ami  his  irife  ire  re  married 
in  community  ami  had  issue. 
At  the  time  of  Mrs.  C.\  death 
these  children  were  minorn^  hut 
C  took  no  steps  to  protect  their 
interests^  and  remained  in  pos- 
session of  the  entire  joi id  estate. 
Subsequently^  when  about  to 
re -marry  ^  he  made  a  declara- 
tion that  the  value,  of  the  joint 
estate  teas  under  £100.  The 
executors  dative  to  the  estate 
of  the  deceased  now  applied 
for  an  ord^r^  calling  upon  C 
to  pay  certain  moneys  to  enable 
them  to  bring  an  action  to  hare 
it  declared  t>  what  sum  the 
heirs  of  the  dtceased  irere 
entitled. 

Held,  that  althorugh  in  urdi)uiry 
cases  a  plaintiff  caiutot  compel 
a  deferidant  to  advance  money 
to  meet  the  coats  of  an  actimi ; 
yet^  as  these  exenttorn  r*pre- 
»enied  a  vift  married  in  cont- 


This  was  an  application  brought  by 
the  executors  dative  in  the  estate  of  the 
lato  Charlotte  Cowling  upon  notice  call- 
ing upon  her  husband,  John  Fredewck 
("owling,  hotelkeeper,  Claremont,  to 
show  cause  why  he  should  not  pay  a 
certain  sura  of  money  to  enable  appli- 
cants to  bring  an  action  for  the  purpose 
of  having  it  settled  what  is  to  be  award- 
ed to  the  heirs  of  Mrs.  Cowling. 

The  affidavit  of  the  applicants  set 
out  that  the  respondent  and  the  late 
Mrs.  Cowling  were  married  in  com- 
munity, that  in  January,  1887,  at  her 
death,  there  were  two  children  issue  of 
the  marriage,  and  that  the  respondent 
dad  not  file  a  death  notice  or  an  inven- 
tory. The  respondent  subsequently  re- 
married, having  passed  no  kinderbewys 
in  favour  of  the  children  by  his  first 
marriage.  Ho  had  declared  on  oath 
that  the  value  of  the  joint  estate  was 
loss  than  £100.  Deponents  had  reason 
to  believe  that  this  statement  was  not 
correct.  Applicants  desired  to  institute 
an  action  on  behalf  of  the  heirs  to  ob- 
tain an  order  againat  respondent,  requir- 
ing him  to  render  an  account  of  the 
jomt  estate,  but  there  were  no  funds 
available  for  thai  purpose.  It  waa  abso- 
lutely necessary  for  the  due  administra- 
tion of  the  estate  that  the  action  now 
pending  may  be  proceeded  with  in  view 
of  the  fact  that  since  1887  the  respon- 
dent had  been  in  possession  of  the  joint 
estate  of  his  late  wife  and  himself. 

The  respondent  in  his  answering  affi- 
davit said  that  at  the  death  of  his  wife 
the  assets  in  the  joint  estate  were  not 
sfficient  to  meot  liabilities.  Respondent 
entered  at  some  length  into  the  position 
of  the  joint  estate  at  his  wife's  aeath. 

Mr.  Searle,  K.C.,  was  for  applicants, 
W.  A.  Currey  and  C.  H.  Wolfe;  Mr. 
Burton  was  for  respondent. 

Further  affidavits  having  been  read, 

Mr.  Searle  argued  that  the  applicants 
were  entitled  to  the  payment  of  a  sum 
by  the  respondent  to  enable  them  to  in- 
stitute an  action.  The  respondent  had 
the  joint  estate  in  his  oonftrol  and  pos- 
session, and  the  heirs  were  without 
means  to  commence  an  action. 

Buohanan,  A.  C.  J.,  said  that  the  exe- 
cutors might  sue  in  forma  pfiuperin. 

Mr.  Searle  said  that  he  did  not  think 
it  would  be  quite  the  thing  for  gentle- 
men in  the  position  of  the  applicants 
to  hue  in  forma  pauperis. 

Mr.  Burton:^  It  would  nqt  be  befit- 
ting their  dignity. 

Mr.  Searle  went  on  to  ursre  that,  al- 
though the  applicants  called  upon 
the  respondent  to  provide  funds  for  an 
action  ■a'l^ainst  himself,  if  he  had  per- 
formed hLs  dntv  in  connection  with  tlie 
joint   estate,   the  executors   woqld      not 


934 


fi 


CAPS  TIMES"  LAW  SBPOBTS. 


have  been  placed  in  this  awkward  posi- 

tiCMl. 

Mr.  Burton  said  that  the  respondent 
was  quite  prepared  to  render  an  account 
of  tl^  estate  as  it  was  in  1887. 

Mr.  Scarle :  He  has  been  a  long  time 
about  it. 

Mr.  Burton:  Well,  he  haa  neglected 
it;  but  he  has  neglected  it  because  there 
was  nothing  to  be  gained  by  filing  an 
account,  and  he  does  not  seem  to  nave 
clearly  understood  his  duty.  Tlie  appli- 
cants now  want,  and  they  intend  to 
claim,  half  of  the  estate  as  it  is  at  pre- 
Bcnt. 

Buchanan,  A.  C.  J. :  Under  ordinary 
circumstances,  a  plaintiff  could  not  com- 
pel a  defendant  to  make  an  advance 
towards  the  costs  of  an  action  which  the 
plaintiff  wishes  to  bring  against  the 
defendant.  But  this  case  is  a  pecu- 
liar one.  The  Court  frequently,  in 
case  of  a  dispute  between  husband  and 
wife,  orders  tne  husband  to  make  an  ad- 
vance to  the  wife  for  the  purpose  of  en- 
abling her  to  bring  an  action,  and  that 
is  more  frequently  done  in  cases  of  com- 
munity of  property  than  in  cases  where 
the  wife  has  a  separate  estate.  Where  the 
parties  are  married  in  community  of 
property,  and  the  husband  is  in  posses- 
sion of  the  whole  of  the  joint  estate, 
very  frequently  the  Court  haa  or- 
dered the  husband  to  make  an  advance 
to  the  wife.  The  applicants  in  this  case 
are  the  executors  of  the  wife'.s  estate, 
and  they  stand   very  much  in  the  same 

K)sition  as  the  wife  would  have  been  in. 
espondent  and  his  late  wife  were  mar- 
ried in  community.  The  wife  died  in 
1887.  leaving  two  children,  who  are 
minors.  No  stops  were  taken  to  protect 
the  minors'  interest*,  when  afterwards 
the.  husband  was  about  to  rc-marry. 
lie  only  made  a  declaration  to  the  effect 
that  the  value  of  the  estate  was  below 
£100.  The  affidavits  now  disclose  that 
the  husband  is  in  possession  of 
the  joint  estate,  that  there  were 
were  minors,  that  the  husband  ne- 
heirs  to  the  wife's  estate  who 
glected  to  get  an  executor  appointed, 
that  he  omitted  to  file  an  account  show- 
ing what  the  minors  were  entitled  to. 
He  has  neglected  this  duty  from  1887 
to  the  present  time.  The  affidavits  also 
disclose  grounds  for  believing  that  there 
are  substantial  assets  in  the  estate.  How 
far  these  assets  must  be  brought  up  as 
part  of  the  joint  estate  is  a  matter  wnich 
cannot  now  be  decided.  Under  these 
special  circumstances,  I  think  it  is  only 
fair  that  the  hunband  should  be  com- 
pelled to  make  the  advance  to  the  appli- 
cants, who  now  represent  the  wife's  es- 
tate. Whatever  money  is  advanced  by 
the  hu.shand  will  he  brought  up  in  the 
action.  I  think  that  £50  would  be  a 
reasonable  amount  to  order  to  be  advanc- 
ed. The  rcspondnet  will  be  ordered  to 
advance  £50  out  of  the  joint  estate  to- 


wards  the  coats  of  the  action  to  be 
brought  by  the  executors,  costs  to  abide 
the  result. 

[Plaintiffs'  Attorneys:  Friedlander  and 
Du  Toit ;  Defendant's :  Van  Zyl  and 
Buissinne.] 


REINEGKE     V.     CIVIL    COU-  f        190a. 
MIBSIONER  OF  CERE8.         (  NoV.    ir«th. 

Divisional  Council — Election. 

/?.  ira«  one  of  tico  candidates 
for  election  as  representative 
of  a  certain  distri-ct  o^  a 
Divisional  Council.  R.  teas 
unsuccessful.  It  iras  supposed 
that  the  district  in  qtteslioti 
was  entitled  to  return  only  oae 
member^  ami  nominations  were 
invited  for  candidates  to  fill 
the  one  vaeaftcy.  After  the 
election  it  transpired  that  the 
district  was  entitled  to  return 
two  members^  and  R.  claimed 
the  second  seat. 

Held,  that  cut  th^re  was  only 
one  seat  contented ^  and  that  an 
R.  had  not  been  elected^  he 
ira«  not  entitled  to  the  seat 
which  he  rla/nwd. 


This  was  an  application  upon  notice  to 
the  Civil  C'ommissioner  and  Returning 
Officer  of  the  Divisional  Council  of  Ceres 
for  an  order  declaring  the  applicant 
(Dr.  Rcinecko)  to  have  been  elected  a 
member  of  the  said  Council. 

From  the  affidavits,  it  appeared  that 
in  August,  1904.  the  respondent,  by 
notice  in  the  "  Government  Gaaette," 
called  for  nominations  for  the  election 
of  Divisional  (-ouncillors  for  Ceres.  Two 
nominations— applicant  and  one  C.  J. 
van  der  Merwfr— were  received  for  Dis- 
trict No.  1.  where,  according  to  the  no- 
tice issued  by  the  returning  officer, 
there  was  one  vacancy  to  be  nlled.  A 
poll  was  taken  on  the  18th  October,  and 
Nir.  Van  der  Merwo  was  elected  by  a 
majority  of  twelve  votes  over  Dr. 
Rcmccke  Applicant  said  that  on  the 
17th  October  (tlie  day  before  the  poll) 
official  notification  was  given  b^v  the 
secretary  of  the  Divisional  Conned  to 
the  Civil  Commissioner  of  the  fact  that 
District  No.  1.  as  the  seat  of  magistracy, 
was  entitled  to  be  represented  by  two 
nvembers,  and  applicant  made  a  Verbal 
request  to  the  Civil  Commissioner  to  be 
declared  a  member  of  the  Council,  but 
the  latter  ruled  that  a  poll  was  neces- 
sary. The  explanation  of  the  respondent 
was  that  District  No.  1  had  hitherto  re- 
turned     only  one  member,       and    ilia^ 


tt 


CAPE  TIMES"  LAW  BEPOBTS. 


935 


nominations  were  called  for  one  vacancy 
entirely   through  «  misapprehension. 

Mr.  Burton  for  applicant;  Mr.  Ben- 
jamin for  respondent. 

Mr.  Burton  argued  that  the  applicant 
was  entitled  to  be  elected  as  a  member 
for  the  ward.  The  whole  difficulty,  he 
said,  was  due  to  the  mistake  of  the  Civil 
Commissioner.  It  had  been  said  tliat 
if  it  had  been  officially  declared  that 
there  were  two  vacancies  a  third  candi- 
date (Mr.  Smith)  would  have  been  nomi- 
nated, and  that,  therefore,  Dr.  Reinecke 
would  not  have  had  an  unopposed  return. 
But  the  fact  remained  that  an  election 
was  announced,  nominations  were  called 
for.  and  the  applicant  was  duly  nominat- 
ed, and  as  there  were  two  vacancies  he 
was  entitled  to  be  declared  elected  to 
the  other  vacancy. 

Mr.  Benjamin  contended  that  if  the  ap- 
plication were  granted  the  right  of  the 
voters  to  elect  their  representatives  on 
the  Council  would  be  prejudiced.  Dr. 
Reinecke  now  want?ed  to  take  a  seat  on 
the  Divisional  Council  without  going 
through  the  customary  form  of  election. 
There  must,  counsel  submitted,  be  a 
fresh  election,  giving  the  public  an  op- 
portunity of  exercising  their  rights  and 
privileges.  It  would  be  most  unfair 
that  Dr.  Reinecke  should  be  elected 
when  there  perhaps  was  a  more  popular 
candidate  in  person  of  Mr.  Smith,  who,  if 
h«?  had  known  that  there  were  two  vacan- 
cies, would  have  offered  himself  for  no- 
mination  at  the  election. 

Mr.  Burton  in  reply  said  that,  as  re- 
garded prejudice,  the  balance  of  prejudice 
hcemed  to  be  rather  against  the  applicant 
Mian  the  public.  Dr.  Reinecke  would  have 
had  a  better  chance  of  being  elected 
where  there  were  three  candidates  for 
two  sea^s  than  he  would  where  there 
were  two  candidates  for  one  seat. 

Buchanan,  A.J.  C.  :  The  question  rais- 
ed in  this  case  has  never  arisen  before, 
and  it  is  one  that  is  not  likely  to  arise 
often,  but  it  is  an  important  question, 
and  I  should  have  liked  to  have  had 
it  argued  beforo  a  full  bench.  I  think 
the  fundamental  principle  which  under- 
lies all  elections  to  public  offices  is  that 
holders  of  office,  representatives  of  the 
neople  must  be  elected  by  the  people 
In  this  case  the  applicatn  does  not  seom 
to  me  to  have  been  elected  by  the  peopie 
to  the  Divisional  Council.  The  elec- 
tion of  members  of  t^e  Divisional  Coun- 
cil was  treated  as  if  there  were  onlv 
one  vacancy  in  each  district,  and  nomi- 
nations were  called  for  for  candidates  to 
fill  the  one  vacancy  in  each  district. 
The  election  took  place  for  one  Coun- 
cillor for  each  district.  It  so  happened 
that  between  the  last  general  election 
and  the  present  election,  district  No.  1, 
which  formerly  returned  only  one  mem- 
ber, was  now  entitled  to  return  two 
members.  The  election,  however,  did 
not  proceed  as  if  ther  were  two  seats 
to  be   piled.       The  notice  given  by  the 


Civil  Commissioner,  in  the  first  instance^ 
calling  for  nominations,  followed  tno 
words  of  the  Act  where  only  one  mem- 
ber for  each  district  is  to  be  elected. 
Where  more  than  one  member  for  each 
district  is  to  be  elected,  that  fact  m 
intimated  in  the  notices  calling  for  nomi- 
nations. The  notice  called,  in  fact,  for 
nominations  for  one  seat  in  each  dis- 
trict. The  Divisional  Council  A^t 
provides  for  an  automatic  increase  in 
the  number  of  members  under  certain 
circumstances.  Where  it  transpires  that 
the  district  in  which  the  office  of  Civil 
Commissioner  is  situated  contains 
ratable  property  to  the  value  of  two- 
sevenths  of  the  whole  of  the  property  in 
the  Division,  that  district  may  return  a 
second  member,  if  three-eights  of  the 
ratable  value  of  the  property  of  the  whole 
division,  then  three  members,  and  so 
on.  A  valuation  was  taken  in  1904, 
from  which  it  would  appear  that 
this  district  was  entitled  to  elect  two 
members  instead  of  one,  but  nobody  had 
noticed  this  fact.  The  returning  officer 
was  unaware  of  the  fact,  the  secretary 
of  the  Divisional  Council  was  unaware 
of  the  fact,  and  the  public  were  un- 
aware of  the  fact,  and,  therefore,  only 
one  nomination  was  called  for.  It  so 
happened  that  the  day  before  the  poll- 
ing took  place  it  was  discovered  that  the 
district  would  be  entitled  to  two  mem- 
Ijers,  but  the  election  proceeded  on  the 
supposition  that  the  district  was  only  en- 
titled to  one  member.  Had  there  been 
time  to  stop  the  whole  election  and  to 
call  for  fresh  nominations,  the  Court 
might  have  directed  such  a  course  to  be 
adopted.  The  applicant  was  nominated 
as  a  candidate  for  the  one  seat,  and 
his  election  was  contested.  No  protest 
was  lodged  by  Dr.  Reinecke  against  the 
poll,  but  he  took  part  in  it,  and  when 
ho  was  defeated  he  came  for- 
ward, and  says  that  as  this 
district  could  now  elect  two  members,  and 
as  only  two  candidates  were  nominated 
h)  must  be  declared  elected  to  the  second 
seat.  I  think  the  fallacy  underlying  the 
thing  is  that  there  was  only  one  seat 
contested,  and  for  that  seat  the  appli- 
cant was  not  returned.  I  think,  under 
the  circumstances,  looking  at  the  differ- 
ent sections  of  the  Act.  and  the  fact 
that  the  public  are  entitled  to  elect 
the  persons  who  shall  represent  them, 
and  that  Dr.  Reinecke  has  not  been 
chosen  to  take  a  seat  on  the  Divisional 
Council,  the  application  must  be  refused. 
There  will  be  no  order  as  to  costs. 

[Applicant's  Attorneys:  Dempers  and 
Van  Ryneveld:  Respondent's;  Faure, 
Van  Eyk,  and  Moore.] 


BATTENHAUSEN  V.  VORSTER. 

Mr.  Wright  said  that  proof  of  notice 
to  the  defendant  had  now  been  filed  as 


0S6 


t€ 


CAPE  TIMES"  LAW  REPORTS. 


required  by  the  rules  of  Court.  He 
now  moved  for  proviiional  sentence 
upon  two  mortgage  bonds,  and  for  the 
property  specially  hypothecated  to  lO 
uecrared  executable. 
Order  granted. 


KINO  BROS.  V.  ESTATE  WASSKBPALL- 

This  was  an  application  upon  notice 
calling  upon  Mr.  G.  W.  St€ytl<*r,  in 
hin  capacity  as  secretary  of  the  Colonial 
Orphan  Chamber,  to  show  cause  why  a 
writ  should  not  be  issued  for  costs  !n 
connection  with  a  certain  case  of  which 
ho  had  charge,  as  executor  in  the  estate 
of  on«  Wasserfall.  Mr.  Searic,  K.C.. 
was  for  applicant;  Mr.  Burton  was  for 
respondent. 

The  matter,  it  appeared,  arose  out  of 
an  application  brought  by  Kiu^  Bros 
for  an  onler  under  the  Derelict  (iands 
Act,  vesting  them  with  certain  lots  of 
ground  at  Durbanville.  Judgment  was 
granted  in  favour  of  applicants,  with 
costs.  The  applicants  now  moved  for 
coats  de  bonis  propriis. 

His  Lordship  directed  that  the   mat- 
ter should  go  Defore   Mr.  Justice   Hop 
ley.    who    tried    the  original    oa^e,    and 
ordered  that  the  application  stand  over 
till    thr    12th  December. 


E^  Jfarte  VAN  deb  WALT  AND  DE  JAQEB. 

Mr.  Burton  moved  on  the  petition  of 
the  natural  guardians  of  certain  17 
minors  for  leave  to  execute  a  mortgage 
bond  upon  certain  farm  in  the  division 
of  Aberdeen,  in  the  estate  of  their  late 
grandparents. 

Order  granted,  expenditure  of  money 
raised  to  bo  to  the  satisfaction  of  the 
Maftt<»r. 


Ri-  parte  FLAUM. 

Dr.  Greer  moved  to  make  absolut-o 
a  rule  ni*i  authorising  the  petitioner 
to  sue  a  cortain  firm  in  St.  Petersburg. 
Russia,  in  forma  pauperis,  and  afeo  for 
leave  to  sue  by  edictal  citation. 

Leave  to  sue  by  edictal  citation  grant- 
ed, citation  to  be  served  personally  and 
to  be  rotumablc  on  the  Ist  February. 
The  applicant  was  also  given  leave  to 
sue  til  forma  pauperis.  Dr.  Greer  to  lie 
counsel  and  Messrs.  Friedlander  and  Du 
Toit  to  he  attorneys  to  tho  applicant. 


'i\ 


SECOND  DIVISION. 


[  Before  tbe  Hon.  Mr.  JnBtlce  Ma  A8D0BP.  ] 


LAZABUS    AND    OTHBBS    V.  f        190^. 
ESTATE     LAZABUS     AKD-J  Nov.    15th. 
0THEB8.  I     „       20tb. 

Will — Interpretation  —  Sabstitu- 
tion. 

This  was  an  action  for  a  declaration 
of  rights. 
The  declaration  was  as  follows: 

1.  The  plaintiffs  are  the  major  un- 
married children  of  the  late  Lawrence 
LaxaruB,  and  the  curator  of  the  minor 
child  Marie  Lazarus.  Victoria  Lazarus 
is  the  widow  of  the  late  Lawrence 
Lazarus,  and  is  sued  individually  and 
alflpo  together  with  George  William 
Steytler  in  their  capacity  as  the  execu- 
tors testamentary  oi  the  said  Lawrenoo 
Lazarus.  Edwin  Groome  Rainsford  i* 
sued  as  curator  ad  litem  of  Vera,  Hilda 
and  Gerald  Morris,  minor  grandchildrer 
of  the  late  Lawrence  Lazarus. 

2.  On  the  9th  of  Februarv.  1887,  th^ 
said  Lawrence  Lazarus  duly  executor 
the  testamentary  writings,  copies  o< 
which  are  annexed  hereto,  ana  to  the 
originals,  of  which  the  parties  beg  to 
refer;  and  he  died  on  tbe  1st  of  May, 
1889,  leaving  the  said  testamentary  dfs- 
poeitions  in  full  force  and  effect.  His 
widow  is  alive  and  has  not  re-married. 

3.  At  his  death  the  6aid  testator, 
Lawrence  Lazarus.  left  eight  children, 
to  whom  he  was  greatly  attached,  and 
with  all  of  whom  ne  was  on  the  most 
affectionate  terms.  The  eldest  child 
was  17  years  old  and  the  youngest 
thiee  months  old  at  their  fathers 
death.  One  of  the  testator's  daughters 
was  married  after  his  death  to  Mom 
Henry  Morris,  and  died  thereafter,  leav- 
ing tne  three  children  Vera,  Hilda^  and 
Gerald  aforementioned.  The  other 
daughters  of  the  testator  are  unmarried 
and  supported  by  their  mother,  who 
also  supports  the  three  minors  Morris. 

4.  At  the  testator's  death  his  estate 
was  greatly  indebted  and  heavily  mort- 
gaged, ana  it  now  consists  of  the  land- 
ed properties  specifically  mentioned  in 
the  will,  namely,  those  numbered  1.  3,  4, 
5.  and  6,  the  whole  of  the  residue  of 
the  testator's  estate  and  the  property 
secondly  nimibored  and  described  as 
occupied  by  Bowley  havinf^  been  sold 
and  realised  to  pay  off  the  indebtednev 
of  the  testator;  and  all  tho  debts  ani 
mortgages   have  been   paid. 

5.  iSl.OOO  per  annum  nas  been  paid  to 
the  said  widow  of  tho  late  Lawrence 
Lazarus. 

6.  The  said  widow  has  agreed  to  forego 
and  waive  any  interest  and  rights  she 
may  have  under  and  by  virtue  of  the 
said  testamentary  writings  over  and 
above  tho  right  to  receive  the  s^id  sum 
of  £1,000  per   annuii), 


'<CAPB  TDfES"  LAW  REPORTS. 


937 


7.  Under  and  by  virtue  of  the  said 
testamentary  writings  the  plaintiffs  con- 
tend :  (a)  That  after  payment  to  the  said 
widow  of  £1,000  per  annum,  each  of  the 
children  of  the  said  late  Lawrence  Laz- 
arus is  entitled  to  be  paid  one-eighth 
share  of  the  rents  already  derived,  or 
still  to  be  derived,  from  the  said  landed 
properties  referred  to  in  paragraph  4 
hereof,  (b)  That  the  said  widow  Victoria 
Lazarus,  is  entitled  to  the  sum  of  £1,000 
per  annum  while  living  and  unmarried, 
(c)  That  upon  the  death  of  the  said 
widow,  or  upon  the  execution  b^  her  of 
the  aforesaid  surrender  and  waiver,  the 
said  properties  referred  to  in  paragraph 
4  hereof  become  the  absolute  property  of 
the  testator's  children,  (d)  Or,  as  an  al- 
ternative to  (c),  that  upon  the  death  of 
the  said  widow,  or  upon  the  execution 
by  her  of  the  aforesaid  surrender  and 
waiver,  the  rents  derived  from  the  said 
proprieties  referred  to  in  paragraph  4 
hereof  are  divisible  among  the  testator's 
children. 

Wherefore  the  plaintiffs  claim:  (1)  A 
declaration  of  rignts  in  terms  of  clauses 
(a),  (b),  (c),  or  as  an  alternative  to  (c) 
in  terms  of  clause  (d)  of  paragraph  7 
hereof.  (2)  Alternative  relief.  (3)  That  all 
costs  be  paid  out  of  the  estate  of  the 
said  late  Lawrence  Lazarus 

The  defendants  contended  that  the 
whole  of  the  estate  was  to  accumulate 
during  the  widow's  lifetime  with  the 
exception  of  the  £1,000,  and  after  her 
death  it  was  to  go  on  accumulating  until 
iho  last  surviving  child  of  the  testator 
died,  and  then  it  was  to  be  divided 
among  such  grandchildren  as  were  living 
or  their  descendants,  or  alternatively, 
that  even  if  the  children  were  entitled  to 
a  .share  of  rents  during  the  mother's  life- 
lime  and  their' 8,  then  after  the  death  of 
(ho  last  surviving  child,  the  rights  in 
the  property  wont  to  the  grandchildren. 

Sir  II.  Juta,K.CT.  (with  him  Mr.  P.  S. 
T.  Jones)  for  tl>o  plaintiffs ;  Mr.  Screinea*, 
K.C.  (with  him  Mr.  Swift)  for  the  de- 
fendants :  Dr.  Rainsford  eurat&r  ad  Htnn. 

Abraham  Lawrence  Lazarus,  eldest  son 
of  the  late  Lawrence  Lazarus,  and  one 
of  the  plaintiffs  in  the  case,  stated  that 
when  his  father  made  his  will  in  1887 
there  were  seven  children,  and  his  father 
was  on  good  terms  with  all  his  children. 
On  coming  of  age  witness  and  his  two 
brothers  received  £750  each,  and  one  of 
his  sisters  £S00;  saving  that,  nothing  else 
was  paid.  The  rent  derived  from  the 
property  was  considerably  over  £1,000. 
There  were  other  properties  besides  those 
mentioned  in  the  will. 

The  original  will  was  as  follows: 

1.  I  hereby  appoint  mv  wife  and  chil- 
dren my  sole  heirs  of  the  whole  of  my 
estate  and  effects;  it  is  my  desire  that 
the  property  corner  of  Longmarket  and 
Plein  streets,  known  as  Victoria  f'ham- 
1>ers  shail  not  be  sold  during  the  lifo- 
t\vn&  of  my  wife  and  children,  bi»t  be  lot, 
and  the  rent  divided  among  the  heirs. 

oiS 


I 


2.  The  property  now  occupied  by  Mr. 
Bowley  is  not?  to  be  sold  for  less  than 
£1,200,  failing  such  offer  to  be  treated 
same  as  Victoria  Chambers.  The  houses 
and  three  shops  in  Longmarket-street 
are  not  to  be  sold,  but  be  managed  in 
same  way  as  Victoria  Chambers.  The 
shop  next  to  Do  Vries  in  Longmarket- 
street  is  likewise  to  be  administered  as 
Victoria  Chambers. 

4.  The  property  corner  of  Lon^  and 
Shortmarket  streets,  unless  claimed  by 
present  tenant?  under  lease,  is  also  to 
be  managed  as  Victoria  Chambers. 

5.  The  property  annexed  to  the  above, 
now  occupied  by  Boas,  is  also  to  be  ad- 
ministered as  Victoria  Chao^rs. 

6.  The  property  opposite  to  the  Royal 
Hotel  in  Plein-street,  and  Staffordshire 
House,  opposite  Stigauts,  and  the  pro- 
perty in  Breda-street,  are  not  to  be  sold, 
but  be  managed  as  Victoria  Chambers. 

7.  The  realisation  of  the  rest  of  my 
estate  I  leave  to  the  discretion  of  my 
executors;  no  child  shall  have  the  right 
to  claim  any  portion  of  his  or  her  in- 
heritance during  the  lifetime  of  mjr  wife 
and  so  long  as  she  remains  unmarried. 

8.  In  the  event  of  my  daughters,  or 
either  of  tliem.  marrying  before  the 
death  of  my  wife,  they  shall  be  entitled 
to  the  sum  of  five  hundred  pounds  each 
by  way  of  marriage  settlement. 

9.  At  the  majority  of  either  of  my 
sons,  should  they,  or  either  of  tliem, 
feel  disposed  to  enter  into  business,  they 
slmll  be  entitled  to  a  sum  of  seven  hun- 
dred and  fifty  pounds  sterling,  provided 
such  business  shall  meet  with  the  ap- 
proval of  my  executors. 

10.  Should  my  wife  re-marry  she  shall 
not  be  entitled  to  anything  more  out  of 
my  estate. 

11.  I  desire  mv  executors  to  pay  my 
mother  for  life  £20  sterling  quarterly, 
l>oing  at  the  rate  of  £80  per  annum/ 

12.  I  be<|ueath  to  my  brother.  Joseph 
Lazarus,  the  sum  of  two  hundred  and 
fifty  pounds  sterling,  and  to  my  brother 
Jacob  one  hundred  pounds  sterling. 

13.  I  appoint  as  my  executors  and 
guardians  of  my  minor  heirs  my  wife 
and  George  William  Steytler  (secretary), 
or  the  secretary  for  the  time  beinpr,  of 
the  Colonial  Orphan  Chamber  Trust 
Company,  with  all  powers  allowed  in 
law.  especially  thai  of  substitution. 

14.  Should  any  of  my  children  marry 
out'  of  the  Jewish  religion  they  are  all, 
or  any  of  them,  forthwith  disinherited. 

As  Witnesses :  Cape  Town,  9th  Janu- 
ary, 1897. 


-Alex.   Chiappini. 
C  F.  Faure  Juritz. 


-L.  Lazarus. 


15.  I  desire  that  my  wife  shall  during 
her  life  and  so  long  as  she  shall  remain 
unmarried,  draw  a  sum  not  exceeding 
one  thousand  per  annum  for  the  main- 
tenance and  support  of  herself  and  all 
mj  children,  excepting,  of  course,  those 
that  may  be  married,  or  shalj  have  start- 


038 


"CAPE  TIMES"  LAW  REPORTS. 


ed  in  bosinefis.  Any  accumulation  of 
rents  or  interest  after  payment  of  the 
above  sum  shall  revert  to  my  estate. 

16.  After  the  death  of  mv  children  I 
appoint  my  g^ranehildren,  if  any,  as  my 
heirs,  failing  grandchildren  my  lawful  de- 
scendants. 

As  witnesses :  Cape  Town,  9th  Janu- 
ary, 1887. 


-Alex  Chiapinni. 
-C.  F.   Faure  Juritz. 


-L.  Lazarus. 


*!.  ^''?®  William  Stcytler,  Secretary  of 
lu  i^?*®"**!  Orphan  Chamber,  one  of 
the  defendants,  as  executor  in  the  estate, 
stated  the  will  produced  was  in  his  hand- 
writmg.  Witness  copied  the  will  from 
a  draft.  When  Lazarus  died  in  '89  the 
property  was  involved  in  heavy  liabili- 
tMM,  and  the  Chamber  financed  the  es- 
5?i^Vn  There  was  an  accumulation  of 
r^^A^"*^  ,  "^  daughters  had  yet  to 
get  i>500  each  on  being  married.  The 
rent  had  almost  doubled  itself  since  the 
death  of  the  testator. 

*u^^^P''v^*'"^.'^^^ '  ^^  w*s  q"»t«  clear 
tnat  the  house  m  Longmarket-street  was 
not  covered  by  the  house  and  three  shops 
mentioned   in  the  will. 

By  Sir  H.  Juta:  If  witness  had  made 
one  copy  of  the  will  it  would  have  been 
signed  only  once,  yet  there  was  a  break 
in  the  will,  and  it  was  signed  twice. 

1  his  was  all  the  evidence  in  the  case, 
and  Counsel  having  been  heard  in  arcru- 
mont,  * 

Our.  Adr.   Vult. 

Poslea  (November  20). 

Maasdorp,  J.:  The  parties  bo  this 
suit  propose  to  effect  a  family  armnge- 
ment  in  ^e^pect  of  the  estate  left  by  tho 
testator  Lawrence  Lazarus,  and  the 
questions  arise  whether  all  the  inter- 
ested persons  are  represented  in  the 
matter,  and  whether  there  is  anything 
m  the  will  which  precludes  the  pro- 
posed arrangement.  After  carefully 
considering  oil  the  provi^ons  of  the 
wiU  I  have  oome  to  the  conclusion  that 
1  ehaJl  be  obliged  to  have  recourse  to  a 
rule  of  construction   which   it  i/.,   fortu- 

!I?    ^mi?""®^^*'y  ^  '"aJ^^  frequent  use 
or.       ihe  wise  mainly  depends  upon  the 
question  whether,  by  the  last  cUse  of 
the  will,   the  testator  intended  to  make 
a  fldet     commissary   disposition   of     his 
property,    or  a  direct   substitution       of 
iieirs;    and    the   rule  of   construction    I 
refer  to  IS  to  tne  effect  that,  in  case  of 
ctoubt    tho  will   mu«t  be  interpreted   so 
as  to  favour  a  direct  rather  than  a  fidei 
commissary  substitution.     The  will   haft 
of  course,   to  be  construed  as  a  whole,' 
with  the  object  of  discovering  the  real 
inteotion  of  the  testator,  and  as  a  gen- 
erad    rule,    this    results    in    ascertaining 
such  intention      beyond  any   masonable 
«<>"»*;  ,V"*  ^^  present  will  is  so      in- 
artistically  drawn,   tha*  it  is  impossible 
for  me  to  say  that  after  everything  Imub 
been   considered,   all   doul^ts   aix>  entire- 


ly removed.  Tbe  last  clause  of  Uie 
will  reads  as  follows:  After  the  defttfa 
of  my  children,  I  a|>point  my  fnad- 
children,    if   any,    as  my  beiiB»    tailing 

frandchildren,    my    lawful    descendants, 
am   inclined  to   the  opinion   that  the 
true    coofitruotion  of    this   clause,    read 
by   tbe   light  of   tho  other  portions  of 
tne     will,      reveal     tho     intention      of 
the     testator      merely      to      substitute 
the  grandchildren  or  further  descendants 
in  the  place  of  the  children  in  case  the 
child  re  a  should  be  by  death  prevented 
from   succeeding  the  testator      as      his 
heirs.    The  phraseology  here  used  is  not 
such  as  is  generally  employed  to  provide 
for  the  devolution  of  an  estate  from  a 
fiduciary    to     a    fideioommissary     heir; 
and  does  not  seem  to  express  the  idea 
that  the   children   after  enjoying      the 
property  for  life  shall  pass  it  on  to  the 
grandchildren^    But    it    rather    coiive3rs 
the  idea  of  the  grandchildren  taking  as 
heirs  directly  from  the  testator,  in  the 
event  of  the  children  not  taking.      I  do 
not   say    that    the    use   of    the    words: 
"After  the  death  of  my  children  I  ap- 
point my  grandchildren  my  heirs,"  may 
not  in  a  different   context,   and,      when 
literally  construed,   express  a  fidei-com- 
missary disposition     It  is  certain  that  if 
tho  clause  is  literally  construed  it  would 
lead  to  very  curious  results,  and  results 
inconsistent  with      the  intention  of  the 
testator  as  expressed   in  other  portions 
of  the  will.    One  result  as  contended  in 
the  argument  would  be  t^at  if  any    of 
tho  children  died  their  children  would 
not   immediately   succeed   to   their   por- 
tions, but  the  grandchildren  would  have 
to  wait  until  all  the  children  were  dead, 
and  bo  in   the  meanwhile      unprovided 
for.     I  am,  therefore,  of  opinion  that  the 
mere  literal  interpretation  of  the  clause 
cannot  be  adopted,  and  I  oome  to  the 
conclusion,   with  the  aid  of  the  rule  of 
construction  mentioned  above  that  thia 
clause    merely    provides,    as    is    wuallv 
done  in  wills,  that  if  any  of  the  children 
should  happen  to  die  in  the  lifetime  of 
the   testator   the   descendants  of     such 
children  shall  come  into  their  places  by 
representation.     It   was   contended    that 
tho  prohibition  against  the  sale  of  cer- 
tain properties,  in  the  first  clause,  dur- 
ing  the  lifetime  of  the  wife  and  chil- 
dren, favours  tho  construction  tbat     it 
was   th^   intention  of  the  testator   that 
these   properties  should    under   the   last 
clause   pass   to   the  descendants   of  the 
children.    But  upon  reference  to  clause 
seven  it  appears  that  no  such  prohibi- 
tion exists  in  respect  of  what  was  cer 
tainly  at  one  time  regarded  as  the  groat 
bulk  of   the  estate.    And  it  must      be 
borne  in  mind  that  a  prohibition  against 
selling   does   not   prevent  certain   other 

"^^J^®*J?^  *^*®'**^**°°»  **'  f<^  instance,  by 
will.  To  my  mind,  the  prohibition  in 
clause  one  was  not  introduced  in  favour 
of  descendants,  but  for  the  purpose  of 
constituiting  a  fund  or  investment  for  the 
joint  benefit  of  the  wife  and  children 


"CAPB  TIMES*'  LAW  RBP0BT8. 


9»0 


and  8ueb  investment  or  fund  is  to  be 
kept  up  during  the  lifetin»e  of  the  wife 
and  children.  I  cannot  hold,  as  was 
contended,  that  the  prohibition  would 
come  to  an  end  upon  the  death  of  the 
wife,  any  more  toan  upon  the  death 
of  one  of  the  children.  But,  on  the 
other  hand,  I  think  that  upon  the  con- 
sent being  given  of  ell  parties  in  whose 
favour  it  was  made,  it  can  be  terminat- 
ed. I  quite  agree  that  if  it  were  pro- 
vided in  tile  will  that  an  heir  shall 
not  take  until  a  certain  event  occurs, 
such  heir  will  not  be. entitled  to  claim 
the  property  until  the  happening  of  lite 
event.  But  in  this  case  there  is  no* 
thing  to  tffaand  between  the  heirs  and 
the  property.  They  may  take  the  pro- 
perty, but  after  doing  so  they  may  not 
sell  during  the  lifetime  of  the  wife  and 
children.  The  prohibition  in  question 
operating  only  in  favour  of  the  wife 
and  children  and  the  representatives  of 
such  children  as  have  died  since  the 
death  of  the  testator,  I  am  of  0{>indon 
that  by  consent  of  all  of  them  it  can 
be  terminated.  In  view  of  the  pro- 
posed family  settlement,  no  question 
arises  under  clause  fifteen  as  to  whe- 
ther the  rents  under  clause  one  contri- 
buted to  the  £1,000  provided  for  the 
wire.  In  ordeo:  to  ensure  to  her  this 
provision,  ii  was  provided  in  the  will 
that  the  rooiduarv  estate  shall  not  be 
claimed  by  the  neirs  during  her  life- 
time, or  as  long  as  she  remains  un- 
married, and  even  the  surplus  in  hand 
bad  for  that  purpose  to  go  to  swell  the 
estate.  Here  again  this  provision  was 
solely  for  her  benefit,  and  she  can  re- 
nounce it.  The  estate  veeted  in  the 
children,  although  they  could  not  claim 
it  until  her  death,  and  there  is  nothing 
to  prevent  their  disposing  of  their  vested 
rights,  even  during  her  lifetime.  The 
postponement  of  the  rights  of  the  chil- 
dren does  not  in  this  case  create  rights 
in  favour  of  others  at  tiie  time  of  the 
mother's  death,  as  was  the  case  in  some 
of  the  oa«os  cdted  at  the  bar.  I  am  of 
oj)inion  that  there  is  nothing  in  the 
will  to  prevent  the  nvaking  of  the  fiamil^ 
arrangement  proposed  by  the  parties,  if 
all  tiio  interested  parties  consent.  They 
are  the  mother,  the  children,  and  the 
legal  representatives  of  the  deceased 
daughter.  Who  the  legal  representa- 
tives of  the  daughter  arc  has  not  been 
made  clear.  Whether  it  is  her  hus- 
band or  hor  children  must  bo 
ascertained.  A  declaration  is  made  in 
<erm.s  of  paragraph  (a)  and  (b)  of  the 
))Iaintiffs*  contentions,  with  this  proviso 
that  it  is  made  wholly  irrespective  of 
the  question  of  the  widow's  renuncia- 
tion of  her  rights,  and  with  (the  follow, 
ing  amendments:  Insert  after  the  word 
children,  "  or  his  or  her  leg[al  repre- 
sentatives," and  alter  one-eighth  into 
one-ninth.  As  to  contention  (c),  it  is 
declared  that  upon  the  death  of  the 
widow  the  proi>erties  shall  ^  pass  as 
absolute   property   to  her  heirs,   and  to 


the  children  or  their  legal  repre«eiita- 
tivee.  As  to  the  further  contention  in 
paragraph  (c),  it  seems  to  me  the  mat- 
ter depends  upon  the  terms  of  tiie 
waiver  and  the  condition  of  the  family 
aettlement.  The  widow^  possesses,  not 
merely  a  life  interest  which  she  can  re- 
nounce, but  is  joint  heir  to  the  pro- 
perty, and  that  would  have  to  be  dealt 
with.  It  is  not  only  a  case  of  her 
standing  aside  and  allowing  the  other 
heirs  to  take  under  the  will,  but  she 
has  adiated  and  possesses  vested  rights 
which  must  be  specifically  dealt  with  in 
the  settlement.  A  deolaration  to  the 
following  effect  may  suffice  for  the  pur- 
poses of  the  parties,  that  it  is  within 
the  power  of  the  widow,  her  children, 
and  their  legal  representatives  to  enter 
into  a  settlement  whereby  the  properties 
may  now  be  transferred  to  the  children 
or  their  legal  repreaentatives  in  full 
ownership,  costs  to  be  paid  out  of  the 
estate.  Mr.  Lazarus  declared  a  neces- 
sary witness;  Mr.  Percy  Jones  appoint- 
ed to  represent  the  minor  in  the  settle- 
ment. The  executors  to  continue  their 
administration  pending  the  settlement. 

[Plaintiffs'  Attorneys:  Van  Zyl  and 
Buissinne ;  Defendants' :  Fairbridge,  Ar- 
deme,  and   Lawton.] 


LBVY  V.  WYNB88. 

Mr.  Rcux  was  for  the  plaintiff,  and 
the  defendant  was  in  default.  Coun- 
sel moved  under  Rule  319  for  judgment 
for  £250,  with  interest  and  costs  of  suit. 
The  defendant  had  leased  an  hotel  from 
the  plaintiff  and  failed  to  insure  certain 
furniture,  which  was  destroyed  by  fire. 
The  defendant  had  been  sued  by  edictal 
citation,  and  had  promised  to  settle, 
which,  however,  he  failed  to  do. 

Maasdorp,  J.,  considered,  under  the 
circumstances,  the  claim  was  not  a  liquid- 
ated one,  and  ordered  the  matter  to 
stand  over  for  consideration  by  counsel 
as  to  whether  he  should  move  to  have  the 
case  removed  to  Dordrecht  or  apply  for 
a  commission  to  take  the  evidence  of  the 
plaintiff. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before   the  Aoting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


Kr  pa rte  I NSOLVKNT  ESTATE  f       10(K">. 

GOLDINO.  )  Nov.  16th. 

Mr.    Bailey  moved   to  make  absolute 
a  rule  ni*i  for   the  amendment  of  cer- 


940 


«4 


CAPE  TIMES''  LAW  BEPORTfi. 


tain  prooeedinct  in  the  insolvent  estate 
of  Morris  Grolding,  otherwise  styled 
Moses  Golding,  and  for  an  interdict  re- 
straining the  respondent  from  selling, 
alienating,  or  enoombering  certain  pro- 
perty recently  transferred  to  him. 
Hiilo   made  absolute. 


WILSNACH  V.  VAN  DEB  WB8T-  j       1906. 
HUIZEN  AND  ANOTHER.        |  Nov.  I6th. 

Spoliation — Compensation  for  im- 
provements. 

Certain  land  in  the  riilage  of 
A.  remained  regintei'ed  in  the 
name  of  mie  D.  (now  deeeaned). 
Some  30  years  ago  D,  /told  the 
land  to  one  A'.,  who  jxiid  for 
the  same  but  nwer  took  posses- 
sion, lit  gave  to  ofte  H.  a 
right  to  occupy  a  houae  on  the 
property.  This  liouse  gradu- 
ally fell  into  such  a  state  of 
dtlapidation  as  to  become  a 
public  nuisance^  and  no  Divi- 
sional Council  rates  had  been 
paid  on  the  property  for  G 
ye^rs.  The  Council,  instead 
of  attaching  the  property  and 
selling  for  arrears  of  rates, 
gave  W.  leave  to  occupy  the 
house.  He  did  so ^ paid  arrears 
of  rates  and  ntiide  the  place 
habitable.  After  he  had  been 
in  umliHturbed  posttession  for 
some  years,  II.  alleged  that  he 
had  purchased  the  house  from 
A'.,  and  in  WJ's  absence,  made 
forcible  entry. 

Held,  that  U.  had  committed 
an  act  of  spoliation  thai  he 
must  give  up  possession  to  W. 
and  might  wen  (if  so  advised) 
bring  an  action  of  e/ectmtnt 
against  him. 

Semble,  even  in  the  event  of  II. 
succeeding'  in  such  action,  he 
xcould  be  bound  to  compensate 
W.  for  his  improvements  and 
to  refund  to  him  the  money 
paid  for  arrear  rates. 


This  was  an  application  upon  notice 
calling  upon  the  respondents,  Van  der 
Westhuizen  and  Haak  to  restore  to  ap- 
plicant possession  of  a  certain  house  and 
ground  situate  at  Prince  Albert. 

From  the  numerous  affidavits     which 
were  read  it  appeared  that  the  applicant 
alleged  that  he  had  been  wrongfully  de- 
prived of  possession  of  a  house  stf^ndin^ 


on  Erf  No.  30,  which  he  had  been  given 
leave  to  occupy  by  the  Divisional  CouciL 
The  property  at  the  time  Wilsnach  en- 
tered upon  possession  was  in  a  most  di- 
lapidated condition,  and  was  derelict. 
Applicant  paid  the  arrear  rates  to  the 
Council.  Applicant  expended  money  to 
put  the  property  into  a  habitable  state. 
Ho  declared  that  the  respondents  had, 
1' it  her  or  both  of  them,  obtained  posses- 
sion by  spoliation.  The  position  of  the 
respondents  was  that  the  applicant  had 
no  right  to  enter  upon  possession  of  the 
property,  and  that  it  was  registered  in 
the  name  of  another.  It  was  emphatic- 
ally denied  that  forcible  possession  had 
been  taken  of  the  premises. 

[Mr.  Van  Zyl  for  Applicants.  Mr. 
Upington  for  HMpondents.] 

Mr.  Van  Zyl,  during  the  hearing  of 
the  case,  was  proposing  to  out  in  from 
the  Bar  certain  replying  affidavits,  when 

Buchanan,  A.  C.  J.  asked  why  the  affi- 
davits had  not  Ix^en  filed. 

Mr.  Van  Zyl  said  that  he  was  unable 
to  say,  as  he  had  only  just  come  into 
the  case. 

[Buchanan,  A.  C.  J. :  We  find  that 
the  attorneys  are  always  charging  in  their 
bills  of  costs  for  filing  affidavits,  and 
they  never  do  file  them.  I  think  that 
the  Taxing  Master  ought  to  look  care- 
fully  into  these  nruMtters.] 

Mr.  Van  Zyl  said  it  was  clear  that  the 
))etitionor  was  the  bona  jSde  occupier 
of  the  premises  by  arrangement  entered 
into  with  the  Divisional  Council,  which 
arrangement  the  respondent  described 
us  having  boen  illegal.  Under  the  4th 
Hoction  of  the  Derelict  Lands  Act  the 
Divisional  C'ouncil  had  a  right  to  attach 
properties  on  which  the  rates  were  in 
arrear  for  the  last  five  years.  On  this 
property  the  petitioner  stated  that  the 
secretary  of  the  Divisional  Council  stated 
the  rates  wore  in  arrear  for  the  last 
six  yoars. 

[Buchanan  A.  C.  J. :  The  Council  have 
no  right  to  let  other  people's  property ; 
they  have  a  right  to  attach  and  sell  it. 
At  this  stage  it  is  immaterial  whether 
ho  is  a  bona  fide  or  a  mala  fide  posses- 
sor.] 

Mr.  Van  Zyl  said  that  the  chief  point 
was  the  circumstances  under  which  the 
respondent  obtained  possession  of  the 
property.  What  the  petitioner  asked  now 
was  to  be  put  back  mto  the  former  posi- 
tion, on  the  ground  that  he  bad  been 
ejected. 

Mr.  Upington  said  that  the  petitioner 
made  application  to  the  Court  on  the 
ground  that  respondents  were  spolia- 
tors, and  that  they  had  taken  forcible 
possession  of  the  property.  If  it  were 
clear  that  the  respondents  had  taken 
forcible  possession,  then,  of  course,  there 
was  no  principle  clearer  in  law  than 
that  the  applicant  must  be  replaced  in 
possession.  But  what  was  the  respond- 
ent's position?  Two  facts  were  undis- 
puted, one    that    the    registered  owner 


'^CAPE  Til^EB"  LAW  hEPOftTB. 


941 


sold  to  Knight,  and  (2)  that  Kniopht  sold 
io  Haak.  Counsel  submitted  that  the 
applicant  had  the  most  precarious  of  all 
tenures.  He  had  a  more  licence  from 
the  Divisional  Council,  who  did  not  pre- 
tend to  be  the  owners,  such  a  licence 
that  when  the  rightful  owner  appeared 
tlio  applicant  was  at  once  to  give  up 
lK)88e8sion.  Such  possession,  he  submit- 
ted, was  not  possession  sufficient  to  found 
a  possessory  action  of  this  kind.  As  to 
the  qui*8tion  of  spoilation,  Mr.  Uping- 
ton  contended  that  force  was  a  neces- 
sary ingredient  of  spoliation,  and  that 
no  force  was  used  by  Ilaak  in  taking 
liossession. 

Buchanan,  A.  G.  J. :  This  is  an  appli- 
cation in  which  the  petitioner  prays  for 
an  Order  compelling  the  respondents  to 
restore  to  applicant  a  certain  house  and 
premises  which  the  respondents  forcibly 
posessed  themselves  of,  and  for  costs 
of  this  application.  It  appears  that 
certain  landed  property  in  the  village 
of  Prince  Albert  8tand.<s  registered  in  the 
name  of  the  late  John  Dyason.  Re- 
spondents now  allege  thai  over  30  years 
ago  this  property  was  sold  by  John  Dya- 
b'on  in  his  lifetime  to  one  Knight,  and 
Knight  has  made  an  affidavit,  in  which 
lie  states  that  he  paid  Dyason  by  working 
for  him.  Knight  never  took  possession, 
and  some  years  ago  ho  left  Prince  Al- 
Ijert.  taking  no  further  interest  in  it. 
It  is  alleged  that  Knight  gave  a  person 
the  right  to  occupy  tne  house,  but,  if 
HO,  tiiis  person  abandoned  tlte  propuM'ty. 
For  some  six  years  before  proceedingH 
were  taken  the  pi-operty,  being  tk"ri'Jict, 
had  become  a  nuisance  through  rubbit«li 
l>eing  deposited  thereon  and  tlic  hout'e 
became  so  dilapidated  that  only  the 
four  waJls  were  standing.  Under 
these  circumstances  the  Divisional 
Council  intended  to  have  the  proi^'^rty 
attached  as  derelict  property,  and  soUl 
for  payment  of  arr*»ar  rates.  On  the 
application  of  the  petitioner,  however, 
they  allowed  him,  so  far  as  they  were 
concerued,  to  take  possession  of  the 
property.  Ho  paid  the  arrear  rates,  re- 
moved the  nuisance,  renovated  the  buihl- 
ings,  and,  according  to  the  affidavit  of 
the  mason,  carried  out  such  repairs  as  to 
make  the  house  habitable.  Some  years 
after  it  had  been  in  possession  of  the  ap- 
plicant the  respondent  Ilaak  alleged  he 
found  out  where  Knight  was,  and  so* 
cured  an  order  from  Knight  to  have  the 
premises  handed  over  io  him,  and  in 
July  last  Knight  is  alleged  to  have 
sold  the  property  to  Haak.  At  this 
time  applicant  was  in  peaceable  pos- 
session of  the  property,  and  had  been 
for  years.  Haak  wroto  to  the  appli- 
cant to  give  up  posfsession  on  the  ^th 
November,  ana,  as  the  applicant  says, 
when  he  received  this  notice,  and  was 
goinff  to  the  house,  he  found  that  Haak 
had  placed  his  tenant  in  possession  of 
the  building.  Applicant)  says  he  had 
locked  up  the  house  when  he  had  stored 


certain  grain  therein,  that  he  had  not 
unlocked  the  same  again,  that  he  bad 
"^e  key  in  his  possession,  and  that,  on 
receiving  this  notice  from  Haak  on  the 
29th  August,  between  the  hours  of  seven 
and  nine  in  the  evening,  he  went  to  tlie 
house  in  question  to  see  whether  the 
same  was  still  properly  locked,  and 
found  Van  der  Westhuyzen  in  possession. 
He  says  admission  must  have  been  ob- 
tained either  by  forcing  the  door  open, 
or  by  unlocking  it  with  some  other  icey. 
All  this  is  denied  by  respondents,  but 
this  is  a  clear  case  of  unlawfully  taking 
possession  of  premises  in  the  occupation 
of  another  person.  It  is  said  that  the 
taking  possession  did  not  matter  if  the 
applicant  had  no  right  of  retention.  As- 
suming, for  the  sake  of  argument,  even 
that  the  applicant  was  a  irutla  fide  pos- 
sessor, he  was  entitled  to  compensation 
for  any  permanent  improvements  he  had 
made  to  the  property.  As  far  as  one 
can  ascertain  from  the  affidavits, 
the  property  has  been  consider- 
ably enhanced  in  value  by  the  appli- 
cant's outlay,  and,  moreover,  the  ap- 
plicant had  saved  it  from  being  sold  as 
derelict  property  by  paying  the  arroar 
rat<»s.  The  whole  foundation  of  the 
rule  for  the  restoration  of  property 
taken  nossewsion  of  in  -this  way  is,  that 
a  spoliator  is  not  entitled  to  take  the 
law  into  his  own  hands,  and  a  person 
who  takes  the  law  into  his  own  hands 
must  restore  the  property  and 
etftablish  his  right  in  a  court  of  law. 
Hesnoiident  must  re«t^>ro  this  property 
forthwith  to  the  applicant,  and  then,  \i 
he  wishes  to  e.stablish  his  title  to  t7he 
pror^erty,  lie  mu>*t  bring  his  action  to 
eject  the  a.pplicant.  in  which  action  the 
applicant  can  w^t  up  his  right  to  any 
compensation    for    iinprovementH.  Jt 

is  a  matter  of  considerable  importance 
to  the  applicant  whether  or  not  he 
remains  in  possession,  U^caui^e  the  very 
possession  is  the  only  ri^ht  which  affords 
him  security  for  recovermg  his  compensa- 
tion. The  application  will  ho  granted, 
and  the  respondents  ordered  forthwith 
to  restore  possession  of  the  property, 
with  costs.  I  may,  for  the  ^axe  of 
saving  litigation,  and  seeing  that  tlw» 
parti<>s  are,  1  think,  poor  i>ersons,  sug- 
gest to  the  applicant  that,  if  reason- 
able comi^eii'saiion  is  paid  to  him.  and 
the  nrrear  rates  are  paid  to  him,  he 
ought  not  to  content  the  respondents* 
claim  further.  The  order  will  bo 
granted   as  a  writ  of  spoliation. 

f  Applicant's  Attorneys  :  Dempers  and 
Van  Kyneveld ;  Respondent's :  Not  on 
record.] 


Eji  parte  mckinnon. 

Mr.  Gutsche  moved  for  the  amend- 
ment of  the  entry  of  petitioner's  name 
in  the  Debt  Reg^try  and  Deeds  Regis- 
try to  John  Monro  McKinnon,  the  con- 


d42 


II 


CAPE  TIMES"  LAW  ItEPORtS. 


eent      of   the  mortgagees   having   been 
obtained. 
Order  granted. 


Ev  parte  SAKDERS. 

'Mr.  Watcrmevnr  m<>v<><l  for  loavc  to 
«uo  til©  (Vipo  Town  Train  way«  Co.  in 
forma  pawpcris,  Counsol  pw»t>ntod  tlio 
usual  CMsrtificfrto. 

Rulo  nin  granU'd.  calling  npon  the 
respondents  to  show  cause,  rulo  to  be 
Horved  personally,  and  to  be  returnable 
on  the  12th  Deconrber. 


VUSO  V.  vuso. 

Mr.  Lewis  moved,  on  the  pctitiiin  <»f 
Shadrach  Vuso,  for  leave  to  suo  his 
wife  b^  edict ol  citation  for  restitution 
of  conjugal  ri^ht^,  failing  whch,  divorce. 
Counsel  explained  that  petitioner  orig- 
inally sued  his  wife  for  divorce  oi\  the 
ground  of  adultery,  but  some  difficulty 
was  experienced  in  regard  to  serviuig 
process  on  defendant,  and  eventually  an 
order  was  obtained  to  serve  process  9!t 
the  houiie  of  her  father  in  King  Wil- 
liam's Town.  Defendant  was  believed 
to  be  in  East  London,  but  she  could 
not  be  found.  The  matter  was  eet 
down  for  the  24th  October,  but  a«t  the 
last  moment  petitioner  could  not  find 
the  witness  on  whom  he  relied  for  evi- 
dence aa  to  the  adultery,  and  he  now 
wished  to  institute  fresh  {)roceedings 
for   restitution  of   conjugal  rights. 

[Buchanan,  A.  C.  J. :  Defendant  is 
still  in  the  country?] 

It  is  absolutely  impossible  to  find  her. 

[Buchanan,  A.  C  J. :  She  is  not  sup- 
posed to  be  out  of  the  country,  is  she  ?] 

It  is  not  known  where  she  is ; 
she  is  believed  to  bo  in  E^t 
London.  Counsel  informed  hi^  lord- 
ship that  petitioner  was  a  native,  resi- 
dent at  the  location  at  Maitland. 

Leave  to  sue  by  edictal  citation 
granted,  personal  service  to  be  effected, 
failing  which,  one  publication  in  the 
'*  Government  Gazette  "  and  '*  Imvo," 
citataon  to  be  returnable  on  the  12th 
January. 


Ex  parte  estate  bauer. 

Mr.  Van  Zyl  moved  for  confirmation 
of  certain  sale  of  property  situate  at 
Claremont  in  the  cptate  of  the  late 
Johan  Bauer,  petitioner  being  one  uf 
i\\*^  executors. 

Order  granted. 


Ex  parte  ESTATE  CHAPMAN. 

Mr.  Bailey  moved,  on  the  petition 
of  the  executrix  testamentary,  for  leave 
to  raise  a  certain  mortgage  bond  on  pro- 
perty  situate   at    Port    Elisabeth. 

Order  granted. 


Ex  parte  ESTATE  WORDON. 

Mr.  Van  Zyl  said  that  this  matter 
had  previously  been  before  his  lordship, 
and  was  then  referred  to  the  Master  for 
report.  The  Master  had  now  reported 
very  briefly  aa  follows:  "I  have  in- 
auired  into  this  application,  and  I  find 
tliat  the  whole  matter  is  so  surrounded 
with  difficulties  *hat  the  compromise 
arrived  at,  now  before  the  Court,  ap- 
I^ears-  to  have  been  the  best  way  out  of 
It." 

Order  granted. 


Ex  parte  IfONTAGU  D.R.  CHURCH. 

Mr.  Van  Zyl  moved  for  an  order  au- 
thorising the  Master  to  pay  out  certain 
suma  in  his  possession  in  connection 
with  bonds  passed  to  the  petitioners. 

Order  granted  in  terms  of  Master's 
report,  coats  to  come  out  of  fund. 


COLONIAL  GOVERNMENT  V    LOTTER. 

Mr.  P.  S.  T.  Jones  moved  for  au 
award  of  arbitrators  to  bo  made  a  Rule 
of  Court. 

Awvrd  made  a   Rule  of  Court. 


Ex  parte  DONNE. 

Mr.  Sutton  a^ain  mentioned  the  mat- 
ter of  the  petition  of  John  Gilbert  Ven- 
ables  Donne,  who  applied  to  have  his 
name  amended  as  it  appears  on  a  mort- 
gage bond.  His  name  was  entered  on 
the  bond  as  John  Gilbert  Donne.  The 
matter  had  been  referred  to  the  Regis- 
trar of  Deeds,  who  now  reported :  *'  It 
in  very  desirable  that  the  transfer  deed, 
mortgage  bond,  and  Debt  Register  folio 
concerned  should  be  amended.  I  beg 
to  recommend  that  an  order  be-  granted 
authorising  me,  upon  production  of 
mortgagees'  consent,  to  make  t-he  neces- 
sary alterations." 

Order  granted  in  terms  of  Registrar's 
report 


SECOND    DIVISION. 


[  Before  the  Hon.  Mr.  Justioe  Maasdorp.  } 


RE.K  V.  SAMMY. 


f       1905. 
(Nov.  I6th. 

Articles  unfit  for  human  food — 
Act  5  of  1890,  Sec.  6. 

A  person  camiot  be  coMvicied 
under  Sec.  6  of  Act  S  of  1800 
of  exposing  for  sale  articles  of 


"fcAtiB  tlMfeS"  LA*  fetetofetS. 


94:^ 


food  unfit  for  human  consump- 
(ion. 


Maasdorp.  J.  said  that  a  case  had 
come  before  him  as  Judge  of  the  week, 
in  which  one  Sammy  was  charged  be- 
fore the  Assistant  Resident  Magistrate 
of  Malmeabury  with  contravening  ©ec- 
tion  6  of  Act  5  of  1890  in  having  sold 
a  quantity  of  fish,  which  was  unfit  for 
human  consumption.  He  pleaded  guilty, 
and  was  fined  £50,  or  three  months'  im- 
prisonment. It  seemed,  however,  that 
the  section  under  which  the  accused  was 
charged  did  not  apply  to  the  circum- 
stancec  of  the  case.  It  was  quite  pos- 
sible that  the  conduct  of  the  accused 
might  be  treated  as  an  offence  under 
some  other  law,  but,  as  it  did  not  fall 
under  that  section,  the  conviction  and 
sentence  must  be  quashed. 


TRUSTEE   OF    THE  RHKN 

MISSION       SOCIETY       V. 
BARRON  AND  OTHEBS. 


NISH  \  ^ 

I     .,      2 


1905. 

Nov.  16th. 

17th. 

18th. 

28th. 


Mission  station  —  Rules  —  Con- 
tract— Declaration  of  rights 
— Ejectment. 

A  certain  Minswtianj  Society 
had  acquired  tlic  ahsoliUe  domi- 
nium of  a  certain  farm  for 
the  purpose  of  a  viisition  sta- 
tion, and  had  established 
thereon  a  settlement  for  colour- 
ed  penph.  Rules  for  the  good 
government  of  the  settlement 
were  drauTU  va)  by  the  Mission- 
aries, to  which  all  2>^f'9ons 
who  settled  on  the  land  ire  re 
required  to  assent.  These 
indes  icere  read  to  the  pettple 
from  time  to  time,  but  \rere 
not  printed  for  mafty  years. 
In  1881,  these  indes  (with  a 
fete  uninportant  modifications) 
wei-e  printed  and  circulated. 
The  rules  provided,  inter  alia, 
tlial  any  erf  holder  on  the  sta- 
tion could  be  ejected  from  his 
holding  on  a  month^s  notice 
subject  to  his  right  on  a  fixed 
scale  of  compensation  for  his 
improvements.  Three  of  the 
defendants  who  had  persisted 
in  breaking  certain  rules  of 
the  station  received  such  notice, 
but  refused  to  comply  there - 
ivitlt.  Other  two  had  received 
no  such  notice  but  had  trans- 
gressed the  rules  by  refused  to 


pay  rent,  on  the  ground  that 
then  had  a  quasi  proprietai'y 
right  in  their  holdings.  The 
Society  now  claimed  a  declara- 
tion of  rights  as  against  the 
defendafits^  an  order  of  eject- 
ment and  arrears  of  rent  from 
those  who  had  refused  to  pay, 
tendering  at  the  same  time 
compensation  for  improcemenfs 
as  fixed  by  the  rides. 

Held  (1)  that  die  rules,  as 
printed,  formed  the  basis  of 
the  contract  between  the  Mis- 
sionaries and  the  people ; 
(2)  that  the  Society  was,  there- 
fore,  entitled  to  an  order  of 
ejectment  against  the  defen- 
dants; (3)  that  the  defendants 
ii)ere  entitled  to  compensation 
for  their  improvements^  such 
compensation  to  be  subject  to 
set  off  for  rent  due,  or  other 
legal  liabilitiss. 


lliis  was  an  action  for  a  declaration 
of  rights  brought  by  Friedrich  Eich, 
in  his  capacity  as  the  trustee  of  the 
Rhenish  Mission  Society,  against  John 
Barron,  Jury  Muller,  aliaa  Jury  Moller, 
Andreas  Goedeman,  and  Philip  Engel- 
brecht. 

The  declaration  in  respect  of  the  first 
four  clauses  was  the  same  <in  the  case  of 
all  four  defendants,  and  was  as  follows : 

1.  The  plaintiff  is  the  Reverend  Fried- 
rich  Eicn,  of  Worcester,  in  his  capacity 
as  the  Trustee  of  the  Rhenish  Mission 
Society  (an  incorporated  body  establish- 
ed at  Barmen  in  Germany  for  the  ad- 
vancement of  religious  woi'k  in  foreign 
parts),  and  as  such  the  duly  authorised 
representative  in  this  colony  of  the  said 
society,  vested  in  law  with  its  property 
in  the  Colony,  and  the  proper  person  to 
sue  in  this  action. 

2.  The  defendant  resides  on  the  said 
society's  property  known  as  Saron  in  the 
district  of  Tulbagh. 

3.  The  said  society  arc  the  registered 
owners  in  full  and  free  projyerty  of  cer- 
tain, landed  estate  in  the  last  preceding 
paragraph  hereof  referred  to.  The  said 
property  wae  purchased  by  the  .society 
at  various  times,  and  the  .society  suIjsc- 
qucntly  established  a  mission  station 
thereon  under  the  local  management  of  a 
"  Lecr&ar  "  or  minister,  with  a  view  to 
the  religious  and  secular  welfare  of  na- 
tives and  other  persons  wIk)  should  be 
allowed  by  the  society  to  reside  upon  the 
said  property. 

4.  With  the  above  objects,  the  society 
framed  «  set  of  rules  called  the  *'  Saron- 
sche  Gemeentewetten  "  or  Saron  Church 
Laws,  and  no  native  or  other  person  has 


944 


it 


CAPE  TIMES"  LAW  ftiEPOktd. 


beea  allowed  to  come  and  live  upon  the 
•aid  property  without  binding  himself 
cither  verbally  or  in  writing  to  pay  a 
certain  monthly  rental  for  the  ground 
occupied  by  him,  and  to  observe  strictly 
all  the  said  rules  (Gemeentewetten) 
for  the  time  being  in  force  as  made  by 
the  society  for  the  good  of  the  residents. 
The  declaration  in  respect  of  the  de- 
fendant  Barron   proceeded : 

5.  Amongst  the  persons  so  allowed  t<i 
reside  upon  the  said  property  was  de- 
fendant, who,  on  or  about  April  16.  1900, 
was  granted  the  occupation  as  a  tenant 
at  a  rental  of  Is.  6d.  a  mouth  of  a  cer- 
tain half -erf  thereon  in  terms  of  a 
written  agreement,  whereby  he  bound 
himself,  an  a  condition  of  his  said  oc- 
cupation faithfully  to  obsM^rve  the  said 
'*  Ocmeeiitcwctten  "  on  pain  of  for- 
foitinf?  his  privilege  of  residing  ab  Saron 
aforesaid,  and  the  defendant  has  con- 
tinued binco  then  tu  occupy  the  said 
half-crf  upon  the  said  terms,  and  has 
paid  the  said  rent  up  to  the  end  of  the 
year  1904. 

6.  By  rule  5  of  the  said  '*  Geniccnto- 
wetten "  the  occupation  of  said  half- 
crf  by  the  defendant  could  bo  determined 
bj  a  month's  previous  notice  on  cither 
bide. 

7.  By  rule  6  tlwreof  it  was  provided 
that  "  buildings  which  a  lessee  has 
erected  on  an  erf  may,  when  he  receives 
notice  to  quit,  be  pulled  down  by  him 
or  he  may  sell  them,  at  t4ie  valuation 
of  the  directors  to  the  Rhenish  Society." 
It  was  further  provided,  by  an  additional 
rule  agreed  to  and  signed  by  the  de- 
fendant, that  the  highest  sum  which 
bhould  be  paid  for  a  house  in  case  u 
resident  of  Baron  transgressed  the  rules 
and  li^l  to  quit,  the  place  should  not 
exceed  £25. 

8.  By  rule  15  it  is  provided  that  no 
jH«cson  may  {establish  a  butchery  without 
the  |)ermij»sion  of  the  said  "Leeraar" 
(minister). 

9.  Bv  rule  21  it  is  provided  that  any- 
one who  will  nob  obey  the  rules  of  the 
institution  must  leave  the  place. 

10.  In  or  about  November,  1904.  the 
defendant,  in  direct  opposition  to  and  in 
defiance  of  the  said  rules,  wrongfully  and 
without  the  permission  of  the  minister, 
o|x?fied  a  butchery,  upon  t^hc  half-erf  oc- 
cupied by  him  as  aforesaid,  and,  in  spite 
of  repeated  warnings  and  protests  ad- 
dressed to  him  by  the  minister.  has 
refused  to  close  the  said  butchery  and 
continues  to  contravene  the  said  rules 
in  the  above  respect. 

11.  On  or  about  April  26.  1905,  the 
plaintiff,  as  he  lawfully  might,  duly  gave 
the  defendant  notice  to  quit  the  said 
estat-c  within  a  month's  time  at  the 
same  time  tendering  to  compensate  him 
for  his  house  in  terms  of  the  said  agree- 
ment, but  the  defendant  wrongfully  and 
unlawfully  refused,  and  still  refuses,  to 
regard  the  said  notice  or  to  quit  the 
said  estate,  and  claims  that  the  said  half- 
crf  is  his  own  property. 


12.  The  said  house  of  the  deCendant  is 
valued  by  the  plaintiff  at  £20,  and  the 
plaintiff  is  willing,  and  tenders  upon  tlie 
defendant  quitting  the  said  estate,  tc 
allow  him  to  break  down  and  remoTe 
from  the  said  estate  the  said  building, 
and  any  other  buildings  or  improvements 
hj  may  have  acquired  or  buili  or  made 
there-oil.  or  in  the  alternative  to  pay 
him  the  said  sum  of  £20,  or  the  value 
of  the  said  house,  and  of  any  ether 
structures  or  improvements  as  afore- 
said as  may  be  assessed  in  terms  of  the 
said  agreement  or  as  may  be  fixed  by 
an  independent  party  or  parties,  or  as 
may  bo  decreed  by  this  Honourabk) 
Court. 

The  plaintiff  tendering  as  aforesaid, 
claims:  (a)  A  declaratiou  of  riehta  bs^ 
between  himself  -and  the  defendant  in 
r€)spect  of  the  defendant's  said  occu{>a- 
tion  in  the  premises;  (b)  a  declaration 
that  the  said  half-erf  is  the  pro^rly 
of  the  said  society,  and  that  t-he  plamtiff 
is  entitled  to  eject  the  defendant  there 
from  and  from  tJie  said  estate  of  Saron 
either  upon  the  defendant's  refusal  to 
be  bound  by  or  to  obey  any  of  the  said 
rules  or  upon  duo  notice  given  to  him 
thereunder,  upon  payment  of  compensa- 
tion as  above  tendered ;  (c)  an  order 
ejecting  the  defendant  with  his  family 
and  belongings  from  the  said  half-erf 
and  from  the  said  estate  of  Sarou ;  (d) 
alternative  relief;  (o)  costs  of  suit. 

The  declaration  in  respect  of  the  de- 
fendant, Jury  MuUer,  proceeded : 

5.  Amongst  the  persons  so  allowed  to 
reside  upon  the  said  property  was  tho 
defendant,  who,  ot\  or  about  September 
5,  1896,  was  granted  tho  occupation  as  a 
tenant  of  a  certain  erf  at  a  rental  of 
3s.  per  month  in  terms  of  a  written 
agreement,  whereby  he  was  given  the 
said  occupation  for  such  time  as  he 
observed  the  said  rules  and  paid  his 
rent  at  the  stipulated  time,  ana  the  de- 
fendant has  continued  since  then  to  oc- 
cupy the  said  erf  upon  the  said  terms 
(save  that  since  1901  the  said  rent  has 
been  reduced  to  2s.  3d.  a  month),  and 
has  paid  the  rent  thereunder  up  to  the 
end  of  the  year  1903. 

6.  By  rule  21  of  the  said  '*  Gemeente- 
wetten  "  anyone  who  will  not  obey  tlio 
laws  of  the  institution  is  obliged  to 
leave  the  place. 

7.  B3^  rule  19  every  lessee  must  Iiavc 
paid  his  rent  by  the  end  of  the  year. 
The  defendant  has  contravened  the  said 
rule  by  failing  to  pay  any  rent  since  the 
end  of  the  year  190S.  Thero  is  still 
due  and  unpaid  by  him  to  the  plaintiff 
the  rent  in  respect  of  the  said  erf  for 
the  year  1904,  to  wit,  tho  sum  of  £1 
7s. 

8.  The  plaintiff  has  demanded  payment 
of  the  said  sum  from  the  defendant,  who 
however  refuses  to  i>ay  the  same,  and 
claims  that  he  and  his  heirs  are  entitled 
to  the  use  and  occupation  of,  the  said 
erf  in  perpetuity  without  payment  of  any 
rent  to  the  plaintiff. 


"CAPiB  ttkiis"  Law  itst»oktd. 


)»45 


9.  By  rule  6  of  the  said  "  Gemeonte- 
wetten "  it  is  provided  that  buildings 
which  a  lessee  hae  erected  ou  an  erf  may, 
in  cafie  he  receives  notice  to  discontinue 
the  lease,  bo  pulled  down  by  him,  or  he 
may  aell  them  according  to  the  estimate 
of  the  directors  to  the  Rhenish  Society. 

The  plaintiff  claims :  (a)  A  declara- 
tion of  rights  as  between  himself  and 
the  defendant,  in  respect  of  the  defend- 
ant's said  occupation  in  the  premises; 
(b)  a  declaration  that  the  said  erf  is 
the  proper^  of  the  said  society,  and  that 
the  plaintiff  is  entitled  to  eject  the  de- 
fendant therefrom,  and  from  the  said 
estate  of  Soron  upon  the  defendant's 
refusal  to  be  bound  by  or  to  obey  any 
of  the  said  rules,  and  that  the  defend- 
ant's occupation  of  the  said  erf  is  limit- 
ed by  the  terms  of  his  said  agreement 
and  his  observance  of  the  said  rules, 
including  the  rule  as  to  payment  of 
rent;  (c)  payment  of  the  sum  of  £1 
1b.  as  rent  aforesaid ;  (d)  an  order  eject- 
ing the  defendant,  with  his  family  and 
belongings,  from  the  said  erf  and  from 
the  said  estate  of  Saron,  by  reason  of 
the  defendant's  contravention  of  the  said 
rule  respecting  the  payment  of  rent,  the 
plaintiff  tendering  to  allow  the  defend- 
ant to  break  down  and  remove  from  the 
said  estate  any  buildings  or  other  im- 
provemento  he  may  have  acquired,  built, 
or  made  theron,  or  in  the  alternative  to 
pay  him  the  value  of  such  buildings  and 
improvements  as  may  be  assessed  under 
the  said  rules  or  as  may  be  fixed  by 
an  independent  party  or  parties,  or  as 
may  be  decreed  by  this  Honourable 
Court;  (c)  alternative  relief;  (f)  costs  of 
suit. 

The  declaration  in  respect  of  the  de- 
fendant Goedeman  proceeded : 

5.  Amongst  the  persons  so  allowed  to 
reside  upon  the  property  was  the  defen- 
dant, who,  in  or  about  1881,  was  grant- 
ed the  occupation  as  a  tenant  of  a  cer- 
tain erf  thereon  at  a  monthly  rental  of 
38.,  upon  condition  that  he  obeyed  the 
said  rules,  and  the  defendant  has  con- 
tinued since  then  to  occupy  the  said  erf 
upon  the  said  terms  and  has  paid  the 
rent  thereunder  up  to  the  end  of  the 
year  1903. 

6.  By  Rule  21  of  the  said  *'  Gemeen- 
tewctten "  anyone  who  will  not  obey 
the  laws  of  the  institution  is  obliged 
to  leave  the  place. 

7.  By  Rule  11  thereof  it  was  provided 
that  every  inhabitant  of  the  institution 
must  attend  the  religious  services  on 
Sunday  as  well  as  in  the  week  regularly. 
The  defendant  has  contravened  the  said 
rule  in  that  during  the  last  twelve 
months  he  has  wholly  failed  to  attend 
the  said  services. 

8.  By  Rule  19  every  lessee  must  have 
paid  his  rent  by  the  end  of  the  year. 
The  defendant  has  contravened  the  said 
rule' in  that  he  has  neglected  to  pay  his 
rent,  namely,  the  said  sum  of  £1  168. 
due  at  the  end  of  1904,  and  the  said  sum 
is  still  due  and  unpaid.  The  defendant. 


moreover,  claims  that  ho  is  not  bound 
to  pay  any  rent  whatsoever  in  respect 
of  his  occupation  of  the  said  erf,  and 
has  incited  certain  of  the  other  tenants 
of  the  said  society  to  refrain  from  pay- 
ing   their    rent. 

9.  By  Rule  3  the  lessee  of  an  erf 
may,  with  the  permission  of  the  '*Leer- 
aar"  (minister),  have  the  use  of  certain 
sowing  land  for  which  a  small  rental  is 
to  be  paid.  The  defendant  has  contra- 
vened the  said  rule  by  entering  upon 
and  cultivating  in  the  years  1903,  1904, 
and  1905.  certain  sowing  land  on  the 
said  estate  without  the  permission  of  the 
said  minister,  and  he  has  continued  to 
cultivate  the  said  land  without  such  per- 
mission, and  in  spite  of  repeated  warn- 
ings, and  remonstrances  addressed  to  him 
by  or  on  behalf  of  the  minister,  and 
has  refused,  and  still  refuses,  to  pay 
any  rental  therefor. 

10.  Bv  Rule  5  of  the  said  "  Gomeente- 
wetten  '  the  occupation  of  the  said  erf 
by  the  defendant  could  be  determined 
by  a  month's  notice  on  either  side. 

11.  By  Rule  6  it  was  provided  that 
buildings  which  a  lessee  has  erected 
on  an  erf  may,  in  case  he  receives  not- 
ice to  discontinue  the  lease,  be  pulled 
<lown  by  him.  or  he  may  sell  them,  ac- 
cording to  the  estimate  of  the  direc- 
tors to  the  Rhenish  Society. 

12.  On  or  about  the  26th  of  May,  1905, 
the  plaintiff,  as  he  lawfully  might,  gave 
the  defendant  notice  to  quit  the  said 
erf  and  the  said  estate  generally  bv  the 
1st  of  July,  1906,  the  plaintiff  at  the 
same  time  tendering  to  pay  the  value 
of  a  house  erected  on  the  said  erf  as 
ascertained  in  terms  of  the  said  rules 
or  by  arbitration  or  to  allow  the  de- 
fendant to  break  down  and  remove  the 
material  thereof,  but  the  defendant 
wrongfully  and  unlawfullv  refused,  and 
still  refuses,  to  regard  the  said  notice 
or  to  quit  the  said  erf  and  estate. 

13.  In  addition  to  the  said  house,  which 
is  valued  by  the  plaintiff  at  about  £35, 
the  defendant  has  also  an  interest  by 
viitue  of  his  marriage  in  community 
to  his  wife,  Elizabeth  Goedeman,  in  half 
of  another  erf  occupied  in  the  name  of 
one  Eva  Balie,  and  the  plaintiff  is  will- 
ing and  tenders,  upon  the  defendant 
quitting  the  said  estate,  to  allow  him 
to  break  down  and  remove  therefrom 
the  said  house  and  any  other  structures 
or  improvements  he  may  have  acquired 
or  built  or  made  thereon,  or  in  the  al- 
ternative to  pay  him  the  said  sum  of 
£35  and  £1  the  value  of  his  interest  in 
the  other  said  erf  or  the  value  of  the 
said  house  and  of  any  other  structures  or 
improvements  as  aforesaid  and  of  his  in- 
terest in  the  other  erf  as  may  be  as- 
sessed in  terms  of  the  said  rules,  or 
as  may  be  fixed  by  an  independent  part^ 
or  parties,  or  as  may  be  decreed  by  this 
honourable  Court. 

The  plaintiff,  tendering  as  aforesaid, 
claims:   (a)  A  declaration  of  rights  as 


946 


(I 


CAPE  tiMEft"  LAW  RBPOfetS. 


bctwoen  himself  and  tho  defendant  in 
respect  of  the  defendant's  said  occupa- 
tion in  the  premises;  (b)  a  declaration 
that  the  said  erf  is  the  property  of  the 
eaid  society,  and  that  tho  plaintiff  is 
entitled  to  eject  tho  defendant  there- 
from and  from  tho  said  estate  of  Saron, 
cither  upon  the  defendant's  refusal  to 
be  bound  by  or  to  obey  any  of  tho 
said  rules,  or  upon  duo  notice  given  to 
him  thereunder,  ui)on  payment  of  com- 
pensation as  above  tendered;  (c)  Pay- 
ment of  the  sum  of  £1  16s.,  as  rent  afore- 
said;  (d)  tho  sum  of  £10  as  damages 
sustained  by  reason  of  the  defendant's 
wrongful  cultivation  of  the  said  sowing 
land,  his  wrongful  inciting  of  other  ten- 
ants as  aforesaid,  and  his  contraven- 
tion of  the  said  rules  in  other  respects; 
(e)  an  order  ejecting  the  defendant,  with 
his  family  and  belongings,  from  the  erf 
occupied  by  him  and  from  the  said  es- 
tate of  Saron ;  (f)  alternative  relief ;  (g) 
costs  of  suit. 

Til©  declaration  in  respect  of  the  do* 
fendaut   Engelbrecht   proceeded : 

5.  Among  the  persons  so  allowed  to 
reside  upon  the  said  property  was  the 
defendant,  who,  in  or  about  the  month 
of  May,  1887,  was  granted  the  occupa- 
tion as  a  tenant  of  a  certain  erf  there- 
on (being  No.  241).  at  a  rental  of  3s.  a 
mouth.  <m  condition  that  ho  observed 
and  wa<»  bound  by  the  aaid  rules,  and 
the  defendant  has  continued  since  then 
to  occupy  the  said  erf  upon  the  saad 
terms,  and  has  paid  the  rent  there- 
under up  to  the  end  of  the  year  1903. 

6.  By  Rulo  21  of  the  said  "  Gcmccn- 
tewetten,"  anyone  who  will  not  obey 
the  laws  of  the  institution  is  obliged  to 
leave  the  place. 

7.  By  Rule  19  thereof,  every  le.sst^e 
must  have  paid  his  rent  by  the  end 
of  the  year.  The  dofendant  has  con- 
travened the  said  rule  by  failiug  to 
pay  any  rent  since  the  end  of  the  year 
1903.  There  is  etill  due  and  unpaid  by 
him  to  the  plaintff  the  rent  in  respect 
of  the  said  erf  for  the  twelve  months 
to  the  end  of  the  year  1904,  to  wit,  the 
sum  of  £1  16s. 

8.  Tlie  plait]jtiff  has  demanded  pay- 
ment of  tne  said  sum  from  the  de- 
fendant, who,  however,  refuses  to  i>ay 
the  same,  and  claims  that  he  and  his 
heirs  are  entitled  to  the  use  and  occu- 
pation of  the  said  erf  in  perpetuity 
without  payment  of  any  rent  to  the 
plaintiff. 

9.  By  Rule  6  of  the*  said  "  Gcnieen- 
tewetten,"  it  is  provided  that  buildings 
which  a  lessee  nas  erected  on  an  erf 
may,  in  case  he  received  notice  to  dis- 
continue the  lease,  be  pulled  down  by 
him  or  he  may  sell  them,  according  to 
the  estimate  of  the  directors,  to  the 
Rhenish  Society. 

The  plaintiff  claims :  (a)  A  declara- 
tion of  rights  as  between  himself  and 
the  defendant,  in  respect  of  the  defen- 
dant's aaid  occupation  in  the  pre- 
mises:   (b)   a  declaration  that   the  said 


erf  is  the  property  of  the  said  society, 
and  that  the  ^aintiff  is  entitled  to  ejeci 
the  defendant  therefrom,  aanJl  from  the 
said  estate  of  Saron,  upon  the  defen- 
dant's refusal  to  be  bound  by  or  to 
obey  any  of  the  said  rules,  and  that 
tho  defondtant's  occupation  of  the  said 
erf  is  dependent  and  conditional  ui»oii 
his  ol>servaiK*e  of  the  (»aid  rules.  in- 
cluding the  rule  as  to  payment  of  rent ; 
(c)  payment  of  the  ama  of  £1  16s.  as 
rent  aforesaid ;  (d)  an  order  ejecting 
the  defendant  with  hi.s  family  and  be- 
longings from  the  said  erf  and  from 
the  said  estate  of  Saron,  h^  reaaon 
of  the  defendant's  contravention  of  the 
said  rule  respecting  the  payment  of 
rent,  tho  plaintiff  tendering  to  allow 
the  defendant  to  break  down  And  re- 
move from  the  said  estate  any  build- 
ings or  other  improvements  he  may 
have  acquired,  built,  or  made  there- 
on, or  in  the  alternative  to  pay  him 
tho  value  of  such  buikiings  and  im- 
provements as  may  be  aissessed  und'^r 
the  said  rules,  or  as  may  be  fixed  by 
an  independent  party  or  parties,  or  as 
may  be  decreed  by  this  Honourable 
Court;  (e)  alternative  relief;  (f)  costs  of 
suit. 

Tlie  plea  of  the  defendant  Barron  waa 
as  follows : 

1.  Defendant  admits  paragraphs  1  and 
2  of  plaintiff's  declaration. 

2.  l>efendan.t  admits  paragraph  3 
thereof,  but  says  that,  according  to  the 
laws  to  which  the  contract  between  tho 
parties  is  subject,  and  which  are  here- 
inafter referred  to,  the  "Leeraar"  is 
bound  to  act  according  to  the  advice  of 
a  Raad  or  Council  to  be  chosen  (a'.- 
cording  to  the  said  law**)  by  tlie  in- 
habitants every  year.  Defendant  says, 
further,  that  the  last  election  of  mem- 
bers of  the  said  Raad  took  place  about 
three  years  ago. 

3.  Defendant  admits  paragraph  4,  but 
says  that  the  laws  therein  referred  to 
were  framed  by  one  Rev.  Mr.  Kulp- 
man  for  and  on  behalf  of  the  Rhenish 
Mission  Society,  at  the  time  when 
Saron  was  originally  laid  out  as  a 
town,  and  were  contained  in  a  certain 
book,  which  was  kept  in  the  possession 
of  the  duly  authonsed  representative 
of  the  Rhenish  Mission  Society  for  tho 
time  being  art*  Saron.  Tho  rules  set 
out  in  paragraphs  6,  7,  8,  and  9  of 
plaintiff's  declaration  did  not  form  part 
of  the  said  laws. 

4.  With  regard  to  paragraph  5,  de- 
fendant says  that  he  was  oom  at 
Saron,  and  tnat  he  has  lived  there  from 
the  time  of  his  birth,  and  that  ho  is 
living  there  at  tho  present  time.  De- 
fendant denies  that  he  bound  himself 
by  any  written  agreement,  or  that  he 
authorised  any  person  to  ao  bind  him. 
Defendfuit  admits  that  he  became  a 
tenant  at  tlie  said  rental,  and  says,  fur- 
ther, that  the  rent  of  the  said  nalf-erf 
for  the  year  1905  is  not  yet  due  and 
payable.        Defendant   admits,    further, 


"cAt>te  ti^fes"  Law  tijfct»0RtB. 


94Y 


that  liis  teuaucy  was  subjeot  to  certain 
laws,  but  eays  thait  these  laws  were 
those  referred  to  in  paragraph  3  here- 
of, aikl  not  thoee  referred  to  in  plain- 
tiff's declaration. 

5.  With  regard  to  p^aragraphs  6,  7,  8, 
and  9,  defendant  denies  that  the  Rules 
5,  6,  15.  and  21  theredn  set  forth  formed 
part  ot  the  laws  framed  by  Rev.  Mr. 
Kulpmau,  and  denies  that  he  is  bound 
by  the  said  rules. 

6.  Defendant  denies  paragraph  10. 
lie  admits  having  opened  a  butchery 
at  Saron  in  or  about  the  month  of  Nov- 
ember, 1904,  but  denies  thAt  he  did  so 
in  direct  opposition  to  wnd  in  defiance 
of  the  rules  banding  upon  him.  He 
ea;rs  that  the  said  butchery  waa  opened 
with  the  fuU  knowledge  of  the  mdnis- 
ter,  who  consented  to  the  opening,  and 
allowed  defendant  to  complete  all  his 
preparaitions  for  such  openmg,  but,  he 
says  further,  that  on  the  day  bcnore 
the  opening  the  minister  objected,  all 
the  preparations  having  in  the  mean- 
time been  completed.  Defendant  de- 
nies having  been  repeatedly  warned  by 
the  minister  to  close  the  butchery,  and 
denies  that  he  has  in  atny  way  con- 
travened any  of  the  rules  binding  upon 
him.  Defendant  says  that,  under  the 
rules  referred  to  in  paragiraph  3  here- 
of, the  permission  ot  the  "  Leeraar " 
was  not  necessary  to  enable  him  to 
establish  a  buftchery,  the  said  rules 
merely  requiring  notice  to  be  given 
that  the  butchery  was  to  be  opened, 
which  notice  was  duly  given  by  de- 
fendant to  the  duly-authorised  repre- 
sentative of  the  Rhenish  Mission 
Society.  Defendant  says  further  that, 
save  as  liereinbefore  6et  forth,  the  first 
notice  received  by  him  in  connection 
with  his  having  opened  the  butcherv  | 
was  given  on  or  about  the  26th  of  April, 
1905,  which  notice  was  verbally  re- 
pudiated  by   defendant. 

7.  With  regard  to  paragraph  11,  de- 
fendant admdts  having  received  the  said 
notice,  and  admits  that  he  refuses  to 
re^ara  the  said  notice  or  to  quit  the 
said  estate.  Defendant  denies  that  his 
conduct  in  so  doinff  is  wrongful  and 
unlawful,  and  defendant  denies  that  he 
at  any  time  claimed,  or  that  he  now 
claims,    the   said    half-erf   as    his    own 

troperty.  Defendant  maintains  that 
e  nas  faithfully  carried  out  his  part 
of  the  said  contract,  and  that  he  is 
lawfully  entitled  to  remain  in  imdis- 
turbed  occupation  of  the  said  half-erf, 
in  terms  of  the  contract  subsisting  be- 
tween .the  parties. 

8.  With  regard  to  paragraph  12,  de- 
fendant denies  that  £20  is  a  fair  and 
reasonable  valuation  of  his  house  and 
hie  other  structures  and  limiiroTements. 
Defendant  farther  noaintains  that  if 
this  Honourable  Court  should  decide 
that  plaintiff  is  entitled  to  eject  de- 
fendant (which  defendant  does  not  ad- 
mit), defendant  is  lawfully  entitled  also 
to  oompensation  for  the  loss  of  ^  the 
grazing,      planting,      and  other  rights 


secured  to  him  by  the  said  laws  re- 
ferred to  in  paragraph  3  hereof. 

9.  Save  as  above,  defendant  denies  all 
and  sing^ular  the  allegations  in  plaintiff'ci 
declaration  contained. 

As  a  claim  in  reconvention,  the  de- 
fendant alleges  that,  by  virtue  of  tlio 
contract  subsisting  between  the  parties, 
defendant  is  entitled  to  rcmaiin  in  un- 
distrubed  occupation  of  the  said  half- 
erf,  so  long  as  ho  faithfully  carries  out 
the  provisions  of  the  said  contract,  and 
is  entitled  under  the  said  laws  to  trans- 
fer his  right  to  his  children,  or,  failing 
children,  to  any  of  defendant's  rela- 
tions by  affinity  or  consanguinity. 
Wherefore  defendant  claims :  (a)  A  de- 
claration of  rights  as  between  himself 
and  plaintiff  in  respect  of  the  said  con- 
tract; (b)  a  declaration  that  plaintiff  is 
not  entitled  to  eject  defendant  from 
the  said  half-erf,  eo  long  as  defendant 
carries  out  the  provisions  of  the  con- 
tract; (c)  alternative  relief;  and  (d) 
costs  of  suit. 

The  defendant  Muller,  in  his  plea, 
stated  that  he  had  never  received  occu- 
pation of  the  full  extent  of  land  leased, 
and  claimed  an  abatement  of  the  rent  to 
the  extent  of  £3  2s.,  in  respect  of  such 
want  of  occupation.  He  said  that  he 
had  tendered  the  rent  for  1904,  which 
plaintiff  had  refused  to  accept  until  he 
signed  certain  new  conditions  which  he 
refused  to  do.  He  crtated  that  he  was 
prepared  to  leave  Saron,  although  not 
legally  bound  to  do  so,  upon  payment 
of  £200,  in  respect  of  building  and  im- 
provements, and  of  grazing  rights.  In 
reconvention,  he  claimed  the  sum  of  £3 
28.  in  respect  of  the  want  of  occupation 
of  certain  land  included  in  the  contract 
between  the  parties. 

The  defendant,  Groedeman,  in  his  pica, 
stated  that  he  had  tendered  the  rent  for 
1904,  which  tlie  plaintiff  refused  to  ac- 
cept unrtil  he  signed  certain  new  condi- 
tions. He  stated  that  he  had  been  pre* 
vented  from  attending  the  society's 
church  by  the  dul^r  authorised  represen- 
tatives of  the  society,  and  had  conse- 
quently been  compelled  to  attend  Di- 
vine service  elsewhere.  With  regard  to 
the  sowing  lands,  he  denied  that  such 
permission  was  necessary.  He  admitted 
that  he  had  had  the  use  of  certain  sow- 
ing land,  and  that  under  the  said  laws 
one-half  of  the  quantity  sowed  had  to  be 
paid  to  the  society's  duly  authorised  re- 
presentative, and  said  further  that  he 
had  tendered  the  said  one-half  to  Mr. 
Hartwig,  the  duly  authorised  represen- 
tative of  the  society,  but  the  said  Mr. 
Hartwig  refused  to  accept  the  same. 
With  regard  to  paragraph  12,  defendant 
admitted  that  ho  received  the  said  no- 
tice, and  that  he  refused  to  regard  the 
said  notice  or  to  quit  the  said  estate. 
He  denied  that  his  conduct  in  so  doing 
was  wrongful  or  unlawful.  With  rep^ard 
to  paragraph  13,  defendant  admitted 
that  he  nad  the  said  interest  in  half  of 
another  erf,  but  denied  that  £35  and  £1 


94S 


"CAtE  tlMte"  LAW  RfePOhT*. 


was  fair  and  reasonable  valuations  of 
his  said  house  and  his  other  structures 
and  of  improveuicnts  and  of  his  said 
interest  in  half  of  another  erf  respetrtive- 
ly.  Ho  claimed  in  reconvention  a  de- 
claration of  rights  as  between  himself 
and  plaintiff  in  respect  of  the  said , con- 
tract, and  a  declaration  that  plaintiff  is 
not  entitled  to  eject  defendant  from 
the  «aid  erfs  so  long  as  defendant  car- 
ries out  the  provisions  of  the  said  con- 
tract. „  ,  .  ,  . 
The  defendant  Engelbrecht,  in  his 
plea,  stated  that  he  had  tendered  the 
rent  for  1904,  which  plaintiff  refused  to 
accept  until  he  had  signed  certain  new 
coiidilions.  He  maintained  that,  if 
plaintiff  was  entitled  to  eject  defendant 
(which  he  did  not  admit),  defendant  was 
lawfully  entitled  to  compensation  for 
buildings,  structures,  and  improvements, 
and  also  to  compensation  for  the  loss  of 
grazing,  planting,  and  other  rights.  In 
reconvention  he  claimed  a  declaration  of 
rights  as  between  himself  and  plaintiff, 
and  a  diMjlaration  that  plaintiff  is  not 
entitled  to  eject  defendant  so  long  as 
ho    carried    out    the    provisions    of    his 

contract.  .  .       ,,       t     f-    n 

Mr.  Burton  (with  him  Mr.  J.  h.  H. 
do  Villiers)  for  plaintiff.  Dr.  (Jrwr 
(with    him    Mr.    Alexander)   f(>r    defend- 

Friedrich  Eich,  residing  at  Worce.ster, 
stated  that  he  was  the  trustee  and  re- 
presentative of  the  Rhenish  Miv»ion 
Society,  and  put  in  plans  of  the  sodety's* 
property  at  Saron  in  the  division  of 
Tulbagh.  Witness  proceeded  to  give 
evidence  in  support  of  the  declaration 
In  resoect  of  the  camo  of  John   Barron. 

Cnwrt-examincd  by  Dr.  Greer:  TIh' 
station  at  Saron  was  purely  a  missionary 
(society.  In  former  time.5  ho  believed 
liiero  had  been  trading  enterprise  con- 
ducted. ,    .       T    .     , , 

Johan  Godlieb  Christian  Leipoldt.  re- 
siding at  Worcester,  stated  that  ho  was 
the  "Leeraar"  of  Saron  in  1874,  and 
there  were  then  certain  rules  which  were 
well  understood  by  the  congregation. 
There  was  no  difference  between  the 
rules,  produced  in  Court,  and  those  in 
force  in  1874.  The  rules  were  well  un- 
derstood by  the  people,  and  were  read 
out  in  church  from  time  io  time. 

Elias  Schrenk  ^ave  evidence  as  to  the 
rules  being  in  exastence,  and  as  to  these 
being  read  out  to  the  people.  In  1877 
a  conference  was  held,  and  the  rules 
were  then  printed.  The  rules,  as  print- 
ed, were  exactly  the  same  as  those  exist- 
ing in  former  times.  He  had  never 
heard  of  any  other  rules  at  Saron,  and 
had  heard  of  no  objections  to  the  rules 
since  1875.  He  knew  of  two  cases  of 
men  who  had  been  expelled  for  disobey- 
ing the  rules. 

Cross-examined  by  Mr.  Alexander: 
The  two  expulsions  which  had 
t*ken  place  there  during  his 
recollection  were  on  account  of 
drunkenness.    The  offenders  would   not 


submit  to  punishment,  and  were,  there- 
fore, sent  away.  During  the  whole  time 
he  was  there  there  was  a  Raad  m  ex- 
istence, which  was  elected  by  the  people. 
People  charged  with  breaches  of  the 
regulations  were  brought  before  the 
minister  and  the  Raad.  sitting  together. 
Re-examined  by  Mr.  Burton:  The 
memlx^rs  of  the  'R«ad  were  clwwen  by 
the  iwople  subject  to  the  approval  of  the 
minister. 

Mrs.  Elizabeth  Kling,  wife  of  the  Rev. 
Mr.  Kling,  said  that  between  1889  and 
1894,  she  Hved  at  Saron  with  her  hus- 
band. She  recollected  John  Barron 
coming  to  siprn  a  contract  in  connection 
with  a  certam  erf.  She  witnesijed  his 
signature  to  a  document  (produced).  She 
remembered  Leander  commg  to  sec  Mr. 
Kling,   and  threatening  him. 

The  Rev.  Jacob  Weeber,  of  Steflen- 
bosch,  said  he  wa.s  a  missionary  of  tlic 
Rhenish  Society,  and  had  been  in  the 
Colony  for  23  years.  He  first  went  to 
Saron  shortly  after  his  arrival  in  the 
Colony,  and  "had  ever  since  had  an  inti- 
mate accjuaintanco  with  the  place.  He 
romemljcred  seeing  printed  copies  of  the 
Gemeenewctten  in  the  early  da^s.  Ho 
had  never  seen  any  other  written  or 
printed  set  of  Congregational  laws.  He 
had  never  heard  any  objection  to  the 
printed  rules.  There  were  two  raads 
at  the  mission— the  Kork  Raad  and  the 
Gcmecnte  Raad.  The  former  wen* 
elected  by  themselves— they  addetl  to 
their  number.  The  latter  were  nominat- 
ed bv  the  minister.  In  1893  a  mc^tiujf 
was  lield  in  order  to  revise  the  regula- 
tions so  as  to  make  them  uniform.  There 
were  about  thirty  people  preMMit,  and 
draft  i-egulations,  drawn  up  by  witness, 
were  submitted  to  the  meeting.  These 
did  not  contain  any  material  alterations 
of  the  existing  regulationtj ;  they  only 
made  the  old  laws  clearer.  Two  of  t lie 
people  who  signed  these  regulations 
afterwards  came  to  Worcester  and  ob- 
jected to  a  clause  dealing  with  com- 
pensation. Tliis  clause  was  then  altered 
and  the  visitors  went  away  professing 
to  be  satisfied.  Some  200  of  the  in- 
habitants had  agreed  to  accept  the  new 
regulations,  and  the  new  regulations 
were  applied  to  these.  In  the  ca.ses  of 
the  other  the  old  regulations  were  ap- 
plied. .      . 

Mr.  Burton :  W'hat  do  you  say  is  the 
cause  of  the  disturbance  there? 

Witness:  Well,  my  personal  impres- 
sion is  that  it  is  the  so-called  Ethiopian 
movement.  These  people  had  no  rigirt 
to  come  there,  but  they  have  started  a 
church  in  opposition     to  ours. 

[Maasdorp,  J.:  On  your  ground?] 

Witness :    Yes. 

[Maasdorp,  J. :  And  -without  your  per- 
sionT] 

Yea. 

[Maasdorp.  J. :  They  are  erf-holders?] 

Some  of  them  are,  but  others  have  no 
right  there. 


"C!At>E  TIMES*'  LAW  REPORT&. 


949 


[Maasdorp,  J. :  But  could  not  you 
give  them  a  month's  notice?] 

That  ie  what  we  hold.    That  is  what 
we  haye  come  to  Court  for. 
^  Other  witnesses   gave   evidence   of   a 
similar  character. 

The  Rev.  Mr.  Harborg,  in  cross-exami- 
nation by  Mr.  Alexander,  stated  that  there 
was  an  impression  among  some  of  the 
people  that  rent  was  not  to  bo  paid 
after  a  number  of  years. 

A  member  of  the  congregation  identi- 
fied a  copy  of  the  printed  rules  that  had 
been  read  out  from  time  to  time.  Evi- 
dence was  given  as  to  the  value  of  the 
property,  and  Mr.  Burton  closed  his 
case  for  the  plaintiffs.  , 

Mr.  Alexander  called  Titus  Valentine, 
and  asked  leave  to  have  him  accommo- 
dated with  a  chair  on  account  of  Wm 
age. 

[Maasdorp,  J.:  What  is  his  ago?] 

Mr.  Alexander:  Ninety-sovon,  my 
lord. 

[Maasdorp,  -J. :  Arc  you  going  back  as 
far  as  that?] 

Mr.  Alexander :  Yes,  my  lord. 

The  witness  stated  lie  had  worked  on 
the  farm  before  it  was  purchased  by 
the  Mission  Society.  He  remembered 
Mr.  Kulpman  sending  round  the  circular. 
Witness  went  to  see  him,  and  Mr.  Kulp- 
man said  he  let  witness  have  the  orvcn 
at  £1  16s.  per  year.  Mr.  Kulpman  said 
the  lease  would  be  for  witness's  life- 
time, and  when  ho  died  it  was  to  ^o 
to  his  children  and  his  children's  chil- 
dren.' Witness  and  many  others  signed 
their  names  in  the  book.  Mr.  Kulpman 
read  from  the  book,  showing  how  the 
tenants  were  to  behave  themselves.  The 
wages  that  witness  and  the  others  re- 
ceived for  erecting  the  church  and  schools 
were  6d.  and  9d.  a  day,  the  mission  ex- 
plaining that  the  church  would  stand 
for  the  workers  and  their  children.  Wit- 
ness had  been  living  there  for  l6  years 
at  5s.  a  month.  Until  Mr.  Kling  went 
to  Germany  everything  was  quiet  at 
Sarron. 

Cross-examined  hj  Mr.  Burton :  He 
knew  that  the  society  would  not  turn 
a  man  away,  except  he  did  something 
deliberately  wrong.  The  book  was  in 
the  pulpit,  and  from  that  the  Rev.  Kulp- 
man read  the  conditions  of  the  tenancy. 

The  next  witness  was  76  years  of 
age,  and  he  stated  that  he  went  to 
Sarron  about  three  months  after  Mr. 
Kulpman 's  time.  Mr.  Kulpman  said 
witness  could  have  the  land  on  payment 
of  3s.  a  mont4i.  Mr.  Kulpman  told  wit- 
ness he  could  have  the  place,  and  that 
it  would  become  his  property  when  it 
was  paid  for.  The  cause  of  the  unrest 
at  Sarron  was  the  action  of  Mr.  Kling 
in  making  the  i)eopIe  sign  the  new 
contract. 

Andreas  Verniuclen,  72  years  of  age, 
stated  he  went  to  Saron  in  response 
to  a  iiotice  isjiued  by  Mr,  Kulpman.    The 


notice  stated  that  Mr.  Kulpman  was  go- 
ing to     start  a  school  farm. 

Further  evidence  was  g^ven  as  to  the 
contract. 

Johanna  Huys  (widow,  aged  73 
vears)  said  that  she  went  from  Stellen- 
bosch  to  Saron  in  1847  to  assist  in  the 
school  as  a  teacher.  Some  time  after- 
wards she  left  for  Stellenbosch,  but 
upon  her  marriage  she  returned  to 
Saron,  and  had  since  been  living  there. 
She  was  aware  of  the  conditions  that 
were  made  with  those  who  went  to  live 
at  Saron.  Mr.  Kuepman  told  them  that 
wheal  Saron  was  paid  for  it  would  be- 
come their  own  property. 

Maasdorp,  J.,  pointed  out  to  counsel 
that  this  was  not  a  question  of  ancient 
rights,  but  a  question  of  contract. 

Witness  (continuing)  said  that  the  ar- 
rangement was  that  they  should  get 
one  piece  of  laaid,  and  if  they  got  half 
a  muid  of  seed,  they  had  to  give  a  muid 
of  corn  to  the  Leerar.  They  had  to 
keep  the  water  furrow  clear  at  their 
own  expense.  There  were  other  regula- 
tions to  the  effect  that  there  should  be 
no  theft,  no  drinking,  no  murder,  and 
so  forth  at  the  station.  It  was  under- 
stood that  if  a  man  did  nothing  against 
the  regukktions  he  could  not  be  sent 
away. 

Frederick  Franz,  a  former  member  of 
the  Raad  at  Saron,  said  that  in  Janu* 
ajpy,  1903,  they  wore  informed  that  t^ie 
inspector  from  Germany  wanted  to 
make  a  new  contract,  and  that  the  place 
could  not  exist  any  longer  as  it  had 
done.  He  said  that  if  tney  refused  to 
sicii  the  contract,  he  had  authority  to 
sell  the  place.  They  wont  out  to  con- 
sult, and  they  came  to  the  conclusion 
that  unless  certain  rules  were  removed 
from  the  contract  thev  would  not  sign. 

Solomon  Franz,  aUso  of  Saron,  said 
tliat  he  obtained  his  erf  from  his  father- 
in-law.  and  subsequently  he  was  allotted 
another  erf.  He  had  a  shop  at  Saron 
during  Mr.  Weeber's  time.  He  gave 
notice  to  Mr.  Weeber.  W'itness  use<l 
to  be  one  of  the  churchwardens.  Ques- 
tions concerning  the  general  welfare 
used  to  come  'before  the  Raad.  Cer- 
tain i%mall  oases  of  breaches  of  the  re- 
gulations were  dealt  with  by  the  Raad, 
but  more  serious  oases  went  to  the 
Magistrate's  Court.  At  the  second 
meeting,  at  which  the  new  conditions 
were  to  be  considered,  it  was  found  that 
one  alteration  had  been  ntade  in  regard 
\  to  the  rate  on  the  land  now.^  It  had 
'    cost  witness  £150  to  put  up  his  house. 

The  defendant,  Goedeman,  caused  a 
good  deal  of  amusement  bv  his  replies, 
in  cross-examination,  to  IVlr.  Burton. 
Goedeman  repeatedly  stated  that  he 
had  told  all  ho  knew,  and  he  could  not 
say  anything  more  without  *'  telling 
I  lies.''  In  reference  to  his  non-attena- 
I  ance  at  church,  he  admitted  that  he  was 
not.  intending  permanently  to  stay 
away,  and  that  he  might  yet  return  If 
he  remained  at  Saron, 


9fiO 


CAPS  TIMB8"  LAW  RBPOftTd. 


Several  otber  witoesset,  coloured  men 
living  at  the  station,  were  called  for  the 
defence. 

Johannes  Vlotmana  said  that  papers 
were  taken  round  Saron  to  (xay  the  rent 
of  erfs.  The  papers  were  given  to  the 
members  of  the  congregation,  who  wore 
in  arrear. 

Cross-examined  by  Mr.  Burton:  He 
did  not  know  the  laws  of  the  congrega- 
tion. He  heard  of  them,  but  he  did  not 
carry  them  about  with  him. 

Johannes  Moller,  auctioneer,  said  he 
valued  each  plot  of  land  at  £10.  He 
though  that  £60  would  be  a  very 
fair  valuation  for  Muller's  house. 
Baron's  house  he  valued  at  £40,  and  his 
plot  at  £4. 

Cross-examined  by  Mr.  Burton:  He 
did  not  measure  the  ground ;  he  stepped 
it  out  in  his  usual  wav. 

Tlus  closed  the  coi^  for  the  defendants. 

Counsel  having  been  heard  in  argu- 
ment, 

[Maasdorp.  J. :  In  this  case, 
the  plaintiff  in  his  capacity  as 
trustee  of  the  missionary  so- 
ciety, suoa  five  of  the  tenants 
of  tne  society  in  order  to  obtain  a  de- 
claration of  rights,  and  also  an  order  of 
ejectment  of  the  defendants  from  the 
premises.  It  appears  tliat  the  main 
(|i)esticm  at  issue  between  the  parties  in 
tiH>  different  ca«os  is  so  identical  that 
it  was  considered  advisable  to  consolidate 
the  six  cases,  in  order  to  save  costs  and 
tim(\  The  questions  so  raised,  as  I 
say,  Aie  in  the  main  identical  in  all  the 
oases,  though  there  are  some  slight 
variations,  which  I  shall  have  to  r^er 
to  when  it  becomes  necessary  to  make 
the  orders  for  each  particular  case.  It 
appears  that  the  Rhenish  Mission  So- 
ciety, which  lias  its  principal  seat  in 
Germany,  determined  some  long  time 
ago  to  establish  the  mission  station  in 
Iho  neighbourhood  of  Tulbagh,  for  the 
nmelioration  of  the  condition  of  the 
coloured  people  in  the  neighbouring  dis- 
tricts, ana  also  for  their  religious  instruc- 
tion. In  order  to  carry  out  their  object 
thev  thought  it  advisable  to  set  about  es- 
tablishing a  village,  in  which  the  people 
could  live  in  the  neighbourhood  of  a 
church,  which  it  was  proposed  to  build 
out  of  the  funds  of  the  society,  and  also 
for  the  assistance  of  prospective  inhabi- 
tants of  the  land.  The  inducements  held 
out  to  the  coloured  people  were  the 
iAXor  of  an  erf  or  plot  of  ground  for 
tlieni  to  occupy,  upon  which  they  liad 
the  right  to  build  and  have  a  garden  and 
other  cultivation  for  their  own  benefit. 
The  rent  which  was  charged  was  not 
very  high.  The  inducements  served  their 
puri)ose.  because  a  large  number  of  the 
coloured  people  flocked  to  the  place, 
and  the  village  of  Saron  was  ultimately 
established.  After  these  people  came  to 
take  up  their  erven  they  entered  into 
an  agreement  with  the  Rhenish  Mis- 
sion Society  as  to  what  tlio  condi- 
tions were  upon  which  tlie  ground  waa 


occupied  When  the  village  waa  atarted 
is  not  really  at  iaaue  in  the  preswit  case, 
because  tne  contracts  with  which  the 
Court  has  specifically  to  deal  were  only 
made  in  the  year  1881,  and  the  others 
were  made  subsequently.  For  the  special 
purposes  of  this  case  it  will  only  be  ne- 
cessary to  ascertain  what  were  the  con- 
ditions upon  which  the  five  defendants 
entered  into  the  other  contracts.  But 
a  wider  question  has  been  raised,  and 
it  has  been  suggested  that  really  these  are 
test  cases,  and  there  is  a  wish  on  the 
part  of  the  plaintiffs  and  the  residents 
m  this  village  to  ascertain  what  are  the 
conditions  upon  which  the  preaons  held 
their  tenancies  fixed  at  a  date  prior  to 
the  earliest  contract  here  mentioned. 
A  large  number  of  witnesses  were 
called,  and,  perhaps,  it  was  necessary  in 
this  case  to  ascertain  what  the  condi- 
tions were,  as,  in  respect  of 
four  of  these  contracts,  they  are  not 
set  forth  expressly  in  writing.  I  may 
mention  in  the  oase  of  one  of  the  de- 
fendants the  expressed  conditions  upon 
which  he  holds  is  contained  in  bis  con- 
tract. That  ie  the  case  of  Barron, 
which  will  be  decided  under  the  con- 
tract. Then  tJiere  is  the  contract  by 
Muller,  in  which  certain  conditions  are 
referred  to.  It  is  necessary  in  his  case 
and  the  three  other  cases  to  ascertain 
what  terms  the  parties  entered  upon 
their  tenancies.  It  is  quite  clear  thai 
since  1876  there  have  been  printed  con- 
ditions of  contract  in  existence,  and 
also  printed  rules  of  the  society  for  the 
management  of  this  vUlage  that  came 
into  existence  about  1876  or  1877.  Now, 
the  question  is  wlien  the  contracts  were 
entered  into  between  these  defendants 
and  the  society,  were  these  printed 
conditions  the  terms  upon  w'hich  the 
contracts  were  made  or  were  there  others 
which  the  parties  had  in  contemplation. 
I  do  not  intend  to  go  any  length  into 
this  part  of  the  oase.  I  am  satisfied 
if  these  printed  conditions  were  rn  ex- 
istence, it  is  impossible  to  understand 
why  the  parties  snould  have  entered  into 
the  agreement  under  any  otJier  condi- 
tions than  those  printeiT.  It  may  be 
eaid  it  was  the  intention  of  the  society 
to  act  upon  these  rules,  but  it  does 
not  follow  it  waa  the  intention  of  tliose 
who  entered  into  the  agreement  with 
them  to  do  so.  The  suggestion  is  that 
these  part>ies  contemplated  eome  otlier 
rules.  As  fiar  as  the  defendants  are 
concerned,  I  am  satisfied  that  tliese 
rules  were  generally  known,  that  the 
contract  was  entered  into  upon  rules 
generally  known,  and  that  they  became 
the  terms  of  the  contract  between  the 
parties.  It  is  said  there  were  other 
rules  previously  in  existence,  and  the 
tenants  had  them  in  contemplation  when 
tlicy  entered  into  their  contracts.  The 
evidence  of  the  missionaries  shows  that 
the  rules  in  the  lKx>k  are  substantially 
the  same  an  the  present  rules,  and  I 
am  satisfied  also  on  tlie  evidence  of  Uur 


II 


CAPB  TIMB8"  LAW  REt>0RT8. 


951 


defeadanifl,  they  are  the  same  rules  of 
the  contract.  The  main  difference  is 
upon  tliis  point.  Had  the  society  the 
power  under  the  agreement  to  eject  a 
tenant  upon  giving  a  month's  notice? 
That  condition  appears  in  the  printed 
rulcB,  and  I  am  satisfied  when  a  ten- 
ancy is  entered  into  that  the  first  thing 
the  {larties  would  consider  is  the  man- 
ner in  which  the  contract  should  be 
terminated.  The  defendants  say  that 
there  wae  a  stipulation  in  the  agree- 
ment made  to  the  effect  that  they  should 
not  be  ejected  aa  long  as  they  behaved 
themselves,  and  that  the  properties 
should  paas  to  their  legal  successors.  I 
feel  satisfied  that  some  assurance  was 
given  wlien  the  contracts  were  being 
made  upon  the  fixed  oondrtions,  among 
others,  a  month's  notice,  that  they  would 
not  'be  disturbed,  and  that  their  children 
would  take  over  after  them,  and  I 
think  the  assurances  have  been  faith- 
fully observed  by  the  society,  because 
we  have  no  case  in  whicii  a  man,  who 
has  behaved  himself,  has  not  been  able 
to  get  his  property  passed  on  to  his  re- 
latives. I  am  of  opinion  that  one  of 
the  terms  of  the  contract  was  one 
month's  notice  to  the  tenants  to  auit. 
Three  received  notice  to  quit,  and  in 
my  opinion  that  notice  was  cufficient. 
One  starts  a  butcherj  business  against 
the  rules  of  the  society,  another  used 
threatening  language,  and  the  third  re- 
fused to  attend  the  services  of  the 
church,  and  then  he  further  breaks  the 
rules  by  ploughing  land.-}  without 
doing  it  under  the  directions  which  he 
is  bound  to  accept  of  the  missionary  in 
obargc.  As  to  the  other  two,  notice 
to  quit  was  not  given,  but  I  find  it  is 
one  of  the  conditions  that  a  tenant  shall 
be  allowed  to  remain  upon  the  property, 
but  he  must  have  paid  his  rent  by  the 
end  of  the  year,  and  that  condition  has 
not  l)oen  observed  by  these  two  defen- 
dants, not  only  so,  but  they  have  set 
up  la  isort  of  proprietary  right  theni- 
W'lves.  There  arc  no  proprietary  rights 
in  this  case,  and  they  have  no  rights 
except  such  as  given  them  by  the  con- 
tract. Upon  that  point  I  give  a  general 
declaration  that  the  contracts  made  by 
the  defendants  in  this  oaso  are  subject 
to  the  printed  rules,  a  copy  of  which 
has  been  put  in.  The  plaintiff  society  is 
therefore  entitled  to  an  order  of 
ot  ejectment.  The  plaintiffs  arc  pre- 
pared, according  to  the  rule,  to  make 
compensation  to  those  w'ho  have  made 
improvements  upon  their  property.  Thoy 
urn  willing  to  make  such  compensation, 
and  the  question  is  as  to  the  special 
order  in  respect  of  comix^nsation  in  the 
case  of  Barron.  The  scale  of  maximum 
compensation  is  laid  down,  and,  conse- 
(fucntly,  the  Court  will  give  judgment 
i;i  his  case  that  he  is  to  quit  the  pre- 
mises upon  payment  to  him  of  £25.  Of 
cc.urse,  that  payment  is  subject  to  any 
set-off  which  the  society  niaj'  have  in 
respect  of   anything   due  to   them   as   a 


matter  of  costs  or  otherwise.  If  there 
should  be  a  claim  of  oosta  against  him, 
that,  of  course,  will  be  set  off.  As  far 
as  the  other  four  defendants  are  con- 
cerned, there  is  such  a  large  margin  be- 
tween the  value  given  by  the  witnesses 
for  the  plaintiffs  and  the  defendants  that 
I  cannot  safely  act  upon  the  evidence. 
The  plaintiff  has  offered  to  pay  such 
compensation  as  may  be  awarded  as  the 
result  of  any  direction  the  Court  may 
^ive,  and  I  am  of  opinion  thai  s^ne  dis- 
interested  person  should  be  appointed  to 
make  the  valuations.  He  is  to  value  not 
otdy  the  house,  but  also  other  perman- 
ent  improvements  upon  the  erven, 
which  ^o  to  enhance  their  value.  That 
is,  he  is  to  consider  what  an  erf  would 
be  worth  without  the  improvements, 
and  what  it  is  worth  with  the  improve- 
ments, and  the  defendants  will  be  en- 
titled to  payment  of  the  value  so  ascer- 
tained. The  defendants  will  be  ordered 
to  leave  the  premises  by  the  3lBt  Decem- 
ber, and  Mr.  J.  W.  H.  Meiring,  of 
Worcester,  appointed  to  value  the  im- 
provements, which  will  be  paid  to  the 
defendants,  the  defendants  to  pav  the 
costs  of  the  suit.  Goedeman,  Muller, 
Engelbrech,  and  Leander  to  pay  the 
rent  due  by  them. 

Mr.  Burton  asked  that  the  ejectment 
be  ordered  to  take  place  before  Christ- 
mas. 

[Maasdorp,  J. :  Christmas  is  a  time  of 
peace,  and  good  results  may  follow  from 
their  being  there.] 

[PlaiiUiff's  Attorneys:  Walker  and 
Jac(>l>^ohn;  Defendants'  Attorney:  J. 
Buirski.] 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


CAPK     TOWN      nATEPAYBRS'  ( 

ASSOCIATION  AND  OTHERSj         VM)o, 
V.      CAPE      TOWN       TOWN]  Nov.    17th. 
COUNCIL.  (. 

Town   Council — Contract — Inter- 
dict. 

The  Court  granted  a  rule  ni8i 
on  the  ex  parte  application  of 
certain  councillor's  and  other 
ratejyat/crs^  calling  upon  the 
Town  Council  of  C.  T,  to  show 


952 


'*CAPS  tlMBS"  LAW  RSFOftTfi 


cause  iiohy  they  should  not  b$ 
restrained froni  entering  into  a 
certn'm  contract. 


This  was  an  application  for  a 
rule  fosi  against  tho  Town  Coun- 
cil of  Cape  Town  by  the  C'apc 
Town  Ratepayers'  Association  and  Ven- 
ning Thomas  and  Van  Blerck,  president 
and  secretary  respectively  of  the  associa- 
tion, and  Hyman  Liberman  (Mayor)  and 
Councillors  Abdurahman,  Alexander, 
Friedlander,  Harris,  Jones,  and  Forsyth, 
representing  tho  ratable  property  of 
the  value  of  over  £3,000,000. 

[Buchanan,  A.C.J. :  It  .seems  to  bo  a 
bouse  divided.] 

Sir  H.  Juta:   Yes,  very  much  so. 

[Buchanan.  A.C.J. :  U  tho  application 
ex  jxirtiJ] 

Ye8. 

[Buchanan,  A.C.J.  :  Notice  should 
have  been  given.] 

Sir  H.  Juta  explained  that  the  matter 
had  been  hurriedly  prepared. 

The  petition  set  out  at  length  the  pr(>- 
ceedings  leading  up  to  the  present  appli- 
cation. Petitioners,  inter  alia,  oalied 
attention  to  tho  notice  of  motion  given 
by  Dr.  Abdurahman,  and  went  on  to 
say: 

16.  Tliat  this  notice  of  motion  was 
accepted  by  the  Mayor  as  staying  all 
proceedings  in  connection  with  the  ac* 
coptanoe  of  the  said  tender  of  Nuttall 
and  Co.  until  the  next  Council  meeting 
on  October  12. 

17.  That,  nevertheless,  in  direct  oppo- 
sition to  the  effect  of  this  motion  and 
without  either  tlie  knowledge  or  the  au- 
thority of  tho  Mayor  or  of  the  Council, 
the  Town  Clerk  on  the  following  day 
wrote  to  Messrs.  Nuttall  and  Co.  ac- 
cepting their  tender,  and  that  his  letter 
wan  as  follows: 

28th  September,  1906. 

Gentlemen, — I  am  instructed  to  inform 
you  that  the  Council  have  decided  to 
accept  your  tender  for  the  paving  of 
Darling,  Adderley,  St.  George's,  Par- 
liament, Plein,  and  Long  streets  with 
tho  Hastings  paving-block,  at  the  sche- 
dule prices  con  to ined  in  your  tender.  A 
contract  is  now  being  drafted  to  give 
effect  to  the  arrangement  proposed,  and 
will  be  submitted  to  you  for  signature  in 
due  course.  In  the  meantime,  will  you 
be  good  enough  to  furnish  me  with 
parcel  of  £10,000  of  Cape  Town  Muni- 
ripal  Stock,  in  accordance  with  tho  terms 
of   your  contract.— I  am,  etc., 

J.  R.  FINCH. 

The  petitioners  proceeded  to  refer  to 
subsequent  developments,  and  went  on : 

36.  That  during  the  course  of  this 
week  a  report  upon  the  probable  cost  of 
this  contract  has  been  obtained  from 
the  city  treasurer  in  conjunction  with 
the   City   En^neer,    and   tnat   the   pro- 


bable cost  has  been  placed  by  them  at 
£100,000. 

36.  That  certain  of  your  petitioners 
are  aware  ol  their  own  knowledge  that 
the  ** extras"  in  similar  contracts  with 
the  said  and  with  other  firms  has  varied 
from  10  per  cent,  to  50  per  cent  of  the 
original  tender,  and  that  they  are  of 
opinion  that  the  extras  in  the  present 
case  will  show  a  very  high  proportion 
to  the  original  tender. 

37.  That  your  petitioners  of  the  first 
part  strongly  oppose  the  signing  of  this 
contract  on  the  ground  that  a  poll  of 
the  ratepayers  having  been  demanded 
on  the  question  of  pavmg,  it  is  necessary 
to  apply  to  the  ratepayers  to  sanction 
the  expenditure  of  further  funds  in  ex- 
cess of  what  was  actually  granted  by 
the  ratepayers. 

38.  That  your  petitioners  of  the  second 
part  are  equally  opposed  to  the  signing 
of  the  contract  in  question  both  on  the 
ground  above  mentioned,  and  also  on 
the  ground  that  if  any  such  contract 
be  entered  into  they,  as  Councillors,  will 
be  rendered  personally  liable  for  the  dif- 
ference between  the  amount  of  the  avail- 
able funds  sanctioned  by  the  ratepayers 
and  the  ultimate  cost  of  the  said  con- 
tract. 

39.  That  petitioners  further  oppose  the 
said  contract  on  the  ground  that  tho 
paving  material  tendered  for  by  Nuttall 
and  Co..  viz:  '  Tlie  Patent  Hastings 
Sanitary  Block,"  cannot  be  supplied  by 
the  saici  firm  of  Nuttall  and  Co.,  and 
that  the  facts  in  connection  therewith 
are  as  follows : 

40.  That  on  or  about  the  31st  of  Octo- 
ber the  Mayor,  in  consequence,  of  in- 
formation received  from  the  United 
States,  requested  an  interview  with 
Nuttall  and  Co.'s  manager  in  reference 
to  their  tender. 

41.  That  at  the  said  interview  Mr. 
Trimmer,  the  manager  of  Nuttall  and 
Co.  admitted  that  hi.s  firm  did  not  and 
had  no  right  to  represent  the  Hastings 
Sanitary  Paving  Block  Co.  in  South 
Africa,  thus  bearing  out  the  information 
received  by  the  Mayor  to  the  effect  that 
no  com^Miny  in  South  Africa  had  the 
right  to  represent  the  Ha.«iting«  Sanitary 
Paving  Block  Company. 

42.  That  the  Mayor  thereupon  cammed 
a  letter  to  be  sent  to  the  said  firm  <if 
Nuttall  and  Co.  in  the  following  terms: 

Ist  November,  1905. 

In  re  Hastings  Sanitary  Paving  Block. 

Gentlemen, — His  Worship  the  Ma^or 
desires  me  to  refer  to  the  intervH?w 
which  he  had  with  your  Mr.  Trimmer 
yesterday,  with  regard  to  the  tender  for 
the  paving  of  certain  streets  of  the  city 
with  the  Hastings  Sanitary^  Paving 
Block,  and  to  state  that  His  Worship 
understands  that  the  firm  of  Edmund 
Nuttall  and  Co.  do  not  represent  the 
Hastings  Sanitary  Paving  Block  Co.,  in 
South  Africa,  and,  further,  that  they 
hold  no  authority  from  such  company 


"CAPS  TIMES"   LAW  REPORTS 


urA 


HiB  Worship  desirea  me  to  uk  that  you 
will  be  go<Nl  enough  to  oonfiim  this  in 
writing.— I  am,  etc., 

J.   R.  FINCH. 

B.   Nuttall  and  Co..   P.O.  Box  1,607, 
Cape  Town. 

43.  That  the  foregoing  letter  wae  sent 
on  let  November  but  that  no  reply  or 
acknowledgment  waa  reoeived  until  8th 
November,  one  week  later,  when  the 
following  communication  appeared: 
P.O.  Box  1,597,  Cape  Town,  November 

7,  1905. 

The   Town   Clerk,    City   Hall,      Cape 
Town. 

Sanitary  Block  Paving  Contract. 
Dear  Sir, — We  are  in  receipt  of  your 
letter  of  Ist  in«rtant,  in  which  you  refer 
to  an  interview  between  His  Worship 
the  Mavor  and  our  Mr.  Trimmer,  and 
in  which  you  ask  us  to  confirm  certain 
thin^.  We  have  to  remark  that  the  in- 
terview was  stated  by  His  Worship  the 
Major  to  be  entirely  informal,  he  pre- 
facing bis  questions  with  the  remark, 
that  ne  was  inquiring  for  his  own  in- 
formation. Mr.  Trimmer  was  given  no 
idea  of  the  purpose  of  the  interview 
previous  to  it,  and  had  no  opportunity 
of  consulting  any  papers,  or  refreshing 
his  memory  in  any  way,  and,  conse- 
ouently,  we  cannot  dc  held  to  anything 
that  transpired.  We  beg,  however,  for 
the  information  of  the  Mayor  and 
Councillors  to  advise  you  that  we  have 
communicated  by  cable  with  our 
head  office,  and  have  reoeived  confirma- 
tion of  the  facts,  mainly  as  stated  at 
the  interview  in  question.  We  have 
to  inform  you  that  the  paving  material 
for  which  we  have  tendered  is  what  w 
known  in  some  places  as  the  "  Haetingti 
Sanitary  Block.'^  and  in  othors  as  the 
••  Sanitary  Block  Paving."  The  original 
proprietors  of  this  material  are  the  In- 
t4»rnational  Paving  Company  of  Hart- 
ford, C*onnecticut,  U.S.A.  They  are 
the  parent  company,  and  iesue  aJl 
licences.  They  have  granted  to  the 
Hastings  Companv  rights  to  manufac- 
ture blocks  only,  and  the  Hastings  Co., 
oon.««equeirtly,  could  not  give  any  author- 
ity to  us.  The  parent  company  have 
f^ranted  rights  to  manufacture  and  :o 
MMue  licences  to  manufacture  to  tiie 
Sanitary  Block  and  Tile  Connpany,  Ltd.. 
of  London,  which  rights  are  for  tne 
United  Kingdom,  South  Africa,  Egypt, 
and  India.  We  have  acquired  from 
the  London  Company  their  rights  for 
Cape  Colony,  the  Orange  River  Colony, 
and  the  Transvaal.  When  we  first  sub- 
mitted samples  of  the  sanitary  block  to 
the  City  Engineer  in  October,  1904,  we 
wore  (in  the  absence  of  documents)  under 
the  impression  that  the  parent  com- 
pany and  the  Hastings  Company  were 
one  and  the  same,  and  we  used  the 
word  "  Hai^tings  "  when  under  this  im- 
proAsion.  We  have  since  become  aware 
of  the  facts  set  out  above,  and  we  ap- 
pend  a   copy   of   the  preamble   of  our 

p2 


agreement,  which  shows  clearly  that  we 
hold  our  rights  from  the  parent  com- 
oany  and  the  London  company.  The 
London  company  having  the  rights  in 
South  Africa,  it  is  cle€ur  that  the  Hast- 
ings Company  could  not  have  anything 
to  do  with  Cape  Town  in  any  way. 
That  the  block  we  propose  to  supply  is 
identical  with  the  Hastings  block  is 
clearly  proved  by  the  facis  that  the 
International  Company's  testing 

laboratories  are  situated  in  the  Hastin^^s 
works,  that  the  whole  of  our  experi- 
ments and  the  designs  of  our  plant  nave 
been  under  the  advice  of  the  Hastingv 
Company,  and  that  we  have  contracted 
with  the  Hastings  Company  for  the 
supply  of  flux  and  for  the  necessary 
press'  plant.  We  append  a  copy  of 
the  cable  received  from  our  heed  office 
for  your  information.  We  beg  to  state 
that,  as  thid  question  has  been  raised. 
we  must  ask  that  the  whole  of  this 
statement  be  communicated  to  the 
Council.— We  are,  dear  sir,  yours  faith- 
fully. 

Per  pro  Edmund  Nuttall  and  Co. 

(Signed)  A.  K.  TRIMMER. 

44.  Petitioners  beg  leave  to  speciallv 
point  out  to  the  Court  that  the  heaJ- 
ing  of  Nuttall  and  Co.'s  reply  excIudeA 
the  word  'Hastings"  and  the  word 
"  Patent,"  whereas  the  tender  and  ac- 
companying documents  includes  both; 
that,  as  indicated  in  the  second  para- 
graph of  this  letter,  the  company  at- 
tempt to  reisile  from  the  position  taken 
up,  and  the  conversation  neld  by  tlieir 
representative  at  the  interview  with 
the  Mayor  on  31st  October;  and  that 
in  the  sixth  paragraph  they  state  that 
"  the  block  we  propose  to  supply  is 
identical  with  the  Hastings  block,'  etc., 
thereby  admitting  that  the  block  to  be 
supplied  by  them  is  not  the  Hastings 
Sanitarv  Block  itself,  but  merely  a 
colourable  imitation.  or  something 
*'  just  as  good." 

45.  That  the  said  Nuttall  and  Co.,  in 
the  tender  submitted  by  them,  distinct- 
ly undertake  to  supply  the  Hastings 
Sanitary  Block,  and  that  they  append 
to  the  said  tender  a  ''statement  of 
cUims  <to  consideration"  in  favour  of 
the  said  "  Hastings  Sanitary  Block." 
in  which  is  set  forth  the  extent  to  which 
the  said  ^ "  Hastings  Sanitary  Block  " 
\f>  used  in  various  cities  and  towns  of 
the  world. 

46.  That  the  said  Hastings  Sanitary 
Block  paving  (otherwise  termed  tlio 
Patent  Hastings  Sanitary  Block  pav- 
ing) is  a  specific  and  patented  article, 
and  is  apiMirently  well   known. 

47.  That  a  sample  of  this  block  was 
deposited  with  the  Town  Cle^rk,  in 
whose   possession   it   at   present  lies. 

48.  That  petitioners  have  been  unable 
to  obtain  copies  of  the  original  tender 
by  NuttaJl.  together  with  the  "  Htate- 
mcnt  of  claims  of  consideration,"  and 
a    letter   from    Nuttall    and    Co.    wj^ich 


m 


"OAPB  TIMB8"  LAW  BBPORtt. 


aooompanied  tbeir  tender,  and  thai, 
acordincly.  they  are  not  in  a  position 
to  particularly  set  before  the  Court  oer- 
tain  nouaierial  diacrepancies  therein,  and 
that  your  petitioners  beg  leave  to  refer 
the  Court  to  the  accompanying  affidavit 
by  their  attorney  herein. 

49.  That  the  original  resolution  of 
10th  August,  1905,  accepting  the  ro- 
{•ommendation  of  the  Public  Works  and 
ImproTementfl  Committeo  was  adopted 
unaer  certain  representations  which  it 
now  appears  cannot  be  carried  out,  viz. : 
(1)  That  there  were  sufficient  funds  to 
proceed  with  the  work,  and  (2)  that 
Nuttall  and  Co.  intended  to  provide  the 
"  Hastings  Sanitary  Block,"  and  that 
they  possessed  the  right  t<>  do  eo. 

60.  That  your  petitioners  desire  to 
point  out  tnat  the  said  committee  in 
the  course  of  their  report  recommending 
the  adoption  of  Nuttall  and  (*o.'s  ten- 
der, atate  that  they  "  unanimously  con- 
cur in  the  opinion  of  the  C*ity  En- 
gineer," which  was  that  the  most  suit- 
able tender  was  that  for  the  Hafirtinga 
Sanitary  Block,  whereas  in  point  of  fact 
the  said  committee  were  not  unanimous 
— Councillor  Bartlett  stating  that  he  had 
voted  under  a  miaapprehension,  and  the 
Mayor .  and  Councillor  Matthews  (who 
were  against  the  recommendation)  hav- 
ing been  absent. 

51.  That  during  the  course  of  the  pre- 
sent week  communications  have  been  re- 
ceived from  the  Hastings  Paving  Com- 
pany of  New  York  forwarding  a  eample 
block  together  with  a  quotation,  or  ten- 
der, to  be  submitted  to  the  Town  Coun- 
cil, and  that  the  Hastings  Paving  Com- 
pany, from  whom  the  sample  block  has 
been  received,  is  the  same  company  of 
whom  Nuttall  and  Co.  allege  that  they 
hold  the  sole  agency  in  South  Africa. 

52.  That  your  petitioners  annex  here- 
to a  copy  of  the  specification,  and  form 
of  tencier  for  the  contract  under  ques- 
tion, and  also  a  copy  of  the  contract 
which  awaits  signature. 

53.  That  paragraph  19  of  the  condi- 
tions in  the  aaid  specification  and  form 
of  tender  sets  fortn  that  the  contractor 
is  to  maintain,  uphold,  and  guarantee 
the  stability  of  the  works"  for  a  cer- 
tain period  after  completion,  and  that 
paragraph  (c)  under  the  heading  "Ten- 
ders are  Invited  For " — on  page  6  of 
the  specification  provides  that  the  ten- 
derer shall  state  the  price  at  which  he 
will  be  prepared  to  maintain  the  paving 
after  the  expiration  of  the  period  of 
guarantee. 

54.  That  according  to  clau.se  5  of  the 
Draft  Contract  the  tenderers  undertake 
merely  to  maintain  the  paving  for  three 
years,  and  that  your  petitioners  hold 
that  the  tender  binds  the  said  Nuttall 
and  Oo.  to  guarantee  the  paving  for  a 
oertadn  term,  and  thereafter  to  maintain 
the  same  either  free  of  charge  or  at  a 
certain  cost. 

55.  That  in  support  of  this  statement 
petitioners  desire  to  refer  the  Court  to 


the  clause  occurring  in  the  report  of  the 
Public  Works  and  ImproTement  Com- 
mittee, which  report  is  embodied  in 
paragraph  6  hereof,  and  which  clause 
M  as  follows :  "  Messrs.  Nuttall  and  Co. 
are  willing  after  the  period  of  mainten- 
ance has  expired  to  guarantee  the  pav- 
ing for  a  period  of  three  years  without 
charge. 

56.  That  your  petitioners  hold  that  by 
*'  guaranteeing  the  paving  "  a  successful 
tenderer  undertakes  to  refund  the  whols 
price,  and  monies  received  br  him  if  the 
paving  should  prove  unsatisfactory. 

57.  That  in  view  of  the  great  and  un- 
abated interest  taken  by  the  ratejpayers 
of  Cape  Town  and  by  the  public  at 
large  m  the  matter  of  the  paving  of  the 
streets  of  the  city,  in  tenders  received 
for  the  same,  in  the  debates  in  the 
Town  Council  as  to  the  whole  matter, 
and  as  to  the  acceptance  of  Nuttall  and 
(To.*6  contract ;  in  view  of  the  great  dif- 
ference of  opinion  among  Councillors 
themselves,  taking  into  consideration 
the  fact  that  throu^fhout  the  voting 
hereon  in  the  Council  has  been  so  close 
and  that  on  certain  occasions  the  party 
against  the  acceptance  of  this  tender 
have  had  a  majority  in  actual  votes; 
and,  lastly,  in  view  of  the  fact  that  the 
election  held  (under  statutory  rules),  on 
September  11  last,  turned  entirely  on 
this  Question  of  the  paving  contract, 
and  that  in  the  result  four  Councillors 
out  of  the  six  returned  expressed  them 
selves  during  the  election  as  strongly 
against  the  acceptance  of  any  tender  un- 
til sample  strips  of  all  proposed  paving 
had  been  laid  by  way  of  experiment, 
and  in  view  of  the  fact  that  a  poll  has 
been  repeatedly  demanded.  Tour  peti- 
tioners naving  taken  all  these  matters 
into  consideration,  are  of  opinion  that 
the  only  satisfactory  method  of  elucidat- 
ing the  matter  is  to  approach  the  rate- 
payers by  way  of  taking  a  poll  in  the 
same  manner  as  is  done  in  the  case  of 
loans. 

Wherefore  your  petitioners  humbly 
pray  that  your  lordship  may  be  pleased*: 
1.  To  issue  a  i*ule  nisi  calling  on  respond- 
ents to  show  cause  by  December  12  next 

(a)  Why  respondents  should  not  be  in- 
terdicted from  signing  the  said  contract; 

(b)  why  respondents  should  not  be  or- 
dered to  take  a  poll  of  the  ratiepayers 
a3  to  the  paving  of  the  streets;  (c)  why 
the  respondents  should  not  be  restrained 
from  signing  the  aaid  contract  on     the 

? [round  that  the  necessary  money  there- 
or  has  not  been  authorised  by  tne  rate- 
payers; (d)  why  respondents  should  not 
bo  restrained  from  ««igning  the  said  con- 
tract On  the  ground  that  the  terms  there- 
of differ  materially  from  the  tender  and 
conditions ;  (e)  for  the  costs  of  this  appli- 
cation. 

Counsel  also  read  an  affidavit  by  Mi*. 
A.  J.  MacCallum,  attorney  to  the  appli- 
cants, in  reference  to  communications  he 
Iiad  had  with  the  Town  Clerk  in  regard 
to  tlie  inspection  of  certain  documents, 


f« 


CAPS  TIMES*'  LAW  REPORTS 


^"^ 


Kl 


Sir  H.  JuU,  K.C.,  for  applicants. 

Buchanan,  A.C. J.,  observed  that  the 
government  of  the  City  remained  in  the 
City  Council;  and  it  was  not  for  this 
Court  to  decide  its  management. 

Sir  H.  Juta  said  that  the  question  was 
not  one  of  management. 

[Buchanan,  A.C.J. :  Your  first  applicjv- 
tion  is  that  a  poll  of  the  ratopayors 
sliould  bo  ordered  to  take  place.  Arc 
you  entitled  to  that?] 

Yes;  because  the  neco«sary  amount 
of  mofoey  is  not  there. 

[Buchanan,  A.C.J. :  But  that  is  under 
a  different  clause.] 

We  cannot  demand  that  a  poll  of  the 
ratepayers  should  be  taken  aa  to  whe- 
ther or  not  there  should  be  this  paving 
of  the  streets. 

[Buchanan,  A.C.J. :  Then  that  falls 
away.  Then  there  is  paragraph  (c) : 
"  Wny  respondents  should  not  be  re- 
strained from  signing  the  said  contract 
oa  the  ground  that  the  necessary  money 
therefor  has  not  been  authorised  by  the 
ratepayers."  That,  you  say,  you  are  en- 
titled to  ask  for? 

Sir  H.  Juta  said  that  that  was  so. 

[Buchanan,  A.C.J. :  Then,  there 
is      paragraph       (d) :  "  Why         re- 

sponaents  should  not  be  restrain- 
ed from  signing  the  contract  on 
the  ground  that  the  terms  differ  materi- 
ally from  the  tender  and  conditions." 
That  is  not  a  matter  for  the  Court  to 
interfere  with,  but  a  matter  of  man- 
ap,ement.] 

I  submit  that  is  a  matter  on 
which  the  Court  could  very  well 
interfere.  The  Council  is  a  public 
l)ody  authorised  to  do  certain  things. 
Counsel  went  on  to  say  that  he  admitted 
that  he  could  not  support  the  demand 
for  a  poll  of  the  ratepayers  as  to  the 
paving  of  the  streets,  because  he  did  not 
.see  any  authority  for  it.  The  way,  how- 
over,  to  look  at  the  matter  was  this, 
that  if  the  ratepayers  did  not  agree  to 
this  paving  they  would  agree  to  a 
loan.  The  first  point  was  that  the 
money  was  not  there,  and  that  it  would 
he  necessary,  taking  the  estimate  of  the 
City  Treasurer,  in  conjunction  with  the 
City  Engineer,  at  £100,000,  to  make  an 
application  under  the  Act  for  a  loan, 
and  the  only  way  in  which  a  loan  could 
bo  granted  was  by  going  to  the  rate- 
payers. The  danger  was  that  if  the 
Mayor  did  not  sign  the  contract  some- 
liody  else  must  sign  it.  These  Coun- 
cillors and  the  Mavor,  who  were  the 
persons  to  settle  whether  the  money 
should  be  rai.sed  or  not,  wished  that  the 
contract  (should  not  be  signed  until  ^they 
had  had  an  opportunity  of  deciding 
whether  they  would  grant  the  money 
or  not.    On  what  ground 

[Buchanan,  A.C.J. :  The  only  ground.] 

Sir  H.  Juta :  Well,  Uke  the  ^  next 
ground,  my  lord.  A  public  body  invites 
tenders,  and  a  tender  is  sent  in  and  it 
is  accepted.  It  is  now  proposed  by  a 
inajority   of   that    public    body    that    a    | 


contract   materially  differing  from  that 
accepted  tender  shall  be  entered  into. 

[Buchanan,  A.C.J. :  Surely  they  have 
the  power  to  make  any  alteration  the^ 
may  have  agreed  upon.  If  the  Council 
choose  to  alter  a  contract,  surely  they 
can  do  so?] 

Sir  H.  Juta  submitted  t>hat  they  could 
not  do  so  without  calling  for  fresh  ten- 
ders. Surely  a  public  body  which  was 
authori&ed  to  call  for  tendera  could  not, 
after  it  had  accepted  one  tender  on  certain 
conditions,  then  go  and  alter  these 
conditions?  A  mere  maiority  of  the 
Council  could,  then,  unaer  those  cir- 
cumstances, make  what  contract  they 
liked. 

[Buchanan,  A.C.J. :  Of  course  they 
can  ;  they  can  alter  the  conditions  of  the 
tenders  ae  much  as  they  like.] 

Notwithstanding  that  they  have  called 
for  tenders  under  certain  conditions? 

[Buchanan,  A.C.J. :  Surely  they  have 
the  power  to  do  that?  That  is  a  matter 
of  administratiom  for  the  Council.  The 
Council  acts  through  the  majority;  you 
cannot  get  a  lar^e  body  to  agree  unani- 
mously to  anything.] 

But  then  it  must  act  in  a 
]/roper  manner,  and  that  proper  man- 
ner is  that,  where  the  Council,  oiia 
Council,  has  accepted  a  certain  tender, 
which    has    been    submitted 

[Buchanan,  A.C.J.  :0f  course,  as  this  is 
an  ex  parte  application,  I  don't  wish 
to  ^ay  anything  aa  to  the  merits  of 
the  rnatter,  but  I  wish  you  to  show  me 
prima    fane    grounds 

Sir  H.  Juta:  I  submit  that  the  drM 
ground  is  sufficient  in  itself.  I  rely 
on  the  second  jx>int  as  to  the  money, 
because  there  is  no  resolution  of  the 
Council  to  the  effect  that  the  original 
tender  should  be  in  any  way  modified. 
Your  lordship  says  that  the  Town  Coun- 
cil has  tiie  right  to  make  any  modifica- 
tions it  likofl  in  regard  to  thia  con- 
tract. Then,  my  lord,  as  I  said,  it 
must  bo  done  in  a  proper  manner,  and 
the  Town  Council  must  then,  as  a 
Town  Council,  pass  a  resolution  that 
they  will  agree  that  Nuttall  and  Co. 
should  amend  the  original  tender  iu 
certain  particulars.  My  point  to  your 
lordship  is  that  no  such  resolution  }ia.s 
been  passed  by  the  Council,  and  that 
there  ia  abeolutely  nothing  paased  by 
the  Council  in  any  way  altering  or 
amending  Messrs.  Nuttall  and  Co.'s 
original  tender.  Our  point  is  that  the 
contract,  aa  drafted,  differs  niateria.lv 
from  the  tender.  Finst  of  all  there  13 
maintenance,  and  there  id  a  guarantee 
for  two  periods.  The  contract  only 
deals  with  one  period.  Six  Hen'v 
went  on  to  contend  that  ihc  Town 
Council  could  rot  en^. 'r  into  a  '^mlract 
which  differed  from  the  original  tender 
without  a  proper  resolution  of  the  Coun- 
cil to  that  effect.  The  contract.  as 
drafted,  did  not  embody  the  tender, 
and  it  waa  much  more  favourable  to 
Messrs.    Nuttall    than   the   tender  was, 


944 


(« 


CAPiS  tikES"  LAW  tlfct'OkM. 


been  allowed  to  come  and  live  upon  the 
said  propertT  without  binding  himself 
cither  verbally  or  in  writing  to  pay  a 
certain  monthly  rental  for  the  ground 
occupied  by  him,  and  to  observe  atrictly 
all  the  said  rules  (Gemeentewetten) 
for  the  time  being  in  force  as  made  by 
the  society  for  the  good  of  the  rosidcnts. 
The  declaration  in  respect  of  the  de- 
fendant  Barron   proceeded : 

5.  Amongst  the  persons  so  allowed  to 
reside  upon  the  said  property  was  de- 
fondant,  who,  on  or  about  April  16,  1900, 
was  granted  the  occupation  as  a  tenant 
at  a  rental  of  la.  6d.  a  month  of  a  cer- 
tain half-erf  thereon  in  terms  of  a 
written  agreement,  whereby  he  bound 
himself,  a.s  a  condition  of  his  said  oc- 
cupation faithfully  to  observe  the  said 
"  (icmcentewetten  "  on  pain  of  for- 
feiting his  privilege  of  residing  ab  Saron 
aforesaid,  and  the  defendant  has  con- 
tinued since  then  to  occupy  the  said 
half-orf  upon  the  said  terms,  and  has 
paid  the  said  rent  up  to  the  end  of  the 
year  1904. 

6.  By  rule  5  of  the  baid  **  Geniecnto- 
wetten  "  the  occupation  of  said  half- 
erf  by  the  defendant  could  be  determined 
by  a  month's  previous  notice  on  either 
bide. 

7.  By  rule*  6  thereof  it  was  provided 
that  '*  buildings  which  a  lessee  has 
erected  on  an  erf  may.  when  he  receives 
notice  to  quit,  bti  pulled  down  by  him 
or  ho  may  sell  them,  nt  ^e  valuation 
of  the  directors  to  the  Rhenish  Society." 
It  was  further  provided,  by  an  additional 
rule  agreed  to  and  signed  by  the  de- 
fendant, that  the  highest  sum  which 
hhould  be  paid  for  a  house  in  case  u 
resident  of  Saron  transgressed  the  rules 
and  h^  to  quit,  the  place  should  not 
exceed  £25. 

8.  By  rule  15  it  is  provided  that  no 
IK^cson  may  establish  a  butchery  without 
ihe  permission  of  the  said  "Leeraar" 
(miuLster). 

9.  Bv  rule  21  it  is  provided  that  any- 
one who  will  nob  obey  the  rules  of  the 
institution  must  leave  the  place. 

10.  In  or  about  November.  1904.  the 
defendant,  in  direct  opposition  to  and  in 
defiance  of  the  said  rules,  wrongfully  and 
without  the  pcrmi.«8ion  of  the  minister, 
oix?ned  a  butchery,  upon  bhe  half-erf  oc- 
cupied by  him  as  aforesaid,  and,  in  &pito 
of  repeated  warnings  and  protests  ad- 
(Ir(v».scd  to  him  by  the  minister,  has 
refused  to  close  the  said  butchery  and 
continues  to  contravene  the  said  rules 
in  the  above  respect. 

11.  On  or  about  April  26,  1905,  bhe 
plaintiff,  as  he  lawfully  might,  duly  gave 
the  defendant  notice  to  quit  the  said 
estate  within  a  month's  time  at  the 
tiame  time  tendering  to  compensate  him 
for  his  house  in  terms  of  the  said  agree- 
ment, but  the  defendant  wrongfully  and 
unlawfully  refused,  and  still  refuses,  to 
regard  the  said  notice  or  to  quit  the 
said  estate,  and  claims  that  the  said  half- 
crf  is  his  own  property. 


12.  The  said  houae  of  the  defendant  v 
valued  b^  the  plaintiff  at  £20,  and  the 
plaintiff  is  willing,  and  tenders  upon  ttio 
defendant  quitting  the  said  eatate,  tc 
allow  him  to  break  down  and  remove 
from  the  aaid  estate  the  said  building, 
and  any  other  buildings  or  improvements 
hj  may  have  acquired  or  built  or  made 
therc^)ii.  or  in  tne  alternative  to  pay 
him  the  aaid  sum  of  £20,  or  the  value 
of  the  said  house,  and  of  any  other 
structures  or  impix)vements  as  afore- 
said as  may  be  assessed  in  terms  of  the 
said  agreement  or  as  may  be  fixed  by 
an  independent  party  or  parties,  or  as 
may  be  decreed  by  this  Honourable 
Court. 

The  plaintiff  tendering  as  aforesaid, 
claims :  (a)  A  declaration  of  rights  a:» 
between  himself  and  the  defendant  in 
respect  of  the  defendant's  said  occupa- 
tion in  tlie  premises;  (b)  a  decIaraticHi 
that  the  said  half -erf  is  the  property 
of  the  said  society,  and  that  the  plaintiff 
is  entitled  to  eject  the  defendant  there 
from  and  from  tlie  said  estate  of  Saron 
either  upon  the  defendant's  refusal  to 
be  bound  by  or  to  obe^  any  of  the  said 
rules  or  upon  due  notice  given  to  him 
thereunder,  upon  payment  of  compensa- 
tion as  above  tendered ;  (c)  an  order 
ejecting  the  defendant  with  his  fujuil^' 
and  belongings  from  the  said  half -erf 
and  from  the  said  estate  of  Sarou ;  (d) 
alternative  relief;  (e)  costs  of  suit. 

The  declaration  in  respect  of  the  de- 
fendant, Jury  Muller,  proceeded: 

5.  Amongst  the  persons  so  allowed  to 
reside  upon  the  said  property  was  the 
defendant,  who,  oi\.  or  about  September 
5,  1896,  was  granted  the  occupation  9s  a 
tenant  of  a  certain  erf  at  a  rental  of 
5s.  per  month  in  terms  of  a  written 
agreement,  whereby  he  was  given  the 
said  occupation  for  such  time  as  he 
observed  the  said  rules  and  paid  his 
rent  at  the  stipulated  time,  and  the  de- 
fendant has  continued  since  then  to  oc- 
cupy the  said  erf  upon  the  said  terms 
(save  that  since  1901  the  said  rent  has 
been  reduced  to  2s.  3d.  a  month),  and 
has  paid  the  rent  thereunder  up  to  the 
end  of  the  year  1903. 

6.  By  rule  21  of  the  said  **  Gemeeute- 
wetten  "  anyone  who  will  not  obey  the 
laws  of  the  institution  is  obliged  to 
leave  the  place. 

7.  B^F^  rule  19  every  lessee  must  have 
paid  his  rent  by  the  end  of  bhe  year. 
The  defendant  has  contravened  the  said 
rule  by  failing  to  pay  any  rent  since  the 
end  of  the  year  1903.  There  is  still 
due  and  unpaid  by  him  to  the  plaintiff 
the  rent  in  respect  of  the  said  erf  for 
the  year  1904,  to  wit,  the  sum  of  £1 
7s. 

8.  The  plaintiff  has  demanded  payment 
of  the  said  sum  from  the  defendant,  who 
however  refuses  to  pay  the  aame,  and 
claims  that  he  and  his  heirs  are  entitled 
to  the  use  and  occupation  of  the  said 
erf  in  i>erpetuity  without  payment  of  any 
rent  to  the  plaintiff. 


t9 


CAPiB  tUil&S"  Law  iis^lttd. 


945 


9.  By  rule  6  of  the  said  "  Gemeento- 
wetten "  it  is  provided  that  buildings 
which  a  lessee  has  erected  on  an  erf  inay, 
in  case  he  receives  notice  to  discontinue 
the  lea.ae,  bo  pulled  down  by  him,  or  he 
may  sell  them  according  to  the  estimate 
of  the  directors  to  the  Rhenish  Society. 

The  plaintiff  claims:  (a)  A  declara- 
tion of  rights  as  between  himself  and 
the  defendant,  in  respect  of  the  defend- 
ant's said  occupation  in  the  premises; 
(b)  a  declaration  thab  the  said  erf  is 
the  property  of  the  said  society,  and  that 
the  plamtin  is  entitled  to  eject  the  de- 
fendant therefrom,  and  from  the  said 
estate  of  S«uron  upon  the  defendant's 
refusal  to  be  bound  by  or  to  obey  any 
of  the  said  rules,  and  that  the  defend- 
ant's occupation  of  the  said  erf  is  limit- 
ed by  the  terms  of  his  said  agreement 
and  his  observance  of  the  said  rules, 
including  the  rule  as  to  payment  of 
rent;  (c)  payment  of  the  sum  of  £1 
7s.  as  rent  aforesaid ;  (d)  an  order  eject- 
ing the  defendant,  with  his  family  and 
bclougrings,  from  the  said  erf  and  from 
the  said  e&tate  of  Saron,  by  reason  of 
the  defendant's  contravention  of  the  said 
rule  respecting  the  payment  of  rent,  the 
plaintiff  tenderhig  to  allow  the  defend- 
ant to  break  down  and  remove  from  the 
ttaid  estate  any  buildings  or  other  im- 
provements he  may  have  acquired,  built, 
or  made  theron.  or  in  the  alternative  to 
pay  him  tlie  value  of  such  buildings  and 
improvements  as  may  be  assessed  under 
the  said  rules  or  as  may  be  fixed  by 
an  independent  party  or  parties,  or  as 
may  be  decreed  by  this  Honourable 
Court;  (c)  alternative  relief;  (f)  costs  of 
buit. 

The  declaration  in  respect  of  the  de- 
fendant Goedeman  proceeded : 

5.  Amongst  the  persons  so  allowed  to 
reside  upon  the  property  was  the  defen- 
dant, who,  in  or  about  1881,  was  grant- 
ed tne  occupation  as  a  tenant  of  a  cer- 
tain erf  thereon  at  a  monthly  rental  of 
3s.,  upon  condition  that  he  obeyed  the 
said  rules,  and  the  defendant  has  con- 
tinued since  then  to  occupy  the  said  erf 
upon  the  said  terms  and  has  paid  the 
rent  thereunder  up  to  the  end  of  the 
year  1903. 

6.  By  Rule  21  of  the  said  "  Gemeen- 
towetten"  anyone  who  will  not  obey 
the  laws  of  the  institution  is  obliged 
to  leave  the  place. 

7.  By  Rule  11  thereof  it  was  provided 
that  every  inhabitant  of  the  institution 
must  attend  the  religious  services  on 
Sunday  as  well  as  in  the  week  regularly. 
The  defendant  has  contravened  the  said 
rule  in  that  during  the  last  twelve 
months  he  has  wholly  failed  to  attend 
the  said  services. 

8.  'By  Rule  19  every  lessee  must  have 
paid  his  rent  by  the  end  of  the  year. 
The  defendant  has  contravened  the  said 
rule' in  that  he  has  neglected  to  pay  his 
rent,  namely,  the  said  sum  of  £1  168. 
due  at  the  end  of  1904,  and  the  said  sum 
is  still  due  and  unpaid.  The  defendant. 


moreover,  claims  that  he  is  not  bound 
to  pay  any  rent  whatsoever  in  respect 
of  bis  occupation  of  the  said  erf,  and 
has  incited  certain  of  the  other  tenants 
of  the  said  society  to  refrain  from  pay- 
ing  their    rent. 

9.  By  Rule  3  the  lessee  of  an  erf 
may,  with  the  permission  of  the  '^Leer- 
aar  "  (minister),  have  the  use  of  certain 
sowing  land  for  which  a  small  rental  is 
to  be  paid.  The  defendant  ha^s  contra- 
vened the  said  rule  by  entering  upon 
and  cultivating  in  the  years  1903,  1904, 
and  1905.  certain  sowing  land  on  the 
said  estate  without  the  permission  of  the 
said  minister,  and  ho  nas  continued  to 
cultivate  the  said  land  without  such  per- 
mission, and  in  spite  of  repeated  warn- 
ings, and  remonstrances  addressed  to  him 
by  or  on  behalf  of  the  minister,  and 
has  refused,  and  still  refuses,  to  pay 
any  rental  therefor. 

10.  By  Rule  5  of  the  said  "  Gemeente- 
wetten  the  occupation  of  the  said  erf 
by  the  defendant  could  bo  determined 
by  a  month's  notice  on  either  side. 

11.  By  Rule  6  it  was  provided  that 
buildings  which  a  lessee  has  erected 
on  an  erf  may,  in  case  he  receives  not- 
ice to  discontinue  the  lease,  be  pulled 
<lown  by  him,  or  he  may  sell  them,  ac- 
cording to  the  estimate  of  the  direc- 
tors to  the  Rhenish  Society. 

12.  On  or  about  the  26th  of  May,  1905, 
the  plaintiff,  as  he  lawfully  might,  gave 
the  defendant;  notice  to  quit  the  said 
erf  and  the  said  estate  generally  by  the 
1st  of  July,  1905,  the  plaintiff  at  the 
same  time  tendering  to  pay  the  value 
of  a  house  erected  on  the  said  erf  as 
ascertained  in  terms  of  the  said  rules 
or  by  arbitration  or  to  allow  the  de- 
fendant to  break  down  and  remove  the 
material  thereof,  but  the  defendant 
wrongfully  and  unlawfully  refused,  and 
still  refuses,  to  regard  the  said  notice 
or  to  quit  the  said  erf  and  estate. 

13.  In  addition  to  the  said  house,  which 
is  valued  by  the  plaintiff  at  about  £35, 
the  defendant  has  also  an  interest  by 
viitue  of  hi8  marriage  in  community 
to  his  wife,  Elizabeth  Goedeman,  in  half 
of  another  erf  occupied  in  the  name  of 
one  Eva  Balie,  and  the  plaintiff  is  will- 
ing and  tenders,  upon  the  defendant 
quitting  the  said  estate,  to  allow  him 
to  break  down  and  remove  therefrom 
the  said  house  and  any  other  structures 
or  improvements  he  may  have  acquired 
or  built  or  made  thereon,  or  in  the  al- 
ternative to  pay  him  the  said  sum  of 
£35  and  £1  tne  value  of  his  interest  in 
the  other  said  erf  or  the  value  of  the 
said  house  and  of  any  other  structures  or 
improvements  as  aforesaid  and  of  his  in- 
terest in  the  other  erf  as  may  be  as- 
sessed in  terms  of  the  said  rules,  or 
as  may  be  fixed  by  an  independent  party 
or  parties,  or  as  may  be  decreed  by  this 
honourable  Court. 

The  plaintiff,  tendering  as  aforesaid, 
claims:   (a)   A   declaration  of  rights   as 


946 


"CAPE  T1ME&"  LAW  IlBPOktd. 


beiwoen  liiinsclf  and  tho  defendant  in 
ro0i)ect  of  tho  defendant's  said  occupa- 
tion in  the  premises;  {h)  a  declaration 
that  the  said  erf  is  tho  property  of  the 
■aid  society,  and  that  tho  plaintiff  is 
entitled  to  eject  tho  defendant  there- 
from and  from  tho  naid  estate  of  Saron, 
either  upon  tho  defendant's  refusal  to 
be  bound  by  or  to  obey  any  of  the 
said  rules,  or  upon  duo  notice  (j^iven  to 
him  thereunder,  upon  payment  of  com- 
pensation as  above  tendered ;  (c)  Pay- 
ment of  the  sum  of  £1  16s.,  as  rent  afore- 
said ;  (d)  the  sum  of  £10  as  damages 
sustained  by  reason  of  the  defendant's 
wrongful  cultivation  of  the  said  sowing 
land,  his  wrongful  inciting  of  other  ten- 
ants as  aforesaid,  and  bis  contraven- 
tion of  the  said  rules  in  other  respects; 
(e)  an  order  ejecting  the  defendant,  with 
his  family  and  belongings,  from  the  erf 
occupied  by  him  and  from  the  said  es- 
tate of  Saron;  (f)  alternative  relief;  (g) 
costs  of  suit. 

Tho  declaration  in  respect  of  the  de- 
fendant  Engelbrecht   proceeded : 

5.  Among  the  persons  so  allowed  to 
reside  upon  the  said  property  was  the 
defendant,  who,  in  or  about  the  month 
of  May,  1887,  was  grairted  the  occupa- 
tion as  a  tenant  of  a  certain  erf  there- 
on (being  No.  241),  at  a  rental  of  3s.  a 
month,  <m  oondi<tion  that  he  observed 
and  wa5  bound  by  the  eaid  rules,  and 
the  defendant  has  continued  since  then 
to  occupy  the  said  erf  upon  the  said 
terms,  and  has  paid  the  rent  there- 
under up  to  the  end  of  the  year  1903. 

6.  By  Rule  21  of  the  said  "  Gomecn- 
tewetten,"  anyone  who  will  not  obey 
the  laws  of  tho  institution  is  obliged  to 
leave   the   place. 

7.  By  Rule  19  thereof,  every  lessee 
mu><t  have  paid  his  rei>t  by  the  end 
of  the  year.  The  defendant  ha«  con- 
travened the  said  rule  by  failing  to 
pay  any  rent  since  the  end  of  the  year 
1903.  There  is  Mill  due  and  unpaid  by 
him  to  the  plaintff  the  rent  in  respect 
of  the  said  erf  for  the  twelve  months 
to  the  end  of  the  year  1904,  to  wit,  the 
sum  of  £1  16s. 

8.  Tlie  plainiifF  hae  demanded  pay- 
ment of  tne  said  sum  from  the  de- 
fendant, who.  ho^yever,  refuses  to  i>ay 
the  same,  and  claims  that  he  and  his 
heirs  are  entitled  to  the  use  and  occu- 
pation of  the  said  erf  in  perpetuity 
without  payment  of  any  rent  to  the 
plaintiff. 

9.  By  Rule  6  of  the*  said  *' Gk?meen- 
tewetten,"  it  ie  provided  that  buildings 
which  a  lessee  has  erected  on  an  erf 
may,  in  case  he  received  notice  to  dis- 
continue the  lease,  be  pulled  down  by 
him  or  he  may  sell  them,  according  to 
the  estimate  of  the  directors,  to  the 
Rhenish  Society. 

The  plaintiff  claims :  (a)  A  declara- 
tion of  rights  as  between  himself  and 
the  defendant,  in  resx>ect  of  the  defen- 
dant's said  oocupation  in  the  pre- 
miaes:    (b)  a  declaration  that   the  said 


erf  is  the  property  of  the  said  sooiety, 
and  that  the  ^aintiff  is  entitled  to  eject 
the  defendant  therefrom,  aind  from  the 
said  estate  of  Saron,  upon  the  defen- 
dant's refusal  to  be  l)ouiid  by  or  to 
<>l>ey  any  of  the  said  rules,  and  that 
the  defendant's  occupation  of  tlie  said 
erf  is  dependent  and  conditional  uik>u 
his  <»l>servaitce  of  the  e^aid  rules.  in- 
cluding tho  rul€>  as  to  p;Lynient  of  rent ; 
(()  payment  of  the  feum  of  £1  16;«.  as 
rent  aforesaid ;  (d)  an  order  ejecting 
tlie  defendant  with  hi.<t  family  and  be- 
longings from  the  said  erf  and  from 
the  said  ostato  of  Saron,  by  reaaou 
of  the  defendant's  contravention  of  the 
said  rule  respecting  the  payment  of 
rent,  the  plaintiff  tendering  to  allow 
the  defendant  to  break  down  and  re- 
move from  the  said  estate  any  build- 
ings or  other  improvements  he  may 
have  acquired,  built,  or  made  tliere- 
on.  or  in  the  alternative  to  pay  him 
the  value  of  such  buildings  and  im- 
provements as  may  be  assessed  und'^r 
the  said  rules,  or  as  may  be  fixed  by 
an  independent  narty  or  parties,  or  as 
may  be  decreed  by  this  Honourable 
Court;  (e)  alternative  relief;  (f)  costs  of 
suit. 

The  plea  of  tlie  defendant  Barron  was 
as  follows : 

1.  Defendant  admits  paragrai>hs  1  and 
2  of  plaintiff's  declaration. 

2.  iX^fendaiit  admits  paragraph  3 
thereof,  but  says  that,  according  to  the 
laws  to  which  the  contract  between  tho 
parlies  is  subject,  and  which  are  here- 
inafter referred  to,  the  "Leeraar"  is 
bound  to  act  according  to  the  advice  of 
a  Raad  or  Council  to  be  chosen  (ac- 
cording to  tho  said  law**)  by  tlie  in- 
habitants every  year.  Defendant  says, 
further,  that  the  last  election  of  mem- 
bers of  the  said  Raad  took  place  about 
three  years  ago. 

3.  Defendant  admits  paragraph  4,  but 
says  that  the  laws  therein  referred  to 
were  framed  by  one  Rev.  M.r.  Kulp- 
man  for  and  on  behalf  of  the  Rhenish 
Mission  Society,  at  the  time  when 
Saron  was  originally  laid  out  as  a 
town,  and  were  contained  in  a  certain 
book,  which  was  kept  in  the  possession 
of  the  duly  authorised  representative 
of  the  Rhenish  Massion  Society  for  the 
time  being  at  Saron.  The  rules  set 
out  in  paragraphs  6,  7.  8,  and  9  of 
plaintiff's  declaration  did  not  form  part 
of  the  said  laws. 

4.  With  regard  to  paragraph  5,  de- 
fendant says  that  he  was  bom  at 
Saron,  and  that  he  has  lived  there  from 
the  time  of  his  birth,  and  that  ho  is 
living  there  at  the  present  time.  Dc^ 
fendant  denies  that  he  bound  himself 
by  any  written  agreement,  or  <^at  he 
authorised  any  parson  to  so  bind  him. 
Defendant  admits  that  he  became  a 
tenant  at  the  said  rental,  and  says,  fur- 
ther, that  the  rent  of  tlie  said  nalf-erf 
for  the  year  1905  is  not  jret  due  and 
payable.        Defendant   admits,    further, 


"CAt>fe  liM£8''  LAW  tlfet^ORtS. 


94^ 


that  liis  teiiaucy  was  subject  to  ocrfcaiu 
laws,  but  eays  that  these  laws  were 
thoee  referred  to  in  paragraph  3  here- 
of, and  not  thoee  referred  to  on  plain- 
tin  a  declajration. 

5.  With  regard  to  jwragrapha  6,  7,  8, 
and  9,  defendant  denies  that  the  Rules 
5,  6,  15.  and  21  tberedn  set  forth  formed 
part  oi  the  laws  framed  by  Rev.  Mr. 
Kulpman,  and  denies  that  ho  is  bound 
by  tlie  said  rules. 

6.  Defendant  denies  paragraph  10. 
He  admits  having  opened  a  butchery 
at  Saron  in  or  about  the  month  of  Nov- 
ember, 1904,  but  denies  that  he  did  so 
in  direct  opposition  to  and  in  defiance 
of  the  rules  bdndmg  upon  him.  He 
sajs  that  the  said  butchery  was  opened 
with  the  full  knowledge  of  the  minis- 
ter, who  consented  to  the  opening,  and 
allowed  defendant  to  complete  all  hie 
preparaitiona  for  such  openmg,  but,  he 
says  further,  that  on  the  day  before 
the  opening  the  minister  objected,  all 
the  preparations  having  in  the  mean- 
time been  completed.  Defendant  de- 
nies having  been  repeatedly  warned  by 
the  minister  to  close  the  butchery,  and 
denies  that  he  has  in  amy  way  con- 
travened any  of  the  rules  oinddng  upon 
him.  Defendant  says  that,  under  the 
rules  referred  to  in  paragiraph  3  here- 
of, the  permission  of  the  '*Leer»ar'* 
was  not  necessary  to  enable  him  to 
establish  a  butchery,  the  said  rules 
merely  requiring  notice  to  be  given 
that  the  butchery  was  to  be  opened, 
which  notice  was  duly  given  by  de- 
fendant to  the  duly-authorised  repre- 
sentative of  the  Rhenish  Mission 
Society.  Defendant  says  further  that, 
save  as  hereinbefore  set  forth,  the  first 
notice  received  by  him  in  connection 
with  his  having  opened  the  butoherv 
was  given  on  or  about  the  26th  of  April, 
1905,  which  notice  was  verbally  re- 
pudiated  by   defendant. 

7.  With  regard  to  paragraph  11,  de- 
fendant admits  having  received  the  said 
notice,  and  admits  that  he  refuses  to 
refru'd  the  said  notice  or  to  quit  the 
said  estate.  Defendant  denies  that  his 
conduct  in  so  doing  is  wrongful  and 
unlawful,  and  defendant  denies  thwt  he 
at  any  time  claimed,  or  that  he  now 
claims,    the   said    half-erf   as    his    own 

Eroperty.  Defendant  maintains  that 
e  nas  faithfully  carried  out  his  part 
of  the  said  contract,  and  that  he  is 
laiwfully  entitled  to  remain  in  imdis- 
turbed  occupation  of  the  said  half-erf, 
in  terms  of  the  contract  subsisting  be- 
tween .the  parties. 

8.  With  regard  to  paragraph  12,  de- 
fendant denies  that  £20  is  a  fair  and 
reasonable  valuation  of  his  house  and 
his  other  structures  and  improYements. 
Defendant  further  maintains  that  if 
this  Honourable  Court  should  decide 
that  plaintiff  is  entitled  to  eject  de- 
fendant (which  defendant  does  not  ad- 
mit), defemdant  is  lawfully  entitled  also 
to  compensation  for  the  loss  of  ^  the 
grazing,      planting,       and  other  rights 


secured  to  him  by  the  said  laws  re- 
ferred to  in  paragraph  3  hereof. 

9.  Save  as  above,  defendant  denies  all 
and  singular  the  allegations  in  plaintiff's 
declaration  contarned. 

As  a  claim  in  reconvention,  the  de- 
fendant alleges  that,  by  virtue  of  tlio 
contract  subsisting  between  the  parties, 
defendant  is  entitled  to  rcmoiin  in  uu- 
distrubed  occupation  of  the  said  half- 
erf,  so  long  as  ho  faithfully  carries  out 
the  provisions  of  the  said  contract,  and 
is  entitled  under  the  said  laws  to  trans- 
fer his  right  to  his  children,  or,  failing 
children,  to  any  of  defendant's  rela- 
tions by  affinity  or  consanguinity. 
W^herefore  defendant  claims :  (a)  A  de- 
claration of  rights  as  between  himself 
and  plaintiff  in  respect  of  the  said  con- 
tract; (b)  a  declaration  that  plaintiff  is 
not  en^titled  to  eject  defendant  from 
the  said  half -erf,  so  long  as  defendant 
carries  out  the  provisione  of  the  con- 
tract; (c)  alternative  relief;  and  (d) 
costs  of  suit. 

The  defendant  MuUer,  in  his  plea, 
stated  that  he  had  never  received  occu- 
pation of  the  full  extent  of  land  leased, 
and  claimed  an  abatement  of  the  rent  to 
the  extent  of  £3  2s.,  in  respect  of  such 
want  of  occupation.  He  said  that  he 
had  tendered  the  rent  for  1904,  which 
plaintiff  had  refused  to  accept  until  he 
signed  certain  new  conditions  which  he 
refused  to  do.      He  eta  ted  that  he  was 

{>re pared  to  leave  Saron,  although  not 
egally  bound  to  do  so,  upon  payment 
of  £wO,  in  respect  of  building  and  im- 
provements, and  of  grazing  rights.  In 
reconvention,  he  claimed  the  sum  of  £3 
2s.  in  respect  of^  the  want  of  occupation 
of  certain  land  included  in  the  contract 
between  the  parties. 

The  defendant,  Groedeman,  in  his  pica, 
stated  that  he  had  tendered  the  rent  for 
1904,  which  the  plaintiff  refused  to  ac- 
cept until  he  signed  certain  new  condi- 
tions. He  stated  that  he  had  been  pre- 
vented from  attending  the  society's 
church  by  the  duly  authorised  represen- 
tatives of  the  sooietv,  and  had  conse- 
quently been  compelled  to  attend  Di- 
vine service  elsewhere.  With  regard  to 
the  sowing  lands,  ho  denied  that  such 
permission  was  necessary.  He  admitted 
that  he  had  had  the  use  of  certain  sow- 
ing land,  and  that  under  the  said  laws 
one-half  of  the  quantity  sowed  had  to  be 
paid  to  the  society's  duly  authorised  re- 
presentative, and  said  further  that  he 
nad  tendered  the  said  one-half  to  Mr. 
Hartwig,  the  duly  authorised  represen- 
tative of  the  society,  but  the  said  Mr. 
Hartwig  refused  to  accept  the  same. 
With  regard  to  paragraph  12,  defendant 
admitted  that  he  received  the  said  no- 
tice, and  that  he  refused  to  regard  the 
said  notice  or  to  quit  the  said  estate. 
He  denied  that  his  conduct  in  so  doing 
was  wrongful  or  unlawful.  With  reg^ard 
to  paragraph  13,  defendant  ^  admitted 
that  he  nad  the  said  interest  in  half  of 
another  erf,  but  denied  that  £35  and  £1 


960 


n 


cAi»E  TIME6"  Law  kEPOktS. 


in  this  colony,  and  the  respondent  has 
never    resided    in    this    colony.  The 

question  of  domicile  will  have  to  be 
fought  out  at  the  trial.  You  must 
not  teke  it  as  settled  by  this  c«Ae.  It 
ift  quite  possible  thet  the  Court  mav 
refuse  your  order.  Leave  to  sue  will 
be  firranted,  citirtion  to  bo  returnable  on 
tl»e  1st  February,  personal  eorvioe  to 
be  effected. 


SUPREME  COURT 


FIRST   DIVISION. 


[Before   the  Actin;;  Chief  JuHtice,  the 
Hon.  Sir  John  Buchanan.] 


f        19U5 
J^  parte  DE  VILLIERS.      J  y^^.    jOth. 

Mr.  Van  Zyl  moved  as  a  matter  of 
urgency,  on  the  petition  of  Rocco 
Oatorxia  de  Villiers,  for  an  order  of 
ejectment  against  Wm.  John  Price  from 
certain  licensed  house  and  premises  in 
Main-street,  Paarl,  known  as  Free- 
man's Hotel.  Petitioner  said  that  he 
entered  into  a  contract  of  lea^e  with 
the  respondent  on  the  23rd  August  last, 
and  on  the  let  September  placed  him 
in  possession  of  the  said  house  and  pre- 
mises. From  that  time  till  now  Price 
had  remaiiied  in  undisturbed  possession, 
but  he  had  failed  during  the  entire 
period  to  pay  the  rent  due  or  any  frac- 
tion thereof.  The  rent  was  £20  per 
month.  Under  clause  9  of  the  lea^e, 
if  the  lessee  became  two  montbe  in 
arrear  with  his  rent,  the  lessor  should 
have  the  right  to  terminate  the  lease 
and  enter  upon  pofisession.  Petitioner 
had  been  subjected  to  loss,  damage, 
and  inconvenience  on  account  of  the 
non-payment  of  the  rent  by  the  said 
Price,  and  had  contracted  to  relet  the 
said   house  and   premises. 

[Buchanan,  A.  J.  C. :  Where  is  the 
urgency?] 

Mr.  Van  Zjrl :  A  new  contract  has 
lieen  entered  into  with  another  client, 
and  applicant  wishes  to  put  the  new 
lessee  mto  possesftion,  and  it  is  im- 
possible to  get  Price  out  of  possession. 
The  contract  has  been  broken  for  some 
months. 

[Buchanan,  A.  C.  J. :  Tlie  set-down 
must  not  be  interfered  with  by  a  plea  of 
urgency,  unless  there  be  some  urgency.] 

Mr.  Van  Zyl :  I  can  only  say  I  was 
instructed  by  my  client  that  there  was 
some    urgency. 


I 


]Buchanan,  A.  C  J. :  I  do  not  see 
where  the  urgency  arises.  Unless  there 
is  urgency,  these  applications  will  not 
bo  heard.  TRo  petitioner  haa  had  plenty 
of  tnme,  and  he  might  have  put  the  mat- 
ter down  for  the  last  motion  day.[ 

Mr.  Van  Zyl:  He  is  anxiou<»  to  put 
the  other  lessee  in  possessioo  by  the 
1st  December.  He  did  not  move  the 
Court  before,  because  he  wanted  to  give 
the   present  lessee  some  time. 

[Buchanan.  A.  C  J. :  Well,  he  could 
give  the  present  lessee  a  little  more  time, 
There  is  no  urgency  in  this  matter. 
However,  it  wmII  only  be  waste  of  tinic 
to  go  over  the  case  again,  and  we  will 
dispose  of  it  now.] 

Mr,  Van  Zyl  (in  answer  to  the  Court) 
said  that  the  prayer  was  for  an  eject- 
ment, and  to  com(>el  Price  to  act  in 
terms  of  the  said  contract  of  lease. 

Buchanan,  A.  C.  J.,  granted  an  order 
directing  respondent  to  give  up  posses- 
sion of  the  premises,  and  to  re-transfor 
the  liquor  licence  ivrthin  seven  days  from 
the  service  of  the  order  of  the  Court, 


MYBURGH  V.  DECKER. 


J  Nov.  2t>th. 
C     .,     22nd. 


Serrilus  flmtunU  rrcipiendi. 

Although  a  lower  proprietor 
in  hound  to  receive  on  hu  Icuid 
frtich  water  at  Jinde  its  way 
there  fivm  the  land  of  an  upper 
proprietor  by  natundflow :  he 
i«  not  bonnd  to  receive  wtUer 
which  the  upper  proprietor  htm 
collected  by  artificitd  drainage 
at  any  point  of  his  land  at 
which  the  upper  proprietor 
may  elect  to  discharge  it. 


This  was  an  action  brought  by  Willem 
Hendrick  Myburgh.  tailor,  Paarl, 
against  Gustav  Adolph  Albert  Decker, 
aerated  water  manufacturer  and  dealer, 
also  of  Paarl,  for  a  declaration  of  rights 
as  to  the  boundary  line  between  their 
properties,  for  the  restoration  of  throe 
dianiage      furrows,    and    for    damages. 

Plaintiff,  in  liis  declaration,  said  that 
for  a  period  far  exceeding  30  years  the 
southern  portion  of  his  property  had 
been  drained  by  a  furrow  running  along 
tjie  edge  of  the  plaintiffs,  and  over 
that  of  the  defendant's  property.  Re- 
cently the  defendant  had  wrongfully  and 
unlawfulljr,  and  without  the  consent  of 
the  plaintiff,  closed  up  the  furrow  from 
a  podnt  marked  *'  c "  to  **  b,'*  and  con 
structed  a  deviation  from  "c"  to  **d" 
The  eastern  portion  had  likewise  beet 
drained  for  more  than  30  yeai«  by  simi 
lar    furrows  ruU'ning    over    defendant's 


CI 


CAPS  iliiE8 "  LAW  REPdilTft. 


9^\ 


property,  and  marked  '*  i  "  and  "  i  g." 
rhciie  furrows  had  «dfio  been  wrongfully 
and  unlawfully  closed  by  the  defendant. 
By  Toason  of  the  said  acts,  the  eouthern 
and  eastern  portions  of  the  plaintiff's 
property  had  been  reduced  to  a  state 
of  etagnation  and  marsh,  which  ren- 
dered cultivation  impossible.  Plaintiff 
said  that  he  had  sustained  damages  in 
the  sum  of  £100.  Further,  plaintiff  »aid 
tiiat  the  boundary  between  hi^  and  de- 
fendant's property  on  the  eoutheirn  side 
was  a  line  running  along  the  side  of  the 
said  furrow  marked  '*a"  and  "  b," 
and  that  the  plaintiff's  prox>erty  had 
been  encroached  upon  by  the  defendant 
by  constructing  a  fence  running  in  a 
straight  line  from  the  point  "a"  to 
where  it  orosaed  the  plaintiff's  boundary 
at  a  point  marked  "  k,"  two  feet  within 
the  plaintiff's  ^operty.  Plaintiff  claim- 
ed a  dedanation  of  rights  as  to  the 
true  boundary  line  between  his  and  de- 
fendant's property,  an  order  that  the 
defendant  be  required  to  reooen  and  re- 
store the  said  furrows  to  their  former 
states,  £100  damages,  alternative  relief, 
and  costs  of  suit. 

Defendant,  in  his  plea,  admitted  that 
a  furrow  ran  along  the  northern  boun- 
uar^  of  the  defendant's  property,  but 
denied  that  the  ooutheru  and  eastern 
portions  of  the  plaintiff's  property  ha. I 
been  drained  for  a  period  of  thirty 
years,  as  alleged.  Ho  denied  that  the 
plaintiff  was  entitled  to  the  use  of  the 
said  furrow  to  drain  hie  property,  either 
by  right  acquired  as  prescriptive  user 
or  right  acquired  in  any  other  way.  He 
said  that  in  or  about  June,  1905,  plain- 
tiff or  his  servants  or  agente  dug  a 
trench  from  or  about  the  point  "f" 
over  his  (plaintiff's)  property,  with  the 
object  wrongfullv  and  unlawfully  of 
draining  his  land  into  his  (defendant's) 
aforesaid  furrow.  In  or  aoout  1901  a 
certain  person  or  persons  wrongfully 
and  unlawfully  cut  a  trench  at  or  about 
the  spot  marked  **  c  "  on  the  plan.  De- 
fenduit  admitted  having  closed  up  the 
furrow  "o"  to  "b"  and  the  furrow 
*'i,"  and  constructed  the  deviation,  and 
said  that  he  had  acted  lawfully  and  m 
of  right.  He  said  that  the  true  boun- 
dary line  waa  on  the  plaintiff's  side  of 
the  fence  referred  to  in  paragraph  6  of 
the  declaration.  He  further  aaid  that 
be  and  his  predeoessors*in -title  bad  for 
30  yean  ancf  upwards  occupied  his  (de- 
fendant's) property  up  to  the  said  fence, 
and  that  he  was  entitled  to  such  pro- 
perty up  to  auch  fence  by  reaaon  of  the 
fact  that  it  woa  within  the  boundary 
line,  as  well  as  hy  Drescriptive  ueer.    He 

Knaycd  that  the  plaintiff^s  claim  might 
e  dismissed)  with  costs. 
Mr.  Van  Zyl  (with  him  Mr.  Gutsche) 
for  plaintiff:  Mr.  Benjamin   (with     him 
Mr.  W.  P.  Buchanan)  for  defendant. 

Frederick  MoUer,  survevor,  Baarl, 
gave  evidence  in  support  of  the  plain- 
tiff's claim  as  to  the  correct  boundary 
line   between    the   parties,   as,  he    con- 


sidc'rcd,    it  was   discl<»o<;l   by   a  diagram 
ot   1868. 

John  L.  de  Yilliers,  engineer,  resid- 
ing at  the  Paarl,  stated  he  was  engaged 
by  plaintiff  to  take  certain  levels  of  the 
propertv,  which  was  now  iu  dispute 
The  plans  (produced^  were  arranged 
by  witness.  Taking  the  Dtopartv  rua 
ntng  from  west  to  east  (from  the  main 
stn'eet  t-owards  the  river),  it  sloped  in 
that  direction. 

OroBs-examined    by    Mr.     Benjamin : 
Witness  qualified  in  London  and      Bir- 
mingham. 

The  plaintiff  stated  the  pro|>erty  in 
dispute  wa6  purchased  by  him  in  July, 
190d.  The  furrow  was  then  in  existence, 
and  there  was  a  fence  ruiming  alongside 
it.  He  did  not  live  on  the  property. 
Last  year  he  planted  trees  on  the  farm. 
When  he  began  to  do  so,  the  defendant 
told  him  the  ground  was  verf  wet  for 
tree  planting,  and  witness  explained 
that  it  was  through  want  of  draining, 
and  asked  him  to  open  the  trench.  De- 
fendant refused  to  do  so.  Witness  open- 
ed the  furrow,  and  on  going  hack  found 
it  closed.  The  closing  up  of  the  furrow 
had  flooded  hu  land,  and  had  killed 
the  trees  that  he  had  planted. 

In  cross-examination,  witness  said  he 
had  recently  purchased  the  pronerty 
next  to  the  farm  in  question.  There 
was  another  furrow  on  the  farm,  but 
it  was  no  good.  Witness  denied  having 
been  told  by  the  vendor  of  the  property 
that  it  was  impossible  to  cultivate  the 
ground.  Witness  had  seen  a  nice  garden 
there  six  years  ago. 

R.  Boyes.  surveyor,  having  given  evi- 
dence in  reference  to  the  1858  diagram, 

Abraham  Cornelius  de  yillienj,  sou 
of  a  former  owner  of  plaintiff's  ground, 
said  that  the  furrow  **a  b "  had  been 
in  existence  as  long  as  he  could  remem- 
ber. The  furrow  used  to  bo  kept 
clean  both  by  witness's  father  and  the 
neighbouring  owner.  The  properties 
could  not  do  without  the  furrow.  The 
entire  length  of  the  sluit  from  the  street 
to  the  river  was  about  400  yards.  At 
the  part  **  h  "  and  *'  i,"  the  furrow  was 
blocked,  in  consequence  of  Mr.  Decker 
having  planted  willows.  The  furrows 
*'i"  ana  **  i  g "  had  been  in  existence 
over  thirty  years,  up  to  the  time  of  the 
e^ate  beinji  sold  after  his  mother's 
death  in  1902.  He  remembered  having 
cleaned  the  furrows  about  six  years  ago. 
Up  to  1902  neither  Decker  nor  his  pre- 
dec«s.sor-in-title  Mostert  disputed  the 
right  of  witness's  people  to  the  use  of 
the  furrows.       Witnes**   had   always   re- 

Sarded  the  middle  of  the  sluit  as  tlie 
oundary  between  the  properties.  There 
wa«  formerly  a  little  wire  fence  nearer 
the  sluit  than  the  present  fence,  but 
it  completely  disappeared  in  190S.  At 
the  present  time  plaintiff's  ground  was 
in  such  a  marshy  state  that  it  was  im- 
possible to  grow  anything  on  it.  "  For- 
merly," said  witnofis,  "  I  had  the  graiid- 
est  vegetables    there    and   the    prcttiMt 


"^ 


<l 


CAt»k  TkMte"  Law  hitt^otttft. 


flower  garden  iii  the  whole  of  the  Paai4. 
It  ia  no  moral  use  to  attempt  to  ^row 
anything  there  unless  tne  sluit  ia 
opened. 

Croaa-examined :  Witneaa  was  not  on 
very  unfriendly  or  unbrothcrly  ternvs 
with  Mr.   Decker. 

Mr.  Benjamin :  Are  you  not  on  friend- 
ly terms  with  Mr.  Decker? 

Witness  (after  come  hesitation) :  I  am 
not. 

Mr.  Benjamin:  Why  didn't  you  saj 
so  at  first* 

Witness:    Thats   my   buaineas. 

Further  cross-examined,  witness  ad> 
mitted  that  he  quarrelled  with  Mr. 
Decker  about  3^  years  a^o.  when  Mr. 
Docker  objected  to  witness  cutting 
down  a  pomegranate  hedge  running 
along  the  western  boundary  of  the  lat- 
ter's  property.  There  was  some  ques- 
tion about  a  furrow  from  *'  i "  to  '*  g." 
Witness  proposed  to  deepen  the  furrow, 
and  Decker  consented.  The  fence  was 
not  on  the  ground  in  1902,  but  the  old 
oak  post  was  there  at  that  time. 

Godlieb  Wilhelm  A.  de  Villiors,  of 
Stellenbosch.  a  former  owner  of  the  pro- 
perty in  question,  said  he  considered 
that  the  ground  had  been  seriously 
depreciated  in  value  by  reason  of  the 
acts  of  the  defendant.  The  only  way 
to  drain  the  property  was  over  Mr. 
Decker's  land,  unless  tncy  were  going  to 
carry   the   water   uphill. 

Antonie  Spannenberg  (aged  74  years) 
and  Ii<aac  Jacobus  de  Villiers,  both  of 
the  Paarl,  also  gave  evidence. 

Michicl  Christian  Vos,  examiner  df 
diagram?,  Surveyor-GeDeral's  Depart- 
ment, said  that  his  duties  were  to  in 
vestigate  all  diagrams  of  grants  or 
transfers.  He  had  inspected  the  dia- 
gram of  1858  showing  a  sub-division  of 
the  property  in  question.  In  applying 
the  diagram  he  should  start  from  the 
southern  side,  because  there  were  estab- 
lished beacons  there. 

Mr.  Van  Zyl :  But.  say  vou  were  to 
start  from  the  northern  side  from  this 
wall,  and  you  did  not  allow  for  the 
spaces? 

Witness:  Bdt  you  have  to  do. 

Mr.  Van  Zyl :  Now  look  at  Mr.  Bis- 
.Hi>t\s  diagram  (prepared  in  support  of 
the  defendant's  case),  can  you  say  whe- 
tiiiT  he  has  allowed  any  8{)aces  at  all? 

Witness :  His  lino  there  is  directly  up 
t,>  the  edge  of  the  wall. 

In  cross-examination,  witness  said  that 
the  diagram  of  1856  from  which  the 
1858  diagram  had  been  deduced  did 
not  show  any  space  between  the  wall. 
The  ono  showed  a  clear  gap  up  to  the 
wall,  and  the  other  did  not.  Tlie  sub- 
divisional  surveyor  had  put  the  boun- 
dary up  to  the  wall.  In  preparing  tho 
diagrams  they  had  to  bo  guided  very 
largely  'oy  what  they  found  on  the 
ground. 

Mr.  Benjamin  put  it  to  witness  that 
the  sub-diyiaional  surveyor  had  made 
an  error  in  preparing  the  diagram? 


Wkneaa :  That  is  not  for  me  to  say. 

By  Buchanan,  A.  C.  J. :  Witness  was 
prepared  to  draw  two  parallel  lines  show- 
mg  a  distance  of  two  feet  to  the  scale 
shown  in  the  diagram  of  1858. 

Arend  Adams  (54).  labourer,  a  life- 
long resident  at  the  Faarl,  spoke  to  the 
furrows  which  were  in  existence  white 
he  was  employed  by  Mr.  De  Villiers,  a 
farmer  of  plaintiff's  land,  before  he  had 
attained  tne  age  of  21  years.  The 
ground  was  now  very  different  from 
what  it  formerly  was,  being  very  wet 
and  unfit  for  cuitiyation,  because  of  the 
absence  of  drainage.  The  ground  was 
formerly  the  site  of  a  vineyard. 

Jacob  Petersen  (66),  caretaker  of  tho 
park  and  sporting  grounds  at  the  Paarl, 
also  ^ave  evidence  on  behalf  of  tho 
plaintiff. 

Mr.  Van  Zyl  closed  his  case. 

Basset t  Gerald  Bisset,  sun'eyor,  said 
that  he  found  on  the  ground  an  old 
beacon,  and  an  old  oak  post.  There 
was  also  a  quince  and  willow  hedge. 
He  thought  there  had  been  an 
error  of  draughtsmanship  in  the  dia- 
gpram  of  1856,  trom  which  the  sub-diviK- 
lonal  diagram  was  framed.  Witneskh 
went  on  to  explain  the  details  of  a  plan 
which  he  had  prepared  of  the  properly, 
and  tho  pegs  wnicn  he  had  found  on  the 
plaintiff's  ground. 

Cross-examined  by  Mr.  Van  Zyl:  He 
did  not  think  it  necessary  in  preparing 
the  survey  to  go  to  the  neighbouring 
proprietors  to  ascertain  where  the  pegs 
were.  The  pegs  were  pointed  out  to 
him  by  Mr.  Decker.  It  was  customary 
for  surveyors  to  go  to  the  neighbouring 
proprietors  if  they  were  unable  to  locate 
the  pegs  themselves,  or  if  there  was  nu 
one  at  hand  to  do  so.  He  made  the 
survey  of  the  ground  in  a  period  of 
about  three  hours.  He  only  took  a 
few  of  the  levels  at  that  time.  It  was 
part  of  the  surveyor's  business  to  take 
levels.  He  would  dintinctiy  put  his 
levels  against  thoEe  of  an  engineer, 
even  witli  the  short  time  he  had  been 
on  the  ground.  He  did  not  think  it 
necessary  to  go  into  the  very  wet  por- 
tions of  the  plaintiff's  ground;  he  went 
to  the  corners,  and  he  saw  tho  ground. 

Buchanan,  A.  C.  J.,  remarkiHl  thai 
there  was  an  absolute  similarity  between 
the  surveys  of  Mr.  Bi.sset  and  Mr.  Mol- 
lor,  the  only  difference  being  iu  the  plot- 
ing  of  the  ground. 

Mr.  Van  Zyl:  Yes,  Mr.  Bii»set  has 
made  an  oirror  of  judgment  in  plotting 
the  ground. 

Arthur  Georffo  Baker,  surveyor,  in 
the  employ  of  Mr.  J.  Bibset,  s^ke  to 
having  prepared  the  plan  on  which  the 
levels   were   marked. 

The  defendant  said  that  when  he 
bought  the  property  in  1876,  there  was 
a  furrow  running  alongside  the  fence 
from  "  a "  to  "  b,"  his  property.  Tho 
furrow  was  then  6  in.  deep,  but  in 
1903  it  was  deepened,  and  was  now 
about  3^  ft.,  the  alteration  having  been 


II. 


cApfe  tlMES''  LAW  ItEPOttTa 


m 


made  6o  aa  to  deal  with  the  wat«r  from 
the  springs  in  the  Market-square.  When 
he  purchased  the  property,  there  wad 
no  croes-furrow  running  in  connection 
with  "a  b."  In  May,  1902,  witness 
found  that  Abm.  C.  de  Villiers  had  cut 
a  cross-furrow  to  "  i,"  and  another  »t 
the  south.  Mr.  De  Villiers  said  that 
he  hoped  or  supposed  witness  would 
not  have  any  objection  to  his  having 
cut  the  furrow.  Witness  said  to  him: 
''  How  do  you  daxe  to  do  such  a  thing 
without  obtaining  my  consent?"  and 
told  him  ihaJt  he  would  fill  up  the  open- 
ing at  "  i,"  and  cover  up  the  sluit  as 
well.  About  fourteen  davs  afterwards 
he  found  Mr.  Abm.  0.  de  Villieirs  again 
trespassing  on  the  ground.  Mr.  De 
Villiers  was  trimniing  the  pomegran- 
ate hedge,  which  was  on  witness's 
ground.  Witness  protested  against  his 
conduct,  and  told  nim  that  if  he  (Mr. 
Do  Villiers)  persisted  in  trespaeaing, 
he  would  have  to  bring  him  to  a  court 
of  law.  Witness  covered  the  fuirow, 
and  it  had  remained  covered  ever  since. 
There  had  been  very  little  cultivation 
on  Myburgh's  land,  which  was  simply  a 
waste  piece,  where  caUle,  horses,  and 
mules  were  grazing.  He  had  been 
nearly  thirty  years  at  the  Paarl,  and 
he  had  not  known  Myburgh's  ground 
l^ed  as  garden  ground. 

Cross-examined :  Witness  repaired  the 
fence  on  the  ground  in  1902,  but  it  was 
not  a  now  fence  that  he  then  put  down. 
There  were  three  furrows  that  he  had 
t-o  keep  open.  The  first  was  from  the 
Market-square,  running  through  his 
yard.  The  second  received  the  water 
from  Mr.  Gribble's  place.  The  third 
was  the  old  original  furrow  which  they 
found  on  their  title-deeds  of  1813.  and 
which  took  the  water  from  the  spring. 
Tlie  water  from  Mr.  Gribble'»  property 
went  through  '*  a  b,"  but  witness  de- 
nied that  plaintiff  was  entitled  to  tend 
the  water  from  his  land  down  that  fur- 
row. He  denied  that  the  water  was 
standing  stagnant  on  the  southern  part 
of  the  plaint iff^s  property  at  the  pre- 
sent time.  It  forinerly  stood  stagnant, 
because  plaintiff  did  not  keep  open  the 
furrow.  The  slooe  was  from  south  to 
north,  and  Mr.  Myburgh  could  have 
drained  to  the  willow-tree  furrow.  Wit- 
ness wasi  not  a  diffieidt  person  to  get  ou 
with.  He  admitted^  having  had  some 
diaputo  with  Mr.  Gribble,  but  it  was 
because  the  latter  had  sent  his  dirty 
water  down  the  furrow. 

Mr.  Van  Zyl:  In  wha*  way  would 
you  have  been  prejudiced  if  you  had 
allowed  the  water  from  Mr.  Myburgh's 
land,  to  go  into  "a  b"? 

Witness :    Ho  has  no  right  to  it. 

Further  cross-examined:  Witness  had 
offered  £100  to  Mr.  Myburgh  for  his 
ground.  It  was  after  he  had  made 
the  offer  that  he  closed  the  furrow  **  c 
b."  He  bad  not  tried  to  f^et  a  street 
through  Mr.  Gribble's  or  plamtiff's  land 
to  his  property. 


Re-examined:  The  plaintiff  made  the 
furrow  after  witness  had  made  the  offer 
to  purohaae  the  ground. 

Gustav  Adolph  George  Decker  (bro- 
ther of  the  defendant)  and  two  coloured 
men  also  gave  evidence. 

Mr.  Benjamin  closed  his  case. 

Mr.  Van  Zyl  said  that  there  wcd 
really  four  ponits  at  iissuc  in  this  oa.>o. 
One,  and  the  principal,  was  tho  open- 
ing of  the  furrow  "a  b "  from  the 
pomt  "  c  "  to  **  b,"  because,  unless  this 
furrow  were  opened,  the  drains  "  i '* 
and  "  i  g "  would  be  of  no  use,  and 
the  rectification  of  the  boundary  could 
be  of  no  use  to  the  plaintiff's  propertjr. 
Counsel  went  on  to  argue  that  the  evi- 
dence called  for  his  client  clearlj  show- 
ed that  this  furrow  had  been  m  exist- 
ence for  a  period  of  more  than  thirty 
years,  and  that  plaintiff  was  entitled 
by  prescription  to  use  it.  Defendant 
admitted  that  thi^  furrow  *' a  b"  bad 
been  in  existence  from  time  imme- 
morial, and  he  further  admitted  th»t 
he  had  to  keep  open  three  furrows,  but 
he  said  that  this  furrow  '*  a  b "  had 
onlv  been  9  inches  deep,  and  that  it 
had  to  be  kept  open  for  Gribble's  pro- 
perty. The  point  in  dispute  was  the 
right  of  the  plaintiff  to  use  this  furrow 
as  a  drainage  furrow  for  his  ground. 
Upon  this  point,  there  was  a  direct 
conflict  of  evidence.  What  tho 
plaintiff's  witnes^s  had  said  had  been 
absolutely  denied  point  for  point  by 
the  witnesses  for  tne  defence.  Now, 
there  could  be  no  mistake  in  this  case. 
It  was  a  case  where  there  must  be 
deliberate  and  wilful  Ij^ing  on  tlie  one 
side  or  the  other,  and  it  was  his  (coun- 
seFs)  uni)lea£aut  duty  to  ask  his  lord- 
ship, sitting  as  a  jury,  to  say  which 
of  the  two  sets  of  witnesses  had  com- 
mitted ped'jury.  in  this  case.  Counsel 
proceeded  to  deal  with  tho  evidence 
called  on  both  sides,  and  said  tltat, 
while  the  plaintiff  had  called  men  who 
had  no  possible  iivterest  in  the  result, 
tlic  defendant  had  not  got  a  single  dia 
interested  witness,  he  had  not  got  a 
single  predecessor-in-titie,  and  ho  had 
not  got  a  single  neighbour  to  give  evi- 
dence. He  went  on  to  argue  that, 
taking  all  the  probabilities  into  con- 
sideration, the  witiie«ses  called  for  tho 
plaintiff  were  entitled  to  credence.  Mr. 
Van  Zyl  also  discuKucd  at  some  len^tli 
other  aspects  of  the  case  in  relation 
to  the  claim  for  a  declaration  as  to  the 
boundary,  and  the  restoration  orf  the 
furrows  "  i  "  and  "  i  g." 

Without  calling  upon  Mr.  Benjamin, 

Buchanan.  A.  V.  J.:  The  pro- 
perty of  plaintiff  and  defend- 
ant formerly  oclonged  to  one  pro- 
prietor. In  1858  a  portion  of  the  pro- 
perty was  cut  off,  and  has  been  now 
called  lots  "a"  and  "  b."  Thin  sub- 
division was  apparently  made  because 
one  part  waa  freehold  and  the  other  waa 
quitrent  property,  and  was  placed  in 
one  diagram.       That  diagram  was   at* 


964 


CI 


CAPfi  ThIfeS"  Law  kEi^oR+6. 


tacliod  to  a  deed  of  tr&iuifcr  dated  July, 
1858.  On  the  l&tid  so  cut  off,  marked 
"  a  **  and  '*  b,"  a  oertaio  aprinff  arises 
towards  the  northern  part  of  tne  pro- 
perty. This  spring,  upon  a  survey  by 
Mr.  Bisset,  appears  to  drain  into  a  marsh, 
and  below  the  m&xish  on  the  northern 
property  waa  a  furrow  conveying  the 
water  of  the  spring  and  marsh  down 
over  the  defcnaant  a  property  towards 
the  Berg  River.  Th«t  furrow  is  srtill 
open,  and  it  is  not  in  queeiton  in  this 
case.  In  1903  the  lot  ^'a"  and  **  b  " 
is  for  the  first  time  sub-divided,  and 
the  southern  portion  is  cut  off,  and 
now  belongs  to  the  plaintiff.  The  de- 
fondant's  boundary  line  runs  along  a 
i3ortion  of  the  (southern  boundary, 
and  the  defendant's       property 

is  also  the  boundary  on  the 
eastern  aide  of  ^  the  plaintiff's 
property.  The  plaintiff  claims  a  de- 
claration as  to  the  boundary  fence  on 
the  southern  side  of  his  property  be- 
tween ■himself  and  defendant,  and  he 
claims  a  right  to  use  a  drain  on  the 
defendant's  property  on  the  «outhcrn 
side,  and  he  also  claims  a  right  to  use 
a  drain  on  the  eastward  side,  aleo  on 
the  defendant's  property.  The  first 
question  raiaed  in  the  declaration  h  as 
to  the  true  boundary  line  between  plain- 
tiff and  defendant.  Learned  counsel 
has  referred  to  the  fact  that  there  is 
a  direct  conflict  of  testimony  between 
the  parties,  and  he  has  said  that  the 
Court  cannot  deside  this  question  with- 
out attributing  pcrjurv  to  the  one  side 
or  the  other.  The  Court  has  no  such 
wiah  to  impute  perjury  as  that.  If  wo 
look  at  the  facts,  we  find  that  what  the 
plaintiff's  witnesseti  arc  speaking  about 
IS  a  state  of  affairs  which  existed  some 
time  ago,  and  which  does  not  exist  at 
the  prcHont  moment.  It  is  not  as  though 
they  were  speaking  of  what  ia  the  fact 
now,  but  what  was  the  fact  some  years 
before,  and  it  is  quite  eaay  for  persons 
to  be  mistaken  as  to  what  they  believed 
existed  in  former  yeans.  TaJce  the  old 
gentleman,  Mr.  Spannenberg,  who  is 
said  to  have  one  leg  in  the  grave.  Well, 
lie  is  a  hearty  old  gentleman,  and  I 
hope  he  noay  live  for  years  yet,  but 
Htill  he  is  an  illustration  of  the  point. 
He  aaid  that  lie  was  once  in  his  garden 
iKHiie  twelve  years  ago,  and  he  looked 
over  the  hedge,  and  no  compared  what 
be  »ays  he  saw  then  with  what  exists 
now.  It  would  be  ridiculous  to  impute 
i>erjury  to  Mr.  Spannenberg,  in  what 
lie  states.  He  spoke  what  ne  believed 
to  be  the  truth,  but  he  was  speaking 
of  something  he  saw  some  years  ago, 
and  comparing  it  with  what  he  saw  re- 
cently. That  explains  the  discrepancy 
in  th«  evidence,  without  imputing  per- 
jury to  the  one  side  or  the  other.  In 
this  ease  we  have  the  actual  exiating 
state  of  facta  to  start  with,  and  thia 
existing  srtate  of  facts  is  aigainst  the 
plaintiff  on  all  the  claims  that  be  makes 
m  this  caae.     Take,   firvt,   the  question 


of  boundary.  The  boundary  is  defined 
on  the  southern  side,  between  pkuntiff 
and  defendant,  by  an  existing  fence. 
The  defendant,  who  has  been  in  pos- 
session of  the  property  for  29  years, 
says  that  he  came  on  to  the  property, 
and  has  been  there  ever  since.  There 
has  been  no  survey  between  1858,  and 
the  sub-division  made  to  give  transfer 
to  the  plaintiff,  but  it  must  be  boriK) 
in  mind  that  thia  sub-division  diagram, 
which  was  then  made  by  a  surveyor, 
was  made  not  at  the  instance  of  the 
defendant,  but  at  the  instance  of  the 
plaintiff  and  his  predecessor-in-titie,  and 
m  that  diagram  it  is  clearly  laid  down 
what  the  figure  as  repre^nted  by  the 
old  diagram  is,  and  also  clearly  laid 
down  what  the  beacons  on  the  ground 
are.  The  beacons  on  the  ground  the 
surveyors  agree  coincide  with  the  fence 
which  is  there  existing  at  the  present 
time.  Now,  to  say  that  the  old  original 
diagram  must  be  accepted  in  face  of 
this  occupation,  of  this  recognised  posi- 
tion of  beacons  which  were  recognised 
at  the  time  plaintiff  bought — to  say 
tnai  this  occupation,  which  has  lasteid 
for  nearly  thirty  years,  can  now  be 
upset,  I  think  no  court  could  in  justice 
do.  Mr.  Decker  says  he  has  been  there 
all  the  time  since  he  bought,  and  this 
evidence  is  corroborated  strongly  by  the 
diagram  made  when  plaintiff  bought 
I  am  bound  to  say  that  the  fence  was 
selected       as       the       boundary  be- 

tween the  two  parties.  With  re- 
fard  to  the  paragraph  of  the 
eolaration,  ther^ore,  as  to  the 
boundaries  between  the  plaintiff  and  de- 
fendant, the  evidence  convinces  me  that 
the  boundary  is  according  to  the  red 
line  shown  on  the  diagram  attached  to 

Plaintiff's  title.  That  I  take  it  on  Mr. 
[oiler's  plan  is  '*a.k."  Then,  doaliug 
with  the  furrow  outside  the  plaintiff's 
boundary,  which  is  the  next  claim,  tlie 
plaintiff  claims  access  to  this  furrow. 
He  lisB  never  had  access  to  it.  He  sajrs 
that,  as  proprietor  of  the  ground,  his 
freehold  entitles  him  to  acoess.  I  think 
that  the  defendant's  statenient  is  correct 
thait  this  furrow  was  orisrinally  a  very 
small  furrow,  a  few  inches  in  depth, 
and  that  it  carried  the  water  down  in 
defendant's  land  to  the  river.  I  am 
not  convinced  on  tlie  evidence  tliat  tlio 
plaintiff  has  any  right  by  prescriptibu 
to  the  user  of  this  furrow.  There  may 
have  been  occai^ional  access  to  this  fur- 
row, but  that  there  has  been  constant 
user  of  this  furrow  for  the  d-rainage 
of  plaintiff's  land  I  am  not  oonvinoed. 
There  is  no  doubt  that  wlien  one  piece 
of  ground  lies  naturally  below  the  other 
the  lower  lying  proprietor  is  bound  to 
receive  any  water  that  ^oes  to  him. 
But  that  is  a  different  thing  from  say- 
ing that  the  upper  proprietor  has  a 
right  to  collect  all  the  drainage  on  his 
ground  and  discharge  it  on  tne  lower 
lying  ground  at  any  specific  point,  hatxit- 
ing  at  the  levels  taken,  I  am  not  satis- 


"OA^E  TIMfiS"  lAW  BEPOBTH 


9^ 


fied  thai  any  drainage  would  natuvally 
go  from  the  jproperty  of  the  plaintiff  on 
to  the  defendant's  land  on  the  southetrn 
boundary.     The  levels  show  a  fall  fiom 
the  west  to  the  east,  but  the  levels  do 
not   flhow   that   there  is   a    fall    or     a 
marked  fall  from  the  north  to  the  south. 
Taking  the  croM  sections  of  the  levels 
given   by  Surveyor  Biaeet,   higher      up 
tne  ground,  the  ground  is  almost  level, 
or.  if  anything,  slightly  sloping  towards 
the  centre  of  the  plaintiff's  ground,  cer- 
tainly not  from  plaintiff's  ground  to  the 
defendant's    ground.    There    is    a    fall 
from  the  west  to  the  ea^t,  but  not  from 
the  north  to  the  south.    Plaintiff's  en- 
gineer, who  haa  taken  the  levels  on  the 
■outhem  boundary,  discovers  the  fall  be- 
tween plaintiff's  northern  and  southern 
boundery  to  be  .04  of  a  foot,  something 
less   than  half   an  inch.       The   defend- 
ant's levels  taken  by  Mr.  Bissefc  and  Mr. 
Baker  on  the  other  hand  are  not  taken 
at  exactly   the   same  point  where   Mr. 
De  VilUers  has  taken  lua  levels.    There 
is  no  natural  drainage  from  Myburgh'a 
property  from  the  north  to  the  south. 
There  is  a  distinct  fall  from  the  west  to 
the  east,  and  Decker's  property  to  the 
east   of    Mr.    Mvburgh's    propertv    cer- 
tainly lies  at  a  lower  level,  and  has  to 
receive  any  water  which  may  naturally 
come  down  there.    Then  plaintiff  claims 
that  a  drain,   which  he  says  previously 
existed  on  Decker's  property,  should  be 
re-opened,  and  Decker  should  be  forced 
to  receive  at  a  point  marked  "  i "  any 
water  which  may  be  collected  on  plain- 
tiff's property,   and  sent  down  on  this 
property.  ^  This    claim  also    is   founded 
upon  a  mistake.    No  such  drain  has  ex- 
isted  as  Icng  as   plaintiff  has  occupied 
the  property.    The  defendant  says  that 
some  years  previously,   in   1891,      there 
was  a  ditch    cut    by   a  previous  ownor 
on   the  defendant's   property,    but    that 
after  he  had  allowed  this  to  remain  a 
fortnight,   further  disputes    arose,      and 
this  sluit  was  closed  up,  and  has  never 
been    used   since.    The   previous   owner 
of  plaintiiTs  property  did  not  attempt 
to  assert  a  right  to  the  sluit.     The  sluit 
did    not    exist    at    the    time       plaintiff 
bought  the   property.    Learned   counsel 
for  the  plaintiff  says  ihat  the  property 
is  useless  to  the  plaintiff  unless  he  can 
get   drainage.       A^   I   said   before,   the 
kiWer  proprietor  must  receive  the  drain- 
age,   which   comes  naturally   to   it,   but 
that   is    a   differeat    thing   from    saying 
that  the  plaintiff  has  a  right  at  common 
law  to  «etid  the  drainage  from  his  pro- 
perty on  to  the  defendant's  land  at  any 
point    where    he    may    choose.        Here 
•  again,  I  think  that  the  plaintiff  has  fail- 
ed  to   establish    any   prescriptive   right 
such  as  he  claims.    To  the  unprofession- 
al m^nd,   it  seems  that  the  drainage  is 
from  the  marsh  along  the  willow  furrow, 
where  a  dmin  still  exists.    That  drain 
was  not  sold  in  th<»  property  originally 
sold  to   the  plaintiff.     I  see   no  reason 
Ifhy  that  dram  sh^Mld  not  carry  all  the 


water  which  collects  on  the  plaintiff's 
property.  There  is  no  objection  to  that 
dram  oeing  used.  I  think,  <iherefore, 
that  it  has  been  established  that  the 
true  boundary  between  the  plaintiff  and 
defendant  is  the  line  "  a.K."  on  Mr. 
Moller's  plan.  The  plaintiff  has  failed 
to  acquire  a  right  by  prescription  to  a 
servitude  over  the  defendant's  prc^rty 
to  the  drain  **  a.b.,"  or  a  proj[X)sed  drain 
running  over  the  southern  side.  Under 
these  circumstances,  there  must  be 
judgment  for  the  defendant,  with  costs. 
A  aeclaration  will  be  made  that  the 
true  boundary  between  the  plaintiff  and 
defendant  on  the  southern  side  is  the 
line  "  a.k."  on  the  i^an  prepared  by 
Mr.  Surveyor  Moller  (Exhibit  No.  1), 
which  coincides  with  the  line  "  c.d. — ;— " 
on  the  diagram  annexed  to  plaintiff's 
transfer. 

On  the  application  of  Mr.  Benjamin, 
his  lordship  allowed  defendant's  ex- 
penses as  a  necessary  witness,  and  the 
qualifying  costs  of  Mr.  Bissct  and  Mr. 
Baker. 

[Plaintiff's  Attorneys:  Faure,  Van 
Eyk.  and  Moore ;  Defendant's  Attorney : 
J.   Buirski.] 


SECOND  DIVISION: 


[Before  the  Hon.  Mr.  Justice  Ma  ARDORP.  J 


(       19()5 
MCKAY  AND  CO.  V.  HODGSON.  J  ^oy.  ^"od. 

Dr.  Greer  moved,  as  a  matter  of  ur- 
gency, for  leave  to  remove  interdicted 
stock  from  certain  premises,  which  had 
become  untenantable  since  the  interdict 
was  {granted,  as  the  stock  was  at  present 
deteriorating.  The  stock  consisted  of 
music  and  musical  instruments. 

Mr.  Close,  who  appeared  to  oppose  on 
behalf  of  the  respondents,  said  his  client, 
the  landlord,  had  an  interdict  granted 
on  t>he  goods  of  the  applicant,  as  a  con- 
siderable sum  of  money  was  owing  to  the 

it>s[4ondent.  The  deterioration  had 
only  been  di^overed  since  tho  interdict 
was  granted.  Whatever  was  wrong  with 
the  premises  they  were  being  put  right 
at  the  present  moment. 

[Maasdorp.  J. :  I  don't  think  we  can 
deal  with  this  matter  now.  It  should 
come  on  in  the  ordinary  course.] 

Dr.  Greer  pointed  out  that  the  dam- 
age was  continuing  from  day  to  day. 

Maasdorp,  J. :  You  can  give  notice  in 
the  ordinary  way — that  is  48  hours,  I 
believe— then  I  will  take  it  mytolf,  if  it 
can't  be  heard  elsewhere.  In  the  mean- 
time the  parties  should  consider  whe- 
thor  they  cannot  come  to  a  sottlempnt. 


tk£tA 


"CAPB  TIMES"  LAW  REPORTS. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Actinor  Chief  Jastice,  the 
Hon.  Sir  John  Buchanan.] 


BEX  V.  KOBOBE  AND  MKEBO.  [  jf^y     23rd. 

Snmmont — Arrest — Particolars  of 
charj^e — R.M.  Court. 

K,  iPOH  charged  irith  stock 
theft.  The  evidence  of  the 
first  iritneHs  for  the  jrroseciitiott 
implicated  also  M,  {K's  hou). 
.1/.  w€ut  thereupon  arrested 
trithoui  summons  and  placed 
in  the  dock:  He  did  not  except 
to  the  want  of  summons  and 
did  not  appear  to  be  p^rejudiced 
ditrehy.  That  portion  of  the 
evidence  xdiich  had  been  taken 
was  read  ove^'  to  him,  a  fid  he 
iras  convicted. 

Held  on  appeal,  that  the  appeal 
must  be  dismissed. 


This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Lusiki- 
fliki,  Western  Pondoland,  who  had  con- 
victed the  accused  under  Act  No,  35  of 
1893,  as  amended  by  Proclamation  No. 
109  of  1900.  with  the  crime  of  theft, 
in  that,  on  the  3rd  September  laet,  they 
did  wrongfully  and  unlawfully  kill  a 
certain  he-goat,  the  propeirty  and  in  the 
lawful  possession  of  Mganji,  of  Dulile's 
Locaition.  Koboso  was  found  gudlty 
of  receiving  stolen  property,  knowing 
the  same  to  have  been  vtolen,  and  was 
sentenced  to  three  months*  imprison- 
ment with  hard  labour;  Mkebo  was 
found  guilty  of  the  theft,  and  sentenced 
to  six  months'  imprisonment  with  hard 
labour. 

The  Magistrate,  in  his  reasons  for 
judgment,  said  that  the  evidence  for 
the  Crown  was  absolutelv  conclusive. 
No  defence  of  any  kind  had  been  eet 
up  by  the  prisoners.  The  Court  con- 
sequently had  come  to  the  conclusion 
that  thoy  had  no  defence  to  make. 
Mkebo  was  brought  into  the  case  and 
cliarged  after  the  proceedings  had  been 
commenced  against  Kobo^e.  He  was 
arrested  outside  the  Court,  and  offered 
no  objection  to  being  tried  on  the  charge 
of  receiving  stolen  property. 

Mr.  Sutton  appeared  for  the  appel- 
lants; Mr.  Pyemont  appeared  for  the 
Crown. 

Mr.  Sutton  contended  tliat  the  charge 
VOs  not  set  out  with  sufficient  particu- 


larity against  the  eeoond  accused.  The 
record  merely  was :  "  At  this  stage  of 
the  proceedings  Mbcko  al«o  is  placed 
in  the  dock  and  charged  ako  with  the 
theft  of  Mganji's  goat.  Counsel  relied 
on  the  case  of  Rex  r.  Albert  and  Others 
(5  Hiffh  Court  Reports,  487).  Prejudice 
nad,  he  submitted,  accrued  to  the  ac- 
cused in  coneequenoe  of  the  irregularity 
in  the  proceedmgs.  The  eeoond  point 
taken  by  counsel  was  thi^t  no  summons 
was  served  on  Mkebo  according  to  Rule 
68  of  the  Resident  Magistrate's  Court 
Act.  In  support  of  this  contention,  he 
relied  on  the  section  And  also  the  case 
of  Queen  v.  Cooper  (1879,  Buchanan, 
152).  He  argrued  thatt  the  aceused  bad 
not  waived  his  right  to  take  any  point 
of  objection  which  ho  might  have  taken 
in  the  Court  below. 

Buchanan,  A.C.J.,  said  that  the  case 
of  Queen  r.  Sampxon  (8  Juta,  229),  where 
an  hotelkeeper  at  Durbanville  had  been 
convicted  oi  selling  liquor  to  a  native, 
seemed  to  him  very  much  in  point. 

Mr.   Sutton  went  on  to  contend  that 
amyther  point  in  favour  of  the  accused 
Mbeko  was  that   the  proceedings  were 
irregular   and   informal.      The  evidence 
which  bad  already  been   taken  against 
the  first  accused  waa  read  over  to  the 
second. accused,   and  waa   not   taken   in 
his  presence.      The  whole  case   against 
the  second  accused   depended   upon     a 
(x>nfession   made   by  the  othet  accused. 
Such    a    confession,   counsel    submitted, 
wse  not  admissible  bb  against  the  second 
accused.    As  to  the  first  accused,  counsel 
said  all  that  appeared  was  that  Kobose 
had  eaten  some  of  the  goat.     On  that 
ground  he  submitted  that  Kobose  could 
not  be  found  guilty  of  stealing  the  whole 
goat. 
Without  calling  upon  Mr.  Pyemont, 
Buchanan,    A.C. J. :      The   Magistrate 
was  called  upon  to  try  a  charge  of  theft 
of  a  goat  stolen  from  a  native  location 
in   his  districe.    The  prisoner   who  was 
first  charged   was  Kobose.    During  the 
hearing  of  the  case,  on  the  evidence  of 
the  first  witness,  it  became  apparent  that 
the  son  (Mbeko)  was  also  implicated  in 
the  theft.    Mbeko  was  thereupon  arres- 
ted and  brought  into  court,  and  placed 
in   the  dock  by  the   side  of  his  father. 
Both  father  aiid  son  were  defended  by 
an  attorney.       On  the  charge-sheet  the 
charge  against  Kobose,  *'  stealing  a  goat, 
the  property  of   Mganji,"    was   sot  out 
with  every  necessary  particular.    When 
the  son  was  arrested  he  was  also  charged 
with  steaJing  this  goat,  the  property  of 
Mganji,  and  he  pleaded  not  guilty.    The 
attorney  who  defended  the  accused  took 
no  exception  to  the  proceedings.    It   is 
now  alleged  on   behaJf  of  the  son  that 
the  conviction  should  be  set  aside  on  the 
ground,  firstly,   that  the  charge,  in  his 
case,  was  not  set  out  with  sufficient  par- 
ticularity.      I    think    the   record  show^ 
that  the  charge  was  set  out  with  suffi- 
cient particularity  to  let  him  know  what 
ho  was  being  tried  for.  The  next  point  is 


'*OAPB  TIMES''  LAW  REPORTS. 


that  no  fiummonis  was  served  upon  the 
accused.       There  is   no    doubt   that   by 
the   rules  of  Court  an   accused^  can  re- 
quire a  charge  made  against  ibim  to  be 
specified  in  a  summons  or  warrant  be- 
fore he  is  tried.    But  tben  the  appellant 
did  not  take  this  objection  at  the  trial, 
and  require   a  sutnmons  or  warrant  to 
h&  served   upon   him.       If   he   does   not 
take  this  objection,   it  has  been  held  in 
manv  cases  that  it  is  a  common  practice 
in  tne  Magistrates'   Courts  not  to  issue 
summonses   in   cases   of   this   kind.       If 
tliere    was   ajiy    prejudice    accruing    to 
the  accused,   in  consequence   of   the  ab- 
sence of  a  summons,  the  objection  might 
have    been-  considered,    but    it    has    not 
been  shown  that  accused  was  prejudiced. 
The  third   ground  of  appeal   is  one  of 
some  importance,  viz.,  that  evidence  had 
been   g[iven  at   the  trial   which  was  not 
taken  in  any  way  in  the  presence  of  the 
prisoner.     It  is   the   rule   of   a  criminal 
trial  that  evidence  must  be  given  in  the 
presence  of  the  accused.       In  this  case 
the  father  had  been  tried,  and  one  wit- 
ness had  deposed  against  the  father  be- 
fore   the   second   accused   was    put    int^ 
the  dock.    This  first  witness  was  still  un- 
der examination  ,  and   the  evidence  he 
had     given     was     read     over     to     the 
.second     accused,     and     he     was     asked 
if      he      had     any     questions      to     put. 
The     attornev    who    appeared     for    the 
prisoners    did    not    put    any    question, 
and    the   case   was    allowed  to  go.       A 
rase  has  been  referred  to  in  which  the 
Court  quashed   a  conviction   where  evi- 
dence  had  been  given  in  the  absence  of 
the  prisoner,  but  in  that  case  the  whole 
of  the  evidence  for  the  prosecution  had 
been  given  in  the  absence  of  the  prison- 
er, and  the  witneeses  were  not  present  to 
enable   the    prisoner     to     cross-examine 
them.      In  that  oase  there  was  no  evi- 
denoe  given  in  his   presence  to  connect 
the  prisoner  with  the  crime.    But  in  this 
case  not  only  had  the  prisoner  an  oppor- 
tunity of   cross-examining     the  witness, 
but   subsequently   there  .was  ample   evi- 
dence called  in  his  presence,   making  it 
clear  that  the   Magistrate   was   justified 
in  convicting  him.        Another   technical 
objection  taken   on    behalf   of   the   firjt 
accused  is  thai  he  wa«  convicted  of  re- 
ceiving the  goat,   knowing  it   to      have 
been      stolen.       Well,    perhaps,   strictly 
(speaking,    he  ought  to  have  been   cjn- 
\icted  of  receiving  a  portion  only  of  tho 
fitolen  property,  but  that  is  no  ground 
for   up.settmg  the  conviction.     The   ovi- 
denoe  is  that  when  the     search      pir^y 
found   the  prisoners  they  were  actuf.l'y 
ron.suming  the  stolen  moat.     Tho  app-^ai 
muiit  be  dismissed. 


BEX  V.  8IJ0VU. 


This  was  an  appeal  from  a  judg- 
ment of  the  Resident  Maxristratc  of 
Xsomo,    convicting  the  appellant  Sijovu, 


of  Mbulu,  of  contravening  scctictu 
26  of  ProdamatioQ  104,  1905,  by 
selling  brandy  and  other  intoxicating 
liquor  to  a  native  without  having  ob- 
tained the  licenee  required  in  that  be- 
half. The  appellant  had  been  fined 
£30.  or  in  default,  three  months'  im- 
prisonment with  hard   labour. 

The  Magistrate's  reasons  for  judg 
nient  were  as  folkiws :  Sijovu  is  charged 
with  selling  to  one  Buyapi  a  boitle  of 
brandy,  and  from  a  oareiul  considera- 
tion of  the  evidence,  there  is  no  doubt 
that  brandy  waa  in  the  hut  on  the  day 
in  question,  and  that  not  alone  Buyapi 

Eurchased  some  of  it,  but  Mantsha-ng- 
aai,  and  on  the  same  day  and  in  the 
same  hut.  The  defence  objects  to  the 
evidence  of  Mantshanghoai,  but  I  fail 
to  see  that  it  should  have  been  re- 
jected on  the  ground  of  remoteness  by 
want  of  reasonable  connection  between 
the  principal  and  evidentiary  fact.  Dia- 
mond was  an  unsatisfactory  witness 
and  one  who  apparently  wished  to  bark 
with  the  hounds  and  run  with  the  hare, 
and  gave  one  an  impresaion  that  there 
was  a  good  deal  of  Bupnreitio  vert;  but 
even  he  admits  thai  orandy  was  be- 
in^  consumed  in  the  hut.  The  defense 
raised,  taking  in  consideration  ^  the 
trend  of  native  opinion  on  the  aubjeet. 
is  little  short  of  impertinence,  and  the 
suj^^'ested  righteous  indignation  of 
Sijovu  on  being  asked  to  sell  brandy  is 
Gubertian.  Then,  again,  eaoh  wit- 
ness admits  the  existence  of  brandy  in 
the  hut,  but  the  accused  denies  it,  and 
adds :  '*  We  drank  nothing,  not  even 
tea,  on  the  day  in  question."  It  nectd 
hardly  be  ad^ed  that  the  greatest  difii- 
culty  is  experienced  in  procuring  the 
support  of  natives  to  prosecutions  of 
this  nature.  The  liquor  traffic  is 
terribly  rife,  and  is  suDoorted  by  prac- 
tically the  whole  of  the  native  com- 
munitv.  In  the  assault  case  which 
preceaed  this  case,  I  did  not  call  upon 
the  defence,  merely  because,  from  the 
evidence,  it  was  impossible  to  say  who 
commenced  the  affair,  but  that  an  ns- 
sault  was  committed  there  is  no  room 
for  doubt.  Generally,  I  found  thai, 
taking  the  evidence  aa  a  whole,  there 
were  strong  indications  that  Sijovu  was 
carryin«r  on  illicit  liquor  traffic. 

Mr.  Benjamin  for  appellant ;  \jr.  Py- 
mont  for  the  Crown. 

Mr.  Benjamin  said  that  the  notice  cf 
anneal  was  given  on  the  ground  thai 
the  conviction  was  not  supported  by  the 
ovidenoe.  ^  Practically  tne  only  evi- 
dence against  the  aocused  was  tliat  of 
Buyapi.  They  must  find,  either  that 
he  was  emploved  as  a  trap  or  that  he 
was  influenced  by  spite.  If  he  were  a 
trap,  then  the  Court  would  require 
venr  strong  corroboration  of  his 
evidence  before  convicting.  He  how- 
ever, denied  that  he  was  employed  as 
a  trap.  Then  he  must  have  been 
influenced  by  spite  or  ill-will,  prob- 
ably   arising    out  of  a  quarrel    he    hac| 


•Mo 


i< 


CAPE  TIMES*'  LAW  BEPOftTS. 


had    with  accused.        Then  they   must 
haye  tlie   Y^rj   strongest   corroboration 
before  convicting    the    accused.         Re- 
ferrinff    to    the    reasona   for   ^udgrm^nt, 
counael    commented  on  the  picturesque 
terms    which   the    Magvetrate  had    em- 
ployed,  and  romarked  that  the  Magin- 
trate  might  have  taken  into  oonridera- 
tion  that   there   w«a  a   certain      "Mr. 
Juatioe    Shalhnr."     "  Oerrtainly/*  added 
counael,    "in   some   of   his    reaaona    he 
does  not  seem  to  have  differed      very 
much  from  Mr.  Justice  Shallow."     Pro- 
ceedinjT.   Mr.    Benjajnin   commented   on 
the   evidence  admitted    by    the   Magia- 
trate,  and   said   that      the  Court   below 
had       adn»itted  evidence    which    mi^ht 
very    well   have    been    afdmitted   in      a 
similar  case  bv  "  Mr.  Juatioe  Shallow." 
At  the  very  least,   there   waa  so  much 
doubt   in    tne    case,    that    the    accupd 
•hould  have  had  the  benefit  of  it. 
Without  calling  upon  Mr.  Pyemont, 
Buchanan,  A.C.  J. :   In     thi«  case     the 
•eoused      is       char^red       with      selling 
liquor     to     a      native,      accused,      not 
having   ^  a      lioenoe     to      eell.         The 
aoouaed  ia  also  a  native,  living  in  a  loca- 
tion where  liquor  is  not  allowed.   The 
main  evidence  of  the  sale  is  that  o(  a 
native  named  Buvapi.    He  says  he  went 
to  the  hut  of  the   accused,   and   when 
there  he  bought  a  half  bottle  of  brandy 
for  2s.   6d.,   which    he   paid,    but   that, 
after  some  drinking,  a  row  took  place, 
the  accused  committed  an  assault    upon 
him,    and   ejected    him    from  the    hut. 
Accused  was  charged  with  assault,  but 
waa  acquitted.    Had  it  been  clear  that 
this  was  a  case  which  depended  entirely 
upon  the  evidence  of  a  native  who  was 
animated  by  motives  of  revenge,   I  do 
not   think  the    Magistrate    would    have 
been  justified  in  convicting  the  accused, 
but  the  question  in  this  case  is  whether 
or  not  the  evidence  of  Buyapi  has  been 
sufficiently   corroborated    to   justify   the 
Magistrate  in  coming  to  the  conclusion 
that  his  story  is  to  oe  believed,  and  not 
that  of  the  accused.    The   accused  was 
the  only  witness  called  for  the  defence, 
and  he  positively  denied  that   he      had 
brandy  in  this  hut  at  all.     He  says  that 
no  drinking  took  place,   and  that  they 
did  not  even  drink   tea  on   the   day  in 
question.     Now,    the    accused    had    the 
brandy   after  he   left    the    hut,    and    ho 
went    to    the    hut  of    a       man    named 
Mbanga,  and  showed     him  the  brandy, 
and  also  told  him  that  he  had  been  as- 
saulted by  the   accused.     Mbanga  tasted 
it,  and  found  that  it  was  brandy.  Then 
we  have  the  evidence  of  one  Diamond, 
who  says  that  there  was  brandy  in  the 
hut  on   that  occasion,   and   there      was 
drinking  going  on  in  the  hut,  and  that 
the  prisoner  was  there.     Then  a  woman 
is  called,  who  on  the  same  day  was  in 
the   hut,    and    bought      some       brandy 
there.    Counael  is  quite  correct   in  say- 
ing that  this  is  not  evidence  of  the  sale 
with  which  the  accused  was  charged,  no  ^ 
l)otice  hc^^iv^?    been    given    him   of   the 


fact,  but  it  ia  very  strong  oorroboratire 
evidence  to  show  that  there  waa  liquor 
in  the  hut,  and  that  liciuor  was  to  be 
had  by  people  who  wished  to  buy  it 
I  am  not,  therefore,  prepared  to  say 
that  the  evidence  was  so  well-balanc^ed 
that  the  accused  ought  to  have  had  the 
benefit  of  the  doubt.  There  ia  sufficient 
corroborative  evidence,  I  think,  to  justi- 
fy the  Magiatrate  in  convicting  the  ao- 
cused,  and  to  show  that  the  Court  of 
Appeal,  not  having  the  witnessea  before 
it  should  not  interfere.  The  impression 
made  on  my  mind  from  reading  the  re- 
cord is  that  that  there  was  liquor  sold 
in  the  hut.  The  appeal  will  be  dis- 
missed. 


RBX  V.  TOTO  AND  BADA8I. 

This  was  an  appeal  from  a  judgment 
of  the  Assistant  K.M.  of  the  Cape,  sit' 
ting  at  Uitvlugt.  The  accused,  Isaac 
Yoyo,  and  Arthur  Radaai,  had  been 
convicted  of  selling  Kafir  beer  to  two 
natives  at  Radasi's  Buildings,  Ndabeni 
Location.  Yoyo,  who  was  alleged  to 
have  served  the  beer,  was  fined  £20,  or 
three  months'  imprisonment,  with  hard 
labour;  Radaei  was  fined  i&  100,  or  six 
months*  imprisonment,  with  hard  la- 
bour. The  appeal  was  brought  b^  Ra- 
dasi  on  the  ground  that  tne  evidence 
given  in  the  court  below  did  not  sup- 
port the  conviction,  and  that  certain 
evidence  bad  been  accepted,  and  receiv- 
ed ^  by  the  Magistrate  as  admissible, 
which  was  in  law  wholly  inadmissible. 

Dr.  Greer  waa  for  the  appellant  (Rr- 
dasi) ;  Mr.  Pyemont  was  for  the  Crown. 

Dr.  Greer  said  that  as  regarded  the 
first  point  of  the  appeal,  there  was  a 
considerable  conflict  in  the  evidence.  In 
regard  to  the  second  point,  the  only 
evidence  to  connect  the  appellant  with 
the  crime  was  that  of  the  Corporal 
David  Ngxiki,  and  a  considerable  por- 
tion of  that  evidence  was  inadmissible 
so  far  as  the  appellant  was  concerned. 
Unless  the  Court  should  find  that  Maria 
Sturman  were  employed  as  a  cover, 
there  was  no  evidence  that  Radasi  had 
an  interest  in  the  occupation  of  the  pro- 
mises. 

Mr.  Pyemont  submitted  that  under 
the  very  suspicious  circumstances  sur- 
rounding the  whole  case,  the  Magistrate 
was  justified  in  presuming  that  Uie  first 
accused  sold  for,  and  at  the  instance  of 
the  second  accused.  The  evidence 
showed  that  the  second  accused  wui 
about  the  premises,  and  that  this  woman 
Maria,  was  known  as  Mrs.  Radasi.  Ra- 
dasi owned  the  buildings,  and  he  re- 
tained an  interest  in  the  occupancy  by 
reason  of  the  rooms  occupied  by  Maria. 

Dr.  Groer  having  been  heard  in  reply. 

Buchanan.      A.C.J.,      said      the    two 

accused,      Yoyo      and       Radasi,       were 

diargcd      before      the      Mo  grist  rate      of 

the    district     of    tlie     Cape     with     con- 

trovening  the  Liquor  Incensing  Act,  in 


I 


u 


CAPE  TIMES"  LAW  REPORTS. 


969 


ficllinf^  liquor  without  a  licence.  They 
wero  both  ccmvict^d,  and  Yoyo  has  not 
ap[M>alf^d  against  his»  conviction,  but  Ra- 
dasi  has.  The  evidence  for  tlie  C*rowji  is 
that,  on  the  Sunday  in  (jue»tion,  the 
12th  September  last,  a  raid  wa*  made 
of  certain  uremises  known  as  Radasi's 
Buildin^d  ;tnat  a  niinilvr  of  natives  were 
there  drinkinf?  KaBr  lx>er.  which,  ly 
the  Act  of  Parliament,  is  prohibited  for 
sale  without  a  licence;  and  that  one 
man  was  arrested  coming  out  of  the 
place  with  a  tin  of  beer  m  his  posses- 
sion, and  ho  has  also  been  prof>ecuteiI 
and  punislied  for  having  l^er  without  a 
licence.  The  evidence  i-s  clear 
that  prisoner  No.  1  (Yovo)  waa  the 
active  as^nt  in  selling  the  beer  and 
takinig  tlie  money,  and  it  is  also  shown 
tliat  he  did  not  live  on  the  premises, 
that  he  worked  at  the  Government 
Goods  Station,  and  that  he  was  only 
at  that  place  on  that  evening  for  the 
wale  of  that  beer.  The  evidence  shows 
that       tho      accused,  Radasi,         let 

the  buildings,  and  I  think  that  suffi- 
cient evidence  was  ^iven  to  support 
the  Magistrate's  finding  that  he  was 
present  on  the  occasion  in  question. 
The  premisos  belonged  to  the  defendant, 
who  let  rooms  to  a  number  of  people. 
The  compartments  let  to  Ma.ria  Stur- 
man  are  the  rooms  in  which  the  beer 
was  sold.  The  defendant  says  that 
he  had  nothing  to  do  with  Maria  Stur- 
man  or  her  compartmen-ts.  but  that 
tho  next  compartment  waa  occupied  by 
hifi  sweetheart.  Lena.  The  evidence 
shows  that  he  was  on  Maria  Sturman's 
premises  on  tho  evening  in  question, 
that  he  was  the  owner  of  the  house, 
and  that  he  was  in  and  out  while  the 
beer  was  being  sold  in  his  own  pre- 
mi.«?e«,  and  that  he  must  have  seen  the 
transaction  taking  place.  The  native 
cci  stable  say*}  that  he  knows  that  Radasi 
lives  in  the  house  out  of  which  the  man 
cnme  who  was  in  possession  of  the  Ix^cr. 
He  related  a  statement  which  was 
n»ado  by  prisoner  No.  1  that 
the  beer  was  sold  by  him  (Yovo) 
on  Radar's  inatniftion**,  but  I  thnik 
Dr.  Greer  is  correct  when  he  con- 
tends that  that  stJitement  made  by  pri- 
soner No.  1  is  not  evidence  against  No. 
2,  seeing  that  it  was  not  made  in  his 
presence.  In        considering  this 

a]>peal.  that  part  of  the  evidence 
will  be  dismissed  from  consideration. 
The  constable  goes  on  to  say  that,  after 
Radasi  had  been  arrested.  Maria  Stur- 
raan  came  to  see  him,  and  that  a  con- 
versation then  took  place  between  the 
accused  and  the  woman  Maria.  That 
is  admitted  by  the  defence,  but  the 
evidence  as  to  the  nature  of  the  con- 
versation differs.  I  think  it  curious, 
if  the  defendant's  version  is  correct, 
that  Maria  Sturinan  should  have  gone 
at  all  to  see  Radasi  on  the  subject. 
Then,  again,  wo  have  the  evidence  of  a 
shopkeeper  in  the  neighbourhood,  and 
ho     snvs      that      he    has    a      pass-book 


for  goods  sold  to  Maria  Stuurnuui, 
this  woman  Maria,  and  that  he  sup- 
i>lied  goods  to  the  woman  under  the 
name  of  Mrs.  Radat-i,  and  that  shortly 
before  the  affair  took  place,  he  altered 
tho  name  to  Mrs.  Sturman.  Tlien 
certain  receipts  are  produced  of  rent 
aJleged  to  have  been  paid  to  Radasi  by 
the  woman,  but  these  receipts  haye 
evidently  l)een  manufactured  for  the 
iiis-c.  l/'u'lor  tho  circun stances,  the  Ma- 
jjlntrate  has  come  to  the  conclusion  that 
the  two  accused  were  acting  in  concert, 
lie  had  the  witnesses  before  him,  and 
no  doubt  there  is  a  conflict  of  testi- 
mony; but  it  is  not  like  a  case  in 
whicli  there  is  no  corroboration 
of  evid<>nce  given  by  the  police,  or  by 
a  trap,  or  by  a  person  who  is  actuated 
by  spite.  There  is  no  Teason  given 
why  the  comstable  should  have  Doen 
actuated  by  spite,  and  there  is  corro- 
boration of  his  evidence.  I  do  not  see 
my  way  clear  to  say  that  the  Magis- 
trate, on  the  evidence  laid  before  him, 
hi  having  seen  the  witnesses,  is  wrong 
in    lins    finding.  I    think,    under    nU 

these  circmustances,  the  Oourt  cannot 
interefere  in  this  case.  The  appeal 
will    he    dismissed. 


REX  V.  JOSLINO. 

Cruelty  to  animals — Emasculation 
—Act  18  of  1888,  Sec.  2. 

Umler  Sec.  2  of  Act  IS  of  1888, 
a  person  may  not  he  prosecuted 
for  einaeculathig  an  animal 
provided  he  haa  reasonable 
cause  for  so  doing. 


This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Ken- 
hardt,  who  had  convicted  the  appellant 
of  a  contravention  of  Section  2,  Act  18 
of  1388,  by  inflicting  wanton  cruelty 
upon  a  certain  domestic  animal,  viz.,  a 
cat,  by  emasculating  it.  Tho  appellant 
Wis  sonteiiccd  to  pay  a  fine  of  £1,  or  in 
default,  seven  days'  imprisonment,  with 
hard  labour. 

Dr.  Gropr  was  for  the  appellant. 

Mr.  Pyemont  (for  the  Crown)  said 
that  the  Attorney -General  did  not  sup- 
port the  conviction. 

Dr.  (in>or  said  that  the  appellant  had 
performed  an  operation  upon  a  oai 
which  he  submitted  was  a  proper  one. 

Buchanan,  A.C.J. ,  said  that  the  appeal 
would  be  allowed,  arad  the  conviction 
quashed. 


REX  V.  QEALL. 


This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Elliot, 
who  had  convicted  appellant  of  the 
crime  of  assault.  The  accused  was 
charged    with     assaulting    a    Hottentot 


970 


CAPE  TIMte^'  LAW  RfePOEtd. 


named  Johannes,  with  intent  to  infliot 
upon  him  grievous  bodily  harm.  He 
waa  found  guilty  of  common  assault, 
and  sentenced  to  21  days'  imprisonment, 
with  hard  labour. 

The  allegation  wa»  that  accused,  for- 
merly a  member  of  the  O.M.H.,  etruck 
the  Hottentot  on  the  head,  and  threw 
Slim  on  a  fire,  causing  him  diyers  wounds, 
burns,   and  injuries. 

The  accuseci  denied  having  assaulted 
the  complainant. 

Mr.  Struben  was  for  appellant;  Mr. 
Pyemont  was  for  the  Crown. 

Mr.  Struben  said  that  the  ground  of 
appeal  was  that  the  conviction  was  not 
supported  by  the  evidence  given  before 
the  Court  below,  and  was  contrary  to 
law.  The  evidence  of  the  two  white 
men  called  for  the  defence  was  plain 
and  straightforward,  and  the  witne-reii 
supported  oach  other,  but  the  evidence 
given  by  the  witnesses  for  the  Crown, 
who  seemed  to  be  very  much  interested 
in  each  other,  was  very  greatly  at 
variance.  The  witnesses  for  the  prose- 
cution contradicted  each  other  on  most 
material  points.  The  Map^i^trate's  judg- 
ment ought  to  Lave  stated  whcthi*r  ho 
found  the  accused  guilty  of  nemaulting  the 
Hottentot  with  his  ^at  or  throwing 
him  upon  the  fire.  He  urged  that  the 
facts  all  tended  to  nhow  that  the  ac- 
cu«od  closed  with  the  Hottentot,  but 
that  it  was  in  order  to  protect  himself 
from  an  attack.  Counsel  also  urged 
that  the  sentence  passed  upon  the  ac- 
cused was  needlessly  severe. 

Without  calling  upon  Mr.  Pyemont, 

Buchnnai',  A.C.J.  :  The  appellant 
was  charged  with  assault  with 
intent       to       do         grievous  bodily 

harm,  and  it  is  alleged  that  he  threw 
the  complainant  upon  a  fire,  thereby 
causing  him  divers  injuries  and  burns. 
That  the  complainant  was  burned  in 
consequence  of  this  assault  is  clear,  but 
the  Magistrate  seems  to  have  taken  the 
view  that  the  burning  ha<:l  be(  u  uninten- 
tional, and  not  intentioiml.  The  evi- 
dence of  an  atfjsault,  however,  is  all  one 
way.  Even  the  prisoner's  own  evidence 
fully  justifies  the  Magistrate  in  convict- 
ing of  assault.  There  is  no  conflict  of 
evidence  which  would  justify  any  (?ourt 
in  setting  aside  this  conviction.  The 
admissions  made  by  the  prisoner 
himself  justified  the  Magistrate  in 
finding  him  guilty.  The  Magistrate 
has  sentenced  the  accused  to  imprison- 
ment for  21  daj*©  with  hard  lalxjur.  He 
has  not  given  the  accused  the  option 
of  a  fine.'  Thar,  is  a  matter  entirely 
within  the  jurisdiction  of  the  Magis- 
trate. This  Court  cannot  alter  the  sen- 
tence. I  see  no  ground  whatever  for 
interfering  with  tno  Magistrate's  de- 
cision. The  appeal  will,  tlion'forc.  Iw 
dir^misscd. 


SUPREME  COURT 


FIRST    DIVISION. 


[Before  the  Acting  Chief  Justice,  the 
Hon.  Sir  John  Buchanan. J 


£  1  CM  i' 

ICCKAY  AND  CO.  V.  HODGSON  \  Nov.   24th. 

Dr.  Greer  moved  as  a  matter  of  ur- 
gency for  an  order  authorising  the  ap- 
plicants to  remove  certain  goods  now 
under  interdict  at  6  and  8,  Church- 
street,  Cape  Town,  to  such  premises  as 
they  may  decide  upon,  the  said  goods  to 
remain  under  attachment  at  the  new 
premises.  Mr.  Benjamin  appeared  for 
the  respondent 

The  petitioners  stated  that  they  were 
music  warehousemen,  carrying  on  busi- 
ness at  6  and  8,  Church-street,  and  had 
been  restrained  from  removing  their 
goods  from  6,  Church-street,  pending 
an  action  to  be  brought  by  the  respon- 
dent for  arrear  rent.  The  said  pre- 
mises were  not  in  a  fit  and  tenantabie 
state  of  repair,  and  by  reason  of  this 
the  goods  were  being  damaged.  They 
would  at  the  proper  time  claim  for  the 
unlawful  attactiment  of  their  goods,  and 
damage  to  their  goods  and  fittings.  An 
affidavit  by  Neil  Holmes,  of  Woodstock, 
a  contractor,  stated  that  damage  would 
bo  done  to  the  stock  unless  the  alter- 
ations were  carried  out,  and  the  goods 
removed.  It  would  be  necessary  to  take 
up  the  floor  and  excavate  to  a  depth  of 
about  thrcv*^  feet,  in  order  to  provide 
proper  ventilation. 

An  answering  affidavit  by  respondent 
(Charles  Hodgson)  said  that  the  appli- 
cants had  been  tenants  of  the  said  pre- 
mises for  a  large  number  of  years,  and 
were  at  present  indebted  to  him  exclu- 
sive of  the  month  of  November,  in  a 
sum  of  £355  for  arrear  rent.  He  had 
been  compelled  to  apply  for  an  inter- 
dict restraining  the  respondents  from 
removing  the  goods  pending  an  action 
to  be  brought  Tor  rent.  He  had  taken 
out  a  summons  for  £355.  Applicants 
had  repeatedly  acknowledged  their  in- 
debtedness to  him  in  the  amount  claim- 
ed, but  continually  asked  for  time  in 
which  to  discharge  the  amount.  The 
result  of  his  leniency  would  be  that  at 
the  end  of  this  month  they  would  be 
indebted  to  him  in  a  sum  of  £400.  They 
had  made  this  application  purely  and 
simply  to  gain  time.  As  to  the  alleged 
bad  state  of  the  premises,  the  matter 
was  only  recently  brought  under  his  no- 
tive  by  the  applicants,  and  he  was  quite 
l-r(»parod  to  give  them  beneficial  occii- 
)>atioii  nf  the  premises  so  long  ae  ap- 
plicants remained  there.  He  had  in- 
.^ructod  his  architect  to  have  such  re- 
pairs carried  out  as  may  be  necessary. 
He  had  no  wish  to  continue  the  appli- 


bAPB  tlMfiS"   LAW  RBPOh'tS. 


971 


cants  in  the  premiaee,  and  he  would  con- 
sent to  their  goods  being  removed  pro- 
vided that  tney  deposited  with  the 
Registrar  of  the  Court  sufficient  security 
to  cover  the  amount  of  his  claim.  An  affi- 
davit by  Mr.  Rowe  Rowe  stated  that  he 
had  been  entrusted  with  the  supervision 
of  such  works  aa  may  bo  necessary,  and 
the  execution  of  the  works  had  already 
been  commenced. 

[Buchanan,  A.C.J. :  What  is  the  value 
of  the  stock,  Mr.  Greer?] 

I  am  instructed  that  it  amiounts  to 
about  £6,000  in  value  and  consists  of 
pianos,  organs,  and  musio  generally. 

A  reulying  affidavit  by  Mr.  Bischoff, 
a  memoer  of  the  applicant  firm,  denied 
that  the  sum  of  JB355,  or  eny  portion 
thereof,  was  du3  to  the  respondent.  It 
was  arranged  that  the  nrrear  rent,  £355, 
should  be  paid  off  in  monthly  instal- 
ments, and  the  applicants  had  paid  the 
instnlmenta-  as  they  had  become  due.  He 
denied  that  there  was  any  undue  haste 
on  the  part  of  the  applicants  in  this 
application,  or  that  there  was  any  in- 
tention to  deprive  the  respondent  of  hie 
landlord's  lien.  It  was  jmposMble^  for 
the  respondent  to  give  them  bcncijuial 
occupation  of  the  premises.  The  more 
the  floor  was  torn  up  the  more  was  it 
found  to  bo  m  bad  state.  The  place 
was  rotten  with  funguii,  and  tLe  stench 
was  unbearable,  and  the  applicants  had 
had  to  pile  their  stock  on  the  pianos 
and  on  the  floor  next  door.  The  wholo 
of  the  flooring  was  being  torn  up. 

Dr.  Greer:  We  aire  willing  that  the 
lien  should  still  continue. 

[Buchanan,  A.C.J. :  The  new  land- 
lord would  have  the  first  Lion.] 

Not  if  he  lets  us  in  with  notice  of  a 
previous  lien. 

[Buchanan,  J. :   Oh,  yes.] 

We  discovered  the  state  of  the  pre- 
mises only  in  October.  The  whole  floor 
has  been  taken  up.  We  have  no  bene- 
ficial occupation,  and  are  not  told  when 
we  shall  get  it.  The  stock  is  being  seri- 
ouslv  depreciated. 

Mr.  Benjamin  (replying  to  the  Court) 
said  that  the  respondent  had  instituted 
his  action. 

Buchanan,  A.C.J. :  The  applicants  in 
this  case  occupy  premises  belonging  to 
the  respondent,  the  rent  for  which  has 
been  allowed  to  run  into  arrear  to  a 
considerable       amount.        The  rent 

being  in  arrear,  the  landlord, 
to  secure  his  lien,  obtained  an  attach- 
ment of  the  tenant's  goods  in  his  pre- 
mises. That  attachment  still  exists.  The 
tenant  now  alleges  that,  although  he  has 
been  in  possession  of  the  premises  a 
considerable  time,  the  premises  are  in 
such  a  state  of  disrepair  that  the  goods 
are  being  damaged.  It  is  curious  that 
this  fact  was  not  discovered  before  the 
attachment  took  place.  However,  the 
landlord  is  entitlotl  to  his  lien.  To  pro- 
vent  the  possibility  of  any  lose  l>ring  suf- 
fered, the  Court  will  order  the  attach- 
ment   to   be   set  aside    upon    applicants 


paving  a  sum  of  £400  into  court,  or  pro- 
viding securitv  in  that  amount  to  the 
satisfaction  of  the  Registrar,  costs  of 
motion  to  abide  the  result  of  the  action. 


CIVIL  APPEALS. 


VAN     SCHOOR     V.     VAN 
KEEN  EN. 


N     j       1905. 
}  Nov.  24th. 


This  wa£  an  appeal  from  a  judgment 
of  the  Assistant  Resident  Magistrate  of 
the  Cape,  sitting  at  D urban ville,  in  an 
action  brought  by  the  present  appellant 
for  payment  of  £100  on  a  promissory 
note  made  by  Johannes  Albertus  Yink, 
and  signed  by  the  respondent  as  surety. 

It  appeared  that  the  maker  of  the 
note  had  become  insolvent,  and  the 
plaintiff  6ued  the  surety,  beca,use  he 
thought  it  was  useless  proceeding 
against  the  maker.  At  the  hearing  in 
the  Court  below,  an  exception  was 
taken  by  defendant  to  the  summons,  on 
the  ground  that  the  principal  should 
first  have  been  excussed.  The  Magis- 
trate upheld  the  exception,  and  granted 
absolution  from  the  instance,  with  costs. 

Dr.  Greer  was  for  aippellant,  Willem 
van  Schoor*  the  respondent,  John  vai? 
Recnen,    did   not   ap|)ear. 

Dr.  Greer  argued  that  insolvency  was 
in  itiielf     excussion. 

Buchanan,  A.C.J.  :  You  are  cntitlod  to 
have  your  appeal  allowed,  with  cost*!. 
The  exception  will  be  overruled,  and  the 
case  remitted  to  the  Resident  Magis- 
trate's Court  for  further  hearing  and 
determination. 


MOLEMOHI  V.  TEMPLE. 

This  was  an  appeal  from  a  judgment 
of  Uie  Resident  Magistrate  of  Matatiele 
in  an  action  brougnt  by  the  present 
appellant,  Anthony  Molemohd,  against 
the  respondent,  Henrv  Francis  Tenriple, 
to  recover  a  sum  of  £35.  The  decision 
of  the  Court  below  wae  judgment  for 
the  defendant,   with  costs. 

Tne  plain titf — a  native — brought  an  ac- 
tion against  respondent  to  recover  £55, 
uiider  somewhat  peculiar  circumstances. 
Tlie  Magistrtite  found  for  defendant,  and 
from  that  judgment  plaintiff  now  ap- 
pealed. In  his  summons,  plaintiff  said 
defendant  was  an  attorney,  and  about 
four  or  five  years  a^o  plaintiff  instruct- 
ed him  to  defend  him  in  a  certain  ac- 
tion brought  by  John  Molemohi.  Judg- 
ment was  entered  for  John  Molemohi. 
A  writ  was  issued  against  the  plaintiff 
in  satisfaction  of  the  judgment,  and  32 
head  of  cattle  were  attached,  and  two 
were  sold  by  the  messenger  of  the 
C>)urt,  and  rea/lised  £35.  An  appeal 
was  noted,  and  the  Magistrate's  judg- 
ment was  reversed,  and  absolution  fmm 
the  instance  given,  and  thirty  head  of 
cattle  were  returned  to  plaintiff.  The 
defendant,    when    asked    for    the  return 


972 


n 


CAPE  TIMES"   LAW  REPORTB. 


of  £35  wliicli  had  bo<Mi  paid  1<>  him  as 
unKMvdr.  of  Ih*'  stalo  of  tho  cattlo,  ro- 
}ii!H»d  to  do  fto.  A  M'coiid  acti^'n  wa« 
subHfHjueiitly  hrouslit.  and  on  this  orct- 
ftion     Anthony     Moloniolii     won.  A:i 

appeal  was  taken,  but  it  was  disitiissed. 

The  defendant  pleaded  that  plaintiff 
agroed,  and  paid  to  defendant  proceeds 
of  the  two  oxen  as  and  for  his  fees  in 
connection  wi-th  the  second  case,  dif^- 
bureements  to  be  borne  by  plaintiff. 
Defendant  acoc'pted  the  two  oxen  in  full 
settlement  of  all  his  foes  in  the  action 
to  bo  brought.  Alt4»rnatively,  he 
counter-claimed  for  £35,  by  way  of  a 
set-off. 

Tlie  Magistrate,  in  his  reasons  for 
judsrment.  said  he  considered  that  the 
probabilities  of  the  case  were  in  favour 
of  defendant,  and  that  the  agreement 
alleged  was  actually  made.  It  was  no* 
liki'ly  that  defendant  would  have  con- 
ducted a  case  for  t^everal  years  v'thout 
arranging  for  his  foes,  esp.K^ially  when 
he  had  plenty  of  opportunit-os  <•'  do 
ing  so. 

Mr.    Swift    was    for    the    appellant; 
Mr.   Benjamin  was  for  tlie  respondon*. 

During    thj    reading    of    the    record, 

Buchanan,  A.C.J.,  remarked  that  these 
natives  were  at  the  mercy  of  the  legal 
pracbi+ioneri 

Mr.  Benjamin :  Mr.  Ten>ple  is  an  at- 
torney of  good  standing  in  the  Ter- 
ritories. 

Mr.  Swift  said  that  the  real  point  in 
this  case  was  whether  the  agreement  to 
pay  £35  was  actually  made.  The  Magis- 
trate appeared  to  have  relied  on  the 
probabilities.  Probabilities,  counsel  sub- 
mitted, were  not  sufficient;  they  must 
have  proof.  On  the  one  hand  they  had 
an  attorney  trained  in  the  conduct  and 
management  of  business  and  financial 
matters,  and  on  the  other  they  had  a 
native  unsophisticated  and,  as  the  Magis- 
trate said.  "  untutored."  Respondent 
seemed  to  have  kept  his  books  in  a 
most  irregular  and,  for  an  attorney, 
improi>or  manner.  Ho  had  failed  to 
prxKiuco  proper  documentary  evidence, 
('ounsel  asked  bis  lordship  to  mark  his 
disapproval  of  Mr.  Temple's  conduct 
by  reversing  the  judgment  of  the  Court 
below. 

Mr.  Benjamin  said  he  thought  it  was 
unfortunate  that  appellant  was  not  ad- 
vised to  sue  for  his  bill  of  costs  in  the 
CJourt  below.  The  present  matter  arose 
out  of  the  second  action,  which  was 
apparently  of  a  most  intricate  character, 
and  involved  questions  of  native  succes- 
sion. An  fljrrecment  was  made  to  pay 
re9p<mdent  £35,  and  defendant  was  en- 
titled to  that  amount  whether  appellant 
had  been  suooeasful  or  not  in  the  suit 
brought  against  him.  It  must  be  borne 
in  mind  that  defendant  had  made  no 
charjge  against  plaintiff  in  respect  of  his 
services  in  the  criminal  case.  One  could 
understand  that  Mr.  Temple  did  not 
put  down  in  his  book  the  various  items 


simply   because   of    the    agreement  that 
he  wa«  to  receive  the   £36. 

Buchanan,  A.C.J. :   The  rec-ord  is  very 
V(»luminoue,  and  there  is  a  great  deal  of 
c<»nfusion  in  the  evidence  as  taken,  but  1 
think  one  can   winnow  out   the  essential 
points  in  this  action.     The  plaintiff  sued 
the  defendant  for  £35,  which  the  defen- 
dant admits   he  received   on   aecount   of 
the  plaifitiff.     The  way  that  £35  was  re- 
covcreil  was  this :      One  John  Molemohi 
brought  an    action  against    appellant   in 
the  Magistrate's  Court,  and  succeeded  in 
obtaining   judgment,    whereupon    an  ap- 
peal was  noted  by  the  present  appellant, 
and  he  succeeded  in  that  appeal.     In  the 
meantime,    for    some    unexplained    rea- 
son,   the    Magistrate's    Messenger    sold 
two  head  of  cattle  belonging  to  the  pre- 
sent   plaintiff,    part   of   the  proceeds  of 
which,  as  far  as  one  can  ascertain,  went 
to  the   plaintiff's   advi^^r  in   the   action, 
I    Mr.  Danes,   and  the   other   part   to   the 
present  defendant,   who  was  the  adviser 
of  the  defendant  in  the  action.     After- 
wards, on  the  apix^al  proving  succi^ssful. 
the  rest  of  this  sum  of  £35  was  paid  to 
defendant    (Temple).        Temple  also    le- 
covercd  from  John  Molemohi  his  tost^  of 
the  previous  action.     He  had  as  well  re- 
ceived certain  amounts  as  advances  from 
the  plaintiff,   part  of  which  was  repaid. 
After  the  first  case  had  been  heard  and 
the       ap])cal   had    been    allowed,    John 
Molemoni    intimated    his    intention    of 
bringing  a  eecond  action  against  the  pre- 
sent   plaintiff,    and,    according     to    the 
defendant's    plea,     thia   £35   was    to    lx» 
left   by   plaintiff  in  eottloinent   of  defen- 
dant's   fees    in    the    action    which      was 
about  to  be  brought — that  was  that  thif; 
£35  was  to  be  kept  as  a  deposit  to  secure 
the  attorupy's  co-^ts  in  case  further  pro- 
cee<lings  should  lie  taken.     On  this  point 
we  have  the  defendant's  own  statement, 
in  which  he  says  the  agr<M»mont  between 
him.self  and  plaintiff  wa.s  that  he  wa-s  to 
pay  him  £35  as  an  amount  stated  as  hi?: 
f<»e    in    the   fK»cond    action,    exclusive   of 
disbursements.        Against    this   we   have 
the  positive  denial   of  the  plaintiff,   and 
we  have  al.so  the  evidence  of  Temple's 
own  interpreter,  who  apparentlv  acts  on 
beha.lf  of  the  defendant,  and  wliose  evi- 
dence.  I  think,   is  very  im-portant     and 
conclusive  on  this  point.     He  saji;  what 
took  place  is  that  Temple  asked  plaintiff 
to   bo  allowed   to  keep  the   £35   for  the 
two   oxen  to   work   up  th?  second  case. 
Now,  what  is  the  meajiing  of  that,  but 
a  deposit  to  pay  outlay  and  costs  which 
the   agent   might    incur   in  the      second 
case?       The      interpreter  says   that   the 
plaintiff  agreed  to  tnis.     The  second  case 
came    on,    and    John    Molemohi    failed, 
and  an  appeal  was  taken,  and  he  failed 
also    in   the  appeal,    and    it    is   common 
cause  that  Temple  recovered  all  his  costs 
to  which    he    was   entitled    in    both  the 
second    action    and    the    second      appeal 
from     the    other     Bide.       Tlie     Magis> 
trato     had      an      extraordinarv     state- 


I( 


CAPE  TIMES"  LAW  REPORTS. 


973 


ment  in  his  judgment,  in  which  he 
Beentu  to  imply  that  wh^n  a  oHent  de- 
posits money  with  an  attorney  for  the 
purpoee  of  conducting^  or  defending  an 
action,  even  though  the  attorney  re- 
covers his  costs,  the  client  is  not  en- 
titled to  get  back  his  dei)osit  unloss  at 
the  time  a  specific  agreement  to  that 
efiFect  is  made  botweeii  tho  attornoy  and 
the  client.  This  remarkable  state- 
ment in  his  judgment  cannot  be 
sustained  on  any  ground.  The  Magis- 
trate says  :  "  Plaintiff  probably  expected 
to  get  back  his  costs,  having  got  judg- 
ment for  them  in  both  oases,  and,  as 
a  refund  of  these  appears  to  be  entirely 
a  matter  of  arrangement  between  attor- 
ney and  client,  not  having  made  it, 
the  plaintiff,  an  untutored  native, 
naturally  would  be  dissatisfied  when  he 
ultimately  discovered  that  judgment  for 
such  costs  made  no  difference  to  him 
when  he  had  won  his  case."  One  can- 
not understand  a  Magistrate  making 
such  a  statement  as  tnat.  It  clearly 
does  not  re<iuire  any  previous 
agreement.  It  is  cJear  that  the 
Magistrate  has  gone  altogether  wrong 
in  his  judgment.  The  appeal  will  bo  al- 
lowed, with  costs,  and  judgment  given 
on  tho  claim  in  convention  for  £35, 
which  the  defendant  himself  admits  he 
has  had.  The  defendant  claims  alterna- 
tively for  a  bill  of  costs  which  he  has 
made  up  to  £35,  tho  amount  of  tho 
plaintiff  s  claim.  He  sets  out  certain 
items  and  then  in  order  to  reach  the 
amount  of  tho  plaintiff's  claim  ho  puts 
down  a  lump  sum  of  £2  2s.  6d.  When 
we  look  at  the  bill  of  costs  thero  are 
two  items  referring  to  a  criminal 
charge.  The  present  plaintiff,  when 
the  cattle  were  seized  and  taken  away 
by  the  messenger — why,  I  really  can- 
not understand — while  the  appeal  was 
pci.dihg,  resisted  tho  seizure  of  his 
cattle,  a  thing  which  ho  had  no  right  to 
do,  and  he  was  taken  before  the  ^lagis- 
trato  and  fined.  Tho  attorney  charges 
him  £1  Is.  for  receiving  instructions 
and  £6  6s.  for  defending  him  against 
the  criminal  charge.  Well,  it  may  be 
an  exorbitant  charge  to  make,  but, 
still,  this  was  a  criminal  offence,  and 
tho  Court  is  ndt  in  a  position  to  tax  the 
charge.  Tho  plaintiff  admits  that  ho  did 
not  pay  the  defendant  for  defending 
him,  aivd  probably  soniethinpf  is  due  to 
Mr.  Temple  on  that  acroiint.  Mr. 
Templ-e  had  charjred  him  ^ovcn  j^uineaa 
and  the  (*ourb  will  allow  that  amount, 
but  as  t<i  the  other  itoiiLs  of  the  bill, 
will  grant  absolution  from  the  ini^tanco. 
Tliey  seem  all  to  refer  to  tln»  socoiwl 
action  brought  by  John  Molomohi 
against  the  defendant.  Prinui  fruit ,  tlie 
defendant  is  not  entitled  to  got  his  costs 
from  both  tho  phunliff  and  tho  (lef<Mi- 
dant  in  the  action.  The  ap|)eal  will  l)o 
allowed  with  costs,  and  judgment  will  be 
given  for  the  plaintiff  on  tho  claim  in 
convention  for  £35  and  for  the  plaintiff 
(Temple)  on  tho  claim  in  reconvention 


for  £7  7s.,  and  absolution  from  the  in- 
stance on  tho  remainder  of  the  claim  in 
reconvention.  The  £7  7s.  bill  will  be  »c»t 
off  against  the  amount  awardwl  in  con- 
vention, and  the  defendant  must  pay  tho 
cocjta  in   the   Court  below. 


BENJAMIN  V.  SHORE. 

This  was  an  appeal  from  a  judgment 
of  tho  Resident  Magistrate  of  Montagu 
in  an  interpleader  suit  which  had  been 
brought  to  determine  the  cxecutability 
of  certain  horKO«,  cart,  and  harness. 

An  action  had  been  brought  by  Mr. 
Benjamin  against  Mr.  Steyn  for  £60,  tho 
purchase  price  of  certain  two  horses,  and 
mterest  and  costs.  Judgment  was  given 
for  the  plaintiff,  Benjamin,  against 
Steyn  on  tho  14th  September.  A  writ 
of  execution  was  issued  and  two  horses, 
a  cart,  and  a  set  of  harness  were  attach- 
ed by  the  messenger.  A  letter  of  protest 
was  written  by  tho  agent  of  a  man 
named  Shore,  the  present  respondent. 
Subsequently  a  summons  was  issued  and 
an  interpleader  caso  came  on  for  hearing 
before  the  R.M.  The  Magistrate  gave 
judgment  that  the  horses,  cart,  and  har- 
ness bi»longed  to  Shore,  and  that  they 
were  not  executable.  Against  that  deci- 
sion the  present  appeal  was  brought. 

Mr.  \V.  Porter  Buchanan  was  for  ap- 
ix>llant ;  Mr.  Alexander  was  for  respon- 
dent. 

Counsel  having  been  heard  in  argu- 
ment, 

Buchanan,  A.C.J.  :  One  Benjamin 
obtained  judgiuent  in  the  Magis- 
trate's (V>urt  a-gainst  one  Stoyn,  and 
took  out  a  writ  of  execution  upon 
this  judgment  Under  this  writ  the 
messenger  attached  a  cart,  a  set  of 
harness,  and  two  horses  in  the  posses- 
sion of  Steyn,  whereu|)on  Shore  inter- 
pleaded and  claimed  the  cart,  harnes.s, 
and  horses  as  being  his  property.  In 
this  caso  there  is  no  question  of  the 
credibility  of  witnesses ;  the  only  ques- 
tion is  one  of  law  arising  under  tho 
following  circumstances.  Snore  origin- 
ally hired  a  cart,  harness,  and  pair  of 
horses  to  Steyn,  for  which  Steyn  was  to 
pay  £5  a  month.  This  hiring  was  in 
terms  of  a  written  document,  and  the 
agreement  was  to  last  for  a  period  of 
five  months.  After  the  expiration 
of  tho  five  months  Steyn  was  al- 
lowed to  contiiuie  in  possession  of  the 
property,  and  he  says  he  r<!ceived  per- 
mission— and  in  this  Shore  agrees  with 
him — to  barter  tho  horses  at  his  pleasure 
on  the  understanding  that  at  any  time 
wh(»n  calliMl  upon  by  him  he  was  to  de- 
liver to  Shore  two  horses,  or  their 
v.'ilue.  Thereupon  Steyn  first  bartered 
oji'*  of  the  horsi's,  and  then  the  other. 
Tln->e  horses  li4»  ai,'ain  bartered.  makit'L' 
a  considerable  profit  for  hini">elf  onlhc-e 
transactions.  In  ono  ease  he  received 
£20,  in  another  £13,  and  in  a  third  in- 


974 


fi 


CAPB  TIMEB"  LAW  REPORTS. 


stance   ho   rowivcd  two  h(»r«os  for  one. 
All   tho  transactions  were   for  the  brnc- 
fit  of  Stoyn.      Ho  did   not  act  as  agont 
for    Shoro;    on    tiio   contrary,    he    acted 
for    himself,    and    has    received    all    the 
benefits.      Had   tho   horses   which    were 
seized    been    tho    original    horses    hired 
by    Steyiv    they  could    not  have      been 
taken    in    execution,    but    when      onoe 
fthoro  allow^ed  the  property  to  be  used 
for    another    person  s    business    and    for 
another's  profit  he  lost  his  ownership.  As 
a  pure   question  of    law,  independently 
altogether  of  the  evidence,  I  think  the 
magistrate   was  wrong   in    holding   that 
these   horses   belonged   to    Shore.    They 
were  clearlv    Stoyn's  property,   and   ac- 
quired  by   him,  thoug^h      obtained,     no 
doubt,  out  of  the  original  property  leased 
to  him  by  Shore.     The  appeal  will,  there- 
fore,   lx>  allowed,   with   costs,   and  judg- 
ment in  the  Magistrate's  court  altered  to 
a  declaration  that   th©  horses  are  liable 
to  seizure  in  execution  of  the  writ  ob- 
tained by  the  appellant.    As  to  the  costs, 
in  tho   Magistrate's  court,   the  plaintiff 
has  succeeded  in  recovering  nart  of  his 
property,    and    he    is   entitled    to   costs. 
The  anpeal  will  be  allowed  with  costs, 
and    the    Magistrate's    court    judgment 
altered  to  one  declaring  the  horses  exe- 
cutable,   but   the   cart   and   harness   not 
executable. 


SECOND    DIVISION. 


[Before  theHon.  Mr.  Justice  Maasdobp.] 


HERMAN  V.  TYPIELD. 


f       1905. 
J  Nov.  24th. 

Mr.  P.  S.  T.  Jones  moved  for  an  inter- 
dict restraining  the  respondent,  F.  Ty- 
field,  from  trespassing  on  the  property 
of  tho  petitioner,  at  lliddingh  Avenue, 
Mill-stroet.  The  respondent  had  re- 
reived  leave  to  plaster  a  certain  wall, 
but  now  he  was  tarring  it,  to  which  the 
petitioner  objected. 

Interdict  granted,  with  leave  to  the 
respondent  to  move  to  set  it  aside. 


SUPREME  COURT 


SECOND    DIVISION. 


[Before  the  Hon.  Mr.  Justice  Hoplky.] 


NAN 


NNUCCI,    LTD.     V.         /NoJ!^2Ath. 
KEATING.  \  ^,th. 

This  was   an   action  brought  by  Nan- 
nucci,    Ltd.,    of    Capo    Town,       against 


Denis  James  Keating,  of  Cape  Town, 
to  recover  the  sum  of  £189  2s.  9d.,  al- 
leged to  be  due  as  a  result  of  certain 
transactions  l>etween  the  parties. 

The  plaintiff's  declaration  was  as  fol- 
lows: 

1.  Tho  plaintiff  is  a  company  duly  re- 
gistered with  limited  liability  under  Act 
25  of  1892  in  this  colony,  and  it  carries 
on  business  in  Cape  Town  and  else- 
where ;  the  defendant  resides  and  carries 
on  businoiiis  in  Cape  Town. 

2.  In  or  about  March,  1904,  the  de- 
fendant, who  was  then  in  partnership 
with  certain  persons  named  Isodore 
Sangiorgio  and  Locurzio,  took  over  in 
his  own  name  and  interest  the  business 
of  the  partnership,  including  certain  lia- 
bilities to  the  plaintiff  compaiiy  who 
had  financed  the  said  partnership. 

3.  The  plaintiff  company,  subject  to 
the  stipulations  i  i  paragraph  4  nereof, 
agreed  to  this  arrangement,  and  agreed 
at  the  request  and  for  the  accommoda- 
tion of  the  defendant  to  advance  further 
moneys  to  the  defendant  in  accordance 
with  the  requirements  of  his  business 
(and  otherwise),  and  more  particularly 
in  connection  w!th  a  certain  contract 
whereunder  deft^ndani  had  to  erect 
buildings  in  connection  with  the 
Nazareth  House  for  tho  Sisters  of 
Nazareth  in  Capo  Town. 

4.  The  plaintiff  company  furthefi  sub- 
ject to  the  said  stipulations,  leased  to 
the  defendant  certain  premises  at  98, 
Long-street,  Cape  Town,  and  provided 
clerical  assistance  for  the  purposes  of 
defendant's  business  at  a  weekly  charge 
of  £2. 

5.  The  said  rompany  stipulated  that 
the  moneys  which  should  become  due 
to  defendant  under  the  said  building 
contract  should  be  paid  direct  to  the 
plaintiff  company  in  part  payment  of 
advances  made  by  the  plaintiff  company 
under  the  aforesaid  arrangement,  and 
of  any  other  moneys  which  the  defend- 
ant m-ight  from  time  to  time  owe  plain- 
tiff: and  the  plaintiff  furtlier  stipulated 
that  the  defendant  should  pay  interest 
at  the  rate  of  one  per  centum  per  men- 
sem on  the  amount  of  the  balance  of  his 
indebtedness  from  time  to  time. 

6.  The  defendant  on  tho  10th  March, 
1904,  by  letter,  gave  the  necessary  au- 
tliority  to  the  Mother  Superior  (acting 
for  and  on  behalf  of  the  Sisters  of 
Nazareth),  to  pay  all  moneys  due  under 
the  building  contract  to  Oreste  Nan- 
nucci  who  was  then  the  managing  direc- 
tor of  the  plaintiff  company.  The  said 
Nannucci  as  such  managing  director  re- 
ceived the  said  moneys  till  payment 
thereafter  was  stopped  as  hereinafter  set 
forth. 

7.  Thereafter  for  a  period  of  35  weeks 
till  the  31st  October,  1904,  the  defendant 
occupied  t^he  office  and  received  the  cleri- 
cal assistance  aforesaid. 

8.  The  plaintiff  company  further  prior 
to  the  said  date  supplied  sand  for  the 
defendant's  business,    and  rendered  ser- 


"CAPE  TIMES"  LAW  REPORTa 


975 


vice  in  cartage  of  the  sand,  all  at  de- 
fendant's Bpecial  instance  and  request, 
for  the  sum  of  £58  3e.  6d.,  the  price 
specially  agreed  to  between  bhe  parties. 

9.  On  the  31st  October,  1904,  the  de- 
fendant had  incurred  liability  to  plaintiff 
in  the  sum  of  £3,494  lis.  Id.  for  liabili- 
ties outstanding  at  the  date  of  the  agree- 
ment aforesaid,  and  for  moneys  which 
plaintiff,  from  time  to  time,  advanced 
under  the  agreement  aforesaid,  and  at 
defendant's  special  instance  and  request, 
and  for  rental  and  clerical  assistance  and 
for  sand  and  cartage,  and  for  interest  due 
all  as  aforesaid.  At  the  said  date  the 
plaintiff  had  received  on  account  of 
defendant  sums  amounting  in  all  to 
£3,211  lis.  lOd.  Accounts  showing  full 
particulars  of  the  matters  in  this  para- 
graph referred  to  have  been  duly  ren- 
dered to  defendant. 

10.  On  or  about  the  31st  October,  1904, 
the  parties  hereto  agreed  that  in  lieu  of 
the  charge  of  £2  per  week  for  rent  and 
clerical  assistance  the  defendant  should 
p^  £5  a  month  as  and  for  rent  of  the 
office  alone.  This  arrangement  re- 
mained until  terminated  by  defendant  in 
February,  1905. 

11.  On  the  31st  October,  1904,  the  de- 
fendant owed  the  ^um  of  £282  186.  3d. 
to  plaintiff,  for  which  plaintiff  held  a 
promissory  note,  signed  by  defendant, 
for  £213  8s.  2d.  in  respect  of  certain 
amounts  due  originally  to  Nannucci  and 
Gasloli,  which  amount?  has  since  been 
paid  by  defendant  under  judgment  of 
this  Court. 

VA,  Since  the  31st  October,  1904,  the 
defendant  has  become  further  indebted 
to  plaintiff  for  advances  made  similar 
to  those  made  prior  to  the  said  date. 
Particulais  of  his  said  further  indebted- 
ness are  set  forth  in  annexure  B  hereto. 

13.  The  defendant  is  indebted  to  the 
plaintiff  in  the  sum  of  £189  2s.  9d.,  as 
balance  by  reason  of  the  premises. 

14.  On  the  14th  Februarv,  1905,  the 
defendant  wrongly  and  unlawfully  di- 
rected the  Mother  Superior  aforesaid 
to  make  no  further  payments  to  plaintiff, 
under  and  by  virtue  of  the  letter  in  an- 
nexure A  set  forth.  The  defendant  was 
at  that  date  still  largely  indebted  to 
plaintiff  under  the  agreement  aforesaid. 

15.  On  the  16th  March,  1905,  the 
Mother  Superior  aforesaid  was  ordered 
to  pav  into  Court  the  sum  of  £200,  be- 
ing the  balance  due  to  the  said  build- 
ing oontraet  with  the  defendant,  the  said 
pavment  in  Court  to  abide  the  furtTher 
oroer  of  this  honourable  Court. 

16.  The  plaintiff  company  has  in  its 
IJOSsesQion  42  barrels  of  cement  belonging 
to  defendant,  which  it  hereby  tenders 
to  deliver  to  defendant  as  against  pay- 
ment of  t?he  balance  herein  claimed. 

17.  All  things  have  happened,  all  con- 
ditions have  been  fulfilled,  and  all  times 
have  elapsed  necessary  to  enable  the 
plaintiff  to  claim  the  said  sum  of  £189 
2s.  9d.,  but  the  defendant  wrongfully  and 


unlawfully  fails  and  neglects  to  pay  any 
part  thoroof,  though  repeatedly  request- 
ed so  to  do. 

Wherefore  the  plaintiff  claims :  (a) 
Payment  of  the  sum  of  £189  28.  9d.,  bal- 
ance due  as  aforesaid,  plaintiff  tendering 
delivory  of  42  barrels  of  cement  as  afore, 
said;  (b)  an  order  directing  that  the 
said  sum  of  £200  in  the  hands  of  the 
Registrar  of  this  Ck>urt  be  paid  out  to 
plaintiff  in  satisfaction  pro  tanto  of  the 
aforesaid  sum  and  the  costs  of  this  action, 
and  of  proceedings  in  this  honourable 
Court  relative  to  the  said  sum  of  £200; 
(c)  interest  a  tempore  morae;  (d)  alterna- 
tive relief ;  (e)  costs  of  suit. 

The  defendant's  plea  was  as  follows: 

1.  Defendant  admits  the  allegations  in 
paragraphs  1,  2,  3,  4,  5,  and  6  of  the 
declaration,  save  and^  except  that  he 
says  that  the  words,  "in  accordance  with 
the  re9uirements  of  his  business  (and 
otherwise)  and  more  particularly,"  in 
paragraph  3  should  be  deleted,  and 
further,  that  the  following  words  should 
be  added  at  the  end  of  the  last  line 
of  the  5th  paragraph,  to  wit:  "Arising 
out  of  or  in  connection  with  the  said 
contract  referred  to  in  paragraph  3  of 
the  declaration." 

2.  In  reference  to  the  allegations  in 
paragraph  7,  he  says  that  he  agreed  to 
pay  £2  per  week  in  recipect  of  the  office 
and  the  clerical  assistance  \  therein  re- 
ferred to  only  during  the  time  his  con- 
tract with  the  Sisters  of  Nazareth  was 
continuing,  which  contract  terminated  on 
30th  September,  1904,  up  to  which  date 
he  admits  he  is  liable  for  the  sum  of 
£2  per  week,  amounting  in  all  to  £62 
in  respect  of  31  weeks ;  other- 
wise, he  denies  the  allegations  in  the 
said  paragraph. 

3.  He  says  that  he  agreed  to  accept 
sand,  and  the  cartage  thereof  from  and 
by  plaintiff  company  at  the  same  price 
at  which  he  was  receiving  supplies  and 
delivery  from  other  persons,  at  which 
rate  plaintiff  company  is  entitled  to  the 
sum  of  £37  6(9.,  in  respect  of  sand 
actually  carted  and  delivered,  otherwise 
he  denies  the  allegations  in  paragraph  8. 

4.  On  31st  October,  1904,  he  says  he 
admits  that  he  was  indebted  to  plaintiff 
company  in  the  sum  of  £3,232  5s.  5d., 
and  further  sum  of  £213  88  2d.,  in  re- 
spect of  certain  indebtedness  of  Nan- 
nucci and  Gasloli,  assumed  by  defendant 
and  secured  by  the  promissory  note  re- 
ferred to  in  paragrapn  11  of  the  declara. 
tion,  the  details  of  which  former  sum 
will  appear  from  the  annexure  hereto,  to 
which  defendant  craves  leave  to  refer. 
At  the  said  date  plaintiff  company  had 
received  on  account  of  defendant  sums 
amounbing  to  £3,211  128.  lOd.,  save  as 
is  herein  stated  defendant  denies  the 
allegation  in  paragraph  9. 

5.  He  admits  that  he  occupied  the  office 
during  January  and  February,  1906> 
under  an  agreement  whereby  he    undep- 


976 


CAPE  TIMES"  LAW  REPORT& 


took  to  pay  £5   per  month  as  and  for 
rent,  but  otherwise  denies  paragraph  10. 

6.  He  admits  that  he  paid  the  pro- 
miofiory  note  under  judgment  of  thia 
Court,  but  as  to  the  other  allegations 
in  paragraph  11  he  refers  to  the  allega- 
tions in  paragraph  4   hereof 

7.  He  says  that  he  admits  tnat  he  be- 
came indebted  to  plaintiff  subsequently 
to  Slst  October  in  the  sums  shown  in 
detail  in  the  annexure  hereto ;  but  other- 
wise he  denies  the  allegations  in  psra- 
graph  12,  and  craves  leave  to  refer  to 
the  annexure  hereto,  but  in  especial  in 
respect  of  the  items,  £75  68.  5d.  and  £23 
148.  7d.,  appearing  in  the  said  account; 
he  eayc  be  does  not  admit  the  correct- 
ness of  the  amounts,  and  further  sa^ 
they  are  claimed  in  respect  of  certain 
flour,  which  said  flour,  however,  was  im. 
ported  by  0.  Z.  Nannucci,  and  nut  by 
plaintiff  company,  and  was  so  imported 
on  behalf  of  O.  Z.  Nannucci  and  de- 
fendant as  partners,  and  that  plaintiff 
company  is  not  entitled  to  claim  in 
respect  thereof  in  this  action,  and  even 
if  plaintiff  company  is  so  entitled  to 
claim  (which  he  denies),  he  says  that  he 
jdefenoant)  is  not  personally  and  solely 
liable  therefor. 

8.  He  says  that  prior  to  the  issue  of 
summons  ho  tendered  to  pay  the  sum 
of  £62  14s.,  which  is  in  excot^e  af  the 
amount  to  which  plaintiff  compimy  is 
entitled,  as  shown  by  the  account  here- 
unto annexed,  but  notwitht>taudiii^,  he 
is  willing  and  herein  again  tenders  to 
pay  the  aforesaid  sum  of  £62   148. 

9.  He  admits  the  allegations  in  para- 
graphs 14  and  15,  save  that  he  denies 
that  he  acted  wrongfully  and  unlawful- 
ly, but  says  that  ho  was  compelled  to 
act  as  in  the  former  paragraph  14  stated, 
in  order  to  prevent  plaintiff  obtain- 
ing wrongfully  and  unlawfully  a  larger 
amount  than  he  was  entitled  to  out  of 
the    defendant's    moneys. 

10.  He  sayB  that  ho  purchased  cor- 
tatin  barrels  of  cement  from  plaintiff, 
but  in  or  about  December.  1904,  plain- 
tiff wrongfully  an<J  unlawfully  refused 
to  deliver  them  to  him,  and  thereby  he 
became  entitled  to  and  did  tre.at  the 
contract  of  purchase  and  sale  as  re- 
scinded ;  he  denies  that  plaintiff  is  in 
possession  of  42  barrels  of  cement  be- 
longing to  him. 

11.  He  admits  that  he  refuses  to  pay 
the  sum  of  £189  2s.  9d.,  or  any  otJheV 
sum  than  that  hereinbefore  tendeovd, 
but  otherwise  denies  the  allegations  in 
paragraph  17.  Wherefore,  save  as  is 
neixjin  tendered,  he  prays  that  plain- 
tiff's claim  may  be  dismissed,  with  costs. 

Mr.    Clofle    (with    him  Mr    Swift)    for 

glaintiffs;  Mr.  Benjamin  (with  him  Mr. 
truben)   ff>r  defendant. 

S<ime  argument  took  plac<^  as  to 
whether  the  accounts  should  l>o  refcnvH 
to  a  referee  for  re|K)rt,  hut  eventually 
it  was  decided  to  proceed  with  the  case. 

Oreste  Zachariah  Nannucci,  manag- 
ing director  of  Nannucci  Ltd.,  6«iid  that 


in  March,  1904,   Keating  came  in  as   a 
partner  with    two    Italians,    whom    wit- 
ness  was  supporting  in  carrying  out   a 
contract  at   Nazaretn  House.       Keating 
afterwards  paid  out  the  other  partners, 
and  witness   agreed  to  supp«)rt    him,    it 
being    arranged    that    all   moneys    were 
to  be  paid  to  witness.       The  firm  con- 
tinued to  make  advances,  and  to  do  aJl 
hi»  clencal  work,  and  he  was  also  given 
a  room  a«  an  office,  for  which  a  sum  of 
£2  a  week  was  charg:ed.       They  bought 
a  large  plant    for  building,    including  a 
l)ortable   railway,   two  brick     kilns,  and 
other    materials.         The   firm   advanced 
money  in   connection  with    the  building 
of  a  house  for  Mr.    Fillis,  and  a  number 
of  i>ersonal   advances  were  made  to  the 
defendant.        These    were   outside      the 
Nazareth   House   contract.        The  secre- 
tary of  the  company  devoted  nearly  all 
his  time  to  keeping  the  books.       Keat- 
in<r    went    to    England,    and    afterwards 
witness    also    went  to   England,   and  in 
London    there    was    a    proposition    that 
he  and   defendant  (should   form   a  part- 
nership in  certain  matters.       Some  flour 
was    ordered    in    connection    with       the 
partnership.        Upon  their  return,  they 
tendered    for   four  or    five     jobs    unsuc- 
cessfully,   and   it    was   then    I  in    Decem- 
ber)   agreed    that    Keating  snould    take 
over  the  concerns,   and  that  they  should 
have    no    further   transactions   together. 
The       Nazareth       House    contract    was 
finished    in   October.        The   firm     con- 
tinued to  keep  the  books  up  to  Novem- 
ber, but  op.ly  charged  up  to  the  termina- 
tion of    the    Nazareth    House    contract. 
It  WB6  originally  arranged  that  the  bank 
interest    should   be  charged    on   the   ad- 
vances,   and    that   the   firm  should   take 
half  the   profits.        A    signboard    (Keat- 
ing and    Co.)    was   put    up   outside  the 
office,  and  the  cost  of  this — £3 — was  one 
of    the    items    claimed   for.        This    was 
paid  for  before    the  partnership   ended, 
and   was  one  of  the  matters  for  which 
the  defendant    was    liable,    as    he    took 
over  everything.        The      flour       trans- 
action was  taken  over  by  Keating.  The 
latter    afterwards    asked  him  to    finance 
hira    in    the  flour  transaction,    but  wit- 
ness  refused.        When    the   bill    became 
due,     he    again    came    to    witne<?s,    and 
asked  him  to  assist  him.  but  he  refused. 
Ultimately,   however,   witness  agreed  to 
give  him    a  che<jue  for  £73    from    Nan- 
nucci   Ltd.  That    was   on    the    28th 
Dooomber,   and  the  flour  did  not  arrive 
until  February.       In  January  there  was 
a    quarrel,       owing    to     the     defendant 
suing  a  party  for  a  debt,    after  witnfts 
had  lieen   given  to  understand   that  the 
matter   had  been  fixed  up.        The  wit- 
nefs   proceeded  to   depose  as  to  certain 
corres])ondenco,        and    wont     in    detail 
through    other   item.*?  referred  to  in    the 
(led a  ration. 

The  witnc<«s  was  oross-exaniine<l  at 
lenarth  by  Mr.  IVMijaniin  regardinsr  ar- 
rangements made  in  conversation,  and 
the  relations  at  different  times  between 
the  parties. 


CI 


CAPfi  TIMES"  LAW  REPORTS. 


977 


Postea  (November  29th). 

Mr.  Benjamin  intimated  that  an 
agreement  had  been  arrived  at  between 
the  parties. 

[Hopley,  J.  :  I  am  very  pleased  to 
hear  it.] 

Mr.  Close  said  that  the  terms  of  the 
settlement  were  that  the  defendant 
should  pay  to  plaintiff  the  sum  of  £100, 
instead  of  the  £69  he  had  tendered,  to- 
gether with  the  costs  of  this  and  pre- 
vious proceedings,  and  that  the  £200 
deposited  in  court  should  be  released 
and  paid  to  the  plaintiff  for  that  pur- 

^055C. 

Judgment  was  entered  accordingly. 


SUPREME  COURT 


FIRST    DIVISION. 


[  Before  the  Hon.  Mr.  Justice  Maasdokp.] 


GOW  V.  STEWARDS.  AFRICAN  f       ^nn-; 
MBTHODIST      EPISCOPAL^  V/.«r   oof I, 
CHURCH.  (^i>OV.  iJStn. 

Mr.  P.  S.  T  JoTies  moved,  on  behalf 
of  the  petitioner,  who  is  the  general 
superintendent  of  the  African  Methodist 
Kpiscopal  Church,  for  an  order  direct- 
ing the  stewards  of  the  church  at  Wee* 
London  to  deliver  up  the  keys  of  the 
church,  and  io  sjhow  cause  why  they 
should  not  acknowledge  the  Rev.  A. 
A.  Morrison  as  the  proper  pastor,  who 
hnd  been  appointed  at  the  Beaufort 
VVosfc  Conference  to  take  the  place  of 
th<»  Rev    Mr.  Spawn. 

The  ^ospondont^  wort'  (►rdrrod  forth- 
with to  deliver  up  the  keys  of  the 
church,  and  to  be  interdicted  from  ob- 
structing the  services  to  be  held  by  the 
Rev.  Mr.  Morrison  until  December  12, 
and  a  rule  issued  calling  upon  them 
to  show  cause  by  the  12th  Dooember 
why  they  should  not  be  interdicted  in 
future  from  obstructing  the  services 
conducted  by  Mr.   Morrison. 


PATE&80N  V.  HEYDENRYCH. 

This  was  an  action  brought  by  James 
E.  A.  Patorsoij,  broker  of  (?ape  Town, 
to  recover  from  Benjamin  ITeydoiirych 
the  sum  of  £75.  which  th<»  pin  in  tiff 
nlloj<«»<l  tho  defendant  aj?ro«'d  to  pay  on 
a  certain  ^otjlcnuMlt. 

The  d«»r-laratl(»ii  .set  out  that  the?  ])lain- 
tiff  was  a  broker  and  agent,  of  Cape 
Town,    and    the    defendant   was   also  of 


Caiw  Town.  In  April,  1904,  plaintiff 
and  one  Reginald  C.  de  Heton  were  in 
partnership,  and  the  partnership  had  a 
claim  against  one  Louis  Pitt  and  \Vm. 
Twine  on  two  promissory  notes,  amount- 
ing to  £155.  Judgment  was  taken 
out  against  Pitt,  who  approached  At- 
torney Steer  with  a  view  to  negotiar 
tions.  The  defendant  was  also  a  credi- 
tor of  Pitt's.  It  was  agreed  between 
Steer,  Pitt,  and  Heydenrych  that  De 
Heton  .should  rooeive  from  Pitt  a 
covering  bond  for  his  half-share.  The 
defendant,  it  was  further  arranged, 
was  also  to  receive  a  covering  bond, 
ranking  prior  to  De  Heton's,  for  a 
sum  sufficient  to  cover  Pitt's  indebted- 
ness to  him,  and  an  additional  £75, 
which  he  agreed  to  advance  to  enable 
Pitt  to  pay  out  Paterson,  who  de- 
clined to  accept  anything  but  a  settle- 
ment. It  waa  further  agreed  that  so 
foon  as  a  promissory  ni)t»  to  Heyden- 
rych  and  the  covering  bonds  had  been 
passed,  the  defendant  was  to  pay  the 
sum  of  £75  to  Steer  for  the  plamtiff. 
At  an  interview  Steer,  at  the  plaintiff's 
re<iuest,  asked  the  defendant  to  hand 
over  the  cheque  for  £75,  and  the  de- 
fendant refused  until  the  documents 
were  signed.  Subsequently  the  docu- 
ments were  signed  and  completed,  but 
the  defendant  declined  to  fulfil  his  part 
of  the  agr<M}ment-.  In  consideration  of 
the  defendant's  promise,  the  plaintiff 
stayed  all  further  proceedings  against 
Pitt,  and  had  now  lost  his  remedy,  as 
both  the  defendant  and  De  Heton  had 
covering  bonds,  and  Pitt's  estate  had 
become    insolvent.  Plaintiff    claimed 

£75,  with  interest  and  costs. 

The  plea  set  out  that  about  the  end 
of  April  Pitt,  who,  in  conjunction  with 
his  wife,  was  indebted  to  the  defendant 
on  three  notes,  amounting  to  £205  56., 
applied  to  the  defendant  for  a  loan  of 
£75.  whorewith  to  discharge  his  lia- 
bility to  the  plaintiff.  The  defendant 
agreed,  on  condition  Pitt  signed  a  note 
for  the  amount  owing  to  the  defendant 
interest  thereon  to  the  1st  June,  1904, 
interest  due  on  a  certain  note  for 
£105.  and  the  said  sum  of  £75  to  be 
lent— in  all,  for  £380  9a.;  further,  that 
the  amount  of  the  note  be  paid  on  the 
lat  June.  1904.  and  that  Pitt  and  his 
wife  ^hould  pass  a  covering  bond  to  the 
defendant  to  rank  prior  to  that  of  De 
Heton.  It  was  further  agreed,  if  the 
note  was  not  paid  on  the  due  date,  Pitt 
should  pay  £15  per  month,  or  part  of 
a  montn,  as  interest.  The  defendant 
denied  he  entered  into  the  agreement 
as  stated  by  the  plaintiff.  The  note 
wa.s  not  paid  at  its  due  date,  and  in 
August,  when  it  was  overdue.  Steer  ap- 
plied to  defendant  for  payment  of  £75. 
and  the  defendant  refused  to  reeoifnise 
plaintiff's  right  to  receive  any  money 
from  him,  hut  expressed  his  willingness 
to  pnv  to  Pitt  the  sum  of  £45,  being  the 
Iwlanee  of  £75,  after  deduction  of  two 
montlis'  interest  agreed  upon  against  re- 


978 


"CAPB  TIMES"  LAW  REPOBTO. 


ccipt  of  tbo  bonci  and  tho  ppomwaor.? 
note  duly  sijfiiod.  The  plaii^tiflT  had 
ample  opportunity  of  taking  action 
affainst  Pitt  iM'fore  his  iiuiolvency.  The 
balance  of  £45  had  Ikhmi  appropriate*! 
by  the  defendant  towards  paynuMit  of 
interoct  on  the  note  for  £560  9^.  De- 
fendant praved  that  the  plaintiff's  claim 
be  dismissed  with  oosta. 

Mr.  Soarle.  K.C.  (with  him  Mr.  D. 
Buchanan)  for  plaintiff;  Mr.  Burton  for 
defendant. 

James  Edward  Alexander  Paterson 
stated  that  in  April  Uat  he  was  carry- 
ing on  business  with  De  Ileton.  The 
firm  held  two  bills  made  by  Pitt  to 
the  amount  of  £155.  About  the  end  of 
April  judgment  waa  given  against  Pitt. 
On  the  30th  April  the  partnership  was 
dissolved.  Pitt  approached  witness,  and 
subsequently  witne.w  met  the  defendant 
at  Steer's  ofi^,  when  there  were  pre- 
sent De  Heton  and  Steer.  The  deien- 
dant  agreed  to  take  a  covering  bond 
and  a  promissory  note  for  money  owing 
by  Pitt,  and  Mr.  De  Heton  also  agreed 
to  take  a  covering  bond  and  a  promis- 
sory note  for  his  half-share.  Seventy-five 
pounds  wa6  to  be  paid  by  the  defendant 
to  Mr.  Steer  for  witness's  balf-share. 
At  that  time  witness  insisted  on  pur- 
ment  in  cash,  and  there  was  no  men- 
tion of  the  amount  of  Pitt's  indobioJ- 
ness  to  the  defendant.  The  defe.i«Iarit 
agreed  to  pay  the  £75  to  Mr.  Steer 
for  witness.  If  the  £75  had  not  bcsn 
secured  in  that  way,  witness  would  ha  ire 

f>ushed  Pitt  for  the  money,  and  he  be- 
ieved  he  would  have  got  it.  Witness 
refused  to  accept  £45  after  he  had 
written  several  letters  to  Mr.  Steer. 
Mr.  Pitt's  estate  had  since  been  assign- 
ed. Witness  had  not  been  paid  his  £75 
or  any  part  of  it. 

Cross-examined  by  Mr.  Burton :  The 
reason  he  pressed  Pitt  into  court  was 
to  have  all  the  accounts  in  before  the 
dissolution  of  partnership.  Witness  did 
not  pay  the  expenses  of  passing  the 
bond.  Subsequent  to  the  arrangement 
Mr.  Steer  asked  the  defendant  for  wit- 
ness's cheque,  and  he  replied  that  he 
would  furnish  it  when  the  documents 
were  signed.  The  arrangement  was  not 
that  Heydenrych  was  to  advance  the 
£76  to  Pitt.  Witness  heard  there  was 
r>ome  delay  in  sigrning  the  note  and  pass- 
ing the  bond. 

Arthur  Wallace  Steer,  attorney,  who 
acted  for  Paterson  and  De  Heton,  and 
recovered  judgment  against  Pitt  on  two 
promissory  notes,  stated  at  the  meet- 
ing in  his  office  it  was  agreed  that  the 
dotendant  was  to  advance  for  payment 
to  Paterson  £75,  that  be  was  to  take  a 
covering  bond  for  £500  to  cover  till." 
advance  and  previous  indebtedness  due 
to  him  by  Mrs.  Pitt  and  Pitt  himself, 
snd  De  Heton  was  to  get  a  covering 
bond  for  his  half-share,  plus  interest, 
and  that  De  Hoton's  bond  was  to  bo 
subsequent  to  that  of  the  defendant 
Witness  took  it  that  all  parties  under- 


stood the  arrangement.  Upon  that  pro- 
ceedings agaiwt  Pitt  were  stayed.  The 
delay  in  passing  the  bonds  was  due  to 
some  delav  in  >igiiing  the  bill  between 
IMtt  and    fleydonrych. 

(^ross-exaniined  by  Mr.  Burton :  When 
the  £45  was  offered  by  the  defendant, 
witness  did  not  remember  him  saying 
that  that  was  tlic  utmost  he  could  give 
to  Pitt. 

Re-examined  by  Mr.  Searle :  It  was 
cleariy  unden»tood  in  the  original  ar- 
rangement that  the  defendant  was  to 
pay  witness  £75  for  the  plaintiff. 

Louis  Pitt  gave  corroborative  evidence 
as  to  what  took  place  at  the  interview. 

Mr.  Seaxle  closed  his  caee. 

Vintceut  Alexander  van  der  Byl.  at- 
torney for  the  defendant,  said  that 
Mr.  Orpen  called  upon  him  in  reference 
to  the  mortgage  bond,  and  said  that  be- 
fore they  could  pass  transfer,  Mr.  Hey- 
denrych would  have  to  release  the  bcmd. 
Witness  told  Mr  Orpen  he  would  have 
to  consider  the  matter,  as  it  might  pre- 
judice Heydenrych  in  the  case  then 
pending  in  regard  to  the  transaction. 
Subsequently  witness  told  Mr.  Orpen 
that  he  did  not  think,  under  the  cir- 
cumstances, it  would  prejudice  Heyden- 
rych, and  the  latter  then,  upon  wit- 
ness's advice,  signed  the  release. 

Benjamin  J.  Heydenrych,  the  defend- 
ant, said  ho  had  certain  promissory 
notes  made  in  his  favour  by  Pitt  and 
his  wife,  prior  to  1904.  Some  were  made 
in  favour  of  Twine,  but  witness  held 
them  all.  They  amounted  to  £205  5e. 
Pitt  wrote  witness  in  April,  and  after- 
wards called  on  him  at  Observatory, 
and  asked  for  a  loan  of  £500.  This  was 
about  the  20th  April.  Witness  refused 
to  make  the  loan.  Towards  the  end  of 
the  month  Pitt  called  and  asked  for  a 
loan  of  £75,  saying  it  was  to  pay  off  a 
debt  to  Paterson  and  De  Heton,  and 
that  the  former  wanted  the  money,  and 
the  latter  had  agreed  to  take  a  bond 
Witness  said  that  if  Pitt  showed  him  the 
!  property  he  would  consider  the  matter. 
Witness  saw  the  properties,  and  agreed 
I  to  advance  the  money  if  Pitt  would  give 
'  a  bond  covering  all  his  indebtedness.  He 
!  asked  Pitt  if  there  were  any  other  cre- 
I  ditors.  saying  that  if  there  were  it  might 
I  bo  undue  preference.  Pitt  assured  him 
there  wore  no  other  creditors.  Witness 
gave  him  the  note,  and  read  it  to  him. 
and  told  him  to  take  it  home  and  read 
it  to  his  wife.  Witness  stipulated  that 
the  money  must  be  paid  at  the  due 
date ;  otherwise,  that  interest  should  ho 
paid  at  the  rate  c4  £15  ]/er  month,  or 
part.  Pitt  did  not  bring  the  note  back. 
The  first  witness  heard  of  the  note  being 
signed  was  in  July,  when  Mr.  Steer 
told  him  the  note  had  been  signed  and 
Mie  bond  passed.  He  asked  wrtness  for 
the  £75.  Witness  said  he  was  not  go- 
ing to  give  Pitt  the  money,  as  tho  pro- 
missory note  was  two  months  overdue. 
Steer  said  he  would  get  the  bond,  but 
wrtness  said  the  bond  was  no  good  to 


"CAFE  TIMES''  LAW  REPORTS. 


979 


bim.  Witness  said  the  most  he  would 
do  would  b©  to  deduct  two  monthH*  in- 
terest and  pay  £45.  Mr.  Steer  said  his 
client  expected  the  money,  but  witness 
said  ho  had  nothin(^  to  do  with  Patter- 
son. Witness  did  not  i>emember  the 
meeting  referred  to  in  Steer's  office.  He 
never  agreed  to  give  the  £75  to  Pater- 
son.  A  couple  of  days  before  he  got 
the  demand  he  met  Paterson,  who  said 
Pitt's  estate  was  assigned.  Witness 
said :  **  I  am  sorry  for  you,  and  I  am 
sorry  for  myself,  because  we  will  both 
lose  our  money."  This  was  in  April. 
Witness  signed  the  deed  of  assignment. 
He  was  a  creditor  of  Pitt's  independent- 
ly of  this.  At  that  time  Paterson  seem- 
ed perfectly  resigned,  and  said  nothing 
about  the  claim  for  £75.  Witness  had 
made  no  claim  on  the  estate  in  respect 
of  the  bond,  or  the  new  promissory 
notes. 

Mr.  Soarle:  You  signed  the  deed  of 
assignment,  as  a  mortgagee?  You  saw 
the  heading  **  mortgagees "  on  the 
deed? 

Witness:  I  did  not  look  at  that.  I 
simply  signed  after  the  last  name  that 
was  on  the  paper. 

You  see  there  is  a  special  list  for 
mortgagees,  and  a  special  list  for  concur- 
rent creditors  ? — That  must  have  been 
put  in  afterwards. 

Do  you  say  you  did  not  know  you 
were  sigmng  as  a  mortgagee?— I  didn't 
know  that.  I  simply  signed  after  the 
last  name  before  me. 

In  further  croes-examinaition,  witness 
said  he  knew  Paterson  would  not  take 
a  bond,  and  that  he  wanted  the  £75  in 
cash. 

Mr.  Searle :  Pitt  came  to  you  because 
he  was  in  difficulties?  You  knew  he 
was  in  these  difficulties? — He  told  me 
he  wanted   the  £75. 

You  don't  deny  that  you  knew  of 
the-ie  difficulties.  People  don't  pay  you 
45  per  cent,  for  money  unless  they  are 
ill  difficulties? — He  paid  60  per  cent, 
to  Paterson. 

We  haven't  had  that.  We  have  it  that 
ho  paid  £2  10s.  a  month.  There  is 
no  suggestion  made  that  that  is  so,  and 
you  should  not  say  so.  Do  you  deny 
that  you  knew  Pitt  was  in  great  difficul- 
ties? Do  you  suggest  he  was  going  to 
pay  you  between  45  and  50  per  cent,  in- 
terest if  he  were  not  in  difficulties? — 
He  came  to  me  and  asked  me  for  a 
loan  of  £75  to  square  off  Paterson,  as 
there  was  a  dissolution  of  the  partner- 
ship,  and   they   wanted   the  money. 

And  I  put  it  to  you  he  told  you  that 
there  would  be  judgment,  and  his  goods 
would  be  attached  unless  you  advanced 
the  money?  That  is  what  Mr.  Steer, 
Pitt,  and  Paterson  say? — No,  no;  he 
did  not  tell  me  anything  of  the  kind. 

You  won't  deny  being  present  in  Mr. 
Steer's  office  when  Pitt,  Paterson,  and 
Mr.  Steer  were  there? — I  won't  deny  it, 
but  I  dcHi't  see  why  I  should  go  there. 

further   cross-examined,    witness   said 


he  told  Mr.  Steer  he  did  not  want  the 
bond. 

Re-oxamiued  by  Mr.  Burton :  The 
£15  per  month  interest  was  not  on  ac- 
count of  ihe  £75  only. 

Reginald  Charles  dio  Hoton,  a  former 
partner  in  the  firm  of  Paterson  and  De 
Hoton,  deposed  that  the  arrangement 
with  regard  to  the  debt  of  Pitt  to  the 
firm,  was  that  it  should  be  divided, 
Paterson  to  be  paid  out  by  Pitt,  and 
witness  to  got  a  bond.  W^itness  under- 
stood from  Pitt  that  he  was  going  to 
got  tho  money  from  Mr.  Heydenrych. 
Witness  remembered  a  meeting  at  which 
Heydenrych.  Steer,  and  Paterson  were 
present.  The  defendant  said  he  was 
willing  to  advance  the  money  to  Pitt, 
and  that  would  go  to  pay  Paterson's 
share ;  and  that  witness  was  to  have  a 
bond,  which  would  rank  after  Heyden- 
rych's,  he  (Heydenrych)  having  had 
previous  transactions,  which  the  bond 
would  cover.  Witness  did  not  remem- 
ber whether  Pitt  was  at  the  meetang  he 
had  referred  to ;  he  did  not  think  so. 

Mr.  Pitt  (recalled)  said  he  took  the 
deed  of  assignment  to  certain  of  iiie 
creditors.  Before  he  obtained  the  sig- 
natures, the  words  "  mortgagees  "  and 
"concurrent  creditors"  were  on  the 
deed. 

Malcolm  Powrie  said  the  words  were 
o*i  the  document  before  the  signatures 
were  made. 

Mr.  Burton  closed  hie  case. 

Mr.  Burton,  in  the  course  of  argu- 
ment, said  much  was  made  in  these 
oases  of  the  apparently  exorbitant  in- 
terest. That  question  did  not  enter 
much  into  this  case,  and  he  would  onl} 
say  that  here  was  exemplified  the  fact 
that  the  interest  was  not  so  great  as 
it  appeared.  In  many  of  these  in- 
Btances  tht  security  given  for  the  ad- 
vances was  very  low,  and  the  person 
who  advanced  the  money  ran  so  much 
risk  of  losing  the  capital  and  the  inter- 
est, that  the  large  interest  should  not 
strike  one  as  bo  very  reprehensible.  In 
this  particular  case  tnat  was  exemplified. 

Mr.    Searle  was   not   heard. 

Maasdorp.  J.,  said  the  whole  of  the 
case  really  depended  upon  what  occurred 
at  Mr.  Steer's  office,  and  with  reepect  to 
that  the  conflict  of  evidence  created 
really  no  difficulty  in  so  far  as  the  deci- 
sion of  the  case  was  concerned,  because 
on  the  one  side  the  Court  had  the  evi- 
dence of  witnesses  who  stated  what  actu- 
ally occurred  at  the  meeting,  and  the 
only  real  contradiction  there  was  was 
that  of  the  defendant,  who  said  that  he 
was  not  present  at  such  a  meeting.  It  was 
not  difficult  to  dispose  of  the  evidence  of 
the  defendant  in  that  respect,  because 
it  was  impossible  to  doubt  that  there 
was  this  meeting,  and  that  the  defend- 
ant was  present.  It  was  an  extraonlin- 
ary  lapse  of  meniory — if  such  it  could  be 
called— because  it  appeared  that  the  de- 
fendant remembered  other  little  occur- 
rences, and  meetings  with  the  parties  in 


980 


11 


CAPE  TIMES"  LAW  REP0ET8. 


this  case  very  clearly,  but  if  he  could 
be  guilty  of  such  a  lapse  of  memory  as 
tha't,  then  his  evidence  aa  to  some  other 
material  points  in  the  case  would  nut  be 
of  very  great  value.  His  lordship  pro- 
ceeded to  review  the  evidence,  and  said 
that  the  defendant's  signature  to  the 
deed  of  assignment  as  a  mortgagee 
amounted  to  an  admission  that  he  had 
accepted  the  mortgage  bond  in  question. 
Here,  then,  was  a  statement  in  writing 
by  the  defendant  that  ho  was  the  bolder 
of  this  mortgage  bond.  That  disposed 
of  the  whole  case.  He  (the  learned 
Judge)  found  that  the  sum  of  £75  was 
due  from  the  defendant  to  the  plaintiff, 
and  judgment  would  bo  given  for  that 
amount,  with  costs. 

[PlaintifFs'    Attorney:    A.    W.    Steer; 
Defendant's  Attorney:    V.    A.    Van  der 

Byl.] 


SUPREME  COURT 


[Beforethe  Hon. Mr.  Justice  Ma ASDORP.] 


REX  v.  GBI.LIERS. 

Public  place. 

A  shop  is  not  a  public  plckce. 


f     ims. 

<Nov.  30th. 


Ma.a6dorp,  J.,  mentioned  a  case  that 
oame  before  him  as  Judge  of  the  week, 
in  whioh  Pettrus  Johannes  Colliers  was 
fined  £1  or  14  days'  imprisoiunent  for 
using  obscene  language  in  a  public  place. 
The  evidence  showed  that  the  language 
had  been  used  in  a  shop,  and  the  con- 
viction must  therefore  be  quashed. 


Ex  parte  the  east  London  pine 

MILK  CO. 

Mr.  P.  S.  T.  Jonee  moved  for  the 
Ii(]uidation  of  the  company  and  the  ap- 
pointment of  a  liquidator  to  the  East 
London   Pino   Milk  Supply  Company. 

Order  granted,  placing  the  company 
in  liquidation  and  appointing  Mr.  A.  R. 
Watfion  as  liquidator,  with  the  usuaJ 
ix>wer8. 


ADMISSION. 

Mr.  P.  S.  T.  Jones  moved  for  the 
admission  of  Donald  Grant  Hodge,  as 
an  advocate  of  the  Supremo  Court,  and 
that  the  oath  should  bo  taken  before 
the  Registrar  of  the  Eastern  Districts 
Court. 

Granted. 


Ex  parte  COETZEE. 

Mr.  Watermeyer  moved  for  the  ap- 
pointment of  a  curator  to  the  petition- 
er's husband,  who,  as  a  farmer  of  Ali- 
wal  North,  there  -was  reason  to  believe, 
was  of  unsound  mind. 

Floris  Coetzee  was  appointed  as  cura- 
tor bonis,  and  David  Stroven  as  curator 
ad  iitem,  pending  a  furtner  order  of 
Court. 


THE   *'8TAG"    line  LTD.  V.  (       1905. 
TABLE     BAY      BABBOUR<  Nov.    3()th. 
BOARD.  (Dec.     4  th. 

Harbour  Board — Graving  Dock — 
Demurrer. 

The  plaintiff  company  agreed 
with  the  defendants  to  hire  the 
use  of  thetr  Graving  Dock  for 
the  purpose  of  painting  one  of 
plaintiffs'  vessels,  from  March 
27th,  On  that  date  plaintiffs 
were  prepared  to  dock  their 
vessel y  but  another' vessel  having 
meanwhile  been  placed  on  the 
slip,  the  ^>la/?ii<ytf  ship  was 
not  docked  till  April  10th. 
Plaintiffs  now  claimed  demur- 
rage. 

Held,  that  as,  under  all  the 
circumstances,  the  Hourhour 
Board  had  not  been  gwlty  of 
any  avoidable  or  unreasonable 
delay,  they  loere  not  liable  for 
demurrage. 


This  was  an  action  brought  by  the 
plaintiff  company  to  recover  £1.000 
damagt's   for    wrongful  detention. 

The  plaintiffs'  declaration  said  that 
the  company  was  duly  registered  in 
England,  having  its  office  at  North 
Shields,  and  was  the  owner  of  sundry 
steamships.  The  plaintiffs  were  owners 
of  the  S.S.  Clematis.  About  20th  March, 
1901,  the  plaintiffs,  by  the  agents  at 
('ape  Town  of  the  said  steamship,  en- 
tered into  an  agreement  with  the  de- 
fendants through  the  Dock  Superinten- 
dent, subsequently  specifically  approved 
of  by  the  Board,  whereby  the  defendants 
undertook  and  agreed  to  take  the  Cle- 
matis into  the  Gnaving  Dock  for  paint- 
ing on  the  27th  March,  1901,  upon  the 
following  terms  and  conditions. 

1.  The  vessel  shall  be  taken  into  the 
Graving  Dock  by  and  under  the  direc- 
tion of  such  person  as  may  be  appointed 
thereto  by  the  Board,  in  the  presence 
of  the  master  or  his  duly  appointed 
ro  pro. tentative. 

2.  So  far  as  the  vessel  is  declaj-ed  by 
the  person  in  charge  to  be  properly 
placed  on  the  bloofcs,  the  Master,  or  hia 


"CAPE  TIMES"  LAW  REPORTS. 


981 


1  • '.  I 


duly  appointed  representative,  sb&ll 
forthwith  sati<sfy  himself  thereof,  ond, 
failing  to  point  out  any  defe<rt  in  euch 
placing  to  the  suixTintendotit  or  his  re- 
presentative, the  vc^el  shall  be  con- 
sidered to  have  been  properly  and  safely 
placed  on  the  blocks. 

3.  The  Board  shall  not  be  liable  for 
any  damage  which  may  be  sustained  by 
the  vessel,  and  the  vessel  shall  not  be 
liable  for  any  damage  which  may  be 
sustained  by  the  dock  or  its  appurten- 
ances, either  in  docking  or  und«K3kiag. 

4.  The  Board  shall  not  be  responsible 
for  any  detention  of  vessels  in  th^ 
Graving  Dock  through  stress  of  weather, 
disarrangement  of  machinery,  block  of 
work,  or  from  any  other  cause  what- 
ever. 

5.  Every  vessel  using  the  Graving 
Dock  will  be  charged  at  least  one  day's 
rent,  in  addition  to  the  charge  for  dock- 
ing and  undocking. 

6.  Notice  in  writing  must  be  given 
by  the  master  or  agent,  when  the  ves- 
sel is  ready  for  undocking,  but  such  no- 
tice will  not  be  accepted  by  the  Super- 
intendent until  the  vessel  has  finished 
her  work,  and  the  dock  cleaned,  cleared, 
and  ready  for  flooding ;  if  such  notice 
is  served  before  ten  o'clock  a.m.,  the 
day  on  which  such  notice  is  given,  Sun- 
day's excepted,  will  be  considered  the 
undocking  day.  Among9t  the  lawful  re- 
gulations regarding  the  said  Graving 
Dock  made  by  the  Board,  under  the 
Act  aforesaid,  was  the  following :  *'  On 
failure  to  place  a  vessel  in  the  Graving 
Dock  or  on  the  patent  slip  on  the  day 
appointed  for  that  purpose,  such  vessel 
shall,  if  the  dock  or  slip  be  required, 
lose  her  turn  on  the  list,  and  the  own- 
er, master,  or  a^ent  of  such  vessel  shall 
be  liable  to  pay  to  the  Board  the  ex- 
penses, if  any,  which  may  have  been 
incurred  on  preparing  the  dock  or  slip 
for  h'^r  reception,"  and  the  said  regu- 
lation was  in  contemplation  of  the  par- 
ties to  the  aforesaid  agrecmerrt  and 
binding  upon  them.  On  March  23  an 
agreement  on  these  terms  was  entered 
into  between  the  defendant  and  persons 
representing  a  vessel  named  the  Mata- 
bele,  but  the  day  appointed  for  the 
Matabele  to  be  placed  in  the  Graving 
Dock  was  the  24th  March,  1901.  The 
Matabele  lost  her  turn,  and  was  taken 
in  on  the  27th  March  in  place  of  the 
Clematis.  The  Clematis  was  detained 
for  fourteen  days,  and  the  plaintiff  sus- 
tained damages  in  the  sum  of  £1,000,  in 
con.sequence  of  such  detention  and 
claimed  that  amount,  with  costs. 

The  defendants'  plea  denied  that  any 
agreement  to  take  the  Clematis  into  the 
Graving  Dock  for  painting  on  the  27th 
March  was  entered  into  between  the 
plaintiff  and  the  Dock  Superintendent, 
and  thai  ah^  such  agreement  was  sub- 
sequently specially  approved  by  the 
Board.  On  the  20th  March,  1901,  the 
Dock  Superintendent  signed  the  follow- 
ing  document :    "  Terms  on   w^hich   the 


'  »! 


iili 


■i\{  /," 


Table  Bay  Harlwur  Board  engage  to 
place  the  Clematis  .  .  .  .in  the  Grav- 
ing Duck "  on  the  following  condition, 
which  wa«  signed  by  the  agents  of  the 
plaintiff:  "  \ve  agree  to  the  above  con- 
dition," and  the  document  contains  in 
the  margin  the  words,  "  cleaning  and 
painting  only."  Application  to  have  th.) 
Matabele,  which  was  represented  a^  a 
vessel  carrying  mails,  and  as  fitted  as 
a  pa.ssenger  boat,  dry-docked,  was  made 
prior  to  the  month  of  March,  1901.  The 
Matabele  arrived  in  Table  Bay  on  the 
27th  March.  The  dry  dock  was  then 
partly  occupied  by  a  vessel  lawfully  and 
properl^jT  placed  there  previouslv.  The 
Clematis  ret^uired  the  whole  dock,  which 
was  not  available,  whereas  the  Matabele 
only  required  that  portion  of  the  dry 
docK  which  was  available.  Defendants 
contended  that  they  were  not  legally 
bound  to  take  such  other  vessel  out  of 
the  dry  dock  to  make  room  for  the 
Clematis.  The  Matabele  was  placed  in 
the  said  portion  of  the  dry  dock  on  the 
27th  March,  and  remained  there  until 
the  9th  April.  Tliey  denied  that  the 
plaintiffs  had  any  legal  right  to  claim 
that  the  Clematis  should  bo  docked  on 
the  27th  of  March,  or  for  the  fourteen 
days  thereafter.  The  defendants  denied 
that  they  were  liable  for  any  part  of  the 
sum  claimed,  and  prayed  that  the 
plaintiffs'  claim  be  dismissed,  with  costs. 

Mr.  (*losp  (with  him  Mr.  D.  Buchanan) 
for  plaintiffs;  Mr.  Searle,  K.C.  (with 
him  Mr.  Bissot)  for  defendants. 

Mr.  Close  read  evidence  taken  on  b«*- 
half  of  the  plaintiffs  on  commission, 
bearing  out  the  allegations  made  in  the 
declaration. 

Mr.   Searle   called 

John  Veall.  shipping  clerk  in  the  em- 
ploy of  Messrs.  Thomson,  Watson  and 
Co.,  agents,  for  the  steamer  Matabele. 
lie  said  he  remembered  receiving  a 
letter  in  Fobriiary,  1901,  relative  to  the 
arrangements  for  dry-docking  the  Mata- 
Ik^Io  in  March.  This  was  from  Ronnie 
and  Sons,  asking  them  to  impress  upon 
the  authoriticv  the  necessity  of  ary- 
dockiiig  the  Matabele,  or  otnerwise  the 
sliip  would  have  to  cease  to  run,  and 
the  mail  service  would  have  to  be 
sto'^nod.  Witness  saw  the  Dock  Super- 
intendent and  the  letter  was  shown  to 
the  Dock  authorities.  On  March  23, 
a  telegram  was  resA  from  Durban  stat- 
ing tliat  the  vessel  had  sailed  from 
Natal,  and  was  duo  to  arrive  on  the 
26th.  Witness  thereupon  wrote  notify- 
ing the  Dock  authoritie**.  The  Mata- 
bele arrived  on  the  27th,  and  it  was 
found  that  she  required  somewhat 
considerable  repairs — more  than  witness 
had  supposed.  She  was  in  dock  for 
nearly  a  fortnight,  leaving  on  the  9th 
April.  The  firm  agreed  to  pay  from 
the  25th  March.  This  was  because  they 
originally  engaged  the  dock  from  the 
25tn.  The  vessel  carried  the  East 
Coast  mails  during  the  war.  On  the 
27th,   the  conditions  were  gigned. 


Wi 


«*01PB  miBB'*  LAW  AEPORHi 


Cro6s-examiried  bv  Mr.  Cloee:  Cap- 
tain Stephen  tola  him  the  dock 
would  be  available  on  the  25th ; 
witness  looked  upon  that  arrange- 
ment — made  on  the  23rd — aa  binding. 
Witness  held  tha;t  they  had  engageo 
the  dock  from  the  25th  until  the  vessel 
arrived  and  had  been  repaired.  It  was 
expected  before  the  arrival  of  the  vessel 
that  the  repairs  would  be  completed 
in  a  couple  of  days.  He  considered 
on  the  morning  of  the  27th  that  the 
vessel  was  going  in  under  the  arrange- 
ment that  the  dock  was  at  their  dW- 
posal  from  the  25th. 

Wni.  Stephen.  Port  Captain  and  Dock 
Superintendent  in  Table  Bay,  said  that 
when  the  Clematis  came  in.  the  Bay 
and  Docks  were  very  congested ;  over 
forty  vessels  were  waiting  to  be  docked, 
some  of  which  had  been  waiting  for 
months.  The  Goodwin  arrived  on  the 
11th  January,  and  came  into  dock  on 
the  2nd  March,  being  berthed  outside 
another  vessel.  She  nad  afterwards  to 
be  shifted  to  the  entrance  to  the  Gray- 
ing Dock,  where  she  remained  until 
the  4th  April.  If  it  had  not  been  for 
the  M»tabele,  witness  would  have  had 
her  shifted  from  the  Graving  Dock  en- 
trance. Ordinarily  she  would  not  have 
stood  in  the  way  of  vessels  being  dry- 
docked.  Application  was  made  to 
dock  the  Clematis,  but  witness  never  at 
any  time  stated  that  she  should  get  in 
before  the  Matabele.  No  particular 
date  was  stated.  He  could  not  recol- 
lect exactly  what  took  plaoe;  but,  pre- 
sumably, when  he  was  approached  on 
the  matter,  he  said  the  Clematis  would 
be  docked  as  aoon  as  possible.  Witness 
never  fixed  dat-es  for  a  vessel  going 
into  dock;  he  always  made  the  condi- 
tion, '*if  possible.*'  W^itness  never  said 
the  dock  was  engaged  for  the  Clematis 
on  the  27th  March.  Some  time  pre- 
viously he  bad  been  approached  in 
reference  to  the  Matabele.  He  be- 
lieved the  last  witness  showed  him  tlie 
letter  from  the  Matabele's  owners.  He 
did  not  give  the  C^emati^  the  dock  on 
the  25th,  because  he  knew  the  Mata- 
bele was  coming,  and  would,  in  the 
ordinary  course,  arrive  shortly.  Fur- 
thermore, to  pre*pare  the  dock  for  the 
Clematis  would  mvolve  expense,  and 
lake  some  time,  as  she  required  the 
whole  dock,  and  the  Goodwin  would 
have  to  be  shafted  and  other  prepara- 
tions mado.  The  Matabele  require  i 
only  half  the  dock.  Witness  had  iij 
knowledge  until  the  Matabele  was  in 
the  docks  that  the  repairs  would  take 
so  long.  If  he  had  thought  the  re- 
pairs would  take  nine  or  ten  days,  he 
would  po^ibly  have  made  different  ar- 
rangements. Witness  considered  it  a 
case  where  more  than  ten  days  should 
bo  given.  11**  acted  for  the  \ient  in 
the  interests  of  evervone.  The  terms 
of  the  Cleniartiis's  cliarter  party  were 
never  mentioned   to   witness. 

Cross-examined  by  Mr.  Close:  Wit- 
neas  did  not  take  up  an  altogether  offi- 


oial  attitude  over  ihe  dookini^  of  the 
ship;  he  denied  that  he  fixed  a  date 
for  the  docking  of  any  ship. 

Mr.   Searle  closed  his  case,  and  coun- 
sel were  heaxd  in  argument  on  the  facta. 

Cur.   Adv.    Vult. 

Po»tea  (December  4th). 

Maasdorp,  J. :  The  plaintiff  com- 
pany allege  in  their  declaration  that 
on  March  20,  1901,  they  eutorod  into 
an  agreement  with  the  defendants, 
whereby  the  defendants  undertook  •to 
place  their  ship  (the  (THematis)  in  the 
Graving  Dock  of  the  Table  Bay  Har- 
bour for  cleaning  and  painting  on 
March  27,  upon  the  terms  and  condi- 
tiou6  contained  in  the  printed  form  of 
contract,  which  was  duly  signed  by  all 
the  necessary  parties.  The  plaintiffs 
were  on  th^  a^ipointed  day  prepared  to 
place  their  ship  in  the  docK,  but  the 
defendants  failed  to  take  her  in.  and 
delayed  doing  so  until  April  10.  They 
now  claim  as  damages  sustained  by 
tiiem,  by  reason  of  the  del«y  of  four- 
teen days,  the  sum  of  £1,000.  It  ap< 
peaiTs  there  was  a  prior  undertaking  on 
tlu>  part  of  the  Harbour  Board  to 
place  another  ship  (the  Mata-bele)  in 
the  Graving  Dock  on  March  25.  That 
ship  did  not  arrive  until  the  27th.  when 
she  was  docked,  and  she  was  not  un- 
decked until  March  9.  It  was  the 
presence  of  the  Matabele  in  the  Grav- 
m^  Dock  which  prevented  the  Clematis 

?^omg  in.  And  in  anticipation  of  this 
act  being  set  up  as  a  legal  impedi- 
ment to  docking  the  Clematis  on  the 
27th,  the  plaintiffs  proceed  to  state 
that  upon  the  failure  of  the  Matabele 
to  go  tnto  the  G ravin?  Dock  on  March 
25.  which  was  the  day  appointed  for 
the  purpose,  she  lost  her  turn  on  the 
list  m  accordance  with  Regulation 
No.  45.  sub-section  D  of  the  Harbour 
Board.  It  is  alleged  that  if  this  regu- 
lation had  been  observed,  the  Graving 
Dock  would  have  been  available  for  the 
Clematis  on  March  27.  The  defendants 
deny  that  they  agreed  to  place  the 
Clematis  in  the  Graving  Dock  on  March 
27,  and  say  that  the  dock  was  not 
available  for  that  ship  until  April  1(), 
being  occupied  by  the  Matabele  until 
that  day.  but  they  admit  that  tiiey  en- 
l^a^ed  to  place  the  Clematis  in  the  dock 
in  terms  of  the  printed  document  which 
was  put  in  at  the  Irial.  The  first  point 
to  decide  is  whether  there  wae  a  d^nite 
agreement  on  the  part  of  the  defendants 
to  dock  the  Clematis  on  the  27th.  It 
appears  from  the  evidence  of  Captain 
Stephen,  the  Dock  Superintendent,  that 
when  he  was  approached  in  the  matter 
by  the  ageirts  of  the  ship,  which  had 
not  tlien  arrived,  he  entered  into  the 
afi^rw^ment  mentioned,  pointing  out  to 
the  agents  that  he  had  already  under- 
taken to  place  the  Matabele  in  the 
dock  on  March  25,  and  he  was  under 
the  impression  that  she  would  be  dis* 
posed  of  in  a  couple  of  days,  in  which 


« 


CAPE  TIMES"  LAW  REPORTS. 


988 


event  the  dock  would  be  available  for 
the  Clematis.  He  saye  he  never  de- 
finitely undertook  to  dock  the  latter 
ship  on  the  27th.  This  is  the  only 
direct  evidence  in  respect  of  the  terms 
of  the  agreement  at  the  time  it  was 
entered  into,  the  agervt  who  made  the 
contract  on  behalf  of  the  ship  not 
having  been  called  at  the  trial.  Cap- 
tain Stephen  aaid  he  never  enters  into 
an  engagement  by  which  he  under- 
takes to  put  any  vessel  on  an  appointed 
day  out  of  the  dock  to  make  room  for 
another,  and  he  did  not  do  so  on  this 
occasion.  I  am  bound,  under  the  cir- 
cunwtances,  to  take  the  evidence  of 
Captain  Stephen  as  conclusive  upon  this 
point,  there  being  no  direct  contradic- 
tion of  it.  Captain  Stephen  is  sup- 
ported in  his  statement  by  a  paj«age 
in  a  lotter  written  by  the  agents  of  the 
Clematis  on  April  1,  to  the  following 
effect:  "The  stcamor  Clematis  arrived 
here  on  the  24th  ult.,  "the  Drv  Dock 
having  been  booked  by  the  Matal)ele 
from  the  25th,  which  latter  steamer  we 
were  informed  would  leave  the  dock 
again  on  the  27th  ult."  There  is  no 
pretence  here  that  the  27th  was  fixed 
in  express  terms  as  the  day  for  the 
dockinflT  of  the  Clematis.  In  the 
printed  undertaking  no  date  is  fixed. 
I  come  to  the  conclusion  that  the 
plaiivtiffs  have  failed  to  prove  that 
there  was  an  agreement  to  place  the 
Clematis  ia  tho  dock  on  the  27th.  The 
defendants  uii('ertook,  on  the  20th,  to 
place  the  ('iematis  in  the  dock,  and  I 
am  of  opinion  that  they  then  entered 
into  a  binding  contract  to  do  whait  was 
required  within  a  reasonable  time,  hav- 
ing regard  to  the  regulations  of  the 
Harbour  Board  and  the  ordinary  course 
of  business  at  the  port.  There  agree- 
ments are  entered  into  in  contempla- 
tion of  the  regulations  and  the  ordinary 
course  of  business  at  the  port.  It  would 
ap]>ear  that  in  the  ordinary  course,  it 
would  be  reasonable  to  expect  that  a 
ship  would  be  docked  within  such  time 
as  the  necessary  arrangements  can  be 
made  if  the  dock  it^  available,  or  so 
soon  after  as  the  dock  becomes  avail* 
able.  Independently  of  the  considera- 
tion of  the  further  question  raised  by 
the  plaintiffs,  which  1  still  have  to  deal 
with,  it  would  seem  that  tho  Matabele, 
which  had  a  prior  claim,  and  had  to  Ix* 
disposed  of,  occupied  the  dock  until 
April  9.  The  work  on  the  Matalx^le 
took  longer  than  was  anticipated,  and 
the  dock  was  not  available  for  the 
Clematis  until  April  10,  when  she  was 
actually  docked.  But  it  is  contended 
on  behalf  of  the  plaintiff<4  that  in  cal- 
culating the  rea.Honable  time  within 
which  the  defendants  should  have  car- 
ried out  their  nndert^iking  to  dock  the 
Clematis,  the  allegotl  pri-fir  right^s  of  the 
Matabele  should  not  enter  int-o  the  cal- 
culation, because  she  had,  under  the 
Harbour  Board  regulations,  forfeited 
her  claim  to  be  docked  through  her 
failure    to   be    placed    in    the   Graving 


Dock  upon  the  appointed  day.  The 
regulattosi  in  question  is  to  the  follow- 
ing eflfect:  **  On  failure  to  place  a  veesel 
in  the  Graving  Dock  on  the  day  ap- 
pointed for  that  purpose,  such  vessel 
r«hail.  if  the  dock  be  required,  lose  her 
turn  on  the  list,  and  the  UMister  shall 
be  liable  to  pay  to  the  Board 
the  expenses,  if  any,  which  may  have 
been  incurred  in  preparing  the  dock  for 
her  reception.**  It  seems  to  have  been 
contemplated  by  the  regulations  that  a 
book  flhould  be  kept  in  which  fahe  naones 
of  vessels  applying  for  the  use  of  tho 
Graving  Dock  ahould  bo  entered,  and 
that  such  vessels  should  be  placed  in  the 
dock  in  the  order  in  which  they  appear 
on  the  list,  providing  all  the  prescribed 
conditions  were  fulfilled.  Tne  above- 
mentioned  rule  provides  for  the  forfei- 
ture of  this  right  of  precedence  under 
certain  circumstances.  It  was  contend- 
ed for  the  plaintiffs  that  the  moment  the 
vessel  fails  to  be  placed  in  the  dock  on 
the  appointed  day  she  as  a  necessary 
oonseauence  lost  ber  place  on  the  list, 
and  tne  next  vessel  could  claim  the 
right  to  go  an.  If  the  regulations  were 
strictly  ccuistrued,  a  vessel  would  lose 
its  turn  on  the  lost  even  where  the  fail- 
ure to  go  into  the  dock  arose  from  no 
fault  on  her  part,  and,  indeed,  when 
the  failure  was  due  to  default  on  the 
part  of  the  Harbour  Board.  That  oould 
never  have  been  intended.  The  regula- 
tion seems  to  me  to  provide  for  a  for- 
feiture of  a  right  and  for  a  nenaltv 
upon  failure  to  enter  tho  dock  tnrougn 
default  of  any  vessel  as  a  matter  of  con- 
tract between  the  Harbour^  Board  and 
that  particular  vessel,  and  in  no  direct 
concern  under  its  contract  of  any  other 
vessel  on  the  list.  In  the  analogous  case 
of  forfeiture  provided  by  contract,  the 
rule  is  that  a  forfeiture  of  rights  should 
not  be  too  readily  assumed,  and  in  this 
ca«e,  I  think,  it  was  in  the  discretion  of 
the  Dock  Superintendent  to  take  into 
consideration  all  the  circumstances  be- 
fore he  pronounced  that  the  Matabele 
had  lost  her  right  to  go  into  dock.  I 
can  find  nothing  in  the  evidence  to  show 
that  he  exercised  his  discretion  in  an 
unreasonable  manner,  even  if  it  were  in 
the  jurisdiotion  of  the  Court  to  interfere 
with  his  discretion,  a  point  which  it 
is  unnecessary  to  decide.  I  am  of 
opinion  that  the  Harbour  Board  placed 
the  Clematis  in  the  Graving  Dock  in 
such  reasonable  time  as  they  had  by 
their  contract  undertaken  to  do,  when 
they  put  her  in  after  the  dock  was 
vacated  by  the  Matabele  on  April  9. 
That  being  my  view  of  the  case,  it  is 
unnecessary  to  decide  whetiier  the  mea- 
sure of  damages  contended  for  in  the 
declaration  is  tho  correct  measure  to 
apply  in  a  case  like  the  present.  Judg- 
ment must  be  given  for  the  defendants, 
with  costs. 

[PlaintiflTs'  Attorneys:  Finlay  and 
Tait;  Defendants'  Attorneys:  Beid  and 
Nopnew.] 


984 


"CAFB  TIMES''  LAW  ESP0RT8. 


SUPREME  COURT 


[Before  the  IIou.  Mr.  Justice  Hopley.] 


BIX     V.    BEABLE    AND    VON  (         19C)5. 

WITT.  i  Dec.    1st. 

This  was  an  application  to  have  the  se- 
cond respondent  interdicted  from  carry- 
ing on  busineae  as  a  draper  in  the  same 
building  as  tho  applicant,  in  breach,  it 
was  alleged,  of  a  Iea«e,  and  for  an  order 
calling  on  the  first  respondent  to  show 
cause  why  he  should  not  be  restrained 
from  letting  the  premises  at  the  corner 
of  Frero-street  and  Victoria-road,  Wood- 
stock, as  a  draper's  shop.  In  the  lease 
which  ^he  apndicant  entered  into  with 
the  former  owner,  John  Ilcnry  Pfiihl, 
there  was  a  clause  that  tho  le.s.^or  should 
not  let  a  shop  in  the  same  building  for 
a  similar  business  to  that  of  the  appli- 
cant. Some  months  ago  the  second  re- 
spondent opened  a  draper*B  business, 
known  as  the  "  Why  go  Further  Store,'* 
and  the  applicant  sought  to  establish 
his  right  under  that  lease. 

Mr.  Upiugton  was  for  the  applicant, 
Mr.  Burton  was  for  the  first  respondent, 
and  Mr.  Benjamin  for  the  second  re- 
spondenL 

During  argument, 

llopley,  J.  asked  Mr.  Benjamin  if 
the  parties  could  not  fix  on  somo  measure 
of  damages  until  the  action  was  decided. 
Perhaps  a  sum  of,  say,  £50  a  month 
could  be  agreed  upon  as  damages  if  ap- 
plicant succeeded  m   his  action 

Mr.  Benjamin  said  that  the  usual 
procedure  was  to  have  an  account  taken. 

[Iloplev,  J. :  Then  you  may  argue 
that  it  doesn't  follow  that  people  who 
bought  at  your  client's  shop  would  have 
gone  to  the  other. [ 

Mr.  Benjamin  said  he  did  not  think 
that  view  had  ever  been  taken  by  the 
English  Courts. 

Hopley,  J.,  remarked  that  he  thought 
the  shortest  way  would  be  to  argue  on 
seme  measure  of  damages. 

Mr.  Benjamin  argued  that  no  case  had 
been  made  out  for  the  granting  of  an 
interdict.  He  contended  that  a  contract 
between  two  parties  could  not  be  held 
as  binding  a  third  party  who  had  taken 
a  place  innoctMitly,  and  ignorant  of  the 
fart  that  there  was  such  a  contract. 
Mrs.  Von  Witt  had  made  extensive  pre- 
parations, and  he  urged  it  would  be 
unjust  now  to  compel  her  to  close,  when 
she  had  acted  throughout  without  know- 
ledge of  any  restriction. 

Mr.  Burton  said  the  position  of  his 
client  was  an  unfortunate  one.  He  had 
purchased  the  property  boiia  fide  in  the 
insolvency  proceeding,  subject  to  the 
two  leases.  He  admitted  he  was  bound 
by  the  lease,  but  he  was  helpless  to  do 
anything  in  the  noatter.  He  placed  no 
obstacle  in  the  way  of  carrying  out  the 
contracts,  and,  under  the  circumstances, 


he  (Mr.  Burton)  submitted  that  costa 
should  not  be  granted  against  him.  It 
was  true  Mr.  Searie  was  the  landlord, 
but  he  had  done  nothing:  he  could  do 
notliing.  He  was  pro^red  to  agree  to 
the  application  for  an  interdict. 

Hopley,  J . :  This  is  an  interesting  ap- 
'plicatioti,  and  very  interesting  points  of 
considerable  difficulty  are  raised  ^  it, 
and  it  does  seem  to  me  H  is  very  dimcuh 
to  make  any  order  at  the  present  stage 
without  possibly  damaging  the  legal 
rights  of  socnc  of  the  parties.  It  would 
appear  that  Mr.  Pfunl.  who  is  now,  I 
believe,  insolvent,  m^ade  a  lease  with 
Mr.  Rix,  who,  for  a  very  large  rent, 
leaaed  a  ehop  and  obtained  a  monopoly 
in  the  jpartdcular  building  to  carry  on 
the  business  of  a  draper.  Subsequent- 
ly to  such  lease  Mr.  Pfuhl  seems  to 
'  have  entei^d  into,  with  the  Von  Witts, 
another  lease,  the  terms  of  which  were 
drawn  up  by  Mr,  Von  Witt,  letting  to 
him,  for  his  wife,  in  general  t-erms,  a 
certain  part  of  the  building  as  a  shop. 
Now,  of  course,  Mr.  Pfuhl  ought  in 
that  to  have  seen  that  the  restriction 
about  not  carrying  on  a  draper's  shop 
was  imposed.  It  is  said,  but  there 
is  no  affidavit  on  the  point,  that  he  drew 
the  attention  of  the  Von  Witts  to  the 
terms  of  Rix's  lease,  and  that  they 
knew  perfectly  well  that  they  could  not 
carry  on  the  business  of  a  draper.  Well, 
if  that  is  so,  it  will  very  materially 
affect  the  result  of  any  action  hereafter 
brought  by  Rix  against  the  Von  WMtts, 
but  it  is  very  difficult  to  say  at  present 
how  that  matter  stands,  because  Mr. 
Pfuhl  has  nab  come  forward,  and  the 
Von  Witts  have  denied  that  any  such 
notice  was  given  them.  As  to  Mr. 
Searie,  his  position  is,  as  his  counsel  has 
said,  one  rather  to  be  sympathised  with 
than  otherwise ;  yet  he  may  find — I  do 
not  say  he  will,  at  present — that  hav- 
ing purchased  the  property  with  the 
knowledge  of  the.se  two  leases,  though 
they  are  not  on  the  face  of  them  incon- 
sistent, but  still  of  such  a-  naiture  that 
they  might  at  any  future  time  become 
inconsistent  if  one  of  the  lessees  chooses 
to  enforce  his  rights — he  may  find,  in 
spite,  of  being  absolutely  innocent  in 
the  matter,  that  having  stepped  into  the 
shoes  of  the  insolvent,  he  has  an  action 
for  damages  against  him.  I  do  not  say 
there  is  a  cause  of  action  against  him  ; 
I  do  not  say  there  is  not.  I  would  not 
like  to  decide  that  point.  But  with 
regard  to  the  Von  Witts,  it  seems  to 
me  their  being  stopped  must  depend 
very  largely^  on  whether  fehey  had  this 
notice.  It  is  said  they  should  be  stopped 
whether  they  had  notice  or  not,  but  I 
do  not  feel  inclined,  on  an  interlocutory 
motion,  to  give  judgment  on  that  some- 
what complicated  and  important  point, 
for  they  nired  the  shop  on  general 
terms,  and  they  say  they  acted  within 
their  rights  in  using  it  as  a  draper's 
shop.  Ought  they  under  such  circum- 
stances to  be  interdicted  from  carrying 


"CAPE  TIMES"  LAW  REPORTS. 


985 


on  a  biisinees  which  ^  is  no  longer  in 
contemplation,  but  which  is  now,  I  un- 
flcMistand,  actually  in  existence  as  a  {?o- 
iiig  concern?  Although  Mr.  Rix*8  riglit 
is  clf>ar  in  a  certain  way,  the  remody 
doess  not  seem  to  me  to  bo  oqualy  clear 
— whether  he  can  come  to  this  court 
and  ask  for  an  (injunction  "to  stop  the 
Von  Witts  carrying  on  a  drapery  busi- 
ness, or  whether  he  is  confined  to  an 
action  for  damages  against  somebody 
or  other.  Another  point  not  so  clear  is 
whether  he  is  siiffenng  irreparable  dam- 
age. As  far  aa  I  can  see  it  won't  be 
beyond  the  powers  of  the  Court,  if  the 
Von  Witts  are  acting  wrongly,  to  assess 
a  sum  of  damages  which  wul  handsome- 
ly reward  Rix.  It  seems  to  me  it 
would  be  wiser  to  leave  this  matter 
for  adjuatment  on  a  subsequent  action 
for  damages  than  to  make  a  peremptory 
order  closing  up  Von  Witt  s  business, 
which  it  is  quite  possible  Von  Witt  may 
establish  a  right  to  continue.  I  think, 
therefore,  the  balance  of  convenience 
would  be  not  to  grant  the  present  appli- 
cation, but  to  leave  the  parties  to  decide 
the  matter  by  action,  suggesting  that 
it  should  take  place  as  soon  as  possible. 
The  matter  ought  not  to  be  delayed, 
becauise  of  course  it  is  important  to  Mr. 
Hix,  if  he  has  the  right  he  claims,  that 
Mrs.  Von  Witt  should  cease  to  carry 
on  the  business,  while,  on  the  other 
hand,  if  Mrs.  Von  Witt  has  no  right  to 
be  there,  the  danuiges  will  be  running 
against  her.  There  will,  therefore,  be 
no  order  on  the  present  application. 
Costs  will  be  costs  in  the  cause. 


FEBRUABT  V.  JOHNSON. 

This  was  an  action  to  compel  the  de- 
fendant to  pay  the  purchase  price  and 
take  transfer  of  certain  property. 

The  declaration  set  forth  that  the 
plaintiff  was  a  builder  and  contractor, 
and  the  defendant  a  barman.  On  the 
13th  July  the  parties  entered  into  an 
agreement  whereby  the  plaintiff  agreed 
to  sell  and  the  defendant  to  purchase 
a  certain  piece  of  land,  at  Fairview,  for 
the  sum  of  £270,  of  which  £250  was  to 
be  paid  in  oaah  against  transfer  and  £20 
to  remain  on  a  promissory  note  payable 
two  months  after  the  sale.  Plaintiff 
had  tendered  transfer,  but  the  defend- 
ant refused  to  take  transfer,  and  to  pay 
the  purchase  price.  Judgrment  was 
claimed  for  the  £270,  and  costs  of  trans- 
fer and  of  suit. 

The  defendantpleaded  tha;t  there  had 
been  no  sale.  lie  said  the  plaintiff  ap- 
proached him,  and  there  were  negoti- 
ations which  jfell  through.  One  Mc- 
Lood,  tuotmf^  on  behalf  of  the  plaintiff, 
did  offer  him  the  propert:^  for  £270, 
whereupon  the  defendant  said  he  would 
consider  at,  and  see  whether  he  could 
raise  the  £260,  and  in  caae  he  was  suc- 
cessful he  mi^ht  be  able  to  purchaae  the 
ground  for  himself.      Qe  was  unable  to 

b3 


raise  the  money,  and  did  not  purchase 
the  property. 

Mr.  Ganriuor  for  plain-tiff;  Dr.  Greer 
for  defendant. 

Simon  Marcus,  oonvoyancer,  said  ho 
acknl  on  behalf  of  February.  lie  gave 
tho  defendant  a  refusal.  The  defond^ant 
offered  £260  for  the  property,  but 
finally  he  agreed,  at  a  meeting  in  wit- 
ness's offioe,  to  buy  the  ground  for 
£270.  Witness  offered  to  make  an 
arrangement  with  regard  to  a  bond, 
but  defendant  said  he  had  made  ar- 
rangements for  raising  £250,  and  wit- 
ness said  the  balance  should  remain  on 
bond.  He  did  not  have  the  diagrams 
to  put  the  agreemeint  into  writing. 
Witness  repeated  the  arrangements  to 
the  defendant  three  times.  On  the 
17th,  witness  wrote  confirming  the 
conversation.  The    money    waa    not 

paid,  and  on  the  26th  July  a  letter  of 
deixiaind  was  sent  to  the  defendant. 

Cross-examined  by  Dr.  Greer:  Wit- 
ness did  not  go  to  see  the  defendant 
with  Christians  before  the  11th  July. 
The  defendant  told  witness  that  Mr. 
Maclay  was  giving  him  £250,  aiid  at 
the  same  time  the  defendant  said  he 
had  £150  of  his  own.  Witness  had 
no  doubt  in  his  mind  that  the  defenr 
daitt  understood  he  bought  the  pro- 
pertv.  Because  he  had  not  the  dia- 
grams, he  did  not  put  the  bargain  m 
writing.  It  was  a  usual  practice  in 
his  office  to  eend  a  letter  of  demand 
within  three  days  if  a  purchaser  failed 
to    sign   the    documents. 

Moses  February  (plaintiff)  stated  that 
Christians  *ntroauoed  him  to  the  de- 
fendant with  a  view  to  a  disposal  of 
the  property.  The  defendant  was 
8atis&>d  with  the  offer  of  £300,^  and 
told  witness  he  would  have  to  wait  till 
Mr.  Maclay  saw  the  property.  Subse- 
quently the  la«t  witnesf  wbm  initruct- 
ed  to  take  £290  for  the  property. 

Cross-exam i nod  bv  Dr.  Greer:  After 
Johnstone  sent  the  letter  offering  £300, 
Mr.  Maclay  came  out  to  see  the  pro- 
perty. 

Rufus  G.  R.  McLeod,  attorney  for 
the  plaintiff,  said  he  heard  Marcus  say 
to  Johnson :  *'  It  is  an  understood 
thing  that  the  price  will  be  £270,  £250 
ca^h  and  a  promissory  note  fosr  £20.'* 
This  ho  repeated  later. 

Mr.  Gardiner  dosed  his  case. 

Peter  Johnson  (the  defendant)  said 
that  in  June  there  were  negotiations 
between  witness  and  February  for  the 
purchase  of  the  property.  He  went 
out  and  saw  it,  and  February  ©aid  he 
would  take  £350  for  it.  Witness  said 
it  was  too  much  for  him,  but  that  he 
would  see  Mr.  Maclay  aboirt  it,  with 
reference  to  raising  a  bond.  Early 
in  July  witness  saw  Maclay,  who  went 
to  see  the  property.  Witness  got  a 
letter  from  Christians  offering  the  pro- 
perty for  £290.  Before  he  saw  Mac- 
lay,  he  wrote  a  letter  offering  Febru- 
ary £300.  On  the  12th  July  witness 
saw    Marcus,    amd    told    him    that    h^ 


im 


"CAPS  TIMES'*  LAW  REPORTS. 


must  wait  until  witiieHS  had  Been  Mac- 
lay.  On  tho  15th  ho  went  to  Mc- 
Leod's  office  and  saw  Marcus.  He  told 
MarcuB  he  had  seen  Maclay,  buit  the 
latter  had  talked  of  givinff  £200.  He 
said,  however,  that  it  Maclay  would 
advance  him  £250,  he  would  purchase 
for  £270,  and  would  pay  the  £20  by 
instalments.  Marcus  said  he  knew 
Maclay,  and  that  it  would  be  aU  right. 
He  asked  witness  to  ai^n  the  declara- 
tion, but  witness  said  he  could  not,  as 
he  had  not  ffot  the  money.  On  the 
following  Wednesday,  Marcus  and 
February  came  to  the  hotel  to  see  wit- 
ness. Witness  aaad  he  was  too  busy, 
and  that  they  were  not  to  come  to  the 
hotel.  Witness  said  .they  must  wait 
until  Maclay  had  decided.  Witne« 
refused  to  take  a  note  which  Marcus 
had.  but  the  latter  left  it  on  the  coun- 
ter while  witness  was  away  tapping 
some  beer.  Next  day  witness  sent  his 
wife  to  McLeod's  office  to  tell  them 
that  he  had  not  agreed  to  purchase  the 
land. 

Cornelia  Johnson,  wife  of  the  last 
witness,  and  Cornelius  Christian  gave 
evidence  corroborating  certain  of  the 
statemcnte  made  by  tne  defendant. 

R.  Maclay,  farmer,  said  Johnston 
came  to  him  in  connection  with  the 
niatter.  Ho  told  Johnson  he  would 
give  £200,  but  that  it  was  not  a  pro- 
perty he  would  advise  him  to  have 
anything  to  do  with. 

After  hearing  Dr.  Greer  in  argument 
on  the  facts,  and  without  calling  upon 
Mr.   Gardiner, 

Hopley,  J.,  said  they  found  in  this 
country  so  frequently  that  profes- 
sional men  talked — he  had  almost 
said  gabbled — over  their  business 
without  being  prudent  enough  to 
make  a  memorandum,  which  they 
could  easily  gcit  initialled,  embodying 
the  t^-rnte  of  an  agreement.  They  had 
it  in  their  power  to  keep  an  office 
diary,  which  would  frc<iucntly  settle 
points,  and  save  the  Court  many  hours 
of  work.  They  could  easily  put  into 
writing  the  terms  of  any  arrangement, 
instead  of  which  they  trusted  to  con- 
versations and  tricky  memories,  with 
the  result  that  matters  came  before  the 
Court,  and  there  was  a  huge  conflict 
of  evidence,  and  a  great  waste  of 
time.  AH  he  could  say  was  that  he 
wished  to  goodnest*  ho  could  see  some 
sort  of  sign  in  this  community  of  an 
improvement  in  regard  to  this,  so  that 
business  should  be  carried  on  in  a  more 
proper,  conventional,  decent  style.  A 
prudent  professional  man  would  always, 
he  thought,  see  he  had  writing.  His 
Lordship  proceeded  to  refer  in  detail 
to  the  evidence  given  in  the  case,  and 
eaiid  that,  after  hearing  the  evidence, 
he  had  no  doubt  that  the  transaction 
was  completed,  and  that  the  defendant 
did  agree  to  buy  the  property.  Judg- 
ment would  be  given  for  £270,  with 
costs. 

[Plaintir 8  Attorney :   R.  G.  McLeod  ] 


SUPREME  COURT 


FIRST  DIVISION. 


r Before  the  Acting:  Chief  Justice,  the 
Hon.  Sir  John  Buchanan.] 


I      190o. 

FODRIE  V.  HENDRICKS.      |  ^^    ^^^ 

This  was  an  action  to  reoover  the  cost 
of  the  keep  of  certain  horses. 

The  plamtiff'a  declaration  was  as  fol- 
lows: 

1.  Plaintiff  resides  at  Cape  Town,  at 
which  place  defendant  likewise  resides, 
and  carries  on  the  business  of  a  livery 
stable  proprietor. 

2.  On  or  about  August  23,  1905, 
plaintiff  purchased  and  defendant  sold 
tor  the  sum  of  £85  a  certain  pair  of 
horses,  which  he  (defendant)  warranted 
good  and  sound,  and  capable  of  doing 
Garlick's  delivery  work,  that  is  to  saj, 
certain  deliverv  of  goods  which  plaintiff 
had  contractea  to  perform  for  one  Gar- 
lick. 

3.  Thereafter  on  or  about  August  24. 
1905,  plaintiff  discovered  that  the  said 
horses  were  not  good  or  sound  or  capable 
of  doing  the  said  work,  but  on  the  ocm- 
trary  that  the  said  horses  were  unsound 
ir.  tneir  legs,  being  able  to  stand  only 
wit.S  difficulty  the  next  morning  after 
bein^*  driven  for  twelve  or  fifteen  miles, 
one  o*  them  becoming  quite  stiff  and 
walking  with  ^reat  difficulty,  and  the 
other  ha  ring  his  off  foreleg  much  swol- 
len, both  inimals  being  unfit  for  use. 

4.  By  reason  of  the  breach  of  war- 
ranty aforesaid  {>laintiff  became  entitled 
to  return  the  said  horses  to  defendant, 
and  to  receive  repayment  of  the  pur- 
chase price;  and  on  or  about  August 
25  he  did  so  tender  the  said  horses,  but 
defendant  wrongfully  and  unlawfully  re- 
fused to  receive  them  or  return  the  said 
purchase  price. 

5.  Plaintiff  has  incurred  on  and  since 
August  24  aforesaid,  and  is  still  incur- 
ring expense  in  tho  maintenance  of  the 
said  horses  at  the  rate  of  eleven  shil- 
lings per  day. 

6.  Plaintiff  is  still  willing,  and  herein 
tenders  to  re-deliver  to  defendant  the 
said  horses  upon  satisfaction  of  his 
claim  herein. 

Alternatively  the  plaintiff  says: 

7.  He  craves  leave  to  refer  to  para- 
graphs 1,  5,  and  6  hereof. 

8.  On  or  about  August  23,  1905,  he 
purchased  and  defendant  sold  a  certain 
pair  of  horses  for  the  sum  of  £85. 

9.  Thereafter  on  or  about  August  24, 
1905,  he  discovered  that  the  said  horses 
were  not  sound  of  limb,  and  that  the 
next  morning,  after  being  driven  for 
twelve  or  fifteen  miles,  they  could  stand 
only  with  difficulty,  one  of  them  having 
become   quite   stiff   and    walking   with 


«CAFB  TIMES"  LAW  BEPORXa 


987 


great  difficult,  and  the  other  haYln^  his 
off  foreleg  much  swollen,  both  aninials 
beiuK  unht  for  u«e. 

10.  The  fact  thai  the  sadd  horses  were 
so  unsound  in  kmb  was  at  the  time  of 
the  purchase  latent  and  unkuo<wn  to 
plaintiff. 

11.  B^  reason  of  the  said  unsoundness 

Elaintiff  was  entitled  to  return  the  said 
orses  to  defendant,  and  to  receive  pay- 
ment of  the  purchase  price,  and  on  or 
about  August  25,  he  aid  so  tender  the 
said  horses,  but  defendant  wrongfully 
and  unlawfully  refused  to  receive  them 
or  to  return  the  said  purchase  price. 

Wherefore,  subject  to  the  tender  here- 
inbefore made,  plaintiff  prays: 

(a)  Jud^pnent  for  the  sum  of  £85,  to- 
gether with  a  sum  in  respect  of  the 
maintenance  of  the  said  horses  calcu- 
lated at  the  rate  of  eleven  shillings  per 
day  from  the  24th  August  inclusive,  (b) 
Interest  a  tempore  morae;  (c)  alterna- 
tive relief,  together  with  (d)  costs  of 
suit. 

The  defendant's  plea  was  as  follows: 

1.  The  defendant  admits  paragraph  1 
of  the  declaration. 

2.  As  to  paragraph  2  thereof,  he  ad- 
mits the  said  satle,  but  deiues  the  al- 
leged guarantee.  He  savs  that  the 
plaintiff  purch>tsrH  the  saia  horses  after 
having  carefully  examined  them,  and 
that,  m  reply  to  an  inaury  by  the  plain- 
tiff as  to  their  oonaition,  the  aefen- 
dant  informed  him  that  he  would  give 
no  guarantee,  but  sold  the  animals  as 
they  then  were. 

3.  The  defendant  has  no  personal 
knowledge  of  the  allegations  contained 
in  paragraph  3  of  the  decUtrwtion,  and 
puts  the  pladntiff  to  the  proof  of  them. 

4.  As  to  paragraph  4,  he  admits  the 
said  tender  and  his  refusal  to  accept  it, 
but  otherwise  denies  the  said  para- 
graph. 

5.  He  luis  no  knowledge  of  the  mat- 
tors  pleaded  in  paragraph  5. 

6.  As  to  the  plaintiff's  alternative 
claim,  the  defendant  craves  leave  gener- 
ally to  refer  to  and  repeat  the  allega- 
tions above  set  forth. 

7.  He  specially  denies  paragraph  10 
thereof,  and  says  that  even  if  it  be  true, 
as  alleged,   that  the  horses  were  subse 

auently  found  to  be  unsound,  it  was 
early  understood  and  agreed  at  the 
time  of  the  said  purchase  that  the  said 
horses  were  sold  as  they  then  were,  and 
that  the  defendant  would  not  be  re- 
sponsible for  any  defects  which  might 
subsequently  be  discovered  in  them. 

Wherefore  the  defendant  prays  that 
the  plaintiff's  claim  may  be  dismissed, 
with  costs. 

Mr.  Benjamin  (with  him  Mr.  Sutton) 
for  plaintiff;  Mr.  Burton  for  defendant. 

Jonathan  Adrian  Fourie  (plaintiff) 
said  that  some  time  ago  he  secured  a 
cartage  contract  irom  Messrs.  Garlick. 
He  called  on  the  defendant,  and  wit- 
ness   agreed    to   take    two  horses,    pro- 


vided that  they  were  useful,  as  well 
as  ornamental.  Witness  asked  whether 
Hendricks  guaranteed  the  horses,  and 
the  latter  replied:  "If  I  do  business 
with  a  gentleman,  I  always  like  him  to 
come  back  to  umj."  Witness  purchased 
the  horses.  Two  gentlemen  of  the 
S.P.C.A.  'drew  his  attention  to  a  splint 
on  the  gelding's  near  leg.  which  they 
said  would  not  affect  the  horse.  Wit- 
ness was  practically  satisfied,  and 
boui^ht  the  horses.  Witness  wanted 
to  give  a  postdated  cheque  for  the  car- 
riage, and  the  defendant  said  he  would 
like  to  have  a  cheque  in  date  for  the 
horses.  Subsequently  he  found  that 
something  was  wrong  with  the  horse, 
and  he  stopped  payment  of  the  poet- 
dated  cheque;  but  as  it  had  been 
parted  with  to  a  third  party,  he  had  to 
pay  up.  The  horses  were  sent  from 
Kosebank  to  Cape  Town  and  back  and 
next  morning  he  found  the  gelding 
lame  and  the  mare  stiff.  Witness  had 
not  been  able  to  use  the  horses,  and 
from  the  9th  September  to  30th  Novem- 
ber he  paid  5s.  per  day  for  the  staJl 
ing  of  the  horses  Witne«  told  the 
detendant  the  horses  were  no  good, 
and  the  latter  told  him  to  bring  them  up 
and  he  would  exchange  them.  Witness 
refused  to  do  so,  and  on  returning  them, 
the   defendant   refused  delivery. 

Cross-examined  by  Mr.  Burton:  The 
gelding  was  not  lame  at  present,  but 
the  mare  was  very  stiff.  He  was  of 
opinion  that  it  would  have  been  im- 
poraible  for  two  S.P.C.A.  officials,  who 
were  present  at  the  time  of  the  sale, 
to  have  l^ard  the  defendant  say  that 
he  would  not  guaif&ntee  the  animals. 
The  horses  left  Cape  Town  in  a  landau 
for  Rosebank  on  August  23,  at  6.55,  but 
at  what  time  they  were  stabled  that 
night    he    did    not    know. 

John  Forrest.  M.R.C.V.S..  Edin- 
burgh, said  that  when  he  saw  the  ani- 
mals next  day  after  they  arrived,  he 
rejected  them.  On  November  30  he 
drove  the  mare  slowly  from  Rosebank, 
and  when  she  reached  the  stables,  she 
was  much  distressed. 

Archibald  Mitchell,  in  the  employ  of 
the  plaintiff  as  manager  to  the  stables, 
stated  that  he  had  stalled  the  plaintiff's 
horses  at  Rosebank  from  the  9th  Sep- 
tember to  30th  November.  His  charge 
was  2s.  6d.  per  day  per  head.  During 
the  time  witnesses  had  the  horses  the 
mare  could  not  have  been  used ;  the 
gelding  would  have  required  a  couple 
of  months'  rest.  The  mare  was  very 
unsound. 

Cross-examined  by  Mr.  Burton:  Wit- 
ness rented  the  stables  at  Rosebank.  He 
had  no  horses  of  his  own  at  present. 
When  witness  saw  them  first  they  were 
unsound.  Anyone  that  understood 
horseflesh  must  have  known  the  horses 
were  unsound.  The  geldinjg  was  limp- 
ing, suffering  from  a  sprained  tendon, 
on  the  day  it  was  delivered.  Witness 
sent  the  gelding  out  to  work  that  night, 


988 


n 


CAPE  TIMES'*   LAW  REPORTS. 


becauso  tho  sprain  might  have  not  gone 
l>ack  ou  it. 

Ahmed  Allie,  formorlv  in  tho  employ 
uf  IlGiuIriclu),  said  he  knew  tlie  horses 
in  question.  The  gelding  was  lame,  and 
the  mare  was  stiff  on  her  return  from 
Messrs.   Liberman  and  Buirski. 

Cross-examined  by  Mr.  Burton :  Wit- 
ness was  not  dismissed  for  taking  two 
of   Hendrick'B   whips. 

Mr.  Benjamin  closed  his  case. 

Jabordien  Hendricks,  the  defendant, 
denied  that  tho  plaintiff  said  he  wanted 
horses  to  do  Garlick's  work.  The  plain- 
tiff was  satisfied  with  a  trial  drive,  and 
witness  refused  to  give  a  guarantee. 
Tiie  plaintiff  acoeDrted  the  horses  with- 
out a  guarantee.  Witness  never  noticed 
anv-thing  wrong  with  the  gelding  in  his 
^tablc.  The  mare  usually  did  Liberman 
and  Buirski's  work,  and  there  was  no- 
thing wrong  with  ner.  It  was  raining 
on  the  nignt  the  horses  were  sent  to 
the  plaintiff.  When  they  were  returned 
in  three  days  they  were  all  right. 

Cross-examined     by    Mr.     Benjamin : 
Witness   sold    the   horses   as  they    were 
without  a  guarantee.    When  the  honses 
were  returned  to  him,  as  far  as  he  oould 
say,  they  were  free  from  lameness. 

Joel  Bull,  inspector,  in  the  employ 
of  the  S.P.C.A.j  said  he  was  at  Hen- 
drick's  place  with  another  inspector, 
when  the  plaintiff  came  up.  After  the 
horses  had  been  driven  around,  Hen- 
dricks said  he  never  guaranteed  horses. 
At  the  request  of  the  plaintiff,  witness 
looked  at  the  horses,  and  told  him  the 
horses  were  in  fairly  good  condition. 
The  splint  was  the  only  thing  witness 
saw  in  the  gelding,  and  the  plaintiff 
said  that  did  not  matter  if  it  was  set. 

Cross-cxamincKl  by  Mr.  Benjamin : 
Hendricks  distinctly  said  after  the 
cheque  was  paid  that  he  would  not 
guarantee  the  horses. 

Fred  Howoher,  another  inspector, 
gave   similar  evidence. 

John  Williams,  a  coloured  man,  for- 
merly in  the  employ  of  Fourie,  said 
tliat  on  August  23  Louis  took  the  horses 
out  of  the  stable  at  about  seven  o'clock, 
and  did  not  return  them  until  two  the 
following  morning. 

Mr.  Benjamin  asked  leave  to  call 
Louis  on  this  point. 

Louis  said  he  was  in  the  employ  of 
Fourie.  He  remembered  driving  to 
Rosebank,  and  upon  returning  he  out- 
spanned.  The  last  witness  was  then 
tipsy.  Upon  returning  from  taking  the 
ixjople  to  the  theatre,  he  outspanned. 
He  drove  slowly  back  the  second  time, 
l>ocau9e  the  horses  were  stiff,  and  ho 
arrived  late  at  the  station. 

The  witness  Venter  (recalled)  said  that 
ho  was  at  the  stables  when  the  horses 
were  brought  back  on  both  occasions 
on  tho  night  referred  to.  The  first  time 
they  came  home  after  eight,  and  the 
second  time  between  12  and  1. 

Mr.  Benjamin  having  been  heard  in 
argument  on  tho  f&cts,  the  Court,  with- 


out   calling    upon    Mr.    Burton,       gave 
judgment  for  the  defendant,  with  costs, 
l^uchanau,   A.C.J. ,  said  that   is      was 
clear— iwen   on   tljo   piaintiff^s  own  evi- 
dvnoc^! — that  there     was     no     warranty. 
But    it     was     further     contended     that 
tho      defendant     would      still      be     re- 
si>onsiblo    if    at  the   time  of    sale    there 
was  a  latent  defect  in  the  horses  known 
to  the  seller.    As  to  the  gelding,  he  (the 
Acting   Chief    Justice)    was    inclined  to 
say  that  the  sprained  tendon  found  af- 
terwards by  Mr.  Forrest  was  the  result 
of  the  user  of  the  borses  by  the  plain- 
tiff   that    night,   and    that  at   the   time 
of  the  sale  the  horse  was  sound  but  for 
the  splint  which  was  pointed  out  to  the 
plaintiff      before      he      bought.       With 
regard  to  the  mare,  there   wan  no  evi- 
dence   of    the    existence  of    rheumatics 
before   the   sale,  and    he  did   not   think 
it  was  anything  but  what  might  reason- 
ably be  expected  to  find  that  after  the 
nvire's  treatment  on  the  night  in  ques- 
tion,  she   should    have   suffered  as    Mr. 
Forrest   deposed   she  did    when  he   ex> 
amincd    her.       There   was    an     express 
repudiation  of  any  warranty,  and  there 
was  no  knowledge  proved  on  the  part  of 
the   seller  of   anv   latent   defect.    Judg- 
ment would  be  for  the  defendant,  with 
costs. 

[Plaintiff's  Attorney:    O.  Trollip;  De- 
fendant's  Attorney :   J.  F.  E.  £k«ruard.] 


SUPREME  COURT 


FIRST  DIVISION. 


[Before  the  Chief  Justice  (the  Ritrht 
Hon.  Sir  J.  H.  DE  ViLLlBBS,  P.C., 
K.C.M.G.,  LL.D ).] 


REX  V.  HAM  AND  OTHEEtS. 


i  Dec.  .'>tb. 


Betting-bouse— Act  36  of  1902— 
Horse  racing — Jockey  Club 
of  S.  Africa. 

The  appellanU  authorized  the 
use  of  a  tntalizutor  for  pnr- 
postH  of  betting  at  a  nice 
nwetinff  held  by  tfiem^  hut  they 
had  no  licence  from  the  Jockey 
Club  o/\'i.  Africa  and^  although 
they  professed  in  their  ather^ 
tizementH  of  the  race  meeting 
to  act  under  the  rules  and 
regulations  of  the  Jockey  Clnb^ 


i 


''CAl'B  TIMES"  LAW  tlEPOtlTS. 


989 


they  allttretl  jocket/H,  who  had 
been  tramtd  off  ihti  course^  and 
horttfis  which  had  been  din- 
qualijied  by  the  Jockey  Chib^ 
to  run  at  tnich  nice  meethaj,  in 
Citntrarfntion  of  surh  mica  and 
regulations. 

Held,  that  the  appfllanln  had 
been  properly  convicted  of  a 
contravention  of  the  lOih  xec- 
tion  of  Act  36  of  1902,  and 
thai  they  were  not  protected  by 
the  21  Ht  section  of  the  Act. 


This  was  an  appeal  frum  a  judgment 
of  the  Asfiistant  Resident  Magistrat-e  of 
Cape  Town,  who  had  convicted  Ham 
ruiu  a  number  of  others  of  a  contraven- 
tion of  Section  16  of  Act  36  of  1902, 
in  that  on  September  16  last  they  had 
wrongfully  ana  unlawfully  opened,  kept, 
and  used  at  or  near  Goodwood  Park  Es- 
tate a  certain  hou^e  or  building,  known 
as  Goodwood  Park  Club,  as  a  betting 
house  or  place  within  the  meaning  of 
Section  16  aforesaid. 

Mr.  Burton  (with  him  Mr.  Lewis)  was 
for  appellants;  Mr.  Nightingale  was  for 
the  Crown. 

Mr.  Burton  said  that  the  cas<»  shortly 
was  this :  It  was  proposed  some  time 
ago  to  start  a  racecourse  at  a  place 
called  Goodwood,  which  was  some  little 
distance  out  of  Cape  Town,  on  the  way 
to  the  Paarl,  on  the  main  line.  Several 
gentlemen,  including  a  certain  Mr.  Mar- 
tin, a  broker  in  Cape  Town,  Mr.  Ham, 
a  well-known  Johannesburg  man,  and 
others,  banded  themselves  tog>ether, 
bought  a  certain  property  at  Goodwood, 
invested  a  good  deal  of  money  in  it?, 
and  formed  themselves  into  a  limited 
liability  company  for  the  purpose  of 
promoting  racing.  They  erected  build- 
ings and  so  forth,  and  eventually  adver- 
tised a  race  meeting  to  be  held.  Their 
race  meeting  was  advertised  to  be  held 
under  the  Goodwood  Park  rule*.  It 
was  then  brought  to  their  notice  that  the 
2l8t  section  of  this  Betting  Act  exempted 
from  liability  for  betting  offences  only 
such  pToceeaings  on  racecourses  as  were 
conducted  under  the  rules  of  the  Jockey 
Club,  and  that  their  own  rules  could  not 
entitle  them  to  come  within  the  exemp- 
li m  of  that  section. 

[D©  Villiers,  C.J. :  I  have  road  tho 
locord.  I  suppose  jrou  will  admit  that 
but  for  the  2l8t  section  there  haa  been 
an  infringement  of  the  Act?] 

Mr.  Burtwn:  Ye?.  I  think  so.  The 
point  is  whether  the  exemption  of  the 
21st  section  i^  an  exemption  only  of  such 
racing  cluKs  as  ai*«>  under  tho  control 
of  the  Jockey  Club,  i.e..  as  are  licensed 
by  the  Jockev  CMub.  or  whothor  it  is  an 
exemption  of  racing  clubs  which  con- 
duct   their   racing  in    accordance      with 


tho  racing  rules  of  the  Jockey  Club. 
There  is  an  important  distinction  be- 
tween those  two  things.  Tho  real  ob- 
jection taken  is  that  these  people  are 
not  licensed  by  the  Jockey  Club.  There- 
fore, the^  construe  the  exem{)tnon  clause 
as  meanmg  that  tho  exemption  is  only 
granted  to  such  race  meetings  as  are 
lioeneed  by  tho  Jockey  Club.  Proceed- 
ing, counsel  pointed  out  that  since  the 
Act  was  passed  the  headquarters  of  tho 
Jockey  Club,  which  were  formerly  at 
Port  Elizabeth,  had  been  removed  to  Jo  ■ 
hannesbur^,  and  therefore  were  now  bo- 
yond  the  jurisdiction. 

[D©  Villiers,  C.J. :  Is  there  no  other 
statutory  recognition  of  the  Jockey  Club 
than  is  contained  in  the  Act  of  1902  ?J 

Mr.  Burton  said  that  he  believed  there 
was  not. 

Do  Villiers,  C.J.,  said  that  the  fact 
of  the  removal  of  the  headquarters  of 
the  Jockey  Club  mi^ht  bo  a  reason  for 
altering  the  21st  section. 

Mr.  Burton  went  on  to  contend  that 
the  exemption  was  given  to  bona-fide 
racing,  which  was  carried  on  under  tho 
rules  of  the  Jockey  Club. 

De  Villiers,  C. J.,  took  the  illustra- 
tion of  horses  and  jockeys  disqualified  by 
the  Jockev  Club,  and  put  it  to  counsel 
whether  the  intention  of  Parliament  was 
not  that  racing  should  bo  conducted  fair- 
ly and  honourably,  and  whethor,  if  tho 
Jockey  Club  warned  a  jockey  off  tho 
course,  and  that  jockey  rode  at  a  meeting 
not  licensed  by  tho  club,  that  was  not 
contrary,  at  all  events,  to  tho  spirit  of 
the  Act. 

Mr.  Burton:  We  must  then  interpret 
the  section  as  going  so  far  as  to  say 
that  no  person  shall  be  exwupted  unless 
he  betfi  in  a  race  which  is  held  under 
the   licence  of  the  Jockey  Club. 

[De  Villiers.  C.J. :  Ah,  that  may  be 
the  effect.) 

Mr.  Burton :  Logically,  my  lord,  I 
submit  that  we  must  go  that  length. 
One  must  ^o  to  tho  length  of  saying 
that  Parhament  meant  to  give  the 
Jockey  Club  a  monopoly  of  racing 
throughout  South  Africa, 

iDe  Villiers,  C.J. :  Did  any  jockeys 
e  at  this  meeting  who  had  been  warn- 
ed off?f 
Mr.  Burton:  No. 
[De  Villiers,  C.J. :  Any  horhos?] 
A  horse  called  Foxrock  ran,  which 
had  been  disqualified  by  tho  Jockey 
Club  of  South  Africa.  Counsel  went 
on  to  say  that  the  Jockey  Club 
was  more  or  less  in  the  nature  of  a 
close  corporation.  It  was  very  jealous 
of  its  own  rightSi  of  its  own  jurisuic- 
tion,  and  its  own  control.  It  was  very 
jealous  indeed  of  the  control  which  it 
had  exorcised  in  the  past  over  clubs 
lioensod  bv  it.  According  to  Mr. 
(Mooto'a  evitlonoo,  the  objections  really  to 
tho  racing  of  the  Goodwood  Park  (Mub 
was  that  this  club  was  not  licensed. 
Counsel   proceeded  to  submit  that     tho 


990 


(I 


CAI»E  tlMES''  LAW  REt'ORTd. 


word  "under**  in  the  Act  did  not  mean 
"under  the  control  of."  "Under"  sim- 
ply meant  the  same  as  "  in  accordance 
with."  The  Act  did  not  sav  "any  race 
which  may  be  held  under  the  licence  of 
the  Jockey  Club.**  He  contended  that  it 
was  never  intended  bv  Parliament  to 
give  to  the  Jockey  CJlub  a  monopoly  of 
racing  in  Sout'o  Africa.  It  was  clear, 
he  urged,  that  appellants  had  acted 
bona  fide  throughout. 

[Do  Villiers,  O.  J. :  What  was  the 
ground  of  the  disqualification  of  that 
horse?  ?] 

Mr.  Burton  said  that  he  did  not  know 
why  Foxrock  was  disqualified.  He 
added,  however,  that  the  matter  was  not 
finally  settlcu.  as  an  appeal  had  been 
taken.  Counsel  went  on  to  draw  the 
Court's  attention  to  the  heavy  penalties 
imposed  by  the  Court  below  upon  appel- 
lants, who  had  acted  honestly  and  bona 
fide,  with  a  view  of  testing  the  case. 
He  also  addressed  the  Court  on  behalf 
of  the  bookmakers  and  their  clerks,  in 
mitigation  of  sentence. 

Without  calling  upon  Mr.  Nightingale, 

Do  Villiers,  C.J.  :  Tlie  terms  of  the 
16th  section  of  Act  36  of  1902  are  ex- 
tremely wide,  and  the  learned  counsel 
for  the  appellants  admits  caJididly  that 
if  that  section  had  not  b<?en  qualified  by 
another  section,  the  conviction  would 
have  lx»en  good.  He  contends,  however, 
that  the  appellants  are  protected  by  the 
21st  section.  Now,  it  is  clear  that  if  the 
appellajit")  relied  upon  the  exception 
it  is  for  them  to  prove  that 
the  case  falls  within  the  exception. 
The  21st  section  is  as  follows :  "  Nothing 
in  this  part  contained  shall  extend  to 
any  person  receiving  or  holding  any 
money  or  valuable  thing  by  way  of 
stakes  or  deposit  to  be  paid  to  the  win- 
ner of  any  race  or  lawful  sport,  game,  or 
exercise,  or  to  the  owner  of  any  horse 
engaged  in  any  race,  or  to  any  owner  or 
occupier,  or  person  duly  autnorised  to 
act  tor  him,  of  any  racecourse  or  other 
ground  used  for  horse-racing,  keeping, 
or  using,  on  any  day  on  which  any  race 
is  being  held  under  and  in  accordance 
with  the  rules  and  regulations  for  the 
time  being  in  force  of  the  Jockey  Club 
of  South  Africa,  any  buildings,  sheds, 
structures,  or  any  enclosed  spaces  on  or 
within  such  course  or  ground,  for  the 
purpose  of  betting,  between  persons  there 
assembled,  on  races  there  and  on  that 
day  to  be  held."  The  section  is  extreme- 
ly involved,  but  it  is  quite  cle<ar  that 
the  Legislature  regarded  the  Jockey  Club 
as  a  corporation  who,  although,  as  was 
said,  a  close  corporation,  would,  at  all 
events  see  to  it  that  racing  is  conducted 
in  a  fair  and  honourable  manner. 
That  could  he  the  only  reason  for  re- 
quiring that  the  races — the  protected 
races — should  be  hold  under  and  in  ac- 
cordance with  the  rulefi  and  regulations 
for  the  time  being  in  force  of  the  Jockey 
Club  of  South  Africa.  Now,  it  would 
appear  that  by  the  rules  of  racing  estab- 


lished by  the  Jockey  Club,  that  club 
has  the  power  of  disqualifying  bones— 
in  other  words,  of  preventing  any  faorse 
which  had  been  aisqaalified  by  them 
from  running  in  any  race  under  the 
sanction  of  the  Jockey  Club.  It  would 
appear  that  thfe  appellants  did  not  re- 
cognise the  power  of  the  Jookey  Club, 
and  that  one  of  the  horses  which  ran 
at  the  appellants'  race  meeting 
was  a  horse  which  had  been 
disqualified  in  accordance  with  the 
rules  and  regulaitiovis  of  the  Jockey 
Olub,  and  the  question  now  is  whether 
under  such  circumstances  the  race  could 
be  said  to  be  under  the  rules  and  re- 
gulations of  that  club.  It  appears  to 
me  that  this  is  a  matter  of  extreme  im- 
portance— ^that  jockeys  who  have  been 
warned  off  the  counse  should  cot  run 
horses,  and  that  horses  which  have  been 
disqualified  should  not  be  allowed  to 
run  in  any  race,  and  if  any  cluh  which 
has  not  the  authority  of  the  Jockev 
Club  or  any  license  of  the  JooVev  Club 
chooses  to  disregard  that  rule  and  allow 
horses  which  are  disqualifiel  to  run  in 
any  race,  it  appears  to  me  clear  that 
such  a  race  is  not  held  under  and  in 
accordance  with  the  rules  and  regula- 
tions for  the  time  being  in  force  of  the 
Jockey  Club.  For  this  simple  reason,  I 
am  of  opinion  that  the  Magistrate  was 
quite  right  in  his  judgment,  that  there 
was  a  coirtravention  of  the  section.  But 
it  has  been  contended  that  the  Appel- 
lants wera  acting  in  perfect  bona-ndes, 
and  that,  therefore,  the  amount  of  the 
fine  is  exoessive,  and  that  somehow  or 
other  this  Court  should  reduce  that 
amount.  The  16th  section  of  the  Act 
authorises  a  much  higher  fine  than  the 
one  which  was  actually  imposed.  The 
fine  for  the  first  offence  is  not  esceediog 
£200,  and  for  the  second  offence  not  ex- 
ceeding £500,  or  imprisonment  with 
hard  labour.  I  confess  that  the  amount 
of  £25  does  seem  high,  considering  all 
the  eircumstancevs  of  the  case.  Cap- 
tain Ham.  one  of  the  appel- 
ients.  produced  very  good  testi- 
nionials,  and  apparently  he  was  a  man 
V  ho  would  not  wilfully  infringe  any 
provision  of  the  law,  and  he  seems  to 
nave  been  advised  that  he  was  not 
infringing  any  provision  of  the  law.  But 
that  is  a  circumstance  which  this  Court 
as  a  Court  of  Appeal  cannot  take  into 
consideration.  It  is  a  matter  for  the 
executive  to  decide  whether  the  fines 
are  too  high,  but  so  long  as  the  fines 
are  within  the  limits  authorised  by  the 
Act,  this  Court  should  not  interfere  with 
the  discretion  of  the  Magistrate,  i'his 
is  to  be  said  in  regard  to  the  fines  that 
all  the  appellants  had  due  notice  that 
an  objection  was  raided  to  ^the  meetinff, 
and  that  there  would  be  a  prosecution, 
and,  in  spite  of  this  notice,  the  appel- 
lants took  upon  themselves  the  risk  of 
proceeding  with  the  race  meeting,  and. 
therefore,  they  have  only  themselves  to 
thank  if  in  the  result  a  heavier  penalty 


41 


OAi»e  TtMSB'*  LAW  EEPORTB. 


991 


was  impoeed  than  that  which  they  ex- 
pected. In  any  case,  whether  the  penal- 
ty is  high  or  low,  inasmuch  as  it  was 
within  the  limits  authorised  by  the  law, 
this  Court  should  not,  as  a  Court  of 
Appeal,  set  aside  the  sentence.  The 
appeal,  in  my  opinion,  must  therefore 
be  dismissed. 

[Appellants'    Attorney:     F.     B.     An- 
drews.] 


REX    V.    MABANTl    AND 
OTHEB8. 


f       1905. 
i  Dec.  5th. 


Onus  of  proof — Criminal  offence 
— Proof  of  want  of  consent. 

Under  the  Transkeian  law  it 
U  an  offence  for  any  native  in 
certain  locations  to  erect  a  hut 
within  such  locations  mthout 
the  consent  of  the  Itesident 
Magistrate.  The  accused  ircre 
convicted  of  a  contra  cention  ttf 
(lie  hue,  but  no  evidence  had 
been  produced  of  such  irant  of 
consent. 

Held,  thai  the  burden  of 
proving  the  want  of  consent 
lay  on  the  proserntion,  and 
that  the  accused  had  been 
improperly  conv  cted. 


This  was  an  appeal  from  a  judgment 
of  the  Resident  Magistrate  of  Lusikisiki, 
Eastern  Pondoland,  who  had  convicted 
five  natives  of  contravening  sections  3 
and  9  of  Proclamation  No.  125  of  1903, 
in  that,  on  or  near  Nozozo's  Location, 
they  had  wrongfully  and  unlawfully 
erected  a  certain  hut  or  building  with- 
out the  consent  of  the  Resident  Magis- 
trate being  first  had  and  obtained.  The 
Court  below  imposed  a  fine  of  £5. 

The  Magistrate,  in  his  reasons  for 
judgment,  said  that  the  evidence  for  the 
prosecution  was  very  clear,  and  the  wit- 
nesses for  the  prosecution  gave  their 
evidence  in  a  very  straightforward  and 
truthful  manner.  It  was  difficult  to 
^et  at  the  exact  date  when  this  build- 
ing was  commenced,  as  the  natives 
hiul  very  little  idea  as  to  time.  The 
prosecution  alleged  that  it  was  com- 
menced in  the  winter  of  1904,  which 
might  be  any  time  between  May  and 
September.  The  defence,  on  the  other 
hand,  definitely  stated  that  the  hut  was 
l)egun  on  the  16th  July,  1904.  The 
Court  had  come  to  the  conclusion  that 
this  date  was  decided  upon  by  the  de- 
fence in  order  to  endeavour  to  prove 
an  alibi.  Tlie  Court  was  of  opinion 
that  it  was  (juite  po.««ibi«  that  Head- 
inan  Nozozo  did  give  theso  men  ]x»r- 
mission  to  erect  the  hut.  and  it  wa** 
just    likely    that    he,    knowing    the   risk 


that  he  was  running,  changed  his  mind 
immediately  he  saw  tlie  hut  being  erect- 
ed. The  followers  of  the  Ethiopian 
Church  had  for  the  past  seven  or  eight 
yean  been  endeavouririig  by  legal 
means,  i.e.,  by  formal  application,  to 
obtain  Church  sites  in  this  district  with- 
out succesk$,  and  in  this  case  the  Court 
was  of  opinion  that  the  prisoners,  who 
were  all  interested  in  the  Ethiopian 
movement,  knew  perfectly  well  that 
they  were  doing  wrong  in  erecting  this 
church,  and  they  did  so  risking  the 
consequences,  in  order  to  get  a  foot- 
ing for  their  Church  in  this  district. 
Taking  all  the  circumstances  into  con- 
sideration, the  Court  was  firmly  con- 
vinced that  the  prisoners  did  build  this 
hut  without  permission,  at  the  same 
time  knowing  that,  had  they  applied 
to  the  Magistrate  for  permission,  it 
would  have  been  refused  them.  Before 
concluding  (added  the  Magistrate),  he 
would    like   to   mention    that    Mabanti, 

Erevious  to  his  residing  in  Nozozo's 
ocation,  lived  at  the  Palmeraton  Mis- 
sion Station,  and  was  turned  out  on 
account  of  his  mixing  up  with  the 
Ethiopians,  and  allowin-?  tnem  to  use 
his  huts  for  church.  He  was  turned 
out  by  the  Assistant  Chief  Magistrate, 
and  ever  since  his  removal  to  his  pre- 
sent home,  he  had  continued  to  sup- 
port them.  This  fact  did  not  come 
out  in  evidence,  but  would  have  done 
so  had  Mabanti  given  his  evidence. 

Mr.  Douglas  Buchanan  appeared 
for  the  appellants^  Mabanti,  BaJandiie, 
Madonyela,  Matshikilana,  and  Jeremiah. 
Mr.  Nightingale  was  for  the  Crown. 

Mr.  Buchanan  said  that  there  was  no 
evidence  given  in  the  Court  below  that 
the  Magistrate's  consent  had  not  been 
obtainoo.  There  was  no  evidence  fur- 
ther that  the  hut  was  built  within  any 
location.  He  submitted  also  that  the 
Proclamation  was  ultra  vires.  He  con- 
tended that  the  onus  lay  upon  the  pro- 
secution of  proving  that  the  Magis- 
trate's consent  had  not  been  obtained. 

Mr.  Nightingale  said  that  there  was 
sufficient  notice  to  the  appellant  that  he 
was  building  within  a  location.  Tlie 
Proclamation  referred  generally  to  the 
whole  of  the  Territories. 

De  Villiors,  C.J. :  It  is  a  first  princi^)lo 
in  the  administration  of  criminal  justice 
that  the  prosecution  should  prove  its  case. 
It  is  of  tne  essence  of  the  offence  in  the 
present  case  that  the  erection  of  the 
nut  by  the  natives  should  have  been 
done  without  the  consent  of  the  Resi- 
dent Magistrate  of  the  district,  and  evi- 
dence should  have  been  led  that  the 
Magistrate    had    not    consented.  It 

may  be  said,  ''  Well,  if  the  Magistrate 
had  consented,  the  accused  could  have 
proved  it.''  That  may  be  so,  but  it 
does  not  dispense  with  the  necessity  on 
the  part  of  the  prosecution  of  proving 
the  wont  of  consent.  The  raso  is  lurt 
one  in  which  a  fact  is  alleged  which 
would  be  ipeeuliarly  in  the  knowlcdRo 
of  the  accused,  for  the  prosecutor  must 


1 


992 


It 


CAPB  TIMES"  LAW  REMfttS. 


I 


aiid  could  havo  known  whether  or  not 
the  Maffistrato  had  Rivoii  hia  consent. 
It  in  not  one  of  those  case«  in  which  it 
is  not.  potisible  to  prove  a  neg'ative.  It  was 
quite  possible  to  prove  the  negative 
tnat  the  Magistrate  had  not  given  his 
confen^.  Tt  is  clear  that  in  the  present 
case  the  Magistrate  who  tried  the  case 
b'^lievcd  that  the  consent  had  not  l>een 
given.  Ho  asisumed,  however,  the  fact, 
and  he  omitted  to  take  the  requisite 
evidence  which  was  necessary  for  the 
prosecution.  On  this  simple  ground,  I 
am  of  opinion  that  this  failure  was  a 
failure  on  the  part  of  the  prosecution 
to  establish  a  fact  which  wa<^  cwentiaj 
for  the  purpose  of  the  conviction.  The 
appeal,  on  this  simple  ground,  must 
therefore  be  allowed,  and  the  convic- 
tion quashed.  I  may  add  that  in  the 
case  of  a  person  charged  with  soiling 
liquor  without  a  licence,  the  Legislative 
found  it  noce'<«ary  jfpocially  to  enact  that 
lie  shall  Ik*  deemed  to  Ih»  unliceii.sod  un- 
less ho  pnHhices  satisfactory  proof  of  be- 
ing licensed. 

[Appellants'  Attorneys:    Zict-man  and 
Bosmaik] 


SECOND    DIVISION. 


[Before  the  Hun.  Mr.  Justice  Maasdoup.] 


{ 


VM)o. 
Ex  parte  LA  LOO.  \  Dec.  r>th. 

.,     6  th. 

Alien  immigrant— Act  47  of  1902 
— Domicile. 

Mr.  Burton  moved,  as  a  matter  of  ur- 
gency, for  an  order  calling  on  the  Colo- 
nial Secretary  to  authorise  the  Immigra- 
tion Officer  to  allow  an  Indian  to  land 
i.-i  the  Cape  Colony.  The  appjioant,  it 
was  stated,  had  been  domiciled  in  Natal, 
and  thcro  was  a  certificate  to  that  effect 
from  the  Immigration  Officer  at  the 
Point.  He  was  about  to  proceed  to 
Port  Elizabet^h,  but  he  was  refused  per- 
mission to  land  there,  and  also  at  Cape 
Town.  He  was  at  present  detained  on 
the  S.S.  Briton  at  the  Docks.  Counsel 
contended  that  although  the  applicant 
could  not  pass  the  education  test,  he 
could  not  he  refused  admission  once  ho 
had  been  domiciled  in  South  Africa. 

Mj*.  Nightingale,  who  api)earcd  for 
the  Crown,  read  the  affidavit  of  the  Im- 
migration Officer  at  Cape  Town,  which 
set  out  that  the  applicant  could  not  pa.s6 
the  edu(-ation  tost,  iiiul  (hat  ho  had  stat- 
ed his  wife  and  chiMron  wore  at  present 
rosidonl  in  Tntlia.  ('nuu-sol  p(»into(l  out 
that  tlioro  was  no  evidence  of  domicile 
in  S<»iith  Africa,  and  that  all  the  cir- 
cuniatancos  of  the  case  did  not  consti- 
tute a  doni»iciIe  which  the  Court  would 


uphold.  The  applicant  might  be  domi- 
ciled in  Natal,  but  he  would  not  be 
domiciled  in  South  Africa  under  the 
common  law. 

Maasdorp,  J.,  said  there  was  not  suflB- 
cient  information  on  either  side,  and 
ordered  the  matter  to  be  mentioned 
again  to-morrow  morning. 

Postea  (December  6). 

Mr.  Nightingale  read  an  affidavit 
of  the  Assistant  Immigration  Offi- 
cer, who  exajninod  the  applicant. 
It  set  out  that  the  applicant, 
who  was  unable  to  pass  the  educa- 
tion test,  stated  he  had  resided  for  some 
years  in  Durban,  had  followed  several 
occupations,  that  he  had  no  immovable 
property  in  South  Africa,  that  he  had 
a  wife  and  one  child  in  India,  and  in 
six  nionths'  time  he  intended  making 
a  visit  of  a  year  to  India,  but  be  made 
no  mention  of  bringing  his  wife  to 
South  Africa. 

Mr.  Burton  read  a  replying  affidavit, 
in  which  the  applicant  set  out  he  was 
not  going  to  remain  in  India,  that  he 
was  going  for  the  purpose  of  seeing  his 
wife  and  family,  whom  he  had  not  seen 
for  the  past  nine  yeans;  aod,  if  he 
was  able  to  support  them,  he  would 
bring  his  wife  and  family  to  South 
Africa. 

Mr.  Nightingale  pointed  out  that  we 
had  not  had  a  large  body  of  immigra- 
tion of  Asiatics  in  this  Ck)lony  such  as 
they  had  had  in  Natal.  His  contention 
was  that  from  the  terms  of  the  Natal 
Act  it  was  perfectly  clear  that  the  ob 
ject  of  this  certificate  framed  under  the 
Act  was  not  to  afford  evidence  to  any 
applicant  of  domicile  in  South  Africa, 
but  evidence  of  the  right  of  such  a 
person  when  he  left  Natal  to  come  back 
again  at  such  time  as  he  pleased.  He 
submitted  that  that  was  perfectly  clear 
from  the  4th  section  (sun-section  f)  of 
the  Act.  He  contended  that  the  certi- 
ficate wag  worthless  when  an  endeavour 
was  made  for  the  purpose  of  proving 
and  covering  the  term  **  domicile  "  as 
known  in  our  law.  If  the  applicant  had 
v\>uic  with  his  wife  and  family  t>here 
would  have  been  no  objection  to  his 
readmission.  because  there  would  have 
been  evidence  of  his  intention  of  settling 
in  South  Africa  and  making  South 
Africa  his  home.  But  he  had  not 
brought  his  wife  and  family,  and  there 
was  absolutel^r  no  evidence  of  an  in- 
tention on  his  part  to  make  South 
Africa  his  domicile.  The  circumstances 
of  Natal  and  this  colony  in  reference  to 
this  matter  of  immigration  were  totally 
different.  There  was  no  redprocrty  be- 
tw<»on  the  (V)ln«)ies  in  thi<i  respect.  The 
Natal  Act  was  very  much  broader  than 
ours.  It  was  |M»rfectly  olear  tint  the 
d<«niicilo  contemplated  bv  the  Cape 
.\(t  wsi-i  the  <iomic'ile  known  to  the 
c<»nimon   law  of  South  Africa. 

Mr.  Burton  said  that  his  learned 
friend  had   argued   that  the  Natal   Act 


"CAPS  TIMlid'*  LAW  ilEPORTd. 


995 


name  of  the  said  John  Walker,  by  reBson 
whereof  he  i«  a  tieceasary  party  to  this 
euit. 

6.  All  Hiinffs  have  happened,  all  con- 
ditions have  Deen  performed,  and  all 
times  have  elapsed  necessary  to  entitle 
the  plaintiffs  in  their  aforesaid  capacity 
to  receive  transfer  of  the  said  properties, 
but  the  defendants  notwithstanding  law- 
ful demand  have  failed  and  neglected  to 
give  such  transfer  to  the  said  properties 
in  favour  of  the  plaintiffs. 

7.  John  Walker  and  Sons  and  John 
Walker  aforesaid  carry  on  business  in 
London,  and  upon  the  petition  of  the 
plaintiffs  thin  Honourable  Court  did  on 
the  22nd  March,  1904,  grant  leave  to  the 
plaintiffs  to  sue  the  defendants  bv  edic- 
tal  citation,  and  did  order  that  the  said 
properties  be  attached  ad  fundandatn 
jurisdictianem  iu  this  action. 

Wherefore  the  plaintiffs  in  their  said 
capacity  prav  for:  (a)  An  order  com- 
pelling the  defendants  to  pass  transfer 
to  the  plaintiffs  in  due  and  customary 
form  of  law  of  such  of  the  properticf 
aforesaid  as  are  registered  in  their  re- 
spective names.  Or  in  the  alternative 
only,  as  to  <the  properties  registered  in 
the  name  of  the  defendant  John  Walk- 
er, (b)  An  order  compelling  the  defend 
ant  John  Walker  to  pass  transfer  to  the 
defendants  John  Walker  and  Sons  and 
compelling  the  defendants  John  Walker 
and  Sons  thereupon  to  pass  transfer  iu 
due  and  customary  form  of  law  to  the 
plaintiffs,  (c)  An  order  authorising  and 
directing  the  High  Sheriff,  upon  failure 
by  the  defendants  or  either  of  them  to 
comply  in  whole  or  in  part  wfth  such 
order  as  this  Honourable  Court  may 
make  as  aforesaid,    to  pass   transfer   in 

{>laoe  and  stead  of  such  defaulting  de- 
endant  of  the  property  to  which  such 
default  relates.  Or  that  this  Honour- 
able Court  may  grant  to  the  plaintiffs  in 
the  premises  such  further  or  other  re- 
lief as  shall  seem  fitting,  together  with 
costs  of  suit. 

The  schedule  annexed  to  the  inteudit 
set  out  five  properties  at  Alice,  two  at 
Bedford,  and  four  at  King  William's 
Town. 

The  plea  of  the  defendants  (John 
Walker  and  Sons)  and  of  the  defendant 
(John  Walker)  was  as  follows : 

1.  They  admit  that  a  certain  order 
was  made  by  this  Honourable  Court  on 
the  14th  November,  1903,  appointing  the 
plaintiffs  receivers  of  the  Grand  Junc- 
tion Railways,  but  do  not  admit  that 
the  defendants  (John  Walker  and  Sons), 
as  partners  in  tne  Grand  Junction  Rail- 
ways or  otherwise,  were  coui^entiug 
parties  to  the  said  order  or  to  the  ap- 
pointment of  the  plaintiffs   as  allegecT. 

2.  They  do  not  admrt  that  by  the  said 
.jrder  the  plaintiffs  wort^  authorisod  to 
roceivo  any  assets  of  tho  firand  Junc- 
tion Railwaj's.  savo  and  except  certain 
amounts  therein  set  forth,  or  that  tlie 
plaintiffs  were  authorised  to  deal  with 
or  dispose  of   any  assetc^  of   the  Grand 


Junction  Railways,  save  as  directed  by 
the    said    order. 

\  They  deny  that  any  of  the  im- 
movable properties  referred  to  in  para- 
graph 5  of  the  intendit  or  contained  in 
the  list  attached  thereto  were  or  ai'> 
amonffst  the  assets  of  the  Grand  Julo 
tion  Railways.  ,They  deny  the  comy^v- 
ness  of  the  heading  of  the  said  list,  but 
admit  the  correctness  of  items  1  to  11 
therein. 

4.  They  deny  that  the  properties 
numbered  1,  2.  5,  6,  7,  8,  9,  11  m  the 
said  list,  or  any  of  them,  were  acquired 
by  or  at  the  expense  of  John  Walker 
and  Sons  in  connection  with  their  under- 
taking, as  alleged,  or  that  they  or  any 
of  them  are  properties  included  amongst 
the  land^  and  buildings  belonging  to 
John  Walker  and  Sons  in  connection 
with   their  said  undertaking. 

5.  They  deny  that  the  properties 
numbered  3  and  4  in  the  said  list  or 
either  of  them  were  acquired  by  or  at 
the  expeuiie  of  John  Walker  and  Sons 
in  connection  with  their  said  under- 
taking, as  alleged,  or  at  all,  or  that 
thev  cr  either  of  them  are  properties 
incfuded  amongst  the  lands  and  build 
ings  belonging  to  John  Walker  and 
Sons  in  connection  with  the  said  under- 
taking, as  alleged,  or  at  all.  The  pro- 
I)erties  riumbercd  3  and  4  are  the  only 
pro]>erties  in  the  said  list  which  stand 
rogifiterod  in  the  name  of  the  second 
defendant,  John  Walker,  and  are  thg 
private  property  of  the  said  John 
Walker. 

6.  Thojy  deny  thai  the  Grand  Junc- 
tion   Railways    became   entitled    to    the 

Sropertics  numbered  1,  2,  3,  4,  5,  6,  7, 
,  9.  11,  or  any  of  them,  under  either 
of  the  aq^reements  referred  to  in  para- 
graph 4  of  the  intendit,  or  that  the 
plamtiffs  are  entitled  to  receive  any  of 
them  as  assets  of  the  said  ioint  venture 
or  otherv'ise,   or  to  deal   therewith. 

7.  Thev  admit  that  the  property  num- 
bered 1()  in  the  said  list  belonged  to 
John  Walker  and  Sons  in  connection 
with  their  said  undertaking,  and  admrt 
that  the  Grand  Junction  Railways  be- 
come entitled  thereto,  but  deny  that 
the  said  property  has  become  an  asset 
of  the  Grana  Junction  Rarlwajrs  under 
either  of  the  said  agreements,  or  that 
the  plaintiffs  were  authorised  to  receive 

.  the  same. 

8.  They  admit  the  agreements  of  the 
4th  May,  1898,  with  supplemental 
agreement,  and  18th  August,  1898,  and 
say  that,  according  to  the  same,  the  said 
jomt  venture  became  entitled  to  cer- 
tain immovable  properties  belonging  to 
the  defendants,  John  Walker  and  Sons, 
and  the  said  joint  venture  became 
liable  in  return  to  pay  to  the  defendants 
or  any  of  them  inter  aliti  the  amount 
of  the  liability  of  the  Grand  Junction 
Rail  ways,  Ltd.,  to  the  said  defendants, 
and  also  to  pay  all  the  liabilities  in- 
curred or  paymeiifts  made  by  the  de- 
fendants, or  any  of  them,  after  the  Ist 


« 


CAPE  TtMSB'*  LAW  llEPOtlTS. 


January^  1898,  in  connection  with  anv 
of  tho  immovable  properties  to  whicn 
the  joint  venture  had  become  entrtled 
under  the  said  affrceraeuta.  They  deny 
that  any  of  the  immovable  properties 
to  which  the  said  joint  venture  became 
orititlod  aa  aforesaid,  and  which  btood 
registered  in  the  aamea  of  the  defen- 
dants, John  Walker  and  Son.s,  or  in  the 
name  of  tho  second  defendant  John 
Walker,  on  the  1st  January,  1898,  or  at 
any  subsequent  date,  were  or  axe  assets 
of  the  said  joint  venture,  unless  or 
until  the  same  were  or  are  transferred 
into  the  name  of  the  eaid  joint  ven- 
ture. 

9.  They  admit  tliat  they  refuse  to 
give  transfer  of  any  of  the  said  pro- 
perties in  favour  of  the  plaintiffs.  They 
deny  the  remaining  allegations  in  para- 
graph 6  of  the   intendit. 

10.  Paragraph  7  is  admitted. 

Wherefore,  the  defendants,  John  Wal- 
ker and   Sons  and  John     Walker,   pray, 
that  the  plaintiffs'   claim  may  be      dis- 
missed with  costs. 

For  &  claim  in  reconvention,  the  first- 
named  defendants,  John  Walker  and 
Sens  (plaintiffs  in  reconvention)  say: 

1.  They  crave  leave  to  repeat  tho 
allegations  in  the  plea   in   convention. 

2.  The  Grand  Junction  Railways,  Ltd., 
is  indebted  and  liable,  and  was  on  the 
18th  August,  1898,  indebted  and  liable 
to  the  said  John  Walker  and  Sons  in  the 
following  amounts :  (a)  To  capital  moneys 
upon  3,870  debentures  of  £100  each,  is- 
sued to  John  Walker  and  Sons  by  the 
Grand  Junction  Railways,  Ltd., 
£387.000 ;  (b)  to  interest  paid  by  John 
Walker  and  Sons  on  behalf  of  and  as 
agreed  with  the  Grand  Junction  Rail- 
ways, Ltd.,  upon  500  debentures 
of  £100  each  from  31st  October,  1896, 
to  14th  August,  1898,  £3,500;  (c)  to  in- 
terest pand  by  John  Walker  and  Sons  as 
aforesaid  upon  210  debentures  of  £100 
each,  from  13th  November,  1896,  to 
14th  AufiTtBt,  1898,  £1,4  <0;  (d)  to  inter- 
est paid  by  John  Walker  and  Sons  as 
afore>".aid  upon  290  debentures  of  £100 
each  from  8th  February.  1897,  to  14th 
August,  1898,  £1,740;  (e)  to  interest 
paid  by  John  Walker  and  Sons  as  afore- 
said upon  200  debentures  of  £100  each 
from  16th  November,  1897,  to  14th  Au- 
gust. 1898,  £600;  (f)  to  interest  paid  by 
John  Walker  and  Sons  as  aforesaid  upon 
500  debentures  of  £100  each  from  15th 
February,  1898,  to  14th  August,  1898, 
£1,000. 

3.  The  said  joint  venture  did  by  the 
said  agreements  of  the  4th  May,  1898, 
and  18th  August,  1898,  agree  to  pay  all 
the  liabilities  of  the  Grand  Junction 
Railways,  Ltd.,  and  the  said  joint 
venture  is  now  indebted  to  the  first- 
named  defendants  (plaintiffs  in  recon- 
vention) in  the  amounts  sot  out  in  para- 
graph 2  hereof. 

4.  If  this  honourable  Court  should 
hold  that  the  said  receivers  are  entitled 
to  mai*.tain   their  action  in  conventioh 


for  i«covery  o£  any  of  the  propottiea 
iiierein  demanded,  then  and  in  that  case 
the  first-named  defendants  (plaintiffs  in 
reconvention)  are  entitled  to  claim  from 
the  said  receivers  (defendants  in  reoon- 
veiition)  the  said  amounts  iu  paragraph 
2  hereof  set  out  and  due,  and  owing  by 
the  said  joint  venture  to  the  said  nrst- 
named  defendants  (plaintiffs  iu  reconven- 
tion). 

W^herefore  the  first*named  defendants 
(plaintiffs  in  reconvention)  P''^*  (*) 
Judgment  for  the  said  sums  <^  £387,(XjO. 
£3,500,  £1,470,  £1,740,  £600,  and  £1.000; 
(b)  interest  thereon  a  tempore  morae;  (c) 
alternative  relief;  (d)  costs  of  suit. 

The  second  defendants'  claim  in  recon- 
vention was  as  follows: 

1.  The  second  defendant  (plaintiff  in 
reconvention)  craves  leave  to  repeat  the 
allegations  of  the  plea  in  convention. 

2.  On  or  about  the  30tb  June,  1898, 
the  said  defendant  (plaintiff  in  recon- 
vention) made  a  payment  of  £1,^)0  out 
of  his  own  moneys  in  part  satisfaction  of 
a  mortgage  debt  of  £2,500  on  the  pro- 
perty numbered  10  in  the  list  attacned 
tj  the  intendit,  to  which  property  the 
said  joint  venture  was  entitled  aa  from 
the  1st  January,  1898,  and  the  said  joint 
venture  has  in  consequence  become  in- 
debted to  the  said  second  defendant 
(plaintiff  in  reconvention)  in  the  said 
sum  of  £1,200.  with  interest  thereon 
from   the  said  30th  June,  1898. 

3.  If  this  honourable  Court  should 
hold  that  me  said  receivers  are  entitled 
to  maintain  their  action  in  convention 
for  recovery  of  any  of  the  properties 
therein  demanded,  then  and  in  that  case 
the  second  defendant  (plaintiff  in  recon- 
vention) is  entitled  to  claim  from  the 
said  receivers  (defendants  in  reconven- 
tion) the  said  sum  of  £1,200,  with  inter- 
net as  aforesaid,  due  by  the  said  joint 
>€nture  to  the  said  second  defendant 
(plaintiff  in  reccnvention). 

\yherefore   the  said  second    defendant 

i plaintiff  in  reconvention)  pra^s:  (a) 
^udj^ment  for  the  said  sum  of  £l,2vX); 
(b)  interest  thereon  from  tho  30th  June. 
1898;  (c)  alternative  relief;  (d)  costs  of 
suit. 

Mr.  Schreiner,  K.C..  for  plaintiffs. 
Mr.  Russell  for  defendante. 

Mr.  Schreiner  outlined  the  principal 
features  of  the  case. 

Mr.  Russell  said  that  it  might  sim- 
plify matters  a  good  deal  if  ho  stated 
at  the  outset  that  he  did  not  propose  to 
load  evidence  on  the  first  claim  in  recon- 
vention. 

Mr.  Schreiner:  Do  I  understand  that 
my  learned  friend  abandons  that  claim? 

Do  Villiers,  O.J.,  said  that  he  did  not 
sut){)ose  Mr.  Russell  could  press  the 
claim  unless  he  had  ovidenoo  to  .support 
it. 

^  Jr)hn  E.  P.  Clas<\  acooiintant.  Caix* 
Town,  was  called  in  support  of  the 
plaintiffs'  claim.  He  said  that  he  was 
familiar  with  the  subject-matter  of  the 
action.        He   had   officiated    as   one  of 


u 


CAPB  TIMES"  LAW  BEPORT& 


997 


tho  referees  to  inquire  into  the  actual 
cost  of  the  four  Hues  of  railway  built 
by  the  Grand  Junction  Railways.  Ho 
had  prepared  a  t*clieduio  (produced) 
from  the  books  and  documents,  showing 
the  properties  registeix)d  in  the  name  of 
John  Walker  and  Sons  and  John 
Walker  among  the  assets  of  the  joint 
venture.  Witness  gave  evidence  as  to 
the  several  properties  in  queetion.  One 
of  these  was  a  piece  of  ground  at 
MoAsei  Bay,  bought  from  Sir  Jacob 
Barry,  in  respect  of  which  £2,000  was 
paid  m  debentures  and  £2,000  in  cash. 
A  bond  was  raised  on  the  property  for 
£2,500,  through  Mr.  Chiappini.  The 
capital  of  John  Walker  and  Sons,  con- 
tributed at  the  Cape  and  in  London  over 
and  above  Government  subsidy,  was 
£23,535.  Tlio  expenditure  at  the  Cape 
up  to  -the  Ifit  January.  1898,  amounted 
to  £78,061  13s.  2d.  The  London  and 
Cape  expenditure  included  the  ex- 
penditure on  the  properticfl  that  witness 
had  placed  in  the  column  as  John 
Walker  and  Sons,  bb  at  the  1st  Janu- 
ary, 1898,  i.e.,  all  properties  except 
those  marked  "joint  venture"  and 
**  no  cheque  paid.'*  He  did  not  con- 
sider that  Walker  was  entitled  to  pay- 
ment of  £1,200  from  the  receivers. 
Walker  had  been  credited  with  the 
whole  of  the  land,  and  it  was  for  him 
to  settle  with  anybody  who  had  lent 
him  the  money. 

Cross-examined :  Lots  3  and  4  were 
registered  in  John  Walker's  name.  No. 
4  was  paid  for  by  a  joint  venture 
cheque,  and  witness  therefore  con- 
.sidered  that  it  must  be  a  joint  venture 
aeset.  In  arrivii>g  at  John  Walker's 
capital  account,  he  had  included  all 
these  properties.  He  had  deducted  the 
sum  of  £1,325,  paid  on  behalf  of 
Walker. 

Penjamin  T.  Tonkin,  formerly  secre- 
tary of  the  Grand  Junction  Kailways, 
and  afterwards  accountant  to  John 
Walker  and  Sons  in  connection  with 
the  joint  venture,  said  that  all  these 
properties  were  acquired  in  connection 
with  the  undertaking  of  John  Walker 
and  Sons.  Witness  spoke  of  the  way 
in  which,  when  the  jomt  venture's  ac- 
count was  very  miicli  overdrawn,  and 
the  financial  position  was  desperate,  an 
account  was  opened  in  his  own  name, 
on  behalf  of  his  employers,  so  as  to 
prevent  money  paid  into  the  bank  from 
Doing  impounded.  From  this  account, 
opened  m  his  namo^  paymenis  were 
made  from  time  to  time  for  the  joint 
venture. 

Mr.  Russell  having  been  heard  in 
argument, 

De  Villiers,  C.J. :  The  case  has  been 
considerably  simplified  by  the  fact  that 
the  defendants  ha.ve  not  tendered  any 
evidence  in  support  of  the  first  claim  in 
reconvention.  The  Court,  therefore,  has 
to  decide  the  case  on  the  pleas,  and  on 
the  second  claim  in  reconvention. 

In  regard  to  the  pleas,  one  of  the 
defences  raiscKl   is  that   the   defendants 


were  not  consenting  parties  to  the  order 
for  the  appointment  of  the  plaintiffs  as 
receivers,  but  I  am  satisfied  that  they 
were  consenting  parties,  and  that  even  ff 
they  were  not  in  their  capacity  as  part- 
ners in  the  Grand  Junction  Railways, 
consenting  parties  before  the  order  was 
made,  their  subsequent  conduct  estops 
them  from  denying  the  validity  of  the 
appointment.  They  repeatedly  recognis- 
ed the  plaintiflFs  a&  receivers,  and  by  so 
doing  they  saved  their  own  estates  from 
sequestration  as  insolvent  at  the  suit  of 
the  receivers  on  behalf  of  the  creditors. 

It  iias  been  further  urged  on  the  de- 
fendants' behalf  that  the  plaintiffs  as  re- 
covers are  not  entitled  to  institute  this 
action  without  an  order  of  Court.  This 
objection  ought  reaJly  to  have  been 
taken  in  limine,  for  if  there  were  any 
foroe  in  it,  the  plaintiffs  could  have  for- 
tified themselves  by  obtaining  the  requi- 
site order.  Uncfer  the  circumstances 
disclosed  in  this  case  there  would  have 
been  no  difficulty  in  obtaining  such  con- 
sent, and,  if  such  consent  be  necessary, 
the  Court  has  no  hesitation,  even  at  this 
stage,  to  approve  of  the  action.  The  ap- 
pointment of  the  plaintiffs  as  receivers, 
with  the  full  consent  of  the  defendants, 
would  be  wholly  nugatory  if  the  plain- 
tiffs were  not  to  be  allowed  to  take  the 
requisite  steps  to  realise  the  property  of 
the  Grand  Junction  Railways  for  the 
benefit  of  the  creditors.  The  plaintiffs 
were  to  have  the  power  to  sell  and 
realise  the  assets  of  the  Grand  Junction 
Railways,  and  to  distribute  the  available 
assets  according  to  the  legal  order  of 
preference  in  insolvency. 

The  only  question  which  remains— 
and  that  is  the  material  question— is 
whether  the  opoperties  mentioned  in  the 
schedule  to  the  intenddt  can  be  claimed 
by  the  plaintiffs  as  receivers  of  the 
Grand  Junction  Railways.  If  the  plain- 
tiffs had  been  trustees  in  insolvency,  it 
is  clear  that  they  would  have  been  en- 
titled to  make  good  their  claim.  The 
Grand  Junction  Railways  have  not  ac- 
quired a  jus  in  re  by  transfer  of  the 
scheduled  properties,  but  they  have  a 
jus  ad  rem,  and  the  receivers  appointed 
by  the  Court  are  entitled  to  acquire  the 
full  ownership  by  means  of  duly  regis- 
tered transfers.  It  is  abundantly  clear 
from  the  evidence  thai  these  properties 
had  been  acquired  by  the  partners,  not 
for  themselves  individually,  but  for  the 
Grand  Junction  Railways,  a  partnership 
concern  in  which  they  were  partners. 
The  receivers  have  to  realise  these  pro- 
perties for  the  benefit  of  the  creditore  of 
the  partnership,  and  they  cannot  do  so 
without  first  obtaining'  transfer  on  their 
own  behalf,  or  on  behalf  of  the  partner- 
ship. 

In  regard  to  the  second  claim  in  re- 
convention, it  is  imipossible  to  hold  that 
the  defendant,  John  Walker,  is  entitled 
to  receive  from  the  plaintiffs  the  sum  of 
£1,200,  which  he  ie  alleged  to  have  paid 
in  part  satisfaction  of  the  mortgage  debt 


998 


<« 


CAPE  TIMES"   LAW  REPORTS. 


t>f  £2,500  on  orio  of  the  schoiluloil  pro- 
j)rrtie8.  QuiU*  apart  from  tliv  objoctioii 
that  hv  camiofc  sue  for  paytnoiit  of  a  (ioht 
chio  to  him  Iiy  the  partnernhip  until  tho 
creditors  of  the  partnership  liavo  bwu 
satisfied,  it  appears  to  me  that  tlie  sum 
of  £1.200  sued  for  is  counterbalanced  by 
the  6um  of  £1,325,  which  haa  been  paid 
by  the  partnership  in  respect  of  the 
mortgatfod  property.  The  amount  wa* 
paid  out  of  joint  subsidy  money,  belong- 
ing? to  the  partnership,  and  went  in  re- 
duction of  John  \\alker\s  capital  ac- 
count. 

The  judgment  of  the  Court  will  bt^  for 
the  plaintiffs  in  terms  of  prayer  (a)  of 
the  intendit  (without  prejudice  to  any 
right  the  Oovernm*nt  might  have  to 
double  transfer  duty),  or  failing  tranefer 
on  or  before  the  28th  February.  1906, 
judgment  in  terms  of  prayer  (c),  with 
costs.  On  the  claims  in  reconvention 
there  will  be  absolution  from  the  in- 
Btanoe,  with  costs. 

[Plaintiffs'  Attorneys:  Moore  and 
Son;  Defendant's  Attorneys:  Dold  and 
Van  Breda.] 


SUPREME  COURT 


[  Before  the  Hon.  Mr.  Justice  Ma abdobp.] 


ADMISSIONS. 


{ 


i9or.. 

Dec.  12th. 


Mr.  Benjamin  moved  for  the  admis- 
sion of  John  Dalgarno  Milne  as  an  at- 
torney, notary,  and  conveyancer. 

Application  granted  and  oaths  ad- 
ministered. 

Mr.  Benjamin  moved  for  the  admis- 
sion of  Daniel  Fetrus  Smit  as  an  attor- 
ney and  notary,  the  oaths  to  be  taken 
before  the  R.M.   of  Colesberg. 

Application  granted. 

^  Mr.  Benjamin  moved  for  the  admis- 
sion of  Clement  James  Boomsma  Foster 
as  A  conveyancer. 

Application  granted  and  oaths  admin- 
istered. 


PROVISIONAL  ROLL. 


COURTTLLER  AND  WALLIS  V.  TAYLOR 
AND  MYLES. 

Mr.    Gardiner    moved    for   provisional 
sentence   on     a    bill    of    exchange    for 


\' 


£188  lOs.,  with  interebt  from  3rd  Oc- 
tober. 

Mr.        Benjamin.  for       defendant. 

)ut  iu  an  affidavit  from  J(«ei>h 
'owell  Taylor,  a  partner  in  tne 
firm,  which  set  out  that  the  plaintiffs 
had  not  kept  to  their  contract  with 
regard  to  the  shipment  of  certain  cases 
to  South  Africa,  and  the  defendant  had 
to  purchase  in  the  local  market,  and 
suffered  damages  in  £125  128.  3d.,  the 
difference  between  this  amount  and  the 
amount  claimed  being  tendered. 

On  the  12th  August,  1,000  oases  of 
potatoes  were  to  be  shipped,  and  on  the 
19th  August,  546  cases,  but  the  plain- 
tiffs failed  to  ship  until  ktter  on.  Coun- 
sel submitted  that  the  plaintiffs  should 
be  forced  into  the  principal  case  in 
order  that  the  defendant  could  put  in 
his  counter-claim,  otherwise  the  defen- 
dant would  have  to  pursue  his  claim 
outside  the  jurisdiction  of  the  Court,  as 
the  plaintiff  was  a  foreign  firm. 

Maaitdorp.  J. :  In  this  case 
the  plaintiffs  a^rrecd  to  supply 
the  defendants  with  certain  ship- 
ments of  potatoes,  and  the  defen- 
dant agreed  on  his  part  to  give  bills 
upon  receipt  of  the  different  shipments. 
It  appeared  that  a  number  of  shipments 
were  received  and  bills  were  given  which 
were  subsequently  settled.  The  bill 
upon  which  the  present  suit  is  brought 
is  for  potatoes  actually  delivered.  The 
defendant  sets  up  a  claim  for  damages 
against  this  liquid  document.  As  a  rule 
a  defence  of  that  kind  is  not  allowed 
in  provisional  proceedings  unless  the 
claim  for  damages  is  so  directly  con- 
nected with  the  subject  matter  of  the 
promissory  note  that  it  really  refen 
to  the  same  sum  between  the  parties. 
In  this  case  the  claim  for  damages  is 
in  respect  of  other  shipments  which 
have  not  arrived,  and  under  the  circum- 
stances provisional  sentence  ought  to  be 
given  on  this  promissory  note,  leaving 
it  to  the  defendant  to  make  his  claim 
for  damages  in  some  other  form.  Pro- 
visional sentence  will  be  granted  as 
prayed. 


FCHMIDT  V.  GRAY  AND  SON. 

Dr.  Greer  moved    that    an    order    of 
provisional  sequestration  be  discharged. 
Granted. 


BEHR  y.  ANDREWS. 

Mr.  Benjamin,  for  the  plaintiff,  moved 
for  provisional  sentence  on  a  mortgage 
bond  for  £50,  and  that  the  property 
be  declared  executable.  Mr.  De  Waal 
was  for  the  defendant,  the  executors  of 
the  late  Mrs.   Andrews. 

Provisional  sentence  as  prayed,  the 
defendant's  share  of  the  property  de- 
clared executable,  the  defendant  to  pay 
the  plaintiff's  costs^ 


"CAPE  TIMES"  LAW  REPORTS. 


999 


ZUCKERMAN    V.    BKRNHART  AND   SARIF. 

Mr.  p.  S.  T.  Joiiee  moved  for  a 
fiiiai  order  of  sequestr-atioii  against  the 
private  and  partuei^hip  eetates  of  the 
defendante. 

Granted. 


PURGELL,  YALLOP  ABTD  EVERETT  V. 
PRESWICH. 

Dr.  Greer  moved  for  a  provisional  or- 
der of  sequestration  to  be  made  final. 
Granted. 


ESTATE  GLYNN  V.   ROSS. 

Mr.  Struben  moved  for  provisional 
sentence  on  a  mortgage  bond,  with  in- 
terest, that  the  property  be  declared 
executable,  and  for  the  attachment  of 
rents.  The  bond  beoame  due  by  reason 
of  non-payment  of  the  capital,  when 
called  up. 

Granted. 


AROERNE  V.  MELHKOV. 

Mr.  D.  Buchanan  moved  for  a  final 
order  of  sequestration  against  the  de- 
fendant's estaite^ 

Grau'ted. 


ESTATE  BOTES  V.  MARAIS. 

Mr.  Wright  moved  for  a  final  order 
of  sequestration  against  the  defendant's 
estate. 

Granted. 


GOKTZEE  V.  DIEBEL. 

Mr.  Gutsche  moved  for  provisional 
sentence  on  a  promissory  note  for  £780 
ISs.  6d.,  with  interest  and  costs  of 
suit. 

Granted. 


CUTUBEBT  AND  CO.  V.  SHORKEND. 

Mr.  Gutsche  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
iL  solvent 

Granted. 


CUTHBBBT  AND  CO.  V.  REST. 

Mr.  Gutsche  moved  for  the  final  odju- 
dscation  of  the  defendant's  estate  as  in- 
solvent. 

Granted. 


ESTATfS  STEYTLER  V.  SCHNEIDER. 

Mr.  D.  Buchanan  moved  for  provi- 
sional sentence  on  a  mortgage  bond  for 
£1,200,  with  interest,  less  £20  paid  on 
account,  that  the  property  specially  hy- 


pothecated be  declared  executable,   and 
that  the  rents  should  be  attached  by  the 
defendant,  with  costs. 
Granted. 


ESTATE  SEABLE  V.  HOaOABD. 

Dr.    Greer   moved    that  a  provisional 
order  of  sequestration  be  made  final. 
Granted. 


STEPHENS.  LTD.  V.  RILEY. 

Dr.  Rainsford  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Granted. 


SELIUMAN  AND  CO.  V.  VAN  DEB  BERO. 

Mr.  De  Waai  moved  for  the  final  se- 
questration of  the   defendants  as  insol 
vent 

Granted. 


MABAIS  V.  VAN  DEB  MEBWB, 

Mr.  Sutton  moved  for  provkional  sen- 
tence on  two  mortgage  bonds  for  £600 
and  £250,  with  interost,  and  that  the 
property  specially  hypothecated  be  de- 
clared executable. 

Granted. 


FEDERAL  SUPPLY  AND  COLD  STOBAGB 
CO.  V.  FLEESER  AND  FISHER. 

Mr.  Payne  moved  for  the  final  adjucki- 
cation  of  the  defendants'  estates— part- 
nership and  private— as  insolvent. 

Granted. 


BICE  v.  MOHB. 

Mr.  Watermeyer  moved  for  provision- 
al sentence  on  a  promissory  note  for 
£300,  with  interest  and  costs. 

Granted. 


FAIBBBIDOE  V.  BLAKE. 

Mr.  LfOng  moved  for  provisioiMil  sen- 
tence on  a  dishonoured  cheque  for  £10, 
with  interest  and  costs. 

Granted. 


PALMEB  V.  TUCKBB. 

Mr.  Gptsche  moved  for  proyisional 
sentence  on  a  mortgage  bond  for  £250, 
with  interest.  Counsel  also  asked  that 
the  lease  be  declared  executable. 

Granted. 


PUBCELL,  YALLOP  AND  BYEBKET   V. 
ADAMS. 

^  Dr.  Greer  moved  for  a  decree  of  civil 
imprisonment  against  the  defendaqt  on 


1000 


<l 


CAPE  TIMES"   LAW  REPORTS. 


Hii   iinsatisfiod    judgment    of    the    Court 
for  £18  10».  2(1. ,  and  taxod   coats. 
(i  ranted. 


EUSTACE  V.  BAR5KTT  AM>  IIUIITWITZ. 

Mr.  Benjamin  moved  for  pr.ivisional 
sontencc  on  two  moriffase  bonds  for 
£750,  with  interest,  and  £l  15s.  insur- 
ance premium,  and  that  the  property 
l>e  declared  executable. 

Granted. 


LOTTER  AND  OROBS  V.  CLOBTE. 

Dr.  Rainsfond  moved  tor  the  final 
ail  judication  of  the  defendant's  estate 
aa  insolvent. 

Granted. 


MOHSOP  V.  DE  KLERCK. 

Mr.  Bailey  moved  for  provisional  ' 
.soiitence  on  a  mortgage  bond  for  £600,  | 
witli  interest,  and  that  the  property  j 
Im*  declared  executable. 

Granted. 


MOUR  AND  ANOTHER  V.  BERNARD. 

Mr  Bailey  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Granted. 


ESTATE  WORDON  V.  BVAN8. 

Mr.  Wright  moved  for  the  final  ad- 
judication of  the  defendant's  estate  as 
insolvent. 

Granted. 


ORAAFF  V.  ESTATE  SCHOLTZ. 

Mr.  Van  Zyl  moved  for  provisional 
fventence  on  three  mortgago  bond*,  and 
that  the  property  be  declared  executable, 
with  interest  and  costs. 

(Granted,  subject  to  the  production  of 
the  eertificate  from  the  executor. 


PHILLIPS  V.  ZUIMMIN,  ALIAS  ZEMAN. 

Dr.   Greer  moved     for     a  decree     of 
civil       imprisonment  on    an    unsatisfied 
judgment    for    £16.    with    taxed    costs 
amounting  to  £14  12s.  8d. 

The  defendant  appeared  in  court 
with  a  Yiddish  interpreter,  and  said 
that  he   had   got   no   money. 

By  Dr.  Greer:  Ho  was  in  partnership 
with  Berkowitz,  and  he  .sold  the  good- 
of  the  partnership  on  the  Parade.  Wit- 
ness offered  tho  plaintiff  £7,  which  was 
refused.  After  that  he  had  a  sho^, 
which  ho  gave  over  to  another  man 
He  received  nothing  for  the  goods  in 
the    shop.  Witnes.s    "  only    ha<l    olu 

hoota;    no  licence." 

No  order  made. 


HEYOENRTCH  AND  ESTATE  CLEAR  V. 
KOWROfiJEE. 

Mr.  Strulien  moved  for  tlie  final  ad- 
judication uf  tho  defendant's  estate  as 
lUi^olvent 

Granted. 


DE  VILLIBR8  Y.  CRAIO. 

Mr.  D.  Buchanan  moved  for  judg 
ment  on  a  promiasory  note  for  £16B. 
wkh  interest  at  the  stipulated  rate  of  9 
per  cent,  and  costs. 

Granted. 


STRANG  V.  VAN  ROOYBN. 

Mr.  Payne  moved  for  provisional 
sentence  on  an  unsatisfied  judgment 
of  the  Resident  Magistrate's  Court 
Oudtshoom,  for  £24  lbs.  4d..  and  that 
certain  property  be  declared  executable. 

Granted. 


VAN  DER  VTVER  V.  STAAL, 

Mr.    De  Waal   moved   for  provisional 
sentence  on  a  mortgage  bond  for  £250 
with  interest,  and  that  the  property  spe 
cially   hypothecated   be  declared   execu- 
table^ with  costs. 

Granted. 


8TEYTLER  Y.  ISAACS. 

Mr.  Sutton  moved  for  provisional  sen- 
tence on  a  promissory  note  for  £75,  less 
£57  10s,  which  had  been  paid  on  ac- 
count. Ho  now  asked  for  judgment  for 
£17  lOs.,  with  interest  and  costs. 

Granted. 


ILLIQUID  ROLL. 

PURCELL,     YALLOP     AND      f        IS^XI. 
EVERKTT  V.  HOTZ.  k  DeC.  12th. 

Dr.  CJreer  moved  for  judgment,  under 
Rule  329d,  for  £9  17s.  10d„  for  goods 
sold  and  delivered,  with  interest  and 
costs.  Since  summons  was  issued,  £6 
had  been  paid  on  account,  leaving  a  bal- 
ance of  £3  17s.  lOd. 

Granted. 


ROSEN   V.  PRICE. 

Mr.  Gutsche  moved  for  judgment,  un- 
der Rulo  329d,  for  £20  and  £49  lOs., 
due  for  rent,  loss  £10  pm-id  on  account. 

Granted. 


WILSON,  SON  AND  CO.  V.  BARRON. 

Mr.  Roux  moved  for  judgment,  under 
Rule  329d,  for  £66  3s.  8a.,  for  goods 
sold  and  delivered,  with  interest  and 
costs. 

Granted. 


I( 


CAPE  TIMES''  LAW  REPORTS. 


1001 


HUTTON  V.  SPBNCE. 

Mr.  Afexander  moved  for  judgment, 
uuder  Rule  329d,  for  £41,  balance  duo 
OTi  two  promissory  notes,  with  in-tereet 
and  oofiitfi. 

Granted. 


MULLER  V.  ALLDER. 

Mr  Guteolw  moved  for  judgment,  un- 
dor  Rule  329d.  for  £55  6s.  Sd.,  for  goods 
consigned  and  delivered,  for  £6  17e.,  for 
f«x«,«>Id  and  deliveredj  and  for  £6 
les.  5d.,  the  amount  of  railway  charges 

trranted. 


MCBIBKINTYRE  V.  WALSH. 

,  ^^'^  9"^®®^  moved  for  judgment,  un- 
d^  Rule  329d  for  £13  Is.,  balance  ^ 
goods  sold  and  delivered,  Jess  £4   10s 

wth  ^^  ^"°^*  ®'"^®  *™"^  ^^  summons! 
Granted.. 


HEPWORTHS,  LTD.  V.  HOLLIDAY. 

A^\i  ^"^r^V^   ^""^  judgment,   un- 
der Rule  329d,  for  an  amount  of  iosts. 

G  ^'T^i^**  amount  having  been  paid 


APPEL   V.  WIOGETT. 

Mr.    Van  Zyl    moved    for    judgment 
under  Rule  329d,  for  £500,  money  lent 
end  advanced  to  one  Siriddingh,  which 
waa  guaa-anteed  by  the  defendant  to  the 
plaintiff,  with  interests  and  costs 

Granted. 


SPILHAUS  V.  GAKFOOR. 

^^n   f^'^^'S}"^  'T''''*'^  ^?^  judgmont   for 
£150    Os.    8d..    for  goods   sold    and    do 
livered,    with   mtcrest  and  co<*ts 
Granted. 


KALK  BAY  COUNCIL  V.  BRUYNS. 

i  ^rxo^lV^^o^f^   moved    for  judgment 
tor  ±,6d  15s.  8d.,   balance  of  rates,  with 
interest  and  coste. 
Granted. 


CLAREMONT  COUNCIL  T.  LEVY. 

Dr.  Rainsford  moved  for  judgment, 
under  Rule  329d,  for  £72  4s.,  balance  of 
rates,  less  £26  paid  on  account,  with 
in«tere8t  and  costs. 

Granted. 


OBOMAN  AKD  ANOTHER  V.    DAKKRS. 

Mr.  Roux  moved  for  judgment,  under 
Rule  329d,  for  an  order  compelling  the 
defendant  to  sign  an  irrevocable  power 

s  2 


of  attorney  to  the  plaintiffs,  in  order 
that  the  plaintiffs  might  deal  with  tho 
propci-ty  as  they  wished,  and  to  pass 
over  tho  title-deeds  of  certain  property, 
ac/cordmg  to  an  agreement. 

Maavsdorp,  J.,  said  the  claim  was  not 
an  ordinary  liquidated  claim,  and  or- 
dered the  plaintiff  to  proceed  with  his 
action  in  the  ordinary  way.  The  sum- 
mons to  stand. 


CAPE  TOWN    TOWN    COUNCIL    V. 
MOBTAPHA. 

Mr.  Gutsche  moved  for  judgment, 
under  Rule  329d,  for  £21  Is.  2d.,  due  (or 
municipal  rates. 

Granted. 


8TEVBNS  V.  MYERS. 

Mr.  Alexander  (for  the  defendant) 
moved,  under  Rules  25  and  330,  for 
judgment,  the  plaintiff  having  not  pro- 
ceeded with  his  action  within  the  time 
fixed  by  tho  Court. 

Granted. 


M0BBI80N  V    BATES. 

Mr.  Wright  moved  for  judgment, 
under  Rule  329d.  for  £75,  rent  for 
September,  October,  and  November, 
with  costs  of  suit. 

Granted. 


CATHCABT  V.  WARD  AND  CO. 

Mr.  D.  Buchanan  moved  for  judgment 
under  Rule  329d,  for  £50,  for  rent,  with 
costs. 

Granted. 


CAPE  TOWN  TOWN  COUNCIL  V.  80BKBR. 

Mr.  Gutscho  moved  for  judgment, 
under  Rule  329d,  for  £152  15s.,  in  re- 
Bl)oct  of  rates,  and  £34  17e.  6d.  for 
water  supplied. 

Granted. 


REX  V.  CRYSTAL. 

Undesirable— Domicile— Deporta- 
tion—Act  47  of  1902. 

This  was  an  apoHoation  upon  notice  of 
motion  for  an  order  calling  oo  the  Colo- 
nial Secretary  to  sho-w  cause  why  Annie 
u  ^^  .who  was  about  to  be  deported 
should  not  be  released  from  oustory,  or, 
in  the  alternative,  for  an  order  admit- 
ting her  to  bail  until  her  case  was  de- 
cided  by  the  Supreme  Court. 

Dr.  Greer  moved. 

[Maasdorp,  J.:  What  is  the  urgency 
about  the  matterf ]  ^ 

Mr.  Nigbta'mrale  (for  the  Crown) :  A<p. 
rangements  have  been  made  so  that  sbs 
Will  leave  this  afterpooq, 


1002 


"CAPE  TIMES"  LAW  REPORTS. 


Dr.  Uroor  read  an  affidavit  mndo  by 
the  applioajit  in  Roelaud-etreefc  Gaol,  in 
whioh  she  act  out  tliat  she  camo  to 
Cape  Town  from  London  two  years  a^o, 
ana  that  she  had  lived  in  Cape  Town 
ever  since,  and  had  mado  it  her  pernkan- 
ent  hotme.  She  claimed  to  be  domiciled 
in  Cape  Town. 

Mr.  Nightingale  put  in  a  replying 
affidavit  from  the  Acting  Offioer-ia- 
Charge  of  the  Immigr&taon  Depaj*tment 
to  the  effect  that  the  applicant  was  a 
Rusaian-Polish  subject.  She  wtas  a  well- 
known  prostitute.  Several  times  she 
bad  left  the  Colony  for  the  Transvaal, 
and  when  she  re-entered  the  Colony  she 
contravened  Act  47  of  1902. 

Dr.  Greer,  in  the  course  of  his  argu- 
ment, said  the  Act  distinctly  exempted 
the  applicant.  Section  "  f  provided 
that  the  Act  should  not  apply  to  petr- 
sons  domiciled  in  South  Africa,  and  it 
said  nothing  about  being  domiciled  in 
the  Cape  Colony.  Taking  the  state- 
ment of  the  respondent,  she  was  still 
domiciled  in  South  Africa,  even  al- 
though she  entered  the  Transvaal.  How- 
ever desirable  it  might  be  to  deal  with 
Buoh  persons,  the  authorities  had  not 
the  power  under  the  Act. 

Mr.  Nightingale  quoted  sections  4  and 
8  of  the  Act,  and  contended  that  the 
appHoant  was  a  prohibited  immigrant 
within  the  meaning  of  the  Act,  as  she 
made  her  living  by  prostitution.  It  lay 
upon  the  applicant  to  clearly  prove  that 
she  was  domioiled  in  South  Alrioa.  Her 
statements  were  contradicted  by  the  Im- 
migration  Officer.  Clearlv,  the  Act 
was  designed  to  meet  this  class  of  case. 

Maasdorp,  J. :  Under  section  4 
of  Act  47  of  1902  prohibited 
immigrants  are  prohibitoa  from 
immigrating  either  by  land  or  sea 
into  this  colony,  and  if  they  should  in 
violation  of  that  secCiion  enter  the  Ool- 
onv,  then  under  section  8  they  are 
liable  to  be  removed  at  any  time  from 
the  limits  of  the  Colony,  and  to  be  kept 
in  such  eusrtody  as  the  regulations  pre 
scribe,  pending  their  removal.  It  is 
stated  on  the  part  of  the  immigration 
authorities  that  the  applicant  in  this 
case  is  prohibited,  because  she  is  a 
person  wiho  lives  on  the  proceeds  of 
prostitution,  whioh  is  provided  for  in 
sub-section  "e"  of  seotaon  2.  There  is 
no  denial  of  that  statement  aa  to  her 
character.  The  applicant  says  the  Act 
does  not  apply  to  her,  because  under 
section  3  slie  is  one  of  the  ezempited 
persons  having  her  present  domicile  in 
South  Africa.  The  only  question  now 
the  Court  has  to  decide  is  whether  the 
applicant  is  a  pereon  who  is  domiciled  in 
South  Afrioa.  Her  domicile  before  &he 
came  to  this  country  appears  to  have 
been  in  Poland.  She  herself  sajra  that 
she  came  to  this  country  permanently 
to  reside  here  and  make  it  her  home. 
It  is  necessary  for  her  to  establish  the 
fact  when  she  has  changed  her  domicile. 
She   says   she    arrived    in    Gape    Town 


two  years  ago,  and  ever  since  she  re- 
mained here.  In  order  to  ascertain 
the  intention  of  a  person  with  respect 
to  the  change  of  such  domicile,  one  has 
to  arrive  at  the  necessary  inferences 
from  the  express  intention  of  such  per- 
son, together  with  the  actual  conduct 
of  the  person.  Nqw,  in  thie  case,  in 
the  short  affidavit,  chere  is  a  palpable 
falsehood.  She  has  not  been  m  Gape 
Town  over  since  she  arrived  here,  be- 
c&UM}  she  was  out  of  the  Colony  for 
six  months ;  consequently  I  should  be 
unwilling  to  acoept  her  statement 
of  her  intention  when  she  ar- 
rived in  the  Colony  with  respect 
to  permanent  residence.  Having  regard 
to  ner  actions  and  mode  of  life  here,  it 
is  difficult  to  discover  any  circumstance 
upon  which  the  Court  could  find  a  de- 
cision of  her  permanent  domicile.  It 
is  often  easy  to  discover  from  a  busi- 
ness which  IS  carried  on,  or  from  the 
occupation  a  man  is  engaged  in,  and 
the  manner  in  which  he  carries  on  his 
business,  whether  he  has  come  to  the 
country  for  a  permanent  residence. 
Those  are  circumstanoes  which  are  taken 
into  consideration,  and  assist  the  Court 
in  coming  to  a  conclusion.  In  this  case 
the  occupation  of  the  applicant  is  not 
such  as  one  could  infer  therefrom  that 
•he  intended  to  carry  on  that  basiiMoa 
here  permanently.  She  seems  to  be 
what  she  is  described :  a  common  pro- 
stitute, and  she  seems,  having  left  her 
native  land,  to  be  a  sort  of  wanderer. 
It  is  said,  although  she  went  to  the 
Transvaal,  it  is  part  of  South  Africa, 
and  that  her  presence  there  does  not 
affect  her  statement  that  this  is  her 
domicile,  but  ciearly  bv  merely  going 
to  a  country  and  wandering  from  one 
province  to  another  no  donncile  is 
established.  It  would  be  necessary,  in 
the  first  instance,  to  have  some  perma- 
nent place  of  residence  where  a  pereop 
intends  to  reside  here.  The  only  evi- 
dence is  that,  having  resided  for  a 
period  of  more  than  sixteen  months  in 
Cape  Town,  she  moved  up  to  another 
country — to  the  Transvaal— and  she  lived 
there  for  six  months.  Not  satisfied 
there,  she  comes  back  to  the  CoJony. 
Under  the  circumstances,  I  find  that  the 
applicant  has  failed  to  establish  the  fact 
tnat  she  is  domiciled  in  South  Africa, 
and  the  application  must  be  refused. 


CAPE  TOWN    TOWN  COUNCIL  f       ^qv^- 
V.  RATBPAYBK8'  AS80CIA.<  iaJ.    i*,Vv 
TION.  P^-  ^'***- 

This  was  an  application  on  behalf 
of  the  Town  Council  on  notice  of  mo- 
tion, calling  upon  the  respondents,  who 
were  the  applicants  in  a  matter  in  which 
a  rule  had  oeen  granted,  returnable  on 
January  12,  to  show  cause  why  an  order 
should  not  be  granted  anticipating  the 
return    day    of   the   rule   nisi,    and    for 


tl 


CAPE  TIMES"   lAW  REPORTS. 


1003 


an    order    to   set   down    the   hearing  of 
this  application  for  a  day  before  January 

TrL^^^i."^*  ^^^  ^  °<^«*«  »"  tJio  cause. 
Ihe  aiTidavit  of  William  G'eorj,ro  Fair- 
l.iidtro,  of  Cape   Town,   one  of  the  ap- 
P"«"iJ«   attorneys,  was  as  follows: 

1.  The  above-named  petitionep*  applied 
to  this  honourable  Court  on  the  17th 
"!*•.'  f-K  p«r/f,  and  obtained  a  rule 
«m,  calling  upon  the  respondent  coun- 
cil to  show  cause  why  it  should  not  be 
mterdiot^d  from  signing  a  certain  con- 
tract referred  to  m  the  petition;  the 
said  rule  wa«  made  returnable  on  Janu- 
ary 12  next. 

2.  The  Town  Council  of  Cape  Town 
had  no  notice  of  the  application.  The 
pebitionere  applied  for  a  rule  roturn- 
abJe  on  the  12th  inst.  The  rule  was 
made  returnable  on  January  12,  as  I 
understand  on  account  of  pressure  of 
ether  work  before  the  Court.  The  Town 
Council  had  no  opportunity  of  show- 
ing urgent  reasons  why  the  motion 
should  be  made  returnable  on  an  earlier 
da/te. 

3.  The    question    raised    in    the   peti- 
tion    nas    relation    to    the   execution    of 

LrHi}'^"^^  *^i^^"  *^^  Town  Council 
and  the  firm  of  Edmund  NuttaJl  and 
Company    m   respect  of  paving  certain 

tlTiL'''  ^''^  ?V^"'  the^^said^firm  U 
ing  the    successful   tenderers       therefor. 

tt'Tot'^f^&oIJS*^  ^        accepted   b^ 

tJI.S''''-!u'''''^!''  opposition  hafl  been 
ra^ed  within  the  Town  Council   bo  the 

rZ^^.f'"'"  u^i  execution  of  the  written 
con-tract    which  has  to  be  executed     oe- 

fi^m  ^/*^/^^"i  ^^""^^^  »"<^  the  said 
firm    of_   Edmund    Nuttall    and       Com- 

??r^'/]^^.u"^^  *¥  'T^^'^  Council  duly 
accepted  the  tender  in  question  so  far 
back  as  Aucrust  10  last. 

5.  From  that  time  the  tender  and  con- 
tract in  question  have  been  continually 
before  the  Town  Council,  and  have  taken 
up   an    mordmate   amount  of   time,    al- 

mn^H^^  Jify  ^'*^*'^®  progress  has  been 
made  in  the  matter. 

beis  of  the  Counc;  ,  who  are  in  favour  of 

executing  the  .*^aid    contract,  state  that, 

n  the  opinion  of  the  deponents,      there 

[^r?o?*l"**n'  "'^  ^^^  P"*  ^^  *he  mem- 
^fo^f  :  ®  Council  opposed  to  the  eon- 
tract,  to  u^  every  device  to  delay  the 
execution  of  the  contract  in  the  ex^cta- 
tion  or  hope  that  something  may  occur 
which  would  enable  the  said  contract 
to  be  thrown  out. 

7.  A*  the  present  time  the  next?  ques- 
tion will  have  to  be  dealt  with  by 
the  Council  will  be  to  settle  thi 
tern.s  of  the  contract  to  be  executed,  and 
ttotions  m  respect  of  this  have  been  set 
n^l'l^'J''^  consideration  by  the  Council. 
l^e  Mayor  has,  however,  ruled  that  to 
coTwider  such  motions  will  be  contempt 
of  Court,  and  progress  in  thi^  respect  is 
stayed,  and  unless  relief  be  granted  will 
be  stayed  until  January  12  next. 


8.  The  time  of  the  officials  of  the 
Council  has  been  taken  up  to  «kn  undue 
extent  by  mafctere  connected  wiith  this 
motion,  and,  in  consequence  of  the  de- 
lay, caused  by  the  graivting  of  the  rule 
iiflsi  in  question. 

9.  The  Town  Council  urge  that  the  re- 
turn day  should  be  anticipated  aod  an 
earlwr  dale  fixed  for  th©  hearing  of  th© 
motion. 

10.  ()n  the  9th  instan*,  I  saw  th©  Hon- 
ournble  fear  John  Buchanan,  who  in^ 
formed  me  that  the  Court  would  be  pre- 
pared to  take  this  motion  on  the  Hth 
irstant,  and  suggeoted  that  I  should  see 
the  petitioners  on  the  subject.  I  ac- 
cordingly saw  th©  petitioneOT'  attorney 
on  that  day,  who  informed  me  that  h© 
would  not  consent  to  th©  application  be- 
ing heard  oai  th©  14th  instant.  Ho 
stated  that  one  of  }m  reasons  was  that 
when  the  replying  affidavits  of  th©  Town 
Council  were  served,  the  petitioners  in- 
tended to  appoint  an  accountant  to  in- 
vestigate the  books  of  the  Town  Council. 

11.  Keplving  affidavits  were  served  on 
petitioners    attorneys  on  the  9th  instant, 

*"j  I  ?^^^  K  ^^^  *^*  <^'  ™y  knowledff© 
and  belief  that  an  linveartigwtion  of  th© 
books  of  th©  Town  Council  will  not  bo 
necessarr  for  the  purposes  of  this  mo- 
tion. Moreover,  that  had  th©  return 
day  been  fixed  for  the  12th  instant, 
there  would  have  been  no  mor©  tim^  for 
such  investigations  that  the  petitioners 
now  have. 

12.  The  Town  Council  will  b©  senous- 
ly  prejudiced,  and  impeded  in  its  work 
\nM^%  motion  b©  not  heard  befor©  the 
l^Jth  January  next. 

T  T*^^A?"*;j^^^"«"  affi«J*vit  of  Alexander 
John  MacCallum  was  as  follows' 

1.  That    I   am   at^torney   to   the   Cap© 
Town      Ratepayers'      Association      and 
others,  petitioners,  (respondents   in     this 
application). 

*u?'  Thf!^  ^  Y^  *^  2-^  P'«"-  (Monday, 
the  11th  mst.)  san'od  with  a  copy  of 
this  application  on  behalf  of  the  peti- 
tnoners.  *^ 

3.  That  at  12.40  p.m.  on  Saturday,  the 
9th  inst.,  I  was  served  with  vwious  re- 
plying affidavits  in  the  principal  oas© 
herein  extending  to  about  54  pages 
brief  sheets.  ^  ^ 

4.  That  on  the  same  day  Mr.  W.  G. 
Fairbridge,  the  attorney  for  the  Town 
Council,  called  on  m©  and  deedred  to 
know  whether  I  would  consent  to  the 
return  day  being  anticipated  on  th©  14th 
inst. 

5.  That  I  intim«it©d  that  as  the  mat- 
ter was  very  limpoTiaot,  and  that  as  in- 
tricate points  were  raised,  and  that  as 
thev  had  not  sooner  made  application,  I 
oould  not  an  th©  mterosts  of  my  cli©i^ 
agPe©  to  any  such  aoifatoipation  of  the 
return  day. 

6.  Tl»t  on  Monday  nK)rning,  Mr. 
*  airbridge  served  on  m©  the  pefition  at- 
techod  hereto  praying  th©  Judges  in 
Chambers  to  anticipate  th©  return  day 
on  th©  14*tli  inotv,  and  that  th©reafter  | 


1004 


It 


CAPS  TIMES*'  LAW  BEPCATB. 


pixx>ocded  with  Mr.  Fiiirbrid^c  to  the 
Supreme  Court,  but  that  tho  Judge  de- 
clined to  hoar  th<^  petition. 

7.  That  when  ttxi  rule  nuii  in  qui^s- 
tioQ  was  grantod  my  clioutA  appliod  to 
have  it  returnable  on  the  12th  Decem- 
ber, but  the  presiding  Judge  stated  that 
in  view  of  the  pressure  of  work  present- 
ly before  the  Court  he  would  have  to 
make  it  returnable  on  the  12th  January. 

8.  That  had  the  rule  nisi  been  maae 
returnable  on  the  12th  of  December, 
your  deponent  would  have  aaked  that 
the  replying  affidavits  should  be  filed  at 
least  ten  days  prior  to  the  said  return 
day. 

9.  That  your  deponent  would  poini 
out  that  although  the  rule  niti  was 
granted  so  far  back  as  the  17th  Novem- 
ber laat,  no  replying  affidavits  were 
filed  until  Saturday  as  above  mentioned. 

10.  Your  deponent  bogs  to  state  that 
the  nuLtters  treated  of  in  the  petition 
imder  question  are  so  intricate  and  in- 
volve 80  considerable  an  amount  of 
invefitigation  that  he  has,  on  behalf  of 
his  clients,  retained  the  services  of  a 
qualified  accountant  to  investigate  the 
state  of  certain  aooounts  in  oonnoction 
with  the  paving  of  streets,  and  exojnine 
certain  financial  statements  in  the  pos- 
fesaion  ol  the  Town  House  authorities. 

11.  That  such  investigation  is  absolute- 
ly necosfary,  and  will  take  some  con- 
siderable time. 

12.  That  with  reference  to  paragraph 
11  of  the  said  Fsirbridge's  affidavit,  etair 
iiig :  "  That  in  his  opinion  the  investi- 
gation of  the  books  of  the  Town  Coun- 
cil will  not  be  necessary  for  the  pur- 
poses of  this  motion,"  I  have  simply  to 
state  that  as  the  legal  adviser  of  ihe 
petitioners  in  the  case  under  question, 
my  opinion  differs  from  that  of  Mr. 
Fairbridge. 

13.  That  your  deponent  cannot  admit 
thait  the  work  of  the  Town  Council  will, 
as  asserted  in  the  said  affidavit,  be 
:-oric)uslv  prejudiced  or  impeded. 

14.  That  your  deponent  informed  Mr. 
Fairbridi?e  yesterday  morning  that,  pro- 
vided the  return  day  were  anticipated  at 
s^ome  period  not  within  10  days  from  i^his 
date,  he  would  raise  no  objection,  but 
that  in  consideration  of  the  mass  of  affi- 
davits filed  on  behalf  of  the  Town  Coun- 
cil, your  deponent  considered  it  an  ab- 
solute impossibility  to  furnish  satisfac- 
tory replies  wibhin  any  such  period  as 
that  suggested  by  the  said  Fairbridge. 

15.  Your  deponent  begs  leave  to  sug- 
gest to  this  honourable  Court  that,  in 
view  of  the  fact  that  no  steps  had  been 
t'aken  until  Saturday  last  to  anticipate 
the  return  day  herein,  and  that  until 
12.40  on  that  date  no  replying  affidavits 
had  been  lodged,  the  said  Town  Council 
do  not  appear  to  have  been  so  greatly 
prejudiced  or  inconvenienced  as  the 
affidavit  under  reply  would  appear  to  in- 
dica/te. 

16.  On  behalf  of  the  petitioners,  who 
are  members  of  the    Town   Council,   I 


deny  the  assertion  in  paragraph  4  of  the 
affidavit  under  reply,  to  the  effect  that 
the  **  Town  C-ouncil  duly  accepted'*  the 
tender  in  question. 

17.  It  is  not  the  fact  tliat  the  tender 
and  contract  in  Question  have  been  con- 
tmually  before  the  Town  Council;  on 
the  contrary,  the  said  contract  has  only 
been  discussed  in  Council  since  the  rule 
nisi  herein,  members  not  having  (pre- 
viously had  an  opportunity  of  perusing 
the  same. 

18.  1  acquiesce  in  the  staiement  in 
paragraph  6  of  the  affidavit  under  reply. 
HI  so  far  as  that  every  lawful  effort  nas 
t)een  used  to  prevent  the  Council  from 
entering  into  what,  in  the  opinion  of 
your  petitioners,  is  an  illegal  contract. 

Mr.  Schreiner,  K.C,  for  a»pplicant9. 
Sir    H.  Juta,  K.C.  for  responoents. 

Mr.  Schreiner  said  that)  the  great  prac- 
tical point  was  to  have  the  matter  de- 
cided one  way  or  another.  AVrth  all 
respect  to  Mr.  MacCallum,  it  was  scarce- 
ly possible  he  should  be  in  a  position 
to  determine  how  far  this  was  a  serious 
prejudice  to  the  working  of  the  Town 
Council,  of  which  he  was  not  a  member. 
It  wa4  unlikely  such  an  application  would 
bo  made  unless  the  matter  was  seriously 
inconveniencing  the  Town  Council,  li 
would  be  seen  how  inconvenient  it  might 
be  that  the  matter  should  be  left  in 
abeyance  for  a  long  period  of  time  in 
relation  to  a  contract  which,  upon  the 
acceptance  of  the  finder  on  August 
10  last,  should  really  have  been  brought 
to  a  head  one  way  or  the  other.  Every- 
thing had  been  done  since  then  to  pre- 
vent this  matter  going  through.  It  was 
an  unusual  thing,  seeing  how  long  the 
ma-ttor  had  been  in  abeyance,  that  the 
Corporation  had  no  notice  of  the  appli- 
cation made  on  November  17,  and,  there- 
fore, had  no  opportunity  of  preventing 
the  rule  being  granted.  The  respond- 
ents said  they  wanted  10  days  to  reply, 
and  counsel  said  they  were  not  entitled 
to  it ;  neither  did  they  show  any  reason 
for  the  10  days.  Counsel  thought  48 
hours  would  be  sufficient. 

["Masjsdorp,  J. :  Ten  days  seems  a  long 
time  in  comparison  with  48  hours. 
What  about  Friday?] 

AVe  would  be  content  with  Friday. 

Sir  H.  Juta:  We  can't  be  ready  by 
Friday.  Counsel  {preceding)  said  upon  a 
stat<>ment  by  the  City  Treasurer  and  the 
Town  Clerk,  it  appeared  that  no  one  was 
prepared  to  say  whether  the  amount 
voted  would'  bo  exceeded  or  not.  He 
l>olieyed  if  the  contract  was  above  a 
certain  amount,  the  Town  Council  would 
have  to  go  to  the  ratepayers.  He  did 
not  >*uppc»e  that  the  Town  Council  had 
the  power  to  enter  into  a  contract  and 
bind  the  ratepayers  to  £500,000,  without 
going  in  for  a  loaik 

[Maasdorp,   J.  :    I      thought  the   rate- 
payers had  sanctioned  it?] 

A  certain  amount  of  it. 

Our  point  is  that  this  contract  ex- 
ceeds   it,    and    consequently    they    will 


"CAPE  TIMES"  LAW  REPORTS. 


1006 


have  to  go  to  ihe  ratepayers  for  tho 
other  part  of  the  loan.  I  represent, 
not  only  the  Ratep^ore'  Association, 
but  6ome  five  or  six  Town  Oouncillora. 

[Maasdorp,  J.  :  Tliat  makee  no  differ- 
ence.] 

Yes,  because  they  say  wo  ob- 
ject to  any  contract  being  ont-ercd 
into  when  tho  money  has  not  jTDt  been 
voted  by  the  ratepayers,  and  further,  if 
the  ratepayers  refuse  to  endorse  the 
action  of  the  Council,  the  Town  Council 
will   become  personally  responsible. 

[Maosdorp,  J. :  I  dare  say  it  is  a  rich 
association,  and  they  can  go  through 
the  whole  of  the  books  in  three  days, 
by  the  aid  of  a  large  number  of  ac- 
countants. I 

Mr.  Schreiner,  in  reply,  said  that 
the  respondents  hoped  to  delay  tho 
execution  of  the  contract,  so  that  six 
months  would  elapse  from  the  d«te  of 
the  original  motion  in  July  last,  and  a 
mere  majority  would  be  sufficient  to 
review  and  rescind. 

Maafidorp,  J. :  The  only  ques- 
tion the  Court  haa  to  consider 
is  whether,  upon  a  day  being 
fixed  for  the  hearing  of  this  motion, 
the  Forties  will  be  all  prepared  to  go 
on  wi*h  their  c&e^.  It  has  been  con- 
tended by  the  legal  advisers  of  the 
respondent  in  this  matter  that,  in  oirder 
to  support  the  iesues  there  raised,  it 
will  be  necessary  for  them  to  obt-ain  a 
good  deal  more  information,  and  they 
say  a  number  of  days  will  be  required 
before  they  can  be  prepared  with  such 
information ;  but  it  appears  to  me  that 
they  rather  exaggerate  the  amount  of 
I&bour  required  to  obtaiin  that  informa- 
tion. Perhaps,  if  the  date  is  fixed  for 
the  15th,  it  will  happen  that,  when  the 
argument  comes  on,  some  difficulty  may 
be  presented  from  the  shortness  of 
the  time  granted,  but  so  fa.r  as  I  can  seo 
through  the  oa«e  at  present,  I  fool  that 
they  ought  to  be  prepared  by  Monday. 
the  18th.  Tho  Court  will  therefore  set 
down  the  hearing  of  this  motion  for 
Monday,  costs  to  be  costs  in  the  cau«^e. 

[Applicants'  Attorneys :  Fairbri(lg€>, 
Ardeme,  and  Lawton.  Respondents'  At- 
torney: A.  J.  McOallum.] 


SUPREME  COURT 


[  Before  the  Hon.  Mr.  Justice  M A akdorp.] 


PROVISIONAL   ROLL. 

ESTATE    PBITCHARD    V,      f        1905. 

FISCHER.  J  Dec.    13th. 

Mr.   Benjamin    was    for    the   plaintiff 
and  Mr.  H.  G.  v.  Zyl  for  the  defendant. 


Mr.    Benjamin    moved    for   provisional 
judgment    on     a    promieeory    note    for 
£481. 
Provisional  sentence  as  prayed. 


GOVEY  V.  CLARKE  AND  00. 

Mr.  Upingtou  (with  him  Mr.  Long) 
was  for  tho  plaintiff,  and  Mr.  Gar- 
diner was  for  the  defendant.  Mr.  Up- 
ington  moved  for  provisional  sentence 
on  a  promissory  note  for  £615,  with 
interest  and  costs.  The  defendants,  Mr. 
Upington  said,  made  a  promissory  note 
for  the  amount  claimed  in  respect  of  a 
consignment  of  eggs  in  favour  of  R. 
Warner  and  Co.,  who  had  the  bill  dis- 
counted by  the  plaintiffs.  Defendants 
pleaded  want  of  consideration  on  tho 
ground  that  tho  egg?  were  not  accord- 
nig  to  the  samples.  The  eggs,  which 
came  from  Russia,  it  appeared  from  the 
correspondence,  were  below  tho  "elec- 
tioneering stage." 

The  eggs  had  originally  been  imported 
in  favour  of  Zion,  Chiat  and  Co. 

Maa.>dorp,  J. :  There  is  a  serious  dis- 
pute as  to  the  facts  between  tho  parties  in 
this  ease,  and  it  would  be  inlpo^«sible  for 
tho  Court  finally  to  determine  that  dis- 
pute upon  tho  affidavits  which  has  been 
put  in.  and  all  the  Court  can  do  at  pre- 
sent is  to  ascertain  which  of  tho  parties  is 
in  all  probability  likely  to  l)e  successful 
if  all  the  circumstances  of  the  case  arc 
taken  into  consideration.  Tho  ac*tion 
is  brought  by  the  plaintiff  as  legal 
holder  of  a  promisory  not©  made 
by  the  defendant  in  favour  of  War- 
ner and  Co.  The  defence  sets  up 
want  of  consideration  against  this 
bill.  Now,  it  is  quite  clear  that 
unless  there  are  certain  special  circum- 
.staiices  which  vary  the  rights  of  the 
parties,  that  want  of  consideration  be- 
tween tlie  original  parties  to  a  bill  can- 
not 1x3  set  up  against  a  subsequent  legal 
holder.  The  defendant  says  such  circum- 
stances do  exist,  but  there  is  a  strong 
indication  that  the  transaction  was  such 
as  alleged  by  the  plaintiff  to  have  been, 
that  he  merely  discounted  the  promis- 
sory note  and  took  it  in  part  settlement 
of  a  debt  due  by  Warner  to  him.  Upon 
the  information  before  the  Court,  pro- 
visional sentence  must  be  given  with 
costs,  with  liberty  to  the  defendant  to 
sue  to  recover  these  costfl  in  the  prin- 
cipal action  if  he  thinks  fit  to  establish 
his  position. 


TENNAN'T  V.  ZIBRADZKI. 

Mr.  Swift  moved  for  judgment  under 
Rule  329d  for  £22  ITe.  7d.  for  profes- 
sional services  and  costs. 


PITILLTP8  V.  LKA. 


Mr.  Gardiner,  for  the  plaintiff,  moved 
for  provisional  sentence  on  a  mortgage 


1006 


« 


CAPS  TIMES"  LAW  BEPORT& 


bond  for  £59  10b.,  balance  of  an  instal- 
ment  of  £150,  and  that  the  property 
specially  hypothecated  be  declared  exe- 
cutable. 

Mr.  W.  P.  Buchanan,  for  the  defen- 
dant, said  the  question  was  whether  the 
plaintiff  was  entitled  to  claim  certain 
coste  from  the  defendant,  seeing  there 
were  negotiations  for  a  settlement.  A 
promise  of  a  tender  was  made,  with 
costs    up    to    date,    and  after   that    the 

filaintiflPs  attorney  set   down  the    case. 
t  was   the  costs  of   setting   down  that 
were  objected  to. 

Provisional  sentence  granted,  with 
costs,  including  the  costs  in  dispute,  and 
the  property  declared  executable. 


BHSPHEBD  V.  YAN  RENEN. 

Mr.  W.  P.  Buchanan  moved  for  the 
final  adjudication  of  the  defendant's 
estate  as  insolvent.  Mr.  Benjamin  was 
for  the  defendant.  The  plaintiff  had 
obtained  judgment  for  £250  and  £1,000 
on  two  mortgage  bonds.  The  property 
was  subsequently  sold,  and  realised  £200 
and  £750,  leaving  a  balance  of  £497 
56.  lOd.,  which  included  Sheriffs  ex- 
penses. 

Mr.  Benjamin  eaid  that  his  client  had 
a  good  action  against  the  plaintiff's  son 
for  a  substantial  sum  of  money,  and 
that  when  the  action  was  instituted  the 
sequcbtration  proceedings  were  com- 
menced. 

Order  granted. 


BEDOWICK  AND  CO.  Y.  DAVIDOFF. 

Mr.  Benjamin  was  for  the  plaintiff 
and  Mr.  Alexander  was  for  the  defen- 
dant. 

Mr.  Benjamin  moved  for  an  order 
adjudicating  the  defendant's  estate  as 
insolvent. 

Mr.  Alexander  read  the  affidavit  of 
the  defendant,  which  set  out  that  while 
he  admitted  his  indebtedncs.s  iii  the  sum 
of  £555  on  a  mortgage  bond,  ho  denied 
his  indebtedness  in  the  amount  of  £683 
for  goods  t»oJd  and  delivered.  He  ad- 
mitted he  was  indebted  in  the  sum  of 
£27  4«.  9d.  At  a  meeting  of  the  defen- 
dant's creditors,  it  was  agreed  that  he 
should  assign  nis  estate,  and  that  he 
should  continue  to  carry  on  the  business 
at  a  salary  of  £3  a  week  until  the  busi- 
ne^  showed  a  profit.  For  a  consider- 
able time  the  defendant  carried  out  the 
decision  of  the  creditors,  but  a  creditor 
who  had  not  jiigned  the  deed  of  assi«?n- 
ment  came  along,  refused  to  sij^ii,  and 
then  the  other  croditors  said  their  obli- 
gations were  at  an  end. 

Order  of  sequestration  granted. 


REHABILITATIONS. 


Mr.  Bailey  okoved  for  the  rehabilitar 
tiou  of  Alexander  Craighead  Cruick- 
shanka,  Roeiof  Cbaa.  Malberbe,  and 
William  Walker,  Mr.  De  Waal  moved 
for  the  rehabilitation  of  Petnis  Johan- 
nes de  Wet,  and  Mr.  J.  KR.de  VU- 
tiers  moved  for  the  rehabiistation  of 
Uendrik  Cornelius  Dreyer. 

Granted. 


GENERAL     MOTIONS. 


Ex  2)arte    TME    ASSIGNEES  (        190o. 
OK  THE  ESTATE  OF  PITT.     )  £>ec.     13th. 

Mr.  Bailey  moved  to  make  absolute 
a  rule  granted  under  the  Derelict 
Lands  Act. 

Rule  made  absolute. 


Ex  parte  PIENAAR. 

Mr.  Uoux  moved  to  make  absolute  a 
rule  granted  under  the  Derelict  Lands 
Act. 

Rule  made  absoluile. 


Ex  parte  the  receivers  urand  junc- 
tion RAILWAYS. 

Mr.  Upington  moved  to  have  a  rule 
granted  under  the  Derelict  Lands  Act 
made  absolute. 

Rule  made  absolute. 


Ex  parte  QOEZAAR. 

Mr.  P.  S.  T.  Jones  moved  for  leave 
to  raise  certain  money  on  mortgage. 
The  petitioner  was  the  executrix  in  tlie 
will  of  her  late  husband  and  her  chil- 
dren, wiio  were  all  minors,  were  the 
registered  owners  of  certain  land  vaJued 
at  £1,100.  The  properties  had  been  in 
a  dilapidated  state  for  some  time,  and 
shi,  wa3  desirous  of  obtaining  £350  to 
ut  the  houses  in  proper  repair,  in  or- 
er  that  she  might  get  rents  sufficient  to 
nutiutain  herself  and  children. 

Order  granted,  the  bond  to  be  execut- 
ed, with  the  oonditson  that  £24  per  an- 
num be  paid  off  by  the  applicant. 


I 


WILKINSON  V.  WILKINSON. 

Mr.  Outsohe  moved  to  make  absolute 
a  rule  calling  on  the  respondent  to 
show  oau:9e  why  plaintiff  shoidd  not  bo 
allowed  to  sue    in  fonna  pauperis. 

Rule  made  absolute. 


"  CAJPB  UMBB  "  LAW  ttBFOtttS. 


1007 


Ex  parte  OE  KLBBK. 

Mr.  J.  E  .R.  de  VilEers  moved  for 
leave  to  the  petitioner  to  raise  £650  on 
&  farm  in  oraer  to  pay  the  debts  of  the 
petitioner's  children,  who  had  made 
themselves  reeponadble  for  the  debts,  to 
assist  the  petitione-r. 

Leave  granted  to  mortgage  the  pro- 
perty to  the  extent  of  £650,  to  .enable 
the  applioant  to  pay  the  debts  men- 
tioned. 


Ex  2f(irte  BASKIND  AND  WIPE. 

Mr.  Waterraever  moved  on  behalf  of 
the  petitioners  for  leave  to  register  an 
ante-nuptial  contract.  The  matter  had 
previously  been  before  the  Court,  and 
it  was  ordered  to  stand  over  for  further 
information  ae  to  the  property  of  the 
parties  The  terms  of  the  contract  set 
forth  were  now  testified  to  by  both 
parties  as  the  terms  they  intended  enr 
tcring  into,  and  they  would  have  done 
so  before  marriage  had  they  not  been 
told  that  it  could  be  done  afterwards. 

Leave  granted  to  execute  the  contract 
in  terms  of  the  draft  put  in. 


LYONS  V.  LYONS. 

Mr.  Sutton  moved  to  make  absolute 
a  rule  to  enable  the  applicant  to  sue 
the  defendant  in  forma  pauperis  for 
judicial  separation.  The  rule  was 
granted  to  the  petitioner  on  the  ground 
of  cruelty.  Several  times  he  threatened 
to  take  his  wife's  life,  and  the  peti- 
tioner ultimately  left  him. 

The  defendant  appeared  and  denied 
the  allegations,  and  made  certain  charges 
against  his  wife. 

Leave  granted,  Mr.  Lewiri,  having 
had  charge  of  the  prooeedingf;  on  a 
former  occasion,  appointed  as  advocate. 


Ex  parte  ADAMR. 

Mr.  Payne  moved  for  an  order 
authorising  the  Registrar  of  Deeds  to 
amend  a  bond  so  that  the  ij^etitioner's 
full  name    would  appear  on  the  bond. 

Granted. 


STYLE  V.  STYLE. 

Mr.  D.  Buchanan  moved  for  leave  to 
sue  the  wife,  who  is  Hofciidant.  by 
edictal  citation,  for  restitution  of  con- 
jugal rights,  by  reason  of  her  malicious 
desertion. 

Leave  granted,  return  day  1st  Febru- 
ary, personal  service  to  be  effected. 


EsB  parte  DU  toit. 

Mr.    Gardiner    moved    for   an    order 
authorising  the    acceptance    of   a  bond 


which    the    applicant    had    executed    in 
favour   of  his  wife,    but  not   in      same 
christian    name    as  that  appearing      on 
the  ante-nuptial   contract. 
Granted. 


Ex  varte  ronaldson  and  wife. 

Mr.  Swift  moved  for  leave  to  the  peti- 
tioners to  regisrter  au  ante-nuptial  con- 
tract. The  matter  had  been  ordered 
to  stand  over  for  information  as  to  the 
property.  Petitioner's  wife  at  the  time 
of  the  marriage  was  possessed  of  £55 
and  personal  effects,  and  the  applicant 
had  half-share  in  a  shipping  businegs  at 
East  London. 

Leave  granted  to  register  the  ante- 
nuptial contract  in  terms  of  section  5 
of  the  petition,  without  prejudice  to  the 
creditors. 


VAN  DER  VYVKR  V.  VAN  DEB  VYVER. 

Mr.  Roux  moved  for  the  appointment 
of  a  curator  to  the  respondent,  who  was 
ineai^able  of  managing  her  own  affairs. 
Medical  testimony  showed  that  the  re- 
spondent, Anna  Christiana  van  der 
Vyver,  was  an  imbecile,  and  totally 
incapable  of  looking  after  her  own 
affairs. 

Mr.  Reitz  appointed  curator  ad  litem 
in  proceedings  to  have  the  rorpondent 
declared  incapable  of  managing  her  own 
affairs.  Proceedings  to  be  taken  by 
means  of  hotico  of  motion,  the  affi- 
davits to  be  served  on  Mr.  Reitz,  who 
is  authori.sod  to  obtain  information  on 
affidavit,  and  to  send  written  reports. 
The  return  day  to  be  Ist  February. 


Ex  parte  MILLS. 

Mr.  J.  E.  K.  de  Villiers  moved  for 
the  appointment  of  petitioner's  husband 
as  trustee  to  acoept  transfer  of  certain 
property  on  behadt  of  her  minor  daugh- 
ter  by   her   previous   marriage. 

The  matter  was  ordered  to  stand  over 
for  further  information. 


Ex  parte  OIBBS  AND  OTHEBS. 

Mr.  Struben  moved  for  leave  to  raise 
£5.000  on  mortgage,  to  meeit  certain 
liabilities  and  to  pay  legacies.  There 
was  a  consent  from  the  major  heirs  in 
the  estate,  and  the  Master's  report  was 
favourable. 

Order  granted  in  terms  of  the  Mas- 
ter's report. 


1006 


•< 


CAPE  tlMlSS"  LAW  RKI>0RT8. 


SUPREME  COURT 


[  Before  the  Hon.  IM  r.  Justice  M  aasdorp.] 


GENERAIi  MOTIONS. 


In  re  THE  amoy   brick   f       lOt).'). 

SYMDICATB.  i  Dec.    14th. 

Mr.  J.  E.  R,  do  Villiers  ©ubmittcd 
the  final  report  of  the  liquidators,  and 
nscvod  for  its  confirmation  ^th  certain 
comproDiues. 

Granted. 


Ex  parte  MILLS. 

Mr.  J.  E.  R.  de  Villiers  mentioned 
this  matter,  which  was  ordered  to  stand 
over  from  the  previous  day  for  inform- 
ation as  to  the  oircumstanccs  of  the  peti- 
tioner's divorce  fr<Hn  her  first  husband. 
Counsel  produced  the  report,  which 
showed  »he  was  plaintiff,  and  there  "was 
no  claim  in  reconvention.  The  appli- 
cation was  to  have  petitioner's  husband, 
David  Mills,  appomted  as  trustee  to 
take  transfer  oi  property  for  a  minor 
daughter  by  the  first  marriage. 

Granted. 


/«  re  WARD  AND  CO.,   LTD. 

Mr.  Douglais  Buclianau  applied  fur 
the  confirmation  of  the  official  liquida- 
tor's report.  Counsel  also  applied  to 
allow  the  hooka  to  remain  in  possesadon 
of  Henry  Ward,  who  was  carrying  on 
the  business. 

Granted. 


Ex  parte  knoetsbn. 

Mr.  RuBsell  moved  for  an  order  au- 
thorising: the  eignatiire  of  certain  par- 
tition transfers.  The  Master's  report 
was  favourable. 

Granted,  subject  to  the  Master's  re- 
conunendation   being  carried   out. 


Ex  paHe  BOUWER. 

Mr.  Sutton  moved  for  an  order  con- 
firming a  sale  of  property,  in  an  estate 
in  which  the  petitioners  were  executors, 
to  Jacobus  Stcphanua  Bruwor,  "who 
made  the  best  offer  for  the  property. 

Granted. 


Ex  parte  VAN  ECK. 

Mr.  Russell  moved  for  an  order  au- 
thorising the  execution  of  a  niort^^ago 
bond  in  the  estate  tin  which  the  petition- 
er was  executor  testamentary.  The 
Master's  report  was  favourable. 

Granted,  subject  to  the  MJa«ter's  re- 
conmiend>ation  oeing  oarried  out. 


COLONIAL  GOVERNMENT  V.  LE  ROUX 
AND  CONCORDIA  (NAMAQUALAND) 
COPPER  MININO  00. 

Mr.  Nightin^e  moved  for  the  cancel- 
latioci  of  certam  mineral  leaees  granted 
to  the  respondento  for  a  period  of  99 
years,  on  the  ground  tibat  the  respond- 
ents had  failed  to  pay  any  rent  or 
carry  but  the  oonddtione  of  the  lease. 
The  officials  of  the  syndicate  could  not 
l)e  found. 

Maa^dorp,  J.,  granted  a  rule  ni»i  re- 
turnable January  12,  one  publication  in 
the  *•  Gazette  "  and  "  Cape  Times." 


Ex  parte  FOURIE. 

Mr.    Ru8.*cll  moved  for  an  order  au- 
thorieaiig   the  exchange   of  certain   pro- 

Eorty  in  order  that  the  petitioner's  in- 
eritod   property   might  he   merged   in 
one    fai!m   and   not   scattered   over   the 
country,  and  to  raise  a  mortgage.     The 
Master  had  no  objectioa. 
Granted. 


£>  J)arte  DE  WITT  AKD  WIFK. 

Mr.  Watermeyer  moved  for  leave  to 
register  an  ante-nuptial  contract.  The 
parties  intended  to  execute  the  contract, 
but  as  the  petitioner  could  noi  find  a 
notary  public  in  Gat  heart,  he  got 
uiarried  on  the  19th  Soprtember,  19CS— 
the  day  fixed  for  the  event. 
^  Granted,  without  prejudice  to  the 
rights  of  creditors. 


WILTER  V.  WILTER. 

This  was  an  actiwi  for  a  decree  of 
divorce,  and  for  a  declaration  that  the 
defendant  has  for  feited  a  half-share  in 
the  property  acquired  since  a  deed  of 
separation  was  entered  into  between  the 
parties. 

Dr.  Greer  was  for  the  plaintiff,  and 
the  defendant  was  in  default. 


PEDERSEN  V.  GOLDBERG. 

Mr.  Sutton  moved  to  make  absolute  a 
rule  granted  restraining  the  defendant 
from  removing  goods  pending  an  action. 

Granted. 


Ej'  parte  THE    EXECUTORS  IN   ESTATE 
LATE  MCGRATH. 

Mr.  Bailey  moved  for  an  order  au- 
thorising the  amendment  of  certain  let- 
ters of  administration  in  order  to  have 
the  heir's  names  corrected  so  as  to  get 
transfer  of  certain  property. 

Granted. 


•< 


CAP1&  tlMES"  LAW  RSPOtt'TS. 


1009 


Ex  parte  KLKTN. 

Mr.  W.  P.  Buchanan  moved  for  an 
order  authorising  the  parsing  of  certain 
transfciB  of  property.  The  petitioner 
wa^  the  executrix  in  the  estate  of  her 
late  husband,  and  she  sold  the  property 
for  £2,400  to  her  two  grandchildren, 
reserving  the  right  to  remain  in  pos- 
session herself. 

Maasd(>r[),  J.,  ordered  the  application 
to  be  renewed  after  notice  to  the  widow 
in  the  estate  of  petitioner's  son  and  to 
the  children,  Mr.  Krige  to  act  as  cura- 
tor to  the  children. 


Ex  parte  CORNELIUS  and  WIFK. 

Mr.  Struben  moved  to  have  an  ante- 
nuptial contract   registered. 
Ci  ranted. 


Ex  parte  van  huystekn. 

Mr.  Wright  moved  for  leave  to  sue 
Peter  Ilendrik  Ferroira  by  edietal  ci- 
tation for  damages  for  seduction,  and 
for  an  order  restraining  him  from  re- 
ceiving money  he  has  inherited  pending 
the  action. 

Leave  granted,  returnable  1st  Febru- 
ary, personal  service  to  be  effected  and 
the  Jegiator  restrained  from  paying  the 
sum  of  £83  and  the  Maister  restrained 
from  paying  £63  to  the  respondent  pend- 
ing an  action. 


Ex  parte  THE  CAPE  CANNING  CO. 

Mr.  Van  Zyl  moved  for  the  liquida- 
tion of  the  company  and  the  appoint- 
nient  of  Mr.  G.  W.  Steytler  as  pro- 
visiotbal  liquidator. 

Granted. 


Ex  parte  DU  PLK.ss;is. 

Mr.  W.  P.  Buchanaj)  moved  for  an 
order  authorising  the  passing  of  a  certain 
transfer  of.  property.  All  the  children 
were  majors,  and  had  consented  to  the 
transfer  and  the  sale  of  the  property. 

Maasdorp,  J.,  made  no  order,  as  it 
appeared  certain  minors  might  be  in- 
terested in  case  their  parents  prede- 
ceased the  surviving  testator.  The 
parties  if  advised  could  make  a  further 
applioation,  and  in  that  ease  the  minors 
snould  be  properly  represented. 


SUPREME  COURT 


[  Before  tho  Hon.  Mr.  Justice  Ma abdobp.] 


GENERAL  MOTIONS. 


GOURLAY  V.  BAUMOA&TEN 


'^^•iDec.    i5th. 

Dr.  Rainsford  movtKl  for  an  order, 
calling  on  the  respondent  to  oompleto 
the  transfer  of  certain  letters  patent 
ceded  to  the  applicant,  who  had  ad- 
vanced certain  moneys  to  the  respondent 
to  carry  on  a  lighting  company,  with 
an  acetylene  gas  generator,  on  condi- 
tion that  he  was  to  get  a  cession  of  tho 
patent.  Letters  patent  had  Ix^cn 
granted  to  tho  respondent  in  Pretoria. 

Order  granted,  directing  Baumgarten 
to  execute  transfer  of  the  cession,  with 
the  patent  rights. 


THE  MASTER  V.  DURANDT  8  TRUSTEE. 

Mr.  Nightingale  moved  for  an  order 
on  the  respondent,  who  is  sole  trustee 
in  tho  e«tate,  compelling  him  to  file  a 
liuuidation  account. 

Kesix>ndent  ordered  to  file  the  ac- 
count within  three  months,  and  pay  the 
costs  of  the  application. 


Ill  re  THE  ROYAL  HOTEL  CO.,  LTD. 

Mr.  Rous  moved  for  the  confirmation 
of  the  liquidator's  report.  The  report 
had  lain  for  inspection  for  the  usual 
time,  and  there  was  no  objection.  Coun- 
sel also  asked  for  directions  as  to  how 
the  claims  of  creditors  were  to  bo 
proved,  and  for  an  order  to  make  cer- 
tain payments,  according  to  agreement 
of  16th  June,  1905. 

Report  confirmed,  payments  sanc- 
tioned, and  creditors  to  prove  by  affi- 
davit. 


Ex  parte  VIJELLSTROM. 

Mr.  Lewis  moved  for  the  confirmation 
of  the  sale  of  certain  property  to  tho 
petitioner,  who  was  executor  testamen- 
tary in  the  estate.  There  was  evi- 
dence that  the  sale  was  well  attended, 
and  that  the  price  was  a  fair  and  reason- 
able one. 

Granted. 


Ex  parte  CLA88EN. 

Mr.  Watermeycr  moved  for  an  order 
authorising  the  transfer  of  certain  pro 
perty. 

Gran'ied. 


1010 


'"CAPS  TIMB8"  LAW  RBPOftTA. 


ESTATE  BTBPUAN  V.  PARTRIDGE. 

Mr.  Soarlo  moved,  on  behalf  of  Wil- 
liam A.  Currey  asxl  Ed.  J.  Moore,  aa 
joint  trustees  of  the  estate  of  J.  C.  J. 
Stephan.  for  an  order  authorising  the 
cancellation  of  a  sale,  or  grant  of  leave 
to  them  to  sue  Astley  ('.  Partridge  by 
edictal  citation  for  the  completion  of  the 
sale,  or  alternatively  for  tne  eancella- 
thoroof,  with  an  order,  if  ne^-es-sary,  to 
attach  the  property  regi)?terod  in  the 
name  of  Partridge. 

The  affidant  of  the  applicants  showed 
that  on  October  2,  1903.  Stephan  paaeed 
a  first  mortgage  bond  for  £3.500  of 
Evan  Hopkins  Jones,  of  Mowbray,  and 
a  second  bond  to  Hilda  Roberts  for 
£1,000.  under  which  he  specially  hypo- 
theottted  certain  house  aiiid  grounds  at 
Rosebank,  known  as  Gavenwood.  Par- 
tridge became  suretv  for  the  payment 
of  the  bonds.  Thereafter  Stephan 
became  insolvent,  and  the  property  waa 
submitted  to  public  auction,  and  pur- 
cha/K?d  by  Partridge  for  £3.165.  The 
peti-tioners  were  given  to  understand 
by  Partridge  that  he  had  arranged  with 
tJic  mortgagees,  and  he  would  af^sume 
tlve  liabilities  of  Stephan.  in  settlement 
of  the  purchase  price  of  the  property. 
About  April  1.  Partridge  disappeared. 
For  a  long  time  n^  trace  of  his  where- 
abouts was  discovered,  but  petitioners 
wore  informed  that  he  was  now  in  Lon- 
don, engaged  as  an  employee  in  a  motor- 
car businofw«.  He  had  failed  to  comply 
with  the  conditions  of  sale  on  which  he 

f)urehaFod  fhe  property,  and  had  neg- 
octed  to  take  transfer  of  the  property. 
Petitioners  were  anxious  to  complete 
the  liquidation  of  Stepham's  estate, 
and  consequently  brougnt  this  suit  to 
compel  Partridge  to  take  tramsfer. 
Counsel  explained  that  Partridge  had 
been  eeen  in  London  by  one  person, 
but  hia  present  whereaoouts  were  not 
now  known. 

Leave  waa  granted  to  sue  by  edictal 
citation,  personal  service  to  be  effected 
if  possible,  and  if  not,  an  advertisement 
to  b  •  inserted  in  the  **  Daily  Tele- 
graph." 


cause  why  acme  maintenance  should 
not  be  kept  for  the  children  out  of  the 
interest   was  granted. 


E^  parte  STRADLINQ. 

Mr.  D.  Buchanan  moved  for  an  order 
as  to  the  dealing  with  certain  moneys. 
The  affidavit  stated  that  applicant  was 
the  sole  trustee  in  the  cMtate  of  the  late 
John  Godfrew  Kruger,  There  were  two 
children  of  the  marriage,  both  of  whom 
are  minors.  It  was  his  duty  to  hand 
over  certain  moneys  to  the  wife  of  the  ] 
deceased,  but  he  did  not  feel  prepared  . 
to  do  so  without  an  order  of  the  Court, 
a.s  she  had  been  separated  from  her  hus- 
band and  was  addicted  to  drink.  It 
was  feared  that  if  the  money  was  paid 
over  to  her  that  she  would  not  devote 
it  to  the  interests  of  the  children.  A 
rule  nisi   calling  on   the  wife   to    show 


Ejt  parte  LOOTS. 

Mr.  W.  P.  Buchanan  moved  for  an 
order  authorising  the  passing  of  certain 
transfers.  The  petitioner  and  his  wife, 
Maria  Magdalena  Elizabeth  Loots,  since 
deceased,  made  a  will  leaving  the  joint 
property  to  the  survivor  and  tne  children 
of  the  marriage,  and  as  it  was  necessary 
to  wind  up  the  estate,  an  order  to  trans- 
fer certain  portions  of  the  uroperty  as 
set  down  in  the  will  to  the  cnilcfren. 

Maasdorp.  J.,  sajd  he  thought  it  better 
to  refer  the  matter  to  the  Master  before 
giving  judgment. 


Jir  parte  VBFDT. 

Mr.  De  Waal  moved  for  leave  to  mort- 
gage certain  property  which  was  be- 
queathed to  minors.  It  was  necessary 
that  the  mortgages  should  be  raised  be- 
fore the  transfer  could  be  effected. 

An  order  in  terms  of  the  Master's  re- 
port was  granted. 


A>  fartf  THE  EXECUTORS  IN  THE  ESTATE 
OF  THE  LATE  GRUNDLIMO. 

Mr.  Benjamin  moved  for  leave  to  sell 
certain  nroperty  situate  in  the  district 
of  Oudtsnoorn.  The  Master's  report  was 
favourable. 

Granted. 


HOWARD  V.  HOWARD. 

Mr.  Sutton  moved  on  behalf  of  Ellen 
Mabel  Howard  for  the  appointment  of 
a  curator  nd  litnn  in  the  estate  of  her 
husband,  who  was  at  present  confined  at 
Valkenberg  Asylum. 

[Maasdorp,  J. :  What  is  the  value  of 
the  property.] 

There  is  property  in  Johannesburg 
and  £50  in  caah. 

[Maaadon),  J. :  I  think  you  will  find 
that  there  is  no  necessity  to  take  this 
course  unless  the  property  exceeds 
£600.1 

But  there  are  certain  minor  children. 

[Maasdorp,  J. :  I  think  we  had  better 
get  further  information.] 

Mr.  Sutton :  It  is  to  Ix)  presumed  that 
they   had    legal  advice. 

The  matter  was  adjourned  for  further 
information  as  to  the  value  of  the  estate. 


SANDERS  V.  CAPE  TOWN  TRAMWAYS  CO. 

Mr.    Watermeyer   was   for   the   appli- 
cant and  Sir  H.'Juta,  K.C.,  was  for  the 
respondent.    Mr.    Watermeyer  said  this 
was  the  return  day  of  a  rule  calling  on 


« 


CAPS  TIMES"  LAW  RBPORT8. 


1011 


the  respondents  to  show  cause  why  the 
applicant  should  not  be  allowed  to  sue 
them  171  forma  pauperis  for  £400  dam- 
ages, by  reason  of  an  accident  to  the 
applicant  on  August  1  last.  It  ap- 
peared from  affidavit  that  the  applicant 
was  driving  down  Sir  Lowrv-road  in  a 
cart  with  another  man,  and  owing  to 
the  unlawful  action  of  the  company  in 
putting  the  road  in  a  dangerous  condi- 
tion, the  shaft  of  the  cart  broke,  the 
horse  bolted  and  overturned  the  cart, 
and  both  applicants  were  thrown  out, 
with  the  result  that  the  applicant  sus- 
tained injuries  and  was  connned  to  the 
hospital   for  some  time. 

Sir  H.  Juta  read  replying  affidavits, 
which  set  out  that  every  care  was  taken 
in  relaying  the  blocks. 

Sir       H.       Juta:        The  applicant 

did  not  even  suggest  in  what 
respect  the  company  was  acting 
unlawfully,  nor  did  he*  give  any  details 
of  the  accident,  or  as  to  how  or  where 
it  occurred.  The  applicant  should 
reasonably  give  some  details  of  the 
accident.  The  superintendent  of  the 
Tramway  Co.  saw  the  cart  after  the 
accident,  and  he  stated  that  the  shaft 
was  in  a  rotten  state,  and  mi^ht  have 
broken  at  any  time.  In  submitting  a 
claim,  one  of  the  applicant's  attorneys 
stated  there  was  a  collection  of  rails 
on  the  road,  but  the  superintendent  was 
in  a  position  to  state  that  there  was  no 
such  heap  of  rails.  A  witness  of  the 
action,  in  an  affidavit,  aaid  the  driver 
had  a  large  picture  in  front,  which 
seemed  to  hamper  him  in  the  control 
of  the  horse. 

Masisdorp,  J.,  said  the  petition  was 
very  vague  in  merely  stating  that  the 
damage  was  occasion  by  the  unlawful 
act  of  the  respondents.  The  Court 
could  not  ascertain  from  t^hat  if  a  prima 
facie  case  was  made  out.  He  thought 
it  would  be  possible  to  amend  the  peti- 
tion by  annexing  some  statement  as  to 
what  the  unlawful  action  was,  or 
whether  there  was  neglect.  More  defi- 
nite information  must  bo  tendered  as 
to  what  the  cause  of  action  was.  The 
matter  could  stand  over,  and  bo  men- 
tioned again. 


LIS  V.  CODONI»L  GOVERN-   (         liK)"). 

Undesirable  —  Deportation  —  Act 
47  of  1902,  Sec.  3  (d). 

This  was  an  application  on  notice  of 
motion,  calling  on  the  Colonial  Secretary 
to  show  cause  why  the  applicant  should 
not  bo  relea«od  from  cust(»dy.  The  appli- 
rant  had  IxH^n  arrested  on  entering  the 
I  'olonj  from  th<^  Tran«vaal.  and  it  was 
(lie  iirtiMitidU  of  the  Covernmenfc  to  de- 
port him.  The  applicant's  affidavit  sot 
out  that  on  November  19  he  was  arrest- 
ed ar.d  confined  in  Roeland -street,  await- 
ing cbportation,  at  the  instig^ton  of  the 


<>IHcer  in  charge  of  the  Immigration  De- 
partment. His  arrest,  he  maintained, 
was  wrongful  and  unlawful,  a^  the  Act 
could  not  apply  to  him.  He  was  a 
Kussian  by  nationality,  and  had  been  in 
South  Africa  for  five  years.  For  the 
five  years  he  had  never  departed  from 
Sciubh  Africa,  and  during  the  war  was 
enrolled  as  a  member  of  the  Cape  Town 
Guards,  and  had  a  discharge,  and  his 
conduct  was  exemplary. 

A  lengthy  correspondence  between  Mr. 
Brady  (the  attorney  for  the  respondent) 
and  Mr.  Cousins  (the  officer  in  onarge  of 
the  defendant)  waf>  read. 

The  answering  affidavit  of  Mr.  Cousins 
dated  November  15.  stated  that  in  eon- 
sequence  of  inquiries  he  had  caused  to 
be  made  as  to  the  record  of  the  appli- 
cant, it  appeared  that  he  was  generally 
a  man  of  bad  repute  and  an  a8!>ociate  of 
pimps.  The  validity  of  the  discharge 
from  the  Town  Guard,  produced  by  the 
applicant,  was  questioned.  He  was 
living  on  the  earnings  of  a  prostitute 
in  German  South-West  Africa.  The  ap- 
plicant had  been  charged  with  serious 
crimes  on  several    occasions. 

Regarding  the  question  as  to  whether 
the  applicant  had  been  enrolled 
in  the  Town  Guard,  Mr.  Brand, 
of  the  Defence  Department,  filed 
an  affidavit  to  the  eifect  that  the  only 
Lis  in  the  Town  Guard  in  1901  was  a 
Joseph  Lis — the  applicant  was  named 
Jack  Lis. 

Several  replying  affidavits  made  by 
n on -caom missioned  officers  o£,  the  Loiig- 
stret^t  company  in  which  the  applicant 
was  enrolled,  stated  tliey  recollected  him 
serving  in  the  corps. 

The  api)licant  denied  the  allegations 
contained  in  Mr.  Cousins's  affidavit,  add- 
ing that  he  was  receiving  £30  a  month 
from  a  general  store  in  the  Transvaal. 
Ho  produced  framed  souvenirs  of  the 
regiment  presented  to  each  member  by 
the  officer  commanding  the  regiment  be- 
fore it  was  disbanded,  and  in  which  his 
name  appeared. 

Dr.  Greer  was  for  the  applicant,  ainl 
Mr.      Nip:htingale  was    for   the  Cix>wn. 

Mr.  Nightingale  was  about  to  read 
further  affidavits,   when 

Dr.  Greer  objected  to  further  affidavits 
being  read  without  the  permission  of 
the  Court.  The  first  application  was 
made  in  November,  and  the  case  was 
ordered  to  crtand  over  until  December  12, 
and  it  was  only  on  that  morning  that 
the  affidavits  counsel  was  about  to  read 
were  served  on  them. 

Maasdorp,  J.,  said  the  sole  point  rest- 
ed <m  the  question  of  the  applicant  being 
honourably  discharged  from  the  Town 
(luard. 

Mr.  Nightingale:  We  question  the 
validity  of  that  discharge. 

Mr.  Nightingale  was  about  to  read  the 
affidavit  of  Detective  Head  Constable 
Grant?,  which  wae  testifying  to  oharac- 
tor,  when 


1012 


"CAPS  TIMB8"  LAW  REPO&TB. 


Maa«dorp,  J.,  said  all  the  Court 
waiitod  was  ovidonce  that  tho  applicant 
wa-i  not  in  the  Town  Guard. 

Tlio  afEdavit  of  Captain  Johnsti>no 
stated  that  he  was  adjutant  of  the 
Town  during  tho  time  Lis  waa  alleg'od 
to  have  borvod  in  it.  He  had  bcon  tho 
dittchargo  put  in  by  applicant.  The 
diflchargo  mentioned  no  regimental 
number,  and  tlio  character  was  filled  in 
in  a  diflterent  handwriting  to  tho  rodt 
of  the  discharge,  and  it  was  not  in  ac- 
cordance with  regulations  to  givo  an 
exemplary  character  for  short  eervioe, 
and  it  -would  be  noticed  that  the  char- 
acter was  given  a.s  **  exempt' iry."  To 
tho  best  ot  his  belief,  the  signature  to 
the  discharge  was  not  that  of  Major 
Seale. 

Dr.  Greer  put  in  certificates  grante<l 
to  otlK?r  men  in  the  same  company, 
which  corroNponded  with  that  produced 
by  the  ain>licant. 

Mr.  Nightingale  said  one  of  the  ex- 
emptioiifi  under  the  Act  was  anybody 
who  had  served  in  His  Majesty's 
Forces,  and  had  received  a  good  dis 
charge.  Now,  Lis.  when  first  asked 
denied  having  served  in  a  corps,  but 
then  said  he  served  in  the  Town  Guard. 
It  would  also  be  noticed  that  the  name 
of  Jack  Lis  was  not  on  the  roll,  but 
there  was  a  Joseph  Lii*.  The  Crown 
admitted  that  the  applicant  did  serve 
in  the  corps,  but  after  the  date  ad- 
mitted by  him.  and  he  put  in  no  certi- 
ficate of  his  service  then,  whilst  the 
Act  required  him  to  produce  a  certi- 
ficate for  his  "whole  service. 

VVitlrout  calling  on  Dr.  Greer, 

Maa&dorp,  J..  said  that  this 
matter  could  lie  very  shortly 
disposed  of,  without  oonsidering  mAny 
of  the  points  which  had  been  raii^  in 
the  affidavits  and  arguments.  It  ap- 
peared thttt  the  aipplicant  had  been 
treated  as  a  prohibited  immigrant  by 
the  Immigration  Department,  and  ho 
alleged  that  he  had  been  wrongly  so 
treated,  because  he  held  that  he  came 
under  the  exemption  in  the  Act.  The 
section  he  referred  to  was  sub-section  D 
of  section  3.  The  applicant  produced  a 
discharge,  in  which  his  chaxacter  dur- 
ing service  was  described  as  exemplary. 
It  was  ^suggested  at  first  that  it  was 
impossible  for  him  to  have  a  discharge, 
beoause  he  never  .served  in  the  Volun- 
teer forces  at  all,  and  even  when  that 
was  disposed  of,  another  difficulty  was 
raised,  necause  it  was  said  that  he 
served  for  a  much  longer  period  than 
he  guve  a  certificate  for.  Doubt  wa« 
thrown  on  the  certificate,  to  the  effect 
tha*  it  WAS  forged.  On  the  face  of  it, 
that  certificate  seemed  to  bo  a  genuine 
one,  and  comparing  it  with  the  others, 
it  appeared  to  be  all  right.  The  Ctnirt 
had  therefore  to  accept  it  as  the  dis- 
charffo  given  b;r  Major  Seale  to  the 
applicant,  in  which  he  was  described  as 
a  man  of  exemplary  character.  An 
affidavit  had  *  been  produced  to  the 
efi^ect  that  the  documient  was  not     in 


I 


proper  form,  and  thait  the  military 
authorities  would  have  regarded  it  as  in 
all  respects  an  irregular  discharge, 
which  thev  would  never  accept  as  good, 
but  he  (nis  lordship)  could  not  hold 
that  view,  and  he  arrived  at  the  con- 
clusion that  Jack  Lis  did  serve  in  thv 
Volunteer  forces,  and  that  he  received 
on  the  expiration  of  his  service  a  good 
discharge.  It  was  unnecessary  to  go 
into  the  question  of  domicile,  and  the 
Court  held  that  under  sub-section  D  of 
section  3,  t^  applicant  was  exempted 
from  deportation. 

Dr.  Greer  asked  for  costs  in  tho  case. 
His  client  had  done  all  in  his  power  to 
give  the  Immigration  Officer  every 
chance  of  inspecting  hie  papers,  etc. 

Maasdorp,  J.,  said  tnat,  as  he  had 
said  in  another  case,  the  Court  would 
not  readily  grant  costs  agiufist  the 
authorities  when  they  were  doing  their 
duty.  It  certainly  appeared  that  there 
were  cireumstancos  in  this  case  to  mis- 
lead the  Immigration  Officer,  and  he 
did  not  blame  the  Immigration  Officer 
for  having  arrived  at  the  conclusion  ho 
had.  Tlie  application  for  cost^  would 
be  refused. 


JtCx  parte  LIQUIDATORS,  BEIRA  COLD 
STORAGE  CO. 

Mr.  Burton  moved  for  leave  to  ap- 
pi^al  from  the  judgment  of  the  Supreme 
Court  to  the  Privy  Council. 

Granted. 


BRADLEY  AND  GRAVEN  V.  RANB. 

Mr.  Burton  moved  for  leave  to  sub- 
stitute the  name  of  Mr.  Nathan  or  Mr. 
Charles  do  Villiers,  in  place  of  that  of 
Mr.  Saul  Solomon,  on  a  oommisBion  sit- 
ting in  Johannesburg. 

Granted. 


SUPREME  COURT 


[Before  the  Chief  Justice  (the  Right 
Hon.  Sir  J.  H.  DB  Villibrs,  P.O., 
K.C.M.G.,  LL.D.).] 


CAPE  TOWN  RATEPAYER.^ 
association  and  OTHERS  V 
CAPE  TOWN  TOWN  COUNCIL 


■7       IS 

•^  Dec. 


190». 
18tb. 


Municipal  Council — Administra- 
tive acts  —  Interdict  —  Ille- 
gality—^//ra  viren. 

The  Supreme  Court  will  fwt^ 
by  interdict,  interfere  with  the 


*'CAPB  TIMES"  LAW  REPORTS. 


1013 


adminiiitrative  acts  of  any 
Municipal  Council  unless  such 
acts  are  ultrar  vires  ttr  nfher- 
wisc  illeyal. 


This  was  an  application  on  behalf  of 
tho  Capo  Tofwn  Ratepayers*  Association 
and  others,  calling  on  the  City 
Council  to  show  cause  why  the  rule 
nisi,  interdicting  them  from  signing  the 
Nuttall  contract,  should  not  be  made 
absolute. 

Mr.  Upington  appeared  for  the  peti- 
tioners, and  Mr.  Searle  repr^ented  the 
C*ity  Council. 

Mr.  Upington  said  this  wus  a  matter 
which  was  specially  set  down  for  hear- 
ing for  to-day,  but  it  had  been  veij 
difficult  for  the  petitioners  to  get  their 
case  properly  together  in  the  time  at 
their  disposal.  He  had  an  affidavit  from 
the  attorney  for  the  petitioners. 

[De  Villiers,  C.J. :  Tho  case  must  1k> 
heard  to-day.] 

Mr.  Upington  explained  tliat  this  was 
an  applioation  to  have  a  cerbain  rule 
nisi  which  was  gn*&nted  by  the  Acting 
Chief  Justice  made  absolute.  The  rule 
nis-i  was  returnable  on  the  12th  January, 
1906,  and  called  on  the  ros^pondents  to 
show  why  they  should  not  be  interdicted 
from  signing  a  certain  contract — tlie 
Nuttall  contract. 

De  Villiers,  C.J.,  said  ho  had  read 
the  petition  and  t^  affidavits  of  the 
petitioners  and  tho  respondents. 

Mr.  Upington :  There  are  certain  re- 
plying amdavita  which  have  only  been 
sworn  to  this  morning.  I  do  not  know 
if  copies  have  been  received  on  the  other 
»ide. 

[De  Villiere,  C.  J. :  You  had  better 
read  them.] 

Counsel  then  read  the  affidavit  of  Dr. 
Caporn,  which  waa  as  follows: 

1.  That  I  was  present  at  the  meeting 
of  ratepayers  held  to  authorise  a  loan 
of  £366,000  for  the  paving  of  oertain 
streets. 

2.  That  I  agree  with  end  confirm  the 
statements  of  the  Mayor,  and  of  John 
Bartlett,  late  member  of  the  Town 
Council. 

5.  That  at  the  said  meeting  I  asked 
the  chairman  (then  the  Mayor),  whe- 
ther all  the  streets  ivould  be  paved  in 
accordance  with  a  schedule  then  pro- 
duced, and  in  particular  whether  Jor- 
daan,  Buiten,  and  Orphan  streets,  for 
which  a  sum  of  £6,017  was  set  apart  in 
the  said  schedule,  would  be  eo  payed, 
and  the  answer  was  in  the  affirmative, 
and  was  specially  emphatic  on  the  point. 

4.  The  smd  statesnent  was  corroborated 
both  by  Mr.  Councillor  Matthews,  the 
then  chairman  of  the  Public  Works  and 
Improvements  Committee,  and  by  the 
tftien  City  Engineer,  Mr.  Wynne 
Roberta,  who  produced  the  said  schedule 
for  my  inspection  and  satisfaction. 

5.  Had  the  answer  been  otherwise,   I 


should  not  have  voted  for  the  loan  in 
question,  as  then  the  Council  would 
have  Ijoen  at  liljerty  to  devote  all  the 
money  to  one  particular  part  of  the  oity, 
instead  of  distributing  it  uniformly, 
with  tlic  consequent  benefit  to  all  rate- 
payers. 

The  affidavit  of  Mr.  John  Bartlett, 
builder,  of  CJ^ipe  Town,  wa«  as  follows : 

1.  That  I  was  a  member  of  the  Town 
Council  of  Capo  Town  for  about  five 
years,  and  that  at  the  date  on  which  tho 
ratepayers  were  asked  to  sanction  a 
loan  of  £366,000  for  the  improvement 
of  adopted  atreets,  I  waa  then  a  Coun- 
cillor. 

2.  That  at  a  meeting  of  ratepayers 
called  on  that  date  for  the  purpose  of 
sanctioning  the  said  loan,  I  was  pre- 
sent, and  in  company  with  Councillors 
Liberman  and  Matthews  (chairman  of 
the  Streets  Committee)  and  other  Coun- 
cillors, represented   the  Town  Council. 

3.  At  that  meeting  a  schedule  of  all 
streets  to  bo  paved,  drawn  up  by  the 
City  Engineer,  was  placed  before  the 
meeting,  and  the  said  schedule  set  forth 
in  detail  the  exact  sum  to  be  spent  on 
each  particular  street. 

4.  It  was  distinctly  understood  by  the 
ratepayers  present  at  that  meeting  that 
the  Town  Council  would,  if  the  said 
loan  were  sanctioned,  be  bound  to 
si^nd,  if  necessary,  on  each  street  the 
amount  set  apart  for  that  particular 
strict  in  tlic  schedules  referred  to. 

5.  Thici  was  a  fact  upon  which  ^reat 
.stress  was  laid  by  the  other  Councillors 
and  myself,  and  we  as  Councillors,  de- 
pended on  the  said  schedules,  as  sub- 
mitted to  the  mectincr  in  question,  and 
on  the  promise  that  the  money  would  be 
so  spent,  to  get  the  said  loan  sanctioned 
by  the  ratepayers. 

6.  Owing  to  the  fact  that  on  several 
occasions  prior  to  the  said  date  various 
sums  authorised  by  the  ratepayers  for 
certain  purposes  had  subsequently  been 
diverted  by  the  Council  ito  other  uses 
than  those  underfet<>od  by  ratepayers, 
there  was  a  very  considerable  amount  of 
dissatisfaction  among  the  ratepayers, 
and,  accordingly,  the  understanding  that 
the  money  was  to  be  spent  as  per 
schedule    was  very  explicit. 

[De  Villiers,  C.J.  :  What  was  the  form 

of   the   resolution   passed   at  that   meet- 
ingVl 

Mr.  Upington :  It  was  not  a  resolu- 
tion exactly,   but  a  poll. 

[De  Villiers,  C'.J. :  What  was  the  form 
of  the  meeting?] 

Mr.  Upington  read  the  notice  con- 
vening tho  meeting  of  ratepay- 
ere,  and  explained  that  before  tne 
meeting  was  held,  a  schedule  was 
submitted  to  the  ratop>ayors  personally, 
and  a  poll  was  demanded,  and  a  schedule 
was  published,  which  lay  at  the  office 
of  the  Town  Clerk  for  the  inspection 
of  the  ratepayere. 

[De  Villiers,  C.J. :  It  is  your  con- 
tention,   then,    that    the    laying    of    ♦^^he 


1014 


"  CAPE  TIBfES  "  LAW  RBP0BT8. 


schedule  before  the  rateimyers  prevents 
the  Town  Couucil  from  paying  a  penny 
more  than  is  on  the  schedule?] 

1  catniot  |?o  that  lenpth,  hut  I  say 
they  are  not  entitled,  having  named  cer- 
tain streets  to  the  ratepayern  to  leave 
these  streets   without   beinii;'  done. 

[De  Villiers,  C. J. :  The  question  is, 
are  they  apendinf;^  more  than  they  ought 
to,  on  any  particular  streets?] 

That  will  bo  mentioned  when  the 
Court  ie  asked  to  say  how  much  has 
been  expended  out  of  the  £366,000,  and 
how  much  is  to  be  spent. 

Counsel  then  read  the  affidavit  of 
John  B.  Wheelwright,  member  of  the 
Corporation  of  Accountants,  Fellow  of 
the  Chartered  Institute  of  Secretaries, 
at  one  time  Treasurer  and  Town  Clerk 
of  Woodstock,  presently  carrying  on 
business  as  an  accountant  in  Cape  Town, 
and  Henry  Rowe  Rowe,  member  of  the 
South  African  Society  of  Architects, 
carrying  on  business  in  Cape  Town  as 
an  architect  and  quantity  surveyor.  It 
was  as  follows : 

1.  That,  acting  upon  instructions  from 
the  respondents  attorney,  we  made  cer- 
tain investigation  at  the  Town-House 
in  reference  to  the  matters  dealt  with 
in  the  original  petition,  and  that  the 
result  of  our  investigations  is  as  fol- 
lows : 

2.  We  append  hereto  a  report  signed 
jointly,  deahng  with  the  loan  of  £366,000 
authorised  by  the  ratepayers  in  July, 
1901.  for  the  purposes  of  paving  certam 
adopted  streets  in  Cape  Town,  and  that 
the  facts  and  deductions  contained  there- 
in are  to  the  best  of  our  knowledge  and 
belief  true  and  correct  in  every  respect. 

3.  That  we  hold,  as  a  re»ult  of  our 
investigations,  that  there  is  not  at  the 
present  moment  a  sufficient  balance  of 
the  said  original  capital  sum  available 
for  the  purposes  of  the  contract  which 
it  is  proposed  to  enter  into  with  Messrs. 
Nuttall  and  Co. 

4.  That  the  appellation  *'  adoprted 
streets "  refers  to  streets  which  at  the 
date  of  the  passing  of  the  Munioipal 
Act  of  1893  had  already  been  taken  over, 
and  were  being  maintained  at  the  cost 
of  the  municipality. 

5.  With  reierence  to  the  appellation 
"  unadopted  streets,'*  these  were  streets 
existing  at  the  time  of  the  passing  of 
the  said  Munioipal  Act.  but  which  had 
not  been  formally  taken  over  by  the 
munncipality,  and  for  the  maintenance 
of  which  the  municipality  were  not  re- 
sponsible. 

6.  The  term  "  new  ©treets  "  refers  to 
fitreets  which  have  been  or  may  be  con- 
structed subsequently  to  the  date  of  the 
parsing  of  the  said   Municipal   Act. 

7.  That  your  deponents  append  hereto 
an  abstract  of  the  municipal  accounts 
for  the  year  1904. 

8.  That  on  page  94  of  the  said  ab- 
stract, under  the  expenditure  in  connec- 
tion with  unadopted  streets  loan,  the 
flotation    expenses   are   charged    as    an 


item  againcst  the  same,  and  your  dei>on- 
ents  allege  that  t>his  is  a  proper  course 
to  pursue  in  such  cases. 

9.  That  no  such  item  has  been  charged 
against  the  capital  sum  of  £366,000 
which  was  borrowed  for  the  making  up 
of  adopted  streets. 

10.  That  another  item  which  has  not 
been  charged  against  this  loan  is  tliat 
of  the  percentage  for  departmental  pro- 
vision, and  its  expenditure  in  connec- 
tion therewith,  and  your  cteponents  are 
informed  by  the  City  Treasurer  that 
the  usual  charge  in  tni«  respect  is  one 
of  3  per  -  cent,  on  the  amount  ol  the 
expenditure. 

11.  That  in  the  case  of  other  loans  by 
the  Municipality  of  Cape  Town,  these 
items  for  departmental  provision  and  for 
flotation  expenses,  are,  as  will  appear 
from  the  abstract  of  accounts  referred 
to,   customarily  charged. 

12.  That  with  reference  to  the  state- 
ment by  Cunningham  in  a  replying  affi- 
davat  of  the  respondents,  to  the  e£Fect 
that  £2  will  cover  all  extras,  we  desire 
to  point  out  that  the  average  sum  ex- 
pended on  extras  in  similar  contracts, 
both  with  Nuttall  and  Co.  and  other 
firms,  amounts  to  about  12^  per  cent, 
of  the  Capital  sum  in  each  case. 

13.  I.  the  said  Henry  Rowe  Rowe, 
state  that  in  reference  to  paragraph  27 
of  the  said  Cunningham's  affidavit  as  to 
the  extra  excavation  required  in  order 
to  bring  St.  George's-street  to  a  proper 
level,  that  the  cost  of  the  same,  to- 
gether with  the  expenses  of  removal, 
will  COS!  at  least  £500. 

14.  That  with  reference  to  the  state- 
ment in  paragraph  5  of  C.  B.  Martinis 
affidavit,  to  Hie  effect  that  the  Council 
has  authority  to  expend  upon  works  for 
which  a  loaTi  has  been  authorised  by  the 
ratepayers,  such  additional  sum  over 
and  beyond  the  amount  so  authorised 
any  additional  sum  required  to  complete 
such  works,  we  deny  emphatically  that 
such  is  the  case. 

15.  That  in  corroboration  of  our  state- 
ment, we  beg  to  refer  the  Court  to 
page  101  of  the  said  abstract  of  the 
City  Treasurer's  accounts,  from  which 
will  be  seen  the  variom  sums  required 
for  the  building  of  the  new  City  Hall. 

16.  That  the  original  estimate  for  the 
City  Hall  was  £50,000,  and  authority 
was  obtained  from  the  ratepayere  for 
this  amount,  in  the  usual  manner,  on 
the  19th   November,  1891. 

17.  Subsequently  it  was  found  that 
more  money  would  be  required  to  build 
the  City  Hall,  and  accordingly  on  the 
4th  July,  1901,  the  ratepayers  were 
again  applied  to,  and  sanctioned  a  fur- 
ther sum  of  £100,000. 

18.  Accordingly,  the  statements  con- 
tained in  paragraphs  6  and  7  of  the 
said  Martin's  affidavit,  to  the  effect  that 
it  has  at  all  times  been  the  practice  of 
the  Town  Council  to  complete  a  con- 
tract for  which  an  insufficient  amount 
has  been  sanctioned  by  the  ratepayers 


"CAPB  TIMB8"  LAW  REPORTS. 


1015 


from  moneys  taken  out  of   reyeuue  or 
otheri^rise,   n  utterly  inaccurate. 

19.  That  as  a  result  of  our  investiga- 
tions as  detailed  in  our  report,  we  find 
that  the  balance  av>ailable  for  the  con- 
tract in  question  does  not  exceed 
£58,479. 

20.  That  the  time  at  our  disposal  for 
the  inveetigation  of  the  books  and  ac- 
counts necessary  to  be  gone  into  by 
U3  in  order  to  frame  this  report  was  so 
limited  that  we  are  unable  to  state  that 
this  amount  might  even  have  to  be 
still  considerably  decreased,  on  account 
of  the  omission  by  us  of  the  minor  streets 
as  stated  above,  which  we  have  not  had 
the  necessary  time  to  go  into. 

21.  That  the  particulars  upon  which 
our  report  is  based  wore  taken  from 
the  original  schedule  presently  in  the 
possession  of  the  City  Treasurer,  and 
which  schedule  was  exhibited  at  the 
meeting  of  ratepayers  at  which  the  poll 
was  instructed  to  be  taken. 

'22.  That  the  schedule  xjresented  at  the 
said  meeting,  specified  in  detail  the 
amount  to  be  spent  on  each  street,  and 
upon  the  understanding  that  each 
amount  would  be  so  spent  on  each  par- 
ticular street,  the  ratepayers  passed  the 
said  loan. 

23.  That  deponents  desire  to  point  out 
that  in  the  statement  by  Thorpe,  the 
Acting  Treasurer  during  Mr.  Martin's 
absence,  the  said  Thorpe  takes  the 
same  view  as  your  deponents  and  ad- 
mits that  the  sum  of  £97,843  was  speci- 
ally authorised  by  the  ratepayers  for  the 
paving  of  the  six  streets  in  question. 

24.  That  your  deponents  desire  to  ex- 
press their  regret  that  owing  to  the  lack 
of  time  at  their  disposal,  and  owin^  to 
the  involved  nature  of  the  investiga- 
tions they  have  not  been  able  to  place 
as  full  and  detailed  a  report  before  this 
Court  as  they  would  otherwise  have 
done. 

The  following  is  the  report  referred 
to: 

The  original  estimate  was  £425.000; 
from  this  deduct  £59,000.  Total,  £366,000. 
This  was  the  amount  the  ratepayers  were 
asked  to  grant,  as  £20,000  had  been 
granted  on  a  separate  loan  for  paving 
and  £39,770  previously,  put  down  for 
Dock-road   was   withdrawn. 

The  method  by  which  the  deduction  of 
£20,000  is  dealt  with  is  apparently  by 
transferring  the  £10,000  of  Section  4  for 
lanes  (or  the  greater  part  thereof)  to  the 
unadopted  streets  account  and  striking 
out  contingencies  £9,144,  leaving  balance 
of  £405,866  on  original  estimates.  From 
this  deduct  the  £39,770,  leaving  £366,086 
and  the  ratepayers  were  asked  to  sanc- 
tion a  loan  of  £366,000,  which  was  grant- 
ed. 

Section  1.— Streets  requiring  immedi- 
ate attention,  £227,880;  less  deduction 
for  Dock-road,  £39,770— Total,  £188,110. 

Section  2.— Streets  requiring  attention 
within  five  years,  £140,058. 


Section  3.— Streets  not  urgent,  £37,869 
—Total,  £366,037. 

T\m  loan,  therefore,  provides  for  the 
.str(»otH  in  the  three  sections,  excepting 
the  small  amount  of  £37,  but  there  is  no 
allowance  for  contingencies  whatever. 

For  the  six  streets  it  is  now  proposed 
to  pave  at  a  cost  of  some  £100,000,  the 
following  amounts  were  placed,  viz., 
Long-street,  £30,215 ;  Plein-street, 
£9,150;  Darling-street,  £13,243;  Adder- 
ley-street,  £26,441;  St.  George's-street, 
£11,062;  Parliament-street,  £7,723— 
Total,  £97,834.  But  of  this  has  already 
been  expended  the  following  amounts 
to  31-10'05: 

Long-street,  £2,081  16s.  8d. ;  Plein- 
street,  £2,799  Is.  3d. ;  Darling-street, 
£1,805  Is.  5d. ;  Adderley-street,  £4,281 
8s.  lOd. ;  St.  George's-street,  £2,678  lis. 
6d. ;  Parliament-street,  £285  6s.  lOd.— 
Total,   £13,931  6s.   6d. 

Therefore,  unless  the  other  streets  to 
be  provided  for  are  to  be  robbed,  or  un- 
less they  have  all  been  completed  and 
at  considerably  under  estimated  cost, 
only  £83,902  13s.  6d.  was  available  for 
these  streets  on  October  31  last,  since 
when  amounts  have  been  spent  which 
would  further  reduce  this  balance.  These 
amounts,  however,  have  not  yet  passed 
through  the  City  Treasurer's  books.  Ac- 
cording to  the  books  of  the 
council,  the  position  of  the  £366,000 
is  as  follows :  Expended  to  31st  Octo- 
ber, 1905  (accurate),  £238,380  ISs. ;  ex- 
pended to  31st  November  (not  yet  final- 
ly verified),  £5,304  7s.  9d. ;  total, 
£243,685  Os.  9d. 

Add  for  transfer  from  unadopted  to 
adopted  account,  information  supplied 
by  City  Treasurer,  not  yet  passed 
through  books,  £2,363  Ss.  4d. 

Retained  money  which  has  to  be  pwiid 
to  Nuttall  for  work  already  done  (the 
tctal  retention  money  is  some  £8,477 
18s.  4d.,  of  which  one-fourth  may  fairly 
be  accounted  afi  on  adopted  streets), 
£2,119  98.  7d. ;   total,  £248.167  15s.  8d. 

Thus  only  leaving  £117,833  available 
for  the  oonipletion  of  all  the  unfinished 
streets,  and  also  providing  funds  for  the 
lar^e  proi)osed  paving  contract,  which, 
it  IS  admitted,  will  not  cost  less  than 
£100,000.  That  a  very  large  amount 
of  work  still  remains  to  be  done  is  very 
obvious,  as  a  rapid  inspection  shows  13 
streets,  estimated  to  cost  £3,359,  not 
touched ;  two  streets,  estimated  to  cost 
£428,  only  had  under  £1  each  spent  on 
them.  Beach -road,  estimated  to  cost 
£10,846,  remains  unfinished,  having  so 
far  only  had  £3,173  spent  on  it;  and 
Platteklip-road,  which  waa  (including 
cul verting  sluit)  estimated  to  cost 
£5,093,  has  only  had  £2  spent  on  it. 

In  section  1  of  streets  requiring  in 
1901  immediate  attention  according  to 
the  estimates,  eight  important  streets, 
I  for  which  £26,996  was  authorised,  have 
only  been  partially  attended  to,  and 
only  £10,132  has  been  expended  there- 
on up  to  31st  October,  1903. 


1016 


"CAPS  TDfBS"  LAW  BBPCNRTB. 


Ill  sf'ction  2  of  strecte  requirinp^  at- 
t<'iition  within  live  years  from  1901, 
thoro  an*  13  important  Htrpete,  for 
wliioh  £42.378  was  authorisfH],  and 
whicii  remain  uncomplutod,  with  only 
£20,579  «p<Mit  on  thom. 

In  section  3,  as  tho  6itre<>tH  arc  de- 
clared not  immediately  in  need  of  at- 
tention, I  would  <>nly  refer  to  throe 
«*treets.  for  which  £6.966  is  authorised, 
and  only  £2,825  spent.  Of  those  streets, 
the  contractors  nave  boon  called  ufM>n 
to  deal  with  two,  so  the  work  is  ap- 
parently requisite,  and  streets  in  this 
section  cannot  he   hung  up   indefinit<^lv 

So  far,  therefore,  from  the  £117.853 
previously  shown  boin^  available  for 
the  new  pavinpf  contnaot,  the  following 
deductions  have  to  be  made  to  provide 
for  the  other  work  for  which  the  loan 
waa  granted :  For  13  streets  not 
touched,  £3.359;  for  two  <itrcets  prac- 
tically untouched.  £426;  Beach-road 
to  complete.  £7,674;  Platteklip-road. 
£5,091 ;  section  1,  to  complete  eight 
streets,  £16,864 ;  section  2,  to  com- 
plete 13  streets,  £21.799;  section  3,  io 
complete  three  streets.  £4.141;  total, 
£59.354. 

Thus,  if  the  estimate  of  amounts  re- 
Guired  for  the  streets  to  be  made  under 
tne  loan  as  authorised  be  anything  like 
accurate,  not  only  will  nothing  like 
£100,000  be  found  available  for  the  next 
contract,  but  actually  the  amount  of 
£83,902  13s.  6d.,  which  eptancfe  to  the 
credit  of  the  six  streets  in  question 
would  really  be  found  deiiciont,  owing 
to  over-expenditure  in  manv  cases  on 
other  streets,  as  for  example :  Items 
of  Estimate  Exceeded  (no  amount  under 
£100). — Section  1 :  Sir  Lowry-road, 
£541;  Broda-streot,  £1,146;  Prince- 
street,  £160;  Grey's  Pass,  £278;  Park- 
road,  £420;  Burg-«treet,  £419; 
Bouquet-street,  £146 ;  Liddle-streot, 
£264;  Jordaan -street,  £1.338;  De 
Lorentz-street,  £554 ;  Schoonder-street. 
£773;  Union-street,  £518;  Vrede-street, 
£784;  De  VilHers-stroet.  £139;  Drury- 
lane.  £106;  Harrington-street,  £348; 
Primrose  street,  £105;  Stuckeris-strect, 
£2,952;  Coburn-street.  £100;  Cour- 
ville-street,  £103;  Jarvis-street.  £127; 
Combrinck-<«treet.  £368;  Bennet-street. 
£382;  Pontac-street.  £757;  total, 
£12.828. 

This  does  not  represent  the  whole 
amount  of  estimates*  exceeds,  as  thoro 
are  many  amounts  under  £100. 

In  adaition  to  this  also,  £229  of  work 
has  been  done  on  lanes  out  of  the  adopt- 
ed street  contract,  whereas  the  item  of 
lanes  was  transferred  to  unadopted 
streets'  contract,  to  which  account  the 
other  expenditure  on  lanes,  viz.,  some 
£6.000,  has  been  debited. 

There  are  other  items  of  expenditure 
which  do  not  appear  to  have  been  put 
agannst  the  loan,  and  which  would 
render  still  more  hopeless  the  pos- 
sibility of  finding  anything  like 
£100,000  for  another  contract,  namely, 
the  expenses  of  loan  flotation  and  office 


and  supervision  expenses  in  connection 
with  this  work.  Loan  flotation  was 
8onie  4  \ior  cent,  on  the  amount  of  the 
loan,  but  has  l)een  charged  to  revenue. 
(Flotation  expenses  arc  charged  against 
unadopted  streets'  loanSp  but  not  against 
adoi)ted   streets'   loans.)  Suiiervision 

and  office  and  departmental  expenses 
must  also  be  added,  a  further  3  per  cent, 
on  work  done. 

It  must  therefore  be  obvious  thai. 
unloM  every  other  aitreet  provided  for 
or  meant  to  be  provided  for  by  the 
ratepayers  in  granting  the  loan,  bo 
thrown  aside  in  favour  of  the  six 
streets  which  it  is  now  proposed  to  pave, 
there  is  not  and  carniot  be  an3rtliing 
Hke  £100,000  available  for  the  contract, 
and  if  the  other  streets  be  completed, 
the  undeor-estim'ated  amounts  and  extra 
work  done  would  absolutely  encroach  on 
the  £83,902  ISs.  6d.  at  present  standing 
to  the  credit  of  these  street*,  to  a  very 
considerable  extent. 

[De  Villiers,  C.J. :  Supposing  certain 
of  the  other  streets  could  be  done  at  a 
less  oost,  can  they  not  do  it?] 

Of  course,  the  Town  Council  will 
have  to  reduce  the  cost  of  other  streets 
if  they  pay  £86,000  for  Adderley-street. 

[D©  Villiers,  C.J. :  I  see  there  is 
£100,000  of  the  loan  still  left.] 

As  far  as  we  can  ascertain 
there  is  £117.833,  but  our  con- 
tention is  that  that  amount  is  not  avail- 
able, because  certain  streets  have  to  be 
repaired,  according  to  the  schedule  sub- 
mitted to  the  ratepayers,  and  there  will 
not  be  sufficient  money  to  pay  this  con- 
tract after   that  is  done. 

Mr.  Searle  said  he  had  a  short  affi- 
davit from  the  Town  Clerk  in  which  he 
pointed  out  that  for  several  days  after 
the  nuatter  was  before  the  Court  fixing 
the  dote  for  trial,  nothing  w€»  done  at 
all  by  the  applicants  in  the  matter. 

The  affidavit  was  in  the  following 
terms:  (1)  On  Friday,  the  16th  instant. 
Mr.  J.  M.  P.  Munrhead  and  Mr.  Dou- 
glas, accountants,  called  at  my  office 
with  the  object  of  seeing  certadn  books 
relating  to  the  loan  transactions  of  t^ 
Town  Council  for  the  expenditure  of 
moneys  on  streets.  AH  tlie  information 
in  nay  possession  and  in  the  possesion  of 
the  City  Treasurer  which  was  asked  for 
was  given  to  them,  and  a  considerable 
amount  of  time  of  the  Treasurer  and 
myself  was  taken  up  for  this  purpose. 
(2)  On  Saturday,  the  16th  instant,  Mr. 
J.  B.  Wheelwright  and  Mr.  Howe 
Rowe  called  for  the  purpose  of  obtain- 
ing the  same  information,  which  was 
afforded  to  them  again  at  considerable 
lengtih  by  myself  and  the  City  Treasur- 
er. (3)  The  said  gentlemen  were  the 
only  persons  who  have  attended  at  the 
City  liall  for  the  purpose  of  examining 
the  books  and  accounts  of  the  Council 
with  reference  to  the  Nuttall  contract 
now  in  question  since  the  rule  nisi  wai 
granted. 


«OAPB  TIMB8"  LAW  HBPOBTB. 


1017 


-  [De  Villiers,  C.J. :    You  have  applied 
for  the  discharge  <A  the  order?] 

Mr.  Searle:  We  applied  on  Monday 
last  to  the  Court  to  nx  a  date. 

(De  Villiere,  C.J. :  I  will  hear  you-l 
Mr.  Searle  said  he  would  submit  that 
i.i  this  matter  there  waa  now  really  no 
legal  ground  on  which  this  rule  oould 
be  oonfirmad.  He  took  it  that  the 
principle  was  dear  that  unless  the  ap- 
plicants oould  make  out  that  in  some 
way  the  Town  Council  had  acted  ultra 
Txrefy  or  outside  the  powers  conferred 
by  the  Aot  of  Parliament,  they  could 
not  sudoeed.  The  Court  oould  not  in- 
quire into  matters  of  administration  of 
che  Council,  and  even  matters  such  a£ 
the  expediency  of  the  Council  in  enter- 
ing into  a  cooflict 

[De  Villiers,  C.J. :  We  can  take  it 
for  granted  that  the  only  two  tangiUe 
points  as  far  as  I  see  are,  first,  that 
the  contract  ie  not  in  terms  of  the  ten- 
der, and  the  other  seems  to  be  that 
there  ia  no  resolution  which  authorises 
this  particular  expenditure.] 

Mr.  Searle:  With  regard  to  the  au- 
tbonsing  of  the  loan,  the  position  I  take 
up^  is  this,  that  there  was  nothing 
which  bound  the  Town  Council  to  spend 
a  particular  sum  of  money  on  any  par- 
ticular street. 

Continuing,  counsel  contended  that 
the  petitioners  had  not  shown  that  any 
particular  sum  of  money  had  been  allo- 
cated to  any  particular  street  so  as  to 
bind  the  Town  Council  to  carry  out  the 
repairs  on  that  street  to  the  extent  of 
tlK)  sum  voted.  Sections  104  and  105 
provided  the  law  by  which  these  loans 
could  be  raised,  and  it  would  be  seen 
on  reference  to  the  notice  oalling  the 
meeting  that  no  particular  streets  were 
named.  The  Town  Council  had  not  ex- 
ceeded the  total  sum  provided.  The 
Town  Council  had  certain  rating  powers 
under  which  it  oould  levy  a  rate  of  4d. 
in  the  £,  and  it  would  be  admitted  that 
the  rates  did  not  nearly  come  up  to  that 
amount  at  present.  If  the  Town 
Council  could  get  money  from  any 
other  source  to  carry  out  ita  contract 
there  was  nothing  in  the  Aot  to  prevent 
it  using  tjhe  money.  If  they  had  any 
money  from  the  rates  they  oould  use 
it  on  this  work.  They  had  the  neces- 
sary power  to  make  up  the  streets,  and 
the  reason  why  they  went  to 
the  ratepayers  was  to  get  the 
power  to  enable  them  to  raise  the 
extra  amount.  The  mere  fact  of  their 
getting  this  £330,000  did  not  prevent 
them  using  other  money  for  the  work. 
He  contended  there  was  nothing  an  the 
Act  to  justify  the  attitude  adopted 
by  the  petitioners.  The  affidavits  of 
the  officials,  who  were  all  men  of  ex- 
perience, were  to  the  effect  that  there 
was  sufficient  money  available  for  this 
contract  and  the  streets.  Couofiel  con- 
tended tlutt  the  facts  alleged  by  the 
petittonezB  were  not  established. 

t2 


[De  Villiers,  C.J. :  As  to  the  other 
points  raised  by  the  petition,  I  would 
like  to  hear  Mr.  Upington.J 

Mr.  Upington  said  the  position  had 
been  considerably  simplified  since  the 
case  lacit  came  before  the  Court,  and  he 
was  not  prepared  to  support  all  the 
positions  taken  up  by  tiie  petitioners, 
but  he  did  contend  that  there  were  two 
grounds  on  which  the  Court  should  grant 
the  interdict  sought.  Tbs  first  was  that 
the  draft  contract  which  it  was  proposed 
to  sign  differed  in  an  important  detail 
from  the  tender  as  accepted  by  the 
Council.  The  tender  stated  that  the 
party  agreed  to  complete  the  work  in 
18  mont^,  and  they  guaranteed  that 
the  paving  would  carry  the  traffic  for 
a  period  of  three  years,  and  the  tender- 
ers (Messrs.  Nuttali)  added  a  memo.,  in 
which  they  undertook  to  maintain  the 
paving  for  a  further  period  of  three 
years,  depositing  with  the  Council 
£10,000  in  Cape  Town  Corporation  Mun- 
icipal Stock.  The  draft  contract  whaofa 
it  was  proposed  to  sign  did  not  contain 
the  latter  portion  of  the  contract.  He 
contended  that  the  guarantee  in  the 
letter  was  in  addition  to  the  guarantee 
embodied  in  the  printed  form,  and  it 
should  be  included  in  the  draft  con- 
tract. 

[De  Villiers,  C, J. :  Do  you  hold  that 
the  contract  should  mention  four  and  a 
half  years?] 

No,  the  18  months  is  for  the  comple- 
tion of  the  contract. 

[De  Villiers,  C.J. :  Then  what  point 
do  you  raise?] 

\Ve  say  thait  after  the  period  of  main- 
tenance has  expired,  they,  in  their  letter, 
undertake  to  guarantee  the  pavement 
for  a  further  period  of  three  years. 

[De  Villiers,  C.J. :  What  period  do 
you  say  the  contract  covers? 

Six  years,  according  to  their  letter. 
It  would  be  seen  that  the  tenderers  had 
actually  changed  the  draft  contract  to 
that  effect. 

[De  Villiers,  C.J. :  What  is  the  period 
of  maintenance?  Where  is  it  mention- 
ed?! 

Mr.  Upington:  It  is  mentioned  in  the 
printed  document. 

[^De  Villiers,  C.J. :  Surely  that  means 
only  three  years'  guarantee?] 

We  contend  that  it  is  not 
the  same  thing  to  guarantee  the 
maintenance  of  a  thing  as  to  guarantee 
it  as  a  perfected  thing.  Counsel  (con- 
tinuing) said  the  next  point  was  as  to 
whether  the  Council  were  justified  in 
undertaking  this  paving  when  the 
streets  for  which  the  money  had  been 
allocated  had  not  yet  been  done.  He 
contended  that  to  leave  artreets  that 
had  been  mentioned  in  the  schedule 
would  be  illegal.  If  the  Council  gave 
a  specific  answer  to  a  question  as  to 
the  streets  they  intended  doing,  and  did 
not  do  those  streets,  they  would  be  act- 
ing illegally.  The  Town  Conneil  cer- 
tainly oad  ihe  right  to  levy  a  rate  of 


} 


1016 


"CAPS  TDfSB"  LAW  RBPORTB. 


fourpeiioe  in  the  £,  but  that  had  to  be 
arranged  at  the  beginning  of  the  year, 
and  no  amount  eoukl  be  put  ou  the 
etiimatea  for  a  year  after  thoae  esti- 
mates had  been  agreed  to.  Therefore, 
if  tbis  work  was  to  be  paid  for  out  of 
the  rates,  it  ehouid  be  ordered  to  stand 
over  until  the  estimates  for  next  year 
came  up  for  consideration.  In  conclu- 
sion, he  contended  that  the  petitioners 
were  entitled  to  have  the  rule  made 
absolute,  and  to  prevent  this  contract 
being  signed  until  the  Council  could 
prove  that  they  were  authorised  to  in- 
cur this  verr  serious  liability  without 
having  any  funds  at  their  disposal. 

De  Villiers,  C.J. :  It  appears 
that  the  learned  Judge,  who  had 
heard  the  previous  applications  in 
this  case,  had  a  perfectly  open  mind  on 
the  matter,  and  that  he  only  granted 
the  rule  for  the  purpose  of  enabling 
the  Town  Council  to  lay  before  the 
Court  its  version  of  the  dispute  between 
the  Council  and  a  number  of  the  rate- 
payers of  Cape  Town.  The  question 
does  not  come  before  the  Court  oy  way 
of  an  appeal,  but  on  the  information 
originallv  given  by  the  at)plioant8,  and 
the  further  information  given  by  the 
Town  Council.  The  one  point  that  is 
perfectly  clear  is  that  the  Court  has  no 
jurisdict;Dn  to  interfere  with  a  purely 
administrative  concern  of  the  Town 
Council.  If  it  were  in  the  power  of  a 
minority  of  councillors  who  objected  to  a 
resolution  of  the  Council  to  come  before 
this  Court  and  ask  it  to  rescind  that  re- 
solution this  Court  would  have  much 
more  on  its  hands  than  it  could  possibly 
attend  to.  The  Councillors  have  pre- 
sumably been  elected  by  reason  of  the 
confidence  placed  in  them  by  the  rate- 
payers, and  it  is  not  the  business  of  this 
Court  to  withhold  its  confidence  merelv 
because  it  might  not  approve  of  the  ad- 
ministrative conduct  of  a  majority  of  the 
Council.  The  only  ground  upon  which 
thifl  ('ourt  can  be  asked  to  interfere  is 
illegality  in  the  conduct  of  the  Council, 
or  any  such  abuse  of  its  powers  as 
amounts  to  illegality.  It  would 
appear  that  the  decision  to  accept  the 
tender  of  Nuttall  and  Co.  was  arrived 
at  by  the  majority  of  the  Council.  Sub- 
sequently attempts  were  made  to  reverse 
the       decision.  One       member       of 

the  Town  Council  gave  notice 
that  he  would  move  to  rescind  the  reso- 
lution, but  w^en  the  time  came  for  his 
motion  to  be  put  he  was  absent.  He 
explained  his  absence;  he  had  to  go 
elsewhere.  -  A.nd  so  the  matter  did  not 
come  on.  It  was  postponed.  When  it 
came  on  agi*in  the  Town  Councillor  was 
not  in  his  place  to  move  his  resolution. 
Therefore,  the  Town  Clerk,  one  would 
suppose,  ae  any  other  Town  Clerk  would 
do,  gave  notice  to  the  tenderers  that 
their  tender  had  been  accepted.  The 
tenderers  expected  to  have  an  answer 
within  a  reasonable  time.  They  could 
not  wait  till  the  squabbles  of  the  Town 


Council  were  finished.  They  expected 
an  answer  withdn  a  reasonable  time,  and 
if  the  Town  Clerk  had  waited  until  the 
question  had  again  come  on  before,  the 
Council  as  to  whether  this  resolution 
was  to  be  rescinded  or  not,  probably 
the  resolution  would  not  have  been 
brou^t  on  up  to  the  present  time,  and 
it  might  even  be  next  year  before  thai 
member  of  the  Town  Council  would 
move  his  resolution,  and  tn  the  mean- 
while the  whole  maitter  would  be  sus- 
pended the  Town  Council  oookl  not 
sign  the  contract,  and  the  tenderer 
would  have  to  wait.  Now,  the  only 
question  that  arises  is,  wss  there  any 
illegality  in  accepting  the  tender?  1 
fail  to  see  where  the  illegality  was. 
Then  it  is  said  that  there  is  no 
money  to  pay  for  the  work,  but  it  ap- 
pears that  the  ratepayers  had  authoris- 
ed a  loan  of  £366,000  for  certain  works. 
The  whole  of  that  £366.000  has  not  been 
expended,  and  there  is  money  avail- 
able for  the  purpose  of  the  particular 
work  which  is  now  in  question.  Then 
it  is  said  that  this  would  necessitate 
other  work  which  had  also  been  author- 
ised not  being  carried  out.  That  might 
be,  or  it  might  not  be,  so;  but  if  that 
work  could  not  be  carried  out,  then 
probably  the  Council  would  have  to  levy 
a  rate  for  the  purpose.  The  Town 
Council  has  had  specific  authority  from 
the  ratepayers  to  raise  a  sum  of  £366,000 
(which  should  be  expended  upon  certain 
works),  and  until  the  whole  of  that 
amount  haa  been  expended,  or  until  so 
much  has  been  expended  as 
would  not  leave  a  sufficient 
sum  of  £85,000  for  the  purpose  of  this 
contract,  it  is  impossible  for  the  Court 
to  say  that  the  Town  Council  has  acted 
fdtra  vires.  This  applicataon,  therefore, 
seems  to  me  to  rest  upon  no  found- 
ation whatever.  Then  comes  the  further 
point  whether  the  contract  which 
the  Town  Council  intended  to  sign 
was       in       conformity  with  the 

form  of  the  tender.  Well,  the  form 
of  the  tender  must  ^  be  read  by  the 
light  of  the  notice  given  by  the  Town 
Council  inviting  tenders,  and  tn  that 
notice  it  was  said:  "If  the  party  ten- 
dering was  prepared  to  guarantee  that 
the  pavement  would  carry  the  traffic 
and  remain  in  condition  for  a  number 
of  years — ^the  period  to  be  specified." 
But  in  the  tender  itself,  which  was  an- 
nexed to  this  printed  form,  nothing  was 
said  about  the  guarantee.  There  was 
simply  a  tender  to  do  this  work  within 
a  certain  time,  and  to  bave  it  complet- 
ed wnthin  18  months.  Then  there  was 
a  letter  which  accompanied  the  tender, 
and  which  stated  that  the  paving  was 
not  in  any  way  an  experiment,  and  to 
show  their  confidence  in  it  they  were 
prepared  to  maintain  it  for  a  period  of 
three  years,  without  charge,  ana  to  leave 
as  security  £10,000  on  Ciipe  Town  Oor 
poration  Municapal  stock,  the  interest 
to  accrue  to  tibem.      The  oontrao^  some- 


"GAPB  TIMB8"  LAW  BBFOBTB. 


1019 


what  expanded  the  tender,  and  a  sub- 
stantial sum  waa  offered  to  be  deposited 
with  the  Corporation  as  a  guarantee, 
not  only  for  the  satisfactory  mainteik* 
anoe  for  a  term  of  three  years,  but  a^ 
a  further  guarantee  for  the  efficiency  of 
the  pavement.  Here,  there  is  an  abso- 
lute guarantee  for  lAie  efficiency  of  the 
pavementw  No  doubt  there  are  other 
reasons  why  the  efficiency  would  have 
to  be  decided  soon,  because  the  Town 
Clerk  would  have  to  give  his  certificate, 
and  he  could  not  withhold  that  for  an 
indefinite  time.  After  a  careful  reading 
of  the  tender,  and  the  notice  calling  for 
the  tender,  and  the  contract  which  was 
tendered.  I  am  unable  to  say  that  there 
ie  suoh  a  discrepancy  between  the  con- 
tract and  the  tender  as  to  justify  the 
Court  in  making  the  rule  absolute.  For 
those  reasons  I  think  that  the  rule  al- 
ready granted  should  be  discharged, 
with  costs. 

[Applicants'  Attorney:  A.  J.  MeCal- 
lum.  Respondents' :  Fairbridge,  Ar- 
derne,  and  Lawton.] 


Bx  parte  DUSssAu's  estate,  liquida- 
tors OF. 

Mr.  Douglas  Buchanan  moved,  on  be- 
half of  the  liquidators  in  the  estate  of  | 
Valentin  Dusseau,  for  an  order  calling  on  ' 
the  respondent  Hartman  to  show  cause, 
on  January  12,  why  leave  should 
not  be  granted  to  issue  a  writ  of  execu- 
tion on  nis  goods  and  chattels  to  satisfy 
a  debt  of  £50  o>n  certain  shares  in  the 
liquidated  company. 

Dr.  Greer  (for  the  respondent)  pointed 
out  that  the  respondent  was  out  of  the 
Colony,  and  it  was  not  known  when 
he  would  return.  It  was  quite  clear 
that  he  was  liable  for  the  money,  but 
the  question  was,  whether  his  property^ 
should  be  attached  or  should  the  liqui- 
dators be  forced  ito  waiit  for  a  certain 
time? 

De  Villiers,  C.J.,  granted  the  order  as 
prayed. 


SUPREME  COURT 


[  Before  the  Hon.  Mr.  Justice  Maasdorp.] 


GOW    v.  DILIZANB   AND 
OTHERS. 


(       1905. 
IDec.   19th. 

This  WHS  an  application  to  have  a  cer- 
tain rule  nisi  made  absolute. 

The  rule  nisi  had  been  grant- 
ed on  the  9th  November  calling 
on  the  respondents  *o  show  cause  why 


an  interdict  preventinj^  them  from  in- 
terfering with  the  applicants^  use  of  the 
A.M.E.  Church  at  West  London  should 
not  be  granted.  It  appeared  that  the 
former  pastor  of  the  church,  the  Rev. 
Spaun,  was  expelled,  and  the  Rev. 
Morrison  appointed  in  his  place. 

The  respondents,  as  stewards  of  the 
church,  refused  to  recognise  the  Rev. 
Morrison  or  to  hand  over  the 
ke^s  of  the  church.  The  ap- 
plicant alleged  that  he  was  duly  ap- 
pointed Superintendent-General  to  the 
A.M.E.  Church,  and  when  he  went  down 
to  West  London  for  the  purpose  of 
inducting  the  Rev.  Morrison,  the  re- 
spondents refused  him  access  to  the 
church.  Mr.  Burton  now  appeared  to 
show  cause,  and  read  an  affidavit  which 
set  out  there  was  no  such  office  as  that 
of  general  superintendent,  and  that 
office  had  been  illegalljr  created  for  the 
applicant  at  a  wrongly-instituted  confer- 
ence. Neither  the  Bishops  nor  a  general 
conference  had  any  right  over  the  church 
property.  According  to  the  A.M.E. 
Church  discipline  the  legal  trustees  of 
each  church  were  responsible  for  the 
management  of  all  the  temporal  concerns 
of  the  church  property,  wnich  was  vest- 
ed in  the  board  of  trustees  of  the 
A.M.E.  Church  in  America,  and  that 
board  alone  could  obtain  an  order  for 
the  handing  over  of  the  church*  The 
property  was  not  under  the  jurisdiction 
of  the  Cape  Colony  Conference. 

It  was  denied  that  the  Rev.  Spaun 
was  expelled  by  a  properly  constituted 
conference,  and  the  respondents  held 
that  he  was  still  their  duly  appointed 
pastor.  The  property  was  registered 
in  the  name  of  the  A.M.E.  Church,  and 
no  persons  were  mentioned. 

Mr.  P.  S.  T.  Jones  was  for  the  ap- 
plicant and  Mr.  Burton  appeared  for 
the  respondents. 

Maasdorp,  J. :  The  ordinary  pro- 
cess of  the  Court  by  means  of 
which  property  can  be  recovered 
is  by  way  of  action.  Sometimes 
in  cases  of  emergency  or  where 
matters  of  fact  are  not  in  dispute,  the 
Court  will  deal  with  the  matter  by  way 
of  motion,  and  an  interdict  is  granted 
where  a  clear  right  has  been  establish- 
ed 

In  this  case  the  church  in  (question 
belongs,  according  to  the  Registry  of 
Deeds,  to  the  African  Methodist  Epis- 
copal Church,  and  it  is  clear  that  there 
is  no  one  now  before  the  Court  who 
holds  any  special  authority  from  that 
body  to  appear  before  the -Court  and 
assert  these  rights.  That  church  was 
represented  by  the  Bishop  before  he  left. 
The  Bishop  has  gone  to  America,  and 
in  his  absence  he  left  the  keys  in  the 
hands  of  persons  called  trustees.  The 
only  persons  who  are  now  in  the  Colony 
who  represent  the  interest  of  the  par- 
ties are  the  trustees  on  the  one  hand  and 
the  applicant,  who  claims  to  have  been 
duly  appointed  4  minister  of  the  chureD, 


1090 


M 


OAPB  TIMB"  LAW  BVOBIB. 


The  dispute  between  thorn  as  to  who  is 
entitled  to  the  key  should  be  readily 
settled  by  reference  to  headquarters,  and 
that  would  be  the  proper  way  lo  set- 
tle it,  instead  of  going  in  for  litiga^ 
tion.  The  trustees  were  in  qu'ct  pcs- 
session  of  the  key,  which  represents  the 
possession  of  the  church,  and  the  ap- 
plication which  was  made  by  a  person 
who  seemed  to  have  undoubtedly  author- 
ity as  minister  appeared  to  be  one  of 
urgency.  It  now  appears  that  his  au- 
thority is  disputed,  and  under  the  cir- 
cumstances the  Court  would  not  p^f  haps 
in  the  first  instance  have  granted  this  in- 
terdict if  it  had  appeared  that  there  was 
a  matter  of  serious  dispute  between  the 
parties.  Under  the  circumstaooes,  the 
parties  must  be  put  back  into  the  posi- 
tion they  occupied  before  the  rule  nisi 
was  granted. 

The  rule  will  be  discharged  and  the 
question  of  costs  can  stand  over. 


MCKALLT  V.  ESTATE  WIGGBTT, 

Preferent  chiim — Last  illness. 

This  was  an  application  on  notioe  of 
motion,  calling  on  the  trustee  in  the  es- 
tate of  the  late  Matthew  Wiggett  to  show 
cause  why  a  certain  proof  of  debt  of 
£130,  tendered  on  behalf  of  the  M>pH- 
cant,  and  accepted  bv  the  R.M.  of  Mos- 
sel  Bay  at  a  second  meeting  of  credi- 
tors in  the  estate,  should  not  rank  as 
preferent. 

The  applicant,  who  is  a  medical  prac- 
titioner, set  out  in  an  affidavit  that 
from  August,  1903,  to  July,  1904,  he 
rendered  professional  services  to  the  de- 
ceased during  his  last  illness.  Ac- 
counts were  rendered,  and  supplied  dur- 
ing the  deceased's  last  illness.  When  he 
made  the  affidavit  he  did  not  know  his 
cladm  was  preferent,  and  that  was  why 
he  omitted  to  mention  that  accounts  had 
bc?cn  rendered  during  the  lifetime  of  the 
deceased. 

A  replying  affidavit  was  put  in  deny- 
ing that  Wiggett  was  ill  from  August, 
1903,  to  July,  1904.  In  October  the  de- 
ceased was  sufficiently  recovered  to  be 
able  to  attend  bis  own  business,  and  was 
plaintiff  in  a  case  and  attended  the 
Court. 

Mr.  Burton,  for  applicant.  Mr.  Bisset, 
for  respondent. 

Maasdorp,  J.,  said  it  was  im- 
possible to  give  a  general  de- 
scription or  definition  of  what  a  la^st 
illness  might  be,  it  would  certainly  de- 
pend on  toe  oiroumatanoes  of  each  case. 
To  his  mind  it  was  the  intention  of  the 
law  to  protect  vl6  far  as  possible  the 
medical  practitioaor,  who  mi^ht  be  call- 
ed in  during  the  last  euffermgB  of  a 
man,  and  there  might  be  cdrcumstances 
which  would  prevent  him  from  asking 
for  his  fee  until  the  decease 
of  that  patient.  It  might  often  happen 
th&t  a  medical  man  would  not  in  the 


laist  illneas  ol  «  patienfe  trouble  him 
wvth  hia  account,  but  the  present  case 
was  of  a  different  nature.  It  seemed 
that  the  patient  had  been  suffering 
from  a  chronic  complaint  for  some 
years,  and  during  that  time  be  was 
often  able  to  attend  to  his  business. 
There  seemed  to  be  no  reason  why  dur- 
ing the  course  of  that  period  the  doctor 
did  not  aek  for  his  fees.  He  did  not 
think  that  has  suffering  from  a  canonic 
comolaint  could  be  regarded  as  the  last 
illness  within  the  meaning  of  the  law. 
They  found  that  the  widow  of^  the  de- 
ceased had  made  an  affidavit  in  whioh 
she  stated  her  husband  was  quite  able  at 
times  to  do  his  work,  although  not 
quite  well,  and  consequently  he  was  well 
enough  to  attend  to  the  payment  of  his 
doctor's  bills.  The  Court  would  give  An 
order  for  the  payment  of  £4,  the 
amount  incurred  f  rom^  the  time  he  last 
went  to  bed  before  his  death. 


COATES  AND  COTTBBLL  V.  ST.  JOHN'B 
BENEFIT  SOCIETY. 

This  was  an  application  by  Joseph 
John  Wates  and  Lewis  Oottrell,  for  an 
interdict  restraining  the  secretary  or  any 
other  member  of  the  St  John's  Benefit 
Society  paying  out  of  the  funds  of  the 
society  any  money  for  a  purpose  con- 
templated by  a  resolution  pending  an 
action  to  be  instituted. 

The  applicants'     petition     stated  that 
they  were  members  of  the  society,  whioh 
had  for  its  object  the  raasing  of  funds 
by    entrance    fees,     aubscriptions,  fees, 
fines,  etc.,  for  various  benefit  purposes. 
At  a  meeting  of  the  members  of     the 
society  in  December  last,  it  waa  resolv- 
ed by  the  majority  of  members  (several 
remaining  neutral),  that  the  charter  of 
the  Lodge  of  Scotland  should  be  return- 
ed to  Scotland,  and  that  the  society  in 
the  meantime  work  under  the  Free  trsx- 
deners'   Rules  locally  as  the  St.  John's 
Benefit.  Society,  pending  a  final  deoision, 
a  minority  of   eight    voted    against   it, 
amongst  whom  were  the  petitioners.  At 
a  .subsequent  meeting  held  in  September 
last,    it  was   agreed   by   a  majority  of 
members  that  the  society  in  future  work 
under  the  charter  of  England,  and  that 
the  sum  of  £10  be  paid  out  of  the  funds 
of  the  society  for  the  purpose  of  paying 
tho    expenses    of    initiating    12    of    the 
members  into  the  British  Order  of  Free 
Gardeners.    Petitioners    lodged   an   ob- 
jection to  the  diversion  and  misappropri- 
ation of  the  sum  from  the  funds  of  the 
society  for  an  object  not  contemplated 
by  tlie  rules  or  by  members  who^  had 
originally    contributed    to   the   society; 
wherefore  petitioners  prayed  that     we 
Court  would  grant  an  order  dedaidng 
the  resolution  yodd,  and  grant  an  int^- 
dict  as  prayed. 

Mr.  W.  P.  Buchanan  appeared  for 
petitioners  and  Mr,  Po  Villiers  for  re- 
spondents, 


''CAFE  TIliBB"  LAW  REPORTS. 


1021 


Maafldorp,  J.,  said  that  if  this  money 
waa  appropriated  by  anybody  for  an 
illegial  jpurpofle,  it  could  be  recovered. 
Why  should  the  Court  interfere  with 
the  admiinistratkon  of  the  society. 

Mr.  Buchanan:  What  they  intend  to 
do  is  to  ohange  the  dodge  from  what  it  is 
to  one  of  a  different  charter.  We  say 
amongst  other  thdngs  that  they  cannot 
do  tliat  without  thoir  changing  our  con- 
tract without  consent.  We  do  not  want 
to  go  into  the  charter. 

[Maasdorp,  J. :  Can't  you  resign?] 

We  have  made  certain  payments  up  to 
date,  and  we  have  certain  vested  inter- 
ests. We  would  resign  if  they  would  pay 
us  out. 

[Maasdorp,  J. :  Have  you  any  author- 
ity for  a  Court  interfering  with  a 
society  of  this  kind.  It  is  not  a  part- 
nership or  a  company.]  ■ 

That  is  the  reason  why  all  the  mem- 
bers must  agree.] 

[Maasdorp,  J. :  But  the  Court  cannot 
interfere  w<ith  the  society  in  what  they 
do  at  these  meetings.] 

An  application  is  very  often  made  un- 
der the  company  law  for  sai  injunction. 

[Maasdorp,  J. :  But  they  have  their 
registered  legal  rights.] 

But  we  also  have  an  act 
dealing  with  these  friendly  socie- 
ties. Vhis  society  has  not  been  regdster- 
ed  under  the  Friendly  Society  Act. 

[Maasdorp,  J. :  Then  how  can  the 
Court  deal  with  it?] 

Because  it  is  the  only  body 
we  can  come  to.  The  society  is  a 
body,  and  they  seek  to  change  the  whole 
constitution  of  the  society :  to  which  we 
obiect^ 

[Maasdorp,  J. :  How  can  the  Court 
give  orders  as  to  the  rules  they  have 
made?  The  Court  will  want  a  good 
deal  moro  information  before  it  can 
decide  this  maitter.  They  have  de- 
cided to  act  imder  another  charter,  and 
the  Court  will  have  to  go  into  that 
charter.  You  cannot  proceed  on  motion.] 

But  there  must  be  some  remedy? 

Maasdorp,  J. :  The  case  had  better 
stand  over  until  February,  and  in  the 
meantixne  i^e  society  had  better  try 
and,  adjust  their  differences,  or,  if  not, 
decide  whether  an  action  is  necessary. 


HAES    AND    CO.    V.    MCINTOSH    AND 
STEWART, 

Tliis  was  an  application  on  notice  of 
motion  for  the  release  of  certain  goods    | 
for  attachment. 

The       affidavit   of    Joseph    Frederick    | 
Warren,  general  representative  in  South    , 
Africa  of  the  plain  tiff  firm,  stated  that 
about  September  12,  Mr.  Haydn  Cooke, 
of  Cape  Town,   entered  the  employ  of 
his  firm  as  a  traveller.       On  that  date 
he  forwarded  to  Cooke  from  Johannes- 
burg seven  cases  of  samples  for  him  to 
use      on   the  firm's  business  in      Oape    | 
Town.      About  f.ovember  29  he  found    I 


that  the  &amp!es  had  Iko:i  attached  by 
the  Deputy-Sheriff,  on  the  applieation 
of  tho  respondents  against  Cooke.  The 
plaintiff  firm  were  not  responsible  for 
the  personal  liabilvties  of  Uooke. 

The  affidavit  of  Alexander  Mcintosh 
stated  that  his  firm  were  local  <?hipping 
and  clearing  agents  for  Messrs.  Branch 
and  Co.,  manufacturers  of  the  "  Bee- 
hive"  boot,  and  had  cleared  Customs 
dues  on  all  boots  and  samples  of  boots 
consigned  to  W.  H^dn  Cooke,  local 
agent  and  traveller  for  Messrs.  Branch 
and  Son.  Cooke  had  had  a  running 
acoouot  with  witness's  firm  for  clear- 
ing charges.  Between  November,  1904, 
and    October,    1905,    the  respondent 

firm  cleared  a  quantity  of  samples  of 
*'  Beehive "  boots,  consigned  to  Cooke. 
In  November  last  Cooke  took  an  office 
in  Cape  Town,  and  put  his  name  out- 
side the  door.  Respondents  were  in- 
formed that  Cooke  luid  left  Cape  Town 
for  Australia,  and  they  applied  for  an 
order  restraining  the  removal  of  any 
goods,    which   was   (granted. 

A  replying  affidavit  by  Warren  stated 
tha;t,  when  Cooke  entered  his  firm's  em- 
ploy, hoB  firm,  by  arrangement  with 
Messrs.  Branch,  purchased  from  them 
all  their  samples  then  in  possession  of 
Cooke,  and  which  consisted  solely  of 
Beehive  boots.  The  samples  were  left 
with  Cooke.  Applicants  submitted  that 
respondents  had  no  lien  on  any  of  the 
sanoples. 

Mr.  Benjamin  appeared  for  appli- 
cant, and  Mr.  Lewis  for  the  respon- 
dent. 

Maasdorp,  J.,  made  an  order  for  all 
the  property,  except  the  Beehive  boots, 
to  be  released  from  the  attachment, 
with  leave  to  the  applicants  to  proceed 
bv  action  to  recover  the  Beehdve  boots. 
I'ne  question  of  costs  to  stand  over. 


WILMOT  V.  WALTER. 

Mr.  Jones  moved  on  behalf  of  Fred. 
Wm.  Baynes  Wilmot  for  an  order  for 
personal  attachment  against  John  Or- 
lando Walter,  for  failing  to  comply 
with  the  terms  of  an  order  of  Court. 

Mr.    Burton  opposed   the  application. 

The  applicant's  affidavit  stated,  that 
an  order  of  the  Court  had  been  issued 
ordering  the  respondent  to  allow  the 
applicant  access  to  all  the  books,  title- 
deeds,  etc.,  in  his  possession,  relating 
to  the  insolvent  estate  ot  Thomas 
Dicker,  and  that  he  had  ignored  the 
same,  and  had  continually  put  applicant 
off  from  day  to  day  with  regard  to 
completing  the  account. 

The  respondent  stated  in  his  affidavit 
that  owing  to  illness  he  was  unable  to 
oppose  the  original  motion.  The  appli- 
cant had  always  had  access  to  the  papers 
in  the  estate;  that  the  applicant  bad 
received  £400  out  of  the  sale  of  the 
immovable  property,  and  had  not  placed 
the  money  to  the  credit  of  the  insolvent 
estate  in  the   Standard  Bank,  and   had 


1022 


« 


CAPA  tlBikS*'  LAW  tLBPOBM. 


repeatodly  refuaed  to  pay  out  to  one 
Abrafawn  Weovtiel,  a  preleient  oieditor 
in  the  estate. 

Mr.  Jones  said  he  would  withdraw 
the  application  for  penonal  attachment, 
but  would  press  for  costs. 

Maasdorp,  J.,  saUl  it  seemed 
to  him  that  the  respondent  had 
raised  matters  in  this  application 
which  had  already  been  disposed 
of  by  the  Court  He  stated  in  his 
affidavit  that  the  applicant  had  always 
bad  access  to  the  books  and  papers,  but 
the  Court  found  it  necessary  to  g^aot 
an  order  that  access  should  be  granted. 
He  said  he  was  not  present  to  oppose 
the  first  appUoation.  as  he  was  ill. 
Whether  he  was  ill  or  not,  he  could 
have  obtained  assistance.  In  many 
respects,  the  affidavit  of  the  respondent 
did  not  snswer  the  matters  contained 
in  the  applicant's  affidavit,  who  alleged 
that  ever  since  the  order  was  granted 
be  was  unable  to  obtain  access  to  the 
books,  and  thai  it  was  only  after  the 
personal  notice  of  motion  was  given, 
that  the  order  was  obeyed.  As  far  as 
it  appeared,  the  only  question  before  the 
Court  was  that  of  oobts,  and  under  the 
circumstances,  the  respondent  would 
have  to  pay  the  costs  ot   the  motion. 


Sr  jfarte  BOYCIE. 

Dr.  Greer  moved  as  a  matter  of 
urgency  for  leave  to  raise  a  bond  of 
£750.  the  purchase  price  of  a  property 
bought  by  applicant  for  his  minor 
daughter  in  Sterling-street,  Cape  Town. 

The  matter  was  referred  to  the  Master 
for  his  report. 


SUPREME  COURT 


IN  CHAMBERS. 


[Before  the  Hon.  Sir  John  Buchanak.  ] 


B£X  V.  TROUP. 

Bail — Charge  of  murder. 


f      19a5. 
iDec.  29t]i. 


Where  a  pei'son  chatved  with 
murder  applied  for  bail,  and 
the  Crown  opposed  the  applica- 
tion^ the  Court  refused  to  grant 
baily  but  gave  leave  to  renew  the 
application  after  the  accused 
should  have  been  committed  for 
trial. 


Mr.  Burton  applied  on  behalf  of  Po- 
trus  Nicholas  Tromp,  a  farmer,  of  the 
Calvinia  district,  for  an  order  of  release 
from  imprisonment  on  bail.  The  accus- 
ed, it  appeared,  was  arrested  on  a 
charge  of  murdering  a  shepherd  in  his 
employ,  named  Jan  T^,  near  Middel- 
poet,  and  was  at  present  confined  in  the 
Calvinia  gaol.  Counsel  related  the  evi- 
dence of  the  preliminary  examination, 
which,  he  said,  was  purely  circumstan- 
tial, and  he  pointed  out  that  while  the 
accused  was  detained  his  stodc  was 
suffering,  as  there  was  only  his  wife 
and  a  boy  to  atitend  to  it. 

Mr.  Nightingale,  who  appeared  for  the 
Crown,  said  tnat  the  Attorney-General 
could  not  consent  at  present,  as  further 
investigations  were  being  maide. 

Buchanan,  J.,  said  that  under  the  cir- 
cumstances no  order  would  be  made  at 
present.  The  application  could  be  re- 
newed after  the  final  commitment. 


DIGEST   Ol^  OASSS. 


VOLUME    XV.— 190B. 


PAGE 

Abusive  words,  see  Pnblic  place...  274 

Acceptance  by  letter,  see  Contract  827 

Accommodation  note — Payment 
hy  accommodation  indorser — 
Bight  of  indorser  to  recover 
from  drawer 

Weimar  v.  Siereks 66 

Accommodation,  see  Promissory 
note    •••        •..        •••        •••  J^oo 

Act  5  of  1864,  see  Succession  duty  310 

„     16  of  1877,  see  Chemist       ...  716 

„    8  of  1879,  see  Harbour  Board  704 

„    27  of  1882,  see  Public  place...  274 

„    45  of  1882,  Sec.  17,  see  Muni- 
cipal Council 787 

„    45  of  1882,  see  Village  Com- 
monage ...        ...        ...  661 

\    27  of  1883,  Sec.  17,  see  Attor- 

DOy  ...  ...  ...  ...    Ova 


„    37  of  1884,  see  Native  reserve  717 

„    43  of  1885,  see  Magistrate's 
jurisdiction •        ...  396 

„    43  of  1885,  see  Lashes         ...  276 

„    38  of  1887,  see  Chemist       ...  716 

„     18  of  1888,  Sec.  2,  see  Cruelty 
to  animals      ...        ,  '        ...  969 

„    28  of    1888~Pre8cription— 
Servitude. 


Bex  V.  Berndt 


...  547 


Act  40  of    1889,   see    Divisional 
Council  826 

„    5  of  1890,    see  Articles    of 
human  food  ...        • 942 


PAGE 

Act  34  of  1891,  see  Medical  and 
Pharmacy  Acts         ...        ...  269 

„     19  of  1893,  see  Beiieficia  8.  C. 
Velleijani^  &c.  407 

„    27  of  1894,  Sec.  2,  see  Divi- 
sional Council  ...        ...  126 

„    4  of  1895,  see  Succession  duty  310 

„     10  of  1895,  Sec.  3— Smelting 
pot. 

To  he  in  possession  of  any 
implement  capable  of  being 
used  for  melting  or  defacing 
metals,  tcithout  permission  in 
writing  from  the  R.M,,  exposes 
any  person  to  a  conviction 
under  Sec.  3  of  Act  10  of  1896, 
provided  there  is  reas''>nable 
evide?ice  that  the  implement 
was  used  for  such  purposes, 

Bex  V.  Israel  Cohen 629 

Act  36  of  1896,  see  Harbour  Board 
Begulations 704 

„    23  of  1897,  Sec.  50,  see  Land- 
lord    ...        ...        ...        ...  630 


)i 


1  of  1897,  see  Lunatic         ...  501 

„    23  of  1897,  Sees.  80  and  81. 

Under  Sec.  80  of  Act  23  of 
1897 J  any  police  officer  or  other 
person  authorized  by  the  local 
authority  or  the  Minister  may 
enter  at  all  reasonable  times 
upon  any  lands  or  premises 
for  the  purpose  of  making  any 
inspection  or  doing  anything 
required  by  the  Act,  and  any 
person  obstructing  such  officer 
in  the  execution  of  his  duiy  is 
liable  to  the  penalties  specified 
in  Sec*  81. 

Bex  V.  Tsotsobe      •••        •••  404 


if 


maiala. 


PAGE 

Act  40  of  1899,  see  Water  Act  ...  120 


»> 


36  of  1902,  Sec.  16. 

Uftder  Sec,  16  of  Act  36  of 
1902f  any  persons  tcho  use  any 
hoiue  or  place  for  the  purpose 
of  betting  may  he  convicted, 

Bex  y.  Cam  and  others      ...  720 


Act  36  of  1902,  see  Betting  house  988 

„    47  of  1902,  Sec.  1 1— Sec.  3  (c). 

E,  had  falsely  represented 
herself  to  the  Immigration 
officer  as  a  married  woman^ 
ichose  hushaml  was  resident  in 
S.  A/rica,  Three  ireeks  after 
landing  she  was  married,  and 
then  represented  herself  as  a 
spinster. 

Held  on  appeal,  that  she  Juid 
been  rightly  convicted  under 
Sec.  11  of  Act  47  of  1902, 

Bex  Y.  Ezdrowski     654 

Act  47  of  1902,  see  Undesirable 

alien    ...         ...         •••         •••  oo^ 


»> 


n 


)» 


I) 


1» 


11  of  1903,  Sec.  1,  see  Attor- 

Uojr  •..  ...  ...  .■• 


592 


36  of  1904,  Sec.  18,  see  Excise 
duty 747 


36  of  1904,  Sec.  42,  see  In- 
come tax 


619 


7  of  1905,  Sec.  4,  see  Stock 
vneXb  ...        •••        ...        .«.  7 «/i 

26  of  1905,  Sec.  4,  see  Excise 
duty    ...        ...        ...        ...  747 


Adiation,  see  Will... 


222,  551 


Admission  of  attorney  withdrawn, 
see  Attorney 592 

Adverse  possession,  see  Beacons  838 

Agent,  eee  Pri  ncipal         479 

Agent,  see  Purchase  and  sale     ...  280 

Agent — Holding  out  as  attorney 
— Contempt  of  Court. 

Incorporated  Law  Society  v. 
Donner  &  Co 213 


PAGE 


Alien  immigrant— Act  47  of  1902 
— Domicile. 

Ex  parte  laXoo         992 

Amendment  of  plea,  see  Pleading  295 


Amendment  of  plea — Commis- 
sion— Postponement  of  trial 
— Demurrage. 

The  defendants  having  filed  a 
plea  in  an  action  for  demur- 
rage,  atid  having  subsequently 
made  certain  discoveries  rele- 
v<fnt  to  the  issue,  now  applied 
for : — (1 )  Leave  to  amend  their 
plea  by  striking  out  certain 
admissions ;  (2)  The  appoint- 
ment of  a  commission  to  take 
evidence  in  London  ;  (S)  Post- 
j)onement  of  the  trial. 

The  Court  granted  the  first  and 
the  third  of  these  applications^ 
but  refused  the  seconil  until  the 
amended  plea  slwvXd  have  been 
filed  and  the  plaintiffs  have 
had  an  opporttinity  of  except- 
ing thereto. 

Houlder    Bros.    v.    Colonial 
Government  ...        ... 


Agent,  see  Mining  Co. 


217 


Amendment     of    summons,    see 
Magistrate's  Court 

Appeal,  see  Water  Court 

Appeals  from  Native  Territories 
—Act  26,  1894. 

Where  the  only  European  in- 
terested in  a  civil  suit  between 
certain  Transkeian  natives  iras 
merely  an  executor  ;  the  Court 
reused  leave  to  appeal  from 
the  judgment  of  the  Chief 
Magistrate. 

Mohatla  v.  Matla     

Aquaeductusy  see  Interdict 

Arbitration — Interdict. 

Where  one  company  attempted 
to  force  arbitration  proceed- 
ings upon  anot/ier  comjxiny  in 
a  case  tn  xchich  there  appeared 
to  be  no  subject  matter  for 
arbitration^  &ie  Court  inter- 
dicted   the    former    company 


41 

127 
793 


869 
18 


INDEX  OF  TITLES  IN  THE  DIGEST. 


PAOB 

Abusive  Words 274 

Acoepiance   by   Letter       827 

AccommodAtiou  Note        66 

Acts  (various)  ...  310,  716,  704,  274.  787, 

661,  598,  717,  396,  276, 
969,  547,  826,  942,  269, 
407,  126,  310,  629.  704, 
630,  501,  404,  120,  720, 
988,  664,  582,  692,  747, 
619,   791. 

Adiatdou 222.  551 

Adverse    Possession       838 

Agent   213,    217 

Alien  Ino^migration   992 

Amendment  of  Plea   41,    295 

Amendment  of   Summons       127 

Appeal   793,  869 

Aquaeducitu       18 

Arbitration  473,   673 

Architect   72,  342 

Arrest  966 

Articles    Unfit    for     Human     Food    942 
Articles    for    Special  Purpose       ...    637 

Attachment   767 

Attorney      592,    708,    809,    12 

Assault    279 

Award  250 

©ail 832,   1022 

Beacons 5il,  832 

BenefiHa  S.  C.    Velleijam,   etc.      ...    407 

Beneficum  dirisionis       833 

Beittdng  House 968 

Btma  fides     574,  758 

IBriek-making  637 

Brothel 57 

Builder  20O 

Building  1,   72 

Carrier  766 

Chemist     269,  716 

Children     180,  334 

Claim   in   Reconvention     130 

"  Coasfcwards  "     647 

Codicil  647 

Colouraible   Imitation     383 

Comity  663 

Commission 842 

Compensation     940 

Compulsory  Pilotage     704 

Concealment  <^  Birth  60C^ 


PAOB 

Ckmceasion     207 

Conditions  oi  Insurance   Policy   ...  684 

Consent  of  Parent  927 

Consideration 46,  283 

Community  of  Property     227 

Contempt  of  Court  213,  548 

Contract  ...  432,  447,  575.  667,  760,  827, 
943,  951. 

Contractor 853 

Contritbutory   NegLigenoe 363 

Costs 755,  759 

Counterclaim  574,  758 

Crimdnal  Trial     237 

Cruelty  to  Animals  969 

Culpable  Insolvency 403 

Dam-ages 190 

Damnum  injuriae      190 

Declaitation  of  Rights     207 

Deed 46,  796 

Defamaiion 603 

Default  of  Plea     390 

Delivery ,  ...  421 

Demolition  of  Buildings     166 

Demurrage 980 

Dei>ortation 582 

Description  of  Spouses  513 

Divisional  Council       126,  826,  934 

Divorce       114,  239,  461,  664,  969 

Dog    69 

Dominium 123,  656 

Dormant  Partner 21 

Ejectment     230.  717,  943 

Election     826,  934 

Employer    919 

Estate  of  Deceased  ai>ou8e     933 

Estoppel     280.  521 

Eviction     281 

Exception   124,    178,   319,  588 

Excise     747 

Excussion  Ill,  833 

Executor      933 

Failure  of  Conditional  Legacy     ...  551 

Fire      327,  346,  392 

Fire  Insurance     473,  684 

Fidei  Commisaum     324,  437 

Forfeiture  of  Benefits  114 

Forgery  275 

Fraud 222,  666 


xxwi 


INDEX  OF  TITLBS  IN  THB  DtGEST. 


FAOS 

Game     544 

Goodwill     SM 

Grawng  Right*     104 

GroM  Ine^kriiy     96,   270,   331 

Gua<rant«e  340,  380 

Hailbour  Board  704,  980 

Hard  LalKHir    701 

HiMband  and  Wife    055 

Illegal  Oootmct     88,  183 

lUegftl  Sale     361 

Ineola    20 

Income  TVix     619 

■Indecent  AsaauH      334 

IndoTBer 66 

Injury     69 

IneoWenicy   87,   330,   387,  457,   663 

Ififfpeciion  of  Documents   643 

"Inetaknent  Syrtem"   340 

Interdict 18,  212,  383,  477,  405,  673 

Interrogiatoriea     125 

Jockey  CHiib 988 

Joinder  of  PaKtiee 719 

Joint  ^ook  Company   527 

Joint  Tenant  230 

Keeping  a  Brothel 57 

Landlord     630 

Lashea  276,  396 

La'teral  Support 635 

Law  Society     12 

Lease     192,  277.  441 

Letting  and  Hiring  493 

Label     155 

Licence   (Liquor)   58,   50,   273,  384 

Liquid  Claim  306,  321 

Lobola   742 

Local   Authority       272 

Lunatic  601 

Magistrate  ...  98,  124,  125,  127,  129,  384, 

Miagietrate'B     JuriMliafcion    ...   396,   574, 
710,  719,  758,  832, 

'Malicious  Injury  to  Property 560 

Myicdona  Desertion  59 

Managring  Agent 134 

Managing  Diireofcor   479 

M«rr»ge      248,   913,   742,   927 

Martial  '*Laiw*'   621 

Master  of  Supreme  Court  85 

Massing    255,  651,  691 

Measure  of  Damages     657,  750 

Medical     162,  269 

MeflBonger  of  Court  767 


FAOR 

Mining  Comipany     217 

Minor  437,  933 

Misjoinder 302 

Miaaion  Station     170,  401,  943 

Municipal  Council   547,  787,   1012 

Municipal  Regulaiioos  104,  166 

Munioipality    61 

(Murder    807,  1022 

NatiTe 717,  742 

Negligence...  61,  126,  131,  327.  346.  392, 
421,  456,  768. 

New  Trial 392 

Notice  406,  427 

Nuisance     336.  496,  6S0 

Nullity  of  Marriage  248 

OflBoe  of  Profit     787 

"One  Man  "  Company  527 

Onus  991 

Ordinances  (various) 606,  661,  847 

Pactum  de  nan  p^endo 31 

I^Lrtnenhif)  ...  21,  93,  115.  171,  201.  337. 

Patent   368 

Payment  of  Coets     406 

Peregrintu  38 

Permit  (to  Native)   273 

Personal  Injury    365 

Plea 178,  319 

Pleading     206,  334,  589 

Pledge    627 

Practice  300 

Preferent  Claim  1020 

Preecriptaon 556 

Principal  and  Agent     479,  724 

Private  Property  of  Enemv  332 

Privilege 155.  603,  643 

Prize  Fight     183 

Ppocees  in  Aid 563 

Prosnisaory  Note...  97,  283,  407,  7B6,  833 

"Proper  Books"  405 

Provisional  Sentence  ...  31,  82,  111.  277, 
306,  321. 

Provisional  Sequestration    45 

Provisional  Trustee 330 

Public  Place  274,  980 

Public  Trader 719 

Public  Washing     336 

Purchase  and  Sale 280,  281 

HUiVway  421.  456,  647 

Rating  of  Grown  Property     204 

Receiver     171 

Reconvention 351 

R^abdlitation 87 

Removal  of  Trial    38,  237 


INDEX  OF  TITLES  IN  THE  DIGEST. 


cvu 


PAOB 

Beetitullion  of  Oonjugel  Righte  ...  461 

Review  95.  270,  331 

'Revocation  214 

Rules  (of  Miseion  Station)  170 

Salaried  Partner  93 

Sale  and  Purchase  ...  116,  123,  131,  159, 

290,  292,  302.  324, 

340,  460,  538,  665, 
680,  881. 

(Sale  to  Minor  Children 014 

Sale  by  Survin^  Spouse 691 

Sele  intra  familiarum    5J5 

6«kle  in  Execution  767 

SanitBvtion   630 

Soab  Inspeotor     621 

School      406,  644 

Scottish  Marriage     327 

Security  by  Wife 919 

Security  for  Ccets 20 

SequestraltAon  847 

Senw>e  427 

Service  of  Summona     127,  475 

6erviice  of  Articles    800 

ServUtu   fiuminius  recipiendi   960 

Set  OS  301 

Share  of  Profits 134 

Shares  881 

Sheep  Lease 627 

Shop 274,  980 

Slaughter  House  272 

Smelting  Pot     620 

Special  Contract  460 

Specification  368 

Specific  Performance     881 


PAGB 

Spoilalaoa 940 

Stock  Theft     791 

Stolen  Property  284,  416 

Storm  Water  901 

Substituted  Service 239 

Sufb-tenancy,  fee  Sale  and  PuiohAse  324 

Succession 310,  508 

Summons   122,   129,  232,   475,  966 

Surety    496,  765 

Suspensive  Condition     118 

Theft     275,  402 

Title  to  Land     356,  361 

Town  Council 271,  951 

Trade  Mark 383 

Transfer  of  (Liquor)  Licence  58 

Traveller     , 162 

Trespass  51.  279,  544 

Trustee  46 

Tribal  Tenure T96 

Ultra   Vires .272-1012 

Undeeirable  Alien  582.  1001,  1011 

VaTiaidon  (in  Pleading)  334 

Vestdng 615 

Village  Conunonage 661 

Vindiratio  332 

Voters*  List     826 

Water    120-793,  901,  958 

Wife  and  Husband     506 

Will  ...  180,  222,  266,  316,  324,  437,  515, 

551,  631,  691,  936. 

Witnesses     97 


i 


DtGteT. 


Ill 


PAGE 

from   iaJcing  any  proceedings 
in  the  nature  of  arbitration. 

London  and  Lancashire  Fire 
Assurance  Co.  v.  Imperial 
Cold  Storage  and  Supply 
Co.,  Ltd.     ...        ...        ...  673 

Arbitration,  see  Fire  insurance  ...  473 

Architect's  certificate,  ttee  Building 
contract  72 

Architect's  plans  —  Fees  —  Esti- 
mate of  cost. 

Rosenberg  v.  Cape  Town 
Hebrew  Congregation      ...  342 

Arrest,  see  Summons       906 

Articles  unfit  for  human  food — 
Act  5  of  1890,  Sec.  G. 

A  person  cannot  be  connicied 
under  Sec.  6  of  Act  5  of  1800 
of  exposing  for  sale  articles  of 
food  unfit  for  human  consump' 
tion. 

Rex  V.  Sammv  942 

Article  supplied  for  special  pur- 
pose, see  Brick-making        ...  637 

Attachment,  see  Messenger  of 
R.M.  Court 767 

Attorney — Admission — Sec.  17  of 
Act  27  of  1883— Sec.  1  of 
Act  11  of  1903— Withdrawal 
of  admission. 

C.  had  been  admitted  as  an 
attorney  in  July,  1905^  under 
Sec.  17  of  Act  27  of  1883. 
On  its  being  discovered  that 
this  section  had  been  repealed 
by  Sec.  1  of  Act  11  of  1903, 
the  admission  was  withdrawn. 

Held,  that  as  the  applicant 
iras  not  articled  prior  to  the 
date  of  the  passing  of  the 
former  Act,  he  was  not  entitled 
to  admissitm. 


Kx  lyfirte  Clark 

Attorney — Lien     on     documents 
entrusted  to  him. 

An  attorney  has  no  lien  for 
costs  on  documents  entrusted  to 


592 


PA.GE 

him,  unless  he  has  drafted,  or 
done  work  on  those  documents, 

Scheepers  v.  Foster 708 

Attorney  —  Admission  —  Service 
of  articles — Breach  of  con- 
tinuity. 

B.,  an  articled  clerh,  had 
served  upwards  of  two  years 
with  a  firm  of  attorneys  in 
this  Colotiy.  He  then  joined 
the  Imperial  forces  and  now 
applied  for  leave  to  complete 
the  remainder  of  his  service 
in  the  Transvaal. 

Held,  ^t  the  breach  of  con- 
tinuity of  service  must  be 
condoned,  but  that  leave  could 
not  be  granted  to  complete 
service  in  the  Transvaal. 

Ex  parte  Boardman 809 

Attorney,  see  Law  Society         ...     12 
Assault,  sec  Trespass        279 

Award  of  arbitrator — Costs. 

Middleton  v.  Waterchute  Co.  260 

Bail — Charge  of  murder. 

Where  a  person  charged  with 
murder  applied  for  bail,  and 
the  Cronm  opposed  the  applica- 
tion, the  Court  refused  to  grant 
bail,  but  gave  leave  to  renew  the 
ajyplication  after  the  accused 
should  have  been  committed  for 
trial. 


Rex  V.  Tromp 


...1022 


Bail  bond — Time. 

A  bail  bond  which  does  not 
specify  the  time  during  tchicfi 
it  is  to  remain  in  force  is  null 
and  void. 

Van  Reenen  v.  Rorich  (3  Menz,, 
447)  followed. 

Rex  V.   Van  der  Watt  and 


others 


832 


Beacons  —  Adverse  possession  — 
Long  continued  occupation — 
Onus  probandi. 

Visser  v.  Van  der  Heever   ...  838 


Beacons,  see  Trespass 


51 


It 


DIGBST. 


PAGE 

Beneficia  8,  C.  Velleijani  et  Au- 
ihentica  si  qua  mulier — Pro- 
missoiy  note — Endorsement 
by  women— Act  19  of  1893. 

P.,  a  married  loomany  had 
signed  a  prouiistsory  note  mcule 
by  her  husbaitd  <ni  the  hack 
^^  as  surety  and  co-principal 
debtor"  tcitlwut  expressly  re- 
rumncing  her  benejits  under  the 
S  C.  Velleijani  et  Authentica 
si  qua  mulier.  When  sued 
on  the  note  in  an  R.M.  Courts 
she  pleaded  these  benefits  and 
further  urged  that  the  note  was 
not  presented  to  her  and  noted 
ai  the  due  date. 

Held  on  appeal,  that  by  Sec,  20 
of  Act  19  of  1893,  it  is  not 
necessary  that  a  woman,  who 
accepts  or  endorses  a  note  or  a 
bill,  should  renounce  the  said 
benejits,  in  order  to  be  lield 
liable. 

Held  further,  that  a  surety 
who  binds  herself  in  solidum 
and  as  co- pritu;ij)al  debtor, 
incurs  the  same  responsibilities 
as  the  maker  of  the  note 
(dis.  Maasdorpy  J.),  and  that 
presentation  is  not  necessary, 
in  order  to  render  such  surety 
liable. 

Priest  v.  Stegman  and  others  407 

Beneficiuni  divisionis,  see  Promis- 
sory note        ...        ...        •••  833 

Betting-house— Act  36  of  1902— 
Horse  racing — Jockey  Club 
of  S.  Africa. 

2Vie  appellants  authorized  the 
use  of  a  totalizator  for  pur- 
poses of  betting  at  a  race 
meeting  held  by  them,  but  they 
had  no  licence  from  the  Jockey 
Club  oftii.  Africa  and,  although 
they  professed  in  their  advev' 
tisements  of  the  race  meeting 
to  act  under  the  ndes  and 
regulations  of  the  Jockey  Club, 
they  allvwed  jockeys,  xolio  had 
been  vxirned  off  tfie  course,  and 
horses  which  had  been  dis- 
qualified by  the  Jockey  Club, 
to  run  at  such  race  meeting,  in 


PAGE 

contravention  of  such  rules  and 
regulations. 

Held,  that  the  appellants  had 
been  pi'operly  convicted  of  a 
contravention  of  the  16th  sec- 
tion of  Act  36  of  1902,  and 
that  they  were  not  protected  by 
the  21st  section  of  the  Act, 

Bex  y.  Ham  and  others      ...  988 

Bona  fides,  evidence  of,  see  Magis- 
trate's jurisdiction    ...      574, 758 

Brick-making  machinery  —  Mis- 
representation— Article  sup- 
plied for  a  special  purpose. 

S.  had  supplied  certain  hrick- 
vuiking  machinery  to  M,, 
guaranteed  to  be  capable  of 
doing  certain  work.  M.  tested 
the  machim,  but  fouful  thai  it 
could  not  do  the  work  guaran- 
teed. Plaintiff  now  sued  for 
the  irrice  of  the  machinery  aiul 
cost  of  its  erection. 

Held,  that  he  vms  not  entitled 
to  recover. 

Stone  V.  McKenzie 637 


Brothel,  see  Keeping 


57 


Builder's  hypothec — Actual  pos- 
session. 

Insolvent  Estate  Israelson  v. 
Harris  and  Black  and  others  200 

Building  contract  —  Defects  — 
Time  limit — Architect's  cer- 
tificate. 


McCarthy  v  Visser 


72 


Building  contract — Extension  of 
time  —  Ejectment  of  con- 
tractor— ^Measure  of  damages. 

Batchelor  v.  S.  A.  Breweries    1 


Cape  Town  Municipal  regulations. 
No.  143— Fine. 

Bex  V.  Fletcher        

Carrier — Negligence. 

D.  hired  FVs  wagon  to  carry 
certain  grain  and  saw  it  loaded 
on  the  wagon,  and  also  saw 
that  Uiere  was  a  sail  cloth 
wherewith  to  cover  it.     The 


547 


1)iG£St. 


PAGE 

loagofi  was  hi  charge  of  F's 
brother.  On  ai-rival  at  the 
store  of  iJ.^s  agent,  the  grain 
to<M  found  to  be  tcet,  and 
the  agent  refused  to  accept 
delivery. 

Held  on  appeal^  that  as  there 
was  uo  evidence  of  Jiegligence 
against  F,  or  his  servants, 
D,  was  not  entitled  to  recover 
damages. 

D.  had  lent  to  F.  certain  bags 
in  which  to  carry  the  grain 
under  the  agreement  that  they 
should  be  returned.  On  F.s 
failure  to  return  them.  D.  sued 
him  for  their  value  as  *'  goods 
sold  and  delivered." 

.Held,  that  this  action  hacing 
been  wi-ongly  brought,  D.  was 
not  entitled  to  recover. 

Van  der  Merwe  v.  Colonial 
Government  {15  C.T.R.,  456) 
distinguished. 

Fumba  v.  Dickeraon  ...  768 

Chemut  and  druggist — General 
dealer — Licensing  Acts  15  of 
1877  and  38  of  1887. 

A  licence  to  deal  as  a  chemist 
and  druggist  does  not  under 
Act  38  of  18S7  inchule  the 
right  to  deal  in  any  articles 
not  directly  connectM  with  the 
business  "  as  such." 
Semble  :  -.1  chemist  and  drug- 
gist may  under  his  licence  sell 
photographic  ^^  films  "  or  other 
articles  to  the  preparation  of 
which  a  chemical  process  is 
essential. 

Rex  V.  Heynes,  Matthew  & 

\jO.    ..•  ...  ...  ...    flo 

Chemist's  Assistant,  see  Medical 
and  Pharmacy  Acts 269 

Chil^in  ventre  matris,  see  ^'\\\  ...  180 

Children,  see  Indecent  assault    ...  334 

Claim  in  reconvention. 

Whaiever  may   be  a  Magis- 
trate's opiniojt  as  to  the  merits 
of  a  defence,  he  cannot  give 
judgment  in  reconveivtion  un- 


PACfE 


less  the   claim   is  specifically 
pleaded. 

De  Wet  V.  Japhtha 


130 


"  Coastwards,"   see  Railway  De- 
partment         647 


Codicil,  see  Will 


...  316 


Colourable  imitation,  see  Trade 
mark 333 

Comity,  see  Insolvency  (foreign)  663 

Commission — Conditional  promise 
to  pay. 

Boswarva  v.  Palmer 842 

Compensation  for  improvements, 
see  Spoliation 940 

Compulsory  pilotage,  see  Harbour 
Board 704 

Concealment  of  birth — Ordinance 
10  of  1845. 

By  Ordinance  10  of  1845,  con- 
ceal ment  of  birth  is  not  jnmish- 
able  with  a  fine. 

Rex  V.  Meitje  Swartz  ...  606 

Concession — Judgment  of  Con- 
cession Court — Declaration  of 
rights. 

The  chief  of  a  native  ten-ito)-y 
made  a  concessimi  to  C.  of  the 
right  to  prospect,  dig  for  and 
convert  to  his  own  use  all 
precious  stones  a7id  mifierals 
found  within  the  limits  of  the 
co7Kession.  C.  ceded  his  rights 
to  ifie  plaintiffs.  The  British 
Government  annexed  the  terri' 
tory  and  appointed  a  Court, 
under  a  Proclamation,  giving 
such  Court  f ull judicial poioers 
to  decide  upon  the  validity  of 
all  concessions  with  an  a^ypeal 
to  the  Prim/  Coutwil.  The 
Court  allowed  the  claim  to  the  , 
concession  in  question,  but 
^^  subject  to  all  laws  and  regular 
tions  of  British  Bechuanaland 
relating  to  mines  and  minerals, 
and  otherwise  in  force  in  the 
said  territo}^."  There  was 
910  appeal  against  this  judg- 
ment. 


Vi 


DIGEST. 


PAGE 

fleld|  in  an  ckction  for  a 
declaration  of  rights^  that  the 
2>latntijF$  irere  not  entitled  to 
any  declaration  inconsuteni 
irith  the  latrs  and  regulations 
in  force  in  the  territory  at  the 
time  when  the  judgment  of  the 
Commission  vxis  given. 

Yillander  Concessions  v.  Colo- 
nial Government 207 

Conditions  of  insurance  policy, 
aee  Fire  insurance     684 

Consent  of  parent,  see  Marriage 
of  minor         927 

Consideration,  see  Deed  of  repu- 
diation ...        ...        ...     46 

Consideration,  see  Promissory  note  283 

Community  of  property,  see 
Scottish  marriage     327 

Contempt  of  Court. 

Bex  V.  Lloyd 548 

Contempt  of  Court,  see  Agent   ...  213 

Contract — Acceptance  by  letter. 

R,  had  agreed,  rerbally^  to  sell 
a  house  to  £>.,  and  D.^  by  letter 
posted  at  5.10  p.m.  tm  the  same 
day,  accepted  B.'s  ojffer.  At 
5.47  p.m.  and  before  receiving 
D.^s  letter^  /?.,  by  telegram  ^ 
revoked  his  offer. 

Held,  that  B.  iras  bound  by 
his  contract. 

Baily  v.  Drummoud 827 

Contract — Breach — Measure  of 
damages. 

Halverson  v.  Anderson       ...  750 

Contract,  fraudulent  and  immoral. 
Grassick  v.   B.S.A.  Asphalt 

VvO.      ...  «••  ..a  •••OlO 

Contract,    verbal — Breach — Mea 
sure  of  damages. 

Carr  &  Co.  v.  Lenders  &  Co.  657 

Contract — Arrangement  termina- 
ble at  the  dwcretion  of  one 
party. 

Nuttall  &  Co.  v.  Cape  Town 
Gas  Light  and  Coke  Co. ...  432 


PAGE 

Contract — Verbal — Inchoate. 

Though  a  verbal  contract  is 
binding  on  the  parties^  yet  if 
it  be  agreed  thnt  the  contract 
should  be  redtwed  to  irriting, 
in  order  that  the  ixirties  may 
discuss  the  term*  Uiereof  the 
preceding  verbal  contract  must 
oe  regarded  as  inchoate. 

Richards  v.  Mills      447 

Contract,  see  Mission  station      ...  943 
Contract,  see  Town  Council        ...  951 

Contractor — Work  done — Reten- 
tion money — Damages. 

Boldt  V.  Bui*ger  Estates,  Ltd.  853 

Contributory  negligence,  see  Per- 
sonal injury 353 

Costs — Tender. 

Hodgson  V.  Van  Schalkwyk  759 

Costs  of  excussion,  see  Surety    ...  755 

Counterclaim,     see     Magistrate's 
jurisdiction     574, 758 

Creditors,  nee  Interdict 477 

Creditors,  prcferent  and  concur- 
rent, see  Insolvency 387 

Criminal    trial    on    Circuit — Re- 
moval. 

The  Supreme  Court  has  no 
power  to  remove  a  criminal 
trial  from  one  circuit  to 
another.  Application  should 
be  made  to  Vie  Circuit  Court. 

Rex  V.  Goldman       237 

Cruelty  to  animals — ^Emasculation 
—Act  18  of  1888,  Sec.  2. 

Under  Sec.  2  of  Ad  18  of  1888, 
a  person  may  not  be  prosecuted 
for  emasculating  an  animal 
provided  he  has  reasottable 
cause  for  so  doing. 

Rex  V.  Josling  ..  ...  969 

Culpable    insolvency  —  *'  Proper 
books." 

There  is  nojMsitivf  legal  stawl- 
ard  as  to  what  are  ^^ proper 
books."     But  the  books  iept 


DIGBBT. 


Tii 


PAGE 

must  show  all  trunmctionH  of 
the  busineffSj  ita  assets  and 
liabilities:  or  at  least  give 
data  from  which  these  aw  be 
aJtcertaified, 

Rex  V.  Jaffe 403 

Damages  for  Don-deliv«ry  of 
shares,  see  Mining  Company  217 

Dammim  iujuriae  —  Artificial 
change  of  course  of  river. 

Domingo  v.  Colonial  Govern- 
ment   190 

Declaration  of  rights,  see  Conces- 
sion    ...        ...       ....        ...  207 

Deed  of  repudiation  of  inheritance 
— Deed  of  donation — Regis- 
tration— Consideration. 

0,  and  his  xcife,  by  their 
mutiud  icill,  beqv^eathed  certain 
property  to  their  son  P.,  tchich 
was  to  remaifi  under  the 
adm  in  istra  tion  of  0.  The  wife 
died^  and  0,  adiated  under  the 
wilL  P.  became  a  man  of 
intemperate  habits  and  a  spend- 
thrift^ a7id  O.,  to  protect  P. 
against  himself,  induced  P,  to 
execute  a  deed,  repudiating  his 
inheritance  and  relieving  0. 
from  the  obligation  of  paying 
the  same  over^  but  by  another 
instrument  executed  two  days 
aftenrards  and  termed  by  the 
parties  a  ^^  deed  of  donation ^^' 
0.  made  another  settlement  on 
P.  in  substitution  for  the 
inheritance.  The  so-called  deed 
of  donation  was  not  regis- 
tered. 

Held,  after  the  death  of  0.  and 
of  P.  thai^  as  there  was  full 
consideration  for  the  settlement^ 
the  absence  of  registration  did 
not  deprive  the  heirs  of  P.  of 
the  right  to  recover  the  benefits 
of  the  settlement  from  the  estate 
ofO, 

Matthews  v.  Oosthuizen      ...     4G 

Deed  of  grant — Rectification — 
Tribal  tenure — Trust. 

One  ManguzeUi,  a  native  Chief 
luul  purchased  two  farms  with 


PAGE 

subscriptions  raised  among  the 
people  of  his  tribe  for  the 
purpose  of  extending  his  loca" 
tion.  At  the  suggestion  of  the 
R.M.J  the  propei-ty  was  trans- 
ferred to  the  Chief  his  Head- 
men and  Councillors,  without 
.  mentio7i  of  any  trust.  Two 
of  these  people  now  claimed 
dominium  in  pro  rata  undi- 
vided shares  of  the  farms 
purchased. 

Held,  that  the  farms  had  been 
transferred  to  them  only  in 
trust  for  their  tribe :  and  that 
the  deed  of  grcud  must  be  so 
amended  as  to  express  that 
trust, 

Mzubelo  and  others  v.  Ndaba 
and  another  ...        ...  796 

Defamation — Privilege —  Express 
malice — Recklessness. 

Bain  v.  Hammersley-Heenan  603 
Default  of  plea,  see  Practice  ...  390 
Delivery,  see  Negligence  ...         ...  421 

Demolition  of  baildings,  see  Muni- 
cipal regulations       166 

Demurrage,  see  Harbour  Board ...  980 

Deportation,  see  Undesirable  alien  582 

Description  of  spouses,  see  Mar- 
riage Ordinance        513 

Divisional    Council — Voters'   list 
—Act  40  of  1889. 

Where  applicant's  name  had, 
per  incuriam,  been  omitted 
from  the  list  of  voters  for  a 
Divisional  Council.  The  Court 
granted  an  order  authm'izitig 
its  insertion. 

Ex  2>cirte  QowtLU        826 

Divisional  Council — Election. 

R.  was  one  of  two  candidates 
for  election  as  representative 
of  a  certain  district  on  a 
Divisional  Council.  R.  was 
unsuccessful.  It  was  supposed 
that  the  distinct  in  question 
was  entitled  to  return  only  one 
member,  aful  nominations  were 


Yiii 


DIGEST. 


PAGE 

hiriU'd  for,  candidates  to  fill 
the  I  me  racanvy.  After  the 
ehctioH  it  trattsf)h'ed  that  the 
district  iraa  entitled  to  return 
two  memherH,  and  R.  claimed 
the,  second  seat. 

Held,  tJiat  as  there  wwi  only 
one  seat  contestedy  and  that  as 
R.  had  not  been  elected^  he 
teas  not  entitled  to  the  seat 
which  he  claimed. 

Reinecke  v.    Civil   Commis- 
sioner of  Ceres      934 

Divisional  Council— Negligence — 
Damages — Notice — Di\'i8ional 
Councils'  Act. 

Respondents  wagon  had  met 
with  an  accident  traceable  to 
the  negligence  of  a  Divisional 
Council.     The  Council  pleaded 

(1)  Respondent  had  not  given 
notice  specifying  the  time  at 
which  the  accident  ha^l occurred. 

(2)  That  all  the  funds  in 
their  hands  available  for  road 
repairs  had  been  exhausted. 

Held  on  appeal,  that  as  re- 
spondent  had  given  notice 
irithin  14  days^  and  as  they 
subsequently  repaired  the  road 
and  could  have  obtained  more 
money  by  raising  the  rates^ 
both  defences  must  fail. 

Divisional  Council  of  Clan- 
William  v.  Peters 126 

Divorce — Forfeiture  of  benefits — 
Division  of  joint  estate. 

In  actions  for  divorce^  where 
the  parties  hare  been  mai'ried 
in  community^  but  tlie  plain- 
tiff has  not  contributed  anything 
to  the  common  property y  divi- 
sian  of  the  joint  estaie  and  not 
forfeiture  of  benefits  should  be 
claimed, 

McGregor  V.  McGregor       ...  114 

Divorce  —  Substituted  service  — 
Authentication. 

The  Court  granted  a  decree  of 
divorce  on  the  faith  of  an 
affidavit  sworn  by  a  clerk  to 
a  cei'tain  firm  of  attorneys  in 


PAGE 

Chicago y    hut    stated    that    in 
future    all    similar    affidavits 
must  be  duly  authenticated. 

Butler  V.  Butler       239 

Divorce — Domicile. 

Wit  ere  a  wife,  icha  had  come 
to  this  Colony,  sought  to  sue 
hef  husband  for  restitution  of 
conjugal  rights;  tlie  husbatid 
having  promised  to  foUow  her 
to  the  Colony y  hut  never  having 
done  so :  the  Court  refused  to 
assume  jurisdiction. 

Linley  v.  Liiiley       564 

Divorce — Domicile. 

Ex  parte  Keating     959 

Divorce — Order  for  restitution  of 
conjugal  rights. 

Before  divorce  can  be  granted 
far  failure  to  comply  with  an 
order  for  restitution  ^conjugal 
rights,  service  of  the  rule  nisi 
m ust  be  proved  by  affidavit.  It 
is  not  sufficiefit  to  show  that 
the  rule  tnust  have  come  to  the 
defendant's  knowledge  in  some 
tray  or  other  (e.g.)  because  he 
or  she  was  present  in  Court 
when  it  teas  granted. 

Raubenheimer    v.    Rauben- 
heimer        ...         ...         .»•  451 

Dog  —  Injury  —  Knowledge  of 
vicious  propensity  —  Master 
of  passenger  ship. 

Tlie  plaintiff,  a  foreigner,  being 
a  third-class  passefiger  on 
board  a  mail  steamer,  was 
bitten  by  a  dog  which  hail  been 
tied  up  at  a  spot  from  which 
it  could  reach  the  part  of  the 
ship  ordinarily  occupied  by 
third-class  passcfigers.  The 
master  of  the  ship  was  aufare 
of  the  vicious  propensity  of 
the  dog,  and  had  put  up  a 
notice  in  English  that  it  was 
dangerous. 

Held,  that  the  oumers  of  Hie 
ship  were  liable  in  damages 
for  the  injury. 

Kuit  V.  Union-Castle  Steam- 
ship Co.      .,,        ...        ...    09 


DIGEST. 


iz 


PAGE 

Dominium,  nee  Sale  and  delivery...   123 

Domifimm,  see  Sale  and  purchase  655 

Dormant  partner,  see  Partnership    21 

Ejectment,  see  Mission  station  ...  943 

Ejectment,  see  Native  reserve    ...  717 

Ejectment — Bights  of  joint  ten- 
ants— Acquiescence. 

Harris  v.  Lee 230 

Election,   see  Divisional   Council 

826,  934 

Employer  and  employee — Month- 
ly notice. 

D.  h<td  contracted  to  sei*ve  J/. 
for  a  certain  monthly  salary, 
the  engageme^it  to  he  termina- 
hie  on  a  month's  notice  on 
either  side.  D.  asserted  tliat 
it  was  understood  between  him- 
self and  one  B,  Uiat  the  notice 
must  expire  on  the  last  day  of 
the  month.  M,  had  given  D. 
notice  on  the  9th  December, 
1904,  ami  tendered  plaintiff's 
salary  to  January  9th,  1905. 

B.  toas  not  called  for  the 
defence,  and  it  icas  admitted 
thai  D.  was  in  the  habit  of 
rendering  his  accounts  at  the 
end  of  each  month.  D.  now 
claimed  salary  for  the  entire 
month  of  January. 

Held,  that  judgment  must  be 
given  for  D.,  with  costs. 

Davis  v.  McDonald 919 

Estate  of  deceased  spouse — Minor 
heirs  —  Executor  —  Advance 
by  survivor  to  enable  execu- 
tors dative  to  bring  an  action 
against  himself. 

C.  and  his  wife  were  married 
in  community  and  had  issue. 
At  the  time  of  Mrs.  C.'s  death 
these  children  were  minors,  but 
C,  took  no  steps  to  protect  their 
interests,  and  remained  in  pos- 
session of  the  entire  joint  estate. 
Subsequently,  when  about  to 
re-mairy,  he  made  a  declara- 
tion that  the  value  of  the  joint 


PAGE 

estate  teas  under  £100.  The 
executors  datire  to  the  estate 
of  the  deceased  now  applied 
for  an  order,  calling  upon  C. 
to  pay  certain  moneys  to  enable 
them  to  bring  an  action  to  have 
if  declared  ict  what  sum  the 
heirs  of  the  deceased  icere 
entitled. 

Held,  that  a Ith ough  in  ordinary 
cases  a  plaintijff  camwt  conqtel 
a  defemlant  to  advance  money 
to  meet  the  costs  of  an  action  ; 
yet,  as  these  executors  repre- 
sented a  v)ife  married  in  com- 
munity,  an  order  must  be 
granted  as  prayed. 

Cowling's  Estate  v.  Cowling  933 

Estoppel,  see  Martial  law  ...  521 

Estoppel,  see  Purchase  and  sale...  280 
Eviction,  see  Purchase  and  sale  ...  281 

Exception,  see  Plea  319 

Exception,  see  Plea  178 

Exception  to  summons,  see  Magis- 
trate's Court  ...         ...         ...  124 

Exception,  see  Pleading 589 

Excise  duty— Acts  36  of  1904, 
Sec.  18,  and  26  of  1905, 
Sec.  4. 

Rex  V.  Gourlay  and    Cava- 
nagh  ...         ...         ...  747 

ExcuRsion  of  principal  debtor,  see 

Provisional  sentence Ill 

Excussion  of  principal  debtor,  see 

Promissory  note       833 

Executor,  see  Estate  of  deceased 

spouse ...         ...         ...         ...  (7«j«j 

Failure  of  conditional  legacy,  see 

TV  1a  A        •••  ••«  ■••  •••     Q%J  X. 

Fire  insurance  —  Conditions  of 
policy. 

V.  had  insured  against  fire 
with  the  N.Z.  Co.,  aiul  subsC' 
qiiently  his  premises  were 
burned.  By  the  conditions  of 
his  policy  he  teas  bound  (i)  to 


DI0B8T. 


PAGE 

(fire  ntttirf  to  the  com]  taut/  of  the 
fire  forthwith  ;  ami  {2)  trithin 
lo  (tof/g  to  fnruiiih  th*  m  tnth 
an  lU't'urate.  ami  jmrtirular 
accofOit  of  hU  logfteM.  (J)  // 
woif  further  prorlded  that  no 
action  should  be  fnufUiimihle 
against  the  company  xmlesH 
hr ought  xcithin  six  months  after 
the  loss  or  damage.  V.  had 
not  complied  tn'th  the  second 
conditiofij  and  more  than  18 
months  after  his  fire  his  trus- 
tee in  insolvency  brought  an 
action  to  recover  the  insurance 
from  the  company. 

Held,  that  as  these  conditions 
were  fair  ami  reasonable  and 
had  been  duly  brought  to  ]".'« 
notice^  judgment  must  be  given 
for  the  defendant  with  costs. 

Insolvent  Estate  Vink  v.  New 
Zealand  Insurance  Co.     ...  G84 

Fire    insurance  —  Conditions    of 
policy — Arbitration. 

R.  had  tiikeji  out  a  policy  in  a 
certain  Fire  Insurance  Com- 
pany. His  stock  aiid  books 
having  been  subsequently  burn- 
ed during  the  currency  of  this 
policy^  he  made  his  cUiim  and 
agreed  with  the  company  to 
have  his  loss  assejised  by  arbi- 
tration. The  comjHiny  now 
sftught  to  hare  him  interdicted 
from  proceeding  with  the 
arbitration^  on  the  ground  that 
he  had  violated  one  of  the  con- 
ditions of  his  policy  by  not 
having  given  accounts  of  his 
losses  as  full  as  could  be 
given. 

Held,  that  as  the  sufficiency  of 
the  accounts  was  a  quest  ion  for 
the  arbitrator  to  de-cide^  the 
interdict  must  be  refused,  with 
costs. 

Atlas  Insurance  Co.  v.  Rodri- 


ques. 


...  473 


Fire — Negligence— Damages. 

Van  Zyl  v.  Warner  ...      340,  392 

Fidei  Commissum^  see  Will      324,  437 


PAGF. 

Fire — ^Railway — ^Negligence. 

iMtef/an  r.  Cohmial  Gfftern- 
meni  (14  C.T.R.,  l»35)  fol- 
lowed. 

De  Kock  Y.  Colonial  Govern- 
ment ...        ..•        •••  327 

Forfeiture  of  benefits,  see  Divorce  114 

Forgery,  see  Theft  275 

Fraud,  see  Principal         479 

Fraud,  see  Sale  and  purchase     ...  655 

Fraudulent  misrepresentation,  set 

will  ...  ■■•  ...  ...      im*m£t 

Game,  property  in — Animals /em? 
naturae — Trespass. 

A.,  Imng  lawfully  on  the  farm 
of  W.,  shot  thereon  certe^n 
game,  although  W.  hcul  by 
public  notice  expressly  pro- 
hibited the  shooting  of  game 
on  his  farm.  Thereupon  }¥. 
summoned  A.  in  the  R.M. 
Court  for  damages  for  the 
game  killed  and  removed  by 
him.  The  R.M.  gave  judg- 
ment for  the  plaintiff.  f)n 
appeal,  Uie  Iltgh  Court  held 
that  the  Magistrate  should 
have  dismissed  the  case. 

Held  on  appeal,  that  as  there 
can  be  no  property  in  animals, 
ferae  naturae,  W,  uxis  not 
entitled  to  damages  for  the 
kilVnuj  of  game  on  his  farm, 
Semble  :  that  as  a  person  who 
enters  upon  land  for  one 
express  purpose  with  the  con- 
sent of  the  owner  and  takes 
advantage  of  that  consent  to  do 
something  wliich  the  owner  has 
never  sanctioned,  thereby  be- 
comes a  trespasser  :  W.  might 
have  recovered  damages  from 
A.  for  trespass, 

Wright  V.  Ash  ton     544 

Goodwill,  see  Sale  and  purchase...  324 

Grazing    rights,     see    Municipal 

regulations     104 

Gross  irregularity,  see  Review    ...     95 

Gross  irregularity,  see  Review  270,  331 


DIGB8T. 


zi 


PAt4E 

Guarantee — Forged  signature. 

Van  der  Byl  &  Co.  v.  Africa  380 

Guarantor,  »ee  Sale  and  purcbase  340 

Harbour  Board — Graving  Dock — 
Demurrage. 

Theplaintijf  company  agreed 
with  the  defendants  to  hire  the 
use  of  their  Graving  Dock  for 
the  purpose  of  painting  one  of 
plaijitiffs'  vesselsy  from  March 
27th,  Oh  that  dale  plaintiffs 
were  prepared  to  dock  their 
vessel^  but  another  ressel  having 
meaivwhile  been  placed  on  the 
slip,  the  plaint  iff*  8  ship  xoas 
not  docked  till  April  10th. 
Plaintiffs  7tow  claimed  demur- 
rage. 

Held,  that  as,  under  all  the 
circumstances,  the  Harbour 
Board  had  not  been  guilty  of 
any  avoidable  or  unre<is07iable 
delay,  they  were  not  liable  J  or 
demu7Tage. 

Tbe  "Stag"    Line,  Ltd.   v. 
Table  Bay  Harbour  Board  980 

Harbour  Board  Begulations — 
Compulsory  pilotc^e — Acts  8 
of  1879  and  36  of  1896— 
English  Act  17  and  18  Vict., 
C.  104. 

One  of  the  defendants'  vessels 
whih  leaving  Cape  Toirn  Docks 
under  the  pilotage  of  a  pilot 
selected  by  the  Harbour  Board, 
whom  the  Compcmy  were  under 
the  BoanFs  regulations  com- 
pelled to  employ,  struck  and 
damaged  mie  of  the  dock  quays. 
It  was  admitted  that  this 
damage  teas  not  due  to  any 
negligence  on  the  part  of  the 
Company's  servants,  but  to  au 
error  of  judgment  on  the  part 
of  the  pilot. 

Held,  that  so  far  as  the 
Harbour  Board  regulatiom 
gave  the  Board  a  right  of 
action  for  damage  resulting 
from  the  misfeasances  of  their 
own  servants,  they  were  incon- 
sistent with  the  provisions  of 
British  Me)  chant  Shipping 
law  as  set  forth  in  Act  17  and 


PAGE 

18  Vict.,  C.  104,  which  is  h/ 
Sec.  1  of  Act  8  of  1879  also 
the  law  of  this  Colony,  and 
tcere  ultra  vires. 

Table  Bay  Harbour  fioard  v. 
Bucknall  Co.  (14  C.T.R.  S51) 
distinguished. 

Table  Bay  Harbour    Board 
V.  The  City  Line 704 

Hard  labour,  se^  Stock  theft      ...  791 
Husband  and  wife,  see  Will  (jomt)  265 

Illegal  contract  —  Prize  %ht  — 
Boxing  prize  payable  to 
winner. 

A  prize  fght  is  illegaJ,  and 
consequently  the  winner  would 
not  be  entitled  to  claim  the  prize 
from  the  persoti  who  offered  it. 

A  friendly  contest  in  boxing^ 
not  calculated  to  produce  injury 
to  either  party,  would  not  be 
illegal.  A  prize  haviiig  been 
offered  by  the  defendants  to 
the  winner  in  such  a  friendly 
contest,  the  two  competitors 
agreetl  before  the  contest  to 
(Uride  the  prize  between  them, 
whichever  side  should  win. 
This  agreemejit  vkls  communi- 
cated to  the  defendants,  and 
they  acquiesced.  After  the 
contest  the  defeated  competitor 
instituted  an  action  against 
the  defendants  for  half  the 
amount  of  the  prize. 

Held,  ilutt  as  the  defendants^ 
offer  was  to  pay  the  winner, 
and  a4t  their  acquiescence  in  the 
agreement  between  the  competi- 
toi's  did  not  amount  to  a 
promise  to  pay  the  loser  any- 
thing, the  plaintiff  was  'not 
entitled  to  succeed. 

Austin  V.  Morrall  and  others  183 

Illegal  contract,  see    Provisional 

sentence         ...        82 

Illegal  sale,  see  Title  to  laud      ...  361 

Tncola — Security  for  costs — Plain- 
tiff proceeding  by  motion. 

A  jyerson,  not  resident  in  the 
Cnlony,  who  makes  a  claim  in 


xii 


DIGB8T. 


PAGE 

Ute  Supreme  Court  is  tiOt 
entitled  to  be  relieved  from  the 
necesaittf  of  giving  security  for 
costs^  on  the  ground  thcU  he  is 
proceeding  by  way  of  motion 
and  7iot  by  action, 

Brearley  v.  Faure,  van  Eyk 
and  Moore 20 

Income  tax — Share  of  profits  made 
hj  a  foreign  syndicate  on 
diamonds  foand  in  this 
Colony— Sec.  42  of  Act  36 
of  1904. 

The  D.B.  Diamond  Mining 
Compatryj  carrying  on  busi- 
ness in  this  Colony^  had 
arranged  to  sell  their  diamonds 
to  a  London  syndicate^  on  con- 
dition^ inter  alia,  that  they 
should  receive  a  certain  per- 
centage of  the  profits  made  by 
the  syndicate.  Upon  this  per- 
centage Me  Colonial  Oom- 
missioner  of  Taxes  itow  claimed 
income  tax  under  Act  36  of 
1904, 

Held  on  appeal  from  the 
Court  of  Review,  that  as  the 
comj)any*8  share  of  the  profits 
made  by  the  syndicate  teas 
derived  from  diamonds  found 
in  this  Colony^  Sec,  42  of  Act 
36  of  1904  icas  wide  enough  to 
cotter  thisy  and  that  it  was, 
therefore,  subject  to  income  tax. 

Commissioner  of  Taxes  v.  De 
Beers  Consolidated  Mines  619 

Indecent  assault — Children. 

Children  under  the  age  of  7 
years  catinot  be  convicted  of 
indecent  assault, 

Bex  V.  T.  and  J.  Louw       ...  334 

Indorser  and  drawer,  see  Accom- 
modation note  66 

Injury,  see  Dog     69 

Insolvent  Ordinance — Rehabilita- 
tion— Release  from  seques- 
tration. 

Valenski    and    Lipschitz     v. 
Lategan  and  wife 87 


PAGE 

Insolvency,    foreign — ^Process    in 
aid — Comity. 

A/.,  who  had  certcUn  immovMe 
property  in  this  Colony,  had 
been  declared  insolvetU  in  the 
Transvaal,  where  he  was  domi- 
ciled. The  trustees  in  this 
Colony  now  applied  for  leave 
to  administer  the  estate  as  far 
as  the  property  toithin  this 
Colony  was  concerned,  TTie 
Court  granted  a  rule  nisi, 
calling  upon  all  persons  inter- 
ested  to  show  cause  why  the 
appointment  of  trustees  by  the 
Transvaal  Court  should  not  be 
recognized  within  this  Colony, 

In  re  Insolvent  Estate  Moran  563 

Insolvency — Preferent  and  con- 
current creditors — Rights  of 
cessionary  of  a  general  cover- 
ing bond. 

In  1901,  C,  db  Co.  agreed  to 
support  M.  d:  Co.,  on  the  latter 
firm  passing  a  general  covering 
bond  in  their  favour.  C.  &  Co, 
supplied  goods  to  M.  d;  Co. 
from  time  to  time,  for  which 
the  latter  gave  acceptances. 
Subsequently  C.  d:  Co.  dis- 
couided  some  of  these  wiS^ 
the  Standard  Banh,  and  on 
December  12th,  1902,  ceded  to 
the  Bank  the  said  covering 
bond  as  security  for  the 
acceptances  discounted.  In 
1904,  when  the  estate  of  M.  d; 
Co.  loas  sequestrated,  all  their 
current  acceptances  in  the  hands 
of  the  Bank  were  of  date  later 
than  December  12th,  1902. 
The  Bank  claimed  that  debts 
due.  on  these  acceptances  were 
preferent,  and  the  Master 
having  admitted  the  claim,  the 
trustee  filed  a  liquidation  and 
distribution  account  accord- 
ingly. Hie  petitioner  now 
applied  for  this  to  be  amended 
by  treating  the  said  debt*  as 
concurrent. 

Held,  that  as  the  Bank  held 
the  bond  as  security  for  all 
the  paper  of  M.  db  Co,  dis- 
counted bjf  C.  &  Co.,  xchether 


Dli^EST. 


zlii 


PAGE 

before,  or  after  the  ceHHwn,  the 
application  mtmt  he  r(fuHe(L 

He.ydenrych  v.  The  Trustee 
of  Mackie,  Young  &  Co. 
and  another  387 

Insolvency — Provisional  trustee — 
Practice. 

In  the  case  of  an  appltcaiion 
for  appointment  of  a  proi^i- 

sional  trustee  to  an  insolvent 

estate,  the  Court  must  be  in- 
formed as  to  the  proportion  of 

creditors    who    support     such 

application. 


Ex  parte  Marais 


t**     d«jU 


Insolvency  of  fiduciary,  see  Will  437 

Inspection  of  documents — Attor- 
ney and  client — Privilege. 

B.  applied  for  an  order  to 
inspect  certain  letters  which 
had  passed  between  one  D.  and 
the  New  York  Mutual  Intnir- 
ance  Co,  D.  teas  both  agent 
for  the  Company  and  also  their 
local  aitomey. 

Held,  that  as  certain  of  these 
letters  were  written  by  D.  as 
attorney  to  th^i  Company  and 
contained  statements  ajt  to 
evidence  to  be  produced  on 
their  behalf  in  a  pending 
a4ition^  the  applicant  w<t8  not 
entitled  to  inspect  «itc/i  letters. 

Brill  V.  New  York  Mutual 
Insurance  Co 643 

"  Instalment  system,"  see  Sale  and 

purchase         340 

Interdict — Creditors — Disposal  of 
property. 

C.'«  estate  had  been  placed 
under  iufpection^  and  certain 
disputed  accounts  beticeen  M, 
and  himself  had  been  referred 
to  arbitration.  It  was  alleged 
that  C.  was  disposing  of  or 
pledging  his  property  ^  in  such 
wise,  that  M.  feared  he  would 
be  unable  to  meet  his  liabilities 
in  reject  of  any  award  the 
arbitratoi'  might  give  against 
him,     M,  now  applied  for  an 


PAGE 

interdictj  restraining  him  for 
paHing  with,  mortgaging  or 
pledging  his  property. 

Held,  thai  as  the  respondent 
teas  neither  a  peregrinus,  nor 
one  alleged  to  be  tn  contempla- 
tion of  flight,  rw  such  interdict 
cotdd  be  granted. 

Malcomess  &  Co.  v.  Gary    ...  477 


Interdict,  see  Nuisance 


...  495 


Interdict,  see  Trade  mark  ...  383 

Interdict  -  Property  in  Bank. 

At  the  instance  of  a  wife  who 
contemplated  sueing  hir  hus- 
band for  divorce  aitd  division 
of  the  common  property,  the 
Court  interdicted  a  Bank  from 
parting  with  any  of  such 
property  in  its  custody, 

Urmann  v.  Urmann 212 

Interdict,  see  Arbitration  ...  673 

Interdict — Servitude —  PoBsession 
—  Aquasductus  —  Sewerage 
and  drainage. 

The  applicants,  as  owners  of 
land,  having  a  right  of  sexcei'- 
age  and  drainage  over  neigh- 
bouring land,  laid  a  pipe 
fhereoft  for  conveying  water  to 
their  property,  Aft-er  the  pipes 
had  been  so  laid  for  a  year, 
the  respondetil  bought  atid 
received  transfer  of  the  neigh- 
bouring land,  and  thereafter 
cut  the  pipe  on  the  Iwul  so 
transferred  to  him. 

Held,  that  the  servitude  of 
sewerage  and  drainage  does 
not  embrOfCe  the  right  of  laying 
pipes  for  leading  xcater  on  to 
Hie  applicants*  kiikd. 

Held  further,  thai  the  ac- 
quiescence of  the  form/er  owner 
of  the  respondent's  land  for 
less  than  the  period  of  presumn- 
tion  does  not  prejudice  the 
respotident  as  fine  bona  fide 
purchaser  of  the  land. 

Held  further,  that  although 
the  fact  of  the  pipe  having  been 


XIV 


DIGKST. 


PAGE 

used  for  leadintf  vxtier  over  the 
respuntUnt's  land  for  a  year 
might  afford,  prima  facie  proof 
of  the  ttpplicaHts'  riyht  so  to 
lead  the  icater,  it  does  not 
entitlt  them,  in  the  face  of 
the  facts  actually  prored^  to 
the  Praetorian  fdht  de  aqua 
quotidiana. 

Weintroiib    and    another    v. 
Steer  ...         ...         ...     18 

Interrogatories —Magistrate's  dis- 
cretion. 

Plaintiff  had  s?i^d  respondent 
in  the  H.M.  Court  of  Paarl 
before  the  A rtinff  A . R. M.  The 
defendant  applied  for  interro- 
gatories on  which  to  ejvtmine  his 
witnesseH.  As  the  A.R.M.  loas 
about  to  leave  the  Paarl  atul 
did  not  consider  thai  the 
interests  of  justice  would  be 
furthered  by  granting  the 
application^  he  refused  it. 

Held  on  appeal,  that  the 
A  R.M.  had  rightly  exercised 
his  judicia  I  dincrrtion. 

Botma  V.  Norton 125 

Jockey  Club,  see  Betting  house...  988 

Joinder  of  parties— Magistrate's 
jurisdiction — Married  woman 
— Public  trader. 

/).,  ifhilr  under  the  aise  of 
majority  and  unmarried^  leased 
certain  preniists  ftr  the  jfur- 
jmse  (tf  In  r  bffsiness.  i:^he 
after irards  married  in  com 
munity  and  iff/s  sued  for  rent 
amounting  to  £30.  Exception 
was  talcpn  (1)  that  the  amount 
was  beyond  the  Magistrate's 
Jurisdiction^  (2)  that  JJ.'s  hus- 
band atul  not  1).  shmdd  have 
been  sued. 

Held,  (1)  That  the  leatte  being 
a  liqvid  document^  the  sum 
claimed  thereon  was  within  the 
jurisdiction.  (2)  That  D.  was 
rightly  swd  for  a  debt  con- 
tracted while  she  was  a  public 
trader. 


Davidson  v.  Rivertsen 


...  719 


PAGE 

Joint  Stock  Company  with  limited 
liability — ^One  man  company 
— Dummy  and  nominee  share- 
holders. 

^V.,  having  obtained  certain 
rights  under  a  contract  with  a 
comjMuy,  called  the  Trades^ 
Markets  and  Exhibitions  Com- 
pany, for  the  lighting  of  stalls 
ai  the  Exhibition,  teas  unable, 
through  wantoffumh,  to  carry 
out  the  contract.  H.  was  pre- 
/xired  to  join  in  the  venture 
and  supply  the  necessary  funds 
if  he  could  limit  his  liability 
in  the  matter  through  the 
instrumentality  of  a  com/mny, 
with  limited  liability.  Conse- 
quently N.  and  //.,  together 
xcith  fre  other  shat^e holders, 
formed  a  company^  in  which 
these  Jive  shareholders  held 
only  one  share  each,  the  hulk 
of  the  shares  being  held  by 
N.  and  H.  N.  and  H.,  as 
di7'ectors,  managed  the  entire 
business  of  the  company  with- 
out reference  to  the  other  share- 
holders. This  business  con- 
sisted entirely  in  carrying  out 
the  contract  above  mentioned 
under  agreement  betioeen  the 
company  and  N. 

Held,  that  there  icas  nothing 
illegal  in  the  constitution  of 
the  company  ;  and  that  H.  was 
entitled  under  the  law  to  limit 
his  liability  in  respect  of  the 
business  t/ansacted  under  the 
contract  in  the  manner  adopted. 

Hcrron   v.   Torque   Co.  and 
others        * 527 

Joint  tenant,  see  Ejectment       ...  230 

Keeping  a  brothel— Permanently 
residing  therein— Act  36  of 
1902. 

A  prostitute,  wh-o  permanetdly 
resides  in  a  brothel,  is  liable 
to  prosecution  nnder  the  22nd 
section  of  Act  36  of  1902,  as 
being  a  keeper  of  a  brothel. 

A  troman,  who  is  employed  as 
a  servant  in  a  brothel  but  sleeps 
in  her  own  home  at  nights,  does 


DIGEST. 


XT 


PAGE 

not  pertnanently  reside  tliere^ 
and  cannot  be  convicted  of 
keeping  a  brothel. 

Rex  V.  Daly  aod  Hallan      ...     57 

Landlord — Agent  with  power  of 
attorney — Divisional  Council 
— Sanitation — Xuisance — Act 
23  of  1897,  Sec.  50. 

One  A.  had  built  some  20 
cottages  on  his  properly^  which 
toas  not  within  a  munici/Mil 
boumlort/,  for  none  of  trhich 
he  had  provided  sanitary 
accommodation.  Ilr  was  not 
resident  within  the  •  Colony^ 
but  had  left  his  jfOircr  af 
attorney  with  F.^  F.  haviny 
he^n  summoned  in  the  JR.M. 
Court  at  the  instance  of  the 
Divisional  Council  of  W.  under 
Sees.  50  and  51  of  Act  2S  of 
1897,  was  ordered  to  pro  ride 
the  accommodation  required. 

Held  on  appeal,  that  as  the 
Divisional  Council,  as  the  local 
authority,  had  a  locus  standi 
in  judicio,  and  that  as  the 
absence  of  the  sanitury  accom- 
modation demanded  led  directly 
to  a  common  nuisance,  the 
appellant  was  bound  to  carry 
out  the  order  of  the  Court 
below. 


Bex  V.  Findlay 


630 


Lashes  —  Previous    conviction  — 
Act  43  of  1885. 

Rex  V.  McLaughlin 276 

Lashes,  see  Magistrate's  jurisdic- 

tiion     ...         ...         ...         ...  oJo 

Lateral    support — Damages — In- 
terdict. 

Abrahams  v.  Estate  Bassen- 
dien  ...         ...         ...  835 

Law  Society — Attorney — Admis- 
sion. 

Where  the  Lata  t^oriety  raises 
difficulties  in  respect  of  the 
admission  of  an  attorney ;  it 
should  diratly  oppose  and 
produce  definite  facts  in  sup- 
port of  its  opjmsitifpn. 

Jones,  Ex  parte        12 


PAGE 

Lease  of  licensed  premises  — 
Licence — Removal  of  busi- 
ness— Transfer  of  licence. 

The  plaintiff,  the  holder  of 
liceuces  for  two  hoteln,  and 
ointer  of  the  land  with  the 
hotels  then  on,  sold  the  lease, 
licences,  i(oodn'iU„  furniture^ 
and  all  contents  thereof,  and 
executed  a  lease  of  the  hotels 
for  five  years,  with  a  right  oj 
ren»:wal  for  another  five  years 
in  favour  of  the  defendants, 
icho  obtained  from  the  Licen- 
niny  Court  a  transfer  of  the 
licence  to  fh*  mselccs. 

Held,  sifRrniing  the  judgment 
of  a  Divisional  Court,  thfft 
the  defendant.^  had  wt  right, 
during  the  currency  if  the 
lease,  to  remove  the  hu;<iness 
and  the  licence  connected  there- 
with to  other  premises. 

Bosman,    Powis    &    Co.     v. 
Nordeu       192 

Lease,  sec  Provisional  sentence  ...  277 

Letting  and  hiring  —  Duties  of 
hirer. 

P.  F.  had  hired  certain  wagons 
and  oxen  from  P.  and  others, 
with  the  ofiject  of  sub-letting 
them  to  the  Military.  lie 
took  tliem  up  to  the  fnmt  ami 
handed  them  over  to  the 
Military  on  certain  te)-ni.s.  lie 
was  afterwards  succeeded  by 
his  brother  F.  F.  as  conductor, 
P.  F.  was  duly  paid  for  their 
use,  and  in  turn  settled  with  P. 
and  others.  After  some  months 
the  wagons,  ^-c.,  were  dis- 
charged bf/  the  Militarif. 
F.  F.  and  P.  F.  failed  \o 
return  them  to  their  owners,  as 
they  held  that  their  resptmsi- 
bility  for  them  ceased  on  their 
discharge.  P,  Kubaequently 
sued  F.  F.  and  P.  F.  in  the 
Magistrate's  Court  for  their 
return,  or  their  value,  and  for 
dfimagen  for  il/egcd  detention. 
P.  F.  claimed  in  reconvention 
frr  certain  nanteys  which  he 
hod  di  slat  rued  on  fjehaff  (f  P. 
The  Magistrate  gave  judgment 


DIGBST. 


PAGE 

for  the  defendants  in  conven- 
tion and  for  P.  F.  in  reconven- 
tion.  On  appeal,  the  E.  D, 
Court  reversed  this  judgment 
as  to  F.  F,  and  gave  judginetU 
for  F.y  hut  upheld  the  claim 
of  P.  F,  Against  that  judg- 
ment F,  F.  now  appealea. 

Held,  affirming  the  judgment 
of  the  E.  D.  Court,  that  F.  F, 
was  bound  to  return  the  wagons 
and  oxen  to  P.,  or  pay  value, 

Freemantle  v.  Pama 493 

Lessor  and  lessee — ^Mental  capa- 
city of  lessor. 

Jacobsohn  v.  Schultz  ...  441 

Libel — Privilege — Legal  malice — 
Damages. 

The  defendatUs  luulj  without 
express  malice^  falsely  si-ated 
in  a  paper  privately  circulating 
among  some  3fl00  subHcribers, 
that  a  judgment  had  been 
obtaitisd  against  the  plaintiff 
in  a  certain  R.M,  Court.  They 
pleaded  the  absence  of  malice 
and  privilege. 

Held,  that  as  they  had  been 
guilty  of  legal  malice  and  as 
the  statement  in  their  paper 
was  not  privileqed  /  the  plain- 
tiff itus  ejititled  to  recover  sub- 
stantial damages^  even  though 
lie  had  not  proved  special 
damage. 

Pickard  v.  The  S.  A.  Trade 
Protection  Society  and 
another       155 

Licence  (liquor),  see  Lease  of 
licensed  premises      192 

Licensing  Court — Objections  to 
granting  of  licence — Gross 
irregularity. 

On  the  hearing  of  an  applica^ 
Hon  for  a  retail  liquor  licence, 
one  of  the  members  raised  the 
objection  Hiat  there  was  a 
mfUcient  mimber  of  licensed 
houses  in  the  district^  aiuL  a 
discussion  on  die  point  thei'e- 
upon  arose  in  the  j^resence  of 
the  applicant  cuul  his  agent^ 


PAGE 

neither  of  whom  requested  an 
adjournment  for  the  further 
consideration  of  the  applica- 
tion. The  application  for  a 
licetice  was  rejused. 

Held,  that  the  more  formal 
course  would  have  been  to 
inform  the  applicant  of  the 
definite  objectiotiy  but  that,  in 
the  absence  of  any  evidence  to 
shew  that  an  ctdjoumment 
loould  fiave  enabled  htm  to 
meet  the  objection,  he  wa^  not 
entitled  to  have  the  proceedings 
net  aside. 

Norton  v.  Victoria  East  Licen- 
sing Court 59 

Liquid  and  illiquid  claims,  see 
Provisional  sentence 306 

Liquid  document,  see  Provisional 
sentence         ...         ...         ...  321 

Liquor  Licensing  Acts— Transfer 
of  licence — Dissolution  of 
partnership. 

A  licence  to  sell  liquor  by  retail 
was  granted  to  G.,  who  was 
then  in  jfartnership  with  the 
appellant.  The  partiiership 
was  dissolved,  and  the  appel- 
lant continued  to  carry  on  the 
business  on  his  man  behalf 
although  no  transfer  of  the 
licence  had  been  granted  to  him 
in  terms  of  the  55th  section  of 
Act  28  of  18S3. 

Held,  that  the  appellant  had 
been  properly  convicted  of 
selling  liquor  without  a  licence. 

Rex  V.  Hoffman       58 

Liquor  licence — Magistrate's  dis- 
cretion— Withholding  of  cer- 
tificate. 

S.  had  applied  for  a  new 
liquor  licence  in  respect  of 
certain  premises,  and  the  licence 
v)as  gi'anted.  The  Magistrate 
withheld  his  certificate  on  the 
ground  tfuit  some  of  the  sig- 
natures to  the  petition  were 
forgeries. 

Held,  that  as  after  the  forged 
names  were  struck  ojf\  there 


DIGEST. 


xvil 


PAGE 

was  still  a  majority  in  favour 
of  the  licence^  the  Magistrate 
loas  bound  to  gratit  his  certifi- 
cate. 

Stevenson    v.     Cape    Town 
Licensing  Court 384 

Liquor  Licenning  Acts — Selling  to 
native— Permit. 

The  appellant,  having  been 
charged  in  a  Magistrate's 
Cawrt  taith  having  mi  divers 
days  during  the  month  of 
January y  1905,  sold  liquor-  to 
natives,  who  had  no  permit 
from  their  master,  in  contra- 
vention of  a  condition  in  his 
licence,  it  was  proved  that  the 
fiatives  shewed  permits  from 
their  mistress,  in  whose  service 
they  were  for  the  greater  part 
in  each  week,  and  that  some 
permits  were  giveti  by  an 
adult  daughter  of  their  mistress, 
but  it  was  not  clear  that  any 
of  the  permits  was  given  on 
days  on  which  the  natives  were 
not  in  service  or  that  those 
given  by  the  daughter  were 
acted  upon  on  any  of  the  days 
mentioned  in  the  summons. 

Held,  that  a  convict' m  of  a 
contravefitiofi  on  each  of  the 
days  specified  in  the  summons 
could  not  be  supportedy  and 
that  as  it  would  be  difficult  for 
the  Court  of  Appeal,  without 
some  furJier  evident,  to 
ascertain  o7i  which  particular 
days  there  might  have  beett  a 
cojitravention,  the  conviction 
should  be  set  aside. 

Bex  V.  Le  Grange    273 

Lobola,  see  Native  742 

Local  authority,  see  Slaughter 
house  •••        •••        •••        •••  272 

Lunatic — Husband's  liability  for 
maintenance  of  wife  in  an 
asylum — Act  1  of  1897,  sec. 
69. 

S.  had  engaged  to  pay  at  the 
rate  of  4s,  6d.  a  day  for  the 
mainteimnce  of  his  wife  in  a 
luncUic  asylum,  but  subse- 
quently finding  himself  unabU 


PAGE 

to  pay  that  sum,  he  wished  to 
vary  his  contract  by  paying 
less. 

Held,  that  as  his  cofitract  vxis 
not  for  any  definite  time,  he 
co\Ud  not  be  sued  thereon. 

Held  further,  that  by  See,  69 
of  Act  1  of  1897,  he  was 
liable  for  the  actual  cost  of  his 
wife's  maintenance. 

Colonial  Government  v.  Silver  501 

Magistrate's  Court — Amendment 
of  summons—  Service. 

The  respondents  canned  on 
business  as  Barnes,  Van 
Staaten  and  Deans.  The 
appellant  sued  the  firm  under 
Aat  name  in  an  R.M.  Court, 
atul  the  summons  was  person- 
ally served  on  one  of  th€ 
defendants.  Plaintijff^s  attor- 
ney had  applied  to  defendants 
to  disclose  the  full  names  of 
all  members  of  their  firm,  but 
this  request  was  not  complied 
with.  When  the  case  came 
itito  Court,  a  power  of  attorney 
in  the  fuime  of  all  and  singiUar 
the  defendants  was  filed. 
Plaintiff's  attorney  craved 
leave  to  ametid  his  summons 
accordingly,  but  this  leave  was 
refused  and  the  exceptions 
(1)  That  no  proper  hummofis 
had  been  issued;  (2)  That 
due  service  had  not  beett  effected 
were  upheld. 

Held  on  appeal,  that  the  service 
was  good  and  that  the  Magis- 
trate ought  to  have  allowed  the 
summons  to  be  amended. 

Lafayette    v.     Barnes    and 


others 


...  127 


Magistrate's  Court — Exception  to 
summons — Vague  and  em- 
barassing. 

It  is  a  good  exception  to  a  civil 
summons  in  a  Magisirate's 
Court  which  is  unintelligible 
and  does  not  give  a  sufficient 
indication  of  the  case  the 
defendant  has  to  meet,  that  it 
is  vague  and  embarrassing. 

Feltman  v.  Buirski 


124 


zriii 


DiaiST. 


PAGE 

's  diflcretiou,  9ee  Liquor 
licence  384 

Magifltrate's  discretion,  see  Inter- 
rogatories       125 

Magistrates's  finding  on  evidence. 

The  Court  refiMed,  on  appeal^ 
to  reverse  a  Magistrate's  find- 
ing on  the  evidence,  though  it 
did  not  consider  his  reasons 
for  judgment  satisfactory, 

Madolo  y.  Mlijimi 129 

Magistrate's  inferences  from  facts. 
Sterrenberg  v.  North  ...     98 

Magistrate's  finding  on  facts  over- 
ruled. 


Bex  ▼.  Jellimen 


...  «}«/ «f 


Magistrat-^'s  finding  on  facts. 

Bex  V.  Verwey         649 

Magistrate's  jurisdiction — Coun- 
terclaim— Evidence  of  bona 
fides— Bet  off. 

Bakker  ▼.  Ludolph 758 

Magistrate's  jurisdiction — Judg- 
ment to  pay  debt  by  instal- 
ments. 

Fowler  v.  Joubert 710 

Magistrate's  jurisdiction — Coun- 
ter-claim. 

Where  a  counter-claim  in  excess 
of  the  jurisdiction  is  brought 
in  a  Sfagistrate's  Court,  the 
Magistrate  must  take  evidence 
as  to  the  bona  fides  of  the 
counter-claim. 


Kruger  v.  Du  Pisani 


...  574 


Magistrate's  jurisdiction,  sec  Join- 
der of  parties 719 

Magistrate's  jurisdiction — Title  to 
land. 

Loxton  V.  Le  Haine 832 

Magistrate's  jurisdiction— Lashes 
—Act  43  of  1885. 


PAGE 


Malicious  injury  to  property. 

if.  and  F.  had  killed  a  certain 
ox,  the  priyperty  of  complain- 
ant. The  ox  icas  sick,  com- 
plainant was  absent,  and  the 
accused  told  compiainani^s  son 
th4it  they  killed  the  ox  to  avoid 
quarantine. 

Held  on  appeal,  thai  this 
statement  negatived  arty  pre- 
sumption of  malice. 

Bex  T.  Malaza  and  Funda- 

jkimjis**  •#•  •••  ••■ 


550 


Bex  V.  Hans  Pekeur 


...  396 


Malice  (legal),  see  Libel 155 

Malicious  desertion — Character  of 
party  deserted — Amount  of 
maintenance. 

Bex  V.  Kili 59 

Managing  agent  of  mercantile 
firm — Salary  — Share  of  pro- 
fits— Agreement  with  princi- 
pals— Goodwill. 

Where  tJie  managing  agents  of 
a  certain  firm  had  considerably 
extended  their  btisine^s,  afui 
had  iftvested  considerable  sums 
ofmofiey  therein :  on  the  termi- 
nation of  their  agreement  the 
Court  held  that  the  plaintiffs 
were  entitled  to  a  statemefit  of 
account  a  fid  to  the  percerdage 
specified  in  the  contract, 

Waite  V.  Hansen  and  Schra- 
der  ;  Bracht  v.  Hansen  and 
Schrader     134 

Managing  director,  see  Principal  479 

Marriage,  see  Native        742 

Marriage  —  Bigamy  —  Decree  of 
nullity. 

The  Court  refused  to  grant  a 
decree  of  nullity  of  marriage 
on  motion ;  though  the  respon- 
dent had  been  convicted  of 
bigamy  by  inlennarrying  with 
the  applicant,  his  wife  being 
still  alv^e, 

Donaghy  v.  Donaghy  ...  248 

Marriage  Oniinance — Description 
of  status  of  spouses. 

»S.  a}id  his  wife  had  been  mar- 
ried   according     to    Hebrew 


btGtet. 


PAGE 

rites  at  Noi'vals  Pont  by  the 
Rabbi  of  Bloemfontein.  S. 
xoas  domiciled  in  this  Colony. 
Having  some  doubt  as  to  the 
civil  validity  of  their  marriage, 
they  icished  to  be  re-married 
by  a  Colonial  Magistrate^ 
but  having  some  scruples  as 
to  describing  themselves  as 
" hachelo'*' *'  and  *' spinster"  in 
view  of  their  previous  mar- 
riage,, they  now  asked  for  an 
ord^r  authorizing  a  Magistrate 
to  marry  them-  without  their 
so  describing  themselves.  The 
Court  refused  to  make  any 
order. 

Ex  parte  Sacks  and  another  513 


Marriage  of  minor — Consent  of 
parent. 

Where  a  parent  raises  no 
objection  to  the  marriage  of  a 
minor  child,  but  refuses  to  give 
express  consent,  such  lying  by 
cannot  be  construed  as  tacit 
consent. 

Should  the  parent  unreasonably 
refuse  or  withhold  coiisent^  the 
minor  may  apply  to  the  Chief 
Justice,  in  Chamber's,  to  author- 
ize the  marriage. 

Duncan  v.   Resident   Magis- 
trate of  Mossel  Bay 


•■  • 


927 


Martial  '^  Law  " — Scab  inspector 
— Refusal    of    facilities    by 
military — Suspension — Salary 
— Estoppel. 

L.,  a  scab  inspector,  urns  during 
the  late  Martial  Imw  regime, 
prevented  by  the  military 
authorities  from  performing 
his  duties,  and  was  iwtified  by 
the  Agricultural  De^Mirttnent 
that  the  payment  of  his  salary 
would  be  suspended  until  he 
should  again  be  alloiced  to 
perform  such  duties.  The 
Court  found,  as  a  fact,  that 
the  plaintiff  had  acquiesced  in 
this  arrangement.  Thereafter 
the  Agricultuj'al  DejHiriment 
diacm'ered  that  he  had  been 
depm'ted  by  the  military  as  an 
"  undesirable. '^  No  specific 
offettce    toas   alleged   against 


PAGE 

him;  but  the  Department 
tievertheless  dismissed  him. 
He  was  paid  salary  up  to  the 
time  that  he  icas  deported. 
He  now  claimed  salary  for  the 
entire  pei'iod  covered  by  his 
suspensioti. 

Held,  that  the  plaintiff  was  by 
his  action  estopped  from  claim- 
ing salary  far  the  time  during 
which  he  was  prevented  by  the 
military  from  performing  his 
duties, 

Lubbe  V.   Colonial  Govern- 
ment ...        ...        ...  521 

Master  of  Supreme  Court— Proof 
of  debt. 

Jeanneret  v.  Estate  Sharpe...    85 

Massing,  see  Will  (joint)  255,  631,  691 

Measure  of  damages,  see  Con- 
tract          657, 750 

Medical  and  Pharmacy  Acts — 
Chemists'  and  druggists* 
assistant  practising  as  chemist 
and  druggist. 

The  appellatit,  who  was  not 
duly  licefiaed  as  a  chemist  and 
druggist^  prepared  medicine, 
as  it  uxis  his  habit  of  doing, 
according  to  the  presciHption 
of  a  medical  practitioner^ 
during  the  temporary  absence 
of  his  employer  S.,  who  was 
duly  licensed  and  loas  the 
owner  of  the  chemists'  shop  in 
which  the  appellant  was  em^ 
ployed. 

Held,  that  the  appellant  was 
guilty  of  a  contravention  of 
the  35th  section  of  Act  S4  of 
1891. 


Bex  V.  Jansen 


.  •  •    aO  Vf 


Medical  attendance,  see  TraveUer  162 

Messenger  of   R.M.   Court — At- 
tachment— Sale  in  execution. 

Jt  is  the  duty  of  a  messenger 
who  has  been  enti'usted  with  a 
writ  of  execution  to  attach  the 
goods  named  therein  awl  sell 
them  on  the  due  date,  even  if 
they  are  claimed  by  a  third 


DlGSSt. 


1 


PAGE 

person.  In  guch  cote  he  should 
take  security  for  indemnity 
from  the  judgment  creditor. 

Smith  V.  Watney      ...        ...  767 

Mining  company  —  Agent  —  Re- 
muneration —  Damages  for 
non-delivery  of  ahares. 

T*he  defendants  engaged  to 
remunerate  M.  for  his  services 
with  a  certain  money  payment 
and  certain  mining  Quires. 
These  shares  tcere  not  d-elivered^ 
and  M.  now  sued  for  delivery 
and  also  for  damages  for  non- 
delivery. 

Held,  that  he  could  not  succeed 
on  both  claims. 

Held  farther,  that  he  was  not 
entitled  to  damages  for  delay 
in  the  delivery  of  the  shares^ 
though  they  had  greatly  fallen 
in  value. 

Philip  T.  Metropolitan  Bail- 
ways  (10  tTuto,  52)  followed. 

Mitchell  V.  Sam  Weil  Syndi- 
caxie ...        ••*         ...        ».»  jiL  9 

Minor  heirs,  see  Estate  of  deceased 
spouse 933 

Minor  fidei-commissories,  rights 
of,  see  Will 437 

Misjoinder  of  parties,  sec  Sale  and 
purchase         302 


Mission  station — Grazing  rights. 
Rex  V.  Adams  and  others  ... 

Mission  station  —  Rules  —  Eject- 
ment. 

Africa  v.  Rhenish  Missionary 
Society       •. 

Mission  station  —  Rules  —  Con- 
tract— Declaration  of  rights 
— Ejectment. 

A  certain  Missionary  Society 
had  acquired  the  absolute  domi- 
nium of  a  certain  farm  for 
the  purpose  of  a  mission  sta- 
tion^ and  had  established 
thereofi  a  !<ett1emtmt  for  colour- 
ed  people.  Rules  fn-  the  gowl 
government  of  the  settlement 
were  drawfh  up  by  the  Mission- 


401 


170 


PAGE 

aries,  to  which  all  persons 
who  settled  on  the  lattd  were 
required  to  assent.  These 
rtUes  were  read  to  the  people 
from  time  to  time^  but  were 
not  printed  for  many  years. 
In  1881  y  these  rules  (with  a 
feio  uninportant  modi^cations) 
were  printed  and  circulatea. 
The  riUes  provided^  inter  alia, 
that  any  erf  holder  on  the  sta- 
tion could  be  ejected  from  his 
holding  on  a  motUKs  notice 
subject  to  his  right  on  a  fixed 
scale  of  compensation  for  his 
improvements.  Three  of  the 
defendants  who  had  persisted 
in  breaking  certain  rules  of 
the  station  received  such  notice, 
but  refused  to  comply  there- 
with.  Other  two  had  received 
no  such  notice  but  had  trans- 
gressed the  rules  by  refusal  to 
pay  rent,  on  the  ground  that 
they  had'  a  quasi  pi'oprietary 
right  in  their  holdings.  The 
Society  now  claimed  a  declara- 
tion of  rights  as  against  the 
defendants^  an  order  of  eject- 
ment and  arrears  of  rent  from 
those  who  had  refused  to  pay, 
tendering  at  the  same  time 
compensation  for  improcements 
as  fixed  by  the  I'ules. 

Held  (1)  that  die  rules,  as 
printed,  formed  the  basis  of 
the  contract  between  the  Mis- 
sionaries atui  the  people; 
(2)  that  the  Society  urns,  there- 
fore, entitled  to  an  order  of 
ejectment  against  the  defen- 
aants;  (S)  Oval  the  defendants 
were  entitled  to  compensation 
for  their  improvements^  such 
compensation  t-o  be  subject  to 
set-off  for  rent  due,  or  other 
legal  liabilitiss. 

Trustee  of  the  Rhenish  Mis- 
sion Society  v.  Barron  and 
others         943 

Municipal  Council — Administra- 
tive acts  —  Interdict —  Ille- 
gality—L^//ra  vires. 

The  Supreme  Court  will  not. 
by  interdict,  interfere  with  the 
cidministrative    ctcts    of   any 


DIGEST. 


zii 


PAGE 

Municipal  Council  unless  such 
acts  are  ultra  vires  or  otker- 
toisc  illegal. 

.Cape  Town  Eatepayers'  As- 
sociation and  others  v.  Cape 
Town  Town  Council       ...1012 

Municipal  Council  —  Election  — 
Act  45  of  1882,  Sec.  17  — 
Office  of  profit. 

N.  had  been  elected  a«  a  Coun- 
cillor of  the  Municipaliti/  of  A . 
At  the  time  he  ivas  municipal 
poundmaster,  for  the  duties  of 
which  he  was  remunerated  by 
Jees. 

Held,  that  as  this  was  an  oQice 
of  profit  under  the  Munici- 
pality, he  was  disqualified  from 
being  elected  by  Sec.  17  of 
Act  46  of  1882. 

Reich  V.  McNally  and  Aliwal 
North  Municipal  Council...  787 

Municipal  regulations  —  Grazing 
rights — Illegal  enclosure  of 
commonage. 

Commissioners,  Adendorp 
Municipality  v.Kingwell...  104 

Municipal  Regulations  —  Powers 
of  Council  —  Demolition  of 
buildings  —  Measure  of  -  da- 
mages. 

Certain  Municipal  Regulations 
jyrovided  that  '•  tchere  a  build- 
ing is  considered  by  the  Council 
to  be  ruin^*:s  or  so  far  dilapi- 
dated a ,  thereby  to  have  become 
and  to  be  unfit  for  use  or 
occujKition"  the  Council  may, 
oil  failure  by  the  owner  to  obey 
an  order  for  its  demolition, 
proceed  tc  demolish  the  build- 
ing and  claim  the  cost  from 
the  owner. 

Held,  in  an  action  by  the 
Council  for  the  cost  of  the 
demolition  of  certain  cottages 
of  the  defendant,  thit  the 
(*<mncil  lujd  no  power  under 
such  regulntiontt  to  demolish 
buildings  which  were  atructu- 
rally  fit  for  use  and  ocr.njmtion, 
altfiongh  from  a  sanitary  pfdnt 
ofviewj  they  were  not  so  fit. 


PAGE 

In  ordering  the  demolition,  the 
Council  acted  bona  fide  and 
in  the  interest  of  the  inhabitants 
of  the  town  at  a  time  when  the 
plague  was  raging  there,  and 
the  defendant  was  jyroved  to 
have  been  generally  neglectftd 
of  his  duties  as  landlord. 
Held,  in  the  defendant's  claim 
in  reconvention  for  damages, 
that,  in  the  absence  of  any 
circumstances  of  aggravation, 
the  measure  of  damages  which 
should  be  applied  was  the 
diminution  in  the  selling  price 
of  the  land  by  reason  of  the 
unlawful  act  of  the  Council. 

Reid  V.  Port  Elizabeth  Town 
Council       166 

Municipality — Negligence  —  Per- 
sonal injury. 

Van    Niekerk    v.     Wynberg 
Municipality         61 

Murder — Bail. 


Rex  V.  Broodryk 
Rev  V.  Tromp 


...  807 
...1022 


Native  — ^  Marriage — Lobola  — In- 
terpleader. 

D.  W.  M.  had  obtained  a 
judgment  in  a  Transkeian 
R.M.  Court  against  A.  M. 
D.  W.  M.  took  out  a  writ  of 
execution  and  thereunder  at- 
tached  certain  cattle  in  posses- 
sion of  B.  B.  asserted  that  . 
these  cattle  had  been  paid  to 
him  as  ^^  Lobola"  by  A.  M. 
The  man'iage,  however,  be- 
tween A.  M.  and  B.*s  daughter 
not  having  taken  place,  the 
Magistrate  decided  that  the 
dominium  of  the  cattle  loas  in 
A.  M.,  and  that  they  were, 
therefore,  attachable  for  his 
debts.  On  appeal,  the  Circuit 
Court  revei'sed  this  decision  of 
tihe  R.M. 

Held  on  further  appeal  to 
the  Supreme  Court,  that  the 
jiuigment  of  the  Circuit  Coui-t 
munt  be  affirmed. 

Peacock  v.  Ben  Rango  {12 
C.T.R.,  646)  distinguished. 

Mills  V.  Bidli 742 


zxU 


Dl0]S8f. 


PAGE 

Native  reserve  —  Ejectment  — 
Crimina]  prooeedings  —  Act 
37  of  1884. 

TheappellantH^  Europeans^  had 
been  ejected  Jrom  a  certain 
maiive  rejserve  ofi  a  Magitttrate't 
order  granted  against  them 
after  crimittal  proceedings  had 
been  taken.  There  was  no 
evidence  thai  any  native*  were 
living  on  these  lands. 

Held,  that  as  the  place  was 
not  a  native  locaiiofi  in  terms 
of  Act  37  of  1884,  the  a/yyel- 
tants  ioere  not  liable,  either 
civilly  or  criminally,  and  thai 
the  proceedings  taken  against 
them  were  irregular  and  must 
be  quashed, 

Bex  V.  MartJD  and  others   ...  717 

Negligence,  sw  Carrier 768 

Negligence  of  administrators — 
Abase  of  trust. 

Estates  Swart  and  Basson  v. 
Greeff  and  Walter  ...  131 

Negligence,  see  Divisional  Goancil  126 


M 


see  Municipality 


61 


Negligence— Railway  regulations 
— Contract — Delivery. 

The  plaintiff  com^mny  stied  the 
defendants  for  damages  to 
certain  machinery  result ing^  it 
was  alleged,  fvom  the  negli- 
gence of  the  servants  of  the 
Railvoay  departnietU.  By 
clause  14b  of  the  Railway 
regulatioiui,  it  is  provided  that 
*^  all  damages  to,  defect,  or 
deficiency  in  a  consignment 
must  be  pointed  out  in  loriting 
at  the  time  of  delivery,  and 
that  no  claim  will  be  admitted 
unless  made  within  three  days 
after  delivery'^  These  con- 
ditions  wete  embodied  in  a 
consignment  note  signed  by  the 
jdaiatiffs  agent.  The  truck 
containing  the  goods  nxis  left 
by  the  de/xirtmeut  at  a  siding 
where  none  of  their  servants 
were  in  (rtiemtauc,  and  plain- 
tiffs   were    notified    tfiat    tlit 


PAGE 

goods  were  lying  there  at  their 
disposed.  When  tltey  were 
removed  by  the  plaintiffs,  it 
was  observed  that  the  case 
containing  them  was  broken,* 
and  the  machinery  tras  after- 
wards found  to  have  been 
ittjured :  no  claim,  however, 
teas  made  on  the  department 
till  nearly  four  months  after 
delivery  haJd  been  taken.  The 
Court  found,  as  a  fact,  that 
the  machinery  had  been 
damaged  while  in  the  custody 
of  the  department. 

Held,  however,  that  clause  145 
was  fair  and  reasonable,  attd 
as  the  plaintiffs  had  entrusted 
their  goods  to  be  carried,  sub- 
ject to  its  provisions,  they  icere 
not  entitled  to  damages. 

The  plaintiffs  also  claimed 
damages  in  respect  of  certain 
cases  of  grapes  entrusted  to  the 
defendants  for  carriage  to  Cape 
Town  and  export  to  Europe. 
The  grapes  were  not  forwarded 
by  the  usual  fruit  train  but  by 
a  later  train,  and  arrived  too 
late  to  be  accepted  for  carriage 
by  the  steamship  company. 

Held,  that  as  the  department 
had  not  contracted  to  carry  the 
fruit  by  any  special  train,  and 
as  they  took  them  to  Cape 
Town  in  time  for  despatch  by 
the  steamer,  which  had  refused 
to  receive  them  in  consequence 
of  regulations  not  known  to  the 
department,  judgment  must  be 
given  for  the  defendants  on 
this  claim  also. 

Cape  Orchard  Co.  v.  Colonial 
Government  421 

Negligence  —  Railway     Depart- 
ment— Damages. 

Van  der  Merwe  v.  Colonial 
Government  456 

Negligence,  see  Fire  327,  346,  392 

New  trial — Insufficient  damages. 

Where  a  case  involring  only 
questions  of  fact  has  been  tried 
before  a  jury  which,  in  the 
opinion  of  the  judge  who  pre- 


DIGEST. 


iii 


PAGE 

Hided^  has  not  acted  perversely 
or  wireasonMy,  the  Court 
will  not  order  a  new  trial ^  OJi 
the  ground  that  the  verdict  vhi9 
against  the  weight  of  evidence^ 
and  that  insufficient  damages 
mere  atcarded. 

Van  Zyl  v.  Warner 392 

Notice  of  Bar,   see  Affidavit  of 
service 427 

Notice  of  withdrawal  of  pupil, 
see  School      406 

Naiaanoe — Interdict. 

lite  close  proximity  of  a  black- 
smithes  shop  to  a  family  private 
residence  is  not  per  se  a 
nuisance. 

Blacker  v.  Carter     495 

Nuisance,  see  Public  washing     ...  336 

Nuisance,  see  Landlord    630 

Nullity  (decree  of),  see  Marriage  248 

Office    of    profit,    see    Municipal 
Council  787 

^*  One  Man  **  Company,  see.  Joint- 
stock  Co.,  Ltd.  527 

Onus  of  proof — Criminal  offence 
— Proof  of  want  of  consent. 

Under  the  Transheian  law  it 
is  an  offence  for  any  liative  in 
certain  locations  to  erect  a  hut 
within  such  locations  mthout 
the  conseytt  of  the  Resident 
Magistrate,  The  accused  were 
convicted  of  a  contravention  of 
the  law^  but  no  evidence  had 
been  produced  of  such  want  of 
consent. 

Held,  that  the  burden  of 
proving  the  want  of  consent 
lay  on  the  prosectttion^  a7id 
that  the  accused  Juid  been 
improperly  convicted. 

Rex  v.  Mabanti  and  others...  991 

Ordinance  9  of  1836,  see  Village 
commonage    ...        ...        ...  661 

Ordinance  6  of  1^43,  see  Seques- 
tration ...        ...        ...  847 


PAGE 

Ordinance  10  of  1845,  see  Con- 
cealment of  birth      606 

Factum  de  non  petcndo,  see  Pro- 
visional sentence       31 

Partnership  —  Account  —  Partici- 
pation in  profits. 

Trottv.  Trott 116 

Partnership — ^Dormant  partner — 
Insolvency — ISharing  of  pro- 
fits— Proof  by  solvent  partner. 

By  agreement  between  A,  and 
D,,  the  former  advatuxd  £300 
to  Uie  If  I  tier,  to  be  utilized  for 
the  imrpose  of  a  tailoring  busi- 
Tiess,  which  teas  to  be  managed 
by  D,  at  a  fixed  salary  in 
addition  to  a  half  share  of  the 
jyrofits,  D.  uas  to  keep  the 
books  which  A.  icas  to  be 
allowed  to  impect.  In  con- 
sideration of  the  advance^  D, 
was  to  pay  to  A .  one  half  share 
of  the  annual  profits  in  lieu 
of  interest^  and  D.  was  to  have 
ihe  option  of  repaying  the 
£300  in  two  years,  and  oft  such 
repayment  A.'s  share  in  the 
profits  was  to  cease^  but  until 
such  repayment  A.  was  to  re- 
ceive his  half  share. 

Held,  ^at  the  agreement  fur- 
nished prima  facie  proof  of 
the  existence  of  a  parhierehip 
beticeen  A.  and  D. 

Estate  Davidson  v.  Auret  ...     21 

Partnership — Joint  and  several 
liability  of  partners. 

,  Kruger  v.  Venter  and  Naude  201 

Partnership  —  Receiver  —  Distri- 
bution of  assets. 

A  pi'ovisional  order  of  seques- 
tration having  been  made 
against  a  imrtnership^  the 
creditors  and  partners  signed 
a  consent  paper  that  the  setiues- 
tration  should  be  discharged 
apid  that  receivers  should  be 
appointed  to  realise  the  estate 
and  distribute  the  proceeds  in 
a/icordaiwe  with  the  Ugai  order 
of  preference  in  insolvency. 
The   Court  having    appointed 


DiaEST. 


PAGE 


the  applicant  ax  rtceivern  in 
terms  of  the  conne/d  paper ^  the 
receivern  pi'oceeded  to  realise 
the  ansetH.  The  respondents^ 
tohOj  as  creditors,  had  sitpied 
the  consent  paper,  proved  thmr 
claim,  hut  refused  to  place 
a  value  on  certain  securities 
which  they  held  for  their  debt 
in  terms  of  the  SOth  sectiofi  of 
the  Insolvent  Ordinance. 

Held,  that  the  applicants  were 
efttitled  to  insist  upon  a  value 
being  placed  ofi  the  security. 

In  re  Grand  Junction  Rail- 
ways  •••        •••        ••• 

Partnership — Salaried  partner — 
Seqaeetration  —  Remunera- 
tion. 

0»  the  uquestration  of  a 
parttiership  estate  a  salaried 
partner  cannot  cUtim  payment 
of  his  salary  out  of  the  assets 
in  competitimi  with  other 
creditors,  but  if  after  the 
provisiotuil  order  of  sequestra- 
tion he  has  continued  to  per- 
form valuable  services  in  the 
administration  which  he  was 
not  legally  bound  to  perform, 
the  trustee  may,  iKXth  the 
sanction  of  the  Court,  aicard 
to  him  a  fair  remuneration 
for  his  services  as  part  of  the 
costs  of  sequestration. 

Walker  v.  Receivers  Grand 
Junction  Railways 

Partnership — Receivers — Realiza- 
tion of  assets. 

The  plai7itiffs  having  been 
appointed,  with  the  coiisent  of 
the  defendants,  as  receivers  of 
a  partnership  concern,  for  the 
purpose  of  realizing  the  assets 
and  distributing  the  same 
according  to  the  legal  order  of 
preference  in  insolvency. 

Held,  that  for  the  purpose  of 
such  realization  the  plaintiffs 
were  entitled  to  claim  from  the 
individual  partners  any  proper- 
ties acquired  by  them  out  of 
the  funds  of  the  partnership 
and  for   the  purposes  of  the 


171 


93 


PAGE 

partnership,  but  transferred 
into  the  namen  of  such  indivi- 
ducd  jHirtners. 

Receivers  of  Grand  Junction 
Railways  v.  Walker  and 
others         ...         ..•         •••  994 

Partnership — Dissolution —  Liabi- 
lity of  retiring  partner. 

Kelly  &  Co.  v.  Herman       ...  337 

Patent — Infringement — Specifica- 
tion— Rep^. 

In  December,  1902,  A.  de^ 
jMJsited  a  specification  describ- 
ing an  in  vention  for  an  acetylene 
generator;  in  March,  1903, 
R.  deposited  a  specification 
describing  an  invention  for  a 
machine  of  the  same  clais  ;  in 
ApriU  1903,  A.  deposited  an 
amended  specification  of  his 
machine;  letters  patent  were 
granted  to  A .,  and  subsequently 
to  R. 

Held,  that  R.  could  not  succeed 
in  an  action  for  infringement 
against  A.  in  respect  of  ma- 
chines made  and  sold  by  A,, 
trhich  were  covered  by  R.^s 
specification  and  by  A.^s 
amended  specification^  but  not 
by  A.^s  first  specification. 
Held  further,  that  R.'s  machine 
was  covered  by  A.^s  previous 
patent^  and  that  R.  was  not 
the  first  inventor,  and  conse- 
quently  that  R.'s  subsequent 
letters  imteyit  i>hould  be  re- 
pealed. 


Rutter  V.  Ashenden ... 


308 


Payment  of  costs  by  telegraphic 
money  order. 

Payment  of  costs  by  telegraphic 
money  order  is  a  good  and 
sufficient  imyment. 

Smuts  V.  Poole         405 

Peregrinus,  see  Removal  of  trial...    38 

Permit    (to  Native),    see  Liquor 
Licensing  Acts  273 

Personal    injury  —  Contributory 
negligence. 

Werner  v.  Jiiljs        ♦  353 


DIGEST. 


PAGE 

Plea — Vague  and  embarassing — 
Exception. 

It  is  a  good  exception  to  the 
form  oj  a  plea^  that  it  does 
not  confess  or  avoid  material 
facts  alleged  in  (he  declaration j 
and  is  othenoise  vague  and 
embarassing. 

Heydenrych  v.  Frame         ...  178 

Plea — Document  relied  upon  in 
defence — Exception . 

A  declaration  set  forth  the 
terms  of  a  contract  upon  which 
the  plaintiffs  relied,  and  the 
plea,  without  admitting  or 
denying  that  the  terms  of  the 
contract  had  been  correctly 
stated,  alleged  that  they  were 
contaified  in  a  certain  letter 
addressed  at  a  certain  date  to 
the  defendants'  agent,  but  the 
terms  of  the  letter  were  not  set 
out,  nor  was  its  general  pur- 
port stated.  An  exception  by 
the  plaintiff  to  the  plea  as 
being  embcirrasing  was  sus- 
tained. 

HouJder    Bros.    v.    Colonial 
Government  319 

Pleading — Amendment  of  plea — 
Costs. 

Macleod  v.  Joubert 295 

Pleading — Declaration  and  repli- 
cation— Variation . 


Coates  V.  Searlo 


•  • .    Od4 


Pleading  —  Exception  —  Demur- 
rage —  Consignee. 

II.  Bros,  contracted  under  a 
C.I.F.  contract  to  supply  cer- 
tain coal  to  the  Cape  Govern- 
ment. The  Government  agreed 
to  pay  d^mitrrage  to  the  owners 
of  ^  vessels  conveying  the 
coal  at  certain  rates.  Flain- 
tiffs  alleged  in  their  declaration 
that  this  contract  had  subse- 
quently been  varied  by  a 
certain  letter  written  by  them 
to  the  Agent-General  for  the 
Colony,  but  this  amendment 
teas  not  specially  pleaded. 


PAGE 

Held  on  argument  on  ex- 
ceptions, that  the  declaration 
was  irrelevant,  embarrassing 
and  bad  in  law. 

Houlder    Bros.    v.    Colonial 
Government  589 

Pledge,  see  Sheep  lease 627 

Practice — Default  of   plea — Set- 
ting aside  of  judgment. 

Although  it  is  not  necessary 
to  give  notice  of  a  set  down 
for  judgment  to  a  defendant 
who  has  been  barred,  it  is 
competent  for  the  Court  to  set 
aside  the  juds^meiit  upon  the 
defendant  giving  good  reasons 
for  his  default  and  showing 
that  he  has  a  prima  fade 
ground  of  defence. 

Grassick  v.  B.S.A.   Asphalt 

x^O.     ...  ...  ...  •••     Ovv 

Pref erent  claim — Last  illness. 

McNally  v.  Estate  Wiggett...l020 

Prescription  —  Title  to    land  — 
Transfer. 

Kincr  Bros.  v.  Estate  Wasser- 

...  ...  ...    OvD 


ing  Brc 
fall  ... 


Principal  and  agent — Private  in- 
structions —  Knowledge  of 
third  persons. 

Van  der  Hoof  and  Fisher  v. 
Bechuanaland  Estate  Syn- 
dicate   724 

Principal  —  Agent  —  Company  — 
Managing  director — Fraud — 
Agent  making  a  profit  at  the 
expense  of  his  principal. 

The  managiiig  director  of  a 
company,  having  obtained  for 
the  compmiy  an  option  to  pur- 
chase  a  house  at  a  certain 
price,  subsequently  purchtued 
it  for  himself  at  that  price, 
and  resold  and  transferred  it 
to  the  company  at  a  higher 
price. 

Held,  (hat  the  company  was 
entitled  to  recover  the  excess 
from  the  director. 

The  managing  director  of  a 
company^  being  aware  that  the 


1 


DI&B8T. 


PAGE 

company  required  for  their 
busin^as  a  huihling  adjoining 
their  premiitesy  botight  (hi 
buildiug  for  hirmelf  and  re- 
9old  and  transferrtd  it  to  the 
company  at  a  nigher  price. 

Held,  that  the  company  was 
entitled  to  recover  the  excess 
from  the  director. 

Cowling  y.  Estate  Stableford 

OC  v/0>  •••  ■••  •■•    "kiv 

Private  property  of  enemy — 
Booty — ^BebelT-Divesting  of 
property —  Vindicatio — Com- 
penaation. 

During  the  recent  war^  ^ 
plaintiffs  a  British  subject 
residing  iHthin  this  Colony, 
joined  the  republican  forces 
which  had  invaded  the  district 
in  which  his  farm  loas  situcUed, 
and  accompanied  them  to  the 
Transvaal,  During  his  absence 
the  British  troops  entered  the 
district  and  seized  his  gw>ds 
on  his  farm,  iftcludiitg  a 
harmonium,  which  were  sold 
to  the  defendant  at  public 
au^-tion  by  order  of  the  Military 
authorities. 

Held,  in  an  action  for  the 
recovery  of  the  harmonium 
or  its  value,  that  if  the  seizure 
of  the  harmonium  was  contrary 
to  the  usares  of  modem  lear- 
fare^  the  plaintiff  should  apply 
to  ihe  imperial  Government 
for  compensation^  but  that,  as 
it  had  been  taken  by  the 
Military  authorities  during 
the  war,  with  the  object  of 
acquiring  the  oivnership  thereof 
from  a  person  who  had  joined 
alien  enemies,  the  plaintiff  hetd 
been  divested  of  his  ownership 
and  was  not  entitled  to  vindi- 
cate the  property, 

Du  Toit  V.  Kruger 332 


Privilege,  see  Defamation 


603 


Privilege,  see  Inspection  of  docu- 
ments ...         ...         ...        ...  643 

Privilege,  see  Libel  155 

Prizefight,  see  Illegal ooniract...  183 


PAGE 

Process  in  aid,  see  Foreign  insol- 
vency ...         ...        ...        ...  563 

Promissory  note — Surety — Nova- 
tion, 

NichoUas    &  Co.   v.   White, 
Byan  &  Co 726 

Promissory  note  Signature  — 
Mark — Witnesses. 

It  is  710  valid  defence  to  an 
action  on  a  promissory  note 
signed  with  his  mark  by  the 
maker  that  the  mark  is  attested 
by  ordy  one  witness. 

Philips  V,  Nroqoza 97 

Promissory  note — Excussion  of 
principal  —  Benejtcium  divi- 
sionis. 

A  maker  of  a  promissory  note 
is  deemed  to  have  beefi  ex- 
cussed  if  he  has  surrendered 
his  estate,  and  the  sureties  at 
once  become  liable.  They  are, 
however,  entitled  to  the  bene- 
ficium  divisionis  if  they  have 
not  expressly  refwuficed  it, 

Du    Plessis    V.    Greeff   and 
Waller        833 

Promissory  note  —  Accommoda- 
tion— Consideration . 

Du  Plessis  V.  Hauptfleisch  ...  283 

Promissory  note,  see  Beneficia 
8.  C.  Velleijani,  &c 407 

"Proper  books,"  se^  Culpable 
insolvency      403 

Provisional  sentence  —  Bill  of 
exchange — Ijiquid  document 
—Set  off. 

Bank  of  Africa  v.    Koenig 

4K  \jO,  .••  ...  •••   ^^*- 

Provisional  sentence  —  Bills  of 
exchange  —  Liouid  and  illi- 
quid claims. 

The  Court  refused  provisional 
sefitetwe  upon  certain  bills  of 
exchange,  where  it  did  ftot 
clearly  appear  how  far  these 
bills  referred  to  items  for 
which  credit  had  been  given. 

Hartrodt  v.  McKay  &  Co. ..,  306 


DIGEST. 


zzyH 


PAGE 

Provisional  sentence — Lease. 

McNauffhton    v.    Rowe  and 
Welsh         277 

Provisional  sentence — Illegal  con- 
tract. 

The  defendant  had  agreed  to 
pay  the  plaintiffs  a  certain 
rental  in  consideration  of  being 
allowed  to  place  certain  auto- 
matic machines  within  the 
Exhibition  grounds.  The  police 
having  obiected  to  these  ma- 
chines ^  me  defendant  toas 
ordered  by  the  Exhibition 
authorities  to  remove  them, 
Defefidant  having  been  sued 
for  provisional  sentence  on  a 
promissory  note  given  by  him 
for  balance  of  rent. 

Held,  that  as  this  note  wets  a 
liquid  document,  provisional 
sentence  must  be  granted, 
though  possibly  defendant 
might  have  an  action  for 
damages  against  plaintiffs. 

Trades,  Markets,  and  Exhibi- 
tion Company  v.  Hilder- 
brandt        82 

Provisional  sentence  —  Payment 
by  instalmente  —  Pactum  de 
nan  petefido. 

Lyons  v.  Eidelburg 31 

Provisional  sentence — ^Promissory 
note— Excussion  of  principal 
debtor. 

Duffus  &  Co.  V.  Tobias       ...  Ill 

Provisional  sequestration — Trus- 
tee— Practice. 

Where  an  estate  has  been  pro- 
visionally sequestrated,  it  is 
not  the  practice  of  the  Qntrt 
to  appoint  a  provisional  trus- 
tee. In  cases  of  urgency  appli- 
cation should  be  made  to  the 
Master  for  the  appointment  of 
a  curater  bonis. 

Ex  parte  Sprigg   &  Co.    v. 
Fraser  and  Sons 45 

Provisional  trustee,  see  Insolvency  330 


PAGE 


Public   place  —  Shop  —  Abusive 
words. 

The  tise  of  abusive  words  by 
a  person  in  a  shop  totoards 
another  person,  who  at  the 
time  is  also  in  the  shop,  does 
not  comtitute  a  contravention 
of  the  10th  section  of  Act  27 
of  1882, 

Rex  V.  Crozier  274 


Public  place. 

A  shop  is  not  a  public  place. 

Rex  V.  Celliers         980 

Public    trader,    see    Joinder    of 
parties 719 

Public  washing — Nuisance. 

The  Municipal  regulations  of 
C,  prohibit^  "  all  washing  of 
clothes  in  any  public  streams 
within  the  limits  of  the  Munici- 
pality,^' and  further  ordained 
that  ^^all  public  washing  of 
clothes  shall  be  done  in  puhiie 
toash-houses,*'    A  had  toashed 
certain  clothes,  th^,  property  of 
other    people,     on    premises 
whereof  she  was  a  tenant,  and 
had  thei'eupon  been  convicted 
by  the  R.M.  of  Wynberg  of 
having  contravened  the  afore- 
said regulation. 

Held  on  appeal,  that  in  Bus 
case  there  had  beeti  no  *^ public 
tcashing  of  clothes,*'  and  that 
the  appeal  must  be  allowed. 

Armenia  v.  Claremont  Muni- 
cipality        336 

Purchase  and  sale — Agent — Rati- 
fication— ^Estoppel. 

The  defendant's  daughter,  being 
about  to  be  married,  ordered  a 
wedding  cake  from  the  plain- 
tiff and  directed  it  to  be  sent 
to  the  house  of  the  defendant. 
The  wedding  did  not  take 
pla4:e,  owing  to  the  disappear- 
atu^  of  the  bridegroom,  but  the 
cake  was  not  returned  by  the 
drfendant,  and  an  account  uhu 
sent  to  him  by  the  plcMUifffor 
the  price  of  the  cake.  The 
d^endant  did   not   r^mliaie 


1 


;xxviii 


DiaBST. 


PAGE 

hits  liability^  but  wejit  ia  sertrch 
of  the  bridegroom.  A  necofid 
and  third  account  were  sent  to 
the  defendant^  and  it  was  only 
after  receiving  the  third  account 
that  the  defendant  denied  hav- 
ing ordered  the  cake.  In  the 
meantime  the  cake  had  deteri- 
orated  in  quality. 

Held,  that  although  the  defe:ii- 
dajit  had  not  authorized  his 
daughter  to  pledge  his  credit^ 
he  should^  under  all  the  circum- 
stances, be  held  to  have  ratified 
he^'  act,  and  therefore  to  be 
liable  for  the  price. 

Prince  v,  Webster    , 280 

Purchase  and  sale — Stolen  pro- 
perty— Refund  of  price — 
Eviction. 

Certain  cattle  which  the  plain- 
tiff h<ul  purchased  from  the 
defendant  were  claimed  by  one 
M.,  from  xchom  they  had  been 
stolen,  whereupon  the  plaintiff 
handed  them  ovp}*  to  M.,  and 
informed  the  defendant  of  what 
he  had  dime. 

Held  that,  upon  proof  by  the 
plaintiff  in  an  action  against 
the  defendant  for  a  refund 
of  the  price,  that  as  the  cattle 
had  been  stolen  and  that  as  the 
deferndatU  would  have  had  no 
V4ilid  defence  to  a  suit  at  the 
instance  of  M.,  the  plaintiff 
was  entitled  to  succeed,  although 
there  had  been  no  judicial 
eviction. 


Noonan  v.  Meyer 


281 


Railway  department,    see  Negli- 
gence ..•        •••        •••        •••  456 

Railway   regulations,    see  Negli- 
gence •  ■•         •••         •••         •••  421 

Railway   Department  —  Contract 
— "  Coastwards." 

Plaintiffs  had  contracted  with 
the  Cape  Qwemment  Railivays 
for  the  carriage  of  certain 
stone  from  Queen's  Town  to 
Cape  Town.  The  rate  speci- 
fied by  the  Dqyartment    toas 


PAGE 

1  ^d.  per  ton  for  stone  consigned 
inland,  arid  Jrf.  />er  ton  for 
stone  consigned  coa^twards. 
The  DepartmefU  claimed  at 
the  higher  rate  on  carriage 
from  QueeiCs  Town  to  Storm' 
berg,  inasmuch  as  that  portion 
of  the  jour iwy  was  ^^  inland." 
Held,  that  the  Railtoay  Dtjmri- 
ment  wei'c  bound  under  their 
tariff  to  carry  the  said  stone 
through  to  Cape  Town  at  the 
lower  rate. 

Hopkins  &   Co.   v.  Colonial 
Government  647 

Rating  of  Crown  property — Rail- 
way buildings  —  Occupation 
by  individuals. 

The  Bailicay  Department 
having  to  enlarge  the  Railway 
station  at  C,  bought  a  cottage 
about  400  yards  from  the 
station^  not  mi  Railway  pro- 
perty, for  the  stationmaster, 
who  proceeded  to  occupy  it  as 
his  private  residence. 

Held,  thai  tlie  cottage  and 
grounds  so  occupied  ujere  liable 
te  be  rated  u/naer  Acts  36  of 
1891  and  19  of  1892. 

At  the  time  when  the  Govern- 
ment took  over  the  Railway 
there  was  a  cottage  cU  a 
crossing  in  N.  on  Railway 
property  immediately  adjoin- 
itig  the  land,  xchich  vxis  tJien 
occnined  and  continued  after- 
wards to  be  occupied  by  a  gate- 
"keeper,  whose  duty  it  was  to 
open  and  close  the  gates  for 
persons  wishing  by  night  or  by 
day  to  cross  the  Railway  line. 

Held,  that  tlie  gatekeeper*$ 
cottage  was  not  liable  to  he 
rated  under  the  above  Acts. 

Claremont    Municipality    t. 
Colonial  Government      ...  204 


Receiver,  8««  Partnership... 


...  171 


Reconvention,  see  Review  ...  331 

Rehabilitation,  see  Insolvent  Ordi- 
nance .,«        ..•        tf.        .,«    87 


DIGEST. 


PAGE 


Removal    of    trial — Peregrhms — 
Security  for  costs. 

The  Court  refused  the  applica- 
tion of  a  defefidant,  a  pere- 
grinns,  to  remove  a  tiHal,  as 
he  had  not  given  sectiHiy  for 
costs. 

Diepraem  v.  Gloete  ... 


•  a  . 


38 


Removal  of    trial,    see  Criminal 
trial     237 

Reatitution  of  conjugal  rights,  see 
Divorce  461 

Review — Gross  irregularity. 

In  an  application  by  the  plain- 
^XF   for    review    of    a    civil 
judgment    of    a     Transkeian 
Magistrate  on  the  gi'ound  of 
gross  irregidarity^  it  appeared 
that  the  record  of  a  previous 
judgment  between  the  parties 
had  been  sent  to  the  Magistrate 
by  the   Chief  Magistrate  and 
had  been  admitted  as  evidence^ 
and  that  the  only  other  evidence 
given   iyi  the  ca^  fully  sup- 
parted  the  plea  of  the  defen- 
dant. 

Held,  that  even  if  there  uxi^ 
some  informality  in  the  manntr 
in  which  the  record  had  bee7i 
put  in,  the  plaintiff,  who  had 
not  cross-examified  the  defen- 
dants witnesses  and  had  pro- 
'  duced  no  evidence  in  snjyport 
of  his  own  case,  was  not  entitled 
to  have  the  proceedings  set 
aside. 

Ntikinca  v.  Ngcani 270 

Review  of  proceedings  in  inferior 
Court— Gross  irregularity — 
Postponement  of  trial — With- 
drawal of  action — Claim  in 
reconvention. 

The  plaintiff  sued  the  defendant 
in  the  Supreme  Court  for  £500 
for  alleged  slander,  and  the 
defendant  pleaded  to  the  decla- 
ration and  filed  a  claim  in 
reconvention  for  £20  for  illegal 
impounding  of  eeUtle.  The 
plaintiff  thereupon  gave  notice 
to  the  defendant  of  the  with- 
drawal of  the  action,  and  issued 
a  summons  against  the  defen- 


PAGE 

dafU  tA  a  Resident  Magistrate's 
Court  for  £20  for  the  slander. 
The  Magistrate  decided  to 
postpone  the  hearing  of  the 
case  until  the  claim  in  recon- 
vention had  been  decided  by  the 
Supi'eme  Court. 

Held,  on  application  for 
review,  that  inasmuch  as  the 
question  whether  the  pUuntif 
could  withdraw  proceedings 
in  the  Supreme  Court  after 
filing  of  the  claim  in  recoU" 
vention,  vxis  an  important 
question  of  practice  for  the 
Supreme  Court  to  decide,  the 
postponement  of  the  case  did 
not  constitute  a  gross  irregu- 
larity, 

Ackerman  v.  Smuts 331 

Review — Gross  irregularity — Ad- 
journment of  Resident  Magis- 
trate's Court. 

In  an  action  to  recover  certain 
sheep  or  their  value  in  a  Trans- 
keian   Magistrate's   Courts    it 
appeared  that  the  plaintiff' uhxs 
too  old  and  infirm  to  attend, 
and,  on  the  application  of  the 
plaintiff s  agent,  the  Magistrate 
adjourned  the  Jiearing  to  the 
plaintiffs  residence,  which  was 
in  the  same  district,  for  the 
sole   purpose    of    taking    his 
evidence.    Due  notice  of  the 
time  and  place  was  given  to 
the  defendant,  hut  he  refused 
to  appear  either  at  the  plain- 
tiffs residence  or  at  the  sfubse- 
^Acnt  hearing  in  the  Courtroom, 
of  which  he  also  had  notice. 
There    was    evidence    without 
that  of  the  plaintiff  to  justify 
the    defenaant    being    called 
upon  to  produce  his  evidence, 
but  he   tendered   none.      The 
Magistral  having  giveft  judg- 
ment for    the  plaintiff,     the 
defendant  applied  to  have  the 
proceedings  set  aside  on   the 
ground  of  gross  irregularity. 

Held,  that  the  ifteguiarity — 
if  such  it  was — was  not  of 
such  a  nature  as  to  justify  a 
review. 


Maf  eke  v.  Mpambane 


•tf 


w 


DIGEST. 


pa(;e 

BevocatioD,    see    Bale    to   minor 
children  ...        >••        •••  214 

Bales,  »ee  Mission  eUtion  •••  170 

Salaried  partner,  see  Partnership    93 

Sale    and  delivery — Dominium-- 
Bent — Sale  in  execution. 

The  claimant^  a  collector  of 
retitSy  who  ivoh  personally  re- 
spotudble  to  the  lessor  of  certain 
premises  for  the  payment  of 
the  rents  thereof  purported  to 
buy  from  the  lessee  certain 
furniture  in  satisfaction  of  the 
rent  due^  hut  the  furniture  vjas 
not  delivered  to  the  claimant. 

Held,  that  upon  the  attach- 
ment of  the  furniture  in  execu- 
tion of  a  judgment  obtained 
by  a  creditor  against  the  lessee^ 
the  claimant  was  not  e7Uitled 
to  claim  the  furniture  as  being 
his  own  property. 

Pinkus  V.  Fenster     123 

Sale  and  purchase. 

Gibba  V.  The  B.S.A.  Asphalt 
Company ...  159 

Sale  and  purchase  —  Suspensive 
condition. 

Goods  sold  wider  a  suspensive 
condition  remain  the  property 
of  the  sellery  even  if  delivered 
U)  the  purchaser,  until  the 
condition  is  fuljilled. 

Albertyn  v.  Basson  ...         ...  118 

Sale  and  purchase — Weight  of 
evidence. 

Gous  and  Koeser  v.  Bitter...  131 

Sale  and  purchase — ^Agcnt. 

S.A.  Bible  Union  v.  Cosay...  292 

Sale  and  purchase — Brokerage — 
Bectification  of  contract — 
Misjoinder  of  parties. 

Parry  v  Lang  and  another  ...  302 

Sale  and  purchase— Goodwill — 
Sub-tenancy. 

Heynos,    Mathew  &   Co.   v. 
Cooper       ...        ...        f,*  324 


PAGE 

Sale  and  purchase — Guarantor — 
Suspensory  condition—"  In- 
stalment system." 

Burroughs     and     Watts    v. 
Campbell 340 

Sale  and  purchase — Suspensory 
condition. 

Palmer  v.  Cape  Cold  Storage 
and  Supply  Co 290 

Sale  and  purchase — Baw  goods  to 
be  worked  up — Suspensory 
condition — Special  contract. 

One    B,    purchased     certain 
timber    from    defendants    on 
credit,  subject  to  the  condition 
that  this  timber  was  to  be  used 
for  the  purpose  of  building  a 
boat,  and  that  when  tliat  boat 
was  completed  it  should  be  the 
property  of  the  defendants  and 
should    remain    so    until    the 
timber  was  paid  for,    B.  teas 
allowed  in  die  meantime  to  sell 
the  boat  through   defendants, 
on  condition  thcU  he    should 
pay  over  the  price  received  to 
them.     B.    sold   the  boat  to 
plaintiff  who,  bona  fide,  bought 
it  as  B.'s  property.    B.  appro- 
priated the  proceeds  and  ab- 
sconded.      Defendants    tfiere- 
upon    claimed    the   boat,   and 
obtained  possession  of  it  by 
due  process  of  law.     Plaintiff 
j  now    brought    an     action     to 

I  recover  it,  or  (/«  the  aitema- 

tive)  its  value. 

Held,  thai  as  this  teas  not  a 
I  case  of  a  sale  under  a  susj^eti- 

sive  cotulition,  the  Court  toas 
not  called  upon  to  decide 
whether  a  sale  of  raw  materials, 
subject  to  that  condition,  would 
vest  the  dominium  of  the 
finished  article  in  the  ve^idor 
or  not. 

Held  further,  that  as  B.  vxxs 
bound  by  his  special  contract 
with  defendants  and  never  had 
dominium  of  the  boeU,  he 
could  not  pass  property  therein 
to  plaintiff,  and  thai  judgment 
mttst,  therefore,  be  given  for 
defendant,  with  costs. 

Skalabrino    v.    W.    and    G. 
Scott,  Ltd. .,,        .,,        ,.•  460 


DIGEST. 


PAGE 


w 

Sale    and    purchase  —  Broker  — 
Identity  of  property  sold. 

Greenwood  v.  De  Villiers  ...  538 


Sale  and    purchase — Conditional 
sale. 

Bigg  V.  Gericke 

Sale  and  purchase — Dominium^ 
Fraud. 

One  S.  had  obtained  certain 
goods  from  K.  by  means  of 
fraudulent  misrejjresentationg. 
8.  thereafter  sold  them  to  Z, 
from  whom  K.  iiow  claimed 
them. 

Held,  that  as  the  dominium  of 
the  goods  had  never  vested  in 
Sy  K,  teas  entitled  to  vindicate 
his  goods  ajid  to  recover 
damages  for  such  of  them  as 
had  passed  out  of  defendant's 
control. 

McEillop  V.  Zuckerman 

Sale  —  Specific     performance  — 
Damages — Shares. 

The  defendatits  agreed  to  take 
on  the  plaintiff  company  for 
the  purpose  of  amalgamating 
it  with  other  companies  of  a 
similar  character.    Part  of  the 
purchase  price  was  to  be  paid 
in  cash,  and  the  remainder  in 
shares  in    the  new  company. 
The  cash   urns  paid,   but  the 
shares  were  kept  over  pending 
transfer.      In  an   actimi  for 
n>ectfic  performance  and  the 
delivery    of    the    shares,    the 
defendant     company     alleged 
misrepresetitation  on  the  part 
of  the  vendors,  but  at  the  trial 
failed  to  establish  this  defence. 
Judgment  was  given  for  the 
delivery  of  the  shares,  or  in  the 
alternative  for  the  payment  of 
damages  equal  to  their  full 
value.    A  further  sum  icas  also 
awarded  as  damages  siiffe^'ed 
by  the  delay  in  makittg  delivery: 
the  shares  being  now  unsaleable. 
On    appeal,     the    latter    sum 
awarded  as  damages  teas  dis- 
alloioed  as  no  specific  loss  had 
been  proved. 


680 


655 


PAGE 

Semble  (per  Buchanan, 
A.C.J.)  :  Where  specific  per- 
formance of  a  contract  of  sale 
is  decreed,  damages  immedi- 
ately arising  otU  of  and  conse- 
quent on  the  mora  of  the  vendors 
may  be  recovered. 

Rhodesia  Cold  Storage  Co.  v. 
Beira  Cold  Storage  Co.   »..  881 

Sale  to  minor  children — Revoca- 
tion. 

v.,  wishing  to  provide  for 
certain  minor  children,  sold 
certain  land  to  them  jointly 
for  £600.  His  wife  having 
subsequently  admitted  that  two 
of  these  minors  were  illegiti- 
mate. V,  made  another  dis- 
position of  his  property,  exclud- 
ing these  two  children  from 
all  share  in  his  property. 

Held,  that  as  tJie  Court  had 
refused  to  find  that  these 
childreth  were  illegitimate,  they 
could  not  be  deprived  of  their 
rights  under  the  sale,  but  as 
their  curator  had  stated  that 
they  were  willnig  to  accept 
£100  each  in  satisfaction  of 
Oieir  claims,  the  Court  ordered 
transfer  to  be  passed  to  the 
remaining  beneficiaries,  on  con- 
dition of  their  paying  out  this 
sum. 

Venter  v.  Venter  and  others  214 
Sale  by  survivor,  see  Will  (mutual)  691 

Sale    intra    familiam,    see    Will 
(joint) 615 

Sale  in  execution,  see  Messenger 
of  R.M.  Court  767 

Sanitation,  see  Landlord 630 

Scab  inspector,  see  Martial  law  ...  521 

School— Sale    of    former    public 
school  buildings. 

Ex  parte    The    Hex    River 
School         644 

School— Notice  of  withdrawal  of 
pupil. 

Notice    of   withdrawal    of  a 
pupil  given  to  the  secretary  of 


xztii 


DtaES't. 


PAaE 

a  public  school  is  sufficient 
notice  to  the  head  mcuter. 
Where^  however,  the  school 
authorities  stipukUe  for  a 
quarterns  notice,  such  notice 
must  be  given  at  the  begitming 
of  a  school  quarter. 

Hart  ▼.  Forman        406 


Scottish  marriage— Married  Wo- 
men's Property  Act — Com- 
munity of  property. 

Husband  and  wife  domiciled 
cuid  married  iu  Scotland  prior 
to  the  passing  of  the  Married 
Women's  Property  Act  of 
1882,  are  maiTied  in  com- 
munity as  to  movable  property 
but  not  as  to  immovable. 

Ex  parte  Stewart  and  Wife...  327 

Security  given  bv  wife— iil«;«rtu« 
consuUum  VeUeiani, 

Heydenrych  ▼.  Frame         ...    99 
Security  for  costa,  see  Incola      ...     20 

Sequestration,  compulsory— Ord. 
6  of  1843,  Sec.  5. 

A  creditor  cannot  oppose  the 
compulsory  sequestration  of  the 
estate  of  an  insolvent  debtor 
on  the  grounds  that  he  has  no 
security  for  his  debt,  that  h^  is 
toilling  to  give  time  and  that 
the  time  is  inopportune  for 
realizing  the  estate. 

Mouillot   and   De   Jong   v. 
Koenig       847 


Service,    affidavit  of— Notice   of 
bar. 

Judgment  cannot  be  granted 
under  Rule  319,  unless  an 
affidavit  of  service  of  bar  is 
produced.  The  mere  service 
is  not  sufficient. 

Ghibier  v.  A  jam  ...  •••  427 
Service  of  summons,  see  Summons  475 
Servitus  fluminis  recipiendi. 

Although  a  loicer  proprietor 
is  bound  to  receive  on  his  land 
snch  water  as  finds  its  way 
there  from  the  lartd  of  an  upper 
proprietor  by  natural  flow :  he 


PAGE 

is  not  bound  to  receive  water 
which  the  upper  proprietor  has 
collected  by  artificial  drainage 
at  any  pmnt  of  his  land  at 
which  the  upper  proprietor 
may  elect  to  discharge  it. 

My  burgh  v.  Decker 960 

Service  of  Articles,  see  Attorney  809 

Service  of  summons,  see  Magis- 
trate's Court 127 

Set  off,  see  Provisional  sentence...  321 

Share  of   profits,    see  Managing 


agent  ... 
Shared,  see  Sale 


134 

881 


Sheep  lease — Pledge — Insolvency 
—  Preferent  and  concurrent 
claims. 

Estate  Van  Niekerk  v.  Sandi- 
lands 627 


Shop,  see  Public  place 


274,  980 


Slaughter  house — Local  authority 
— Ulti'a  vires. 

Bex  V.  Joos   ...         ...         .•>  272 

Smelting  pot,  see  Act  10  of  1895...  629 

Special    contract,    see    Sale    and 
purchase         ...         •••         •••  ^60 

Specification,  see  Patent 368 

Specific  performance,  see  Sale    ...  881 

Spoliation — Compensation  for  im- 
provements. 

Certain  land  in  the  village  of 
A.  remmned  registered  in  the 
name  of  Ofie  D.  (now  deceased). 
Some  30  years  ago  D.  sold  the 
land  to  one  K.,  who  jxiid  for 
tJie  same  but  never  took  posses- 
sion.  He  gave  to  one  H.  a 
right  to  occupy  a  hotuse  on  the 
property.  This  house  gradu- 
ally fell  into  tiuch  a  stat^  of 
dilapidation  as  to  become  a 
public  nuisance,  and  im  Divi- 
sional Council  rates  had  been 
paid  on  the  pntperty  for  6 
years.  The  Council,  instead 
of  attaching  the  property  and 
selling  fw  arrears  of  rates, 
gave    W.  leave  to  occupy  the 


DiaEST. 


xzxiii 


PAGE 

house.  He  did  sOy  paid  an'ears 
of  rates  and  made  the  place 
habitable.  After  he  had  been 
in  undisturbed  possession  for 
some  yearsy  H.  alleged  that  he 
had  purchased  the  hojise  from 
jr.,  and  in  W.^s  absence  made 
forcible  etitry. 

Held,  that  H,  had  committed 
aai  act  of  spoliation  thai  he 
mustfi^ve  up  possession  to  W. 
and  might  then  (if  so  advised) 
bring  an  action  of  ejectment 
against  him. 

Semble,  eve7i  in  the  event  of  H. 
succeedijtg  in  such  action^  he 
would  be  bound  to  compensate 
W.  for  his  improvements  and 
to  refund  to  nim  the  money 
paid  for  arrear  rates. 

Wilsnach  v.  Van  der  West- 
huizen  and  another  ...  940 

Stock   theit — Hard    labour — Act 
7  of  1905,  Sec.  4. 

Where  a  prisoner  is  sentenced 
to  pay  a  fine  under  Sec.  4  of 
Act  7  of  1905,  or  in  the  alter- 
native to  a  further  term  of 
impi-isonmenty  the  Act  does  not 
authorize  the  imposition  of 
hard  labour  during  such  ad- 
ditional term. 

Bex    v.    Hendrik  Juel    and 
TolJuel     791 

Stolen  property — Bona  fide  holder 
for  yalue. 

The  appellant  had  agreed  to 
let  H.  have  certain  rings  for 
half  an  hour,  in'  order  that 
he  might  find  a  purchaser  for 
them.  H.  sola  them  to  L.y 
appropriated  the  proceeds  and 
absconded. 

Held  on  appeal,  that  as  II. 
must  be  held  to  have  stolen 
the  rings,  and  as  by  our  law 
the  appellant  was  not  bound  to 
prosecute  the  thief  to  con- 
victio7i  before  he  could  recover 
his  property,  judgment  must 
be  given  for  the  appellant  for 
the  return  of  the  rings  or  pay- 
ment of  £20,  their  value. 

Harris  v.  Lentin       416 


PAGE 

Stolen  property,  see  Purchase  and 

saie      ••*         •«•         ••*         ■••  ^oi 

Storm  water,  S66  Water 901 

Substituted  service,  see  Divorce...  239 

Sub-tenancy,  see  Sale  and  purchase  324 

Succession  ab  intestato— Wife  and 
husband. 

By  the  law  of  this  Colony, 
wife  and  husband  can  under 
no  circumstances  succeed  either* 
to  other  ab  intestato.  Failina 
blood  relations  of  the  deceased, 
the  property  vests  in  the 
Govei'ument  40  years  after  his 
or  her  decease. 

Ex  2^rte  heeuw        508 

Succession  duty — Sees.  1  and  15 
of  Act  5  of  1864— Act  4  of 
1895. 

S.,  domiciled  in  Scotland,  died 
intestate  in  India,  leaving 
certain  movable  property  in 
this  Colony,  which,  in  virtue 
of  a  certain  antenuptial  con- 
tract entered  nito  here,  devolved 
upon  certain  heirs,  ab  intesto, 
who  were  also  domiciled  in 
Scotland.  Lptters  of  adminis- 
traiion  had  been  takeji  out  here, 
and  the  Master  claimed  thai 
the  movable  property  icas  liable 
to  succession  duty  under  Sec.  1 
of  Act  5  of  1864. 

Held,  iliat  as  these  heirs 
succeeded  to  a  settled  estate  in 
this  country  under  a  settlement 
executed  here,  the  estate  was 
liable  to  succession  duty. 

Held  further,  that  by  Sec.  15 
of  Act  5  of  1864,  such  succes- 
sion duty  was  to  be  assessed  at 
the  rate  of  five  per  cent. 

Stewart's     Estate     v.     The 
Master        ...  310 

Summons  —  Principal — Managing 
agent. 

Though  the  princijwil  of  a  shop 
is  the  pr(tper  person  to  sue  and 
be  sued,  the  Court  will  not 
interfere  on  appeal  whei'e  the 
managing  agent  of  a  brancJi 


ptent. 


PAGE 


$kop,  who  had  prtvioudy  taken 
legal  proceedings  in  his  priuci- 
poTs  ifUeresiy  has  been  sued^ 
provided  no  nibsUutiial  iftjnUiee 
is  done. 


Seymour     ▼. 
another 


Takisi     and 


129 


Sammona  in  criminal  case — De- 
scription of  offence. 

A  summons  charged  the  defen- 
dant tcith  cutting  wattles  and 
saplings  in  violation  of  regula- 
tions made  by  the  Government 
in  that  behalf,  but  did  not 
allege  that  the  defindaiit  had 
dofie  so  without  a  licence  or 
permit  from  the  Government, 
The  particular  regulation  teas 
not  mentioned  in  the  summotis, 
nor  was  it  produced  at  the 
trial,  but  it  was  produced  at 
the  hearing  of  the  appeal, 
from  which  it  appeared  that 
a  person  cutting  such  icattles 
Ofia  saplings  without  the  licence 
or  permit  provided  for  in 
section  1  of  these  regulations, 
shall  be  liable  to  the  penalties 
of  section  16  of  Act  28  of  1888, 

Held,  that  as  the  specific  regu- 
lation W€U  not  menUonetl  in 
the  summons,  it  wa^  necessary 
that  the  summons  should  con- 
tain a  full  description  of  the 
offence  charged, 

Bex  y.  Van  Niekerk 122 

Sammona — Service. 

The  posting  of  a  summons  on 
the  door  of  the  Supreme  Court 
is  not  sufficient  service, 

Zeederberg  and   Duncan    v. 
Alperowitz 232 

Summons — Arrest — Particulars  of 
charj^e — R.M.  Court. 

K,  was  charged  with  stock 
theft.  The  evidence  of  the 
first  witness  for  the  prosecution 
implicated  also  M.  (K.^s  son). 
M,  was  thereupon  arrentcd 
vithout  summons  and  placed 
in  the  dock.  He  did  not  except 
to  the  uxint  of  summons  afid 
did  not  appear  to  be  prejudiced 


PAGE 

thereby.  That  portion  of  the 
evidence  which  had  been  taken 
vcas  read  over  to  Kim,  and  he 
was  convicted. 

Held  on  appeal,  that  the  appeal 
must  be  dismissed. 

Rex  ▼.  Kobose  and  Mkebo...  %6 

Summons — Service    on     a     non- 
existent company. 

Certain  goods  said  to  be  the 
property  of  a  company  {B.) 
had  been  attached  for  debt. 
Another  comjtany  {A.)  noir 
asked  for  their  release,  on  the 
ground  that  the  goods  were  their 
property^  and  no  summons  had 
ever  beeti  served  on  them.  It 
appeared  that  the  company  A, 
had,  since  the  summons  was 
seixedy  changed  its  name  to  B.y 
and  that  at  that  vei-y  time  the 
change  was  in  confemplatiou. 

Held,  that  as  the  two  com- 
panie*  were  virtually  the  same 
and  did  not  appear  to  have  any 
defence  on  Ute  merits,  leave 
must  be  granted  to  amend  the 
summons  by  the  itisertion  of  A . 
instead  of  B. 

Plate  Wall  Syndicate,  Ltd. 
V.  Cape  Times,  Ltd.        ...  475 

Surety — Insolvency  of    principal 
— Costs  of  excussion. 

8.  had  guaranteed  certain  debts 
of  C,  to  the  amount  of  £30. 
Shortly  after  S,  had  given  his 
guarantee,  C.  made  further 
purchases  from  the  same  dealer 
to  the  amount  of  nearly  £5. 
A  fete  days  after  enterittg  ifUo 
this  latter  transaction,  C.  paid 
to  the  vendor  of  the  goods  some 
£7  10s,,  and  thereafter  her 
estate  was  sequesti'oted.  Some 
£3  costs  were  incurred  in 
ejccussing  her  for  the  principid 
debt.  In  the  Court  below  the 
Magistrate  refuaed  to  give 
juflgrneut  for  these  costs. 

Held  on  appeal,  that  a  surety 
is  liable  for  costs  of  excussion. 

Boss  &  Co.  V.  Smith  ...  765 


DIGEST. 


PAGE 


Surety  and  co-principal  debtor — 
Consideration  —  Conditional 
settlement. 

P.  had  sigtied  a  promissori/ 
note  for  £700  as  surety  and 
co-prhicipal  debtor  in  favour 
of  O.  and  K.  VarioiiH  ^->ay- 
menla  reduced  thin  debt  owing 
to  plaintiffs  to  £385.  Subse- 
quenlly  O,  paid  off  £160. 
One  I) ,  who  owed  £76  to  0. 
and  A'.,  paid  it  by  special 
agreement  to  W.  on  their 
behalf.  A  further  note  was 
given  for  the  bidance  of  £85. 
Plaintiffs  now  sued  defendant 
for  an  outstanding  balance 
alleged  to  be  still  due  on  one 
of  the  notes  gireii  to  meet  a 
portion  of  the  ongiual  note. 
P.  pleaded  \rant  of  consideia^ 
tion. 

Held)  that  inasmuch  as  the 
plaintiffs  had  advanced  the 
money  to  the  principal  debtors 
on  the  faith  of  P.'s  s^iretyship^ 
he  had  received  full  considera- 
tion. 

Held  further,  that  his  obliga- 
tion in  respect  of  the  (original 
note  had  been  fully  discharged 
by  the  note  for  £85,  inasmuch 
as  by  that  note  a  provisiomil 
settlement  was  effected^  mtt- 
iritJi standing  that  the  respective 
rights  of  K.  and  W.  as  between 
themselves  were  left  under- 
mined. 


Greef    and    Walter 
Plessis 


V.     Du 


PAGE 


4^6 


Suspensory  condition,  see  Sale  and 

purchase         ...  2D0,  340,  460 

Suspensive  condition,  see  Sale  and 

purchase  118 

Theft—Forgery. 

The  apppllanfj  being  an  agent 
employed  by  It.  to  colhr.t  a 
debt  for  him,  rccci red  payment 
of  Ihr  drbt  by  m/v///.s  of  n 
crosAcd  cheque  vuidf  in  favour 
tf  l{.  The  apptlhint  hcing 
about  to  be  arretted  (m  a  deer  a 
of  t'itjil  imprisonment,  wrote 
the  name  of  R.  on  the  back  of 


the  cheque  and  gave  it  to  B.^ 
xeho  received  payment  of  the 
amotint.  B,  devoted  a  few 
shillings  towards  payment  (f 
food  for  the  appellant  atid 
kept  the  balance  for  him. 

Held,  tJiat  the  appellant  had 
he&n  properly  convicted  of  tlieft 
of  the  cheque  and  forgery  of 
R.^s  name. 


Rex  V.  Bindeman 


...  275 


Theft — Technical  exception. 

Where  certain  prisoners  were 
accused  of  stealing  napery 
from  R.J  the  exception  xoas 
taken  that  the  goods  were  not 
the  property  of  R.^  but  of  a 
firm  in  which  he  was  only  a 
partner. 

Held  on  appeal,  th^it  the  excep- 
tion was  purely  technical^  and 
that  as  the  goods  were  in  the 
lawful  jtossession  of  /?.,  the 
appeal  must  be  dismissed. 

Rex  V.  Bavookaand  others...  402 

Title   to   land  —  Registration  — 
Illegal  sale. 

One  F.  B.J  acting  under  an 
alleged  power  of  attorney  front. 
P.  B.J  had  sold  certain  laml 
to  W.J  aiul  the  sale  teas  duly 
registered  and  endorsed  on  the 
title  deeds,  and  W.  thereafter 
dealt  with  the  land  as  his  own. 
Subsequently  P.B.  rejmdiattd 
the  sale  J  on  th*'  ground  that  he 
had  not  been  paid  the  purchase 
price,  and  sold  it  to  the  plain- 
tiff ,  who  took  jwssession  and 
ajtplied  to  have  it  registei'ed  in 
her  own  name.  Her  applica- 
tion was  refused.  A  man  who 
alleged  that  he  was  W.^s  part- 
ner,  and  had  formerly  held 
pitsxexsion  of  the  farm,  having 
bernnte  insolvent,  and  the  farm 
having  been  attf'chedj  the 
plniutilf  obtained  an  order 
restraining  the  Sheriff  from 
dealing  with  it,  claimed  it  as 
her  om^j  and  alleged  that  W. 
had  obtained  transfer  by 
forging  signatures  to  the  de- 
claration of  seller  and  to  the 


DmSBT. 


PAOB 


power  of  attonuy  from  P,  B. 
toF.B, 

Held,  thai  these  dUpvUed 
eignaturee  were  genuine  and 
that  W.  must,  therefore^  be 
regarded  ae  the  legal  owner  of 
the/arm. 

Van    Niekerk    t.    Will   and 


others 


361 


Title  to  land,  see  Prescription    ...  356 

Town  Council — ^Begolationt. 

The  Towti  Council  of  Gtjfe 
Town  has  no  poicer  to  make 
regulations  fixing  the  charges 
to  he  made  hy  drivers  of  cabs 
outside  the  limits  of  the  Muni- 
cipality,  or  compelling  the 
drivers  to  take  fares  outside 
such  limits. 

Rex  T.  Boawen       271 

Town  Conncil — Contract — Inter- 
dict. 

The  Court  granted  a  rule  nisi 
on  the  ex  parte  application  of 
certain  councillors  and  other 
ratepayers^  calling  upon  the 
Town  Couttcil  of  C.  T,to  show 
cause  why  they  should  not  be 
restrained  from  entering  into  a 
certain  contract. 

Cape  Town  Ratepayers'  As- 
sociation and  others  v.  Cape 
To^n  Town  Council       ...  961 

Trade  mark — Colourable  imita- 
tion— Interdict. 

Policansky  Bros.  t.  Hermann 
and  Canard  383 

Transfer  of  licence,  see  Liquor 
Licensing  Acts         58 

TraTeller — Contract  of  service— 
Travelling  expenses — ^Medi- 
cal attendance. 

Robertson  t.  Holt  and  Holt  162 


Trespass — Assault. 
Rex  v.  Rossouw 

Trespass,  see  Game 


...  279 
...  544 


Tremss — Damages— 
Prescription. 

Brink  ▼.  Avenant 


PAGE 


...    51 


Trustee,  see  Provisional  seques- 
tration...       ...        •••        ...    45 

Tribal  tenure,  see  Deed  of  grant  796 

Ultra  vires,  see  Municipal  Conn- 
cil       ...        ...        ...        ...1012 

Ultra  vires,  see  Slaughter-house...  272 

Undesirable  alien— Act  47  of  1902 
— Deportation. 

Act  47  of  1902  makes  no  pro- 
vision for  the  deportation  of 
an  undesirable  alien  who 
having  been  permitted  to  enter 
this  Colony  and  having  been 
naturalized  therein  has  not 
subsequetidy  acquired  any 
domicile  of  choice  elsetvhere, 

Ri>x  V.  Harris  582 

Lis  V.  Colonial  Government...  1011 
Rex  V.  Crystal  1001 


Variation,  see  Pleading 

Vesting,  see  Will 

Village  Commonage — Ord.  9   of 
1836— Act  45  of  1882. 

In  1856  the  farm  B.  was 
transferred  to  the  Kerheraady 
for  the  time  beittg,  of  the 
D.R,  Church  of  Aberdeen. 
The  Kerkeraad  sold  various 
erven  under  conditions^whereby 
the  vendors  reserved  their 
right  to  seU  more  erven  and  to 
impose  such  regulations  on  the 
purchasers  as  might  from  time 
to  time  be  made  either  by  the 
Kerkeraad  or  other  local 
authority  which  might  succeed 
them  for  the  management  of 
the  township.  The  Munici- 
pality subsequently  acquired 
some  6,000  morgen  as  addi- 
tional grazing  land,  atid  now 
complained  that  the  Kerkeraad 
were  selling  portions  of  the 
commonage  as  erven,  and 
thereby  restricting  their  gmzing 
rights,  and  claimed  a  declara- 
tion that  the  defendants  should 
not  be  entitled  to  sell  further 


334 
515 


blGESt. 


xixvli 


PAGE 

erven .  They  further  asked  for 
a  declaration  that  the  Toxon 
Commonage  teas  under  their 
exclusive  cofUroL 

Held,  that  (1)  the  grazing 
rights  of  the  owners  of  erven 
extend  over  the  farm  subject 
to  any  rights  which  the  Kerke- 
raad  may  possess,  (2)  That 
as  the  original  lands  of  B. 
were  itisufficient  to  depasture 
all  the  cattle^  the  inhabitants 
were  entitled  to  place  thereon  : 
the  defendants  were  not  entitled 
to  sell  such  portion  of  the 
commonage  as  would  apprecia- 
bly affect  ilie  plaintiffs'  rights, 
(3)  That  Ord,  9  if  1836  and 
Act  45  of  1882  did  not  apply 
tf)  the  commonage  in  this  case, 
inasmuch  as  the  inhabitants 
had  acquired  only  a  common 
right  to  the  servitude  of 
grazing  stock  on  thecommonage^ 
but  not  to  the  solam  thereof. 

The  Aberdeen  Municipality 
V.  The  Aberdeen  Church...  661 

Vindicdtioy  see  Private  property 
of  enemy       332 

Voters*  list,  see  Divisional  Conncil  826 

Water — Bight  to  lead  over  the 
lands  of  another — Acts  24  of 
1876,  26  of  1882  (Sec.  2),  and 
40  of  1899      968 

Water — Storm  water — Respective 
rights  of  upper  and  lower 
riparian  proprietors. 

When  water  flowing  into  the 
channel  of  a  river  has  once 
etUered  therein  and  joined  the 
stream  within  the  river  banks, 
whether  such  water  be  a  portion 
of  the  xusualflow,  oi'  of  freshets, 
or  of  more  considerable  floods 
after  heavy  rains :  such  water 
becomes  iHirt  of  the  perennial 
stream  ami  is  subject  to  all 
rules  regulating  the  user  of  the 
ordinai-y  flow  by  the  riparian 
proprietors. 

The  rule  that  an  vpjter  pro- 
prietor,  after  using  a  reasona 
ble    quantity    of    water    for 
irrigation,  must  allow  the  sur- 


PAGE 

plus  of  stick  voater  to  flow  back 
into  the  stream,  does  not  cou' 
template  such  return  being 
made  at  atty  uncertain  spot  by 
percolation,  but  obliges  nim  to 
return  each  water  by  a  visible 
flow  at  some  point  in  the  stream 
above  that  at  which  it  joins 
the  property  of  the  lower  pro- 
prietor, 

Southey  t.  Soathey 901 

Water  Act,   1899- Functions  of 
Water  Court — Prescription. 

In  an  amplication  to  a  Water 
Court  for  the  distribution  of  a 
stream  under  the  11th  section 
of  Act  40  0/  1899,  it  was 
pleaded  that  the  stream  was  a 
jfercftnial  one  as  far  as  it 
flowed  over  the  respondent's 
land,  but  that  they,  being  upper 
proprietors,  had  for  upioards 
of  thirty  years  continuously 
diverted  all  the  water  so  as 
not  to  allow  any  to  flxtw  to  the 
applicanVs  land.  Evidence 
was  taken  in  support  of  the 
plea,  and  the  application  was 
dismissed. 

Held  on  appeal,  that  the  Water 
Court  uxis  i^ht  in  taking  the 
evidence,  and  as  the  weight  of 
the  evidence  supported  the  plea, 
Bie  appeal  vms  dismissed. 

Nel  V.  Kleinhans      1;^ 

Water  Court— Act  40  of  1899— 
Appeal — Review. 

Act  40  of  1899  makes  no  pro- 
vision for  an  appeal  from  a 
decision  of  a  Water  Court 
thereunder  constituted.  Such 
decision  may,  however,  be 
brought  Wider  review  by  a 
superior  court  on  any  of  the 
usual  grounds. 

Waite  and  Harvey  v.  Young  793 

Wife  and  husband,  see  Succession 

ab  intestato     ...         ...         ...  508 

Will  —  Codicil  —  Construction  — 
Bequest  by  implication. 

.1  testator,  by  codicil  to  his 
will,  bequeathed  a  farm  to  his 
grandson  A .,  "  upon  this  under- 


xzzriii 


DIGEST. 


PAGE 

standing  that  he  thall  not  be 
able  to  tseli  the  farrn^  but  that 
after  his  death  and  that  of  his 
fci/e  it  shall  devolve  upon  his 
eldest  Hf/n^  A.  married  his 
first  tci/e  after  die  testator^s 
dtath,  and  after  her  death  he 
was  twice  married.  Upon  the 
death  of  A.,  the  plaintiffs  being 
his  eldest  son  by  his  first  irife, 
tooh  j/ossession  oj  the  farm. 

Held,  in  an  action  by  A.'s 
widow,  being  bis  tbird  wife, 
claiming  a  life  interest  in  tbe 
farm,  that  the  wife  referred  to 
in  the  cffdicil  teas  the  mother 
of  the  eldest  son  of  .1.,  attd 
that  the  defendant,  as  such 
eldrst  son,  teas  entitled  to  the 
farm  after  the  death  of  his 
father  afid  mother. 

Kruger  v.  Kruger     316 

Will — Fidei  commissum — Grand- 
cbildren  —  Renunciation  oi 
fiduciary  interest. 

V.  instituted  hia  seven  children 
and  their  children,  by  repre- 
sentation, an  his  heirs,  but 
burdened  the  inheritance  with 
a  life  interest  in  favour  of  his 
tcifr.  V.  having  died,  his 
tridow  now  wished  to  renour.ce 
'  her  life  interest  in  favour  of 
the  fidei  oommissarii. 

Held,  that  as  it  had  been 
ascertained  that  no  further 
gmndchildren  of  T.  could  be 
born,  the  portions  of  tlie  heirs 
should  at  once  be  jxiid  out, 
nottcith standing  the  fact  that 
V.'s  widow  had  jmwer  to  impose 
further  fidei  commissa.  It 
was,  however,  ordered  that  the 
shares  of  the  minor  heirs  were 
to  be  paid  to  the  executor  for 
their  behoof 

Van  Reenen  v.  Estate  Vink  324 

Will — Construction  —  Failure  of 
conditional  legacy — Impossi- 
bility of  performance  of 
condition — Adiatiou — Family 
arrangement  —  Authorization 
nunc  2)ro  tune. 

A  husband  ami  wife,  married 
in  community,    owned  certain 


PAGE 


farms,  over  16,000  morgen  in 
extent,  in  a  contigmomM  block. 
By  a  Joint  will  made  in  1860, 
they  divided  the  land  into  tteo 
nearly  equal  portions,  and 
bequecUhed  the  more  valuable 
half  to  their  eldest  sou  J/,  for 
his  life,  at  the  price  of  IDs.  per 
morgen^  with  strict  prohibttiom 
against  bonding  or  in  any  way 
(dienating  any  portion  thereof, 
the  said  property  to  pass  after 
M.s  death  to  his  eldest  sou  for 
his  lifetime  for  6s.  jter  morgen, 
oitd  after  his  decUh  to  his 
brothers  in  succession,  and  on 
the  decease  of  the  last  of  these 
then  to  his  eldest  and  other 
sons  in  succession,  and  on  the 
demise  of  the  last  of  «urA  great- 
grandsons  of  the  testator,  the 
property  ivas  to  be  sold,  but 
only  among  the  direct  male 
descendants  of  the  testator,  and 
the  money  divided  among  the 
descendants  of  M,  per  stirpes. 
They  bequeathed  the  less  valua- 
ble half  similarly,  but  at  a 
less  price,  to  three  of  their 
other  ffons  and  their  male  de- 
scetidantH  with  similar^  restric- 
tions. As  to  the  residuary 
estate,  the  survivor  Oftd  the 
children  were  appointed  the 
heirs  of  tlie  first  dying,  and  the 
survivor  was  appointed  execu- 
tor. The  testator  died  in  1869, 
leaving  his  widow  and  eleven 
diUdren  surviving,  of  whom 
JA.  and  two  others,  not  innnedi- 
ately  concerned  in  the  kmd, 
ivere  then  majors.  The  farms 
had  been  mortgaged  for  £5,100 
by  the  testator  in  his  lifetime, 
and  these  mortgages  still  sub- 
Hinted  at  his  death.  }f.  was 
wholly  unable  to  pay  the 
bequ-est  price  of  £4,000  for  his 
land,  and  the  other  three  sons, 
at  that  time  minors,  had  no 
prospect  of  being  able  at 
majm'ify  to  jx^H  the  £2,000 
necessary  to  jtrocure  their  life 
entate.  The  estate,  unless  the 
land  was  realised,  was  unable 
to  meet  its  liabilities.  The 
widow  thereupon  determined  in 
1870  to  take  over  the  land  at 


DIGEST. 


zxriz 


PAGE 


a  fair  valtuUio?i^  and  she  liqui- 
dated the  testators  estate  on 
thai  basisy  but  never  got  the 
sanction  of  the  Court  to  such 
an  arremgemenif  nor  did  she 
ever  get  transfer  of  the  land 
into  her  own  name.  She^  how- 
ever, podd  out  all  the  heirs  of 
her  husband  as  they  came  of 
age,  and  resided  and  farmed 
on  the  land,  treating  it  in  all 
respects  as  her  sole  property. 
No  protests  from  any  quarter 
were  ever  made  to  this  family 
arrangem^it.  The  testatrix 
died  in  1904,  having  made  a 
will,  disposing  of  the  land 
among  her  sons,  but  in  a 
different  matmer  to  that  laid 
dotmi  in  the  icill  of  1860,  In 
an  action  brought  by  the  execu- 
tor's against  the  executors 
dative  of  her  husband's  estate 
and  against  the  curator  ad 
litem  for  a  minor  grandson  of 
the  testator. 

Held,  that  the  an'angemeiU 
made  by  the  widow  in  1870, 
and  acquiesced  in^by  all  parties 
since  that  date,  must  be  held 
good,  and  that  it  should  be 
sanctiorted  nuDC  pro  tunc ;  and 
that  transfer  of  the  land  should 
be  given  to  the  plaintiffs,  so 
that  they  might  deal  with  it  in 
terms  of  the  will  of  the  sur- 
vivor. 

Also  held,  tJuil  the  widow  had 
not  by  her  conduct  adiated  or 
(iccepted  benefits  under  the 
joint  will,  so  as  to  debar  her 
from  treating  the  land  in  a 
different  manfier  from  that 
laid  doiofi  in  the  joint  will. 

Ferreira  v.  Otto  (3  Juta,  193) 
followed. 

Ezecntors  of  Van  Breda  v. 
Executors  Van  Breda  and 


others 


...  651 


Will — Construction — Children — 
Child  t«  ventre  matris. 

The  testator  bequeathed  pro- 
perty to  some  of  his  children 
and  to  his  "  grandchildren, 
issue  of  his  daughter  by  X., 
her  husband." 


PAGE 

Held,  ihat  the  plaintiff,  who 
was  a  child  of  the  testator's 
daughter  by  L.,  hut  was  born 
five  months  and  three  days  after 
the  testator's  dearth,  was  entitled 
to  share  in  the  bequest. 

Estate  Lewis  v.  Estate  Jack- 
son   180 

Will — Interpretation — Substitu- 
tion. 

Lazarus  and  others  v.  Estate 
Lazarus  and  others  ...  936 

Will,  joint — Adiation — Condition 
ne  exeat  extra  fanUliam — Sale 
— Fraudulent  misrepresenta- 
tion. 

Fourie  and  others  v.  Mostert 
and  others 222 

Will,  joint— Fidei  Commiseum— 
Insolvency  of  fiduciary  — 
Rights  of  minor  fidei-com- 
missories. 

The  late  P.  and  his  wife  made 
a  mutual  will,  by  which  their 
landed  property  vms  bequeathed 
to  their  two  sons  by  a  fidei- 
commissary  bequest  subject  to 
a  life  interest  in  favour  of  the 
survivor,  "  in  order  that  he  or 
she  may  be  better  enabled  to 
maintain,  support  and  educate 
our  children,  rfec."  After  the 
death  of  P.,  his  widow  married 
B.,  and  subsequently  the  estates 
of  B.  and  his  trife  were  seques- 
trated. Their  trustee  claimed 
the  life  usufruct  of  Mrs.  B. 
in  the  estate  of  her  for- 
mer husband.  The  defendants 
claimed  that  the  uoords  of  the 
will  ^^in  order  that,  ffc, 
amounted  to  a  prohibition 
against  alienation  of  the  usu' 
fruct. 

Held,  that  these  voords  only 
implied  an  expression  of  desire 
on  the  part  of  the  testators  as 
to  the  way  in  which  the  usu- 
fruct should  be  employed,  and 
that  the  trustee  was  entitled  to 
judgment  for  the  same. 

Viaser  v.  Baker  aud  others...  437 


zl 


DIGEST. 


PAGE 

Will,  joint — Husband  and  wife — 
MaMing  of  joint  estate  - 
Oonfirmation  by  surviyor  of 
joint  will. 

The  testators,  being  husband 
and  wi/Cj  made  a  joitU  will, 
by  which  the  testator  instituted 
as  his  heirs  the  testatrix  and 
his  children  by  her,  and  the 
testatrix  itislituted  the  testator 
and  her  children  by  him,  and 
of  a  previous  marriage,  awl 
thsy  directed  that  the  survivor 
was  to  remain  in  full  and/ree 
possession  of  the  whole  of  the 
joint  estate.  The  testator  died 
first,  and  after  him  his  son 
William,  who  left  one  child, 
namely,  the  plaintiff.  The 
testatrix  made  a  will,  revoking 
all  formei'  wills,  except  the 
joint  will. 

Held,  that  even  if  there  was 
no  such  massing  of  the  joint 
estate  as  to  make  the  joitit 
will  binding  on  the  survivor 
after  adiation^  the  effect  of  the 
recognition  by  the  testatrix  of 
the  joint  will  was  to  shew  that 
she  intended  by  her  separate 
will  to  treat  the  joint  will  as 
binding  and  to  deed  only  with 
her  after  acquired  property, 
and  that  the  plaintiff  was 
etititled  to  the  share  of  the 
joint  estate,  which  tooidd  have 
accrued  to  her  father  if  he 
had  survived  his  mother. 

Held  farther,  that  under  the 
joint  ^nll  the  survivor  was 
entitled  to  deal  with  her  child^s 
portion  as  her  own,  and  that 
it  consequently  forms  part  of 
the  property  disposed  of  by 
her  separate  xoill. 

Maskew  v.  Estate  Maskew  .»•  255 

Willjoint— Bale  intra  familiam— 
vesting. 

S.  and  his  wife  made  a  joint 
mil,  whereby  they  bequeathed 
their  entire  estate  to  the  survivor 
and  the  children  of  their 
marriage  as  their  sole  heirs. 
By  a  codicil  to  thts  will  tJie 
testators  directed  that  a  certain 


PAGR 

farm  in  their  estate  should  not 
fall  umler  the  provisions  of  the 
will,  but  should  be  heque^Uhed 
to  their  Jive  sons  for  £500  ; 
which  amount  was  to  be  paid 
after  ihe  deaih  of  the  survivor 
to  ihe  three  dintghters  of  the 
testators.  In  a  medal  ease 
stated  the  plaintiffs  contended 
that  no  portion  of  the  inherits 
ance  vested  in  either  of  the 
two  minor  sons  who  predeceased 
the  survivor,  and  that  subject 
to  payment,  pro  rata,  of  meir 
share  of  the  £500,  the  plaintiff, 
through  his  wife,  as  a  bemfi- 
ciary  wider  the  will,  was  now 
entitled  to  a  share  in  the 
itiheritance  of  the  minor  sons 
deceased.  The  defendants 
denied  tiiat  on  tlie  death  of  the 
survivor  the  deceased  minors 
acquired  any  vested  interest  in 
the  said  farm. 

Held,  in  favour  of  plaintiffs 
contention . 

Olivier    v.    Schoombee    and 
others         ...         ...        •••  ^^^ 

Will,  joint— Massing— Debts  due 
to  estate. 

By  a  joint  will,  V.  and  his  wife 
bequeathed  to  their  daughter 
A.  a  life  interest  in  £1,000, 
with  fidei  commissum  to  their 
other  five  children  and  the 
legitimate  issue  of  these  per 
stirpes.  Tliey  also  bequeathed 
to  these  five  children  certain 
land,  the  survivor  of  the  testa- 
tors to  enjoy  a  life  usufruct 
thereof  Affer  the  death  of 
the  survivor  J  each  of  these  heirs 
was  to  mortgage  his  portion 
for  £200  to  the  said  A.,  the 
interest  to  be  paid  to  her  half- 
yearly.  The  teetator  and  testa- 
trix instituted  each  other 
mutually,  togethei'  with  their 
children,  as  heirs  of  the  residue 
of  the  joint  estate.  Mrs.  V. 
predeceased  her  httsband,  who 
adiated  under  the  will,  and 
suhsequefUly  made  a  will  con- 
firming the  bequest  of  land  to 
hie  children,  but  imposing 
certain  coMtions  not  emJbodieJd 


\ 


DiaEST. 


xU 


PAGE 

in  the  original  ivilL  There 
wcu  (I  bottd  on  the  land  be- 
quea4Jied,  ami  it  was  contended 
for  the  plaintiffs  that  this 
represenied  a  debt  on  ^  joint 
estate.  The  defendants  con- 
tended that  it  represented  the 
accumulated  debts  of  the  plain- 
tiffs. 

Held,  that  as  these  debts  hail 
been  taken  over  by  the  testator 
previous  to  the  death  of  his 
wife,  the  mortgage  must  be 
regarded  cls  a  burden  on  the 
joint  estate^  aiid  that  the 
legatees  xoere  etUitled  to  the 
farms  free  of  mortgage. 

Held  further,  that  a  debt 
incurred  in  respect  of  a  sum 
of  money  paid  for  stock  for 
one  of  the  sons  must  be  regarded 
as  an  asset  of  the  joitU  estate  ; 
and  that  the  executrix  must 
pay  costs. 

Beneke  and  others  ▼.  Van  der 
Vyver  and  others 631 

Will,  mutual — ^Massing — Sale  by 
survivor. 

K.  and  his  wife  made  a  mtitual 
will,  itistituting  as  heirs  the 
survivor  and  their  daughter 
(the  first  plaintiff)  and  her 
children  :  tiie  survivor  to  enjoy 


PAGE 

a  life  usufruct  of  the  whole 
estate.  K.  survived  his  wife 
and  adiated.  Thereafter  K. 
sold  three  erven,  part  of  the 
joint  estate,  PlaijUiffs  now 
claimed  that  the  sale  be  de^ 
dared  invalid  as  to  half  of  the 
three  erven  and  that  defendant 
be  ordered  to  pay  the  price  of 
the  other  half  which  tney  said 
he  had  not  paid.  Or  in  the 
aUemative  that  he  be  ordered 
to  pay  the  full  price  of  the 
erven,  if  the  sale  could  not  be 
set  aside,  either  wholly  or  in 
part.  The  fact  of  uie  sale 
having  taken  place  was  dis- 
puted, but  the  Court  found,  as 
of  act,  that  it  had  gone  through. 
The  Court  also  found  {hat  no 
part  of  the  purchase  price  had 
oeen  paid. 

The  defendant  was  ordered  to 
pay  Me  full  amount  of  the 
purchase  price  (£600)  :  or  in 
the  alternative  to  pay  £200, 
with  interest,  for  half  the  erven 
and  to  re  transfer  the  remain- 
ing ha^  free  and  unemcum- 
bered. 

Du  Plessis    and  another    v. 
VanOs       691 

Witnesses,  see  Promissory  note ...    97 


1 


i 


TABLE    OF    CASES. 


VOL.    XV-1908. 


PAOB 

Abeln  v.  Buchrach   291,  596 

Aberdeen       Municipality       v. 

Aberdeen     D.B.       Church  661 

Abrahams  v.   Arend   174 

Abrahams    v.    Estate   Bassen- 

dien 835 

Ackermann,  ex  parte  671 

Ackermann  v.  Smuts  331 

Adams,  ex  parte  12,  1007 

Adelaide     D.B.      Church,     ex 

parte     39 

Adendorph      Municipality      v. 

Kingwell        104 

Adkins^  ex  parte 17 

Adler  v.  Tuchten  867 

Adier  and  Another  y.    Engel- 

brecht  672 

Africa  v.   Bhenish   Missionary 

Society     170 

A. B.C.    Bank   v.    Leoman     ...  804 
A. B.C.  Bank  v.    Schultze   and 

Co 598 

Africans     Homes     Trust     v. 

Boyce  322,  860 

African       Homes      Trust     v. 

Sebba  tuid  Another  286 

African  Mutual    v.    Abraham- 
son  310 

African  Mutual  v.  Poggenpoel  376 

Ahren's  Estate  v.  Conradie  ...  803 

Alard  and  Others  v.  Le  Boux  804 

Albertse^s   Estate,   ex  parte  ...  301 

Albertyn  v.    Basson   118 

Albow  V.   Sandler  and  Others  596 

Alexander's   Estate   v.  Jubb...  112 
Aliwal     N.     Municipality     v. 

Whitham   40 

Allen  and  Co.,  ex  parte 737 

Allen   and  Shaw   v.    Bennett 

381,  506 
Allen,   Shaw   and     Others     v. 

Cochrane   and  Another   ...  163 

Allengensky,    ex  parte      113 

Allie  V.  Bennet 735 

Allie  V.  Dulla 819 

Ally,  €05  parte  310 

Alverback  v,  Dayi4s  ,.,  8^ 


FAGB 

Amoy  Brick   Syndicate,   In  re 

242,    1008 

Anderson   v.    Anderson    861 

Andrews  v.  Vyner 16 

Annenberg  v.  Fourie 701 

Ankell   and   Another  v.    Hoff- 
man       16 

Anstice  v.   Anstice   789,  862 

Appel   V.    The  Deputy   Sheriff  634 

Appel  V.  Wiggett  1001 

Appel   and  Another  v.    Appel  696 

Arderne   v.    Biden    286,  460 

Arderne    ▼.     Cohen     and    An- 
other    234 

Arderne  v.  De  Heaton     606 

Arderne    v.     Ealwerisky     and 

Another    233 

Arderne  v.   Melekov   999 

Arderne  v.   Weenan 411 

Arderne  and  Co.   v.    Gird     ...  376 
Arkell   and  Another   v.    Hoff- 
man    233 

Armenia  v.    Claremont  Muni- 
cipality    336 

Armster,  ex  parte 500 

Armster  v.    Beling   770,  806 

Arnold,   ex  parte 789 

Aronstein,  ex   parte    36 

Arter  Bros,  ex  parte  326 

Atlas  Insurance  Co.  v.  Bodri- 

ques 473 

Attaway's  Creditors,    ex   parte  98 

Attwell,  ex  parte  410 

Aspeling,  ex  parte 807 

Austin   V.    Morrall   and  Others  183 

Baboolalland   ▼.    Baboolalland 

680,  702 

Badenhorst,  ex  parte  571 

Badenhorst   v.    Badenhorst   ...  804 

Badenhorst's   Estate,   ex   parte 

189,  297 

Baerselman  v.    Fraeman    and 

Others  800 

Bagnall   and  Co.    v.    Schapera 

15,  2S6 

Bailey,  ex  parte..,  ..,  ,..  831 


ii 


IKBEX. 


935 
942 
307 
240 


PAGE 

Bailey   v.    Drummond    ...    643,  827 

Baker,  ex  parte 12,  799 

Bakker  v.   Ludolph  ...          ...  758 

Bakst,  ex  parte 596 

Ball,  ex  parte 40,  430 

Ball  v.  Ball 669 

Barn's    Estate   v.     Grobbelaar  801 

Bands,   ex  parte   231 

Bank  of  Africa  v.    Droyer   ...  561 
Bank    of    Africa    v.     Hoffman 

and  Co 236 

Bank  of  Africa  v.  Koenig  and 

and  \jO u^i 

Bank's     Executors,     ex    parte 

150,  296 

Bamett  v.    Fotheringham     ...  32 

Barnett  v.   Levenson   17 

Barr  and  Co,,  ex  parte  238 

Barrit  v.   Barrit ...  66 

Bartholomew  v.  Del  mo  re..,  ...  733 
Baskind    and    Wife,    ex   parte  1007 

Basson  v.    Beck  40,    114,    189,  247 

Basson  v.  Thompson 674 

Batchelor  v.   S.A.   Breweries...  11 
Battenhausen    v.    Yorster  930, 

Bauer's  Estate,  ex  parte  

Baumann's  Estate   v.    Louw... 

Baumgarten  v.  Paul 

Baxter,  ex  parte 13 

Beatty  v.   Fernandez  ...   15 

Behr  v.   Andrews  998 

Beira    Cold     Storage     Co.     v. 

Rhodesia  Cold  Storage  Co.  703 
Biera  Cold  Storage  Co.,  Liqui- 
dators of  ex  parte     1012 

Bekker,    ex  parte     109,  471 

Bell,  ex  parte 248 

Bellett  V.    Stark    805 

Bclvliet    Park    Estate    Syndi- 
cate V.  Foster 

Bendheim    v.    Goldberg    

Bendheim   v.   Goldstein    

Bendheim  v.   Hirschhorn 

Beneke  and  Others  v.  Van  der 

Vyver   and   Others 
Benjamin  v.  Shore   ... 

Bennett  v.   Frame  176,  235 

Bennett   v.    Gillanders    774 

Bensimon   ▼.    Hutchinson      ...  851 

Benson,  ex  parte  109 

Benya     ▼.     Magugwana     and 

Others 581,  646 

Berg,  ex  parte 449 

Berman   v.    Ounliffehister      ...  16 

Berman  v.  Zimri  110 

Bernard  y.  Le  Sueur 929 

Bernstein     v.     Estate     Rade- 

meyer  13 


I  •  •       • « I 


16 
506 
734 
291 

631 

973 


PAOB 

Berrang^  v.    Shaw   472,  734 

Bessell   v.    Gruneberg      233 

Bessell  v.  Twine 233 

Severn    and    Oo.      v.      Royal 

Hotel  Co 925 

Bevern,    Estate    of,    v.    Heixis- 

worth  83 

Beyers,  ex  parte  866 

Bezuidenhout,   ex  parte   789 

Biccard  v.  Smellerkamp  925 

Bishop    V.    Bamett    561 

Bisset,   ex  parte     231 

Blaauklip       Garden     Co.      v. 

Faure,      Van     Eyk      and 

Moore  793 

Black,  ex  parte 300 

Black  V.  Hurwitz  29 

Black's  .  Executors,     ex    parte  374 

Blacker  v.  Carter 495 

Blaine  v.  Heydenrych 671 

Blignaut,  ex  parte 596 

Blignaut   v.    Wepenaar    377 

Board  of  Executors  v.   Miller  232 

Board    of    Executors    ▼.    Rose  672 

Board  of  Executors  v.  Saacks  235 
Board    of    Executors    v.    Van 

Zyl 371 

Boardman,  ex  parte   809 

Boisson  y.   Boisson  ...  33,  238,  506 

Boisson  V.  Dayidson  506 

Boje,  ex  parte 40 

Boldt  y.   Burger  Estates,  Ltd.  853 
Bolus   and     Co.     y.     Paterson 

and  Son 929 

Bosekara  v.   Palmer   ...   699 

Bosiki  y.   Whyte  351 

Bosman,  ex  parte 414 

Bosman   y.    Brown     232 

Bosman  y.   Fletcher   930 

Bosman,    Powis    and     Co.      y. 

Norden 192 

Bosselier  y.   Pipman   ...  819 

Boswarva  y.  Palmer  842 

Botes'  Estate  y.  Marais   999 

Botha,    ex  parte   33,  428 

Botha  y.   Botha  300.  323 

Botha  y.   Estate   Phillips,   372,  742 

Botha's  Estate,   ex  parte^   646,  736 

Botma  y.  Norton 126 

Bottomley,   ex  parte  550 

Boucher       y.        Cader       and 

Another    249 

Bouwer,   ex  parte  ...  40,   535,   1008 

Bouwers,    ex   parte     811 

Bouwers  y.  Arendse  285 

Bouwers     y.     Bouwers       and 

Another 66 

Bowker,  ex  parte 34 


tMvSt. 


••• 


PAGB 

Boyce,   ex  parte   ...  1022 

Braoht       y.        BCansen       and 

Schrader  134 

Bradbury    v.    National     Drill 

Co 790 

Bradfield,   H*,  ex  parte  ...    ...  799 

Bradley   and  Another  v.  Baner 

636,   1012 

Brady   v.    Allie  and   Others...  13 

Brearley  v.  Faure  and  Others  20 

Bredenkamp,    ex   parte   20 

Brill    V.    New    York    Mutual 

661,  643 

Brink   v.    Avernant    61 

Brink  v.  Blignault 83 

Brink  v.   Braaf     801 

Brinton,  ex  parte  634 

British       Electric      Co.      and 
Others  v.   Torque  Co.  and 

Others  81 

B.B.A.   Asphalt  Co.,   ex  parte  366 

Brole,   ex  parte     636 

Brook's    Estate,    ex  parte     ...  297 
Broughton        v.         Broughton 

40,  430,  661 

Brown  v.    Padyache   801 

Brown  v.   Townsend   606 

Brown,     Lawrence    and     Co., 

ex   parte   827 

Brummer  ▼.    Estate   Steyn,  249, 316 

Brunt  V.    Gk)ldstein 804 

Brusoni,  ex  parte 323 

Brussell    and    Co.     v.     Kotzi^  924 

Brussell    and    Co.   v.    Snyman  733 
Bryant  and  Another  v.   Bart- 

lett 929 

Bubb  v.  Levitan  234 

Buchanan,   ex  parte   162 

Buchanan  v.   Miller  606 

Bu£falo  Supply  Co.,   In  re   ...  607 
Buffalo     Supply  Co.   v.    Bergl  807 
Buffalo  Supply   Co.,    Liquida- 
tors of,  ex  parte  ...  .i.   ...  391 

Buhlmann,  ex  parte 246,  807 

Buigwa,  ex  parte  35 

Buissinn^   ex  parte   , 410 

Bull  V.  Walsh  666 

Burmeister  v.  Plehn 286 

Burroughs       and      Watts      v. 

Campbell   340 

Bussell  and  Co.  y  Koiss6  596 

Butler  V.  Butler  239 

Buyskes  v.  Margolin  350 

Byrne  v.  Byrne     34,  414 


Caimcross  v  Lizamore   ...   189,   284 
Oalmeyer'  v.  Diimuell   ...  821,  863 


PAOB 

Cameron,    ex   parte   ...    ...    ...    177 

Campbell,   ex  parte     262 

Campbell's  Estate,  ex  parte...  702 
Campbell,     Executrix     o£,    ex 

parte 178 

Campbell    and    Co.    v.    Dium- 

mond   868 

Camp's    Bay    Estates     Co.   v. 

Samson 702 

Canarie,  ex  parte ...     931 

Cango  Tobacco  Co.  v.  Thomp- 
son       606 

Cape  Canning  Co.,  ex  parte...  1009 
Cape  Cold  Storage  v.  Fleming  17 
Cape   Cold   Storage   v.    Sayers 

236,  286 
Cape   District   Mutual    Build- 
ing   Society,    ex   parte^    39,    86 
Cape    Electric     Tramways     v. 

Colonial    Government,    643, 712 
Cape     Government     Railways, 

ex  pame  ...  ...  «..  ...  ...  ...     oox 

Cape   Marine   Suburbs   v.  Rer 

creation  Syndicate, 

236,   736,     786 
Cape  Orchard  Co.    v.    Colonial 

Government    421  ' 

Cape  Times,  Ltd.,  ex  parte...  326 
Cape  Times,  Ltd.,  v.  American 

Medicine  Co 772 

Cape  Times,  Ltd.,  v.  Cohen...  16 
Cape  Times,  Ltd.,  v.  Fisher  767 
Cape  Times,  Ltd.,  v.  Gardiner 

and  Another w     372  > 

Cape  Times,  Ltd.,  v.  Hermann 

and  Another   110 

Cape  Times,  Ltd.,  v.  Hoffman  17 
Cape  Times,  Ltd.,  v.  Irvine...  643 
Cape  Times,   Ltd.,  v.   Langer- 

man 376 

Cape  Times,  Ltd.,  v.   McKen- 

zie   and  Co .».    ...      46 

Cape  Times,    Ltd.,    v.     Plate 

Wall    Building   Co   ...    ,..     414 
Cape  Times.,  Ltd.,  v.   Steven- 
son    ...   ..s    B67' 

Cape   Times,    Ltd.,    v.    Terw^- 

bona  Tea  Co i..     566 

Cape  Times,  Ltd.,  t.  Teomans  < 

and  Co ...   661)   ^3(^ 

Cape    Town    Buffalo   Club,    ejc      '*   * 

parte 177 

Cape  Town  Gas  Co.  v.  Dobson  93l 
Cape    Town    Ratepayers'    As- " 

sociation    and    Others    v. 

Cape    Town    Council,  961,    1012 
Cape  Town    Town   Council    v. 

Brown  605 


!▼ 


INDBX. 


PAOB 

Oape  Town  Town   Oouncil   v. 

Lewis   868 

Cape   Town   Town   Council   v. 

McPhenon     805 

Cape   Town   Town  Council   v. 

^VL*  AXO    •••     •••     •■•     ■•■     •••     •••  ^^%MJm 

Cape   Town   Town   Council   v. 

MoBtapha  1001 

Cape   Town   Town  Council   v. 

Plocky  861 

Cape   Town   Town  Council   v. 

Batepayera'       Association  1002 
Cape  Town   Town   Council   v. 

Soeker 1001 

Capron     and     Co.     v.      Rowe 

413,  414,  449 

Cardinal,  ex  ftarte 927 

Carelse,  ex  jxirte  736 

Carlisle,  ex  parte  28 

Carolessen   v.    Paulse     ...   737,  930 

Carolus,  ex  parte  646 

Carr  and  Co.   v.    Lenders  and 

Co 667 

Carroll  and  Co.  v.   Armstrong  112 

Carter   v.    Parry    671 

Cartwright  and   Co.,  ex   parte  476 
Cartwright       and       Co.        v. 

Qriffiths    17 

Gary's  Estate  v.    Gary   ...  178,  466 
Castle  Wine   and   Brandy  Co. 

V.  Heineman   360 

Cathcart  v.   Ward  and  Co.    ...  1001 

Cauvin  v.   Broucher   411 

Celliers  v.  Cummings 32 

Celliers  v.    Heintjes  160 

Celliers   v.    Minnaar  and   An- 
other    Ill,  233 

Ceres    Municipal    Council,    ex 

parte 34 

Chaddock,  ex  parte  373,  697 

Channingj   ex   parte   379 

Channing  v.   Channing 

240,   637,  690 

Chapman's      Estate,    ex    parte  942 

Charlie    v.    Estate    Matola    ...  772 

Chiappini     v.      Van    Straatin  771 

Chiappini   Bros.    v.   Harris    ...  414 

Chiappini    Bros.    v.    Schreider  243 

Choritz  V.    Shoolman,  38,   291,  411 

Christian    v.    Christian    918 

Christ   V.  Christ     ...    37,    297,  709 

Christie,  ex  parte  698 

Churchill   v.    Claim    175 

Gilliers   v.    Heintjes  339 

Cilliers  v.    Sacon   278 

Clack  V.  Clack  609 

Clanwilliam    Divisional    Coun- 
cil V.  Peters  126 


^  PAOB 

Claremont      Municipality      v. 

Colonial     €k>vernment    ...  204 
Claremont      Municipality      v. 

Levy 1001 

Clark,   ex  parte  559,  592 

Clark  V.  Lang  284 

Clark  V.   Lea  323 

Classen,  ex  parte 1009 

Clear's  Estate  v.   Lonsdale   ...  14 

Cloete,  ex  parte 176 

Cloete  V.   Diephraem 

69,  92,   114,   178,  297,  346 

Cleghorn,  ex  parte 40 

Close,  ex  parte 36 

Cluigman      and     Another     v. 

Kahn 33 

Cluver  V.  Cassiem 924 

Coates  V.    Searle   334 

Coates     and    Another     v.     S. 

John's   Benefit  Society   ...  1020 

Coaton  V.   Reynolds    17 

Cochrane  v.  Brand 236 

Coetzee,  ex  parte^  664,  673,  812,  869 

Coetzee  v.  Diebel  999 

Coetzer's    Estate,    ex    parte    ...  926 

Coldrey,  ex  itarte 612 

Coldrey   v.    Coldrey    809 

Collie  v.    Wagner  and   Co.    ...  291 

Collins,   ex  parte   113 

Colonial     Assurance     Co.,     ex 

parte    636 

Colonial  Assurance  Co.,  In  re  418 

Colonial        Government,         ix 

IKirte 326 

Colonial  Government  v.  Buck- 
ley    376 

Colonial  Government  v.  Bur- 
ger    307 

Colonial   Government    v.    Con- 

radie  703,  820 

Colonial     Government     v.    De 

Wet 674 

Colonial  Government  v.  Edg- 
combe  and  Co.  and  An- 
other     806 

Colonial   Government  v.  Late- 

gan  736 

Colonial  Government       v. 

Lazenby   703,  820 

Colonial     Government   v.      Le 

Roux  and  Others 1008 

Colonial    Government    v.    Lot- 

ter 942 

Colonial    Government    v.    Mc- 

Kenzie  and  Co 17,  700 

Colonial  Government  v.  Maid- 

ment   and  Another  351 


1 


INDE^. 


PAOB 

Oolonial    Crovernment  v.   Mat- 

liiw"  8     •••      •••      •••      ..•                ...  ^O^ 

Colonial  Government  v.   Row- 
ling    154 

Colonial  Qovernment  v.   Sacks 

and  Chiat  17 

Colonial    Grovernment   v.    Sch- 
wartz     372 

Colonial  Government  v.  Silver  501 
Colonial     Government    v.    Ta- 

landa   17 

Colonial    Government   v.    Van 

Rensburg   29 

Colonial    Orphan    Chamber  v. 

Lategan 376 

Commissioner  of  Taxes  v.    De 

Beer's  Mines   619 

Commonwealth    Boot     Co.     v. 

Van  Booyen 534 

Conradie,  ex,  parte 770 

Conradie  v.  Smit  322 

Cook,  ex  parte 178 

Cook  V.   Cook   475 

Cook  V.   Scarr  ., 472 

Coomer  v.  Coomer 601 

Ooote    and    Another,    ex   parte  39 

Coppenhagen    v.     Arendse     ...  506 

Cornelius   and   Wife,   ex   parte  1009 

Corney   v.    Shaw  582 

Cortese  and  Another  v.    Bond 

and  Another  268 

Costello  Bros.  v.   Owbridge  ...  411 
Cotton   and   Co.    v.    Baumgar- 

ten  13 

Coulter,  ex   parte     305,  866 

Coulton  V.   Bull   771,  796 

Courteney  v.   Courteney   809 

Courtiller     and     Another     v. 

Taylor  and   Another       ...  998 
Cowley   and  Co.    v.   Vassis  ...  13 
Cowling   V.    Estate   of   Stable- 
ford  and  Co 247,  479 

Cowling's   Estate    v.     Cowling  933 

Cronje's   Estate,    ex    parte,  599,  871 

Crosbie's  Estate  v.  Zondagh...  14 

Crowther,  ex  parte 277 

Cruikshanks,    ex  parte     1006 

Cunningham    and   Another    v. 

Orr 286 

Curtis,    ex   parte    241 

Outhbert  and   Co.    v.    Rest   ...  999 

Outhbert  and  Co.  v.  Shorkend  999 

C^riactts  v.  Cyriacus  821 


Dala  V.   Hassien  

Daly's  Estate,   ex  parte 
Damons  v.  Damons 


•       • « • 


820 

190 

17 


PAOB 

Danzig  v.  Rex  and  Another...  802 

Darter    v.    Darter...    102,    242,  455 

Darter   v.    Steer    771 

Dassonville,  ex  parte  188 

Dath,    ex  parte   315,  390 

Davids  v.  Davids  610 

Davids     v.      Executor     Estate 

Davids  113 

Davidfl'  Estate  v.  Davids 383 

Davidson,    ex    parte      28 

Davidson  v.  Sivertsen 719 

Davidson     v.     Werdmuller   ...  170 
Davidson's  Estate  v.   Auret,  21,  392 

Davies  v.   Scholtz  337 

Davies   Bros.    v.    Israelson    ...  428 

Davis  V.    McDonald   919 

Day  V.  Moezelany  594 

Dean's  Estate,   ex  parte  451 

De    Beer's   Estate,    ex  parte  . . .  813 
De  Beer   and   Others   v.    Sch- 
wartz     413 

De  Bruin  v.   De  Bruin   688 

De   Jager   v.  De   Jager    703 

De  Jager's  Estate  v.  Thysse...  84 

De   Jongh   v.   De  Jongh    43 

De  Jongh  v.   Koenig  376 

De  Klerck,  ex  parte.. AlO,  870,  1007 

De  Klerck  v.   Clweidan  800 

De   Klerck's  Estate,    ex   parte  325 

De   Kock,    ex   parte    241 

De  Kock  V.    Colonial   Govern- 
ment     327 

De  Kock  V.  Riley 771 

De  Kock's  Estate  v.  Malmes-' 

bury    Board    of   Executors  562 
De    Lange's    Estate,    Creditors 

of,    ex   parte    534 

Delbridge  v.    Harris   533 

Delport    v.     Colonial   Govern- 
ment      536 

Dempers  v.   Snel   284 

Dempers  v.  Van  Almelo  699 

Dempers  and  Van  Ryneveld  v. 

Bull     33,  471 

Dempers  and  Van  Ryneveld  v. 

Melman    and   Another    ...  110 
Dempers  and  Van  Ryneveld  v. 

Rodde  and  Another  292 

Dempers  and  Van  Ryneveld  v. 

Zacks      112,  803 

Dent  and  Others,   ex  parte  ...  27 
De   Richmond   Handels   Maat- 

schappij,    ex    parte    377 

Deutches    Haus    and    Co.     v. 

Dose    and    Others  254 

Devenish's      Estate,     ex    parte  296 
De  Villiers,  ex  fmrte,  109,  305, 

379,    642,   866,    923,    925,  960 


' 


iKDBK. 


1 


PAOB 

De  Viltien  ▼.  Baumgarten  ...  851 

De  Villieri  v.  Botha 350 

Pe  VillierB  v.  Craig 1000 

De   Villien   v.    Estate  Brede- 

velrt 930 

De  Villiers  v.  Groenewald  and 

Anotlier   '^^ 

De  Villiera  ▼.  Keet  307 

De   Yillien   ▼.    Mjburgh  and 

Another     286 

De  Villier»*   Estote,   €x   parte  201 
De  Villien*   Estate    v.     Van 

Zyl 771 

De    Villiers    and    Another   v. 

Newman   236 

De  Villiers    and    Another    v. 

Visser  236 

Devis  V.    McDonald   250 

Deviston  v.  Hildebrandt 666 

De  Waal,  ex  parte 428 

De  Waal  v.    De   Waal    868 

De  Wahl  v.  De  Boubaix 504 

Dewan  v.   Hart   323 

Dewdnej     and    Another,     ex 

parte 451 

De  Wet,  ex  parte  277,  1006 

De  Wet  V.  Japtha 130 

De  Wet  V.    Kaltwasser  153 

De    Wit    and    Wife,    ex    parte  1008 

Diamond,    ex   parte    812 

Diamond   and  Wife,    ex   parte 

823,  870 

Dickervon  v.  G^uli  211 

Diepraem   ▼.    Oloete  38 

Dirks  V.  Schroder 861 

Distributing      Syndicate       v. 

Rose   32 

Dr.  Williams  Medicine  Go.  v. 

Alexander 871 

Dold,  ex  parte 297 

Donnellan  v.    Estate    Carolas  560 
Domingo   v.    Colonial   Govern- 
ment    190 

Donoghy  v.  Donoghy 248 

Donoghy   v.    Estate   Hablutzel  254 

Douglas  V.  Fisher 572 

Doune,  ex  parte  927,  942 

Dowlin  V.  Lovegrove 112 

Doyle,  ex  parte 155 

Drewitt  v.   Steer  723 

Creyer,   ex  parte   1006 

Driessen  v.   Salte  236 

Drummond  v.   Jones  27 

Drury,  rx  parte. ...  39 

Drury's  Estate,  ex  parte 352 

Dnffus   and  Co.   v.    Tobias   ...  Ill 

Duncan,  ex  parte 239 

Duncan  v.  Duncan     477 


PAGB 

Duncan    v.    It.M.    of    Mosael 

Bay 927 

Duncan  v.   Shaw   559 

Dunnell,   Ebden    and    Co    v. 

Nieburg 428 

Dunlop  V.   Union    Castle    Co. 

391,  506 
Dunlop  Tyre  Co.  v.  Steyn  and 

Another    112 

Dunn  and  Co.   v.    Taylor  and 

Another     153 

Du  Plessis,  ex  paHe,  TQIb,  504, 1009 
Du   Plessis    V.   Colonial    Qtov- 

ernment    957 

Du  Plessis  V.  Du  Plessis 289 

Du  Plessis   V.   Greef  and   An- 
other     833 

Du   Plessis  V.    Hauptfleieh    ...  283 

Du   Plessis   V.    Hegers     770 

Du  Plessis  V.   Stark  772 

Du   Plessis'    Estate,    ex  parte  811 
Du  Plessis  and  Another  v.  Van 

Aa  691 

Du     Plessis     and    Others,    ex 

parte  34,  39,  599,  700 

Du   Pre  V.     Colonial    Govern- 
ment    787 

Du  Preez  v.  Brink     764 

Du  Preez  v.  Terblanche  229 

Durant  ▼.   Haarho£f   607 

Durnford,   ex  parte     296 

Dusseau  and  Co.,  In  re 

379,  536,  1019 

Du  Toit,  ex  parte  1007 

Du   Toit  V.    Kruger   332 

Du  Toit  V.  Lillienfeld  Bros....  763 

Du  Toit  V.  Nicholson 14 

Du  Toit  V.  Steyn 110 

Du  Toit's  Estate,  ex  parte,  812,  932 
Dyer   and   Dyer,  ex  parte      ...  834 
Eagle  v.*  Williams  and  Another  867 
Earl  V.   Humphery  and  Anot- 
her    802 

East  London  Milk  Co. ,  ex  parte  980 

Eaton  and  Co.  v.  Aberg 291 

Eaton  and  Co.  v.  Barwin  and 

Another 699 

Eaton  and  Co.  v.  Van  Zyl  ...  372 

Eaton  Trust  Fund  v.  Weigman  414 

Kbert  and  Co.,  ex  parte  102 

Ebraim  v.    Dehning  356,  474 

Eddie,  ex  parte 34 

Rdkin's  ^tate,  ex  jtarte 315 

Kdross,  ex  jjarte  823,  926 

PMwards   v.    Colonial    Govern- 
ment    736 

Eilenberg  v.  Abrahams   32 

Ekerman,  exports 415 


iNDBl. 


▼if 


FAOB 

Elfert,  ex  parte 323 

Eliason  v.  Eliason 42 

Elliot,    ex  parfe    28,  428 

Elliot  V.  Engelbrecht 379 

Ellis  V.  Kemp  , 15 

Ellis'     Insolvent     Estate,     ex 

parte 665 

Elsby,  ex  parte 38 

End  ley  and  Another  v.  Estate 

Endley  376 

Equitable  Fire  Assurance  Co., 

635  jxirte 823 

Equitable  Fire  Assurance   Co. 

V.  La  Grange  ...  449 

Erasmus,  ex  parte  '...  822 

Erasmus    v.    Van    der   Merwe  316 

Erasmus'    Estate,    ex  parte   ...  189 

Esterhuysen,   ex  parte 808 

Eustace  v.   Barnett  and  Anot- 
her    1000 

Evans  v.   Evans  and   Another  810 

Ezau,  ex  parte  931 


Fairbridge  v.   Blake 999 

Farquharson,   ex  parte      799 

Farrell  v.  Arend  and  Another  449 

Faure  v.  Gibbons  734 

February   v.    Johnson      985 

Federal    Supply    Co.    v.    Cutt- 

chin  81 

Federal  Supply  Co.  v.  Fleeser 

and  Another  999 

Federal   Supply   Co.    v.   Flem- 
ing         37,  109 

Federal   Supply  Co.   v.    Karro  472 
Federal   Supply   Co.    v.    Whit- 
ton  and .  Another  605 

Feltman  v.    Buiriski   124 

Fennell,   ex  parte   671 

Fennell  v.   Gilchrist  110 

Fergusson  v.  Bowe 472 

Ferreira,  ex  parte  378 

Fick,   ex  parte  613 

Fick  V.  Tanner 292,  734,  931 

Field  V.  Impey  Ill 

Field   and     Co.    v.   Annerberg  117 

Field  and  Co.  v.  Shear    283 

Field  and  Co.    v.    Solomon   ...  660 
Fillis'     Estate     v.     VaA     der 

Westhuizen 322 

Finkelstein,  ex  parte  700 

Fisher  v.   Isaacs   and  Another  229 

Flaum,  rx  parte  296,  936 

Fleischack,    ex  parte  305,    360,  371 

Fletcher,  ex  jmrte 262 

Fletcher  v.   Bartlett   642 

Fletcher  v.  Hurwitz  286 


Fletcher's   Wholeearle  v.    Bos- 

souw 566 

Fletcher's  Wholesale   v.    Viv- 

•    iers  35 

Fletchers  and  Others  v.    Dia- 
mond    284 

Fon's  Insolvent  Estate,   In  re  787 

Fooch  V.   Cooper  822 

Forbes,   ex  parte   296 

Fortuin  v.   Engelbrecht   ...    ...  766 

Foster,   ex  parte    998 

Foster   v.    Denyssen   15 

Foster  v.   Solomon  163,  696 

Fourie,   ex  parte      822,  1008 

Fourie  v.  Fourie  37,  339 

Fourie  v.  Hendricks  986 

Fourie  v.  Strydom 699 

Foure  and   Others  v.    Mostert 

and  Others 222 

Fowler  v.  Joubert 710 

Fox  V.  Fox 432 

Francis'  Curator,  ex  parte     ...  378 
Eraser     and    Co.     v.     Udwin 

Bros 428 

Eraser  and  Son,  Ltd.  v.  Shaw  642 

Fredericks   v.    Rohland    672 

Freeman  v.    Browne   643 

Freemantle  v.   Palmer      493 

French,   ex  parte   698 

Friedman  v.  Pieters   112 

Friedlander     and   Du   Toit  v. 

Glasgow     163 

Friedlander    and    Du    Toit  v. 

Komblun  673 

Friedlander    and    Du    Toit    v. 

Myburgh   634 

Friedlander   and    Du   Toit     v. 

Psiaki  Bros 700 

Fried  lander's   Estate   v.    Rowe 

472,  606 

Friedman  v.  Uys   672 

Fripp  V.   Barnett  596 

Fritz  and  Another,  ex  parte  ...  84 

Fuller,  ex  parte   870 

Fumber  v.  Dickerson 768 

FurnisB,  ex  parte     599 


Gabier   v.    Ajam   427,     478 

Gaculi   V.    Dickeson   35 

Gaffoor  v.    The   High     Sheriff 

and   Another   608 

Galloway  v.  Tiran  460 

Gardiner   and    Easton   v.    New 

Zealand  Steamship  Oo.  ... 

Garland  v.   Delmore   

Gar  lick  v.  Boux  and  Another 


86 
735 
31 
Garlick  v.  Stevens  471 


Till 


INDEX. 


FAOll 

Garlick  v.  Thompson 301 

Garvie  v.    Tamboer      232 

Garvie'fi  Estate  v.   B.8.A.   As- 
phalt Oo 688 

Gates      V.     Insolvent      Estate 

Smith  and  Another  789 

Gauss  V.    Eybers   323 

Gauss  V.  Estate  Eybers  ...   ...  323 

Gavin  v.  Estate  Botha 322 

Gearing  v.  B.S.A.  Asphalt  Co.  771 

Gepp  V.   Gepp  602 

Gerber  v.   Von  Witt  427 

Gericke,   ex  parfe   789 

Gerson  and  Oo.  v.  Zion,  Ohiat 

and  Co 716,  800 

Gibbs   V.    B.S.A.   Asphalt  Co.  159 

Gibbs  V.   Fisk  595 

Gibbs  V.   Hoggard    534,  708 

Gibbs  and  Others,  ex  parfe  ...  1007 
Gibson  v.  Hoffman  and  Anot- 
her    278 

Gilbert  and  Others  v.  Silbert  804 

Gill  V.   Augood     560 

Gillis'    Estate    v.     Raubenhei- 

mer 233 

Ginsberg,  ex  parU 374 

Ginsberg  v.    Botha  and   Anot- 
her    642 

Ginsberg's   Estate  v.  Bates   ...  805 
Gliddon    and   Another  ▼.    Ab- 

lett  851 

Glynn's  Estate  v.    Ross    999 

Goddard,  ex  parte 34 

Godfrey  v.  Frank  813 

Godlonton    v.    Solomon   232 

G<>ezaar,   ex  parte.  1006 

Golding's      Insolvent      Estate, 

ex  parte 939 

Goldschmidt's  Estate  v.  Davis 

and  Another   672 

Goldsmid,   ex  parte      868 

Golpas   v.    Wedmarce      505 

Goodman  v.    Zwaigenhaft      ...  284 

Goodson's  Estate  v.  Ingram  ...  30 

Goodson's  Estate  v.   Lucke   ...  412 

Goodyear  v.   Newton  736 

Goosen    v.    Gyselaar    609 

Gordon,    Mitchell    and    Oo.    v. 

Segal 174 

Gotze  v.  Bergl  419 

Goudini    School,    directors    of, 

ex  parte 39 

Gourlay   v.    Baumgarten     and 

Another  ...  737,  869,  932,  1009 

Gourlay  and  Co.  v.  Vassey  ...  174 

Gous   and    Another   v.    Ritter  131 

Goussard's    Estate     v.     Bester  929 

Govey  v.  dark  and  Oo.      ...  1005 


Govey     and  Co.    v.    Levenaon 

Govey   and  Co.   v.    Warner   ... 

Grow    V.    Dilizane    and   Others 

Gow  V.  Stewards  of  A.M.E. 
Church 

Gowan,    ex  parte   

Graaf  v.   Broomberg  \   ... 

Graaf   v.    Gow   and   Others  ... 

Graaf  v.  Kalwerisky  and 
>^xner8       ...    .••    ...    ...   u«7| 

Graaf  v.  Roll  nick  and  Anot- 
her   

Graaf    v.    Scholtz's    Estate    ... 

Graaff-Reinet  Board  of  Execu- 
tors,   ex  parte       

Graaff-Reinet  Board  of  Execu- 
tors V.    Mentjes   

Gramaphone  Oo.    v.    Anderson 

Grand  Junction  Railways, 
ex  parte      150,   417, 

Grand  Junction  Railways, 
In   re    

Grand     Junction   Railways  v. 

Walker  and  Others 398, 

Gfand  Junction  Railways,  re- 
ceivers  of,    ex  part^ 

373,   379,  399, 

Grand  Junction  Railways,  re- 
ceivers of,  V.  Walker  and 
Others     213, 

Grassick  v.  B.S.A.  Asphalt 
Co 322,  390,  575, 

Graupner  v.    Martin   

Gray  and  -Son   v.    Den   Dauw 

Greathead   v.    Fredriks    

Greef,    ex  parte      

Greef  v.  Colonial  Govern- 
ment     • 

Greef  v.  Delmore  ...   ..* 

Greef  v.  Le  Roux  and  Others 

Greef   and    Another,      ex  parte 

Greef     and     Another     v.     Du 

X^  It^solo       «•>       •••       »>> 

Green,   ex  parte      

Greenberg   v.    Millin    .. 
Greenberg   and    Co.    v.    Abdol 

and   Another   

Greenberg  and   Co.   v.   Joseph 
Greening,  ex  parte 

252,   287,   352, 

Gresley,   ex  \tarte   

Grcyling,    ex  parte   652, 

Greyling  v.  Greyling  

Griffiths   V.    Court      

Grimmer,    ex  jmrte      

Gripper  and  Another,  ex  parte 
Griqualand  West  Loan  Co.   v. 

Forsyth 


153, 

>  •       •  ■  « 

476, 


153 

771 

1019 

977 

826 

284 

29 

413 

802 
1000 

579 

802 
291 

709 

171 

599 

1006 

994 

588 
16 

610 
14 

377 

20 
699 
958 
736 

496 

33 

512 

174 
233 

451 
301 
789 
806 

14 
321 

84 

733 


INDEX. 


IX 


FAOS 

Grobbelaar  v.    Colonial      Qov- 

ernment 591 

Greene wald,  ex  parte  418 

Groenewald  v.    Botha's  Estate  478 

Groenewald   v.  Deydier    850 

Groenewald     and     Wife,     ex- 

parte     326 

Groman       and      Another      v. 

Dakers 1001 

Gromer,   ex  parte      772,  786 

Gross  V.  Dunn 233 

Grnndling's       Executors,       ex 

paHe   1010 

Guthrie       and       Another     v. 

Visagie  924 


•  •      •  •  I 


Haakensen  v.   Haakensen 

Hadlej  v.  Scott     

Haes     and     Co.    v.    Mcintosh 

and  Another   

Hall  V.   Karoo  Boring  Oo.   ... 
Kalvorsen  v.   Anderson 

476,   750, 

Hamilton  v.    Albert   

Hamilton  v.   Mathie   

Hammerschlag  v.    Esterhuizen 

734, 
Hammond  v.   De  Afrikaansche 

Bijtungf  etc 

Hands  v.  Shapiro 

Hannay,   ex  [mrie 

Hardie  v.  Barnard 

Harding  v.   Howard   

Hare  v.   Hartung 

Harper  and  Another  v.  Worth 

Harris  v.    Doyle   

Harris  v.   Executors  of  Estate 

Harris   

Harris  v.  Lentin 

Harris  and  Co.  v.  Martin 

Harris  and  Co.   v.   Torque  Co. 
Harris   Bros.    v.    Frankel 
Harrison's  Estate,  receivers  of, 

V.  Di  Biassio 

Hart  V.  Forman 

HarteFs  Estate,  ex  [Hirte 

Hartrodt  v.  Hermann 

Hartrodt    v.    McKay    and    Co. 

Haworth  v.  Soule  

Haybittel   v.    Van     der  West- 

huizen   

Hayes  v.  Rhoodie  

Hay  ward    v.    Browne       ...    16, 
Hay  ward   and   Co.    v.   Tiu.stccs 

of'A.M.E,    Church      

Hazell,  ex  parte,   737, 

Heatlie,  tx  parte   


287 
212 

1021 
372 

790 

15 

234 

772 

823 
103 
535 
307 
772 
847 
673 
802 

534 

416 

13 

36 

309 

450 
406 
178 

15 
306 

15 

411 
841 
153 

83 
787 
267 


PAOS 

803 


•••       •••     ••• 


339 

410 

40 

240 


772 
376 
159 


Heide  v.   Daniels  . 
Heidelberg  D.R.     Church,     ex 

parte  698,     822 

Heidock  v.   Heidock   ... 
Heinaman  v.  Heinaman 
Hellawell,   ex  parte 
Hempen,  ex  parte  . 

Henderson,  ex  parte 476,     733 

Hendricks      v.      Cape      Town 

Tramways  and  Another 

702, 
Hennessy  v.  De  Marillac  ... 
Hepworth  and  Co.,  ex  parte... 
Hepworth's,  Ltd.,  v.  Holliday  1001 

Heradien,  ex  parte 113 

Herbert  v.    Herbert    821 

Herman,  ex  parte  700 

Herman   v.    Tyfield    974 

Hermann     and  Canard  v.  Da 

Silva  and  Another    

Hermann  and  Canard  v.  Poli- 

cansky  Bros 

Herold  and  Co.  v.  Lansdowne 

House  Estate  Co 

Herron    v.    Torque      Co. 

ViZLSXCXo  ■••       ■••       •••       ■ 

Hertzog's  Estate  v.  Pitt 

Heydenrych,    ex  parte       

Heydenrych   v.    Abdurham    ... 

Heydenrych    v.    Amyot    

Heydenrych  v.   Bennett   

Heydenrych  v.  Estate  Mackie, 

Young  and  Co 85, 

Heydenrych  v.   Fitzgerald 
Heydenrych  v.  Frame 

99,    178,    597, 

Heydenrych  v.   Steer  

Heydenrych  v.  Weakley  

Heydenrych    and     Another    v. 

Nowrosjee       

Heyne  v.  Armstrong 

Heynes,     Matthew     and     Co., 

Heynes     Matthew   and   Co.   v. 

Chetty  449 

Heynes,    Matthew   and  Co.    v. 

Cooper  324 

Hewitt  V.  Viljoen  286 

Hex    River     School,      ex  parte  644 

Hidding   v.    Stevenson      505 

Bidding's    Estate    v.    Ferreira 

and  Others 801 

Hidding's     Estate   v.    Hoflfman  307 

Higgs  V.   Krouse   594 

Higson   V.    Higson    432,  807 

Hill  and  Co.   v.  Saacks   233 

Hill    and   Co.    v.    Schapera    ...  805 

Hillier  v.  Hillier 113 


429 
245 


.  ...  112 

and 

502,  527 

.   ...  14 

.    ...  733 

..  575 

..  811 

..  726 


387 
700 

672 
652 
786 

1000 
286 

513 


INDEX 


PAOB 

Hitge's    £6t«te  v.   Botha  and 

Others 33 

Hlilihla,  ex  jmrte  701 

Hoare  and  Co.  v.  Oanoll  560,  799 

Hodge,    ex  parte    980 

Hodges     and    Co.    v.    Lingum  232 

Hodges  and  Co.  v.   Mundrick  427 
Hodges  and  Oo.   v.   Puttergill 

and  Another   642 

Hodgson    V.     Van    Schalkwyk  759 

Hoffman  v.    Nichols   770 

Hoffman's  Estate,  In  re  56 

Hoffman's    EsUte    v.    Gottlieb  609 

Hoffman  and  Oo.   v.  Martin...  14 

Hollander  v.   Sniidt 236 

Holliday    v.    Christensen       ...  16 

Holmes,    ex  parte    737,  811 

Holmes   and  Co.    v.    Fryer  ...  923 

Holroyd  v.   McBride   801 

Hoist  V.   Schmidt  805 

Hopkins   and   Co.   v.    Colonial 

Government    647 

Horn   V.  Boulton   32 

Horn's  Estate,   ex  parte  451 

Hougaard's  Estate,    ex  part*'...  159 
Houlder     Bros.      v.      Colonial 

Government 

41,  319,  589,  789,  866 

Howard  v.   Howard   1010 

Howse,   Reynolds    and    Oo.    v. 

Davie   804 

Hubbersley      and      Wife,      ex 

[mrfe    195 

Hudson's    Estate  v.    Saltzman  .    32 

Hul ley's   Estate,   ex  parte      ...  688 

Hulton   V.    Robertson      414 

Human  v.    Roux   413 

Humansdorp  Divisional  Ooun- 

cil,    ex  parte    188 

Hunter  v.   Heenen   372,  378 

Hussey,    ex  parte   671 

Hutchings,    ex  parte   807 

Hutchinson,    ex  parte 559 

Hutt  V.  Brenning 412 

Hutt     and     Another     v.      Le 

Grange  350 

Hutt's  Estate  v.  Payne   733 

Hutton  V.  Spence  1001 

Imgadi  v.  Temba 821 

Immelman  and  Another  v.  Du 

Plessis  754 

Imperial    Cold   Storage   Co.    v. 

Bar  tie  and  Another  243 

Imperial   Cold    Storage   Co.    v. 

Broide   174 

Imperial    Cold    Storage   Oo.    v. 

Eaton   598 


Imperial  Gold  Storage  Oo.    v. 

Klaas   561 

Imperial    Tool    Co.    v.     Greef 

and  Another 377,  535 

Impey  and  Another,   ex  parte  27 

Inglesby  v.  Jackman 734 

Ingram,  ex  parte 231 

Ingram  v.  Ingram  43 

Inhambane  Oil   Oo.    v.   Mears 

and  Another  113 

Irek  v.  Ohriedon  411 

Israelson  Bros.   v.    Meyer  and 

Another 505 

Isaacs,  ex  parte 561 

Isaacs  V.  Arend 16 

Israelson's  Trustee,  ex  parte  162 
Israelson's    Trustee   v.    Harris 

and  Another   196 

Jackman  v.  Laite  930 

Jacobs,  ex  jxirte 35,  150 

Jacobs  V.  Miller  and  Another 

112,  297,  398 

Jacobs  V.  Shaw 697 

Jacobsohn   v.   Botha  37 

Jacobsohn  v.   Gresse  302 

Jacobsohn      v.       Porter      and 

Another 16 

Jacobsohn  v.  8chultz 441 

Jagger  and  Co.  v.  Droomer  ...  801 
Jamestown    D.R.    Church,    ex 

parte 301 

Januska  v.   O'Brien   308 

Jeanneret  v.  Estate  Sharpe  ...  85 

Jeffery,   ex  parte   566 

Jenner  v.  Soott 37 

Johnson  v.  Ohiappini 373 

Johnson    and    Oo.    v.    Burrell 

414,  607 
Johnson    and     Oo.     v.     Royal 

Hotel  Co 460,  472 

Jones,  ex  itarte 12 

Jones  V.  Gash  291 

Jones  V.   Mitchell  642 

Jones  V.  Udwin  534 

Jooste,   ex  parte   733 

Jordaan,  ex  jtarte 513,  808 

Joseph,   ex  parte   300 

Joseph  V.   Fisher  307 

Joseph       V.       Hoffman       and 

Another 368 

Joubert,  ex  parte 513,  671 

Joubert's  Estate  v.  Davison  . . .  929 
Julian,      Stephens,     Ltd.,      v. 

Riley 804 

Junker  v.  Jones 28 

Junker  v.  Karroo  672 

Juta  and  Go.  v.  Dmmmoad...  887 


INDEX. 


PAOB 

Kaal  V.   Fortuin  285 

Kadir  v.  Abass 81 

Kafir     War    Sufferers'     Fund, 

Trustees  of,  ex  parte 536 

Kahn  and  Another  v.  Smuts  471 
Kalk     Bay     Municipality     v. 

Behr's  Executors 112 

Kalk     Bay     Municipality     v. 

Bruyns  1001 

Kalk     Bay     Municipality     v. 

Prideaux   307 

Kannemeyer  v.  Shaw   642 

Kansley  v.  Saber  595 

Kaplan  v.  Smit 322 

Kaplan  and   Others  v.    Porter  308 

Karoo  Boring  Co.   v.   Hall   ...  428 

Karr's  Estate  v.  Oolombrick...  812 

Keating,  ex  parte 125,  059 

Keating  v.  Nannucci  652 

Keating    v.     Nazareth     House 

and  Others 246 

Keating  and  Oo.  v.  Fillis 35 

Keet,  ex  parte 277 

Kelly,  ex  parte   239,  297 

Kelly  and  Co.    v.   Herman   ...  337 

Kemlo  V.  Kemlo  812 

Kemm,  ex  parte 645 

Kemp,  ex  parte.. ^ 571 

Kemp  Bros.  v.  Scotland  866 

Kempen's  Estate,  In  re  118 

Kenner  and  Oo.  v.  Goldberg...  175 

Kerdel's  Estate,  ex  parte 309 

Kerr  v.  Kaiser 32 

Kerr's  Estate  v.  Golombrick...  929 

Kerwe  v.   Woodman    930 

Key,  €x  parte  863 

Kilili,  ex  parte 736 

Killingsworth,  ex  parte  ...  811,  864 

King  V.  Jooste 150 

King  Bros.,  ex  parte  152 

King  Bros.   v.  Estate  Wasser- 

fall 356,  936 

Kirschoff,  ex  parte 379 

Klein  v.  Steyn 701,  734 

Kleyn,  ex  parte 1009 

Knoesen,  ex  parte  1008 

Knoesen's  Estate,   ex  parte   ...  535 

Koch  V.   Koch 809 

Koch  V.  Morris  307 

Kock,  ex  parte 512 

Koekemoer,  ex  parte  736 

Kolbe  V.  Kolbe 414 

Kotz6,  ex  parte 259,  471 

Kotz6  V.  Bruins 236 

Komolum   v.    Highman    559 

Kraaifontein     Hotel     Co.,     ex 

paHe 786 

Slrachmel,   ex  parte  83 


PAOB 

Kreffer  v.  Salkinder  863 

Krige,  ex  parte 738 

Krige  v.  Greef  , 309 

Krige  v.  Malherb  308 

Krohn  v.  Krohn  102,  176 

Kruger,   ex  parte  212 

Kruger  v.  Du  Pisani 574 

Kruger  v.  Eraser  231 

Kruger  v.  Kruger 316 

Kruger  v.  Venter  and  Another  201 

Kruger  Bros.  v.  Ferreira 231 

Krumm  v.  Brown  291 

Kuil's    River    Public    School, 

ex  parte 352 

Kuit  V.  Union-Castle  Co 69 

Kuyper  and  Another  v.   Bau- 

benheimer 412 


Ladam,  ex  parte 563,  736 

Lafeyette      v.       Barnes      and. 

Others  127 

Laite  v.  Scarles 800 

I/aloo,  ex  parte 992 

Laney  and  Another  v.  Roux...  801 
Lansdowne  House  Estate  Co., 

In  re  474,  597 

Larmer  v.   Perelman 606 

Laurence  v.    Sargent  and  Co.  820 

Laurie,  ex  parte 276 

Law  Society  v.  Biepraem 188 

Law    Society    v.    Bonner    and 

Oo 213 

Law  Society  v.  O'Brien...  610,  736 
Lawley  v.  S.A.  Pioneer  Syn- 
dicate     770 

Lawman  v.  Allnut 742 

Lawrence  v.  Bernstein 284 

Lawrence  v.  Melekow 595 

Lawrence  and   Co.,   ex  parte...  247 

Lawrence  and  Co.  v.  Gibson...  153 
Lawrence  and  Co.  and  Another 

V.  Levensohn  566 

Lawrence   and   Wife,   ex  parte  535 

Lawson  v.  R.  M.  Cape 372 

Layton,  ex  parte  13 

Lazarus  v.   Dumbella 278 

Lazarus  and  Others,  ex  parte  254 
Lazarus  and  Others  v.   Estate 

Lazarus  and  Others  936 

Leeb  v.  Van  Heerden 413 

Leeuw,  ex  parte 508 

Lehman  V.  Lehman 419 

Leibrandt,  ex  parte 326 

Leibrandt's  Estate,  ex  parte...  564 

lyeng  V.  Heyer 15 

Lennon     and     Co;,     Ltd.     v. 

Schapero 673 


xii 


INDEX 


PAOE 

Lepersen  v.  Brunt 701 

Le  Eoux,  ex  parte 21,  84,  427 

Le  Roux  V.  De  Villiers  375 

Le  Roux  V.  MaraiB  and  Others  312 

Lester,  e*  [jarle 587 

Lester  v.  Lester 790 

Letterstedt  v.   Wentzel   ...  607,  771 

Levy  V.   Wyness  240,  939 

Lewin  and  Another  v.  Esther- 

huyse  845 

Lewin   and   Others   v.    Coetzee  30 

Lewis,  ex  f>arfe 772 

Lewis  V.  Repstone  and  Others 

350,  643 

Lewis  V.  Robinson  and  Co.   ...  596 
Lewis'     Estate     v.     Jackson's 

Estate  180 

Ley  V.  Johnson 507 

Liberman      and      Buirski      v. 

Endin   291 

Liebenberg,  ex  parte  374 

Liepschitz  v.   Noemds 376 

Liepschitz    and     Another,     ex 

parte 507 

Lightfoot,  ex  parte 38 

Light  foot  V.  Lightfoot 84 

Lind  V.  Geswint 803 

Lindsay  v.   Ford  and  Another  350 

Linley  v.   Linley  564 

Linscott  V.   Linscott 308 

Linton  v.  Liebenberg 700 

Lipschitz  and  Others  v.  Nel...  231 
Lis    V.     Colonial    Government 

932,  1011 

Lissack  and  Co.  v.  Oartwright  14 

Lithman  v.   Hatches-  376 

Litkie  v.    Christian!   233 

Lloyd,  ex  parte 189 

Lloyd  V.  Lloyd  34 

Lorkwood  v.    Herald  Bros.    ...  32 

Logan  V.    Abrahamson    ...   239,  375 

Lombard,  ex  parte 653 

Lombard  v.  Myburgh 449,  699 

Lombard,  Van  Aardt  and  Co. 

V.   Loubscher  83 

Lomnitz  v.  O'Driscoll 322 

London    and    Lancashire    Fire 

Assurance  Co.  v.  Imperial 

Cold  Storage  Co 673 

London   and    Lancashire    Fire 

Assurance     Co.      v.      Mc- 

Naughton   410 

Loots,  ex  parte 1010 

Long,  ex  parte  231 

Lotriet  v.   Boonzaier   803 

Lotter  and   Another  v.    Cloete  1000 

I^tz  v.   Boulton   13 

Lotz  v.  Braf 770 


PAOB 

Loubser,  ex  parte 631 

Louw,  ex  parte 374 

Louw  v.  Louw 867 

Louw  and  Others,  ex  parte,  571,  703 

Lovell,  ex  parte 812 

Loxton  V.   Le  Haine  832 

Loxton's    Estate,    ex   parte    ...  703 
Loyal  Oak  Lodge,  ex  parte   ...  374 
Lubbe     V.     Colonial     Govern- 
ment    521 

Luck,  ex.  parte  822 

Luke's  Estate,   ex  parte  417 

Lupton  V.   Edelstein  791 

Luyt  V.  Smith 803 

Lynn  and  Another,  ex  parte..,  868 

Lyons,  ex  jxirte 926 

Lyons  v.   Eidelburgh  31 

Lyons  v.  Lyons 1007 

Maasdorp,  ex  parte 28 

Maberley  v.  Woodstock  Muni- 
cipality    309 

Mabery,  ex  parte  301 

Mabuya,  ex  parte  561 

MacBirkentyre  v.    Walsh 1001 

McCabe's  Estate,  ex  parte,  151,  297 

McCallum,  ex  parte  151,  242 

McCarthy  v.   Visser   72 

McCreadie  v.   Gowie  174 

MoGrath's  Estate,   ex  parte, 

702,  IQOQ 

McGregor  v.  McGregor  ...  114,  690 
McGregor     v.      Hoffman     and 

Another 231 

Mclnnes,  ex  parte  374 

Mrlntyre  v.    Martin   13 

Mclvor  V.  De  Bruyns 566 

Mclvor  V.   Reynolds   117 

McKav    and    Co.    v.    Hodgson 

965.  969 

McKenzie,    ex   parte    652 

McKillop,  ex  jmrte 738 

McKillop     v.     McKillop     and 

Another 195,  926 

McKillop  V.  Zuckerman  655 

McKinnon,   ex  parte   38,  941 

McLeod,  ex  parte   21,  533 

, ,         V.  Egbert 606 

,,         V.  Jacobs 851 

,,        V.  Joubert  295,  314 

V.  Muller ...  175,  244,  673 

V.  Van  Niekerk 672 

,,        V.  Van  Rensburg   ...  698 

V.  Werth   ...  32,   153,  700 
McLeod's      Insolvent     Estate, 

In  re   572 

McMullen  v.   Truter  ?68 


INDEX. 


zili 


PAOB 

McMullen's  v.  Trustees  of  S.A. 

Hebrew  Benefit  Society  ...    567 

McN*lly  V.  Estate  Wiggett  ...  1020 

McNaughton,  ex  parte 417 

McNaughton     v.     Rowe     and 

Another 277,  472 

McNaughton    v.    Smellerkamp  13 
McNaughton's  Estate,  ex  parte  535 
McNeilage  v.  London  and  Lan- 
cashire Fire  Assurance  Co.  297 

Macowan^.ej;  parte 599 

Macowan  v.  Herrer 801 

McPherson*s  Estate,   In  re   ...     825 

Madolo  V.  Mlijimi 129 

Mafeke  v.  Mpambane 95 

Mahomed  v.  •Schmidt 851 

Maidment  v.  Kendrick     414 

Mair  v.  Mair 596 

Makabuwa,  ex  parte  240 

Makgosoa  v.  Flag  Mini  ...  316,  418 

Malan,  ex  parte 929 

Malan  v.  Carlson  700 

Malay  Mosque,  In  re 472 

Malcomess '  and    Co.    v.    Cary 

318,  465,  477,  646 
Malcomess   and  Co.  v.    Frank    469 

Malherbe,  ex  parte  923,  1006 

Malmesbury    Board   of   Execu- 
tors V.  Laubscher 322,  350 

Malmesbury   Board   of  Execu- 
tors V.  Smuts 595 

Malmesbury    Board    of  Execu- 
tors V.  Van  Niekerk  412 

Malmesbury   Board   of  Execu- 
tors V.  Van  Schalkwyk  ...     412 
Malmesbury  Board   of   Execu- 
tors v.^Wittle  322 

Malyon  v.  Golding 771 

Malyon  v.  Mazzin 867 

Malzon  and  Co.  v.  Burfoot  ...      33 
Manchester    Assurance    Co.    v. 

Robertson   16 

Mangold       v.        Keun       and 

Another 410 

Marais,  ex  parte   ...   240,  326, 

330,  571,  673,  869 

V.  Barnard  560 

29 

17 

999 

411 


ft 


9f 


if 


»» 


■  •  a     •  • 


ff 


>» 


V.  Geldenhuys 

V.    Swart   

V.  Van  der  Merwe 

V.     Y  1116u    ...     ...     ... 

and  Another,  ex  parte    927 
and  Wife,  ex  parte,  241,  302 

Marklew  v.  Abrahams 800 

Marquard  and  Co.  v.  Gibson...  32 

Marquard  and  Co.  v.  Jacobs...  323 

Marsh  v.  Fick 595 


FAOa 

Marsh,    Sons    and    Others   v. 

Edelstein 110 

Marshall  and  Others  v.  Ward 

«nd  Co.  ..    212 

Martin,  ex  parte 189 

Martin  v.  Martin 17ff 

Martin       v.       Melkeni       and 

Another 771 

Martin  v.  Van  Rensburgh,  673,  860 
Martienssen's  Estate  v.  Whit- 
more 54 

Martin  Bros.   v.  Norton  285 

M askew  v.  Estate  Maskew   ...  255 

Maskew's  Estate  v.  Morgan  ...  413 
Maskew's  Estate  v.  Van  Heer- 

den  and  Another 285 

"Master"  v.  Buyskes 735 

"Master"  v.  Durant's  Trustee  1009 

"Master"  v.  Palmer  39 

"Master"  v.  Walter  562 

Masterton  v.  Obree 812 

Matake  v.  Mpambane 17 

Matthews  v.  Oosthuizen  46 

Maxwell  and   Earp   v.    Dreyer  800 

Maxwell   and  Earp  v.    Nel    ...  292 

Mellish  V.  Lategan 15 

Mendelssohn  v.  Lavigne 102 

Mendelssohn  v.  Lewin 109 

Menne  v.  Van  der  Linde  29 

Merrington,  ex  parte  252 

Merrington    v.    Davidson    and 

Others  242 

Metcalf,  ex  parte  237 

Metlerkamp's    Estate   v.    Van 

der  Walt 233 

Meyer,  ex  parte  245,  276,  396 

Meyer  V.  Botha 595 

Meyer  v.  Meyer  446,  607 

Michau    and    De    Villiers    v. 

Van  Reenen 13 

Michels,  ex  jmrte  84,  417 

Middleton   v     Waterchute   Co.  250 

Middleton's  Estate,  ex  parte...  700 

Miller,  ex  parte 166 

Mills,  ex  part4' 379,  1007,  1008 

Mills  V.   Bidli  742 

Mills  V.  Young 286 

Mills  and  Sons  v.  Black 472 

Milne,  ex  parte 998 

Mitchell  V.  Johnson   30 

Mitchell   V.    Sam  Weil  Syndi- 
cate    217 

Mocke,  e*  jxirte 931 

Mohatla  v.  Matla  869 

Mohlan    and    Another   v.   Ste- 
vens    735 

Mohr  and  Another  v.  Bernard  1000 

Mcir  V.  Moir 323 


xiv 


INDEX. 


PAGE 

Mokadom  y.   Hassan   252 

Molemohi  y.  Temple 971 

Moller  V.   Truter   234 

M oiler  V.  Watermeyer 430 

Montagu  D.B.  Church,  ex  yarie  942 

Moorrees  v.  Hoffman 28 

Moorrees  v.  Hosiassohn  285 

Moos,  ex  parte 150,  240 

Moran's  Insolvent  Estate,  In  re  563 
Morgan  v.  King  Electric  Light 

Co 741 

Morkel  v.  Deydier 820 

Morrison  v.  Bates IQOl 

Morrison  v.  Munnick 738 

Morton  v.  Richards 699 

Morum   Bros.,   ex  parte   429 

Moses  V.  Brown 233 

Mossop  V.  De  Klerck 1000 

Mossop  and  Another,  ex  parte  39 

Mostert  and  Others,   ex  parte  927 
Mostert  Estate,  ex  parte,  151, 

297,  609,  703,  773 
Mouillot      and      Another      v. 

Koenig  847 

Mout  V.  Everaert 232 

Mowbray  Municipality  v.  Hog- 

gard  805 

Muirhead,  ex  parte 267 

Muller  V.  Allder ...  1001 

Munnick  v.  Pieters 112 

Murison  v.  Kelly 929 

Murray,  ex  parte  593 

Murray  and  Others  v.   Porter  428 

Murray   and  Co.  v.    Nieburgh  32 
Murraysburg    Municipality    v. 

Hollander  335 

Mussett  V.  Napper 286 

Myburgh  v.  Decker 960 

Myburgh  v.  Porter 33 

Myburgh  and  Others  v.  Herold  234 
Myers    and     Another     v.     De 

Villiers 360 

Myers   Bros.    v.     Morgan    and 

Another   702,  805 

Mzubelo  and  Others  v.  Ndaba 

and  Another  796 

Nannucci,  Ltd.  v.Gaaoli  305 

Kannucci,  Ltd.  v.  Keating 

283,  974 

Nash  and  Others,  ex  parte  ...  778 
National  Bank  v.   Abrahams 

672,  803 

National  Bank  v.  Harris 594 

National    Bank   v.    Cape   Can- 
ning Co 805 

National   Drill    Co.     v.    Brad- 
bury    736 


National     Mutual     v.     Estate 

Tilney 607 

Naude  v.  Noorden 427 

Ndanganda  v.    Noti   741 

Needham  v.  Needham     27 

Nefdt,  ex  parte 26 

Neiman  v.  Neiman 594 

Nel,  ex  parte  19,  26 

Nel   v.Kleinhaus   120 

Nel  V.  Molefe 672 

Neser,    ex   parte   ^.    ...  302 

Netherlands    Bank    v.     False 

Bay  Quarry   851 

Netherlands    Bank   v.    Morris  110 

Nettleship  v.  Chirton 866 

New     Cape     Collieries,     Ltd., 

ex  parte 653 

New  Export  Co.  v.  Haupt  14,  109 

Newark,  ex  parte  750 

Newdigate,  ex  parte  418 

Newark  v.   Hurwitz   13 

Ngambula,  ex  parte  35 

Nichola  v.    False    Bay    Quar- 
ries    291 

Nichall  y.  Hendricks  and  Co.  735 
Nicholas    and    Co.    v.    White, 

Ryan   and  Co 726 

Nigrini   v.    Van    Rooyen    and 

Another  234,  278 

Nilsen  v.  Nilsen  919 

Nilson's   Estate,  In  re    564 

Nochamson   v.    Nel    593 

Nohlaji,  ex  parte  571 

Noonan  v.  Meyer 281 

Norden  v.  Kets  84,  247 

Northern    Assurance     Co.     v. 

Barend  and  Others 803 

Norton,  ex  jxirte  277 

Norton  v.  Victoria  E.  Licens- 
ing Court 59 

Nerval    and    Others,    ex   parte  807 

Ntikinca  v.    Ngcani   270 

Nurick  v.    Levenson    174 

Nuttall     and     Co.      v.     Cape 

Town  Gas  Co 432 


0*Bree   v.    Masterton    ...    241, 

OConnell  v.   OOonnell   

OFarrell,    ex   parte    

OGrady's  Estate,  ex  parte  ... 

Ohlsson   V.    Harris    

Ohlsson's  Breweries         v. 

Bradshaw  ...  372,  374, 
Ohlsson's  Breweries  v.  Elaston 
Ohlsson's  Breweries  v.  Emdin 

and  Co 

Ohlson's  Breweries  v.  Halror- 

sen 801, 


351 
787 
929 
512 
15 

411 
595 

175 
867 


INDEX. 


FAOB 

Ohlssoii's  Breweries  v.   Kraai- 

fontein  Hotel  Co 234 

Ohlsson's    Breweries   v.    West- 
wood  460 

Oliver,  ex  parte  309,  927 

Oliver      v.      Schoombie      and 

Others  515 

Oliver  and  Wife,  ex  parte  ...  869 
Oosthui2sen,  ex  parte 

26,  563,  598,  923 
Oosthuizen  v.   Fotheringham 

231,  803 

Oosthuizen's   Estate,    ex   parte  932 
Orangezicht     Estate    v.    Town 

Council    869 

Orlandini    v.    Strydom    285 

Orsmond,    ex   parte   770 

Osier,    ex  parte    174 


Paarl    African    Trust   Co.    v. 

Basson  

Paarl    African    Trust    Co.    v. 

Du  Pre 

Paarl    Board  of   Executors   v. 

Myburgh   

Paarl    Board  of   Executors    v. 

v.   Silbert  

Painter  v.  Westwood  

Palmer,  ex  parte  

Palmer  v.    Cape  Cold   Storage 

vyO.        ^UUf    SJoj 

Palmer  v.  Tucker 

Pama  v.  Freemantle  

Papert,  ex  parte  

Parker  v.   Stevenson  

Parow  V.   Cochrane   

Parry  v.  Lang  and  Another  .. 

Pastini  v.   Casta  

Pate    V.    Blumbcrg    and    An- 
other       15, 

Paterson  v.  Heydenrych  

Paterson,    Boyes    and    Co.   v 

Hamilton  

Paul  V.  Baumgarten  

Paxton,  ex  parte  

Payne,   ex  parte  12 

Payne  v.   Norton  

Peacock  Bros.   v.    Cantor 
Peacock's  Estate,   ex  parte   .. 
Pearson     v.      Weinberg     and 

Another  292, 

Pearston      Municipality,       ex 

parte  

Pedersen  v.   Goldberg     

Pedlar  and  Another  v.   Lewis 

and  Another  

Fereira  v.  Victor  


770 
851 
820 


850 

560 

35 

503 
999 
249 
572 
450 
110 
302 
242 

174 
977 

16 
560 
380 
109 
16 
36 
189 

429 

296 
1006 

802 
33 


• 

Perl,  ex  parte 539 

Perl   and  Co.   y.   McKeadrick  566 

Perrolt  v.  Bruckmann     110 

Perseverance  Society  v.   Davis  31 

Petersen   v.   Van   den   Heever  801 

Phillips,  ex  parte  469 

Phillips   v.   Lea   1006 

Phillips  V.    Nroqoza 97 

Phillips   V.    Zieman   867 

Phillips  V.  Zuimmin  1000 

Phillips  Bros,    and   Others  v. 

Jarvis  p.  14 

Phil  pot   V.    Holzrichter   153 

Piccard       and      Another      v. 

Muller 37 

Pickard  v.  S.A.  Trade  Protec- 
tion  Society    155 

Pickord's,  Ltd.  v.  Hermann...  176 

Picton  v.   Perrins     418,  634 

Pienaar,  ex  parte  1006 

Pienaar    v.    Van    der    West- 

huysen    234 

Pienaar's   Estate,   ex  parte   ...  822 

Pillans   V.    Buckton    600 

Pinkus  V.  Fenster 123 

Pitt  man  v.  Hatcher 376 

Pittman  v.    Mutter    360 

Pitt's   Assignees,    ex   part^    ...  1006 
Plate  Wall   Syndicate  v.   The 

"Cape   Times"    475 

Plehn*s  Estate,  ex  parte  626 

Plehn's  Estate  v.   Braund    ...  668 

Plottel  V.   Berman  703,  807 

Plumer  v.  Plumer 536 

Pocock,   ex  parte  12 

Polden  V.  Polden 43 

Policansky    Bros.    v.    Herman 

and  Canard 383 

Poppe  and  Another  v.   Brown  376 
Potgieter,   ex  parte 

418,   567,  596,  789 

Poulton,  ex  parte  812 

Powrie,   ex  parte  429 

Pratt,  ex  parte 868 

Price  y.  Delbanco 231 

Price  V.  Dowell 164 

Price    V.    Farmers'    Co-opera- 
tive Co 164 

Price  V.  Fuller  and  Others  ...  36 

Priest  V.  Stegman  and  Others  407 

Prince   v.   Man   16 

Prince  v.  Webster 280 

Prince's  Estate,   ex  parte      ...  703 
Prince    Albert   D.R.    Church, 

ex   parte   506 

Pritchard's  Estate  v.  Blyth  ...  350 
Pritchard's  Kstate  ▼.    Fischer  1006 

Prize  V.  Ajrend ,  ..«  164 


xvi 


INDBX. 


PAOK 

Probart,  ex  parte  609 

Provident      Land      Trust      v. 

O'Connor   ' 460 

Purcell   V.    Lubbe   and  Others    850 
Purcell    V.    McKey    413 

V.  Adams  ...  .". 805,     999 

Purcell,    Yallop    and    Everett 

V.  Fortuin 596 

Purcell,    Yallop    and    Everett 

V.  Hotz 1000 

Purcell,    Yallop    and    Everett 

V.    MoNaughton  and  Sons 

307,     308 
Purcell,   Yallop    and    Everett 

V.  Meitze 234,     566 

Purcell,    Yallop    and    Everett 

V.   Preswich  805,     999 

Purcell,    Yallop    and    Everett 

V.   Visser   323 

Rademeyer  v.  Stone   415 

Bathfelder    v.    Otto    and    An- 
other    866 

Bamjuttum       Baboolace,       ex 

parte    558 

Randall  v.   Randall   771 

Raner  v.  Bradley  and  Another  653 
Ratner    and    Another    v.    Ri- 

cardo 352,  470 

Raubenheimer,    ex   parte       ...  807 
Raubenheimer       v.      Rauben- 
heimer     ...   98,   314,   451,  561 

Rawlins,  ex  parte 297 

Ray,  ex  parte  823 

Rayner,    Oawood    and    Co.   v. 

Norval  302 

Red    Trading    Stamp   Co.,    ex 

parte 597 

Reed  v.  Reed  312 

Reed  v.    Port  Elizabeth  Town 

Council    166 

Reich    V.    McNally    and    An- 
other     787 

Reid,  ex  parte  13,  593 

Reid    and   Co.    v.    Garvie    and 

Co 13 

Reid's  Estate  v.   Jones   413 

Reinecke     v.     Civil     Commis- 
sioner of  Ceres    934 

Reinecke    v.    Oosthuizen        ...  325 

Reineke  and  Another  v.   Lake  754 
Reineke    and    Others    v.    Van 

der  Vyer   473 

Reinhardt's    Estate,    ex    parte  85 

Ressay   v.   Holland    195 

Retief,   ex  parte   870 

Retief,    De   Ville    and   Co.    v. 

Cooke  82 


PAOI 

Retief,    De  Ville   and   Co.    v. 

Lategan 82 

Rex  V.   Adams  and  Others   ...  401 

Rex    V.    Ah    Foo   and    Others  520 

Rex   V.    Arens   and  Another...  740 

Rex   V.    Bavooka   and    Others  402 

Rex  v.    Berndt    547 

Rex  V.  Binderman 275 

Rex  V.   Bouwers  271 

Rex  V.   Boyd 733 

Rex   V.    Broodryk       807 

Rex   V.    Carn    and   Others    ...  720 

Rex   V.  Colliers    980 

Rex  V.  Cloete 492 

Rex  V.  Cohen  629 

Rex  V.  Crozier 274 

Rex    V.  Crystal    1001 

Rex  V.  Daly  and  Another   ...  57 

Rex   V.    De   Wet    and   Others  431 

Rex  V.   Dumbella  397 

Rex    V.    Ezdrowski    654 

Rex  V.  Findlay 630 

Rex  V.   Fletcher   547 

Rex  V.   GeaJl 969 

Rex  V.  Goldman     237 

Rex  V.  Gourlay  and  Cavanagh  747 

Rex   V.   Harn   and   Others    ...  988 

Rex    V.    Harris    582 

Rex  V.  Heynes,   Matthaw  and 

Rex  V.  Hoffman     58 

Rex  V.    Jaffe   403 

Rex  V.  Jansen  269 

Rex  V.   Jellimen  399 

Rex  V.  Joos 272 

Rex   V.    Josling    969 

Rex   V.    Juel    and   Another...  791 

Rex  V.  Kili .- 59 

Rex  V.   Kinsley     653 

Rex  V.    Kobose   and    Another  966 

Rex  V.  Le  Grange 273 

Rex  V.  Lloyd 548 

Rex  V.   Louw  334 

Rex    V.    Mabanti    and    Others  991 

Rex  V.   McComa  and  Another  571 

Rex  V.   McLaughlin   ...  276 

Rex   V.  Martin   and   Others...  717 

Rex   V.    Meizenheimer     619 

Rex  V.  Meyer  321 

Rex  V.   Nicholls 519 

Rex   V.    Pekaar    760 

Rex  V.   Penkeur 396 

Rex  V.  Radasi 397 

Rex  V.  Rossouw     279 

Rex  V.  Sammy  : 942 

Rex  V.    Searight  and  Co.    ...  669 

Rex  V.  Sijovu  967 

Rex  V.  Swarts 606 


II7DBX. 


zvii 


FAOB 

Rex  V.  Thomas 162 

Rex  V.  Tromp 1022 

Rex  V.  Tsotsobe     404 

Rex    V.    Van    der    Watt    and 

Others  832 

Rex  V.  Van  Niekerk    122 

Rex   V.    Verway 649 

Rex   V.    Walaza   and    Another  660 

Rex  V.   Weddell   398 

Rex  V.   Xelo 664 

Rex   V.    Yoyo   and   Another...  968 
Rex      V.       Zimmerman      and 

Others  671 

Rex   V.    Zucker   621 

Reynhoud    v.     Zwaigenhaft ...  110 

Reynolds  and   Co.    v.   Lnyt...  764 
Reynold's     Vehicle      Co,      v. 

Blake   31 

Rhenish     Mission    Society    v. 

Barron     and     Others      ...  943 
Rhodes    v.    Rhodes    and    An- 
other    60,  214 

Rhodesia  Cold  Storage  Co.   v. 

Beira    Cold     Storage     Co.  881 

Rice  V.   Mohr  999 

Richards    v.    Mills    447 

Richards       and      Others       v. 

Simons    and    Others       ...  473 
Richardson     v.      Trustees     of 

Malay  Mosque 31 

Rigg  V.   Gericke   680 

Rigg  V.   Wessels   460 

Riley   v.   Riley    610 

Ring  V.  Ring  363 

Ripley  v.   Duffus   736 

Ripley  v.   Gibbons   164,  234 

Ripley   v.    Lategan    322 

Ripley  v.  Myburgh     16 

Riversdale  Town     Council,   ex 

parte  ...  34,  351,  414,  428 
Rise  V.  Searle  and  Another  984 
Roberts  v.  Estate  Roberts  ...  373 
Robertson  v.  Holt  and  Holt  162 
Robertson  v.  Rees  and  Co.  607 
Robertson  v.  Swain  and  An- 
other     16 

Robertson    and     Another,     ex 

parte   27 

Robertson    and   Co.    v.    Coch- 
rane   and    Fitt    83 

Robertson        and        Oo.        v. 

Fletcher    175 

Robertson's  Estate,  ex  parte 

869,  926 

Robinson  v.  Boulton  15 

Rochester  Brick  Co.  v.   Hard- 
man  17 


PAGE 

Rochester     Building     Co.     v. 

Metze  606 

Rohland,    ex    jxirte    242 

Rohland  v.  Rohland's  Curator  474 

Ronaldson  and  Wife,  ex  parte  1007 
Rondebosch     High     School  v. 

Tait    361 

Rondt  V.    Botha  and  Others 

236,  278 

Roos,  ex  parte 20,  431 

Roos  V.    Smellerkamp      278 

Rose,  ex  parte  638 

Rose  v.    Shutte   and   Rose    ...  806 
Rosen  v.  Earls  and  Another 

389,  738 

Rosen   v.    Price    1000 

Rosenberg  v.   Cape  Town  He- 
brew   Congregation   342 

Ross,  ex  parte 669 

Ross  V.  Cochrane  and  Another  37 

Ross  and  Co.  v.   Smith  756 

Rossenstein,   ex   parte      414 

Rossey    v.    Hollander       241 

Rossouw,    ex    parte   241 

Rossouw  V.  Viktor 110 

Roux,    ex   parte    378 

Rovatti  V.  Rovatti     and     An- 
other     834 

Rowbotham  v.  Donovan  85 

Rowland     Hill     and    Co.      v. 

Louw   291 

Rowland     Hill     and    Co.     v. 

ocnapera    ... / of 

Royal  Hotel  Co.,  ex  parte  ...  786 
Royal   Hotel   Co.,    Liquidators 

of,    In   re    967,  1009 

Runciman   and   Co.    v.    Peiner  634 
Russel's  Estate  v.  Rondebosch 

Municipality   236 

Rutter  V.   Ashenden   368 

R.utter  V.  Martin   40 

Saachs,     Chiat    and     Another 

V.  Frankel  595 

Saayman,    ex    parte    693 

Sachs  V.    De   Jager   307 

Sacks  and    Another,    ex   parte  613 

Sadie,    ex   parte    927 

S.     Leger     and     Another    v. 

Boncker  804,  851 

Samson,  ex  parte 736 

Samson  v.   Camps     Bay     Es- 

^ares,    IjmI ...  oUij 

Sanders,  ex  parte  942 

Sanders  v.   Cape  Town  Tram 

way   Co 1010 

Sangerhaus,  ex  parte  176 

Sapiero  v.  Solomon  376,  411 


znii 


INDEX. 


PAOI 

Sassin    v.    Sohleohter       14 

Satiska)  ex  parte  308 

Saunders,  ex  parte 214 

Savage  and  Sons,  v.   Arter  ...  234 

Savage  and  Sons  v.   Kenn   ...  465 

Savage   and   Sons   v.    Tannock  322 
Savag«   and    Sons   v.   Ulyate's 

Estate  428 

Sawkins  v.   Heddon   868 

Scanlon  v.    Di   Biassio    802 

Soheepers  v.    Foster  708 

Scheltema,   ex  parte   701 

Schlemmer,  ex  parte  27^^ 

Schmidt  v.    Gray   and   Sons 

804,  998 

Schmidt  v.   Schmidt  240 

Schnetler,    ex  parte    599 

Schoerman,    ex    parte      296 

Schoerman   v.    Lategan   414 

Scholtz,  ex  parte  652 

Scholtz  V.  Venter 14,  153 

Scholtz's   Estate,    ex   parte    ...  565 
Scholtz's  Estate  v.   Radziwill 

791,  925 

Schoolman's    Estate,    ex   parte  430 

Schreiber  v.    Schreiber     296 

Schreifer  v.    Schreifer      301 

Schrienert    v.    Schrienert      ...  44 

Schultz,   ex  parte  12 

Schultz     V.     Ijegge     and     An- 
other     82 

Schultz  and   Co.    v.    Labahn 

82,  174 

Schulta   and   Co.    v.    Pfuhl    ...  412 

Schutte    v.    Turner    507 

Schwartz  v.  Louw  763 

8chweyes   v.   Friedgood   371 

Scott    v.    Wood    93 

Scott,  Ltd.   v.   Clain  561 

Scott,   Ltd.   V.    Kirby   ...   286,  375 

Scott,    Ltd.    V.    Kohne    174 

Scott,   Ltd.   V.    Kolonge   506 

Scott,  Ltd.  V.   Metje 534 

Scott,  Ltd.   V.  Scarerbane     ...  228 
Scott,  Ltd.   V.  Smith  and  An- 
other     414 

Scullard  v.    Price    405 

Seagull's  Estate,   ex   parte   ...  431 

Seale  ▼.  Doovey     ...  106,  238,  300 
Searight  and  Oo.  v.  Dibb  and 

Co 112 

Bearight  and  Co.      v.   Ruiters  109 

Searight   and  Co.   v.   8alie   ...  672 

Searle  and  Co.,  ex  parte 871 

Searle's  Estate  v.  Hoggord  ...  999 

Searle's    Estate   v.    Miller    ...  234 
Searle's     Estate  v.  Van     der 

"WestiiuyBen- 411 


Sedgwick   v.    Calitz   277 

Sedgwick    v.    Slabber      411 

Sedgwick     and     Co.,  ex  parte  309 

Sedgwick  and  Co.   v.  Davidoff  1006 
Sedgwick,    and  Liquidators    of 
Sedgwick  and  Oo.   v.  Nor- 

den 37 

Seeliger  v.    Hoffman  and   An- 
other         175 

Segal    V.    Estate      Finkektein 

Bros,    and  Another 177 

Seligman     and    Co.     v.     Van 

der  Berg   999 

Sellar    Bros,    and    Others    v. 

Clews   235 

Sellar    Bros,     and    Others    v. 

Sand   Bros 81 

Senior   v.    Attwood    371 

September     and     Another,  ex 

parte   868 

Serrurier  v.   Abrahams   19 

Service,  ex  part^  868 

Settery,  ex  parte      780,  808 

Seymour  v.    Tukisi  and      An- 
other    129 

Sharenowitz   v.    Basson    17 

Sharpe   v.    Sharpe   808,  852 

Shaw,    ex   parte  427 

Shaw   V.    Arend   and   Another  924 

Shaw  V.  O*  Sullivan  36 

Shear   and  Another  v.   Nortje  569 
Shearer    v.     Cohen    and    An- 
other     233 

Shepherd    v.    Van   Beenen    ...  1006 
Sheppard    v.    Mcintosh      and 

Another    559 

Shields  v.    Fletcher   735 

Shur     and     Another  t.   Scha- 

pera 450 

Shutte  v.  Turner 608 

Silberhauer,  Wahl  and  Fuller 

V.  Sullivan 412 

Simkins  and  Another  v.  Bar- 

nett   472 

Simmon,  ex  parte 40 

Simons,  ex  parte  403 

Sipell    and    Another   ▼.    Kot- 

zen 472 

Siqua  v.    Payne   286 

Skalabrino  v.    Scott   460 

Slabbert,  ex  parte  699 

Slade  v.   Jenkinson  850 

Slier's  Executrix,  ex  parte  ...  326 

Sluiter  v.  Van  Zyl  371 

Smart     Syndicate  v.   Phillips 

and  Others    80,  863 

Smellerkamp  ▼.    Bichter      ...  679 

8mit,    ex   parte   ,  998 

• 


INDEX. 


xix 


PA01 

Smit    and   Another   v.    Duck- 
worth  and    Another       ...  33 

Smith,  ex  parte     19,  177 

Smith   V.    Botha   412 

Smith      V.      De      Jager      and 

Others      766 

Smith    V.    Estate      Gross   and 

Another 610,  689 

Smith   V.   Jones    850 

Smith   r.    Kreyer       642 

Smith  V.    Levin 28,  411 

Smith    V.    Van   Straaten       ...  672 

Smith   V.    Watn«y      767 

Smith    and  Oo.    v.    Allie    and 

Another      14 

Smorenberg  v.    Smorenberg  ...  917 

Smuts,    ex   parte   931 

Smuts   V.   Ackerman   711 

Smuts  V.   Britton   300 

Smuts   V.    Louw   413 

Smuts  V.  Poole 405 

Smyth  and  Another  v.    Moor- 

rees    931 

Snodgrass,   ex  parte    166 

Snyman    v.    Estate    Esterhuy- 

9^*L    •••    •••    •••    •••    •••    ••■  ^^K^\^ 

Snyman  v.  Turner 770 

Snyman   and      Others    v.    Es- 
tate  Snyman       635 

Snyman's  Estate,    ex    parte 

85,  189 

Snyman's  Estate  v.   Beckett...  154 
Snyman's       Estate    v.    Estate 

Snyman    609 

Soeker  v.    Assiz    596 

Soeker  v.   Blake  and  Another  873 

Solomon,   ex  fjarte  321,  593 

Solomon      and      Another,      ex 

parte 811 

Sommervel      Bros.    v.    Beldon 

and  Atiotlrer  565 

Sondom  v.  Sondom       '26,  84,  114 

S.A.    Bible  Union  v.    Oosfty...  292 

S.A.    Breweries    v.    Fisher    ...  234 

S.A.       Breweries   v.    Schmolle  413 

S.A.      Breweries   v.    Stevenson  660 

S.A.    Brick  Co.,   ex  parte      ...  189 

S.A.    Milling       Co.,    ex    parte  806 

S.A.     Mutual    V.    Nortje        ...  371 
S.A.       Newspaper       Co.       v. 

Stevn   32,  234 

S.A.    Produce  Oo.   v.  Du   Toit  566 

S.A.   Produce  Co.   v.  Riley  ...  847 
Southern      Life    Assurance    v. 

Fryer   805 

Southey  v.  Southey 901 

Spiers    and   Co.    v.    Insolvent 

Estate  Hermann  536 


PAOB 

Spilhaus  V.  Gaffoor  1001 

Spilhaus  and  Oo.  v.  Harper  643 
Spilhaus    and    Oo.    v.    Samso- 

dien    308 

Sprigg  and  Go.  and  Others  v. 

Fraser  and  Sons  45 

Sprigg  and  Co.  and  Others  v. 

Pease   and    Co 81 

Stabelford  v.  Johns   259 

Stafford  and  Co.  v.  Davis  ...  153 
"Stagg    Line"    v.    Table    Bay 

Harbour   Board   980 

Standard  Bank  v.  Hotz  848 

Standard  Bank  v.  Parry  804 

Stander,  ex  parte  34 

Stanton,   ex  parte  34 

Stapelton,  ex  parte 28 

Stark    and    Another    v.    Black  154 

Stark  and  Co.  v.  Stevenson  ...  642 

Startup  V.  Bujeye 766 

Steensma's     Estate  v.   Steens- 

ma  760 

Steer  v.  Louw  236 

Steer  v.  Municipality  of  Kalk 

Bay 588 

Steer    v.    Trustees    of      Malay 

Mosque 307 

Steer   v.   Werner   33 

Steer's  Estate,  In  re 391 

Stent,   ex  parte   ...   231,  350 

Stern  and  Co.  v.  Harris  615 

Stephan's   Estate   and   Others, 

ex  parte 702 

Stephan's  Estate  v.  Partridge  1010 
Stephan      Bros.       v.       B.S.A. 

Asphalt  Co 774 

Stephens,  Ltd.,  v.  Riley  999 

•Stephen,      Fraser    and    Oo.    v. 

Immelman   802 

Sterley,    ex  parte   323 

Sterrenberg  v.  North  98 

Stevens  v.    Andrews   931 

Stevens  v.  Myers  1001 

Stevens  v.  Thomas 596 

Stevens   v.    Stevens    509 

Stevenson  v.  Cape  Town  Licen- 
sing Court 384 

Stevenson's   Insolvency,    In  re  795 

Stewart  and  Wife,  ex  parte  ...  327 
Stewart's      Estate      v.      "The 

Master"   310 

Stevn,  ex  parte 476 

Stevtler  v.  Isaacs  1000 

Stevtler  v.    Naude      14 

Steytler's  Estate  v.    Schneider  999 

Steytler  and   Co.    v.    Sand    ...  350 

Stigant  and  Co.   v.  Gaffoor  ...  671 

Stone   V.    McKenzie    637 


INDEX. 


PAOB 

Stone    and    Giddy    v.    Satisky  536 

Stonestreet,   ex  parte  822 

Stoolstainer  and  Co.   v.   Tuch- 

ten 372 

Stormont,    ex  parte     349 

Stradling,    ex  parte    1010 

Strang  v.   Van  Rooyen   1000 

Street   v.    Van   Beenen  924 

Strobel,   ex  parte      301,  377 

Strong,  Trowbridge  and  Co.  v. 

Forsythe    285 

Stroyan  v.  Botha 412 

Struwig,  ex  parte  927 

Strydom,    ex  parte  663,  870 

Strydom's   Estate,    ex  parte   ...  296 
Strusser      and    Co.    v.    Udwin 

Bros 504 

Stupart  V.  Cross   759 

Sturk    and    Co.    v.    Shur    and 

Another 771 

Stuttaford    and   Co.    v.    Moore  924 

Style  V.   Style   1007 

Sussman,  ex  parte  927 

Sutcliffe   V.    Hirchfield    ...    33,  412 

Sutherland    v.    Owbridge       ...  413 

Sutton,  ex  parte 40 

Swanepoel  v.  Heineman  285 

Swart  V.  Crous 800 

Swart  V.  Pieters 112 

Swart   and   Basson,    Estate   of 

V.    Qreef   and   Another    ...  131 

Sweeney  v.  Sweeney 701,  811 

Swift,  ex  parte 12 

Swift  V.  Cohen 561 

Syfret,  Godlonton  and  Low  v. 

Garvie 17 

Syskin,   ex  parte   506 


Table  Bay  Harbour  Board  v. 

"City    Line"    537,  704 

Table  Bay   Harbour  Board  v. 

Inkster  and  Another 237 

Table  Bay  Harbour  Board  v. 

Liquidators      of     Coleman 

and  Co 352 

Table  Bay  Harbour  Board  v. 

McKenzie   and   Co 34 

Taute,  ex  parte 917 

Taylor  v.  Groenewald  801 

Temlett*s  Executor,  ex  parte...  635 

Tennant  v.  Zieradzki  1006 

Terblanche,  ex  parte  378,  417,  931 

Templer,  ex  jtarte 109 

Teubes,    ex  jtarte    789 

Thatcher  v.   Vorster   930 

Theron's  Estate  v.   Theron   ...  673 

Thesen  and  Co.  v.  De  Villiers  17S 


PAOl 

Thesen  and  Co.  v.  Van  Schoor  83 

Theunissen's    Estate,    ex  parte  599 
Thien's     Estate   v.    Schneider 

and  Another   861 

Thompson  v.  Bezuidenhout  ...  699 

Thompson  v.  Hall 699 

Thome  v.   Bataillou   285 

Thome  and  Another  v.   Gelb 

560,  594 

Thwaits  v.  Hanekom  284 

Tidbury,  ex  parte 596 

"Tiles,  Ltd.,"  v.  Fisher 699 

Tonkington     v.     Humphreys 

672,  734 

Toort  V.  Daly  800 

Torque  Co.  v.  Herron 430 

Torr  V.   Ziehl   756 

Toucher  v.   Hoggard  801 

Trades,    Markets    and  Exhibi- 
tion    Co.    V.    Hildebrandt  82 
Tiedgold,  Mclntyre  and  Bisset 

V.  Conradie 800 

Tredgold,  Mclntyre  and  Bisset 

V.  Jeffreys 291 

Tredgold  and  Co.  v.  Van  Dyk  307 

Trediga  v.    Spengler   734 

Trediga  and   Mossop  v.   Good- 
son   595 

Triegardt,  ex  parte 189 

Trill  V.  Boyce 594 

Trill    and    Others     v.     Clare- 

mont    Municipality    177 

Trollip,  ej*  parte 177,  326 

Trollip  V.   Stevenson  469 

Trott  V.   Trott 115 

Turf  Hall  Estate  v.  Oakley...  450 

Turkington   v.    Humphreys    ...  427 

Turnbull  v.   Stewart     ...   277,  305 

Turnbull  v.  Turnbull  36,  447,  607 
Turnbull  and  Another  ▼.  Mul- 

ler 153 

Turner  v.  LleweUyn  and  Anot- 
her    246 

Tutt  V.  Tutt 602,  772 

Tweedie  Trading   Co.    v.    Gar- 
diner and  Easton 567 


ITl rate's  Estate  v.  Savage  and 

'  Sons 394 

Umhlebe  v.  Umhlebe 373 

"Unity  liodge,"  ex  parte 507 

Urmann  v.   Urmann   212 


Vacuum     Oil  Co.    v.    Croydon 

Brick  Co 83 

Vadasz  v.  Vadaaz 461 


iNDteX. 


Yalenski     and     Another      v. 

Lategan   and   Wife    87 

Valentine,   ex  parte    870 

Value  Supply  Co.  v.  Wilson 

32,     232 

Van  Aade  v.  Hind 475 

Van   Blreck   and  Crawford   v. 

Le  Eoux 806 

Van   Blerck   and  Crawford   v. 

Stableford   762 

Van  Breda's  Executors  v.   Ex- 
ecutors Van  Breda  551 

Van       der       Berg's       Estate, 

ex  parte 374 

Van  der  Byl  v.  Mahadien  ...  375 
Van     der  Byl  v.   Tahaar  and 

Others  285 

Van  der  Byl   and  Co.    v.    Ac- 

kerman 83 

Van  der  Byl   and   Co.    v.   Af- 
rica       380 

Van     der    Byl     and    Co.     v. 

Dawood 595 

Van     der    Byl    and     Co.     v. 

Moritz 472 

Van     der     Byl     and     Co.     v. 

Sacks  and  Another   427 

Van     der     Byl's     Estate      v. 

Bailie  and  Others     651 

Van  der  Heever  v.   Marais  ...       85 
Van  der  Hoff  and  Another  v. 
Bechuanaland  Estate  Syn- 
dicate    429,     715 

Van  der  Merwe,  ex  parte  ...  869 
Van  der  Merwe  v.  Bester  ...  376 
Van    der    Merwe    v.    Colonial 

Government    456 

Van  der  Merwe  v.  Goldberg  351 
Van  der  Merwe  v.  du  Plessis  924 
Van  der  Merwe's  estate,  In  re  563 
Van    der    Merwe's    estate    v. 

Heinemann  411 

Van  der  Biet  v.  Van  Zyl  ...  860 
Van  der  Spuy  v.  Kaiser...  13,  175 
Van   der   Spuy   v.    Le  Grange    306 

Van  der  Vyver  v.  Staal  1000 

Van  der  Vyver  v.     Van     der 

Vyver 1007 

Van  der    Walt    and    Another 

ex  parte 936 

Van    der    Walt's     estate,     ex 

parte      297,   565,   643 

Van  der  Westhuysen,  ex  parte  653 
Van     Driel     v.     Venter     and 

Another     152,  396 

Van  Dyk  v.  Kilfoil   673 

Van  Eck,   ex  parte     1008 

Van  Eeden  v.  Du  Plessis     ...    801 


PA01 

Van  Heerden,  ex  parte     296 

Van  Holdt  v.   Garton     867 

Van  Holdt  v.  Porter 372 

Van  Huysteen,  ex  parte  1009 

Van  Lill  v.  Holm     850,  924 

Van  Niekerk,  ex  parte  84,  645,  736 

Van  Niekerk  v.   Allee      350 

Van  Niekerk  v.  Faber     

248,  379,  566,  735 

Van  Niekerk  v.   Van  Niekerk  221 
Van     Niekerk     v.     Will     and 

Others  287,  361 

Van      Niekerk     v.      Wynberg 

Municipality   61 

Van      Niekerk's      Estate      v. 

Sandilands   378,  627 

Van  Oudtshoorn  v.   Lobo      ...  14 

Van  Reenen,  ex  parte     862 

Van  Reenen  v.   Estate     Vink  324 
Van  Reenen  and     Others     v. 

Attaway     81 

Van  Reenen's  estate,  ex  parte  928 

Van  Rensburg,  ex  parte  34,  221,  737 

Van    Rensburg   v.    Liebenberg  377 
Van     Rensburg's     estate,      ex 

parct     564 

Van  Riet,  ex  parte 870 

Van  Rooyan  v.  Fele  351 

Van  Ryn  Wine  and  Spirit  Co. 

V.   Clark     15 

Van  Ryn  Wine  and  Spirit  Co. 

V.  Elmdin  and  Co 285 

Van  Ryn  Wine  and  Spirtt  Co. 

V.   Lederman   429 

Van  Ryneveld  v.   Gous   350 

Van     Van     Schovr     v.      Van 

Reenen      971 


•  • «      •  • 


415 

35 

...    799 

...     737 

...      83 

642,  850 


27 


Van  Sittert,  ex  parte  .. 
Van  Straaten,  ex  parte 
Van  Winsen,   ex  parte     .. 

Van  Wyk,  ex  parte     

Van  Wyk  v.  Kamies 

Van  Wyk  v.  Lloyd  

Van     Wyk     and     Others,     ex 

parte      

Van  Zyl,  ex  parte  572 

Van  Zyl  v.  Moritz     428 

Van  Zvl  V.   Ochberg  562 

Van  Zyl  v.  Warner  346,  392 

Van  Zyl     and     Buissinn^     v. 

Sieg      174,   286 

Vedasz  v.  Vedasz  600 

Vefdt,  ex  parte 1010 

Venter,   ex   parte   ...   326,   646,    737 
Venter   v.  Venter  and   Others    214 

Versfield,   ex  parte      822 

Versfield  v.   Scheepers      233 

Verster  v.   Bergl 770 


INDiat. 


YieningB  and  Others  v.  Kraai- 

fontein  Hotel  Co 

Vigne   and  Another,   ex  parte 

Vijellstrom,   ex  parte      

Yillander  Concessions  v.  Colo- 
nial Gk)yernment  207,  463 

Viljoen,  ex  parte     574, 

Villet's   Estate,    ex   parte 
Vink's  Estate  v.   N.Z.    Insur- 
ance Co 475, 

Visser    v.    Baker    and    Others 

Visser  v.  Goedhals  351, 

Visser   v.    Van   der  Heever 
Visser  and  Another  v.  Nagan 

Vogel  V.  Vogel  263, 

Voger   V.   Voger    

Vogts,    ex   parte    

Vorster,    ex   parte      

Vorster*s  Estate,  ex  parte  ... 
Vorster's  Estate  v.  Pretorius 
Vorster's    Estate  v.   Van    der 

Vos  V.   Andries     

Vos  V.    Turner  735, 

Vosloo,   ex  parte      292, 

Vuso,   ex   parte     

Vuso  V.  Vuso  


PAOI 

236 

927 

1009 

635 
799 
702 

684 
437 
450 
838 
322 
696 
441 
428 
806 
599 
679 

495 
801 
802 
427 
736 
942 


Wagner,    ex   parte      599 

Wagner   v.   Wagner   826 

Waite  V.    Hansen   and   Schra- 

der 134 

Waite  and  Another  v.   Young  793 

Waite's  Estate,  ex  parte  563 

Walker,  ex  parte 19,  1006 

Walker  v.  Estate  Lurie  427 

Walker  v.    Glynn,  Mills     and 

Others  95 

Walker       v.       Beceivers       of 

Grand  Junction  Railways 

93,  645 

Walker   v.    Turman    560 

Walker's   Estate,    ex    parte    ...  377 
Walker     and     Jacobsohn      v. 

Marais 564 

Wallander    v.    Weruberg    and 

Another 236 

Wallis,   ex  parte   120 

Walsh    and    Walsh    v.    Sadler  110 
Walters'      Insol.      Kstato,      rx 

jmrte    512 

War    Department    v.    Kdwar^ls  308 

Ward,  ex  j^rte      ...  277,   321,  799 

Ward  and  Co.,    Tn  re      1008 

Ward    and    Another,    ex  parte  325 

Ward    and    Another    v.    Levin  505 

Warner,  ex  parte  ...  ,. 256 


PAOS 

Warren  v.  Warren  and      An- 
other     810 

Warren,   v.    Watson   820 

Wassenberg,  ex  parte 171 

Watermeyer,  ex  parte 152 

Watson  V.    Steer   850 

Watson  and  Another   v.    Wil- 
liams     574 

Watson,    Tennant   and   Co.   v. 

Van   As    800 

Watson's   Estate,    ex   parte   ...  926 
Weakley    v.   Estate    Van    der 

Walt   237 

Wearne,  ex  parte  83 

Webber,    ex  parte    277,  410 

Wege  V.  Hart  699 

Wege  V.  Hart   and   Others    ...  699 

Wege    V.    Meiring       642 

Wehr   and   Martin,    ex   parte  564 

Weideman,    ex   larte 703 

Weideman's  Estate  v.  De  Vil- 

liers    113 

Weimar    v.    Davies,   Anderson 

and    v/O. ...  r<30 

Wiemar  v.   Siereks      66 

Weintrob  and  Penkin  v.  Steer  18 

Wells,    ex   parte    372 

Wells    V.    M'Banga    764 

Wells  V.    Schlechter   286 

Werner  v.   Mills  353 

Wessels,  ex  parte  39 

Westbrook  v.  Martin  868 

West  and  Another  v.   London 

Assurance  Co.         ...    518,  712 
Western    "Wine    and     Brandy 

Co.    V.    Eck    30 

Western     Wine     and     Brandy 

Co.    V.    Wain  stein      88 

Weston  V.   Cape   Town  Tram- 

IV  CV^              VAJ*              •■■              >••              •••              •••             *   •   m  OX^# 

Wheeler  v.  Logan  864 

Whitaker  v.  Holmes  175 

White,     Ryan     and     Co.,     ex 

parte 34 

White,     Kjjran     and     Co.      v. 

Ashley  595 

White,     Ryan     and     Co.      v. 

Florida   374,  738 

White,     Ryan     and     Co.      v. 

•  I  4X\  XjVj^         •••          ..•          •••          •••          ■•■  ^^^^P 

Whittall    V.    Bailey    929 

Whitworth     and     Co.,     Estate 

of,    ex   jfarte   869 

Wiener  and  Co.    v.    Friedman  154 

Wiener  and  Co.   v.    Fuchs   ...  472 

Wiener  and  Co.  v.  Gordon   ...  83 

Wiggett,   ex   parte   513,  822 

Wiggett    V.    Pienaar       699 


INDEX. 


xdii 


•  •  •       •  •  • 


Wiley,    ex  parte 
Wilkinson,    ex    parte 
Wilkinson  v.    Lang  and 

other    

Wilkinson    v.    Wilkinson 

Will,    fx   parte      

Willemse,    ex   parte   

Williams,    ex   parte    

Williamson  v.   Bergl   

Williamson's  Estate  v.  Bergl 

176, 

Wilmot   V.    Walter      

Wilms   V.    Thiele   

Wilsnach   v.    Van      der  West 

huizen    and   Another 

Wilson,    ex    parte    178 

Wilgon    V.    A.    M.    E.    Church 

Wilson   V,    Boyce   

Wilson   V.   Glynn      820 

Wilson    V.    Heil)erg    

Wilson  and  Another  v.  Young 

27,  154, 
Wilson,      Son      and     Co.      v. 

^^ClX  X  wAX    ■•■    •••    ••■    ••■    ••• 

Wilson,      Son      and     Co.      v. 

Le\^'in   

Wilson,      Son      and     Co.      v. 

Pfuhl  283, 

Wilson,      Son      and     Co.      v. 

Koch  ester    Brick    Co. 
Wilson's      Executors,   ex  parte 

Wilter  V.   Wilter  

Winne    v.     Meyer       

Witte's    Estate    v.    Schmidt... 
Wittell    V.    Gildenhuys 
Wittstock   V.    Smart    .. 


PAOI 

...  449 

40,  869 

An- 

...  867 

...  1006 

...  21 

...  352 

...  429 

,   ...  564 


PAQB 


790 

1021 

240 

940 
772 
413 
14 
866 
771 

254 

1000 

800 

351 

802 
863 
1008 
285 
867 
30 
861 

Wolfaard  and  Others,  ex  parta    566 
Wood   V.   Oxeiidale   and   Co....     772 

Wood    V.    Sherwood    875 

Wood  and  Co.  v.  Paterson 

83,     235 
Woodhead,    Plant   and   Co.    v. 

Basson    525 

Woodhead,    Plant   and   Co.    v. 

Elburg 236 

Woodhead,    Plant    and    Co.    v. 

l>fuhl    307 

Woodhead,    Plant   and   Co.    v. 

Van  Eeenen  29 


>  » •   ■  •  • 


18 

291 
414 
417 


Woodstock      Municipality 
Colonial   Government 
Woodstock      Municipality 

Delmore    

Woodstock      Municipality 

De   Marillac    

Woolf  and      Others  v.    Estate 

Big  

Woolf ard  and  Others,  ex  parte    508 
Worcester  Butchery  Co.,  In  re      26 
Wordon  v.    Estate    Wordon         793 
Wordon  and  Pegram  v.   Gins- 
berg           413 

Wordon' 8  Estate,   ex   parte 

863,  942 
Wordon's   Estate    v.    Evans 

642,  1000 
Wordon's  Estate  v.  Miller  ...  412 
Wordon's  Estate  v.    Sailt     ;..     460 

Wright  V.  Ashton   644 

Wright   V.    Du  Toit   376 

Wrigley's      Estate    v.    Wright    800 


Yates   v.    Fisher    . 
Young,    vx    ftarte 
Young's    Estate    v.    Heyns 


•  •  •         •  •  • 


450 
451 
642 


Zackon   v.    Engelbrecht    560 

Zackon    v.    Gordon    14 

Zackon  v.  Saacks  and  An- 
other        286 

Zeederberg     and     Duncan     v. 

Alperowitz   232,     284 

Zeederberg     and     Duncan     v. 

Jacx>bs     371,     377 

Zeederberg    and     Duncan     v. 

Levenson   560 

Zeederberg     and     Duncan     v. 

Loftus   292 

Zoer    V.    Ginsberg    671 

Zoutendyk  and  Co.  v.  Truter  596 
Zuckerman  v.    Bernhardt  and 

Another       820,     999 

Zulu     War     Sufferers'     Fund, 

Trustees  of,  ex  parte.  ...  536 
Zwartkops      Valley      Co.       v. 

Jacobs    924 


i  *• 


3  bios  0li3  301  37li